Father-of-three fails in appeal against extradition despite wife’s successful human rights challenge

The man claimed that his extradition would breach his right to a family life under the European Convention on Human Rights (ECHR) – an argument the sheriff accepted in relation to the applicant’s wife, who was also wanted by Polish authorities – but the Appeal Court of the High Court of Justiciary upheld the sheriff’s decision.

‘Fugitive from justice’

The Lord Justice Clerk, Lady Dorrian, sitting with Lady Paton and Lord Turnbull, heard that the first EAW was a conviction warrant in respect of more than 200 offences of fraud arising from three separate cases and involving a total sum of about £11,000.

In each case the applicant had been given a suspended sentence with certain conditions, including probation, and the sheriff concluded that the applicant was a “fugitive from justice”.

The second EAW was an accusation warrant, in relation to nine offences of fraud involving a sum in the region of £18,000.

The applicant’s wife also appeared on an accusation warrant dealing with the same nine charges, and the sheriff heard both cases together.

Human rights breach

The only argument advanced in each case was that extradition would breach the article 8 ECHR rights of the individual involved, their spouse and their children.

It was submitted that the applicant he required to remain in Scotland to look after the two younger children of the marriage, his wife being unable to do so by reason of her state of health, and his son being unable or unwilling to do so because of the demands of his employment and the attitude of his fiancée towards his family.

The sheriff accepted this argument in relation to the applicant’s wife but rejected it in relation to the applicant.

The applicant sought leave to appeal and four arguments were advanced in support of the application.

The first was a process argument, asserting that the sheriff should have made specific, formal findings in fact, but the judges rejected that argument entirely.

“This is not an appeal by stated case where such an approach is appropriate,” Lady Dorrian said, adding: “The Scottish procedure in this type of appeal is that the nature of the case, the evidence, the conclusions from the evidence and the reasons therefor are submitted to the court in the form of a report from the first instance judge. The reasons will already have been given orally, or sometimes in writing, to the parties. There is no requirement for a formulaic approach such as counsel advocated.”

The remaining arguments were threefold: that the sheriff “failed to give reasons” for declining to extradite the wife, while at the same time ordering extradition of the applicant; that he had “not made it clear “whether he accepted that the applicant’s wife had a mental condition which currently prevented her from looking after the children; and that he had not given “attention” to the article 8 rights which the children of the family enjoyed with the applicant, in relation to continued contact and society.

‘No merit’ in the appeal

However, the court held that there was “no merit” in the arguments.

In a written statement of reasons, the Lord Justice Clerk said: “The sheriff recognised that in a case such as this he required to carry out a balancing exercise, with the interests of the two requested persons and their family on the one hand, and on the other the strong public interest in ensuring that extradition arrangements are honoured, and that the United Kingdom should not become a ‘safe haven’.

“In respect of the applicant, the only basis upon which extradition was resisted was that his wife was unable to look after the children, something which the sheriff was unable to accept. It was not suggested that there would be financial difficulties for the family were the applicant to be extradited; it was not suggested that their home would be at risk; and it was not suggested that there would be difficulties in maintaining contact with the applicant by letter, telephone or personal visits.

“On the other hand, there was a strong public interest in extradition in circumstances where the applicant faced serious charges, not only in an accusation warrant but in a conviction one, and where he was in respect of the latter a fugitive from justice. For all these reasons we are satisfied that there is no merit in the arguments upon which the applicant seeks leave, and the application must be refused.”