Scottish Sheriff Court Decisions

SHERIFFDOM OF LOTHIAN AND BORDERS AT EDINBUGH

 

 

JUDGMENT

By

FRANK RICHARD CROWE,

Sheriff of Lothian and Borders at Edinburgh

 

Re

 

EXTRADITION REQUEST

 

By

THE REPUBLIC OF GERMANY

 

In respect of

 

KEITH JOSEPH ALLEN (d.o.b.17:4:69)

Whose domicile of citation has been specified as

C/o McDougall, Blair Hoyle, Port of Monteith,

Nr. Stirling.

For the Lord Advocate: Ms L. Thomson, Crown Office International Co-operation

Unit

For the Accused: Mr. P. Dunne, Messrs. Belmonte & Co., Solicitors, Edinburgh

 

EDINBURGH, 13 March 2009

 

The Sheriff, having resumed consideration, determines that the extradition of the accused is not barred by the passage of time: answers in the negative the question posed by section 11(1) (c) and 11(5) of the Extradition Act 2003, decides the accused's extradition would be compatible with the Convention rights within the meaning of the Human Rights Act 1998, answers the question posed by section 21(3) of the Act of 2003 in the affirmative and orders the extradition of the accused to the Republic of Germany.

 

NOTE

 

Introduction

 

 

[1] In this case the Republic of Germany seeks the extradition of the accused under the provisions of Part I of the Extradition Act 2003 ("the 2003 Act"). Germany is a "Category 1 territory" for the purposes of Part I of the 2003 Act. The request follows the issue on 14^th January 2005 of a European Arrest Warrant ("EAW") by the Director of Public Prosecutions, Berlin, Germany in respect of an alleged attempted manslaughter and grievous bodily injury contrary to Articles 212, 224, 22, 23 and 52 of theGerman penal code said to have occurred on 27^th October 2004 at Helmholzplatz, 10437 Berlin, Germany.

 

[2] The accused appeared before me for the first time on 5^th January 2009 and declined to consent to extradition. After various callings of the case an extradition hearing took place before me on 3^rd March 2009. At the outset it was conceded on behalf of the accused that the offence for which extradition was sought was an "extradition offence". The EAW identified the offence as being in the category of "murder, grievous bodily injury" which appears as No. 14 in the European Framework list of offences in Schedule 2 to the 2003 Act. Accordingly, I answered in the affirmative the question posed in section 10(2) of the 2003 Act and moved on to a consideration of section 11.

 

[3] Mr. Dunne submitted in terms of sections 11(1)( c) and 14 of the 2003 Act that due to the passage of time from the date of the alleged incident giving rise to the extradition request and the accused's arrest on 4^th January 2009 it would be unjust and oppressive to extradite him.

The agreed facts

 

[4] The parties were agreed this was the sole issue between them at the hearing and produced a joint minute that the following facts were agreed and should be admitted in evidence:-

"1. That an EAW for the arrest of the accused was issued by the DPP, Berlin, Germany on 14 January 2005. Said EAW relates to an offence allegedly committed by the accused on 27 October 2004 and was granted following the issue of a domestic warrant for the arrest of the accused by the Tiergarten Local Court on 27 November 2004. It was stated in the EAW that the accused uses the alias Allen Joseph Hanell McKeith.

2. That said EAW was translated into English on 11 August 2005 and was forwarded to the National Criminal Intelligence Service ("NCIS") in London where it was received on 30 August 2005. The said NCIS was, at that time, designated for the purposes of Part I of the 2003 Act by the Extradition Act 2003 (Part I Designated Authorities) Order 2003.

3. That the said NCIS received the German version of the EAW on 4 October 2005. The said EAW was certified by the said NCIS in terms of section 2 of the 2003 Act and on that date passed to the Metropolitan Police Extradition Unit ("the Met") that same day. Enquiries carried out by the Mat at that time suggested that the accused was in London. Further enquiries carried out by the Met in February 2006 suggested that he was in the Peckham area of London.

4. On 4 January 2009, at the port at Stranraer tha accused attempted to board a ferry to Ireland using an expired UK passport. A check of the Police National Computer confirmed the existence of the said EAW and he was arrested on that warrant.

5. That the file held by the Met in relation to said EAW has been misplaced and the Met cannot advise what action, if any, was taken to trace the said accused between February 2006 and 4 January 2009.

