Act:  J Scott QC (Sol Adv); Capital Defence Lawyers

Alt:  Dean of Faculty (Wolffe QC); Crown Agent

5 June 2014

[1]        In terms of Macklin v HM Advocate [2013] HCJAC 41, leave to appeal to the United Kingdom Supreme Court should only be granted by this court if the applicant is able to identify a potential error of law by this court on a compatibility, or in this case devolution, issue and the point is one of general public importance.  Since the general issue is whether the applicant will obtain a Convention compliant fair trial in Albania, the first of these requirements is met.  However, the court does not consider that the case now raises any point of general public importance. 

[2]        It is important not to lose sight of the limited basis upon which the proceedings were remitted to this court.  That was to consider up to date information on the nature of corruption in Albania and, in particular, whether that corruption was “systemic”; in that it affected everyone to such an extent that it would be impossible to say that any individual would receive a fair trial in that jurisdiction.  The United Kingdom Supreme Court stressed that it would not be necessary for the applicant to lead evidence of facts or circumstances applying to his particular case.  It was consequent upon that decision, which overrode the basis upon which this court had previously refused to admit the content of certain expert reports to probation, that the case was returned in order that this court could reach a properly informed decision as to whether or not the threshold test had been satisfied.  This court carried out that exercise and there is limited scope for any contention that the court has not given effect to the United Kingdom Supreme Court decision; that is to say, to consider up to date information on systemic corruption as a generality, notwithstanding that it may not relate to the facts and circumstances of the applicant’s particular case. 

[3]        Whilst the issue of the standard of proof to be applied in extradition cases throughout the United Kingdom may be a matter of public importance, the applicant does not criticise the court’s understanding of the standard of proof as a generality.  It is not suggested that the court did not apply the correct principles of Convention jurisprudence in that regard.  In particular, the standard which was applied was that the applicant required only to demonstrate “substantial grounds” for believing that there was a risk of an unfair trial on a balance of probabilities and that if he adduced evidence of such a risk, it would then be for the respondent to dispel any doubts about it.

[4]        The applicant’s complaint, in so far as it relates to a standard of proof, is that the court left out of account, or gave too little weight to, relevant material.  The applicant, however, has not identified any material that was improperly left out of account or to which too little weight was given.  It is true that the court expressed general reservations about the approach of putting a wide range of written material before the two witnesses, even if it was not known to the witnesses.  Nevertheless, the court made it clear that it took account of all the material presented to it through the medium of the two witnesses in so far as the witnesses agreed with what was reported therein.  Ultimately, the court proceeded on the basis of what the expert witnesses said about the extent of corruption in Albania.  It did not exclude consideration of the content of the reports, but expressed the view that it did not intend to give much weight, in particular, to surveys as indicative of levels of corruption.  Otherwise, it did assess the weight to be attached to the documents, especially the recent report from the Human Rights Commissioner of the Council of Europe, in reaching its ultimate determination. 

[5]        The applicant accepted that there was no evidence particular to his case.  What was argued on his behalf had to apply equally to anyone who was being extradited to Albania.  That being so, his case was periled on the general proposition that judicial corruption was so widespread that no one ought to be extradited to Albania.  In the end, the result was that the evidence put before the court failed to provide substantial grounds for believing that this might be the position.  

[6]        The applicant did not fail in his appeal as a consequence of any application of exclusionary rules of evidence, or as a consequence of the application of a particular standard of proof.  Rather, the court’s conclusion was based upon the exercise of its judgment as to the proper weight to be attached to the evidence heard, and upon the absence of any evidence to substantiate the applicant’s central proposition.

[7]        A decision of this nature cannot be said to be a matter of general public importance such as would be suitable for adjudication by the United Kingdom Supreme Court.  The allegation that this court applied too high a standard does not arise, the question having been superseded by the nature of the evidence ultimately led.  In short, this is a case in which the court dealt with the matter on the evidence led before it and made findings in fact accordingly.

[8]        For these reasons, this application is refused.