Scottish Sheriff Court Decisions

Mrs Fasola appeared further at Edinburgh Sheriff Court, again with legal representation, on 28 November 2006 in respect of warrant No 3 (European arrest warrant No 6223-02). The statutory procedure was again followed and Mrs Fasola was released on bail on standard conditions along with the additional pre-release condition that she lodge the sum of £2,000 as surety. This sum was duly lodged and she was released on bail.

Mrs Fasola also appeared in respect of a further European Arrest warrant No 2 (European Arrest warrant No 2536/1995), the procedure in which was virtually identical to that in respect of warrant No 3.

Sundry procedural hearings which had been fixed for dates prior to 7 February 2007 required to be discharged at the request of the representatives of Mrs Fasola in order to allow further time for preparation.

Hearings at which I heard submissions on behalf of parties took place on 6 and 7 February, 6 March, 27 and 30 April, 2007, with additional hearings set down for 4 and 19 June 2007. Thereafter, the hearings were continued until 17 August and then 19 September 2007 for me to consider and issue my decision.

Two Devolution Issue Minutes (Nos 3 and 4) had been lodged on behalf of Mrs Fasola in which it was maintained that, because the European arrest warrants had not been issued by a judicial authority, they were not valid European Arrest warrants. As a consequence, it was maintained that, in conducting the proceedings on that basis, the Lord Advocate had acted and was continuing to act in a manner which was incompatible with Community Law and therefore ultra vires in terms of section 57 (2) of the Scotland Act 1998.

Having heard submissions on behalf of both Mrs Fasola and the Lord Advocate, I upheld the validity of the European arrest warrants Nos 1 and 3 and refused to sustain the Devolution Minutes Nos 3 and 4.

Having answered the question in section 11 (1) of the 2003 Act in the negative, I then applied section 11 (4) which required me to proceed under section 20, since Mrs Fasola was alleged to be unlawfully at large after conviction of the Extradition offences.

Having heard further submissions on section 20 of the said Act, I held that Mrs Fasola had not been convicted in her presence and that she had deliberately absented herself from her trials. I therefore answered in the affirmative the question raised in section 20(3) of the said Act and, having applied section 20 (4), I then proceeded under Section 21 of the said Act.

I then heard submissions in terms of section 21 (1) of the said Act on whether Mrs Fasola's Extradition would be compatible with her Convention rights within the meaning of the Human Rights Act 1998.

At the same time, I heard submissions in respect of two further Devolution Issue Minutes (Nos 1 and 2) which had been lodged on Mrs Fasola's behalf.

In these Minutes, it was maintained that, since the 2003 Act did not provide a ground of refusal for execution of a Part 1 warrant on the basis contained in Article 4(6) of the Framework Decision (namely that where the requested person is staying in, or is a national on a resident of the executing Member State and that State undertakes to execute the sentence in accordance with its domestic law - that is to serve the sentence in the country where the requested person is), that failure was incompatible with her Convention rights in terms of Article 8 of the European Convention on Human Rights.

Having heard these submissions, I was satisfied that there was no disproportionate interference with Mrs Fasola's Convention rights within the meaning of the Human Rights Act 1998 and, specifically, that there was no disproportionate interference with her Article 8 right. Accordingly, I firstly refused to sustain the Devolution Minutes Nos 1 and 2 and, secondly, I answered in the affirmative the question raised in section 21(1) of the said Act.

Thereafter, in the light of that affirmative answer, in terms of section 21 (3) of the said Act I ordered Mrs Fasola to be extradited to Italy, being the category 1 territory in which the warrants had been issued.

In the light of that decision, the Public Prosecutor of the Republic in Milan made the appropriate reduction in the unified sentence to be enforced and issued a fresh Enforcement Order (item 36 of the Joint Bundle of Authorities).

At the same time and for the above reason, that Public Prosecutor revoked the European arrest warrant No 2, and the appropriate documentation in that regard was placed before me at Edinburgh Sheriff Court on 27 April 2007. Thereafter, on the motion of the Lord Advocate and without opposition, in terms of section 41 of the 2003 Act, I ordered Mrs Fasola's discharge in respect of that warrant No 2.

Although that ended Mrs Fasola's interest in and liability to return in respect of that warrant, and also ended the involvement of this Court in respect of that warrant, extensive submissions had already been heard in respect of it on 7 and 8 February and on 6 March 2007. Because a number of these submissions were very significantly bound up with submissions which related to the other warrants Nos 1 and 3, it has not been possible - as might otherwise have been expected - to remove all of the references to said submissions in respect of the said warrant No 2.

It is for this reason, therefore, that there remain occasional references to warrant No2 despite its not featuring further after 27 April 2007.

Submissions on behalf of the Lord Advocate

Section 10 of the 2003 Act

He invited me to find that Extradition offences were disclosed in the European Arrest Warrants and thus to be satisfied in terms of said section 10(2).

Section 65(1)

As regards section 65(1)(a) of the 2003 Act, each of the three European Arrest Warrants indicated an address at Newton Croft, Howes Road, Bucksburn, Aberdeen.

Warrant No 1 disclosed (at section (b) on the second page) a conviction ("judgment of conviction") by the Court of Milan on 4 February 1998 and (at section (c) of the same page) a sentence of four years and two months of imprisonment.

[Warrant No 2 bearing the reference No 2536-1995, was issued on 17 November 2006 and disclosed (at sections (b), (c) and (d) on the second page) a conviction ("judgment of conviction") by the Court of Milan on 11 April 1995, a sentence of four years imprisonment, with the remaining sentence to be served being two years, five months and nine days imprisonment, and that Mrs Fasola had been present at the time of conviction.]

Warrant No 3 bearing the reference No 6223-02, was issued on 17 November 2006 and disclosed (again at sections (b), (c) and (d) on the second page) a conviction ("judgment of conviction") by the Court of Milan on 11 May 2001, a sentence of four years imprisonment, with the remaining sentence to be served being four years imprisonment, and that the decision had been rendered in Mrs Fasola's absence.

Mr Dickson submitted that the foregoing information established that Mrs Fasola fell within the terms of section 65(1) of the 2003 Act.

[Mr Dickson noted that (towards the end of the same section) Warrant Nos 2 and 3 specifically indicated that the convicted person was still unlawfully at large, and he submitted that that put beyond doubt the circumstances required to satisfy the terms of section 65(1)(a) of the 2003 Act.]

Section 65(2)

With regard to warrant No 1, Mr Dickson referred to section " (e) Offences" on the third page and noted that the warrant related in total to two offences and that what was there narrated disclosed conduct occurring on 22 March 1991 in Milan, Italy with nothing to suggest conduct anywhere other than in Italy.

[With regard to warrant No 2, also under reference to the same section on the third page, he noted that the warrant related in total to two offences, that what was there narrated disclosed conduct occurring on 14 February 1994 in Milan, Italy, that that conduct in Italy amounted to counterfeiting of currency, including the Euro, and with nothing to suggest conduct anywhere other than in Italy.]

With regard to warrant No 3, also under reference to the same section on the third page, he noted that again this warrant related in total to two offences, that what was there narrated disclosed conduct occurring between September 1988 and 22 June 1989 in Milan, Italy, that that conduct in Italy amounted to counterfeiting of currency, including the Euro, and with nothing to suggest conduct anywhere other than in Italy.

[9] As regards section 65(2)(b) of the 2003 Act, Mr Dickson submitted that the European Arrest warrant could demonstrate that the conduct concerned fell within the Framework list and that, if the conduct did fall within that list, there was no need to establish dual criminality.

He drew attention in this regard to the terms of section 215(1) of the 2003 Act which specifies the European framework list as the list of conduct set out in Schedule 2 to the 2003 Act. He submitted that that list had been adopted by all states involved in the Framework Decision and that the same list was in each of the warrants in respect of Mrs Fasola.

In warrant No 1, on the fourth page, the Italian authorities had indicated "organised or armed robbery", which is No 18 of the European Framework list.

[In warrant No 2, on the fourth page, the Italian authorities had indicated "counterfeiting of currency, including the Euro", which is No 10 of the European Framework List.]

In warrant No 3, on the fourth page, the Italian authorities had indicated "counterfeiting of currency, including the Euro", which is No 10 of the European Framework list.

Thus, Mr Dickson submitted that all the warrants qualified and satisfied the terms of section 65(2)(a) and (b) of the 2003 Act.

Here, he noted that warrant No 1 at sections (c) and (e) demonstrated that a sentence of four years and two months of imprisonment had been imposed in Italy in respect of offences of organised or armed robbery, and that all of that sentence remained to be served;

[that warrant No 2 at the same sections demonstrated that a sentence of four years imprisonment had been imposed in Italy in respect of offences of counterfeiting of currency, including the Euro, and that two years, five months and nine days imprisonment remained to be served;]

that warrant No 3 at the same sections demonstrated that a sentence of four years imprisonment had been imposed in Italy also in respect of offences of counterfeiting of currency, including the Euro, and that all of that sentence remained to be served.

Mr Dickson therefore submitted that all the warrants qualified and satisfied the terms of section 65(2)(c) of the 2003 Act.

However, in the body of the communication (bearing to set out the reasons for the rejection of the petition) Mr Dickson noted that that Public Prosecutor had issued a "unification of sentences on 11th May 2005, leading to a remaining sentence of 10 years, 7 months and 9 days of custody".

He noted that this was the correct total in respect of the sentences contained in the 3 warrants.

Mr Dickson observed that the fourth paragraph of this communication noted that a reduction of three years could be applied to the remaining custodial punishment deriving from the unification of the sentences, and that this would leave 7 years, 7 months and 9 days of imprisonment to be served.

He noted that two issues might arise from that in connection with section 65(2)(c).

The first related to the sentence imposed and the second related to the reduction and how it was to be taken into account.

As to the second point, he submitted that there would clearly be a reduction in sentence of three years but, on the basis of that communication from the Public Prosecutor's Office, the reduction was made against the cumulo sentence and not against the individual sentences contained in each of the 3 warrants.

As to the first point, the terms of section 65(2)(c) required that a sentence of imprisonment for a term of 12 months or more had been imposed. Since the purpose of the European Arrest warrant was mutual recognition among the member states, Mr Dickson invited the court to hold, firstly, that each warrant did show a sentence of more than 12 months which had been imposed and, secondly, since the purpose of the warrant was mutual recognition of the decision of the Italian Courts, how the Italian Courts applied this was not one with which this Court need be concerned nor need it be inquired into by this Court.

Mr Dickson accepted that there would be a reduction in the overall sentence if return of Mrs Fasola was ordered but he submitted that this had no effect on this Court being satisfied as to whether the condition in section 65(2)(c) of the 2003 Act was met - which he submitted that he had already demonstrated.

Accordingly, Mr Dickson invited the Court to hold that each of the 3 warrants disclosed all that was needed to satisfy the terms of section 65(1) and (2) of the 2003 Act, that the offence specified in each of the warrants was an extradition offence in terms of section 10(2) of the 2003 Act, and that the Court should therefore, in terms of section 10(4), proceed under Section 11 of the 2003 Act.

Submissions on behalf of Mrs Fasola

Section 10(1) and Section 2(2)

Validity of warrants - Competent Judicial Authority

[In addition, Mr Bovey drew attention to the fact that, in this regard, he was arguing the Devolution Minute point as well as the statutory point - see paragraphs 104 to 109 below.]

So, Mr Bovey noted that the warrant required to be issued by a judicial authority, and submitted that this had not been done in the present case.

He noted that, as regards warrant No 1, the fifth page showed that the warrant had been issued by Dr Laura Gay, a Deputy State Prosecutor of the Office of the State Prosecutor of Milan, and that her contact details were provided.

Mr Bovey drew attention to the same parts of warrants Nos 2 and 3 where the same or similar information was provided about Dr Gay as the issuer of the warrants.

Mr Bovey noted that this point had been considered and rejected by the Appeal Court in the case of:

In relation to the three warrants in the present case, while Mr Bovey accepted that it was clearly and specifically stated on the third page of warrant No 2 and on fourth page of warrant No 3 that the convicted person was still unlawfully at large, no such statement was to be found in warrant No 1. He submitted that, if Mrs Fasola was unlawfully at large regarding warrant No 1, it would had been easy to have said so. He added that this Court could not be satisfied beyond reasonable doubt that she was unlawfully at large in respect of this warrant when the warrant itself did not say so.

Mr Bovey submitted that "unlawfully at large after conviction of an offence" had been considered by the Court of Appeal in the case of

Section 2 (6)

Mr Bovey said that the question was what these two offences were and to what did this relate.

He submitted that there appeared to be only one robbery and that it was not clear what this was about. He therefore submitted that section 2(6)(b) could not be satisfied in respect of warrant No 1.

Extradition offence

Section 65

In respect of Section 65(1)(a), for the reasons which he had already given in his earlier submissions, he submitted, firstly, that Mrs Fasola was not said to be unlawfully at large as regards warrant No 1, and, secondly, that the offences were not intelligibly demonstrated as regards warrant No 1.

In respect of Section 65 (2)(a), Mr Bovey submitted that, in respect of "conduct", the same point which he had made in his earlier submission arose regarding the lack of clarity concerning the conduct involved.

In respect of Section 65 (2)(b), since this involved a certificate issued by an appropriate authority regarding the conduct falling within the European framework list, and since Section 66(2) of the 2003 Act defined an appropriate authority of a category 1 territory as "a judicial authority of the territory which the appropriate judge believes has the function of issuing arrest warrants in that territory", Mr Bovey submitted that this test could not be met since the certificate was signed by a prosecutor.

19. Turning specifically to consider warrant No 1, Mr Bovey submitted that the conduct concerned required, in terms of Section 65 (2)(b), to be certified as falling within the categorisation contained within the European framework list. For warrant No 1, this was said to be "organised or armed robbery"; and for a description of the offences there were said to be two offences, although there appeared to be only one armed robbery.

Thus, he submitted, if the other offence was not armed robbery, this warrant fell, firstly, because the offence was not specified and, secondly, because it was not armed robbery. He submitted that this must be so because the description of the offence required to fall within the box that had been ticked.

In addition, as regards Section 65 (2)(c), he firstly repeated his submission that the certificate could not qualify since it was not signed by a judicial authority.

Secondly, he further submitted that the requirements of that section were not met because, on the face of this warrant, the punishment had prescribed. He submitted that construing Section 65(2)(c) involved a requirement that the sentence be one that was currently enforceable. If it was not so, because for example it had already been served, had been pardoned, suspended or had prescribed, than the requirements of subsection (2)(c) would not be met. Mr Bovey submitted that this was self-evidently correct since the purpose of the process was to return people to serve sentences, and not to engage in academic or historic exercises.

In warrant No 1 on the 11th page (marked "page 14"), under the general heading of "Miscellaneous Information", on the subject of Limitation was the following:

"The penalty shall lapse 10 years, which run from 15.11.2000, date on which the judgment became final."

In warrant No 3, the translation on page 7 of the "Miscellaneous Information" section [defence production No 2] contained the following at number 083 on the subject of Limitation:

"The penalty shall become statute-barred in 10 years, as from 17.10.2002, date of irrevocability of the decision."

The translation on page 6 of the "Supplementary Information" section, at number 031 (in the second column) provided information that the Judgment of the Court of Milan had been issued on 11 November 2001, becoming irrevocable on 17 October 2002.

Mr Bovey then submitted that that information was therefore fully in accord with the information about when the penalty would become statute-barred.

By contrast, in warrant No 2, the translation of the equivalent "Supplementary Information" and "Miscellaneous Information" [defence production No 1] was to be found on pages 5 and 6 respectively.

There, at number 031 (in the second column) was found information that the Judgment of the Court of Milan had been issued on 13 December 1994, becoming irrevocable on 21 November 1995. On page 6 at number 083, it was said that the penalty would become statute-barred in 10 years, "as from 17.10.2002, date of irrevocability of the decision".

While further research was still being carried out on this point, Mr Bovey submitted that, on the face of it, warrant No 2 was statute-barred.

It had been seen in warrants Nos 1 and 3 that the statutory limitation was said to come into effect 10 years from the date of irrevocability of the decision, and that it was applied in that way.

As regards warrant No 2, if the same rule was said to apply, the date of irrevocability was in November 1995, and it would appear to have become statute-barred 10 years from then, namely 21 November 2005.

It was noted that the reference to the date in 2002 was the same as the date that had been given in warrant No 3; and it therefore appeared that this was simply an error by the person who prepared the Supplementary and Miscellaneous Information.] [Note : This warrant No 2 was withdrawn on 27 April 2007.]

Italian implementation of European arrest warrants

Mr Bovey noted that Article 40 related to "Transitional provisions", and he noted that Article 40.2 provided that, except as provided in Article 40.3, the "pre-European Arrest warrant" Italian law on the subject of extradition would continue to apply to requests for executing European Arrest warrants which related to offences committed before 7 August 2002.

Mr Bovey submitted that, if that was correct, all three warrants in this case would be excluded since all of the conduct referred to in these warrants took place before 7 August 2002.

He therefore submitted that these could not be valid Part 1 warrants.

Mr Dickson had accepted that the 3 warrants disclosed sentences which amounted cumulatively to 10 years, 7 months and 9 days and also that Mrs Fasola was entitled to benefit of the pardon. Mr Dickson had submitted that the communication from Dr Gay stated that the benefit of the pardon would involve three years being deducted from the total sentence; but Mr Bovey submitted that it was not clear how further offences could constitute extra offences if Mrs Fasola had been pardoned for them. He questioned the point of returning Mrs Fasola for a sentence of 2 years, 5 months and 9 days [warrant No 2] if she had been pardoned to the extent of three years. And he questioned how that could be an extradition offence in these circumstances.

He submitted that, separately, the question remained as to what would be the effect on the cumulative total sentence if Mrs Fasola was not returned on one (or two) of the warrants.

He would have more submissions to make later on the question of pardon, the question of Limitation, and the question of the dates of the offences to which the Italian implementation applies.

At present, however, he repeated his submissions that these were not valid extradition warrants, that extradition offences were not disclosed, and that Mrs Fasola should be discharged.

Response on behalf of the Lord Advocate

Mr Dickson indicated that he wished to deal with a number of issues arising from Mr Bovey's submissions and that he would deal with each issue in turn.

Pardon

So, if the sentence (in warrant No 2) of 2 years, 5 months and 9 days was excluded from her return, that would leave a cumulative sentence of 8 years and 2 months of imprisonment.

If Mrs Fasola was returned to serve that sentence of 8 years and 2 months, on her return, there would in fact be a reduction of three years.

Mr Dickson said that there was nothing in the Framework Decision concerning any deduction from sentence nor to permit the seeking of any guarantee regarding the application of any pardon.

He said that he found support for that in the said communication [defence production No 4].

It appeared that, as permitted under Italian Law, a petition - such as was described in the Opinion of Professor Vestuti [defence production No 12] - had been lodged by Mrs Fasola with the prosecutor to seek that the benefit of the pardon be attached to the European Arrest warrant of 21 April 2006 (warrant No 1). It appeared that Mrs Fasola had sought to have the prosecutor make the deduction of three years from the sentence of 4 years and 2 months specified in that warrant.

Mr Dickson noted that the said communication [defence production No 4] contained a narrative of six paragraphs before continuing

"for these reasons REJECTS The petition for the repeal of the EAW issued on 21 April 2006"

The answer as to why the petition had been rejected appeared clearly to be because of what was said in the second paragraph, namely that the Public Prosecutor's Office had issued a unification of ("domestic") sentences in respect of Mrs Fasola on 11 May 2005, leading to a remaining sentence of 10 years, 7 months and 9 days of custody; and then in the third paragraph, namely that at 25 September 2006 the only European Arrest warrant which had been issued by Italy was warrant No 1, issued on 21 April 2006 and containing the sentence of 4 years and 2 months of custody (warrants Nos 2 and 3 not being issued until 17 November 2006).

