APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice Clerk Lord Clarke Lord Kingarth	[2011] HCJAC 121 Appeal Nos: XC373/11 and XC376/11 OPINION OF THE COURT delivered by LORD CLARKE in the appeals by THE LORD ADVOCATE ON BEHALF OF THE FOURTH CRIMINAL COURT OF LISBON, PORTUGAL Appellant; against JOHN KANE and NICOLA FEENEY Respondents: _______

Appellant: Dewar, Q.C., Hawkes; Crown Agent

First Respondent: Jackson, Q.C., L. Pike; Scullion & Co, Hamilton

Second Respondent: Bovey, Q.C., Mason; V Good & Co

9 December 2011

[1] These are two appeals brought by the Lord Advocate, on behalf of the Fourth Criminal Court of Lisbon, Portugal in respect of a decision by the Sheriff of Lothian and Borders at Edinburgh, Sheriff Crowe, dated 21 December 2010, whereby he discharged extradition proceedings in respect of the two respondents.

[2] The background to the appellant seeking the respondents' extradition is set out in findings in fact contained in the sheriff's report to this court which are in the following terms:

"(1) The Respondents were arrested in Portugal on 21 November 2007 charged with importing 5 kilos 657.4 grams of cocaine into the country from Brazil. The respondents were remanded in custody by the Portuguese authorities until their trial on 16 June 2008.

(2) On that date the Respondents were convicted in terms of their own confessions and were sentenced to three and a half years imprisonment, which sentences were suspended and the Respondents were released from custody immediately.

(3) On 10 July 2008 the Respondents' passports were returned to them by the Portuguese authorities and the Respondents returned to Scotland the following day. The retention of an accused's passport is a preventive measure open to the Portuguese court when an appeal is pending.

(4) Subsequently the public prosecutor in Portugal appealed against the suspended sentences of imprisonment and on 6 November 2008 the Court of Appeal in Lisbon substituted the suspended sentence with sentences of three and a half years' imprisonment which required the respondents each to serve the balance of the sentence, namely three years, one month and four days imprisonment.

(5) In accordance with normal Portuguese practice the appeal was intimated only to the Respondents' solicitor by registered letter dated 8 June 2008 to Dr Octavio Chau, who had been granted Power of Attorney by the Respondents on 27 December 2007. The decision of the Court of Appeal in Lisbon dated 6 October 2008 was intimated to Dr Chau by registered letter dated 7 November 2008.

(6) No information about the appeal or its outcome was relayed to the respondents by Dr Chau or his firm. The Respondents remained in ignorance of these appeal proceedings until they were arrested on the authority of European Arrest Warrants dated 1 April 2009 at their home in Hamilton on 13 October 2009.

(7) Following sundry procedure on 15 December 2009 Sheriff Maciver ordered the Respondents' extradition pursuant to the said European Arrest Warrants."

As noted by the sheriff, the respondents appealed to this court against Sheriff Maciver's decision and those appeals were granted on the basis that the European Warrants in question were invalid (see Feeney & Kane v Her Majesty's Advocate (2010) HCJAC 39). New European Arrest Warrants dated 10 March 2010 were served on each respondent and proceedings recommenced at Edinburgh Sheriff Court on 15 March 2010.

[3] In his Findings in Fact 10-23, set out in his report to the court, the sheriff, in some detail, describes how the respondents' personal lives have developed since they came to Scotland in July 2008. In brief, they have been living in Hamilton since that time. They are engaged to be married. A planned wedding date of 4 June 2010 had to be cancelled due to the present proceedings. The main development in the respondents' lives highlighted by the sheriff, and relied upon by them in seeking to resist extradition, is that they have taken over the care of the first respondent's son Simon, born 15 December 2005. Simon's mother had full custody of him until August 2009. Since that time the respondents have had residential care of him. The sheriff sets out various concerns that had been expressed by, among others, the social work department, about the care of Simon prior to August 2009 while the child's mother had custody of him. The child's mother had formed a relationship with a man about whom the social work department had concerns. She subsequently moved to Nottingham and there had been no further contact between the child and his mother. The social work department carried out a full risk assessment in respect of the respondents, in the knowledge, conveyed to them by the respondents themselves, that they had been convicted of drug trafficking offences in Portugal. The child was then placed in the care of the respondents.

