APPEAL COURT, HIGH COURT OF JUSTICIARY
|
Lord Osborne
Lord Clarke
Lord Philip
|
[2008] HCJAC 78
Appeal No: XC203/08
OPINION OF THE COURT
delivered by
LORD OSBORNE
in
APPEAL IN TERMS OF SECTION 26 OF THE EXTRADITION ACT
2003
by
MICHAL TRAJER
Appellant;
against
THE LORD ADVOCATE
Respondent;
|
Act: Shead; Mason; Robertson & Ross, Paisley
Alt: Miss R Crawford; Crown
Agent
19
December 2008
The background
circumstances
[1] On 16
May 2002, at
the District Court of Prostejov in the Czech Republic, the appellant was found guilty, in
his presence, of contraventions of Articles 241 and 248 of the penal code of
the Czech Republic, namely rape and embezzlement. The appellant was sentenced to four years and
six months imprisonment. On 1
July 2002 he
lodged a note of appeal. The decision of
the Brno Court of Appeal, issued on
28 January 2003, was to confirm the decision of the District
Court of Prostejov and uphold the appellant's conviction and sentence.
[2] The appellant
had been released on bail in connection with these matters on
26 February 2002, on the condition that he informed
the court of his domicile. However, the
appellant had not been staying at his given domicile, so that the judgment of
the Court of Appeal in Brno was not delivered to him. On 6 March and
23 March 2003
the court sent to the appellant calls for him to enter custody and serve
his sentence of imprisonment. Again on 14
July 2003
the court ordered the appellant to hand himself over in order to serve his
custodial sentence. Thereafter there
were repeated attempts by the authorities in the Czech Republic to trace the appellant. On
19 August 2003 a Republic-wide police search for
the appellant was announced. The last
attempt of the court to contact the appellant was on 4 August
2006. On
16 November 2007, the court was advised by the police
in the Czech Republic that they had received information
from Interpol to the effect that the appellant was residing outwith the Czech Republic.
In the relevant correspondence it is noted that the first information
about the appellant's whereabouts was given by Interpol to the Czech
authorities on 14 November 2007.
On 7 January 2008 a European Arrest Warrant was issued
in respect of the appellant.
[3] Thereafter,
the appellant was arrested in Scotland, where, for a time, he had been
resident. At an initial hearing in Edinburgh Sheriff Court on 29
February 2008,
the solicitor then acting for the appellant confirmed that the appellant had
been arrested under a Part 1 Warrant issued by a Category 1 territory in terms
of the Extradition Act 2003, "the 2003 Act".
He also confirmed that a copy of the warrant had been given to the
appellant in both the Czech and English languages, as soon as practicable after
his arrest; and that the appellant was
the person in respect of whom the warrant had been issued. Having been informed of his right to consent
to extradition, the appellant advised the court that he did not consent to the
extradition and accordingly an extradition hearing was fixed to take place on 17
March 2008.
The appellant was remanded in custody, bail having been
refused.
[4] On the latter
date, the sheriff heard submissions on behalf of the appellant and the Lord
Advocate. He decided that the offences
specified in the Part 1 Warrant were extradition offences, within the meaning
of Section 10(2) of the 2003 Act; that
the extradition of the appellant to the Czech Republic, being a Category 1
territory was not barred by reason of any of the circumstances set out in
Section 11(1)(a) to (j) of the 2003 Act;
that the appellant, who was alleged to be unlawfully at large after
conviction of the extradition offences, had been convicted in his presence, in
terms of Sections 20(1) and (2) of the 2003 Act; that his extradition would be compatible with
Convention rights, within the meaning of the Human Rights Act 1998, in terms of
Section 21(1) of the 2003 Act; and
therefore, in terms of Section 21(3) of the 2003 Act, he ordered the appellant
to be extradited to the Czech Republic, being the
Category 1 territory in which the relevant European Arrest
Warrant had been issued. Against that
decision, the appellant has now appealed to this court.
