Scottish High Court of Justiciary Decisons

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Cite as: [2004] ScotHC 22

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Brown & Anor v. Her Majesty's Advocate [2004] ScotHC 22 (25 March 2004)

APPEAL COURT, HIGH COURT OF JUSTICIARY

Lord Justice Clerk

Lord Hamilton

Lord Macfadyen

Appeal Nos: Misc 296/03

Misc 221/03

OPINION OF THE COURT

delivered by LORD MACFADYEN

PETITIONS

the nobile officium of

the High Court of Justiciary

(FIRST) ROBERT BRUCE WRIGHT, and

(SECOND) LESLIE BROWN.

Petitioners;

_______

For first petitioner: M.E. Scott, Q.C., Shead; Taylor & Kelly, Coatbridge

For second petitioner: Gilchrist, Forrest; Trainor Alston, Coatbridge

For Crown: Turnbull, Q.C., A.D.; Crown Agent

25 March 2004

Introduction
[1] The petitioners are each the subject of extradition proceedings at the instance of the Republic of Estonia. Provisional warrants for their arrest were granted by a sheriff on 7 March 2001 in pursuance of section 8(1)(b)(iii) of the Extradition Act 1989 (as amended) ("the Act"). On 26 March 2001 the Scottish Ministers, in pursuance of their powers under section 7(4) of the Act, issued in respect of each petitioner an authority to proceed. Acting in reliance on the authority thus granted, one of the sheriffs of Lothian and Borders (Sheriff Bell) on 29 March 2001 committed the petitioners to custody for the purposes specified in section 9(8) of the Act. After certain further procedure the Scottish Ministers on 12 June 2001 made orders under section 12 of the Act for the petitioners' return to Estonia. On 18 June 2001 the petitioners presented petitions for judicial review, as they were entitled to do in terms of section 13(6). Those petitions are still pending in the Court of Session and, so long as that state of affairs continues, the return of the petitioners to Estonia is prohibited by section 13(7).

[2] The purpose of these petitions to the nobile officium of this court is to challenge the validity of the committal proceedings before the sheriff and the orders of committal which he pronounced on 29 March 2001. It is not disputed that such petitions are the appropriate procedure by which to apply to this court under section 11(6) of the Act for review of an order of committal (as was done, for example, in Triplis, Petitioner, 1997 SCCR 398). The petition at the instance of the first petitioner was initially presented on 17 September 2003, and subsequently amended. The petition at the instance of the second petitioner was presented on 10 June 2003 and was amended in the course of the hearing before us on 25 March 2004. As the petitions now stand, they both raise the same short issue. The petitioners accept that the court of committal is defined in section 9(3) of the Act as consisting of "the sheriff of Lothian and Borders". They further accept that that expression includes not only the Sheriff Principal of Lothian and Borders but also all the sheriffs of Lothian and Borders (Interpretation Act 1978, Schedule 1). They contend, however, that the fact that the authority to proceed was addressed to "the Sheriff Principal of Lothian and Borders" had the effect that only the Sheriff Principal could act as the court of committal, and consequently that the committal by Sheriff Bell was invalid. Each petitioner therefore seeks an order from this court discharging his committal.

The legislation
[3] The Act contains provisions which permit the arrest of a person who is the subject of extradition proceedings to take place before an authority to proceed has been issued by the Scottish Ministers. Those provisions are to be found in section 8. Section 8(1)(b)(iii) enables any sheriff, where no authority to proceed has been issued, to issue a warrant, called a "provisional warrant", for the arrest of the person in question, if he or she has been provided with the evidence or information specified in subsection (3) or (3A). That is what happened in the cases of the petitioners. The validity of the provisional warrants is not challenged. Section 8(4) provides that, where a provisional warrant is issued, the authority by whom it is issued must give notice to the Scottish Ministers, and they then have to decide whether to issue an authority to proceed or to cancel the warrant and discharge the person from custody. In the event, the Scottish Ministers decided to issue an authority to proceed in respect of each petitioner.

[4] Section 7 provides inter alia as follows:

"(1)	Subject to the provisions of this Act relating to provisional warrants, a person shall not be dealt with under this Part of this Act except in pursuance of an order of the ... [Scottish Ministers] (in this Act referred to as an 'authority to proceed') issued in pursuance of a request (in this Act referred to as an 'extradition request') for the surrender of a person under this Act made to the [Scottish Ministers] -
	(a)	by -
		(i)	an authority in a foreign state which appears to the [Scottish Ministers] to have the function of making extradition requests in that foreign state ...
(4)	On receipt of any such request ... [the Scottish Ministers] may issue an authority to proceed unless it appears to [them] that an order for the return of the person concerned could not lawfully be made, or would not in fact be made, in accordance with the provisions of this Act.
(5)	An authority to proceed shall specify the offence or offences under the law of the United Kingdom which it appears to the [Scottish Ministers] would be constituted by equivalent conduct in the United Kingdom."

