APPEAL COURT, HIGH
COURT OF JUSTICIARY
|
Lord Nimmo Smith
Lord Kingarth
Lord McEwan
|
[2006]
HCJAC 55
Appeal
No: XC232/06
OPINION OF THE COURT
delivered by LORD NIMMO
SMITH
in
NOTE OF APPEAL
under section 26(1) of the
Extradition Act 2003
by
STEPHEN MAURICE GOATLEY
Appellant;
against
(1) HER MAJESTY'S ADVOCATE
and (2) THE ADVOCATE GENERAL FOR SCOTLAND
Respondents:
_______
|
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
12 July 2006
Introduction
[1] 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 Netherlands has been designated as a category 1
territory for the purposes of Part 1. A
Part 1 warrant was issued by the Netherlands on 18 October
2005 for the
arrest after conviction of the appellant for participation in a criminal
organisation and illicit trafficking in narcotic drugs and psychotropic
substances. The appellant, who was born
on 10 August 1951, was arrested by virtue of the warrant at Stranraer on about
19 January 2006. On 28
March 2006,
after sundry procedure, the Sheriff of Lothian and Borders at Edinburgh ordered the appellant's extradition
to the Netherlands.
The appellant has now appealed to this court under section 26(1) of the 2003
Act on the grounds set out in paragraphs 4, 7, 8, 9, 10 and 11 of the relative
Note of Appeal. This is our decision on
those grounds. All three members of the
court have contributed to the preparation of this Opinion.
The relevant statutory
provisions
[2] 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 United Kingdom to the territories designated for
the purposes of that Part, referred to as category 1 territories. Section 2 makes provision for a Part 1
warrant and certificate. By subsection
(1), the section applies if the designated authority receives a Part 1 warrant
in respect of a person. By subsection
(9) the designated authority is the authority designated for the purposes of
Part 1 by order made by the Secretary of State.
By the Extradition Act 2003 (Part 1 Designated Authorities) Order 2003
(SI 2003/3109) ("the 2003 Order"), made in exercise of the powers conferred by
section 2(9) and (10), the Crown Agent of the Crown Office has been designated
for the purposes of Part 1 of the Act.
By section 2(2) a Part 1 warrant is an arrest warrant which is issued by
a judicial authority of a category 1 territory and which contains certain
statements, expressed in the alternative.
The alternative which is relevant for present purposes is that provided
by subsection (2)(b), viz. the statement referred to in subsection (5) and the
information referred to in subsection (6).
By subsection (5) the statement is one that (a) the person in respect of
whom the Part 1 warrant is issued is alleged to be unlawfully at large after
conviction of an offence specified in the warrant by a court in the category 1
territory, and (b) the Part 1 warrant is issued with a view to his arrest
and extradition to the category 1 territory for the purpose of being sentenced
for the offence or of serving a sentence of imprisonment or another form of
detention imposed in respect of the offence.
By subsection (6), the information includes (a) particulars of the
person's identity, (b) particulars of the conviction and (e) particulars
of the sentence which has been imposed under the law of the category 1
territory in respect of the offence, if the person has been sentenced for the
offence. By section 2(7) the designated
authority, i.e. the Crown Agent, may issue 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.
There is no definition in section 2 of the expression "judicial authority",
but it may be noted that in terms of section 66(2) of the 2003 Act, which
applies for the purposes of sections 64 and 65, an appropriate authority of a
category 1 territory is a judicial authority of the territory which the
appropriate judge believes has the function of issuing arrest warrants in that
territory. By section 67(1)(b) the
appropriate judge in Scotland is the Sheriff of Lothian and
Borders.
[3] 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
proceedings in Scotland.
