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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 81
Appeal No: MISC 149/06
OPINION OF THE
COURT
delivered by LORD NIMMO
SMITH
in
PETITION
to the nobile officium of the High Court of
Justiciary
by
ANTONIO LA TORRE
Petitioner;
against
THE LORD ADVOCATE
and SCOTTISH MINISTERS
Respondents:
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For the petitioner: Bovey, Q.C, Mrs. Hughes.; Capital Defence Lawyers, Edinburgh
For the respondents: Moynihan, Q.C., A.D.; Lord Advocate and Scottish Ministers
27 October 2006
Introduction
[1] The present petitioner, Antonio La
Torre, was the appellant in appeals to this court under the relative provisions
of the Extradition Act 2003 ("the 2003 Act") against (i) the decision of the
Sheriff of Lothian and Borders at Edinburgh dated 27 September 2005 by
which he remitted the petitioner's case to the Scottish Ministers for them to
decide whether or not to extradite the petitioner 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 the same Sheriff dated 21 December 2005 by which he ordered the
extradition of the petitioner. The first appeal (the Part 2 appeal)
related to an extradition request made by the Government of Italy in January
2005. The second (the Part 1 appeal) related to a European Arrest Warrant
submitted to the Crown Agent in September 2005. Following this the
petitioner was arrested on 26
September 2005, and has been in custody in HMP Saughton since
then. The petitioner also lodged
devolution minutes in both appeals, seeking to raise devolution issues within
the meaning of paragraph 1 of Schedule 6 to the Scotland Act 1998.
[2] The hearing of the appeals took place
over five court days. The members of the
court who heard them were the same as those today. We heard exhaustive argument. On 14
July 2006 we issued our Opinion: La Torre v HM Advocate [2006] HCJAC 56 ("La Torre"). For the reasons given therein, we held that
the devolution minutes, so far as directed against acts of the Lord Advocate
and of the Scottish Ministers, were competent, but we refused the minutes. We rejected all the grounds of appeal which
were advanced in both the Part 1 and Part 2 appeals, and refused the
appeals. We refused to grant the
petitioner leave to appeal to the Judicial Committee of the Privy Council. On 2 October 2006 a Board of the Judicial Committee of the Privy Council, consisting
of Lord Bingham of Cornhill, Lord Hope of Craighead and Lord Rodger of
Earlsferry, refused to grant the petitioner
special leave to appeal.
[3] The petitioner now makes this application
to the nobile officium of this court. The petition was presented on 6 October 2006. Answers were lodged for the Scottish
Ministers and the Lord Advocate ("the respondents"). We allowed the petition and answers to be
adjusted. Outline written submissions,
with relative documents and authorities, were lodged before today's hearing,
and we have had an opportunity to consider them. We have today heard submissions from Mr Bovey
QC for the petitioner and from Mr Moynihan QC for the respondents.
The nobile officium
[4] Before saying more about the terms of
the application, we propose to say something about the jurisdiction which the
petitioner seeks to invoke. A convenient
summary is found in Renton and Brown's
Criminal Procedure, 6th edition, paragraph 34-01:
"The High Court may, in the exercise of its nobile officium, 'grant such orders as may be necessary ... for the
purposes of preventing injustice or oppression': Lang, Petitioner 1991
SLT 931, per the Lord Justice-General
(Hope) at page 933. The exercise of the nobile officium is confined to circumstances
which are 'extraordinary or unforeseen, and where no other remedy is provided
for by law': Anderson v HM
Advocate 1974 SLT 239, per the
Lord Justice-General (Emslie) at page 240.
It cannot, however, be exercised when to do so would conflict with a
statutory intention, whether express or 'necessarily implied': Lang, at page 933; Anderson, at page 240. It
has been observed that even if a case can be brought within the general
requirements for the exercise of the nobile
officium, 'it still requires to be shown that there is a compelling case
for the exercise of the power, consistent with considerations of what is fair
and just in the circumstances': Bryceland,
Petitioner 2003 SLT 54, per the
Lord Justice-General (Cullen) at pages 55-56."
