APPEAL COURT, HIGH
COURT OF JUSTICIARY
Lord Nimmo Smith Lord Kingarth Lady Smith |
[2009] HCJAC 3
Appeal No.
xc794.07
OPINION OF THE COURT
delivered by LORD NIMMO
SMITH in NOTE OF APPEAL under section 26(1) of the Extradition Act 2003 by DOROTHY MAY FASOLA Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______ |
Act:
Alt:
The relevant statutory
provisions
[2] Part 1 of the 2003 Act
was enacted in discharge of the United Kingdom's duty to transpose into
national law the obligations imposed on it by the European Council Framework
Decision of 13 June 2002 on the European arrest warrant and the surrender
procedures imposed on it by the Member States (2002/584/JHA; OJ 2002 L190, p1)
("the Framework Decision"). As Lord Bingham
of Cornhill said in Dabas v High Court of Justice in Madrid, Spain [2007] UKHL 6, [2007] 2 AC 31, at paragraph 4, Part 1 of the 2003 Act
must be read in the context of the Framework Decision. Lord Bingham
continued:
"This was conceived and adopted as a
ground-breaking measure intended to simplify and expedite procedures for the
surrender, between member states, of those accused of crimes committed in other
member states or required to be sentenced or serve sentences for such crimes
following conviction in other member states. Extradition procedures in the past had been
disfigured by undue technicality and gross delay. There is to be substituted 'a system of
surrender between judicial authorities' and "a system of free movement of
judicial decisions in criminal matters" (recital (5) of the preamble to
the Framework Decision). This is to
implement the principle of mutual recognition which the Council has described
as the cornerstone of judicial co-operation (recital (6)). The important
underlying assumption of the Framework Decision is that member states, sharing
common values and recognising common rights, can and should trust the integrity
and fairness of each other's judicial institutions.
5. By
article 34(2)(b) of the treaty on European Union, reflecting the law on
directives in article 249 of the EC Treaty, framework decisions are
binding on member states as to the result to be achieved but leave to national
authorities the choice of form and methods. In its choice of form and methods a national
authority may not seek to frustrate or impede achievement of the purpose of the
decision, for that would impede the general duty of co-operation binding in
member states under article 10 of the EC Treaty. Thus while a national court may not interpret
a national law contra legem, it must 'do so as far as possible in the light of
the wording and purpose of the Framework Decision in order to attain the result
which it pursues and thus comply with Article 34(2)(b) EU' (Criminal proceedings against Pupino (Case C-105/03) [2006] QB 83, paras 43, 47)."
There are statements to similar effect in Office of the King's Prosecutor,
[4] By section 1
of the 2003 Act, Part 1 deals with extradition from the
[5] Section 2
makes provision for a Part 1 warrant and certificate. As originally enacted, it was in inter alia these terms:
"(1) This
section applies if the designated authority receives a Part 1 warrant in
respect of a person.
(2) A
Part 1 warrant is an arrest warrant which is issued by a judicial
authority of a category 1 territory and which contains -
...
(b) the
statement referred to in subsection (5) and the information referred to in
subsection (6).
...
(5) The
statement is one that -
(a) the
person in respect of whom the Part 1 warrant is issued is alleged to be
unlawfully at large after conviction of an offence specified in the warrant by
a court in the category 1 territory, and
(b) the
Part 1 warrant is issued with a view to his arrest and extradition to the category 1
territory for the purpose of being sentenced for the offence or of serving a
sentence of imprisonment or another form of detention imposed in respect of the
offence.
(6) The
information is -
(a) particulars
of the person's identity;
(b) particulars
of the conviction;
(c) particulars
of any other warrant issued in the category 1 territory for the person's
arrest in respect of the offence;
(d) particulars
of the sentence which may be imposed under the law of the category 1
territory in respect of the offence, if the person has not been sentenced for
the offence;
(e) particulars
of the sentence which has been imposed under the law of the category 1
territory in respect of the offence, if the person has been sentenced for the
offence.