Sections 7 and 8 relate to the initial hearing before the Sheriff. Sections 9 to 21 relate to the extradition
hearing, which by section 68(1) is the hearing at which the Sheriff is to
decide whether the person in respect of whom the Part 1 warrant was issued is
to be extradited to the category 1 territory in which it was issued. By section 9(2), at the extradition hearing
the Sheriff has the same powers (as nearly as may be) as if the proceedings
were summary proceedings in respect of an offence alleged to have been committed
by the person in respect of whom the Part 1 warrant was issued. By section 10(2) the Sheriff must decide
whether the offence specified in the Part 1 warrant is an extradition
offence. If so, by subsection (4) he must
proceed under section 11(1), which raises questions relating to bars to extradition,
as set out in sections 12 to 19. By
section 11(4), if he decides those questions in the negative and the person is
alleged to be unlawfully at large after conviction of the extradition offence,
the Sheriff must proceed under section 20.
Section 20 contains various questions, the terms of which are not
otherwise relevant for present purposes, but if they are answered in the
affirmative the Sheriff must proceed under section 21. By section 21(1), if the Sheriff is required
to proceed under that section (by virtue of section 11 or 20) he must decide
whether the person's extradition would be compatible within the Convention
rights within the meaning of the Human Rights Act 1998. By subsection (2), if the Sheriff decides the
question in subsection (1) in the negative, he must order the person's
discharge, but by subsection (3), if he decides that question in the
affirmative he must order the person to be extradited to the category 1
territory in which the warrant was issued.
The proceedings before
the Sheriff
[4] The appellant
first appeared before the Sheriff on 20 January 2006, when the Sheriff inter alia assigned 3
February 2006
as an extradition hearing. On 2
February 2006
the first and second devolution minutes on behalf of the appellant were lodged. On 3 February 2006 the Sheriff held that both these
minutes were incompetent and refused to allow them to proceed. At that hearing counsel for the appellant
raised a preliminary matter relating to the validity of the warrant upon which
the extradition proceeded. The Sheriff
adjourned the extradition hearing to 21 February 2006 and directed that the preliminary
issue be dealt with at the extradition hearing.
On 22 February 2006, having heard submissions on the
preliminary issue on the previous day, the Sheriff held that the warrant had
been competently issued and was competently before the court. The extradition hearing was adjourned until 6 March 2006.
On 27 February 2006 the third devolution minute on
behalf of the appellant was lodged. On 6
March 2006
the Sheriff held that the third devolution minute was incompetent. He then proceeded to hear parties in respect
of the extradition hearing. On 7
March 2006
the Sheriff answered in the negative the questions posed in section 11(1) of
the 2003 Act and found that there was no bar to extradition by reason of any
circumstance. Thereafter, since the
appellant was alleged to be unlawfully at large after conviction of the
extradition offence, the Sheriff proceeded in terms of section 20 of the 2003 Act
to hear parties, and answered in the affirmative the questions posed in
subsections (1) and (3) thereof. The
Sheriff then proceeded to hear parties in respect of section 21. On 28 March 2006 the Sheriff answered the question in
section 21(1) in the affirmative, holding that the appellant's extradition
would be compatible with the Convention rights.
Therefore, in terms of section 21(3), he ordered the appellant to be
extradited to the Netherlands.
The appeal to this
court
[5] 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:
"(4) The
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 13
June 2002
that the warrant be issued by a judicial authority had been satisfied. The learned Sheriff erred in holding that the
warrant satisfied the requirements of section 2(1) of the Extradition Act 2003. The learned Sheriff erred in taking into
account the fact that the warrant was for the enforcement of a judicial
decision.
(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
[6] 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.
[7] 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 Sheriff Court, including the present one, so it is
appropriate that we examine the issue of competency for ourselves. We can do so comparatively briefly.
Submissions on behalf of the appellant
[8] 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
Scotland must be conducted by the Lord Advocate. In conducting proceedings, the Lord Advocate
acted on behalf of the category 1 territory from whom the request for
extradition was received. In doing so he
remained subject to section 57(2) of the Scotland Act.
