APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Nimmo Smith
 HCJAC 55
Appeal No: XC232/06
OPINION OF THE COURT
delivered by LORD NIMMO SMITH
NOTE OF APPEAL
under section 26(1) of the Extradition Act 2003
STEPHEN MAURICE GOATLEY
(1) HER MAJESTY'S ADVOCATE
and (2) THE ADVOCATE GENERAL FOR
Act: M. Bovey, Q.C., M. Smart; Hamilton, Burns & Co., Glasgow
Alt: Ms. R. Crawford, A.D; Crown Agent: Lord Davidson of Glen Clova, Q.C., Carmichael; Advocate General
 These are
proceedings under Part 1 of the Extradition Act 2003 ("the 2003 Act"). In accordance with the provisions of section
1, the Kingdom of the
The relevant statutory provisions
 Part 1 of the
2003 Act was enacted in discharge of the United Kingdom's duty to transpose into
national law the obligations imposed on it by the European Council Framework
Decision of 13 June 2002 on the European arrest warrant and the surrender
procedures between Member States (2002/584/JHA;
OJ 2002L 190, p. 1) ("the Framework Decision"). By section 1 of the 2003 Act, Part 1 deals
with extradition from the
 Section 3
makes provision for arrest under a certified Part 1 warrant. By section 4(3) a person arrested under a
Part 1 warrant must be brought as soon as practicable before the Sheriff. By section 191(1) the Lord Advocate must, inter alia, conduct any extradition
The proceedings before the Sheriff
 The appellant
first appeared before the Sheriff on
The appeal to this court
 The appellant has now appealed to this court by Note of Appeal under section 26(1) of the 2003 Act. Of the original grounds of appeal, as set out in paragraphs 4 to 11 of the Note of Appeal, senior counsel for the appellant did not advance any argument in support of grounds 5 and 6. The remaining grounds, with cross-references to the Sheriff's judgment removed, are as follows:
learned Sheriff erred in holding that there was before him a valid European
Arrest Warrant. In particular, the
Sheriff erred in holding that the requirement in the Framework Decision of
(7) The learned Sheriff erred in holding that the devolution minutes lodged on behalf of the appellant were incompetent. The third devolution minute related to alleged violation of community law and not the ECHR and the learned Sheriff erred in not appreciating this. The learned Sheriff should have found:
(a) that by conducting the extradition proceedings the Lord Advocate had
acted and continued to act in a manner inconsistent with the appellant's Article 8 Convention Rights (both with and without article 14) and therefore contrary to section 57(2) of the Scotland Act 1998. The learned Sheriff erred in holding that the conduct of the Lord Advocate was not a devolved function and therefore could not raise a devolution issue. The learned Sheriff erred in holding that the conduct of the Lord Advocate was in his capacity as head of the system of criminal prosecution; or
(b) that by commencing the extradition process in the circumstances set
out in the devolution minute lodged on the appellant's behalf, the Crown Agent acted in a manner inconsistent with the [appellant's] Article 8 convention rights. The Lord Advocate is responsible for the Crown Agent's said actings which are accordingly contrary to section 57(2) of the Scotland Act; and in any event
(c) that the extradition of the appellant would not be compatible with the
Convention rights within the meaning of the Human Rights Act 1998.
(8) The learned Sheriff erred in failing to hold that by virtue of the withdrawal of a right of appeal to the House of Lords the extradition of the appellant would be inconsistent with his rights under articles 8 and 14 ECHR and section 21 of the Extradition Act.
(9) The learned Sheriff erred in failing to find that the failure of the Act to give effect to the possibility of not executing a European Arrest Warrant contained in article 4(6) of the Framework decision renders the execution of the warrant in respect of the appellant a disproportionate interference with the rights guaranteed to him by article 8 ECHR.
