Case Reference No:
JUDGEMENT OF SHERIFF ISABELLA GARDEN McCOLL
in Extradition Request
in respect of
BRIAN HOWES and KERRY ANNE SHANKS, residing at 90 Bridgeness Road, Bo'ness, West Lothian
For the Lord Advocate: Mr D Dickson, Crown Office International Co-operation Unit
For the Respondent, Mr Howes: Mrs Hughes, Advocate, instructed by Mr McLeod, Solicitor, Aberdeen
For the Respondent Miss Shanks: Miss Farquharson, Advocate, instructed by Miss McDougall, Solicitor, Edinburgh
EDINBURGH, 3rd April 2008
Introduction and Procedural History
[1] These are proceedings under the Extradition Act 2003 wherein the United States of America request the extradition of Brian Howes and Kerry Anne Shanks to face trial in Arizona in relation to charges of conspiring to and unlawfully importing into and distributing into the United States chemicals that are used to manufacture methamphetamine, knowing or having reason to know how these chemicals would be used for that purpose.
The request is in diplomatic note number 078 dated November 3 2006 which narrates as follows:-
"The facts of the case indicate that beginning in August 2004 the respondents operated an internet business under the names of Hyder Business Services Limited, Raw Chemicals International Limited, Lab Chemical Supplies and Lab Chemicals International Limited. The website related to this business is www.KNO3.com. The website sold chemicals, including Red Phosphorus and Iodine, both of which are used to manufacture methamphetamine, and advertised discreet packaging of its products. In March 2005, UK authorities executed a search warrant at Howes business address in Stockton-on-Tees, England and Shanks residence in Middlebrough, England in connection with an investigation of Howes ordering a handgun through the internet. Among the records seized during the searches was customer information for KNO3 sales, which showed the website has approximately 400 customers in the United States who had purchased Red Phosphorus and Iodine from KNO3. An investigation revealed that most of the customers were using these chemicals in the operation of clandestine methamphetamine laboratories."
The request states that the offences with which the respondents are charged are punishable by more than one year of imprisonment and refers to documents, duly certified and authenticated, submitted along with it to support the request. These documents include an affidavit sworn by Mary Beth Pfister, Assistant United States Attorney for the District of Arizona on 30th October 2006, a copy of the Indictment of the Grand Jury of the United States District Court for the District of Arizona against the respondents dated September 27 2006 and warrants for the arrest of the respondents. Defects in those warrants were superceded by further diplomatic notes 079 and 087 with relative affidavits from Mary Beth Pfister. The request is relative to each respondent and they are individually sought to be extradited and prosecuted in respect of the same charges. That being so, they have sought throughout the lengthy procedure which has taken place in this matter to have the requests relating to them as individuals to be conjoined procedurally in practical terms throughout albeit that separate interlocutors are pronounced in relation to each respondent at all stages of process.
[2] The requests first came to Court before myself on 31 January 2007. An extradition hearing was set down in terms of section 75 of the Act to take place on 19 March 2007 with a preliminary hearing set down for 5 March 2007. The respondents were remanded in custody. At the preliminary hearing on 5 March the Court was advised that further time to prepare was required and that sanction for the employment of senior counsel had been sought. 12 March 2007 was set down as a further preliminary hearing. The Court was advised that agents for the respondents wished to investigate what was considered to be possibly prejudicial publicity which had taken place in Arizona in relation to the proposed trial of the respondents there and that legal advice on this issue was being sought in Arizona. There was no motion for bail. At the further preliminary hearing on 12 March counsel for Miss Shanks indicated that further time was required to prepare and moved to discharge the extradition hearing set down for 19 March. This motion was unopposed by the Crown. The solicitor for Mr Howes sought leave to withdraw from acting which I granted. Mr Howes stated that he wished to obtain new legal representation. I discharged the diet of extradition hearing was fixed for 19 March and converted it into a preliminary hearing to ascertain the position regarding Mr Howes' legal representation and fixed the extradition hearing for 26 April. A motion for bail on behalf of the respondents was opposed and was refused by myself. At the preliminary hearing on 19 March a further preliminary hearing was sought unopposed by the respondents and was fixed for 2 April 2007 and was in turn on the unopposed motion for the respondents continued to 20 April.
[3] The preliminary hearing of 20 April took place before Sheriff K M Maciver. I refer your Lordships to his Report dated 19 July 2007 in relation to a Bill of Suspension which was lodged by the respondents as to what occurred at the preliminary hearing of 20 April and the diets thereafter of 26 April, 9 May, 25 May and 7 June 2007 which culminated with the request by counsel who were then acting on behalf of the respondents that Sheriff Maciver should recuse himself from the proceedings. That motion having been refused by Sheriff Maciver the Bill of Suspension was before your Lordships.
[4] A further preliminary hearing was fixed for 22 June 2007 at which Sheriff J Douglas Allan heard parties in relation to an issue which had arisen as to whether or not a copy of the warrant which had been granted by Sheriff Stoddart in January 2007 in terms of the requests had been served upon the respondents in terms of section 72. A hearing on this issue was fixed for 31 July 2007. At that hearing Sheriff Stoddart heard evidence and submissions of the parties and found it proved beyond reasonable doubt that section 72(2) of the Extradition Act 2003 had been complied with, i.e. that a copy of the warrant had been given to the respondents as soon as practicable after their arrest. He fixed 14 August as a further procedural hearing and the respondents remained remanded in custody.
[5] On 14 August Sheriff Stoddart assigned 26 September as a procedural hearing with 10 October being assigned as an extradition hearing with 11 and 12 October being reserved as continued diets of that hearing if so required. These dates were assigned as is referred to in the Note appended to that interlocutor to take place after the Bill of Suspension would be heard in the High Court in the week commencing 17 September. At the preliminary hearing on 26 September, by which time the respondents had been granted bail by the High Court, there had been a change of agency for Miss Shanks and there was a motion for the extradition hearing set down for 10, 11 and 12 October to be discharged. Accordingly a new diet of 14 November 2007 was set down with the two subsequent days as continued diets if required with a preliminary hearing fixed for 1 November. The respondents were ordained to lodge written notes of arguments with the Sheriff Clerk by 17 October which were to be intimated to the Lord Advocate and the Lord Advocate was ordained to lodge a written response with the Sheriff Clerk by 24 October with intimation to the representatives of the respondents. At the preliminary hearing on 1 November no written note of arguments had been lodged on behalf of the respondent, Mr Howes, and the preliminary hearing was continued until 8 November with the representatives of Mr Howes being ordained to lodge the required Note by 5 November with intimation to the Lord Advocate. At the preliminary hearing on 8 November Sheriff Allan continued the case to the extradition hearing previously assigned for 14 November 2007, although the interlocutor incorrectly refers to 14 August. The extradition hearing set down for 14 November called before myself. I was advised by counsel who was now instructed on behalf of Miss Shanks that she had concerns for Miss Shanks' mental health. She invited me to adjourn the extradition hearing to allow her to be medically examined. This motion was unopposed and I adjourned the hearing to 16 November for the purpose of Miss Shanks being psychiatrically examined. At the diet of 16 November medical reports were available to the effect that Miss Shanks was not suffering from mental illness but from stress relating to these proceedings, relating not only to their nature but to the length of time they had been taking place. The extradition hearing commenced that day and continued on 29, 30 and 31 January and 10 March.
Section 78 - Initial Stages of the Extradition Hearing
[6] At the commencement of the extradition hearing on 16 November counsel for Mr Howes, Mrs Hughes, and counsel for Miss Shanks, Miss Farquharson, advised the Court that it was accepted that the requirements of section 78(2) had been met. Accordingly, I could answer the question in that sub-section in the affirmative and proceed to consider section 78(4). In relation to sub-sections (4)(a) and (4)(c) it was accepted that each of the respondents is the person whose extradition is requested in the respective requests and that copies of the documents sent to the Judge by the Secretary of State had been served on each of them. At the later diet on 10 March this position was said by both respondents to be modified in relation to section 78(4)(a) under reference to the determination of Sheriff Stoddart on 31 July 2007 which dealt with s 72(2) and whether a copy of the warrant was given to the respondents as soon as practicable after their arrest. Parties reserved their position on this point which I think that this must in fact relate to section 78(4)(c).
Before proceeding to consider section 78(4 )(b) a further matter was raised by Mrs Hughes.
Transmission of evidence recovered by search warrants in the United Kingdom to the United States
[7] I was addressed at some length by Mrs Hughes regarding evidence which had been recovered in England and in Scotland from the respondents' home and business premises there in terms of search warrants having been illegally or improperly transmitted to the United States. This evidence was said by her to be the evidential basis upon which the Indictment from the Court in Arizona had been framed and therefore she made submissions on behalf of Mr Howes as follows which were adopted on behalf of Miss Shanks by Miss Farquharson.
Submissions on behalf of the Respondents
[8] Whilst the respondents were living near Middlesburgh search warrants had been granted on 23 March 2005 and 21June 2006 by the District Judge of Teeside Magistrates' Court. The earlier warrants related to a suspected firearms offence and are referred to as above in the letter of request. The later warrants related to suspected Misuse of Drugs Act offences. Searches had been carried out at the respondents' homes and business premises in England by virtue of these warrants. The warrants dated 21 June 2006 had been backed by Sheriff Miller at Falkirk Sheriff Court on 23 June 2006 as by that time the respondents had moved to Scotland. Mrs Hughes submitted that evidence which had been recovered by virtue of these warrants had been illegally or improperly transmitted to the United States.
She referred to sections 13, 14 and 15 of the Crime (International Co-operation) Act 2003 (CICA) and submitted that there had been a failure to follow the statutory procedure set out in sections 14(1)(a) and 15(3). In this matter the U.S. Department of Justice sent a letter dated 4 December 2006 to the Central Authority in the United Kingdom requesting assistance in the prosecution of the respondents, a copy of which was appended to an affidavit dated 16 November 2007 executed by DS Becky Driscoll of the Force Intelligence Bureau, Cleveland Police. At paragraphs 9 and 10 of that affidavit she stated that the letter of request was sent to Cleveland Police and that it was also sent to the International Co-operation Unit at the Crown Office for recovery of those items believed to be in Scotland and that as a result the evidence recovered under the searches in furtherance of the warrants of March 2005 and June 2006 was transmitted to the United States in March 2007. Accepting that statement as pro veritate Mrs Hughes submitted that in the absence of the Lord Advocate following the required statutory procedure set out in sections 13 to 15 that that transmission was unlawful.
[9] Further, she submitted that Mr Howes' position was that his United States Attorney had access to evidence which would irrefutably establish that evidence recovered in these warrants had been sent to the United States of America in the absence of any formal letter of request and without any judicial involvement prior to the drawing up of the Indictment in Arizona. It was Mr Howes' position that his solicitor in England had also advised him that evidence recovered from the search carried out after the warrant granted in March 2005 had at that time been sent to the United States. Mrs Hughes submitted that there was support for those contentions within the terms of the Indictment where there is reference to a variety of e-mail communications information about which must have come, in her submission, from computers which belonged to Mr Howes and Miss Shanks and which had been seized during the searches. However, Mrs Hughes did concede that there were recipients and senders of these e-mails in the United States so that details of that correspondence was also recoverable in the United States.
The significance of evidence having been illegally or improperly transmitted was said to be that it resulted in the Indictment being fundamentally unsound as well as the extradition request flowing from it. She referred to the opinion delivered by Lord Macfadyen in Calder v Frame 2006 SLT 362 and [2006] HCJAC 62 at paragraphs [29] to [32] and submitted that the strong public interest in affording assistance in requests relating to serious international offences was subject to the control mechanisms which were incorporated into CICA being allowed to operate properly. Whilst she accepted that the conditions set out in sections 13(3), 14(1) and 14(2) were satisfied in the present case there had been a failure by the Lord Advocate to nominate a court in terms of section 15(3) to receive the evidence which had been recovered in Scotland as a result of the "backing" given to the warrant of 21st June 2006 before it was transmitted to the United States. In her submission this meant that the transmission of the evidence was so disconform to the legislation as to render it unlawful. The procedural safeguards and control mechanisms had not been adhered to and therefore it was open to me to consider the issue of lawfulness and to refuse the extradition request. She referred me to the opinion of Lord Johnstone at para [64] in Robertson and Gough v HMA [2007]HCJAC 63 to the effect that fairness in procedure is fundamental to Scots law
Submissions on behalf of the Lord Advocate
[10] For the Lord Advocate, Mr Dickson submitted that this Court has no jurisdiction to consider the issue of transmission of evidence and its admissibility or otherwise either as a foundation for the Indictment or the granting of the initiating Warrants in Arizona or as evidence in any trial there which the respondents may face.
