Scottish Sheriff Court Decisions

[1] This is a request by the Republic of South Africa for the extradition of Robert John Headrick ("the accused") who currently lives in Dollar and who is alleged to have committed crimes of fraud and theft in Johannesburg in 1995/1996. The request was made under the provisions of the Extradition Act 2003 ("the 2003 Act") and comes to the Sheriff of Lothian and Borders at Edinburgh as "the appropriate Judge" for extradition proceedings in Scotland under section 139(1) of the Act. The request was made by the South African authorities to the Scottish Ministers and was found by them to be "valid and to have been made in the appropriate way". The Minister for Justice therefore signed the appropriate certificate under section 70 of the Act and on 6 August 2004 transmitted to this court the certificate, the request and a copy of the Order in Council in which South Africa is designated as a "Category 2 Territory" for the purposes of the 2003 Act.

[2] A warrant was thereupon granted for the arrest of the accused and he duly appeared before Sheriff McIver on 10 September 2004. He was asked if he consented to his extradition and declined to do so, whereupon an extradition hearing was duly fixed for a later date. The accused was released on bail on a number of conditions, including the surrender of his passport to the Sheriff Clerk, Edinburgh. The extradition hearing was adjourned on a number of occasions, principally because the accused lodged a Minute alleging the existence of a Devolution Issue under the provisions of the Scotland Act 1998. I heard protracted argument on this matter and, for the reasons given in my previous judgement of 8 September 2005 I dismissed the Minute on competency grounds. The full extradition hearing thereafter proceeded before me on 14 September 2005, when the accused was represented by senior and junior counsel; the Lord Advocate continued to be represented by Mr Dickson of the International Co-operation Unit of the Crown Office.

[3] The alleged crimes for which extradition is sought are fraud and theft, which are said to have been committed between November 1995 and March 1996. The victim of the alleged crimes is ABSA Bank Ltd (also trading as Bankfin or Trust Bank), to which entity I shall henceforth refer as "ABSA". At some point in the later part of April 1996 or soon thereafter they discovered that the accused and his family had left South Africa on 16 April 1996 on a British Airways flight from Johannesburg to the United Kingdom, although at that time it is clear that ABSA did not know of their final destination, whether in the UK or elsewhere.

[4] Following the discovery of the alleged crimes, ABSA carried out investigations themselves and the police became involved. On 17 May 1996 a warrant was granted for the arrest of the accused but this was not executed as his whereabouts was not known at that time. Following extensive investigation on behalf of ABSA, it was not until later that his whereabouts was discovered, along with details of the alleged manner in which the fraud had been perpetrated and how the proceeds were concealed. Later in 1996, the estates of the accused were sequestrated in South Africa and Trustees in Bankruptcy were appointed. Following enquiries, those Trustees instituted legal proceedings in Jersey in the Channel Islands and obtained a court order to attach certain monies that had been deposited by the accused in a trust established by him there, while other assets were later traced in Scotland which were allegedly controlled by the accused.

[5] Following the issue in 1998 of Letters of Request by the South African Courts, the Court of Session in Scotland recognised the South African sequestration order and accordingly the accused's estates were sequestrated in Scotland. He remains insolvent both in South Africa and in Scotland as at the date of the proceedings before me. His Trustees persisted in their efforts in Jersey; the accused instructed solicitors there and ultimately it transpired that he was prepared to settle his indebtedness to the Trustees, as a result of which considerable correspondence ensued between lawyers for both sides and a settlement figure was agreed. Settlement did not however take place because, although the Trustees were prepared to withdraw the civil proceedings, they did not and could not give any guarantee that extradition proceedings then contemplated against the accused in South Africa would not also be activated. Since the abandonment of any question of extradition was a condition upon which the accused insisted prior to settling his indebtedness, that settlement never took place.

[6] After some inquiries, it appears that (in the course of those proceedings and probably in the summer of 1996) the address of the accused in Dollar became known to the lawyers acting for ABSA. But as for the South African police, it appears that the relative criminal docket opened by them in 1996 was closed in around April 1998, as it was then thought by them that the accused was untraceable. Eventually, however, after the breakdown of the settlement negotiations in Jersey in October 2000 the matter of extradition appears to have been raised and, after further delays, the current extradition request was eventually prepared and presented by the South African prosecuting authorities.

[7] The extradition request was supported principally by an Affidavit dated 31 May 2004 by Ms Charin de Beer, the Director of Public Prosecutions for the Witwatersrand Local Division of the High Court of South Africa. To her Affidavit were attached a number of annexures, including other Affidavits and related material. In addition, at the commencement of the hearing before me, Mr Dickson lodged a supplementary Affidavit by Ms de Beer, the date of which is not clear but which appears to have been given in early May 2005. Also lodged was an Affidavit dated 23 February 2005 by Antony L Mostert, the Attorney for ABSA, a copy of an Affidavit dated 26 March 1998 by Andrew Wilkins, the Trustee in bankruptcy appointed in South Africa following the sequestration there of the estates of the accused in 1996 and two Affidavits by Gerrit Roberts, the Deputy Director of Public Prosecutions for Witwatersrand dated respectively 8 December 2004 and 8 July 2005. Attached to the latter is what purports to be a chronology of the investigation, hereinafter referred to as "the Headrick docket". Mr Dickson, on behalf of the Lord Advocate, also lodged a separate chronology of events, to which I will later refer. Some of the information relied on in all these documents was uncontroversial, but in other respects it was challenged on behalf of the accused, with particular reference to the chronology, the interpretation to be put on various events and some of factual background. I shall resolve these controversies as far as necessary at later parts in this Judgment.

