APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Osborne Lord Reed Lord Mackay of Drumadoon	[2011] HCJAC 77 Appeal No: XC411/08, XC412/08 AND XC420/08 OPINION OF THE COURT delivered by LORD REED in Appeals of by B H First Appellant; and K A S or H Second Appellant; against THE LORD ADVOCATE First Respondent: and THE SCOTTISH MINISTERS Second Respondent _______

For first appellant: Kerrigan, Q.C., Pike; Good & Stewart

For second appellant: Lamb, Q.C., Prais; Livingstone Brown

For first respondent: Dewar Q.C., Hawkes; Crown Agent

For second respondent: McBrearty; Scottish Government Legal Directorate

Amicus curiae: Duncan

29 July 2011

Introduction

[1] These proceedings are concerned with three appeals under the Extradition Act 2003 (as amended). First, Mr H has appealed under section 103 of the Act against the decision taken by Sheriff McColl on 3 April 2008, under section 87(3) of the Act, to send his case to the Scottish Ministers for their decision whether he is to be extradited. Secondly, Mrs H (formerly Miss S) has also appealed under section 103 of the Act against the similar decision taken by Sheriff McColl on the same date to send her case to the Scottish Ministers. Thirdly, Mr H has appealed under section 108 of the Act against the extradition order made by the Scottish Ministers on 29 May 2008.

[2] The proceedings arise from a request by the United States of America for the extradition of Mr and Mrs H to face trial in Arizona in relation to charges which can be broadly described as charges of conspiracy and unlawful importation into the United States of chemicals which are used to manufacture methamphetamine, knowing or having reasonable cause to believe that the chemicals would be used for that purpose. The appeals raise a number of issues in relation to the law of extradition, including the question whether the extradition of Mr and Mrs H would be compatible with their Convention rights under Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, as given effect by the 2003 Act and the Scotland Act 1998.

The background circumstances

[3] The following summary of the background circumstances is derived primarily from the findings in fact made by Sheriff McColl on the basis of the evidence which she heard, supplemented by matters which were the subject of evidence before this court or were not in dispute.

[4] Mr and Mrs H are UK citizens. When at liberty, they currently reside in Scotland. They are aged 47 and 33 respectively. Mrs H is the mother of six children: child A, born on 5 August 1997; child B, born on 16 March 1999; child C, born on 15 October 2002; child D, born on 16 February 2006; child E, born on 5 May 2009; and child F, born on 29 March 2011. Child A's father is D C. He has never lived in family with Mrs H and has never had contact with child A. Child B's father is J W. He lived in family with Mrs H and children A and B until he and Mrs H separated in 2001. Mr H is the father of children C, D, E and F. He was the employer of Miss S (as she then was) at the time of her separation from J W. He assisted her in finding accommodation in Middlesbrough for herself and children A and B. He and Miss S formed a relationship in about 2002. They married in April 2008.

[5] Mr H has three children from previous relationships. He spent a period from about 1989 to 1994 or 1995 living and working in the United States. He and his then partner had a daughter, J, who was born in 1986. While Mr H, his partner and J were living in Arkansas, J, then aged 6, was thought to be displaying disturbed behaviour, and was said to have made disclosures to a school teacher in relation to sexual abuse of her by Mr H. This was followed by police investigations which were carried out in that state and which included an interview of J. She was removed from the family home and taken into care there. Mr H left Arkansas and went to live in Oklahoma, where he could not be prosecuted for offences said to have occurred in Arkansas. He remained in contact with J's mother, and a plan was formed whereby the mother of the child would seek to have J returned to her sole care on the basis that she was no longer living with Mr H. Thereafter, she too would leave Arkansas with J and join Mr H in Oklahoma. This plan was carried out. Mr H, the child's mother and J left the United States and returned to the United Kingdom in 1994 or 1995.

[6] That relationship came to an end and Mr H formed a relationship with someone else with whom he had a son. While living in that family he learned that J had once again been taken into care, this time in England. He took no steps to offer her a home at that time.

[7] After he formed a relationship with Miss S, and after the birth of child C in 2002, the local authority in Middlesbrough were made aware of the allegations by J relating to the sexual abuse said to have been perpetrated upon her by Mr H in the United States. Proceedings were raised in the Family Division of the High Court under the Children Act 1989. In response to this Mr H mounted a denial of service attack on the local authority's email system, which resulted in their obtaining an injunction against him in November 2003.

[8] In a judgment dated 30 January 2004 His Honour Judge Bryant (sitting as a judge of the High Court), who had granted the injunction in November 2003, found that Mr H had sexually abused J on a number of different occasions in Arkansas and Texas in 1993 and 1994. He was satisfied that Mr H remained a real and continuing danger to young girls. Judge Bryant continued the proceedings for the purpose of ascertaining Miss S's position in relation to his findings. She accepted the findings. On 6 September 2004 Judge Bryant granted an injunction against Mr H from having contact with children A, B and C. This injunction was not complied with.

[9] On 23 March 2005 search warrants were granted by Teeside Magistrates' Court under the Firearms Act 1968, in connection with an investigation into Mr H ordering a handgun through the internet. The warrants were executed at a business address in Stockton-on-Tees and at residential addresses in Middlesbrough. Two handguns were recovered, and also computers containing information relating to the sale of chemicals through a website, www.kno3.com. The chemicals included red phosphorus and iodine, which are used to manufacture methamphetamine. The information showed that these chemicals had been sold to a large number of customers in the United States.

[10] In April 2005 Mr H, Miss S and children A, B and C left Middlesbrough and moved to Scotland, where Miss S had (and continues to have) relatives living. They have resided in Scotland with their children since then.

[11] On 21 June 2006 further search warrants were granted by Teeside Magistrates' Court. On 23 June 2006 they were backed by Sheriff Miller at Falkirk Sheriff Court. They were subsequently executed at a business address in Grangemouth and at a residential address.

[12] Following an investigation by authorities in the United States, on 27 September 2006 an indictment was filed in the United States District Court for the District of Arizona, charging Mr H and Miss S with the offences described below. Warrants for their arrest were issued by that court the following day. On 3 November 2006 the United States requested their extradition in accordance with the Extradition Treaty, Protocol of Signature and Exchange of Notes between the United States and the United Kingdom of 8 June 1972 ("the 1972 Treaty"), as amended by the Supplementary Treaty of 25 June 1985.

The history of the present proceedings

[13] These proceedings have been exceptionally protracted, both in the Sheriff Court and, to an even greater extent, in this court. It is appropriate to explain why this has occurred. We again rely on Sheriff McColl's judgment in relation to the proceedings in the Sheriff Court.

The proceedings in the Sheriff Court

[14] The requests first came before the sheriff on 31 January 2007. In accordance with section 75 of the 2003 Act, the sheriff fixed 19 March 2007 as the date on which the extradition hearing was to begin. Mr H and Miss S were remanded in custody. On 12 March 2007 the diet fixed for 19 March 2007 was discharged and a new diet fixed for 26 April 2007, as Mr H's solicitor had withdrawn from acting for him and he wished to obtain new representation. The extradition hearing did not proceed on 26 April 2007. It appears that a motion was made by counsel then acting on behalf of Mr H and Miss S that the sheriff, Sheriff Maciver, should recuse himself. That motion having been refused, an appeal was brought to this court. Pending the hearing of that appeal (which was subsequently refused), an issue was raised in the Sheriff Court as to whether Mr H and Miss S should be discharged under section 72 of the 2003 Act, on the basis that there had been a failure to comply with section 72(2) (which requires that a copy of the warrant issued under section 71 must be given to the person arrested under such a warrant as soon as practicable after his arrest). At a hearing on 31 July 2007 Sheriff Stoddart heard evidence on that issue and concluded that section 72(2) had been complied with. We return to that issue below.

[15] Applications for bail by Mr H and Miss S had been refused by the sheriff. On 31 August 2007 however their appeals against the refusal of bail were allowed. They had been in custody for seven months. The next date for which the extradition hearing was fixed was 10 October 2007. That diet was however discharged on 26 September 2007, after Miss S instructed a new firm of solicitors. The extradition hearing was then fixed for 14 November 2007. On that date, counsel appearing on behalf of Miss S sought an adjournment to enable her to be psychiatrically examined. The hearing was adjourned until 16 November 2007, when medical reports were produced to the effect that Miss S was not suffering from mental illness but from stress relating not only to the nature of the proceedings 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 2008. On 3 April 2008 Sheriff McColl issued her decision. On 29 May 2008 the Scottish Ministers made the extradition orders.

The proceedings in this court

[16] Notes of Appeal on behalf of Mr and Mrs H were lodged on 11 June 2008. The appeals were set down to be heard on 4 to 6 March 2009. At a procedural hearing on 14 January 2009 the court was informed that counsel had only recently been instructed, both appellants having instructed new firms of solicitors. The court expressed concern regarding the delays that had already occurred in hearing the appeals. At a further procedural hearing, on 28 January 2009, the court refused to allow three devolution minutes submitted on behalf of Mrs H to be received, and refused leave to appeal to the Supreme Court against that refusal. The devolution minutes sought to argue that the certification of the extradition request by the Scottish Ministers under section 70(1) of the 2003 Act, the extradition order made by the Scottish Ministers, and the participation of the Lord Advocate in the present proceedings, were all measures equivalent in effect to a quantitative restriction on exports, and as such were incompatible with EU law. The court refused to receive the minutes as they were unrelated to any ground of appeal. The issues under EU law were not pursued any further in these proceedings. The court advised counsel that, at the hearing of the appeal in March, counsel for the appellants would be expected to address the court during the first two days, with counsel for the Lord Advocate and the Scottish Ministers having the third day to reply. At a further procedural hearing, on 11 February 2009, the court allowed the grounds of appeal on behalf of Mr H to be amended, refused to allow a related devolution minute to be received, and reminded counsel of the timetabling arrangements made at the previous hearing. The devolution minute sought to argue that the Lord Advocate's participation in the present proceedings violated Mr H's Convention rights, on the basis that the extradition request had been based in part on information provided by Cleveland Police to the United States authorities in violation of Mr H's Convention rights. At a further procedural hearing, on 19 February 2009, the court allowed the grounds of appeal on behalf of Mrs H to be amended. On 4 March 2009, at the outset of the hearing of the appeals, the counsel and solicitors instructed on behalf of Mrs H withdrew from acting, on the basis that they could no longer represent her. The hearing of Mrs H's appeal was adjourned to a date to be afterwards fixed, to allow her to obtain fresh legal representation. The hearing of Mr H's appeal proceeded on 4, 5 and 6 March. In the event, despite the admonitions given by the court at the procedural hearings, counsel for Mr H did not complete his submissions within the three days which had been allowed (in the light of counsel's estimates) for the hearing of all three appeals. In the light of counsel's estimate of the further time required, the court continued the hearing to a date to be afterwards fixed, for a further four days. On 17 April 2009 the hearing of Mrs H's appeal was also continued to a four day diet on dates to be afterwards fixed. The continued hearing of Mr H's appeal was subsequently set down for 26 to 29 May 2009. Having regard to Mrs H's imminent confinement (child E was born in May 2009), the continued hearing of her appeal was set down for 23 to 26 June 2009.

[17] On 26 May 2009 the court allowed Mr H's grounds of appeal to be further amended. The court heard further submissions from Mr H's counsel during the remainder of that diet. On 27 May 2009 a procedural hearing was held in respect of Mrs H's appeal, at which the discharge of the hearing fixed for 23 to 26 June was sought on the basis of concerns about Mrs H's mental health, pending a psychiatric examination which was to be carried out earlier that month. That application was granted. It was envisaged that a further diet would be fixed at which the hearing of both appeals would be completed. In the event, progress was delayed while further investigations were made into Mrs H's mental health.

[18] Following the completion of those investigations, the court was requested, at a procedural hearing on 4 August 2009, to consider an application for Mrs H to be discharged under section 91 of the 2003 Act (which applies if the physical or mental condition of the person is such that it would be unjust or oppressive to extradite him). Counsel for the Lord Advocate however submitted that this court had no jurisdiction to apply section 91. In those circumstances, the court fixed a hearing on the issue of jurisdiction, to take place on 17 September 2009, with a hearing on the merits of the application provisionally fixed (subject to the court's decision on the issue of jurisdiction) for 25 September 2009.