6. That the file held by the Met was, at some point after February 2006, sent to their General Registry. The Met have advised that a file is only sent to their General Registry when routine checks have failed to disclose the whereabouts of a wanted person, and there are no other leads to follow. Routine checks include seeking to ascertain a person's whereabouts by searching those local and national databases which are accessible by the police; and making checks at any identified address and, if appropriate, with neighbours. That the file relating to the said EAW was sent to the General Registry suggests that the Met were unsuccessful in identifying any address for the accused and that they had no further leads to follow."

 

The accused's evidence

 

[5] The accused was the only witness to give evidence at the hearing. He gave his home address as Apartment 1 Duogue, Clonown Road, Athlone, Co. West Meath, Ireland. At present he is living with his sister, Jill McDougall. He confirmed his date of birth as 17^th April 1969. He said that his correct name was Keith Joseph Allen and was not known as Allen Joseph Hanell McKeith. He could not understand how the German authorities had this name other than they referred to him as Allen, Keith. He did not know where the name Hanell had come from. He said that he had been born in Glasgow and as a result had a United Kingdom passport but had been living in Ireland since the end of 2004. He accepted that he was the person sought by the German authorities but denied any knowledge of the charge. He said that the German Police had taken his photograph in 2000 and that he had held an identity card when living in Germany in the name Keith Joseph Allen.

[6] The accused said that he moved to Germany in 1996 and had lived there continuously until he left Germany on 12 or 15 December 2004 and travelled to London. He had then gone to Ireland where his mother and son lived and had been staying there since then. The accused said that he had worked for a spell in Ireland for the army at their barracks and was currently studying at college with a view to going to University in the future. He had not been in hiding or attempting to avoid the authorities during the time warrants were in force for his arrest.

 

[7] The accused said that his mother had terminal cancer and he had a son Jamie from an earlier relationship who had been born on 19^th January 1993. His son was disabled having paralysis on his left side which affected his walking. He was in mainstream schooling and the accused enjoyed weekend contact with his son. Indeed he had been on holiday at Christmas with his son visiting his sister in Scotland and had been arrested when attempting to board the ferry back to Ireland at Stranraer on 4 January 2009. Special arrangements had to be made to return his son home to Ireland to his mother.

 

[8] The accused explained that while living in Germany he had been unemployed and had sold the German equivalent of the "Big Issue". He had been in a relationship with a German woman from 1996 until the summer of 2004. Shortly after this relationship ended he met a woman called Silka Schroeder and lived with her at her home in the Kreuzberg area of Berlin. He could not know recall the address at which they had lived but it was near the train station and not far from a police station. The accused had left Germany in December 2004 shortly after this relationship ended. He had lost touch with Silka but believed that she now had a child and thought he might be the father.

 

[9] The accused said that he knew where Helmholzplatz was in Berlin. It was in the east side of the city and some distance where he had lived in Kreuzberg. The accused said that to travel from where he had stayed to the Helmholzplatz would involve changing trains or perhaps travelling part of the way there by train and partly by tram. The accused said that he knew trams in Berlin had CCTV on board. He said that he visited the park in Helmholzplatz from time to time and indeed had met Silka there. The accused denied having anything to do with the alleged offence. He did not know anyone called Fulford to his knowledge (it was not clear whether the victim of the alleged assault was male or female). As far as the accused was concerned he could not recall being in Helmholzplatz on the date of the alleged offence 27^th October 2004. All he could say was that he would have been in the company of Silka probably in the Kreuzberg area of Berlin. The accused said that he did not have a job all the time he had lived in Germany and consequently had never worn safety shoes as described in the charge when he lived in Germany. He had worn such footwear however, subsequently when working for the Army in Ireland on a building site.

 

[10] The accused claimed to have no knowledge of the incident referred to in the charge. He had never been interviewed by the German Police about it and had no knowledge the authorities were looking for him. He had not left Germany for that reason. He had simply broken up with his girlfriend and decided to go to Ireland to be with his family. He had not had his own home in Germany and had used an accommodation address for mail C/o a Patricia Bauer in Friedrichshain, Berlin.