[8] The extradition request by South Africa is dated 31 May 2004 and the Ministerial Certificate under section 70 of the 2003 Act is dated 4 August 2004. The warrant for the arrest of the accused was issued by Sheriff Allan on 1 September 2004 in response to a Petition by the Procurator Fiscal dated 31 August 2004. At his first appearance before Sheriff McIver on 10 September 2004, the accused made no application for discharge under section 72(5) of the 2003 Act. Sheriff Maciver gave him the information required by section 72(7), remanding him on bail for a full extradition hearing in terms of section 75, since the accused did not consent to his extradition.

[9] At the full hearing on 14 September 2005 the first matter which I required to decide was whether section 78(2) of the 2003 Act had been complied with. This provides (so far as relevant to this case):

[10] I am satisfied that the documents received by the Court do indeed comply with section 78(2). In particular, I am satisfied that the document described as "the request" in section 70(9) is the whole bound document prefixed by the title page stating "Request by the Government of South Africa presented to the United Kingdom for the Extradition of Robert John Headrick (and Virginia Anne King Headrick)". This document contains the necessary particulars and warrant in terms of section 78(2)(b), (c) and (d). It also includes all the evidence and other documents necessary to constitute a request for extradition. I reject the contention that there may be some other document constituting "the request"; although paragraph 7 of the Affidavit dated 8 December 2004 by Gerrit Roberts refers to a "formal application" being signed on 19 January 2004 by the Director of Public Prosecutions, paragraph 15 of the Affidavit by the Director (Charin de Beer) dated 31 May 2004 makes it clear that, whatever was signed on 19 January 2004, an extradition request was being made as at the later date.

[11] Having decided the question in section 78(2) of the 2003 Act in the affirmative, section 78(4) requires me to decide whether:

[12] In the event that I decide any of these questions in the negative, I am obliged in terms of section 78(6) to order the discharge of the accused. No issue arose in respect of section 78(4)(a), but I heard argument on both the other subsections, beginning with subsection (c).

[13] Dealing with the service of the necessary documents, Mr Dickson produced an Execution of Service dated 10 September 2004 certifying personal service on the accused of

"..... a copy of the documents sent to the Judge by the Justice Minister under section 70(9) Extradition Act 2003 which are attached to the execution of service ....."

But service was challenged on behalf of the accused, who claimed that no copy of the Ministerial Certificate relating to his client had been served on him and that, contrary to what was stated in the Execution of Service, no copy documents were attached to the Execution.

[14] In relation to the Ministerial Certificate, Mr Bovey told me that a copy Certificate in the name of the accused's wife had been served on the accused; her extradition had originally been requested but had later been provisionally withdrawn by the South African authorities. Indeed, Mr Bovey pointed out that at the start of the hearing Mr Dickson had tendered to the court, along with the Execution of Service and other documents, the original of the certificate relating to Mrs Headrick. Mr Bovey suggested that any recourse to the presumption omne rite et solemniter acta praesumuntur was defeated by the fact that the wrong certificate had been served on the accused. As for the Execution of Service itself, it referred to certain documents; but the Police Officer effecting service could not certify what documents had been sent to the court, for no copies were attached to the Execution.

[15] It is clear to me that the accused has always been aware that a Ministerial Certificate under section 70 of the 2003 Act was in existence in relation to him and that such a Certificate was duly sent to the court before the warrant to arrest was issued. Through his counsel he presented a detailed argument under the Scotland Act 1998 that the Minister had acted ultra vires in signing the Certificate, so he can hardly say now that he does not know what it contains. Seen in that light, his objection to service seems wholly artificial. In any event I think section 77(2) of the 2003 Act is fatal to his contention on this point. My powers at an extradition hearing are the same (as nearly as may be) as if the proceedings were summary proceedings in respect of an offence alleged to have been committed by the accused. In domestic summary criminal proceedings if an accused person appears to answer a complaint, it is not competent for him to plead want of due citation or informality therein or in the execution thereof: see section 144(8) of the Criminal Procedure (Scotland) Act 1995. Accordingly I would have no power to entertain any such plea. While it is true that extradition proceedings do not follow exactly the same course as summary criminal proceedings, I think that the first appearance of the accused before Sheriff Maciver on 10 September 2004 in response to the warrant to arrest can fairly be equiperated to the first calling of a summary complaint. At or before such a calling in domestic proceedings, a complaint is invariably served. Mr Bovey did not suggest that no documents at all were served on his client on 10 September 2004; his contention was only that a copy of the Ministerial Certificate relating to his client was not served. But even if this was what happened (contrary to what is said in the Execution of Service), no plea directed to want of service was taken on 10 September 2004, nor at any of the subsequent hearings, procedural and otherwise, between then and 14 September 2005 when the point was taken for the first time under section 78(4)(c) of the 2003 Act.

[16] It seems to me that a purposive construction should be applied to that latter subsection. It is designed to ensure that the accused is in possession of the information which the copy documents sent to the judge by the Scottish Ministers were intended to convey to him, in much the same way as a citation in a summary criminal case: see Kirkcudbright Scallop Gear Ltd -v- Walkingshaw, 1994 SLT 1323. It is not the nature or extent of the defect which is important; it is whether the accused knows the information contained in the Ministerial Certificate. The copy arrest warrant given to the accused under section 72(2) of the 2003 Act gave him such information as would suggest that the extradition request was valid and made in the approved way; and when he appeared on 10 September 2004 it is not suggested that section 72(7) was not complied with. If indeed the accused was served with a Ministerial Certificate relating to his wife, he did not say so on the day of service; and he has taken over a year to say so. He or his legal representatives might reasonably have been expected to make the point at the earliest possible opportunity. While I accept that a decision on whether section 78(4)(c) has been complied with can only be made at the "extradition hearing", that point in the process can fairly be equiperated with a summary criminal trial in domestic proceedings, by which point the time for objections to service has long passed.

