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Scottish Sheriff Court Decisions
You are here: BAILII >> Databases >> Scottish Sheriff Court Decisions >> Goatley, Re European Arrest Warrant [2006] ScotSC 24 (28 March 2006)
URL: http://www.bailii.org/scot/cases/ScotSC/2006/24.html
Cite as: [2006] ScotSC 24
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SHERIFFDOM OF LOTHIAN AND BORDERS AT
UNDER THE EXTRADITION ACT 2003
JUDGEMENT
by
JOHN DOUGLAS ALLAN, Sheriff of Lothian and
Borders at
in
EUROPEAN ARREST WARRANT
in respect of
STEPHEN MAURICE GOATLEY,
(DOB: 10.8.51)
who sometime resided at 26a
at present a prisoner in the Prison of
___________________________
Act: Dickson,
Procurator Fiscal Depute, instructed by The Lord Advocate
Alt:
The Sheriff, having resumed consideration of the cause and having, in terms of the Extradition Act, 2003, decided;
That Stephen Maurice Goatley, born 10 August 1951, is the person in respect of whom a Part 1 warrant has been issued by the Netherlands (section 10(1);
that the offence specified in the Part 1 warrant is an extradition offence (section 10(2));
that the extradition of Stephen Maurice Goatley to the Netherlands, being a category 1 territory, is not barred by reason of any of the circumstances set out in section 11(1)(a) to (h) of said Act (section 11(1));
since Stephen Maurice Goatley was alleged to be unlawfully at large after conviction of the extradition offence, that he was not convicted in his presence and that he deliberately absented himself from his trial (section 20(1) and (3));
that his extradition would be compatible with the Convention rights within the meaning of the Human Rights Act 1998 (section 21(1);
Therefore, in terms of section
21(3) of the Extradition Act, 2003, Orders Stephen Maurice Goatley to be
extradited to the
"J Douglas Allan."
NOTE BY SHERIFF J DOUGLAS ALLAN
Validity of European Arrest Warrant
1. On
a. that the present warrant was signed by a prosecutor and not by judicial authority, did not comply with the requirements of section 2 (1) of the Extradition Act 2003 (the 2003 Act), and was therefore not a valid Part 1 warrant, and so Mr Goatley should be discharged;
b(i). the purpose of Part 1 of the 2003 Act was to implement the Council Framework Decision,
b(ii) .this required that a warrant be issued by a judicial authority,
b(iii). the present warrant was issued by a prosecutor and not by a judicial authority,
b(iv). and the warrant was accordingly invalid.
These were said to be two ways of putting the same point, one statutory and the other in terms of the Act implementing the Framework Decision.
2. I heard submissions from Mr Bovey on behalf of Mr Goatley and from Mr Dickson on behalf of the Lord Advocate. I reviewed and studied each of the submissions, and I studied the Judgments and Opinions in the cases to which I was referred.
In the result, I was persuaded by the submissions made by Mr Dickson and, where they were in conflict, I preferred them to those made by Mr Bovey.
3. I found particular
assistance from the case of Office of the
Kings Prosecutor,
In the case of
4. I was persuaded that Mr Dickson was correct when he submitted that Mr Bovey's submission was fundamentally flawed in that what was important was a recognition by this court that extradition was based upon mutual recognition of the national legal systems of other member countries. In my judgment, this court did indeed have very limited jurisdiction to examine the national law of a member state. In so saying, I was conscious that my decision did involve some consideration of Dutch law. However, I did not believe that that was inconsistent with what I had just said. My consideration of Dutch law in this case was in the context of extradition arrangements and the involvement of the authority designated for the purposes of this Part of the 2003 Act made by the Secretary of State. Such consideration was also on the basis of mutual recognition and a high level of trust and confidence between fellow Member States.
5. I had regard to the Council
Framework Decision of
Thus, the
6. In that context, the Crown
Agent had been satisfied that Dutch national law permitted any public
prosecutor in the
In this context, I also
had regard to the cases of
7 The terms of section 2(1)
and (2) of the 2003 Act came into play if the designated authority received a
Part 1 warrant, which was an arrest warrant issued by a judicial authority of a
category one territory (which
The Crown Agent was the
designated authority in
That was what had been
done for and on behalf of the Crown Agent in the certificate signed on
8.1. Section 3 of the Act, which applies if such a certificate had been issued by the Crown Agent, in respect of such a Part 1 warrant, allowed the arrest of the named person; while section 4 of the Act required the person to be given a copy of the warrant and brought before the appropriate judge (in Scotland, a Sheriff of Lothian and Borders) as soon as practicable.
8.2. In terms of section 7, if the judge decided on a balance of probabilities that the person arrested was the person in respect of whom the warrant was issued, then the judge must proceed under section 8. Section 8 required the judge to fix a date for the extradition hearing, to inform the person of the contents of the warrant, to give the person the required information about consent, and to remand the person in custody or on bail.
8.3. If the foregoing steps had all taken place, one arrived at the extradition hearing in terms of section 9 et seq, which was the hearing fixed for 3 February 2006, and on that date of new assigned for 21 February 2006.
9. It did seem to me that, in
his submissions, Mr Bovey was ignoring the fact that, in gremio, the European Arrest Warrant in this case was recording a
decision of and judgment by a court.
Accordingly, although the Judicial Authority which issued the warrant
was, in terms of Dutch law, the Chief Attorney General in the District Public
Prosecutor's Office in
My decision
10. In these circumstances, I was satisfied that Mr Bovey's propositions were not well-founded and fell to be repelled. Further, I was satisfied that there was here a competently issued European Arrest warrant, which was competently before me and in respect of which the extradition hearing could proceed under section 10 of the 2003 Act.
Leave to Appeal
Submission on behalf of Mr Goatley
11. After I had intimated the foregoing decision, Mr Bovey sought leave to appeal it, using as a template section 174 of the Criminal Procedure (Scotland) Act 1995, which referred back to section 144 (4). He submitted that, while not wholly apposite, it was a near equivalent.
He submitted that the point was a novel one which went to the heart of the Extradition hearing. He submitted that, in particular, I could not determine whether what was involved in this warrant were extradition offences under section 65(2) of the 2003 Act without determining this issue. Accordingly, although it was a preliminary matter, and had been raised as such, it also went to the heart of the extradition hearing. He therefore submitted that it would be appropriate to grant leave so that the point could be properly determined on the basis of an authoritative decision.
Submission on behalf of the Lord Advocate
12.1. In response, while Mr Dickson accepted the summary procedure equivalence provided for in section 9 of the 2003 Act, he submitted that it was important to recall that appeals might arise in terms of section 26 of the Act. But, the Act clearly stated that that only arose if the judge ordered the person's extradition.
He therefore submitted that, the court having reached its decision in this preliminary matter, it should now proceed to deal with the extradition hearing issues and reach conclusions on those. Thereafter, he noted that the Act allowed for only one appeal and the appropriate stage for that had yet to be reached.
12.2. Mr Dickson further submitted that reference to Part 2 of the Act provided some guidance on appeal issues, where again there was only provision for one appeal after the Secretary of State had made the decision to order extradition. Although, under Part 1 of the Act, a purely judicial function was involved, nevertheless an appeal lay only at the end of that. Mr Dickson therefore invited the court to refuse the motion for leave to appeal.
My decision
13.1 I considered that Mr Dickson's submissions were correct and accorded with my own view of the matter. Although I understood the parallel which Mr Bovey sought to draw in the equivalent summary Criminal procedure and although I had allowed this matter to be dealt with as a preliminary matter, it also had a bearing upon issues which would require to be considered later in the hearing.
I was not persuaded that my decision was wrong in law, that I had left out of account any matter which I should have taken into account, nor that I had taken into account any matter which I should not done.
In addition, however, I was not persuaded that any great benefit would flow from granting leave to appeal at this stage, nor was I persuaded that any disadvantage, let alone prejudice, would flow from refusing leave to appeal at this stage and allowing the matter to proceed, in the knowledge that, if the situation arose, an appeal would still lie before extradition could take place.
Accordingly, having given careful consideration to the matter, I refused the motion for leave to appeal.
13.2 At a later stage in these
proceedings (on
Submissions on behalf of the Lord Advocate
14. Section 10 (1) of the 2003 Act
On behalf of the Lord Advocate, Mr Dickson submitted that there was no issue over the identification of Mr Goatley as the person in respect of whom the Part 1 warrant had been issued, and he therefore invited me to hold that subsection (1) had been satisfied.
15.1 In respect of section 10 (2)
As to whether the offences specified in the warrant were extradition offences, Mr Dickson referred to page 5 (of 9) of the European Arrest warrant and to the section which referred to the nature and legal classification of the offences and the applicable statutory provision or code. He noted that "participation in a criminal organisation" and "illicit trafficking in narcotic drugs and psychotropic substances" had been highlighted and marked with a X, these being contained in and derived from the Framework Document. He submitted that the significance was that dual criminality was removed, and the court did not require to be satisfied that the facts disclosed in the criminal conduct in the European Arrest warrant would amount to a crime under Scots Law.
15.2 He submitted that if the
Dutch authorities indicated that Dutch law identified these two offences as
crimes punishable with at least three years imprisonment, then since they were
Framework list offences, the court did not require to examine the information
contained in the warrant about the criminal conduct. This was because the court did not need to
be satisfied that these would be crimes known to the law in
15.3. Mr Dickson drew attention to e) offences) at the foot of page 3, and on pages 4 and 5, where 4 offences were set out and conduct was described. He submitted that the court could have regard to these narrations of the conduct but, because these were derived from Article 2.2 of the Framework Decision and because dual criminality had been removed, the court did not require to examine these narrations but could simply be satisfied that the warrant was concerned with two Framework list crimes which were described.
15.4. He submitted that that was
so on the basis of mutual recognition which was implicit in the Framework
Decision. He noted that Article 2.2 of
the Framework Decision provided a list of offences of which the first and fifth
where the ones mentioned in this warrant.
He drew attention to the Annex at the end of the Framework Decision
which set out the agreed format of the European Arrest warrant between Member
States, and noted that the form in this case from the
Section 65(1)
16.1. Mr Dickson then turned to section 65 of the 2003 Act since the Dutch said that Mr Goatley had been convicted of conduct which amounted to an extradition offence. He submitted that, in order to be satisfied under section 10 (2) of the Act that the offences were extradition offences, the court required to look at section 65 to ascertain if the European Arrest warrant satisfied any of the categories described in that section.
16.2. Mr Dickson noted that the terms of section 65 (1) were to the effect that the section applied in relation to conduct of a person if (a) that person was alleged to be unlawfully at large after conviction by a court in a category 1 territory of an offence constituted by the conduct and (b) that person had been sentenced for the offence.
16.3. In this connection, he noted that the opening words of the European Arrest warrant in this case were that
"This warrant was issued by a competent
judicial authority at the same time as the European Arrest Warrant issued on
16.4. Accordingly, Mr Dickson submitted that the court could be satisfied that this European Arrest warrant satisfied these elements set out in section 65 (1)(a) and (b).
17.1. He noted that the warrant continued at section (b) to deal with the decision on which the warrant was based.
Subparagraph 1
detailed the warrant in the
Subparagraph 2 provided details of the irrevocable judgment which the Dutch authorities wished to have enforced.
Subparagraph 3 provided a complete chronology of the criminal case in Holland and which stated, inter alia, that Mr Goatley was unlawfully at large (because the warrant had not been able to be executed since Mr Goatley had since evaded detection by the judicial and police authorities in the Netherlands). Mr Dickson submitted that this informed this court that there was a judgment to be enforced, and that was what the Dutch authorities sought.
17.2. Mr Dickson next referred to
section (c), subparagraph 1 of the warrant which provided a statement as to the
maximum possible sentence and which he said was important for the Framework
list offences ; subparagraph 2 which gave information as to the sentence which
actually was imposed ; and subparagraph 3 which gave information as to the
remaining sentence to be served. In this
way, Mr Dickson submitted that the court could be satisfied that Mr Goatley was
unlawfully at large from
17.3. Mr Dickson submitted that if I was persuaded by his above submissions, then I could be satisfied as regards the provisions of section 65 (1) (a) and (b).
Section 65(2)
18.1. Turning to section 65 (2), Mr Dickson submitted that the section did apply in the present case and that dual criminality did not require to be considered. He submitted that what the court required to do was to look at section 65(2)(a), (b) and (c) and, if it was satisfied in respect of these three elements, then, in terms of section 10 (2), an extradition offence was disclosed in the European Arrest warrant.
Section 65(2)(a)
18.2. As regards section 65
(2)(a), Mr Dickson submitted that the four offences described in the warrant on
pages 3, 4 and 5 (of 9) made no reference to any of the conduct having occurred
in the
As regards offence 3 (Case Judith), he submitted that, again, the intention had been to introduce into the Netherlands, contrary to Dutch law, a commercial amount of hashish - and that the Dutch Court of Appeal had held that to have been proved.
As regards offence 4
(Case Blue Spirit), the Dutch Court of Appeal had held proved that Mr Goatley
had brought into the Netherlands with criminal intent a commercial amount of
hashish. While the place outside of the
As regards offence 5, he
noted that this involved participation in an organisation the object of which
was to commit criminal offences in the
Mr Dickson noted that the Dutch Court of Appeal had held these charges to have been proved and, in respect of them, Mr Goatley had been sentenced to a custodial sentence of 24 months.
18.3. Mr Dickson submitted that while these offences had been committed both within and outwith the Netherlands, what was of more importance was not to speculate on precisely where on the high seas the boats had been loaded to take the drugs to the Netherlands, but to focus on, firstly, the conduct and, secondly, where the impact of the conduct was felt.
He submitted that if the court was satisfied that the intention of Mr Goatley had been the introduction of drugs into the Netherlands contrary to Dutch law, then the court could be satisfied that the conduct occurred in the Netherlands and that no part of it had occurred in the United Kingdom.
18.4. He noted that in the case of In Re Neilsen [1984] A.C. 606 the court had required to deal with dual criminality and the court had described how that was to be undertaken. While that was not required in this case, he submitted that the case was authority for the proposition that it was the broad conduct which had to be looked to. If dual criminality had been required, the court would require to look at the broad conduct, extract the elements thereof, and consider whether that amounted to an offence under the Law of Scotland. It was said to be of assistance in the present case in that the court required to look at the conduct in a broad sense and consider whether what was being described was a crime.
18.5. Mr Dickson said that this was the same as had occurred in the case of Government of the United States of America and Others v McCaffery [1984] 1 WLR 867 where the court had held that the duty of the magistrate was to consider whether the broad conduct would, if it had been committed in England, have constituted a crime known under the Law of England.
