APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Clarke Lord Hardie Lady Smith	[2010] HCJAC 74 Appeal No: XC108/10 OPINION OF THE COURT delivered by THE RIGHT HONOURABLE LORD CLARKE in APPEAL UNDER SECTION 26 OF THE EXTRADITION ACT 2003 by KEITH JOSEPH ALLEN Appellant; against THE LORD ADVOCATE Respondent: _______

Appellant: Bovey, Q.C., Govier; Belmonte & Co, Edinburgh

Respondent: Drummond, Crown Agent

21 July 2010

[1] This is an appeal against an extradition order by Sheriff Maciver, pronounced on 11 January 2010, ordering the surrender of the appellant to the Federal Republic of Germany in terms of section 21 of the Extradition Act 2003.

The background

[2] As the sheriff informs us in his report to this court, the case has had a somewhat unusual procedural history. The extradition of the appellant, who is a United Kingdom national, was originally ordered by Sheriff Crowe, following on a full hearing in March 2009. When that decision was appealed, however, it transpired that there was an error in the European Arrest Warrant and the German authorities proceeded to issue a new warrant which first called in court in late July 2009. The appellant continued to resist his return to Germany and, accordingly, the whole procedure had to be rerun. After a number of adjournments, at the appellant's request, a further extradition hearing commenced on 2 November 2009. It was adjourned until 20 November 2009 and again continued to 15 December 2009 on which day the hearing concluded.

[3] The request for return of the appellant to Germany was made by the issue of the relevant European Arrest Warrant under the procedures set out in the Council of Europe Framework Decision of 2002 in relation to mutual recognition of judicial decisions in member states and in terms of Part 1 of the Extradition Act 2003. The German authorities wished to have the appellant returned to their jurisdiction to place him on trial for a crime which in this country would be libelled either as an assault to the danger of life or attempted murder. The assault in question is said to have taken place at Heimholzplatz, Berlin during the afternoon of 27 October 2004. The victim was another United Kingdom citizen named Fulford. Mr Fulford subsequently died in England in October 2006. It was not contended before the sheriff, nor before this court, that Mr Fulford's death was linked to the alleged assault although, Sheriff Maciver notes in his report to this court that the position of the German court in that connection is entirely unknown. The sheriff, in that state of affairs, proceeded on the basis that the appellant's return is required in respect of the assault as specified in the arrest warrant. We will, naturally, proceed on the same footing.

[4] The appellant was born in Scotland, but, prior to his arrest, which took place at Stranraer, when he was visiting Scotland, in early 2009, he was resident in the Republic of Ireland.

The grounds of appeal

[5] Before this court the appellant sought to attack the decision of the sheriff on three grounds.

1. The first of these was that the sheriff erred in law in refusing to allow the appellant to raise a devolution issue in terms of a minute lodged with the Sheriff Clerk on the ground that it was lodged late.

2. The second ground of appeal was that the sheriff had erred in law in finding that it would not be unjust or oppressive to extradite the appellant to the Republic of Germany by reason of the passage of time since he is alleged to have committed the extraditable offence.

3. The third ground is that the sheriff erred in law in deciding that the appellant's extradition would be compatible with his Convention rights within the meaning of the Human Rights Act 1998. This ground of appeal goes on to say "in particular, he decided that his extradition would be compatible with the appellant's rights under Article 6.1 of the Convention to have a fair and public hearing of the case against him 'within a reasonable time', and under Article 8 to have respect for his private or family life".

[6] We shall deal with the first ground of appeal last. As regards the other two grounds of appeal, they raise issues which, by now, have been the subject of extensive authoritative decision in the courts both of this country and England and Wales. It is to be expected that those who appear in such appeals, should be aware of the relevant jurisprudence and should be in a position to seek, in their submission, to apply, develop or distinguish it as the case may be. To make bald assertions which fly in the face of it, is not acceptable but that is what happened, at times, in this appeal. For example the requesting authority in this case being Germany, the request, as has been noted, was subject to the framework decision of 13 June 2002 (2002/584/JHA). Recitals 5 and 6 of the decision are in the following terms:

"(5) The objective set for the Union to become an area of freedom, security and justice leads to abolishing extradition between Member States and replacing it by a system of surrender between judicial authorities. Further, the introduction of a new simplified system of surrender of sentenced or suspected persons for the purposes of execution or prosecution in criminal sentences makes it possible to remove the complexity and potential for delay inherent in the present extradition procedures. Traditional co-operation relations which have prevailed up till now between Member States should be replaced by a system of free movement of judicial decisions in criminal matters, covering both pre-sentence and final decisions, within an area of freedom, security and justice.