Grounds of Appeal
[5] On 20 March
2008 there
was lodged on behalf of the appellant a Note of Appeal under Section 26(1) of
the 2003 Act, in which the following grounds of appeal were set out:
"(1) the sheriff erred in law in
refusing the appellant's argument that the sentence was time-barred, given the
statutory limitation of five years and the absence of any evidence as to the
appellant's whereabouts since 28 January 2003; (2) the appellant maintains that
it would be unjust and oppressive, to return him to the Czech Republic for
sentence given (1) supra, and (2)
given the anomalies relative to his conviction and the Czech prison regime."
[6] Thereafter on
19 September 2008, at a procedural hearing in this appeal, there was
tendered on behalf of the appellant a Supplementary Note of Appeal. No decision was then made as to whether that Note
of Appeal would be received.
Consideration of that matter was continued to a further procedural
hearing on 30 September 2008.
On that latter date, the court allowed the appellant's grounds of appeal
to be supplemented, but only to the extent set forth in paragraphs 3(b), (c)
and (d) of the Supplementary Note of Appeal.
The diet of appeal hearing previously assigned for 8 and 9
October 2008
was discharged, a further procedural hearing being arranged to take place on 7
October 2008. On that latter date, the court, having been
informed by counsel for the appellant and counsel for the Lord Advocate that
the estimated duration of the hearing was two days, assigned 22 and 23
October 2008
for the hearing of the appeal.
[7] Paragraph
(3)(b), (c) and (d) of the appellant's Supplementary Note of Appeal is in the
following terms:
"(b) The
sheriff erred in failing to consider whether the appellant's surrender under
the Extradition Act 2003 would have been unjust and oppressive. He was obliged by statute to do so. Had he considered this aspect properly he
would have decided the matter differently.
It would be unjust and oppressive to extradite the appellant. In these circumstances, the appellant has not
had a fair hearing.
(c) In
seeking the appellant's extradition to the Czech Republic the Lord Advocate and the Scottish
Ministers are acting in a way which is contrary to the appellant's fundamental
rights in terms of the European Convention.
In particular, should the appellant be extradited to the Czech Republic he would be subject to inhuman and
degrading treatment. There is also a
high risk that the appellant would be subject to torture (Article 3 ECHR). Additionally, the appellant's extradition to
the Czech Republic would interfere with his right to
privacy and his right to respect for private and family life (Article 8 ECHR). In particular, the Prison system in the Czech Republic does not provide for segregation
between categories of offenders as in Scotland.
It is highly likely that the appellant would have to share a cell with
up to twenty men. Many would not be
classed as sex offenders like the appellant.
Many would be violent. The
appellant would not be protected by the Prison Authorities by way of
segregation or otherwise. The prison
officers may intimidate and ill-treat the appellant. In addition, the appellant would spent (sic) up to 21 hours each day in a prison
cell with less than 3.5 square metres of space and a communal lavatory. There would be little in the way of
facilities by way of education or otherwise.
He would only be able to wash once per week. In addition to the obvious risk of violence
from other prisoners he would be subject to systematic handcuffing and risks
being strapped to a bed. The appellant
in the circumstances is foreseeably at real risk of being seriously ill-treated
should be (sic) extradited to serve
his sentence in the Czech Republic.
In
addition, the appellant's correspondence would be interfered with. He would not be entitled to phone his family
other than with the written permission of the Prison Governor. Should he be allowed to use the phone it
would be for a maximum of five minutes.
In these circumstances, his extradition to the Czech Prison regime would
amount to an interference private and family life (sic), his home and his correspondence.
(d) The
Council Framework Decision of 13 June 2002 provides for convicted persons to
serve sentences in the executing members state where that sentence is currently
being served. The appellant is currently
serving his sentence in HMP Saughton. In
accordance with Council Framework Decision he should be allowed to serve the
remainder of his sentence in the United Kingdom.
Any provision preventing him from doing so is unlawful, being contrary
to Articles 3 and 8 of the European Convention and disproportionate to his
rights under those Articles."
[8] At the outset
of the hearing before us on 22 October 2008, counsel for the appellant moved the
court to grant an adjournment of the appeal hearing as a whole. He outlined the background to the appeal,
which we have already described. The
Lord Advocate had been asked to indicate in which penal establishment the
appellant would be detained, in the event of his extradition to the Czech Republic.
The answer to that question had been received by counsel within the last
few days. The appellant had certain
apprehensions regarding his likely treatment in the institution concerned. This aspect of the matter was particularly
relevant to ground of appeal 3(c).