18.6. Mr Dickson accepted that
dual criminality was not an issue in this case but the word "conduct"
appeared in section 65 (2), and the court had to be satisfied that the conduct
constituted an offence if it had occurred in the category 1 territory and no
part of it had occurred in the United Kingdom.
This was of significance in the present case since the description of
the offences in the warrant included conduct in the Netherlands and some
outwith the Netherlands, but without saying where outwith the Netherlands. Accordingly, in order to put the matter
beyond doubt, Mr Dickson sought to allow this court to be satisfied that none
of the conduct occurred in the
18.7. He said that what had been said by the court in the cases of Neilsen and McCaffery underpinned the decision of the House of Lords in the case of Office of the King's Prosecutor, Brussels v Cando Armas [2005] 3 WLR 1079 & UKHL 67, in which case he submitted the court had picked up on the conduct and place of the conduct being of the essence in dealing with whether an extradition offence had occurred and the place of the impact of the conduct.
18.8. In other words, he was submitting that, because some of the conduct had occurred outwith the Netherlands, he was attempting to show that if the conduct had been aimed at the Netherlands and if its impact had been in Netherlands, then even if part of it occurred outwith the Netherlands, section 65 (2)(a) could still be satisfied. As an example, he posited that if a man in Scotland was directing or participating in criminal conduct in a foreign jurisdiction, such as a category 1 territory, and if the crime was directed towards that foreign jurisdiction, since the impact of the crime was in the foreign jurisdiction, if it was a Framework list offence, then he submitted that section 65 (2) was the appropriate section to say if an extradition offence had occurred.
18.9. Mr Dickson accepted that section 65 (2) produced a privileged position in which the court simply had to accept that, in terms of the Framework list, these were crimes known to a foreign jurisdiction and punishable with more than three years imprisonment, and were therefore extradition offences for the purpose of section 10 (2).
18.10. In the case of Armas, the court had been concerned with conduct and the impact of that conduct. In paragraph 5 of his judgment, Lord Bingham had considered the terms of Article 2 of the Framework Decision and in particular the effect and implications of the list of offences contained in Article 2.2. His Lordship had explained that these were not so much specific offences as kinds of criminal conduct, described in very general terms. Some were likely to feature in any developed criminal code while others might find different expression in different codes; but, underlying the list, was an unstated assumption that offences of this character would feature in the criminal codes of all member states. His Lordship further noted that Article 2.2 therefore provided that these offences, if punishable in the member state issuing the European Arrest warrant by a custodial sentence for a maximum period of at least three years and as they were defined by the law of that state, should give rise to surrender pursuant to the warrant without verification of the double criminality of the Act. It was this dispensation with the requirement of double criminality which distinguished these framework offences from others. The assumption was that double criminality need not be established in relation to these offences because it could, in effect, be taken for granted.
Mr Dickson submitted that that was given effect to in section 65 (2).
18.11. He noted that, in the case of Armas, the court had required to go on and consider what the conduct had been in that case (paragraphs 12 and 16). Mr Dickson submitted that Armas had been in the United Kingdom directing crimes abroad and the Court had required to decide if the Framework list offences applied in terms of section 65 (2). The argument in that case had been that it could not be said that none of his conduct had occurred in the United Kingdom - and, although holding that section 65(2)(a) was inapplicable because of that, the Court had gone on to hold that section 65(3) did not require that all of the conduct complained of should have occurred in the category 1 territory.
18.12 Mr Dickson referred to the opinion of Lord Hope at paragraph 35 where His Lordship considered the question of jurisdiction as it related to section 65(2) and 65(3). In the fifth line, Lord Hope said :
"It is now well established that the physical
presence of the defender in the territory is not required so long as the effects of his actions were
intentionally felt there. That rule is
matched by its corollary which is that, if the effects of those actions were
intentionally felt here, criminal jurisdiction can be exercised in respect of
their effect irrespective of where the actions took place that gave rise to
them. Section 65 (2) modifies these
rules in the case of framework offences where the test of double criminality is
dispensed with, as it requires that no part of the conduct took place in the
Mr Dickson submitted
that that was an indication as to the impact of the conduct. If the intention was to commit the crime in
the foreign jurisdiction, it did not matter if that person was ever in the
foreign jurisdiction. He noted that
Lord Hope, in paragraphs 37, 38 and 39 of his opinion, considered the subject
in the context of conspiracy in
"I would construe the word 'conduct' in sections 65(2)(a) and 65(3)(a) of the 2003 Act in the light of these authorities. The conduct must occur 'in' the category 1 territory if the condition which is set out in these paragraphs is to be satisfied. But a purposive meaning must be given to the word 'conduct' in this context. It would impose a wholly artificial restriction on the extradition process if it were to be taken as meaning that all the conduct which resulted in the offence must have taken place exclusively within the category 1 territory. Actings elsewhere will be sufficient to constitute conduct in that territory so long as their intended effect was to bring about harm within that territory."
18.13. Mr Dickson submitted that
that passage was of assistance to satisfy the court that there was an
extradition list offence in the European Arrest warrant because the intended
effect was to bring about harm, or to commit the offence, in the
18.14. Mr Dickson therefore
submitted that the test in sections 65(2)(a) could be met and that the court
could be satisfied in this case that the conduct occurred in the category 1
territory and that no part of it had occurred in the United Kingdom.
Submissions behalf of Mr Goatley
19.1. In his submissions, Mr Bovey observed that the court was invited to proceed under Section 65 (2) or (3) and he submitted that the arrest warrant did not distinguish which sentence was passed in respect of which offences ; and accordingly he submitted that if one of the charges did not fall within section 65 (2) or (3), then the court could not be satisfied in relation to any of them.
19.2. He submitted that in
section 65 (2), the requirements in subsection (2)(a) were that the conduct occurred in the
category 1 territory and that no part of it occurred in the
19.3. He referred to the case of Armas, and in particular to what had been said by Lord Bingham at paragraphs 15 and 16 on page 1088, with whom at paragraphs 19, 49, 60 and 61, Lords Hope, Scott, Hale and Carswell had agreed.
He therefore submitted
that the proposition that section 65(2) might apply was misconceived, because
one could not say that no part of the conduct had occurred in the
19.4. He submitted that it was
not open to the court to speculate, and that the authority for that was in the
case of De Canha v
Mr Bovey referred to paragraphs 17 to 21, and submitted that the approach there was essentially saying that the court should not speculate. It was for the requesting state to provide information - and the fact that there were fewer requests does not mean that the standard should be lowered. The standard was still beyond reasonable doubt.
19.5. He also drew attention to the case of Governor of Canada v Aronson [1990] 1 AC 579, in which the majority of the House of Lords had said that it was necessary under the 1967 Fugitive Offenders Act to look at the ingredients of the offence particularised in the warrant.
The minority had said that the court could look wider beyond that to the evidence of the conduct. The majority had distinguished the case of Neilsen.
Mr Bovey mentioned passages from the judgment of Lord Griffiths (who had been in the minority) at page 594D and 595D-E, and Lord Jauncey at page 596C where he agrees and at page 596F.
He also mentioned Lord Lowry at page 618F, which he said was an echo of the approach by their Lordships in the Guisto case.
19.6. He submitted that these authorities supported the idea that particulars of the offence were given for good reason and the details of the offences were needed to meet the speciality rule. He submitted that the court should not speculate and should not read into the warrant what was not said.
My decision
20. Keeping in mind what was said by Lord Hope in the case of Armas (at 1094 A), I was satisfied that, in the present case, the conduct took place in the Netherlands, and outside the Netherlands on the open sea, all with the intention of bringing drugs into the territory of the Netherlands.
There was nothing there
to suggest, however remotely, that any conduct took place in the
I considered that I was
therefore able to be satisfied that none of the conduct occurred in the
Section 65(2)(b)
Submissions on behalf of the Lord Advocate
21. Mr Dickson submitted that as
regards section 65(2)(b), the condition was satisfied because the warrant
disclosed a Framework list offence as having occurred in the
Submissions behalf of Mr Goatley
22.1. In regard to section 65(2)(b), Mr Bovey submitted that there were a number of difficulties in connection with Mr Dickson's submissions.
Firstly, Mr Bovey said that there was no certificate and, secondly, if the warrant was said to be a certificate, it was not signed by a judicial authority.
As regards his first point, he submitted that no one had certified that the conduct fell within the European Framework list.
He submitted that one could not construe that from the terms of the warrant and that the European Arrest warrant was clearly intended to be a different document in different terms from the certificate, and one would have expected to see the word "certified" or "confirmed" in it.
He said that, in terms of section 65(2)(b), the certificate had to show that the conduct fell within the European Framework list and not simply state it.
22.2. He submitted that the European arrest warrant in this case had 2 different Framework offences and 4 different charges.
He asked whether one was
being told that the offence was participating in a criminal organisation or
illicit trafficking in narcotic drugs and psychotropic substances; or whether it
was both. He said that of course one
could guess but submitted that that was not appropriate. He submitted that the
He suggested that no doubt what had been stated could be reassembled into a certificate, but that that was not the role of this court.
Response on behalf of the Lord Advocate
23.1 In a brief response, Mr Dickson submitted that the European arrest warrant was itself the certificate, and that this was provided for in the Framework Decision. This had been accepted as the format by the 25 member states without any need for further documentation to be produced.
23.2. Further, although Mr Bovey had said that such words should have been contained in the warrant itself, Mr Dickson pointed to the second paragraph on the first page of the warrant where was to be found the expression " I hereby confirm...".
23.3. Mr Dickson made reference to the textbook entitled "Extradition and Mutual Assistance" (3rd Edition) by Jones and Doobay at page 144/paragraph 6.009 where the author said that, in the case of Armas, the court considered the certificate in terms of section 65 (2), that the European Arrest warrant was a standard form annexed to the Framework Decision, and that it included a list of 32 offences with a tick box for each. In that case, the original warrant had been in Flemish and three boxes had been ticked; whereas in the English translation no boxes had been ticked. The point was that in the original warrant the boxes had been ticked but the translated version left it unclear what the offences were but the court had held that the certificate in that case was the Flemish version of the warrant rather than the English translation. He submitted that there was attached in this case to the European Arrest warrant the Dutch version and on the fourth page (005), it could be seen from the layout of what was the first page of nine, and in the English version, the first and fifth lines have been highlighted and crossed, which was the same in the English version. So Mr Dickson said that I had the Dutch certificate with an English translation which, unlike Armas, indicated the Framework decision in the certificate.
My decision
24. I was fully satisfied that Mr Dickson's submissions were correct and were to be preferred to those of Mr Bovey. I was therefore satisfied that the European Arrest warrant is the certificate and that it did show that the conduct fell within the European Framework list.
Section 65 (2) (c)
Submissions on behalf of the Lord Advocate
25. As regards section 65(2)(c), Mr Dickson submitted that the European Arrest warrant assured that 12 months or more had been imposed, that the first three offences could have attracted sentences of four years and the fourth offence could have attracted five years. He also noted that on page 8 (of 9) of the warrant, the applicable articles of law show that the sentences could have been consecutive. However, a sentence of more than 12 months had been imposed and that was disclosed in the European Arrest warrant which assured that a custodial sentence of 24 months had been imposed.
That being so, Mr Dickson submitted that the court could be satisfied that section 65(2) was the appropriate section and that, in terms of section 10(2), the court could be satisfied that the European Arrest warrant disclosed extradition offences.
He therefore invited the court to decide section 10(4) in the affirmative and to proceed under Section 11.
Submissions on behalf of Mr Goatley
26. In regard to section 65(2)(c) dealing with the question of sentence, Mr Bovey said that his earlier submissions applied here. There was no certificate and, if the warrant was said to be a certificate, it had not been signed by judicial authority.
In addition, at page 3 of the warrant, in paragraphs 2 and 3 of (c), the custodial sentence was stated to be 24 months less the period spent in pre-trial detention, with the remaining sentence 299 days. Thus, he said that the question was what was the sentence which had been imposed. And he suggested that the answer was somewhere between 24 months and 299 days, since no further detail and had been provided, such, for example, as the length of the pre-trial detention. He therefore submitted that the court did not have the material to say that a sentence of more than 12 months had been imposed.
Accordingly, Mr Bovey submitted that, contrary to what Mr Dickson had submitted, none of the requirements of section 65(2) had been satisfied.
My decision
27. I was satisfied that, on a
fair reading of the entire European Arrest warrant, the offences were
punishable in the
Section 65 (3)
Submissions on behalf of the Lord Advocate
28.1. As an esto position, Mr Dickson submitted that, if the court was not with him in his submissions in connection with section 65(2) - namely if the court was not satisfied that the offences in the European Arrest warrant were Framework offences and appropriately covered in sections 65(2) - then the court could consider the matter under section 65(3). This however required dual criminality.
28.2. Mr Dickson submitted that subsection 3(a) and (c) were dealt with in his earlier arguments.
28.3 Turning to subsection 3(b) - which involved dual criminality - he submitted that the Neilsen case gave guidance as to how that task was to be undertaken.
The broad conduct approach was appropriate and he submitted that the facts set out in offences 1, 3 and 4 on pp 4-5 of the warrant, disclosed contraventions of section 4(3)(b) of the Misuse of Drugs Act 1971 or section 170 of the Customs and Excise Management Act 1979; and these would clearly be crimes if committed in Scotland.
28.4. As regards the fourth
offence, described in the
It could be conspiracy to commit the offence of the importation of drugs, or art and part in the importation of drugs while acting along with others.
He therefore submitted that no issue arose as to offence 5 being recognised as an extradition offence.
28.5. He further submitted that, if the court was satisfied that these three conditions in section 65(3) had been met, then the court could still be satisfied in terms of section 10(2) that an extradition offence was disclosed in the European Arrest warrant.
He submitted that the court could extradite Mr Goatley regarding all four offences - dual criminality identifying conspiracy for the importation of drugs or art and part involvement in the importation of drugs, being crimes known to the Law of Scotland.
28.6. He again invited the court to answer the question in section 10(2) and (4) in the affirmative and to proceed under Section 11.
Submissions on behalf of Mr Goatley
29.1. In reply to these submissions, Mr Bovey considered section 65(3)(b) and looked at the first three charges contained in the warrant which involved "hemp", "hemp resin" and "hashish". He submitted that these charges did not disclose a criminal offence known to the Law of Scotland. He referred to the Misuse of Drugs Act 1971, Schedule 2, and noted that none of "hemp", "hemp resin" or "hashish" occurred in this Schedule.