[19] On 17 September 2009 the hearing on jurisdiction took place. For reasons explained in the Opinion of the court of that date, the court concluded that it had jurisdiction to entertain an application for discharge under section 91. On 25 September 2009 the court heard evidence relating to Mrs H's contention that her mental condition was such that it would be unjust or oppressive to extradite her. For reasons explained in the Opinion of the court dated 9 December 2009 (reported at 2010 SLT 337), the court concluded that that contention had not been established, and refused the application under section 91.

[20] At a procedural hearing on 4 February 2010 the court was informed that Mrs H had recently instructed different representation. It was decided that a hearing of Mrs H's appeal, apart from the ground of appeal concerned with Article 8 of the Convention, should be fixed, and that there should be a subsequent hearing relating to the Article 8 issues in both the appeals in which such issues were raised. At a further procedural hearing on 17 February 2010 the court allowed the grounds of appeal for Mrs H to be further amended. Following further procedural hearings at which further time was allowed for investigations and preparation to be carried out, a further application under section 91 of the 2003 Act was made on behalf of Mrs H in June 2010, in which it was maintained that there had been a material deterioration in her health since the previous application had been considered. Following the birth of child E in May 2009, Mrs H had again become pregnant, and had suffered a miscarriage in February 2010. That had been found to be a molar pregnancy, for which she required monitoring. The court was persuaded that a hearing should be fixed to determine the second application under section 91. That hearing was fixed for 11 August 2010.

[21] On 11 August 2010, the court was informed that Mrs H had again become pregnant, despite advice that she should avoid pregnancy because of risks to her health. A discharge of the hearing was sought, in order that investigations could be made into the implications of the pregnancy for her health and for her possible treatment in the United States. In the circumstances, the court discharged the hearing. At a procedural hearing on 24 September 2010 the court was informed that Mr H had recently instructed new solicitors and counsel (his fourth set of representatives), and that they required additional time for preparation. A hearing of Mrs H's second application under section 91 was subsequently fixed for 18 November 2010. Continued hearings of the appeals were fixed for 10 to 14 January 2011.

[22] The hearing of Mrs H's second application under section 91 proceeded on 18 and 19 November 2010. On 7 December 2010 the court refused the application, for the reasons given in the Opinion of that date ([2010] HCJAC 123). At a procedural hearing on 21 December 2010 the counsel and solicitors acting on behalf of Mrs H withdrew from acting for her, their instructions having been withdrawn by Mrs H. They were the fifth set of representatives to have parted company with Mrs H. In the circumstances, although written submissions had already been lodged on her behalf, the court considered it appropriate that arrangements should be made for the appointment of an amicus curiae in relation to the hearing of her appeal. Those arrangements were subsequently made. An application on behalf of Mr H for the hearing fixed for 10 to 14 January to be discharged, on the basis that necessary investigations and preparations would not be completed in time, was refused.

[23] On 10 January 2011 the continued hearing of the appeals proceeded, a further application on behalf of Mr H for the discharge of the hearing having been refused. The court proceeded to hear submissions by the amicus curiae in relation to Mrs H's appeal, and submissions in response on behalf of the Lord Advocate. Mrs H declined to address the court personally. Evidence was given by Mr H in support of his appeal. On 14 January 2011, shortly after the court adjourned at lunchtime, Mr H reported to court staff that his wife was suffering from severe abdominal pain and required to be taken to hospital. Bearing in mind that Mrs H was in the seventh month of pregnancy and had previously suffered a miscarriage, an ambulance was summoned and she was taken to hospital. The appeals were adjourned to a further hearing on dates to be afterwards fixed.

[24] At a procedural hearing on 16 February 2011, the court was informed that counsel and solicitors were now acting on behalf of Mrs H. She had recently undergone a minor surgical procedure and was in hospital. It was decided that a further hearing of four days should be arranged. That was subsequently fixed to commence on 19 April 2011, Mrs H's child being due in March.

[25] On 19 April 2011 the court was informed that Mr H had attempted suicide that morning by taking an overdose of paracetamol. He had been found unconscious by his wife. He had been taken to hospital, where he remained. Mrs H was in a state of anxiety as a result of her husband's behaviour. The hearing was adjourned until 21 April 2011. On that date Mr H failed to attend court. A letter was produced from a general practitioner which stated that "for medical reasons" Mr H was unfit to attend court that day. The medical reasons were not specified. The court also had before it a number of reports from Stirling Royal Infirmary, where Mr H had been treated. Dr Andrea Strang, the consultant physician in acute medicine who had treated Mr H, stated in a letter to his solicitors dated 20 April 2011 that she considered that he would be fit to attend court on 21 April. She reported that he had not had a significant level of paracetamol in his blood and therefore had not required the specific antidote. On 20 April he was "fully alert and orientated and therefore medically fit for discharge". The court had also received a letter from Dr Michael Götz, a consultant psychiatrist who had examined Mr H at Stirling Royal Infirmary on 20 April. He reported that Mr H was fit to attend court and was suffering from no mental disorder. On behalf of Mr H, it was said that, according to his wife, he had been falling asleep and falling over, following his return home from hospital on 20 April. He claimed to have no recollection of going to hospital or giving evidence in court. He had therefore gone to see his general practitioner, who had said that she intended to refer him to a psychiatrist. Following an adjournment during which counsel spoke to the general practitioner, the court was informed that the general practitioner had written the letter produced to the court on the basis of the information given to her by Mr H. She had not been made aware of the views of Dr Strang and Dr Götz. She had not said that Mr H should be psychiatrically examined. She was distressed by the situation that had arisen. In the circumstances, the court adjourned the hearings until 26 April 2011, withdrew Mr H's bail, and granted a warrant for his arrest.

[26] In relation to this episode, it is appropriate to add that, at the adjourned hearing on 26 April 2011, the court was provided with a discharge letter prepared by Dr Götz on 20 April. In the letter, Dr Götz stated that, when he saw Mr H that day, he was "quite explicit about the fact that he wished to attract a psychiatric diagnosis, as had his wife, to avoid extradition to America". In evidence, Mr H denied having said anything of the kind, and described Dr Götz's account as completely preposterous. He similarly denied having made other statements attributed to him by Dr Götz. He was unwilling to accept Dr Götz's conclusion that he did not suffer from any mental disorder or impairment, but had acted so as to avoid a court appearance and threatened extradition. The court also heard evidence from Dr Götz, who was an entirely convincing witness. He confirmed that Mr H had told him that the suicide attempt, such as it was, had been committed in the context of the hearing fixed for the following day, and in the hope of attracting a psychiatric diagnosis so as to support an application under section 91 of the 2003 Act. There was in his opinion no reason for Mr H to be prescribed any psychotropic medication. We have no hesitation in accepting Dr Götz's evidence and rejecting that of Mr H. The evidence relating to this episode supports the conclusion that Mr H is a devious and manipulative individual, whose behaviour can be unpredictable and irresponsible: a conclusion which is consistent with aspects of the background circumstances which we have described.

[27] On 28 April 2011, after evidence had been heard from Mr H, Dr Götz and a social worker, Mrs Weldon (who had also given evidence before the sheriff), and after hearing submissions, the hearing of the appeals was concluded. An application to have a further devolution minute received on behalf of Mr H, contending that he had been denied adequate time and facilities to prepare his case, in violation of Article 6 of the Convention, was refused. The court noted that, according to the jurisprudence of the European Court of Human Rights, extradition proceedings do not fall within the scope of Article 6: see, for example, Salgado v Spain, decision of 16 April 2002. An application for leave to appeal against that decision to the Supreme Court was also refused.

[28] Finally, in relation to the procedural history, we should record that supplementary submissions on behalf of the Lord Advocate were sent to the clerk of court some weeks after the conclusion of the hearing. It appears that they had not been intimated to those acting on behalf of the appellants, who expressed concern on being notified by the court. In the circumstances, the supplementary material was not placed before the members of the court, and we have reached our decision solely on the basis of the submissions made at the hearing.

The grounds of appeal

[29] The grounds of appeal against Sheriff McColl's decision, so far as insisted on, focus upon the following matters:

1. Whether Mr H was entitled to be discharged under section 72 of the 2003 Act in consequence of a failure to give him a copy of the warrant issued under section 71 as soon as practicable after his arrest.

2. Whether Mr H was entitled to be discharged under section 87 of the 2003 Act on the ground that his extradition would be incompatible with his Convention rights under Articles 5 and 8 of the Convention and Article 1 of the First Protocol, by reason of the fact that the extradition request was based upon evidence obtained by the United States without legal authority.

3. Whether the Sheriff erred in law by finding facts proved on the basis of the judgment delivered by Judge Bryant in the earlier English proceedings.

4. Whether the Sheriff erred in law by finding that the offences charged in the Arizona indictment were extradition offences.

5. Whether Mr and Mrs H were entitled to be discharged under section 87 of the 2003 Act on the ground that their extradition would be incompatible with their Convention right under Article 8 of the Convention to respect for their private and family life.

A further ground of appeal, concerned with the compatibility of extradition with Articles 3 and 8 of the Convention in the light of prison conditions in the United States, was not insisted on.

[30] In addition, Mr H's appeal against the decision of the Scottish Ministers concerns the following matter:

6. Whether the Scottish Ministers acted in breach of sections 93 and 95 of the 2003 Act by ordering Mr H's extradition to the United States in the absence of specialty arrangements with that country.

We shall consider each of these grounds of appeal in turn.

Section 72 of the 2003 Act

[31] The material provisions of section 72 of the 2003 Act are in the following terms:

"(1) This section applies if a person is arrested under a warrant issued under section 71.

(2) A copy of the warrant must be given to the person as soon as practicable after his arrest.

(3) The person must be brought as soon as practicable before the appropriate judge.

(5) If subsection (2) is not complied with and the person applies to the judge to be discharged, the judge may order his discharge.

(6) If subsection (3) is not complied with and the person applies to the judge to be discharged, the judge must order his discharge".

As we have explained, Mr H's contention that he should be discharged under section 72(5) was considered by Sheriff Stoddart. After hearing evidence, the sheriff made the following findings in fact:

"1. Production 12 is a copy of a warrant for the arrest of the Appellant issued on 16 January 2007 under section 71 of the Extradition Act 2003.

2. On the morning of 30 January 2007 officers from Lothian and Borders Police attended at the home of the Appellant..... They were in possession of the original warrant granted as above. They gained entry to the house, where Constables Allison and Sangster found the Appellant. Constable Sangster read over the warrant to the Appellant, who appeared to understand its terms. Neither Constable nor any other police officer handed a copy of the warrant to the Appellant at any time at the house.

3. The Appellant was arrested at the house and taken to Falkirk Police Office. He was taken to the charge bar at around 10.05 hrs. At 10.18hrs in the presence of Sergeant Morrison, the custody officer, the warrant was read over to the Appellant again by arresting officers. The Appellant understood what was read over to him. He was cautioned and replied 'I know I haven't broken the laws in the United States. This warrant is completely unjustified'. At no time at Falkirk Police Office was a copy of the warrant handed to the Appellant. He was thereupon detained in custody pending his appearance at Edinburgh Sheriff Court next day.

4. A copy of the warrant was thereafter placed in the 'open' section of the Appellant's property and was transmitted with him to court. The Appellant was not told that this was being done, nor of the distinction between the 'open' and 'sealed' sections of a prisoner's property. A prisoner such as the Appellant can always ask at any time to have access to items in the 'open' section of his property.

5. Prior to the appearance of the Appellant at court on 31 January 2007, staff of the Crown Office prepared an 'extradition bundle' of the documents which required to be served on the Appellant in terms of section 78(4) of the 2003 Act. This bundle included a copy of the extradition request and was served on the Appellant at around 13.00 hrs on 31 January 2007 conform to Production No.2, being the relative Execution of Service. It was thereafter available to him and his legal advisers".

[32] In the light of these findings, the sheriff concluded that there had been "substantial compliance" with section 72(2), and that section 72(5) therefore did not arise. We are unable to agree with that conclusion. Section 72(2) was either complied with or not complied with. It can be inferred from the findings that it was practicable to give Mr H a copy of the warrant on the day of his arrest, when a copy was placed, seemingly without his knowledge, with his property. He was not in fact given a copy until, it appears, the following afternoon. In those circumstances section 72(2) was not complied with.

