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APPEAL COURT,
HIGH COURT OF JUSTICIARY
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Lord
Justice Clerk
Lord
Macfadyen
Lord
Nimmo Smith
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[2006] HCJAC 56
Appeal Nos: XC920/05 and XC19/06
OPINION OF
THE COURT
delivered by
THE LORD JUSTICE CLERK
in
APPEAL
by
ANTONIO LA
TORRE
Appellant;
against
HER MAJESTY'S
ADVOCATE
Respondent:
_______
|
For
the appellant: Bovey QC; Mrs Hughes; Nolf & Co., Aberdeen
For
the respondent: Moynihan QC; Crown Agent
14 July 2006
I INTRODUCTION
[1] All
members of the court have contributed to this Opinion. These are appeals
against (i) the decision of Sheriff K M Maciver, a sheriff of Lothian and
Borders at Edinburgh, dated 27 September 2005 by which he remitted the
appellant's case to the Scottish Ministers for them to decide whether or not to
extradite the appellant to Italy to stand trial on certain charges relating to
organised crime, and the decision of the Scottish Ministers dated 26 November
2005 by which they ordered extradition; and (ii) the decision of Sheriff
Maciver dated 21 December 2005 by which he ordered the extradition of the
appellant. The first appeal (the Part 2 appeal) relates to an extradition
request made by the Government of Italy in January 2005. The second (the
Part 1 appeal) relates to a European Arrest Warrant submitted to the Crown Agent
in September 2005. The appellant has also lodged devolution minutes in
both appeals.
II
THE EXTRADITION ACT 2003
[2] The
2003 Act made fundamental changes to the law of extradition. It provides
for two separate regimes of extradition based on the distinction between
category 1 and category 2 territories. Throughout this Opinion all
references to statutory provisions are references to the 2003 Act unless we
state otherwise. The following summary covers only those features of the
2003 Act that are relevant to the issues in this case.
Part 1
[3] Part
1 of the Act implements the Council Framework Decision of 13 June 2002
on the European Arrest Warrant and the surrender procedures between Member
States (2002/584/JHA) (the Framework Decision). It sets out a code of
procedure for extradition on a European Arrest Warrant. The Warrant is
issued by a Member State with a view to the arrest and surrender by another Member
State of a requested person for the purposes of his being prosecuted in the
requesting State (s 2(3)(a)) or for the execution in that State of a custodial
sentence or detention order (s 2(5)(a)). The European Arrest Warrant
regime is designed to achieve fast track extradition procedures based on the
principle of mutual recognition of judicial decisions by the parties to
it. Part 1 of the Act applies to extradition between the United
Kingdom and category 1
territories, that is to say those which are parties to and have implemented the
Framework Decision.
[4] This procedure is initiated by the issue
of a European Arrest Warrant ("the Warrant") by a judicial authority in a
category 1 territory. When a
Warrant is received by the Crown Agent, the "designated authority" in Scotland,
a decision must be taken whether to certify the Warrant for execution (s
2(7)-(10); s 3). As soon as practicable after an arrest is effected, a
copy of the Warrant must be given to the arrested person and he must be brought
before a sheriff of Lothian and Borders (s 67(1)(b)), failing which he must be
discharged (s 4). At this appearance, the sheriff must inter alia fix
a date for the holding of the extradition hearing within 21 days from the date
of the arrest (s 8(1), (4)).
[5] At the extradition hearing, the Sheriff
must decide whether the offence specified in the Warrant is an extradition
offence (s 10(2)). The answer to that question depends on whether the person
has yet to be convicted, or sentenced, in respect of the offence in the issuing
state or is said to be unlawfully at large after being sentenced (ss 64-66,
Sched 2). The sheriff must then consider whether extradition is barred
for any of the reasons listed in section 11(1).
These reasons include the rule against double jeopardy (s 11(1)(a))
and the passage of time (s 11(1)(c)).
If none of these reasons applies, the sheriff must decide whether the
person is accused of the extradition offence or is unlawfully at large after
conviction of it (s 11(4), (5)). If the
person has been convicted, the sheriff is required to determine whether he was
convicted in his presence and, if not, whether he deliberately absented himself
from his trial (s 20(1), (3)). If the sheriff decides that he did not, he
must decide whether the person would be entitled to a retrial or, on appeal, to
a review amounting to a retrial (s 20(5)). If he would be, the sheriff
must then consider the human rights aspects of the proposed extradition under
section 21 (s 20(6)). It provides inter alia as follows:
"21 Human rights
(1) If the judge is required to
proceed under this section (by virtue of section 11 or 20) he must decide
whether the person's extradition would be compatible with the Convention rights
within the meaning of the Human Rights Act 1998 (c 42).
(2) If the judge decides the
question in subsection (1) in the negative he must order the person's
discharge.
(3) If the
judge 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 ..."
Where
the sheriff decides to order extradition, which in Part 1 is an exclusively
judicial decision, an appeal lies to the High Court of Justiciary (s 26(1), s
216(9)), on a question of fact or law, unless the person has consented to
extradition. It must be brought within seven days of the granting of the
order (s 26(3), (4)).
Part 2
[6] Part
2 governs the procedure for extradition between the United
Kingdom and category 2
territories.
[7] The Scottish Ministers may begin
proceedings under Part 2 by sending to the sheriff of Lothian and Borders a
certificate in respect of a valid request from a category 2 territory under
section 70(1), stating that it has been made in the approved way and enclosing
with it the extradition request itself and a copy of any relevant Order in
Council (s 70(8), (9)). The sheriff may issue a warrant for the arrest of
the person if he has reasonable grounds for believing that the offence in
respect of which extradition is requested is an extradition offence and that
there is evidence that would justify the issue of a warrant for the arrest of a
person accused of the offence within the sheriff's jurisdiction, if the person whose
extradition is requested is accused of the commission of the offence; or
evidence that would justify the issue of a warrant for the arrest of a person
who was unlawfully at large after conviction of the offence within the
sheriff's jurisdiction if the person whose extradition is requested is alleged
to be unlawfully at large after conviction of the offence (s 71(2), (3)).
[8] Where a person is arrested under a
section 71 warrant, an extradition hearing must take place within two months of
his appearance before the sheriff (s 75(1)) unless a later date is fixed in the
interests of justice (s 75(4)).
[9] At the extradition hearing, the sheriff
must decide whether the documents sent to him by the Scottish Ministers consist
of or include the formal documents necessary for the section 71 warrant to be issued
(s 70(9)); the particulars of the person whose extradition is requested;
particulars of the offence specified in the request and, in the case of a
person accused of an offence, a warrant for his arrest issued in the category 2
territory or, in the case of a person alleged to be unlawfully at large after
conviction of an offence, a certificate issued in the category 2 territory of
the conviction, and of the sentence if he has been sentenced (s 78(2)).
If the sheriff is not so satisfied, the person must be discharged (s
78(3)). If the sheriff is content that the necessary documents have been provided,
he must then be satisfied (s 78(5)) that the person before him is the person
whose extradition is requested, that the offence is an extradition offence (cf
ss 137-138) and that copies of the documents sent by the Scottish Ministers to
the sheriff have been served on the person (s 78(4)).
[10] The sheriff is then required to be
satisfied that extradition is not barred for any of the reasons set out in section
79(1). These reasons include, as
in Part 1, the rule against double jeopardy (s 79(1)(a); s 80) and the passage
of time (s 79(1)(c); s 82).
[11] Where a person has already been convicted
of the offence, the same considerations as apply to category 1 territories must
then be applied; for example, in the case of a person convicted in absentia,
whether he was wilfully absent. If a person has been convicted in
absentia without knowledge of the proceedings, a prima facie case
must be established against him as in the case of an accused person.
[12] If the sheriff is satisfied as to these
matters, he must then consider whether an order for extradition would be
compatible with the person's Convention rights (s 87). If not, he must
order the person's discharge.
[13] When he is satisfied on all of these
matters, the sheriff must send the case to the Scottish Ministers to decide
whether or not to extradite (s 92(1)). He must at that stage inform the
person that he has a right of appeal to the High Court of Justiciary, but that
any appeal will not be heard until the Scottish Ministers have made their
decision (s 92(2)). If the
Scottish Ministers decide to make an extradition order (s 93) they must inform
the person of that decision and inform him in ordinary language of his right of
appeal against their decision to the High Court of Justiciary (s 100(1)).
[14] The person to be extradited may appeal
against the decision of the sheriff on a question of law or fact within
fourteen days of his being informed of an order by the Scottish Ministers for
his extradition (cf s 103). He may appeal against the extradition order on
a question of fact or law within the same time limit (s 108).
Designation of Italy as a category
1 or 2 territory
[15] On 1 January 2004, when the European
Arrest Warrant regime came into force, only eight of the then fifteen Member
States had ratified the Framework Decision. Since then, all of the other
Member States, including the ten accession countries, have implemented it.
[16] Italy
made a formal request for extradition in this case on 9 December 2004.
Italy
was then a category 2 territory. The request therefore fell within Part
2.
[17] On 14 May 2005 Italy
implemented the Framework Decision. Thereafter, the Secretary of State
for the Home Department designated Italy
as a category 1 territory with effect from 28 July 2005 (The Extradition Act
2003 (Amendment to Designation (No 2) Order 2005 (2005 SI No 2036)).
III
HISTORY OF EVENTS LEADING TO THE EXTRADITION REQUESTS
The charges
[18] On 2 January 2003, Pierluigi Di Stefano, a
Preliminary Investigations Judge attached to the Court of Naples, issued a
pre-trial custody order against the appellant in respect of the extradition
charges. The principal charge is:
"...for having participated together with
MORRA Carmine (deceased), each one aware of his contribution, covering specific
roles, in a camorra-type criminal association known as the "LA TORRE CLAN",
having a summit type structure, organized, promoted and led by Augusto LA
TORRE, first, and then by Antonio LA TORRE, which, using the force of
intimidation deriving from the bond of association, operates in the Mondragone
area and in other zones, to obtain profits or unjust advantages for themselves
or for others, and for achieving the following illegal purposes:
threatening witnesses in criminal
proceedings against the LA TORRE clan of in others (sic)
control and acquisition of public and
private contracts and works
extortion to the detriment of economic
operators
drug traffic
trafficking in counterfeit coins
recycling money coming from illegal
activities of purchasing real estate and companies, also abroad
With the aggravating circumstances of
having arms and explosives available and of obtaining or controlling economic
activities financed in whole or in part with the price, the product or the
profit of the crimes.
With the following further specific
aggravating circumstances:
for Antonio LA TORRE, Mariano LA TORRE,
Giovanni BOCCOLATO, Salvatore ORABONA, of having had directive and
organizational roles ...
In Mondragone, adjoining municipalities
and Terni, until May
1999" (Official Translation, pp
8-10).
The other charges
involve inter alia extortion, fraud, robbery and counterfeiting.
[19] The Statement of Facts dated 6 May 2003
compiled by the Assistant Public Prosecutor in the District Mafia Department of
the Office of the Public Prosecutor at the Court of Naples, gives the following
account of the facts that are alleged.
"[The appellant] has been charged
with the crime of participation in a camorra-type association centred on the
commission of acts of extortion and other crimes against property. From
the investigations carried out - above all thanks to telephone wire-tapping -
it has emerged that in the period covered by the investigations (1998-99) [the
appellant] was the undisputed head of the criminal organization and
directed all the group's activities, programming numerous acts of extortion and
carrying them out personally and/or by telephone and/or by sending affiliated
members. In fact, alongside the crime charged of camorra association,
numerous end-crimes emerge, especially acts of extortion to the detriment of
entrepreneurs in Mondragone, as well as participation in trafficking in
counterfeit coins and the forging of documents aimed at helping other members
to remain at large, and, lastly, the threat made to those who had 'dared' to
report the illegal activities of the criminal group to the Authorities" (Official
Translation, supra, p 1).
On the same date, the
Assistant Public Prosecutor declared that these crimes were not of a political
nature and did not constitute an infraction of military and fiscal laws.
[20] "Camorra" is defined in the Oxford English
Dictionary as "a secret society of lawless malcontents in Naples
and Neapolitan cities", and in Chambers English Dictionary as "a Neapolitan
secret society similar to the Mafia." Counsel
for the parties were content that the court should proceed on the basis that it
is a society that engages in unlawful activities. That is important since
one of the appellant's grounds of appeal is that his extradition is being
sought for an offence that is not known to the law of Scotland.
Conviction in the Court of Naples, No GIP 48797/03
[21] On 25 February 2004, Sergio Marotta, the
Judge for Preliminary Investigations, acquitted the appellant on four charges,
convicted him of sixteen charges and pronounced the following sentence:
"... and therefore, deeming there to be
continuation between all the aforesaid crimes, sentences him to the punishment
of thirteen years' imprisonment and to the fine of 1400.00 euro, his earlier
conviction by the Court of Santa Maria Capua Vetere being considered absorbed
in the aforesaid punishment (Official Translation,
p 318) ...
Having read Arts 29 et seq,
declares Antonio LA TORRE ... to be permanently debarred from public office, and
legally debarred during the period of serving their punishment; ...
Having read Art. 32/quarto of the Penal
Code, declares ... Antonio LA TORRE ... incapable of contracting with the Public
Administration.
Orders those convicted to pay jointly the
trial costs, and each of them to pay his respective costs of preventative
custody.
Indicates as 90 days the term for
depositing the grounds hereof (ibid, p 320) ... "
Memo from Raffaele Cantone, Assistant Public Prosecutor at
the Court of Naples to Giovandomenico Lepore, the Advocate General at the Court
of Naples, dated 18 May 2004
"Re: Request for information on the
position of Antonio La Torre.
With reference to your request dated
17.05.04, please find herewith an excerpt of the preventative order containing
the essential parts of the document regarding Antonio La Torre.
The following points should also be
observed:
La Torre has in fact been convicted for
the crime of camorra-type association and for various acts of extortion; the
decision of the sentence is attached, as the grounds thereof have not yet been
deposited (the final term for depositing them is 25 May this year)
It is thus not known whether La Torre
will lodge an appeal
La Torre was certainly informed about the
proceeding, and indeed he chose and appointed Avv Angelo Raucci of the Santa
Maria CV bar as his personal defence counsel
It is not possible to foresee how long it
will take before the appeal trial is held; as, however, a number of persons
accused in the proceeding are in custody, the appeal judgement should naturally
take place within the terms contemplated in Art. 303 of the Code of Criminal
Procedure ... (Official Translation, pp 4-5)".