[9] 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 United Kingdom.
By certificate issued pursuant to section 2(7), a person acting on
behalf of the Crown Agent certified that a Part 1 warrant issued in respect of
the appellant was issued by an authority of a category 1 territory which had
the effect of issuing arrest warrants.
Counsel referred to the Stair
Memorial Encyclopaedia Reissue 4 (2002), s.v. Criminal Procedure, para. 79, which contains the following
statement:
"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
[10] 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.
[11] 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 Scotland
[12] 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 Scotland, so section 57(3) of the Scotland
Act had no application.
Discussion
[13] 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.
[14] 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.
[15] 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
[16] 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 Leeuwarden.
It is alleged that he could not properly be regarded as a judicial
authority within the meaning of section 2(2) of the 2003 Act, so that the
warrant was invalid, and should not have been certified under section 2(7).
[17] Article 6 of
the Framework Decision provides inter
alia:
"1. The
issuing judicial authority shall be the judicial authority of the issuing Member State which is competent to issue a
European arrest warrant by virtue of the law of the State. ...
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 Netherlands and in accordance with the
notification.
Submissions on behalf of the appellant
[18] Mr Bovey
maintained that the warrant was invalid for the simple reason that it had been
issued by a public prosecutor. In the Netherlands all public prosecutors could issue
warrants. In Scotland by contrast, the competent judicial
authority had to be a sheriff. The
matter could not simply be left to Dutch law but had to be judged objectively
by European law. Guarantees had also
been given by Ministers in the United Kingdom Parliamentary debates on the 2003
Act. Niedbała v Poland (2001) 33 E.H.R.R. 1137 at para. 48
showed that in this area there had to be an exercise of independent judicial
power. Reference was also made to four
cases, viz. Okendeji v Australia
[2005] EWHC 471, paras.20 to 23; Italy - CCPR/C/66/D/699/1996 [1999]
U.N.H.R.C. 26 (27 July 1999); Criminal Proceedings against Pupino,
case C-105/03 [2005] 3 WLR 1102 and R.
(ex parte Wells) v Secretary of State
for Transport, Local Government and the Regions [2004] 1 CMLR 31 at
para.34.
[19] 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 [2004] 1 AC 101; R.
(Castillo) v Kingdom of Spain
[2005] 1 WLR 1043 and Office of the
King's Prosecutor, Brussels v Armas [2005] UKHL 67,[2005] 3 WLR 1079. The person appointed here was not
a judicial authority and so did not comply with the Framework Decision Article
6.1. What he issued was thus invalid.
Submissions on behalf of the Lord Advocate
[20] In her reply
Miss Crawford submitted that Mr Bovey's argument reflected a
misunderstanding of the Framework Decision and how the United Kingdom had implemented it in the 2003
Act. His argument did not address the
proper approach to the surrender provisions.
These were, and had to be, based upon mutual respect for the legal
systems of other states. Nor did the
argument give proper weight to the purpose of extradition and surrender. The 2003 Act did properly conform to the
Framework Decision. Counsel referred to
Article 6.1. The issuing authority
might be different from the executing authority and the Netherlands had chosen so to inform the General
Secretariat. In the present case the
Crown Agent properly believed that Mr Tempel was duly authorised to issue
the Warrant. In the context of
Article 6.1 the words "judicial authority" meant no more than the person
with the power to issue the warrant.
[21] The appellant
had adopted an extreme position. He invited
the court to say that it had no confidence in the legal system of the Netherlands, and further that it had failed to
implement the Framework Decision by having its public prosecutor as the
judicial authority. This court should
not adopt such an approach and should not look behind what the Netherlands had chosen to do. All the states were aware of what was the
purpose of extradition, which was the prevention of disorder or crime. They were also aware of the words of recital
in the Preamble especially Articles 1, 5 and 6. It had to be assumed that they would respect
these fundamental rights and be aware that "judicial authority" was not
defined. The court should not try to
interpret the information the Netherlands had provided to the Secretariat.
