Supreme Court Rules on Rights of Children in Extradition Cases
20 June 2012
The Supreme Court has today issued its judgment in the case of BH and KAS v Lord Advocate  UKSC 24, an appeal from the High Court of Justiciary in Scotland. It has also issued its judgment in R (HH) v Deputy Prosecutor of the Italian Republic, R (PH) v Deputy Prosecutor of the Italian Republic and F-K v Polish Judicial Authority  UKSC 25, appeals from the Administrative Court in England and Wales which were heard at the same time as BH and KAS. In these cases, the Supreme Court has significantly developed the law on the rights of children in the context of extradition.
BH and KAS concerned a request for the extradition of a husband and wife to the United States of America to face trial in Arizona on charges relating to alleged unlawful importation into the United States of chemicals used to manufacture methamphetamine. The couple had a number of children and the Supreme Court required to assess the impact of Article 8 of the European Convention on Human Rights in the context of extradition. The weight to be given to the best interests of the couple’s children in the analysis whether the extradition of both parents, or either of them, would be proportionate was the key issue in the case.
The Supreme Court held that there are no grounds for treating extradition cases as falling into a special category, which diminishes the need to carefully examine the way the extradition process will interfere with family life. Lord Hope, who gave the principal opinion in BH and KAS, did not accept that the approach to Article 8 cases in the context of extradition should be radically different from that adopted in deportation and exclusion cases.
The offences for which the couple were to be extradited were of an extremely serious nature. There was therefore a strong public interest in giving effect to the request for extradition. The Court assessed that the best interests of the children in the present case were for them to stay with their mother. However, in the circumstances of the case, the right to family life was outweighed by the public interest in extradition.
BH and KAS v Lord Advocate can be found at:
R (HH) v Deputy Prosecutor of the Italian Republic, R (PH) . Deputy Prosecutor of the Italian Republic and F-K . Polish Judicial Authority can be found at:
A number of members of Axiom Advocates were involved in BH and KAS. James Wolffe QC acted for the Lord Advocate. Kenny McBrearty acted as junior counsel for the Scottish Ministers and John MacGregor acted as junior counsel for the Advocate General for Scotland.
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