[11] Firstly he submitted that section 84(7) of the Extradition Act 2003 disapplies the requirement contained in section 84(1) for the judge in a case where the person has not been convicted to make a decision on sufficiency of evidence as if the extradition were a summary trial. The United States of America is a designated Category 2 Territory for the purposes of section 84(7) in terms of SI 2003 3334. He submitted that therefore the Extradition Act does not permit the Court to look at the evidence which may or may not form part of the United States proceedings and that this Court can only proceed in terms of the information contained in the request and supporting documentation. He referred me to Norris v The Government of the United States of America and Others [2007] EWHC 71(Admin) paras [124] to [127]. He submitted that the submissions made on behalf of the respondents on this issue of transmission of evidence rested on a fundamental misunderstanding of what had occurred in relation to the search warrants and then in relation to the transmission of evidence.
[12] The warrants which had been issued in Teesside Magistrates Court had been issued and the items which were recovered through these warrants in England and, through backing, in Scotland were all in the course of domestic investigations relating to the respondents. This was at a stage before there was any suggestion of a criminal investigation taking place in the United States. However at some stage it is clear that the United States became aware of the domestic investigations. The letter from the U.S. Department of Justice dated 4 December 2006 which requested assistance in relation to evidence which was recovered in the domestic investigations referred to informal law enforcement channels. It had been accepted by Mrs Hughes that information being provided and shared internationally between law enforcement agencies was unobjectionable. Without such sharing of information there would be no international investigation of international crime.
Further he submitted that the suggestion made on behalf of Mr Howes that the prosecutor in Arizona had drawn up the Indictment not on the basis of information provided to the law enforcement agencies there but on the basis of evidence which had previously been transmitted unlawfully from the United Kingdom to the United States of America had no foundation in fact.
[13] At this point, Mrs Hughes interjected to say that Mr Howes' position now was that his attorney had as yet no actual evidence to support his contention that, prior to the Indictment being drawn up, evidence which had been recovered in the earlier domestic inquiries had been transmitted to the United States but that the matter was still being looked into. This appeared to be a marked shift by Mr Howes from his earlier earlier assertion that his attorney was in possession of irrefutable evidence on this issue.
[14] In addressing the alleged failure to comply with the statutory requirements of CICA Mr Dickson referred to the Treaty between the Government of the United Kingdom and Northern Ireland and the Government of the United States of America on Mutual Legal Assistance in Criminal Matters with Exchange of Notes dated 6 January 1994 which he submitted was reflected in the terms of CICA. In terms of section 13 of CICA, when a request for assistance is received, the receiving authority may in terms of section 13(1)(a) arrange for evidence to be obtained under section 15 if the conditions in s14 are met or in terms of s 13(1)(b) direct that a search warrant be applied for in relation to evidence in Scotland by virtue of section 18. In his submission section 15 applies to the reception of oral testimony. For example, if the United States authorities in this case had wanted evidence of a police officer the Lord Advocate would nominate a Court for that evidence to be taken. There would be a shorthand writer and the presiding Judge would oversee the proceedings. The footnote that section refers to representatives from the requesting State being present and taking part in such proceedings. If a search warrant is requested the Lord Advocate would direct the procurator fiscal in the appropriate jurisdiction to apply for a warrant by virtue of section 18. That application would go before a Sheriff who would only grant the warrant if he or she considered it appropriate to do so. Therefore when a warrant is applied for in terms of section 18 there is judicial oversight provided for in the procedure, all in accordance with our national law. He submiited that the section 13(1)(b) and 18 procedure was followed in this case and the search warrant was "backed" by Sheriff Miller. Just as in our domestic procedure there is no further judicial hearing after a search warrant is executed before any evidence recovered is given to the prosecutor, in a search warrant executed in the furtherance of letter of request there is no further judicial oversight required before any evidence recovered is transmitted to the requesting state. The same applied to the evidence recovered in England. The evidence recovered by virtue of these warrants was recovered under domestic law in domestic investigations into firstly firearms and thereafter Misuse of Drugs Act offences. The recovery of evidence had judicial oversight provided by the judicial authority for the searches when the warrants were granted. The recovery of evidence and its transmission is carried out in pursuance of international obligations. I was referred to the case of Norris v United States of America [2007] EWHC 71(Admin) at paragraphs [124] to [127].
[15] In the course of her submissions Mrs Hughes had sought an adjournment of that day's extradition hearing in order to investigate the availability of the evidence to support the alleged illegal transmissions of evidence prior to the Indictment being framed. Miss Farquharson, notwithstanding the terms of the medical reports relating to Miss Shanks which urged that there should be no delay in the extradition proceedings, supported Mrs Hughes' motion to adjourn. I was not inclined to grant the motion. However, such were the length of the submissions in this matter that Mrs Hughes' motion to adjourn was rendered unnecessary as the day's diet was used up and the hearing required to be adjourned. Further diets were not due to take place until the end of January 2008, giving ample time for any of the investigations said to be taking place in Arizona on Mr Howes behalf to be carried out. I have no information as to whether any such investigations were in fact ever carried out. The matter was never raised again in the remaining days of the extradition hearing. Similarly, whilst earlier adjournments had been sought by the respondents to gather evidence that there had been unfair publicity in Arizona which would render unfair any trial there never produced any information in that regard.
Decision on issue of transmission of evidence
[16] Beyond the assertion of Mr Howes, which I reject for reasons stated later in this judgement, there is no material before me to suggest that any evidence recovered from the searches carried out under the warrants referred to was transmitted to the United States' authorities before March 2007 as stated by DS Driscoll in her affidavit. Therefore there was nothing before me to support the suggestion of transmission of evidence before the Indictment was drawn up. The Indictment itself refers to information, not evidence, being received. Neither the Indictment nor the extradition request can be said to be tainted and unlawful as a result because they were clearly drafted prior to the transmission in March 2007.
[17] In any event is not for me to consider whether there was any failure to follow the statutory procedures in CICA before transmission of evidence in March 2007. That matter could only be relevant at the stage of any prosecution in the United States when such evidence was sought to be produced. At that stage argument in that forum may be made that failure of procedural safeguards, if such have occurred, would render such evidence inadmissible in law at any trial by reason of rule of law or considerations of fairness. Even if there had been any irregularity in that regard it could not be said to render these extradition proceedings unfair. It is a well settled principal of our extradition law that the United Kingdom must trust the judicial systems of requesting states with whom it has extradition arrangements to provide fairness in their prosecutions. I agree with Mr Dickson's submission that it is not for this Court to consider the evidence relative to these extradition requests or its admissibility. Consideration of the evidence is disallowed by section 84(7) of the Extradition Act. This principle has been recently re-affirmed in the decision of the House of Lords in re Hilali [2008] UKHL3 (to which I was not referred) in which Lord Hope of Craighead states at paragraph 16 that "The question whether the evidence that was relied on to prove an extradition offence was not admissible was for determination by the Court in the requesting country when the person was put on trial there for the offence."
I therefore am not prepared to discharge the extradition as sought by the respondents in relation to this issue and shall proceed to consider whether the requirements of section 78(4)(b) are met.
Section 78(4)(b); is the offence specified in the request an extradition offence?
Submissions for the Lord Advocate
[18] On behalf of the Lord Advocate, Mr Dickson submitted that the principal crime that would be committed in Scotland on the facts contained in the extradition request applying the principle of dual-criminality would be conspiracy. In his submission the registration charges were collateral to the substantive charges.
His primary submission was that s137(2) is the appropriate section under which the question of whether the offence specified in the request is an extradition offence ought to be determined, which failing, section 137(3).
S 137(2) states:-
"The conduct constitutes an extradition offence in relation to the category 2 territory if these conditions are satisfied-
(a) the conduct occurs in the category 2 territory;
(b) the conduct would constitute an offence under the law of the relevant part of the United Kingdom punishable with imprisonment or another form of detention for a term of 12 months or a greater punishment if it occurred in that part of the United Kingdom;
(c) the conduct is so punishable under the law of the category 2 territory (however it is described in that law).
S137(3) states:-
"The conduct also constitutes an extradition offence in relation to the category 2 territory if these conditions are satisfied:-
(a) the conduct occurs outside the category 2 territory;
(b) the conduct is punishable under the law of the category 2 territory with imprisonment or another form of detention for a term of 12 months or a greater punishment (however it is described in that law);
(c) in corresponding circumstances equivalent conduct would constitute an extra-territorial offence under the law of the relevant part of the United Kingdom punishable with imprisonment or another form of detention for a term of 12 months or a greater punishment.
[19] Under reference to the cases of Office of the King's Prosecutor -v- Cando Armas, [2006) 2 AC1 per Lord Hope at paras 35 and 40 and Calder -v- Lord Advocate [2006] HCJAC 71 at [14] it was submitted that the conduct in this case which it was essential to establish occurred in the United States of America on the basis that the impact of the criminal conduct was felt there. He submitted that this was the case albeit that the electronic receipt of the orders and the physical transmission of the red phosphorous and iodine took place in the United Kingdom. Following Armas and Calder in his submission the impact of that conduct was in the United States of America and section 137(2) was the most appropriate section to consider the question of whether the conduct was an extradition offence. In considering that question he submitted that a purposive approach should be adopted, an approach which was strongly endorsed in Calder. Whilst red phosphorous and iodine are not prescribed drugs in the United Kingdom the purpose for which it is said that they were transmitted to the United States was for the manufacture of methamphetamine. Methamphetamine is a drug which is prescribed in the United Kingdom, and on 18 January 2007 was re-classified from a Class B to a Class A drug, the classification in itself being irrelevant in the context of considering the issue of the conduct being an extradition offence.
[20] He referred me to the case of United States of America Others -v- McCaffrey, [1984] 1 WLR 867 and in re Neilsen, [1984] AC 606 and submitted that there required to be a conversion of the facts which form the conduct in the United States. If it is conduct which, if occurring in the United Kingdom, would be an offence punishable for at least a 12 month sentence of imprisonment the requirements of both section 137(2)(b) and 137(3)(b) would be satisfied. In his submission that would be the application of dual-criminality of the conduct. There could be no dispute that the conduct was so punishable in the Category 2 requesting Territory. There is reference to the possible sentence disposals in the Indictment. If it were thought that section 137(3)(c) applied that could constitute an extra territorial offence punishable for the required period in terms of section 20 of the Misuse of Drugs Act.
Putting the request shortly Mr Dickson submitted that it alleges that from August 2004 Mr Howes and Miss Shanks sold over the internet red phosphorous and iodine to approximately 400 customers in the United States of America and that most of these customers were concerned in the clandestine production of methamphetamine. He referred me to the affidavit of Marybeth Pfister dated 30 October 2006 which accompanied the request. At page 2 paras 5and 6 Miss Pfister states :-
"5. An investigation by the US Immigration and Customs Enforcement and the Drug Enforcement Administration revealed that Brian Howes and Kerry Anne Shanks through their UK based internet business, www.KNO3.com, conspired to and unlawfully imported into and distributed in the United States chemicals that are used to manufacture methamphetamine, knowing or having reason to know how those chemicals would be used.
6. United States law regulated the import and distribution of many listed chemicals, including chemicals that can be used to manufacture controlled substances. The United States law prohibits the import and distribution of any listed chemical by a person who knows or who has reasonable cause to believe that it would be used to manufacture a controlled substance. Among the chemicals so regulated are red phosphorous and iodine. Red phosphorous and iodine are used to manufacture methamphetamine by combining the red phosphorous with water, pseudoephedrine and iodine crystals and boiling the mixture until a chemical reaction changes the pseudoephedrine into methamphetamine. Accordingly United States law prohibits the import and distribution of red phosphorous or iodine by a person who knows or who has reasonable cause to believe the chemical will be used to manufacture methamphetamine."