 

[11] The accused had a few friends in Berlin, an Englishman called Michael, James Jordan who came from Belfast, James Meanie, from Ireland and a Scotsman called Robert who was now dead. He had lost contact with the others. He had tried to phone Michael who had moved to England with his German wife but the telephone numbers he had from them no longer worked. The accused was still in contact with Andrew Farmer who now lived in Scotland and had been in Berlin at the same time and knew these people also. Unfortunately he did not have current addresses or contact numbers for any of those people referred to above. He had frequented the Helmholzplatz occasionally with friends and had also met friends at an Irish public house called the "Oscar Wilde" which is situated in Friedrichshain in Berlin near Alexanderplatz.

 

[12] After a period working in Ireland the accused had become unemployed and had been living on a disability allowance on account of contracting Hepatitis B. Last September however he had joined a Government scheme which involved studying for three years with a view to going to University to obtain a degree in sound engineering.

 

Submission for the Lord Advocate

 

[13] Ms Thomson submitted that the accused had not established that it would be unjust and oppressive to extradite him by reason of the passage of time.

I was referred to Campbell v. HM Advocate 2008 JC 265 at paragraph [34]. Lord Nimmo Smith quoted the definition of "unjust and oppressive" given in the speech of Lord Diplock in Kakis v. Government of the Republic of Cyprus [1978] 1 WLR 779 at pages 782-783.

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

As respects delay which is not brought about by the acts of the accused himself, however, the question of where responsibility lies for the delay is not generally relevant. What matters is not so much the cause of such delay as its effect; or, rather, the effects of those events which would not have happened before the trial of the accused if it had taken place with ordinary promptitude. So where the application for discharge under section 8(3) is based upon the 'passage of time' under paragraph (b) and not on the 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."

 

 

[14] Ms Thomson conceded that it was not suggested the accused had absconded from Germany. I was referred to Lord Nimmo Smith's opinion in Campbell at paragraph [37] where his Lordship refers to the case of Austins v. The Government of Spain [2004] EWHC 2693 (Admin). In that case the accused had been convicted and sentenced in Spain but had absconded and returned to the United Kingdom when on prison leave in 1995 and had not been arrested until 2004. In delivering the court's judgment Laws LJ said at paragraph 13:-

"This is not an easy case. In my judgment the Spanish authorities could and should have proceeded with very much more expedition than they did. They knew from an early stage where the applicant was living in the United Kingdom. I find it frankly bizarre that years could go by in which the process ground to a halt simply for want of formal proof that the applicant was unlawfully at large. But it is important to remember that section 11(3)(b) [of the 2003 Act] was not enacted as a means of imposing discipline on states making dilatory requests for extradition. We are concerned, and only concerned, with the question whether by force of the passage of time it would be oppressive to return the applicant to Spain."

 

[15] Ms. Thomson said that equally it was clear that the delay was not the fault of the German authorities. The incident in question was said to have occurred on 27 October 2004. A warrant seeking the arrest of the accused had been issued by the Tiergarten local court on 24 November 2004 and the DPP in Berlin had signed the EAW on 14 January 2005 a few weeks after the accused had left Germany. The EAW was translated into English on 11 August 2005 and sent to London where it was received by the UK authorities on 30 August 2005 and the German version was sent on 4 October 2005.

 

[16] It was suggested that this was a reasonable chronology and was in keeping with the German authorities identifying the accused, ascertaining he had left the country, discovering his destination was London and knowing the accused was the holder of a UK passport. They were aware the accused's place of birth was Glasgow and were not to know the accused had travelled onwards to Ireland.

 

[17] While it was unfortunate the Metropolitan Police had mislaid their copy of the EAW, the information to hand showed that enquiries had been made and no leads had been found. This was not surprising as the accused had left the jurisdiction in late 2004. No fault could be laid at the door of the Met.

 

[18] The approach taken by Lord Diplock in Kakis (supra) was applied by the High Court in Triplis Petitioner 1998 SLT 186; 188 and approved in Campbell (supra). In the latter case the Lord Advocate's submissions at paragraph [42] had been accepted by the Court:-

"when considering the passage of time issue, the focus should be on the effect it has had on the person whose extradition is sought. The focus is not on the passage of time itself, and it therefore follows that this is not of itself sufficient to give rise to injustice or oppression. ... The fact that there is no explanation for the passage of time does not of itself give rise to a conclusion that the passage of time is culpable; far less does it lead to the conclusion that the passage of time gives rise to injustice or oppression:"

 

[19] The present case could be contrasted with Campbell where the accused had absconded. In Campbell at paragraph [43] the Court had said:-

"A person whose extradition is sought in order to face trial may suffer injustice by reason of delay, since the conduct of his trial may be prejudiced by delay, as is commonly the case."