The fourth paragraph noted that the benefit of pardon could be applied to the remaining sentence, deriving from the said unification of sentences, and would involve a reduction of 3 years on the remaining custodial punishment.

Thus, said Mr Dickson, Mrs Fasola had sought to persuade the Public Prosecutor by way of petition to apply the 3 years reduction to warrant No 1 alone - that sentence being 4 years and 2 months - but that the prosecutor had declined because, on 11 May 2005, that prosecutor had ordered the sentences on the 3 ("domestic") warrants to be cumulative. Although only the sentence in warrant No 1 was then the subject of a European Arrest warrant, there were two other sentences outstanding in Italy and the three-year deduction could only be made against the cumulo sentence resulting from the unification order of 11 May 2005, which had established the cumulo sentence of 10 years, 7 months and 9 days.

Mr Dickson submitted that it was clear from what Professor Vestuti had said in his Opinion [defence production No 12] that, given the way the Italian system operated, the Prosecutor became responsible for the enforcement of a sentence.

Mr Dickson therefore submitted that in the light of all of this information, this was a decision that the cumulo sentence was to be on all three ("domestic") sentence warrants in existence in Italy, of which only one - namely warrant No 1 - had at that date become a European Arrest warrant.

Mr Dickson further submitted that it was clear that this Public Prosecutor was the prosecutor who enforced the sentences imposed by the Courts.

Further in connection with the pardon, he referred to a communication dated 30 January 2007 from Dr Laura Gay, of the Office of the Public prosecutor (item number 28 of the Joint Bundle of Authorities), and in particular to paragraph No 4 thereof.

"4. The convicted person will be granted a 3-year remission of sentence (indulto). That is three years will be deducted from the total sentence established in the aggregation order. Such an order is enforceable and the sentences re the individual judgments set forth therein are aggregated and become part of a single order."

He submitted that what was said there put beyond any doubt how the prosecutor would apply the sentences. He said that the aggregation order which had already been referred to, was based upon the date on which the Public Prosecutor issued the sentences for enforcement.

He submitted that this confirmed the position that, if Mrs Fasola was not to be returned on any warrant, the sentence in that warrant would be deducted, and the three year remission would be deducted from what was left.

Competent judicial authority

However, Mr Dickson referred again to the Council Framework Decision of 13 June 2002 (item 2 of the Joint Bundle of Authorities) and in particular to Article 6.1 which, under the heading "Determination of the competent judicial authorities" provided as follows:

"1. The issuing judicial authority shall be the judicial authority of the issuing Member State which is competent to issue a European Arrest warrant by virtue of the law of that State."

Mr Dickson submitted that it was for Italy to determine the judicial authority in Italy which had authority to issue a European Arrest warrant; and he submitted that this had been upheld in the case of Goatley. Further, in terms of Article 6.3 of the Framework Decision, the Italian authorities had notified the Council of the European Union of their position.

He then referred to the Addendum to that Note (item 1.2 of the Joint Bundle of Authorities) dated 3 May 2005 which stated that the Ministry of Justice of Italy had informed the General Secretariat that the Italian Law to implement the Framework Decision had been published on 29 April 2005 and would enter into force on 14 May 2005.

The text of the law which transposed into Italian Law the provisions of the Framework Decision of 13 June 2002 was to be found in translation as item 1.4 of the Joint Bundle of Authorities and it was those provisions which entered into force on 14 May 2005.

Mr Dickson noted that the Declaration by Italy to the General Secretariat of the Council of the European Union concerning implementation of the Framework Decision (item 1.3 of the Joint Bundle of Authorities) which had been referred to by Mr Bovey at paragraph 14 above, demonstrated that, under Italian domestic law, the authorities competent to issue a European Arrest warrant were the judges or courts with the criminal proceedings pending before them; but, at the stage of enforcement of a custodial sentence, the authority competent to issue a European Arrest warrant was the Public Prosecutor's Office for the judge supervising enforcement.

Mr Dickson noted that in the warrants, communications and other documents, Dr Laura Gay was described as the Deputy Public Prosecutor of the Office of the Public Prosecutor attached to the Court of Milan and he submitted that she was, therefore, under Italian domestic law and as demonstrated by the Italian Declaration (said item 1.3), the competent authority for the purposes of Article 6 of the Framework Decision.

Mr Dickson said that, in addition, under Article 28 of the Italian Law concerning the Framework Decision (said item 1.4), with the subheading of "Competence", a European Arrest warrant was issued.

(a) by the judge who had applied the precautionary measure of imprisonment;

(b) by the public prosecutor through the judge indicated in article 665 of the code of criminal procedure who had issued the order to execute the custodial sentence mentioned in article 656 of the same code, provided that it consisted of a custodial sentence of at least one year and its execution was not suspended; or

(c) by the public prosecutor identified in accordance with article 658 of the same code as far as the execution of detention orders was concerned.

Mr Dickson submitted that Dr Gay fitted into (b) above in this present matter.

That this public prosecutor was competently exercising this function was, he submitted, demonstrated on the basis of her description in the European Arrest warrants, her decision and order contained in the communication [defence production No 4], and, within that communication, her order that the sentences should be served cumulatively.

He said that further support for this was to be found in the Opinion of Professor Vestuti [defence production No 12] in the box number 10 at the foot of page 4 and the top of page 5.

Mr Dickson submitted that what was being said there was what was also being said in Article 28 of the Italian Law implementing the European Arrest warrant.

In summary, Mr Dickson said that the said Article 28 set out what the Italians had in their own domestic system, and one function of the public prosecutor was to issue orders all the warrant at including enforcement of custodial sentences.

The Italian authorities had transposed Article 6 of the Framework Document and, in Article 28 of the Italian Law, had said that these same public prosecutors would be able and were competent to issue European Arrest warrants for the purpose of enforcing custodial sentences of at least one year.

Mr Dickson therefore submitted that there were three valid warrants before this Court and that this Court should find support in the case of Goatley that these warrants had been issued by a competent judicial authority.

Enander v (1) The Governor of Brixton Prison and (2) The Swedish National Police Board, [2005]EWHC 3036 (Admin).

Mr Dickson said that this was a case before the Divisional Court and that the facts were very similar to those in this present case.

The Applicant was the subject of a European Arrest warrant issued by the second respondent; the warrant asserted that the Applicant had been convicted in Sweden of a variety of offences in respect of which he had been sentenced to one year and three months imprisonment, less six weeks spent on remand; and also asserted that the Applicant was unlawfully at large having failed to report to serve his sentence when required to do so.

The European Arrest warrant had been signed by an officer of the Swedish National Police Board and it was contended by the appellant that the signatory had not been a judicial authority.

The question for the Court had therefore been whether this was so and whether the European Arrest warrant was valid.

The Court had affirmed the position for which Mr Dickson had argued earlier in his submissions, namely that Article 6 of the Framework Decision allowed Member States by virtue of their Law to designate their judicial authority which would be competent to issue a European Arrest warrant.

Mr Dickson specifically referred to paragraphs 24, 25 and 29 of the Judgment, and in particular to paragraph 30 in which Mr Justice Openshaw had said:

"Sweden having validly appointed the Swedish National Police Board as the judicial authority to issue warrants in respect of persons already convicted of crime after judicial trial, this Court, it seems to me, is bound to recognise the validity of that warrant. Any other interpretation of section 2 (2) of the 2003 Act would require each executing state to investigate whether the function of issuing the warrant in the requesting state was undertaken by someone who would in this country be recognised as a person exercising a judicial function. Such an inquiry would be attended with considerable practical difficulty, it would be fraught with uncertainty, and would deprive the Act of its efficacy and cannot, in my judgment, had been intended by Parliament."

Mr Dickson submitted that that passage and indeed the judgment of the Court as a whole reflected what had been said in the Opinion of the High Court in the case of Goatley, that it would be an affront to the Member State to seek to go behind its designation of a judicial authority.

He submitted that this Court should therefore find these warrants to be valid.

Unlawfully at large

By way of background, Mr Dickson noted that when the 2003 Act had come into effect on 1 January 2004, the United Kingdom had been one of the States which had indicated that the new scheme would apply to all requests for extradition which were received after that date; whereas Italy and some others had put in place restrictions relating for example to the date of the offence.

The 2003 Act had been amended by Part 1 of Schedule 13 to the Police and Justice Act 2006 and these amendments had been brought into force on 15 January 2007 by The Police and Justice Act 2006 (Commencement No 1, Transitional and Saving Provisions) Order 2006 [SI 2006 No. 3364 (C123)]. Inter alia, this had had the effect of substituting amended wording in section 2(5)(a) and of introducing a new Section 68A headed "Unlawfully at large" with effect from 15 January 2007.

Arising from this, while Mr Dickson accepted that there was a reference in section 65 to a person being "unlawfully at large after conviction", in section 2 (5) the Amendment removed the reference to the person being alleged to be unlawfully at large after conviction and replaced it with the wording that the person had been convicted.

He submitted that this then produced a two-step process.

The statement within the European Arrest warrant required to satisfy the terms of section 2 (particularly section 2 (5)(a)) that the person had been convicted of an offence specified in the warrant.

If, as in this present case, one then required to turn to section 65, section 65(1) provided that that section applied in relation to conduct of a person if that person was alleged to be unlawfully at large after conviction of an offence constituted by the conduct.

Thus, Mr Dickson submitted that section 2 required him to show that the statement was a reference to the person having been convicted of an offence specified in the warrant, whereas section 65 required him to show that the person was unlawfully at large after that conviction; and section 68A informed as to how "unlawfully at large" was to be determined.

So, in terms of section 2 (5)(a) the Court required to be satisfied that the warrant showed that the person had been convicted of an offence specified in the warrant, and, in terms of section 65(1) that the person was caught by that section of the Act if

(a) in connection with the conduct described in section 65 (2) the person was alleged to be unlawfully at large after conviction and

(b)               had been sentenced for that offence,

and, in terms of section 68A, a person was "alleged to be unlawfully at large after conviction of an offence" if

(a) he was alleged to have been convicted of the offence and

(b) his extradition was sought for the purpose of, inter alia, serving a sentence of imprisonment imposed in respect of the offence.

- that Mrs Fasola had been convicted [second page at section (b)1] a "judgment of conviction": which satisfied the requirement of section 2 (5)(a) that the person should have been convicted,

- that Mrs Fasola was alleged to be unlawfully at large : section 68A(1)(a) spoke of the person alleged to have been convicted of "it" which Mr Dickson submitted referred back to section 65 (2), sub-sub-section(a) of which was met by the conduct having occurred in Italy, (b) of which was met by the conduct falling within the Framework List (which had been shown in terms of section 215 and Schedule 2 to the 2003 Act), and (c) of which was met by the warrant showing, on the second page at section (c) 2, that the length of the custodial sentence imposed had been 4 years and 2 months of imprisonment.

Accordingly, Mr Dickson submitted that section 2(5)(a) of the 2003 Act was satisfied, section 65(2) was satisfied because the conduct which was required by section 65 had been shown, and section 68A(1)(a) was satisfied because Mrs Fasola was shown to have been convicted.

He further submitted that the wording of section 2(5)(b) was in very similar terms to and was reflected in the wording of section 68A(1)(b), and that the requirements of both sections were met by what was contained in the warrant.

Put shortly, Mr Dickson submitted that the European Arrest warrant could either say that the person was unlawfully at large - in which case the Court would go on to consider whether section 68A was satisfied or in the absence of those words, the Court would consider the European Arrest warrant and consider whether the words which make up the definition were met - and he submitted that they were met in this present case.

He submitted that this warrant No 1 demonstrated that Mrs Fasola had been convicted of an extradition offence and that the purpose of her return was to serve the sentence of imprisonment imposed in respect of it.

He noted that this warrant (No 1) was stated on the first page as coming from The Office of the State Prosecutor, Attached to the Ordinary Court of Milan, and The Office for the Execution of Judgments - 1^st Division; that a number was stated in the Register for the Execution of Judgments; that it bore to be a European Arrest Warrant, issued by a competent judicial authority, and requesting the arrest and surrender of the person for the purposes of, in this case, executing a custodial sentence or detention order.

On the second page, he noted that the decision on which the warrant was based was said to be a judgment of conviction, that it was an enforceable judgment rendered by the Court of Milan on 4 February 1998, and final on 15 November 2000, with a reference number in the General Register of the Court of Milan, containing an Order for Execution no 741/01 of the Register for Execution made by The Office of the State Prosecutor attached to the Court of Milan on 26 April 2001, and that the length of the custodial sentence imposed was stated to be 4 years and 2 months of imprisonment, with the remaining sentence to be served stated also to be 4 years and 2 months of imprisonment.

Mr Dickson therefore submitted that this was information clearly in the body of the warrant which satisfied section 2(5), section 65(1) and (2), and section 68A - all of which led the Court back to section 10(2).

He therefore submitted that the Court could be satisfied that this warrant No 1 was valid because Mrs Fasola was unlawfully at large after conviction.

Mr Dickson carried out the same exercise in respect of warrant [No 2 and] No 3, but there is no need to set out the detail here since it had not earlier been challenged by Mr Bovey.

Mr Dickson therefore submitted that the Court could similarly be satisfied that all three warrants were valid in that they disclosed that Mrs Fasola was unlawfully at large after conviction.

Accordingly, he submitted that it was that amended form to which the Court required to give affect when it was considering issues after the commencement date, namely 15 January 2007.

He was reinforced in that submission since the amending legislation and the bringing of it into effect made no qualification that it should apply only to requests received after the effective date. He submitted that the absence of such a qualification meant that the Court was required to apply the amended law to its application of the legislation after that date.

Application of law

The Italian domestic law (said item 1.4) was the subject of notification to the Council of the European Union on 3 May 2005 (item No 1.5 of the Joint Bundle). Having regard to these documents, Mr Dickson submitted that, by and large, each Article corresponded with the Framework Decision and, when it referred to surrender, this legislation appeared mainly to be referring to what Italy would do upon a request from another Member State - and that this was reflected in the notification (said item No 1.5).

The said notification by Italy to the Council of the European Union gave notice that their law would enter into force on 14 May 2005 and specified the authorities who would be authorised to issue European Arrest warrants on the basis of Article 28 (1). It stated that Article 40 (1) of the domestic legislation would apply to the execution in Italy of European Arrest warrants issued after 14 May 2005; and that the old extradition rules would apply to any European Arrest warrant to be executed in Italy which was based upon offences committed before 7 August 2002.

Accordingly, Mr Dickson submitted that Italian domestic law was concerned with the execution in Italy of requests from Member States and, in Article 40, was found the transitional arrangements. So the law in Italy would be governed by the date of issue and receipt of the request in Italy. In this present case, the European Arrest warrant was issued in Italy and he submitted that the only effect of Article 40 was related to the enforcement of a European Arrest warrant sent to Italy to enforce.

Thus, if a European Arrest warrant was issued by the United Kingdom today in connection with offences committed before 7 August 2002, the old rules on extradition would apply if it was enforced in Italy; but, any European Arrest warrant from Italy to be enforced in the United Kingdom for an offence before 7 August 2002 would be governed in Italy by the European Arrest warrant scheme and in the United Kingdom by the European Arrest warrant scheme.

The Italian Article 28 made it clear, he submitted, that a competent authority to issue a European Arrest warrant was and included the public prosecutor through the judge - and that was what Professor Vestuti also said was the law in Italy at the present time.

Accordingly, in respect of these European Arrest warrants where the offences were alleged to have been committed before 7 August 2002, the European Arrest warrant scheme applied in Italy and in the United Kingdom.

Further, the warrants were valid because Article 40 (2) only related to requests received from other Member States in Italy for offences before 7 August 2002, which would be dealt with under the old Italian law as it existed then.

Any other, he said, would be dealt with under the European Arrest warrant scheme.

Extent of particulars of offence

In warrant No 2, at about the middle of the third page, it was stated that the rights of the defender were respected, as the person sought was represented by a defence counsel of choice; and, two paragraphs above, it was stated that the trial was celebrated in the presence of the convicted person ; while at section (d) on the second page it was stated that the decision was rendered in the presence of the convicted person.

Mr Dickson stressed that, in this case, we were not in the territory of speciality. He said that Mr Bovey might have been on stronger ground if this had been a return for trial. Since in this country, Treasury Bonds are not regarded as currency, Mrs Fasola might have claimed that she did not know on what she was being returned to be tried. However, he submitted that we were beyond that in this case.

Mrs Fasola had been present, had been legally represented, had been convicted and had been sentenced; and the Italians regarded delivery and trading in false Treasury Bonds as counterfeit currency.

If they had not done so, the appropriate authorities would not have ticked that Framework list offence.

On the third page of this warrant in the section (e) Offences, the description of the circumstances in which the offences were committed, including the time, place and degree of participation in the offences by the requested person was given as:

"In Milan, on 14.2.1994, Ms Shirreffs in complicity with a Meroli, delivered (not having participated directly in the counterfeiting activity) false Treasury bonds to a Mr Ferri, without uttering any information as to their source, so as to keep in direct contact with the criminal organisation.

Oral evidence as well as written documentation was acquired at the trial. Evidence as to the responsibility of the convicted person in respect of the offence was fully acquired."

Mr Dickson said that that was seen as counterfeiting activity and the Italian authorities had ticked that offence in the Framework list. Since the request for return was being made after conviction, she having been present and legally represented at the trial, Mr Dickson submitted that, if the Court was minded to say that there was a disjunction, he would respond that it had absolutely no effect on the enforcement of the warrant in the United Kingdom nor on enforcement in Italy on her return.

But he said he would go further and say that, given the role of the European Arrest warrant and the mutual recognition involved, and standing that this was a conviction case, he submitted that this was a question into which this Court ought not to make inquiry.

He said that the Italians had exercised their discretion to mark this on the Framework list of offences as "counterfeiting of currency, including the Euro"; accordingly the Italian authorities were satisfied that this merited under Italian law being so marked.

He therefore submitted that for this Court to draw any other conclusion would involve the Court in an exercise not envisaged by the 2003 Act or the Framework Decision.]

He said that this had been an appeal under Section 26 of the 2003 Act against a decision of the Deputy Senior District Judge in England to order Mr Boudhiba's returned to Spain. He said that a large number of issues had been raised in the case but that he really wished only to focus on the question of whether the information provided had been sufficient to ascertain if Mr Boudhiba had been charged with offences and was an accused person (to comply with section 2(3) of the 2003 Act) - and the Court had held at paragraph 21 that the warrant did so comply.

Mr Dickson noted that parties' counsel in that case had agreed that the correct approach had been set out in the case of in Re Ismail (already cited) and that at paragraph 19 of the Judgment, Lady Justice Smith had referred to the Opinion of Lord Steyn at page 327 where His Lordship had said that there was a transnational interest in bringing to justice those accused of serious crimes and that it followed that Extradition statutes ought to be accorded a broad and generous construction, so far as the text permitted.

Lady Justice Smith had then proceeded to quote the further passage from Lord Steyn's Opinion which had already been quoted by Mr Dickson at paragraph [ 29] above.

Mr Dickson then noted that the terms of paragraph 20 of Her Ladyship's Judgment, before proceeding to consider the terms of paragraph 21 on which he placed considerable importance.

That paragraph is as follows:

"In my view, this warrant does comply with the requirements of section 2 (3). The warrant states that the appellant is wanted for the purposes of conducting a criminal prosecution, sentencing following conviction or executing a custodial sentence or detention order. I accept that there is some ambiguity in those words in that they do not make clear whether the person sought has yet been convicted. However, they would not be applicable if the decision to prosecute had not yet been taken. In any event, such ambiguity as there was is removed on the following page where it is made clear that the decision on which the warrant is based is the Order of Commitment dated 18 May 2004 and that there is not yet an enforceable Judgment in existence. On the page following, there is a statement that the maximum sentence that can be imposed for the offences is 15 years imprisonment. I would accept Mr Lawson's submission that that was enough in itself to make it plain that the appellant was an accused person and that proceedings had begun. I accept too that the position is confirmed by the Order of Commitment itself which states: 'I order that a European Arrest Warrant be issued to the UK against Boudhiba so that he be placed before the Spanish courts in respect of these proceedings'. It appears to me that that Order puts beyond doubt that there are already criminal proceedings on foot in Spain and that this appellant is accused within those proceedings. This first ground fails."