[21] Mr Dickson submitted that the chemicals red phosphorous and iodine whilst lawful in the United Kingdom are unlawful in the United States and by exporting these chemicals to the United States the respondents assisted others there to commit the offence of importing these substances and of being concerned in the production of methamphetamine, the latter being unlawful in both the United Kingdom and the United States. He referred me to page 13 of Miss Pfister's affidavit at paragraph 39. Miss Pfister refers to incriminating computer records recovered from KNO3 including e.mails, false and misleading statements made on the packaging of KNO3 products sent to the United States and undercover sales made to agents of United States authorities. Further, she refers to KNO3 continuing to sell red phosphorous to customers in the United States even after being advised that the sales were illegal and after being advised that the products were being used for the manufacture of methamphetamine. It was submitted that this information was relative to the dual-criminality argument and section 4(1) of the Misuse of Drugs Act.
He submitted that the 82 counts of offences referred to in the letter of request and in the Indictment can be considered as falling into three groups. Counts 1-49 are concerned with conspiracy to unlawfully distribute or import listed chemicals in the United States and aiding and abetting those offences. Counts 50-65 are concerned with the unlawful use of communications to facilitate the conspiracy in Counts 1 to 49 and aiding and abetting that offence. Counts 66-82 are concerned in importing listed chemicals without registration and conspiracy to import listed chemicals without prior registration and aiding and abetting those offences. Paragraphs 18-38 of Miss Pfiser's affidavit details what is required by United States law for the United States authorities to obtain conviction in respect of the detailed offences.
[22] Mr Dickson submitted that on any reading of our law the importation of listed or restricted chemicals is unlawful and the Court need not be satisfied how these charges are to be proved in the United States. In his submission the Court need only be satisfied that if red phosphorous and iodine were restricted or unlawful chemicals in the United Kingdom that likewise importation of these chemicals would be unlawful. He submitted that the Court must accept what is said in the request with its supporting affidavit about the unlawfulness of these chemicals in the United States and it follows that it is irrelevant how these crimes are proved in the United States of America. He further submitted that it would be incompetent for this Court to consider how it could be proved in the United States of America in the same way as it was irrelevant to consider how evidence has been transmitted from the United Kingdom to the United States. In his submission all the Court had to consider was that the United States of America had been designated by the Secretary of State as a country where there is no requirement for prima facie evidence under section 84(1) of the Extradition Act be produced. The Court was entitled to consider the information presented with the request but not to go beyond that into considering evidence relative to this information.
[23] It was further submitted that consideration of section 137(2) had to be broken down into its sub-sections. The conduct of concern constitutes an extradition offence in relation to the Category 2 Territory if (a) the conduct occurs in the Category 2 Territory. The conduct of concern here was the importation of red phosphorous and iodine into the United States of America. It is clear that that is unlawful in the United States of America. Further, the purpose to which these chemicals were put was the manufacture of a controlled substance. It would therefore follow that the result of the conduct by the respondents in sending those chemicals to the United States would be in the United States. He referred me to the case of Armas and the dicta of Lord Hope at paragraphs 35 and 40 of his Judgement. At paragraph 35 Lord Hope stated that: "It is now well established that the physical presence of the defendant in the territory is not required so long as the effects of his actions were intentionally felt there." In paragraph 40 Lord Hope refers to how he would construe the word "conduct" where it appears inter alia in section 65(3)(a) of the 2003 Act which is expressed in the same terms as section 137(2)(a). He said that a purposive meaning must be given to the word "conduct" in this context. It would impose a wholly artificial restriction on the extradition process if it were to be taken as meaning that all conduct which resulted in the offence must have taken place exclusively within the requesting Category 1 territory in that case (ie the requesting territory). Actings elsewhere will be sufficient to constitute conduct in that territory so long as their intended effect was to bring about harm within that territory. Mr Dickson submitted that this purposive approach was followed in the case of Calder v The Lord Advocate [2006] HCJAC 71 where at paragraph 14 the Lord Justice Clerk Lord Gill stated: "In our view conduct can properly be interpreted as occurring in the place where it has effect. Thus a person may, quite consistently with the ordinary use of language, be said to import materials into the United States even though he never leaves Scotland. Likewise, he may be said to have joined in a conspiracy which occurred in the United States even though he was never physically there; the transmission of written, oral or electronic communications from Scotland to the United States would amount, purposively speaking, to conduct in the latter place. Where two alternative senses of an expression were possible, that which best fits the purpose of the legislation, properly construed, is to be preferred. We find the purposive approach adopted by Lord Hope in Office of King's Prosecutor -v- Cando Armas highly persuasive."
[24] This point was reinforced in R (Bermingham and Others) -v- Director of the Serious Fraud Office, (2007) [2 WLR 635] where at paragraph 85 it was held that the true construction of section 137(2)(a) did not require it to be shown that the whole of the conduct occurred in the Category 2 Territory. In that case the defender had been using the internet to defraud banks in the United States of America. Upon these authorities Mr Dickson invited me to consider that the alleged conduct in the request and supporting affidavit occurred in the Category 2 Territory and that the condition in section 137(2)(a) was satisfied.
[25] Moving on to the condition which requires to be satisfied in 137(2)(b), it was submitted for the Lord Advocate that the appropriate way to view the conduct was a conspiracy to import the restricted chemicals into the United States, that importation being unlawful there. The word "conspiracy" as already mentioned had been referred to in paragraph 5 of Miss Pfister's affidavit and the 82 counts of offences all refer to aiding and abetting these offences. He submitted that if these chemicals were listed or restricted in the United Kingdom, and unlawful, then importation of them into the United Kingdom would likewise be unlawful. He again referred me to the United States of America -v- McCaffrey and in re Neilson. In his submission the fact that they are not unlawful is irrelevant for the purpose of construing sub-section (b).
[26] Further, he submitted that if the purpose of the importation of those chemicals into the United States was the manufacturing of methamphetamine that conduct would be unlawful if it occurred in the United Kingdom in terms of section 4 of the Misuse of Drugs Act 1971. His primary submission is that the conduct of the respondents was a conspiracy and if the Court were satisfied that the conduct is a conspiracy he submitted the counts in the Indictment which relate to contravention of the registration requirements contained in counts 66-82 to which there is no equivalent in the United Kingdom in themselves would be in fact a substantial part of the crime of conspiracy which is alleged and extradition could be ordered in respect of those offences. He referred me to the case of La Torre -v- HMA, 2006 HC JAC 56 in which one of the crimes for which extradition was sought was that Mr La Torre was alleged to be a member of a criminal organisation. On the issue of whether that was an extraditable offence the opinion of the Court as delivered by the Lord Justice Clerk, Lord Gill, at paragraph 124. It was right that the 2003 Act looks at the conduct for which extradition is sought rather than to any specific nomen juris. It was considered that in that case the alleged crime of the appellant was not mere membership of a certain association. It was the Court's view that that was not the case but he was in fact a member of an association whose purpose was to conspire to commit certain specified crimes. That was the nature of the Italian crime alleged and the Court held it was in essence no different from the Scottish crime of conspiracy to further the purpose of an association by a criminal means. That, it was submitted, is what was being alleged in the request with its supporting affidavit and the Indictment. The failure to register to import the red phosphorous and iodine legally was part of that conspiracy as being unregistered would aid non-detection of the importation by the United States authorities.
[27] Further, all the offences as outlined in the request are referred to not only as involving conspiracy but also to aiding and abetting. Under section 293 of the Criminal Procedure (Scotland) Act 1995 someone may be convicted of a contravention of any enactment notwithstanding that he was guilty of such contravention as art and part only. Additionally, therefore, aiding and abetting people in the United States of America to commit crimes in that jurisdiction is equivalent to committing an offence on an art and part basis in the United Kingdom. Thus while the Lord Advocate accepted that there is no equivalent in the United Kingdom to the offences in the United States relating to failure of registration which would mean that these were not of themselves extradition offences, in this case that conduct was part of a conspiracy to import illegal chemicals and to manufacture illegal drugs or to aid and abet in those offences and therefore as part of a conspiracy in his submission the registration offences too would be extradition offences.
[28] I was referred to Criminal Law by Sir Gerald H Gordon, 3rd Edition, paragraph 6.57 in relation to conspiracy. Conspiracy is referred to as being constituted "by the agreement of two or more persons to further or achieve a criminal purpose. A criminal purpose is one which if attempted or achieved by action on the part of an individual would itself constitute a crime by the law of Scotland.". He submitted that here there was a conspiracy by the respondents to import into the United States red phosphorous and iodine for the manufacturing of methamphetamine. If that occurred in the United Kingdom then to import chemicals for the manufacturing of methamphetamine would also be an offence for the purposes of dual-criminality. Conspiracy was also considered in the case of Sayers -v - HMA, 1991 SCCR 312 and the charge to the jury by Lord Ross reported at pages 315 and 316. Reference was also made to Clements -v- HMA, 1991 JC 62 and Megrahi -v-HMA, 2002 JC 99 as discussed at paragraphs 37 and 38 of Armas. He submitted that these cases were authority for the proposition that in the circumstances set out in the American request in relation to dual-criminality the Court can be satisfied that a conspiracy to import chemicals for the manufacture of methamphetamine, a Class A (formerly Class B) drug would be an equivalent offence in this jurisdiction.
If the Court were not satisfied that there was an equivalent offence of conspiracy he submitted that it could be satisfied that there was an equivalent offence in terms of section 4 of the Misuse of Drugs Act 1971 in relation to the production and supply of controlled drugs. In terms of s 4(2)(b) it is an offence to be concerned in the production of a controlled drug - in this case methamphetamine. He submitted therefore the three conditions set out in sub-section (a), (b) and (c) of section 137(2) were satisfied and the Court could find that the alleged offences in the request are extradition offences.
[29] If the Court were not so satisfied in terms of s 137(2) the Lord Advocate in that event would seek to rely on s 137(3). S 137(3)(a) requires that the conduct occurs outside the category 2 territory i.e. outwith the United States of America and it was submitted that for this to apply I would have to consider that the supply of the chemicals was made from the United kingdom with no impact of the criminal conduct being felt in the United States. In relation to s137(3)(b) all the offences referred to in the request are punishable under the law of the United States with the lowest penalty being four years and the highest penalty being 20 years' imprisonment. In relation to s 137(3)(c) in corresponding circumstances the equivalent conduct would, in his submission, be an offence in the United Kingdom firstly as a criminal conspiracy as already referred to and would also be an offence in terms of section 20 of the Misuse of Drugs Act punishable with imprisonment for a term in excess of 12 months.
[30] The submissions on this issue were made on behalf of the Lord Advocate on the continued diet of the extradition hearing on 28 January 2008. Four further consecutive days thereafter had been assigned for the hearing. It was proposed by the respondents to lead evidence in relation to section 87(1) on the question of whether their extradition would be compatible with their ECHR rights should my decisions to the questions posed in the relevant prior sections lead to consideration being required of that section. It transpired that the respondents' representatives believed that only three further days had been assigned and were not available for the fourth day. This meant that there might have been a difficulty in concluding the evidence that week and it was considered desirable to do so. It was proposed and accepted that the evidence could be interposed before any submissions would be made by the respondents in answer to the Lord Advocate's submissions in relation to 78(4)(b).
[31] I am clear that the only purpose for which evidence was allowed to be and could be competently considered was in relation to section 87(1). Correspondence between Mrs Hughes and the Crown confirms that was its purpose. In the course of the evidence which was ultimately led questions were put to the respondents, without objection by the Lord Advocate, which related to their account of their respective roles and knowledge in the alleged offences in the request. This led to submissions being made by the respondents in relation to section 78(4)(b) which included reference to that evidence. I do not propose to rehearse these submissions in relation to section 78(4)(b) insofar as they referred to the evidence led as I consider that the respondents' testimony is irrelevant in that context because it cannot competently be taken into account.
Submissions for the Respondents re s78(4)(b)
[32] Mrs Hughes for the respondent Brian Howes submitted that in relation to section 78(4)(b) the offences specified in the request are not extradition offences. Her submissions on this issue were adopted by Ms Farquharson on behalf of Miss Howes.