Counsel said that he was not able to put specific material before the
court concerning the prison that might be involved in the reception of the
appellant, following any extradition. It
was for that reason that he sought an adjournment. The purpose of the adjournment would be to
enable an expert in prison conditions to be instructed and for him to make
investigations.
[9] Counsel for
the Lord Advocate opposed the appellant's motion for reasons related to the
chronology of these particular proceedings and the powers of the court of
appeal. She indicated that she would
draw certain authorities to the attention of the court. The first of these was Jaso &c v Central Criminal Court No 2, Madrid [2007] EWHC 2983 (Admin).
Paragraphs 32, 37 and 38 in the judgement of Dyson, L.J. were
particularly important. In that case it
was made clear that, in considering an application for extradition, great
weight had to be given to the fact that the state seeking extradition was a
western democracy, subject to the rule of law, and a signatory of the European
Convention on Human Rights. Before this
court could hold that the appellant's extradition would be incompatible with
his human rights, there would require to be very clear evidence that such
violation was likely, in the event of extradition. In the circumstances of the present case,
there was no such evidence. In Mamatkulov and Askarov v Turkey E.C.H.R. 2005-1, similar views were
expressed by the Grand Chamber of the court.
The test was whether there was a real risk of a person who might be
extradited being subject to treatment contrary to Article 3 of the
Convention. The counsel pointed out
that, in the present case, there were no adverse reports relating to the penal institution
in the Czech Republic which might be involved in the
detention of the appellant. Having
regard to the provisions of section 27(1) and (4) of the 2003 Act, which
referred to evidence being available at an appeal hearing, any material upon
which the appellant sought to rely should have been made available to this
court for the purposes of this hearing.
In Miklis v The Deputy Prosecutor General of Lithuania [2006] EWHC 1032 (Admin), Latham, L.J., made certain observations concerning the operation of
those parts of the legislation and the standard which had to be met if a person
who was the subject of an extradition application was successfully to resist it
upon the ground of an apprehended breach of convention rights. It was made clear that material which merely
raised a speculative, as opposed to a real risk, was insufficient. Finally, counsel relied upon Pilecki v The Circuit Court of Legnica,
Poland [2007] EWHC 2008 (Admin). In that case, in paragraphs 21 and 25
Burnton, J., made it clear that issues of controversy in relation to
extradition proceedings ought to be raised in the ordinary course before the
judge of first instance, unless there was very good reason indeed why that
could not be done.
[10] Reverting to
the circumstances of the present case counsel pointed out that the extradition
order appealed against had been granted as long ago as 17
March 2008. The appeal had been set down for hearing on 29
August 2008. However, fresh solicitors and counsel had
been instructed the day before that hearing.
The grounds of appeal then tabled were skeletal. The original diet for the hearing had been
discharged and a further diet fixed for 8 and 9 October
2008. Only as late as the procedural hearing on 19
September 2008 was the additional note of appeal submitted. The court's interlocutor made clear that, if
fresh material were to be relied upon, it was to be lodged by 30
September 2008. That had not been done. This shortcoming on the part of the appellant
was particularly serious having regard to the timetable contemplated for
proceedings of this kind. That timetable
was established in Chapter 34 of the Act and Journal (Criminal Procedures
Rules) 1996.
Paragraph 34.4(5) provided for a 40 day period within which
the court was to begin to hear an appeal of the present nature. Plainly that had not been achieved, largely
in consequence of the unpreparedness of the appellant. In all the circumstances the motion for
adjournment should be refused.
[11] In the light
of the foregoing submissions, we decided to refuse the appellant's motion for
the adjournment of the hearing. That
adjournment was sought with a view to the appellant having an opportunity to
obtain material to support the allegations made in ground of appeal 3(c). It became clear to us, in the course of the
discussion of the motion, that, at the time of the hearing, the appellant was
not in a position to indicate what material, if any, might become available to
support his allegations. Furthermore,
there was no indication as to if or when such material might become available,
or from what source. If there were
genuine concerns about the possible treatment of the appellant in the event of
his being extradited, no explanation was given to us that indicated why those
matters had not been pursued at a much earlier stage in these proceedings. In this situation, we concluded that it would
be wholly inappropriate to grant the adjournment sought. Accordingly we refused the appellant's
motion. Thereafter, counsel for the
appellant indicated that he would proceed to make such submissions as he could
in relation to the appellant's grounds of appeal.