[22] We now have to consider the procedures and
the decisions of the sheriff under both Part 1 and Part 2.
IV
THE PART 2 REQUEST AND ENSUING PROCEDURES
[23] On
9 December 2004,
Vittorio Misiti, Magistrate, of the Italian Ministry of Justice, formally
requested the extradition of the appellant. Among the documents attached
to the request were the abstract of the certified copy of the pre-trial custody
order and a certified copy of the Judgment No GIP 48797/03 (supra). This Judgment is
erroneously described as having been rendered by the Pre-trial Investigations
Judge attached to the Court of Naples, Pierluigi Di Stefano. It was
rendered by Judge Sergio Marotta. The request certifies that Raffaele
Cantone and Pierluigi Di Stefano are two magistrates of the Italian
Republic
working at the Office of the Public Prosecutor attached to the Court of Naples
and at the Court of Naples respectively. On 19 January 2005
the Italian Embassy in London
forwarded the formal request to the Scottish Ministers.
[24] On 7 February 2005 the Scottish Ministers
certified the request under section 70(1) and sent to the sheriff of Lothian
and Borders the request, the certificate and a copy of The Extradition Act 2003
(Designation of Part 2 Territories) Order 2003 (2003 SI No 3334), which
designated Italy as a category 2 territory.
[25] On 9 February 2005 Sheriff Maciver, being
satisfied that the requirements of section 71 were met, granted a warrant for
the appellant's arrest. On 26
September 2005, he held the extradition
hearing.
[26] Among the documents before the sheriff
there was an affidavit of an Italian practitioner, Avv Guglielmo Busatto, which
set out that the sentence imposed on the appellant was passed on 17 June 2005
and would become final on 19
October 2005 unless there was an appeal to
the Corte di Cassazione in Rome
in the meantime. There was also an extract from the letter of request by
Magistrate Vittorio Misiti in which he said that the judgment was not final and
that the sentence was not enforceable.
[27] On 27 September 2005, the sheriff found
that (1) all the charges laid against the appellant constituted extradition
offences; (2) the 2003 Act applied to
offences allegedly committed before its commencement; (3) copies of the
documents sent to the sheriff had been served on the appellant in terms of
section 78(4)(c); (4) the appellant's status was that of a person accused
in a category 2 territory of the commission of the offences in that territory;
and (5) there was no bar to extradition in respect of double jeopardy or the
passage of time. He therefore sent the case to the Scottish Ministers for
a decision as to whether the appellant should be extradited. On 26 November 2005
the Scottish Ministers ordered extradition. These decisions are the
subject of the Part 2 appeal.
V
THE EUROPEAN ARREST WARRANT (PART I) AND ENSUING
PROCEDURES
The Warrant
[28] On 31 August 2005, a European Arrest
Warrant was issued by Judge De Simone, a Pre-Trial Judge attached to the Court
of Naples, for the offence of "Extortion and Racketeering" aggravated by
"Mafia-style activities" under the Italian Penal Code. The Warrant bore to set out a
"description of the circumstances in which the offence was committed, including
the day, time, place and degree of participation in the offence of the
requested person" in the following terms:
"Offence committed in
Mondragone between October and December 2001.
Antonio LA TORRE carried out various violent and threatening activities
committed in complicity with other persons, availing himself of the
intimidating power of the associative bond of the LA TORRE clan which controls
the area, aimed at obtaining the payment of a bribe from a local entrepreneur
in relation to the contracts for catering services he had been awarded, event [sic] which did not occur due to
circumstances independent of their will."
Attached to the Warrant was a document dated 21 March 2005 in the name of Raffaele Cantone, the
Assistant Public Prosecutor which made the following statement:
"La Torre Antonio answers as
mandatory of an extortion's [sic]
attempt against an entrepreneur dealing with catering; in particular Mr La
Torre from Scotland,
where he lived when the facts occurred, would ordered [sic] his Caserta's [sic] emissaries to contact the
entrepreneur and pushing him to pay a huge sum of money."
[29] On 22 September 2005 the Warrant and the relevant
documentation were sent to the Crown Agent. On 26 September 2005
the Warrant was duly certified by the appropriate official at Crown
Office. The appellant, who was already in custody under Part 2, was
arrested on the same day. The various procedural steps under Part 1 were
then carried through. On 21
December 2005 the sheriff refused a
devolution minute lodged by the appellant (infra) and, having repelled a
series of objections to the Warrant, all of which are renewed in the grounds of
appeal, granted an order for extradition.
VI
THE DEVOLUTION ISSUES AND THE GROUNDS OF APPEAL
Part 1 appeal and Part 2
appeal - common issues
[30] In both appeals the appellant has lodged a
devolution minute on the ground that the exclusion of a right of appeal from
this court to the House of Lords is a violation of his rights under articles 5,
6 and 8, when read with article 14, of the European Convention on Human
Rights. In addition, counsel for the appellant has made the fundamental
submission that the 2003 Act does not apply at all to conduct occurring before
the date on which it came into force (Part 1 and Part 2 appeals, ground
7). In both appeals he also submits that the extradition is barred by the
passage of time (Part 1 appeal, ground 8; Part 2 appeal, ground 11).
Issues in the Part 1 appeal only
[31] In
this appeal the appellant has presented a further devolution argument alleging
that his Convention rights will be infringed if he should be extradited.
[32] In addition to the devolution issue,
counsel for the appellant argued the following further grounds, namely that the
Warrant failed adequately to specify where the conduct alleged took place and
accordingly could not be said to set out an extradition offence (Part 1 appeal,
ground 6); that the Act failed to reflect the discretion reserved to the
judicial authority by the Framework Decision to refuse to execute the Warrant
where it relates to offences committed wholly or in part in the territory of
the Member State, and accordingly infringed the appellant's rights under
article 8 of the Convention (part 1 appeal, ground 10); that the Act
failed to reflect the provision of the Framework Decision that allows the law
of the executing state to make it a condition of the execution of the Warrant
that the person extradited should be returned to the executing state to serve
his sentence there, and in this respect too infringed his rights under article
8 (Part 1 appeal, ground 9); that the Warrant failed to comply with the
requirements of the Framework Decision (Part 1 appeal, ground 4); and that it
failed to contain the statement required by section 2(2)(a) and (3) of the Act
(Part 1 appeal, ground 5).
Issues in the Part 2
appeal only
[33] Counsel for the appellant restricted this
appeal to the following further grounds; namely that the sheriff erred in
holding that the requirements of service in section 78(4) of the Act had been
satisfied (Part 2 appeal, ground 6); that the sheriff erred in holding that the
first charge was an extradition offence, since membership of a Mafia-type
criminal association was not an offence known to the law of Scotland (Part 2
appeal, ground 8); that the sheriff erred in holding that the appellant fell to
be regarded as a person "accused" of a criminal offence, he having been already
convicted and sentenced (Part 2 appeal, ground 9); and that the sheriff erred in failing to hold
that the rule on double jeopardy barred extradition (Part 2 appeal, ground 10). Grounds 4 and 12 in this appeal were not
argued.
VII
SUBMISSIONS AND CONCLUSIONS
(A) The devolution issues
(i) The competency of the appellant's devolution minutes
[34] 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, ie
the rights and fundamental freedoms set out in those provisions of the European
Convention on Human Rights and the Protocols thereto specified in
section 1 of the Human Rights Act 1998.
[35] The
appellant has lodged three devolution minutes, one in the Part 1 appeal
before the sheriff and one in each of the Part 1 and Part 2 appeals
before this court. It is not necessary
at this stage to do more than to explain that in each of these minutes it is
alleged that the present proceedings infringe the appellant's Convention rights
in one way or another. We shall discuss
the substance of these allegations in due course.
[36] 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 minute before the sheriff in the present proceedings, and again before
us in respect of all three devolution minutes.
In the present case, the sheriff accepted the concession. In the case of HM Adv v Headrick 2005
SCCR 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, so it is appropriate that we examine the issue of competency for
ourselves. We can do so comparatively
briefly.
Submissions for the appellant
[37] Counsel
for the appellant took as his starting point the fact that Italy was, at the time the
Part 2 request was received, designated for the purposes of Part 2 of the
Extradition Act 2003. By
section 141(1) and (2), Part 2 applies, in relation to any function
which falls under that Part to be exercised in relation to Scotland only, as if references in
that Part (with certain specified exceptions) to the Secretary of State were to
the Scottish Ministers. Accordingly, by
section 70(1) the Scottish Ministers must issue a certificate under that
section if they receive a valid request for the extradition to a category 2
territory of a person who is in the United Kingdom. Sub-section (3) provides the criteria
for the validity of a request for a person's extradition. By certificate issued pursuant to
section 70(1) on 7 February 2005 the Minister for Justice,
being one of the Scottish Ministers, certified that the request for extradition
was valid and made in the approved way (supra). By section 191(1) the Lord Advocate must
inter alia (a) conduct any
extradition proceedings in Scotland. In terms thereof the Lord Advocate has
conducted the extradition proceedings, and continues to do so. The Lord Advocate is one of the Scottish
Ministers and a member of the Scottish Executive in terms of
section 44(1)(c) and (2) of the Scotland Act. On or about 27 September 2005 the
sheriff of Lothian and Borders at Edinburgh sent the appellant's case
to the Scottish Ministers for their decision whether the appellant was to be
extradited. On 26 November 2005 the Scottish Ministers
ordered the extradition of the appellant in terms of section 93(4). The appellant has now appealed to this court
in terms of sections 103 and 108.
[38] It was
submitted on behalf of the appellant that in issuing a certificate and in
ordering the appellant to be extradited the Scottish Ministers acted in a
manner inconsistent with the appellant's Convention rights and therefore
contrary to section 57(2) of the Scotland Act. Further, by conducting the extradition
proceedings the Lord Advocate acted and continued to act in a manner
inconsistent with the appellant's Convention rights and therefore contrary to
section 57(2) of the Scotland Act. This
sub-section provides inter alia that
a member of the Scottish Executive, ie
any of the Scottish Ministers, including the Lord Advocate, has no power to do
any act so far as it is incompatible with any of the Convention rights. Accordingly the acts of either the Scottish
Ministers or the Lord Advocate could be made the subject of a devolution issue
within the meaning of paragraph 1 of Schedule 6 to the Act. The analysis of the statutory provisions
which Sheriff Stoddart made in HM
Adv v Headrick overlooked the
fact that that when conducting extradition proceedings in Scotland in terms of
section 191(1)(a) of the 2003 Act the Lord Advocate remained a member of
the Scottish Executive and did not therefore cease to be subject to the
provisions of section 57(2) of the Scotland Act.
[39] Counsel
then turned to the provisions of Part 1 of the 2003 Act. Under the provisions of this part, 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 The Extradition Act 2003 (Part 1
Designated Authorities) Order 2003 (2003 SI No 3109) ("the 2003 Order"),
made in exercise of the powers conferred by section 2(9) and (10) of the
Act, the Crown Agent of the Crown Office was designated for the purposes of
Part 1 of the Act. At the time the
Part 1 request was received, Italy was designated for the
purposes of Part 1 of the Act. By
certificate issued pursuant to section 2(7) on 26 September
2005,
a person acting on behalf of the Crown Agent certified that a Part 1
warrant issued in respect of the appellant by the Court of Naples was issued by
an authority of a category 1 territory which had the function of issuing
arrest warrants. Counsel referred to the
Stair Memorial Encyclopaedia Reissue 4 (2002),
sv 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."
The person who issued the certificate on behalf of the
Crown Agent was employed as a procurator fiscal depute and also appeared on
behalf of the Lord Advocate in extradition hearings under the 2003 Act. In terms of section 191 of the 2003 Act,
the Lord Advocate was conducting the extradition proceedings. In terms of section 44(1)(c) of the
Scotland Act the Lord Advocate is a member of the Scottish Executive.
[40] Counsel
submitted, on the same basis as in relation to Part 2, that by conducting
the extradition proceedings the Lord Advocate had acted and continued to act in
a manner inconsistent with the appellant's Convention rights and therefore
contrary to section 57(2) of the Scotland Act. Further, by commencing the extradition
process in the foregoing circumstances as he had done, the Crown Agent acted in
a manner inconsistent with the appellant's Convention rights. As a civil servant answerable to the Lord
Advocate, the acts of the Crown Agent were 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 HM Adv v Headrick Sheriff Stoddart had attached importance to the
mandatory nature of the role of the Scottish Ministers under Part 2. This might be contrasted with the discretion
conferred on the Crown Agent in Part 1 cases.
Submissions for the Lord
Advocate
[41] Counsel
for the Lord Advocate conceded the competency of the devolution minutes in both
appeals. He said that this concession
was made notwithstanding the decision of Sheriff Stoddart in HM Adv v Headrick. Counsel said that
he accepted that a different argument could be advanced, but this was the
considered position of the Lord Advocate and the Solicitor General for Scotland. (It should be noted that at the time when
this appeal was heard the office of Advocate General was vacant, so no separate
submissions were advanced on behalf of the Advocate General. We are aware, however, that in a subsequent
appeal, HM Adv v Goatley, the then newly appointed Advocate General advanced a
submission concurring with that advanced for the Lord Advocate, and conceding
the competency of devolution minutes in extradition proceedings.) Counsel said that it was easier to justify the
concession in respect of Part 2 than Part 1 of the 2003 Act.
[42] So far
as Part 2 was concerned, it was ultimately a decision for the Scottish
Ministers, in terms of section 93(4) of the 2003 Act, to order a person to be
extradited to a territory to which his extradition was requested. By section 87(1), the sheriff had to
decide whether the person's extradition would be compatible with the Convention
rights. If the person claimed that
extradition would contravene his Convention rights, he was saying in effect
that for the Scottish Ministers to authorise his extradition would be
incompatible with his Convention rights.
He could present a similar argument on appeal to this court under
section 103 of the 2003 Act.
Nonetheless, when such an argument was presented, it amounted at the
same time to a contention that the Scottish Ministers would not have the power
to act by making the decision that he should be extradited. This was a devolution issue within the meaning
of Schedule 6 to the Scotland Act.
