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Brown, Re Application for Judicial Review [2004] ScotCS 212 (03 September 2004)

OUTER HOUSE, COURT OF SESSION

P1384/04

OPINION OF LORD ABERNETHY

in the Petition of

LESLIE BROWN

Petitioner;

for

Judicial Review of the decision of The Scottish Ministers

________________

Petitioner: Targowski, Q.C., Aitken Nairn

Respondents: Cullen, Q.C., Solicitor to the Scottish Executive

3 September 2004

[1] The petitioner is subject to extradition proceedings at the instance of Estonia. The respondents are the Scottish Ministers who are empowered to issue orders in pursuance of such an extradition request.

[2] The petition came before me on a motion of the petitioner for the usual first order. The motion was opposed.

[3] The case has a long history. As long ago as 12 June 2001 the respondents, in response to a request from Estonia, issued an order to return the petitioner to Estonia. Shortly thereafter the petitioner raised a petition seeking judicial review of that decision. On 30 May 2003 after sundry procedure culminating in a first hearing Lord Sutherland held that the petitioner's challenge to the decision of 12 June 2001 was ill-founded. He repelled the first and fourth pleas-in-law of the petition. The remaining pleas were remitted to a second hearing.

[4] After further sundry procedure the second hearing took place before Lord Hardie. By interlocutor dated 25 February 2004 he repelled the remaining pleas-in-law and dismissed the petition.

[5] On 26 February 2004 the petitioner requested the respondents for a further review of the decision to return him to Estonia. On 22 March 2004 that request was refused. On 31 March 2004 the petitioner raised a petition for judicial review of that decision. On 2 April 2004 Lord Hardie refused a motion for the usual first order and dismissed the petition. In his Opinion issued on 6 April 2004 he held that there had been no material change of circumstances since the previous petition was dismissed on 25 February 2004. It could not therefore be said that the respondents had acted unreasonably in refusing a further review of the order to return.

[6] The petitioner reclaimed. On 8 July 2004 the reclaiming motion was refused by the Inner House. The circumstances leading to that decision are averred in the present petition to be as follows:-

"7. That on the morning of 8^th July 2004 at a hearing on the summar roll, Counsel and Agents instructed on behalf of the Petitioner withdrew from acting for the Petitioner. His motion for an adjournment to obtain new legal representation was refused. The matter was continued to an after part of the day's proceedings. At or about 11.00 hours the Petitioner intimated that he could not present submissions in support of the reclaiming motion. The motion for review of the interlocutor of the Lord Ordinary dated 6^th April 2004 was refused. Their Lordships decerned. The issue of expenses was determined. Copies of the interlocutors pronounced on 8^th July 2004 are produced herewith, lodged in process and referred to for their terms which are incorporated herein brevitatis causa.

8. That the petitioner maintains that at or about 14.00 hours on 8^th July 2004 he indicated that he was neither competent nor qualified to proceed without legal representation. He was instructed to do so.

9. That the petitioner maintains that the refusal to grant him an adjournment on 8^th July 2004 was unreasonable, in breach of natural justice and a breach of his right to a fair hearing conform to Schedule 1, paragraph 6 of the Human Rights Act 1998".

[7] Shortly after 8 July 2004 the petitioner notified the respondents of his intention to appeal to the House of Lords.

[8] By letter dated 27 July 2004 the respondents wrote to the petitioner in, inter alia, the following terms:-

"Having regard to the long history of the case, I write to inform you that the Scottish Ministers intend to extradite you to Estonia as soon as possible after Monday 23 August 2004 unless you lodge on or before that date your petition of appeal to the House of Lords against the Court of Session's decision of 8 July".

[9] It is against that decision (which was confirmed by the respondents in a letter to the petitioner dated 20 August 2004) that the petitioner now seeks judicial review and has enrolled the present motion for the usual first order. The full terms of the orders sought in the petition are as follows:-

"3.1 Declarator that the Respondents' decision contained within their letter dated 27^th July 2004 and confirmed within their letter dated 20^th August 2004 is unreasonable, unlawful and in breach of the Petitioner's right to a fair hearing in terms of paragraph 6 of Schedule 1 to the Human Rights Act 1998.

3.2 Reduction of the Respondents' decision.

3.3 Interim suspension of the decision pending its reduction.

3.4 Such further order, decree or orders as may seem to the Court just and equitable.

3.5 Expenses".

[10] In paragraph 13 of the petition it is stated that, further to his intention to appeal to the House of Lords, the petitioner has consulted with junior counsel and that the collection and preparation of relevant material, including execution of affidavits from persons present at the hearing on 8 July 2004, is presently ongoing. In submission Mr Targowski, senior counsel for the petitioner, confirmed that that was the position. He added that legal aid had now been granted for the preparation by junior counsel of an appeal to the House of Lords. Junior counsel had expressed the view that senior counsel should be brought in and had instructed that sanction from the Scottish Legal Aid Board should be obtained for that purpose. In all these circumstances the decision of the respondents contained in their letter of 27 July 2004 and confirmed in their letter of 20 August 2004 was contrary to natural justice. The usual first order should therefore be granted.