[4] The sheriff, who heard evidence on these matters, observed that while there had been concerns about Simon's behaviour, prior to his placement with the respondents, he thereafter "settled very quickly into their care and has begun to learn and trust adults again. The respondents have demonstrated a high level of warmth with Simon and have been patient with him despite his difficult behaviour." The sheriff notes that the child Simon was significantly upset on the arrest of the respondents and continued to be distressed until he was returned to their care after their release from custody in March 2010. The social work department has recommended that Simon be placed in the full-time care of the respondents. Possible placements for the child with other family members are not regarded as being likely to be satisfactory and placement with foster parents would prove difficult. The sheriff at Finding in Fact 22 states:

"If the respondents were extradited to serve the balance of the sentences imposed by the Portuguese authorities, Simon's behaviour would deteriorate rapidly and this would have an adverse effect on his adolescent years."

Lastly the sheriff finds:

"Nicola Feeney is pregnant and John Kane is the father of the expected child. The respondents have already experienced Portuguese prison conditions during their period on remand. While there are prison facilities for nursing mothers these are not ideal and special arrangements will require to be made for the child if she were to remain with her mother."

[5] Before the sheriff reliance was placed for both respondents on the provisions of section 14 of the Extradition Act 2003 which are to the following effect:

"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 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)."

The sheriff, it seems, from what he says in his report to this court, took the view that the passage of time involved in this case for the purposes of the section commenced in June 2008 and endured until the second European Warrants were served on the respondents in March 2010 - see para. 24 of the sheriff's report.

[6] An argument was advanced, on behalf of the respondents, based on article 8 of the European Convention on Human Rights. In his judgment dated 21 December 2010 the sheriff rejected that argument having regard to such authorities as Norris v Government of the United States of America [2010] UKSC 9 in which Lord Phillips at para. 82 and Lord Brown at para. 95 made it clear that only the gravest effect of interfering with family life will be capable of rendering extradition disproportionate to the public interest that it serves. The sheriff, nevertheless, reached the conclusion that, due to the passage of time from June 2008 until March 2010 it would be unjust and oppressive to extradite the respondents to Portugal and he discharged the extradition proceedings against them. His reasoning for reaching that conclusion is, it seems, to be found in paras 23-26 of his report to this court. He states at para. 23 that he regarded the circumstances of the present case as exceptional. He refers to the evidence given by both respondents who he considered to be impressive witnesses. He states that he considered other evidence adduced on their behalf to be of "similar quality". Towards the end of para. 23 of his report the sheriff states: "I found the respondents entirely credible and reliable when they described what happened after the suspended sentences were imposed and what they did thereafter." While he recognised that, in the scheme of things, the passage of time involved in the present case was not a particularly long one, he, correctly, indicated that the matter was to be judged not simply by reference to computation of time but having regard to the effect of the passage of time on those whose extradition was being sought. Approaching matters in that way, the sheriff continues, at para. 25 to the following effect:

"The respondents not only made new lives for themselves when they returned to Scotland but considered themselves free from further procedure, particularly in the light of the attitude of the Portuguese judges at first instance and the ease with which they received back their passports and were allowed to leave the jurisdiction. It was clear to me that the respondents had no inkling of what had taken place in Portugal thereafter. Had they known what had transpired they would not have taken on the substantial responsibilities of bringing up Mr Kane's young son Simon who had previously had a troubled and disjointed childhood. Ms Kane would not have taken on onerous work responsibilities nor might the couple have committed themselves to a tenancy and made plans for marriage and a family."

The sheriff also goes on to say at para. 26 that "It seemed to me that the respondents' personal circumstances had changed out of all recognition since the time the Portuguese Court of First Instance imposed suspended sentences" and that the Portuguese Court had no up-to-date information before it when it decided the appeals. It was a matter of concern to the sheriff that there appeared to be no mechanism available in Portugal for the respondents' change of circumstances to be considered if they were extradited there. His reasoning concludes with the following statement: "Any further interruption in the child Simon's upbringing would on the evidence I have heard have had seriously detrimental affects (sic) on his future."

[7] Before this court, Mr Bovey, QC for the second named respondent, speaking first, said that he wished to raise a preliminary matter as to the competency of these appeals. Section 28(1) of the 2003 Act provides that: "If the judge orders a person's discharge at the extradition hearing the authority which issued the Part 1 warrant may appeal to the High Court against the relevant decision." Senior counsel stated that the present appeals did not proceed in the name of the authority which had issued the Part 1 warrants in this case but in the name of the Lord Advocate. While section 191 of the 2003 Act provided that, in Scotland, the Lord Advocate must conduct all extradition proceedings in Scotland, by virtue of section 28(1), it was, it was submitted, nevertheless the authority which had issued the Part 1 warrant, and not the Lord Advocate, who had the right to appeal against a discharge. The appeal proceedings must be brought in the name of that authority only. No other means of appeal was contemplated. The duty to conduct proceedings, it was submitted, did not extend to the bringing of an appeal in the Lord Advocate's own name. Accordingly the present proceedings were incompetent.