In relation interpretation and s137(2)(a) Mrs Hughes referred to the Lord Advocate proceeding on the basis that the alleged conduct was conspiracy and it was accepted by her that the relevant test is directed to assessment of the conduct and whether the same constitutes the offence. It was accepted that no nomen iuris need be applied. She said that it was further accepted in respect of registration offences that these must be viewed as coming under the umbrella of the crime of conspiracy and not freestanding.
Under reference to evidence which had been given by Mr Howes about delivery of chemicals to the United States, she submitted that s 137(3) could not apply and only section 137(2) could apply in this case. The Lord Advocate's reliance upon s 20 of the Misuse of Drugs act 1971 was in her submission an error in law. She submitted that the requirement for dual criminality requires an analysis of domestic substantive law and is not satisfied by reference to a provision which addresses extra territorial criminality. To do so would be to defeat substantive procedural safeguards already referred to by her in Calder v Frame and Robertson and Gough v HMA. In her submission the Extradition Act 2003 is of and administrative nature which requires a narrow interpretation of procedural requirements.
Whilst it was accepted by Mrs Hughes that consideration by the Court of the evidence which would be sufficient to make a case requiring an answer by the respondents was precluded by the terms of section 84(7) she nevertheless referred to the evidence which had been led. In her submission the evidence did not support the allegations that the respondents knew or ought to have known that the chemicals which they were supplying were illegally being so supplied to the United States and that they were being used there to manufacture an illegal drug.
[33] Whilst not negating Mrs Hughes' acceptance of the effect of section 84(7), this submission was amplified at length by Miss Farquharson under extensive reference to the evidence. She invited me to find that on the evidence that the conduct of Miss Shanks considered separately did not amount to conspiracy. She submitted that there was no basis on the information provided for inferring that Miss Shanks was a party to an agreement to further or achieve a criminal purpose and that the facts relied upon as constituting the conduct do not amount to an offence of conspiracy as contended by the Crown. She accepted that if the Court were satisfied that a conspiracy had been made out that the registration charges in the request are an integral part of a substantive crime and as such come under the umbrella of a crime of conspiracy. If the Court were not satisfied that the crime of conspiracy had been made out the Crown had conceded that the registration charges alone failed to meet the test of dual criminality. She further submitted that the Crown cannot rely on section 4 of the Misuse of Drugs Act 1971. Production and supply of red phosphorous and/or iodine does not amount to an offence under section 4 in the United Kingdom. Only if the purpose of producing and supplying these chemicals was to manufacture methamphetamine (or other controlled drug) could Miss Shanks be said to have committed an offence under this section. She submitted that there was no basis for inferring Miss Shanks was a party to achieve or further that criminal purpose. The Crown were relying on a conspiracy to produce the prohibited drug for Miss Shanks to come within ambit of section 4. She submitted that it therefore followed that if the offence of conspiracy is not made out reliance upon an offence under section 4 must fail.
[34] In relation to submissions made on behalf of the Lord Advocate in connection with the respondents individually being involved "art and part" in the alleged offences in terms of Criminal Procedure (Scotland) Act 1995 Section 293 Ms Farquharson submitted that as with conspiracy the constituent elements required for this offence are not made out either in the information relied upon in the extradition request or from the evidence heard. She submitted that there was no basis for inferring that there was a common plan between Miss Shanks and Mr Howes or others and that she had acted pursuant to it. In terms of the evidence she submitted that Mr Howes was the dominant partner in the respondents' relationship and in running their business with Miss Shanks having little or no say in the running of the business. If Mr Howes had done anything wrong she submitted that he had done it on his own.
Decision re s 78(4)(b)
[35] After I heard submissions on 10 March and made avisandum the Appellate Committee of the House of Lords reported on 12 March in an appeal in the case of Norris to which reference has been made. The Report citation is [2008]UKHL] 16. Because of the decision which the Committee had made in the first part of the appeal an issue which had been raised in the appeal under s 137 did not strictly arise but given the obvious general importance of the issue and because it was fully argued before the House they thought it right to decide it (para 64).
I considered whether to invite further submissions in the light of this Report (and in relation to Hilali already referred to). I decided not to do so. These proceedings have already been extremely protracted. I did not understand parties to take issue with the test which the House decided should apply in deciding whether the alleged offence under consideration is an extradition offence. I refer to the Report for its assistance on how that test should be applied. In any event it has been clear that whatever my ultimate judgement would be in relation to the decisions I am required in relation to the request there would almost certainly be an appeal by either the requesting state or the respondents. Parties will no doubt have an opportunity to make further submissions to the High Court if this case proceeds to there.
[36] In Norris at paragraph 65 the Committee discussed "the so-called double criminality rule" and said that the court can be required to make the comparison and to look for the necessary correspondence either between the offence abroad (for which the accused's extradition is sought) and an offence here, or between the conduct alleged against the accused abroad and an offence here. For convenience they called these respectively the offence test and the conduct test.
The Committee reviewed inter alia the cases referred to of Armas, McCaffery,and Nielsen. In considering the history of extradition they state at paragraph 67:-
"The magistrate's task, in short, was simply to examine the evidence produced by the requesting state to decide whether, according to English law, it would justify the accused's committal for trial for a listed offence. As Lord Diplock made plain in successive decisions of this House in In re Nielsen [1984] AC 606 and in Government of the United States of America v McCaffery [1984] 1 WLR 867, the conduct test was to be applied:
"[T]he magistrate is not concerned with what provision of foreign criminal law (if any) is stated in the warrant to be the offence which the person was suspected of having committed and in respect of which his arrest was ordered in the foreign state." (In re Nielsen, 624 F-G): ......
The right test, as stated by the Divisional Court in the Nielsen case, was: whether the conduct of the accused, if it had been committed in England would have constituted a crime falling within one or more of the descriptions included in that list." (McCaffery
p869F-G)"
At paragraph 74 they refer to R v Governor of Belmarsh Prison, Ex p Gilligan [2001] 1 AC 84 in which the House rejected the contention that the juristic elements of the offences had to be the same. Certainly these were relevant but so too was the accused's conduct. A broad approach was required, the court looking only for some similarity or analogy in the comparison and ensuring that the criminal conduct was of the required degree of seriousness (Lord Steyn at 94A-95G and Lord Clyde at 99F-100B).
At paragraph 78 concluding their review of the legislative background of the 2003 Act the Committee state "The 2003 Act, it must be noted, adopts the same formula with regard to double criminality in Part 1 as in Part 2 (save only that in Part 1 the requirement is assumed rather than required to be satisfied in the case of European framework list offences). For non-listed offences, sections 64(1)(a) and 64(3) are in materially identical terms to sections 137(1)(a) and 137(2). Against the legislative background to the Act, it would be surprising if the district judge, in deciding whether the conduct constitutes an extradition offence, has to consider in detail the elements of the foreign offence for which extradition is sought, and, indeed, such authorities as bear upon the question suggest that he does not."
At para 86 the Committee refer to dicta of La Forest J, sitting in the Supreme Court of Canada, noted in United States of America v McVey [1992] 3 SCR 475, 513: "Consistent with the general principle that extradition laws should be liberally construed so as to achieve the purposes of the Treaty, a much less technical approach to extradition warrants and to common law warrants has been adopted .." and to Lord Steyn in In re Ismail [1999] 1 AC 320, 326-327, "a broad and generous construction" should be given to extradition statutes "intended to serve the purpose of bringing to justice those accused of serious crimes. There is a transnational interest in the achievement of this aim."
[37] At paragraph 87 the Committee considered that the language of section 137 was consistent with either the offence or the conduct test, the latter being considered a wider test than the former. At parargraph 91 the Committee said it "has reached the conclusion that the wider construction should prevail. In short, the conduct test should be applied consistently throughout the 2003 Act, the conduct relevant under Part 2 of the Act being that described in the documents constituting the request (the equivalent of the arrest warrant under Part 1), ignoring in both cases mere narrative background but taking account of such allegations as are relevant to the description of the corresponding United Kingdom offence."
[38] Having arrived at this conclusion the Committee went on to consider the construction and application of section 137(2)(b) in paragraphs 92 to 101.
At paragraphs 94 and 95 they state
"94.An exercise in transposition has been an essential part of the law since the enactment of section 10 of the Extradition Act 1870..... It is the means by which Parliament gives effect to a policy that, before there can be extradition, there should have been criminality according to both the law of the requesting state and English law. As Mr Perry emphasised, the proper interpretation of the current provision in section 137(2)(b) of the 2003 Act is essential to the smooth functioning of the system of extradition under Part 2.
95.The most recent and authoritative guidance on the way that section 10 of the 1870 Act was to be applied is to be found in the opinion of Lord Millett in R (Al Fawwaz) v Governor of Brixton Prison [2002] 1 AC 556. The United States sought the extradition of Al Fawwaz on charges of conspiring to murder American citizens, officials, diplomats and others, both in the United States and elsewhere. He had never been in the United States. Lord Millett said at 596, paragraphs 109-110:
"Given that the court is concerned with an extradition case, the crime will not have been committed in England but (normally) in the requesting state. So the test is applied by substituting England for the requesting state wherever the name of the requesting state appears in the indictment. But no more should be changed than is necessary to give effect to the fact that the court is dealing with an extradition case and not a domestic one. The word 'mutandis' is an essential element in the concept; the court should not hypothesise more than necessary.
110.The one point to which I would draw attention is that it is not sufficient to substitute England for the territory of the requesting state wherever that is mentioned in the indictment. It is necessary to effect an appropriate substitution for every circumstance connected with the requesting state on which the jurisdiction is founded. In the present case the applicants are accused, not merely of conspiring to murder persons abroad (who happen to be Americans), but of conspiring to murder persons unknown because they were Americans. In political terms, what is alleged is a conspiracy entered into abroad to wage war on the United States by killing its citizens, including its diplomats and other internationally protected persons, at home and abroad. Translating this into legal terms and transposing it for the purpose of seeing whether such conduct would constitute a crime 'in England or within English jurisdiction', the charges must be considered as if they alleged a conspiracy entered into abroad to kill British subjects, including internationally protected persons, at home or abroad."
Changing all those elements which required to be changed, Lord Millett translated the American charge of conspiracy abroad to kill United States citizens, including internationally protected persons, at home or abroad, into a charge of conspiracy abroad to kill British citizens, including internationally protected persons, at home or abroad."
[39] Reference was then made by the Committee in paragraphs 96 and 97 to the decision of Duff J in the Canadian case, Re Collins (No 3) (1905) 10 CCC 80 in which Duff J said in relation to that case involving a request made to Canada that the approach to be applied was to conceive the accused, and the acts of the accused, transported to Canada, saying at pp 100-101:
"...........- you are to fasten your attention not upon the adventitious circumstances connected with the conduct of the accused, but upon the essence of his acts, in their bearing upon the charge in question. And if you find that his acts so regarded furnish the component elements of the imputed offence according to the law of this country, then that requirement of the treaty is complied with."
Whilst it was acknowledged by the Committee that Duff J was discussing a Canadian statute, at paragraph 99 the Committee state "we consider that, for the reasons which Duff J gave in Re Collins, section 137(2)(b) of the 2003 Act must be interpreted and applied in the way that he indicated." They then proceeded to consider the essence of the alleged acts in the Norris case and translated obstruction of a criminal investigation being carried out by the Pennsylvania grand jury into obstruction of a criminal investigation by the appropriate investigatory body in England.
[40] At paragraph 107 the Committee state "The system of extradition under Part 2 of the 2003 Act does not require the requesting state to provide details of the evidence (witnesses, documents etc) on which the prosecution would rely at trial. Nor does the district judge have any occasion to inquire into it."
[41] Applying all of the above I consider that in arriving at a decision on whether what is alleged against the respondents is an extradition offence I must look at the conduct of the respondents. The conduct which is relevant under part 2 of the Act is that described in the documents constituting the request, ignoring mere narrative background but taking account of such allegations as are relevant to the description of the corresponding United Kingdom offence. I am precluded in this context from considering anything which the respondents may have said in their testimony in relation to the allegations in the request. Further, in my view, the strict interpretation which I was invited by the respondents to apply to the 2003 Act cannot be supported in terms of the cases discussed.