[5] It can be seen from this passage that it
is of the essence of this equitable jurisdiction that it involves the exercise
of the court's discretion to provide a remedy where none would otherwise be
available, in circumstances where the interests of justice clearly require
it. As can be seen from Anderson, and the passages from Alison, Criminal Law of Scotland, Vol. II, page
23 and Moncreiff, Review of Criminal Cases,
page 264 referred to therein at page 240, what is meant by the words
"extraordinary or unforeseen" is that the circumstances which have arisen are
of a kind which has not been anticipated by the makers of the legislative
framework within which the court must otherwise operate. Before the exercise of the discretion can even
be considered, a clear prima facie case
must be set out. Without this, an
application is incompetent. In the
absence of a clear prima facie case,
there can be no question of the balancing of competing considerations which is
involved in the exercise of a discretion such as this.
The present circumstances
[6] The chronology of events prior to the
petitioner's arrest is set out at paragraph [64] of La Torre. From this it can
be seen that the petitioner had been convicted and sentenced to imprisonment in
his absence. As narrated in paragraph
[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. One of the issues we had to consider in
connection with the Part 2 appeal was a submission by Mr Bovey that the petitioner
was a convicted person, not an accused person within the meaning of section
70(4)(a) of the 2003 Act. At paragraph
[127] we said:
"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 [appellant] 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. ... 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 [1999] 1 AC 320) amply justifies the conclusion which the
sheriff drew. As in Migliorelli v Italy 2000 WL 1421286 (DC) (cp Migliorelli
v Italy, [2001] EWHC Admin 861, Rose LJ at paragraph 2), the key consideration
is the fact that the [appellant's] sentence is still subject to appeal and his
conviction cannot be said to be final."
[7] As can be seen from this passage, the
fact that the petitioner's sentence was still subject to appeal was not the
primary basis on which we rejected Mr Bovey's submission. At that hearing, we asked Mr Bovey, in the petitioner's
presence, what the position was in relation to the progress of an appeal to the
Corte di Cassazione in Rome. The final date for lodging an appeal had
passed by the time of that hearing, and we understood from the papers before us
that an appeal had in fact been lodged, but
Mr Bovey sedulously avoided giving us any further information, saying that
it was a matter on which he did not have instructions.
[8] In fact, what is now clear is that, as
the petitioner knew very well, an appeal had been lodged by a lawyer
representing him, that the appeal had not yet been disposed of, and that it was
open to him either to proceed with the appeal or to abandon it. The option of abandonment was available throughout, and in particular before the date of our
decision on 14 July 2006.
[9] In the present petition, as originally
lodged, it is averred that by letter dated 2 October 2006 Avv Attilio
Maccarrone (who, we take it, is the petitioner's Italian lawyer) intimated that
the petitioner's appeal had been declared inadmissible by judgment of the Corte
di Cassazione in Rome on 28 September 2006, and that this rendered immediately
final and definitive the judgment of the Naples court against which he had
appealed. This averment left much
unsaid. It is only in response to
averments in the respondents' answers that the petitioner has now added an
adjustment in terms of which he admits that the appeal was due to be heard on 7
November 2006, but that the decision of the Corte di Cassazione was made on 28
September 2006 because the petitioner, through his Italian lawyer, applied to
withdraw his appeal and sought an accelerated diet, at which the petitioner was
represented by his lawyer; and that the
decision of the Corte di Cassazione gave effect to the petitioner's application
to withdraw his appeal.
[10] We have to assume that the lack of candour
in the petition as originally lodged is to be laid at the door of the petitioner
and not the drafter of the petition.
What is now manifest is that the appeal was abandoned on the petitioner's
instructions, which could have been given at any time, and were in fact given
before the date of the decision of the Board of the Judicial Committee of the
Privy Council.
We infer from this that the petitioner regarded the abandonment of the
appeal as a card to be kept up his sleeve until the arrival of what he judged
to be an opportune moment to play it.