[43] Counsel
said that this concession was no more than practical. The purpose of the specific statutory
arrangements in respect of devolution issues was to ensure consistent
application of Convention rights throughout the United Kingdom, promoted by intimation to
the Advocate General for Scotland and the possibility of an
appeal to the Privy Council. While, in
terms of paragraph 13 of Schedule 6, leave to appeal to the Privy
Council was required, leave was unlikely to be granted unless the appeal raised
a point of law of general public importance.
[44] Counsel
said that the analysis in respect of Part 1 was different. By section 2(9) the designated authority
was the authority designated for the purposes of Part 1 by Order made by
the Secretary of State. By
section 141(1), references in Part 2 to the Secretary of State were
to be taken to be references to the Scottish Ministers. There was no comparable provision in
Part 1, so the Secretary of State was the Home Secretary. By the 2003 Order the Crown Agent was
designated for the purposes of Part 1 ex
officio by a member of the Government of the United Kingdom in relation to
a matter which was not devolved under the Scotland Act, but was reserved under
Schedule 5, Part II, 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 Schedule 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 a designated authority under the 2003 Act. The Crown Agent was not in respect of this
matter answerable to the Lord Advocate.
Part 1 of the Act was intended to operate free of ministerial
input.
[45] The
Lord Advocate, however, conducted proceedings under Part 1 by virtue of
section 191 of the Extradition Act.
In doing so he was not acting in his capacity as head of the system of
criminal prosecution in Scotland within the meaning of
section 57(3)(b) of the Scotland Act.
He was instead acting in the capacity of legal agent for the Italian
authorities and in that capacity, if he accepted instructions, he had no
discretion: R v Director of Public
Prosecutions, ex parte Thom, The Times, 21 December
1994. In so acting, he remained a member of the
Scottish Executive, and by conducting these proceedings he acted for the
purposes of section 57(2) of the Scotland Act. For this reason, as in relation to
Part 2, it was conceded that a devolution minute would be competent.
Discussion
[46] In our opinion, the Lord
Advocate is correct to concede the competency of the devolution minutes so far
as directed against his own acts and those of the Scottish Ministers. 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. 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, an arrest warrant has been issued by a judicial authority of a
category 1 territory in terms of section 2, and under Part 2
because a valid request for extradition to a category 2 territory has been
received in terms of section 70; 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.
[47] In HM Adv 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 it can therefore be brought into
question as a devolution issue within the meaning of paragraph 1 of
Schedule 6 to the Act. The same considerations
apply with at least as much force to the performance by the Scottish Ministers
of their functions under Part 2 of the 2003 Act. In our opinion therefore the devolution
minutes, so far as directed against acts of the Lord Advocate and of the Scottish
Ministers, are competent.
[48] 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 Scottish Ministers and the Lord Advocate at all subsequent stages are
entirely adequate for the purpose of protecting the appellant's Convention
rights.
(ii) Part 1
and Part 2 devolution minutes: no appeal
to House of Lords
[49] The appellant has lodged a devolution
minute in this court in each of the two appeals. The essence of the complaint in each minute
is that there is no appeal from this court to the House of Lords. 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, ie 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. So far as Part 2 is
concerned, section 103(1) provides that if the judge sends a case to the
Secretary of State under Part 2 for his decision whether a person is to be
extradited, the person may appeal to the High Court against the relevant
decision. Section 108(1) provides
that if the Secretary of State orders a person's extradition under Part 2,
the person may appeal to the High Court against the order. The same definition of the expression "High
Court" is applicable. Section 114
contains provisions similar to those of section 32, the effect of which is that
an appeal lies to the House of Lords, with leave, from the High Court in England and Wales but not from this
court.
[50] It is
alleged in each of the minutes 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. In relation
to the Part 1 appeal, 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. In relation to the Part 2 appeal, it is
alleged that in issuing a certificate under section 70 of the 2003 Act et separatim ordering the appellant to
be extradited the Scottish Ministers have acted in a manner inconsistent with
the appellant's Convention rights and, therefore, contrary to
section 57(2) of the Scotland Act 1998.
It is also alleged that by conducting the extradition proceedings the Lord
Advocate has acted and continues to act in a manner inconsistent with the
appellant's Convention rights and therefore contrary to section 57(2) of
the Scotland Act.
[51] 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
[52] In
addressing us in support of these minutes, counsel for the appellant 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 SC 453, 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 a series of decisions which he submitted were illustrative of the
approach of the court to the question of discrimination: Chassagnou
v France (1999) 29 EHRR 615; Adams
v Scottish Ministers 2004 SC
655; Jordan
v United Kingdom (Application no 24746/94),
4 May 2001, European Court of Human Rights, unreported; BBC
Scotland v Souster 2001 SC 458; R
(Carson) v Work and Pensions
Secretary [2005] UKHL 37, [2006] AC 173 and Slivenko v Latvia (Application
no 48321/99), 9 October 2003, European Court of Human Rights,
unreported.
[53] Counsel
submitted that 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. This was like a "post code
lottery". Counsel accepted that Nelson v United Kingdom (1986) 49 DRY 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 for the Lord
Advocate
[54] Counsel
for the Lord Advocate submitted that sections 32(13) and 114(13) of the
2003 Act were 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. This had been stressed as recently as in Robertson v Frame 2006 SCCR 151, per Lord
Hope of Craighead at paragraph 6.
There was no disadvantage to the appellant. He had already had the benefit of two public
hearings, before the sheriff court and this court, about these issues. An appeal by the Lord Advocate to the
Judicial Committee was equally excluded.
The appellant was a United Kingdom citizen of Italian origin
who resided and was arrested in Scotland. The simple fact was that the defining
characteristic was the location where he was arrested. In Nelson
v United Kingdom (supra) 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 (supra) 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
[55] 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 the
appellant's argument, though counsel 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.
[56] 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, supra, and Times Newspapers
Ltd, supra.
[57] For
these reasons these two devolution minutes are refused.
(B) Grounds of appeal common
to both appeals
Retrospectivity (Part 1, ground 7 and Part 2, ground 7)
Submissions for the appellant
[58] Counsel for the appellant submitted that
the 2003 Act did not apply to offences committed before it came into
force. The 2003 Act repealed the Extradition Act 1989 (2003 Act, s 220,
Sched 4). The commencement orders which brought the 2003 Act into force
(The Extradition Act 2003 (Commencement and Savings) Order 2003) (2003 SI No
3103); The Extradition Act (Commencement and Savings)(Amendment No 2)
Order 2003 (2003 SI No 3312)) could have saved the provisions of the 1989 Act
in relation to offences committed before the commencement date, but they did
not. There was nothing in the 2003 Act itself that applied it to offences
committed before that date. In R v Secretary of State for the Home
Department, ex p Hill [1999] QB 886 it was held that the 1989 Act
applied to crimes committed before it came into force (cf Hooper J at p
900); but the 1989 Act was a consolidating Act. The 2003 Act
effected major changes. There was a presumption against retrospectivity
in legislation (Wilson
v First County
Trust
(No 2) [2004] 1 AC 816). If the 2003 Act was
retrospective, the appellant would be prejudiced. Under the 1989 Act the
Secretary of State for the Home Department had a wide discretion in relation to
extradition and could refuse it for reasons such as sickness, hardship,
fairness and so on (1989 Act, s 12(2)(i) and (ii); Stanbrook and
Stanbrook, Extradition: Law and Practice (2nd ed, 2000)). All of
that was lost in the 2003 Act. The true interpretation was that pre-2003
Act offences could no longer be the subject of extradition.
Submissions for
the Lord Advocate
[59] Counsel submitted that the 2003 Act
applied to applications made after the commencement date, irrespective of when
the conduct in question occurred. The purpose of the 2003 Act was to
sweep away discredited and inefficient procedures. One would expect it to
apply to all new applications. According to Jones and Doobay, it could be
said with confidence that the 2003 Act applied to extradition offences
committed before the Act commenced (Extradition and Mutual Assistance
(2005), para 5.001-5.002). That interpretation was in keeping with the
Framework Decision itself, in which the point of reference was the date of the
request, and not the date of the conduct (Recitals 5, 6, and 11 and Article 32).
The court should prefer that interpretation of the Act that avoided the
absurdity of the submission for the appellant. The designation of Italy
as a Part 1 country (The Extradition Act 2003 (Amendment to Designations) (No
2) Order 2005, supra) was consistent with that view.
Discussion
[60] The result for which counsel for the
appellant contended is so absurd that we would accept it as the law only if it
was inescapable. We can find nothing in the 2003 Act that suggests that
that result was intended by the legislature. We agree with the approach
of the Court of Appeal in R v Secretary of State for the Home
Department, ex p Hill (supra). Nothing in the statements of
the judges in that case suggests to us that the fact that they were interpreting
a consolidating statute was a decisive consideration. We agree with the
opinion of Jones and Doobay to which counsel for the Lord Advocate
referred. In our opinion, the 2003 Act does not change the offences with
which it deals. It changes the procedures by which they will be dealt
with. The key date, in our view, is not the date of commission of the
alleged offence. It is the date of the request. That is the reference
point in both of the commencement orders (supra).
Passage of time
(Part 1, ground 8 and Part 2, ground 11)
The
statutory provisions
[61] In terms of section 10(4) of the 2003 Act, if the appropriate
judge decides that the offence specified in the Part 1 warrant is an
extradition offence, he must proceed under section 11. Section 11(1) requires the judge proceeding
under that section to decide whether the person's extradition to the category 1
territory is barred by reason of inter
alia "(c) the passage of time".
Section 14 provides as follows:
|
|
"A person's extradition to a category 1 territory is
barred by reason of the passage of time if (and only if) it appears that it
would be unjust or oppressive to extradite him by reason of the passage of
time since he is alleged to have committed the extradition offence or since
he is alleged to have become unlawfully at large (as the case may be)."
|
[62] Equivalent provisions in relation to Part 2 applications for
extradition are to be found in sections 78(4)(b) and (7), 79(1)(c) and 82 of
the 2003 Act.
Submissions for the appellant
[63] In his Note of Argument counsel for the appellant set out a
chronology of events as a foundation for his submissions in respect of the
passage of time. It is convenient,
however, to separate that chronology into events bearing on the Part 2 case and
events bearing on the Part 1 case.
[64] The chronology of events bearing on the Part 2 case is as
follows:
Date
|
Event
|
|
February 1998 - February 1999
|
Specific charges in the Part 2
request
|
|
May 1999
|
The end of the period in charge
1 of the Part 2 request
|
|
2001
|
The appellant left Italy
|
|
7 June 2002
|
Request for precautionary
custody in respect of Part 2 charges
|
|
2 January 2003
|
Precautionary custody order
granted in respect of Part 2 charges
|
|
1 January 2004
|
2003 Act comes into force; Italy
designated a Part 2 territory
|
|
25 February 2004
|
Sentencing in respect of Part 2
charges
|
|
9 December 2004
|
Part 2 extradition request
|
|
12 January 2005
|
Part 2 extradition request
certified by Minister of Justice
|
[] The chronology of events bearing on the Part 1 case is as
follows:
|
Date
|
Event
|
|
October - December 2001
|
European arrest warrant (EAW)
offence
|
|
11 February 2005
|
Precautionary custody order
granted in respect of EAW charge
|
|
28 July 2005
|
Italy
designated a Part 1 territory
|
|
31 August 2005
|
EAW issued
|
|
22 September 2005
|
EAW sent to United
Kingdom
|
|
29 September 2005
|
Initial EAW hearing before the
sheriff
|
[65] Counsel submitted that the
test set by sections 14 and 82, whether extradition would be unfair or
oppressive, covered all aspects of unfairness.
In Kakis v Republic of Cyprus ([1978] 1 WLR 779 at 782H), Lord Diplock said:
"'Unjust' I regard as directed
primarily at the risk of prejudice to the accused in the conduct of the trial
itself, 'oppressive' as directed to hardship to the accused resulting from
changes in his circumstances that have occurred during the period to be taken
into consideration; but there is room for overlapping, and between them they
would cover all cases where to return him would not be fair."
[66] In both the Part 1 case and the Part 2 case, the appellant
relied on the fact that between the date on which the offence was alleged to
have been completed and the date when steps were taken with a view to effecting
his extradition, the 2003 Act had come into force and had become applicable to
questions of extradition between the United Kingdom and Italy. The result was that the 2003 Act regimes came
to be applicable to offences alleged to have been committed when the superseded
extradition regime was in force (Jones and Doobay, op cit, p 126, para 5-002).
In principle, such a change of the legal regime was a relevant
consideration in determining whether it would be unjust or oppressive to
extradite the appellant (R v Governor of Brixton Prison, ex p Osman
[1992] 1 All ER 578, per Woolf LJ at p 590; Wilson
v First County Trust Ltd (No. 2),
supra, Lord Rodger of Earlsferry at paras 199 - 201.) Such an argument did not involve any value
judgment on the 2003 Act (the possibility of which was rejected in R (Bermingham) v The Director of the Serious Fraud Office [2006] EWHC 167 (Admin), at para 99). Rather it involved an assessment of the
protections available to the individual whose extradition was sought. In the present case, during the period of
delay the 2003 Act (1) removed the right of appeal to the House of Lords, (2)
reduced the level of scrutiny of evidence by the court and (3) removed the
ministerial discretion not to extradite.
The designation of Italy
as a Part 1 territory further reduced the procedural safeguards for the
appellant. The express reference in the
2003 Act (s 21) to Convention rights does not provide a higher level of
protection than was available under the previous legislation. In Scotland,
there was no remedy directly comparable to the abuse of process remedies
discussed in Bermingham at paragraphs
91 to 96. The allegation of deliberate
delay until the 2003 Act was in force was met by evidence in Bermingham. No such evidence was presented in the present
case.
[67] In relation to the Part 2 appeal, counsel submitted that the sheriff
had erred in thinking that, in considering the question of whether extradition
would be unjust or oppressive, he did not have to consider, as a period of
inactivity on the part of the Italian authorities, the period during which the
trial in absence was taking place. It
was wrong to treat an invitation to a trial as equivalent to an extradition
request, and to regard a trial in absence as being as satisfactory as a trial
which the accused person attended. The
passage of time while the trial in absence took place was in effect a period of
delay on the part of the Italian authorities which was prejudicial to the
appellant, and his extradition now would be oppressive.
