Appellant: Govier; Ludgat & Dunne, Edinburgh

Respondent: Sheldon; for Lord Advocate

14 December 2012

[1] On 12 February 2010, a European Arrest Warrant was issued in respect of the appellant in relation to a conviction at Alkmaar, Netherlands, on 7 January 2002. That conviction was secured in the absence of the appellant and it is not in dispute that he was not informed of the proceedings. The offences involved four counts of dishonesty. They were significant and involved fraud and embezzlement of about 100,000 guilders in the years 1999 and 2000. The sentence was fifteen months' imprisonment, of which five months was suspended.

[2] The appellant moved to Scotland in or about 2000 as a result of a relationship, which had since broken down, with a woman from Glasgow. He still had family in the Netherlands, including two adult sons. He had travelled back to the Netherlands occasionally after the date of the conviction. On 14 December 2003 the appellant was at Schiphol Airport when he was advised of the existence of the conviction by the Border Control Brigade of the Royal Netherlands Military Constabulary. He was given written confirmation of what the police told him, notably that he could "institute a legal remedy within fourteen days at the registry of the court in question, either in person or through a lawyer". Precisely what the appellant did during the fourteen days which followed is not clear. The sheriff did not find the appellant wholly credible and reliable and felt unable to make any findings in fact as to what did occur during that period, other than that no appeal was lodged in time.

[3] The peculiarity, and why this is an anxious case, is that on 5 January 2004 an appeal was lodged, presumably on the appellant's instructions. It was refused as being out of time, but only on 3 January 2005. This court does not know the reasons for that decision beyond these skeletal facts. It was not provided with a copy of the decision of the Amsterdam Court of Appeal. However, it is reasonable to assume that the court gave due consideration to the issue of whether the appellant ought to be allowed to appeal out of time, given that the consequences of refusal appear to be that the appellant loses any right to review the original conviction and sentence.

[4] The appeal raises two matters. The first is oppression by virtue of the passage of time in terms of sections 11(1)(c) and 14 of the Extradition Act 2003. However, notwithstanding the development of a further relationship with a woman in Greenock and the subsequent birth of two children, with whom the appellant has contact, it was not in serious dispute that the appellant has not altered his lifestyle, in the belief that the Dutch authorities were not pursuing the conviction and sentence, to such an extent that his extradition would amount to oppression (see Kakis v Cyprus [1978] 1 WLR 799, Lord Diplock at 782-3). The court does not consider there is any merit in this ground of appeal.

[5] The second ground raises the issue of whether, as the sheriff held, the appellant "deliberately absented himself from his trial" in terms of section 20(3) of the 2003 Act. If he did not, then, since the appellant was not entitled to a "retrial or (on appeal) to a review amounting to a retrial", the sheriff would have been bound to order his discharge (section 20(5) and (7)). The only relevant facts that the court has are that the appellant knew that he had fourteen days to appeal and that he did not do so. An attempt to lodge an appeal late was attempted but, after due consideration, refused by the courts in the Netherlands. In terms of Atkinson v Cyprus 2010 1 WLR 370 and Dula v The Netherlands [2010] EWHC 69, if a person does not take advantage of a time limit for an appeal, it can be inferred that he has voluntarily and consciously decided to absent himself from the trial process; such process including any right to appeal.

[6] The court is unable to fault the reasoning of the sheriff, who drew the inference that the appellant had so deliberately absented himself from his trial by not appealing the decision within the fourteen day period allowed. In these circumstances the court has no alternative but to refuse this appeal.

DL