[8] We have had little difficulty in dealing with this submission which, in our judgement is wholly misconceived. Section 191(1) provides:

"The Lord Advocate must -

(a) conduct any extradition proceedings in Scotland."

There is no doubt that the phrase "extradition proceedings" in section 191(1)(a) embraces appeal proceedings taken against decisions made in extradition hearings such as a decision by the sheriff to order a person's discharge. If that is correct then the Lord Advocate may bring an appeal against such a decision. He, no doubt, does so in a representative capacity bestowed on him by statute by virtue of section 191. It is the Lord Advocate who has the statutory right and interest to bring the relevant authority's right of appeal under section 28(1), under the statutory scheme. The notices of appeal lodged in the present case correctly reflect the statutory provisions. They are in the following terms:

"Note of Appeal

Under section 28(1) of the Extradition Act 2003

by

Her Majesty's Advocate

On behalf of the Fourth Criminal Court of Lisbon a Portuguese Judicial Authority

against"

The appeals are then noted as being taken against the respondents.

[9] To suggest that the appeal proceedings were incompetent because they did not run solely in the name of the requesting authority, it seems to us, failed entirely to understand the statutory provisions and their effect and we reject that submission.

[10] In commencing his submissions on behalf of the Lord Advocate, Mr Dewar, QC touched first on the question as to what was the appropriate computation of the period of time relevant for the purposes of section 14 of the 2003 Act. As has been seen, the sheriff's approach to this question appears to have been that the relevant period was between June 2008 and March 2010. His reasoning for reaching that conclusion is set out at para. 24 of his report. The sheriff does not, however, set out his reasoning under reference to the exact provisions of section 14. Section 14 provides for the commencement point of the passage of time in the following way. As noted above it commences either when the person whose extradition is sought 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)."

While section 68A provides a definition of when a person is to be considered to be unlawfully at large, after conviction of an offence, section 68A(2) expressly disapplies that definition in relation to section 14.

[11] In submission before this court, senior counsel for the appellant submitted that the point from which the passage of time should be calculated, in this case, was under reference to section 14(b). Contrary to what the sheriff seems to have supposed, the respondents, it was submitted, were lawfully at large between June and November 2008. By selecting the original convictions as the starting point, the sheriff had ignored the significance of the fact that the disposal at that stage, in each case, was a non-custodial sentence. The position changed in November 2008 when the Portuguese Appeal Court substituted custodial sentences. After that, it was submitted, the respondents' liberty became "unlawful".

[12] As to when the relevant passage of time ended for present purposes, the submission made on behalf of the appellant was as follows. The respondents were arrested on the authority of the European Arrest Warrants dated 1 April 2009 at their home in Hamilton. On 15 December 2009 the sheriff ordered the respondents' extradition pursuant to those warrants. The sheriff's decision in that respect was successfully appealed on the basis that the original warrants were invalid. The warrants with which the present proceedings are concerned were dated 10 March 2010 and proceedings commenced in the Sheriff Court on 15 March 2010. While it had to be accepted that the original warrants were inept, it was submitted that it would be wrong to ignore them for the purpose of considering the passage of time during which the respondents might seek to claim that they were unaware of the sentences of imprisonment imposed upon them and that they were therefore entitled to assume that their return by the Portuguese authorities was not being sought. As at 13 October 2009, it was submitted, any state of legitimate ignorance on the part of the respondents ceased to exist. The crucial point was that, having regard to the provisions of section 14, the respondents were made aware as at 13 October 2009 of the sentences of imprisonment imposed upon them in November 2008 and that their liberty had become precarious. The sheriff was wrong, therefore, in holding that the period of time from the issuing of the original warrant and the serving of the fresh warrants should be disregarded. In Campbell v HM Advocate 2008 SCCR 284 a defective warrant for extradition had originally been issued. A fresh warrant was subsequently executed. At para. 30 of his judgment, Lord Nimmo Smith observed that the latest date when considering the passage of time was the date of the second warrant being served on the appellant. His Lordship said that he would proceed on that basis but he observed that there was a case to be made for the appropriate date being the earlier date of the previous, but deficient, warrant. It was submitted that the appropriate approach was, indeed, to take the earlier date of the issuing of the original defective warrants in the present case as the cut off point for the purposes of claiming a passage of time defence. If the appellant's submissions on passage of time were accepted the period in time would be a little over 11 months.