Submissions for the Lord Advocate
[68] Counsel for the Lord
Advocate characterised the first submission made by counsel for the appellant
on delay as an abstract submission. It
was no more than a general contention that it would be unjust or oppressive to
extradite anyone whose extradition was sought after the commencement of the
2003 Act in respect of offences allegedly committed before that
commencement. There was no attempt to
identify that the appellant would suffer particular prejudice. The general approach was rejected in Bermingham, per Laws LJ at paragraph 99,
where he said:
"Likewise a defendant cannot
ordinarily complain of abuse on grounds that if only the prosecutor had acted
more promptly the 1989 Act, and not the 2003 Act, would have governed the
proceedings, and in that case he (the defendant) would have enjoyed the right to
test the prosecutor's case and persuade the court, if he could, that there was
no case to answer. We cannot entertain
any kind of presumption that where in an extradition case the facts arose in
the life of the 1989 Act, the defendant should ordinarily have the benefit of
that Act and not be fixed with the effects of the supervening statute. Such a presumption would be unconstitutional:
it would imply a value judgment by this court that the scheme of the earlier legislation
was to be preferred to that of the 2003 Act.
We have no authority to propound any such judgment."
Laws LJ went on, in paragraph
100, to recognise that the prosecutor was obliged to act in good faith, and
that deliberate delay until the 2003 Act was in force in order to avoid the need
to make out a prima facie case might
be held to be abusive. There was no
allegation of such abuse in the present case.
[69] So far as trial in absence was concerned, counsel submitted
that it was not correct that the time occupied by that trial was to be treated
as a period of unexplained inaction on the part of the Italian
authorities. The appellant could not
complain of a trial that took place in absence as a result of his own choice
not to attend. In R v Jones [2003] 1 AC 1,
Lord Bingham of Cornhill pointed out (at para 9) that:
"... the European Court of Human
Rights has never found a breach of the Convention where a defendant, fully
informed of a forthcoming trial, has voluntarily chosen not to attend."
(See also paras 10 and 11, and R (on the application of Durkin) v Governor of HM Prison Brixton [2001]
EWHC Admin 213.)
Discussion
[70] In our opinion, the
appellant's general submission, that it is unjust or oppressive to extradite a
person under the 2003 Act in respect of an offence alleged to have been
committed before that legislation was in force (or before a particular part of
it was in force in relation to the requesting state), cannot be accepted. The reasons for rejecting it are those set
out in Bermingham at paragraph
99. Counsel for the appellant maintained
that he was not asking this court to make the value judgment there referred to,
but instead asking us to assess the protections available to the appellant
under the former legislation and under the present legislation, but we do not consider
that that is a sound distinction. As was
recognised in Bermingham at paragraph
100, a case of oppression might be made out if it could be shown that the
requesting state, in bad faith, delayed its request in order to avoid a
particular requirement of the former legislation, such as the need to make out
a prima facie case. That was alleged in Bermingham, and rejected after consideration of evidence. It is not alleged in the present case.
[71] We do not consider that
there is any merit in the point made by counsel for the appellant in the Part 2
appeal that the sheriff erred in failing to regard the time occupied by the
trial in absence as a period of lack of legitimate activity on the part of the
Italian authorities. Trial in absence is
not equivalent to inaction, nor is it per
se unfair. To fail to hold that the
lapse of time while the trial in absence took place renders extradition now
oppressive is not to hold, as counsel suggested, that an invitation to an
accused person who has gone abroad to attend a trial is equivalent to an
extradition request, or that trial in absence is as satisfactory as one which
the accused attends. The trial in
absence took place because the appellant chose to decline to return to Italy
for trial. He was represented at the
trial in absence by a lawyer of his choice.
He has an extant right of appeal.
In all these circumstances, we do not consider that a case of injustice
or oppression has been made out.
[72] We accordingly reject, both in the Part 1 appeal and in the
Part 2 appeal, the contention that extradition of the appellant is barred by
the passage of time.
(C) Grounds of appeal in the Part 1
appeal only
Proportionality
of Extradition - Discretion not to execute the Warrant (Part 1, ground 10), No
possibility under 2003 Act of serving custodial sentence in the United Kingdom (Part 1, ground 9) and Lack of clarity as
to the locus of the alleged offences (Part 1, ground 6)
[73] It is convenient under this heading to deal with three aspects
of the appellant's grounds of appeal in the Part 1 appeal. In his Note of Argument and submissions,
counsel for the appellant drew these grounds together under the above general
heading. The grounds in question are:
(1) ground 10 (failure of the 2003 Act to give effect to the possibility
contained in article 4(7)(a) of the Framework Decision of not executing the
European Arrest Warrant); (2) ground 9 (failure of the 2003 Act to give effect
to the possibility of imposing as a precondition of rendition that any
custodial sentence be served in the United Kingdom); and (3) ground 6 (lack of
clarity as to where the conduct constituting the offence took place).
The Framework Decision
[74] In advancing his submissions under grounds of appeal 10, 9 and
6, counsel referred to various provisions of the Framework Decision. He referred in particular to paragraphs (1),
(11) and (12) of the preamble to, and articles 1, 2, 3, 4(7)(a), 5(3) and
8(1)(e) of, the Framework Decision.
Article 4(7)(a) is in the following terms:
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"The executing judicial
authority may refuse to execute the European arrest warrant:
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7.
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where the European arrest warrant relates to offences
which:
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(a)
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are regarded by the law of the executing Member
State as having been committed in
whole or in part in the territory of the executing Member
State or in a place treated as
such".
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Article 5(3) is in the following
terms:
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"The execution of the European arrest warrant by the
executing judicial authority may, by the law of the executing Member State,
be subject to the following conditions: ...
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(3)
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where a person who is the subject of a European arrest
warrant for the purpose of prosecution is a national or resident of the
executing Member State, surrender may be subject to the condition that the
person, after being heard, is returned to the executing Member State in order
to serve there the custodial sentence or detention order passed against him
in the issuing Member State."
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Article 8(1)(e) is in the following
terms:
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"The European arrest warrant shall contain the following
information set out in accordance with the form contained in the Annex: ...
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(e)
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a description of the circumstances in which the offence
was committed, including the time, place and degree of participation in the
offence of the requested person".
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The statutory provisions
[75] In order to place ground of appeal 6 in context it is also
necessary to take note of the terms of the provisions of the Act referred to in
it. Section 2(2) defines a Part 1
warrant as including:
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" ... an arrest warrant which
is issued by a judicial authority of a category 1 territory and which
contains ―
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(a)
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the statement referred to in subsection (3) and the
information referred to in subsection (4) ..."
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The information referred to in
section 2(4) includes:
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"(c)
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particulars of the circumstances in which the person is
alleged to have committed the offence, including the conduct alleged to
constitute the offence, the time and place at which he is alleged to have
committed the offence and any provisions of the law of the category 1
territory under which the conduct is alleged to constitute an offence."
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[76] Section 64(2) and (3) of the Act identify two sets of
conditions which, if satisfied, result in conduct constituting an extradition
offence. The subsection (2) conditions
are:
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"(a)
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the conduct occurs in the category 1 territory and no part
of it occurs in the United Kingdom;
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(b)
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a certificate issued by an appropriate authority in the
category 1 territory shows that the conduct falls within the European
framework list;
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(c)
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the certificate shows that the
conduct is punishable under the law of the category 1 territory with
imprisonment or another form of detention for a period of three years or a
greater punishment."
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The subsection (3) conditions
are:
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"(a)
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the conduct occurs in the category 1 territory;
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(b)
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the conduct would constitute an offence under the law of
the relevant part of the United Kingdom
if it occurred in that part of the United
Kingdom;
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(c)
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the conduct is punishable under the law of the category 1
territory with imprisonment or another form of detention for a term of 12
months or a greater punishment (however it is described in that law)."
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Submissions for the appellant
[77] In elaborating his submissions, counsel began with ground
6. He submitted that the sheriff erred
in holding that the warrant contained the information required in terms of
section 2(2)(a) and (4)(c). In
particular it was not in sufficiently specific terms to enable the sheriff to
conclude where the conduct took place.
That being so, the sheriff erred in concluding that the charge against
the appellant was an extradition offence in terms of section 64. Even where the framework list is used (s
64(2)) the offence must be accurately described in the warrant (R (Castillo) v Kingdom of Spain [2005] 1 WLR 1043, per Thomas LJ at paras 24 and
25). The need for accuracy of
description of the conduct was important, not only on first principles of
fairness (Government of Canada v Aronson [1990] 1 AC 579 per Lord
Griffiths at p 594D), but also in order that the rule of speciality (s 17) can
be given content (Aronson per Lord
Griffiths at p 595D). The warrant in the
present case did not fairly and accurately describe the offence of which the
appellant was accused. In particular,
(1) it did not identify who the victim was; (2) it did not make clear whether
the offence took place in Scotland
or in Mondragone, Italy;
and (3) it did not make it clear whether the accusation was that the appellant
had himself carried out violent activities, or that he had ordered his
representatives to do so. A clear
indication of where the conduct was alleged to have taken place was necessary
in order to enable the sheriff to decide whether the conduct constituted an extradition
offence (s 64(2)(a); Office of the King's
Prosecutor, Brussels v Armas [2005] UKHL 67, [2005] 3 WLR 1079 per Lord Bingham of Cornhill at paras 16 and
17; R
(Bermingham) v The Director of the
Serious Fraud Office, supra; s 64(3)(a); Boudhiba v Central Examining
Court No. 5 of the National Court of Justice, Madrid, Spain [2006] EWHC 167 (Admin)). To fall within the scope of
section 64(2) it was necessary that no part of the conduct should have occurred
in the United Kingdom. Granted that it was common ground that at all
material times the appellant was in Aberdeen, and that it followed that any
contribution he made to the instigation of the crime must have been made by
communication, for example by telephone, from Aberdeen, the sheriff's
conclusion (Report, p 18) that "this is a crime 'no part of which' has
occurred in the United Kingdom" was irrational.
For section 64(3) to apply, some at least of the conduct had to have
taken place in Italy. The material provided by the Italian
authorities was contradictory, and the sheriff's attempt (Report, p 20) to
reconcile it by reference to the extracts provided from the Italian Penal Code was
unsuccessful. The sheriff's alternative
conclusion that the case fell within the scope of section 64(3) was therefore
also in error.
[78] Counsel then turned his attention to ground 10. It was based on the discretion given to the
executing judicial authority by article 4(7)(a) of the Framework Decision to
refuse to execute the warrant where it relates to offences regarded as having
been committed in whole or in part in the territory of the executing Member
State. The failure of the Act to reflect
that discretion rendered execution of the warrant a disproportionate
interference with the appellant's rights under Article 8 of the European
Convention on Human Rights. For this
argument to be maintained, it was necessary to show that part of the offence
occurred in Scotland. On the assumption that it did, counsel sought
to distinguish Wright v The Scottish Ministers 2005 SLT 613
(para 70) and Bermingham, on the
ground that neither of these cases was concerned with a European Arrest
Warrant. In Bermingham (at para 60) Laws LJ formulated a question raised in the
submissions in that case in the following terms:
"where (if at all) in the
legislation before us do we find a provision or provisions by force of which
the decision-maker is to reach a conclusion as to place of trial as the means
of affording protection to the defendant's Convention rights ...?"
Counsel submitted that, in the
context of a European Arrest Warrant, the answer to that question was article
4(7)(a) of the Framework Decision. In Wright (para 65) and Bermingham (para 121) the courts were right to recognise that
concurrent jurisdiction could tip
the balance against the proportionality of extradition. They were, however, wrong to set the standard
as high as they did. In Bermingham Laws LJ said (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 the particular facts be disproportionate
to its legitimate aim."
It was wrong, counsel submitted, to
apply to a European Arrest Warrant the test that its execution could only be
disproportionate in wholly exceptional circumstances. The courts in Wright and Bermingham
were wrong to place the reliance they did on decisions in "foreign" article 8
cases (R (Ullah) v Special Adjudicator [2004] 2 AC 323, per
Lord Bingham of Cornhill at paras 9 and 18) and on Launder v United Kingdom (1997) 25 EHRR CD 67 in which
concurrent jurisdiction was not an issue.
The approach of the European Court of Human Rights set out in Boultif v Switzerland (Application No 54273/00, 2 August 2001) as applicable where a
right to remain was being taken away should be adopted in cases such as the
present. In any event, counsel
submitted, it was not appropriate in the present case to speak of a wide margin
of appreciation (cf Wright at paras
72 to 74), since the decision on proportionality fell to be made by the sheriff
or, on appeal, by this court. There was
no executive decision to which deference required to be accorded. Further, in both Wright (at para 59) and Bermingham
(paras 116 and 118), the courts proceeded on the basis that in not
extraditing the United Kingdom
would be failing to honour its international obligations. In the light of article 4(7)(a) of the Framework
Decision, that would not be so in the present case.
[79] Counsel drew attention to the fact that in Wright (at para 67) the court regarded it as significant that no
authority had been cited for the view that extradition would be proportionate
only where it was demonstrated that prosecution in the jurisdiction in which
the subject lay would be impossible. He
submitted that such authority was to be found in D v City of Hamburg (2 B v R 2236/04, 16 July 2005), a decision of the German
Federal Constitutional Court (Bundesverfassungsgericht).
In that case it was held that the law transposing the Framework Decision
breached various provisions of the Basic Law (Grundgesetz). In order to
understand that case it is necessary to consider the terms of various
provisions of the Basic Law. Counsel
referred to articles 16, 19(4), 20(3) and 23(1). Article 16(2) provides as follows:
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"(2)
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No German may be extradited to a foreign country. A different regulation to cover extradition
to a Member State
of the European Union or to an international court of law may be laid down by
law, provided that constitutional principles are observed."
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Article 19(4) secures access to the
courts in the event of a basic right being violated by a public authority. Article 20(3) provides that the legislature
is bound by the constitutional order, the executive and the judiciary by law
and justice. Article 23 provides inter alia as follows:
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"(1)
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With a view to establishing a united Europe, the Federal
Republic of Germany shall participate in the development of the European
Union that is committed to democratic, social and federal principles, to the
rule of law, and to the principle of subsidiarity, and that guarantees a
level of protection of basic rights essentially comparable to that afforded
by this Basic Law."