Mr Dickson submitted that the importance of that passage was that it indicated that the Court was prepared to look at all of the information in the European Arrest warrant to see if the conditions were satisfied and the statutory tests met. That, he said, was exactly what he was inviting this Court to do.]

He drew attention to the third page of warrant No 2 at the end of section (e) Offences, where (fulfilling the requirement set out in Article 8.1(d) of the Framework Decision) the nature and legal classification of the offences and the applicable statutory provision/code was set out as "Articles 110, 453, 458 of the Criminal Court (position and use of counterfeited treasury bonds)".

Similarly, on the fourth page of warrant No 3 at the end of the same section, the reference was to "Articles 110, 453 of the Criminal Code, 110, 81, 453 paragraph 1 of the Criminal Code (counterfeiting), using counterfeited money".

Similarly again, at the foot of the third page of warrant No 1 at the end of the same section, the reference was to "section 628, paragraphs 1 and 3, nos 1 and 2, 110 of the Criminal Code; 10, 12, 14 of Law 497/1974".

Mr Dickson said that he was referring the Court to these parts since not only did they provide a description of the offences, but they also provided the nature and legal classification of the Italian Code which they breached. This had been found to be of assistance in the case of Boudhiba where it had been the third ground of appeal and had been rejected by the Appeal Court.

In this connection Mr Dickson drew attention to what was said in Lady Justice Smith's Judgment at paragraph 26 and 27 where the argument was set out. In dealing with what was required to satisfy the terms of section 2 of the 2003 Act, Her Ladyship had said:

"It seems to me that the words used in Article 8 suggest that what is required is not the text of the provision of the Spanish Criminal Code but simply an identification of the nature of the offence (eg participation in a criminal organisation) and the legal classification of the offence (eg Article 576 Spanish Criminal Code). The fact that that is all that is required by Article 8 is not conclusive of the question as to what is required by section 2(4)(c) but it may be an indication. Only if the words of section 2(4)(c) go clearly beyond what is required by Article 8 will there be a greater requirement."

At paragraph 29, Mr Dickson noted that Mr Lawson, Counsel for the Spanish authorities, had submitted that section 2(4)(c) required only that the provisions of Spanish law should be identified, not that they be set out in detail. Counsel had added that the suggestion that the English Court required to decide whether the alleged facts "fitted" the Spanish law was misconceived.

He said that the English Court had to decide whether the offences were Extradition offences as defined in Section 64(2) to (6) of the 2003 Act.

In deciding this element, Lady Justice Smith had said at paragraph 30:

"I for my part accept Mr Lawson's submission on this point. In my view, section 2(4)(c) does not require the provision of the text of the law of the requesting state. The whole ethos underlying the Framework Decision is that the states who are a party to that decision trust each other to make requests in accordance with their own law. Some but not all of the provisions of Section 64 require the English court to consider whether the conduct alleged would amount to an offence is committed in England. [As in section 64(3) where dual criminality is required - my note.] However, none of the provisions of Section 64 require the English court to consider whether the conduct alleged amounts to an offence in the requesting state. The regime under the 1989 Act was different. The fact that one of the Section 64 definitions of an extradition offence is couched in the same words as were used in section 2 of the 1989 Act does not, in my view, mean that the process that the Court will undertake is the same. In my judgment, this warrant complied with the requirements of section 2 (4)(c) and Ground 3 should fail."

In light of the foregoing, Mr Dickson said that what was found in each of the warrants in this case was a description and the nature and legal classification of the offences, particularly in respect of Article 2, and that Article 2.2 set out the list of the Framework offences.

He therefore submitted that the Court could be satisfied that, under Italian law, what was contained in warrant No 2 was a sufficient description of the circumstances, of the conduct, of Mrs Fasola's involvement and of the nature and legal classification of the offences, such that, following what was said in the case of Boudhiba, supported the ticking of the of the box for the Framework offence.

Mr Dickson added that what was said in the case of Boudhiba provided further authority for giving mutual recognition to and taking full account of all of the information and legal classification in the warrant and, further, that the court ought not to make inquiry beyond the ticking of the box in the Framework list and ought not to ask if the information provided in section (e) justified the ticking of that box.

He submitted that the Court should accept that this was a Framework list offence because the Italians said that in their law it was a Framework list offence.

He said that, under Section 65(2), no test of dual criminality was involved and, as had been said at paragraph 30 in the Boudhiba Judgment, states trust each other to make requests in accordance with their own law.

He said that, if that approach was taken and applied in the present case to that about which the Court had to be satisfied in terms of sections 2(5) and 2(6), the Court could thereby be satisfied that the European arrest warrant No 2 did contain this information and that these particulars, unlike in the case of Vey, were sufficient to allow the court to be satisfied on these sections.

Further, on that same basis, the Court would be entitled to find in particular that warrant No 2 was valid, and also that warrant Nos 1 and 3 were valid also.

Sentence limitations

[ In this connection, Mr Dickson made reference again to the communication dated 30 January 2007 from Dr Laura Gay, Deputy Prosecutor of the Republic, of the Office of the Prosecutor of the Republic, Attached to the Court of Milan, Enforcement Office 1^st Division (said item number 28 of the Joint Bundle of Authorities).

He drew attention in particular to paragraph No 5 in which the Public Prosecutor was indicating that the basic position in Italy was that a conviction became time-barred and the sentence in respect of it could not enforced after 10 years from the date of the judgment of conviction becoming final.

However, the Prosecutor had indicated that, in terms of Article 172 of the Italian Criminal Code, if the person was a repeat offender or if, during the ten-year period the person was convicted again for a similar offence, the time limitation period would not apply. ] [Note : This was the warrant which the Court in Milan on 16 March 2007 held to be statute-barred - see paragraph 5 above.]

Mr Dickson therefore proposed to consider each of the warrants and identify, in respect of each, the date of the offence, the date the judgment was issued, the date the Judgment became final (irrevocable) and the date on which the enforcement order was issued by the Public Prosecutor.

Warrant No 3

Date of offence : between September 1988 and 22 June 1989

Date Judgment issued : 11 May 2001

Date Judgment became final : 17 October 2002

Date Enforcement order

No 6223-02 issued : 26 November 2002

Time bar : 17 October 2012

Warrant No 1

Date of offence : 22 March 1991

Date Judgment issued : 4 February 1998

Date Judgment became final : 15 November 2000

Date Enforcement order

No 741/01 issued : 26 April 2001

Time bar : 15 November 2010

Warrant No 2

Date of offence : 14 February 1994

Date Judgment issued : 11 April 1995

Date Judgment became final : 21 November 1995

Date Enforcement order

No 852/1994 : 24 April 2003

Time bar : 21 November 2005

(In respect of warrant No 2, Mr Dickson noted that in the translation of the Supplementary and Miscellaneous information [defence production No 1], the time bar was stated to be 10 years from 17 October 2002, which it had been noted was the same date as that in warrant No 3. Mr Dickson said that it was clear that the correct date for that should have been 10 years from 21 November 1995, would make the time bar 21 November 2005.

The mistake was in a part of the document provided in terms of the Schengen Convention Accord, which made provision within the police system to inform any police officer about an individual against whom there was in force an Article 95 alert.

This did not affect the correct position being that the time bar was 21 November 2005.)

Mr Dickson then noted that warrant No 3 and warrant No 1 did not time-bar until 2012 and 2010 respectively (and he said that was reinforced in the penultimate bullet point of paragraph No 5 of the Prosecutor's communication (said item number 28 of the Joint Bundle)).

Number of offences

He made this invitation of the basis that, in connection with each warrant, Mrs Fasola had been convicted and there was no suggestion in the warrants or in the supporting information that her return was sought for anything other than these offences and to serve the sentences imposed in respect of them.

Once again, in the light of an approach of mutual recognition and looking through cosmopolitan eyes as the courts had been enjoined to do, the Italian authorities had complied with Article 8 of the Framework document, had provided information on the nature and classification of the offences, and had provided information on the Articles of the Italian Criminal Code in terms of which Mrs Fasola had been convicted.

He noted again that, at the end of section (e) Offences in each warrant, numbered Articles and paragraphs of the Criminal Code which had been contravened, had been provided. [Details of these were referred to earlier at paragraph 38 above.]

Mr Dickson submitted that these were matters of Italian law and this Court ought not to make inquiry into them.

Nevertheless, simple examination of warrant Nos 2 and 3 which were concerned with Framework offences of counterfeiting of currency, included reference to article 110, which also appeared in the non-analogous crime in warrant No 1, namely armed robbery. In addition, there was commonality in warrant Nos 2 and 3 that article 453 of the Code had been breached, while in warrant No 1, section 628 had been breached.

Mr Dickson was not suggesting that the Court fill the gap is by guesswork, but he submitted that the Court was entitled to look at all of the information and at the warrant as a whole.

He submitted that the question of "2 offences" was a matter for the Italian authorities who had outlined all that they required to do for the nature and classification of the offences ; and the Italian authorities had been satisfied that the warrants related to 2 offences.

He submitted that if this court was not satisfied with that, then there was information which was illustrative of there being more than one offence described - and, upon that basis, he said there was nothing in these descriptions to suggest that the warrants were invalid.

Further submissions on behalf of Mrs Fasola

Number of offences

He noted that warrant No 3 did show more than one offence ; but he submitted that this was not the case in warrants Nos 1 and 2. In addition, he said that the idea that the quoting of the article or section numbers of the Italian Criminal Code allowed one to go through these and find out of what one had been convicted was incorrect. He said that Mrs Fasola was advised in these proceedings by Scottish lawyers who simply did not know what these numbers related to or dealt with.

Pardon

He said that if the Court had returned Mrs Fasola on warrant No 1, where the sentence to be served was 4 years and 2 months, the result would have been that she would be expected to serve 7 years, 7 months and 9 days of custody.

And he suggested that this led to the conclusion that any warrants on which Mrs Fasola was not returned would remain in consideration and she would still serve 7 years, 7 months and 9 days of custody - which he said did not support the idea that this court could make any difference to the sentence to be served if it excluded any one warrant.

[Mr Bovey said that he would have more submissions on this if the stage of speciality was reached.]

Competent judicial authority

He noted that it referred to the Public Prosecutor through a judge - and he submitted that that was not a transparent term. He noted also that it referred to a judge indicated in article 665 of the Code (which this court did not have) and to executing a custodial sentence mentioned in article 656 of the same Code (which again this court did not have).

So, he submitted that there was nothing -even with the most cosmopolitan eyes - in that Article from which this court could deduce that the prosecutor was entitled to sign the European Arrest warrant.

Nor, he submitted, contrary to what Mr Dickson had submitted, did Professor Vestuti confirm that the warrant could be validly issued by the prosecutor.

Extent of particulars of offence

Mr Bovey said however that the trust was based upon compliance with the rules and, when the Italian authorities ticked that box and when that was inconsistent with the rules, he said that that did not override the duty of this court to ensure that the rules were complied with.

In addition, he submitted that there certainly was no rule that the rules did not require to be complied with if no prejudice was involved.

He further submitted that the approach which had been urged by Mr Dickson was inconsistent with the authority that was urged upon this court from the case of Vey. In particular, paragraph 55 of that Judgment made it clear that the role of the Court in protecting the individual was a substantial one and that following some of the rules or aspects was not sufficient.

He submitted that if the matter had fallen to be dealt with under Section 65 (3) of the 2003 Act, dual criminality would have had to be satisfied. The fact that Mrs Fasola had been tried in her presence was suggested as a reason for applying the rules differently - and he submitted that that was a wholly inappropriate way to proceed in Extradition matters.

Unlawfully at large and Retrospectivity

In the case of Vey, at paragraph 35 of the Judgment, the validity of the warrant was said to be the foundation for the judge's jurisdiction and that both the District Judge and the Appeal Court had to consider any question of validity which was raised. He said that that had been done also in the case of Boudhiba.

Mr Bovey submitted that what Mr Dickson was saying was that, in respect of warrant No 1, the warrant had been invalid when presented after April 2006, and that everything that had been done from then until 15 January 2007 was without jurisdiction - but that when, on 15 January 2007 the amendments had come into life, everything was then in order.

Mr Bovey submitted that that could not be correct.

Mr Bovey then referred to Craies on Legislation (8^th edition), Section 3, beginning on page 389. Under reference to paragraph 10.3.7 at page 392 and to the passage there quoted from the Judgment of Lord Justice Buckley, Mr Bovey submitted that there was a distinction between that and this present case where he said the law was not what it had been thought to be and the coming into effect of the 2003 Act.

This was because, on the analysis by Lord Justice Buckley, people were being affected by a new law and there was an interference with existing rights.

Under reference to the passage in paragraph 10.3.8 on pages 392 and 393, Mr Bovey submitted that in this present case, Mrs Fasola was the subject of what he described as a request, which probably never was valid since the law needed to be changed, but which had suddenly become valid (in this respect) because of the amendments to the 2003 Act.

Mr Bovey then referred to the amendment of the 2003 Act which had introduced a new Section 68A headed "Unlawfully at large" [referred to in more detail by Mr Dickson at paragraphs 31 and 32 above.]

He noted that, for a person to be unlawfully at large after conviction of an offence, not only did the person require to be alleged to have been convicted of it (s 68A(1)(a)) but the extradition had to be sought for the purpose of serving a sentence of imprisonment in respect of it (s 68A(1)(b)). He asked whether, in terms of Section 68A, it was to be inferred that Mrs Fasola's extradition was being sought for the purpose of her serving a sentence; and whether the tiny adminicles which were pointed to by Mr Dickson could persuade the court beyond reasonable doubt that that was the case.

He suggested that there were not, as Mr Dickson had tried to say, only the two purposes after return, namely trial or sentence. He said that the case of Vey showed that interviewing Mme Vey had been a possibility; and he submitted that this Court required to be satisfied that serving a sentence which had been imposed was one of only two possibilities that existed and that there was not any other purpose in the request being made.

He submitted that it did not matter who was making the request, but what was being requested that mattered; and Mr Bovey submitted that all that was being asked at the start of the European arrest warrant was a request that the person be arrested and surrendered for the purposes of conducting a criminal prosecution or executing a custodial sentence.

He submitted that what else was said in the warrant did not show that the return was only for serving a sentence. In particular, he said that what was said in section (d) at the foot of the second and top of the third page of warrant No 1 was equally consistent for the possibility of a re-trial or just a useful statement of the law.

My decision

Validity of warrant

Competent judicial authority

This issue had been raised before me in the case of Goatley and had been dealt with on appeal by the High Court of Justiciary. Mr Bovey had suggested that, on the basis of the material which he had placed before the Court, the decision in the case of Goatley could properly be distinguished.

Having carefully considered his submissions and the material to which he had referred, I was not persuaded that the decision in the case of Goatley could be distinguished. Instead, I was fully satisfied that the submissions of Mr Dickson were correct and were to be preferred.

In terms of the Council Framework Decision, it is for Italy to determine the judicial authority in that country which has authority to issue a European arrest warrant; and the Italian authorities have properly notified the Council of the European Union of their position.

Thereafter, that position has been followed and implemented in the case of these warrants.

In this case, I was satisfied that Dr Laura Gay, the Deputy Public Prosecutor of the Office of the Public Prosecutor attached to the Court of Milan, was the competent authority for the purposes of Article 6 of the Framework Decision.

I further accepted that this was reinforced by the terms of Article 28 of the law which transposed into Italian Law the provisions of the Framework Decision (item 1.4 of the Joint Bundle of Authorities).

This Article provided that a European arrest warrant was issued by the public prosecutor through the judge who had issued the order to execute a custodial sentence, provided that it consisted of a custodial sentence of at least one year.

I consider that Dr Gay was the person envisaged in that provision.

I consider that this was further reinforced in the box No 10 at the foot of page 4 and the top of page 5 of the Opinion of Professor Vestuti [defence production No 12] which had been lodged on behalf of Mrs Fasola. In my view, what was being said there by Professor Vestuti was what was also being said in the said Article 28 of the Italian Law.

I had been referred by Mr Dickson to the case of

Enander v (1) The Governor of Brixton Prison and (2) The Swedish National Police Board, and I was satisfied that the decision in that case and the passages to which I had been referred reflected what had been said by the High Court of Justiciary in the case of Goatley.

I was also satisfied that the approach adopted by the Court in the case of Enander had followed the interpretation which had been urged in the passage to which I had been referred by Mr Dickson in the Judgment of Lord Steyn in the case of In Re Ismail.

In conclusion on this issue, I was satisfied that the said Article 28 did set out the Italian position within their own domestic system, and that one function of the public prosecutor was to issue orders including the enforcement of custodial sentences.

The Italian authorities had transposed Article 6 of the Framework Document into Italian Law and, in Article 28 of that Italian Law, had provided that these same public prosecutors would be able and were competent to issue European arrest warrants for the purpose of enforcing custodial sentences of at least one year.

In the light of the decisions and what had been said in the cases of Goatley, Enander and Ismail, and given the terms of Article 6.1 of the Framework Document, I was fully satisfied that the terms of sections 2(2) and 65(2) of the 2003 Act had been met in respect of this issue, that these three European arrest warrants had been issued by a competent judicial authority in Italy, and that these three [later two] warrants before the Court were valid in this respect.

Retrospectivity

Essentially, Mr Bovey was submitting that the amendments to the 2003 Act did not apply to the 3 warrants in this case since these warrants had been issued before the amendments came into effect.

The 2003 Act was amended by section 42 of, and Part 1 of Schedule 13 to, The Police and Justice Act 2006. Said section 42 provided that Schedule 13 was to have effect; and The Police and Justice Act 2006 (Commencement No 1, Transitional & Saving Provisions) Order 2006 [SI 2006 No 3364 (C123)] provided in paragraph 2 (d) that the provisions of section 42 - that is the amendments to the 2003 Act - in so far as it related to the entries in Schedule 13 (except paragraphs 4, 5 6) were to come into effect from 15 January 2007.

While it is correct, as Mr Dickson submitted, that there is no reference in the Statutory Instrument concerned to the retrospective application of the amendments to the 2003 Act, I do not consider that there is any need for that to be said.

In just the same way that all European arrest warrants were considered by courts in the United Kingdom in the light of the terms of the legislation which was in force at the time of the Court's consideration of the various matters about which it required to be satisfied, so I consider that I have to consider the various matters about which I require to be satisfied in respect of the 3 warrants in this case in the light of the terms of the legislation in force at the time of my consideration of these matters.

That involves applying the 2003 Act provisions in their amended form, and that is what I consider I require to due in this case.

That being so, I consider that there was no merit in Mr Bovey's submission that warrant No 1 had been invalid when presented around April 2006, that everything that had been done from then until 15 January 2007 (when the amendments came into effect) had been without jurisdiction, but that when the amendments had come into effect, everything had then become in order.

Mr Bovey had made reference to Craies on Legislation (8^th Edition), Section 3, beginning on page 389 and continuing on pages 392 and 393.

However, I did not consider that anything there stated was persuasive of the view that the amendments involved here were in fact retrospective.

Legislation is said to be retrospective if it has effect in relation to a matter arising before the legislation was enacted or made; but in this present situation, the amendments have effect upon consideration by the Court of the matters falling to be dealt with by the Court after the amendments are in force.

Put simply, I do not consider these amendments to be examples of retrospectivity in legislation.