(10) The learned Sheriff erred in failing to find that the failure of the Act to give effect to the possibility of not executing a European Arrest Warrant contained in article 4(6) of the Framework decision where the Netherlands had implemented the exemption as a mandatory ground of refusal renders the execution of the warrant in respect of the appellant a violation of the rights guaranteed to him by articles 8 and 14 ECHR.
(11) The learned Sheriff erred in applying the test of a flagrant violation in his consideration of article 8 ECHR."
Ground of Appeal 7: the competency of the appellant's devolution minutes
 It is convenient at this point to discuss the issue raised in ground of appeal 7, wherein it is alleged that the Sheriff erred in holding that the devolution minutes lodged on behalf of the appellant were incompetent. A devolution minute is a minute which seeks to raise a devolution issue within the meaning of paragraph 1 of Schedule 6 to the Scotland Act 1998. The questions which may constitute devolution issues include, by virtue of subparagraph (d), a question whether a purported or proposed exercise of a function by a member of the Scottish Executive is, or would be, incompatible with any of the Convention rights, i.e. the rights and fundamental freedoms set out in those provisions on the European Convention on Human Rights and the Protocols thereto specified in section 1 of the Human Rights Act, or with Community law, i.e. the rights and others from time to time created or arising by or under the Community Treaties. The Framework Decision is part of Community law.
 As we have
mentioned, the appellant has lodged three devolution minutes. It is not necessary at this stage to do more
than explain that in each of these minutes it is alleged that the present
proceedings infringe the appellant's Convention rights or are incompatible with
Community law in one way or another. We
shall discuss the substance of these allegations in due course. The question which arises at this stage is
whether these devolution minutes are competent.
So far as we are aware, it has consistently been conceded on behalf of
the Lord Advocate and, where the Advocate General has been represented, on
behalf of the Advocate General, that devolution minutes in extradition
proceedings are competent. Such a
concession was made in respect of the devolution minutes before the Sheriff in
the present proceedings, and again before us.
In the case of H.M. Advocate v
Headrick 2005 S.C.C.R. 787, however,
Sheriff Stoddart did not accept the concession, and instead went on to hold
that a devolution minute was not competent in extradition proceedings. Sheriff Stoddart's decision has been followed
in a number of subsequent cases in the
Submissions on behalf of the appellant
 Mr. Bovey
took as his starting point certain provisions of the Scotland Act. By section 44(1) and (2) the members of the
Scottish Executive, who include the Lord Advocate, are referred to collectively
as the Scottish Ministers. By section
57(2), a member of the Scottish Executive, i.e. any of the Scottish Ministers,
including the Lord Advocate, has inter
alia no power to do any act so far as it is incompatible with any of the
Convention rights or with Community law.
Section 191 of the 2003 Act provides that any extradition proceedings in
 Counsel also
referred to the position of the Crown Agent as the designated authority. Under the provisions of Part 1 of the 2003
Act, a Part 1 warrant received from a category 1 territory must be certified by
the designated authority before it can be executed in the
"The Lord Advocate has a permanent staff known as the Crown Office situated in Edinburgh which is headed by the Crown Agent ... The Crown Agent is the departmental head of the procurator fiscal service, the Civil Service head of department as opposed to the ministerial head who is the Lord Advocate."
Accordingly, as a civil servant answerable to the Lord Advocate, the acts of the Crown Agent were, he submitted, acts of the Lord Advocate. The Lord Advocate was responsible for the Crown Agent's said actings which were accordingly contrary to section 57(2) of the Scotland Act. Moreover, under section 2(7) of the 2003 Act the Crown Agent, as the designated authority, had a discretion in respect of the issuing of a certificate under that section. In H.M. Advocate v Headrick Sheriff Stoddart had attached importance to the mandatory nature of the role of the Scottish Ministers under Part 2 of the 2003 Act. This might be contrasted with the discretion conferred on the Crown Agent in Part 1 cases.
Submissions on behalf of the Lord Advocate
 On behalf of the Lord Advocate, Miss Crawford accepted that the devolution minutes were competent so far as they sought to challenge the acts of the Lord Advocate in conducting the present proceedings under the 2003 Act. She was content to adopt Mr. Bovey's submissions in this regard.