29.2. In relation to the fourth charge, he said that the question arose as to whether there was here something more than membership of a criminal organisation.
He submitted that, by virtue of section 3 of the Terrorism Act 2000, some organisations could be proscribed, and that some terrorist organisations had been proscribed ; but the one mentioned in charge 5 was not listed there.
Thus, he said the question arose as to whether this offence could properly be categorised as an offence of conspiracy to do illegal things or being art and part thereof.
He suggested that the difficulty might lie in "the object" of the organisation being to commit criminal offences, and he asked whether the criminality was in the membership or whether it was in the activities.
He said that one assumed that conspiracy and art and part were part of offences 1, 3 and 4 ; but he asked whether offence 5 was not in a different position.
29.3. He referred to the case of Sayers v HM Advocate 1982 JC 17, read from the rubric, and referred to the opinion of Lord Hunter at page 19.
Mr Bovey suggested that,
while the court might say that this was speculation, he said that one could not
say that the "substantive something" was not the same as that in the
other three charges - and an empty conspiracy was not an offence in
Thus, in the present case, Mr Bovey submitted that one had the same position as in the case of Sayers, where the jury deleted parts and what was left was not sufficient.
In this case, however,
Mr Goatley had already been convicted of
the charge, but that what was there, was insufficient. He submitted that this amounted to Mr
Goatley being punished for membership of an organisation which was not an
offence in
29.4. Mr Bovey submitted that the terms of section 65(3)(b) were not satisfied in regard to offence 5, and, if the court was not satisfied in regard to that charge, because the Dutch court had dealt with the offences cumulatively, the court could not be satisfied about any of the charges ; and accordingly, section 65(3)(c) was not satisfied either.
29.5. Accordingly he submitted that the court could not be satisfied that this was an extradition offence, that section 10(2) should be answered in the negative, and that the court should order Mr Goatley's discharge.
My decision
30.1. As regards Mr Bovey's submissions concerning the words "hemp", "hemp resin" and "hashish" not being specified in the Schedule to the Misuse of Drugs Act 1971, I consider that these terms and others are not only of sufficient clarity but are used so frequently, are sufficiently well-known and have even been used in books dealing with drugs offences, that they can now be taken to be within judicial knowledge
30.2. Despite what was submitted by Mr Bovey, I found no difficulty as regards offence 5 in the interpretation of the words "participation in an organisation the object of which is to commit criminal offences". Giving to them a natural meaning allowed me to reach my decision without difficulty. In addition, I did not find the case of Sayers to be of any assistance in the circumstances of this present case.
30.3. In the spirit of the Framework Decision, and applying a careful observance of the procedures which have been laid down, I was quite satisfied that offence 5 as described in the European Arrest warrant amounts to a crime in Scotland, namely conspiracy to commit the offence of importation of drugs or being art and part in that while acting along with others.
Keeping also in mind
what was said in the case of Armas by
Lord Bingham at page 1088 E-H and by Lord Hope at paragraph 35 on pages 1093
and 1094, it seemed clear to me that the tests in sections 65(3) were satisfied
and that the court could be satisfied in terms of section 10(2) that an
extradition offence was disclosed in the European Arrest warrant.
30.4. At the continued hearing on
30.5. Further, in terms of section 10(2), I advised that I had been satisfied that the offences specified in the warrant were Extradition offences.
In particular, in reaching that conclusion, I had been satisfied that not only had the terms of sections 65(1) and 65(2) - for which dual criminality was not required - been met, but also that the terms of section 65(3) - for which dual criminality was required - had been met.
30.6. Accordingly, I was satisfied that section 10(4) should be answered in the affirmative, and that I should then proceed under Section 11.
Section 11 - Bars to
Extradition
Submissions on behalf of the Lord Advocate
31. Mr Dickson submitted that that there were no bars to extradition in this case, that the court should answer Section 11(4) in the negative and, since Mr Goatley was alleged to be unlawfully at large after conviction of the extradition offence, should proceed under section 20 of the 2003 Act.
Submissions on behalf of Mr Goatley
32. Mr Bovey submitted that there was a bar to extradition in this case by reason of the passage of time, and he therefore moved the court to discharge Mr Goatley in terms of sections 11(1)(c), 11(3) and 14 of the Act.
He noted that the application of the terms of section 14 to this case applied to the passage of time since Mr Goatley was alleged to have become unlawfully at large.
Mr Bovey commented that the offences in this case had occurred between April and December 1998, Mr Goatley had been released on bail on 22 June 1999, and the bail had been recalled on 5 October 1999 - that being the date when Mr Goatley was unlawfully at large.
33. He noted that the all of the authorities seemed to deal with the passage of time in relation to questions of unfairness at the trial rather than post-conviction. As examples of that, he mentioned the cases of Triplis, Petitioner (High Court) 1998 SLT 186, per LJG Rodger at page 188 J to L and R v Governor of Brixton Prison and another, ex parte Osman(No 4) [1992] 1 All ER 578.
34. However, Mr Bovey submitted that the terms of section 14 were appropriate to cover the three following situations:
(1) that there was a less favourable regime in the 2003 Act than there had been when the offences took place, and this in three respects:-
(a) the removal of an appeal to the House of Lords ;
(b) the reduced level of scrutiny by the court, and
(c) the removal of the discretion of Ministers not to extradite;
(2) that a trial in absence had now been held ; and
(3) that Mr Goatley's personal circumstances had changed in three particular respects, namely that he had been through a previous, unsuccessful request which had involved him spending time in custody, the stress of being involved in the litigation, and his move to Scotland (along with his wife and daughter) to put behind him the circumstances of the extradition request.
35. As regards the less favourable regime point, Mr Bovey noted that, in terms of earlier case law in regard to the 1989 Act, that Act applied to extradition crimes committed both before and after it came into force. And the authors of Jones and Doobay on Extradition and Mutual Assistance (3rd Edition) were of the view that it could be said with confidence that, for the same reasons, the 2003 Act would apply to extradition offences committed before it came into force. However, Mr Bovey noted that in the final paragraph of para 5-002 on page 126, the authors said:
"Territories may have made unsuccessful extradition requests under the 1989 Act, or may have refrained from making extradition requests in the belief that a request would fail. Failed extradition requests may be renewed under the 2003 Act, and other requests may be made in the belief that the defendants have fewer protections under the 2003 Act. The Government expects that concerns about any requests made in these circumstances will be embodied in submissions that extradition should be barred on the ground that it would be unjust or oppressive to extradite by reason of the passage of time."
Mr Bovey submitted that in the present case there was both a failed request and fewer protections under the 2003 Act, and that it had been anticipated when the legislation was passed that this would be a relevant feature when considering the passage of time element.
36.1. In this connection, he referred again to the case of Osman and the judgment of Lord Justice Woolf (as he then was), in particular to the foot of page 584 and 585 which showed that the passage of time provisions in the 1989 Act were in very similar terms to those in the 2003 Act.
36.2. He referred in particular to the passage on page 585 where Lord Woolf quoted from the speech of Viscount Dilhorne in the case of Union of India v Manohar Lal Narang [1978] AC 247 at 272, in which Viscount Dilhorne dealt with the relationship between the passage of time, all the circumstances, injustice and oppression ; to the passage on pages 585 and 586 where Lord Woolf quoted from the speech of Lord Fraser in the same case at 289-290; and to the passage on pages 586 and 587 where Lord Woolf quoted from the speech of Lord Diplock in the case of Kakis v Government of the Republic of Cyprus [1978] 2 All ER 634 at 638 and 639 and the following well-known passage:-
"'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 on 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 delay due to such causes are of his own choice and making. Save in 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) is based on the 'passage of time' under para (b) and not on absence of good faith under para (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."
36.3 Mr Bovey quoted further from the immediately following paragraph where Lord Woolf said:
"However, I do not regard Lord Diplock as intending to adopt a different approach. He was indicating that if the applicant has brought the delay upon himself by his own acts then that delay was not generally relevant ; but if, on the other hand, it was a situation where, as a result of the passage of time (not brought about by the applicant), injustice or oppression resulted then irrespective of whether the requesting state was or was not blameworthy the applicant would be entitled to be discharged. Lord Diplock was not suggesting that, in a case which was close to the borderline as to whether or not the applicant was entitled to be discharged, the fact that the requesting state had been guilty of culpable delay was not a the matter which the court was entitled to take into consideration. That is of significant here because it is contended on behalf of Mr Osman that the Government of Hong Kong has not only been responsible for the delay, it has been culpable in causing that delay."
36.4. In the light of what had been said in these cases, Mr Bovey observed that what had been said in the case of Kakis would have to be viewed in the light of the fact that it was considering pre-trial extradition. He submitted that it would be incorrect to suggest that since the facts here related to post-trial they were therefore not important; whereas it would be correct to take "unjust" and "oppressive" to equal unfairness. He noted that the examples which had been used by Lord Diplock had included fleeing the country, concealing whereabouts or evading arrest; but Lord Diplock had not mentioned fighting extradition, standing on one's rights or pleading not guilty, and His Lordship had not said that these were only to be taken into consideration in the marginal case.
36.5. In considering what constituted fault on the part of an individual, Mr Bovey noted that in the Osman case the committal proceedings had occupied 66 working days between May 1986 and May 1987. Despite that long period there was no criticism by Lord Woolf of the way the applicant had conducted there was proceedings; and Mr Bovey used further references to that case to show that it was different to Mr Goatley's situation.
36.6. He also used a passage on page 591 - to the effect that if the Hong Kong Government had legislated to raise standards of procedure and fairness, then far from the passage of time making it unjust or oppressive to return the applicant, it would if anything become less unjust or oppressive if there were higher standards of protection than would have previously been provided - to submit that the opposite applied in this case where the legislative change had worsened Mr Goatley's situation.
37. On the question as to whether a statutory alteration of procedure should be treated differently from alterations in substantive law, Mr Bovey drew attention to the case of Wilson v First County Trust Ltd (No 2) [2003] UKHL 40 and [2004] 1 AC 816 and in particular to the speech by Lord Rodger at page 881 and paragraphs 199 - 202 where His Lordship had indicated that a retrospective procedural change should not be treated differently from a retrospective change in substantive law, and that an appropriate test might be to ask whether the consequences of applying the statutory provision retroactively, or so as to affect vested rights or pending proceedings, would be "so unfair" that Parliament could not have intended to be applied in these ways.
38. Turning to the aspect of the less favourable regime demonstrated by the removal of the appeal to the House of Lords, Mr Bovey drew attention to section 32 of the 2003 Act, the provisions of which did not apply to Scotland by virtue of subsection (13). He noted that, while the 1989 Act provisions allowed appeal to the High Court of Justiciary, section 12 gave Ministers the power to make the Order for return, and that Ministerial decision had been subject to Judicial Review, which in turn could be appealed to the House of Lords.
In this connection, he made reference to the textbook "Extradition : Law and Practice" (2nd edition) by Ivor Stanbrook and Clive Stanbrook, at pages 178 to 181.
39. In relation to the aspect of the less favourable regime demonstrated by the removal of the discretion of Ministers not to extradite, Mr Bovey drew attention to section 12 of the 1989 Act, which provision had not been replicated in the 2003 Act - thus removing that Ministerial discretion.
40. In relation to the aspect of the less favourable regime demonstrated by the reduced level of scrutiny by the court, Mr Bovey drew attention to section 2 of the 2003 Act and compared that adversely with the previous provisions in sections 7 and 8 of the 1989 Act. He submitted that, even although the 1989 Act provisions had been watered down as compared with the 1983 Act in relation to information concerning evidence, there had still been a sufficiency requirement in the 1989 Act which was not now required under the 2003 Act. He therefore submitted that the 1989 Act safeguards were greater than those in the 2003 Act.
41. Mr Bovey produced two letters, one dated 16 February 2001 from the Procurator General's Office in Leeuwarden addressed to the Ministry of Justice in The Hague in connection with the request for extradition dated 26 January 2001 and providing further details concerning the criminal proceedings against Mr Goatley, and the other dated 1 April 2004 from the Extradition Section of the Home Office addressed to Messrs Whitelock and Storr, the solicitors in London acting for Mr Goatley. Mr Bovey submitted that the information contained in these letters showed that the Dutch authorities had attempted for three years to have Mr Goatley extradited - but had not succeeded because they had gone ahead and tried him in his absence in the Netherlands at the time while he was legitimately defending extradition proceedings in the United Kingdom. He stressed that the reason the Extradition application had failed was because of something the Dutch authorities had done, namely proceeding with the trial in absence at the same time as pursuing the extradition request. Mr Bovey submitted that it was extremely unfair to put Mr Goatley through a second extradition request when the first one had failed for the reason set out above.
42. He accordingly submitted, firstly, that it would be unjust and oppressive because of the passage of time to order his extradition on this warrant.
43.1. Secondly, Mr Bovey submitted that, if the court considered that what he complained of related more to the actings of the Dutch government than to the passage of time, then in the light of the power of court to prevent abuse of process, the court should act by discharging Mr Goatley from the present proceedings.
43.2. Mr Bovey said that this had been part of what had been argued for in the case of The Queen on the Application of Bermingham & Others [2006] EWHC 200 (Admin).
He drew my attention to that part of the opinion of Lord Justice Laws (with which Mr Justice Ouseley agreed) at paragraphs 81 to 86 under the heading "(i) Extradition Offence", paragraphs 87 to 90 under the heading "(ii) Delay" , and at paragraph 91 to 105 under the heading "(iii) Abuse" . He noted that in paragraph 93 His Lordship had dealt with the case of Atkinson [1971] AC 197 and had quoted a passage from the speech of Lord Reid, in paragraph 94 had dealt with the case of Schmidt [1995] AC 339, in paragraph 95 had dealt with the case of Gilligan [2001] 1 AC84, and then in paragraph 96 had explained that in his judgment, these cases of high authority had no application in the context of the 2003 Act. His Lordship had noted that under its provisions the Secretary of State had no statutory discretion to refuse extradition, that the safeguards emphasised in Atkinson and Schmidt were lacking, and that the prosecutor was not required to establish a prima facie case on the evidence. His Lordship continued that, under the old law, that requirement had itself been an important discipline - adding that its absence made the need for a residual abuse jurisdiction all the plainer.