Unlawfully at large

Sections 2(5)(a) and 65(1)(a)

With regard to the references which were made by Mr Bovey to the decision of the High Court of Justiciary in the case of La Torre, I noted that at paragraph [114] of the Opinion of the Court, the Court had held that, in considering whether the Warrant contained a statement bringing it within the scope of section 2 (3) and 2 (5) of the 2003 Act, what mattered was not whether the language of the section was precisely reflected in the Warrant but whether it was made clear that the warrant was issued for one or other of the statutory purposes and, if so, which.

Because the amendments contained within Part 1 of Schedule 13 to the Police and Justice Act 2006 had the effect of substituting amended wording in section 2(5)(a) of the 2003 Act, and of introducing a new Section 68A dealing with the question of how "unlawfully at large" was to be interpreted, I agreed with Mr Dickson's submission that this then produced a two-step process.

In particular, I agreed that the statement within the European arrest warrant required to satisfy the terms of section 2(5)(a) of the 2003 Act that the person had been convicted of an offence specified in the warrant. In this case, since section 65 applied, section 65(1) provided that that section applied in relation to conduct of a person if that person was alleged to be unlawfully at large after conviction of an offence constituted by the conduct; and Section 68A informed as to how "unlawfully at large" is to be determined.

I also agreed that, in terms of section 2(5)(a) of the 2003 Act, the Court required to be satisfied that the warrant showed that the person had been convicted of an offence specified in the warrant and, in terms of section 65 (1), that the person was caught by that section of the Act if

(a) in connection with the conduct described in section 65(2) the person was alleged to be unlawfully at large after conviction and

(b) had been sentenced for that offence.

Further, in terms of Section 68A, a person was "alleged to be unlawfully at large after conviction of an offence" if

(a) he was alleged to have been convicted of the offence and

(b) his extradition was sought for the purpose of, inter alia, serving a sentence of imprisonment imposed in respect of the offence.

that Mrs Fasola had been convicted of the offence specified in that warrant - which satisfied the requirement of section 2(5)(a);

and that, in terms of section 68A(1)(a), Mrs Fasola was alleged to be unlawfully at large - she having been convicted of the offence constituted by the conduct

-         which had occurred in Italy (section 65(2)(a),

-         that conduct falling within the Framework List (section 65(2)(b), and

-         the length of the custodial sentence imposed having been 4 years and 2 months of imprisonment (section 65(2)(c),

-         all of which satisfied the terms of section 65(2).

I was also satisfied with Mr Dickson's submissions that the terms of section 65(1) were satisfied, and that the terms of section 2(5)(b) and section 68A(1)(b), which contained very similar wording, were satisfied and met by what was contained in warrant No 1.

In particular, I was satisfied that warrant No 1 did demonstrate that Mrs Fasola had been convicted of an extradition offence and that the purpose of her return was to serve the sentence of imprisonment imposed in respect of it.

Further, for the reasons set out in the immediately preceding paragraphs, I was satisfied from the information contained within the warrant, that warrant No 1 was valid since Mrs Fasola was unlawfully at large after conviction.

In light of my having accepted the foregoing interpretations as correct, it follows that I did not find the case of Warris, to which I was referred by Mr Bovey, to be of assistance in this case.

Although not the subject of submissions by Mr Bovey, I was, by the same reasoning, satisfied that these provisions were also met in respect of warrant No[s 2 and] 3.

Extent of particulars of offence and conviction

Sections 2(5) and 2(6) of the 2003 Act

In respect of warrant Nos 1 and 2, at paragraph 17 above, Mr Bovey submitted that the terms of Section 2(6)(b) of the 2003 Act were not met since no clear particulars were given of the conviction.

Mr Dickson's submissions in response are set out at paragraphs 35 to 38 above.

I was fully satisfied that, in respect of all of these issues, Mr Dickson's submissions were correct and were to be preferred to those of Mr Bovey.

[As regards warrant No 2, approaching the matter on the basis referred to by Mr Dickson, and taking account of all of the information in European arrest warrant No 2, I was fully satisfied that Mrs Fasola had been present and legally represented at her trial on this matter, at the end of which she had been convicted, and subsequent appeals, including to the Court of Cassation, at each of which she had again been legally represented by her lawyer of choice, had been refused. Her return was at that time being sought to serve the sentence imposed in respect of that conviction.

The Italian authorities had ticked the offence of counterfeiting of currency as defined by the Italian domestic laws as being applicable to the offences of which Mrs Fasola had been convicted. Since this is a conviction case, and given the role and purpose of the European arrest warrant together with the mutual recognition involved, I do not consider that it is either necessary or appropriate for this Court to seek to look behind the certification by the Italian authorities.

In addition, I agreed with Mr Dickson that, since the request for return was being made after conviction (she having been present and represented at trial), any apparent disjunction between the description of the circumstances of the offence and the ticking of the box in the Framework list, would have absolutely no effect either upon the enforcement of the warrant in the United Kingdom nor on enforcement in Italy on her return.]

Adopting a similar approach in this case, in respect of each of the warrants - but particularly as regards warrants Nos 1 and 2 - I was satisfied that there was a description of the offences and of their nature and legal classification, particularly in respect of Article 2 of the Framework Decision - and also that Article 2.2 set out the list of the Framework offences.

[I was therefore satisfied that, under Italian law, what was contained in warrant No 2 was a sufficient description of the circumstances, of the conduct, of Mrs Fasola's involvement, and of the nature and legal classification of the offences, all of which, in the light of what had been said in the case of Boudiba, supported the ticking of the box for the Framework offence.]

I also agreed with Mr Dickson that, in terms of section 65 (2), no test of dual criminality was involved and, as had been said at paragraph 30 in the Boudiba Judgment, States trust each other to make requests in accordance with their own law.

Taking that approach and applying it in the present case to those matters about which I required to be satisfied in terms of Section 2(5) and 2(6), I was fully satisfied that warrant Nos 1 [and 2] did contain the requisite information and that these particulars, unlike in the case of Vey, were sufficient to allow me to be satisfied that sufficient particulars and detail had been given of the offences of which the Italian Courts had convicted, and accordingly of the convictions.

Similarly, approaching the matter on the basis referred to by Mr Dickson and taking account of all of the information in European arrest warrant No 1, I was fully satisfied that Mrs Fasola had been represented by her lawyer of choice at her trial on this matter, at the end of which she had been convicted, and subsequent appeals, including to the Court of Cassation, at each of which she had again been legally represented by her lawyer of choice, had been refused.

Warrant No 1 provided details on the second page at Section (c) of the length of the custodial sentence actually imposed and also provided details of the remaining sentence to be served.

Applying the same process and reasoning, I was therefore fully satisfied that this applied also to warrant Nos 1 and 3.

I was therefore satisfied that all three warrants were valid in these respects.

Extradition offence

Section 65

In respect of section 65(1)(a), for the reasons which he had already given in his earlier submissions, Mr Bovey had submitted, firstly, that Mrs Fasola was not said to be unlawfully at large as regards warrant No 1, and, secondly, that the offences were not intelligibly demonstrated as regards warrant Nos 1 and 2.

For the reasons which I have set out earlier, I did not regard these submissions as well-founded, and I was satisfied that Mrs Fasola was unlawfully at large after conviction in respect of warrant No 1; and I was also satisfied that warrants Nos 1 [and 2] did contain the requisite information which was sufficient to allow me to be satisfied as to the particulars and detail of the offences of which the Italian Courts had convicted, and accordingly of the convictions.

In respect of section 65 (2) (a), Mr Bovey had submitted that the conduct required to constitute the Extradition offence, was subject to the same criticism that he had made earlier regarding lack of clarity concerning that offence. Again, for the reasons which I have set out earlier, I considered that the warrants did contain the requisite information which allowed me to be satisfied as to the particulars and detail of the offences of which the Italian Courts had convicted, and accordingly of the convictions.

In respect of section 65 (2) (b), Mr Bovey had, firstly, repeated his earlier submission that all three of the warrants had been signed by a prosecutor and not by the judicial authority, and that they were therefore not valid warrants. Again, for the reasons which I have set out earlier, I was fully satisfied that these three European arrest warrants had been issued by a competent judicial authority in Italy, and that they were therefore valid warrants before this Court.

Mr Dickson's submissions in this regard, which are to be found at paragraph 40, are in my view well-founded and are to be preferred to those of Mr Bovey.

It is clear that, in the light of the earlier cases which require to be followed by me, courts are to take an approach of mutual recognition and respect in dealing with the Framework Decision and are to adopt a cosmopolitan approach to matters wherever possible.

In light of and guided by that, I am satisfied that the Italian authorities have complied with Article 8 of the Framework document, have provided information on the nature and classification of the offences, and have provided information on the Articles of the Italian Criminal Code in terms of which Mrs Fasola was convicted.

Since this is a matter where conviction has taken place, Mrs Fasola having been represented her lawyer of choice not only at the trial but also at later appeals, and these appeals having been rejected, it is not for this Court to look behind the Italian certification of there having been a judgment of conviction, involving two offences which are described in narrative and by reference to the applicable statutory provision or code, and by appropriate reference to an offence contained within the Framework list.

I therefore rejected Mr Bovey's criticisms of warrant No 1 in this respect.

Italian implementation of European arrest warrants

Application of law

Under reference to Article 40 relating to "Transitional provisions", he had suggested that the effect of that would be that the old Italian Law on Extradition would continue to apply to requests for executing European arrest warrants which related to offences committed before 7 August 2002. Since the offences in all three warrants in this case related to offences before 7 August 2002, if the interpretation which he had suggested was correct, he submitted that all three warrants in this case would be excluded and that they could not therefore be valid Part 1 warrants.

Mr Dickson's submissions in response are to be found at paragraph 34.

I was fully satisfied that Mr Dickson's submissions on this issue were correct and were to be preferred to those of Mr Bovey.

The Italian domestic law on this issue (a full translation of which was to be found as said item No 1.4 of the Joint Bundle) was the subject of official notification by Italy to the Council of the European Union on 3 May 2005 (said item No 1.5 of the Joint Bundle).

This notification by Italy gave notice that the law would enter into force on 14 May 2005 and specified the authorities who would be authorised to issue European arrest warrants on the basis of Article 28 (1).

The notification also stated that Article 40 (1) of the domestic legislation would apply to the execution in Italy of European arrest warrants issued after 14 May 2005; and that the old Extradition rules would apply to any European arrest warrant to be executed in Italy which was based upon offences committed before 7 August 2002.

I was therefore satisfied that Article 40 of the Italian domestic law set out the transitional arrangements which were to apply, dealing in particular with how the Italian authorities would deal in Italy with European arrest warrants with offences committed before 7 August 2002.

Accordingly, since in this present case, the European arrest warrants were issued in Italy, I was satisfied that Article 40 had no application to the 3 warrants before me.

I was satisfied that the 3 warrants in this case are governed by the European arrest warrants scheme, and that Article 28 of the Italian domestic law provided that a European arrest warrant was competently issued in Italy by, inter alia, the public prosecutor through the judge who issued the order to execute the custodial sentence, provided that it consisted of a custodial sentence of at least one year and that it execution was not suspended.

For these reasons, I was satisfied that, in relation to this issue, these were valid Part 1 warrants.

The Pardon

Having considered these submissions, the said communication of 25 September 2006 from the Public Prosecutor's Office at the Court of Milan [defence production No 4], and the Opinion of Professor Vestuti [defence production No 12], I am clear that Mr Dickson's submissions are correct and are to be preferred to those of Mr Bovey.

I am fully satisfied with Mr Dickson's reasoning on this issue.

As a result, I am clear that the Public Prosecutor in the Italian system has important duties in the enforcement of sentences and, in regard to this issue, some of these are set out in paragraphs 10, 11, 12 and 13 of the said Opinion of Professor Vestuti.

The application of elements of these duties is clearly to be seen in what is contained in the said communication from the Public Prosecutor [said defence production No 4].

For the sake of brevity, I shall not repeat Mr Dickson's reasoning, which I have accepted, but will confine myself to recording that I am satisfied that the unification of sentences has resulted in a remaining sentence of 10 years, 7 months and 9 days of custody, and that the benefit of pardon can and will be applied to the remaining sentence when Mrs Fasola comes to undergo it.

The fourth paragraph of said communication from the Public Prosecutor is in the following terms:

"Noted that the benefit of pardon can be applied to the remaining sentence deriving from the unification of the sentences, and - in the absence of offences and impediments - will involve a reduction of 3 years on the remaining custodial punishment."

On the basis of what is said in that paragraph, I am also clear that, since Mrs Fasola is not to be returned in connection with one of the three European arrest warrants being considered in this case (ie, Warrant No 2 which was withdrawn), the sentence which related to the offence within that European arrest warrant will be deducted from the total sentence remaining in terms of the unification; and the pardon would result in a three year reduction from the remaining unified sentence.

This is made clear from the latest Enforcement Order for Incarceration (Item 36 of the Joint Bundle of Authorities). This states that the cumulo sentence of 10 years 7 months 9 days less 90 days of early release, namely 10 years 4 months 9 days, falls to be reduced by the sentence which related to Warrant No 2, that is 2 years 5 months 9 days, leaving a new cumulo sentence to be served of 7 years 11 months of imprisonment.

Full benefit will therefore be received by Mrs Fasola as a result of the pardon - but this raises no issue as to the validity of these European arrest warrants nor as to any of the matters which must be considered by the Court in deciding whether or not to order her extradition.

Section 10 of the 2003 Act

I therefore then proceeded under section 11 of the 2002 Act.

Section 11 - Bars to extradition

(i) The passage of time

Submissions on behalf of Mrs Fasola

In regard to warrant No 1 which had been issued on 21 April 2006, he noted that the offence date was 22 March 1991, the enforceable Judgment was given by the court on 4 February 1998 and had become final on 15 November 2000.

Mr Bovey submitted that it was certainly clear now in the amended terms of section 14 of the 2003 Act, that the focus was from final conviction when it appeared one became unlawfully at large. He noted that, in this warrant, the period was some 51/2 years until the date of issue of the European arrest warrant.

Nevertheless, in weighing the element of injustice or oppression in this context, he invited the court to consider the period of some 91/2 years between offence and conviction.

He submitted that, in applying an equitable approach, it was essential to take into account that the European arrest warrant was being issued in connection with an offence that had taken place some 15 years previously. He further submitted that, in applying an equitable approach, the court could not simply look at the period from November 2000 but had to look at the overall period involved. Putting the matter another way, he submitted that the greater the earlier delay, the greater was the urgency in implementing the decision.

[In regard to warrant No 2 which had been issued on 17 November 2006, he noted that the offence date was 14 February 1994, the enforceable Judgment was given by the court on 11 April 1995 and had become final on 21 November 1995.

Mr Bovey noted that this warrant had been issued some 123/4 years after the offence and some 11 years after the conviction became final. He submitted that that was a very long time and that such a period was specifically focused in section 14 of the 2003 Act.

In addition, he said that it reinforced his earlier submission.

This period was so much longer than the delay as regards warrant No 1; and yet the offence in warrant No 1 pre-dated the offence in warrant No 2 by some three years.

He said that this illustrated the need for the court to take into account the date of the offence as well as the date of the person becoming unlawfully at large.] [Note: this warrant was withdrawn on 27 April 2007.]

In regard to warrant No 3 which had been issued on 17 November 2006, he noted that the offence date was between September 1988 and 22 June 1989, the enforceable Judgment was given by the court on 11 May 2001 and had become final on 17 October 2002.

He noted that, on the face of it, this was the weakest case from the point of view of his argument since it was only four years since the Judgment had become final; and yet, he noted that this was the oldest of the offences.

He therefore submitted that, in judging the delay from 2002, the court should take into account the fact that the offences were up to 14 years old and also that the urgency in dealing with them was, to that extent, the greater.

He noted that 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.

However, Mr Bovey submitted that the terms of section 14 were appropriate to cover the following situation:

that there was a less favourable regime in the 2003 Act (which had come into effect in 2004) than there had been when the convictions here had become final (respectively in 2000, 1995 and 2002), 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.

"Territories may have made unsuccessful extradition requests under the 1989 Act, or may have refrained from making extradition requests in the belief that 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 by reason of the passage of time."

Mr Bovey submitted that, in the present case, although there was no failed request, there was a considerable passage of time and there was now a less favourable regime since the conviction became final - and he submitted that these were therefore relevant factors.

Osman [1992] 1 All ER 579

and to 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.

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 pages 289-290;

and 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 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 upon the 'passage of time' under paragraph (b) and not on absence of good-faith under paragraph (c), the court is not normally concerned with what could be an invidious task of considering whether mere inaction of the requisitioning Government or its prosecuting authorities which resulted in delay was blameworthy or otherwise."

Mr Bovey quoted further from the immediately following passage (in the case of Osman) 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 matter which the court was entitled to take into consideration. That is of significance 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."

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 also submitted that, if there was said to be some right in this present case to any re-trial, it was very hard to see how there could be a fair trial since the offences were respectively in 1991, 1994 and 1988/89. He also noted that there was no explanation from the Italian authorities how it was that we were now dealing with such historic events.

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.

He accordingly submitted that it would be unjust and oppressive because of the passage of time to order Mrs Fasola's extradition on these warrants.

Mr Bovey submitted that the circumstances in this present case were not like those in the case of Goatley who had been in a similar position to what had been said in the Judgments in the case of Kakis, namely 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.

Mr Bovey said that, in contrast in this present case, the court had no material to indicate that at any stage Mrs Fasola had absconded from justice or that any period of time was attributable to her.

She explained where the company was based, who the directors and the other employees were, the difficulties which had been encountered, the steps which had been taken by Mrs Fasola to make an adequate living, how, from a small start, between 2002 and 2006 the business had gradually been built up, become more successful, taken on more staff and was now continually expanding.

She also referred to expanding the business not only into Italy but also into Serbia and Croatia.

In paragraph 4 of the Affidavit, Mrs Fasola explained that the business would cease and all of the jobs would be lost if she was returned to Italy to serve her sentences.

She said that if there was a possibility of serving the sentence in Scotland, it would be possible for her daughter to continue running the company under her direction and instruction.

Mr Bovey also made reference to the Affidavit [defence production No 8] of Mrs Fasola's daughter, Elena, who confirmed much of what was said by her mother and in particular, in paragraph 7, the difficulties of communication with a serving prisoner in the Italian prison system. He said that she confirmed her mother's claim that it would be impossible to run the business with such restricted contact.

Mr Bovey also made reference to the Financial Statements for the year ended 31 March 2005 for the company Maresca Ltd [defence production No 9] which he said demonstrated a slightly increased turnover in this latest accounting period.

He also made reference to [defence production No 10] which he said was a translation of a communication from Mrs Fasola's lawyer in Milan to her solicitor in Aberdeen which confirmed the difficulties of communication within the Italian prison system.

Mr Bovey therefore submitted that it would be unfair - that is it would be unjust and oppressive - to return Mrs Fasola on any of these warrants particularly because of

- the age of these matters,

- the difficulty of any retrial on warrant Nos 1 and 3,

- her legitimate activities in establishing her life in Scotland - not simply because she was from Scotland and her family was here, but because she had set up a business which was to the benefit of the economy of Scotland in general and Peterhead in particular.

He therefore invited the court to answer the question at section 11(1)(c) in the affirmative and to discharge Mrs Fasola under section 11 (3) of the 2003 Act.

Response on behalf of the Lord Advocate

Mr Dickson made reference to a communication (item No 32 of the Joint Bundle of Authorities) from Dr Laura Gay of the Office of the Prosecutor of the Republic, attached to the Court of Milan, Enforcement Office, 1st Division.

He submitted that, in terms of section 14 of the 2003 Act as amended, the period to be considered under section 14 (b) was from the date on which Mrs Fasola was alleged to have become unlawfully at large.

He noted that, under the former wording, the words "unlawfully at large" had stood alone and he accepted that, unlike Section 68A (which did not apply to section 14), no definition was provided for this section.

Nevertheless, he invited the court to start from a different set of dates from those suggested by Mr Bovey - dates which were based upon the peculiarities of the Italian system.