[17] Nor do I think that there is any substance in the point that no copy documents are in fact attached to the Execution of Citation. The only matter to which section 78(4)(c) is directed is whether I am satisfied as to service of the necessary documents. I have already dealt with the Ministerial Certificate; Mr Bovey did not suggest that as for the other documents a copy of the extradition request and of the Order in Council had not been served and that is the end of the matter; what is or is not attached to the Execution of Service in the circumstances of this case is neither here nor there.

[18] According to the extradition request, the accused is alleged to have committed the five crimes set out in the copy Charge Sheet found in Annexure "B". The first two charges ("charges 1 and 2") are both of fraud, or alternatively theft, while the remaining three ("charges 3, 4 and 5") are each of theft. On behalf of the Lord Advocate, Mr Dickson submitted that each of these was an "extradition offence" within the meaning of section 78(4)(b) of the 2003 Act. I was referred to section 137(2) which, in relation to alleged conduct constituting an offence, provides:

"137 (2) The conduct constitutes an extradition offence in relation to the category 2 territory if these conditions are satisfied:-

[19] Mr Dickson submitted under reference to the interpretation provisions of section 137(1) and 137(2) that it was clear an indictment had been drawn up by the South African authorities relating to alleged conduct in South Africa by the accused; and it was equally clear, having regard also to the information in the request about the substantive law and the applicable penalties, that the conduct alleged would constitute offence(s) under the law of Scotland rendering the accused liable to imprisonment for 12 months or more. Further, since South Africa had been designated for the purposes of section 84(7), section 84(1) had no application and there was no requirement for me to consider any question of sufficiency of evidence.

[20] On behalf of the accused, Mr Bovey submitted that the 2003 Act had no application to offences committed prior to its commencement on 1 January 2004; since all the alleged crimes had been committed in 1995/1996 none of them could, on any view, be an "extradition offence". Mr Bovey observed that section 137 was entirely silent as to whether the reference to "conduct" which constituted an extradition offence in relation to a category 2 territory was a reference to "conduct" which has to occur after the Act came into force. He suggested that nothing in Part 2 of the Act was inconsistent with limiting its provisions to post-commencement conduct. The Extradition Act 1989 ("the 1989 Act") had been wholly repealed, but there was nothing in the 2003 Act about its continuance in force for certain purposes. It would have been open to Parliament to provide in the 2003 Act for the 1989 Act to continue in force in respect of crimes alleged committed prior to 1 January 2004, but this had not been done. Instead, all that had happened was that paragraph 2 of the Extradition Act 2003 (Commencement and Savings)(Amendment No 2) Order 2003 (S.I. 2003 No. 3312) had replaced an earlier provision on commencement and had made it clear that the Act did not apply to any case where an extradition request was received on or before 31 December 2003. Unlike the 1989 Act which was a consolidating statute, the 2003 Act made entirely new provision on extradition and the general rule against retrospectivity applied.

[21] I was referred by Mr Bovey to R -v- Secretary of State for the Home Department, ex parte Hill, [1999] QB 886 in which an argument suggesting the non-retrospective nature of the 1989 Act was rejected (he said) on the sole ground that it was a consolidating Statute and therefore was presumed not to change the law. But where (as here) the law was changed, it was inherent in the principle of legality that in the absence of express language or necessary implication to the contrary, the Courts would presume that even the most general words in a statutory provision were intended to be subject to the basic rights of the individual: see the dicta of Lord Hoffmann in R -v- Secretary of State for the Home Department, ex parte Simms, [2000] 2 AC 115 at 131. Here, the change in the law had practical consequences for the accused. Whereas under section 7(2)(b) of the 1989 Act there had been a requirement of evidence sufficient to justify the issue of a warrant for arrest, there was no such requirement under section 84 of the 2003 Act. Similarly, section 8(3) of the 1989 Act had required evidence for arrest while sections 71(4) and 73(5) of the 2003 Act disapplied the requirements for evidence in relation to warrants and provisional warrants. Finally, section 12 of the 1989 Act had given the Ministers a discretion whether to order return, a discretion which no longer existed under the 2003 Act. Accordingly, the basic rights of the accused had to be taken into account when construing the provisions of the 2003 Act. This was particularly important considering the limited jurisdiction which the Sheriff enjoyed under the 2003 Act. It was for the requesting state to make its case; doubts or ambiguities of fact or law should not be resolved in favour of the country seeking extradition: De Bruyn -v- Republic of South Africa (Federal Court of Australia) 29 September 1999, Judgment of Mr Justice Gyles at para 28.

[22] The matter of the retrospectivity of statutory provisions had been explored fully by the House of Lords in Wilson -v- First County Trust Ltd (No 2) [2004] 1 AC 816. The true principle was that Parliament was presumed not to have intended to alter the law applicable to past events and transactions in a manner which was unfair to those concerned in them, unless a contrary intention appeared: see Lord Nicholls of Birkenhead at para 19 and the discussion by Lord Rodger of Earlsferry at paras 186 and 199-202. In the latter paragraphs it was suggested that the criteria of fairness might even apply in the consideration of the retrospective effect of procedural statutes. I was also referred to the observations on fairness by Baroness Hale in Flynn -v- HMA, 2004 PC 1 at paragraph 98 and to Boddington -v- British Transport Police [1999] 2 AC 143 as authority for the proposition that I was not constrained by any statutory instrument from considering the effect of the 2003 Act in the present case.