Submissions of the
appellant
[12] Counsel for
the appellant observed that a matter debated before the sheriff at the hearing
on 17 March 2008 was the issue of whether, according to Czech law, the
proceedings were barred by reason of the passage of time. There had been an application in the Czech Republic to have it declared that the
appellant's sentence was "time-barred".
That had not been determined, which was unfortunate. However, counsel said that he could not
attack what the sheriff had said in paragraph 7 of his judgment. There the sheriff had observed that it was
clear to him that the presiding judge in the court of the Czech Republic seized of the matter had already
given consideration to the question of the possible statutory invalidity of the
judgment of
20 January 2003 and had concluded that the relevant
period had not ended and that the judgment was not out-of-date, but was still
valid. Thus, if any remedy was available
in relation to this aspect of the case, it was one available in the Czech Republic.
[13] However, the
passage of time remained important because of the provisions of Sections
11(1)(c) and 14(b) of the 2003 Act.
Extradition might be barred by reason of the passage of time. In particular, in the case of post-conviction
extradition proceedings, under the latter enactment, extradition might be
barred if it were concluded that it would be "unjust or oppressive to extradite
him by reason of the passage of time since he is alleged to have - (b) become
unlawfully at large. Those statutory
provisions were considered in Campbell v Her Majesty's
Advocate 2008 SCCR284. The observations of Lord Nimmo Smith in
paragraphs
42 to 44 and of Lord Clarke in paragraphs 48 and 49 of that
decision were of assistance here.
[14] The relevant
circumstances were that the offences of which the appellant had been convicted
had been committed in January 2001. He
had been arrested and detained in custody until 26 February
2002, after
which he had been at liberty. The final
verdict in the case was given on 28 January 2003.
The sentence imposed in the Czech Republic was one of four years and six months
imprisonment. Time served in that state
would count towards the serving of the sentence. There would be automatic release after the
serving of one half of the sentence imposed.
Accordingly there were approximately six months left to serve. There was no consensus regarding the
circumstances following the issue of the final verdict on 28
January 2003. In this connection counsel referred to the
appellant's affidavit, dated 30
September 2008, in particular paragraph 7, in which he stated that he had not left the Czech Republic between 2003 and 2006. He had not received communications from the
Czech Authorities calling him into custody.
It was accepted that the Czech Government had made efforts to find him
in 2003, but it was not clear what steps had been taken between that year and
2006. The appellant had travelled
between the Czech Republic and the United Kingdom on account of work commitments,
travelling back and forth by conventional means by way of border controls. In particular, in 2005 the appellant had
spent two weeks holiday in the United Kingdom, when he had discussed with friends
the possibility of living and working here.
He had obtained employment in the United Kingdom in 2006 as a driver. Subsequently he had purchased a property by
means of a mortgage. He had formed a
relationship with a Scottish Slovak partner and lived with her in
Uddingston. The house occupied by them
had been purchased in
January 2008. The
relationship had commenced in August 2007.
Counsel accepted that these matters had not been gone into before the
sheriff. The focus of the argument
before him had been very narrow.
[15] Under Section
27(4) of the 2003 Act, it was contemplated that an issue might be raised in
appeal proceedings that was not raised at the time of the extradition hearing,
subject to the conditions there set forth.
There was no statutory provision that
required that there should be a reasonable explanation for the raising of such
an issue at that time.
[16] There followed
discussion as to when, if at all, the appellant had become "unlawfully at
large", in terms of Section 14(b) of the 2003 Act. In paragraph 8 of his affidavit, the
appellant claimed that he had not been unlawfully at large in Scotland since the imposition of his sentence
in the Czech Republic.
For practical purposes, it was appropriate to assume that the relevant
period had commenced on 14 July 2003 when an order had been issued that
the appellant should serve his custodial sentence.
[17] In the present
context it was necessary for the court to look at the portion of the sentence
remaining to be served and, in particular, the disruption which would affect
the appellant, were he to be extradited.
The public interest also had a part to play. It was submitted that it would be both unjust
and oppressive for the appellant to be extradited in the existing
circumstances.