[11] Mr Cullen, senior counsel for the respondents, submitted that the usual first order should not be granted and the petition should be dismissed. He submitted that there was nothing unlawful in the respondents' decision incorporated in their letter of 27 July 2004. There was still no suggestion of a basis of appeal to the House of Lords and the Court should conclude that the strong likelihood was that no counsel would see fit to sign and certify any appeal as reasonable for the House of Lords and that there would be no such appeal. I was urged to take what was described as a realistic view of the matter and see the history of the case as demonstrating a pattern of attempts by the petitioner to delay extradition. This was just another episode in that pattern.

[12] Mr Cullen took me through the history of the case by reference to the narrative given in Lord Hardie's Opinion of 6 April 2004. He submitted that this was a suitable case for refusing to grant a first order and dismissing the petition. He referred to what Lord Gill had said in 1995 in the unreported case of Butt v Secretary of State for the Home Department (quoted by Lord Hardie at paragraph 10 of his Opinion). He also filled in some more of the detail of what had taken place in the Inner House on 8 July 2004, which had led to the interlocutors of that date. There was no basis on which it could be seriously maintained that the proceedings in the Inner House were unfair, as the petitioner now averred. In particular, the lack of legal representation did not in itself amount to a breach of the right to a fair hearing in terms of Article 6(1) of the European Convention on Human Rights. Reference was made to McVicar v UK (2002) 35 EHRR 22. Moreover, in extradition matters finality was a very important consideration. Prolonged proceedings only served to defeat the purpose of dealing with such matters expeditiously. Reference was made to R (on the application of Ramda) v Secretary of State for the Home Department [2002] All ER (D) 227, Sedley L.J. at paragraph 25. Comity between states was a further important consideration. Effect should be given to the Council of Europe European Convention on Extradition. Estonia was a contracting party to the Convention and had been designated by the United Kingdom as an extradition partner under the Extradition Act 1989. The philosophy behind these arrangements was that there should be swift procedure for extradition between the two states. These two factors underlay the respondents' letter of 27 July 2004. That was an entirely responsible attitude.

[13] In all the circumstances it could not be said that the respondents' decision contained in the letter of 27 July 2004 was unreasonable. That was a high test and the petitioner had not come near to satisfying it. It might have been different if even now the petitioner had asked for, say, a further seven days but there was only, said Mr Cullen, a resounding silence. No progress had been made since the respondents' confirming letter of 20 August 2004. It looked, therefore, as if the petitioner was dragging his feet again. The petitioner's motion for the usual first order should be refused and the petition dismissed.

[14] In reply Mr Targowski submitted that Mr Cullen's approach appeared to be that there was a balance to be struck between the parties' rights. But that was not so. In the determination of his rights under the previous petition the petitioner had an unqualified right to a fair hearing by an independent and impartial tribunal in terms of Article 6(1) of the European Convention on Human Rights, which included in this case a right of appeal to the House of Lords. Reference was made to Montgomery v HM Advocate 2000 SCCR 1044, Lord Hope of Craighead at page 1106C. This right was therefore superior to any rights of the respondents. That was in effect acknowledged by the respondents accepting that their decision could not stand if the petitioner had already lodged an appeal to the House of Lords or was about to do so shortly. Under the rules, however, the petitioner had three months in which to lodge such an appeal. That was an absolute right given to the petitioner. It was therefore unreasonable for the respondents to make a decision which had the effect of defeating that right. It might have been different if the petitioner had indicated within the three months that he had no intention of appealing to the House of Lords but that was not the position here.

[15] In light of the history of this case as disclosed in Lord Hardie's Opinion it is understandable that the respondents should wish to bring matters to a conclusion without any further delay. Considerations of the desirability to bring finality in extradition proceedings and the comity of states, to which Mr Cullen referred, are also of importance in such matters. In my opinion, however, the decision I have to make turns on a much narrower point. In the determination of his civil rights in the previous petition the petitioner has, in terms of Article 6(1) of the European Convention on Human Rights, a right to a fair hearing by an independent and impartial tribunal. That is an unqualified right and in that sense may be said to be a superior right to any of those claimed by the respondents (Montgomery v HM Advocate 2000 SCCR 1044, Lord Hope of Craighead at page 1106C). In the present case it was common ground that the petitioner had a right of appeal to the House of Lords from the interlocutors of 8 July 2004. It was also common ground that in terms of the relevant rules he had three months in which to lodge such an appeal. That period has of course not yet expired. As I have indicated, none of this was disputed by Mr Cullen. His central point was that there was no basis for saying that the petitioner had not had a fair hearing in the Inner House on 8 July 2004, which, on the present averments, would be the gravamen of any appeal to the House of Lords. This may be so but in my opinion that is a matter which neither I nor the respondents can determine. It is a matter solely for the House of Lords should the petitioner exercise his right of appeal to the House. Moreover, in my opinion neither I nor the respondents can reduce the period given in the relevant rules to the petitioner in which to lodge any appeal to the House of Lords. In any event, there is little more than a month of that period to run. While it is more than three years since the order to return was made and any further unnecessary delay is to be avoided if possible, it cannot in my opinion be said that a delay between now and 8 October 2004 is such as could be described as excessive.

[16] For these reasons I am not persuaded that I should refuse the motion for the usual first order. In my judgment it is appropriate that I should grant it and I will do so. It was submitted by Mr Cullen that if I came to this conclusion I should not grant interim suspension of the respondents' decision, as the respondents would undertake not to extradite the petitioner pending a first hearing. Mr Targowski did not object to this course of action. In light of the undertaking, therefore, which will be recorded in the Minute of Proceedings, I will not grant interim suspension.