[23] In my view, the submissions by Mr Bovey on this point are without merit. The effect of sustaining them would lead to an absurd conclusion. It would mean that when enacting the 2003 Act Parliament deliberately created a lacuna in the law of extradition, providing no means by which a person who committed an extradition crime within a designated territory before 1 January 2004 could ever be extradited after that date from this country to such a territory unless the relative extradition request was received by 31 December 2003. In the latter eventuality extradition would still be competent under the provisions of the Extradition Act 1989, but that statute was wholly repealed by the 2003 Act. I think it is clear that Parliament was alert to the problem of old cases and legislated in the way which it did in order to prevent a prolonged period when extradition cases might be litigated under separate procedures depending on the date of the alleged offences. By fixing the punctum temporis as the date of the extradition request, I think that Parliament made express provision that the 1989 Act procedures were to be used only where the extradition request was received before 31 December 2003; and this provision implied that if the request was not received until after 1 January 2004, the new procedures were to be used. I cannot accept that Parliament intended that if no such timeous request was received, all old cases would suddenly fall into a black hole at midnight on 31 December 2003. I think that R -v- Secretary of State for the Home Department, ex parte Hill, op. cit. is fatal to Mr Bovey's contention; in my view the definition of "conduct" in section 137(1) and (2) of the 2003 Act relates to conduct which is alleged to have occurred whether before or after the Act came into force. Nor do I see anything unfair in such a construction; on the contrary, it would be most unfair to construe those subsections as excluding from the ambit of extradition crimes as defined in the 2003 Act all those crimes committed in designated territories before 31 December 2003 for which no extradition request had been received by that date. Not only would such a construction be manifestly absurd; it would be contrary to the public interest in the prosecution of offenders and it would ignore the new protections which the 2003 Act affords in relation to those whose extradition is requested thereunder, principally in relation to the passage of time. This was of course an issue under the 1989 Act, but it is now given a further emphasis. The obligations of the UK to protect the human rights of an accused person are triggered by section 87, providing a different context for considering the chronology of events which have occurred since the alleged crimes were committed. In my view all these considerations combine to negate any suggestions of unfairness in construing the 2003 Act as if it did not apply in this case.

[24] For all these reasons I will reject this particular argument that the crimes alleged to have been committed by the accused in South Africa in 1995 and 1996 are not "extradition offences".

[25] On behalf of the accused a subsidiary argument was presented on the import of the term "extradition offence" as it related to the terms of charges set out in the South African "Charge Sheet" reproduced at pp. 47-55 of the request. It was suggested that unless I was satisfied beyond reasonable doubt that each of the charges against the accused came within the description of "extradition offence", I would be bound to answer the question in section 78(4)(b) of the 2003 Act in the negative and, in terms of section 78(6) order his discharge.

[26] The argument here was that the description of the respective conduct giving rise to charges 3, 4 and 5 in the Charge Sheet would not constitute crimes under the law of Scotland. That description had to be considered not only by the court, but potentially also by the Scottish Ministers in the decisions which each has to make in the extradition process. As it was put by Thomas LJ in R (Castillo) -v- Kingdom of Spain and Another [2005] 1 WLR 1043 at para 25:-

[27] In the present case, said Mr Bovey, charge 3 was a charge of stealing a business overdraft extended by ABSA to a limited company of which the accused was a director, while charge 4 was a charge of stealing a personal overdraft. The explanation of these offences were to be found in the affidavits by Ms De Beer and Mr Kruger. The nature of these debts was not at all clear, but under the law of Scotland one could not steal an overdraft: Gordon, The Criminal Law of Scotland, 3rd ed (2001), para 14.31. As for charge 5, this related to the theft of a land cruiser covered by a finance agreement and again the matter was covered to some extent in Mr Kruger's affidavit. But in the document reproduced on page 115 of the request it was not said that this land cruiser belonged to anyone other than the accused. The agreement suggested that the vehicle was normally kept at his house. In the present case there was no information regarding ownership. It was not an offence to keep a vehicle where it was normally kept, nor was it a criminal offence to take it abroad. According to Mr Bovey I could not decide that the requirements of section 78(4) had been met in relation only to some of the offences in the Charge Sheet; if some of the offences were not "extradition offences" then that was the end of the matter; it was effectively "all or nothing".

[28] I reject this contention for the reasons advanced by Mr Dickson on behalf of the Lord Advocate. What is important is not the nomen juris attached to the description of the conduct, but the description itself. By virtue of paragraph 2 of schedule 3 to the Criminal Procedure (Scotland) Act 1995 it is provided:-

[29] I am quite satisfied that the conduct alleged in charges 3 and 4 (said to be theft under the law of South Africa) would be criminal under the law of Scotland. It is alleged in each charge that the accused absconded from South Africa and in so doing "unlawfully and intentionally" stole the outstanding amounts of the respective overdrafts "..... the property of, or in the lawful possession of, ABSA". In Scots law this would give rise to an allegation of embezzlement, on the basis that by absconding, the accused had displayed dishonest intention to appropriate funds which he might otherwise lawfully use. I was referred to Guild -v- Lees 1995 SLT 68. Likewise in respect of charge 5, if a person intentionally absconds with property subject to a finance agreement and appropriates it with no intention of repayment, he clearly commits theft under Scots Law. In any event, I agree with Mr Dickson that looking at the whole conduct alleged in charges 1-5 inclusive, this could easily be subsumed in one charge under Scots law; it might conveniently be libelled as a course of fraudulent conduct against a bank, in five particular respects.

[30] Moving now to section 79 of the 2003 Act I am required to consider whether there are any bars to extradition. Although four such bars are mentioned in section 79(1), the only one which was founded on by the accused was in relation to the passage of time under section 82. This provides (so far as applicable to the present case):

[31] When dealing with the terms "unjust" and "oppressive" Lord Diplock observed in Kakis -v- Government of the Republic of Cyprus [1978] 1 WLR at 782-783 as follows:-

"Unjust" I regard as directed primarily to the risk of prejudice to the accused in the conduct of the trial itself, "oppressive" as directed to hardship to the accused resulting from changes in his circumstances that have occurred during the period to be taken into consideration; but there is room for overlapping, and between them they would cover all cases where to return him would not be fair. Delay in the commencement or conduct of extradition proceedings which is brought about by the accused himself by fleeing the country, concealing his whereabouts or evading arrest cannot, in my view, be relied upon as a ground for holding it to be either unjust or oppressive to return him. Any difficulties that he may encounter in the conduct of his defence in consequence of the delay due to such causes are of his own choice and making. Save in the most exceptional circumstances it would be neither unjust nor oppressive that he should be required to accept them.