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The decision of the court in the
light of those provisions is summarised (para 3 of the summary of the judgment)
as follows:
"In enacting the measure
transposing the Framework Decision on the European arrest warrant the legislature
is under an obligation to transpose the purpose of the Framework Decision in
such a manner that interference with the basic right to freedom from
extradition is proportionate. In
particular, in addition to observing the essential core of the guarantee the
legislature is required to ensure that the interference in the area protected
by Article 16(2) [of the] Basic Law is effected in the least burdensome manner
possible ... "
Counsel sought to draw from that
decision the more general proposition that domestic law must implement the
Framework Decision so that interference with basic rights is proportionate to
the legitimate aim being pursued, and effected in the least burdensome
manner. In effect, he equated article 8
of ECHR with article 16(2) of the German Basic Law, on the basis that both were
concerned with basic rights. He relied
in particular on a passage in the dissenting opinion of Judge Lübbe-Wolff (para
6 of that opinion; para 181 of the case) in which it was said that:
"In order to prevent
infringements of the constitution ... it is enough to declare that until a
provision that complies with the constitution comes into force German nationals
... may not be extradited for acts for which extradition could be refused under
Article 4(7a) or (7b) [of the Framework Decision] and to the extent that return
for execution of any sentence is impossible under applicable law owing to the
absence of double criminality."
That, counsel submitted, supported
his contention that the absence from the Act of any provision reflecting
article 4(7)(a) of the Framework Decision meant that execution of the European
Arrest Warrant involved a disproportionate interference with his article 8
rights, and that the sheriff erred in not recognising that.
[80] Ground 9 has as its foundation article 5(3) of the Framework
Decision. Article 5(3) applies where the
person whose arrest is sought under a European Arrest Warrant is a national or
resident of the executing Member State. The article permits the law of the executing
state, in such a case, to provide for execution of the warrant to be made
subject to a condition requiring return to that state, after sentence, to serve
the sentence there. The 2003 Act makes
no such provision. The appellant's
contention is that the absence of such a provision renders execution of the
warrant a disproportionate interference with his article 8 rights, and that the
sheriff erred in failing so to hold.
[81] The circumstances which, in counsel's submission, engage
article 5(3) in the present case are that the appellant, although born in Italy
and originally an Italian national, is now a citizen of the United
Kingdom, and has renounced his Italian
nationality. He has been resident in the
United Kingdom
since 1986. His wife is a United
Kingdom citizen of Scottish descent. His children are United
Kingdom citizens resident in Scotland.
[82] Although the 2003 Act makes no provision under which the
sheriff might have imposed a condition such as is contemplated in article 5(3),
arrangements are in place under which a United
Kingdom citizen sentenced to a term of
imprisonment in Italy
may be returned to the United Kingdom
to serve his sentence here. Reference
was made to the Repatriation of Prisoners Act 1984, the Convention on the
Transfer of Sentenced Persons (Cmnd 9617) and a leaflet issued by the Foreign
and Commonwealth Office entitled "British Prisoners Abroad." The procedures are subject to certain
limitations. Transfer requires the
concurrence of both governments. We were
informed by counsel that the process of transfer, even if the necessary
governmental consent is forthcoming, may take two years from the conclusion of
the foreign proceedings. Such procedures
are not, it was submitted, comparable with the imposition of a condition of the
sort contemplated in article 5(3).
[83] In submitting that the absence of any provision permitting the
imposition of a condition of the sort contemplated in article 5(3) rendered
execution of the European Arrest Warrant a disproportionate interference with
the appellant's article 8 rights, counsel again relied on D v City of Hamburg (supra).
He acknowledged that nothing relevant was said in the opinion of the
majority of the court, but referred again to the dissenting opinion of Judge
Lübbe-Wolff (para 3(c) of the opinion; para 170 of the case), where the
following observation is made:
"The interference [in
basic rights] is significantly lessened if the person concerned need only
undergo the criminal prosecution abroad and need not also serve the potentially
long punishment there. On the other
hand, at the moment there is no reason at all in terms of effective criminal
prosecution within the European legal order against return following
sentencing. In order to achieve the
lawful purposes of the Framework Decision ... it is irrelevant in which country
the convicted person serves his sentence.
Accordingly, in relation to the category of persons who deserve special
protection ... it must be a mandatory condition of extradition that there
exists the possibility of return for serving sentence and that this possibility
is subsequently utilised."
If that approach were adopted in
the present case, the failure to make provision in the legislation for the
imposition of an article 5(3) condition deprived the courts of a means of
ensuring that execution of a European Arrest Warrant was proportionate to the
legitimate aim. Execution of the warrant
where the imposition of such a condition was impossible was disproportionate. The sheriff had erred in not so holding.
Submissions
for the Lord Advocate
[84] In relation to ground 6,
the critical requirement of the legislation, counsel for the Lord Advocate
submitted, was to be found in section 2(4)(c) of the 2003 Act, which contained
a direct transposition of article 8(1)(e) of the Framework Decision. In reliance on those provisions, counsel for
the appellant had desiderated specification of three matters, namely (1) the
identity of the victim or victims of the alleged offence, (2) the locus of the
offence to an extent sufficient to enable the court to determine whether the
conditions specified in section 64(2)(a) and (3)(a) were satisfied, and (3) the
capacity in which the appellant was alleged to have acted, whether as actor or
instigator. Counsel for the Lord
Advocate submitted that the authorities did not require such a high degree of
specification as that contended for by the appellant. Aronson
was concerned with the correct approach to determination of whether the
double criminality rule was satisfied (Lord Bridge of Harwich at 589C). The passages relied on by counsel for the
appellant in the speech of Lord Griffiths (at pp 594D and 595D) gave no
indication of the degree of specification required. In any event, what was said in Aronson had to be read in the light of Welsh and Thrasher v Secretary of State for the Home Department [2006] EWHC 156 (Admin). In that case the
contention was that the 2003 Act required precise equivalence between the
foreign and the United Kingdom
offence, as had been held in Aronson to
be required under the Fugitive Offenders Act 1967. Laws LJ said (at para 26):
"I do not accept that
submission. It would be surprising
indeed if, in an Act which was intended to simplify and streamline extradition
procedures to EU and Category 2 countries, Parliament had introduced for the
first time for extradition to those countries the language which led to what
could be regarded as a somewhat technical approach in Aronson."
His Lordship went on to draw support for the avoidance of technicality
from the speech of Lord Bingham in Armas.
[85] Dealing with the three
matters on which the appellant complained of lack of specification, counsel for
the Lord Advocate said first that neither section 2(4)(c) nor article 8(1)(e)
contained any requirement that particulars be given identifying the victim or
victims of the alleged offence. So far
as the locus of the offence and the capacity in which the appellant was said to
have acted were concerned, counsel accepted that they required to be specified,
but maintained that they had been. The Warrant
and accompanying documents, read together, made it clear that the attempted
extortion was committed in Mondragone by others, and that the appellant's
criminal liability for that attempted extortion was said to arise from his
having issued, from Scotland, where he lived, orders to associates in
Mondragone (Caserta). In the only
respects criticised by counsel for the appellant, therefore, adequate
specification had been given to comply with section 2(4)(c).
[86] In responding to the more
particular aspect of ground 6, namely that the information contained in the
European Arrest Warrant did not enable the sheriff to reach a conclusion as to
where the alleged offence was said to have occurred, so as to determine whether
it was an extradition offence in terms of section 64(2) or 64(3), counsel did
not seek to support the sheriff's conclusion that the offence was an
extradition offence in terms of both subsections. He accepted that an element of the conduct of
which the appellant was accused occurred in Scotland. Although the "violent and threatening
activities ... aimed at obtaining the payment of a bribe" all occurred in Italy,
at Mondragone, the case against the appellant depended not only on proof of
those activities, but also on proof that he ordered them. The activity of ordering is said to have been
carried out by "Mr La Torre from Scotland,
where he lived when the facts occurred".
Counsel therefore accepted that it could not be said that "no part" of
the conduct alleged to have constituted the offence committed by the appellant
occurred in the United Kingdom. On that view, what was alleged was not an
extradition offence in terms of section 64(2).
On the other hand, counsel submitted that the sheriff was correct in
holding that the alleged offence was an extradition offence in terms of section
64(3). Section 64(3)(a) requires that
the conduct occur in the category 1 territory (in this case, Italy). Satisfaction of that condition is not
precluded by the fact that part of the conduct occurred elsewhere than in the
category 1 territory (Armas). Here everything other than the appellant's
act of instigation is said to have occurred in Italy. That satisfies paragraph (a) of section
64(3). Paragraph (b) relates to double
criminality, and what is alleged is plainly conduct that would be criminal if
it occurred in the United Kingdom. There is no issue in relation to paragraph
(c). The sheriff was therefore entitled
to find that the alleged conduct constituted an extradition offence in terms of
section 64(3).
[87] By way of preamble to his
submissions in response to Grounds 9 and 10, counsel for the Lord Advocate made
some observations about the nature and purpose of the 2003 Act. He pointed out that it involved a departure from
the old treaty-based approach to extradition, and adopted instead a
framework-based approach. That reflected
a grading of the degree of trust reposed in foreign jurisdictions to deal
appropriately with extradition. The
highest degree of trust was reflected in the provisions relating to the
European Arrest Warrant. The broad
purpose of the Act was to facilitate extradition, while at the same time
protecting the essential rights of the fugitive. Counsel accepted without reservation that
extradition potentially engages the fugitive's Convention rights under article
8. He pointed out, however, that while
the appellant's arguments based on article 8 were confined to the context of
the European Arrest Warrant, all cases of extradition had the same potential for
engagement of article 8. The engagement
of article 8 was not something new that arose only in the context of the
European Arrest Warrant. Although the
European Convention on Human Rights does not guarantee a right not to be
extradited, extradition may constitute interference with article 8 rights (Launder, p 74, para 3). In that case, the Commission expressed the
view that:
"it is only in exceptional
circumstances that the extradition of a person to face trial on charges of
serious criminal offences committed in the requesting state would be held to be
an unjustified or disproportionate interference with the right to respect for
family life."
Counsel also referred to Ullah,
in which Lord Bingham recognised that in extradition cases, in striking the balance
between the rights of the individual and the wider interests of the community
where reliance is placed on article 8, the extraditing state will ordinarily
have strong grounds for justifying extradition in the desirability of honouring
extradition treaties (para 24). That
approach should be carried forward into cases to which the Framework Decision
applied. Extradition should go ahead,
unless there were exceptional circumstances.
As Lord Bingham observed in Armas (at
para 8):
"Part 1 of the 2003 Act did not
effect a simple or straightforward transposition, and it did not on the whole
use the language of the Framework Decision.
But its interpretation must be approached on the twin assumptions that
Parliament did not intend the provisions of Part 1 to be inconsistent with the
Framework Decision and that, while Parliament might properly provide for a
greater measure of cooperation by the United
Kingdom than the Decision required, it did
not intend to provide for less.
[88] Counsel for the Lord
Advocate submitted that the reliance which counsel for the appellant sought to
place on D v City of Hamburg was misplaced. In understanding that case, two points were
crucial. First, it was concerned with
the terms of the German Basic Law, and in particular article 16(2) which
conferred on German citizens a right not to be extradited. The attempt to equate the appellant's rights
under article 8 of the European Convention on Human Rights with the rights
enjoyed by German citizens under article 16(2) of the Basic Law was
misconceived. Article 8 conferred no
right not to be extradited (Launder,
p 74, para 3). Secondly, it was
important to recognise that the right not to be extradited conferred on German
citizens by article 16(2) was balanced by the fact that Germany exercised a
general criminal jurisdiction over its citizens, wherever the crime was
committed (D v City of Hamburg, (supra) para
68). In that way, the right not to be
extradited did not confer immunity from criminal proceedings in respect of
crimes committed outwith Germany. On the other hand, Scots criminal law, like
English criminal law (Somchai
Liangsiriprasert v United States [1991] 1 AC 225, per Lord Griffiths at p 244C), was, in the absence of express
provision to the contrary, concerned with crime committed within the
jurisdiction. When proper account was
taken of these considerations, counsel submitted, D v City of Hamburg afforded
no support for the appellant's submissions under grounds 9 and 10.
[89] Counsel accepted as
correct the appellant's submission that in terms of article 4(7)(a) of the
Framework Decision the United Kingdom judicial authorities have a discretion to
refuse to execute the European Arrest Warrant where the law of the United
Kingdom regards the offence to which the warrant relates as having been
committed in whole or in part in the territory of the United Kingdom. He did not, however, accept the submission
which counsel for the appellant built on that foundation, namely that the existence
of article 4(7)(a) rendered the decision in Wright
distinguishable, and that accordingly the failure of the 2003 Act to make
provision for consideration of refusing extradition and proceeding with
domestic prosecution amounted to an infringement of article 8. As a practical matter, counsel asked how the
appellant's approach was to be carried into effect in a case such as the
present, where as well as a European Arrest Warrant, there was also a Part 2
application for extradition. The
submission of counsel for the appellant related only to the European Arrest
Warrant, and could have no effect on the Part 2 application. Moreover, the Act, although it did not
expressly reflect the Article 4(7)(a) discretion, did address the possibility
of giving priority to domestic prosecution over execution of the European
Arrest Warrant. Section 22 of the 2003
Act applies if at any time in the extradition hearing the judge is informed
that the person in respect of whom the Part 1 warrant is issued is charged with
an offence in the United Kingdom. Section 22(2) provides:
|
"The
judge must adjourn the extradition hearing until one of these occurs -
|
|
(a)
|
the
charge is disposed of;
|
|
(b)
|
the
charge is withdrawn;
|
|
(c)
|
proceedings
in respect of the charge are discontinued; or
|
|
(b)
|
... the
diet is deserted pro loco et tempore."
|
Thus, while article 4(7)(a) confers a discretion to refuse extradition
where the executing state regards the offence as having been committed in its
territory, thus permitting that state the opportunity of taking proceedings
itself in preference to executing the warrant, the Act concentrates on whether
the executing state has in fact taken proceedings itself, and in that case bars
execution of the warrant so long as those proceedings are extant. Equivalent provisions in relation to Part 2 applications
are to be found in section 97. It was
unrealistic to suppose that the Scottish prosecution authorities would ever
have regarded it as appropriate to take proceedings against the appellant in
the present case. Although he is alleged
to have instigated the offence from Scotland,
the case as a whole would inevitably depend on the evidence of Italian
witnesses about the attempted extortion allegedly carried out in Italy. These witnesses could not be compelled to
attend proceedings in Scotland. In these circumstances, it could not be said
that the absence from the 2003 Act of a discretionary power reflecting
precisely the terms of article 4(7)(a) of the Framework decision had the
consequence that execution of the warrant was a disproportionate interference
with the appellant's article 8 rights.
