Extradition of drug-smuggling mother would be a ‘disproportionate interference’ with sick child’s right to a family life, sheriff rules



A mother who was caught trying to smuggle cannabis from the Netherlands into Germany in what a sheriff described as a “big mistake which has come back to haunt her” will not be extradited to serve a prison sentence.

The sheriff discharged a European Arrest Warrant which was issued by the German authorities in respect of the Gambian national, who fled Germany and was now living in Scotland, after ruling that extradition would be a “disproportionate interference” with the human rights of one of her children, who was suffering from leukaemia.

Sheriff Tom Welsh QC heard that the woman, “M”, while travelling between Amsterdam and Cologne in August 2005, agreed to courier 2.9kg of herbal cannabis across the international border for €1000.

She was caught by frontier guards at the border post at Kaldenkirchen, who searched her taxi and found the contraband.

After being detained in custody and confessing her guilt to the police, M was sentenced as a first offender to 40 months custody for the offence of drug trafficking.

At the point of sentence, aged 28, she was married with two children, aged five years and 13 months.

In early 2006, having failed to appear after being summoned to prison, a domestic German arrest warrant was issued but she could not be traced, and an EAW was then issued by the German authorities in August 2006.

Edinburgh Sheriff Court was told that M had fled with her children from Germany and having come to the UK via France, she had been living in Scotland for two years.

Now aged 38, she and her husband have five children, the second youngest of whom, J, aged six, was diagnosed with acute lymphoblastic leukaemia in May 2014, a serious illness for which he was presently in treatment.

M was arrested on the EAW in April 2015 and the German Government sought her extradition to serve her 40-month sentence.

However, she opposed extradition in terms of section 21 of the Extradition Act 2003 on the basis that, if allowed, it would constitute a disproportionate interference with her right and the right of her husband and children to a family life under article 8 of the European Convention on Human Rights (ECHR).

Sheriff Welsh found that J’s treatment was “complicated” and involved taking “multiple chemotherapy drugs, steroids, anti-sickness and antibiotic drugs”.

Because of the cancer he was suffering from and the aggressive treatment administered, an “intense physical dependency and emotional bond” had developed between J and M, and any severance of this relationship would have a “profound and negative effect on the child”, the sheriff said.

He also found that J required constant vigilant monitoring and support during his treatment, which was provided by M.

J’s father, P, had been assessed by hospital social work as unable to provide and incapable of providing the high level of support and care needed by J and if M were absent, J would very likely be taken into local authority care as no other family or kinship support was available.

The sheriff ruled that this would amount to a “very significant interference” with J’s article 8 rights to respect for his family life.

In a written judgment, Sheriff Welsh said: “I think the sudden removal of a key figure in the delivery and maintenance of his treatment who is described as ‘essential’ and ‘irreplaceable’ would constitute in my judgment a radical and serious alteration of J’s treatment plan by the removal of a significant care provider and emotional support to whom he is deeply bonded.”

He added that while M’s criminality was “not insignificant”, on the scale of gravity it was “nowhere near the level of seriousness” reached by the professional and highly profitable industrial drug trafficking” considered by the UK Supreme Court in the 2010 case of Norris v Government of the United States of America and the 2012 case of HH v Deputy Prosecutor of the Italian Republic, Genoa.

He explained: “M’s involvement in drug trafficking was, in my judgment, at the amateur end of the scale. She was not a prime mover or organiser. She was a foot soldier or ‘mule’. It was drug smuggling on one occasion for 1000 Euros.”

Sheriff Welsh concluded: “J’s right to a family life with M cannot be considered in a vacuum. I must take account of the context of his actual Sitz im Lebem which is, at this time, wholly and inextricably bound up with his serious life threatening illness; his age; his lack of any true comprehension of his condition, its management or possible consequences; his unique needs; and the significant role M plays in supporting him during the currency of his grave illness. Because of these factors M is, at this time, core to, if not entirely, J’s family life.

“On balance I consider the evidence led and the facts established reveal one of those genuinely rare and exceptional cases where M’s extradition to Germany would very likely, if ordered, have such a severe impact on J as to constitute an unjustified and disproportionate interference with J and M’s right to a family life together and would accordingly be incompatible with their article 8 rights within the meaning of the Human Rights Act 1998.  For that reason I answered the question in article 21(2) of the 2003 Act in the negative and discharged the EAW.”

He added: “By way of postscript I want to emphasise this case is not intended to represent any change in the Zeitgeist that operates in the extradition court. The case was decided in application of the principles and approach set down in Norris, HH and H v Lord Advocate. It is not intended to depart from them. All children get sick from time to time. Extraditees with ill children and those representing them should be mindful of the rare and exceptional circumstances uniquely demonstrated by this case.”

Photo credit: ”Royal Arms tablet, Edinburgh Sheriff Court” by Kim Traynor - Own work. Licensed under CC BY-SA 3.0 via Commons.