Scottish Sheriff Court Decisions

In this case the Republic of South Africa requests the extradition of the Minuter, who has resided in Scotland for some years. It is alleged that in Johannesburg in around November 1995, March 1996 and April 1996 he committed the crimes of fraud and/or theft in respect of certain banking transactions. On 18 May 1996 a warrant was issued in Johannesburg for his arrest, but it transpired that the Minuter had left South Africa on 16 April 1996 and had travelled to the United Kingdom.

The request is made in terms of the Extradition Act 2003 ("the 2003 Act"), a statute passed by the Westminster Parliament and which came into force throughout the United Kingdom on 1 January 2004. The relative extradition procedure is governed by Part 2 of the 2003 Act, since South Africa has been designated as a "Part 2 territory" by virtue of para 2(1) of the Extradition Act 2003 (Designation of Part 2 Territories) Order 2003 (S.! 2003 No. 3334). Part 2 of the Act gives certain functions to the "Secretary of State"; but in relation to Scotland and by virtue of section 141(1) of the 2003 Act, references to the "Secretary of State" are (with limited exceptions) to be taken as references to the "Scottish Ministers". Extradition requests under Part 2 are dealt with by "the appropriate judge", an individual defined by section 139(1) of the 2003 Act as the "Sheriff of Lothian and Borders".

Although the extradition request related both to the Minuter and his wife, it was provisionally withdrawn by the South African authorities in respect of Mrs Headrick. The proceedings before me related to the Minuter alone. The request was dated 31 May 2004 and, following consideration, the Scottish Ministers certified on 4 August 2004 that in terms of section 70(1) of the 2003 Act the request was "valid" and had "been made in the approved way". On 6 August 2004 the Scottish Ministers, acting in terms of section 70(9) of the 2003 Act, transmitted the relative documents to this Court. Thereafter the Procurator Fiscal presented a petition to this court seeking a warrant to arrest the Minuter and on 1 September 2004 such a warrant was issued. This was duly executed and the Minuter first appeared on 10 September 2004. He refused to consent to his extradition and has maintained that refusal ever since. An extradition hearing was fixed and the Minuter was released on bail. The hearing was adjourned on several occasions to allow time for preparation; in due course a Devolution Issue Minute was lodged and lattfr amended; and ultimately this was argued before me on 17 and 18 August 2005, when counsel appeared on behalf of the Minuter. Counsel accepted (but expressly and only for the purposes of the debate) that the 2003 Act applied to the crimes for which extradition was sought. There was no appearance by or on behalf of the Advocate General; and although Mr Dickson appeared on behalf of the Lord Advocate, he made it clear that his appearance was strictly in terms of section 191(1) of the 2003 Act whereby the Lord Advocate must conduct any extradition proceedings in Scotland. I return later to the effect of this subsection.

The Minute (as subsequently amended) refers to various alleged breaches of Articles 2, 3, 6 and 18 (taken with Articles 5 and 8) of the European Convention on Human Rights ("the Convention"). Although this is only hinted at in the amended Minute, the contention for the Minuter, as it was developed in argument, was that the "act" of the Minister of Justice in issuing the certificate under section 70 of the 2003 Act et separatim the "acts" of the Lord Advocate in conducting the current proceedings were "acts" incompatible with these Convention rights and thus raised devolution issues under Schedule 6(1)(d) of the Scotland Act 1998. Although there is also reference in the amended Minute to Schedule 6(1)( e), no arguments were addressed to me on that subsection. But before dealing with the human rights points, I require to examine a crucial concession in law which was made by Mr Dickson on behalf of the Lord Advocate. This was to the effect that while there was no merit in any of the human rights arguments, the amended Minute did competently raise the devolution issue for which the Minuter contended.

Extradition is a "reserved" matter under the Scotland Act 1998: see Schedule 5, Part 11, para. B11. Further, under section 57(2) of that Act, it is provided that a member of the Scottish Executive has no power to do any act which is incompatible with any of the Convention Rights; but by virtue of section 57(3) that subsection does not app1.y to an act of the Lord Advocate either (a) in prosecuting any offence or (b) in his capacity as head of the systems of prosecution and investigation of deaths in Scotland which, because of section 6(2) of the Human Rights Act 1998 ("HRA") is not unlawful under section 6(1) thereof.

Sections 6(1) and (2) of HRA provide:

Clearly, both the Minister of Justice and the Lord Advocate are members of the Scottish Executive; and while the powers of both such Ministers are restricted by section 57(2) of the Scotland Act, the restrictions on the powers of the Lord Advocate will not apply if his acts come within section 57(3). Equally clearly, the Scottish Ministers and indeed the courts themselves are "public authorities" for the purposes of section 6(1) of HRA, although the application of section 6 to the Scottish Ministers is a complicated matter.