[33] It does not however follow, as counsel for Mr H argued before this court, that the sheriff was bound to discharge him. Section 72(5) provides that the judge "may" order the person's discharge; and it is apparent from the contrasting language of section 72(6) ("must") that the use of the word "may" is intended to confer a discretion. In the present case, the warrant had twice been read over to Mr H, and he understood what it said. The sheriff found that "the appellant had not suffered any prejudice by what was done". Before this court, counsel for Mr H did not suggest that any prejudice had been suffered. In those circumstances, it would not have been a reasonable exercise of the discretion conferred by section 72(5) to have ordered Mr H's discharge. This ground of appeal should therefore be refused.

The unlawful obtaining of evidence

[34] As we have explained, a number of search warrants were granted by Teeside Magistrates' Court during 2005 and 2006 and subsequently executed. It was contended before Sheriff McColl that evidence recovered by virtue of these warrants had been illegally or improperly transmitted to the United States, and that the extradition request should therefore be refused.

[35] In support of that conclusion, the sheriff was referred to an affidavit sworn by Detective Sergeant Driscoll of Cleveland Police. DS Driscoll stated in the affidavit that search warrants were granted on 23 March 2005 under section 46 of the Firearms Act 1968. They granted authority to search for firearms, computer equipment and documentation associated with the purchase of a firearm. On 24 March 2005 the home addresses of Mr H and Miss S in Middlesbrough, and business premises in Stockton, were searched in terms of the warrants. Two firearms and a computer were recovered at Miss S's home address. Computers were also recovered at Mr H's home address and at the business premises. The computers were analysed. They (or one of them: the affidavit refers in this connection to "the seized computer", in the singular) were found to contain evidence of sales of red phosphorus and other chemicals to a large number of customers around the world, the majority being in the United States.

[36] An investigation was then initiated into suspected offences under section 20 of the Misuse of Drugs Act 1971. In furtherance of that investigation, further warrants were granted on 21 June 2006 under section 8 of the Police and Criminal Evidence Act 1984. They authorised a search for "substances, including chemicals, and all related documentation, transactions, electronic or otherwise, or any other evidence, supporting section 20 Misuse of Drugs Act 1971 offence(s)". After "backing" by the sheriff at Falkirk, they were executed at business premises in Grangemouth and at the home address of Mr H and Miss S. A computer, documents, chemicals and other articles were recovered at the business premises. Further computers, documents, chemicals and other articles were recovered at the home address.

[37] On 4 December 2006 a letter of request was received by the United Kingdom Central Authority for Mutual Assistance in Criminal Matters from the United States Department of Justice. It referred to the prosecution of Mr H and Miss S in Arizona, in which an indictment had been filed on 27 September 2006, and explained that the prosecution needed business records, chemicals, photographs and other evidence that UK law enforcement agencies seized while conducting their own investigation. It stated, in particular, that US law enforcement authorities had discovered through informal law enforcement channels that Cleveland Police had (1) investigative reports pertaining to a bank account which Mr H and Miss S had opened or attempted to open in Switzerland, and to the 2005 and 2006 search warrants, (2) corporate records relating to Raw Chemicals International Limited, also known as Hyder Business Services Limited, through which Mr H and Miss S were said to have carried on business, (3) laboratory reports pertaining to the chemicals seized from the business premises, and (4) Royal Mail shipping records relating to shipments of the chemicals. In addition, US law enforcement authorities had discovered that Central Scotland Police and the Serious Organised Crime Agency also had investigative reports relating to the 2006 search warrants. The letter of request was forwarded to Cleveland Police and to Crown Office. DS Driscoll stated that, as a result of that, "the evidence recovered under the searches in furtherance of the warrants of March 2005 and June 2006 was transmitted to the United States authorities in March 2007".

[38] Before Sheriff McColl, it was contended that the transmission of the evidence in March 2007 had been unlawful because the Lord Advocate had not nominated a court in terms of section 15(3) of the Crime (International Co-operation) Act 2003. That subsection provides:

"(3) Where the evidence is in Scotland, the Lord Advocate may by a notice nominate a court to receive any evidence to which the request relates which appears to the court to be appropriate for the purpose of giving effect to the request".

Furthermore, it was said to be Mr H's position that his United States attorney had access to evidence which would irrefutably establish that evidence recovered under the 2005 and 2006 warrants had been sent to the United States in the absence of any formal letter of request, prior to the preparation of the Arizona indictment. That position was however subsequently departed from.

[39] The sheriff rejected these contentions. She noted that there was no material before her to suggest that any evidence recovered from the searches carried out under the warrants had been transmitted to the United States before March 2007, as stated by DS Driscoll in her affidavit. In any event, even assuming that evidence had been irregularly transmitted to the United States, that was a matter to be raised in the courts of that country. The admissibility of the evidence relied on to prove an extradition offence was for determination by the court in the requesting country: Hilali v Governor of Whitemoor Prison [2008] 1 AC 805 at paragraph 16 per Lord Hope of Craighead.

[40] Before this court, the argument was different. It was submitted on behalf of Mr H that customer records had been transferred to the United States without lawful authority, contrary to Mr H's Convention rights under Articles 5 and 8 of the Convention and Article 1 of the First Protocol.

[41] In support of that submission, counsel referred first to an affidavit sworn by Mary Beth Pfister, Assistant US Attorney for the District of Arizona, which had been submitted by the United States in support of the extradition request. In her affidavit, Miss Pfister stated:

"9. [H] and [S] came to the attention of UK authorities in 2004. Since at least August of 2004, [H] and [S] have been running the internet business. The website this business runs is www.KNO3.com, which sells chemicals including Red Phosphorus and Iodine, both of which are used to manufacture methamphetamine, and advertises 'discreet' packaging of its products. In March of 2005, UK authorities executed a search warrant at [H's] business address (in Stockton on Tees, England) and [S's] residence (in Middlesbrough, England) in connection with an investigation of H's ordering a handgun through the internet. Among the records seized were customer information for KNO3 sales, which showed the website had approximately 400 customers in the US who had purchased Red Phosphorus and Iodine from KN03. An investigation into these purchases revealed that many of the customers were using these chemicals in the operation of clandestine methamphetamine laboratories.

10. Based upon this information, United States law enforcement authorities executed search warrants on KN03's internet service provider in April, June and September of 2006 to obtain additional information on KN03's US customers. Law enforcement authorities in Arizona shared this information with authorities around the United States. As a result of this information, United States law enforcement authorities discovered over 80 methamphetamine laboratories, all supplied by KN03.

11. Computer records seized during execution of the two rounds of search warrants by United Kingdom authorities reveal that [H] and [S] received numerous emails from customers around the world alerting them to the fact their chemicals were being used to make methamphetamine. This includes an email in 2005 from a US law enforcement authority. The evidence that [H] and/or [S] read these emails, because they all came along with customer orders, and they obviously reviewed orders as part of their business.....Further, pursuant to the searches executed in March of 2005, United Kingdom law enforcement officials discovered a website page saved on a KN03 computer providing a recipe for methamphetamine".

Counsel submitted that this passage demonstrated that the customer lists of KN03, recovered by Cleveland Police, had been passed to the United States authorities by April 2006.

[42] Counsel also referred to two items which had not been before the sheriff. The first was an article in the Arizona Narcotic Officer, which appears to be a journal published by the Arizona Narcotic Officers Association. The article, published in the issue for Winter 2007, contains a more detailed account of the US investigation, known as Operation Red Dragon. It states:

"Starting in November 2004, and continuing through March 2005, lab seizures occurred in Arizona and other states which indicated that the precursor chemicals Red Phosphorous and Iodine were being shipped from a U.K. based internet company called 'www.kno3.com'. Subsequent investigation into these seizures revealed that www.kno3.com has also been known as Chemicalsman.com, RawChemicalsInternational, Hobby Chemicals and Hyder Business Services Limited. At all of these incidents, packaging from www.kno3.com was found.

In March of 2005, the Cleveland Police, Cleveland, England executed search warrants on the residence of [H] and his chemical supply business, www.kno3.com. The search warrants were conducted in reference to a handgun that [H] had purchased via the internet. While conducting analysis of the seized computers in reference to the gun purchase, the Cleveland Police found that [H] was shipping chemicals to many customers in the United States (US). This information was passed to the DEA London Country Office (LCO) who then forwarded the information to the DEA Dangerous Drugs Section (OED).

On June 13, 2005, Case Agent, Phoenix Police Detective Tracy McBride attended the National Methampetamine Chemicals Initiative Conference (NMCI) in Cincinnati, Ohio. At the conference he met OED personnel who agreed to provide a copy of the kno3 list of Arizona customers. Soon after the conference, Phoenix Field Division (PFD) personnel provided McBride with the kno3 US customer list for the time period of August 2004 to March 2005. Detective McBride and the Maricopa County Meth Task Force (MCMTF) began an investigation of the Arizona customers. All of the Arizona leads investigated resulted in the seizure of a clan lab or precursor chemicals.

Between January 12 and February 21, 2006, Det. McBride coordinated and completed three undercover purchases of Red Phosphorous and Iodine from the website www.kno3.com. All packages received were erroneously marked to conceal the chemicals that were contained in the packaging.

On April 20, 2006, Det McBride and PFD Case Agents travelled to the Miami Divisional Office. The PFD Agents, along with Miami DEA and ICE Agents, responded to the web hosting business located in Margate, Florida. The Agents executed a federal search warrant that was obtained for information related to Hs' website www.kno3.com which was stored at the web hosting service 'Infomart 2000'. A second search warrant was also served on the web hosting company on June 13, 2006. The federal search warrants yielded significant results. Agents identified approximately 6,000 shipments of precursor chemicals, including approximately 1,600 US shipments, ordered through kn03 since early 2004. A review of the orders revealed orders placed with shipping addresses in almost every US state. International orders were found to have been placed from other countries to include France, Greece, Australia, Italy, Russia, Japan, South Korea, Germany, Netherlands, Spain, Denmark, and the United Kingdom".

The article went on to state that Mr H and Miss S had been arrested on 23 June 2006, prior to the execution of the search warrants granted by Teeside Magistrates' Court. Mr H had stated that he would not continue shipping red phosphorus to the United States without written consent from the US authorities. Nevertheless, during August 2006 the US detectives had completed further undercover purchases of red phosphorus from the KNO3 website. The packages were again mislabelled to conceal the nature of their contents. During September 2006 a further search warrant was executed on the web server. That search yielded an additional 408 customers in the United States and 341 elsewhere. The known shipments by KN03 to customers in the United States, between August 2004 and November 2006, totalled 296kg of red phosphorus and 44kg of iodine crystals. Approximately 1330lb of methamphetamine could have been produced, with a street value of $13.3m. At least 121 clandestine laboratories had been supplied in the United States, including 20 in Arizona.

[43] The second item was a programme broadcast by the BBC entitled The Chemical Dealers, which narrated, in relation to the execution of the search warrants on 23 June 2006, that the previous evening "officers from Scotland and England along with observers from American law enforcement agencies sat down and put the finishing touches to the operation".

[44] Counsel submitted that this material demonstrated that customer lists had been transferred to the United States before April 2006, that the extradition request was accordingly based upon evidence obtained by the US authorities without legal authority, that Mr H's extradition would therefore be incompatible with his Convention rights, and that he was in consequence entitled to be discharged under section 87 of the 2003 Act. Counsel was unable to say whether the US authorities had been provided with evidence or with information; whether the material provided to them had been found on items recovered from Mr H's home address, Miss S's home address or the business address; or whether the business occupying the latter premises at the time, which counsel informed us to have been Hyder Business Services, was a separate legal person from Mr H, as the references to Hyder Business Services Limited in the Arizona indictment, in Miss Pfister's affidavit, and in the article in the Arizona Narcotics Officer, would imply.

[45] In our opinion there is no substance in this ground of appeal. It appears from the material referred to that the US authorities began an investigation into the KN03 shipments independently of, and prior to, the unrelated investigation by Cleveland Police. In the course of the latter investigation, additional evidence relating to the shipments was discovered. It appears from DS Driscoll's affidavit that the discovery of the evidence concerning the shipments led Cleveland Police to initiate an investigation into suspected offences under section 20 of the Misuse of Drugs Act 1971. That section provides:

"A person commits an offence if in the United Kingdom he assists in or induces the commission in any place outside the United Kingdom of an offence punishable under the provisions of a corresponding law in force in that place".