He noted that

European arrest warrant No 1 was dated 21 April 2006 and that the enforcement order specified within it was dated 26 April 2001,

European arrest warrant No 2 was dated 17 November 2006 and that the enforcement order specified within it was dated 24 April 2003, and

European arrest warrant No 3 was dated 17 November 2006 and that the enforcement order specified within it was dated 26 November 2002.

He stressed that these were the dates described in the warrants as the dates of the orders for enforcement in respect of the sentences referred to, and he submitted that the court could work from these dates as establishing that Mrs Fasola was unlawfully at large.

He reminded the court that, under the Italian system, the sentences imposed after the judgments of conviction did not become enforceable until these dates when the enforcement orders had been made.

He added that he drew support for that submission from what was said in the said communication from Dr Laura Gay (said item No 32).

Under reference to that document, he noted that the lower half of the first page dealt with "2)EAW 741/2001" which was in fact warrant No 1 in this case. He noted that it was said there that the enforcement order for imprisonment (with legal effect only in Italy) had been issued on 26 April 2001.

So, he submitted that, since the convictions had to pre-date the date of enforcement, and since the 2003 Act spoke of convictions, these could not become effective until the enforcement order was issued by the Italian prosecutor.

Accordingly, he submitted that warrant No 1 did not become enforceable until 26 April 2001. By the same reasoning, warrant No 2 did not become enforceable until 24 April 2003, and warrant No 3 did not become enforceable until 26 November 2002.

Under reference to the upper half of the first page of that document which dealt with "1) EAW 6223/2002" which was in fact warrant No 3 in this case, he noted that the final paragraph was in the following terms:

"On 11.05.05 a new aggregation order was issued (which embodied the earlier one of 1998), aggregating the sentences imposed by this EAW and the subsequent ones (No 2 and No 3), with an overall sentence of imprisonment to be served of 10 years, 7 months and 9 days (of which sentence, 3 years can be remitted)."

From that, Mr Dickson noted that at 11 May 2005, all the sentences were brought together with a fresh order for imprisonment, the total of which exactly matched the sentence total for which Mrs Fasola's surrender was now sought.

He submitted that the effect of this, if the court accepted his submission, was that it made much shorter the period which had to be considered by the court.

Based upon that, he submitted that, under the Italian system, although a person had been tried, convicted and sentenced, that had no immediate effect on that person's liberty since the sentence did not become effective until the order for enforcement was made and issued - and he said that that could apply whether the person had been present or absent in the court. He said that it appeared that the appeal stages could be dealt with without any effect necessarily upon the person's liberty.

It also appeared that the appeal system was such that the convicted person could take various appeals and it would not be until after the appeals had been refused that the enforcement order would be issued.

Against that background, he referred again to the communication from the Public Prosecutor (said item No 32) and, in respect of warrant No 1 in this case ["2) EAW 741/2001], he noted that the judgment of first instance had been issued - that is Mrs Fasola had been convicted - on 4 February 1998 in her absence although she had been represented by a lawyer of choice. She had lodged an appeal through her lawyer on 3 July 1998, that appeal had been heard in her absence although she had been represented by her lawyer of choice, and had been refused - the judgment of appeal being issued on 6 October 1999.

A further appeal by her through her lawyer of choice had been made to the Court of Cassation, and had been refused - the judgment of last instance being issued on 15 November 2000.

Mr Dickson noted that it was only after all these appeals had been exhausted that the order for enforcement had been issued on 26 April 2001.

He submitted that this was significant because the Italian system appeared to be such that, if the court were to be persuaded by Mr Bovey's argument, one result would be that the fugitive would have the benefit of any steps by which that fugitive had prolonged the order for enforcement by use of the appeal system.

He said that on Mr Bovey's argument, if a person sought to prolong the order for enforcement by effectively manipulating the appeals process, that would count against the state by prolonging the passage of time. However, on Mr Dickson's argument, it would not be proper to take that into account and the starting point should accordingly be only when the sentence became properly enforceable.

Mr Dickson submitted that, following the decision of the court in the case of Kakis, responsibility for that passage of time would properly lie with Mrs Fasola and that the court could be satisfied, as the Sheriff had been at paragraph 60 of his judgment in the case of Goatley, that Mrs Fasola fell into the same category as had Mr Goatley.

He drew attention to paragraph 3 of the communication dated 30 January 2007 from Dr Laura Gay of the office of the Public Prosecutor (said item No 28), which stated that although it was possible to issue in Italy a European arrest warrant even if the person concerned had not been located, that warrant could not be enforced until the person was actually located in Europe. This particular Public Prosecutor stated that her usual practice was to wait for the person concerned to be located and then to seek enforcement.

Mr Dickson noted that on the second page of the communication from Dr Laura Gay (said item No 32), at the end of the paragraph under the heading "3) EAW 2536/1995" [dealing with warrant No 2 in this case], was the information that on 24 November 2004, Interpol had reported that Mrs Fasola was probably in Great Britain but had not indicated her exact location.

It had been noted on the preceding page of the communication that a new aggregation order had been issued on 11 May 2005 which was enforceable within the European Union.

The second page of the said communication had also provided the information that on 25 May 2005, Interpol had transmitted to the Public Prosecutor Mrs Fasola's exact location and address in Great Britain. And the European arrest warrant would be issued for enforcement only when the person concerned had actually been located in Europe.

Drawing all that information together, Mr Dickson noted that the warrants concerned in this case had become enforceable on 26 April 2001, 26 November 2002 and 24 April 2003; on 24 November 2004, Interpol reported that Mrs Fasola might be in Great Britain; the Public Prosecutor then believed that there was a likelihood that Mrs Fasola might be found and therefore issued a fresh aggregation order on 11 May 2005 aggregating the sentences imposed, and now contained in all three European arrest warrants; and on 25 May 2005, Interpol confirmed Mrs Fasola's exact location and address.

Thereafter, attached to warrant No 1 (numbered "page 09" and also "7") was the Supplementary Information to which reference had previously been made - this being information provided in terms of Article 95.2 of the Convention on the Schengen Agreements. This Schengen Alert (to facilitate the arrest of the person concerned) was issued by the Office of the State Prosecutor dated 29 July 2005, and the European arrest warrant No 1 was dated 21 April 2006.

He submitted that Mrs Fasola became unlawfully at large on these three different dates and that the Italian prosecutor, under domestic Italian law, had issued the European arrest warrant when she knew where Mrs Fasola was to be found.

He further submitted that any delay was not such as to lead to unfairness if she was returned.

At paragraph 3 of the daughter's Affidavit, Mr Dickson noted that Mrs Fasola and her daughter had lived in 1998 at Via Zara Four, Fino Mornasco, Como.

He also noted that, in the said communication from the Public Prosecutor (said item No 32), at the foot of the first page, it was stated that on 29 May 2001 the Carabinieri Station of Fino Mornasco, Como, had transmitted a report to the Public Prosecutor of unsuccessful searches concerning Mrs Fasola, and that she was nowhere to be found.

Accordingly, he said it was clear that, at that time, the Italian authorities had not been aware that Mrs Fasola had departed two years previously, and that the authorities still had the belief that she was in Como - that being the address which had been confirmed in the Affidavit of her daughter.

Through her lawyer, she had lodged an appeal on 3 July 1998, which appeal had been dealt with by her lawyer of choice, but had been refused in the judgment of appeal issued on 6 October 1999.

Mr Dickson submitted that, on the second page of that communication and in relation to our warrant No 2 ["3) EAW 2536/1995"], one began to have a picture of why Mrs Fasola could be regarded as falling into the Kakis area, and actively avoiding detection.

He noted that on 13 December 1994, although Mrs Fasola had been under house arrest, she had not been present at the trial but had been represented by her lawyer of choice. The trial had concerned the counterfeiting of Treasury bonds and, on 13 December 1994, she had been convicted in the judgment of first instance.

On 24 January 1995, her lawyer of choice had lodged an appeal against that judgment.

Mrs Fasola had been present at the appeal hearing and the appeal had been refused in the judgment of appeal issued on 11 April 1995.

Mr Dickson noted that Mrs Fasola had been detained - either in prison or under house arrest - from 16 February 1994 until 6 December 1995 at which time she had been released by the Public Prosecutor following her application to be admitted to an alternative measure used for drug abuse treatment. (That period of detention had been deducted from the custodial sentence in warrant No 2.)

In the meantime, the Public Prosecutor had issued a sentence aggregation order on 9 November 1998.

On 24 March 1999, the Supervisory Court of Milan, which was responsible for making a decision on whether Mrs Fasola could be admitted to the said alternative measure, rejected Mrs Fasola's request to be so admitted.

That foregoing picture, Mr Dickson submitted, showed that it was reasonable to conclude that Mrs Fasola had been in custody from 16 February 1994 until 6 December 1995, that she had been convicted on 13 December 1994, that she had been released, although under some form of restriction in therapeutic custody, but that in March 1999, the Supervisory Court had withdrawn her release and, in addition, she had been convicted of the crime of armed robbery which was the offence referred to in warrant No 1 and in respect of which she had been sentenced to an additional period of 4 years and 2 months of custody.

Mr Dickson therefore submitted that, in the light of Mrs Fasola then facing some 8 years and 2 months of imprisonment, being at restricted liberty in the drug abuse treatment facility, and her appeals having been unsuccessful, she had then fled the Italian jurisdiction to avoid undergoing the substantial period of imprisonment to which she was subject. And she had subsequently been prosecuted in her absence for the third and final European arrest warrant offence.

Mr Dickson therefore submitted that, in light of the Judgments in the case of Kakis, Mrs Fasola had been responsible for removing herself from Italy.

He submitted that, contrary to Mr Bovey's submissions, the whole of the period until the dates of the enforcement orders, to which Mr Dickson had been referring in the 3 warrants, should not count in the equation of the passage of time, since they were not the responsibility of the Italian state but were, in reality, the responsibility of Mrs Fasola.

Mr Dickson noted that the Court had been invited to hold that where injustice or unfairness would arise for Mrs Fasola would be in the event of a re-trial. Standing the information from the Italian authorities, Mr Dickson said that, when the Court came to consider section 20 of the 2003 Act, he would seek to persuade the Court that, in respect of one of the trials, Mrs Fasola had been present at her trial under house arrest, and, in respect of the other two trials, she had deliberately absented herself from trial.

He would submit that the consequence of that would be that the Court would not be called upon to answer whether Mrs Fasola would be entitled to a re-trial on her return.

Further, in the absence of information regarding the detrimental effect on a fair trial due to missing witnesses, evidence or productions (which factors had persuaded Sheriff Stoddart not to order return in the case of Headrick), Mr Dickson submitted that the Court in this case could not make that assessment and could not therefore make the second step the regarding unfairness.

In conclusion on this aspect, Mr Dickson said that what the Court was being asked to do was to order Mrs Fasola to return to serve sentences in respect of offences of which she had been found guilty, had exhausted her domestic appeals against the convictions, and for which enforcement orders of the sentences had been issued. She was not therefore being returned for trial when different issues would be relevant - but simply to serve a sentence, albeit a substantial sentence.

Further submissions on behalf of Mrs Fasola

(i)                  that the document was technically inadmissible,

(ii)                that it was not material on which it was appropriate for the court to rely, and

(iii)               that it did not in fact provide a credible foundation for key parts of the submissions on behalf of the Lord Advocate.

He noted that section 203 allowed the document received by facsimile transmission to be treated as the original document. However, he questioned, and doubted, whether this was a document to be sent in connection with proceedings. While he accepted that this might be a document sent in connection with proceedings under the 2003 Act, he submitted that it was not a document to be sent. In other words, he submitted that there was no statutory requirement to send this document and, since it was just a document, it did not fall within subsection (1).

Mr Bovey further noted that the document which he had was simply a photocopy, and that there was nothing to indicate that what the Court had, was the actual document received. He added that there was nothing in this section which allowed the use of a photocopy of what had been received.

Mr Bovey submitted that a further point in relation to admissibility of this document arose out of the terms of section 202. In examining what was produced, he noted that of the four pages, two were in Italian followed by two pages in English. However, he submitted that there was a complete lack of authentication. He submitted that what he described as the "scribble" at the foot of each of the two pages in Italian gave no indication as to whether that was a signature of a judge, magistrate or other judicial authority - and the English pages bore no authentication or signature. He therefore submitted that the document did not fall within what he described as the generous terms of section 202.

Mr Bovey noted that, in terms of section 9 (2) of the 2003 Act, a judge at an extradition hearing had the same powers as in summary criminal proceedings and that the standard of proof required was beyond reasonable doubt. He therefore submitted that, since this document required to meet the criminal standard of proof, it would not be admissible as to its content in criminal proceedings.

Further, as a common law submission, Mr Bovey submitted that the content of the said communication was hearsay and, as such, inadmissible. He said that the basis for this was that the English version appeared to be an account of the file or other documentary material available to the Italian authority. He added that it was a number of chronologies for each of the three warrants.

Mr Bovey referred to "The Law of Evidence in Scotland" by Walker and Walker (2^nd Ed) at paragraphs 20.3.1 and 20.3.2, the latter of which dealt with criminal matters and excepted documents. He submitted that the first requirement was that the document was not within the possession of the party and the second requirement was that it could not have been recovered in spite of all due exertion. If his characterisation of the document was correct, he submitted that neither of these requirements were met. He said that the document and file was likely to be one to which the authority had ready access.

He added that, while this might be presented as a technicality, he said that he was prevented from examining the documents to see whether what was said was accurate.

For completeness, Mr Bovey referred to the provisions of section 259 of the Criminal Procedure (Scotland) Act 1995 and the notice which required to be given for these provisions to be utilised. Mr Bovey added that he would provide illustrations of issues on which he would like to have examined Doctor Gay, the Italian prosecutor, when he dealt with his second heading under this topic.

Secondly, he drew attention to paragraph No 3 of the English translation of the communication dated 30 January 2007 (said item No 28). The first two sentences of that paragraph were to the effect that it was possible to issue a European arrest warrant even if the person concerned had not been located, but that warrant could only be enforced when the person was located in Europe.

Mr Bovey submitted that these two sentences sat ill together and seemed inconsistent. Since these two documents had been issued by the same prosecutor, he submitted that it was difficult to know exactly what was meant in the sentence referred to in said item No 32.

Further in relation to the said communication (said item No 32), some halfway down the second page of the English translation and dealing with (3) EAW 2536/1995" [which is our numbered warrant No 2 ], those the following sentence:

"The convicted person was detained from 16.02.1994 to 6.12.1995 (at first in prison, then under house arrest) then she was released by the Public Prosecutor following her application to be admitted to the alternative measure of therapeutic custody (a measure used for drug abuse treatment)."

Mr Bovey said that the implication in that passage was that Mrs Fasola had been released to therapeutic custody in order to allow her to undergo treatment for drug abuse sometime during that period. However, he invited the court to refer to a medical record [defence production No 6] relating to Mrs Fasola, the English translation of the first page of which demonstrated that Mrs Fasola had been admitted to hospital on 26 November 1994, had been discharged on 19 December 1994 and that the reason for her admission to the gynaecological department of the hospital was related to "dysfunctional metrorrhagia" (involving uterine bleeding at regular intervals).

Mr Bovey submitted that the implication of the sentence quoted above from said item No 32 was that Mrs Fasola had been released to undergo drug abuse treatment. However, without the production of that document, he submitted that there was nothing to support such an implication. Further, such documentation as had been placed before the court on behalf of Mrs Fasola showed that she was undergoing treatment for an entirely different reason.

He said that a casual reading of this particular sentence suggested that Mrs Fasola had been released to undergo drug abuse treatment, but the author of the document could slide away from that if challenged. He submitted that that was not the hallmark of a document on which the court could rely.

The first related to Mrs Fasola having deliberately absented herself from trial and fled from justice, the second related to the Italian authorities not knowing where Mrs Fasola was, and the third related to the convictions not being enforceable before an Enforcement Order had been issued.

In relation to his first point on this topic, Mr Bovey noted that in neither warrants Nos 1 or 3 was it said when the trial had been. (Mr Bovey said that he was not at this point considering warrant No 2 partly because it had been withdrawn on 27 April 2007 and partly because Mrs Fasola had been present at that trial.) There was no information as to whether the date of the decision was the date of the trial or whether it was the whole of the trial.

He noted that there was reference to the Judgments being in Mrs Fasola's absence, but there was no material to equate that with her having deliberately absented herself.

In particular, he submitted that there was no information that a trial diet had been intimated effectively to her and that she had chosen not to attend.

There was material to show that Mrs Fasola had been in hospital for part of the period, but without information as to when the trial date was, Mr Bovey submitted that he was unable to address such points as whether that would amount to deliberately absenting oneself.

Mr Bovey said that it seemed to be being said that there were some significance in Mrs Fasola leaving Italy; but he submitted that leaving the country was not evidence of having been told of a diet of trial and having decided not to attend it.

Nor, he submitted, was it explained why being defended by an advocate of choice in connection with warrant No 1 made a difference when compared with warrant No 3 where that was not said, but instead it was recorded that she was represented by a Court appointed defence counsel.

Mr Bovey submitted that that did not amount to saying that the authorities in Italy did not know where Mrs Fasola was.

He referred to an extract [defence production numbers 16] which was said to be from the online version of The Scotsman newspaper of the date 24 July 2004. He said that this was an item about Mrs Fasola in relation to a diamond robbery in Japan on 5 March 2004.

He read from the two paragraphs at the top of the second page to the effect that Japanese police, accompanied by Grampian police officers, had attended at Mrs Fasola's rented house in a suburb of Aberdeen on 7 July 2004 in order to search it. The item continued that the Japanese police had been from the International Organised Crime Division of the Tokyo Metropolitan Police, that they had been accompanied by a civil servant from the Japanese equivalent of the Home Office, that they were understood to have removed a computer and mobile phone for further examination, and that Mrs Fasola, although present throughout, had not been questioned.

Mr Bovey submitted that this material showed that Mrs Fasola's whereabouts were known to the Japanese and Scottish authorities in July 2004; and so he said it was curious that Interpol had not known an exact occasion at that time.

In respect of warrant No 1, Mr Bovey noted that on the second page, at b) 2, the enforceable judgment had been rendered on 4 February 1998, becoming final on 15 November 2000, with the Order for Execution being made by the Office of the State Prosecutor attached to the Court of Milan on 26 April 2001.

Mr Bovey then compared that with what was said in the said communication (said item No 32) also in relation to warrant No 1. There, it was said that Mrs Fasola had lodged an appeal with the Court of Cassation through her lawyer of choice, and that the judgment in respect of that had been issued on 15 November 2000. The following line stated that an enforcement Order for imprisonment (with legal effect only in Italy) had been issued on 26 April 2001.

Mr Bovey said that it had been on the basis of, and supported by that, that Mr Dickson had said that the convictions were not enforceable until the Enforcement Order was issued.

However, Mr Bovey drew attention to the fact that the second page of warrant No 1 [at b) 2] stated that the enforceable judgment became final on 15 November 2000 - in other words, when the Court issued it and not when the prosecutor took steps to enforce it.

Mr Bovey continued that, if it was only when the prosecutor issued the enforcement Order that the judgment became enforceable, then the prosecutor could issue the enforcement Order on the same day as he issued a European arrest warrant. And this would deny any content to the protections provided by section 14 of the 2003 Act, a person could not become unlawfully a large unless there was an enforcement Order.

Mr Bovey said that this was seen very clearly in respect of warrant No 2 - and any doubt about that was removed by the decision of the Italian Court now to hold that warrant No 2 had become time-barred.

Accordingly, Mr Bovey submitted that the communication (said item No 32) did not support the proposition that the judgment only became enforceable when the prosecutor issued an enforcement Order.

For the reasons which he had just given, Mr Bovey submitted that the submissions of Mr Dickson (in response to Mr Bovey's submissions on section 14 of the 2003 Act) which had been based on the communication (said item No 32), were not in fact supported by that communication; and he therefore invited the Court to uphold his own submissions in respect of the passage of time.