 Counsel took issue, however, with Mr. Bovey's submissions about the position of the Crown Agent. By the 2003 Order the Crown Agent was designated for the purposes of Part 1 ex officio in relation to a matter which was not devolved under the Scotland Act, but was reserved under Schedule 5, Part 1I, head B, section B11. The Crown Agent was one of the members of staff of the Scottish Administration within the meaning of section 51(1) of the Scotland Act. He was not one of the members of the Scottish Executive, as defined in section 44(1). Accordingly, where the Crown Agent was acting as a designated authority, section 57(2) of the Scotland Act did not apply to him, and a devolution issue, within the meaning of section 6, could not be raised in respect of his performance of his functions under the 2003 Act. When acting on behalf of the Lord Advocate, as a member of staff of the Scottish Administration within the meaning of section 51(1) of the Scotland Act, the Crown Agent would be performing a different function from that conferred on him ex officio as the designated authority under the 2003 Act. The Crown Agent was not in respect of this matter answerable to the Lord Advocate. The devolution minutes, so far as directed against the acts of the Crown Agent, were therefore incompetent.
Submissions by the Advocate General for
 At the
beginning of the hearing of the appeal we allowed the then newly appointed
Advocate General to become a party to the proceedings, in terms of Rule 40.3 of
the Act of Adjournal (Criminal Procedure Rules) 1996, so that he also could
address us on the issue of the competency of the devolution minutes. (In an earlier appeal, H.M. Advocate v La Torre,
the office of Advocate General was vacant, so no separate submissions were
advanced on behalf of the Advocate General.)
The Advocate General said that he had little to add to what Mr. Bovey
had said about the position of the Lord Advocate. He advanced no submission about the position
of the Crown Agent. He pointed out that
nowhere in the Scotland Act was the Lord Advocate defined other than as a
member of the Scottish Executive and one of the Scottish Ministers. The range of issues which could be raised as
devolution issues under Schedule 6 to the Scotland Act was very wide: Mills v
H.M. Advocate 2003 SC (PC) 1 per
Lord Hope at para. 33; Dyer v Watson 2002 SC (PC) 89, per Lord Hope at para. 109. There was nothing to suggest that section
57(2) did not apply to the Lord Advocate when he was exercising functions which
were not devolved functions. The
decision in H.M. Advocate v Headrick, which the Sheriff followed in
the present case, was unsound. In
conducting these proceedings the Lord Advocate was not acting in his capacity
as head of the system of criminal prosecution in
 In our opinion the Lord Advocate is correct to concede the competency of the devolution minutes so far as directed against his own acts. Since no contrary argument was advanced, it is not necessary to say much more than that we accept the submissions of counsel, and in particular counsel for the Lord Advocate, supported by the Advocate General. The role of the Lord Advocate in extradition proceedings is as provided by section 191(1) of the 2003 Act, wherein he is described as "the Lord Advocate". It is therefore as Lord Advocate that he conducts extradition proceedings. No doubt he does so because, under Part 1 of the 2003 Act, an arrest warrant has been issued by a judicial authority of a category 1 territory in terms of section 2; so he is not acting in his capacity as head of the system of criminal prosecution in Scotland, but is performing a specific statutory function under the 2003 Act. But he remains the Lord Advocate, and as such continues to be a member of the Scottish Executive and one of the Scottish Ministers within the meaning of section 44 of the Scotland Act.