In paragraph 97, His Lordship suggested that, even if it had not been explicitly stated by Parliament, Lord Reid's opinion in Atkinson would have led to an abuse jurisdiction being implied. Although Lord Justice Laws went on in paragraph 105 to hold that the submission in the Bermingham case of an abuse of the process was wholly without foundation, Mr Bovey submitted that the point was important for Scotland. Even although the abuse of process jurisdiction was not recognised in our procedure, because section 9(2) of the 2003 Act directed the appropriate judge in Scotland to proceed as if the proceedings were summary criminal proceedings, inherent in this was a residual power in the court to prevent unfairness or oppression. He noted that the whole Act was devoid of discretion and that the English Judges were attempting to achieve some.
43.3. In support of this, Mr Bovey made reference to the case of N v HM Advocate 2003 JC 140 in which he said it had been held that, when a statute had been framed to deprive the court of a discretion, the court required to admit hearsay evidence. However, where that gave rise to unfairness at a trial in solemn proceedings, the court allowed the appeal and quashed the conviction, stating that the judge should have made the ruling requested or directed the jury to acquit, rather than effectively directing the jury to take the evidence at its highest from the standpoint of the Crown. Mr Bovey referred in particular to the Opinion of the Lord Justice-Clerk (Gill), with whom Lords Maclean and Hamilton had agreed, at page 151 and paragraphs 35 - 37. In paragraph 35, Lord Gill had emphasised the continuing duty of the trial judge under Article 6 to consider carefully the fairness of such evidence as a trial progressed. In paragraph 36, His Lordship pointed to a number of steps which the trial judge might take in order to avoid unfairness.
43.4. That, Mr Bovey submitted, illustrated the power which the court had in solemn criminal proceedings and he submitted that there was no reason why it should not also apply to summary criminal proceedings. Thus, he submitted that if the court was not minded to uphold his submissions in the context of delay, then it would be appropriate for the court, in a broad context of unfairness, to give affect to his submissions by discharging Mr Goatley in the light of the jurisdiction directed in section 9(2).
Mr Bovey submitted that the court had no information as to how the Dutch authorities came "to scupper" their own extradition request and it was that conduct on their part which had led to this present application some years on. He accordingly invited me to hold that it would be unfair to extradite Mr Goatley - and accordingly to discharge him.
Response on behalf of the Lord Advocate
44. Mr Dickson began by acknowledging that, if Mr Bovey's submissions were accepted, then Mr Goatley would require to be discharged.
He noted, however, that in terms of section 14 of the 2003 Act, Mr Goatley's extradition would only be barred by reason of the passage of time if and only if it appeared that it would be unjust or oppressive by reason of the passage of time since he became unlawfully at large.
It was therefore necessary to identify the period in question and, in this regard, Mr Dickson agreed with Mr Bovey that the authorities related to return for trial rather than return to serve a sentence.
45. The certificate on behalf of the Crown Agent in relation to the European Arrest warrant was dated 13 January 2006; the European Arrest warrant was dated 18 October 2005; and that proceeded upon an arrest warrant in respect of Mr Goatley issued by the public prosecutor in the Netherlands on 5 January 2005. Mr Dickson therefore submitted that the end date for this court was 5 January 2005, being the date on which the warrant became executable in the United Kingdom. He submitted that if a longer delay had been involved, then that would have had to be answered; but that it fell out of account if it was a reasonably short period.
He then submitted that it was necessary next to consider when the period commenced.
46.1. The timetable in respect of the criminal proceedings included the following:
April to December 1998 - were the dates of the offences;
District Court
6 April 1999 - Mr Goatley had been present at the District Court of Leeuwarden;
22 June 1999 - Mr Goatley had also been present;
5 October 1999 - Mr Goatley's bail was effectively withdrawn in connection with non-compliance with one or more of the conditions;
16 November 1999 - Mr Goatley was absent but was represented by Counsel;
30 November 1999 - judgment and sentence was pronounced in Mr Goatley's absence but when he was represented by counsel;
6 December 1999 - Mr Goatley appealed through his counsel;
8 December 1999 - the prosecutor appealed.
Court of Appeal
25 January 2001 - Appeal/Trial (involving full reconsideration of facts and law) postponed;
13 January 2003 - Appeal hearing, at which Mr Goatley was absent but was represented by counsel;
27 January 2003 - Appeal Court judgment, at which Mr Goatley was absent but was represented by counsel who explicitly stated that he was authorised to act in his defence during the court hearing, the effect of which was that this had been a defended action;
it was the view of the Dutch authorities that Mr Goatley knew of the details of the court hearing but chose not to be present; Mr Goatley, through his counsel, appealed to the Supreme Court.
Supreme Court
22 June 2004 - Mr Goatley's appeal to the Supreme Court was held inadmissible.
46.2. The timetable in respect of the Dutch extradition request included the following:-
25 January 2001 - request by public prosecutor to the Dutch Ministry of Justice;
9 February 2001 - extradition request passed on to the United Kingdom;
30 May 2001 - Mr Goatley was committed on bail by a District Judge in the United Kingdom;
25 July 2003 - (by which time any court process in the United Kingdom in connection with the extradition request had passed to the stage of representations to the Secretary of State) - Mr Goatley's solicitors made representations to the Secretary of State because he had now progressed from being able to have a re-trial to a sentenced person;
1 April 2004 - the Dutch extradition request was refused by the Secretary of State because Mr Goatley had now progressed from an accused to a convicted person.
47. Against the background of the timetable in the criminal proceedings, Mr Dickson noted that Mr Goatley had failed to appear at the District Court on 21 September and 16 November 1999, which corresponded with what was said in paragraph 3 of the European Arrest warrant. Having been allowed liberation on bail on 22 June 1999, Mr Goatley had failed to attend court on 21 September 1999 and should have appeared on 16 November 1999 but had not been served as his whereabouts were unknown. However, in terms of Dutch law, attempts had been made to serve at the address known in the Netherlands. It appeared that, on 5 October 1999, the court had effectively withdrawn bail but Mr Goatley's counsel had appeared at all four hearings. The court had then passed judgment on 30 November 1999 and had passed sentence in his absence. Although Mr Goatley had not been officially told of the sentence, he must have been aware of it since he had instructed an appeal on 6 December 1999. All this had therefore been within Mr Goatley's knowledge.
Mr Dickson noted that the next step appeared to involve his counsel withdrawing because of lack of contact and finance ; but that a new lawyer had been appointed by the court. And that an appeal had also been lodged on 8 December 1999 by the prosecutor.
The Appeal was first heard on 25 January 2001 which, as it happened, was the same day as the Dutch authorities applied for his extradition. Mr Dickson therefore noted that there was continuing action in the Netherlands regarding the criminal process, leading to sentence, and leading to appeal up until 25 January 2001; but he noted that there was also participation -- albeit remotely -- by Mr Goatley, and so the actings were not of the Dutch authorities only.
48. Mr Dickson noted that the criminal appeal did not progress and that a new date was to be set after the summer of 2001 - while, in the meantime, the extradition request was being dealt with and being processed and progressed. The Home Office letter of 1 April 2004 to the English solicitors acting for Mr Goatley followed upon submissions from those solicitors to the Home Secretary who had considered them.
49. Accordingly, Mr Dickson submitted that there was now a Dutch court with which Mr Goatley was engaged, in which an appeal had been instructed, his counsel had withdrawn, the Dutch authorities had appointed a new counsel to represent his interests, all aimed towards an appeal which was to be heard on 25 January 2001. He therefore stressed that there were two parallel proceedings in both of which Mr Goatley had an active part ; that he had absented himself from the Netherlands, after been released on bail in June 1999, and from a court appearance on 21 September 1999; and he had therefore brought himself into the category of someone who had fled the jurisdiction and who, with or through his actions in the United Kingdom, could be viewed as someone who was actively seeking to avoid the Dutch process, both by physically removing himself and by trying to avoid being returned since, when the Dutch authorities sought his extradition, he made representations to avoid being returned. By this stage, the Secretary of State having apparently considered the representations for some nine months, Mr Goatley had in the meantime been convicted and would be unable to re-open his conviction. (Mr Dickson noted in this connection that the 1989 Act made a distinction between return for trial before conviction and return to serve a sentence after conviction. Different procedures were involved and he submitted that that was why, when the matter came before the Secretary of State, the extradition request required to be refused.).
50. Mr Dickson then noted that with the criminal appeal process continuing in Holland and with Mr Goatley opposing the extradition proceedings in the United Kingdom, he was therefore in the same situation as Kakis - namely he was someone who had, over the period, actively fled from justice and actively done all he could to avoid being returned to the Netherlands either for trial or to serve the sentence.
51. Mr Dickson explained that the reason for his dealing with this in so much detail, was that the Dutch had continued their process in accordance with Dutch law. They had ensured that Mr Goatley's interests were represented at all stages in the Netherlands and, if Mr Bovey's submissions were correct, this Court would have to say that what the Dutch authorities should have done would have been to stop at the appeal on 25 January 2001, proceed with the extradition request to United Kingdom, wait for a decision on that, and then, if Mr Goatley had been returned, the process would have had to recommence in the Netherlands.
52. Mr Dickson submitted that that could not be the correct course since the purpose of extradition - in the light of the authoritative judicial statements in cases of Warren at paragraph 40, Armas at paragraphs 4, 5, 22 and 23 and Wright at paragraph 67- was to return the person to where the crime took place. Further, if Mr Bovey was correct, the outcome would be that the only person who could benefit from that was Mr Goatley who had been aware of the trial but had absented himself although he had ensured that his interests were represented at conviction and sentence, who, by lodging an appeal, had indicated to the Dutch authorities that he was still interested in these proceedings, but who, at the same time, was doing all that he could and was taking all legitimate steps to prevent his extradition to the Netherlands to serve the sentence of which he was well aware and which he had appealed.
53. For that to be sufficient actings for this Court to hold that it was sufficiently oppressive to prevent Mr Goatley being returned to the Netherlands would, Mr Dickson submitted, run completely contrary not only to the United Kingdom responsibilities regarding extradition, but also to the aims of the Framework Decision and in particular paragraph 6 of its Preamble which had been implemented in the 2003 Act.
54. Accordingly, Mr Dickson submitted that Mr Goatley did come within the words of Lord Diplock in the case of Kakis, which were referred to by Mr Bovey and which are set out at paragraph 36.2 above. Mr Dickson submitted that this was a high test for Mr Goatley to overcome but, if Mr Dickson's submissions were accepted, then, except for one aspect to which Mr Goatley partly contributed, Mr Goatley wholly contributed to the passage of time.
The exception referred to was that the Secretary of State refused to return Mr Goatley not so much on the basis of the submissions made on his behalf but rather because the Dutch process had continued to its conclusion with Mr Goatley's remote but clear involvement by the hand of his counsel. The Dutch procedure had ended and Mr Goatley became a convicted person which meant that the extradition request of 25 January 2001 was valueless, as it was based on a situation two years earlier when he had still been an accused person. But that in turn had resulted in the Dutch request for extradition no longer being a valid one; and the Netherlands had inevitably been put in the position where the present request had to be made as Mr Goatley was then a sentenced person.
55. Accordingly, Mr Dickson submitted that it was not the Dutch who were frustrating the system by repeatedly seeking his return, but rather the Dutch were attempting to keep up with Mr Goatley who was a moving target, both physically, through the Dutch process, and, when back in the United Kingdom after the Extradition Request had been refused, he had removed himself from England to southwest Scotland. While that might not by itself be of note, Mr Dickson suggested that he could be seen as someone seeking to avoid any further attempt to be returned to the Netherlands and made himself somewhat more difficult to be found. In the case of Kakis, Mr Dickson noted that Lord Keith at page 787 D - E had said:
"My Lords, the decision in Reg. v Governor of Pentonville Prison, Ex parte Narang [1978] A.C. 247 makes it clear that, in considering the effects of passage of time under section 8(3) of the Act of 1967, no account is to be taken of time that has passed by reason of action taken by the fugitive himself, with the view either to concealing the commission of the offence alleged against him or his involvement in it, or to hindering the criminal authorities in bringing him to trial. Accordingly, I think it proper to leave out of account in the present case the period of time, from the killing of Photiou on April 5, 1973, until the coup of July 1974, during which Mr Kakis was in hiding in the mountains."
Mr Dickson submitted that, although the facts in that case were quite different, the principle was the same and that, by removing himself from the jurisdiction but remaining in the Dutch process and continuing to oppose extradition such that the request fell and the new one was needed, Mr Goatley had ensured that he was only beneficiary. Mr Dickson submitted that that ought not to be seen as amounting to passage of time against the Dutch authorities and thereby constituting any bar to the present extradition.
Submissions on behalf for Mr Goatley
56. In a brief response to Mr Dickson submissions, Mr Bovey said that it was incumbent upon the Requesting State to put before the court the material needed to reach a proper decision. Instead of that, he said that Mr Dickson had speculated and had invited the Court to speculate especially about the period between 16 February 2001 and the Judgment in January 2003 which had led to the present warrant which was sought to be enforced.
Mr Bovey submitted that there was insufficient material to provide the necessary links in the information and that it was not appropriate for the Court to have to pick through material and try to work out what had happened. Thus, he submitted that it was illegitimate for this Court to hold other than that the Dutch authorities had defeated their own application ; that there was nothing to suggest that that had not happened and that the issue of delay fell to be decided in that regard.
My decision
57. Having considered the submissions and studied the cases to which I was referred, I was not persuaded of the merit of Mr Bovey's submissions and, since I did not consider that there was any unfairness to Mr Goatley which required to be attended to by this Court, nor did I consider the abuse of process equivalent point to be of merit. Overall on these issues, I preferred the submissions of Mr Dickson and have largely given effect to them.
58. I did consider that the actings of Mr Goatley -- albeit remotely -- were such that he was positively contributing to the judicial process in the Netherlands and that it would not therefore be accurate to attribute proceedings in the Netherlands only to the Dutch authorities.
Indeed, Mr Goatley was positively represented at the Court of Appeal Hearing on 27 January 2003, his counsel having explicitly said that he was authorised to act in Mr Goatley's defence during the court hearing. His representation continued in that a further appeal was lodged on his behalf with the Supreme Court of the Netherlands, this not being held inadmissible until 22 June 2004, which was after the decision by the Secretary of State in the United Kingdom on 1 April 2004.
59. I saw nothing unjust or oppressive in the Dutch authorities having made the Extradition Request, particularly since it was made at a time when, although both sides had lodged appeals (on 6th and 8th December 1999) in the criminal proceedings, these appeals had not been heard. Further, there was no material of any kind to suggest that the Dutch authorities had delayed the Extradition Request in order to obtain the benefit of the 2003 Act. On the contrary, they had attempted, albeit unsuccessfully, under the 1989 Act.
60. Clearly, the criminal proceedings in the Netherlands and the extradition proceedings in the United Kingdom were proceeding in parallel ; but, equally clearly, Mr Goatley was actively involved either personally or by legal representation in both sets of proceedings.