(7) The
designated authority may issue a certificate under this section if it believes
that the authority which issued the Part 1 warrant has the function of
issuing arrest warrants in the category 1 territory.
(8) A
certificate under this section must certify that the authority which issued the
Part 1 warrant has the function of issuing arrest warrants in the category 1
territory.
(9) The
designated authority is the authority designated for the purposes of this Part
by order made by the Secretary of State.
(10) An order made under subsection (9) may -
(a) designate more than one authority;
(b) designate different authorities for different parts of the United
Kingdom."
By the Extradition Act 2003 (Part 1 Designated
Authorities) Order 2003 (S.I. 2003, No. 3109) the Crown Agent of
the Crown Office was designated for the purposes of Part 1 of the
Act.
[6] The
2003 Act was amended by the provisions of section 42 of and Part 1
of Schedule 13 to the Police and Justice Act 2006 ("the 2006 Act"). These
amendments were brought into force with effect from 15 January 2007 by
the Police and Justice Act 2006 (Commencement No. 1, Transitional and
Saving Provisions) Order 2006 (S.I. 2006 No. 3364). By paragraph 1(1) of the
Schedule, section 2(5)(a) of the 2003 Act was amended by deleting the
words "is alleged to be unlawfully at large after conviction" and substituting
therefor the words "has been convicted", so that it now reads:
"(a) the
person in respect of whom the Part 1 warrant is issued has been convicted
of an offence specified in the warrant by a court in the category 1
territory ..."
[7] Section 3
makes provision for arrest under a certified Part 1 warrant. By section 4(3) a person arrested under
a Part 1 warrant must be brought as soon as practicable before the
appropriate judge, who by section 67(1)(b) is in Scotland the Sheriff of
Lothian and Borders. By section 191(1)
the Lord Advocate must, inter alia,
conduct any extradition proceedings in
[8] Further
provision about the passage of time is made by section 14, which, as
originally enacted, provided:
"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)."
This provision was amended by paragraph 2(1) of Schedule 13
to the 2006 Act, so that it now 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 -
(a) committed the extradition offence (where he is accused of its
commission), or
(b) become unlawfully at large (where he is alleged to have been
convicted of it)."
[9] Further provision about
the meaning of the expression "unlawfully at large" is made by paragraph 2(2)
of Schedule 13 to the 2006 Act, which added a new section 68A to
the 2003 Act, in these terms:
"(1) A person is alleged to be unlawfully at
large after conviction of an offence if -
(a) he
is alleged to have been convicted of it, and
(b) his
extradition is sought for the purpose of his being sentenced for the offence or
of his serving a sentence of imprisonment or another form of detention imposed
in respect of the offence.
(2) This
section applies for the purposes of this Part, other than sections 14 and 63."
[10] Section 11(3)
provides that if the judge decides any of the questions in sub-section (1)
in the affirmative he must order the person's discharge. By section 11(4), if he decides the
questions in subsection (1) in the negative and the person is alleged to
be unlawfully at large after conviction of the extradition offence, the sheriff
must proceed under section 20, which contains various questions, of which
the following are relevant:
"(1) If the judge is required to proceed under
this section (by virtue of section 11) he must decide whether the person
was convicted in his presence. ...
(3) If the judge decides [the question in
subsection (1)] in the negative, he must decide whether the person
deliberately absented himself from his trial.
(4) If the judge decides the question in subsection (3)
in the affirmative he must proceed under section 21."
Section 20(5) provides that if the sheriff decides the
question in subsection (3) in the negative he must decide whether the
person would be entitled to a retrial or (on appeal) to a review amounting to a
retrial, and by subsection (7) if he decides that question in the negative
he must order the person's discharge.
[11] By section 21(1),
if the sheriff is required to proceed under that section (by virtue of section 11
or 20) he must decide whether the person's extradition would be compatible
within the Convention rights within the meaning of the Human Rights Act 1998.
By subsection (2), if the sheriff
decides the question in subsection (1) in the negative, he must order the
person's discharge, but, by subsection (3), if he decides that question in
the affirmative he must order the person to be extradited to the category 1
territory in which the warrant was issued.