 

[20] I was then directed to the opinion of Lord Clarke in Campbell at paragraph [48] where after referring approvingly to the speech of Lord Diplock in Kakis at page 785 about the need to have regard to all the circumstances taking place during the passage of time "which may ... give to the particular passage of time a quality or significance leading to the conclusion that return would be unjust or oppressive." stated:-

"the focus is not principally on the length of time that has passed and the reasons for it, but rather on the demonstrable effect that any such passage of time has had on the individual in question."

 

[21] In the present case the accused's position simply put was that he was not guilty of the charge contained in the EAW as he knew nothing of the alleged incident and victim, had not been present or responsible for the incident. The accused had no recollection of the date alleged and could only assume on the date in question had been in the company of his then girlfriend Silka in a completely different part of Berlin. The accused had lost contact with almost all of his friends and associates from Berlin in 2004. Since his arrest on 4 January 2009 he had been able to contact one friend from that period, Andrew Farmer who had given him telephone numbers for their mutual friend Michael and his wife but these numbers seemed to be out-of-date and he had not been able to reach them.

He had hoped that Michael's German wife would be able to put him in contact with his former girlfriend, Silka.

 

[22] Ms Thomson suggested that the accused could carry out an internet search or could have deployed one of the Internet friendship sites such as Facebook with a view to getting in touch with friends from the period of the charge. Similarly the accused had mentioned a public house in Berlin he and his friends had frequented and it might be possible to trace Silka Schroeder, Michael and his wife through official records in Berlin.

 

[23] As regards the accused's alibi, I was referred to the speech of Lord Keith of Kinkel in Kakis (supra) at page 789:-

"A further aspect which should not, in my view, be completely ignore, is the likely quality of the alibi evidence. The Divisional Court did not have the opportunity of seeing or hearing the two witnesses nor, if they had, would it have been appropriate to comment on reliability and credibility lest this should prejudice the actual trial. But one of the witnesses was the wife and the other the friend and political affiliate of the applicant. Alibi evidence is often suspect, and care should, in my view, be taken to see that too ready a loophole is not left open in extradition proceedings for the applicant to escape by calling alibi evidence which will not be available at the trial and the quality of which there is little or no means of assessing."

 

[24] It was suggested therefore that even if the accused was able to trace his former girlfriend, Silka it might not advance his defence of alibi much further forward because they had been in a relationship at the time. Just because the accused had not been able to trace relevant witnesses in the short time since his arrest, that did not mean he would be unable to do so in Berlin. If the accused was extradited and found difficulties presenting his defence he could argue in the German Courts that it was impossible to have a fair trial contrary to Article 6 of ECHR.

 

[25] I was next referred to The Republic of France v. Welsh (unreported) Edinburgh Sheriff Court 15 February 2008. In that case Sheriff Stoddart said at paragraph [28]:-

"What is now being suggested is that a fair re-trial is impossible because, it is said, McNicoll and Bonner [both former co-accused] cannot be traced. I fail to see how the absence of their up-to-date testimony at any re-trial would put the accused in a worse position than he would have been when the case was reviewed at the Court of Appeal in Douai. At no point before me did the accused suggest that their evidence (if available) would be any different from that which was available in 1993, and if it is more emphatic, (as Counsel for the accused submitted it might be) it would of course be open to comment that it was being tailored to meet a new situation. But in any event, I am not satisfied that McNicoll and Bonner cannot be traced. The accused himself accepted that more might be done to find them, although that would be difficult. I think at present the evidence of their disappearance is best described as sparse."

 

[26] Finally I was referred again to the case of Campbell this time at paragraph [38] where the Court considers the case of Falanga v. Office of the State Prosecutor, Court of Novara, Italy [220] EWHC 268 (Admin). In that case at paragraph 23 the Court had said:-

"Any allegations made by the person whose extradition is sought must be properly supported by evidence if they are to lead to a refusal of extradition."