Further response on behalf of the Lord Advocate

He stressed again that extradition was intended to be expeditious and based upon mutual recognition of states within the European Union.

While he accepted that section 9 (2) of the 2003 Act applied, these were not proceedings to which Article 6 of the European Convention would apply. Neither a civil claim nor a criminal charge was determined by these proceedings and, accordingly, Article 6.3 did not apply.

While it was correct to say that, in extradition proceedings, oral evidence might be led, he submitted that the 2003 Act envisaged that the European arrest warrant would be received, and that other documents - which could be in a variety of formats - might be received in support of the European arrest warrant which was before the Court.

Against that background, Mr Dickson submitted that Mr Bovey's submissions in connection with section 203 of the 2003 Act strained the language of the section too far.

Mr Dickson submitted that section 203 allowed any document to be received by facsimile; and indeed section 204 allowed the European arrest warrant and the information in it to be sent by e-mail.

In expanding that, Mr Dickson submitted that sections 202, 203 and 204 envisaged that a European arrest warrant would be transmitted and the designated authority might require clarification, the response to that request for clarification could be a letter, form or other document being received by the designated authority, and thereafter the Part 1 European arrest warrant, along with the further information in the letter, form or other document, would then all be certified as a bundle.

He submitted that, by virtue of these sections, all of that could be done by a method which could include facsimile or by e-mail, presumably since the tight set of time limits applied, including appeal, within jurisdictions across the whole of Europe.

For that reason, he submitted that the Act did not therefore require principal documents, which he said underpinned the expeditious nature of the proceedings.

Accordingly, Mr Dickson submitted that these documents were admissible under the 2003 Act and that they had been appropriately sent and received.

As regards the complaint which Mr Bovey had made earlier that the two communications (said item Nos 28 and 32) had become separated, Mr Dickson submitted that, upon examination of them, it was clear that they had been sent by facsimile transmission on 6 February 2007 commencing at 1333 hours and ending at 1335 hours. He therefore submitted that it was clear that these documents had been sent by facsimile transmission in terms of section 203 of the 2003 Act and were therefore properly received as if they were the original documents used to make the facsimile transmission.

In the case of each of these documents, he submitted that it was clear that they had been signed by Dr Gay and that the seal of her Department was on them. The facsimile bore to come from the Ministry of Justice. Dr Gay was an official who was known in these proceedings, since she had issued and signed the Part 1 warrant.

Mr Dickson drew attention to the terms of section 204 (3) which permitted a copy of the information received by the designated authority to be received in evidence.

As an example of how the Court of Appeal in England would look at information, he referred to the Judgment in the case of

He noted that section 202 had been the subject of amendment; but he submitted that the communication (said item No 32) did not purport to be certified by seal or otherwise. He further submitted that the Crean case was quite different and had been witnessed by an Irish High Court Judge.

Finally, he submitted that the expedition in extradition cases was a reason for the courts to be all the more vigilant, especially where the statutory procedures involved were so undemanding. In such circumstances, the least the Court should expect would be that such procedures as there were, were followed.

My decision

Section 11 of the 2003 Act - Bars to Extradition

(i) The passage of time

My decision on this was that I have to consider the various matters about which I require to be satisfied in respect of these warrants in this case, in the light of the terms of the legislation in force at the time of my consideration of these matters.

I therefore concluded that that involved applying the 2003 Act provisions in their amended form.

Since that is what I consider I require to do, I therefore reject Mr Bovey's submissions to the contrary.

Mr Bovey had submitted that it would be unjust and oppressive to return Mrs Fasola on any of these warrants particularly because of

-                     the age of these matters

-                     the difficulty of any re-trial on warrant Nos 1 and 3, and

-                     her legitimate activities in establishing her life in Scotland.

He had invited the Court to answer the question at section 11(1)(c) in the affirmative and to discharge Mrs Fasola under Section 11(3) of the 2003 Act.

Mr Dickson, on the other hand, had invited the Court, in the light of Section 14 of the 2003 Act, to answer the question at section 11(1)(c) in the negative, and to proceed to section 20 by virtue of the terms of section 11(4) of that Act.

It seems to me that the reason for this statutory alteration is to make it clear beyond any doubt that the passage of time to be considered in section 14 is:

- from the alleged commission of the extradition offence to the present, where the return sought is for trial to take place

and

- from the time the person became unlawfully at large to the present, where the return sought is after conviction and the person is to be sentenced or is to serve a sentence already imposed.

The amendments made to the 2003 Act do not provide any definition of the phrase "unlawfully at large" - and so it appears necessary simply to give the words their ordinary meaning.

Mr Bovey suggested that it was clear now in the amended version that the focus was from the time of final conviction, when he suggested it appeared that one became unlawfully at large. I am unclear as to what Mr Bovey meant by the time of "final conviction" since it is not a term that seems to be used in the papers before me.

Mr Dickson submitted that the date of the enforcement order by the Public Prosecutor was the appropriate starting point.

-                     that after trial, the court renders a judgment of first instance ;

-                     that the person may appeal and, if the appeal fails, the appropriate court will render a judgment of second instance ;

-                     that the person may appeal further to the Court of last instance, the Court of judgement or a judgment of last instance.

After that, the relevant enforcement order is likely to be issued by the Public Prosecutor for the convicted person's arrest in Italy.

(A further factor which may arise appears to involve the possibility of release from some form of detention by the Public Prosecutor following an application for the person to be admitted to an alternative measure of therapeutic custody (a measure used for drug abuse treatment). The Supervisory Court (of Milan in this case) had the responsibility for making a decision on whether the person could be admitted to this said alternative measure.

If such a request is rejected by the Supervisory Court, it appears that the Public Prosecutor will then issue the relevant enforcement order, with legal effect only in Italy.)

If there is more than one enforcement order, the appropriate Public Prosecutor can issue an aggregation order, and later, if appropriate, a new aggregation order, embodying earlier one or ones, and thereby producing an overall sentence to be served.

Under the Italian system, significant events seem to be, in the case of a conviction,

the date on which the enforceable judgment of conviction was rendered,

the date on which that enforceable judgment became final - which seems to be the date of the judgment of the final appeal in the Court of Cassation,

the date on which an Enforcement order was made, which appears to involve an Order for Execution being made in the Register for Execution by the Office of the State Prosecutor attached to the particular Court which imposed the sentence.

A plain meaning of the words "unlawfully at large" would seem to imply the existence of an order requiring the person to be in some form of custody, the person being aware of that, and then being outwith that custody without authority.

a warrant ordering the person to undergo a period of detention or imprisonment (which would in fact take the form of a warrant to the Governor of the Prison to implement a sentence imposed by the court).

It would also be a necessary implication that there had been no interim liberation or release pending appeal ordered by the original court or by a superior court.

In that situation, the person would not be unlawfully at large until the appeal had been disposed of and either the original sentence reinstated or a fresh sentence imposed ordering the person to undergo a period of detention or imprisonment.

In the Italian system, one of the functions of the Public Prosecutor is that that officer is required to issue enforceable orders in respect of custodial sentences imposed by the court and, if the convicted person is not in custody, to arrange for the incarceration of that accused person when a custodial sentence requires to be enforced.

Thus, if the convicted person in Italy who was subject to a custodial sentence ordered by the court was not in custody, such a person could not be unlawfully at large until the Public Prosecutor had issued an enforceable order in respect of that sentence, and the person was not undergoing it.

It therefore follows that I am satisfied that Mr Dickson's submissions on these matters are to be preferred to those of Mr Bovey.

In particular, I agree that the Italian prosecutor had not issued the relevant enforcement orders until after the various appeal steps had been taken and concluded.

I consider that Mr Dickson was well-founded when he submitted that it would be quite unreasonable and unjustifiable (in considering any question relating to the passage of time) to count against the State any period before the enforcement order was issued by the Public Prosecutor and while the convicted person - in this case Mrs Fasola - was exercising various rights of appeal available to her.

I am therefore satisfied that the periods to be considered in respect of the question of the passage of time are:

-                     from 26 April 2001 in respect of warrant No 1,

[ - from 24 April 2003 in respect of warrant No 2,] and

-                     from 26 November 2002 to in respect of warrant No 3.

I noted, in connection with warrant No 2,

that Mrs Fasola had been in custody (at first in prison, then under house arrest) from 16 February 1994 until 6 December 1995,

that she had been convicted on 13 December 1994, and had been sentenced to a period of four years imprisonment (from which fell to be deducted the period of detention either in prison or under house arrest),

that she had been released by the Public Prosecutor after she had applied to be admitted to an alternative measure of therapeutic custody, but that on 24 March 1999 the Supervisory Court of Milan had rejected her request to be admitted to that alternative measure of therapeutic custody (used for drug abuse treatment),

that she had appealed against the judgment but the appeal had been refused on 11 April 1995 and, by the Court of Cassation, on 21 November 1995,

that, in connection with warrant No 1, she had been convicted of armed robbery on 4 February 1998 and sentenced at first instance to a further period of 4 years and 2 months imprisonment, with the Public Prosecutor issuing a sentence aggregation order on 9 November 1998.

I also noted that in 1998 Mrs Fasola and her daughter had lived at an address in Fino Mornasco, Como, Italy, but that they had both returned from Italy to live in the Aberdeen area in 1999,

that on 11 May 2001, in connection with warrant No 3, Mrs Fasola had been convicted in her absence and sentenced to a further period of four years imprisonment in respect of an offence of counterfeiting of currency,

that at 29 May 2001 the Carabinieri Station of Fino Mornasco, Como, had reported to the Public Prosecutor the result of unsuccessful searches concerning Mrs Fasola, and that she was nowhere to be found - from which it was clear that the relevant Italian authorities had not been aware of her departure to Scotland in 1999,

that, in November 2004, Interpol had reported to the Public Prosecutor that Mrs Fasola was probably in Great Britain but with no exact location,

that on 11 May 2005 a new aggregation order had been issued in respect of the overall sentences of imprisonment to be served (and now contained in all three European arrest warrants),

that on 25 May 2005, Interpol had informed the Public Prosecutor of Mrs Fasola's exact address in Great Britain,

that on 29 July 2005 the Schengen Alert had been issued by the Public Prosecutor to facilitate Mrs Fasola's arrest, and

that on 21 April 2006, the European arrest warrant No 1 had been issued.

I therefore considered that Mr Dickson's submissions were correct and that there had been no delay here such that it would be unjust or oppressive to return Mrs Fasola due to the passage of time.

I was also satisfied that, in considering the question of the passage of time, it would be quite unreasonable to count against the Italian State the period prior to the dates of the enforcement orders. Much of the period between the Judgments of first instance and issuing by the Public Prosecutor of the enforcement orders had been occupied by activities such as appeals which had quite legitimately been exercised by or on behalf of Mrs Fasola.

In that sense, therefore, it was appropriate to regard these periods of time as the responsibility of Mrs Fasola rather than the Italian State.

I also considered that Mr Dickson was correct when he submitted that the circumstances of this case were unlike those in the case of Kakis where the Court had said that it could look at the period of time during which the person had settled in the country where he was being sought, and that the inactivity of the requesting State might lull the person into a false sense of security that his extradition might never be sought.

In this case, Mrs Fasola had lived openly in Scotland and it was clear from the documentary information that, although in Scotland, Mrs Fasola had continued to be actively involved through her Italian lawyers in appeals against Judgments, and in petitions and applications to the Court and to the Public Prosecutor in connection with the Judgments of conviction, the sentences imposed and at least one of the European arrest warrants.

It appeared that, in respect of one of the trials, Mrs Fasola had been present at her trial under house arrest and, in respect of the other two trials, she had deliberately absented herself from trial. Consequently, I was satisfied that I did not require to deal with the question of whether Mrs Fasola would, on her return, be entitled to any re-trial.

I was therefore satisfied that Mrs Fasola's return was being sought in the (originally three but now) two warrants in this case in order to serve sentences of imprisonment in respect of offences of which she had been found guilty, had exhausted her domestic appeals, and in respect of which enforcement orders of the sentences had been issued. Having also taken account of Mr Bovey's submissions concerning the less favourable regime under the 2003 Act than had applied when the convictions had become final, I was fully satisfied that it would not be unjust or oppressive so to return her by reason of the passage of time since she became unlawfully a large in each case.

In particular, I accepted that, while section 9(2) of the 2003 Act applied, Article 6.3 of the European Convention did not apply since neither a civil claim nor a criminal charge was determined by these proceedings.

Although Mr Bovey made reference to paragraphs 20.3.1 and 20.3.2 of "The Law of Evidence in Scotland" by Walker and Walker (2^nd Ed.), and the provisions in the Criminal Procedure (Scotland) Act 1995 (section 279 and 279A and Schedule 8) which provided relaxations in the rules concerning evidence from documents and certain official documents, I am clear that the 2003 Act made further provision and relaxations concerning documents and other material which could be received and admitted in proceedings under it.

In this connection, I considered that a plain and straightforward interpretation of the wording of section 203(1) of the 2003 Act meant that the document in question clearly fell within the terms of the said section 203(1)

In addition, I was satisfied that the two communications (said items Nos 28 and 32) were part of the same document which had been sent by facsimile transmission on 6 February 2007.

I was further satisfied that this document had been duly authenticated in terms of section 202(4) of the 2003 Act. It bore to have been sent from the Office of the Prosecutor of the Republic with the seal of that office attached, was in the name of Dr Laura Gay, and bore to have been initialled by her. Dr Gay is known in these proceedings to be an officer in that capacity within that office.

In the light of the foregoing, I was fully satisfied that said sections 202 and 203 allowed these "other documents" to be received in evidence as if they were the original documents since they had been duly authenticated and had been sent by facsimile transmission.

Indeed, I noted that section 202(5) of the 2003 Act allowed documents which had not been duly authenticated still to be received the evidence in the proceedings under this Act.

(While it does not affect my decision, I did not accept Mr Dickson's submission that section 204 of the 2003 Act applied in this matter. I considered that its terms were restricted to transmission by electronic means other than facsimile transmission.)

He drew attention (at paragraph 74) to two particular sentences which he submitted sat ill together and seemed inconsistent. Having carefully considered the two sentences in question, I not consider that the apparent discrepancy is of any significance whatever; and it certainly has no bearing upon matters on which I require to decide.

Mr Bovey next drew attention to a medical record [defence production No 6] relating to Mrs Fasola which showed that she had been in hospital between 26 November and 19 December 1994. He then submitted that what had been said in the said communication (said item No 32) about Mrs Fasola's detention in 1994 and 1995 could be misleading and was not the hallmark of a document on which the court could rely.

I considered that this submission was without substance. I did not myself see any particular inconsistency in these two elements. No doubt Mrs Fasola was in hospital for gynaecological reasons between 26 November and 19 December 1994; but that would not be inconsistent with what was said in the particular sentence of which Mr Bovey complained. The sentence is within the document issued by the public prosecutor, and, although the information has undoubtedly been extracted from an official record or file, there is nothing improper in that (in terms of the 2003 Act) since it has been signed by that prosecutor who is undoubtedly an officer of the territory which, in this case, is Italy.

-                     the first related to Mrs Fasola having deliberately absented herself from trial and fled from justice

-                     the second related to the Italian authorities not knowing that where Mrs Fasola was; and

-                     the third related to the convictions not being enforceable before an Enforcement Order had been issued.

I have concluded that there is no substance in these submissions.

In warrant No 1, the judgment of conviction was given on 4 February 1998 and was final on 15 November 2000; while, in warrant No 3, the judgment was given on 11 May 2001, and final on 17 October 2002. Against that information, it is difficult to see how hospitalisation in November and December 1994 could have any effect on warrant Nos 1 and 3.

The judgment in warrant No 2 was given on 11 April 1995 and was final in November 1995 - in relation to which it will be recalled that Mrs Fasola was said to be detained from 16 February 1994 until 6 December 1995, at first in prison and then under house arrest, and then being released by the public prosecutor following her application to be admitted to the alternative measure of therapeutic custody.

It is clear from warrant Nos 1 and 3 and from the supporting documents which had been received in evidence that, in respect of these offences, Mrs Fasola had not been present and that the judgments were rendered in absentia. Indeed, warrant No 3 contains the statement at the foot of the third page that "the trial was celebrated in her declared absentia as she failed to appear at hearing".

In addition, at the top of the fourth page of the same warrant, is the statement that

"the rights of the defence were respected, as the person sought was represented by a Court appointed defence counsel".

It is also clear from the same sources of information that, in respect of the court proceedings in connection with warrants Nos 1 and 3, not only did each of these cases go through the process of judgment of first instance, judgment of second instance and final judgement or judgment of last instance (before the Court of Cassation) but also that Mrs Fasola was, at each of these processes, legally represented by a lawyer of choice on all but one occasion, when she was represented by the court-appointed lawyer.

I consider that to be of particular importance.

Against that significant background, and keeping in mind that extradition requests and processes are to be approached in the light of mutual respect and recognition of the laws and procedures of foreign states, I consider it to be an inevitable and irresistible conclusion that there were no defects in the summoning of Mrs Fasola or otherwise informing her of the date and place of the hearing which led to the decision rendered in absentia, that she was aware of the dates in question, but chose to absent herself.

I consider that any such defects would undoubtedly have been raised and dealt with within the trial or appeal process in the Italian legal system, more especially since she was legally represented. And not only legally represented but, as I have stressed earlier, by her lawyer of choice on all but one occasion - and even on that occasion, later on at appeal stages, by her lawyer of choice.

Since it is clear that no deficiency was raised or, if raised, had no bearing on the outcome, I consider that it is appropriate for me read what is said about this in the material before me in that light and against that background.

I therefore concluded that there was no substance in these criticisms made by Mr Bovey.

I also concluded that Mrs Fasola had deliberately absented herself from the trials.

Having carefully considered these submissions of Mr Bovey in the light of all the information available to me concerning the steps and processes in the Italian legal process in respect of trial and subsequent appeal, I have concluded that there is no material to support the criticisms of Mr Bovey, and that there is accordingly no substance in these submissions.

There is clearly a difference - and a significance - under the Italian system between that the date of the rendering of an enforceable judgment, the date of its becoming final (which seems to be related to the final, appeal decision), and the date an Order for Execution is made by the Public Prosecutor Attached to the Court which rendered the judgment.

While the full details concerning this may not be available in the papers before me, there are clear references to this not only in the Opinion of Professor Vestuti [defence production No 12] but also in the Italian domestic law (Item 1.4 of the Joint Bundle of Authorities) which implemented the Framework Decision.

I am therefore satisfied that Mr Dickson's submissions in this regard are well-founded I have been prepared to accept them as correct.

In the light of the foregoing, I rejected the submissions of Mr Bovey in respect of the passage of time and I was satisfied that the extradition was not barred by reason of that.

Section 11 - Bars to extradition

(ii) Speciality

Submissions on behalf of Mrs Fasola

He submitted that these should be read against the new communication (item No 36 of the Joint Bundle of Authorities) from the said Dr Gay of the Office of the Public Prosecutor in Milan, which communication was dated 22 and 23 March 2007 and which had been lodged on behalf of the Lord Advocate on 30 April 2007.

Mr Bovey noted that on the page numbered 3 of this communication, the new unified sentence had been amended to 7 years 11 months imprisonment, net of early release.

Looking again at the said communication [said defence production number 4], Mr Bovey said it was of interest that as at 25 September 2006 (the date of that document) and before the European extradition warrants numbers 2 and 3 had been issued, the intention of the Milan Public Prosecutor was that Mrs Fasola would serve the sentences set out in all three warrants, albeit that her extradition was then only being sought in respect one of these warrants.

He noted that warrant number 2 had now being abandoned and that Mrs Fasola would not serve the sentence in relation to that case; but the intention of the Milan Public Prosecutor was that Mrs Fasola would serve the sentences in relation to warrant numbers 1 and 3, regardless of whether or not she was extradited on numbers 1 and 3.