[12] Subsections (1)
and (3) of section 26 of the 2003 Act provide that if the
sheriff orders a person's extradition under Part 1, the person may appeal
to this Court against the order, and that an appeal under section 26 may
be brought on a question of law or fact.
Section 27(1) enables this Court, on an appeal under section 26,
either to allow the appeal or to dismiss the appeal. Section 27 continues:
"(2) The court may allow the appeal only if the
conditions in subsection (3) or the conditions in subsection (4) are
satisfied.
(3) The
conditions are that -
(a) the [sheriff] ought to have decided a
question before him at the extradition hearing differently;
(b) if he had decided the question in the
way he ought to have done, he would have been required to order the person's
discharge.
(4) The conditions are that -
(a) an issue is raised that was 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 [sheriff] deciding a 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.
(5) If the court allows the appeal it
must -
(a) order the person's discharge;
(b) quash the order for his extradition."
The European Arrest
Warrants
Warrant 1
[13] Warrant 1
disclosed that the appellant was convicted by the Court of Milan on
Warrant 3
[14] Warrant 3 disclosed that the
appellant was convicted by the Court of Milan on
The proceedings before
the sheriff
[15] Warrant 1 was issued on
[16] The sheriff
proceeded to issue his decision on
[17] Two devolution
minutes (Nos. 3 and 4) were lodged on the appellant's behalf, in
which it was maintained that, because Warrants 1 and 3 had not been
issued by a judicial authority, they were not valid EAWs; and as a consequence,
in conducting the proceedings on that basis, the Lord Advocate had acted
and was continuing to act in a manner which was incompatible with Community law
and therefore ultra vires in terms of
section 57(2) of the Scotland Act 1998. Having considered the parties' submissions,
the sheriff upheld the validity of Warrants 1 and 3 and refused to
sustain devolution minutes Nos. 3 and 4.
[18] Having
answered the question in section 11(1) of the 2003 Act in the
negative, the sheriff then applied section 11(4), which required him to
proceed under section 20, since the appellant was alleged to be unlawfully
at large after conviction of each of the extradition offences. Having considered the parties' submissions on
section 20, the sheriff held that the appellant had not been convicted in
her presence. He was also fully satisfied
that the warrants and the whole material before him showed that the appellant
had deliberately absented herself from the trials which led to Warrants 1
and 3. He took as his starting
point that it was clear from these warrants and from the supporting documents
which had been received in evidence that the appellant had not been present and
that the judgments were rendered in
absentia, and accordingly answered the question in section 20(1) in
the negative, which was why he had to proceed to decide under section 20(3)
whether the appellant deliberately absented herself from her trials. At paragraph 91 of his judgment the
sheriff stated:
"It is also clear from the same
sources of information that, in respect of the court proceedings in connection
with warrants Nos. 1 and 3, not only did each of these cases go
through the process of judgment of first instance, judgment of second instance
and final judgment or judgment of last instance (before the Court of
Cassation), but also that [the appellant] was, at each of these processes, legally represented by a lawyer of
choice on all but one occasion, when she was represented by the court-appointed
lawyer. I consider that to be of
particular importance. Against that
significant background, and keeping in mind that extradition requests and
processes are to be approached in the light of mutual respect and recognition
of the laws and procedures of foreign states, I consider it to be an inevitable
and irresistible conclusion that there were no defects in the summoning of [the
appellant] or otherwise informing her of the date and place of the hearing
which led to the decision rendered in
absentia, that she was aware of the dates in question, but chose to absent
herself." (Emphasis in original)
He therefore answered in the affirmative the question raised
in section 20(3) of the 2003 Act and, having applied section 20(4),
he then proceeded under section 21.
[19] The sheriff
then heard submissions in terms of section 21(1) of the 2003 Act on
the question whether the appellant's extradition would be compatible with her
Convention rights within the meaning of the Human Rights Act 1998. At the same time, he heard submissions in
respect of two further devolution minutes (Nos. 1 and 2) which had
been lodged on the appellant's behalf.