[18] Counsel went
on to request the court to look at the contents of the appellant's affidavit,
in so far as they described the prison conditions in the Czech Republic.
It was acknowledged that there might be an issue as to the relevance of
that matter. One of the problems
perceived by the appellant was that, in the Czech Republic, he would not be segregated along
with other sexual offenders, whereas in Scotland that would occur. Allied to that matter there was an issue of
the appellant's rights under Article 8 of the European Convention. Plainly, were he to be extradited, his family
life would be disrupted.
[19] Finally,
counsel said that very recently a matter had been drawn to his attention as to
whether a European Arrest Warrant constituted an appropriate vehicle in the
case of the appellant, having regard to the date of the commission of his
offences. Counsel wished the right to
address the court on that matter again.
He did not propose to address the court on supplementary ground of
appeal 3(c). Nor could he support ground
3(d), having regard to the decision in Goatley
v Her Majesty's Advocate 2006 S.C.C.R.463.
Submissions of the
respondent.
[20] Counsel for the respondent moved the
court to refuse the appeal. She said
that she wished to face the issue of whether the appellant had been "unlawfully
at large" and, if so, for what period of time.
In Campbell v Her Majesty's Advocate the clock had started ticking when the
conviction became final. Counsel
referred to the Council Framework Decision of 13 June 2002 on the European Arrest Warrant and
the Surrender Procedures between member states.
Paragraph 5 of the preamble was pertinent, as well as Article 1
thereof. She also drew our attention to Office of the Kings Prosecutor, Brussels v Candoarmas [2006] 2A.C.1 that had given rise to the enactment of
Section 68A of the 2003 Act by amendment, which dealt with the expression
"unlawfully at large". However, that had
no application to the terms of section 14 of the 2003 Act. The position which was now advanced, which
was agreed, was that the appellant had been "unlawfully at large" since 14
July 2003
when an order to commence the serving of the custodial sentence was made, until
the appellant was arrested in Scotland, since when he had been lawfully in
custody.
[21] The issue of
the effect, if any, of the "passage of time" had not been raised before the
sheriff at the extradition hearing, as it had been here. In this connection counsel drew our attention
to Pilecki v The Circuit Court of Leginca, Poland [2007] EWHC 2008 (Admin),
particularly paragraphs 21 and 25 of the judgement. The importance of raising issues at first
instance was there emphasised.
[22] In connection
with the issue of "the passage of time", counsel submitted that the period of
seven months between the date of the sheriff's decision and the present hearing
should be ignored. If some part of the
time that had passed had to be seen as the responsibility of the appellant, that
period could not be the basis for a contention of oppression. As regards the significance of the length of
the remainder of the sentence that had to be served, it was pointed out that,
when the appellant was arrested, there were more than twelve months of the
sentence left to serve. While it was
acknowledged that the length of the sentence remaining to be served could be
relevant to the issue of oppression in terms of Section 14 of the 2003 Act, it
was submitted that it would be of real significance only in an extreme case,
where a very small portion of the original sentence remained to be served.
[23] As regards the
matter of the effect of extradition upon the appellant's circumstances and the
extent that those circumstances had altered in recent times, it was submitted
that the events between 2003 and 2006 were not significant. While there had been some certain changes in
the appellant's circumstances following his forming a relationship with his
partner in August 2007, particularly the acquisition of a house in Scotland in January 2008, it was submitted
that these matters were not of sufficient significance as to amount to
oppression in the event of extradition being sustained.
[24] It was
appropriate for the court to take into account the contents of certain
productions lodged by the respondent.
The first of these was the communication to the respondent from Eurojust,
an organisation established to facilitate the European Arrest Warrant
system. It confirmed that the length of
time spent by appellant in custody would be taken into account in the serving
of his sentence, whether in the Czech Republic or the United Kingdom.
Reference was also made to production 2, which gave details of the
chronology of the matter. Reference was
also made to productions 3 and 4. The
factual background revealed in these productions should, along with all other
relevant matters, be taken into account in connection with the appellant's plea
of oppression. The fact was that the
appellant had chosen to leave the Czech Republic knowing that he had been convicted
for the offences concerned and sentenced for them.