Finally, it should be noted in relation to extradition that section 87 of the 2003 Act provides additional statutory emphasis (in the circumstances of the present case) on the unlawfulness of the court acting incompatibly with a Convention right. If in the course of the current extradition proceedings the court decides that the formalities of the request are in order (section 78) and that there are no bars to extradition (section 79(1), then sections 79(4) and 84(7) apply and the court proceeds under section 87. This provides:

I understood Mr Dickson to concede that by signing the Ministerial certificate and transmitting the extradition request to this Court in terms of section 70 of the 2003 Act, the Minister of Justice had "acted" in a way which (if there was merit in any of the human rights points) was incompatible with the Minuter's Convention rights and that she thus had no power to do so under section 57(2) of the Scotland Act 1998. I note at the outset that section 70 of the 2003 Act is peremptory in its terms; if the Minister receives a valid request for extradition she must issue a certificate (section 70(1) and she must send the relative documents to the appropriate judge (section 70(9). She appears to have no discretion and in these circumstances (laying aside for the moment section 57(2) of the Scotland Act 1998), it appears that (1) as a result of the provisions of primary legislation she cannot act differently and (2) her actions are therefore lawful (see section 6(1) and (2) of HRA).

Turning then to the vires question, the issue is whether her actings are incompatible with the Minuter's Convention rights, assuming the court finds that breach(es) thereof are established. But all that she has done is to initiate a court process, something which is quite lawful and indeed obligatory if (as here) the extradition request is valid. Her said actings cannot, for example, be equiperated with the actings of the Lord Advocate in pursuing domestic criminal proceedings. He is "master of the instance" in criminal cases and exercises a discretion on whether to prosecute, where and how to do so, what evidence to lead and whether a prosecution, once commenced, should be withdrawn. The Minister of Justice enjoys no such discretion.

Although in criminal cases the issue of what constitutes an "act" of the Lord Advocate has been exhaustively litigated for the past six years, there has (unsurprisingly) been no equivalent examination of the position of the Minister of Justice in extradition proceedings under the 2003 Act. In my view the issue turns on a proper identification of the obligations of the State. I note the view of Lord Hope of Craighead in Montgomery -v- HM Advocate 2001 PC 1 at l8A-C that in relation to Article 6(1) of the Convention and the actings of the Lord Advocate, the question is whether that article imposes an obligation on the State which conflicts with, or is inconsistent with, the act of the Lord Advocate; and I note his view:

It may reasonably be thought that this observation would apply equally to other articles of the Convention. It points up the obligation of the State through its public authorities to observe human rights, something which may raise a vires question in respect of the actings of the Lord Advocate as public prosecutor in a criminal case, depending on what he decides in the exercise of his prosecutorial discretion. But extradition proceedings commenced under section 70 of the 2003 Act are not commenced by the Lord Advocate, who merely conducts them. The proceedings are commenced by the Minister of Justice, who then plays no further part in their determination until or unless the court, having proceeded to deal with all the matters I have outlined (including the making of a decision whether or not to discharge on human rights grounds the person whose extradition is sought) sends the case to the Ministers for their decision on whether he is to be extradited. Even if that stage is reached, that latter decision is severely circumscribed by section 93 of the 2003 Act. Thus, the obligation of the State to protect the human rights of a person whose extradition is sought is directly imposed on the court by section 87 of the 2003 Act; the Minister's "acts" under section 70, far from conflicting with the obligations of the State, directly trigger the performance of those obligations if and when the court comes to consider section 87. I cannot see that anything done by the Minister under section 70 of the 2003 Act gives rise either to a present or immediate incompatibility with the Minuter's Convention rights, nor that her actings will inevitably lead to an incompatibility in the future. The term "incompatible" has been held to mean simply "in conflict with": see R -v- HM Advocate, 2003 PC 21. Rather than doing anything in conflict with the Minuter's rights, the Minister has done all she can to ensure that they are observed, by invoking statutory procedures under the 2003 Act which, assuming the earlier tests are met, will culminate in the application by the court of Section 87.

For that reason, I am of the view that (contrary to Mr Dickson's concession) in proceeding under section 70 of the 2003 Act, the Minister of Justice acted within her powers. She did not act ultra vires. In respect of her actings no devolution issue has so far arisen, nor will it arise in future, whatever view might be taken of the human rights points.

I understood Mr Dickson to concede that if there was merit in any of the human rights points, the Lord Advocate would, by conducting these proceedings, be acting incompatibly with the Minuter's Convention rights and that he would have no power to do so under section 57(2) of the Scotland Act 1998. Mr Dickson further conceded that section 57(3) had no application to the present case, since in extradition proceedings the Lord Advocate was neither prosecuting an offence nor acting in his capacity as head of the system of criminal prosecution in Scotland. All that the Lord Advocate was doing, said Mr Dickson, was carrying out his statutory duty under section 191(1) of the 2003 Act by conducting the extradition proceedings. By so doing, he was not acting in any capacity which might be akin to that of "the Crown", as that description applies to domestic criminal proceedings. In the result, section 6(2) of HRA had no significance when considering the power of the Lord Advocate to do acts which might (or might not) be incompatible with Convention rights.