(6) The European arrest warrant provided for in this Framework Decision is the first concrete measure in the field of criminal law implementing the principle of mutual recognition within the European Council referred to as 'the cornerstone' of judicial cooperation".

Article 1 of the Framework Decision provides:

"The European arrest warrant is a judicial decision 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 conducting a criminal prosecution or executing a custodial sentence or detention order".

The effect of these provisions, as has been pointed out, on a number of occasions by the courts, is, as it was put by the Court of Appeal in Symeou v [2009] 1 WLR 2384 at 2397, para.39:

"...we have no doubt but that the common area of judicial decisions in criminal matters means that the judicial systems of the countries of the European Union must be regarded as capable of providing sufficient minimum safeguards for a fair trial in a civilised country ....".

The same approach has been enunciated, more generally, by the House of Lords in Gomes v The Government of the Republic of Trinidad and Tobago [2009] 1 WLR 103 where Lord Brown of Eaton-under-Heywood in giving the judgment of their Lordships said at para.35:

"Council of Europe countries in our view present no problem. All are subject to Article 6 of the Convention and should readily be assumed capable of protecting an accused against an unjust trial - whether by an abuse of process jurisdiction like ours or in some other way".

We have to say, with regret, that a good deal of the substance of the appellant's contentions in this case were made as if these judicial dicta, and others to similar effect, of the highest authority, had never been made.

Ground of Appeal 2

Passage of Time

[7] We turn now to deal with ground of appeal 2 - passage of time.

[8] The factors relied upon in relation to this ground of appeal were as follows.

Since the date of the alleged assault the victim has died. He cannot, therefore, be precognosed, or cross examined at any trial. The appellant's position is to deny any knowledge of the alleged assault and that he first became aware of the charge against him in early January 2009. He has lost contact with the girlfriend he had in Germany in October 2004 and also his other associates at that time who might have been able to provide evidence as to his whereabouts on the relevant date and thereby support a defence of alibi. The passage of time, therefore, it was contended, has caused a real risk of prejudice to his defence if he is now extradited to the Republic of Germany over five years after the relevant date.

[9] It was contended, furthermore, that his extradition would be oppressive by reason of the passage of time. Since returning to the British Isles and then in Ireland, he has re-established his relationship with his family and has changed his lifestyle, obtaining regular employment and resuming education. As is demonstrated in the sheriff's careful, and thorough, report to this court the sheriff considered all of these matters, under reference to the relevant legislative provisions contained in section 11 and section 14 of the Extradition Act and having heard evidence from the appellant. The sheriff referred, also, to an agreed chronology which was encapsulated in a joint minute. The alleged crime, as has been noted, was committed in late October 2004. A domestic arrest warrant was issued for the appellant on 24 November 2004. The appellant left Germany to travel to the Republic of Ireland via London in early December 2004. When this was discovered the German authorities issued a European Arrest Warrant in January 2005. The UK authorities had been led to believe that the appellant was living in London when he was in fact in the Republic of Ireland. It was not submitted before the sheriff, nor this court, that any injustice or oppression, arose simply because of the delay in being able to effect the warrant against the appellant, far less that there was any culpability on the part of the requesting State in relation to the time taken to enforce the warrant. What was relied upon before the sheriff, and repeated before this court, was that due to the passage of time there was now not available to the appellant certain sources of evidence and that this would make the extradition of the appellant unjust. Moreover, having regard to what had been happening in the appellant's life since the date of the original warrant it would be unjust and oppressive now to extradite him.