It was also clear that, having absented himself from the Netherlands and fled that jurisdiction, and having physically removed himself from the operation of the judgment and sentence of the Dutch Court, his object in each of these proceedings was to prevent such operation of that judgment and sentence either by himself returning to Holland or by his being returned by extradition to Holland.
61. Nor did I see anything unjust or oppressive in the Dutch authorities making a second attempt at extradition since the first such attempt had been refused because Mr Goatley's status had changed during the process from that of an accused person to someone whose conviction was by then final. There was no material of any kind to suggest that the Dutch authorities made the second attempt at extradition because there were by then fewer protections under the 2003 Act. To suggest that would be pure conjecture, and I considered that it was virtually disproved by the documented actions of the Dutch authorities.
62. As regards Mr Bovey's observations on the examples which had been used by Lord Diplock in the Osman case, I considered that these had to be seen in the light of the actings of Mr Goatley in the present case. I consider that Mr Goatley's actings did bring about or materially contribute to the passage of time while he had fled the country, evaded serving the sentence, and then used appeal proceedings in the Netherlands to avoid return ; and in addition had fought proceedings in this country designed to have him returned. While time passed, the passage of time had much to do with Mr Goatley, his flight and his actings in general in this regard.
63. I did therefore consider that Mr Goatley was in a similar position to what was said in the Judgments in the case of Kakis, namely that Mr Goatley was someone who had, over the period, actively fled from justice and had actively done all he could to avoid being returned to the Netherlands either for trial or to serve the sentence.
64. Accordingly, having regard not only to the passage of time since Mr Goatley was alleged to have become unlawfully at large, but also to the whole circumstances in this case, I did not consider that it would be unjust or oppressive to extradite him by reason of the passage of time as it is referred to in sections 11(1)(c) and 14 of the 2003 Act.
Therefore, in terms of section 11 (4) of the 2003 Act, I required to proceed under section 20.
Section 20 - Case where person has been convicted
Submissions on behalf of the Lord Advocate
65. Mr Dickson noted that section 20 of the 2003 Act divided into three parts. Section 20(1), required a decision on whether the person had been convicted in his presence. In this case, it was clear that Mr Goatley had not been present at his conviction and, that question being answered in the negative, the court progressed to consider the second part in section 20 (3).
66. Section 20(3) required a decision on whether the person deliberately absented himself from his trial. Mr Dickson submitted that the court already had information on that and that, in the light of that information, the question should clearly be answered in the affirmative. (That would, in terms of section 20 (4), move the court on to proceed under section 21.)
67. Mr Dickson added to the information already available by presenting copies of two letters, letter 1 - dated 26 January 2006 being a Telefax from the Public Prosecutor's Office at the Court of Appeal, Leeuwarden, addressed to Mrs L Apeldoorn, of the International Legal Assistance Centre, North-east Netherlands, in Groningen, and letter 2 - dated 26 January 2006 (in both Dutch and in English translation) from Mr RP Snorn, a partner in the legal firm of Groenewegen, Brink & Vlessing, in Heerenveen, also addressed to Mrs L Apeldoorn at the Centre in Groningen, in which Mr Snorn confirmed his representation of Mr Goatley at the stages and in the manner he set out in the Dutch criminal proceedings, and enclosing also a copy of a letter sent to him on 8 January 2003 by Mr Dante Leccacorvi of the firm of Messrs Whitelock and Storr, the solicitors in London acting for Mr Goatley, confirming Mr Goatley's instructions that he wished Mr Snorn to defend the proceedings on Mr Goatley's behalf at the hearing on 13 January 2003.
Mr Dickson submitted that the whole information contained in these letters, along with the information which had already been presented to this court, confirmed that Mr Goatley had been represented throughout the whole process. However, since Section 20(3) was concerned with presence rather than representation, he invited me in the light of all of this information, to answer section 20(3) in the affirmative and to proceed, in the light of section 20(4), to section 21.
Submissions on behalf of Mr Goatley
68.1. In respect of letter 1 from the Public Prosecutor's Office, Mr Bovey observed that this appeared to be an uncertified translation of a document which was not being produced. He submitted that this was unfair and that it should not be taken into account.
He said that the letter appeared to quote selectively from Court records in order to support points being made, adding that, if it had been desired to rely on it, the official record of the Court of Appeal should have been produced and translated. He submitted that this was not satisfactory when the Court required to be satisfied beyond reasonable doubt.
68.2. In respect of letter 2 from Mr Snorn, while this appeared to be a principal and a translation, there was no certification of this. Thus, he submitted that the first issue was whether there was before me material on which I could be satisfied as a fact as to what had happened in order to deal with issue raised in section 20(3).
68.3. Further, on the question of whether Mr Goatley deliberately absented himself from his trial, Mr Bovey submitted that on 13th or 20th January 2003 there were Extradition proceedings which Mr Goatley was contesting, and it was therefore not correct to say that he had deliberately absented himself from his trial in the Netherlands; rather, he had remained in the United Kingdom in order to contest the Extradition request. He submitted that I could not therefore be satisfied that section 20 (3) could be answered in the affirmative.
In reply to a question from the Bench seeking clarification as to whether Mr Bovey was not suggesting a contrary, factual situation but was simply saying that this court did not have sufficient evidence to answer section 20 (3) in the affirmative, Mr Bovey responded that he had nothing to add to what he had said earlier.
Response on behalf of the Lord Advocate
69. In a brief response, Mr Dickson drew attention to the terms of section 203 of the 2003 Act which permitted even a faxed document to be received. He added that he did not consider that certification of these letters was required given the clear terms in which they were expressed and especially when the original Dutch version was available.
My decision
70. I kept in mind and had regard to the fact that I had available to me information led on behalf of the Lord Advocate in the form of letters 1 and 2, and letters introduced on behalf of Mr Goatley from the Public Prosecution's Department and the Home Office (referred to in paragraph 41 above), all of which corresponded with the detailed information contained in the European Arrest warrant. I also kept in mind that, in terms of section 9(2) of the 2003 Act, these proceedings are conducted on the basis of an equivalence with summary criminal proceedings and that, in keeping with the spirit of the Framework Decision and relevant case law, I required to give a purposive interpretation to these provisions.
Approaching the matter in that way, in the light of the whole circumstances of this case and in the absence of any contrary factual assertion, I did not consider that Mr Bovey's submissions had substance or merit, and I was satisfied that I could answer section 20 (3) in the affirmative, and proceed under section 21.
Section 21 - Human Rights
Submissions on behalf of the Lord Advocate
71. Mr Dickson submitted that there were no Human Rights issues in this case which would bar Extradition.
Submissions on behalf of Mr Goatley
72.1. Mr Bovey's first submission in this regard was encapsulated in the first Devolution Minute which Sheriff Maciver had held to be incompetent on 3 February 2006. This related to there being no right of appeal in these matters in Scotland to the House of Lords.
Mr Bovey noted that section 26 of the 2003 Act allowed an appeal from the decision of the Sheriff to the High Court, which was defined in section 216(9) in relation to Scotland as the High Court of Justiciary. Section 32 of the Act provided for an appeal to the House of Lords from the decision of the High Court; but the final subsection (13) disapplied these provisions to Scotland - and it was that provision which Mr Bovey said was at the heart of this submission. He submitted that the exclusion of a right of appeal to the House of Lords was a violation of Article 8 of the European Convention on Human Rights, taken with Article 14 of that Convention. He submitted in particular that there was no such exclusion in relation to proceedings taken in any other part of the United Kingdom ; nor was there such an exclusion under the previous Extradition legislation.
72.2. He referred to the case of Chassagnou & Others v France 1999 Butterworths Human Rights Cases 151 and noted that this related to a complaint by small landowners that they were required to join a hunting co-operative while large landowners were not so required. And he relied upon the case to show how Article 14 operated in conjunction with another Convention Article.
In Mr Goatley's case in respect of the elements of Article 14, Mr Bovey submitted that there was discrimination on the ground of national or social origin and association with a national minority.
He referred to paragraph 89 of the Judgment as showing how Article 14 came into play in association with a separate breach of another substantive Article and, under reference to paragraphs 91 and 92, he submitted that a justification was needed for different treatment of people otherwise in a similar situation. While a margin of appreciation was permitted, there had to be a convincing justification for such a difference in treatment.
72.3. He turned then to the case of Slivenko v Latvia Application number 48321/99, being a decision of the European Court of Human Rights of 9 October 2003, and noted by reference to paragraph 68 of the Judgment that the complaint related to a violation of Article 8 of the Convention in connection with the removal from Latvia by the Latvian authorities of persons of Russian origin. Paragraphs 93 to 98 considered whether and to what extent the Applicants had had a private and family life in Latvia; and Mr Bovey contrasted the situation in that case with that of Mr Goatley. Mr Goatley was a citizen of the United Kingdom and therefore the question of disruption of his home, private and family life were issues. While Mr Bovey conceded that the disruption to serve the outstanding balance of a sentence (of some seven months) was less than permanent expulsion to Russia, that had an effect both ways in that the public interest might be less in enforcing such a short sentence.
72.4. Mr Bovey therefore submitted that the combined effect of the case of Slivenko and the application of Article 8, and the Chassagnou case regarding the scope of Article 14, indicated that the difference in treatment failed to be justified by the United Kingdom Government on a convincing basis.
72.5. He also made reference to the unreported decision in the case of Times Newspapers Ltd v the United Kingdom which had been decided by the European Commission of Human Rights on 5 March 1990.
In this case, Times Newspapers had complained that libel damages claims in the United Kingdom were an interference with their human rights since defamation was not covered by the Convention. One of the arguments by Times Newspapers, invoking Articles 13 and 14 of the Convention in conjunction with Article 10, was that there was discrimination as regards actions in England when compared with Scotland, since in Scotland, where jury trials for libel were extremely rare, damages awards were very modest compared to those awarded in England and Wales. Mr Bovey noted that in paragraph 3 of the Judgment, the Commission not having had demonstrated to it that the newspapers had in any way been inhibited from imparting information and finding that the Applicant could not be regarded as a victim, had added:
"Furthermore, not all differences in treatment amount to discrimination, provided they have an objective and reasonable basis. In this connection, the Commission recalls that the mere existence of a difference in treatment between two jurisdictions does not constitute an arbitrary difference in treatment or discrimination."
72.6. Mr Bovey accepted that the mere existence of separate jurisdictions did not give rise to discrimination, even although that would, on occasion, inevitably give rise to differences.
He noted that the 1989 Act had permitted Judicial Review (of the kind taken in the case of Wright) which gave rise to a right to appeal to the House of Lords in both Scotland and England. In 2003, a highly detailed structure, which had involved a new procedure from start to finish, had been substituted by the 2003 Act, and this had been done by the Westminster Parliament for the whole of the United Kingdom. He submitted that it was inexplicable in these circumstances that the new procedure which had been substituted discriminated in the way it that it did - and he said that the arbitrary quality of this was demonstrated by the fact that if, instead of moving to Scotland, Mr Goatley had moved to somewhere in England, he would not have been discriminated against by this exclusion.
72.7. Mr Bovey noted that it had been suggested that the right to bring Devolution Issue Minutes (which permitted appeal to the Judicial Committee of the Privy Council) provided some sort of compensation for the lack of appeal to the House of Lords. He noted however that the scope of such Minutes was very limited and also that each of the three Sheriffs in Edinburgh who dealt with Extradition matters had held these to be incompetent in Extradition proceedings.
72.8. In these circumstances, Mr Bovey invited me to hold that Mr Goatley's Extradition would be incompatible with his rights under Article 8, taken in conjunction with Article 14, of the Convention - and to discharge him under Section 21.
73.1 Mr Bovey's second submission in this regard was encapsulated in the second Devolution Minute which had also been held on 3 February 2006 to be incompetent. This related to the inability of Mr Goatley to serve the balance of the Dutch sentence in the United Kingdom.
Mr Bovey noted that the purpose of Part 1 of the 2003 Act was to implement the European Union Council Framework Decision of 13 June 2002 on the European Arrest warrant and the surrender procedures between Member States.
73.2. He also noted that Mr Goatley fell within the scope of Article 8 of the European Convention on Human Rights in that his extradition amounted to an interference with his right to respect for his private life. In this respect, Mr Bovey said that Mr Goatley was 54 years of age, had been married since 1978 and had a daughter who was born on 3 August 1988. He had previously lived in South Africa and the Netherlands, had been living in England working on restoring boats, but had not been able to continue doing that in the Southampton area because potential employers had been warned off by Customs & Excise. With some financial capital, he had purchased a dilapidated property in Portpatrick and he had lived there for some two years personally renovating the property along with his wife. The property concerned was an old church which was central to the village in which he had his wife were well known.
73.3. In support of this main submission, Mr Bovey firstly drew attention to the terms of Article 4.6 of the Framework Decision which provided that the executing judicial authority might refuse to execute the European arrest warrant:
"if the European arrest warrant has been issued for the purposes of execution of a custodial sentence or detention order, where the requested person is staying in, or is a national or a resident of the executing Member State and that State undertakes to execute the sentence or detention order in accordance with its domestic law;"
73.4. He then referred to the Practical information issued on 13 December 2004 by the Netherlands for the attention of the judicial authorities of the other Member States of the European Union, and in particular to paragraph 4.1 "Grounds for non-execution under Dutch law" on pages 8 - 10, and noted that the Netherlands would also refuse execution of the European Arrest warrant in respect of "nationals for the purpose of execution of a sentence".
The effect of this was that, in respect of a Dutch national, surrender would be refused if there was a treaty which allowed for a sentence to be served in the Netherlands. Mr Bovey said that the effect of this was that if the situation had been reversed and if Mr Goatley were Dutch, he could serve his sentence in the Netherlands and Extradition would be refused. However, he submitted that since the United Kingdom had not given any undertaking to allow prisoners to serve in the United Kingdom sentences imposed abroad, Mr Goatley was in a less favourable position than a Dutch citizen.
73.5. Accordingly, he again invoked Article 8 in conjunction with Article 14 of the Convention, and looked to the United Kingdom Government to provide a justification for this difference in treatment.
74. In further support of his second, main submission, Mr Bovey, secondly, called into question the compliance by the United Kingdom with its international obligations, since it was apparent that international obligations did not require the UK to extradite its own citizens to serve sentences in, for example, the Netherlands. This was clear from the fact that the Netherlands interpreted its international obligations in a way that did not require it to extradite its own citizens to serve sentences in countries with whom an appropriate treaty existed.