The investigation of suspected offences under section 20 necessarily involves an investigation into whether offences have been committed outside the United Kingdom, and therefore requires the provision of relevant information to the authorities of the country in question. In the present case, where offences were suspected to have been committed by purchasers of the chemicals in the United States, it was accordingly necessary to provide information about the shipments, including information as to the identities or addresses of US customers, to the US authorities. The US authorities then pursued their investigation, by investigating the customers and discovering additional clandestine laboratories to those which had previously been found to have been supplied by KN03, by making test purchases from the KN03 website, and by obtaining and executing search warrants for information about the KN03 website, stored by its internet service provider in Florida. The information obtained from the web server included details of customers. It appears therefore that the indictment to which the extradition request relates is based upon the results of an investigation by the US authorities, and that the investigation was assisted by the provision of information by Cleveland Police, which they had obtained as a result of the execution of the search warrants in 2005, and which they required to share with the US authorities in order to pursue their own investigation into suspected offences under the Misuse of Drugs Act 1971.

[46] The sharing of that information was not in our opinion incompatible with Mr H's Convention rights. The searches themselves were properly authorised, and no issue is taken with the manner in which they were carried out. Given the character of the information in question, concerning the identities or addresses of persons who had purchased chemicals from the KN03 website, we are not persuaded that its provision to the US authorities could constitute an interference with Mr H's right to respect for his private life. Nor are we persuaded that its provision to the US authorities constituted an interference with Mr H's right to peaceful enjoyment of his possessions, even assuming that the records in question were the property of Mr H rather than of a separate company: an assumption which we are not in any event prepared to make, since the matter must be within the knowledge of Mr H, but he has provided the court with no information in that regard. According to the Arizona indictment, on the other hand, the business at the relevant time was that of Hyder Business Services Limited, a company of which Mr H was a director. Furthermore, even if there were any such interference, it would in our opinion be justifiable under the Convention, bearing in mind the public interest in the investigation of serious crime and the legal basis for the investigation of suspected offences under the Misuse of Drugs Act 1971. Even if the latter investigation were left out of account, any interference would in our opinion be justifiable in any event, having regard to the public interest in the sharing of criminal intelligence by police forces in different countries, and the legal basis for the sharing of such intelligence in section 3 of the Serious Organised Crime and Police Act 2005 (and the predecessor provision, section 2 of the Police Act 1997, which was in force at the relevant time).

Judge Bryant's Judgment

[47] As we have explained, Sheriff McColl referred in her judgment to the judgment issued by Judge Bryant on 30 January 2004. In her findings in fact, she recorded that Judge Bryant had found that Mr H had sexually abused J on a number of occasions in Arkansas and Texas in 1993 and 1994 and that he remained a real and continuing danger to young girls. She recorded that Miss S (as she then was) had accepted Judge Bryant's findings, and that he had on 6 September 2004 granted an injunction against Mr H from having contact with children A, B and C. She found that the injunction was not complied with at any stage, and that Mr H and Miss S moved to Scotland with the children.

[48] On behalf of Mr H, it was submitted that the sheriff had erred in admitting evidence of Judge Bryant's judgment. Her powers were the same, as nearly as may be, as if the proceedings were summary criminal proceedings (section 77(2) of the 2003 Act). In such proceedings, she could not admit evidence of the contents of the judgment, since that evidence was of a hearsay character, and none of the exceptions to the hearsay rule was applicable.

[49] This submission appears to us to be based upon a misconception of the use which the sheriff made of the judgment. It is apparent that she was careful not to use it for a hearsay purpose - that is to say, as evidence establishing as facts the matters which Judge Bryant found to be established. The use which she made of the judgment was more limited, although nevertheless important. She states:

"I was invited by [counsel for Mr H] to totally disregard the existence of the judgement of His Honour Judge Bryant in Middlesburgh (sic) 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 [H] accepted in his evidence accepted (sic) the narrative of events findings in fact 5, 6 and 7 [repeated in paragraphs [ ] to [ ] of the present Opinion]. Though denying the veracity of the allegations made against him by his daughter, [J], Mr [H] 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 [S] 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 [J] against Mr [H]. 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 [H] placed himself [out] 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 (sic) by moving to Scotland" (para.66).

As appears from that passage, the sheriff did not treat the judgment as evidence that Judge Bryant's findings were correct, except to the extent that Mr H accepted in his evidence that they were correct. What she regarded as relevant was the evidence of Mr H and Miss S in relation to the judgment and the injunction, and the evidence as to their conduct after the injunction was granted.

[50] The sheriff also referred to Judge Bryant's judgment when considering, in relation to the issues arising under Article 8 of the Convention, the nature of Miss S's commitment to her children, and the impact upon that commitment of her bond with Mr H. In that regard, she stated:

"In her evidence she said that she did not believe the allegations of sexual abuse which had been made against Mr [H] because they were part of a plot by [J's] mother to blackmail Mr [H]. She said that [J] 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 judgment Judge Bryant considered that that could not conceivably apply to the allegation made in Arkansas as Mr [H] and [J'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 [H] at that time as [J's] mother was supporting Mr [H] 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 [S] 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".

As we have explained, Mr H gave evidence before the sheriff in which he accepted that J had made the allegations in question. It is apparent from Judge Bryant's judgment that they were of an appalling character. The conclusion which the sheriff reached, in the final sentence of this passage, did not involve treating the allegations as true - something which the sheriff expressly acknowledged she could not do.

[51] The final reference made by the sheriff to Judge Bryant's judgment was in relation to evidence given by Dr Schwannauer, a consultant clinical psychologist instructed on behalf of Mr H. She noted:

"He appears not to have been made aware of the terms of the judgment of Lord Bryant (sic). The fact that the High Court in Middlesburgh which has heard evidence has considered it to have been proved that Mr [H] has sexually abused his daughter and granted an injunction to keep him away from the children of Miss [S] 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" (para.75).

In that passage, as in the others we have discussed, the sheriff did not use the judgment of Judge Bryant for a hearsay purpose.

Extradition offences

[52] Section 78(4)(b) of the 2003 Act, as modified by the Extradition Act 2003 (Multiple Offences) Order 2003 (SI 2003 No. 3150), requires the sheriff to decide whether each offence specified in the request is an extradition offence. If any offence is not an extradition offence, the sheriff is required by section 78(6) to order the person's discharge in relation to that offence. The expression "extradition offence" is defined, for the purposes of the present appeal, by section 137 of the 2003 Act. In particular, that section provides:

"(1) This section applies in relation to conduct of a person if -

(a) he is accused in a category 2 territory of the commission of an offence constituted by the conduct ....

(2) 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)".

The United States is a category 2 territory within the meaning of these provisions. The test of whether conduct occurs in the category 2 territory is satisfied so long as its effects were intentionally felt there, irrespective of where the person was when he did the acts which constituted such conduct (Office of the King's Prosecutor, Brussels v Cando Armas [2006] 2 AC 1 at paragraph 35 per Lord Hope of Craighead).

[53] The request in the present case specifies the offences by reference to the Arizona indictment, which contains 82 counts. The first is a count of conspiracy:

"12. Beginning on a date unknown to the Grand Jury but no later than August of 2004, and continuing through at least September of 2006, in the District of Arizona, and elsewhere, defendants B H and K A S did knowingly and intentionally conspire and agree with each other and with others known and unknown to the Grand Jury, to commit offenses against the United States including the following:

a. to knowingly and intentionally distribute a listed chemical, specifically Red Phosphorus, knowing and having reasonable cause to believe it will be used to manufacture a controlled substance, in violation of Title 21 United States Code, Sections 841(c)(2);

b. to knowingly and intentionally import and distribute a chemical, specifically Red Phosphorus, which may be used to manufacture a controlled substance, knowing and having reasonable cause to believe that it will be used to manufacture a controlled substance in violation of the Controlled Substances Act and the Controlled Substances Import and Export Act, in violation of Title 21 United States Code, Section 843(a)(7); and

c. to knowingly and intentionally distribute a List I chemical, specifically Red Phosphorus, without the registration required by the Controlled Substances Act, in violation of Title 21 United States Code, Section 843(a)(9)."

Count 1 then gives details of the manner and means of the conspiracy. In particular, it states that the KN03 website advertised that it offered "discreet delivery", and that customers often asked for discreet packaging in their comments submitted along with their orders for chemicals. Numerous examples are given. It states that KN03 shipped orders to its customers with incorrect and misleading labelling as to the contents of the package being sent, including labelling on red phosphorus indicating that it was "red metal for iron works" and labelling on iodine indicating that it was "for medical use". It states that, in addition to requests for discreet packaging, KN03 received other emails alerting it to the fact that the chemicals sold were being used to manufacture methamphetamine. Several examples are given. It states that a website giving a recipe for manufacturing methamphetamine from red phosphorus and iodine was found saved on a KN03 computer. It states that, between August 2004 and August 2006, KN03 sold approximately 296kg of red phosphorus and 44kg of iodine to customers in the United States, including approximately 7kg of red phosphorus and 5kg of iodine to customers in Arizona. It gives numerous examples of persons who manufactured methamphetamine in Arizona and who ordered chemicals from KN03. It states that at least 70 methamphetamine manufacturing locations were found in the United States which were supplied with chemicals by KN03. It states that KN03 received approximately $132,922 between August 2004 and August 2006 from customers in the United States purchasing red phosphorus and iodine. The description of the manner and means of the conspiracy concludes:

"All in violation of Title 21, United States Code, Section 846, and Title 18, United States Code Section 2".

The latter provision is concerned with aiding and abetting.

[54] Miss Pfister explains in her affidavit what requires to be established in order to prove guilt in respect of Count 1:

"19. For [H] and [S] to be found guilty of that charge, the government must prove beyond a reasonable doubt that, on the dates alleged, there was an agreement between two or more persons to commit at least one crime as charged in the Indictment; and that [H] and [S] became a member of the conspiracy knowing of at least one of its objects and intending to help accomplish it.

20. Because [H] and [S] also are charged with committing this crime by aiding and abetting its commission, the government alternatively must prove beyond a reasonable doubt that the crime charged was committed by someone; [H] and [S] knowingly and intentionally aided, counseled, commanded, induced or procured that person to commit the crime; and that [H] and [S] acted before the crime was completed, in violation of Title 18, United States Code, Section 2".

[55] Counts 2 to 17 of the indictment are counts of unlawful distribution of a listed chemical, in violation of Title 21, United States Code, Section 841(c)(2) and Title 18, United States Code, Section 2. It is alleged that, in the District of Arizona and elsewhere, the defendants did knowingly and intentionally distribute a listed chemical, specifically red phosphorus, knowing and having reasonable cause to believe that it would be used to manufacture a controlled substance, as subsequently set forth. Details are then given of sixteen specific supplies to customers in Arizona. In relation to these counts, Miss Pfister explains:

"22. For [H] and [S] to be found guilty of those charges, the government must prove beyond a reasonable doubt that they knowingly and intentionally distributed a listed chemical, specifically Red Phosphorus, knowing or having reasonable cause to believe it will be used to manufacture a controlled substance.

23. Because [H] and [S] also are charged with committing these crimes by aiding and abetting their commission, the government alternatively must prove beyond a reasonable doubt that the crimes charged were committed by someone and that [H] and [S] knowingly and intentionally aided, counseled, commanded, induced or procured that person to commit the crimes; and that [H] and [S] acted before the crimes were completed, in violation of Title 18, United States Code, Section 2".

[56] Counts 18 to 33 are counts of unlawful distribution and importation of a chemical, namely red phosphorus, which may be used to manufacture a controlled substance, knowing and having reasonable cause to believe that it would be used to manufacture a controlled substance, in violation of Title 21, United States Code, Section 843(a)(7) and Title 18, United States Code, Section 2. Details are given of the same sixteen supplies to customers in Arizona. In relation to these counts, Miss Pfister explains:

"25. For [H] and [S] to be found guilty of those charges, the government must prove beyond a reasonable doubt that they knowingly and intentionally distributed or imported a chemical, specifically Red Phosphorus, which may be used to manufacture a controlled substance, knowing or having reasonable cause to believe it would be used to manufacture a controlled substance in violation of the Controlled Substances Act, Title 21, United States Code, Sections 841 et seq, and the Controlled Substances Import and Export Act, Title 21, United States Code, Sections 951 et seq.

