H v Lord Advocate [2013]

The extradition of the parents of six young children to the United States to face drugs charges was not incompatible with either their rights or the rights of their children under the European Convention on Human Rights art.8. The children's art.8 rights were outweighed by the overwhelming public interest in giving effect to the extradition request.

The appellants (H and W) each appealed against a decision of the High Court of Justiciary upholding an order for their extradition to the United States.

H and W were a married couple who had been living in Scotland with their six children, four of whom were under 10. All the children had been placed on the child protection register as a result of allegations that H had sexually abused other children. The US had requested H and W's extradition on charges of conspiracy and the unlawful importation of chemicals used to manufacture methamphetamine. A sustained and deliberate course of unlawful conduct was alleged and the charges were serious, punishable by substantial terms of imprisonment.

H and W fought the extradition application on the basis that it would lead to the breakdown of the family and would be incompatible with their rights under the European Convention on Human Rights art.8. The sheriff rejected that argument and sent the case to the Scottish Ministers, who ordered H and W's extradition. The High Court of Justiciary rejected H and W's appeals. By that time, W had ended her relationship with H and the two eldest children were reluctant to see him. The issues were (i) whether the appeals were competent; (ii) whether the children's art.8 rights were outweighed by the strength of any other considerations.

Held: Appeals dismissed.

(1) The appeals were competent. There was no appeal to the instant court from a decision of the High Court of Justiciary under the Extradition Act 2003 s.103. However, the question of whether H and W's extradition was compatible with art.8, and thus whether the Scottish Ministers had the power under the Scotland Act 1998 s.57(2) to order it, was a devolution issue within the meaning of Sch.6 para.1(d) of the 1998 Act. Section 116 of the 2003 Act did not…