As respects delay which is not brought about by the acts of the accused himself, however, the question of where responsibility lies for the delay is not generally relevant. What matters is not so much the cause of such delay as its effect; or, rather, the effects of those events which would not have happened before the trial of the accused if it had taken place with ordinary promptitude. So where the application for discharge under section 8(3) [of the Fugitive Offenders Act 1967] is based upon the "passage of time" under paragraph (b) and not on absence of good faith under paragraph (c), the Court is not normally concerned with what could be an invidious task of considering whether mere inaction of the requisitioning government or its prosecuting authorities which resulted in delay was blameworthy or otherwise."

[32] These dicta, pronounced as they were in the House of Lords, are of course of high authority and were applied in Scotland in Triplis, Petitioner, 1998 SLT 186. They led to a number of submissions before me on elements of prejudice and hardship. I now summarise what was said on both sides of the Bar.

[33] Mr Bovey submitted that as a result of the delay changes in the law had taken place both in the UK and in South Africa, with results adverse to the accused. In relation to the UK, the delay from 1996 onwards until the extradition request was made in May 2004 had allowed the 2003 Act to come into effect on 1 January 2004, with the loss of the consequent protections and safeguards that previously existed under the 1989 Act. In particular, because of the terms of the order designating South Africa as a category 2 territory, section 84(7) of the 2003 Act disapplied section 84(1) with the result that unlike the position under the previous law, there was now no requirement for the Sheriff to be satisfied as to evidential sufficiency. In contrast, section 7(2)(b) of the 1989 Act required the Court dealing with an extradition request from abroad to have evidence sufficient to justify the issue of a warrant to arrest. Likewise, the requirements for evidence in relation to warrants was disapplied under section 71(4) and 73(5) of the 2003 Act, compared to section 8(3) of the 1989 Act. Finally, section 12 of the 1989 Act gave the Ministers a discretion whether to order return. This no longer existed under the 2003 Act. In relation to South Africa, the delay had allowed for South African minimum sentence legislation to come into effect on 1 May 1998 with the associated inflation in prison sentences for offences including those charged in the present case. This much was clear from the first affidavit by Charin de Beer and the Judicial Inspectorate report for 2004/2005. Finally, the delay had allowed for new law restricting parole in cases such as that of the accused to come into effect in South Africa on 1 October 2004.

[34] For the Lord Advocate, Mr Dickson submitted that the changes in the UK law of extradition might be regarded as advantageous to the accused, rather than the opposite, especially since an opportunity now arose to refuse extradition on human rights grounds. As for the South African criminal justice system, he observed that the accused had lived in South Africa for some years prior to 1996 and must be taken to have had some general knowledge of then-current criminal justice system. If he had stayed in South Africa, the sentencing regime might have been less severe in the event of a conviction.

[35] Mr Bovey next submitted that the accused would be prejudiced in the presentation of his defence if he were to be extradited and put on trial in South Africa. Since he left South Africa in 1996, five of his potential defence witnesses had died. A witness by the name of Cinero, who had bought the accused's house in South Africa and was also the seller of the land cruiser referred to in charge 5, had died in 2000. He had also been involved in the transactions covered by some of the other charges. In the same year another defence witness Lewis Lawrence had died; he was aware of the contracts underlying the alleged fraud and would be able to speak to the good faith of the accused. The accused's mother had died in 2001; her evidence would have been relevant to the question of flight. Finally, another business colleague from the UK, Norman Winton, had died in 2002; he had been responsible for the invoice issued for certain machinery mentioned in the fraud charges. None of these potential witnesses had given statements to the defence prior to their deaths, for as at those respective dates there were no criminal proceedings pending against the accused.

[36] Mr Dickson replied that no affidavits had been produced on behalf of the accused to prove that the four defence witnesses who had conducted business relations with the accused had in fact become deceased. I could not therefore be satisfied as to the weight of the information. Mr Dickson drew attention to the fact that there were extensive documents produced in the extradition request. The accused was fully aware of the case against him and would be able to formulate his defence. Indeed, any trial would depend largely on documents and the interpretations to be put on them, rather than on the evidence of eye-witnesses. The accused himself had already produced various documents in the current proceedings; any alleged prejudice to the accused in the conduct of his defence was of little weight.

[37] Mr Bovey further submitted that this case was quite unlike Kakis, supra, in which it had been suggested that the person concerned had fled the country. Nothing in the material now available suggested that the accused had in fact been a fugitive from South Africa. Although his whereabouts were not immediately known, he soon indulged in litigation, both in South Africa and in Jersey. In these circumstances no period of time between March 1996 (the date of the last alleged offence) and the present day should be left out of account in assessing the delay.

[38] In response the broad submission for the Lord Advocate was that the accused was indeed a fugitive from the date he left South Africa. Whatever might be the state of knowledge of his whereabouts on the part of ABSA, his Trustees or the South African authorities, the accused had deliberately sought to frustrate the prosecution of the criminal charges against him from 1996 till at least October 2000 or March 2001, by which latter point the authorities knew of his whereabouts. He had evaded justice until then. Accordingly for the purposes of section 82 of the 2003 Act in assessing delay, time had not started to run until those dates.

