Application to appeal decision to extradite man to face Oslo rape trial refused by High Court of Justiciary

About this case:

• Citation:
  [2024] HCJAC 46
• Judgment:
  External link
• Court:
  Appeal Court of the High Court of Justiciary
• Judge:
  Lord Doherty

Applicant RF, a Norwegian citizen, faced charges in an Oslo court libelling rape of his ex-wife, X, and abuse of their four children. He argued that extradition would breach his and his current spouse’s rights to family life under article 8 ECHR, and that his wife’s condition in particular would significantly deteriorate without him.

The appeal was heard by Lord Doherty, Lord Matthews, and Lady Wise. Loosemore, advocate, appeared for the applicant and C Edward KC for the Crown on behalf of Norway.

Uncertain and bleak

In 2020 X complained to the police in Oslo that the applicant had raped her repeatedly between 1992 and 2015; that he used physical violence towards her and abused her verbally and in other ways; and that he had been violent and abusive towards their four children.

On a visit to Oslo not long after the applicant was interviewed by the police about these allegations and instructed a Norwegian lawyer. Criminal proceedings were raised, and the applicant failed to attend a hearing at Oslo District Court assigned to take place on 21 November 2023. The applicant moved to Scotland in 2023 with his second wife Y and lived in a central belt town near the applicant’s new employment. An Interpol Red Notice was published by the Norwegian authorities on 29 November 2023.

The following month, the applicant left his job and said he was returning to Pakistan, although in fact he and Y moved to another nearby town. Police in Scotland discovered his new home, arrested him, and he appeared before the sheriff in Edinburgh on 31 January 2024. Evidence was given by Y and psychiatrist Dr Petrie, who said she was “scared” of the prospect of the applicant’s extradition. However, the sheriff decided that the interference with her article 8 rights did not outweigh the strong public interest in extraditing the applicant. The sheriff noted that, when he delivered his decision, Y immediately fell to the ground, apparently unconscious.

For the applicant it was submitted that since the sheriff’s decision Y’s mental health had deteriorated further, and the outlook for her future was “negative, uncertain and bleak”. Had this information been available to the sheriff, he would have decided a question before him at the extradition hearing differently. In response, the Crown submitted that the new evidence was not materially different to the evidence that had been before the sheriff.

No safe havens

Delivering the opinion of the court, Lord Doherty said of the sheriff’s approach to the hearing: “We are not surprised that the sheriff had some reservations about the evidence of the applicant and Y, and about aspects of Dr Petrie’s evidence. Be that as it may, he proceeded on the basis that he ought to accept the evidence of Y and Dr Petrie. Nevertheless, he determined that the interference with Y’s article 8 rights which would be caused by the applicant’s extradition was justified and proportionate.”

He continued: “The new evidence tendered deals with circumstances since the sheriff’s decision. We accept that it is evidence that was not available at the extradition hearing [per] (s 104(4)(b)). For that reason we allowed its late receipt. However, we are not persuaded that the new evidence adds materially to the evidence which the sheriff considered.”

Explaining why the new evidence was unlikely to change matters, Lord Doherty said: “While there had been some deterioration in Y’s condition since Dr Petrie’s earlier examination, his prognosis for Y in his supplementary report if the applicant was extradited was not materially different from his prognosis when he gave evidence. Before the sheriff and before this court the prognosis was that Y’s mental health was highly likely to deteriorate and that the outlook for her was negative, uncertain and bleak.”

He added: “People accused of crimes should be brought to trial. There should be no safe havens to which they can flee in the belief that they will not be sent back. The United Kingdom should honour its treaty obligations to other countries. That public interest always carries great weight, but here the nature and seriousness of the alleged crimes give it very great weight indeed.”

In postscript, Lord Doherty observed: “If the applicant were to be tried and convicted of similar offences in Scotland, the disposal would be a lengthy prison sentence, notwithstanding the resultant interference with Y’s article 8 rights. In light of that, in our view it would be contrary to international comity to refuse to extradite him on the grounds of interference with those rights.”

Leave to appeal was therefore refused.