In these minutes, it was maintained that, since the 2003 Act did
not transpose into U.K. national law the ground for refusal to execute a Part 1
warrant on the basis contained in Article 4(6) of the Framework decision
(i.e. where the requested person is staying in, or is a national or a resident
of the executing Member State, and that State undertakes to execute the
sentence or detention order in accordance with its domestic law), that failure
was incompatible with her Convention rights in terms of Article 8 of the
European Convention on Human Rights.
Having considered the parties' submissions, the sheriff was satisfied
that there was no disproportionate interference with the appellant's Convention
rights within the meaning of the Human Rights Act 1998 and, specifically,
that there was no disproportionate interference with her Article 8 rights. He accordingly refused to sustain devolution
minutes Nos. 1 and 2 and answered in the affirmative the question
raised in section 21(1) of the 2003 Act.
[20] Therefore, in
the light of that affirmative answer, in terms of section 21(3) of the 2003 Act
the sheriff ordered the appellant to be extradited to
The scope of the appeal
to this court
[21] The appeal was originally heard
in this court by the Lord Justice Clerk (Lord Gill), Lord Johnston
and Lord Nimmo Smith on
[22] After hearing
submissions, the court made avizandum.
The sudden death of Lord Johnston soon afterwards led to the
decision that the appeal should be re-heard.
The appellant instructed different counsel. There were a series of procedural hearings,
and an attempt at a full hearing, at which the appellant was principally
represented by Mr Targowski, QC. Mr Targowski
informed the court at an early stage that, of all the grounds of appeal, he
proposed only to address the court on the ground relating to the passage of
time; and that he would not be advancing argument in support of any of the
devolution minutes. There was therefore
no longer any challenge to the validity of the EAWs or to the sheriff's finding
that the appellant had deliberately absented herself from the trials. These hearings were however bedevilled by the
introduction of fresh documents, and the need for investigations arising from
them. These are discussed more fully
below. It was only on
The passage of time
The authorities
[23] As we have said, the only
remaining issue for our consideration is whether, in terms of
sections 11(1)(c) and 14 of the 2003 Act (as amended), the
sheriff correctly concluded that it would not be unjust or oppressive to
extradite the appellant by reason of the passage of time since she is alleged
to have become unlawfully at large. The
relevant authorities on this issue were reviewed in
"'Unjust' I regard as directed
primarily to the risk of prejudice to the accused and 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."
At page 785 Lord Diplock also said:
"Regard must be had to all the
circumstances. Those circumstances are
not restricted to circumstances from which the passage of time resulted. They include circumstances taking place
during the passage of time which may (as I think here) give to the particular
passage of time a quality or significance leading to a conclusion that return
would be unjust or oppressive."
Reference was also made to the case of
"We have to consider all the
circumstances of the case as I have outlined them. They include the circumstance that this is
not merely an instance of a man who refuses to return to a country where he is
to face trial. This applicant had
already been tried and sentenced. In
effect he had escaped from custody. He
knew perfectly well that he had a substantial time yet to serve. It seems to me that that dimension of the
case weighs heavily against the applicant."
[24] In
"[I]n applying the concept of
oppression when the extradition of the appellant is sought so that he may serve
his sentence, what has to be considered is whether this would cause hardship to
him as a result of changes in his circumstances that have occurred during [the
relevant period]".
Lord Clarke said, at paragraph [48]:
"[T]he focus is not principally on
the length of time that has passed and the reasons for it, but rather on the
demonstrable effect that any such passage of time has had on the individual in
question."
The materials before this Court
[25] At the hearing before us, reference was
principally made to a chronology prepared on behalf of the respondent,
affidavits of the appellant and of her solicitor, Gail Goodfellow, and an
outline argument. There were several
supporting documents, in particular those referred to under the second
sub-heading below. We discuss these
documents, and counsel's submissions, under three sub-headings.