[42] The documents which constitute the request are the request contained in diplomatic note 078 dated 3 November 2006 and the documents referred to on page 5 of that note as being duly certified and authenticated and submitted therewith in support of the request for the respondents' extradition. These supportive documents consist of the affidavits of Mary Beth Pfister dated 30th October and 1 November 2006 and the List of Exhibits A to E appended to the affidavit of 30 October. Exhibit A is a copy of the Indictment of the respondents by the Grand Jury of Arizona.
[43] It is clear from the terms of the request documents that the conduct complained of has had its effect in the United States. Following the dicta of Lord Hope in Armas the applicable section relative to interpretation of section 78(4)(b) is section 137(2). Section 137(3) does not apply in this case.
[44] The request on page 1 states that the respondents are wanted to stand trial on narcotic charges. The specific charges are then set out in pages 1 to 3 as counts 1 to 82. Each of the offences is described as being punishable under United States law by more than one year of imprisonment. A synopsis of the facts relied upon is set out at pages 3 to 4.
[45] The Indictment sets out at paragraph 6 that at all times relevant to the Indictment the internet business that the respondents ran under the names Hyder Business Services Limited, Raw Chemicals International and Lab Chemical Supplies operated a website known as www.KNO3.com thereafter referred to as "KNO3". Paragraphs 7 to 11 state that red phosphorus and iodine are chemicals which are classified and regulated under federal law as a List I and a List II chemical respectively; that red phosphorus and iodine are chemicals used in the manufacture of methamphetamine which is classified under federal law as a Schedule II controlled substance; that individuals who distribute a List I chemical must inter alia annually obtain a registration issued by the United States Attorney General; and that individuals who import a List I chemical must register in accordance with statute.
Paragraph 12 of the Indictment accuses the respondents of knowingly and intentionally conspiring along with others known and unknown to the Grand Jury to commit offences against the United States which included
Paragraph 13 sets out the alleged object of the conspiracy as being for the respondents to make money from the unlawful distribution of chemicals.
[46] Paragraph 14 sets out the alleged manner and means of the conspiracy. It describes the respondents as furthering the object of the conspiracy through using their KNO3 website to solicit customers around the world including the United States who were seeking to purchase chemicals. Among the chemicals sold were red phosphorus and iodine. The respondents are said to have known that these chemicals could be used to manufacture methamphetamine. Paragraph 14 goes on to describe discreet delivery being offered on their website and examples of customers' requests for discreet packaging being fulfilled by the respondents. Misleading labels were said to be applied to the chemicals by the respondents when sending our orders. Frequently orders for the two chemicals were requested in the one order. E.mails were said to have been sent to the respondents alerting them to the fact that their chemicals were being used to manufacture methamphetamine. An e.mail warned that it was VERY illegal to sell red phosphorus to the United States without a license. Advice was said to have been given by e.mail to KNO3 in August 2005 by law enforcement in California advising that its iodine crystals were being used to manufacture methamphetamine in the United States. Examples were given of United States law enforcement officers following up KNO3 orders to their destination in the United States and finding methamphetamine labs with the chemicals sent by KNO3 in packages with false descriptions of their contents. A saved website which gives a recipe for manufacturing methamphetamine from red phosphorus and iodine was found on a KNO3 computer.
[47] The alleged facts in paragraph 14 are relied upon in relation to the other counts in the Indictment.
Counts 2-17 charge the respondents with knowingly and intentionally distributing a listed chemical, specifically red phosphorous, knowing and having reasonable cause to believe it will be used to manufacture a controlled substance. These counts are detailed at pages 10 to 12 of the Indictement.
Counts 18-33 charge the respondents with knowingly and intentionally distributing and importing a listed chemical, specifically red phosphorous, which may be used to manufacture a controlled substance, knowing and having reasonable cause to believe it would be used to manufacture a controlled substance. These counts are detailed at pages 12 to 13 of the Indictment.
Counts 34-49 charge the respondents with knowingly and intentionally distributing a listed chemical, specifically red phosphorous, without the required registration. These counts are detailed at pages 13 to 14 of the Indictment.
Counts 50-65 charge the respondents with knowingly and intentionally using a communication facility, the internet and the U.S.Mail, in committing causing and facilitating an act constituting a felony distributing a listed chemical, specifically unlawfully distributing red phosphorous. These counts are detailed at pages 15 to 16 of the Indictment.
Counts 66-81 charge the respondents with knowingly and intentionally importing into the United States a listed chemical, specifically red phosphorous, without the required statutory registration. These counts are detailed at pages 16 to 17 of the Indictment.
Count 82 charges the respondents of conspiring with each other and others to knowingly and intentionally importing into the United States a listed chemical, specifically red phosphorous, without a further required registration. These counts are detailed at page 18 of the Indictment.
[48] Applying a broad approach when looking at the conduct described in the Indictment in Count 1 its essence is that the respondents are charged, by reason of the orders which they solicited and fulfilled for their many customers, with being involved in a conspiracy in the United States to import chemicals into the United States for the purpose of and in the knowledge that it was for the purpose of manufacturing a controlled substance, methamphetamine. The imparted knowledge can, in my opinion, be reasonably inferred from the information provided in the Indictment in paragraph 14. The supply of iodine is not in itself charged as an offence. It must be regarded as part of the alleged conspiracy given the alleged knowledge of the respondents of the use to which it would be put in manufacturing methamphetamine.
[49] Performing the translation and transposition exercise discussed by the House of Lords Appellate Committee in Norris supra for the purpose of seeing whether such conduct would constitute and have the component parts of a crime in Scotland that conduct would be that the respondents were involved in a conspiracy in Scotland to import chemicals into Scotland for the purpose of and in the knowledge that it was for the purpose of manufacturing a controlled substance, methamphetamine. To be concerned in the manufacturing or production of a controlled drug constitutes a crime by the law of Scotland in terms of section 4(2)(b) of the Misuse of Drugs Act 1971 and knowingly being part of an agreement with others i.e. a conspiracy to supply chemical constituents of such a controlled drug for the purpose of its manufacture is also a crime by our law. It could attract a sentence of imprisonment of 12 months or more. Accordingly I consider that Count 1 is an extradition offence.
[50] Continuing the transposition exercise with counts 2-17 and 18-33 in the indictment the essence of these charges is that the respondents knowingly distributed and imported chemicals into the United States knowing or having reasonable cause to believe that it will be used to manufacture a controlled drug in the United States. Transposing that, the charges would be that the respondents knowingly distributed and imported chemicals into the Scotland knowing or having reasonable cause to believe that it will be used to manufacture a controlled drug in the Scotland. As I have already said, the imparted knowledge can be reasonably inferred from the information provided in the indictment. The transposed charge would, in my opinion, be a contravention of section 4(2)(b) of the Misuse of Drugs Act 1971 and accordingly Counts 2 to 33 of the indictment are extradition offences.
[51] I do not agree with the Lord Advocate's submission that Counts 1 to 33 can be regarded as equivalent to a contravention of section 20 of the Misuse of Drugs Act. Performing the transposition exercise in reverse such a contravention would require the charge in the United States to be one of assisting in or inducing the commission in any place outside the United States of an offence punishable under the provisions of a corresponding law in force in that place (outside the United States). That is not what is charged in the Indictment. All the Counts charge offences said to be occurring within, not outside, the United States.
I also do not agree with his submission that the importation of or conspiring to import red phosphorus and iodine into the United States is, of itself, an extradition offence as it does not appear to me to accord with what was decided by the Appeal Committee in Norris. It is not an offence, of itself, to import these chemicals into the United Kingdom and thus there would not be a conspiracy with a criminal purpose.
[52] As regards whether section 293 of the Criminal Procedure (Scotland) Act 1995 could be brought into the equation I note that the words "aiding and abetting" do not appear in the Counts as narrated in the Indictment but they do appear in Ms Pfister's affidavit at pages 6and 7 in her narrative under the heading of "the charges and pertinent United States law". The same legislation is referred to in both documents in relation to each of the Counts. If the charges do include "aiding and abetting" in violation of the United States legislation it seems to me that section 293 could be regarded as the transposed offence in Scots law which could attract a sentence of imprisonment of 12 months or more if connected with the charges as transposed from Counts 1 to 33 of the Indictment.
[53] With regards to Counts 34 to 81 it was conceded by the Lord Advocate that they did not of themselves constitute a corresponding crime in our law and were not of themselves extradition offences. The conduct in those charges was however submitted to be part of the conspiracy in Count 1 and under that umbrella were also extradition offences. I understood that position was not disputed by the respondents if a conspiracy did exist, which they denied. As already stated, I am of the view that the conduct described in Count 1 is consistent with the crime of conspiracy in our law and that Counts 34 to 81 could be said to form part of the respondents' actings in that conspiracy. If these offences are not of themselves offences in our law it does not seem to me that section 293 could be relevant to these charges.
[54]Considering the respondents individually in my view the information in the request and the Indictment implicates each of them equally in relation to all the Counts in the Indictment.
I decide the question in section 78(4) in the affirmative and in terms of section 78(7) proceed under section 79.
Section 79 Bars to Extradition and Section 84
[45] The Lord Advocate's contention that there are no bars to extradition in respect of either respondent being accepted on behalf of each of them, I answer the questions posed in section 79(1) in the negative and in terms of Section 79(4) proceed under Section 84. As submitted on behalf of the Lord Advocate and accepted on behalf of each respondent Section 84(7) as read with the Extradition Act 2003 (Designation of Part 2 Territories) Order 2003 paragraph 3 disapplies the questions to be answered by the Judge in terms of Section 84(1). Accepting that that is the case section 84(7)(a) applies and in terms of section 84(7)(b) I must proceed under Section 87.
Section 87 (1) Would the respondents' extradition be compatible with their ECHR rights?
[57] It is accepted by the Lord Advocate that the respondents' rights in terms of article 8 of the European Convention of Human Rights are engaged in this case and that is clearly the case.
In this connection evidence was led from and for the respondent, Mr Howes; his accountant Dennis Fitzimmons; Thomas Allan, an employee of the Health and Safety Executive; Ailsa Johnson, an employee of the Department of Environmental Services of Falkirk District Council; and Colin Anderson, a partner of Mr Howes in a business called Lab Chemical Supplies. Evidence was led from and for the respondent Miss Shanks; Margaret Wheldon, a social worker with the Child and Families team in Bo'ness; Mrs Linda Pringle, mother of Miss Shanks; Lorna Taylor, a friend of the respondents; Karen Williams, a friend of the respondents; Dr Matthias Schwannauer, Consultant Clinical Psychologist; and William Russell Paterson, Resource Team Manager, Grangemouth Social Services.
[58] I found the following facts admitted or proved:-
Submissions for the respondent, Mr Howes
[59] For the respondent Mr Howes, Mrs Hughes accepted that the court's determination and the balancing exercise which requires to be carried out in this regard is not as evenly balanced as she would have liked. She accepted that interference with an article 8 right in this context in terms of case law has to amount to a flagrant denial or gross violation under reference to the cases of La Torre v HMA [2006] HCJAC 71 which made that plain. She accepted on behalf of Mr Howes that the article 8 right to family life is not evenly balanced in respect of international obligations to honour international treaties so that effectively it is a high test. She submitted that Mr Howes' case met that test.
Mrs Hughes accepted that any extradition request or any prison sentence is necessarily an interference with a person's article 8 rights. The test of whether that interference is legitimate is that it must be proportionate and designed to achieve a lawful end.
In this case it was submitted that the loss of both parents which the respondents' children would suffer makes it in the first instance an exceptional case. The article 8 rights had to be looked at from two perspectives - firstly from the parents' perspective and secondly from the childrens' perspective.
The children were said to fall into 2 categories, the older and the younger children. In her submission the evidence of Dr Schwannauer in relation to the younger children was that any period of separation from their parents is likely to interfere in a substantial way with their ties of loyalty, love and affection and their recognition of the respondents as their parents. She submitted that quite apart from the difficulties which the local authority would have in placing 4 children it was clear from the evidence of Dr Schwannauer that the placing of the younger children in new families would mitigate against continuing the parental relationship between these two younger children and the respondents. Further his evidence was that contact in that scenario for these two children with the respondents would be inimical to those two younger children bonding in any alternative family placement. In her submission that was effectively a denial to the two younger children of their article 8 right and ability to implement a family life with their parents.
