Scottish High Court of Justiciary Decisons

APPEAL COURT, HIGH COURT OF JUSTICIARY

[2016] HCJAC 13

HAC/2015/3047/XM

Lord Justice General

Lady Dorrian

Lord Bracadale

OPINION OF THE COURT

delivered by LORD CARLOWAY, the LORD JUSTICE GENERAL

in

EXTRADITION APPEAL

by

ROBERT CAMERON

Applicant;

against

HER MAJESTY’S ADVOCATE

Respondent:

Appellant: McCall, QC; John Pryde & Co, SSC

Respondent: D Dickson (sol adv) AD; the Crown Agent

22 January 2016

[1]        The applicant seeks leave to appeal against an order of the sheriff at Edinburgh, dated 29 October 2015, ordering his extradition to Spain, a Category 1 country in terms of the Extradition Act 2003.  The charge which he faces in Spain alleges that, in Benidorm on 19 February 2010, he gave a person called Kris McDonald, what appeared to be a packet of cigarettes but which in fact contained four wraps containing 25.76 grams of cocaine with a market price of €1,525.  At the time of his detention by the Spanish police, shortly after the alleged transaction, it is accepted that he had some €888 in cash in his possession. 

[2]        The applicant tabled a number of grounds upon which he maintained that the sheriff had erred.  The first was that the sheriff had been wrong in deciding that it would not be unjust to order extradition despite the passage of time.  The focus was on a period of three years and two months between the detention of the applicant in Spain and the intimation of the charge against him.  An important witness, notably Mr McDonald, who would be an incriminee in the trial, was said to be unavailable and “untraceable”.  In particular, following upon Mr McDonald’s release on the day after the alleged incident, he had returned to the United Kingdom.  He was no longer living where he had been resident.  He was not responding to the mobile phone numbers available to the applicant. 

[3]        The second ground was that the sheriff had erred in holding that it would not be oppressive to extradite.  The focus here was on the fact that the applicant had travelled to Spain on some four occasions since his original detention without any hindrance.  It was said that he had an expectation that no proceedings would be raised having regard to that fact and, again, the passage of time.  Linked to these grounds was a third which was, it was accepted, dependant on the success of the first two.  This was that, in considering the applicant’s Convention rights under Article 6, the sheriff had erred in law having regard to the absence of the incriminee. 

[4]        The sheriff reasoned that the argument in connection with injustice was flawed in respect that the absence of the witness was not related specifically to the passage of time.  It was not known ultimately whether Mr McDonald would continue to be unavailable.  It was not known what Mr McDonald might say were he to be traced.  In relation to oppression, the sheriff declined to speculate on what had been going on in the period between detention and charge.  He rejected the submission that the applicant had not been aware of pending charges, standing what had happened to him when he had been detained and the fact that a large amount of money had been seized and retained by the Spanish police.

[5]        Reference was made to the general test set out in Lagunionek v Lord Advocate 2015 SCCR 292.   The test involved several considerations.  The overriding one was of injustice or oppression by reason of the passage of time.  The second was related to the burden of proof, which does not arise here.  More importantly, thirdly, it was said (at para [14]) that:

“... injustice and oppression in this context is directed to hardship to the requested party resulting from changes in circumstances that have occurred during the period between the charge and the request.  ‘Unjust’ is directed primarily to the risk of prejudice to the accused in the conduct of the trial itself, ‘oppressive’ is directed to hardship to the accused resulting from changes in his circumstances that have occurred during the period to be taken into consideration...  The concept of injustice requires the requested court to consider, in the facts of any particular case, whether a fair trial is impossible, having regard to the safeguards which exist under the domestic law of the requesting State.  Council of Europe countries present no problems; all are subject to art 6 of the Convention and should readily be assumed capable of protecting an accused against an unjust trial.

Fourth, oppression or injustice requires personal or family hardship greater than what is inevitable and inherent in extradition for a criminal trial in another country.”

The fifth consideration did not apply.  The sixth was that the focus, where delay is alleged, is not on the length of time and the reasons for it but on the “demonstrable effect that ... [it] has had on the individual ...”.  Reference was also made to Prancs v Latvia [2006] EWHC 2573 (Admin).  The sheriff’s reliance on Campbell v HM Advocate 2008 JC 265 was criticised in respect that the applicant’s condition was markedly different from the situation in that case.

[6]        The court has considered whether there is an arguable case for presenting any of these grounds in an appeal.  It has reached the conclusion that there is no such case.  This was a careful and detailed decision from the sheriff, which is clearly explained in his report.  The court is unable to identify any error in the sheriff’s reasoning.  In particular, the absence of a witness does not of itself constitute injustice or oppression.  It is a common aspect of criminal trials and other litigation.  Where it occurs, the court of first instance requires to consider what effect the absence of the witness might have.  As has been repeatedly said, Council of Europe countries, of which Spain is one, are “assumed” to be capable of applying Convention jurisprudence.  That being so, if there is a substantial argument based upon delay, the absence of a witness or any other consideration which might affect the applicant’s Convention Art 6 rights, the appropriate court to hear the submission must be the court in Alicante.   

[7]        In these circumstances, leave to appeal must be refused.