26. Because [H] and [S] also are charged with committing these crimes by aiding and abetting their commission, the government alternatively must prove beyond a reasonable doubt that the crimes charged were committed by someone; [H] and [S] knowingly and intentionally aided, counseled, commanded, induced or procured that person to commit the crimes; and that [H] and [S] acted before the crimes were completed".

[57] Counts 34 to 49 are counts of distribution of a list I chemical without the required registration, in violation of Title 21, United States Code, Section 843(a)(9) and Title 18, United States Code, Section 2. The same sixteen supplies to customers in Arizona are specified. In relation to these counts, Miss Pfister explains:

"28. For [H] and [S] to be found guilty of those charges, the government must prove beyond a reasonable doubt that they knowingly and intentionally distributed a List 1 chemical, specifically Red Phosphorus, without the registration required by the Controlled Substances Act.

29. Because [H] and [S] also are charged with committing these crimes by aiding and abetting their commission, the government alternatively must prove beyond a reasonable doubt that the crimes charged were committed by someone; [H] and [S] knowingly and intentionally aided, counseled, commanded, induced or procured that person to commit the crimes; and that [H] and [S] acted before the crimes were completed, in violation of Title 18, United States Code, Section 2".

[58] Counts 50 to 65 are counts of unlawful use of a communication facility, specifically the internet and the United States mail, in committing a felony, specifically unlawfully distributing a list I chemical, red phosphorus, in violation of Title 21, United States Code, Sections 841(c)(2), 843(c)(7), 843(a)(9) and 957(a)(1).

The same sixteen supplies to customers in Arizona are specified. The conduct alleged is said to have been in violation of Title 21, United States Code, Section 843(b) and Title 18, United States Code, Section 2. In relation to these counts, Miss Pfister explains:

"31. For [H] and [S] to be found guilty of those charges, the government must prove beyond a reasonable doubt that they knowingly and intentionally use a communication facility, specifically the internet or United States mail, in committing or in causing or facilitating the commission of an act constituting a felony under the Controlled Substances Act or the Controlled Substances Import and Export Act, specifically unlawfully distributing Red Phosphorus, a List I chemical, in violation of Title 21, United States Code, Sections 841(c)(2), 843(a)(7), 843(a)9 or 957(a)(1).

32. Because [H] and [S] also are charged with committing these crimes by aiding and abetting their commission, the government alternatively must prove beyond a reasonable doubt that the crimes charged were committed by someone; [H] and [S] knowingly and intentionally aided, counseled, commanded, induced or procured that person to commit the crimes; and that [H] and [S] acted before the crimes were completed, in violation of Title 18, United States Code, Section 2".

[59] Counts 66 to 81 are counts of importing into the United States a list I chemical, red phosphorus, without the required registration, in violation of Title 21, United States Code, Section 957(a)(1) and Title 18, United States Code, Section 2. The same sixteen supplies to customers in Arizona are specified. In relation to these counts, Miss Pfister explains:

"34. For [H] and [S] to be found guilty of those charges, the government must prove beyond a reasonable doubt that they knowingly and unlawfully imported into the United States from the United Kingdom a List I chemical, specifically Red Phosphorus, without the registration required by the Controlled Substances Import and Export Act, specifically Title 21, United States Code, Sections 957-958..

35. Because [H] and [S] also are charged with committing these crimes by aiding and abetting their commission, the government alternatively must prove beyond a reasonable doubt that the crimes charged were committed by someone; [H] and [S] knowingly and intentionally aided, counseled, commanded, induced or procured that person to commit the crimes; and that [H] and [S] acted before the crimes were completed, in violation of Title 18, United States Code, Section 2".

[60] Finally, in relation to the indictment, Count 82 is a count of conspiracy to import into the United States a list I chemical, red phosphorus, without the required registration, in violation of Title 21, United States Code, Sections 957(a)(1) and 963, and Title 18, United States Code, Section 2. In relation to this count, Miss Pfister explains:

"37. For [H] and [S] to be found guilty of that charge, the government must prove beyond a reasonable doubt, on the dates alleged, there was an agreement between two or more persons to commit the crime charged; and that [H] and [S] became a member of the conspiracy knowing of at least one of its objects and intending to help accomplish it.

38. Because [H] and [S] also are charged with committing these crimes by aiding and abetting their commission, the government alternatively must prove beyond a reasonable doubt that the crime charged was committed by someone; [H] and [S] knowingly and intentionally aided, counseled, commanded, induced or procured that person to commit the crime; and that [H] and [S] acted before the crime was completed, in violation of Title 18, United States Code, Section 2".

[61] Miss Pfister also explains in her affidavit the general nature of the evidence to be relied on:

"39. The evidence the government will use to prove all of the allegations contained in the indictment against [H] and [S] will include the incriminating computer records recovered from KNO3 including emails, the admissions by [H] and [S] regarding their involvement in the operation, the false and misleading statements made on packaging of KNO3 products sent to the United States, the undercover sales made to the United States authorities, the fact KNO3 continued to sell Red Phosphorus 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, and the evidence that KNO3 customers were operating clandestine methamphetamine laboratories".

[62] Additional information as to how the indictment should be understood, and in particular as to the conduct which falls within its scope, is contained in a declaration made by Ann Birmingham Scheel, Assistant United States Attorney, District of Arizona, in connection with Mr H's appeal against the extradition order. She states:

"4. The charges reflect all of the defendant's conduct relating to the sale of listed chemicals in the United States and known to the United States government. If a defendant's conduct is related and can be considered part of the same conspiracy, it must be charged as one conspiracy, without regard to the location of the activity.

.....

8. The indictment in this case makes general allegations regarding the defendant's acts outside the District of Arizona and specific allegations regarding his actions in the District of Arizona. Those specific allegations regarding his conduct in Arizona are listed with specificity in the conspiracy count because they are then charged as substantive counts later in the indictment (Counts 2-49). The defendant's actions outside the District of Arizona are described generally because they are not charged as substantive counts in the indictment. The District of Arizona would not have venue to charge substantive counts occurring in other districts.

....

10. Because the indictment from the District of Arizona encompasses criminal conduct from other districts ('elsewhere'), it is unlikely that any other federal district or state would file its own charges against the defendant. Such charges could be subject to an argument of double jeopardy by the defendant. Additionally, it would require a state or federal district to unnecessarily expend resources to try the defendant on charges already established in Arizona".

It appears therefore that the conduct falling within the scope of Count 1 is not confined to supplies to customers in Arizona, but encompasses all relevant supplies to customers in the United States.

[63] The sheriff held that all the counts in the indictment were extradition offences. Although it was conceded on behalf of the Lord Advocate that Counts 34 to 81 were not of themselves extradition offences, it was submitted before the sheriff that the conduct described in those charges formed part of the conspiracy charged in Count 1, and were therefore also extradition offences. That submission was accepted by the sheriff.

[64] Before this court, it was submitted on behalf of Mr H that the sheriff had erred in relation to paragraph 12(c) of Count 1 and Counts 34 to 82. The conduct alleged in those counts would not constitute an offence under Scots law if it occurred in Scotland. It followed that the offences in question were not extradition offences. The existence of the conspiracy charge in Count 1 did not alter that conclusion, since an act otherwise legal did not constitute a separate criminal offence in Scots law merely because it was done in furtherance of a criminal conspiracy (Gordon, Criminal Law, 3^rd ed, para. 6.63). Those submissions were adopted on behalf of Mrs H.

[65] In response, counsel for the Lord Advocate submitted, under reference to Norris v Government of the United States of America [2008] 1 AC 920 and La Torre v HM Advocate 2008 JC 23, that it was necessary to focus upon the underlying conduct rather than upon the elements of the foreign offence. The underlying conduct, such as the use of the internet and the mail system, formed part of the means by which the conspiracy was carried out; and the conspiracy was undoubtedly an extradition offence.

[66] The argument advanced on behalf of the Lord Advocate, while correct as far as it goes, does not address the point made on behalf of Mr and Mrs H: namely, that they are accused, in the counts in question, of the commission of offences constituted by conduct which would not constitute an offence under the law of Scotland. Counts 34 to 82 set out substantive offences which are distinct from the charge of conspiracy in Count 1. It would be possible, if Mr and Mrs H were extradited in respect of Counts 34 to 82, for Mr and Mrs H to be convicted of those counts alone. The position in relation to paragraph 12(c) of Count 1 is less straightforward, since that paragraph forms part of a single count, and it is accepted that the remainder of the count satisfies the definition of an extradition offence. The count is however one of conspiracy to commit three distinct offences, set out in subparagraphs (a), (b) and (c) of paragraph 12; and if the conduct constituting one of those offences is not an extradition offence, then it must follow that conspiracy to commit that offence is not an extradition offence either. In those circumstances, parties were agreed that the court could competently discharge Mr and Mrs H in respect of paragraph 12(c) of Count 1, and hold the conduct of which they are accused in the remainder of Count 1 to constitute an extradition offence. In particular, counsel for the Lord Advocate, who in this context is acting on behalf of the Government of the United States, accepted that such an order would enable Mr and Mrs H to stand trial in respect of a conspiracy to commit the offences described in paragraph 12(a) and (b) of Count 1, and would result in their not standing trial in respect of a conspiracy to commit the offence described in paragraph 12(c).

[67] An additional argument was advanced on behalf of Mrs H that the offences charged in Counts 1, 2 to 17, and 18 to 33 were not extradition offences. The argument, put shortly, was that the sheriff had erred in holding that the conduct described in those counts would constitute an offence under Scots law if it occurred in Scotland: specifically, a contravention of section 4(2)(b) of the Misuse of Drugs Act 1971. A person who supplied chemicals to customers in the knowledge that the customers were using the chemicals for the production of controlled drugs was not thereby concerned in that production.

[68] That submission is in our opinion incorrect. If Mr and Mrs H had done in Scotland what they are alleged to have done in each of Counts 1 to 33, then they would have been supplying customers in Scotland with the chemicals in question, knowing that the customers intended to use the chemicals to produce methamphetamine, which is (and was at the material time) a controlled drug under the Misuse of Drugs Act 1971. They would in addition have been taking active steps, by mislabelling the chemicals, to prevent detection of the true purpose of the supplies, and would have advertised their willingness to do so ("discreet delivery") in order to solicit business from those involved in the illegal production of methamphetamine. In such circumstances, the suppliers of the chemicals would incur criminal responsibility. It is unnecessary for present purposes to determine whether the basis of that responsibility would be that the suppliers were, as principals, "concerned in the production of such a drug" within the meaning of section 4(2)(b) of the 1971 Act, or whether they would be liable for an offence under that provision as accessories, either on the basis of the doctrine of art and part, or on the basis of the statutory responsibility of those who aid and abet the commission of statutory offences, under section 293(2) of the Criminal Procedure (Scotland) Act 1995. Whichever approach were considered to be the most appropriate, the result would be that the suppliers would have committed an offence under the law of Scotland punishable with imprisonment for a term of 12 months or more.

[69] In the circumstances, and having regard to the terms of sections 103 and 104 of the 2003 Act as modified by the Multiple Offences Order, we conclude in relation to this ground of appeal that the court should allow the appeal against Sheriff McColl's decision in relation to paragraph 12(c) of Count 1 and Counts 34 to 82, and, in relation to those offences only, order the discharge of Mr and Mrs H and quash the orders for their extradition.

Article 8 of the Convention

[70] Under section 87 of the 2003 Act, the sheriff must decide whether the person's extradition would be compatible with the Convention rights within the meaning of the Human Rights Act 1998. If that question is decided in the negative, the sheriff must order the person's discharge. In the present case, Sheriff McColl decided that the extradition of Mr and Mrs H would be compatible with the Convention rights. Before this court, it is contended that the sheriff ought to have decided that question differently, and in any event that evidence which was not available at the extradition hearing would have resulted in the question being decided differently.

[71] Article 8 of the Convention provides:

1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

There is no doubt that the extradition of Mr and Mrs H from this country will interfere with their exercise of their right to respect for their private and family life.