[22] 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.
[23] 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 Netherlands viz.
the Surrender Act 2004, Article 44 of which provides that any public prosecutor
in the Netherlands may act as an issuing judicial
authority. It did not matter that
Mr Tempel's title meant, that in Scottish terminology he did not seem to
be a judicial authority. His role met
the requirements of the Framework Decision because he had the power to issue
the warrant. The second document was a
Review Report commenting on the notifications made by the countries of whom
they had appointed as judicial authority.
The Netherlands had given early notification and,
unlike some Member States, were the subject of no adverse comment. Finally she referred to an article about the
role of the public prosecutor. That
showed how wide was his role in the legal system of the Netherlands.
In the article he was described as part of the judiciary. It was important to note that he was not part
of the executive.
Discussion
[24] 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
the Netherlands have properly carried the Framework
Decision into domestic law. In Wright v Scottish Ministers at paragraph 77 the court said:
" ... 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.
[25] 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
authority in Scotland, it must necessarily make the
warrant he issued invalid. That is
fundamentally wrong for a number of reasons.
In the first place, for these extradition arrangements to work at all
each of the Member States must have confidence in the procedures of the others
and to trust that they will act in good faith.
It has not, and cannot be suggested in the present case that the Netherlands have not acted in good faith. The petitioner has never claimed that he was
not properly convicted. The
jurisprudence of the Netherlands has been for centuries an example to
other nations, not least Scotland.
To suggest that they would act improperly or fall into error in this
practical area is almost an affront to another Member State.
This court should not seek to question the authority of the Chief
Attorney General or look behind his appointment. No authority cited to us supports such an
approach.
[26] 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 Member State determines who is to be the judicial
authority.
[27] In any event,
we were provided with information about the steps taken by the Netherlands.
The Surrender Act 2004 provides by Article 44 that any public prosecutor
in the Netherlands may act as an issuing judicial
authority. In January 2006 the
Commission reported on the implementation of the European arrest warrant
procedures. No adverse comment was made
on what had been intimated by the Netherlands.
Further material supplied from the Netherlands gives information about the position
of the public prosecutor in his relations with inter alios the police and the Minister of Justice. It is not necessary here to refer to this in
detail. Suffice it to say that it shows
that he performs a function as part of the judiciary in that country. He is not part of the executive.
[28] 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 Bow Street Magistrates' Court ex parte Van der Holst (1986) 83 Cr. App. R. 114; Government
of the Netherlands v Fenby [1999]
E.W.H.C. Admin. 619. We do not feel it
necessary to convene the court for any further submissions on these cases.
[29] In these
circumstances the ground of appeal based on the fact that the Part 1 warrant
issued by Mr Tempel fails, and the claims advanced in the third devolution
minute fall to be rejected.
Ground of Appeal
8: no appeal to House of Lords
[30] 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 Scotland is defined as meaning the High Court
of Justiciary. The powers of this court
on appeal are as set out in section 26;
we may allow the appeal if certain conditions are satisfied, or dismiss
the appeal. Section 32 provides for
an appeal to the House of Lords, but by sub-section (13) the provisions of
that section do not apply to Scotland.
Section 32(1) provides that an appeal lies to the House of Lords
from a decision of the High Court, i.e. the High Court in England and Wales, on inter alia an appeal under section 26, but by
sub-section (3) only with the leave of the High Court or the House of
Lords. By sub-section (4) leave to
appeal must not be granted unless (a)
the High Court has certified that there is a point of law of general public
importance involved in the decision, and (b) it appears to the court granting
leave that the point is one which ought to be considered by the House of Lords
[31] 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.
[32] 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
[33] 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 Scotland and England which had been introduced by the
2003 Act. This gave radically different
remedies as between the two jurisdictions.
His complaint was as to the result.