 In H.M. Advocate v Headrick Sheriff Stoddart, in declining to accept the concession on behalf of the Lord Advocate in that case, said at p. 797, paras. 20 and 21, that the Lord Advocate was acting merely as someone upon whom a statutory function had been conferred by section 191(1) of the 2003 Act, and that his function in conducting the proceedings had nothing to do with his membership of the Scottish Executive. We cannot accept this analysis. The Lord Advocate performs many functions, but whatever the capacity in which he performs them he remains Lord Advocate. His holding of the office of Lord Advocate is inseparable from his membership of the Scottish Executive, that is to say the Lord Advocate is one of the Scottish Ministers, and cannot, in accordance with section 44 of the Scotland Act, be Lord Advocate without also being a member of the Scottish Executive. Whatever function he is performing, it therefore constitutes an act within the meaning of section 57(2) of the Scotland Act and can therefore be brought into question as a devolution issue within the meaning of paragraph 1 of Schedule 6 to the Act. In our opinion, therefore, the devolution minutes, so far as directed against acts of the Lord Advocate, are competent.
 There remains for consideration the position of the Crown Agent. As has been seen, he is the designated authority for the purposes of section 2 in respect of a Part 1 warrant, and performs the necessary but limited function of issuing a certificate under section 2 if he believes that the authority which issued the Part 1 warrant has the function of issuing arrest warrants in the category 1 territory. The 2003 Order making him the designated authority designates him as the Crown Agent of the Crown Office, and thus as the holder of that office. In performing his function as designated authority the Crown Agent does not act on behalf of the Lord Advocate, and the Lord Advocate is not responsible for his performance of that function. The Crown Agent is acting as the holder of that office in his capacity as such, and not as a member of staff of the Scottish Administration within the meaning of section 51(1) of the Scotland Act. He is not a member of the Scottish Executive, and is not therefore affected by the provisions of section 57(2). The devolution minutes, so far as directed against the acts of the Crown Agent, are therefore incompetent. This is of no great significance, since the devolution minutes so far as directed against the acts of the Lord Advocate at all subsequent stages are entirely adequate for the purpose of protecting the relevant rights of the appellant.
Ground of Appeal 4: Validity of the Part 1 Warrant
 In this
passage we discuss the issues raised in ground of appeal 4 and the third
devolution minute for the appellant, which seek to challenge the validity of
the Part 1 warrant which was issued in the present case. The essence of the complaint is that the
person who issued the warrant was Mr S Tempel, described in the English
translation as Chief Attorney-General and Deputy Public Prosecutor, of the District
Public Prosecutor's office in
issuing judicial authority shall be the judicial authority of the issuing
3. Each Member State shall inform the General Secretariat of the Council of the competent judicial authority under its law."
On 29 April 2004 the Minister for Justice of the Kingdom of
the Netherlands informed the General Secretariat of the Council of the European
Union inter alia that the law on
surrender implementing the Framework Decision would enter into force in the
Netherlands on 12 May 2004 and that the issuing judicial authorities were all
the public prosecutors in the Netherlands.
In issuing the Part 1 warrant in the present case Mr. Tempel was
accordingly competent to issue it by virtue of the law of the
Submissions on behalf of the appellant
 Mr Bovey
maintained that the warrant was invalid for the simple reason that it had been
issued by a public prosecutor. In the
 The expression
"judicial authority" had to be interpreted to mean someone independent of the
parties and the State who would inspire confidence in his impartiality and
leave no objective basis for doubt. That
had not been done here. The issue was
most serious and this court had to be vigilant and give very careful scrutiny
where the liberty of the individual was concerned. That emerged from the cases of R (Guisto) v Governor of Brixton Prison  1 AC 101; R.
(Castillo) v Kingdom of Spain
 1 WLR 1043 and Office of the
Submissions on behalf of the Lord Advocate
 In her reply
Miss Crawford submitted that Mr Bovey's argument reflected a
misunderstanding of the Framework Decision and how the
 The appellant
had adopted an extreme position. He invited
the court to say that it had no confidence in the legal system of the
 The cases showed what was the proper approach to extradition. Wright v Scottish Ministers 2005 S.C. 453 demonstrated that the legitimate aim of extradition was to prevent disorder or crime and was based on respect and confidence in the respective legal system between states. Attention was also directed to Armas at paragraphs 19 and 23 and Pupino at paragraphs 31, 34 and 5.
