BH & Anor v HM Advocate [2011] ScotHC HCJAC_77 (29 July 2011)

BH & Anor v HM Advocate [2011] ScotHC HCJAC_77 (29 July 2011)

The court held that although there was a technical failure to provide a copy of the arrest warrant as soon as practicable, no prejudice was suffered and discharge was discretionary; refusal to discharge was reasonable. The transmission of evidence to US authorities was lawful and justified under UK law and did not violate Convention rights. The sheriff's reference to the prior English judgment was for credibility assessment, not as proof of facts. The offences charged were extradition offences under UK law. Extradition would not be disproportionate under Article 8 ECHR given the seriousness of the offences and the public interest. The Scottish Ministers acted lawfully in making the...

Citation
[2011] ScotHC HCJAC_77
Parties
First Appellant: B H; Second Appellant: K A S or H; First Respondent: The Lord Advocate; Second Respondent: The Scottish Ministers
Jurisdiction
Scotland
Judgment Date
29 July 2011
Procedural Posture
Extradition Appeal / Appellate Judgment
Outcome
Appeals refused; extradition orders affirmed.
Legal Topics
Extradition Under Extradition Act 2003, Article 8 ECHR (right to Respect for Private and Family Life), Article 5 ECHR (right to Liberty and Security), Article 1 Protocol 1 ECHR (protection of Property), Procedural Fairness in Extradition, Transmission of Evidence to Foreign Authorities, Specialty Arrangements in Extradition
Criminal Law Extradition Law Human Rights Law Extradition Under Extradition Act 2003 Article 8 ECHR (right to Respect for Private and Family Life) Article 5 ECHR (right to Liberty and Security) Article 1 Protocol 1 ECHR (protection of Property) Procedural Fairness in Extradition +2 more

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Parties

B H

First Appellant

K A S or H

Second Appellant

The Lord Advocate

First Respondent

The Scottish Ministers

Second Respondent

Procedural Posture

Extradition Appeal / Appellate Judgment

Legal Issues

  1. 1 Whether failure to provide a copy of the arrest warrant under section 72(2) Extradition Act 2003 required discharge of the appellant
  2. 2 Whether extradition would be incompatible with Convention rights under Articles 5 and 8 ECHR and Article 1 Protocol 1 due to alleged unlawful obtaining/transmission of evidence
  3. 3 Whether the sheriff erred in law by relying on findings from a prior English family court judgment

Ratio Decidendi

The court held that although there was a technical failure to provide a copy of the arrest warrant as soon as practicable, no prejudice was suffered and discharge was discretionary; refusal to discharge was reasonable. The transmission of evidence to US authorities was lawful and justified under UK law and did not violate Convention rights. The sheriff's reference to the prior English judgment was for credibility assessment, not as proof of facts. The offences charged were extradition offences under UK law. Extradition would not be disproportionate under Article 8 ECHR given the seriousness of the offences and the public interest. The Scottish Ministers acted lawfully in making the...

Court Disposition

Appeals refused; extradition orders affirmed.

Orders

  • Refusal of discharge under section 72(5) Extradition Act 2003
  • Refusal of discharge under section 87 Extradition Act 2003 on Convention grounds