[39] Mr Bovey founded on the proposition that the State authorities in South Africa were largely responsible for the delay and that this was an important factor to be taken into account when assessing whether it would be unjust or oppressive to order extradition. It was clearly appropriate to take it into account in view of the remarks by Lord Justice Woolf (as he then was) in R -v- Governor of Brixton Prison, ex parte Osman (No 4 [1992] 1 All ER 579. Commenting on the passage from Kakis by Lord Diplock referred to supra, Lord Justice Woolf stated:-

[40] Mr Bovey submitted that in the present case the accused, unlike Osman, had not engaged in a war of attrition with the State authorities. The history of the Osman litigation was one of perpetual applications, appeals and other legal proceedings. By contrast, in the present case the accused had defended in moderate terms the current extradition application and had contested the civil processes against him in both South Africa and Jersey. In spite of this, the South African authorities had made no moves (until recent years) to extradite him, far less investigate the criminal charges against him in any meaningful way. Even if the accused was extradited now, any trial of the charges in South Africa would not take place for some months and possibly longer. In these circumstances there was a considerable degree of culpability on the part of the State.

[41] For the Lord Advocate, Mr Dickson resisted this submission under reference to the chronology of events and the material in the various affidavits. He submitted that although the procedure had taken some time, and could clearly be criticised in some respects, looked at overall there was no delay which would cause actual prejudice or oppression. This was really a question of fact: HM Advocate -v- Leslie, Edinburgh High Court, 31 January 1984, unreported but referred to in the Commentary to Tudhope -v- McCarthy 1985 SCCR 76 at 81-84.

[42] In deciding whether the extradition of the accused is barred under section 82 of the 2003 Act, logically the first question to be answered is whether any of the period between March 1996 and the present day should be left out of account. Unlike the petitioner in Triplis, op cit, the accused in this case was not subject to criminal proceedings in the requesting State prior to his departure. In Triplis the petitioner eventually admitted that he left Greece after he had been detained in relation to the charges and after he had been released on condition that he report to his local police, whereas in the present case the accused left South Africa about a month before a warrant was issued for his arrest. But while it cannot be said that the accused fled South Africa to avoid current criminal proceedings, there is material before me in the affidavit of Henoch Kruger of ABSA, the related documents and the affidavit of A L Mostert which is clearly capable of supporting the inference that the accused knew that he had defrauded the bank, carefully prepared his departure and left South Africa on 16 April 1996 leaving a string of debts and many questions unanswered. However, it is not as if he simply disappeared thereafter, for he engaged in protracted litigation in Jersey in the defence of civil proceedings brought against him, instructing lawyers to represent him throughout. These proceedings were commenced in the summer of 1996; and it is clear that the accused had instructed Jersey solicitors by July of that year. He also seems to have taken at least some initial steps to oppose his sequestration, although his Trustees later complained of his failure to co-operate with him. Crucially, after the acceptance in 1998 by the Court of Session of the Letters of Request, he was made the subject of a public examination in Scotland at the instance of his Trustees, involving two hearings both attended by ABSA's South African lawyer A L Mostert: see his Affidavit paras 17 and 18. Although he never returned to South Africa, the accused cannot generally be regarded as a fugitive from justice, with all the malign connotations of that term. I do not think that someone who strenuously opposes civil proceedings in one State, even if he knows of the existence of a warrant for his arrest in another State and the related possibility of extradition, can truly be said to be "concealing his whereabouts" or "evading arrest" in the sense portrayed by Lord Diplock in the dicta quoted from Kakis, op cit. A fugitive is someone who renders himself untraceable by reasonable means of inquiry, whether by changing his identity, his appearance, actively moving from place to place, failing to put down roots or otherwise. Nor is there material before me to support Mr Dickson's contention that the actions of the accused have delayed the commencement of the extradition proceedings, which are the type of proceedings to which Lord Diplock referred in Kakis. The accused may well have delayed the civil proceedings taken against him; and it is clear from the correspondence between his Jersey lawyers and those representing ABSA and his Trustees that he was alive to the possibility of extradition, but there is nothing to suggest that he delayed that matter. I deal later in more detail with the chronology and what was done, but as a matter of fact I do not think that anything done by the accused prevented the South African prosecuting authorities from proceeding to seek his extradition as soon as his whereabouts were discoverable. At this point and under reference only to this argument, I observe that extradition proceedings are not taken by the victims of crime; they are taken by the proper prosecuting authorities of the State in pursuance of a complaint of criminality. For these reasons I am not prepared to hold that any substantial part of the period from March 1996 until the present day is to be left out of account in assessing the passage of time for the purposes of section 82 of the 2003 Act.

[43] This then leads me to consider in more detail the events since March 1996 and whether any of them, individually or cumulatively, lead to the conclusion that, after a period of over 8 years, it would be unjust or oppressive to order the extradition of the accused. Dealing with the various points that were made, I do not regard the fact that the UK law of extradition has changed since 1996 is a factor of significance. Although both parties pointed to the effect of the changes which might respectively remove or give greater protection to a person whose extradition was sought, that exercise seemed to me to be very artificial. We are dealing with procedural statutes, not those which create or abolish offences, nor statutes of a substantive nature. Furthermore, the 2003 Act was an important contribution to the fight against international crime and a recognition of the strong public interest in preventing persons escaping from justice simply by moving from one State to another. But even if the changes are to be regarded as material, it seems to me that section 87 of the 2003 Act, which requires the Court to decide whether extradition would be contrary to Convention Rights within the meaning of the Human Rights Act 1998, is a powerful mechanism for the protection of the individual and one which is much wider than any provision of the 1989 Act. I think this is particularly true in relation to the Article 6 protections, one of which is the right to trial within a reasonable time. This is a matter which, under the 2003 Act, requires (if necessary) to be considered quite separately from the question whether extradition is barred by the passage of time under section 82 of the 2003 Act.