 Miss Crawford
further argued that if the court wanted to look behind the appointment of the
Dutch judicial authority certain documents were of assistance. The first of these was the primary
legislation in the
 While we have
considered the authorities relied on by Mr Bovey, in our opinion none of them
supports the approach he urged on us, which was to put into question whether
" ... it is to be taken that, if the United Kingdom has decided to enter into extradition arrangements with a foreign state, that will have been done only after the government of the United Kingdom has satisfied itself that the system of criminal justice operating in that foreign state is worthy of confidence ... ".
Wright was a case under a bilateral treaty. We are of the view that the same principles apply a fortiori to a case under the Framework Decision.
 There is no
merit in the argument that the warrant is invalid because it has been issued by
a person described in the translation of the warrant as Chief Attorney-General
and Deputy Public Prosecutor. The danger
of Mr. Bovey's approach is to look at this description with Scottish eyes
and to say that, because a person so described would not be a judicial
 The preamble
to the Framework Decision shows that the purpose of introducing the European
Arrest Warrant was to speed up procedures, remove complexities and avoid
delay. The whole scheme was based on a
high level of confidence between the States and was also based on the
principles of subsidiarity and proportionality.
In our view these introductory statements show that the carefully worked
out scheme ought not to be frustrated by mere descriptions of the executing
officials of the respective countries. We
are confirmed in that view by the terms of Article 6.1, the effect of which is
that the law of the issuing
 In any event,
we were provided with information about the steps taken by the
 After we had
taken the case to avizandum, the appellant's solicitors submitted further
material. We heard no argument about it
but, having read it, we see no need to alter our opinion. Two cases are referred to but neither is in
point: R. v
Ground of Appeal 8: no appeal to House of Lords
 In this
passage we discuss the issue raised in paragraph 8 of the grounds of appeal and
the first devolution minute for the appellant.
The essence of the complaint is that under the 2003 Act there is no
appeal from this court to the House of Lords.
So far as Part 1 is concerned, the relevant statutory provisions
are as follows. Section 26(1)
provides that if the appropriate judge orders a person's extradition under
Part 1, the person may appeal to the High Court against the Order. By section 216(9) the expression "High
Court" in relation to
 It is alleged in the minute that the exclusion of a right of appeal to the House of Lords is a violation of Articles 5 et separatim 6 et separatim 8 taken with Article 14 of the European Convention on Human Rights; there is no such exclusion in relation to proceedings taken in any other part of the United Kingdom; nor was there such an exclusion under the previous law on extradition. It is alleged that by conducting the extradition proceedings the Lord Advocate has acted and continues to act in a manner inconsistent with the appellant's said Convention rights and therefore contrary to section 57(2) of the Scotland Act. It is also alleged that by commencing the extradition process in the foregoing circumstances as he has done, the Crown Agent acted in a manner inconsistent with the appellant's Convention rights, and that the Lord Advocate is responsible for the Crown Agent's said actings which are accordingly contrary to section 57(2) of the Scotland Act.
 For the reasons we have already given, the Crown Agent does not fall within the ambit of section 57(2) of the Scotland Act when he is performing functions under the 2003 Act, and we leave him out of account. The question therefore is whether the performance of their functions under the 2003 Act by the Scottish Ministers and the Lord Advocate is vitiated by being incompatible with the appellant's Convention rights. Those invoked by the appellant, the right to liberty and security provided by Article 5, the right to a fair trial provided by Article 6 and the right to respect for private and family life provided by Article 8, are to be taken with Article 14, prohibition of discrimination, which provides:
"The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status."