In relation to the two older children, Dr Schwannauer appeared to take into consideration the disturbed picture of their behaviour when they were separated from their parents on remand and he had made it clear that the same level of distress and upset would be felt by these two older children with further separation. In her submission the evidence of the local authority social workers taken at its highest in relation to maintaining contact between the children and their parents amounted to a well meaning statement of intention. The practicalities of maintaining contact links over such a distance would take this case into being an exceptional case. The rights which these children would have domestically in terms of the Children (Scotland) Act 1995 Act relation to direction and guidance etc from their parents would clearly be substantially impaired.
Taking a harsh view of Dr Schwannauer's evidence she submitted that if the two younger children found a placement in another family they would be more likely to succeed in that placement than the older two and their family life with respondents would be severed. The link between the older children and the respondents is likely to remain but become impaired. In her submission the impairment of the childrens' article 8 rights meets the test and would be sufficient for the court to refuse extradition.
Mrs Hughes submitted that the respondents would be denied exercising an article 8 right in relation to the younger children and would be unable to resurrect that article 8 right if they were returned to Scotland. In relation to arrangements for transfer of prisoners she made reference to the case of R(Bermingham and Others) v Director of Serious Fraud Office [2007] 2WLR 635. Considering the facts in that case it would appear that nine months is likely to be a practical period of time before prisoners could be returned once serving a sentence in the United States and the sentence itself would only commence after conviction or plea. In her submission Dr Schwannauer envisaged a very short period of time before the two younger children lost their ties to the respondents. In relation to the older children their ties with the respondents would be impaired, rather than lost, and again she suggested that the appropriate model would be the responsibility and duties owed by parents to their children under the Children (Scotland) Act 1995.
In relation to the issue of proportionality it was submitted that it would be competent for the Lord Advocate to prosecute the respondents here for the alleged offences and she adopted what she was aware Miss Farquharson would be submitting in that regard. In her submission it would be a disproportionate interference in the family life of the respondents and their children to extradite the respondents.
Submissions for the respondent, Miss Shanks
[60] For Miss Shanks, Miss Farquharson indicated that she accepted that article 8 was a qualified right; that a balance had to be struck between public and private rights; and that Miss Shanks bore the burden of proof in relation to the test which is to be applied which was a test of a very high standard. In her submission the facts in Miss Shanks' case were so exceptional as to tip the balance in favour of an interference with the legitimate aim of extradition.
She referred to the case of Bermingham in which there was a review of the case law on this topic. In her submission each case is subjective and each case has to be looked at on its own facts. This case was exceptional because there are four children of the family at different stages of their formative development. Miss Shanks is their biological mother and she submitted that there was ample evidence of a close bond between Miss Shanks and her children and that Miss Shanks has excellent mothering abilities. The children will be separated from both their parents in the event that the request is upheld. There was unchallenged evidence led that neither family members nor close friends are in a position to care for these children in the event of their parents' extradition. That being so it was likely that the children would be taken into local authority care and the witnesses from the social services conceded that it was highly unlikely that the children could be accommodated together. Therefore the children would have to face separation not only from their parents but from each other. Further, any contact with their parents in the United States is unlikely to be frequent. She submitted that in any Article 8 argument there can only be speculation as to what in fact will happen but I could draw on the impact of the previous separation of Miss Shanks from her children. It was important to acknowledge that that separation was very different from what would occur after extradition. During remand Miss Shanks had regular contact with her children. They were all accommodated together with a trusted family member. Even with that security and continuity the effect of separation was profound. The concept of time was a determinative factor in this case. The time over which the children might be separated from their mother could only be guessed at. It may be months and months before the case in the United States would be resolved. She referred to the time scales involving the accused in the Bermingham case.
Under reference to the evidence of Dr Schwannauer the two younger children would be most affected. Separation from their mother for more than a few weeks is likely to sever their birth link with her. She accepted that it is likely that the younger children will be able to adapt to a change of circumstances but in her submission that misses the point. That would only deal with the short term effect of separation but not the longer term consequences. In relation to the youngest child, LH, aged 2, who was not in fact assessed by Dr Schwannauer because of her young age, the evidence of Dr Schwannauer was that any separation of a few days for a child of that age is likely to be significant. The older children would take longer to come to terms with separation because any new care setting does not displace the older child's memory of her mother and they will grieve for her loss. Separation for the youngest children must disrupt their memories of their mother. As a consequence it would disrupt their family life and also disrupt Miss Shanks' family life and her right to have her children recognise her as their mother. In her submission Dr Schwannauer's evidence was that separation in relation to the younger children may as well be forever as it is so detrimental to their birth ties. That could not be other than a gross and flagrant violation of the respondent's Article 8 right.
If it were suggested that the maternal bond could be preserved by direct contact of the children with their mother it could only be meaningful for the younger children if it were regular. If it were not regular, according to Dr Schwannauer, it would be destabilising for them in their new placement. Lengthy contact in school holidays would be too disruptive for them. It was clear from Dr Schwannauer's evidence that the younger children's attachment to their new carers would be a more important consideration than remaining in contact with their parents. The consequence of that is that to foster LH's bonding with any new carers would be likely to be at the expense of contact with their mother and in her submission that would be a complete suspension of the respondent's Article 8 rights. There would need to be good and meaningful contact between the children and their parents for their Article 8 rights not to be suspended. She submitted that from the evidence of Mr Paterson from the Social Work Department only intermittent contact could be envisaged albeit that he said that contact would be fostered by his department.
In her submission extradition would impact on all the parties' rights to a family life, ie, those of the respondent in relation to her children; those of the children in relation to their mother; and those of the children with each other. Any return arrangements were bound to be months down the line and would be too late. Dr Schwannauer had said that once the respondents were returned matters could improve but if the period of separation had been a long one there would be adjustment difficulties. If after a lengthy period Miss Shanks returned to Scotland and wanted to see her children it might not, by that stage, be seen as a beneficial thing for them to have that contact.
Reference was made to evidence that the oldest child, DH, demonstrated disturbed behaviour during the separation while Miss Shanks was on remand and Dr Schwannauer had expressed concern regarding her saying that she would need psychological support while separated from her mother. This, it was submitted, interferes with DH's Article 8 rights. Regarding DH alone she submitted that her situation could perhaps be managed but I would have to look at all the circumstances of all the children. In her submission that tipped the balance in favour of the respondent. Dr Schwannauer had listed risk factors affecting all the children in his reports relating to the three older girls.
It was submitted that Miss Shanks' mother, Mrs Pringle, was an honest witness who said that she was not able to care for the four girls. She was not in good mental or medical health. Similarly the friends of Miss Shanks were not able to care for the children. The evidence leads to the conclusion that the children will have to go into care and they will be separated. Whilst stability for these children is necessary they would be in a temporary situation until the ultimate outcome of the extradition process. In her submission this would amount to a complete fragmentation of the family unit.
Referring to the case of E M( Lebanon)v Secretary of State for the Home Department [2006] EWCA1513 she submitted it could be distinguished. The determinative factor in that case was that the child concerned was to live with her mother who was to be extradited until she was seven and therefore would be able to recognise her as her mother figure. In this case separation for a few weeks in relation to the younger children would sever the link between them and the respondent, Miss Shanks. The disturbance which would be felt by the older children would impair that link. It is recognised that the Article 8 right protects the right to identity and personal development. A significant part of Miss Shanks' identity is as mother of her children. It was submitted that her medical history must give concern as to the preservation of her mental stability in being separated from her children. Reference was made in that regard to the case of R(Razgar) -v- The Secretary of State for the Home Department [2004] 3 WLR 58 as per Lord Bingham or Cornhill at paragraph 8.
Finally it was submitted that the Lord Advocate did not properly consider the impact on family life in relation to the request and could bring a prosecution for these alleged offences here. It was submitted that I was entitled to take that into account in considering whether the extradition is proportionate.
Submissions on behalf of the Lord Advocate
[50] It was submitted on behalf of the Lord Advocate that it is for the respondents to establish that he or she comes within the exceptional engagement of article 8 and to establish that there is a prima facie breach of article 8 by the act of ordering extradition and that to order extradition would be disproportionate to the legitimate aim sought to be achieved by their removal. (R ex parte Ullah v Special Adjudicator [2004] 2AC 323 at paragraph 72 per Lord Carswell).
It was submitted that article 8 does not provide an absolute right and that it may be qualified and be derogated from subject to meeting the terms of the article. Paragraph 2 of article 8 provides that any interference with respect for private or family life must be in accordance with the law, have a legitimate aim and be necessary in a democratic society. These concepts were developed in De Freitas v Permanent Secretary of Ministry for Agriculture, Fisheries, Lands and Housing [1999] 1AC 69 at page 80 to the effect that a balance requires to be struck in considering article 8 between the public and private rights. In R (Razgar) v Secretary of State for the Home Department [2004] 2AC 368 it was stated that the fugitive must have established that his surrender to a foreign state would lead to an exceptionally strong case such that the actual or threatened treatment would amount to a flagrant denial or gross violation of the article 8 right to family life before the Court could find a return would be disproportionate to the legitimate aims sought to be achieved.
It was submitted that separation from family is an actual consequence of extradition if extradition is ordered and that the issue to be determined is whether the impact of separation from family is sufficient to enable the Court to find that the extradition would be disproportionate and not in accordance with law and necessary in a democratic society. It was acknowledged that the removal of both parents to a foreign jurisdiction from their children will have an impact on both the children and their parents. I was referred to the reports of Dr Schwannauer which had been produced on behalf of Miss Shanks in which it was noted in the conclusions of the reports that the children BH and EH were assessed at low risk of developing significant emotional and behavioural difficulties and that BH had shown resilience and ability to adjust to stressful circumstances and changes in circumstances. Dr Schwannauer indicated that the younger children were likely to adapt better to the change in circumstance. He acknowledged that similar circumstances could exist in other events such as death and divorce or incarceration. For the Lord Advocate it was submitted that it is for the respondents to establish that there would be a complete suspension of their parental rights and consequently a complete suspension of the rights of the children to enjoy the care their parents (and in the case of Mr Howes and the two older children, their stepfather).
He referred to in E M (Lebanon) v Secretary of State for the Home Department [2006] EWCA1513 and submitted that the law is neatly condensed in that case from paragraph 12 onwards where there is reference to the cases of Devaseelan v Secretary of State for the Home Department [2003]IMM A.R.1, Ullah and Razgar . Reference was made at paragraph 17 to paragraph 111 of Devaseelan:-
"The reason why flagrant denial or gross violation is to be taken into account is that it is only in such a case - where the right will be completely denied or nullified in the destination country - that it can be said that removal will breach the treaty obligations of the signatory state however those obligations might be interpreted or whatever might be said by or on behalf of the destination state." Guidance in relation to the adjective "flagrant" at paragraph 18 was referred to as applying the criterion that the right in question would be completely denied or nullified in the destination country. Only then can the Court find that the Article 8 breach is disproportionate.
In was submitted in relation to Article 8 that the starting point is the obligation to meet an international obligation. In this case it is to facilitate the prosecution of two individuals who are alleged to be involved in criminal conduct which has its greatest impact in the United States. On that basis the Lord Advocate invited me to find that the purpose of Article 8 is met because extradition is in accordance with the law. Its legitimate aim is the investigation and prosecution of serious crime and it is in the interests of law and order and as such is necessary in a democratic society.
The Article 8 right was said not to be an absolute right but is engaged in this case on the bases of the separation from family and the consequences for the Article 8 rights of the parents jointly and severally and on the children. The matter could be looked at as a package or separately in relation to one parent or another. Over that right is overlaid the international obligation to prosecute two people in a jurisdiction where their crime is most keenly felt. If the Court were to take the view, although it was suggested that the Court should not, that the position of Miss Shanks as mother of the four children has more weight than that of Mr Howes as the father of two of the children and in loco parentis for the other two who have not been formally adopted by him, I was invited to see the requests as a package seeking the extradition of both respondents the Court was invited to find that as far as Miss Shanks is concerned as the mother of the children she does not meet the high test as per the case of E M at paragraph 17. Her rights would not be completely nullified by granting the request. There would be rights of contact and a strong policy consideration to return her to serve her sentence and to that extent any period of separation would be reduced. The Court was invited to see that in a practical way and not in a theoretical way when considering the consequences. In the case of E M, paragraph 35 et seq there was a discussion in relation to an Article 8 right being completely nullified. In this case the contact arrangements may not be seen as ideal but they can be maintained.