[44] As for the changes in the South African law regarding minimum sentences, I note from Ms De Beer's affidavit at paras 5.2 and 7.2 that South African Courts can impose sentences of lesser severity if satisfied that substantial and compelling circumstances exist; in that situation I cannot say with any confidence or certainty that if the accused were extradited to stand trial in South Africa he would inevitably receive on conviction a sentence more severe than that which would have been imposed if he had never left South Africa in 1996 and stood trial then. Questions of mitigation are for a sentencing judge who has heard all the circumstances; and the actual sentence to be imposed is a matter of discretion, for the minimum sentence legislation does not provide for a mandatory sentence. Further, page 16 of the Judicial Inspectorate Report 2004/2005 makes it clear that the minimum sentence legislation was regarded as an emergency measure only and had been extended to 30 April 2005; but no submissions were made to me as to whether it was continued in force beyond that latter date.

[45] Finally, as for the restrictions on parole, I note from p. 19 of the same Report that although changes to the parole regime did come into effect on 1 October 2004 affecting persons sentenced in terms of the minimum sentence legislation, the Inspectorate recommended the deletion of the provision that at least four fifths of the sentence be served. Again, I cannot say that there would be no change to the parole status of the accused, during the currency of any minimum term sentence he might receive. To assert otherwise would be to indulge in speculation.

[46] Dealing next with the argument that the accused, if extradited and put on trial, will not have the benefit of the evidence which might be given by various defence witnesses, I regard this as a factor of some weight. The difficulty of mounting an appropriate defence to charges of fraud and theft some nine years or more after the alleged offences cannot be left out of account, especially as South African law (like the law of Scotland) requires proof of fraudulent or dishonest intention: see Annexure A to the first Affidavit of Ms de Beer at pp 30 et seq. Mens rea would inevitably become an issue at any trial of the accused on the fraud charges, but it appears that potential defences witnesses on this issue have since died. I accept that no documentary proof of death has been produced to me, but even if all those witnesses were still alive, the passage of time since the events in question would still be bound to cause difficulty. Even if extradition is ordered by the end of 2005, any trial in South Africa is not likely to occur until some point in 2006 by which time it will be ten years since the last offence allegedly committed. If the accused had not left South Africa and had been arrested and tried in 1996/1997, then the recollections of the witnesses would be clearer as to the events which had allegedly occurred in recent memory. It is a well known phenomenon that after a lapse of time, the memories of witnesses will diminish and may not be adequately revived by reference to contemporaneous documents. I accept that this will also apply to witnesses called for the State of South Africa at any trial, but that is not a reason for brushing the matter aside. I have already held that no substantial period of time should be left out of account in assessing the passage of time; any witness difficulties which the accused might encounter and are therefore not of his own making. In those circumstances the case comes close to the borderline as to whether it would be unjust or oppressive to extradite the accused. I am satisfied that no other factor has that effect.

[47] Because of this, and in the light of the observations of Lord Justice Woolf in Osman, supra, I am required to address the question of culpability of the South African State authorities. Since it is axiomatic that an extradition request cannot be prepared until the proper authorities know where the accused is likely to be found, the date upon which those authorities became aware (or ought to have become aware) that the accused was living in Scotland is crucial. I think the earliest point at which they had actual knowledge of this was probably on 10 October 2000, when, according to para 3 of the affidavit from Gerrit Robertson dated 8 December 2004, A L Mostert on behalf of ABSA requested the DPP's office to consider extradition. I accept Mr Dickson's submission that Mr Mostert had probably known the whereabouts of the accused since the summer of 1996 and certainly by 1998. But there is no indication in the papers before me that Mr Mostert communicated this knowledge to the DPP's office at that time, either of his own volition or in response to any request for information from the South African police or DPP.

[48] Since Mr Mostert was acting for the victims of the alleged crimes (ABSA) it might reasonably be thought that he should have shared his knowledge with the police much earlier, so that enquiries in Scotland might be made and an extradition request prepared. It is unfortunate that in paragraph 5 of his affidavit he does not specify the date(s) on which he claims to have kept the prosecuting authority advised of the whereabouts of the accused, but it is conceded on behalf of the Lord Advocate that he did not do so until 10 October 2000 at the earliest.

[49] As for the police, I note that a warrant for the arrest of the accused had been issued as early as May 1996. In this regard the issue of a warrant indicates to me a certain level of evidential sufficiency, but nothing seems to have been done to follow it up. The only explanation given on page 2 of the second affidavit from Gerrit Roberts seems to be that the matter was being investigated as a "Reserve Bank offence"; that FOREX offences were ".... a politically contentious issue at that time ....." and that ".....the matter was not prioritised with an accused outside South Africa". But since the police knew at least by Spring 1996 that Mr Mostert was acting for the Bank and that the latter must have been aware of what steps were being taken in the civil courts to recover the monies allegedly defrauded, I am surprised (to say the least) that the police appear to have taken no steps to enquire directly of Mr Mostert as to the whereabouts of the accused. They do not seem to have done so by April 1998 when apparently they saw some insolvency documents which did not disclose the address of the accused. The police thereupon provisionally closed the docket "as accused untraceable". This is in stark contrast to the information contained in the last paragraph of Mr Mostert's affidavit where it is said that the police told him they were following (in particular) the enquiry held in Scotland as to the accused's involvement in the ABSA fraud. If the latter information is true then an address would have been forthcoming by the middle of 1998. Police enquiries could then have been made in response to any enquiry from the DPP and an extradition request prepared.