[72] The approach to be taken to Article 8 in relation to extradition proceedings was explained by the Supreme Court, constituted as a bench of nine Justices, in Norris v Government of the United States of America (No 2) [2010] 2 AC 487. Lord Phillips, with whom all the members of the court agreed, set out at paragraph 9 the analytical framework:

"(i) In this case, as in most extradition cases, extradition of Mr Norris from this country will interfere with his exercise in this country of his right to respect for his private and family life. (ii) This interference will be in accordance with the law. (iii) The critical issue in this case is whether this interference is 'necessary in a democratic society...for the prevention of disorder or crime'. (iv) Resolving this issue involves a test of proportionality. The interference must fulfil a 'pressing social need'. It must also be proportionate to the 'legitimate aim' relied upon to justify the interference."

[73] In considering how the test of proportionality applies in an extradition case, Lord Phillips accepted, at paragraph 51, that there could be no absolute rule that any interference with Article 8 rights as a consequence of extradition would be proportionate, but added that the public interest in extradition nevertheless weighs very heavily indeed. In that regard, Lord Phillips set extradition in its context as an essential element of criminal procedure, at paragraphs 52 and 54:

"52. It is of critical importance in the prevention of disorder and crime that those reasonably suspected of crime are prosecuted and, if found guilty, duly sentenced. Extradition is part of the process for ensuring that this occurs, on a basis of international reciprocity. It is instructive to consider the approach of the Convention to dealing with criminals or suspected criminals in the domestic context. Article 5 includes in the exceptions to the right to liberty (i) the arrest of a suspect, (ii) his detention, where necessary, pending trial, and (iii) his detention while serving his sentence if convicted. Such detention will necessarily interfere drastically with family and private life. In theory a question of proportionality could arise under article 8(2). In practice it is only in the most exceptional circumstances that a defendant would consider even asserting his article 8 rights by way of challenge to remand in custody or imprisonment: see R (P) v Secretary of State of the Home Department [2001] 1 WLR 2002, para 79, for discussion of such circumstance. Normally it is treated as axiomatic that the interference with article 8 rights consequent upon detention is proportionate.

...

54. There is an analogy between the coercion involved in extradition and the coercion involved in remanding in custody a prisoner reasonably suspected of wishing to abscond. In either case the coercion is necessary to ensure that the suspect stands his trial. Each is likely to involve a serious interference with article 8 rights. The dislocation of family life that will frequently follow extradition will not necessarily be more significant, or even as significant, as the dislocation of family life of the defendant who is remanded in custody. It seems to me that, until recently, it has also been treated as axiomatic that the dislocation to family life that normally follows extradition as a matter of course is proportionate. This perhaps explains why we have been referred to no reported case, whether at Strasbourg or in this jurisdiction, where extradition has been refused because of the interference that it would cause to family life."

Lord Phillips accordingly concluded, at paragraph 56, that it was only if some quite exceptionally compelling feature, or combination of features, was present that interference with family life consequent upon extradition would be other than proportionate to the objective that extradition serves. In the absence of such features, a judge's consideration of whether extradition would be compatible with Convention rights, pursuant to section 87 of the 2003 Act, was likely to be relatively brief. If, however, the nature or the extent of the interference with Article 8 rights was exceptionally serious, careful consideration must be given to whether such interference was justified (paragraph 62).

[74] In relation to situations where such consideration is necessary, Lord Phillips addressed three subsidiary issues of principle. First, the gravity, or lack of gravity, of the offence may be material:

"The importance of giving effect to extradition arrangements will always be a significant factor, regardless of the details of the particular offence. Usually the nature of the offence will have no bearing on the extradition decision. If, however, the particular offence is at the bottom of the scale of gravity, this is capable of being one of a combination of features that may render extradition a disproportionate interference with human rights. Rejecting an extradition request may mean that a criminal never stands trial for his crime. The significance of this will depend upon the gravity of the offence." (paragraph 63).

Secondly, when considering the impact of extradition on family life, this question does not fall to be considered simply from the viewpoint of the extraditee:

"64...This issue was considered by the House of Lords in the immigration context in Beoku-Betts v Secretary of State for the Home Department [2009] AC 115. After considering the Strasbourg jurisprudence the House concluded that, when considering interference with article 8, the family unit had to be considered as a whole, and each family member had to be regarded as a victim. I consider that this is equally the position in the context of extradition.

65. Indeed, in trying to envisage a situation in which interference with article 8 might prevent extradition, I have concluded that the effect of extradition on innocent members of the extraditee's family might well be a particularly cogent consideration. If extradition for an offence of no great gravity were sought in relation to someone who had sole responsibility for an incapacitated family member, this combination of circumstances might well lead a judge to discharge the extraditee under section 87 of the 2003 Act."

Thirdly, it is not normally appropriate to consider whether a prosecution for the extradition offence might be brought in the requested jurisdiction:

"Extradition proceedings should not become the occasion for a debate about the most convenient forum for criminal proceedings. Rarely, if ever, on an issue of proportionality, could the possibility of bringing criminal proceedings in this jurisdiction be capable of tipping the scales against extradition in accordance with this country's treaty obligations. Unless the judge reaches the conclusion that the scales are finely balanced he should not enter into an inquiry as to the possibility of prosecution in this country." (paragraph 67).

[75] It is also appropriate to note some of the observations made by the other Justices in Norris's case. Lord Hope, at paragraph 91 of his judgment, observed that:

"...those aspects of the article 8 right which must necessarily be interfered with in every case where criminal proceedings are brought will carry very little, if any, weight: Massey v United Kingdom (Application No 14399/02) (unreported) given 8 April 2003. Separation by the person from his family life in this country and the distress and disruption that this causes, the extent of which is bound to vary widely from case to case, will be inevitable."

[76] Lord Brown, at paragraph 95 of his judgment, referred to paragraph 65 of Lord Phillips's judgment (quoted above) as instancing a rare case where the "defence" under Article 8 might succeed. He added:

"It is difficult to think of many others, particularly where, as here, the charges are plainly serious."

We note that the charges in that case were of obstructing justice by concealing or destroying evidence of price-fixing, and were said to be likely to attract a sentence of between 12 and 27 months imprisonment. The charges in the present case are considerably more serious. Lord Brown also observed, at paragraph 99:

"The reality is that, once effect is given to sections 82 and 91 of the Act, the very nature of extradition leaves precious little room for a 'defence' under section 87 in a 'domestic' case [i.e. a case concerned with rights enjoyed in this country]. To my mind section 87 is designed essentially to cater to the occasional 'foreign' case [i.e. a case concerned with respect for human rights in another country] where (principally although not exclusively) article 2 or 3 rights may be at stake."

[77] Lord Mance noted that both the public interest in extradition and the competing private interests vary according to the particular circumstances, and observed, at paragraph 109, that:

"...some of the circumstances which might influence a court to consider that extradition would unduly interfere with private or family life can hardly be described as 'exceptional' or 'striking and unusual'. Take a case of an offence of relatively low seriousness where the effect of an extradition order would be to sever a genuine and subsisting relationship between parent and baby, or between one elderly spouse and another who was entirely dependant upon the care performed by the former ."

Like Lord Phillips (at paragraph 84), Lord Mance referred to the decision of the European Court of Human Rights in King v United Kingdom, 26 January 2010, in which an order for the applicant's extradition to Australia, on a charge of conspiracy to import ecstasy into that country, was challenged as being in violation of Article 8. The applicant relied on the fact that he faced a possible life sentence, and had a wife, two young children and a mother in the United Kingdom. His mother's ill-health would not allow her to travel to Australia, and the distance between the United Kingdom and Australia would mean that the family would enjoy only limited contact if he were extradited, convicted and sentenced to a term of imprisonment there. The court rejected the application as manifestly ill-founded, and remarked that given the very serious charges against the applicant, and the interest the United Kingdom had in honouring its obligations to Australia, the applicant's extradition could not be said to be disproportionate to the legitimate aim served.

[78] Lord Collins and Lord Kerr, like the other Justices, emphasised that the public interest in the United Kingdom's implementation of extradition treaties was an extremely important factor in the assessment of proportionality. As Lord Kerr stated, at paragraphs 132 and 133:

"132...The centrepiece of the appellant's case is that the importance to be attached to the need for an effective system of extradition should only be assessed by reference to the particular circumstances of an individual case. Thus, the question becomes, would the decision not to extradite this person because of interference with his article 8 rights cause unacceptable damage to the public interest.

133 I do not accept this argument. The specific details of a particular case must obviously be taken into account but recognition of a wider dimension is also required. In other words, it is necessary to recognise that, at some level of abstraction or generality, the preservation and upholding of a comprehensive charter for extradition must be maintained. The question cannot be confined to an inquiry as to the damage that an individual case would do to the system of extradition. It must be approached on a broader plane."

(see also per Lord Collins at paragraphs 127 and 131).

[79] Although many authorities were cited in the course of the present proceedings, the only other case which it is necessary to consider in detail is the decision of the Supreme Court in ZH (Tanzania) v Secretary of State for the Home Department [2011] 2 WLR 148. That case concerned a deportation decision, the practical effect of which was that the children of the person to be deported, who were United Kingdom citizens, would also have to leave the UK. The discussion focused on the consideration which should be given by the decision-maker to the best interests of the children. In considering that matter, Baroness Hale, with whose reasoning the other Justices expressed agreement, noted that it is the practice of the European Court of Human Rights to refer to specific international texts in order to inform its interpretation of more general Convention provisions, in accordance with Article 31(3)(c) of the Vienna Convention on the Law of Treaties. In particular, the Strasbourg court had referred to the United Nations Convention on the Rights of the Child ("UNCRC") in order to inform its interpretation of Article 8, for example in the Grand Chamber judgment in Neulinger and Shuruk v Switzerland, 6 July 2010, which concerned international child abduction. Baroness Hale also noted that the spirit, if not the precise language, of the UNCRC had also been translated into our national law in a wide range of contexts, including the law relating to immigration and asylum. Since there was in that context a statutory duty to have regard to the need to safeguard and promote the welfare of children when taking decisions about deportation or removal, it followed that any decision taken without regard to that need would not be "in accordance with the law" for the purpose of Article 8(2). Further, the Strasbourg court would expect national authorities to apply Article 3(1) of the UNCRC, which requires that "in all actions concerning children...the best interests of the child shall be a primary consideration". The immigration authorities were therefore obliged to treat the best interests of the children as a primary consideration. This did not mean that identifying their best interests would lead inexorably to a decision in conformity with those interests. Provided that the decision-maker did not treat any other consideration as inherently more significant than the best interests of the children, it could conclude that the strength of the other considerations outweighed them. The important thing, therefore, was to consider those best interests first.

[80] It is important to note that ZH was concerned not with extradition but with deportation. Extradition is itself the subject of an extensive body of international law. The emphasis in the more recent international instruments, such as the EU Council Framework Decision of 13 June 2002 on the European Arrest Warrant, is upon the obligation of the requested state to surrender the requested person promptly so that the administration of justice can then proceed without delay in the requesting state. The intention that extradition should operate speedily and simply is reflected in the timetables laid down in the 2003 Act. Since there is a strong public interest in the comprehensive application of extradition treaties, and it is inherent in extradition that it is almost certain to involve an interference with family life, it follows that the approach adopted to Article 8 rights in extradition cases must be radically different from that adopted in deportation or expulsion cases. The approach of the Strasbourg court was stated in King v United Kingdom in the following terms:

"Mindful of the importance of extradition arrangements between States in the fight against crime (and in particular crime with an international or cross-border dimension), the Court considers that it will only be in exceptional circumstances that an applicant's private or family life in a Contracting State will outweigh the legitimate aim pursued by his or her extradition."

Since the factors which are generally of overriding importance in extradition cases are not present in deportation or expulsion cases, it follows that decisions on Article 8 rights in cases of the latter kind are of no direct relevance in the context of extradition.

[81] The distinction between extradition and deportation was also fundamental to the reasoning in Norris. In that case, the argument on behalf of the appellant was based on authorities concerned with deportation, and the court repeatedly emphasised that the two situations were not comparable. Lord Phillips, for example, said at paragraph 15:

"The issue of proportionality involves weighing the interference with those rights against the relevant public interest. The public interest in extraditing a person to be tried for an alleged crime is of a different order from the public interest in deporting or removing from this country an alien who has been convicted of a crime and who has served his sentence for it, or whose presence here is for some other reason not acceptable."

The point was reiterated by Lord Phillips at paragraph 51:

"It is certainly not right to equate extradition with expulsion or deportation in this context."