[10] These submissions were made under reference to section 11(1) and section 14 of the Extradition Act. Section 11(1) is, inter alia, to the following effect:

"If the judge is required to proceed under this section he must decide whether the person's extradition to the Category 1 territory is barred by reason of -

(c) the passage of time".

Section 11(3) provides:

"If the judge decides any of the questions in subsection (1) in the affirmative he must order the person's discharge".

Section 14 of the Act provides inter alia 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 will be unjust or oppressive to extradite him by reason of the passage of time since he is alleged to have committed the extradition offence....".

Section 21 of the Act provides:

"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)".

Section 21(2) provides:

"If the judge decides the question in subsection (1) in the negative he must order the person's discharge".

Section 21(3) then provides:

"If the judge decides the question in the affirmative, he must order the person to be extradited to the category 1 territory in which the warrant was issued".

At times before this court, senior counsel for the appellant's submissions collapsed the requirements of section 14 into the requirements of section 21 of the Act, submitting, under reference to section 14 that the passage of time which had occurred and, which continued to run, before a trial could take place, meant that no trial within a reasonable time could now take place for the purposes of Article 6 of the European Convention on Human Rights. The sheriff had accepted that there might be overlap between considerations relevant for the purposes of section 14 and Articles 6 and 8 of the European Convention. That may be so in certain cases but, in the present case, the blurring of the distinction was not, in our judgement, helpful or appropriate and betrayed confusion of thought.

[11] The circumstances which were directly, potentially, relevant to the court's consideration of section 14 were those relating to the position of the appellant since he left Germany until the present time. What was prayed in aid in that respect was that, independently of any knowledge of the existence of the extradition warrant, the appellant had altered his way of life in the meantime. Having led a somewhat shiftless and ill-directed existence, for several years in Germany, he was now living a more stable existence since taking up residence in Ireland. He was undertaking further education with a view to seeking employment thereafter. He has a son who is now a young adult with whom he had not kept in touch during his time in Germany, but with whom he was now in contact on a regular basis.

[12] The approach to be taken to the concepts of "unjust" and "oppressive" for the purposes of section 14 have been authoritatively, and clearly, set out in a number of decisions of this court - Tripliss (1997) SCCR 398, Campbell v HM Advocate 2008 JC 265 and Trajer v HM Advocate 2009 JC 108, these cases following, and applying, the law set out in the leading case of Kakis v Government of the Republic of Cyprus [1978] 1 WLR 779. In Campbell Lord Clarke at para.48 said:

"The 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 circumstances of the present case, in our opinion, where the appellant is maintaining that the first he knew of the matter was in early January 2009 and where his life in Ireland, since leaving Germany, simply involved him living a more stable life than he had chosen to live in Germany, do not amount to satisfying the test, which was set out in the authorities just cited, for establishing unjustness or oppression through passage of time for the purposes of section 14. As has been repeatedly said, extradition will, by definition, involve disruption to a person's normal settled life, but that simple and undoubted fact does not, in the present case, mean that the passage of time, since the appellant, according to him, became aware of the existence of the matter, rendered his extradition unjust or oppressive for the purposes of section 14.

Ground of Appeal 3

The Human Rights ground of appeal

[13] Although "the missing evidence" factors referred to previously were prayed in aid under the previous ground of appeal by senior counsel for the appellant, we consider that they, more properly, belong to human rights' arguments regarding the requirements of a fair trial under Article 6 of the European Convention on Human Rights. Since the question raised under section 11 of the Extradition Act was properly answered by the sheriff in the negative, he required to address the question raised by section 21(1) of the Act, namely whether the appellant's extradition would be incompatible with his human rights within the meaning of the Human Rights Act 1998. In addition to the "missing evidence" matters referred to above, in this chapter of the submissions, by senior counsel, placed reliance on the lapse of time which has ensued since the commission of the alleged offence which meant, it was said, that any possible trial in the future would not be a trial within a reasonable time for the purposes of Article 6 of the Convention. Under reference to the appellant's re-established relationship with his adult son, he also placed some reliance upon the provisions of Article 8 of the Convention.