[13] Senior counsel for the appellant then turned to address the issue of oppression. The submission was that in deciding as to whether there would be oppression if extradition was ordered, the gravity of the offence, or offences, in question was a relevant consideration and the test to be met by the person seeking to avoid extradition was, in any event, a high one, not easily to be surmounted. Reference was made to Gomez v Government of the Republic of Trinidad and Tobago [2009] UKHL 21. Disruption to a person's domestic and professional settled life would not, by itself, make the extradition oppressive. Reference was made to Allan v HM Advocate 2010 SCCR 861 at paras. 7-12. In a conviction case, it was relevant to enquire whether the requested person had materially altered his position in the belief that the requesting authority would not seek his return to serve a sentence lawfully imposed. Reference was made to Campbell v HM Advocate (2008) SCCR 284 at para. 33. Having regard to the foregoing propositions the approach adopted by the sheriff was misconceived. The circumstances relied upon primarily by him in determining the issue was the fact that the respondents had been given residential care of the first respondent's son since 29 August 2009. That was admittedly a step which they took, during the relevant period for considering the passage of time, on any view of how that period of time came to be calculated, in the present case. The sheriff had found that the beneficial effects to Simon arising from the respondents' custody of him had been very considerable. The first respondent is Simon's natural father. It was submitted that it might be seen as being entirely natural and appropriate that he should have, in the circumstances, chosen to take on the custody of his own son. There would no doubt be significant disruption to the life of Simon if extradition was ordered but that was not sufficient to make the extradition of the respondents oppressive. The respondents were convicted of importing a significant quantity of cocaine into Portugal for which they were both sentenced to three years, one month and four days imprisonment. In Trajer v Lord Advocate 2009 JC 108 at para. 37 a sentence of six months was described in the context of extradition as "a significant period". Moreover the passage of time, in the present case, was, however one calculated it, relatively minor. The courts had repeatedly emphasised the need to read Part 1 of the 2003 Act in the context of the framework decision which implied the principle of mutual recognition which was the cornerstone of judicial co-operation (Dabas v High Court of Justice in Madrid, Spain [2007] 2 AC 31 per Lord Bingham of Cornhill at para. 4.)

[14] For the foregoing reasons the sheriff had erred in law in considering that the personal circumstances of the respondents, particularly those involving their custody of the child Simon, could amount to oppression for the purposes of section 14 of the 2003 Act so as to bar extradition. The appeals should be allowed.

[15] In reply senior counsel for the second respondent submitted that in the first place there had been no criticism made, in the appellant's written grounds of appeal, of the sheriff's approach to the computation of the relevant passage of time in this case. The appellant, therefore, should not be allowed to make any such attack on the sheriff's approach to that matter.

[16] It was significant that the court of first instance in Portugal had not considered that the offences in question merited imprisonment. It was accepted that, however one calculated the relevant passage of time, in the present case, it was a relatively short period compared with passages of time considered in many other cases. In the present case the respondents, however, were, it was submitted, lured into a false sense of security simply because of the particular passage of time. They were lulled into such a sense of security by the conduct of the requesting authority in (a) passing a non-custodial sentence; (b) allowing them to have their passports (c) allowing them to leave the jurisdiction and (d) not informing them of the prosecution's appeal. Those factors taken together with the hugely significant change of position in the parties' lives thereafter and, in particular, with regard to their assumption of custody of the child Simon entitled the sheriff to reach the decision he did that their extradition would be oppressive. The appeal should be refused.

[17] Mr Jackson, QC for the first-named respondent stressed that this was, as he put it "an exceptional case" dealt with by a sheriff very experienced in such matters. The simple fact was that the respondents had come to this country with the reasonable expectation that they would not have to return to Portugal to serve a prison sentence. It was questionable as to whether the offences really fell to be regarded as serious since the court of first instance did not see fit to impose custody in respect of them. But what clearly weighed most heavily on the sheriff, and rightly so, it was submitted, was the evidence he had, including evidence from the relevant social worker, as to the catastrophic effect that the extradition of the respondents would have on the child. Having regard to all the circumstances of the case the appeal should be refused.

Decision

[18] We deal first of all with the question of the computation of the passage of time which is relevant in the circumstances of this case. The sheriff in choosing the period he did, as we have previously noted, did not refer to the relevant statutory provisions, or any authority on the question, and we have come to the conclusion that the appellant's criticism of his approach as to this issue was justified. Notwithstanding the somewhat special circumstances of this case, we are satisfied that the starting point is from when the prison sentences were imposed - from that point in time the respondents were "unlawfully at liberty". As regards the terminus of the relevant period we consider that, at the latest, that was the date of the serving of the second warrants on the respondent but we share Lord Nimmo Smith's view in the Smith case that there is a strong argument for concluding that it ended on the earlier date when the initial, albeit inept, warrants were served. As it turns out, in the context of this case, the distinction between the various periods canvassed does not, in our judgement, materially affect the determination of the issue of oppression since, as all were agreed, the relevant period, on any view, is relatively short in the context of such proceedings.