Prior to the 2003 Act, a person in the position of the appellant would
have been able to bring an application for judicial review, as in Wright v Scottish Ministers 2005 S.C. 4533, with the possibility of an
appeal from the Inner House of the Court of Session to the House of Lords. In the absence of an appeal from the High
Court of Justiciary to the House of Lords, even on a point of law of general
public importance, the 2003 Act introduced a disparity of treatment without
explanation. Counsel referred to
decisions which he submitted were illustrative of the approach of the court to
the question of discrimination: Adams v Scottish Ministers 2004 S.C. 655;
Jordan v United Kingdom (Application no.24746/94), 4 May 2001, European
Court of Human Rights, unreported; and BBC Scotland v Souster 2001 SC 458.
[34] Counsel
submitted that the appellant could be regarded as a Scot because he had made
his home here. A disproportionate number
of persons arrested in Scotland would be of Scottish national
origins. All of their rights flowed from
the place of arrest. Those who wished to
contest extradition proceedings would mainly be Scots, so these were the people
affected by the legislative distinction.
Everyone in the United Kingdom could be subject to extradition
proceedings. The population as a whole
was the relevant group. Counsel said
that he was talking about the basic statistics of the population. He accepted that Nelson v United Kingdom (1986) 49 D.R. 170 and Times Newspapers Ltd (Application
no.14631/89), 5 March 1990, European Commission of Human
Rights, were to some extent against him, but he did not advance submissions as
to how they could be distinguished. He
also accepted that the difference of treatment would be less marked if the
court accepted the competency of the devolution minutes, because that meant
that the devolution issues which the appellant sought to raise might be
referred to the Judicial Committee of the Privy Council under paragraph 11 of
Schedule 6 to the Scotland Act 1998, or be the subject of an appeal from
this court, with leave of the court, or with special leave of the Committee,
under paragraph 13.
Submissions on behalf of the Lord Advocate
[35] 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 United Kingdom the Commission said:
"The applicant's complaint concerns
the differences in the penal legislation of two regional jurisdictions within
the United Kingdom.
The Commission finds that any difference in treatment concerning release
on remission which results from these regional differences is not related in
any way to the personal status of the applicant. The Commission accordingly concludes that the
discrimination complained of... does not fall within any of the grounds specified
in Article 14 of the Convention."
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 Scotland, and was dealt with in the way in
which all persons arrested in Scotland were dealt with. He could not accordingly claim to be a
"victim" within the meaning of the human rights legislation.
Discussion
[36] 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 Scotland are the victims of discrimination,
because there is no appeal from this court to the House of Lords. This is a proposition which will not bear
examination. As we understand it, and as
is reflected in the relative provisions of the 2003 Act, an appeal to the House
of Lords in criminal proceedings in England is only available with leave and if
there is a point of law of general public importance. The practice in this court, in an appropriate
case, is for an appeal to be heard by a court of five or more judges. We have no reason whatever to think that the
results in this system are in any way inferior to those in the English system,
or that persons accused of criminal offences in Scotland are in any way less fairly treated
than those in England.
The difference between the systems is just that, a difference, not an
inequality. And in any event, many
points of law of general public importance are likely to be capable of
treatment as devolution issues and accordingly available for consideration by
the Judicial Committee of the Privy Council.
No doubt Parliament took these considerations into account in excluding
an appeal to the House of Lords from this court under the 2003 Act.
[37] Additionally,
it is impossible to see how the appellant could be described as a
"victim". The fact that he is receiving
different treatment in Scotland (insofar as there is a difference),
compared with what would have happened had he been arrested in England, arises simply because of the
accident of his having been arrested in Scotland.