[14] In relation to the Article 6 "loss of evidence" argument we would make the following points. In the first place we find it difficult to see why the subsequent death of the victim can be regarded as involving, per se, and without further information, the potentiality of an unfair trial. Nothing was said to us as to any evidence which might have emanated from that witness which would have been crucial for the defence. The logic of this submission, which senior counsel appeared to have overlooked, was that there would be a question mark arising as to whether there could be a fair trial guaranteed in every murder or other homicide case. As the sheriff pointed out references to the appellant's former girlfriend, as a source of evidence, did not go as far as to say what, if anything, she might have been in a position to say in support of any defence (unspecified) nor was it explained what, if anything, any former associate could have contributed to the defence as opposed to raising mere speculation in that respect. In any event, and most importantly, these are all matters, in our judgement, which are predominantly questions for the court of the requesting authority, having regard to its obligations under the European Convention on Human Rights. In Falanga v The Office of the State Prosecutor, Court of Novara, Italy, (2007) EWHC 268, Stanley Burnton J, with whom Maurice Kay LJ agreed, said, at para.23:

"The European Arrest Warrant is designed to be an expeditious and summary means of securing extradition as between States or parties to the European Convention on Human Rights, where generally it may be assumed that those rights are complied with".

Those appearing, in extradition cases, must keep that statement of principle, taken together with the other dicta that we have referred to at the beginning of this judgment, at the forefront of their submissions in such a case as the present. This did not happen in the present case where senior counsel for the appellant made general assertions that a fair trial could not be guaranteed for the appellant in Germany, without providing the court with any material that would have justified him in so asserting. We would stress that it is, of course, only a presumption, albeit a very strong one, that those countries who are signatories to the European Convention on Human Rights are complying with, and continue to comply with, its provisions when dealing with someone in the position of the appellant. It may be possible to overcome that presumption but only, in our clear view, where there is compelling evidence brought before the court to rebut it; compare Ruiz v Central Court of Criminal Proceedings, Madrid [2008] 1 WLR 2798 at page 2810, para.37, Hilali v Central Court of Criminal Proceedings No.5 of the National Court, Madrid [2006] 4 All ER 435 at para.77 and Boudhiba v Central Examining Court No.5 of the National Court of Justice, Madrid [2007] 1 WLR 124 at para.48. Senior counsel for the appellant made no reference to any of these authorities. This was unfortunate because had he done so, he could not, in our opinion, have made the submissions he did.

[15] As regards the Article 8 argument made on behalf of the appellant, we can deal with this quite briefly. As the sheriff said in his report the role of Article 8 in the context of extradition cases is a particularly well trodden area of jurisprudence and a clear test has been laid down in the case law. That test is that before an Article 8 argument can succeed in the context of extradition, it is for the appellant to show that, on balance, there are, in his case, "striking and unusual features" which mitigate against extradition and lead to a conclusion that such extradition would be a disproportionate interference with his Article 8 rights. For all the reasons set out carefully by the sheriff in his report the material advanced on behalf of the appellant in this case came nowhere near satisfying that test. We, accordingly, agree with the sheriff that in terms of section 21 of the Extradition Act, extradition required to be ordered since we are satisfied, as he was, that the appellant's extradition is compatible with his human rights.