75.1. In further support of his second, main submission, Mr Bovey, thirdly, submitted that the interference with Mr Goatley's private and family life was disproportionate when it would have been possible, in terms of the Framework Decision, to serve the sentence in the United Kingdom. He submitted that there would be less interference with his private and family life if the United Kingdom had acted a similar way to the Netherlands.
75.2. Accordingly, in this respect he invoked Article 8 (on its own and not in conjunction with Article 14) of the Convention, on the basis that the failure by the United Kingdom gave rise to a disproportionate interference with Mr Goatley's Article 8 rights.
75.3. In this respect, Mr Bovey drew attention to a leaflet produced by the Foreign and Commonwealth Office in connection with British prisoners abroad. He noted that, whereas the matter was a right in the way the Dutch operated matters, arrangements appeared to be discretionary for United Kingdom citizens, there normally required to be at least six months of a sentence left to serve (which seemed remote in the present case), and there required to be no outstanding fines or other non-custodial penalties (which might cause a difficulty in this present case since financial penalties had been imposed and were outstanding). These discretionary procedures could only be operated after Mr Goatley had been transferred to the Netherlands, and in any event they seemed a pretty remote possibility in his case.
76. Mr Bovey then made extensive submissions with reference to the decision of the German Constitutional Court in the case known as 2 B v R 2236/04. This was a case in which the German Constitutional Court had set aside the German domestic law which had implemented the Framework Decision. In essence, the domestic law was held to have failed to implement all of the exceptions to the extradition of German citizens which were permitted by the Framework Decision. The Court had held that there was a duty on the German domestic legislators to implement the Framework Decision in the least burdensome manner possible on the individual and that, by not doing so, the legislators had imposed a disproportionate burden on those affected by it.
Mr Bovey submitted that the judgment and the opinions delivered had a resonance with his submissions on behalf of Mr Goatley and were of assistance in that regard.
77.1. He noted that the German Constitutional Court decision would be an unfamiliar document to this Court, but he said that the ideas within it were the same as those which had been urged upon the Court in the case of Wright v Scottish Ministers 2005 SC 453.
He said that this was a case under the 1989 Extradition Act in which it had been argued that the concurrent jurisdiction between Scotland and Estonia had made Extradition a disproportionate interference with the Article 8 rights of the appellant. This had been rejected, but the present argument was a different argument although it did have some resonance. Mr Bovey would say that little assistance was to be had from the Wright case.
77.2. He referred to paragraphs 63 and 70, and submitted that from these paragraphs it could be taken that the court did recognise that the kind of weighing exercise (such as he was urging in this case) was the correct approach. Further, while the existence of a mere possibility did not weigh against the interest in extraditing, this present case was stronger since, in terms of Article 4.6 of the Framework Decision, it was open to the United Kingdom to have sentences imposed on United Kingdom citizens served here in the United Kingdom, as would happen in the Netherlands as regards a Dutch citizen.
77.3. Referring to paragraphs 67, and in particular the comment by the Court regarding the absence of authority, Mr Bovey submitted that the German case was an authority for a proposition equivalent to the proposition which was put forward in the Wright case, so that, not only was the issue different in this case, but the position in which this Court found itself as regards authority, was different in that the German decision was before this Court and was relevant. Mr Bovey acknowledged that the German case was not binding on this Court - and he acknowledged that it might be the first time the court had been asked to do so - but he invited me to keep in mind that such citation was a feature of the interpretation of international legislation, and that court had been persuaded to entertain and apply principles of foreign jurisdictions.
77.4. In the same paragraph 67, Their Lordships had quoted paragraph 28 of the opinion of the Lord Ordinary ; which passage had been adopted by the Divisional Court in the Judgment in the case of Bermingham. But Mr Bovey submitted that none of the considerations canvassed by the Lord Ordinary applied in this present case. Thus, the present case did not depend upon a separate investigation or application of effort; what was being proposed in this case was the enforcing of or complying with what was allowed by the Framework Decision. And this involved an aspect of implementation of the Framework Decision which would match the Netherlands' own implementation. Accordingly, the idea of the Lord Ordinary (in the Wright case) that the Netherlands government would be in any way unhappy with the United Kingdom, did not apply in this case.
77.5. Finally, in respect of the Judgment in the Wright case, Mr Bovey referred to the terms of paragraph 72 and the question of the wide margin of appreciation. Paragraphs 73 and 74 considered the dicta in a number of English cases and, assuming that what was said in paragraph 72 was correct, it had no application in this present case. In this case, he said that the decision maker was the Sheriff and there was no one else to whom to defer. Accordingly, the wide margin of appreciation spoken of by Their Lordships in the Inner House was inapplicable in this present case. Mr Bovey therefore submitted that it was for this Court to be satisfied whether or not the decision to extradite was proportionate.
77.6. He submitted that support for that the proposition was to be found in the case of Slivenko at paragraph 113 on page 28. That paragraph, he submitted, demonstrated that a measure interfering with rights required to be taken in response to a pressing social need and required to be proportionate to the aims pursued. The reference to the margin of appreciation enjoyed by the national authorities in this case fell upon the Sheriff, and the task of ascertaining whether the impugned measures struck a fair balance between the individual's rights protected by the Convention on the one hand and the community's interests of the other, fell to the Sheriff in this case.
78.1. Mr Bovey submitted that support for this proposition was also to be found in the extract of the speech of Lord Clyde in the case of de Freitas v Permanent Secretary of Ministry of Agriculture, Fisheries, Land & Housing [1999] 1 AC 69 at p 80, which was quoted at paragraph 27 on page 547 in the case of Regina (Daly) v Secretary of State for the Home Department [2001] 2 AC 532.
Lord Clyde had observed that in determining whether a limitation (by an act, rule or decision) was arbitrary or excessive, the court could ask itself:
"whether:
(i) the legislative objective is
sufficiently important to justify limiting a fundamental right;
(ii) the measures designed to meet the legislative
objective are rationally connected to it; and
(iii) the means used to impair the right or freedom are no more than is necessary to accomplish the objective."
78.2. Mr Bovey submitted that in relation to (i), fighting crime was sufficiently important to justify limiting a fundamental right; in relation to (ii), the measure of Extradition was not rationally connected to the aim because of the possibility of the sentence being served in the United Kingdom rather than the Netherlands. He said that, for example, punishment by a prison sentence was rationally connected, but that removal to the Netherlands to serve the sentence was not rationally connected because of the alternative available; and in relation to (iii), Extradition was more than was necessary to accomplish the objective since imprisonment in Scotland would be enough to accomplish the objective.
78.3. While referring to that case, but on a different point, Mr Bovey made reference to what was said in paragraph 23 by Lord Bingham:
"Now, following the incorporation of the Convention by the Human Rights Act 1998 and the bringing of that Act fully into force, domestic courts must themselves form a judgment whether a Convention right has been breached (conducting such inquiry as is necessary to form that judgment) and, so far as permissible under the Act, grant an effective remedy."
From that passage, Mr Bovey drew, firstly, that it was for the Court to form a view and, secondly, that part of that duty to form a view was that the Sheriff must conduct such inquiry as was necessary to form that judgment - and that it was for the sheriff to obtain any information he felt that he required. He therefore invited me to hold that the Extradition of Mr Goatley was not compatible with his Article 8 rights, and, in terms of section 21 (2) he invited me to discharge Mr Goatley on that ground.
Submissions on behalf of the Lord Advocate
79.1. Responding to Mr Bovey's submissions, Mr Dickson invited the Court to consider the issue of the purpose of Extradition. He referred to the case of The Queen on the Application of Andrew Rutherford Warren v The Secretary of State for the Home Department [2003] EWHC 1177 Admin and what had been said by Lady Justice Hale at paragraph 40:
"I agree. Because of the importance of the decision to the claimant and to his family, I wish only to emphasise my main reason for doing so. The object of Extradition is to return a person who is properly accused or has been convicted of an Extradition crime in a foreign country to face trial or to serve his sentence there. This includes the determination of whether he is fit to be tried, an issue which, under the criminal justice systems of both this country and New York, is decided by the Court, and not by members of the executive or the medical profession. The Extradition process is only available for return to friendly foreign states with whom this country has entered into either a multi or a bilateral treaty obligation involving mutually agreed and reciprocal commitments. Mr Perry, on behalf of the claimant, accepts that there is a strong public interest in our respecting such treaty obligations. Such international co-operation is all the more important in modern times, when cross-order problems are becoming ever more common, and the need to provide international solutions for them is ever clearer."
Mr Dickson submitted that one could properly read the multi or bilateral treaty obligations as applying to the Council Framework Decision.
79.2. Further, he submitted that, when analysed, what had been said by Lady Justice Hale did meet each of the three stages set out by Lord Clyde in the case of de Freitas, and referred to in the case of Daly.
79.3. He submitted that this had been endorsed in the Wright case when the Inner House had said at paragraph 77:
"Be that as it may, we consider that it is to be taken that, if the United Kingdom has decided to enter into Extradition arrangements with a foreign state, that will have been done only after the government of the United Kingdom has satisfied itself that the system of criminal justice operating in that foreign state is worthy of confidence and, in particular, capable of according a fair trial to an accused person."
79.4. Mr Dickson noted that Mr Bovey had invited the Court to say that, while not putting it aside, this issue did not have the level of importance which the Lord Advocate might give to a situation of return for trial; and that he had also invited the Court to hold that the Framework Decision and the implementation of it by the United Kingdom Government in the Extradition Act of 2003, was in some way flawed in the sense that this was an international obligation which should be given little weight.
79.5. In response, Mr Dickson noted that the Framework Decision involved 25 States agreeing procedures for Extradition, that Preamble (6) provided the concrete reason for it, while Preamble (7) stated that the Framework Decision did not go beyond what was needed in order to achieve the objective - which was stated (in Preamble (5)) to be the replacement of traditional Extradition Conventions by a system of free movement of judicial decisions in criminal matters, covering both pre-sentence and final decisions, within an area of freedom, security and justice.
He submitted that there was a clear indication in the Preamble that what had gone before had not been good enough and was now being replaced by an agreement between 25 Member States with a clear intention.
79.6. He noted that criticism had been made of the diminution of the role of Ministers, but Mr Dickson responded to that by indicating that the intention had been to place decisions a judicial basis so as to enable judicial decisions between Member States to be given full effect. He submitted that all that the Framework Document did was to provide a framework to enable these aims and objectives to be met and, as had been noted previously, the mechanism of Article 34 of The Treaty on European Union was for each Parliament to implement it in the way it that was thought best for the national law of each Member State. This provided the very flexibility which gave rise to the differences to which Mr Bovey had pointed.
79.7. Mr Dickson said that the United Kingdom had not implemented Article 4.6 of the Framework Decision but he submitted that the Convention on the Transfer of Sentenced Persons made at Strasbourg on 21 March 1983 (and which had entered into force as regards the United Kingdom on 1 August 1985 and for the Netherlands on 1 January 1988) had allowed the aim of Article 4.6 of the Framework Decision to be met, in that it did allow a mechanism for someone sentenced in a foreign Court to be returned to serve the sentence in the United Kingdom.
79.8. Mr Dickson stressed that Article 4.6 was an optional and not mandatory element. While the Netherlands had taken that option and, in their law, had made at a mandatory ground, that raised two issues. Firstly, Article 34 (4) of The Treaty on European Union provided for a review (at a political level) of the practical application of the Framework Decision and there was provision in the Framework Decision for it to be set aside by Member States where there were continual breaches, such as non-implementation. Thus, at any such Review, the United Kingdom could be criticised for the non-implementation of Article 4.6, and the Netherlands could be criticised for making it a mandatory condition. He stressed, however, that there remained in terms of Article 6 of the Framework Decision the freedom to implement the Decision as the Member State thought best under its national law.
79.9. Secondly, while Mr Dickson said that Mr Bovey was correct that the Netherlands would not extradite their own nationals to serve sentences in a foreign country, if that was how the Netherlands wished to do it under their own law, that was a matter for the Netherlands Government and the Netherlands Courts to implement ; and he submitted that what was important for this Court was how the United Kingdom government had implemented the matter in terms of United Kingdom law. He submitted that the Court should not be influenced by an argument that "just because it would not happen there, it should not happen here". Accordingly, he submitted that there was an alternative to the implementation of Article 4.6.
80.1. Mr Dickson submitted that the thread of the purpose of Extradition was fundamental to the approach of the authorities in dealing with potential breaches of Article 8 of the Convention on Human Rights; but he accepted that the case of Daly set out how the courts would approach these. Turning to that case, Mr Dickson referred to part of the speech by Lord Bingham at paragraph 23. His Lordship explained that, while he had reached the conclusions so far expressed on an orthodox application of common law principles derived from the authorities and an orthodox domestic approach to judicial review, the same result was achieved by reliance on the European Convention. Having noted that Article 8 (1) gave Mr Daly a right to respect for his correspondence, His Lordship continued:
"While interference with that right by a
public authority may be permitted if in accordance with the law and necessary
in a democratic society in the interests of national security, public safety,
the prevention of disorder or crime or for protection of the rights and
freedoms of others, the policy interference with Mr Daly's exercise of his
right under article 8 (1) to an extent much greater than necessity
requires. In this instance, therefore,
the common law and the Convention yield the same result. But this need not always be so. ..................
Now,
following the incorporation of the Convention by the Human Rights Act 1998 and
the bringing of that Act fully into force, domestic courts must themselves form
a judgment whether a Convention right has been breached (conducting such
inquiry as is necessary to form that judgment) and, so far as permissible under
the Act, grant an effective remedy. "
Mr Dickson referred further to the speech by Lord Bingham at paragraph 12 where, halfway through the paragraph, His Lordship said:
"The more substantial the interference with
fundamental rights, the more the court would require by way of justification
before it could be satisfied that the interference was reasonable in a public
law sense. In this as in other cases
there was applied the principle succinctly stated by Lord Browne-Wilkinson in R
v Secretary of State for the Home Department, Ex p Pierson [1998] AC 539,
575:
'From these authorities I think the following proposition is established. A power conferred by Parliament in general terms is not to be taken to authorise the doing of acts by the donee of the power which adversely affect the legal rights of the citizen of the basic principles on which the law of the United Kingdom is based unless the statute conferring the power makes it clear that such was the intention of Parliament'"
80.2. Thus, Mr Dickson said that the court provided guidance to the effect that the more the interference with fundamental rights, the more the court would require by way of justification before it could be satisfied that the interference was reasonable in a public law sense.
