No oppression or ECHR breach in wife’s US extradition
A woman facing extradition to the United States on charges of fraud from her employers has failed to establish that to extradite her would be oppressive due to the passage of time, or contrary to her ECHR article 3 right not to be subjected to inhuman or degrading treatment, or contrary to her article 6(2) right to the presumption of innocence due to matters that would be taken into account if sentence were to be passed, the Criminal Appeal Court has held.
Sarah Morrow was appealing against the sheriff’s decision that there was no bar to her extradition, and the Scottish ministers’ decision to order extradition following that ruling.
She was accused of defrauding her former employer of $165,239.25, through a scheme devised while she was employed as a financial controller between July and December 2017. She became engaged to a Scottish resident in March 2017, was granted a visa in November and moved to Scotland in December. She married in 2018 and became stepmother to her husband’s children.
The indictment contained 10 specific allegations the prosecution intended to prove, involving a total of $8,357. It was argued that this was the figure the sheriff should have taken into account in considering oppression, as against the ties the appellant had formed with her husband, stepchildren and friends.
As regards article 3, evidence had been led before the sheriff of a general problem of regular sexual abuse of female prisoners by employees of the US prison authority, which persisted despite efforts to improve matters.
Article 6(2) would be infringed because a sentencing judge would consider other conduct for which she had not been convicted, and that by applying the civil rather than the criminal standard of proof.
The opinion of the court refusing the appeal was delivered by Lord Pentland, who sat with Lord Justice General Carloway and Lord Matthews. Dealing first with the issues arising under the European Convention, he said it was important to note the distinction between extraditions within contracting states and those involving non-contracting states. “It is emphatically not for contracting states to seek to impose Convention standards on non-contracting states. It will require strong and cogent evidence of likely mistreatment to amount to a bar on extradition to states, such as the US, with a long history of respect for democracy, human rights and the rule of law.”
On the evidence, the sheriff was entitled to hold that the appellant had not shown she was at real risk of being subjected to inhumane or degrading treatment within article 3. “Viewed as a whole, the evidence showed that the problem of sexual abuse of female inmates in US prisons had been identified at a high level and was being seriously addressed by the appropriate authorities… Moreover, there was no evidence before the court that there had been recent particular issues with sexual abuse at four of the five prisons where the appellant was likely to be held if convicted.” At the fifth, a number of employees had been prosecuted and convicted and there was no evidence that the problem had persisted after that.
As regards article 6(2), the court did not consider that any aspect of the sentencing process amounted to the bringing of a new criminal charge. Article 6(2) dealt only with proof of guilt and not level of punishment; “The determination of the loss amount and the consideration of any uncharged analogous allegations stand apart from the issue of conviction or acquittal. Instead they are matters that fall within the scope of the sentencing exercise and concern the appropriate sentence to be imposed for the offences of which the offender has already been convicted at trial.” The appellant was charged with a fraudulent scheme, “of which the particular counts set out in the indictment may be seen as some of the component parts”, and further evidence relating to the underlying scheme did not involve new and different charges.
Nor did the sheriff misdirect himself as to the gravity of the allegations made; and there had been no unreasonable delay or inactivity on the part of the requesting state. The “extremely high test” for oppression due to the passage of time had not been met, and any personal or family suffering was “no more severe that the inevitable hardship” inherent in extradition to another country.