Reference was made to the case of Colda -v- Government of Romania [2006] EWHC 1150. In that case if the appellant were convicted it would lead to loss of her parental rights in Romania. Nevertheless the Court ordered her extradition. At paragraphs 18 and 19 there is reference to there being no evidence of complete suspension of rights to contact. There was no nullification of the Article 8 right and at paragraph 23 it was stated that this argument could be argued in any case of imprisoning a young mother. It was held that surrender to Romania was not disproportionate. With reference to the case of Hosseini the extradition of Mr Hosseini was sought by France and his extradition was ordered notwithstanding the Court being aware of the fact that not only were his Article 8 rights interfered with by loss of his wife and child but that through him his daughter and wife would have their rights interfered with too.
On behalf of the Lord Advocate it was clearly accepted as seen in the authorities that the right to family life is the most protected right given the fact that violation of that right has consequences not only for the respondents but for their children. The United States authorities are committed to encouraging family visits in appropriate circumstances and allowing visits beyond the confine and security of the prison and to allow family groups to visit where those members have travelled a long distance. I was referred to the declaration of Matthew J Carney (Crown Production 18) and the declaration of Charles W Brookes (Crown Production 19) for their terms. If the respondents were convicted and sentenced to a period of imprisonment in the United States they would be able to make an application to serve their sentence in the United Kingdom and more specifically in Scotland. The United Kingdom and United States of America are signatories to the Council of Europe Convention on the Transfer of Sentence Persons dated 1983. This entered into force in the United Kingdom on 1 August 1985 and in the United States on 1 July 1985. In evaluating a request to serve a sentence of imprisonment in the home country, in this case Scotland, the United States authorities include consideration of the presence of close family members in the home country, the strength of those family ties, the strength of ties to the United States and the likelihood of family reunification. As both Mr Howes and Miss Shanks have strong family bonds and ties in Scotland and little or no ties to the United States, rehabilitation and family reunification would perhaps be better served by their being closer to family in the United Kingdom. There exists a mechanism of which they could avail themselves to have family visits as well as make application to serving sentence imposed under any conviction in the United States in the United Kingdom.
Therefore it was submitted that there are mechanisms in place which prevent the Article 8 right being completely denied and so breached to the extent that it falls into the category of being fundamentally nullified and denied.
On the domestic side, Mrs Pringle had accepted help from the social work department whilst the respondents were on remand but there was no further involvement after Miss Shanks was released from remand. The evidence of the social workers was that as a last resort the children would be fostered. As a consequence there would be no complete suspension of parental rights and therefore the respondents have failed to meet the high test that extradition interferes disproportionately with the Article 8 rights or the rights of their children. I was invited to find the respondents' evidence incredible and unreliable. Whilst I had been invited at one point by Mrs Hughes to disregard the existence of the Judgement of Lord Bryant in England and she invited me to take the view that his order was of no effect in Scotland it was submitted that this Court cannot ignore the fact that his decision and Judgement was made. I was invited to take the view that whilst the order was unenforceable in Scotland it is an order of the English Court which is in place there. It was submitted that the existence of that order reflects upon Miss Shanks as she may not in law have breached that order in coming to Scotland and allowing Mr Howes to remain in family with her and the children but, in practice, she had.
In relation to the issue of prosecution in Scotland, whilst there is guidance for handling criminal cases with concurrent jurisdiction between the United Kingdom and the United States which is to facilitate dialogue between prosecutors in these two jurisdictions. In his submission a suggestion that the Court could take into account the possibility of a prosecution by the Lord Advocate in Scotland was not relevant. The Lord Advocate submits that in the circumstance of this case that guidance has no practical effect. In relation to the facts which form the basis of allegations in the extradition requests there is no obligation upon the Lord Advocate to consider prosecution in Scotland and there has been no formal consideration of prosecution in Scotland. Mr Dickson referred to Wright -v- Scottish Minister2005S.C.453 at paragraph 63, It was submitted in that case that there could have been a prosecution in Scotland rather than the petitioner being extradited to Estonia. The Court rejected that argument in relation to proportionality and in relation to the Article 8 right to family life. Whilst the Court recognised that a theoretical possibility existed of prosecution in Scotland it regarded it as a slender matter. In this case there had been mutual legal assistance given to the United States authorities in England. There was a request for and assistance given to search the home address and business premises thereafter in this jurisdiction. That coincided with the arrest of the respondents under the Extradition Act on 30 January 2007. On that basis it was submitted that it was quite clear that the United States authorities had a long ongoing investigation where they had determined that extradition in furtherance of international obligations was appropriate. Therefore in this case the Lord Advocate has never been put in the position of being able to instigate domestic proceedings because the first occasion in which the Lord Advocate was aware of the proceedings in the United States was upon the receipt of the request. That brings in the question of obligation on the Lord Advocate to implement obligations in international treaties and reliance and acceptance of that decision was accepted in paragraph 64 of Wright. Reference was made to the Judgement of Baroness Hail which was adopted in that case. It was accepted that the premier consideration of the Lord Advocate was in relation to International obligation. With reference to the case of Calder at paragraph 17 it was recognised that a decision to stop the Scottish proceedings which had already commenced in that case upon receipt of the request was solely understandable. This was even when before the Appeal Court Mr Calder had said that he would not take any objection to proceedings being raised and he would not take issue regarding the time bar.
It was rejected that there was an error of law on the part of the Lord Advocate in failing to initiate proceedings against the respondents. It had not arisen and ought not to arise. It can only be recognised as a theoretical possibility. Practical considerations must be taken into account under reference to paragraph 17 of Wright. He emphasised this in relation to the case of Miss Shanks as there had been a suggestion by Miss Farquharson that there is the option for her to be prosecuted separately in Scotland even if Mr Howes were extradited. It was submitted that it is undesirable that there be prosecutions in two different jurisdictions and it is desirable in terms of international obligations for the prosecution to take place where the impact of the conduct is felt .
The court was invited to answer the question at 87(3) in the affirmative in relation to both respondents by finding that the extradition would be compatible with their article 8 rights and to send the case to the Scottish Minister for his decision whether the respondents are to be extradited.
Decision
[62] It has been accepted that the respondents' article 8 rights are engaged in this case. Article 8 does not provide an absolute right. It may be interfered with if such interference is in accordance with the law and is necessary in a democratic society in the interests of inter alia for the prevention of disorder or crime. The cases referred to in this connection all discuss the balance which requires to be struck in considering article 8 between public and private rights.
[63] In de Freitas at page 80 Lord Clyde delivered the opinion of the Privy Council that whether the interference of the rights of an individual can be reasonably justifiable in a democratic society depends upon whether the limitation of that right is arbitrary or excessive. In determining that question the court would ask itself whether (i) the legislative objective is sufficiently important to justify limiting the fundamental right; (ii) the measures designed to meet the legislative objective are rationally connected to it: and (iii) the means used to impair the right or freedom are no more that is necessary to accomplish the objective." It was not suggested in this case that the legislative objective in the Extradition Act 2003 of honouring international obligations with the objective of preventing crime by prosecution of two individuals who are alleged to be involved in very serious conduct was not in accordance with the law or sufficiently important to justify limiting an article 8 right; nor was it suggested that the extradition measures designed to meet that legislative objective were not rationally connected to it. In this case the purpose of Article 8 is met to the extent that extradition is in accordance with the law. Its legitimate aim is the investigation and prosecution of serious crime and it is in the interests of law and order and as such is necessary in a democratic society.
[64] Beyond that the issue is one of proportionality. Following the decisions in Razgar and Ullah, and Bermingham where a proposed extradition is properly constituted according to the domestic law of the sending state and the relevant bilateral treaty, and its execution is resisted on Article 8 grounds, a wholly exceptional case would have to be shown to justify a finding that the extradition would on the particular facts be disproportionate to its legitimate aim. The fugitive must have established that his surrender to a foreign state would lead to an exceptionally strong case such that the actual or threatened treatment would amount to a flagrant denial or gross violation of the article 8 right to family life before the Court could find a return would be disproportionate to the legitimate aims sought to be achieved.
[65] In EM reference was made at paragraph 17 to the opinion of Lord Bingham in Ullah. He referred with approval to the approach of the Immigration Appeal to paragraph 111 of Devaseelan:-
"The reason why flagrant denial or gross violation is to be taken into account is that it is only in such a case - where the right will be completely denied or nullified in the destination country - that it can be said that removal will breach the treaty obligations of the signatory state however those obligations might be interpreted or whatever might be said by or on behalf of the destination state." This was described as the Devaseelan formula.
Guidance in relation to the adjective "flagrant" was provided by Lord Carswell in Ullah at paragraph 19 where he referred to it as applying the criterion that the right in question would be completely denied or nullified in the destination country. Only then can the Court find that the Article 8 breach is disproportionate.
In the light of the above I have considered the evidence led and the submissions made in relation to section 87(1)
[66] In relation to the evidence led I did not regard either of the respondents as credible or reliable witnesses.
I was invited by Mrs Hughes to totally disregard the existence of the judgement of His Honour Judge Bryant in Middlesburgh High Court. I do not consider it appropriate to do so. It exists as a matter of fact and the respondents' evidence and their conduct in relation to it is, in my view, relevant to their credibility and reliability. Mr Howes accepted in his evidence accepted the narrative of events findings in fact 5,6 and 7. Though denying the veracity of the allegations made against him by his daughter, Jenna, Mr Howes accepted the fact that they had been made and that there was police involvement. In my view, he demonstrated conduct designed to frustrate the process of justice both in the United States and the United Kingdom. Miss Shanks' in her evidence admitted that she had accepted Judge Bryant's findings but that she did not believe the allegations of sexual abuse made by Jenna Millward against Mr Howes. She said that she had agreed with the findings of Judge Bryant because a paralegal had told her that if she did not the children would be taken away from her. I considered that evidence to be incredible in itself. If it were true it would demonstrate that she is prepared to lie to a Court. The assertion by each of the respondents that they were never made aware of the outcome of the proceedings in Middlesburgh or the terms of the injunction of Judge Bryant granted on 6 September 2004 is incredible. The respondents were individually a party to those proceedings and were in receipt of separate legal representation. It is inconceivable, in my opinion, that neither of them was made aware of the existence of the injunction. Mr Howes placed himself of the jurisdiction of the Arkansas police when he was about to face charges there by moving to Oklahoma and he placed himself beyond the jurisdiction of the injunction of Lord Bryant by moving to Scotland. His change of tune regarding "irrefutable" evidence that evidence had been illegally transmitted to the United States being in the possession of his lawyer there provides, in my view, another example of his credibility being in doubt. As I have said, no further mention has been made of this.
If I were required to consider the evidence of the respondents in response to such questions as were put to them in relation to the allegations in the charges in the request (in relation to which I have chosen to make no findings in fact for the reasons stated) I would have found that the evidence of each respondent was not credible in that regard. Further, it was in parts contradicted by Mr Crawford whom I did consider to be credible and reliable. The submissions made by the respondents that he did not come to this matter with "clean hands" appeared to me to be without foundation.
[67] Having heard the evidence, I have formed the view that since their release from remand the respondents have sought to construct a picture of themselves and their children as being totally united and alone without any care or support being available to the children if the extradition request is ultimately granted. I am not persuaded that that is the case. Miss Shanks' explanation of how contact between her mother and the children and herself came to cease after her release from remand was incredible. It amounted to her mother simply never returning to visit the children or herself after being told that she could not come and visit at a particular time on one of the children's birthdays. This did not accord with the evidence of Maragaret Wheldon that Mrs Pringle was upset with her lack of contact with the children which is consistent with a grandmother who had until then always had regular contact with the children and who had shouldered the difficult task of caring for all of them for around 9 months. It is, I believe, of significance that only after release from remand have the respondents chosen, having lived together for some years, to change the surnames of DH and BH.