This was not because of any personal characteristic, but because of his
presence within the jurisdiction. As was
pointed out in the course of the hearing, it is not difficult to figure a case
where it becomes a matter of mere chance on which side of the border a fugitive
is arrested. The argument from
statistics will not avail the appellant:
we have been provided with no detailed information which would allow us
to see what proportion of persons subjected to extradition proceedings in Scotland are of Scottish origin or resident
in Scotland, and without such information a
comparative exercise, for what it is worth, cannot be undertaken. It is impossible to see how Article 14
could be engaged, or how the appellant could be regarded as the victim of
discriminatory treatment: see Nelson v United Kingdom and Times Newspapers Ltd, supra.
[38] 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
Article 4(6)
[39] 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 Member State and that State undertakes to execute
the sentence or detention order in accordance with its domestic law."
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
[40] 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.
[41] 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.
[42] Mr. Bovey
emphasised (by way of background) that the appellant was a citizen of the United Kingdom, although previously he had lived in
South Africa, the Netherlands and in England.
He had lived in the south west of Scotland in Port Patrick for some two years,
along with his wife and daughter. His
leisure interests and friends were there.
Although the effect of the implementation of the Framework Decision
which he contended for would have been that he would have been required to
serve his sentence in the United Kingdom, that would have been a less
significant interference with his private and family life as compared with the
requirement to serve his sentence in the Netherlands.
It would have been easier for his family to visit him in prison. He would, generally, have been with British
prisoners, looked after by British staff.
Although it was possible, by virtue of the Convention on the Transfer of
Sentenced Persons, made at Strasbourg on 21 March 1983, for a person serving a
sentence of imprisonment in the Netherlands to apply for, and obtain, transfer
to the United Kingdom to serve the rest of his or her sentence, attention was
drawn to a leaflet issued by the Foreign and Commonwealth Office which
indicated that a prisoner must normally have at least six months of the sentence
left to serve when the application is made.
It appeared, from a letter from the Crown Office, dated 26
April 2006,
that after 29 April 2006 the appellant would have less than
six months to serve. The arrangements
for transfer were in these circumstances not apparently open to him.
[43] 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 Netherlands for the attention of the judicial
authorities of the other Member States of the European Union" that, in the Netherlands, the execution of a European arrest
warrant would be refused if
"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 Amsterdam will inform the issuing judicial
authority that the surrender will be refused and that a request for transfer of
the enforcement of that sentence or order will be accepted, where a treaty
basis for such a transfer exists."
It was thus plain that in similar circumstances an
extradition request from the United Kingdom to enable a person sentenced in the United Kingdom to serve his sentence there would be
refused in the Netherlands.
This amounted to unequal and discriminatory treatment. If it was inappropriate to have regard to the
way the Netherlands treated requests in respect of its
nationals, the United Kingdom statute nevertheless could be said
to operate in a discriminatory way.
Persons such as the appellant resident and settled in the United Kingdom fell to be treated in the same way
as others who were not. Reference was
made to Thlimmenos v Greece 2001 (31) EHRR 15 where it
was said (at para. 44):
"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."
[44] The
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 [2005] 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 [2004] 2 AC 323.
Reference was also made to R
(Razgar) v Secretary of State for the
Home Department [2004] 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 [1999] 1 AC 69 (at
page 80), quoted with approval by Lord Steyn in R (Daly) v Secretary of State
for the Home Department [2001] 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 United Kingdom could, and should, have made
provision in the manner submitted to protect the rights of U.K. residents and nationals. Although the subject-matter was different,
some assistance could be found in the approach of the German Constitutional Court in D v City of Hamburg 2 BVR
2236-04, 18 July 2005.