[11] The only other matter of significance
which the petitioner seeks to raise is that, as averred by him in adjustments
intimated the day before the present hearing, since about 26 September 2006 he
"has been pursuing, by way of application before the Court of First Instance in
Naples, revocation of the European Arrest Warrant issued on 31 August 2005 by
reason of the deadline in custody having expired conform to Article 303 of the
Code of Criminal Procedure he having been served with same on 26 September 2005
and he having been remanded in HMP Saughton since that date conform to the
Warrant." There is said to have been a
delay in dealing with the application because the Judge of Preliminary
Investigation has required to be provided with documentation to support the
date of service of the Warrant, and that has not yet been done, allegedly
because of delay by the Crown Office in providing it to the petitioner's
Scottish solicitors.
[12] The respondents aver that the Warrant
remains valid because under Italian law the petitioner's detention in Scotland
is attributed in the first instance to the Part 2 request on which he was first
arrested. The Part 2 request was based
on a pre-trial custody order, and on that matter the petitioner is now subject
to a sentence of twelve years' imprisonment.
His period in custody in Scotland
will be applied against that sentence.
Time does not begin to run in respect of the Part 1 request until that
sentence has been completed.
[13] These averments are not contradicted by
the petitioner. Mr Bovey sought from us
a continuation of two weeks to enable the matter to be further investigated in Italy. We refused this motion, because those
representing the petitioner have already had ample time to inform themselves,
and the motion was made far too late.
The present petition
[14] In the prayer of the petition, as
adjusted, and with typographical errors corrected by us, the petitioner asks us
to hold, in the exercise of the nobile officium:
"(a) that
the petitioner's status having changed from being a person accused
in the requesting country to one convicted and
unlawfully at large the application for extradition is no longer valid;
(b) that
in the exercise of its nobile officium
the court sets aside the refusal
of the petitioner's [Part 2] appeal under section
103 of the [2003] Act and substitutes therefor one allowing the appeal in terms
of section104(1)(a) and discharging the petitioner and quashing the order for
his extradition in terms of section104(5);
(c) that
it would be oppressive for the European Arrest Warrant to be
executed in relation to [the] petitioner before determination by the Court
of First Instance in Naples of his application to have that warrant set aside
in light of proof of service [of the warrant]; ... "
Discussion
[15] Mr Bovey submits that the petitioner's
status has changed to that of a person unlawfully at large. This is not so: he remains in lawful custody,
and such change as there has been is that, as a result of his own voluntary
act, done at a time of his choosing, the petitioner no longer has an
outstanding appeal in the Corte di Cassazione in Rome. In so far as this may constitute a change of
status, it is one of no significance.
Nothing said in R (Guisto) v Governor of Brixton Prison [2004] 1 AC 101 or Office of the King's
Prosecutor, Brussels v Armas [2006] 2 AC 1, on which Mr Bovey relies, serves to support the view that it should
nullify the extradition process.
[16] The statutory framework provided by
Parliament in the 2003 Act reflects important considerations: the need for
international cooperation in dealing with serious crime, for mutual respect
between the legal systems of different countries, and for finality in judicial
proceedings. As has been seen, the
petitioner has already availed himself of the existing statutory procedures,
which are now exhausted. It would, in
our opinion, require compelling reasons for us to allow further delay. There is no reason to regard the present
circumstances as unforeseen: on the contrary, all the indications in the 2003
Act are that they are of a kind which Parliament may readily be supposed to have
foreseen. Moreover, in so far as it may
be relevant to consider what the petitioner foresaw, it is obvious that he had
them within his contemplation before either we, or the Board of the Judicial
Committee of the Privy Council, had made our respective decisions. It is disingenuous to ask us to accept that
these circumstances are extraordinary or unforeseen. Mr Bovey was constrained to accept that his
submission was that the nobile officium should be exercised in any
case where there has been a change of circumstances brought about by the
petitioner's own voluntary act. We have
the greatest difficulty in figuring a hypothetical case where this could be so
having regard to the nature of the nobile officium jurisdiction
as discussed above. Certainly, this is
not such a case.
[17] The petitioner has not only failed to make
out a clear prima facie case for the
exercise of the nobile officium, he has succeeded in
satisfying us that there is no conceivable merit in his application. Indeed, we regard it as an abuse of process.
Result
[18] For these reasons, the petition is
dismissed as incompetent.
