UKSC 48
On appeal from:  HCJAC 84
Kapri (AP) (Appellant) v The Lord Advocate representing The Government of the Republic of Albania (Respondent) (Scotland)
Lord Hope, Deputy President
JUDGMENT GIVEN ON
10 July 2013
Heard on 13 June 2013
John Scott QC
John Paul Mowberry
(Instructed by Bridge Litigation UK)
W James Wolffe QC
(Instructed by The Appeals Unit, Crown Office)
LORD HOPE (with whom Lady Hale, Lord Kerr, Lord Sumption and Lord Toulson agree)
"(iv) The sheriff erred in concluding that the appellant would be entitled to a retrial in terms of section 85(5) of the Act. Separatim. The sheriff erred in concluding that the rights specified in section 85(8) of the Act would be made available to the appellant.
(v) The learned sheriff erred in concluding that the appellant's extradition would be compatible with his Convention rights in terms of section 87 of the said Act.
Separatim. In seeking the appellant's extradition to Albania the Lord Advocate and the Scottish Ministers are acting in a way which is contrary to the appellant's fundamental rights in terms of the European Convention. In particular, the appellant's extradition to Albania would interfere with his right to liberty and the right to fair trial as provided for in articles 5 and 6 of the Convention."
A devolution minute was also lodged in which it was stated that for the Lord Advocate to seek to support the appellant's extradition would be for him to act in a way which would be incompatible with his rights under article 6(1) and 6(3)(c) of the Convention and accordingly ultra vires in terms of section 57(2) of the Scotland Act 1998.
"Nothing within either report supports the appellant's contention that 'he' would face an unfair trial on his return to Albania or in any way supports his contention that any retrial would lack the fundamental requirements of article 6. We note also that nothing in either report bears upon the question of whether any such retrial would comply with the particular requirements referred to in section 85(8) of the Act. Accordingly, in our view, the proposed new evidence contained in the reports prepared by Dr Bogdani and Ms Vickers is irrelevant to the ground of appeal in question and ought not to be admitted for this reason."
It was agreed that the additional evidence of Periand Teta should be admitted, and the Lord Advocate was given leave to lead evidence in rebuttal of it, if so advised. The court declined to give effect to the submission that the appeal so far as based on ground (v) should be refused, holding that the appellant could present arguments in support of it based on evidence led before the sheriff and in the Teta report. Counsel for the appellant submitted that an appellant was entitled to rely on new evidence even if it could have been made available at the extradition hearing, as to which there appears to be some uncertainty about the approach that should be taken. That which was adopted in Engler, paras 11-12, appears not to be consistent with the more flexible approach indicated by Trajer v Lord Advocate  HCJAC 78, 2009 JC 108, paras 28-29. But the Appeal Court found it unnecessary to resolve this issue.
"But a question arising in criminal proceedings in Scotland that would, apart from this paragraph, be a devolution issue is not a devolution issue if (however formulated) it relates to the compatibility with any of the Convention rights or with EU law of
(a) an Act of the Scottish Parliament or any provision of an Act of the Scottish Parliament,
(b) a function,
(c) the purported or proposed exercise of a function,
(d) a failure to act."
Section 288ZA(2) of the Criminal Procedure (Scotland) Act 1995, which was inserted into the 1995 Act by section 34(3) of the 2012 Act, provides that "compatibility issue" means, among other things,
"a question, arising in criminal proceedings, as to
(a) whether a public authority has acted (or proposes to act)
(i) in a way which is made unlawful by section 6(1) of the Human Rights Act 1998, or
(ii) in a way which is incompatible with EU law "
The substantive issue