In the only circumstances in which the article 4(7)(a) discretion might
have been used, namely to give priority to proceedings in Scotland,
section 22 afforded the appellant stronger protection.
[90] In responding to Ground 9,
counsel first made a practical point.
The Framework Decision had no application to the Part 2
proceedings. If the appellant were
ultimately convicted of the offences to which the Part 2 application related,
and also the offence to which the European Arrest Warrant related, how was it
conceived that a condition of the sort contemplated in article 5(3) of the
Framework Decision would operate? Would
the appellant serve the Part 2 sentence in Italy
first, before being returned to the United
Kingdom to serve the Part 1 sentence? Or would the article 5(3) condition require
him to serve his Part 1 sentence in the United
Kingdom first, then return to Italy
to serve his Part 2 sentence? What would
the position be if the Italian court ordered that the two sentences be served
concurrently?
[91] Counsel's principal
response to Ground 9, however, was that the issue was dealt with by
legislation, albeit not in terms of the sort of condition contemplated in
article 5(3). The Repatriation of Prisoners
Act 1984 made provision for transfer of prisoners convicted abroad to the United
Kingdom to serve their sentences here, with
the agreement of the United Kingdom
and the foreign authorities (section 1(1)).
The underlying treaty, so far as Italy
was concerned, was the Convention on the Transfer of Sentenced Persons. Like section 1(1) of the 1984 Act, article
3(1)(f) of the Convention required inter-state agreement. In article 2(1) of the Convention the Parties
undertook to afford each other "the widest measure of co-operation". Article 23 provided that the appropriate
committee of the Council of Europe will facilitate friendly settlement of any
difficulty. Counsel indicated that the
understanding of those he represented was that the arrangements worked well
between the United Kingdom
and Italy,
although he could not contradict what counsel for the appellant had said about
the time taken to effect transfer. The
arrangements available under the 1984 Act and the Convention were the reason
why the 2003 Act made no provision directly reflecting article 5(3) of the
Framework Decision. The issue was not
one peculiar to European Arrest Warrant cases.
The 1984 Act and the Convention were of general application, and
accorded appropriate respect to prisoners' rights under article 8 of the
European Convention on Human Rights. The
Framework Decision did not require the Member
State to make provision for a
condition of the sort contemplated in article 5(3). It therefore could not be said that the
absence from the United Kingdom
legislation of a direct transposition of article 5(3) rendered execution of the
European Arrest Warrant a disproportionate interference with the appellant's
rights under article 8.
Discussion
[92] The starting point for
consideration of ground 6 is section 2(2)(a) of the 2003 Act which requires a
European Arrest Warrant to contain inter
alia the information referred to in section 2(4), which includes, at
paragraph (c), "particulars of the circumstances in which the person is alleged
to have committed the offence, including the conduct alleged to constitute the
offence, [and] the time and place at which he is alleged to have committed the
offence ...". That paragraph includes,
and expands upon, a transposition of the requirements of article 8(1)(e) of the
Framework Decision. We accept that the
conduct must be fairly and properly described (R (Castillo) v Spain,
per Thomas LJ at 1052, para 25). We
accept that that is so as a matter of first principles of fairness, as well as
to allow the rule of speciality to be given content (Aronson, per Lord Griffiths at pp 594D and 595D). But we also accept the submission of counsel
for the Lord Advocate that one purpose of the 2003 Act was to simplify and
streamline procedures for extradition to EU countries, and that a practical,
rather than a technical, approach should be adopted to the specification given
in the warrant (Welsh and Thrasher,
per Laws LJ at para 26). As Lord Hope of
Craighead said in Armas (at para 44):
"The purpose of the statute is to
facilitate extradition, not to put obstacles in the way of the process which
serve no useful purpose but are based on technicalities.".
We therefore think it proper to adopt a practical approach to the
complaints of lack of specification made on the appellant's behalf under this
ground of appeal.
[93] The first complaint made
by counsel for the appellant was that the warrant did not specify the identity
of the person said to have been the victim of the alleged offence. It is correct that the victim is not
identified by name. He is referred to as
"a local entrepreneur", and it is evident from the language of the warrant that
he is or was engaged in the catering industry.
Neither section 2(4)(c) of the 2003 Act nor article 8(1)(e) of the
Framework Decision expressly requires identification of the victim by
name. Counsel in his submissions did not
identify any practical reason for requiring as a matter of fairness more
specific identification of the victim.
In our opinion the failure to name him is not fatal to the validity of
the warrant.
[94] The other two complaints
can be taken together. They relate to
the locus of the offence and the capacity in which the appellant is alleged to
have acted. In our opinion there is, on
a fair reading of the warrant and the material provided with it, no real doubt
on these matters. So far as the locus is
concerned, the materials which we have quoted make it clear (1) that the
"various violent and threatening activities" against the "local entrepreneur"
were carried out in Mondragone, and (2) that the ordering of those activities
was carried out by the appellant "from Scotland,
where he lived". So far as the capacity
in which the appellant is alleged to have acted is concerned, he is said to
have been involved in the "violent and threatening activities ... in complicity
with other persons", and his complicity is said to have arisen from his having
"ordered his Caserta's emissaries
to contact the entrepreneur". It is
evident from the reference elsewhere in the documents to "Mondragone (Caserta)"
that the reference to the appellant's Caserta emissaries is to the "other
persons" in whose activities in Mondragone he is said to have been
complicit. In effect, the allegation
contained in the warrant and associated documentation is, to put it in Scottish
terms, that the crime of attempted extortion was committed by others, as
actors, in Mondragone, and that the appellant was guilty of that crime art and
part in respect that he, in Scotland, had instigated (ordered) its commission
by his associates (emissaries) in Mondragone.
[95] The second aspect of
ground 6 relates to whether the particulars given are sufficient to enable the
sheriff to determine where the conduct occurred, so as to reach a conclusion as
to whether the charge against the appellant constituted an extradition
offence. Two cases require to be
considered, under section 64(2) and section 64(3). So far as section 64(2) is concerned, the
critical question is whether the particulars satisfy the requirement of section
64(2)(a), namely that the conduct occurred in the category 1 territory and no
part of it occurred in the United Kingdom. The "conduct" in question is the conduct
which constituted the offence (s 64(1)).
In the case of the appellant, there are two elements which make up that
conduct. The offence is constituted in
part by the conduct instigated by the appellant and carried out to his order by
others in Italy,
but also in essential part by the conduct of the appellant himself in ordering
the conduct of the others. Both elements
are essential to the appellant's guilt.
While the former element is alleged to have taken place in Italy,
the latter is alleged to have taken place in Scotland:
he "ordered" the conduct of his "emissaries" "from Scotland,
where he lived". We are, in these
circumstances, unable to agree with the sheriff (Report, p 18) that, because
the crime had no possible impact in Scotland,
it should be regarded as one in respect of which no part of the conduct
constituting it occurred in the United Kingdom. We therefore conclude that counsel for the
appellant was correct in his submission that the particulars given in the
European Arrest Warrant do not justify the conclusion that the offence was an
extradition offence within the meaning of section 64(2).
[96] Section 64(3) raises a
different issue. Under paragraph (a) of
that section, the requirement is that the conduct should have occurred in the
category 1 territory (Italy). That does not mean that the whole of the
conduct must have occurred in Italy;
part of it may have occurred elsewhere (Armas,
per Lord Bingham of Cornhill at para 17, and Lord Hope of Craighead at para
40). The fact that "elsewhere" is in the
United Kingdom
is of no moment; that precludes the application of section 64(2), but has no
effect under section 64(3) (Armas,
per Lord Hope at para 40). On the
analysis of the terms of the warrant and accompanying documentation set out
above, we are clearly of opinion that it is asserted that a major part of the
conduct which constituted the crime with which the appellant is charged
occurred in Italy. On that basis the
requirement of section 64(3)(a) is, in our opinion, clearly satisfied. So too is the requirement of section
64(3)(b), since we have no hesitation in concluding that the conduct mentioned
in the warrant would be criminal if committed in Scotland. No issue was taken as to the satisfaction of
the requirement of section 64(3)(c). We
are therefore satisfied that the sheriff was correct to hold that the
particulars contained in the warrant were sufficient to justify the conclusion
that the conduct to which it referred was an extradition offence within the
meaning of section 64(3).
[97] Grounds 9 and 10 have in
common the proposition that, for one reason or another, execution of the
European Arrest Warrant would involve a disproportionate interference with the
appellant's right to respect for his private and family life under article 8 of
the European Convention on Human Rights.
It is not disputed that the possibility of the execution of the warrant
potentially engages article 8. As
counsel for the Lord Advocate pointed out, the warrant is in that regard no
different from other forms of extradition.
That extradition may engage article 8 has been recognised in Wright (para 65) and Bermingham (para 121). However, in Launder (p 74, para 3) the Commission expressed the opinion
that it would only be in exceptional circumstances that extradition in respect
of serious criminal offences would be held to be an unjustified or disproportionate
interference with article 8 rights. In Ullah, although it was not an
extradition case, Lord Bingham (at para 24) recognised that in extradition
cases the extraditing state would usually have strong grounds for justifying
extradition on the ground of the desirability of honouring extradition
treaties. In Wright (at para 59) it was recognised that the task undertaken by
the reclaimer of demonstrating that the operation of salutary international
arrangements should be inhibited on account of the limited interference which
their operation would involve with the reclaimer's article 8 rights was a
"formidable" one. In Bermingham, Laws LJ, after referring to Ullah and Launder, said (at para 118):
"In my judgment this statement [the
passage from Launder referred to
above] and the authorities in their Lordships' House are, with respect,
entirely in line. If a person's proposed
extradition for a serious offence will separate him from his family, Article
8(1) is likely to be engaged on the ground that his family life will be
interfered with. The question then will
be whether the extradition is nevertheless justified pursuant to Article
8(2). Assuming compliance with all the
relevant requirements of domestic law the issue is likely to be one of proportionality:
is the interference with family life proportionate to the legitimate aim of the
proposed extradition? Now, there is a
strong public interest in "honouring extradition treaties made with other
states" (Ullah, paragraph 24). It rests in the value of international
co-operation pursuant to formal agreed arrangements entered into between
sovereign States for the promotion of the administration of criminal
justice. 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 the particular facts be disproportionate
to its legitimate aim."
There is thus strong authority to the effect that where article 8 is
engaged in a properly made extradition application, exceptional circumstances
will be required to justify a conclusion that the execution of the extradition
would involve disproportionate interference with article 8 rights.
[98] Counsel for the appellant
sought, however, to submit that in relation to interference with article 8
rights, a European Arrest Warrant fell to be treated differently from other
forms of extradition. There is one
respect in which we accept his submission.
In Wright (paras 72 to 74)
reference is made to according a wide margin of appreciation to the ministerial
decision-maker. As counsel correctly
pointed out, the primary decision-maker in relation to an individual European
Arrest Warrant is the sheriff, and this court on appeal. No question of allowing a margin of
appreciation therefore arises. We accept
that that is correct. It is not,
however, central to the main submission, which is that it is wrong, in the
context of a European Arrest Warrant, to say that wholly exceptional
circumstances are required to make a case of disproportionality. We do not accept that the fact that Ullah was not an extradition case
detracts from the force of Lord Bingham's observations in that case which,
while obiter, were made with express
reference to extradition cases. The fact
that Launder was not a case of
concurrent jurisdictions does not, in our view, affect the force of the passage
referred to. We therefore do not accept
that the courts in Wright and Bermingham were wrong to place the
reliance they did on Ullah and Launder.
The existence of article 4(7)(a) of the Framework Decision,
recognising a discretion to refuse extradition where there is concurrent
jurisdiction in the executing Member State, does not, in our view, alter the
importance of giving effect to international arrangements. We therefore do not accept that in
approaching a claim under article 8 to resist execution of a European Arrest
Warrant, the standard to be attained to make out a case of disproportionality
is more relaxed.
[99] In Wright (at para 67) the court regarded it as significant that no
authority had been cited for the view that extradition would be proportionate
only if it was demonstrated that prosecution in the executing state was
impossible. Counsel for the appellant
sought to rely on D v City of Hamburg as supplying authority to that
effect. In our opinion that argument was
not well founded. It is, in our view,
essential to read D v City of Hamburg in accordance with its subject
matter. It was concerned with the
transposition of the Framework Decision into German law against the background
of article 16(2) of the German Basic Law.
Counsel sought to equate article 8 of the European Convention on Human
Rights with article 16(2) of the Basic Law, on the basis that both were
concerned with fundamental rights. For
the reasons given by counsel for the Lord Advocate we are of opinion that the
appellant cannot derive any assistance from D
v City of Hamburg.
[100] Article 4(7)(a) of the Framework Decision confers on the judicial
authorities of the executing State a discretion not to execute a European
Arrest Warrant where the law of that State regards the offence mentioned in the
warrant as having been committed in whole or in part in its territory. The purpose of that discretion is to allow
the executing state to assert the priority of its own jurisdiction over that of
the requesting state. It is correct
that, as counsel for the appellant submitted, the 2003 Act does not directly
transpose that discretion into United Kingdom
law. But it does not follow that the
non-availability of that discretion renders execution of the European Arrest
Warrant against the appellant automatically a disproportionate interference
with his article 8 rights. It is
necessary to examine both (1) the provisions that do exist in the United
Kingdom to enable domestic jurisdiction to be asserted in preference to
extradition in circumstances in which article 4(7)(a) would apply, and (2) the
circumstances of the case so far as they bear on the likelihood of domestic
jurisdiction in fact being asserted.