81. This led Mr Dickson to consider paragraph 27 of the judgment, in the speech by Lord Steyn, where he recalled the three stage test enunciated by Lord Clyde in the de Freitas case. Applying that three stage test to the present situation, Mr Dickson submitted that the first question involved the legislative objective of someone convicted and sentenced in a foreign State being returned to serve the sentence there, which he submitted was sufficiently important to justify limiting a fundamental right, in this case, Article 8.
The second question involved consideration of whether the measures designed to meet that legislative objective were rationally connected to it - and Mr Dickson submitted that the transfer back to the Netherlands to serve the sentence was the measure designed to meet the objective, in terms of the obligations under the Framework Decision and the Extradition Act of 2003.
The third question involved consideration of whether the means used to impair the right or freedom were no more than was necessary to accomplish the objective - and Mr Dickson submitted that the return of the person, when weighed in the balance of Article 8, was no more than was necessary to accomplish the objective, which was to return the person to serve the sentence in the State which had imposed it.
82. Mr Dickson said that the overarching objective would be the obligation to meet the aims and objectives of the Framework Decision as implemented by the Extradition Act of 2003.
The Act itself, by design, also allowed the court, if it followed the Act, to answer the questions which arose from the three-stage test of Lord Clyde.
Mr Dickson said that, as had been shown in this present case, the court must be satisfied and be able to answer the various questions on the way. If these were answered in the negative, the person had to be discharged; but he stressed that, particularly concerning rights, the procedural steps in the Act provided for the bars to Extradition being separately considered. Thus, in the present case, the issues arising from section 14 concerning the passage of time, could be answered under Scots Law both as Convention rights and at common law, and that was before the court even considered under section 21 any incompatibility with Convention rights which might be breached.
Mr Dickson submitted that the design of the Act was compatible with the de Freitas three-part test, as set out in Daly ; and further submitted that the Act itself provided an increased number of safeguards for a fugitive.
83. Mr Dickson then turned to look at the Article 8 question as it affected Mr Goatley. He noted that any Extradition would have an impact upon an individual and his family, but submitted that what the court required to do was to look at that balance between the public and private interest. He submitted that the present case was unlike many others in that there was not to be a trial, the sentence was known and the country concerned was not very far away. He did not seek to minimise the impact but noted that it involved a defined and relatively short period, and each day spent in custody here in Scotland was reducing the balance of the period to be served in the Netherlands. Accordingly, these were the private interests which had to be balanced against the public interest of serving sentences lawfully imposed in a foreign State.
84.1. Mr Dickson referred to the case of R (Ullah) v Special Adjudicator [2004] 2 AC 323 which he said was the type of case of which the Court had held could be considered as being similar to the case law regarding Extradition. He referred in particular to two passages from the speech of Lord Bingham within paragraph 24, between A and B and between D and G:
"While the Strasbourg jurisprudence does not preclude reliance on articles other than Article 3 as a ground for resisting Extradition or expulsion, it makes it quite clear that successful reliance demands presentation of a very strong case."
And further on the same paragraph between letters D and F:
"This difficulty will not be less where reliance is placed on articles such as 8 or 9, which provide for the striking of a balance between the right of the individual and the wider interests of the community even where a serious interference is shown. This is not a balance which the Strasbourg court ought ordinarily to strike in the first instance, nor is it a balance which that court is well placed to assess in the absence of representations by the receiving State whose laws, institutions or practices are the subject of criticism. On the other hand, the removing State will always have what will usually be strong grounds for justifying its own conduct: the great importance of operating firm and orderly immigration control in an expulsion case; the great desirability of honouring Extradition treaties made with other states.
84.2. In those passages, Mr Dickson submitted that the court was placing great emphasis upon honouring agreements and that what was said did fit in to the balance in favour of the public interest over the private interests of those such as Mr Goatley. He then noted that the Court had continued, between paragraphs F and G:
" The correct approach in cases involving qualified rights such as those under articles 8 and 9 is in my opinion that indicated by the Immigration Appeal Tribunal in Devaseelan v Secretary of State for the Home Department [2003] Imm AR 1, para 111 :
'The reason why flagrant denial or gross violation is to be taken into account is that it is only in such a case -- where the right will be completely denied or nullified in the destination country -- that it can be said that removal will breach the treaty obligations of the signatory State however those obligations might be interpreted or whatever might be said by or on behalf of the destination State."
84.3. Mr Dickson submitted that, here, the Court had set a very high test to be overcome. In this connection, he referred also referred to the speech of Lord Carswell at paragraph 69:
"The adjective 'flagrant' has been repeated in many statements where the Court has kept open the possibility of engagement of articles of the Convention other than Article 3, a number of which are enumerated in paragraph 24 of the opinion of Lord Bingham of Cornhill in the present appeal. The concept of a flagrant breach or violation may not always be easy for domestic courts to apply -- one is put in mind of the difficulties which they have had in applying that of gross negligence -- but it seems to me that it was well expressed by the Immigration Appeal Tribunal in [the case of Devaseelen] when it applied the criterion that the right in question would be completely denied or nullified in the destination country. This would harmonise with the concept of a fundamental breach, with which courts in this jurisdiction are familiar."
84.4. Mr Dickson submitted that Lord Carswell had clearly stated that that was the test to be overcome. It was not simply a breach of the Article 8 right to private life, but that it would completely deny him that right. And Mr Dickson submitted that the personal circumstances were not such in this case as to meet that high test.
85. Mr Dickson noted that the Ullah case had been referred to in paragraph 53 of the decision in the Wright case and he also made reference to the case of Launder v United Kingdom (1998) 25 EHRR CD 67 which had involved, inter alia, an alleged violation of the appellant's Article 8 right. He referred to paragraph 3 on pages 7 and 8, where the Commission recalled that the Convention did not guarantee a right not to be extradited, that an extradition decision might constitute an interference with the right to respect for family life and that such an interference would be in breach of Article 8 unless it was justified as being in accordance with the law and necessary in a democratic society for one of the aims set out in paragraph 2 thereof; that the appellant's Extradition would amount to an interference with his family life, it being common ground that his wife then lived in the United Kingdom; but that the decision to extradite the appellant complied with the formal requirements of United Kingdom law and had a legitimate aim, namely the prevention of disorder or crime; as regards whether the interference was necessary, the Commission recalled that the notion of necessity implied a pressing social need and required that the interference at issue be proportionate to the legitimate aim pursued ; and, on the issue of proportionality, had then continued
"The Commission considers that it is only in exceptional circumstances that the extradition of a person to face trial on charges of serious offences committed in the requesting State would be held to be an unjustified or disproportionate interference with the right to respect for family life. The Commission finds that in the present case no such circumstances have been shown to exist."
86. Comparing the facts of that case with the facts in this present case, Mr Dickson invited the Court to hold that the extradition of Mr Goatley could not be said to be a breach of the high test in the case of Ullah and approved in the case of Wright.
87. In order to bring matters fully up-to-date, Mr Dickson noted that the passage just quoted had been referred to in the case of Bermingham at paragraph 118. There, Lord Justice Laws had expressed the view that that statement and the authorities in the House of Lords were entirely in line. He noted that if a person's proposed extradition for a serious offence would separate him from his family, Article 8(1) was likely to be engaged on the ground that his family life would be interfered with. The question would then be whether the extradition was nevertheless justified pursuant to Article 8(2). Assuming compliance with all the relevant requirements of domestic law, he said that the issue was likely to be one of proportionality: whether the interference with family life was proportionate to the legitimate aim of the proposed extradition. He had then continued:
"Now, there is a strong public interest in 'honouring Extradition treaties made with other states' (Ullah, paragraph 24). It rests in the value of international co-operation pursuant to formal agreed arrangements entered into between sovereign states for the promotion of the administration of criminal justice. Where a proposed extradition is properly constituted according to the domestic law of the sending State and the relevant bilateral treaty, and its execution is resisted on Article 8 grounds, a wholly exceptional case would in my judgment have to be shown to justify a finding that the Extradition would on the particular facts be disproportionate to its legitimate aim."
Mr Dickson submitted that this was not such a wholly exceptional case as would justify a finding that the extradition would be disproportionate to the legitimate aim. He accordingly invited the Court to hold that there was no disproportionate breach of Article 8.
88.1. Mr Dickson noted that the mechanism for member States giving effect to Article 4.6 of the Framework Decision, namely the Convention on the Transfer of Sentenced Persons, was still in force and, as had been submitted earlier, had been ratified by, and had entered into force in respect of, both the Netherlands and the United Kingdom. He drew attention to Article 2.2 which provided that:
"A person sentenced in the territory of a Party may be transferred to the territory of another Party, in accordance with the provisions of this Convention, in order to serve the sentence imposed on him. To that end, he may express his interest to the sentencing State or to the administering State in being transferred under this Convention."
88.2. Mr Dickson noted that this was the mechanism which allowed the sentence to be served in the "home" State and was the basis of what was said in the leaflet which Mr Bovey had produced. Mr Dickson submitted that how this squared with the implementation of Dutch national law was a matter for the Netherlands since Article 34 (2) of the EC Treaty allowed for such freedom. The Netherlands had made it a condition of extradition that they would use Article 11 of this Transfer of Sentenced Persons Convention. This allowed the Netherlands courts to require that a Dutch national sentenced, for example, in Germany where penalties were more severe than in the Netherlands, if returned to serve the sentence in Netherlands, to convert the sentence to one that would ordinarily be imposed by a Dutch Court. This linked in to the German case, which had been referred to by Mr Bovey, and which was alien to us but was the consequence of the high position in which citizenship was placed in some Constitutions.
88.3. He submitted that the Framework Decision aimed for a level playing field for the mutual recognition of sentences and the return of those who had fled to the appropriate Court. Article 4.6 was an optional ground for the non-execution of the European Arrest warrant but, since Article 34 of the EC Treaty allowed flexibility, the Court had to read across to the Convention on the Transfer of Sentenced Persons and the other elements which States could impose, as the Dutch had done under Article 11.
He stressed however that mutual recognition of judicial decisions was at the heart of it all, added to which were those other Conventions and "opt ins" which were available.
89.1. Mr Dickson then turned to the alleged breach of Article 14 of the Human Rights Convention. He agreed with Mr Bovey that this was not a free-standing Article but could only be engaged within the scope of another right - in this case, Article 8.
89.2. Mr Dickson had returned to the Act of Union of 1707 which had left unaltered the finality of the decisions of the High Court of Justiciary in criminal matters. While subsequent legislation had allowed appeal from Sheriff and Jury cases, that appeal had been to the High Court of Justiciary which was still final, and with no appeal to the House of Lords in criminal matters. In summary criminal proceedings in Scotland, the High Court of Justiciary was the final Court of Appeal. He therefore submitted that, since there was equivalence in terms of section 9 (2) of the 2003 Act to summary criminal procedure, this was a recognition of judicial decisions regarding trial or sentence. Accordingly, since Section 32 (13) of the 2003 Act had specifically excluded appeal to the House of Lords, that was entirely in accord with Scottish Criminal law and procedure.
89.3. He noted that extradition was reserved to the United Kingdom government in terms of the Scotland Act 1998, schedule 5, Part ll, Head (B), section B11. However, since schedule 6 to the Scotland Act provided for devolution issues to be raised before the Court, and since Section 21 of the 2003 Act provided for question of human rights to be dealt with, the limited nature of devolution issues when read with the Act, did not amount to the interference which Mr Bovey had suggested. He noted that the Court could not order extradition under Part 1 if to do so would be incompatible with the Convention Human rights - in terms of Section 21(1). However, in addition, schedule 6 to the Scotland Act did allow a right of appeal ultimately to the Judicial Committee of the Privy Council, and the 2003 Act itself allowed for an appeal to the High Court of Justiciary.
Since the Lord Advocate
had accepted that devolution issues were competent, and standing the decisions
in the cases of Mills and Paton that such issues could only be
raised by Devolution Minute, he submitted that a right of appeal did lie to the
Judicial Committee of the Privy Council.
90.1. Further, Mr Dickson referred again to the case of Daly and to paragraph 12 where Lord Bingham had said:
"From these authorities I think the following proposition is established. A power conferred by Parliament in general terms is not to be taken to authorise the doing of acts by the donee of the power which adversely affect the legal rights of citizen of the basic principles on which the law of the United Kingdom is based unless the statute conferring the power makes it clear that such was the intention of Parliament."
90.2. Mr Dickson submitted that it was quite clear that Parliament had intended in the 2003 Act to limit the right of appeal to the High Court of Justiciary because that was in accordance with summary criminal procedure, which Parliament had said in section 9(2) was to guide proceedings under the Act. He also noted that summary criminal proceedings had the capacity to take account of human rights issues.
90.3. He accordingly submitted that the Court could be satisfied that it had been the clear intention of Parliament to restrict any appeal to the High Court of Justiciary in Scotland and, accordingly, that there was no disproportionate interference with Mr Goatley's rights in terms of Articles 8 and 14.
90.4. Mr Dickson accordingly submitted that the Court should answer Section 21(1) and 21(3) in the affirmative and order Mr Goatley's extradition.
Submissions on behalf of Mr Goatley
91.1. In a brief response to Mr Dickson submissions, Mr Bovey said that, in relation to the three-part test in de Freitas, Mr Dickson had managed to answer the questions in his favour by restating the aim ; but Mr Bovey said that life was not as simple as that.
He submitted that the question to be posed had to be a legitimate aim in terms of the Convention which he said involved not compliance with international obligations but with the fight against international crime. So he submitted it was not correct to introduce that and it was particularly not correct in this case where what Mr Bovey argued for was already provided for.
91.2. In the cases of Bermingham and Ullah, the importance of honouring international obligations had been stressed ; but what Mr Bovey was arguing for did involve honouring bilateral treaties.
Having regard to the case of Ullah, and what had been said by Lord Bingham at paragraphs 7 and 9, it was clear that there were domestic cases, with the harm in this country, and foreign cases, where the harm might be abroad.
Mr Goatley was not complaining that he would be mistreated in a Dutch prison or that he would receive inadequate medical treatment ; he was saying that by sending him (a domestic case) the United Kingdom was violating his rights (to his private and home life in the United Kingdom) and the high test was therefore not relevant. Paragraph 24 showed that the House of Lords was dealing with the context of foreign cases and therefore had no relevance to the present case. And when in the case of Wright, at paragraph 53, the Court adopted the passage from Ullah, it had done so in the context that he would be ill and would receive inadequate health care.
Thus, Mr Bovey submitted that comments related to different circumstances.
91.3. The case of Launder was a case concerning trial and not sentence, and he submitted that the issue of serving sentence at home did not arise - and so the case was not any real assistance either.