[5] Section 9 provides inter alia as follows:

"(1)	A person arrested in pursuance of a warrant under section 8 above shall (unless previously discharged under subsection (4) of that section) be brought as soon as practicable before a court (in this Act referred to as 'the court of committal') ...
(2)	For the purpose of proceedings under this section a court of committal in England and Wales shall consist of the Senior District Judge ... or another District Judge designated by him ...
(3)	For the purposes of proceedings under this section a court of committal in Scotland shall consist of the sheriff of Lothian and Borders ...
(8)	Where an authority to proceed has been issued in respect of the person arrested and the court of committal is satisfied ... that the offence to which the authority relates is an extradition crime, and is further satisfied [of certain other specified matters], the court, unless his committal is prohibited by any other provision of this Act, shall commit him to custody or on bail -
	(i)	to await the [Scottish Ministers'] decision as to his return; and
	(ii)	if the [Scottish Ministers decide] that he shall be returned, to await his return."

The authority to proceed
[6] The authority to proceed issued by the Scottish Ministers on 26 March 2001 in respect of each petitioner began with a reference to the extradition request received from the Republic of Estonia, and continued:

"Now, therefore, in exercise of the powers conferred upon them by section 7(4) of the Act, as amended, the Scottish Ministers hereby issue an authority to proceed in pursuance of that request to the Sheriff Principal of Lothian and Borders" (emphasis added)."

The authority to proceed then went on, as required by section 7(5), to specify that the conduct of which the petitioners were accused amounted to the crime of wilful participation as the organiser of a group of persons in the smuggling of forbidden narcotic substances under certain provisions of the Estonian Criminal Code, and that it appeared to the Scottish Ministers to be conduct which, had it been committed in Scotland, would constitute a contravention of section 4(3)(b) of the Misuse of Drugs Act 1971. The authority to proceed was given under the hand of the Deputy First Minister and Minister for Justice.

The petitioners' submissions
[7] On the petitioners' behalf it was accepted that the Act did not require the committal proceedings to take place before the Sheriff Principal of Lothian and Borders. The Scottish court of committal was defined in section 9(3) as consisting of "the sheriff of Lothian and Borders". Schedule 1 to the Interpretation Act 1978 provides that: "Sheriff, in relation to Scotland, includes sheriff principal". As Ms Scott, for the first petitioner, put it, the result is that the statute is indifferent as to whether committal proceedings under section 9 take place before the Sheriff Principal of Lothian and Borders or one of the sheriffs of that sheriffdom.

[8] Nevertheless, it was submitted, if the Scottish Ministers chose to address the authority to proceed to the Sheriff Principal, the result was that only the Sheriff Principal could entertain the committal proceedings. The Scottish Ministers had a discretion to select the Sheriff Principal rather than a sheriff to deal with the committal. If they exercised their discretion in that way, they made it necessary for the specific addressee of the authority to proceed to deal with the committal proceedings. It was not difficult to envisage, in the context of extradition, circumstances which might lead the Scottish Ministers to think that the importance of the matter was such that the committal proceedings should be heard by the Sheriff Principal rather than a sheriff. It was accepted that there was no statutory requirement that the Scottish Ministers address the authority to proceed to anyone in particular. The only statutory provision regulating the content of the authority to proceed was section 7(5) which required that it identify the United Kingdom offence constituted by the conduct to which the extradition proceedings related. The fact that that was the sole express requirement did not, however, undermine the submission that if the Scottish Ministers chose to address the authority to proceed to a particular sheriff they thereby made him the only competent court of committal for the particular case. For the historical context, reference was made to the (now repealed) Extradition Act 1870, and in particular the Second Schedule thereto.

[9] It was submitted that the position with regard to the authority to proceed was akin to that with regard to common law warrants: the terms of the document must be strictly adhered to if the proceedings thereby authorised were to be valid. Reference was made to McAnea v H.M. Advocate 2000 SCCR 779 (reference to non-existent statute in search warrant), and Singh v H.M. Advocate 2001 SCCR 348 (search carried out by more customs officers than authorised by the warrant). Reference was also made to Re Farinha, The Times, 13 November 1991, in which a committal under section 9 was held by a Divisional Court in England to be invalid for want of compliance with section 7(5).

The Crown submissions
[10] The advocate depute submitted that the requirements of an authority to proceed and the identification of the court of committal were two entirely distinct matters, provided for in different provisions of the Act. He submitted that it was unsound to treat the terms of the authority to proceed as defining the court of committal.