Mr Dickson did not flinch from the consequences of this concession which, he told me, had been agreed upon following high-level discussions in the Crown Office. He accepted that, in spite of section 87 of the 2003 Act, issues of human rights which arose in extradition proceedings in Scotland required to be litigated as devolution issues. Indeed, they might have to be litigated twice. If the court held (in the context of a devolution issue) that the human rights points were without merit, the person whose extradition was sought could nonetheless litigate them again under section 87.

I fundamentally disagree with this approach. Apart from other considerations such as delay, it might result in two different sheriffs taking different views of the same points and opening up different avenues of appeal, the devolution issue perhaps reaching as far as the Judicial Committee of the Privy Council, while an appeal under the 2003 Act based on a decision made under section 87 could go no further than the High Court of Justiciary. I now set out the reasons why I think this will not do.

Inherent in Mr Dickson's concession on the competency of the devolution issue in respect of the actings of the Lord Advocate is the proposition that the Lord Advocate is a member of the Scottish Executive, for it is only in respect of such members that the extent of their powers may be in issue under section 57(2) of the Scotland Act 1998. But while it is true that under section 44(1) thereof the Lord Advocate is a member of the Executive, I do not think his mere membership thereof can be divorced from a consideration of his functions under the Act.

Prior to devolution, the Lord Advocate was a Minister of the Crown; but on devolution a transfer of functions took place to all the new Scottish Ministers, including the Lord Advocate, who thereupon ceased to be a Minister of the Crown. The authority for conferring functions on the Scottish Ministers "by that name" is to be found in section 52(1) of the Scotland Act 1998, but their collective responsibility does not apply in the exercise of "retained functions" of the Lord Advocate (section 52(4) and(5)) Although there has been a general transfer of functions under section 53(1), but only insofar as they are exercisable within devolved competence, it is provided by virtue of section 53(2) that certain "retained functions" of the Lord Advocate were not transferred.

The definition of the term "retained functions" is to be found in sections 52(6) and (7) as follows:

It therefore seems to me that if section 191(1) of the 2003 Act has the meaning ascribed to it by Mr Dickson, and that the Lord Advocate is acting merely as someone upon whom a statutory function has been conferred by the 2003 Act, then he is not acting in his capacity as a member of the Scottish Executive. Not only is his function "statutory" and "retained" by virtue of section 52(6) and (7) supra, it is conferred on him alone by section 191 (1) of the 2003 Act. Although provision is made by section 63 for the transfer to Scottish Ministers of additional functions by Order in Council, I have been unable to discover any such Order in relation to proceedings under the Extradition Act 2003. A limited transfer of functions to the Scottish Ministers was made in respect of Extradition Act 1989, but that Act was repealed by the 2003 Act. In any event, standing the explicit terms of section 191 of the 2003 Act, it would appear to have been unnecessary to have made separate provision for any transfer of functions to the Lord Advocate.

In the result, the function of the Lord Advocate in conducting these proceedings has nothing to do with his membership of the Scottish Executive; the Westminster Parliament has given him (and no-one else) a "retained" function. It is not his "membership" per se which gives him any functions. The Lord Advocate has many functions, but his functions as a member of the Scottish Executive depend either on the provisions of the Scotland Act 1998 (which created that Executive as an entirely new statutory body with its members enjoying related statutory functions) or they depend on other statutory provisions which make it clear that when the Lord Advocate "acts", he "acts" as a member. Section 191 of the 2003 Act says nothing about his membership of anything, nor does it even describe him as a "Scottish Minister". He is merely a statutory functionary. Contrary to Mr Dickson's concession, I think that on this ground alone section 57(2) of the Scotland Act 1998 has no application; and no devolution issue arises.

But if I am wrong on this and that section 57(2) does apply, then I require to consider another implication ofMr Dickson's concession as it concerns the position of the Lord Advocate.

A number of separate provisions of the 2003 Act appear to make it clear that the current extradition proceedings are criminal in nature. Section 77(2) provides (in part) as follows:

That the proceedings are criminal in nature is also evident from sections 71-74 which deal with warrants to arrest and the availability of bail; section 103 which (when read with the interpretation provision in section 216(9)) provides for an appeal to the High Court of Justiciary against a decision by the appropriate judge to send the case to the Scottish Ministers for their decision on whether the person is to be extradited; section 183, which applies the relevant provisions of the Legal Aid (Scotland) Act 1986 to extradition proceedings under Part 2 of the 2003 Act in the same way as they apply to summary proceedings; section 197 which relates to remands in custody; section 199 which again relates to bail; and section 206(1) and (2) which require that questions as to the burden or standard of proof which arise in proceedings under the 2003 Act are to be decided by applying any enactment or rule of law that would apply if the proceedings were proceedings for an offence.