[25] Returning
finally to consider the criterion to be applied in relation to Article 8 of the
European Convention, counsel drew our attention to Jaso &c v Central Criminal Court No.2 Madrid [2007] EWHC 2983(Admin), particularly
paragraphs 56 and 57.
Response of the
appellant
[26] Counsel for
the appellant, in reply, made certain points.
As regards the timing of the arrest warrant in relation to the
appellant's purchase of heritable property, the appellant had completed
missives in December 2007 and took entry of the property in late January
2008. The European Arrest Warrant was
not executed until 29 February 2008.
As regards other matters, it had to be noted that the Czech Republic had not brought into force domestic
legislation to implement the Framework Document.
The decision
[27] As matters have developed before us,
only certain parts of the grounds of appeal tabled by the appellant require to
be considered. In the original Note of Appeal,
in paragraph 3(1) the issue of the time-bar of the appellant's sentence is
raised. In the course of argument before
us, counsel for the appellant made clear that he was not in a position to
attack the conclusion of the sheriff in paragraph 7 of his judgment. Accordingly, that matter does not require to
be considered further. As regards
paragraphs 3(2) of the original Note of Appeal and 3(b) of the Supplementary Note
of Appeal, the issue is raised as to whether it would be unjust or oppressive
for the appellant to be extradited to the Czech Republic.
That is a matter that was argued before us and requires to be the
subject of decision. In view of our
decision to decline the adjournment sought by the appellant, counsel for the
appellant did not seek to support ground 3(c) in the Supplementary Note of Appeal,
which therefore does not require to be further considered. Furthermore, counsel indicated that he did
not seek to support ground 3(d) in that document, which is therefore in a
similar position. For the reason that
the appellant's reliance on Article 3 of the European Convention of Human
Rights was related to the subject matter of ground of appeal 3(c) of the Supplementary
Note of Appeal, that does not require to be considered further.
[28] Turning then
to deal with the issues arising in connection with the appellant's reliance
upon the provisions of Sections 11 and 14 of the 2003 Act, as we have narrated,
counsel for the appellant invited us to allow the appeal upon the basis that it
would be both unjust and oppressive to allow the extradition of the appellant
to the Czech Republic, having regard to the whole circumstances, in particular
the extent of which the appellant had become settled in Scotland and having regard
also to the proportion of his sentence which remained to be served. Counsel for the respondent argued that, since
the matters now founded upon had not been put before the sheriff, they should
not now be entertained as a basis for consideration of the appellant's
plea. In that connection she relied upon
certain passages in Pilecki v The Circuit Court of Legnica, Poland,
particularly paragraphs 21 and 25. In
paragraph 21, Burnton J. expressed the view that "in extradition cases, as in
other cases, it is important for the parties to identify to the court, and
indeed to each other, the live issues which have to be determined by the
court." That observation was made in the
context of a matter being raised before him which had not been raised before
the District Judge. So far as it goes,
we take no issue with his observation.
In paragraph 25 he went on to say that issues such as that which had
been made the subject of his consideration "must be indicated and taken at
first instance unless there is very good reason indeed why they should not
be." Having regard to the provisions of
section 27 of the 2003 Act, we are unable to agree with this latter
observation. Section 27 deals with the
powers of the court on an appeal under section 26. Section 27(2) provides that the court may
allow the appeal only if the conditions in sub-section (3) or the conditions in
sub-section (4) are satisfied.
Sub-section (4) provides:
"the conditions are that - (a) an
issue is raised that is not raised at the extradition hearing or evidence is
available that was not available at the extradition hearing; (b) the issue or
evidence would have resulted in the appropriate judge deciding the question
before him at the extradition hearing differently; (c) if he had decided the
question in that way, he would have been required to order the person's
discharge."
[29] It appears to
us that that particular sub-section plainly contemplates that, in an appeal
under Section 26 of the 2003 Act, matters may be raised that were not raised at
the original extradition hearing and evidence may be put before the court that was
not available at that hearing. The
sub-section contains no language which would constrain the court into
consideration of such material only if there was some reasonable, or even
exceptional, explanation for the state of affairs concerned. In these circumstances, while it is plainly
desirable that all issues which the subject of a European Arrest Warrant wishes
to raise should be raised at the extradition hearing, that may not always be
possible. The court dealing with an
appeal from a decision following such a hearing is unconstrained as to the
matters which it may consider, in our opinion.