Submissions on behalf of the Lord Advocate
[45] 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
the United Kingdom's implementation of the Framework
Decision was discriminatory. What the Netherlands chose to do in respect of their
nationals was irrelevant. All fugitives
in the United Kingdom who had been sentenced abroad for
relevant extradition offences were treated equally under the 2003 Act. Nor could the appellant or those in his
circumstances be regarded as significantly different from others who had been
so sentenced. There could not be said to
have been any disproportionate interference with Article 8 rights. It was accepted that the present case was
akin to a "domestic case" of the type described in R (Ullah) v Special
Adjudicator, and that the sheriff had erred in so far as he had asked
whether any breach of Article 8 could be said to be flagrant. Nevertheless, he had properly applied the
three-stage test referred to by Lord Clyde in De Freitas v Permanent
Secretary of Ministry of Agriculture, Fisheries, Lands and Housing. Bearing in mind that the legislative object
was to return persons, properly accused or convicted of an extradition crime in
a foreign country, to face trial or to serve sentence there in accordance with
international obligations (which there was a strong public interest to respect)
it was plain that the tests were met. D v City
of Hamburg was not of assistance.
Unlike the position in some countries, such as Germany, there existed no constitutional or
other right in an individual in the United Kingdom not to be extradited, nor was there
any constitutional or other right to serve a sentence in any particular place.
Discussion
[46] 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.
[47] 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 Greece (at para. 44):
"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 United Kingdom who are subject to a request for
extradition under a European arrest warrant to serve a sentence imposed abroad
will be treated in the same way.
[48] 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 United Kingdom fails to treat them differently
given the existence of arrangements under which application can be made for
transfer to serve the remainder of any sentence in the United Kingdom (to which arrangements we refer in
more detail below).
[49] 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 United Kingdom.
[50] 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 Warren the object of extradition was explained by Hale L.J. in
these terms (para. 40):
'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."
[51] 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 United Kingdom had chosen to give effect to the
Framework Decision in the 2003 Act.
Indeed, it appeared to be his argument as it developed not merely that
the Act should have provided for a possible ground of refusal (as apparently
contemplated in the Framework Decision Article 4(6)), but for a mandatory
ground of refusal (as, it appears, has been adopted in the Netherlands). In deciding how to implement the Framework
Decision it cannot be doubted that Parliament had a wide margin of
appreciation. What no doubt required to
be balanced (in the context inevitably of a number of practical considerations)
was the public interest, such as referred to in Wright v Scottish Ministers, and
the Article 8 rights of individuals in a situation similar to the
appellant. We are quite unable to say
that the form of implementation adopted - without provision for a relevant
ground of refusal, which was entirely open in terms of the Framework Decision
itself - was not within that margin of appreciation, or that its effect would
be disproportionate so far as the appellant was concerned. In the first place, (as recorded in the
sheriff's decision) provision was already made (and remains) under the
Convention on the Transfer of Sentenced Persons, made at Strasbourg on 21 March
1983, for a person sentenced in a foreign court to be able to apply to be
returned to serve that sentence in the United Kingdom. The Convention entered force as regards the United Kingdom on 1 August 1985.
It applied in respect of many other territories and in particular was
ratified by, and entered into force in respect of, the Netherlands on 1 January 1988.
Further, the public interest in respecting international extradition
obligations (including return of a person properly convicted in a foreign
country to serve a sentence there) is plainly strong. We note that in one of the cases to which the
sheriff was referred, R (Bermingham)
v The Director of the Serious Fraud
Office and Another 2006 EWHC 200 (Admin), it was said by Laws L.J. (at
para. 118)
"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 United Kingdom, and that family and private rights
would in any event be materially interfered with. So far as the appellant is concerned,
although it may be that if he was returned to the Netherlands he would be
unable to secure a transfer, that, it seems, would only be because the period
which remains to be served of his sentence (and that in a country not far from
the United Kingdom) is short. And, so
far as the sheriff was concerned, the alternative to execution of the warrant
was that the appellant would not serve any of the remainder of his
sentence. Overall, and however the
matter is approached, including application of the three-stage test to which we
were referred, we cannot say that the extradition of the appellant to serve the
remaining part of his sentence in the Netherlands would amount to a
disproportionate interference with his Article 8 rights.
[52] 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 United Kingdom.
[53] 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.
Result
[54] 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.