Similarly, at paragraphs 59 and 60, Lord Phillips rejected submissions made on behalf of an intervener that the judge should first consider the effect of the proposed extradition on the Article 8 rights before going on to consider whether such interference could be justified. Lord Phillips remarked that those submissions did not recognise any difference between extradition and expulsion or deportation. The distinction between these situations was also emphasised by Lord Brown at paragraph 96 and by Lord Mance at paragraph 105. It is also necessary to bear in mind that ZH was decided less than a year after Norris; that four of the five Justices who sat in ZH had also sat in Norris; and that Norris was neither referred to in the judgments nor cited in argument. Against that background, we are not persuaded that anything said in ZH was intended to modify or depart from what had been said in Norris, or indeed was said with extradition in mind. At the same time, in a case where it is necessary to determine whether the extradition of a person with dependent children is justified under Article 8(2) of the Convention, the best interests of the children are naturally a primary consideration. As appears from King v United Kingdom, however, that consideration will be outweighed, in all but exceptional circumstances, by the public interest in the application of extradition arrangements.

[82] Finally, in relation to the authorities, it is relevant to note the admissibility decision of the European Court of Human Rights in Kleuver v Norway, 30 April 2002, which concerned a convicted mother who was separated from her new-born baby. The court rejected her complaint of a violation of Article 8(2) as being manifestly ill-founded, remarking that it was difficult to discern a common European standard in this area. The court also observed that she had been aware that she was pregnant when she embarked upon the criminal activities that led to her detention, and that her detention in a closed prison with particular security arrangements had been made necessary by her own conduct, including the seriousness of the drugs offences of which she was convicted. Mutatis mutandis, those observations would be equally applicable to Mrs H in the event of her conviction.

[83] It is necessary next to consider the facts of the present case. We have set out certain of the relevant facts in our account of the background circumstances. The sheriff also made other relevant findings on the basis of the evidence before her, which included oral evidence given by Mrs Weldon, who is a social worker with Falkirk District Council; Mrs P, who is the mother of Miss S; Mrs T and Mrs W, who are friends of Mr H and Miss S; Dr Schwannauer, who is a consultant clinical psychologist; and Mr Paterson, who is the Resource Team Manager, Grangemouth Social Services.

[84] In relation to Dr Schwannauer's evidence, the sheriff stated (at paragraph 50 of her judgment):

"I was referred to the reports of Dr Schwannauer which had been produced on behalf of Miss [S] in which it was noted in the conclusions of the reports that the children [B] and [C] were assessed at low risk of developing significant emotional and behavioural difficulties and that [B] 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."

It should be added that Dr Schwannauer also concluded that child A was assessed as being at high risk of developing significant emotional and behavioural difficulties. Her relative vulnerability to normal life events, such as house moves and school changes, was attributed to difficulties in her early childhood in connection with the circumstances of her mother's separation from her step-father JW. Dr Schwannauer also noted the views expressed by children A and B about the possible extradition of their parents. As one would expect, they were worried about potentially losing their parents and not being able to see them.

[85] In relation to the care of the children, the sheriff found that while Mr H and Miss S were remanded in custody between January and August 2007, their four children were cared for by Miss S's mother, Mrs P. She had had regular contact with the children prior to the remand. Her accommodation was inadequate to house everyone. She regularly took the children to have contact with Miss S. She found it a strain at times to look after them all. The children were at times upset by their parents' absence and at times behaved badly, particularly child A. Other family members and friends of the family had individual children to stay with them from time to time. In August 2007 Mrs P was visited by Mrs Weldon. The children were observed to be happy in Mrs P's care but the cramped accommodation was a major problem. The social work department proposed to look into finding larger accommodation, finding help in caring for the (then) youngest child, child D, and providing financial assistance. After Mr H and Miss S were released and resumed care of the children, Mrs P had contact with them only on one occasion, in September 2007. Mrs Weldon received a telephone call advising that Mrs P was very upset because she had not had any contact with any of the children since Mr H's and Miss S's release from prison. After they were released from custody they arranged for Miss S's own two children, children A and B, to have their previous surnames changed to H.

[86] In relation to these matters, the sheriff stated:

"[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 [S's] explanation of how contact between her mother and the children and herself came to cease after her release from remand was incredible....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 [children A and B] to [H].

[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. .....

[70] If the respondents are extradited and if Mrs [P] 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 [P] were said by her to be no longer in a position to assist. I accepted the evidence of [Mrs T] who had assisted with [child A] over the summer holidays that the situation in her own family would prevent her offering any further assistance. Another neighbour, [Mrs W], 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 Margaret 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.

....

[76]....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 [P] 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".

The arrangements in question were described by the sheriff at paragraph 50 of her judgment:

"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 Sentenced 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 [H] and Miss [S] 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."

[87] There have been material developments since the case was before the sheriff; and this court must reach its own view, on the up-to-date facts, as to whether Mr and Mrs H's extradition would be compatible with their Article 8 rights. First and most importantly, two further children have been born. The fact that Mrs H has borne two children and undergone a third pregnancy within such a short period, despite medical advice about the risks to her health, may lead to a suspicion that she and her husband saw this as a way of strengthening their arguments against extradition. The conception of children at a time when their parents were at risk of extradition to the United States and possible detention there might in any event be regarded as irresponsible. None of that is however the responsibility of the children themselves, and it cannot be held against them in the court's assessment of the issues arising under Article 8.

[88] Further evidence in relation to the children was given before this court by Mr H and Mrs Weldon. Mr H's evidence was of little if any value. He was a truculent and evasive witness, and at times manifestly untruthful: for example, as we have explained, in his account of his examination by Dr Götz. He was at pains to depict his wife and himself as lacking any relatives or friends who might be able to look after the children in the event that the extradition orders were upheld, and to depict his wife as being unable to cope with the children without his support. It was apparent from his evidence that both he and his wife belong to large families, but he maintained that there was no-one who could look after the children. His mother was elderly and in poor health. He thought that he had nine brothers. He initially said that they were in Canada, then referred to two who lived in England. He also had two sisters. Mrs H was estranged from her father. Her mother, Mrs P, was said to be an alcoholic who had been in and out of mental hospitals. Mrs H had a sister and two brothers, but her sister was a child, and she had no contact with her brothers. Mr and Mrs H's friends were not in a position to look after the children. Children A and B had no contact with their natural fathers. On the basis of this state of affairs, Mr H maintained that the extradition of his wife and himself would inevitably result in the children being separated and adopted. The local authority could not place the children together with foster parents. They had told Mr H that they would be looking at the adoption of the younger children. He had discussed this with the local social work department at various meetings. They had an adoption team ready to find adoption places for the younger children. It would be impossible to maintain contact with the children from an American prison. International telephone calls were not allowed. He could not afford to pay for visits by the children to the United States. Social services had discussed with him the possibility of their arranging such visits, but it would not be acceptable to him for the children to undertake such a long journey for a short visit. When, in cross-examination, it was suggested to Mr H that his recent discussions with the social work department had concerned child protection matters, he responded that the children had been placed on the child protection register because of Judge Bryant's judgment, but that a sheriff had found that grounds of referral to a children's hearing had not been established. He did not accept the suggestion that fostering rather than adoption had been mentioned by social workers: they had said that adoption was likely, and Mrs Weldon had been present when that was said. She had said that adoption was being considered.

[89] Mrs Weldon's evidence was somewhat different. She confirmed that the social work department had at one stage sought a supervision requirement in respect of the children in light of Judge Bryant's judgment on the ground that they were at risk of sexual abuse by Mr H. The sheriff had found that there was insufficient evidence to establish the grounds of referral. The children had however been on the child protection register since July 2009, as a result of separate allegations of sexual abuse which had been made against Mr H in June 2009 by the nine year old daughter of a neighbour. The matter had been reported to the procurator fiscal. Mrs Weldon had first been allocated responsibility for the children when they were living with Mrs P. She had no concerns about the care they received from Mrs P, and no concerns had been raised by Mr and Mrs H until two years later. The department had investigated the concerns then expressed by Mr and Mrs H, and had concluded that they were unfounded. Mrs P had been assisted by Mrs H's extended family, in particular by her aunts and by her step-sister. Since their release from custody in August 2007, Mr and Mrs H had been asked repeatedly to identify alternative carers for the children in the event of their being extradited. They had said that they were not prepared to identify anyone. They had not said that there was no possible carer among their friends and relatives. If they did not suggest anyone, the social work department would have to decide how to proceed. The last resort was the local authority's duty to accommodate the children. That would involve a family foster placement: there was no question of adoption. There had never been any discussion of adoption by the social workers or the legal department. The possibility of foster placements would only arise if no alternative carer were nominated by Mr or Mrs H. It was difficult to say what any fostering arrangements might be, as new foster carers became available from time to time. Some people were willing to foster large numbers of children. She could not say how likely it was that all six children would be fostered by one family: it would depend on the resources available at the time. In any event, the department would ensure that there was contact between the siblings. If Mr H were to be extradited but Mrs H was not, the department would have absolutely no concern if Mrs H had the care of the children. She would be offered support and assistance.

[90] In cross-examination, Mrs Weldon said that she had never dealt with a case where both parents were extradited. A colleague had however dealt with a case where both parents had died, leaving four children. Those children had been placed with one carer. Some foster carers had up to six children placed with them. The length of foster care would depend on the circumstances; it could last for years. It might be necessary to separate the children, if there was no alternative to fostering and no foster carer able to accommodate six children. Contact with the parents could be maintained, for example by letters and telephone calls.

[91] Mrs Weldon was a careful witness who conveyed a strong impression of professionalism. We accept her evidence.

[92] Reference was also made in the course of the evidence to a number of reports. One, instructed on behalf of Mr H, was a report prepared in May 2009 by Dr Jack Boyle, a chartered psychiatrist. It concerned the potential impact upon the children of separation from their parents and was based upon documentary material, including the reports on children A, B, C and D which had been prepared by Dr Schwannauer on the basis of meetings with them during 2007 for the purpose of the hearing before the sheriff. Dr Boyle concluded:

"1. Separation through incarceration from parents, particularly the mother, is a major stressor for children.

2. The older [H] children all show evidence of psychological stress as a result of the separation, but have also shown emotional resilience.

3. The attachment bonds of the children particularly with their mother, are strong resulting in normal emotional development. This will give them resilience during any separation period and offer hope for the relationship being re-established once their parents, in particular their mother is released.

4. The long-term impact of the incarceration will depend on factors such as the length of the mother's sentence, its uncertainty, the way that the relationship with their father develops, and in particular the nature of the alternative placement. Ideally, this would be with their grandparents and with all children under the same roof. Less ideally, the children could reside with foster carers who would be sensitive of the need for them to maintain connections with their parents.

5. Nevertheless, despite the above mentioned ameliorating factors, the children will be at risk of a range of problems, particularly of an internalising nature, such as anxiety, depression and guilt. They are also likely to be at risk of poorer educational attainment and at a smaller risk of acting out disorders."

These conclusions are broadly consistent with those of Dr Schwannauer. In relation to the second paragraph, it should be noted that the signs of stress were evident as at 2007, and that the separation referred to was also in 2007. In relation to paragraph 5, the conclusion is based on research of a general nature into the effects upon children of the incarceration of their parents. As Dr Boyle acknowledged, the research evidence is difficult to interpret, as families in which the parents are incarcerated may well be dysfunctional prior to the incarceration. Nevertheless, Dr Boyle considered that the evidence supported a conclusion that:

"6....some children from functional families who lose their parents to imprisonment will suffer adverse consequences compared to a control group."

[93] In addition to the effect of extradition upon family relationships, certain other matters also require to be considered in relation to Article 8. First, Mr H claimed to have a number of medical problems which might present a difficulty if he were to be incarcerated in the United States. These included high blood pressure, high cholesterol, liver disease, a sleep behavioural disorder and sleep apnoea. He claimed that, if he were not prescribed psychotropic drugs, he would jump out of windows or behave violently No medical evidence was produced in support of any of these claims. A report by a psychologist consulted by Mr H, Dr Idzikowski, concluded that Mr H had sleep apnoea and REM behavioural disorder. The report also noted that malingering was a possibility. Dr Götz's evidence, which we accept, was that Mr H did not require to be prescribed any psychotropic drugs. In the event, no reliance was placed upon these matters in the submissions advanced on Mr H's behalf. There is nothing in this evidence which could justify Mr H's discharge.