Submissions for the appellant
 In addressing
us in support of these minutes, Mr Bovey confined his submissions to
Article 8 of the Convention taken with Article 14. He submitted that the fact that the
legislature had chosen a mechanism which did not involve an appeal to the House
of Lords meant that there was a distinction between
submitted that the appellant could be regarded as a Scot because he had made
his home here. A disproportionate number
of persons arrested in
Submissions on behalf of the Lord Advocate
 On behalf of
the Lord Advocate, Miss Crawford submitted that section 32(13) of the 2003
Act was the natural corollary to the fact that the High Court of Justiciary was
the court tasked with considering extradition.
Apart from the possibility of a reference or an appeal to the Judicial
Committee of the Privy Council relating to a devolution issue, this was the
Supreme Criminal Court of Scotland. The
appellant was arrested in Scotland. The
simple fact was that the defining characteristic was the location where he was
arrested. In Nelson v
"The applicant's complaint concerns
the differences in the penal legislation of two regional jurisdictions within
In Times Newspapers Ltd the Commission said:
"Furthermore, not all differences in treatment amount to discrimination, provided they have an objective and reasonable basis. In this connection, the Commission recalls that the mere existence of a difference in treatment between two jurisdictions does not constitute an arbitrary difference in treatment or discrimination."
The difference in treatment here, counsel submitted, was a
consequence of a territorial accident and not because of any characteristic
personal to the appellant. He could have
been arrested wherever he happened to be.
He was in fact arrested in
 In our
consideration of this matter we take as our starting point that the separate
and distinctive identity of the Scottish legal system was preserved by the Treaty
of Union of 1707. There never has been a
right of appeal from the High Court of Justiciary to the House of Lords or any
other court, with or without leave. The
introduction of the possibility of a reference or appeal to the Judicial
Committee of the Privy Council in respect of a devolution issue under
Schedule 6 to the Scotland Act 1998 was therefore a new departure. Although extradition proceedings before the
sheriff and before this court under the 2003 Act are best regarded as being sui generis, they nevertheless are more
akin to criminal than to civil proceedings.
It appears to us to be an inescapable consequence of acceptance of
Mr Bovey's argument, though he sought to confine it to extradition proceedings,
that all persons accused of criminal offences in
it is impossible to see how the appellant could be described as a
"victim". The fact that he is receiving
different treatment in
 In these circumstances the ground of appeal based on the fact that there is no appeal from this court to the House of Lords fails, and the claims advanced in the first devolution minute fall to be rejected.
Grounds of Appeal 9 to 11: Article 4(6) of the Framework Decision
 Although the Framework Decision is binding upon the Member States as to the result to be achieved, the choice of form and methods is left to them individually. By virtue of Article 4 it is provided that the executing judicial authority "may refuse to execute the European arrest warrant" in certain defined circumstances (generally described as "Grounds for optional non-execution of the European arrest warrant"). One such circumstance, provided by paragraph 6 of Article 4, is:
"If the European arrest warrant has
been issued for the purposes of execution of a custodial sentence or detention
order, where the requested person is staying in, or is a national or a resident
of the executing
In the 2003 Act no provision is made for a ground for refusal to execute a European arrest warrant on this basis.
Submissions on behalf of the appellant
 Mr. Bovey presented his arguments on this matter, first, as part of the above grounds of appeal against the sheriff's decision and secondly, in terms of the second devolution minute, as a basis for questioning the vires of the actings of the Lord Advocate and of the Crown Agent.
 In the first place it was submitted that the failure of the 2003 Act to provide for a ground of refusal for execution of a European arrest warrant on the basis contained in Article 4 of the Framework Decision rendered extradition of the appellant a disproportionate interference with the rights guaranteed to him by Article 8 of the Convention. In the second place it was argued that the same failure rendered the execution of the warrant in respect of the appellant a violation of the rights guaranteed to him by Articles 8 and 14. In the event, greater emphasis appeared to be placed on the first of these arguments.