 

[27] In conclusion Ms Thomson submitted that while the accused might have a defence of alibi to the charge he had not carried out all enquiries that might reasonably be undertaken to investigate possible lines of defence. On the evidence adduced there was no real risk of prejudice. I was invited to hold there was no bar to extradition in this context. Should the accused find on his return to Germany the passage of time jeopardized him having a fair trial he could challenge the trial proceedings in Germany alleging they were contrary to Article 6 of ECHR.

 

Submission for the Accused

 

[28] Mr. Dunne directed me to Campbell at paragraph [30] where Lord Nimmo Smith began to consider the passage of time issue in that case. His Lordship began by saying:-

"The effect of section 14 of the 2003 Act is that the appellant's extradition to France is bared by reason of the passage of time if (and only if) it appears that it would be unjust or oppressive to extradite him by reason of the passage of time"

After describing the chronology of that case Lord Nimmo Smith said:-

"It is important to note that there is no information, beyond what is set out above, as to what was happening either in France or in the United Kingdom between any of the dates I have given. We are not told what was being done, or not done, whether what was done could have been done more quickly, or, if so, what explanation there might be for not doing it more quickly."

Mr. Dunne suggested that the agreed chronology in the present case was no clearer as evidenced by the terms of the joint minute.

 

[29] Mr. Dunne founded on the passage in Campbell at paragraph [34] quoting from Lord Diplock's speech in Kakis which I have set out at paragraph [12] above. He submitted that the test was broader than that deployed in considering whether for example there had been undue delay in the execution of a summary warrant in respect of a statutory offence. In this case it could not be said that the German authorities had been dilatory in securing a warrant to arrest the accused within Germany and then preparing an EAW when it became apparent the accused was no longer living in Germany.

The present case could of course be contrasted with Campbell in that the accused in the present case had no knowledge that the German authorities were looking for him in relation to the incident described in the EAW and no fault could be placed at his door. The same could not be said for the Metropolitan Police who had lost the relevant file and no clear evidence was available what if anything they did with the EAW after they received it until the accused was arrested in Stranraer on 4 January 2009.

 

[30] As a result if the accused was extradited and tried on the EAW offence he would have the difficulty of trying to prepare his defence some four and a half years after the incident. Because of the delay the memories of witnesses would be adversely affected. Had the charge been pursued against the accused at the time he would have had a clearer recollection of exactly where he had been on the date of the alleged offence and could have asked for CCTV footage in trams to be checked to show whether the accused had been in the vicinity of Helmholzplatz. Such information would have been destroyed a considerable time ago and would no longer be able to the accused. As could be seen when giving evidence the accused could no longer remember all the surnames of friends and acquaintances from his time in Berlin. The accused had however been very specific about when he had left Germany and was able to say without difficulty when he had started his college course last year. Had the accused been aware of the charge he could have secured better detail of his alibi and indeed enquiries might have revealed another positive line of defence such as incrimination.

 

[31] So far as the "unjust" leg of the passage of time was concerned, Mr. Dunne submitted that the accused was prejudiced from being able to present the most complete, positive defence to the allegation and since his position was emphatically that he knew nothing of the incident and had not witnessed anything of that sort he could only proffer a vague alibi that he was in another part of Berlin at the other side of the city in the company of a former girlfriend with whom he had lost touch and could not contact. The only other position he could advance at this distance simply was that he was not guilty, had not been present and if the crime had occurred someone else must be responsible. The accused's personal circumstances had improved since his spell in Berlin and he had had very little contact with the circle of friends he had known in Berlin and was doubtful if they could be traced for the purposes of giving evidence in his defence at any trial.

 

[32] In regard to the other element which might impact as a result of the passage of time, namely oppression, Mr. Dunne highlighted the accused's much improved circumstances since returning to live near his family in Ireland. The accused now had regular contact with his disabled son and had been able to assist his former partner in bringing up his son. After a spell of unemployment he had enrolled in a Government scheme whereby he received increased benefits in turn for studying at college with a view to attending university in the future and securing a skilled job. It would be oppressive if the accused were taken away from these positive circumstances and extradited to Germany and perhaps kept there for an indefinite period. Such an eventuality could well result in his former partner denying him further contact with his son and he would lose his college place which he had last attended prior to Christmas.

 

[33] Mr. Dunne submitted that in Campbell at paragraph [42] the Court had accepted that:-

"when considering the passage of time issue, the focus should be on the effect it has had on the person whose extradition is sought."