[19] The sheriff had no doubt powerful and impressive evidence before him as to the great benefits that the child Simon has gained from being in the custody of the respondents and the consequent damaging effect that would be likely to occur to him if those custody arrangements were interrupted. It was not surprising, perhaps, that he was clearly affected by that evidence. But it is difficult to understand how he arrived at the conclusion which he did that, however compelling that evidence was, it did not make out a case under article 8 of the European Convention of Human Rights yet, nevertheless, extradition in this case would be oppressive in terms of section 14 of the 2003 Act. As counsel for the appellant pointed out, while the sheriff recognised that the test to be met for an article 8 case to succeed in preventing extradition was an extremely high one, he should have not forgotten that the courts have repeatedly said that the test for oppression under section 14, or its equivalent, is also an extremely high one - see Gomez at para. 31. In addition a consistent line of authority has made it perfectly clear that hardship, physical or emotional, or both, which the extradition of the person in question may cause to him or his family does not per se amount to oppression. Persons not infrequently take life changing decisions, sometimes on the spur of the moment, which can have considerable and dramatic effects for them and for others. They may, nevertheless, because of changed circumstances, have to alter their situation again to their detriment. The fact that a person who faces extradition has taken such decisions with such consequences does not render extradition oppressive because of the change of circumstances that decision or decisions have brought about. What has to be established is that because of passage of time, it would be oppressive to extradite. In the present case the respondents sought to support the sheriff's approach by advancing an argument that the respondents had been lulled into a false sense of security in the present case into believing that they would not be required to return to Portugal. It should be noted in that connection that Mr Bovey, on behalf of the second named respondent, made it clear that he was not suggesting that there had been any fault on the part of the Portuguese authorities in the way that they had conducted themselves in the matter and indeed the sheriff makes no such findings to that effect. Even if there was some basis of fact for that kind of argument in this case it would not be enough for the purposes of section 14, because section 14 is still concerned with the passage of time rendering the extradition oppressive. We do not consider that the passage of time in this case was such as to lead the respondents into a justified sense of security which, in turn, led to a change of circumstances which would make their extradition now oppressive. As previously observed, the passage of time has been relatively short. Further there were no positive representations made by the Portuguese authority at any time, which, in our judgement, could be held to amount to them giving the respondents the false impression that the sentences imposed by the Portuguese Appeal Court would not be enforced. Instead the position appears to have been that from 8 June 2008 onwards (when Dr Chau was informed by the Portuguese authorities of the appeal, prior to being informed on 7 November 2008 of its outcome) any false impression which the respondents may have had could properly be said to have been the responsibility not of the Portuguese authorities but, regrettably of their own agent.

[20] In Wenting v High Court of Valenciennes [2009] ECWR 3528 twenty years had elapsed since the commission of the offence in question. No proper explanation for the extent of delay in seeking extradition was given. Lloyd Jones J. at para. 23 said

"Here we are concerned primarily with the effect of delay, not with its cause, but I note that no explanation has ever been provided for any stage of the delay which has occurred in this case. So far as the length of time is concerned, I note the following observation of Rose LJ in Sagman v Government of Turkey
[2001] EWHC 474 (Admin).

'27... the length of delay in this case is not only enormous in itself in that 15 years or thereabouts has elapsed since the criminal conduct is said to have taken place, but there have been many, many years during which the Turkish Government has made no significant attempt to obtain the applicant's extradition.'

In that case the requesting authority had done far more the try to secure the fugitive's return than has happened in the present case. Moreover, the period of time which had passed in that case was considerably shorter than that in the present."

In the foregoing circumstances the court in Wenting held that the delay, taken together with significant changes in the person's life, meant that it would be oppressive to order his extradition. Each case in this area of the law is, no doubt, fact sensitive but it has to be observed that the facts and circumstances of the present case, particularly with regard to the key question of the passage of time, come nowhere near the circumstances of the cases just referred to.

[21] For the foregoing reasons we consider that the sheriff erred in law in his approach to the meaning and effect of section 14 of the 2003 Act in relation to the facts of these cases. The appeals are therefore allowed.

[22] In terms of the Extradition Act 2003 the orders discharging the respondents are quashed, the cases are remitted to the sheriff who shall proceed as he would have been required to do if he had decided the relevant questions differently at the extradition hearing.