(1) The
proceedings against the appellant
[26] As noted above, the appellant was
convicted by the Court of Milan on 4 February 1988 for the offence of
organised or armed robbery and was sentenced to imprisonment for four years and
two months ("the 1998 conviction").
At that time she lived at an address in Fino Mornasco,
[27] As also noted
above, on
[28] In her
affidavit the appellant asserts repeatedly that she was not aware of
the 1998 and 2001 convictions, that lawyers were acting without her
instructions, and so on and so forth. We
are unable to accept these assertions.
This is for the simple reason that the sheriff decided, under section 20(3)
of the 2003 Act, that the appellant deliberately absented herself from her
trials. We have quoted a passage from paragraph 91
of his judgment at paragraph 18 above.
The sheriff held that the appellant was, at each of the processes
relating to each conviction, legally represented by a lawyer of choice on all
but one occasion (
[29] Meanwhile,
steps were taken by the Italian authorities to trace the appellant. On
[30] In her
affidavit the appellant claims that, because her co-accused was also appealing
against the 1998 conviction, "the whole case would be re-opened", and she
did not think she would have to serve the sentence. She was therefore surprised when she was
served with Warrant 1. She was also
surprised when she was served with Warrant 3, "because I did not think
that this was an extraditable offence".
None of the information before us (including the appellant's claim that
she relied on certain legal advice) provides justification for such wishful
thinking. On the contrary, by her
participation, through a lawyer of her choice, in the various appellate
proceedings, the appellant must have appreciated that if the appeals were
refused both convictions and sentences would stand; and nothing in the conduct
of the Italian authorities responsible for the prosecution of the appellant and
the subsequent enforcement of the judgments against her suggests otherwise. In any event, even taking her affidavit at
face value, there is nothing in it to suggest that any misapprehension on her
part that the Italian authorities might not seek to enforce the sentences by
proceedings for extradition was induced by the passage of time since she has
been unlawfully at large and, in particular, by any inaction then on the part
of those authorities.
[31] It is to be
noted that Mr Targowski did not direct any criticism against the relevant
Italian authorities in respect of any of the foregoing matters. His principal criticism was directed to the
matter which we discuss under the next sub-heading.
(2) Proceedings
involving the appellant as a witness
[32] In October 2001 a search was carried
out in premises occupied by one Kurt Mair in
[33] None of the
information set out in the preceding paragraph was put before the sheriff by Mr Bovey
on behalf of the appellant. It appears
from the affidavit of the appellant's solicitor that the appellant told counsel
at consultation on
[34] The question
we now have to consider is whether, having regard to the provisions of section 27(4)
of the 2003 Act, quoted at paragraph 12 above, we should now consider
this issue. There is no question of our
holding that the material now before us is evidence that was "not available at
the extradition hearing": it was
available to counsel then acting for the appellant and a decision was taken not
to use it. Mr Targowski invited us to
approach the matter as an issue which was "not raised at the extradition
hearing", which is not subject to the availability test. In resisting this, Miss Crawford relied
in particular on Pilecki v The Circuit Court of Legnica, Poland [2007] EWHC 2080 (Admin), where at paragraph 25 Stanley Burnton J,
with whom Leveson LJ agreed, said that "issues such as that must be
indicated and taken at first instance unless there is very good reason indeed
why they should not be." We note,
however, that in Trajer v Lord Advocate [2008] HCJAC 78,
[35] Mr Targowski
acknowledged that the Italian authorities responsible for the prosecution of
the appellant and the enforcement of the judgments against her were not the
same as the prosecutor in
[36] We can see no
justification for this criticism. Recital 10
of the Framework Decision, quoted at paragraph 3 above, predicates a high
level of confidence between Member States.
We can see no reason not to have a high level of confidence in the
Italian authorities. There is no information
before us, beyond counsel's submission, that a central database such as that
desiderated by him exists in any
(3) The
appellant's personal circumstances
[37] The appellant left
Discussion
[38] No doubt the appellant has hoped that the
Italian authorities would not seek her extradition to