Thus, we see no obstacle to our consideration of the matter that was put
before us in the course of the appeal which was not put before the
sheriff.
[30] The context of
this part of the case is of course section 11 of the 2003 Act which provides
that, in a situation such as that involved here a person's extradition may be
"barred by reason of - ...... (c) the passage of time". Section 14 of the
2003 Act elaborates the basis upon which extradition might be
barred. It provides:
"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 - ..... (b) become unlawfully at large (where
he is alleged to have been convicted of it).
[31] While there
was some discussion before us as to the time at which the appellant became
"unlawfully at large", for the purposes of our consideration, we are prepared
to proceed upon the basis that that occurred on 14 July 2003, when an order was
issued in the Czech Republic for the appellant to serve his custodial
sentence. He was unlawfully at large
thereafter, upon this basis, until arrested under the European Arrest Warrant
issued on 7 January 2008.
[32] The focus of
this part of the appellant's appeal was the change in circumstances of the
appellant during the period of time when he was unlawfully at large. Particular reliance was placed upon his
living and working in the United Kingdom, his formation of the relationship
with his present partner, which commenced in August 2007 and his acquisition of
a dwelling house occupied by himself and his present partner, to which entry
was taken in late January 2008.
Reference was also made to the fact that the appellant had obtained
employment in Scotland.
Another aspect of the situation upon which counsel for the appellant
founded was the period of the sentence in question which remained to be served,
which was said to be approximately six months.
[33] Having taken
into account these various matters, our conclusion is that it cannot be said to
be unjust or oppressive, by reason of the passage of the relevant period of
time, to extradite the appellant. While,
in relatively recent times, the appellant has formed a relationship with his
partner in Scotland and has acquired heritable property in Scotland, in which
to live, we do not consider that those matters are of sufficient significance
as to be capable of giving rise to a conclusion of oppression, either
themselves, or in association with the other matters which should be
considered. As regards the length of the
sentence remaining to be served, it appears to us to be a significant
period. While in an extreme case, where,
for example, only a few days remained to be served of a custodial sentence,
extradition might, on that account, be seen as oppressive, we are unable to
characterise the situation in that way having regard to the period of time
remaining to be served here.
[34] The appellant also
relied on the provisions of Article 8 of the European Convention on Human
Rights, the contention being that extradition would disrupt and damage the
appellant's family life. In that
connection we consider that what was said in Jaso &c v Central Criminal Court No. 2, Madrid, particularly in paragraph 57, is applicable in this
connection. There, Dyson L.J., in
considering Article 8 in connection with an issue of extradition said:
"What is required is that the court
should decide whether the interference with a person's right to respect for his
private or (as the case may be) family life which would result from his or her
extradition is proportionate to the legitimate aim of honouring extradition
treaties with other states. It is clear
that weight should be accorded to the legitimate aim of honouring extradition
treaties made with other states. Thus,
although it is wrong to apply an exceptionality test, in an extradition case
there will have to be striking and unusual facts to lead to the conclusion that
it is disproportionate to interfere with an extraditee's Article 8 rights."
We are unable to say that there are any "striking and unusual
facts" in being in this case which would lead to that conclusion. Any extradition is bound to involve some
level of disruption to the subject's family life. We can discern nothing in the circumstances
of the present case which would render extradition a disproportionate
interference with the appellant's right to respect for his family life.
[35] At one point
in the course of his submissions, counsel for the appellant invited us to
consider the contents of the appellant's affidavit on the subject of prison
conditions in the Czech Republic.
Having had the opportunity to consider the terms of that affidavit, we
do not consider that what is said there would itself displace the presumption which
we see as arising from the membership of the Czech Republic of the European
Union and its participation in the European Arrest Warrant system to the effect
that prison conditions there are compatible with the provisions of the European
Convention on Human Rights. Were it to
emerge at some later stage that there were legitimate concerns about the conditions
in which the appellant was incarcerated in the Czech Republic, following his
extradition, and their compatibility with the provisions of the Convention,
that is a matter which could be raised in the Czech Republic itself.
[36] In all these
circumstances we shall refuse this appeal.