[101] Section 22 of the 2003 Act
obliges the extradition judge, where there are parallel proceedings in the
United Kingdom, to adjourn the extradition hearing until the domestic
proceedings have, in one way or another, been brought to an end. The domestic legislation thus applies, not
(as is the case with article 4(7)(a)) by virtue of the mere existence of
concurrent jurisdiction, but when that jurisdiction is actually invoked. That difference from article 4(7)(a) is not
in our opinion important, because the only legitimate purpose for which the
article 4(7)(a) discretion might be invoked is to enable the primacy of the
domestic jurisdiction of the executing state to be asserted. Where that domestic jurisdiction is actually
asserted, however, section 22 gives automatic priority to the domestic
proceedings. The United Kingdom
legislation therefore, in our view, cannot be regarded as inherently less
protective of the appellant's article 8 rights than article 4(7)(a).
[102] If the article 4(7)(a)
discretion had been directly available for the sheriff to exercise, it could
only be said that the failure to prevent execution of the warrant involved
disproportionate interference with the appellant's article 8 rights if the
prosecuting authorities could and should have instituted domestic
proceedings. In the circumstances of
this case that condition is not satisfied.
Although the appellant's instigation of the attempted extortion is
alleged to have taken place from Scotland,
the whole of the violent and threatening activities are said to have taken
place in Mondragone and had their effect there.
The crime had a much more substantial connection with Italy
than with Scotland. Proof of the crime in Scottish proceedings
would be dependent on examination of acts that took place in Italy. The majority of the witnesses would
inevitably be Italian. Their attendance
in Scotland
would not be compellable. If the
witnesses attended, their evidence would probably have to be given through
interpreters. The subject matter of the
trial would be truly foreign to a Scottish jury. It is therefore unrealistic to suppose that
the Scottish prosecution authorities would have seen fit to prosecute the
appellant in Scotland. It cannot therefore, in our view, be said
that if the article 4(7)(a) discretion had been available to the sheriff, it
would have been appropriate for him to exercise it in favour of refusal to
execute the warrant. The unavailability
of the section 4(7)(a) discretion in United
Kingdom law cannot, therefore, in our
opinion be said to have resulted in a disproportionate interference with the
appellant's rights under article 8.
[103] The proposition advanced in
Ground 9 is that the failure of the 2003 Act to reflect the possibility of
imposing a condition, in executing a European Arrest Warrant, requiring that
any custodial sentence be served in the United Kingdom, rendered execution of
the warrant a disproportionate interference with the appellant's article 8
rights. In terms of article 5(3) of the
Framework Decision, execution of the warrant may, by the law of the executing
state, be subject to such a condition where the person who is the subject of
the warrant is a national or resident of the executing Member
State. The appellant falls within the scope of
article 5(3) because, although originally an Italian national, he has acquired United
Kingdom citizenship, and is resident in Aberdeen.
[104] It is to be noted that
article 5(3) merely allows for the possibility that the law of a Member
State will make provision for such
a condition. The United
Kingdom has not chosen to follow that route,
but has made other provision for securing that prisoners may be returned from inter alia Italy
to serve in the United Kingdom
sentences imposed abroad. We have
already described, in recording the submissions of counsel for the Lord
Advocate, the statutory provisions regulating the return of prisoners sentenced
abroad to serve their sentences in the United
Kingdom, and the underlying treaty
obligations. We accept counsel's
submission that these provisions afford appropriate respect to prisoners'
article 8 rights. We are not persuaded
that the fact that the route to prisoner exchange provided for in article 5(3)
has not been adopted in United Kingdom
law means that execution of the warrant would amount to a disproportionate
interference with the appellant's article 8 rights. We do not consider that that fact amounts to
the sort of wholly exceptional circumstances that would justify the conclusion
that execution of the warrant involved such disproportionate interference.
[105] We are accordingly
satisfied, for the reasons which we have set out, that grounds 6, 9 and 10 are
all ill-founded, and that none of these grounds affords a basis for refusing to
execute the European Arrest Warrant.
The validity of the European Arrest Warrant
- Conformity with the Framework Decision (Part 1, ground 4) and Form of Warrant
(part 1, ground 5)
[106] Although ground 6 of the
Part 1 appeal bears on the validity of the European Arrest Warrant, counsel for
the appellant dealt with it in the context of the issues relating to the
proportionality of extradition, and we have accordingly discussed it in that
context. The two remaining issues
concerning the validity of the European Arrest Warrant are raised in grounds 4
(whether the Warrant was completed in accordance with the requirements of the
Framework Decision and whether it adequately disclosed the purpose for which
surrender of the appellant to Italy was sought) and 5 (whether the Warrant
contained the statement required by section 2(2)(a) and (3) of the 2003
Act).
The statutory provisions
[107] Section 2(2) of the 2003
Act defines a Part 1 warrant as an arrest warrant which is issued by a judicial
authority of a category 1 territory and which contains either the statement
referred to in subsection (3) or the statement referred to in subsection
(5). The statement referred to in
section 2(3) is that -
|
|
"(a)
|
the person in respect of whom the Part 1 warrant is
issued is accused in the category 1 territory of the commission of an offence
specified in the warrant, and
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(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
prosecuted for the offence."
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The statement referred to in
section 2(5) is 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
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|
(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."
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Submissions for the appellant
[108] It is convenient to take
grounds 4 and 5 together, because they both arise out of the same features of
the way in which the European Arrest Warrant form has been completed in respect
of the appellant. The submission of
counsel for the appellant in respect of ground 4 was that the form had been
incorrectly completed, in respect that it did not make it clear whether it
contained the statement mentioned in section 2(3) or the statement contained in
section 2(5). In other words, it was not
clear on the face of the terms of the Warrant whether the appellant was said to
be a person accused of an offence whose surrender was sought for the purpose of
prosecution (s 2(3)), or a person who was unlawfully at large after conviction
whose surrender was sought for the purpose of being sentenced or serving a
sentence (s 2(5)). It followed, in terms
of ground 5, that the sheriff had erred in concluding that the Warrant complied
with the requirements of section 2(2)(a) and (3).
[109] In advancing that
submission, counsel relied on certain observations made in Armas by Lord Scott of Foscote, at paragraphs 54 and 56. At paragraph 54, Lord Scott said:
"It is to be noted that the opening
words of the form of arrest warrant set out in the annex to the Framework
Decision refer to a request that
'the person mentioned below be
arrested and surrendered for the purposes of conducting a criminal prosecution
or executing a custodial sentence or detention order.'
It is presumably intended that
the inapplicable alternative be deleted.
The person in question is surely entitled to know which of the
alternatives apply to him."
In paragraph 56 Lord Scott added:
"An arrest warrant which contains
neither the section 2(3) statement nor the section 2(5) statement does not, it
appears to me, comply with the requirements of the Act and, if that is right,
would not constitute a warrant on which an extradition under Part 1 of the Act
could be ordered."
[110] Counsel pointed to the
terms of the Warrant (in the English translation). On page 1, it stated that the Warrant had
been issued by the Judge for Preliminary Investigations of the Court of Naples,
requesting that the appellant "be arrested and surrendered for the purpose of
conducting a criminal prosecution or executing a custodial sentence or
detention order". The deletion of the inapplicable
alternative, as desiderated by Lord Scott, had not been effected. On page 2, in the section headed "Decision on
which the warrant is based", paragraph 1, "Arrest warrant or judicial decision
having the same effect", was completed in the following terms:
"OCC
Type: Order of precautionary custody in prison No 47334/05 RG GIP and No
93/05 OCC issued by the Judge for Preliminary Investigations of the Court of
Naples on Feb 11, 2005."
Paragraph 2, "Enforceable judgment" was completed in the following terms:
"Reference No Proc Penale
No 7422701 RGNR - No 47334/02 [sic]
RG GIP - No 93/05 OCC."
In the section headed "Indications on the length of the sentence",
paragraph 1, dealing with the maximum length of custodial sentence which may be
imposed, is completed with references to the Penal Code and mention of 20 years
of imprisonment, while paragraph 2, dealing with the length of the custodial
sentence imposed, is not completed. In
the section headed "Decision rendered in
absentia", the first alternative - that the person concerned has been
summoned in person or otherwise informed of the date and place of the hearing
which led to the decision rendered in
absentia - is not completed. Against
the second alternative - that the person concerned has not been summoned in
person or otherwise so informed, but has the following legal guarantees after
surrender - has the following guarantees specified:
"The order of precautionary custody
in prison and the documents in support of said order have been lodged with the
Clerk of the Court after notification to defence counsel [identified] following
the issuance of the ... decree declaring him a fugitive from justice."
On page 6 at section (h) the introductory passage in the form - "The
offence(s) on the basis of which this warrant has been issued is(are) punishable
by/has(have) led to a custodial life sentence or lifetime detention order" -
has inserted after it the words "from 6
to 20 years of imprisonment". Neither of
the other two passages in paragraph (h) of the form is deleted or expanded
upon.
[111] Counsel noted that in Boudhiba the ambiguity as to whether the
case fell within paragraph (a) or (b) of section 2(2) had been resolved by the
absence of reference to an enforceable judgment, but submitted that that was
not so here. By attaching significance
to the fact that the warrant had been issued by a Judge for Preliminary
Investigations the sheriff had speculated impermissibly about the Italian legal
system (de Canha v Portugal [1997] EWHC Admin 637, at paras
17 to 20). The sheriff had erred in taking
into account the fact that the issue was only taken at the extradition hearing,
and not at various hearings before that stage was reached. The issue was fundamental to the sheriff's
(and this court's) jurisdiction, and was not waived by not being taken until
the extradition hearing (Boudhiba,
para 15).
[112] In these circumstances on a
proper reading of the Warrant, the form in the annex to the Framework Decision
had not been properly completed. It had
not been made clear whether this was a section 2(2)(a) or a section 2(2)(b)
case. It followed that the sheriff's
finding that it contained the statement required by section 2(2)(a) and (3) was
erroneous.
Submissions for the Lord Advocate
[113] Counsel accepted that, as a
result of the terms of section 2(2) of the 2003 Act, a European Arrest Warrant,
in the domestic law of the United Kingdom, was one which contained the
statement identified in paragraph (a) or the statement contained in paragraph
(b) of that section; otherwise it was not a Part 1 warrant within the meaning
of the Act. He pointed out, however,
that that strict dichotomy was not to be found in the form annexed to the
Framework Decision. A purported European
Arrest Warrant was therefore not invalid simply for the absence of an express
statement in the warrant in terms that reflected one of subsections (3) or (5)
of section 2. It was sufficient if it
was clear, from the terms of the Warrant as a whole, that it fell into one or
other of these categories. That was
clear from Boudhiba, where Smith LJ
(at para 21) said:
"The warrant states that the
appellant is wanted for the purposes of conducting a criminal prosecution,
sentencing following conviction or executing a custodial sentence or detention
order. I accept that there is some
ambiguity in those words in that they do not make clear whether the person
sought has yet been convicted. However,
they would not be applicable if the decision to prosecute had not yet been
taken. In any event, such ambiguity as
there was is removed on the following page where it is made clear that the
decision on which the warrant is based is the Order of Commitment dated 18th
May 2004 and that there is not yet an enforceable judgment in existence. On the page following, there is a statement
that the maximum sentence that can be imposed for the offences is 15 years
imprisonment. I would accept [counsel's]
submission that that was enough in itself to make it plain that the appellant
was an accused person and that proceedings had begun."
Counsel submitted that in the present case the Warrant, read as a whole,
made it clear that the appellant was an accused person whose extradition was
sought for the purpose of prosecution.
He relied on the fact that the Warrant was issued by a Judge for
Preliminary Investigations, that it was based on an order of precautionary
custody, and that in relation to sentence a maximum rather than an actual
sentence was stated. The warrant
therefore complied in substance with the requirements of section 2(2)(a) and
(3), and the sheriff was right so to hold.
Discussion
[114] Whatever the form in the
annex to the Framework Decision may require, it is in our opinion clear that
section 2(2) of the 2003 Act requires that, if a Warrant is to constitute a
valid Part 1 Warrant within the meaning of the Act, it must contain what can be
regarded as constituting either the statement required by section 2(3) or the
statement required by section 2(5) (Armas,
per Lord Scott of Foscote at para 56).
It is to be noted, however, that the form in the annex does not employ
the same language as section 2 of the 2003 Act.
The annex contemplates a request that the person concerned be
surrendered "for the purpose of conducting a criminal prosecution or executing
a custodial sentence or detention order".
That does not draw precisely the same borderline as is drawn by section
2(3) and (5). The dichotomy between the
terms of the annex to the Framework
Decision and the terms of section 2 of the 2003 Act was noted by Lord Hope of
Craighead in Armas at paragraph 26. Later, Lord Hope went on to observe (at para
44):
"It would be unduly strict in these
circumstances to insist that a statement must appear in the actual words used
in section 2(5) if a European arrest warrant is to qualify as a Part 1
warrant. The purpose of the requirement
is to provide protection against an unlawful infringement of the right to
liberty, so it is an important part of the procedure provided for by
Parliament. But the court should be slow
to construe those words in a way that would make it impossible to give effect
to a warrant which is in the terms which the Framework Decision has laid
down. The purpose of the statute is to
facilitate extradition, not to put obstacles in the way of the process which
serve no useful purpose but are based on technicalities."
Although Lord Hope was there dealing with section 2(5), the same applies
to section 2(3). We therefore accept the
submission of counsel for the Lord Advocate that, in judging whether the Warrant
contains a statement bringing it within the scope of section 2(3) or section
2(5), what matters is not whether the language of the section is precisely
reflected in the Warrant but whether it is made clear that the warrant is
issued for one or other of the statutory purposes and, if so, which.
[115] The present case is not
precisely on all fours with Boudhiba. In that case there was no reference to an
enforceable judgment. Here a reference
is inserted after the words "Enforceable judgment" in the part of the form
headed "Decision on which the warrant is based".
[116] There are, however, other
factors that seem to us to be relevant.
While we note the warning against making assumptions about foreign
systems voiced in de Canha, we are,
we think, entitled to note (1) that the Warrant was issued by a "Judge for
Preliminary Investigations"; (2) that the Warrant is said to have been based on
an "order of precautionary custody"; and (3) that, where the form calls for a
statement of (a) the maximum length of custodial sentence or (b) the length of
custodial sentence and the remaining sentence to be served, part (a) is
completed and part (b) is not. More
generally, there is absolutely nothing in the way in which the form has been
completed that suggests that the appellant is unlawfully at large after conviction. We should add that we have attached no weight
to the stage at which the point was first taken.