[11] The court of committal was defined in section 9(3) as consisting of the sheriff of Lothian and Borders. That made it competent for committal proceedings to be heard either by the Sheriff Principal or by any other sheriff of the sheriffdom. It was not surprising that the authority to proceed was in fact addressed to the Sheriff Principal, given his administrative responsibilities under sections 15 to 17 of the Sheriff Courts (Scotland) Act 1971. The fact that the authority to proceed was so addressed could not, however, be regarded as a discretionary selection of the Sheriff Principal as the court of committal. There was no basis in the legislation for inferring that the Scottish Ministers had such a discretionary power of selection. Section 7 contained nothing to support the existence of such a discretion. There was no requirement that the authority to proceed be addressed to anyone in particular. The provision identifying the court of committal in England and Wales (section 9(2)) showed that in that jurisdiction there was no such discretion as was contended for by the petitioners. There the court of committal was the Senior District Judge or another District Judge designated by him. The selection of the particular judge to form the court of committal was thus a matter for the Senior District Judge, not a matter on which the Secretary of State had a discretion. The absence of such a discretion in the hands of the Secretary of State in England and Wales pointed strongly to the absence of any such discretion in the hands of the Scottish Ministers.

[12] The definition of the court of committal was to be found in section 9(3). The sheriff who dealt with the matter on 29 March 2001 was one of those who fell within that definition. The Scottish Ministers had no statutory power or discretion to narrow the statutory definition of the court of committal. The authority to proceed was not concerned with the identity of the court of committal, and did not require to authorise a particular judge to act as the court of committal.

Discussion
[13] In our opinion the petitioners' challenge to the validity of the committal proceedings fails. The validity of these proceedings depends solely on an affirmative answer to two questions, namely (1) whether an authority to proceed complying with the requirements of section 7 had been issued by the Scottish Ministers, and (2) whether the committal proceedings took place before a court of committal within the meaning of section 9(3). In our opinion both of these questions fall to be answered in the affirmative.

[14] It is convenient to address these matters in reverse order. It is, in our view, plain that the identity of the court of committal is defined in section 9(3) so far as Scotland is concerned (and in section 9(2) so far as England and Wales are concerned). The reference in section 9(3) to the sheriff of Lothian and Borders is, in our opinion, plainly a reference to all who hold the office of sheriff in that sheriffdom, including the Sheriff Principal. That follows from Schedule 1 to the Interpretation Act 1978. The result is that, so far as the legislation is concerned, any sheriff of Lothian and Borders (including the Sheriff Principal) may competently constitute the court of committal for the purpose of section 9. That much was not disputed by the petitioners.

[15] The only express statutory provision regulating the content of an authority to proceed is section 7(5), which is concerned with the identification of the offence in question. Failure to comply with that requirement will invalidate the authority to proceed (Re Farinha), but there is no such failure in the present cases. There are no other formal statutory requirements for a valid authority to proceed. There is therefore no basis for holding that the authority to proceed did not comply with the requirements of section 7.

[16] The petitioners' challenge to the validity of the committals may therefore be seen to depend essentially on their submission that by addressing the authority to proceed to the Sheriff Principal, the Scottish Ministers selected him, from all the sheriffs of Lothian and Border, as the only one with power to hear the committal proceedings in respect of the petitioners. There is, in our opinion, nothing in the Act to suggest that the Scottish Ministers have a power or a discretion, by addressing the authority to proceed to a particular judge, to select him as the court of committal for the particular case. Such a power or discretion would be at variance with the position in England and Wales, where the judge to form the court of committal is selected by the Senior District Judge, not by the Secretary of State. We see absolutely no reason to suppose that the Scottish Ministers have a discretion in that matter where the Secretary of State has none. The purpose of the authority to proceed, in our opinion, has nothing to do with the identification of the court of committal, but is to show that the appropriate governmental authority for the extradition proceedings to advance to the committal stage has been granted.

[17] We do not consider that the analogy which Ms Scott sought to draw with common law warrants is sound. The authorities on which she relied are, in our view, distinguishable. In McAnea, whether the police had power to carry out a search depended on a warrant under the relevant statutory provision. The warrant referred to a non-existent statute, and was therefore ex facie bad. In Singh, the invalidity of the search stemmed from the fact that the statute under which the warrant was granted provided that the warrant should stipulate the number of officers who were authorised to take part in the search, and in the event more than the stipulated number took part. Neither of these cases, in our view, is of any assistance in the very different circumstances of the present cases. Here, the court of committal does not require to be identified in the authority to proceed. The court is identified by statute. The authority to proceed is required to show that the Scottish Ministers have given authority for committal proceedings to take place. To serve that purpose it did not require to be addressed to a particular judge.

Result
[18] For the reasons which we have set out we are satisfied that the petitioners' attack on the validity of the committal proceedings before Sheriff Bell and on the validity of the committal orders which he pronounced on 29 March 2001 fails. We shall therefore refuse the prayers of the petitions.