Particularly of note are section 206(3), which provides that any enactment or rule of law applied under section 206(2) must be applied as if "(a) the person whose extradition is sought......were accused of an offence; and (b) the......Category 2 territory concerned were the prosecution"; and section 210 which provides that Rules of Court under the 2003 Act are to be made by Act of Adjournal. This has already occurred: see the recently-revised Chapter 34 of the Act of Adjournal (Criminal Procedure Rules) 1996. I also note that it has been accepted without argument in the present case that the Devolution Issue Minute should proceed under Chapter 40 of those Rules.

In the light of all these provisions I find it impossible to accept the contention on behalf of the Lord Advocate that in conducting these proceedings under section 191 of the 2003 Act he is not conducting proceedings in terms of section 57(3)(b) of the Scotland Act 1998 in his capacity as head of the system of criminal prosecution in Scotland. The original Petition for the arrest of the Minuter (following the court's receipt of the section 70 request in this case) was presented to Sheriff Allan by the Procurator Fiscal for Edinburgh, who designed himself therein as "Procurator Fiscal of the Court for the Public Interest". Apart from limited exceptions in the case of private prosecution by way of Bill of Criminal Letters, or in the case of statutory rights to prosecute for certain statutory offences, no-one can conduct criminal proceedings against an individual in Scotland except the public prosecutor. While it is true that extradition proceedings are not conducted "at the instance of' or "in the name of" or "on behalf of' the Lord Advocate, I think they are nonetheless criminal proceedings. I note in passing that for England and Wales specific provision is made in the 2003 Act in relation to the conduct of "extradition proceedings" in contrast to "criminal proceedings": see section 190 (4) and (6); and similar specific provision is made for Northern Ireland: see section 192(2),(3),(7) and (8). But whatever the effect of these distinctions may be as they apply in other parts of the United Kingdom, no such distinction is made for Scotland in section 191. It is implicit in the "conduct" of criminal proceedings that the State conducts them against the individual; and the Officer of State who does so is the Lord Advocate.

In these circumstances I do not think there is any merit in Mr Dickson's concession that section 57(3)(b) of the Scotland Act 1998 has no application to the present case.

Esto the Lord Advocate is conducting these proceedings as a member of the Scottish Executive and esto the proceedings are criminal, then the Lord Advocate must be doing so in his capacity as head of the prosecution service in Scotland. He then neatly falls within the exception set out in section 57(3); his actings are not unlawful under section 6(1) of the HRA because in terms of section 6(2) he cannot decline to conduct the extradition proceedings; on the contrary, he is obliged by section 191 of the 2003 Act to conduct them; he cannot act differently. On this reasoning there is no devolution issue in this case.

The concession made on behalf of the Lord Advocate has caused me great difficulty. At the commencement of the hearing I asked to be addressed on the competency of the devolution issue Minute and heard brief argument from both sides. Both clearly agreed that the concession was appropriate and on that basis I proceeded to hear full argument on the human rights issues.

But I do not think the court is bound by a concession in law with which it profoundly disagrees. The position is different in respect of a concession in fact. It is pars judicis to notice any unidentified or unp1eaded incompetency or irrelevancy and to act accordingly. I shall therefore hold that no devolution issue arises.

At the hearing before me I did not understand the Minuter to found on any alleged breach of Article 2 of the Convention, but each of the other Articles referred to in the Minute were examined. I propose to reserve my opinion on all these issues meantime. In my view, whatever merits they mayor may not have, I perceive it as my duty under the 2003 Act to determine human rights points only under section 87, if that stage is reached. To do otherwise would be to sanction a procedure which might lead (among other things) to a very unfortunate difference in the approach to human rights points in the conduct of extradition proceedings as between different parts of the United Kingdom. It seems to me that it was the clear intention of the legislature that only the "appropriate judge" should determine human rights points and that he should do so if only once and only under section 87. If Westminster had wished to provide otherwise, it would no doubt have said so.

I shall dismiss the Minute now and continue the case until the extradition hearing set for 14 September 2005. In view of the importance of the issues I have discussed, I shall ordain the Sheriff Clerk to intimate a copy of this judgment forthwith to the Advocate General, for whatever interest she may have.

This case is yet another example of litigation which raises human rights points but which is bedevilled by the continuance in force of section 57(2) of the Scotland Act 1998 and its relationship with section 6 of HRA. I concur wholeheartedly with the view that section 57(2) has no further place on the statute book, a view which has been repeatedly advanced in a number of different quarters.