P.B. v. Her Majesty's Advocate [2013] HCJAC 139

Application for leave to appeal:- Here the applicant sought leave to appeal to the Supreme Court of the United Kingdom following the refusual of the applicant's appeal under section 26 of the Extradition Act 2003against the order of the sheriff at Edinburgh that he be extradited to Poland. The compatibility issue was described in the following terms:- "....to obtain clarification on what factors a court is obliged to consider and its obligations if information is not placed before it, to ensure that it is acting compatibly with the Convention rights of children affected by extradition." The purpose of the application was to seek to have the Supreme Court determine a list of factors which the court must always consider in relation to a child's interests and also to specify what the court is obliged to do if inadequate information is provided. It was submitted on behalf of the Crown that:- (1) the application was incompetent as it was an application under section 288ZA of the Criminal procedure (Scotland) Act 1995 which states that a compatibility issue can only arise in criminal proceedings and extradition proceedings are not criminal proceedings and these proceedings are not a devolution appeal to which section 36A of the 2003 Act could apply, no devolution issue having been previously determined; and (2) in any event, the issue raised by the applicant was not an identified devolution issue and was not one of general public importance. Here the court held that the application was indeed incompetent as the proceedings were not criminal and no incompatibility issue has been raised or determined and it was not open to the applicant to seek leave to appeal under section 288AA of the 1995 Act and nor had a devolution issue been raised or determined so section 36A of the 2003 did not apply either. Separately the court considered that had the application been competent it would not have granted leave.