[117] We are therefore satisfied that on a fair reading of the Warrant
as a whole it can properly be regarded as containing the statement required by
section 2(3). It follows that the Warrant
is not defective, and the sheriff was entitled to hold that it satisfied the
requirements of section 2(2)(a) and (3).
Grounds 4 and 5 therefore fall to be rejected.
(D) Grounds of appeal in the Part 2
appeal only
Proof of service (Part 2, ground 6)
Submissions for the
appellant
[118] Counsel for the appellant submitted that the
sheriff erred in holding that the requirements of service under section
78(4)(c) had been satisfied. The execution of service was ex facie
defective. In any event, the sheriff failed to give adequate reasons for
holding that the requirements of service had been satisfied. The Scottish
Ministers had to commence the proceedings in terms of section 70(9) by issuing
a certificate and by sending to the sheriff the relevant documents, namely the
request for extradition; a certificate that the request had been made in
the approved way and the relevant Order in Council. In terms of section
78(2)(a) the sheriff then had to decide whether the documents sent to him
consisted of or included the documents referred to in section 70(9) together
with the further documents required by section 78(2)(b)-(e). If the
sheriff decided that the documents sent to him did not consist of or include those
things, he was obliged to order the discharge of the appellant (s 78(3)).
In this case the execution of service on the appellant required by section
78(4)(c) related only to the documents mentioned in section 70(9). There
was nothing else attached to the execution of service. Accordingly, the
appellant could not tell what had been sent to the sheriff. The fact that
no complaint had been made about this at any stage was irrelevant. There
was no duty on the appellant's advisers to find out what documentation the
sheriff had received. In HM Adv
v Headrick (2005 SCCR 787) the sheriff had rejected this point on
the basis of section 144(8) of the Criminal Procedure (Scotland)
Act 1995 (at para 15). That provision related to citation in a different
statutory context.
Submissions
for the Lord Advocate
[119] Counsel submitted that section 78 of the
2003 Act related to the copy documents that had to be served on the
appellant. The documents in question were those specified in section
70(9). No specific form of proof was prescribed. The execution of
service lodged in court had no copy documents attached to it; but it
recorded that there were handed to the appellant "a copy of the documents sent
to the Judge by the Justice Minister under section 70(9) of the Extradition Act
2003 which are attached to this execution of service." In the absence of
any contention by the appellant that he did not receive a copy of any of the
documents sent to the sheriff by the Scottish Ministers, it was unnecessary for
the execution to say more than that copies of the relevant documents were
served on him. The execution did this because it plainly referred to the
correct documents, namely those referred to in section 70(9).
Furthermore, although the execution referred to the documents "which are
attached to this execution of service" and although when the execution was
lodged there were no longer any documents attached to it, a plain reading of
those words indicated that a copy of the relevant documents was originally attached
to the form of execution of service and that the police officer who served them
on the appellant detached them and, as the execution recorded, handed them to
the appellant. The officer then made out
the execution of service. The sheriff
dealt with this point more than adequately (Report, pp 10-14). The matter
was correctly dealt with by the sheriff in HM Adv v Headrick (supra,
at paras 13-17).
Discussion
[120] In our opinion this ground of appeal is
entirely without merit. The infelicity of expression by which it is said
that the copy documents served on the appellant are "attached to" the execution
of service is irrelevant. On a plain reading, these words indicate that
the copies of the documents sent to the sheriff, although originally attached to
the form of execution of service, were handed to the appellant before the form
of execution was itself duly completed by the police officer who effected
service. Since the sheriff had no reason to think that the appellant had
not been given copies of any of the documents that had been sent to him, he was
entitled to proceed on the faith of the execution of service and on the
presumption that the statutory requirement had been complied with. Moreover, it is perfectly obvious that copies
of all of the documents that were sent to the sheriff by the Minister for
Justice were served upon the appellant. As the sheriff records,
"[Counsel for the appellant] accepted
that during several of the earlier hearings there had been discussion about the
detailed content of the documents and in that discussion there was obviously an
implied acceptance that service of them had been made ... My papers in this case
suggest also that at a hearing on 25 April 2005, the appellant's solicitor ...
confirmed that the documentation had been served and said that further time was
required to peruse the large volume of paperwork involved in this case"
(Report, pp 10-11).
[121] The submission for the appellant is
particularly far-fetched because it is no part of the appellant's case that he
did not receive a copy of any of the documents that were sent to the sheriff. When the point was put to him, counsel for the
appellant refrained from making any such suggestion.
Extradition
offence (Part 2, ground 8)
Submission for the
appellant
[122] Counsel for the appellant submitted that it
was the duty of the sheriff to decide if the offence alleged was an extradition
offence (s 78(4)(b)). In this case, the sheriff had to be satisfied that
each of the offences alleged was an extradition offence. He could not
grant the application made to him in respect of part of the extradition
request. Section 78(4)(b) was to be read as meaning that it required that
each and every offence alleged was in itself an extradition offence. If any
one of the offences alleged was not, the appellant must be discharged.
The first charge in this case was that of being a member of a criminal
association of a camorra-type, the so-called La Torre Clan. The essence
of the offence was mere membership of a camorra-type organisation. While
under other United Kingdom
legislation membership of certain terrorist organisations might be an offence per
se, as in the case of certain Irish organisations for example, membership
of an Italian organisation was not an offence known to the law of Scotland.
Submission
for the Lord Advocate
[123] Counsel submitted that the 2003 Act referred
to conduct rather than to the nomen iuris of the offence. The
court had to look at the conduct for which extradition was sought and decide if
that conduct would amount to a crime according to domestic law (In re
Neilson [1984] 2 WLR 737; USA v McCaffery [1984] 1 WLR
867). In this case the conduct relating to membership of the camorra-type
organisation could readily be libelled in the law of Scotland
as a criminal conspiracy (Stair Encyclopedia, Criminal Law (Re-Issue),
para 169)). The submission for the appellant turned on section 137(2),
which set out the double criminality rule. The court should take a broad
and generous approach to the interpretation of the Act (In re Ismail, supra, Lord Steyn at pp 326F-327G).
Discussion
[124] In our opinion, counsel for the Lord
Advocate was right in submitting that the 2003 Act looks at the conduct for
which extradition is sought rather than to any specific nomen iuris.
We are concerned to see whether the substance of the alleged acts for which
extradition is sought would amount to a crime in our law. The fundamental
flaw in the submission for the appellant is to regard the crime alleged as
being mere membership of a certain association. It is not. It is
membership of an association whose purpose is to conspire to commit certain
specified crimes. That is the nature of the Italian crime (cf art 416 bis
of the Italian Penal Code) and it is in essence no different from the Scottish
crime of conspiracy to further the purpose of an association by criminal means
(cf Sayers v HM Adv, 1981 SCCR 212). In our opinion, the principal
offence for which extradition is sought in this case is clearly an extradition
offence. There is no substance in this ground of appeal.
Whether the appellant is an accused person (Part 2, ground
9)
Submission for the
appellant
[125] Counsel for the appellant submitted that the
sheriff's conclusion on the question whether the appellant was a person accused
of or convicted of an offence was based on a misunderstanding of the material
before him. He had misread the affidavit of Avv Busatto. The
sheriff himself implied that there had been a trial (Report, p 25). There
had been a negotiated reduction of the sentence. The accused was
therefore a convicted person and the sheriff should have proceeded to deal with
the matter under sections 85 and 86, and not, as he did, under section
84. The sheriff said that both Magistrate Misiti and Avv Busatto were
agreed that the judgment of 25
February 2004 was not final and could be
challenged on appeal. The documents before the sheriff referred to the
appellant as having been found guilty in his absence and sentenced. That
meant that he was convicted. The fact that his conviction could be set
aside on appeal did not affect the matter. Accordingly, the appellant
fell to be dealt with by the sheriff as a convicted and not as an accused
person. The sheriff treated him as an accused person (Report, pp 27-28)
and thereby deprived him of the guarantees provided by section 85 As in R
(Guisto) v Governor of Brixton Prison ([2004] 1 AC 101), the extradition
request had proceeded on a false basis. If the present case had been
brought against the appellant as a convicted person, he could have argued the
point as to whether or not he deliberately absented himself from trial and
whether or not he would be entitled to a rehearing. Since the sheriff
treated him as an accused person only, he was deprived of that opportunity.
Submission
for the Lord Advocate
[126] Counsel submitted that the distinction made
on behalf of the appellant between an accused person and a convicted person was
a false one. The distinction used in Part 2 was between an accused person
and a person unlawfully at large after conviction. Section 70(1) required
the making of a "valid" request for extradition. To be valid, the request
had to contain a statement in terms of section 70(4) (s 70(3)(a)), that is to
say a statement in either of two forms, namely (a) that the person was accused
in the category 2 territory of an offence specified in the request or (b) was
alleged to be unlawfully at large after conviction. If the sheriff
decided that the person in question was accused but not unlawfully at large
after conviction, he had then to proceed under section 84. If it was
alleged that he was unlawfully at large after conviction, the sheriff must
proceed under section 85. It was obvious that the statement in this case
did not proceed on the basis of section 70(4)(b) by alleging that the appellant
was unlawfully at large after conviction. He was not unlawfully at large
after conviction because his sentence was not yet enforceable. Therefore,
he must be an accused person in terms of section 70(4)(a). There was no category other than these
two. The categorisation had to be made as at the date of the request, even
if the appellant's status later changed. It was not alleged that at the
date of the request he was unlawfully at large after conviction. For the
resolution of this ground of appeal, that was all that mattered. The
whole system depended on taking the statement made in the request on
trust. It was the allegation of the requesting State that mattered.
That determined the category into which the appellant would be put for the
purposes of proceedings in this country. (R Guisto) v Governor of Brixton Prison (supra) was
distinguishable. It was decided under different legislative language that
distinguished between an "accused" person and a "convicted" person. It
had no bearing on the 2003 Act. In In re Ismail ([1999] 1 AC 320)
the appellant alleged that he had not been charged with any offence. It
was held that the expression "accused" was not a term of art. It could be
interpreted flexibly to accommodate differences between the common law and
civilian systems. Extradition treaties should be given a broad and
generous interpretation in order to facilitate extradition. The court
should adopt a cosmopolitan approach to the term "accused". The court
should take the approach that was taken in Migliorelli v Italy
(2000 WL 1421286 (DC)), where the subject of the request was in a similar
position to the appellant. In that case the Divisional
Court held that the appellant's
trial was not complete in the sense of being final (Morison J, at p 3).
The court had before it written confirmation that the sentence was still
subject to appeal. It was not alleged that the appellant in that case was
unlawfully at large. Adopting the approach of Lord Steyn in In re
Ismail (supra), the Divisional
Court held that the conviction could
not be said to be final. Accordingly, the status of the appellant in
respect of section 70(4) was fixed at the time of the request. Subsequent
events were irrelevant. But in fact in the present case the appellant's
status had not changed. The Italian sentence remained unenforceable.
Discussion
[127] In our opinion, the submission on behalf of
the appellant is misconceived. The key provision in relation to this argument
is section 70(4). It does not distinguish between an accused person and a
convicted person. It distinguishes between an accused person and a person
alleged to be unlawfully at large after conviction. Since it is agreed
that the accused is not alleged to be unlawfully at large after conviction, it
follows, in our view, that he has to be categorised as an accused person within
the meaning of section 70(4)(a). That was the basis on which the sheriff
dealt with the matter. He was right in proceeding under section 84.
In any event, even on the information before the sheriff it was apparent that
the sentence passed upon the appellant had not yet become final. We agree
that Guisto (supra) is distinguishable from the present case, for
the reasons given by counsel for the Lord Advocate, and has no bearing on the
interpretation of section 70(4). The view that we have reached can be
founded on a straightforward reading of section 70, and in particular section
70(4). But should it be necessary, we consider that the approach that was
urged by Lord Steyn in cases of this kind (In re Ismail, supra) amply
justifies the conclusion which the sheriff drew. As in Migliorelli v
Italy (supra; cp Migliorelli v Italy, [2001] EWHC Admin 861,
Rose LJ at para 2)), the key consideration is the fact that the accused's
sentence is still subject to appeal and his conviction cannot be said to be
final.
Double jeopardy
(Part 2, ground 10)
Submissions
for the appellant
[128] Counsel for the appellant relied on section
79(1)(a) under which extradition may be barred by reason of the rule against
double jeopardy. Double jeopardy was defined in section 80. It was
in essence the plea of tholed assize (Dunlop v HM Adv 1974 JC 59).
This submission stood or fell with ground 9. In R v Thomas ([1985]
1 QB 604) the accused pled double jeopardy in relation to his having been
convicted in absence in Italy and sentenced to imprisonment and to a
fine. Since no extradition agreement then existed between Italy
and the United Kingdom,
he was never in danger of being imprisoned or fined in Italy.
Therefore the plea of double jeopardy failed. In contrast, there now was
an extradition agreement between Italy
and the United Kingdom. Therefore the appellant, having been
sentenced to imprisonment and a fine, was in a true situation of double
jeopardy.
Submissions
for the Lord Advocate
[129] Counsel for the respondent submitted that
the double jeopardy referred to in section 79(1) applied both to persons
accused and to persons unlawfully at large after conviction. The proper
interpretation must be that there was a bar to extradition only if, leaving out
of account the foreign proceedings in respect of which extradition was sought,
the fugitive had tholed his assize. If
he had been prosecuted here in respect of those charges, there would have been
no foundation for a plea of tholed assize.
The appellant had not been tried for these offences in any other
proceedings. It made no sense to apply the interpretation put forward on
behalf of the appellant. That would bar the extradition of anyone who had
been convicted, and would make redundant the specific provisions in section
79(1) relating to persons unlawfully at large after conviction.
Discussion
[130] We agree with counsel for the appellant that
this ground of appeal stands or falls with ground 9. Since we consider
ground 9 to be misconceived, we reject this ground of appeal too. In our
view, the fundamental flaw in this ground is the reliance of counsel for the
appellant on section 80. Section 80, in effect, merely says that the
court must judge the risk of double jeopardy occurring in Italy
by asking what would be the position if the appellant were to be tried for the
same offences in Scotland,
and in particular whether the appellant could then say that he had already been
convicted or acquitted on those charges. That would be the only basis on
which a plea of tholed assize could be sustained in Scotland.
There would be no scope for such a plea in the present case.
VIII
DECISION
[131] We refuse the appeals.