 Mr. Bovey
emphasised (by way of background) that the appellant was a citizen of the
 The 2003 Act operated
in a discriminatory way in relation to the appellant, and others in a similar
situation to him, within the meaning of Article 14 (in the area of the rights
guaranteed by Article 8). It was clear
from a document entitled "Practical information issued by the Kingdom of the
"the requested person has the Dutch
nationality or is considered to be assimilated with a Dutch national. In such a case the public prosecutor in
It was thus plain that in similar circumstances an
extradition request from the
"The right not to be discriminated against in the enjoyment of the rights guaranteed under the Convention is also violated when States without an objective and reasonable justification fail to treat differently persons whose situations are significantly different."
implementation of the Framework Decision by the 2003 Act in this context was in
any event disproportionate in relation to the appellant and others in a similar
situation, to which question the discriminatory nature of the treatment was
also relevant. Reference was made to A & Others v Secretary of State for the Home Department  2 AC 68. It would be wrong, as the sheriff held in
paragraphs 99 and 100, to ask whether there would be a flagrant breach of the
appellant's rights under Article 8. This
was not a so-called "foreign case" where the concern was whether removal to
another territory would lead to a violation of the person's Convention rights
in that other territory, all as discussed in R (Ullah) v Special
Adjudicator  2 AC 323.
Reference was also made to R
(Razgar) v Secretary of State for the
Home Department  2 AC 368.
In assessing proportionality it was appropriate to apply the three-stage
test referred to by Lord Clyde in De
Freitas v Permanent Secretary of
Ministry of Agriculture Fisheries, Lands and Housing  1 AC 69 (at
page 80), quoted with approval by Lord Steyn in R (Daly) v Secretary of State
for the Home Department  2 AC 532.
Applying that test, although the measures could be said to be rationally
connected to the permitted aim under Article 8 of the prevention of disorder or
crime, the means used in the relevant respect were more than was necessary to
accomplish that objective. Overall the
Submissions on behalf of the Lord Advocate
 In response
Miss Crawford, on behalf of the Lord Advocate, accepted that an order for
extradition might involve interference with private and family life. The 2003 Act, however, did not act in a
discriminatory way in the area of Article 8 rights. Attention could only be focused on whether
 Since the question of alleged discrimination was raised on behalf of the appellant in this context both under reference to Article 14 (when considered along with Article 8), and as an aspect of the broader argument that the United Kingdom's implementation of the Framework Decision would render extradition of the appellant a disproportionate interference with his Article 8 rights, it is convenient to deal with it first.
 In our view
the primary argument - that comparison can legitimately be made with how the Netherlands
would respond to a request to extradite a Dutch national to serve a sentence
outwith the Netherlands - is misconceived.
How individual States seek to secure that human rights under the
Convention are respected within their jurisdiction will necessarily differ in a
variety of ways, and it has not hitherto, so far as we are aware, been
suggested that mere reference to a difference of treatment by another State of
its nationals could ever found a claim to discrimination under Article 14. Where, as here, the suggestion is that the
United Kingdom, by its actings or failure to act, has discriminated in some way
in relation to certain persons subject to its jurisdiction, it is to its
actings alone that regard can be had. As
was said in Thlimmenos v
"The Court has so far considered that the right under Article 14 not to be discriminated against in the enjoyment of the rights guaranteed under the Convention is violated when States treat differently persons in analogous situations without providing an objective and reasonable justification ... "
Applying that test it cannot properly be said that the
implementation of the Framework Decision in the United Kingdom by the 2003 Act,
without inclusion of a ground for refusal of execution of a Part 1 warrant in
the circumstances provided for in Article 4(6), has in any sense led to the
treatment of persons who could be said to be in analogous situations being
treated differently. Instead, the effect
of the Act is that all of those within the
 Nor do we
think there is force in Mr. Bovey's alternative approach - the suggestion that
the absence in the 2003 Act of a possible ground for refusal such as is
referred to could be said to be discriminatory in that, following the
alternative formulation in Thlimmenos
v Greece, it could be said to "fail
to treat differently persons whose situations are significantly
different". In that, perhaps somewhat
special, case the failure of the Greek Government was said to lie in the