91.4. Regarding the justification is offered by the State here for different treatments within the United Kingdom, Mr Bovey said that there had been no justification offered concerning serving sentences in the home country ; Mr Dickson had simply said that was done differently in this country. Mr Bovey said that this was not a justification; it was simply a statement fact in respect of which a justification was being sought by him.
91.5. As regards the issue of appeal to the House of Lords, Mr Bovey noted that Mr Dickson offered, firstly, appeal to the Privy Council, which Mr Bovey submitted this Court could not accept in the light of its earlier decision and, secondly, summary criminal procedure in Scotland. In this latter regard, Mr Bovey noted that it was no less criminal business under the 1989 Act, but Judicial Review and still been available which in turn had allowed for appeal to the House of Lords. The Scotland Act allowed appeal to the Privy Council and he therefore submitted that the idea that the Treaty of Union was somehow being observed, must be misconceived and wrong. He therefore renewed the motion which he had made earlier.
My decision
92. I accepted Mr Dickson's submissions concerning the purpose of extradition, the intention and effect of the Framework Decision, and in particular its objective of replacing traditional Extradition Conventions amongst 25 Member States by a system of free movement of judicial decisions in criminal matters, within the area of freedom, security and justice.
I also accepted that it had clearly been the intention to place decisions (which had previously been made by Ministers, and hence subject to Judicial Review) on a Judicial basis, so as to enable judicial decisions between Member States to be given full effect.
I was satisfied that all that the Framework Decision did was to provide a framework to enable the specified aims and objectives to be met and that the mechanism of Article 34 of The Treaty on European Union was for each Parliament to implement it in the way that it was thought best for the national law of each Member State. I agreed with Mr Dickson that this provided the very flexibility which gave rise to the differences to which Mr Bovey had pointed.
93.1. I accepted the authority of the decisions and the passages from the speeches in the cases referred to by Mr Dickson providing guidance as to how Courts should approach interference with fundamental rights.
93.2. I was also satisfied that Mr Dickson's submissions were correct as to the application to the present situation of the 3 stage test enunciated by Lord Clyde in the de Freitas case.
Thus, I accepted that the first question involved the legislative objective of someone convicted and sentenced in a foreign State being returned to serve the sentence there, which was sufficiently important to justify limiting a fundamental right, in this case, Article 8.
I further accepted that the second question involved consideration of whether the measures designed to meet that legislative objective were rationally connected to it -- and that the transfer back to the Netherlands to serve the sentence was the measure designed to meet the objective, in terms of the obligations under the Framework Decision and the Extradition Act of 2003.
Finally, I accepted that the third question involved consideration of whether the means used to impair the right or freedom were no more than was necessary to accomplish the objective - and that the return of the person, when weighed in the balance of Article 8, was no more than was necessary to accomplish the objective, which was to return the person to serve the sentence in the State which had imposed it.
93.3. It did seem to me that, in the way the United Kingdom Government had implemented the Framework Decision in the 2003 Act, not only had an appropriate and reasonable margin of appreciation been taken, but the design of the Act was such that it allowed a Court, if it followed the scheme of the Act, to answer the questions which arose from the 3 stage test.
94. In respect of Mr Bovey's submission that Mr Goatley's Convention Rights quoad Articles 8 and 14 had been breached by the discriminatory exclusion in the 2003 Act of any appeal in Scotland onwards from the High Court of Justiciary to the House of Lords, I noted that the Act of Union of 1707 had left unaltered the finality of the decisions of the High Court of Justiciary in criminal matters. While subsequent legislation had allowed appeal from Sheriff and Jury cases, that appeal had been to the High Court of Justiciary which was still final, and with no appeal to the House of Lords in criminal matters. I also noted that, in summary criminal proceedings in Scotland, the High Court of Justiciary was the final Court of Appeal. I therefore accepted that, since there was equivalence in terms of section 9(2) of the 2003 Act to summary criminal procedure, this was a recognition of judicial decisions regarding trial or sentence. Accordingly, since Section 32(13) of the 2003 Act had specifically excluded appeal to the House of Lords, I considered that to be entirely in accord with Scottish Criminal law and procedure.
95. Although, firstly, in terms of the Scotland Act 1998, devolution issues could be raised by Minute and these could ultimately be the subject of appeal to the Judicial Committee of the Privy Council and, secondly, in terms of that Act, no member of the Scottish Executive could Act in a way which was incompatible with any of the Convention rights or with Community law, I did not consider that that had any bearing on this question of the lack of an appeal under the 2003 Act to the House of Lords. This was because Extradition was not a devolved subject but was reserved to the United Kingdom Government in terms of the Scotland Act 1998, Schedule 5, Part ll, Head B, Section B 11.
96. I also considered that to be not only the clear and ambiguous intention of the United Kingdom Parliament (Lord Bingham at paragraph 12 of His Lordship's speech in Daly), but also to be consistent with the implementation in the United Kingdom of the Framework Decision. The 2003 Act made specific provision for Human rights issues to be separately considered by the Court as an integral part of the scheme of the Act. When that was taken in conjunction with the procedural equivalence with summary criminal proceedings in section 9(2) of the 2003 Act, it seemed to me that it was a convincing and justifiable reason for Parliament deciding that different treatment concerning appeal to the House of Lords was required and was appropriate for Scotland. This seemed to me to be within an acceptable margin of appreciation. I therefore concluded that there was no disproportionate interference with Mr Goatley's rights in terms of Articles 8 and 14.
97. In respect of Mr Bovey's submission that Mr Goatley's Convention Rights quoad Article 8 on its own and, separately, in conjunction with Article 14, had been breached by the failure of the United Kingdom Government - as Mr Bovey put it - to comply with its international obligations to take steps which would have allowed Mr Goatley to serve the balance of the Dutch sentence in United Kingdom; and by the disproportionate interference with his private and family life when it would have been possible, in terms of the Framework Decision, to serve the balance of the Dutch sentence in the United Kingdom. I was satisfied that these were not well-founded and that effect should not be given to them. I was satisfied that Mr Dickson was correct to draw attention to the arrangements which the United Kingdom had made to allow consideration to be given to the question of a person sentenced in a foreign Court serving that sentence in the United Kingdom.
Although the United Kingdom had not implemented Article 4.6 of the Framework Decision, the Convention on the Transfer of Sentenced Persons made at Strasbourg on 21 March 1983 (and which had entered into force as regards the United Kingdom on 1 August 1985 and for the Netherlands on 1 January 1988) did allow the aim of Article 4.6 of the Framework Decision to be met, in that it did allow a mechanism for someone sentenced in a foreign Court to be returned to serve the sentence in the United Kingdom. Further, I noted that Article 4.6 was an optional and not a mandatory element and that there remained in terms of Article 6 of the Framework Decision the freedom to implement the Decision as the Member State thought best under its national law (and also Article 34(2) of the Treaty on European Union). While Mr Bovey was correct that the Netherlands would not extradite their own nationals to serve sentences in a foreign country, I also considered that Mr Dickson was correct when he said that if that was how the Netherlands wished to do it under their own law, that was a matter for the Netherlands Government and the Netherlands Courts to implement. What was important for this Court was how the United Kingdom Government had implemented the matter in terms of United Kingdom law. Accordingly, I was satisfied that there was an alternative to the implementation of Article 4.6 of the Framework Decision.
98. In regard to Mr Bovey's submissions concerning the German Constitutional Court case and its resonance with what had been submitted on behalf of Mr Wright in his case against the Scottish Ministers, having studied the case, it seemed to me that the German case had everything to do with German Constitutional Law and its application to the national implementation of the Framework Decision. I found it to be of little or no assistance to me in considering the application of the Framework decision in the national implementation of it in the United Kingdom. I did not find that the case was persuasive to any material extent and it largely reflected a country with a written constitution in a country where, in addition to citizenship protections, the German criminal code and domestic law equipped the prosecution there with powerful, if not universal extra-territorial jurisdiction over German citizens and crimes committed outwith German territory. The difficulties encountered in Germany as a result were of interest as a constitutional development ; but the case did not persuade me that the United Kingdom implementation of the Framework Decision in our domestic legislation, namely the Extradition Act of 2003, contravened the Article 8 rights of the United Kingdom citizens in that respect. In addition, while I examined the decision and the opinions in the Wright case in the light of Mr Bovey submissions, I did not find the importance and relevance of that case to this present case was undermined in any respect. The principles which were being set forth seemed to me to be of great importance and assistance in approaching and dealing with the task which Parliament had set for me in the application of the 2003 Act to the circumstances affecting Mr Goatley.
99. Any Extradition would have an impact upon an individual and his family; but I was satisfied that what the Court required to do was to consider the balance between the private interests of the individual and his family and the public interest, in this case, of serving sentences lawfully imposed in a foreign State (and of honouring international obligations thereanent). I considered that Mr Dickson's submissions on this were well-founded and were to be preferred to those of Mr Bovey. Under reference to the passages quoted from the cases of Ullah, Devaseelan, Launder, Wright and Bermingham, I was satisfied that, while great emphasis was being placed on honouring international agreements, a balancing exercise was required by the Court between the rights of the individual (such as those contained in Article 8) and the wider interests of the community even where a serious interference was involved. Further, I was satisfied that only a flagrant denial or gross violation of rights - where the right would be completely denied or nullified - would be sufficient to meet the high test involved. Although Mr Goatley's Article 8 right to family life would be interfered with, I considered that that interference fell a very long way short of what would be required to outweigh the legitimate wider interests of the public and the community. I did not consider that Mr Goatley's circumstances came anywhere close to the wholly exceptional circumstances which would amount to an unjustified or disproportionate interference with his right to respect for his family life or would justify a finding that the Extradition would be disproportionate to its legitimate aim.
100. I should note that, although Mr Bovey placed considerable emphasis on Lord Bingham's distinguishing between "domestic" cases and "foreign" cases (in His Lordship's speech in the case of Ullah, at paragraphs 7 and 9), I did not consider that that detracted from the importance or the significance of what His Lordship said at paragraph 24. While Mr Bovey quoted extracts from that paragraph, when the whole paragraph was considered, and in the context of the whole speech and the answer to the primary issue in the appeals, I consider that Mr Dickson was fully justified in the use he sought to make of it, namely to demonstrate the very high test which the Court said had to be overcome, which was to show a flagrant denial or gross violation of the person's Convention rights in the balancing exercise being undertaken.
101. I was therefore satisfied that these were appropriate and relevant references to what had been said on the issues of principle in all of the cases mentioned above, namely Ullah, Devaseelan, Launder, Wright and Bermingham. I therefore concluded that this was not such a wholly exceptional case as would justify a finding that Extradition would be disproportionate to the legitimate aim. I further concluded that there was no disproportionate breach of Article 8, either on its own or in conjunction with Article 14.
102. I was therefore satisfied that I could answer the question in section 21(1) in the affirmative and proceed in terms of section 21(3) to order that Mr Goatley should be extradited to the Netherlands in terms of the European Arrest Warrant.
Third Devolution Minute
103. Although that concludes my consideration of the issues raised in submissions, I recorded at paragraph 13.2 above that there had been placed before me on behalf of Mr Goatley what was described as a Third Devolution Minute. Mr Bovey moved me to consider and give effect to the Craves in that Minute; but I refused the Minute as incompetent. I shall therefore set out the submissions which I heard in this regard and the reasons for my decision.
104. The issue sought to be raised in the Minute related to the validity of the European Arrest Warrant in this case, and Mr Bovey's submission that this involved a violation of Community law. Mr Bovey conceded that the Minute covered the substance of matters on which I had already been addressed and on which I had already reached and issued my decision. This is now set out at paragraphs 1 to 10 above. Mr Bovey sought to have the matter dealt with in this manner, conceding that it was essentially a technical exercise, using a different procedural vehicle in respect of what had gone before.
105. On behalf of the Lord Advocate, Mr Dickson confirmed that he represented only the Lord Advocate and it appeared that no one had any instructions to appear on behalf of the Advocate General for Scotland. Mr Dickson submitted that the issue here was whether the Court regarded the Minute as competent; adding that the Lord Advocate considered that such a Minute was competent in these proceedings. If the Court considered that the Minute was competent, however, Mr Dickson submitted that, given the way the Minute had been framed, the Crown Agent was not subject to the terms of the Scotland Act in the way set out in the Minute.
106. In response, Mr Bovey submitted that his analysis was different, and if the act of the Lord Advocate could be scrutinised, then he considered that that opened the door to consideration of the issue raised in this Minute concerning the position of the Crown Agent.
107. In essence, my view of this matter is that a Devolution Issue Minute can only relate to matters, or acts in relation to matters, which have been devolved to, or are properly within the competence of any member of, the Scottish Executive. Extradition was not devolved but was reserved to the Westminster Parliament in terms of section 30 of the Scotland Act 1998, and Schedule 5, Part ll, Head B, paragraph B11. The United Kingdom Parliament passed the Extradition Act 2003 to make provision about Extradition and, in section 191, inter alia, placed a statutory duty upon the Lord Advocate to conduct any Extradition proceedings in Scotland. Since this is a statutory function which has been conferred upon the Lord Advocate alone after he ceased to be a Minister of the Crown, it must be covered as a "retained function" in terms of section 52(6) and (7) of the Scotland Act.
I therefore consider that in Extradition matters the Lord Advocate is acting merely as someone upon whom a statutory function has been conferred by the 2003 Act, and by that Act alone. In particular, in the light of the foregoing, in my view he cannot be acting in his capacity as a member of the Scottish Executive. I therefore consider that section 57(2) of the Scotland Act has no application in this matter, and that accordingly no devolution issue arises to be dealt with by any Minute.
108. It may also be noted that judicial consideration of Human Rights has quite specifically been included as an integral part of the statutory scheme of the 2003 Act. Duplication of judicial consideration would therefore inevitably be involved in Scotland alone if such a Minute were to be competent.
109. I consider that that is
adequate to deal with the issue in this case.
However, I am aware that I have not dealt with the question of whether
the Lord Advocate might be appearing in his capacity as head of the system of
criminal prosecution in Scotland or whether his position is as it were sui generis in such proceedings. Accordingly, for the sake of brevity, I
shall restrict myself saying that I agree with the views on this which have
been expressed by my colleagues in other Extradition cases dealt with recently
in Edinburgh, namely Sheriff Maciver in (thus far) unreported cases and Sheriff
Stoddart in the case of H M Advocate v
Headrick 2005 SCCR 787 in
particular at pages 793 to 799 and paragraphs 4 to 30. I do not consider there is anything further that
I can usefully add in this regard.