Accordingly, Mr Bovey submitted that, to that extent, the rules on Speciality were not being observed in prospect.

Response on behalf of the Lord Advocate

Mr Dickson submitted that it was clear that the Milan Public Prosecutor was aware that there were three separate European arrest warrants and, in the said new communication (said item No 36), there was noted a separate reference number in respect of warrant number 2, which had been withdrawn. Further, on the page numbered 3 of that communication, that element had been removed from the previous unified (or cumulative) sentence.

He submitted that what the Public Prosecutor had done was to remove one warrant (warrant number 2) which had been withdrawn and to deduct the sentence in relation to that warrant from the cumulo sentence.

In terms of mutual recognition, he submitted that this could properly be accepted as a request from a friendly state within the European Union. He added that, if this Court were to discharge Mrs Fasola on another of the warrants, that sentence would fall to be deducted from the newly notified cumulo sentence.

Mr Dickson also submitted that, by her actions thus far, the Public Prosecutor in Milan had demonstrated that she had applied the three-year pardon to the sentences which remained.

He accordingly submitted that this Court could be satisfied that the Italian authorities would abide by the rule of Speciality and would only enforce the sentences in relation to which Mrs Fasola's return was ordered.

My decision

Section 11 - Bars to Extradition

(ii) Speciality

I was therefore satisfied that the extradition was not barred by reason of speciality.

Having rejected Mr Bovey's submissions in terms of section 11 of the 2003 Act concerning the passage of time and speciality, and being satisfied that extradition was not barred by reason of these factors, I therefore answered the question arising from section 11(1)(c) and (f) of the 2003 Act in the negative and then, in terms of section 11(4), since Mrs Fasola was alleged to be unlawfully at large after conviction of the extradition offences, I proceeded under section 20 of the said Act.

Section 20 of the 2003 Act

Turning to section 20, subsection (1) thereof required me to decide whether Mrs Fasola was convicted in her presence. Since each of warrants numbers 1 and 3 said that proceedings had not been in her presence, that led to section 20(3) which required me to decide whether Mrs Fasola had deliberately absented herself from the trial.

Submissions on behalf of Mrs Fasola

In particular, Mr Bovey stressed that none of the warrants or documents provided the date of trial and none gave any dates of any form of intimation of the trial date.

Further, none gave any indication of attempts to bring Mrs Fasola to a trial or any reason why she might not have been at the trial.

He submitted that, even if it was established that Mrs Fasola had been aware of pending criminal proceedings (which Mr Bovey did not accept), an awareness of criminal proceedings pending followed by mere absence, did not demonstrate deliberately absenting oneself from trial.

Mr Bovey therefore submitted that the question in section 20(3) should be decided in the negative - which would lead on to section 20(5) and the question as to whether Mrs Fasola would be entitled to a re-trial or (on appeal) to a review amounting to a re-trial.

He submitted that that was a matter for the Lord Advocate to prove; and Mr Bovey understood Mr Dickson to have said that the Crown stood on deliberate abstension or absence from trial.

Accordingly, in terms of section 20(7) Mr Bovey invited me to order Mrs Fasola's discharge.

(For completeness, Mr Bovey noted that section 20(8) provided what rights would have to be protected in order to satisfy the requirement for re-trial or review amounting to a re-trial.)

Response on behalf of the Lord Advocate

In particular, he noted that both warrants numbers 1 and 3 stated (on the second page at section d)) that the decision had been rendered in absentia and the person concerned had been summoned in person and informed of the date and place of the hearing which led to the decision rendered in absentia.

Accordingly his submission was that the question contained in section 20(3) should be answered by this Court in the affirmative, namely that Mrs Fasola had deliberately absented herself from trial.

Further in support of his principal submission, Mr Dickson noted that both warrants stated explicitly that the person had been summoned in person and informed of the date and place of the hearing.

He submitted that, in the recognition by this Court of the judicial decision by the Italian Court, it should be accepted that Mrs Fasola had been served with information concerning the date and place of the hearing.

Warrant number 1, on the second page at section b) 2, was stated to relate to a judgment of conviction rendered by the Court of Milan on 4 February 1998, becoming final on 15 November 2000, and being the subject of an Order for Execution on 26 April 2001.

On the basis of the Affidavit by Mrs Fasola [defence production number 7], she had left Italy in 1999. The address which her daughter had confirmed was the address which the Italian police had used to try to locate Mrs Fasola.

Mr Dickson therefore submitted that Mrs Fasola had been fully aware of both the date and place of her trial in respect of each of warrants numbers 1 and 3. He submitted that she had removed herself and deliberately absented herself from these processes. He noted that, in warrant number 3, at the top of the fourth page (numbered "12" on the faxed copy), it was confirmed that the rights of the defence had been respected, since Mrs Fasola had been represented by a Court appointed defence counsel.

Mr Dickson submitted that, if the Court was not satisfied that Mrs Fasola had deliberately absented herself, then the guarantees which were provided by the Italian legal system were set out in each of the warrants - referring to section 175 of the Code of Criminal Procedure.

These guarantees (at paragraphs numbered "2" and "2-bis) were stated in the following terms:

"As she remained in default, the Italian legal system provides the legal guarantees envisaged by section 175 of the Court of Criminal Procedure which provides in paragraph 2:

'If a sentence of default or a decree of conviction was pronounced, the Defendant can request restoration of the deadline to file an appeal or an opposition provided that the defendant did not have effective knowledge of the provision that was made and did not voluntarily waived to appear on to file an application or an opposition. To that purpose, the judicial authority carries out every necessary verification.

2-bis The request indicated in paragraph 2 shall be filed, on pain of lapse, within 30 days from the date the defendant had effective knowledge of the act. In the case of extradition from abroad, the term to file a request shall run from the day of the surrender of the sentenced person."

Mr Dickson submitted that these provisions met the terms of section 20(5) of the 2003 Act.

He submitted that, on her return, the position of Mrs Fasola in Italy was not prejudiced nor was it any different than if she had remained within the Italian system.

He said that the said communication (said item No 32) showed the appeal process but, as had been the position in the case of

As a matter of mutual recognition, this Court was being told by the Italian authorities that Mrs Fasola had been summoned in person or otherwise informed of the date and place of the hearings - and Mr Dickson submitted that this Court should require no more than that.

He said that this Court was being told that Mrs Fasola had thereafter been represented in the proceedings; but, even without that, he submitted that this Court could be satisfied on this point. Mere absence had been said by Mr Bovey to be insufficient; but Mr Dickson submitted that we were a long way beyond simple non-attendance at a trial.

Mr Dickson referred again to the case of La Torre and to paragraph [69] of the Opinion of the Court where, in approving what had been said by Lord Bingham, the High Court said:

In warrant No 3 at the same paragraph (d), it was stated that the decision had been rendered in absentia and this was followed by two alternative statements, the first of which was in bold type whereas the second was in normal type and was followed by the words "not applicable".

This in turn was followed by the specification of the legal guarantees provided by the Italian legal system, which were printed in bold type and, in respect of decisions rendered in absentia, as in that [warrant No 3] case, were contained within Article 175, paragraph 2 and 2bis of the Italian Criminal Code.

Mr Bovey then turned to the same paragraph (d) in warrant No1 and noted that the second alternative, which was printed in normal type, was not followed by the words "not applicable".

Thus, Mr Bovey noted that in this paragraph (d) in each of warrant Nos 3 and 1, after the statement that the decision had been rendered in absentia, there was the statement that the person concerned had been summoned in person and informed of the date and place of the hearing which led to the decision rendered in absentia ; followed by the alternative statement that the person concerned had not been summoned in person or otherwise informed of the date and place of the hearing but had the legal guarantees which were set out below after surrender.

Mr Bovey submitted that this court could not say which of these two alternatives applied.

Coming to this document by virtue of the second alternative, he submitted that it was not good enough for the Crown simply to ask the court to rely upon this being determined by the use of bold type in a faxed document.

He added that there was the additional complication of the words "not applicable" being included after the second alternative in warrant No 3, but not being included at the same point in warrant No 1. He also referred to it being unclear as to what might be meant by the use of the words at that point. In order to invoke the guarantee, the person appeared to have to prove that he or she had not been informed or received effective knowledge of the order or provision that had been made, and had not voluntarily renounced or waived the opportunity to appear, or to file an appeal, or an opposition.

In this present case, Mr Bovey submitted that it seemed clear that Mrs Fasola would not have an appeal by virtue of this legal guarantee because she was said to have exhausted her various rights of appeal.

He said that there were three questions in this connection.

The first was whether the person concerned had been in his or her presence.

The second was whether, if the person had been convicted in absence, the person had deliberately absented him/herself from their trial.

And the third question was, if the person had not deliberately absented him/herself from trial, whether that person would be entitled to a retrial or (on appeal) to a review amounting to a retrial.

Mr Bovey submitted that fairness was not a factor at this stage; nor did it matter how an Italian citizen would have been treated. He said that Mrs Fasola was a British citizen whose return was being sought after a trial in absence.

He added that it would not do to say that there was no material to show what her appeal might be on return. Section 20(8) of the 2003 Act set out the basis on which this court could be satisfied - and he submitted that that was what amounted to a retrial.

Mr Bovey submitted that the Crown was in effect conceding that there was no material attempting to meet these requirements, and so this court did not know what any appeal in this situation would involve.

Turning to the evidence contained in the Affidavit of Mrs Fasola's daughter concerning the address, Mr Bovey submitted that that Affidavit did not show that notification of anything had been sent to that address. All that this court knew was that in 2001 police officers looked for Mrs Fasola but did not find her. That, however, was not to say that any form of service had been made at that address for a trial which had led to the judgment of first instance issued as regards warrant No 1 on 4 February 1998. (Mr Bovey noted that the judgment of first instance had been issued as regards warrant No 3 on the 11 May 2001, by which time Mrs Fasola had left and was not to be found.)

Accordingly, Mr Bovey submitted that this point did not assist and did not point in either direction. He submitted that this court could not be satisfied that Mrs Fasola deliberately absented himself from any trial nor that she would be entitled to any retrial or (on appeal) to a review amounting to a retrial as defined by section 20(5) and (8) of the 2003 Act.

He said that it was difficult to see how that provision could be satisfied without the Crown informing the court when the trial had been. He said that this Court did not know when these trials had taken place and so the efforts of the Crown simply did not properly commence. Mr Bovey said that he could not be expected to deal with such nebulous information on such an important matter.

He therefore invited the court to discharge Mrs Fasola by virtue of the provisions of section 20.

My decision

Section 20 of the 2003 Act

I have already observed and concluded on aspects of this when dealing with the issue of the passage of time as a bar to extradition (in terms of section 11 of the 2003 Act).

In connection with Mr Bovey's submissions concerning whether Mrs Fasola had deliberately absented herself from trial and fled from justice, I concluded (at paragraph 91 above), that she had indeed done so.

I consider that the same reasoning is applicable at this stage and my conclusion remains the same.

I am therefore fully satisfied that Mrs Fasola was not convicted in her presence, that she did indeed deliberately absent herself from her trials, and that section 20(1) of the 2003 Act should therefore be answered in the negative while section 20(3) of the Act should be answered in the affirmative.

That being so, I do not consider that it is necessary for me to reach or express a concluded view on whether, on her return, Mrs Fasola would have been entitled to a re-trial or, on appeal, to a review amounting to a re-trial - in terms of section 20(5) and (8) of the 2003 Act.

My present view is that Mrs Fasola has already utilised all avenues of appeal of which I am aware open to her under Italian law.

I would therefore have doubted whether the question in section 20(5) of the 2003 Act could have been answered in the affirmative. However, since I do not require to deal with the issues arising from said section 20(5), I do not propose to add to what I have already noted on this,

Devolution Minutes Nos 3 and 4

Validity of European Arrest warrants

Whether warrants Nos 1 and 3 issued by "Competent Judicial Authority"

Submissions on behalf of Mrs Fasola

It was therefore maintained that in conducting these proceedings upon that basis, the Lord Advocate had acted and was continuing to act in a manner which was incompatible with Community Law and therefore ultra vires in terms of section 57 (2) of the Scotland Act 1998.

In presenting his submissions in support of these Minutes, Mr Bovey referred to the said Framework Decision.

He noted that Article 1 (of the Framework Decision) described the European arrest warrant as a judicial decision, which he said was important since it set out the definition of what a European arrest warrant was.

He noted that Article 5, in providing that the execution of the European arrest warrant by the executing judicial authority might, by the law of the executing Member State, be subject to specified conditions, included the condition that where the European arrest warrant had been issued for the purposes of executing a sentence imposed by a decision rendered in absentia, and [my emphasis] if the person concerned had not been summoned in person or otherwise informed of the date and place of the hearing which had led to the decision rendered in absentia, then surrender might be subject to the condition that the issuing judicial authority gave an assurance deemed adequate to guarantee that the person concerned would have an opportunity to apply for a retrial of the case and to be present at the judgment.

Mr Bovey submitted that that applied in these present cases.

Thus, he submitted that it was necessary to look at the assurances which were to be given by the issuing judicial authority. In this connection, he submitted that the person who had issued these warrants and had given these assurances - namely Dr Laura Gay - had not been competent to do so.

In relation to Article 6 (of the Framework Decision), in these cases, Mr Bovey submitted that Italy was the issuing judicial authority and that this court was the executing judicial authority.

Mr Bovey accepted that the point he was making had already been taken in connection with the Netherlands, and had been rejected by the High Court of Justiciary in the case of

Goatley v HM Advocate 2006 SLT 14 and 2006 SCCR 463.

He also accepted that he required to work within the constraints which were imposed by that decision ; but he submitted that these present cases were different and that this was based upon the opinion of Professor Vestuti [defence production No 12].

The first was that the issuer of the warrant had been described as a judicial authority in the Dutch notification to the Council of the European Union.

The second was that the approach of the Court was to avoid looking at the words used in the translation with Scottish eyes.

And the third was that the supplementary information before that Court showed that the official in the Netherlands could properly be described as part of the judiciary.

Mr Bovey submitted that none of these circumstances were applicable in the present cases.

In regard to the first of these three points, in the case of warrant No 3, there was no supplementary material being offered to the court to clarify Dr Gay's role; and in the case of warrant No 1, he referred to the way in which the Italian authorities had been described.

Mr Bovey referred to Item No 1.3 of the Joint Bundle of Authorities, which referred to the Declaration which had been made by Italy concerning the said Article 6 and the determination of the competent authorities, and noted that at the stage at which a custodial sentence was being enforced, the authority competent to issue a European arrest warrant was the public prosecutor's office for the judge supervising enforcement.

In regard to that, Mr Bovey commented, firstly, that in contrast to the Dutch system, the authority was not described as a judicial authority and so, unlike the Dutch document, the Italian document was bad on the face of it.

Secondly, he commented that the reference was not simply to any public prosecutor, but the public prosecutor's office for the judge supervising enforcement.

He submitted that, if one turned to warrant Nos 1 and 3, there was seen to be a singular mismatch.

As regards warrant No 1, on the fifth and sixth pages, at paragraph (i), detail was given of "The judicial authority which issued the warrant".

Having considered all of the detail there provided, Mr Bovey said that what one did not know was if this was the public prosecutor for the judge supervising enforcement.

He made the same point in connection with the same paragraph as regards warrant No 3.

He noted that Dr Gay claimed to be attached to the Court of Milan, whereas in fact she would require to be attached to the judge.

In regard to the second and third of his three points, Mr Bovey submitted that in the case of Goatley where no expert evidence had been presented, it could be understood why the High Court could say what it had ; but he submitted that it was different in these cases in the light of the quite impressive piece of work from Professot Vestuti [defence production No 12]. Mr Bovey considered in detail the whole of that Opinion, and noted in particular from the answers to questions 10 and 11 that the prosecutor in Italy did have a role in enforcing the decrees of the court, but that that was not a judicial function.

He submitted that it was the court looking to the prosecutor to implement the decision of the court.

Mr Bovey therefore submitted that the Italian prosecutor was not in a position to give the undertaking which was required by the Framework Decision and section 20 of the 2003 Act.

Accordingly, Mr Bovey submitted that this Opinion (dated January 2007) of Professor Vestuti was a clear indication that, under Italian law, someone such as Dr Gay was not a judicial authority. Thus, since there was here material "with Italian eyes" rather than "with Scottish eyes", Mr Bovey submitted that the decision in Goatley was inapplicable in these present cases He therefore submitted that these warrants had not been issued by a judicial authority either in terms of the 2003 Act or as they would need to be construed for the purposes of the Framework Decision.

He therefore invited the court to hold that there were not European arrest warrants before the court, to uphold the two Devolution Minutes and to discharge Mrs Fasola.

Response on behalf of the Lord Advocate

He noted that on the second page at paragraph (b), the decision on which the warrant was based was said to be a judgment of conviction, an Enforceable judgment issued by the Court of Milan on 11^th May 2001, final on 17 October 2002, and provided a reference number of the Register General of the Court of Milan, with an Enforcement number, and issued by the Office of the Public Prosecutor attached to the Court of Milan on 26 November 2002.

This was followed at paragraph (c) by details of the sentence to be enforced, which was one of four years imprisonment.

Thereafter, on page 14, at paragraph (i), details were provided of "the judicial authority which issued the warrant". This showed that the warrant had been issued by the same office of the public prosecutor attached to the Court of Milan, that its representative was Dr Gay, that she held the post of Deputy Prosecutor, the file reference number which was of the Office of the Public Prosecutor attached to the Court of Milan, with an address provided for that office.

From all of that information, Mr Dickson submitted that it was clear that Dr Gay did fall within the description of Articles 28 and 29 of the said Italian law, which provided that she was, in terms of Article 29.1, the competent judicial authority for the issue of European arrest warrants.

He further submitted that there was therefore no distinction to be drawn between the decision of the High Court of Justiciary in the case of Goatley and the information which was before this Court in these present cases.

Here again, Mr Dickson submitted that on grounds of mutual recognition, it was appropriate for this court to execute what clearly was a lawful, judicial decision of the courts of another Member State.

As had been said in the last sentence of paragraph [25] of the Opinion of the High Court of Justiciary in Goatley, no authority had been cited to say that this court should look behind the authority of the appointment of the issuer of the warrant.

Mr Dickson said that, on one view, this court was being asked to do just that - that is to consider whether Dr Gay was a competent judicial authority for this purpose.

He submitted that, standing the Goatley decision, if this court required to answer that point, there was material here to allow this court to answer that question in the affirmative.

Finally on this aspect, Mr Dickson noted that at the end of warrant No 3 (on page 15), the central authority responsible for the transmission and administrative reception of European arrest warrants was stated to be the Ministry of Justice.

And on the second page of Item number 1.4 of the Joint Bundle of Authorities (which was the notification by Italy to the Council of The European Union concerning the Implementation of the Framework Decision), under the heading of "Article 7 (central authority)", it was noted in the first sentence there that the central authority in Italy was the Minister for Justice.

Mr Dickson added that what was said in next two sentences there was reflected in the European arrest warrants and, accordingly, he said that there was no distinction to be drawn between this present case and the reasoning of the Court in the case of Goatley.

Further submissions on behalf of Mrs Fasola

He noted, however, that Article 28.1 contained sub-paragraphs (a), (b) and (c). Mr Dickson had said that subparagraph (a) did not apply in this case; but he had not heard Mr Dickson identify whether subparagraph (b) or (c) applied here, which reduced the persuasiveness of this point.

In addition, he noted that subparagraph (b) referred to article 665 and 656 of the code of criminal procedure and he submitted that, from looking at the this legislation, the court could not tell if the public prosecutor did fall within subparagraph (b).

Similarly, sub-paragraph (c) referred to article 658 of the said code; and again, he submitted that this court did not have that document and therefore could not sensibly interpret this.