[50] A further clue to the whereabouts of the accused might have been gleaned from the "paper trail" which Mr Mostert established: see para 8 of his Affidavit. It appears from para 5.13 of Mr Kruger's Affidavit that among the documents recovered by him or Mr Mostert was an insurance valuation for the household goods which were shipped by the accused from South Africa to England and which were retrieved there and re-shipped to South Africa. This insurance document disclosed a delivery address at 10 Ashley Crescent, Dollar where it is now accepted that the accused resides. While I accept that a search of title documentation in 1996 might have revealed that the title to this property was held in the name of a limited company, the fact that household goods were being shipped there should at least have alerted someone with an enquiring mind to the possibility that it might be a private residence, as opposed to commercial premises. It appears that the bank made the appropriate enquiry, for Mr Mostert and Mr Kruger certainly seem to suggest that the discovery of this document was crucial in their attempts to trace the whereabouts of the accused. That enquiry might as easily have been made by the South African Police authorities, no doubt on an informal basis through the Scottish Police if necessary, or through tracing agents, if the South African police had been inclined to do so. It is no answer to the criticisms now made of them that the police or DPP did not know where to look, when it appears they did not ask. In these circumstances, although I accept the concession made on behalf of the Lord Advocate that the State authorities did not have actual knowledge of the accused's address until October 2000, I think they ought to have known that vital information by the summer of 1998 at the very latest and taken steps to follow this up. What makes their failure worse, however, is the concession by Gerrit Roberts that even if they had had the necessary information at that point, the matter would still not have been followed up, since cases such as the present were not prioritised with an accused outside South Africa. Nor do I accept the suggestion that because throughout that time the South African police had no dealings with Interpol, there was no means of checking the whereabouts of the accused. I find it hard to imagine that the Scottish police would have flatly refused an informal request for assistance; but even if they did, private inquiry agents could have been employed. Dollar is hardly a remote community.

[51] Even after October 2000, there has been further unsatisfactory delay. The chronology rehearsed in the "Headrick docket" reveals a lamentable lack of urgency. The period between January 2001 to January 2002 appears to have passed with nothing having been done by the police; and when the decision in principle to extradite was taken in November 2002, there were further delays due to staff shortages. While I accept that "pressure of business" is an inevitable feature of a criminal justice system and that cases require to be prioritised, I would have expected that in the autumn of 2000 the State authorities would have been alert to the fact that they were already dealing with an old case and have afforded greater time and resources to the matter. But no investigating police officer was appointed to pursue the matter and it was the legal staff of the DPP's office who ultimately finalised the investigation of ABSA's complaint by November 2002. It is apparent from the "Headrick docket" that by the latter date, the DPP's office was aware of "time constraints", but by August 2003 the extradition request had not yet been completed. It was not until January 2004 that the matter was passed into the hands of the South African Executive for onward transmission. While I accept that ABSA were not the only complainants regarding the accused's activities, there remains the fact that it was principally on a complaint from ABSA in the summer of 1996 that a warrant to arrest was issued. On this whole matter I am driven to the conclusion that the State authorities in South Africa must bear a considerable degree of culpability for what has happened since 1996.

[52] What the State authorities failed to do was to pursue at their own hand their allegations of criminality on the part of the accused. They were sufficiently satisfied in 1996 of the need for him to be arrested but thereafter their allegations were not pursued with appropriate diligence. I have come to the view that this extradition process was effectively being driven by ABSA's lawyer Mr Mostert, who appears to have acted also for the accused's Trustees in South Africa. The prime movers do not appear to have been the South African police or prosecuting authorities themselves. I found compelling evidence for this in the Affidavit by David Le Quesne dated 28 February 2005 and lodged on behalf of the accused. Mr Le Quesne acted as barrister for the accused in defence of the civil proceedings in Jersey. Attached to this Affidavit are copies of a number of items of correspondence between himself and those representing the Trustees in bankruptcy for the accused. Also significant is the Affidavit by Robert Fielding dated 23 February 2005 and also lodged on behalf of the accused. Mr Fielding acted as a barrister for another party to the Jersey proceedings and was well aware of the progress of that litigation. Both he and Mr Le Quesne testified in particular to the desire of the accused to settle those proceedings, provided that the settlement was of a global nature including the abandonment of any question of extradition. This issue was raised in the correspondence referred to; and although those representing the accused's Trustees clearly could give no guarantees on the matter, at various points they indicated a willingness to withdraw any complaints of criminality in the hope (and belief) that no extradition proceedings would be taken. I refer particularly to the letters of 20 July 2001 and 31 May 2002 from those representing the Trustees which clearly suggest that the latter were able to exercise some influence over the prosecuting authorities in South Africa. Indeed, it appears to have been only after the settlement negotiations appeared to be faltering that anything significant to pursue the criminal complaint through extradition was done by the State authorities. I refer to Mr Le Quesne's file note of 30 January 2003 as further evidence of what Mr Bovey described (rightly in my view) as an "unhealthy" proximity between the complainers (ABSA) and the State authorities. As I have said, it is not the function of a victim to pursue extradition requests; that is the function of the State authorities acting independently.

[53] In these circumstances I am satisfied that not only is the culpability of the State authorities established, but that the degree of culpability, taken along with the difficulties the accused will face in conducting his defence combine to create a situation of unfairness. I respectfully agree with Lord Diplock in the passage quoted from Kakis, supra, that to some extent the terms "unjust" and "oppressive" overlap, but the injustice or oppression must be caused by the passage of time: Union of India -v- Narang [1978] AC 247 per Lord Fraser of Tullybelton at 290. That is reflected in the words of section 82 of the 2003 Act.

[54] Conclusion

I hold that because of the passage of time, it would be unjust and oppressive to extradite the accused to South Africa. Such extradition is barred in terms of section 82 of the 2003 Act. I am not required to proceed further and, on the appearance of the accused today in terms of his bail order, I shall order his discharge.