[94] In relation to Mrs H, reliance was placed upon the mental and medical problems which had formed the basis of her applications to be discharged under section 91 of the 2003 Act. The mental problems are described in the Opinions of the court dated 9 December 2009 and 7 December 2010. As more fully explained there, Mrs H exhibits symptoms of anxiety and depression in reaction to the current proceedings. They are of a kind which are not uncommon in the general population, and are even more common in forensic populations. They are unlikely to resolve until the legal processes have been concluded. They are not of a nature which requires hospital treatment, but they may render Mrs H a suicide risk and require appropriate precautions to be taken. She is coping with her normal domestic responsibilities, including the care of her children. It is not in dispute that appropriate measures can be taken in the United States, and en route to the United States, to protect her safety, and that appropriate facilities are available there, if necessary, for the assessment and treatment of her mental health.

[95] Mrs H's medical problem is described in the Opinion dated 7 December 2010. In summary, she has a uterine lesion, known as a hydatidiform mole, which required to be monitored for a time after the birth of child F. If tests made 4 to 6 weeks following the birth were satisfactory, monitoring could then be discontinued unless and until any further pregnancy occurred (Mrs H having been strongly advised before the conception of child F that she should not risk a further pregnancy). Some months have now passed since child F was born, and the court has not been informed of any unsatisfactory test results. The provision for monitoring and treatment of this condition in the United States has in any event been found to be satisfactory.

[96] Considering the facts of the present case in the light particularly of Norris, it is important to note, in the first place, that the extradition requests concern crime of an international character. As was noted in King v United Kingdom, the public interest in extradition arrangements is always important, but is of particular importance in relation to crime with an international or cross-border dimension. Secondly, the offences to which the extradition requests relate are of an extremely serious nature. To recap, Mr and Mrs H are alleged to have sold chemicals to customers in the United States, knowing that they would be used to manufacture methamphetamine, a controlled drug, and deliberately mislabelling the chemicals in order to avoid detection. The highly dangerous nature of methamphetamine is reflected in the fact that it has since 2007 been classified in the United Kingdom as a Class A drug. The offences are said to have taken place over a period of more than two years. The conduct is said to have persisted even after the execution of the search warrants in 2005 and 2006 and an undertaking to desist. The quantities of chemicals supplied were substantial: approximately 296 kg of red phosphorous and 44 kg of iodine are said to have been sold to customers in the United States. At least 70 methamphetamine laboratories are said to have been supplied. There appears to be evidence that approximately 1330lb of methamphetamine could have been produced, with a street value of $13.3m. Mr and Mrs H are said to have received approximately $132,922. These offences cannot be described, using the language employed in Norris to describe circumstances where extradition might conceivably be disproportionate, as being "at the bottom of the scale of gravity" (per Lord Phillips at paragraph 63), or "of no great gravity" (per Lord Phillips at paragraph 65), or "of relatively low seriousness" (per Lord Mance at paragraph 109): far from it. Thirdly, the court has to proceed on the basis that Mr and Mrs H are equally accused of having committed these offences. It was not suggested on behalf of the appellants that there was any basis upon which the court could properly treat one of them as having been involved to any lesser extent than the other.

[97] The effect of extradition on the children is difficult to predict, in so far as it depends on the outcome of the proceedings in the United States. This court cannot predict what that outcome may be, or whether, in the event that Mr or Mrs H were to be convicted and sentenced to a term of imprisonment, either or both of them might be transferred to serve part of that sentence in Scotland pursuant to international arrangements. It is also difficult to predict what arrangements may be made for the care of the children, partly as a result of the refusal of Mr and Mrs H to co-operate in identifying potential carers. The court must proceed on the basis that there is a risk that the children may require to be taken into care, and that there is a risk, in that eventuality, that they will require to be separated. At the same time, it is necessary also to bear in mind that, even if that eventuality were to come to pass, social services would ensure that contact continued between the siblings, and between them and their parents.

[98] In considering the potential impact of extradition upon the children, it is necessary to consider them as individuals, with different ages and different susceptibilities. On the evidence before the court, child A appears to be relatively susceptible to emotional disturbance, and children E and F, in particular, are at an age where their bond with their mother will be especially strong. In reality, however, the extradition of Mrs H is likely to have damaging consequences for all her children. Whether the same would be true of the extradition of Mr H is less clear. The reports before the court suggest that the children may have a stronger bond with Mrs H, as one might expect, given that she is the natural parent of the older children, and the younger children are likely to have a particularly close relationship with their mother. It is also necessary to bear in mind that Mr H does not appear to have shown a continuing commitment to his three older children; and the court cannot overlook the fact that allegations of sexually abusing one of those children have been held, by the High Court in England, to be proved. Equally, the court cannot ignore the fact that his contact with children A, B, and C is in breach of an injunction granted by the High Court, or the fact that all the children are on the child protection register as a consequence of a much more recent complaint of child sexual abuse.

[99] In the case of Mr H, it appears to us to be plain that his extradition can be justified under Article 8(2). He is charged with very serious offences, and his case does not come close to meriting his discharge under section 87 of the 2003 Act.

[100] The case of Mrs H is more difficult, particularly in so far as her extradition may have serious consequences for her children. We have consequently

given her appeal the most anxious consideration, and have carefully examined every aspect of her case. As we have explained, we are not in a position to draw any distinction between Mr and Mrs H in relation to the charges, or in relation to their involvement in the matters giving rise to the charges; nor was any suggestion made on her behalf that we could, or should, draw any such distinction. Nor can we proceed on the basis, suggested by the amicus curiae, that the public interest would be sufficiently served by the extradition of Mr H, and that Mrs H could then be discharged. The answer to the question whether the interference with Mrs H's right to respect for her family life is justified depends upon the public interest in her extradition, which in turn depends essentially upon the importance of giving effect to extradition arrangements both generally and in her particular case, in the light of the gravity of the offences which she is alleged to have committed. How the same question was answered in the case of her husband does not provide the answer to the question in her case. Nor can we proceed on a basis which would discriminate unfairly against Mr H. We must consider Mrs H's case on the basis that she, equally with her husband, is charged with extremely serious drugs offences. We also have to consider the seriously damaging consequences for the public interest in the prevention of crime if an accused person with family dependencies such as those which bind Mrs H and her children was thereby rendered immune from being extradited to be tried for very serious wrongdoing. It is by no means uncommon for extradition to be resisted on the basis that young children are dependent upon the person sought to be extradited. If Mrs H were alleged to have committed analogous offences in the United Kingdom, she would undoubtedly be prosecuted notwithstanding the possibility that, if convicted, she might be separated from her children for a prolonged period. It is a sad, but unavoidable, fact of life that the consequences of criminal proceedings often affect most severely the family of the wrongdoer rather than the wrongdoer herself.

[101] It has to be recognised in the present case that the family life of Mrs H and the children will inevitably be disrupted by her extradition, and that the disruption may be severe. The extradition of both parents will make it worse. Nevertheless, the court's decision must be based upon the law as laid down in the case of Norris. Applying the clear and authoritative guidance given in that case, and having regard to the seriousness of the offences charged, we have come to the conclusion that neither of the appellants is entitled to be discharged under section 87 of the 2003 Act. That conclusion is not affected by the evidence concerning Mrs H's anxiety and her medical condition. Given that clear conclusion, it is unnecessary, following Norris, to consider the possibility of a prosecution in this country.

[102] We have reached that conclusion without the court's being separately addressed on behalf of the children. The court was not requested to order separate representation, and we see no need for such representation in the circumstances of this case. We have taken account of the views of the children, as far are those are known;

and it is unlikely that anything material could be said on behalf of the children which has not been said on behalf of Mr and Mrs H. We also note that, while the Strasbourg court will take account of the views of children where known, there is no practice at Strasbourg of organising separate representation of children in cases affecting them.

Sections 93 and 95 of the 2003 Act

[103] It is necessary finally to consider Mr H's appeal under section 108 of the 2003 Act against the extradition order made by the Scottish Ministers. Although the written ground of appeal raises issues relating to the death penalty, the appeal as argued was based solely on a submission that the ministers acted in breach of sections 93 and 95 of the Act by ordering Mr H's extradition to the United States in the absence of specialty arrangements with that country.

[104] Section 93 of the 2003 Act provides:

"(1) This section applies if the appropriate judge sends a case to the Secretary of State under this Part for his decision whether a person is to be extradited.

(2) The Secretary of State must decide whether he is prohibited from ordering the person's extradition under any of these sections -

.....

(b) section 95 (speciality);

.....

(3) If the Secretary of State decides any of the questions in subsection (2) in the affirmative he must order the person's discharge".

Section 95 provides:

"(1) The Secretary of State must not order a person's extradition to a category 2 territory if there are no speciality arrangements with the category 2 territory.

......

(3) There are speciality arrangements with a category 2 territory if (and only if) under the law of that territory or arrangements made between it and the United Kingdom a person who is extradited to the territory from the United Kingdom may be dealt with in the territory for an offence committed before his extradition only if -

(a) the offence is one falling within subsection (4), or

(b) he is first given an opportunity to leave the territory.

(4) The offences are -

(a) the offence in respect of which the person is extradited;

(b) an extradition offence disclosed by the same facts as that offence, other than one in respect of which a sentence of death could be imposed;

(c) an extradition offence in respect of which the Secretary of State consents to the person being dealt with;

(d) an offence in respect of which the person waives the right that he would have (but for this paragraph) not to be dealt with for the offence".

[105] On behalf of Mr H, it was submitted that since he had admitted supplying the chemicals in question to customers all over the United States, and Count 1 in the indictment contained details of such supplies, it was apparent that he was at risk of being prosecuted in respect of offences said to have occurred outside Arizona. In particular, and as explained in an opinion dated 23 and 28 February 2009 obtained from Professor Cherif Bassiouni, it was possible for specific overt acts committed in other federal districts in furtherance of the same conspiracy to become the subject of new indictments, provided that the same underlying facts supporting the original conspiracy charge were contained in the subsequent indictments. According to Professor Bassiouni, although the United Kingdom had specialty arrangements with the United States, as set out in Article 18 of the Extradition Treaty between those countries of March 31, 2003, which on their face met the requirements of section 95 of the 2003 Act, it was nevertheless possible for the United States to take the position that additional criminal charges arising in federal districts other than Arizona, and stemming from the same criminal transaction, did not violate the rule of specialty.

[106] In response, counsel for the Scottish Ministers submitted, as a preliminary matter, that no regard should be had to Professor Bassiouni's opinion, since the material which it contained had been available when the case was being considered by the Scottish Ministers (cf. Szombathely City Court v Fenyvesi [2009] 4 All ER 324; Engler v Lord Advocate 2010 JC 235). The argument advanced by Professor Bassiouni was rehearsed in Jones & Doobay, Extradition and Mutual Assistance, 3^rd Edition, 2005, at paragraphs 2-040ff. It had been considered, and rejected, by the English courts: see, in particular, Welsh and Thrasher v Secretary of State for the Home Department [2007] 1 WLR 1281 and Bermingham v Government of the United States of America [2007] QB 727.

[107] We find it unnecessary to determine that preliminary question, as there appears to us to be a complete answer to this appeal in the second point which was made by counsel for the Scottish Ministers. Since the ministers made their decision, the Government of the United States, through its Embassy in London, has provided a further assurance, dated 26 May 2009. That assurance, after referring to Article 18 of the 2003 Treaty and confirming that the United States will fully comply with its obligations under that provision, in addition states:

"The United States further notes that, in this case, the Prosecution has advised and the United States in turn confirms, that [Mr H], upon extradition to the United States will not be prosecuted for any charges other than those set forth in the indictment filed in the District of Arizona on September 27, 2006 without the consent of the Government of the United Kingdom".

That assurance appears to us to put it beyond any doubt that the rule of specialty will be respected in this case. In those circumstances, even if regard can be had to Professor Bassiouni's opinion, the information now available, including that contained in the assurance now given by the Government of the United States, would not have resulted in the Scottish Ministers deciding the case differently. The appeal against their decision must therefore be refused.

Conclusion

[108] For the foregoing reasons, the court will allow the appeal under section 103 of the 2003 Act in relation to paragraph 12(c) of Count 1 and Counts 34 to 82 in the indictment; in relation to those offences only, order the discharge of Mr and Mrs H and quash the orders for their extradition; and otherwise refuse the appeals.