Mr Bovey accordingly returned to his earlier submissions that there really was no adequate information to show that what Professor Vestuti said had required to be done under Italian law, had been done.

My decision

Devolution Minutes Nos 3 and 4 - "Competent Judicial Authority"

The basic issue had already been debated before me and I had reached my decision that the warrants Nos 1 and 3 were valid European Arrest warrants (paragraphs 46 and 47 above).

Although Mr Bovey sought to distinguish the decision of the High Court of Justiciary in the case of Goatley, on the basis of different circumstances here and the effect of the Opinion of Professor Vestuti, I agreed with Mr Dickson that there was in fact no such distinction to be drawn.

In essence, I had earlier concluded that the decision as the judicial authority competent to issue a European Arrest warrant was a matter for, in this case, Italy to decide. And Italy had decided under its domestic law that, at the stage of enforcement of a custodial sentence, the competent authority was the Public Prosecutor's Office for the judge supervising enforcement.

In addition, however, I can now add my conclusion that Mrs Fasola had been properly informed of and had been aware of the court dates in question, but had chosen to absent herself - although always legally represented. I consider that that is a significant factor in the application of the terms of Article 5.1 of the said Framework Decision.

That being so, the issue of assurances to which Mr Bovey had referred concerning re-trial, does not arise.

In the situation, I have upheld the validity of the European Arrest warrants Nos 1 and 3 and have refused to sustain the Devolution Minutes Nos 3 and 4.

Devolution Minutes Nos 1 and 2 and Section 21 of the 2003 Act - Human Rights

Whether 2003 Act incompatible with rights under Article 8 of European Convention on Human Rights

Submissions on behalf of Mrs Fasola

In addition, the same arguments were presented in terms of section 21 of the 2003 Act to the effect that Mrs Fasola's extradition under that Act would be incompatible with her Convention rights within the meaning of the Human Right Act 1998.

In his submissions in support of these Minutes, Mr Bovey read their terms in full but stated that his submissions would be restricted to arguments that the failure of the 2003 Act to provide for a ground of refusal for execution of a Part 1 warrant on the basis contained in Article 4(6) of the Framework Decision was incompatible with Mrs Fasola's Convention rights in terms of Article 8 of the European Convention. He would not now make submissions in terms of Article 14.

Mr Bovey acknowledged the provisions of the Convention on the Transfer of Sentenced Persons, made at Strasbourg on 21 March 1983, for a person serving a sentence of imprisonment in Italy to apply for transfer to the United Kingdom to serve the rest of the sentence there; but he submitted that there was no guarantee that the request would be granted and, in any event, there would be delay.

He accordingly submitted that, since the return of Mrs Fasola to Italy was more than was required to achieve the policy objective, it was accordingly incompatible with her Article 8 rights.

Mr Bovey made reference to the Framework Decision (said item 2 of the Joint Bundle) and, in particular, to Article 4.6 thereof. He noted that, in terms thereof, the executing judicial authority (which he said in this case was this court) might refuse to execute the European arrest warrant if it had been issued for the purposes of the execution of a custodial sentence where the requested person was staying in, or was a national or a resident of the executing Member State and that State undertook to execute the sentence in accordance with its domestic law. He said that it was not contested that Mrs Fasola was staying in, and was a national and a resident of the United Kingdom, and that she was a United Kingdom citizen by birth.

He submitted that this seemed to be directly applicable since the United Kingdom was not offering to enforce the custodial sentences in question in accordance with United Kingdom domestic law - and that accordingly this option was not made available to this court.

Mr Bovey's point, however, was that the consequence of this failure to bring this into United Kingdom legislation was that an option which this court ought to have was simply closed to it.

Accordingly, he submitted, no matter how strong might be the family and home life arguments, this court could not give effect to them except by refusing to return Mrs Fasola, the effect of which would be that she would not serve these sentences at all.

Mr Bovey conceded that that would not be satisfactory from the point of view of the administration of justice; but it was the position which was forced upon Mr Bovey and upon this court by the failure of the United Kingdom legislation to allow for the possibility of serving these sentences in the United Kingdom.

He submitted that, in paragraph 51, the High Court had applied the test set out by Laws L.J. in the case of

R (Bermingham and Others) v The Director of the Serious Fraud Office and Another, [2006] EWHC 200 (Admin) (item 15 of the Joint Bundle of Authorities),

namely that a wholly exceptional case would have to be shown to justify a finding that an extradition would on particular facts be disproportionate to its legitimate aim.

Mr Bovey submitted that that view had now been overtaken by the recent decision by the House of Lords in the case of

Huang (FC) v Secretary of State for the Home Department, unreported but decided on 21 March 2007 (item 35 of the Joint Bundle of Authorities).

Mr Bovey noted that this had been an immigration case, involving section 65 of the Immigration and Asylum Act 1999.

In relation to paragraph 14 of the Judgment (which Mr Bovey read), he submitted that Mrs Fasola was in a slightly better position on both counts. While Mrs Fasola did have family in this country, she relied substantially on the private life aspect, that she was a United Kingdom citizen and resident, together with her business and employment here.

He said that there was no question of any presumption against her continued residence here in the United Kingdom.

He noted that section 21 of the 2003 Act required this court to decide whether Mrs Fasola's extradition would be compatible with her Convention rights. He submitted that, unlike immigration matters, this was not a safety net. In extradition, it was one of the rules which this court required to apply and therefore had the same status as the other rules and sections which this court required to consider and apply. He added that this was a requirement and not a matter of discretion for this court. He therefore submitted that, while Mrs Fasola's case was not entirely compatible with an immigrant and the right to remain, her case was even stronger.

In this connection, Mr Bovey referred to the submissions which he had already made in connection with Mrs Fasola's family and personal status (set out at paragraph 63 above).

In supplement of these, Mr Bovey made reference to the Financial Statements for the year ended 31 March 2006 for the company Maresca Limited [defence production No 15] which he said, on page 3, demonstrated that the current turnover continued to increase as, however, also did the cost of sales. He added that the margins remained very narrow.

Mr Bovey also referred to an item on page 8 of the 7 March 2007 edition of "The Press and Journal" [defence production No 17]. An article there indicating that the extradition of Mrs Fasola would close her firm, reported that an Aberdeen fish processor, Mr Andrew Charles, had said that the lack of Mrs Fasola's availability in the business would have an adverse effect upon the business and the employment which it provided in that community. Mr Bovey submitted that the article and what had been said by Mr Charles provided some support for his earlier submissions.

Accordingly, Mr Bovey invited the court to hold that the extradition of Mrs Fasola would be disproportionate to the aims being pursued and to uphold the devolution minute in respect of the Article 8 point.

Further, he invited the court to hold upon the same basis that Mrs Fasola's extradition would be incompatible with her Convention rights; and to discharge her in terms of. section 21(2) of the 2003 Act.

Response on behalf of the Lord Advocate

Mr Dickson said that much of what he wanted to say had already been dealt with in the Judgment of the Sheriff in the case of Goatley.

As regards the case of Huang, he submitted that that Judgment was simply amplification of what had been said previously in a number of cases, and which Mr Dickson himself had submitted before the Sheriff in the case of Goatley, and which had been recognised by the High Court in the cases of Goatley and La Torre.

Mr Dickson referred

to paragraph 83 of the decision of the Sheriff in the case of Goatley (item 30 of the Joint Bundle of Authorities),

to paragraph 51 of the Opinion of the High Court in the case of Goatley,

and to paragraph 97 of the Opinion of the High Court in the case of La Torre.

He submitted that the clear message from these paragraphs was that there required to be a balance between the public interest objective which was desired to be met (which gave rise to the complaint that the Article 8 right of the individual was breached), and the private interests of the individual.

Mr Dickson submitted that the Huang judgment did not say anything new.

Mr Dickson accepted that Article 4.6 of the Framework Decision had not been brought in by the 2003 Act, but he stressed that that Article was an optional ground and it had therefore been for each Member State to decide if that Article was to form part of their domestic law.

He reminded the court that the United Kingdom was a party to the Convention (said Item 20) on the Transfer of Sentenced Persons, which had been made at Strasbourg on 21 March 1983, and that Italy was also.

He submitted that this Convention provided, in Articles 2 and 3, a mechanism for someone who would be in Mrs Fasola's position if extradited, to make application to both Italy and the United Kingdom for repatriation to serve her sentence in the United Kingdom.

Article 2 set out the general principles involved, while Article 3 set out the conditions for transfer. Mr Dickson submitted that, on the face of it, Mrs Fasola would fall within the terms of this Convention

Mr Dickson further noted that (as set out in Item 23 of the Joint Bundle) the United Kingdom had ratified this Convention on 30 April 1985 and that it had entered into force as regards the United Kingdom on 1 August 1985; while Italy had ratified this Convention on 30 June 1989 and that it had entered into force as regards Italy on 1 October 1989.

Mr Dickson therefore submitted that the mechanism as envisaged had existed since 1 October 1989. He submitted that that was more than sufficient to deal with the point.

and the Judgment of then-Lady Justice Hale.

Mr Dickson read in full the terms of paragraph 40 and also referred particularly to what had been said by Lady Justice Hale (who had also been one of the Court in the case of Huang) in the last sentence of paragraph 41, namely:

"It is also accepted that the right to respect for private and family life in Article 8 of the European Convention on Human Rights is engaged in this decision, and so the Secretary of State has to strike a fair balance between the competing interests of that right and the public interest to which I have already referred."

There, Mr Dickson stressed, was the emphasis upon the need for a fair balance to be struck.

He noted that, whereas Lady Justice Hale was referring to the Secretary of State in what was a Part 2 case, the decision was for this Court in this case since it was under Part 1 of the 2003 Act. The need for the fair balance had been emphasised in paragraphs 83 of the Judgment of the Sheriff in the case of Goatley, had been echoed in paragraph 51 of the Judgment of the High Court in the appeal in the same case, and had also underpinned what had been said in paragraph 97 of the Judgment of the High Court in the case of La Torre.

Mr Dickson submitted that the Court in the case of La Torre had really been reflecting what had been said as regards the wholly exceptional circumstances. The High Court had stressed Lord Bingham's recognition that in extradition cases the extraditing state would usually have strong grounds for justifying extradition on the ground of the desirability of honouring extradition treaties.

On the question of the "formidable" nature of the task of demonstrating that the operation of salutary international agreements should be inhibited on account of the limited interference which their operation would involve with the individual's Article 8 rights, Mr Dickson said that the High Court was saying that the interference in the case of La Torre was limited and that Mr La Torre would have a formidable task in persuading the court that that limited interference would be a bar to his extradition.

Mr Dickson submitted that, not only was that what had been said by Lord Justice Laws in the case of Bermingham, but, under reference to what the High Court had said at paragraph 98 in the Judgment in case of La Torre, that the test was the same in both Part 1 and Part 2 cases.

The court required, as had been said at paragraph 40 in the case of Warren, to strike the balance of fairness as the Secretary of State would have done in a Part 2 request.

Finally on this element, Mr Dickson submitted that the three tests in De Freitas were met, but that a part of all of that was for the court to strike a balance - which is what he submitted the Court was saying in the case of Huang.

In considering the three stage test enunciated in the De Freitas case, Mr Dickson submitted that firstly, as regards the legislative objective, Mrs Fasola had been sentenced to a substantial period of imprisonment and the legislative objective was to return her to the State of Italy to serve that sentence.

Secondly, the rational connection between the legislative objective and the measures designed to meet it was, he submitted, the return to serve the sentence which had been imposed.

Thirdly, he submitted that the means used to impair the Article 8 right of freedom was no more than was necessary to accomplish the objective.

If the United Kingdom had incorporated Article 4.6 of the Framework Decision, the point could be more easily answered, as Mrs Fasola would not be removed to Italy.

Mr Dickson added that, if that was the approach of Mr Bovey, while Mr Dickson accepted that if Mrs Fasola's extradition was ordered, she would be returned to Italy, once she was in Italy, she would be able to invoke the Convention on the Transfer of Sentenced Persons in order to seek to serve the sentence in Scotland.

Mr Dickson added that, using the words of the High Court in the case of La Torre, where the Court recognised that the return would make a limited interference with the Article 8 right, the mechanism of the Transfer Convention, if involved, would limit that interference even more.

Finally, as he had submitted in the case of Goatley, Mr Dickson noted that any extradition would have an impact upon an individual and their family, but he submitted that what the court required to do was to look at that balance between the public and private interest.

He submitted that this 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 submitted that these private interests of Mrs Fasola had to be balanced against the public interest of serving sentences lawfully imposed upon her in another Member State of the European Union.

"In deciding how to implement the Framework Decision, it cannot be doubted that Parliament had a wide margin of appreciation. What no doubt required to be balanced (in the context inevitably of a number of practical considerations) was the public interest, such as referred to in Wright v Scottish Ministers, and the Article 8 rights of individuals in a situation similar to the appellant. We are quite unable to say that the form of implementation adopted - without provision for a relevant ground of refusal, which was entirely open in terms of the Framework Decision itself - was not within that margin of appreciation, or that its effect would be disproportionate so far as the appellant was concerned."

Once again, Mr Dickson noted that the need had been emphasised to strike a balance between the two interests. He submitted that what it came to was that Mrs Fasola had been convicted of serious offences (counterfeiting and armed robbery), she had been sentenced to substantial periods of imprisonment, and she clearly had a business and a family in Scotland.

The public interest was, however, a strong one, not only in meeting international obligations but in ensuring that justice was seen to be done. Mr Dickson submitted that these factors outweighed the private interests which, as they had been in the case of La Torre, he submitted would be relatively limited.

According to Mrs Fasola's Affidavit [Defence production number 7], she had lived in Italy for 25 years from 1974 until 1999.

She had married in Italy, her daughter had been born in Italy, and she had lived there for 15 years after her husband had died in 1984.

As he had submitted earlier, Mr Dickson contended that she had been fully aware of the proceedings in the Italian courts and was unlawfully at large. Unlike Mr Goatley, Mrs Fasola had a substantial connection with Italy, having lived a life there for so long and returning only in 1999 in the face and knowledge of proceedings against her.

On the assumption that the Court accepted Mr Dickson's earlier submissions on the issue of fleeing from justice, then he further submitted that, in weighing the two interests in the balance, the public interest element was heightened by the flight from justice of someone who had lived in Italy for such a long time, and that that over-rode the private interests of Mrs Fasola.

He said that latterly, in December 2001, some two years after her return to Scotland, she was being involved in her business and in establishing a new life in Scotland. Mr Dickson submitted that she was in a very different position factually from Mr Goatley in whose case the court had held the interference was legitimate.

He added that Mrs Fasola was 56 years of age and had spent almost half of her adult life in Italy. Her fleeing from justice and removing herself from Italy after a spell of 25 years there placed her in a worse position and made her task even more formidable to persuade the court in terms of Article 8.

Mr Dickson submitted that much of this was encapsulated in paragraph 51 of the Opinion of the High Court in the case of Goatley and he said that most of what was said applied in the present case.

He said that this Court did not know the facts in the case of Huang other than what was contained in paragraph 3 of the Judgment. He said that it would appear that she had been the only one to be sent possibly to China; but Mrs Fasola's case was far removed from that situation, given her flight to Scotland.

Response on behalf of Mrs Fasola

He also accepted that it was legitimate for Mr Dickson to refer to the Transfer Convention and for this court to take that into account in striking a fair balance. However, when the Court did that, he invited the court to keep in mind that there was a need for agreement in respect of that not only from Mrs Fasola, but also from Italy and the United Kingdom.

He added that there were no rules or judicial control of the kind which this court would provide if this had been written into the 2003 Act. He submitted that these applications could take even years to be completed and so, in weighing up the interference, Mr Bovey invited the court to keep in mind that, in place of a statutory provision with an appeal mechanism, there was a hope that the United Kingdom and the Italian authorities would agree - but that there was nothing to be done if they did not so agree.

My decision

Devolution Minutes Nos 1 and 2 - and Section 21 of the 2003 Act - Human Rights

Whether 2003 Act incompatible with rights under Article 8 of European Convention on Human Rights

In his submissions in support of the Article 8 Human Rights point (which was raised both in terms of section 21 of the 2003 Act and in the Devolution Minutes Nos 1 and 2, Mr Bovey had asserted that extraditing Mrs Fasola on these warrants would represent a disproportionate interference with her family life.

He had recognised that the decision of the High Court of Justiciary in the case of Goatley stood in the way the of that submission. However, he noted that the High Court had applied the test that a wholly exceptional case would be needed to justify such a result; whereas, under reference to the House of Lords Decision in the conjoined appeals in the cases of

Huang v Secretary of State for the Home Department and

Kashmiri v Secretary of State for the Home Department,

hHe submitted that the exceptional circumstances argument was no longer good law.

He further submitted that the approach of the High Court in the case of Goatley should not be followed since that approach had now been recognised as being erroneous.

I consider that Mr Dickson was correct when he submitted that the decision by the House of Lords in the Huang case did not have the effect nor did it produce the result contended for by Mr Bovey.

I consider that the Judgment in that case was simply amplification of what had been said previously in the various cases to which Mr Dickson had referred.

For the sake of brevity, I gratefully accept and am content to import into this decision what was said by Lord Justice Laws in the case of

R (Bermingham) and Others v The Director of the Serious Fraud Office and Another (already cited)

generally, but specifically at paragraphs 112, 115 to 118 inclusive, 127, 128 and 130.

I would also refer specifically to what was said in the Opinion of the High Court of Justiciary

at paragraph 51 in the case of Goatley and

at paragraph 97 in the case of La Torre (both already cited).

A full consideration of all of the foregoing leads, in my view, to the conclusion that the case of Huang did not overrule or overtake the clear approach which is required in extradition cases in dealing with the question of proportionality as regards the Article 8 Human Rights issue.

That issue is whether the interference with family life is proportionate to the legitimate aim of the proposed extradition and this is guided and instructed not only by the decision of -

The High Court of Justiciary in the cases of La Torre and Goatley,

but also by what was said, firstly,

in the case of Razgar (already cited - and item 21 of the Joint Bundle of Authorities).

(1) in particular by Baroness Hale of Richmond at paragraph 43:

"This case, however, is concerned with Article 8. In that context, Lord Bingham also referred to a third or hybrid category. Here

'The removal of a person from country A to country B may both violate his right to respect for his private and family life in country A and also violate the same right by depriving him of family life or impeding his enjoyment of private life in country B.' (para 18). On analysis, however, such cases remain domestic cases. There is no threshold test of enormity or humanitarian affront. But the right to respect for private family life, home and correspondence,which is protected by Article 8, is a qualified right which may be interfered with if this is necessary in order to pursue a legitimate aim. What may happen in the foreign country is therefore relevant to the proportionality of the proposed expulsion.";

(2) and also in particular what was said by Lord Bingham, firstly at paragraph 17:

"In considering whether a challenge to the Secretary of State's decision not to remove a person must clearly fail, the reviewing court must, as it seems to me, consider how an appeal would be likely to fair before an adjudicator. ......

In a case where removal is resisted in reliance on Article 8, these questions are likely to be :

..........

(5) If so, is such interference [so as to engage Article 8] proportionate to the

legitimate public aim sought to be achieved ?"

and at paragraph 20:

"The answering of question (5), where that question is reached, must always involve the striking of a fair balance between the rights of the individual and the interests of the community which is inherent in the whole of the Convention."

Secondly, the issue is also guided and instructed what was said by the Commission at Strasbourg, in the decision

Launder v United Kingdom (1997) 25 EHRR CD 67.

In that case, the European Commission on Human Rights had occasion to consider the relationship between the United Kingdom's arrangements for extradition and the Article 8 rights of a subject. In its decision, the Commission stated (at page 84)

I was therefore satisfied that there was no disproportionate interference with Mrs Fasola's Article 8 right.

I have therefore answered the question in section 21(3) of the 2003 Act in the affirmative and have refused to sustain the Devolution Minutes Nos 1 and 2.

Conclusion

I accordingly so order.