Ground of appeal 1

Devolution Minute

[16] Lastly we require to address the ground of appeal based on the sheriff's refusal to allow a devolution minute to be lodged. The minute is No.3A in the appeal papers. It is to the effect that, for a number of reasons, the Lord Advocate would be acting in a manner incompatible with the appellant's Convention rights in proceeding with this application to have his extradition to the Republic of Germany. It will be recalled that a full hearing took place in March 2009 in relation to the extradition request which resulted in Sheriff Crowe ordering the appellant's extradition. After that decision had been taken to appeal, there was the discovery of an error in the original warrant. No devolution minute was presented to the court before, or during, the hearing before Sheriff Crowe. The fresh hearing began on 2 November 2009. No devolution minute had been lodged in advance of the hearing or at its commencement. The hearing required to be adjourned until 20 November 2009. A devolution minute was served on the relevant parties on 18 November 2009 and first called before the court on 20 November 2009 on the resumption of the extradition hearing. The sheriff was invited, by counsel for the appellant, to allow the minute to be lodged. No reason was stated for lodging it at that late stage in the proceedings. The motion to allow the minute to be lodged was opposed on behalf of the Lord Advocate on the basis that it was coming far too late after the extradition hearing had commenced. The sheriff refused to allow the devolution minute to be lodged. In his report the sheriff notes that "nothing is raised in the devolution issue which is new, or which was not already known to me as a point of dispute or opposition in the extradition hearing". He took the view that devolution minutes were governed, in the context of extradition, by the Act of Adjournal (Criminal Procedure Rules) 1996 (as amended) and in particular in terms of Chapter 40 thereof. The sheriff ruled that section 40.3 of the Act of Adjournal, which requires an accused to give notice of his intention to raise the devolution issue to the Clerk of Court "before the accused is called upon to plead", applied to extradition procedure. In support of that view of matters he had regard to section 7(3) of the Extradition Act 2003 which provides:

"In Scotland the judge has the same powers (as nearly as may be) as if the proceedings were summary proceedings in respect of an offence alleged to have been committed by the person".

The sheriff took the view that extradition proceedings were tantamount to a criminal trial and that section 40.3 of the Act of Adjournal applied. Counsel for the appellant, on the other hand, argued that extradition proceedings were more properly described within section 40.4 of the Act of Adjournal which is in the following terms:

"Criminal proceedings which are not proceedings on indictment or summary proceedings, including Bills of Advocation, Bills of Suspension and petitions to the nobile officium"

and that the Act of Adjournal provided no specific time limit for the lodging of devolution minutes in relation to any such proceedings.

[17] Before this court, counsel for the Lord Advocate did not seek to support the sheriff's reasoning in this respect but did submit that his decision to refuse to allow the minute to be lodged was correct. She conceded that devolution minutes were competent in extradition proceedings and that there was no prescribed time limit in respect of their lodging. It was a matter for the discretion of the court whether to allow a devolution minute which came, as the present one did, very late in the process. In Fasola v HM Advocate 2009 J.C.119 this court refused to allow a devolution minute to be lodged at the commencement of an appeal hearing in an extradition case, as coming too late. In any event the substance of what was in the minute was redundant in that what was being contended therein had been argued on behalf of the appellant under reference to section 11 of the Extradition Act and the human rights issues.

[18] We have reached the conclusion that the sheriff's reasoning in relation to this matter was flawed and that devolution minutes are not to be regarded as covered by the terms of section 40.3 of the Act of Adjournal. There is no question in extradition proceedings of "an accused being called upon to plead". Therefore the punctum temporis provided for in section 40.3 does not arise in such proceedings. There does not appear to be any express provision which governs the time by which a devolution minute, in extradition proceedings, must be lodged. That being so it is a matter for the discretion of the court whether or not to allow a minute to be lodged in the course of proceedings which have been long underway. This was the approach followed by this court in the case of Fasola. Just as was the position before the sheriff, we were provided with no explanation, or excuse, on behalf of the appellant as to why the minute was sought to be lodged so late in the proceedings. In addition the general ground covered by the proposed devolution minute is, to a large extent, identical to ground argued under reference to section 11 and human rights issues which we have already found to be without merit. Insofar as content of the minute goes beyond such matters, it is based on additional assertions that extradition would be in breach of the appellant's Convention rights in that they could not be protected because he does not speak German. That is a point which if it had any merit at all could be raised in a very large number of extradition cases. It also is a point which, if good, would support a claim of breach of Convention rights by any foreign accused appearing before our own domestic criminal court on the basis that he did not speak English. It takes only a second's reflection to see that that argument is wholly without merit in systems which provide, as we do in our system, and we must assume is done elsewhere, interpreter facilities for the accused person. This ground of appeal, for all the foregoing reasons, fails.

[19] It follows that the appeal is refused.