treatment of all those applicants for appointment as chartered accountant, who
had in the past been convicted of serious crimes, in the same way, despite
potentially significant differences in the nature of those crimes, particularly
when regard was had to the applicant in question, whose offence had been
committed only because of certain religious beliefs. In the present context, while the primary
effect of Part 1 of the 2003 Act would be treat all fugitives in the United
Kingdom who had been sentenced abroad in respect of extradition offences in the
same way, we are not persuaded that it would be right to regard United Kingdom
nationals or residents as significantly different from others who might be the
subject of such requests. Even if that
was wrong, it would be difficult to say - looking to the effect of extradition
- that the
 Leaving the
issue of discrimination aside, the question remains as to whether execution of
a Part 1 warrant could be said to be a disproportionate interference with the
rights of persons such as the appellant who, by virtue of residence, could be
said to have established family and private life in the
 There was, in our view rightly, no dispute between counsel that extradition could potentially involve interference with Article 8 rights, and that it would be wrong to judge the question of whether such interference could be regarded as justified by applying the test of whether any such interference would be flagrant (i.e. the test referred to in respect of so-called "foreign", as opposed to "domestic", cases - see R. (Ullah) v Special Adjudicator). Counsel, it seemed, were equally agreed that the question of proportionality could be approached by adopting the three-stage test referred to by Lord Clyde in De Freitas v Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Housing (albeit not in a human rights context), and quoted with approval in the House of Lords in R. (Daly) v Home Secretary, namely that the question should be asked:
"Whether (i) the legislative objective is sufficiently important to justify limiting the fundamental right; (ii) the measures designed to meet the legislative objective are rationally connected to it; and (iii) the means used to impair the right or freedom are no more than is necessary to accomplish the objective."
Counsel were equally agreed that the provisions of Part 1 of the 2003 Act pursued a legitimate aim. In Wright v Scottish Ministers it was noted (at paras. 64 and 65):
"In R v Secretary of State for
the Home Department, ex parte
'The object of extradition is to return a person who is properly accused or has been convicted of an extradition crime in a foreign country to face trial or to serve his sentence there ... The extradition process is only available for return to friendly foreign States with whom this country has entered into either a multi or a bilateral treaty obligation involving mutually agreed and reciprocal commitments. Mr. Perry, on behalf of the claimant, accepts that there is a strong public interest in our respecting such treaty obligations. Such international co-operation is all the more important in modern times, when cross border problems are becoming ever more common, and the need to provide international solutions for them is ever clearer.'
In our view, it is indisputable that that object, as so described, is one of the elements in what 'is necessary in a democratic society ... for the prevention of disorder or crime', to quote the language used in Article 8(2) of the Convention on Human Rights."
 Although the
primary decision-maker in relation to the execution of a Part 1 warrant is the Sheriff,
the effect of Mr. Bovey's argument was in a real sense to question first the
proportionality of the way in which the
"Where a proposed extradition is properly constituted according to the domestic law of the sending State and the relevant bilateral treaty, and its execution is resisted on Article 8 grounds, a wholly exceptional case would in my judgment have to be shown to justify a finding that the extradition would on particular facts be disproportionate to its legitimate aim."
Further it cannot be forgotten that the inclusion of a ground
of refusal of extradition of the kind referred to would still mean that any
sentence required to be served, even if in the
 We add only
that we were not greatly assisted by consideration of D v City of Hamburg,
which concerned certain fundamental constitutional rights afforded by German
Basic Law, which have no counterpart in the
 In these circumstances the grounds of appeal based on the fact that no provision was made in the 2003 Act for refusal of the execution of a Part 1 warrant, in the circumstances provided for in Article 4(6) of the Framework decision, fail, and the claims advanced in the second devolution minute fall to be rejected.
 For the reasons we have given, none of the appellant's grounds of appeal, so far as argued, succeeds, and the appeal must accordingly be dismissed. In so far as the three devolution minutes may be regarded as separate from the appeal itself, they are refused.