[68] The bleak scenario of the four children of necessity being taken into care and housed separately without maintaining their relationship with one another and without being able to sustain their relationship with their parents to the extent that it will be extinguished or irreparably damaged is not made out. I would like to think that Mrs Pringle was an honest witness but I thought that it was curious that she did not offer any explanation as to why she had not been in contact with Miss Howes and the children since September. All she said was that they had lost touch. It is not surprising that she found the care of the four children difficult in all the circumstances. However, I believe that too much was made of her health difficulties by the respondents. She spoke of painful back problems in her evidence and having suffered from depression and anxiety problems from time to time. She has not been noted as mentioning these problems in connection with her care of the children to Dr Schwannaeur when she met with him in June 2007 nor is she noted by him at that time of being at the point of placing the children in care. It appears to be only after Dr Schwannauer raised the possibility (for whatever reason) of her not being in a position to provide longer term care for the children in his report of 25 June 2007 that this issue has come to the fore.
[69] Mr Howes said in his evidence that Mrs Pringle had telephoned him on remand to say that she could not cope and was putting the children into care. That was never put to Mrs Pringle. The respondents' neighbour, Lorna Taylor, spoke of receiving a telephone call saying that DH's gran could not cope and was putting her into care so that DH spent 5 weeks in her home over the summer holidays. That was not put to Mrs Pringle either. On her evidence the only occasions in which she received assistance with the 3 younger children were over two separate weeks in respect of each of them from other family members. I do not accept that she ever threatened to place the children into local authority care. She said that accommodation was one of the biggest problems as was borne out by Margaret Wheldon who at the time of her involvement thought that the children were happy in Mrs Pringle's care. That being said, I accept that Mrs Pringle was at times overwhelmed with the care of the children who were naturally upset by the removal of their parents. She said that she felt that she would not be able to cope with caring with all of them again if the respondents were extradited. She did not, however, say that she was not prepared to play any part in the children's care should that need arise. In her past conduct she has shown great care and support for them .
[70] If the respondents are extradited and if Mrs Pringle did not feel able to care for the children as she did before, the local authority may require to accommodate them. I accepted the evidence of Margaret Wheldon and Mr Paterson that in such a situation the local authority would look to find accommodation in the first instance within the children's wider family or close friends. Members of the wider family who had assisted Mrs Pringle were said by her to be no longer in a position to assist. I accepted the evidence of Lorna Taylor who had assisted with DH over the summer holidays that the situation in her own family would prevent her offering any further assistance. Another neighbour, Karen Williams, likewise gave evidence that she for her own family reasons would not be able to offer help. If there are no friends or family willing or able to take care of the children the local authority would require to place the children in foster care and I accepted the evidence of Mr Paterson that it may prove difficult to find a placement for all the children in one foster family. No permanent placement would be considered by the local authority until the final outcome of any proceedings in the United States were known. I accepted the evidence of both Maragaret Wheldon and Mr Paterson that however the children were to be placed everything possible would be done to foster their relationship with one another and with their parents.
[71] I accept that Miss Shanks and her children have a close bond with one another and that she is described as a good mother. I do not consider that there is anything exceptional in that. However, I consider that there must be a question whether that bond is as strong as her attachment to Mr Howes. In her evidence she said that she did not believe the allegations of sexual abuse which had been made against Mr Howes because they were part of a plot by Jenna's mother to blackmail Mr Howes. She said that Jenna had told her that the allegations were untrue. The claim that the allegations were part of a blackmail plot was made before Judge Bryant. At paragraph 27 of his judgement Judge Bryant considered that that could not conceivably apply to the allegation made in Arkansas as Mr Howes and Jenna's mother were living together at the time and continued to do so. He considered that there was no question of money being demanded from Mr Howes at that time as Jenna's mother was supporting Mr Howes with her earnings. It is not for this Court to consider the truth or otherwise of these allegations but it is remarkable, in my view, that Miss Shanks does not appear to have reflected, in the context of her concern for her own children, on how a 6 year old girl made very detailed disclosures to the police regarding acts of sexual abuse whose nature would not and should not ordinarily be within the knowledge of a 6 year old.
[72] It is more difficult to guage the extent of Mr Howe's commitment and the depth of his relationship with the children given his relationships with his other children. Accepting at face value that the children are seen by the witnesses to relate well with him and he with them, there is nothing exceptional in that in a parent/child relationship.
[73] The distress felt by Miss Shanks in connection with these proceedings is understandable and the medical reports obtained from Dr Morris by her representatives confirm that they are a source of her distress. That could not be considered exceptional. She has suffered from depression to an extent in the past but has not been diagnosed as ever suffering from mental illness until the eve of the continued diet of the Extradition hearing which has been set down for the 3 April. I shall refer to this in paragraph [79]. The assertion that she will be a suicide risk if extradited does not bring her within the exceptional category referred to above.
[74} The fact that the respondents are the parents of four children cannot, in my opinion, as a matter of principle or law bring the case within the exceptional range. It cannot be correct that parties who are alleged to have taken part in criminal conduct in another state and who have no children or a lesser number of children can be assessed as having lesser and non-exceptional interference of their rights in extradition than those said to have been involved in similar conduct who happen to have more children.
[75] The opinion of Dr Schwannauer in itself cannot provide a certain prognosis of what will occur in relation to each child in this case and he acknowledged that their situation would not in many ways be different from any child who is separated from a parent through their incarceration. He appears not to have been made aware of the terms of the judgement of Lord Bryant. The fact that the High Court in Middlesburgh which has heard evidence has considered it to have been proved that Mr Hughes has sexually abused his daughter and granted an injunction to keep him away from the children of Miss Shanks which has been ignored must be of some relevance to the considerations of a clinical psychologist assessing the relationships of the respondents and their children. In the case of Hosseini there was an opinion before the Court from a consultant clinical psychologist stating that Mr Hosseini was suffering from PTSD and that Mrs Hosseini was suffering from a major depressive disorder which was likely to deteriorate if her husband were extradited. It was said that this would bring with it a serious risk of self harm which would bring a further reduction in her ability or to provide one for her daughter. Thus there was a risk of the child in that case losing the care and guidance of both parents. Nevertheless applying Bermingham, Ullah and Razghar Lord Justice Richards considered that the case fell well short of an exceptional case in which extradition would be disproportionate at paragraph 53.
[76] I agree with Miss Farquharson that what in fact will happen to the children if the respondents are extradited remains uncertain until that eventuality were to occur and it is for that reason I have made no findings of fact in that regard. While Bermingham was referred to as an indicator of the time scales of likely separation even to reach the stage of trial it cannot be assumed that the same period will elapse in this case if the respondents are extradited. The issue of bail was not discussed but that is available in the United States. The respondents would be in a position to request bail there. It remains to be seen if Mrs Pringle would in fact not feel able to resume the care of the children or whether the local authority could provide sufficient assistance and support to assist her to do so. If in fact she were to decide that she could not take on the full- time care of the children it seems to me highly unlikely that Mrs Pringle would not participate in any efforts by the local authority to maintain the relationship amongst themselves and to foster the bonds of both the younger and the older children with their parents. I do not consider that these efforts should be regarded as totally impractical as was suggested by the respondents. Further, the mechanisms operated by the United States authorities to maintain and assist in the fostering of family bonds as referred to on behalf of the Lord Advocate would assist the respondents to maintain their bonds with the children and the children to maintain their bonds with them even if any such arrangements could not be regarded as ideal.
[77] Applying the Devaseelan formula it could not be said on the facts of this case that the article 8 rights of either of the respondents or of their children will be completely denied or nullified in the United States, the destination country relative to this extradition request.
[78] I accept the submissions on behalf of the Lord Advocate in relation to the suggestion that the Lord Advocate should have considered prosecution in this country. The impact of the alleged conduct of the respondents has been felt in the United States. Prior to the request an extensive investigation had been ongoing there and a prosecution was being prepared there. Given the extent of the charges it must be assumed that there will be large number of witnesses and productions there. The Lord Advocate has only become involved in this matter since the request. There is no investigation into the alleged offences being carried out here. To start one now and prepare and conduct a prosecution here of either or both of the respondents would be an unwarranted duplication of effort at vast public expense. It would be wholly undesirable to have two parallel prosecutions with one of the respondents being prosecuted in the United States and the other prosecuted in Scotland in relation to the same offences if such a proposal were being considered. In my view it cannot be said that the Lord Advocate has erred in this respect. It is proportionate that any prosecution of the extremely serious charges in the Indictment which the respondents are alleged to have committed should take place in the United States.
[79] The above paragraphs of this judgement having been under consideration for some weeks and the parties being aware that I proposed to deliver it at the adjourned diet of Extradition Hearing on 3 April, on the afternoon of 2 April at around 4.45pm. I received an urgent delivery letter addressed to myself at this Court from the agents acting for Miss Shanks. It contained a copy of an opinion dated 31 March of another Consultant Clinical Psychologist, Phillip Dutton, in which he diagnosed that Miss Shanks is suffering from Chronic Post Traumatic Stress Disorder and expressed an opinion that she is most unlikely to understand what is going on in court proceedings. I have been advised in a covering letter from the agents acting for Miss Shanks that in consultation with Mr Dutton that he has expressed the further opinion that this is highly likely to have been the position throughout the extradition hearing. I am also advised by the agents for Miss Shanks that they regard this as fresh evidence and they advise me that Mr Dutton is about to go on annual leave. From that I anticipate that a motion will be made to continue the extradition hearing to allow fresh evidence to be heard.
[80] This is not the first occasion on which the representatives of Miss Shanks have sought to introduce a further witness when the evidence from one of their witnesses was not all that they hoped it would be. After the evidence of Margaret Wheldon they sought to introduce Mr Paterson as a further witness. At this point I can only record my observation on the opinions expressed by Mr Dutton in his report and as relayed to me by the agents for Miss Shanks. The root cause of the Post Traumatic Stress Disorder appears to be the existence of these proceedings, the separation of Miss Shanks from her children whilst on remand and her potential separation from them at the conclusion of these proceedings. This possible outcome is described by him as "unjust" and seriously and irreversibly detrimental to both the mother and the child. As with Dr Morris he appears not to have been advised of the existence and terms of Judge Bryant's judgment but he appears to be well instructed on what Miss Shanks position' is in relation to no relatives being able to care for the children. It is of note, I think, that Miss Shanks has through her stress been able to articulate an explanation for the apparent ostracising of her mother. It seems strange that someone who places so much store upon the maternal bond would see her own mother as simply one more person she might have to say good-bye to. It appears to me that Mr Dutton has been instructed in anticipation of this request proceeding to the High Court and refers to the much greater pressure there - greater presumably that that experienced in this Court. The language used and the opinions expressed by Mr Dutton appear to me to be intemperate and he expresses in places opinions that are beyond his professional remit. Even if accepting his opinions pro veritate I still would come to the conclusion that Miss Shanks' case falls well short of an exceptional case in which extradition would be disproportionate in terms of Hosseini and the other cases to which reference has been made. It would seem to me to be a dangerous precedent if stress brought on by extradition proceedings could lead to such proceeding being frustrated and discharged. Dr Morris in the covering letter which was sent with Mr Dutton's report is dismissed as being only a trainee in forensic psychiatry. He is nevertheless extremely well qualified. He diagnosed Miss Shanks as being sane and fit to plead and to instruct her defence. I do not doubt that diagnosis. That is how Miss Howe has presented throughout the hearing. She clearly understood what she was being asked and responded appropriately. I am also advised that the respondents have married earlier this week so it must be assumed that Miss Shanks felt well enough to participate in the ceremony.
[81] I have arranged for this judgement not to be released until after I have been addressed on this latest development at the adjourned diet. If I am invited and persuaded to adjourn to hear new evidence it will not be released on 3 April. If I am not persuaded this judgement will have been released on 3 April.
[82] In my opinion, the respondents' extradition would be compatible with their Convention rights within the meaning of the Human Rights Act 1998. Therefore, having answered the question in section 87(1) in the affirmative, I am required to send the case of each respondent to the Scottish Ministers in terms of sections 87(3) and 141(1) for their decision whether either respondent is to be extradited.