High Court refuses extradition appeal by three Virginians wanted for attempted child kidnapping

Lord Carloway

About this case:

• Citation:
  [2022] HCJAC 6
• Judgment:
  External link
• Court:
  Appeal Court of the High Court of Justiciary
• Judge:
  Lord Carloway

Warrants for the arrest of the appellants, Jennifer Amnott, Valerie Hayes, and Gary Reburn, were issued in January 2019. They argued that they could face a potential life sentence without parole following trial in the USA and therefore there was the potential for a breach of Article 3 of the ECHR.

The case was heard by the Lord Justice General, Lord Carloway, sitting with Lord Pentland and Lord Matthews. The Lord Advocate, Dorothy Bain QC, made submissions on behalf of the United States Government, with the appellants being represented by CM Mitchell QC, McCall QC, and McCluskey, advocate.

Conspiracy to kill witnesses

The three appellants met in 2015. At the time, Mrs Hayes and Mr Reburn were in a relationship. The first appellant wanted to start a family with her husband. She was told that the other appellants had three children that had been “captured” and were with two families in western Virginia, and that if she and her husband helped them recover their children, they could keep one of those families’ other children.

Following extensive surveillance of the properties, on 29 July 2018, the appellants and Mr Amnott broke into the house of the first family. They tied up the father in the basement, but the mother managed to escape and contact the police. Mr Amnott was arrested at the scene, but the appellants managed to evade capture and flee to Scotland.

Each of the appellants was charged with twelve offences including a charge of conspiracy to kill witnesses with intent to prevent communications to a federal law enforcement officer. This charge carried a minimum sentence of life imprisonment. It was held by the sheriff that the appellants’ evidence was insufficient to establish a breach of Article 3, and that a mandatory sentence on the conspiracy charge could not be said to be grossly disproportionate in the circumstances.

It was submitted for the appellants that the sheriff had erred in holding that a mandatory life sentence for a lesser crime than murder was not grossly disproportionate, and in not applying the “greater scrutiny” test when considering the proportionality of the sentence. In response, the Lord Advocate submitted that the sentencing policy of each US state was a matter of its sovereignty, and the sentencing policy in dispute fell outwith the scope of the Court’s supervision at a European level.

Extreme gravity of crimes

Delivering the opinion of the court, Lord Carloway said of the sheriff’s analysis: “There is no basis for holding that the sheriff failed to apply the correct level of scrutiny when determining whether a mandatory life sentence without parole was grossly disproportionate. It is almost self-evident that such a sentence is more likely to be regarded as grossly disproportionate since it is imposed without regard to factors which would otherwise be regarded as mitigation.”

He continued: “It is not possible to conclude that a life sentence without parole is grossly disproportionate, for the purposes of triggering a breach of Article 3, given the extreme gravity of the crimes charged. If proved, this was a premeditated conspiracy to kidnap five children and to murder their four parents. The plan had passed the preparation phase and had entered that of perpetration when the police intervened. Although whole of life terms are not considered appropriate in this jurisdiction, they are permitted by statute in England and Wales.”

Assessing the reducibility of the potential sentence, Lord Carloway said: “The existence of compassionate release and executive clemency within the US criminal justice system is sufficient to meet the requirements of Article 3 in the extradition context, even if it may not be likely that the appellants will be afforded either remedy over time. In reaching this decision, the court is attempting to apply the central tenets of the European Court jurisprudence.”

He concluded: “[The mainstream European Court jurisdiction] attaches considerable importance to the sovereignty principle under which the Convention should not be used as a means of imposing the criminal justice values of contracting states on non-Convention countries. It should require some obvious and serious form of ill treatment to bar the extradition to a country such as the United States for the crimes of conspiracy to murder parents and to steal their children.”

The appeals were therefore refused.