In the present case the accused's circumstance were much better both family wise and career wise than they had been at the start of the period and extradition was likely to destroy all that the accused had achieved and therefore extradition could be said in light of the passage of time since the alleged offence to be oppressive.

 

[34] Mr. Dunne did not seek to advance any argument under section 21 of the 2003 Act. While the accused's argument under section 14 of the 2003 Act that extradition should be barred by reason of the passage of time it appeared to be oppressive involved a consideration of the accused's family circumstances, Mr. Dunne felt that those family circumstances per se were not sufficient to invite the court to hold that extradition would be incompatible with the accused's Article 8 Convention Rights within the meaning of the Human Rights Act 1998. The article 14 argument was stronger as it encompassed the accused's career as well as the injustice occasioned by the passage of time prejudicing the presentation of a proper defence to the charge.

 

Discussion

 

[35] I found the accused to be a credible and reliable witness. Obviously it is not appropriate to enter into a consideration of the evidence in a case such as this under Part I of the 2003 Act. The EAW provided the bare minimum of information and the court was not provided with complete information about the full name or gender of the alleged victim. The Crown was not in a position nor would it have been appropriate to cross examine the accused on the details of the alleged incident. The accused's position is simply that he had no knowledge of the matter and could only conclude at this distance he was elsewhere in Berlin with his ex-girlfriend when the incident occurred.

I fully accepted (and it was not disputed) that the accused had no knowledge that the German authorities were seeking his arrest on warrant and I accept that the accused was not a fugitive when he travelled to London and then on to Ireland to be with his family around Christmas 2004. The accused was not culpable in relation to the passage of time.

 

[36] While there was a concern arising from the fact that the Metropolitan Police had lost the EAW papers and the possible impact this had on the passage of time, it was clear from the accused's own evidence that by the time the Met had possession of the EAW and commenced enquiries the accused had long since left the United Kingdom. Whatever the Met had done or not done a record had been kept such as to identify the accused when he sought to travel from Stranraer on 4 January 2009 back to Ireland. Equally the German authorities had no obvious information as to the accused's whereabouts between 2005 and 2009 since they only knew the accused held a UK passport and had been born in Glasgow. It can also be inferred from the circumstances and the German authorities actions that they ascertained the accused had left Germany and travelled to the United Kingdom.

 

[37] In relation to the potential bar to extradition by virtue of the passage of time in terms of section 11(c ) and 14 of the 2003 Act there are two elements to consider-whether extradition would be unjust or oppressive. With regard to the latter aspect and having regard to Lord Diplock's definition in Kakis:-

"hardship to the accused resulting from changes in his circumstances during the period to be taken into consideration",

I am of the view in the present case that this is the weaker leg of the accused's argument. I note that Lord Diplock states:-

"there is room for overlapping, and between them they would cover all cases where to return would not be fair."

 

[38] I do not wish to belittle the accused in anyway, however. His circumstances during his stay in Germany were far from ideal and he appears to have been homeless for periods having only an accommodation address for mail. At other times he stayed with friends and became infected with hepatitis B. Since returning to Ireland at the end of 2004 he has had a spell of employment, been of assistance to his elderly mother, and assisted his ex-partner in bringing up his handicapped son. In addition he has now taken advantage of an initiative run by the Irish Government to secure the basic academic qualifications he lacked with a view, ultimately, of attending University to obtain a degree which might lead to employment in a chosen career path of becoming a sound engineer. If all of this can take place the accused has the opportunity of obtaining a skilled job. Clearly extradition could jeopardize the family ties he has built up following a long period living in Germany and bring to an end or seriously upset the start he has made over the last six months to securing qualifications.

 

[39] By contrast I consider the potential injustice of extradition due to the passage of time is a stronger argument for the reasons which have been advanced. In other contexts ECHR jurisprudence sets great store on the date when a criminal investigation became known properly to an accused in terms of detention, arrest and charge etc. When that takes place the accused can be on guard that at some future date they may require to defend themselves at trial. Armed with that forewarning the prudent accused should take steps to secure and record information which might have to be adduced at trial. In the present case the accused first had the matter brought to his attention when arrested on 4 January 2009 and more fully the following day when furnished with a copy of the EAW containing the particulars of the charge.

 

[40] Since then, by virtue of bail conditions and also because his passport had in fact expired the accused has had to remain in Scotland at his sister's home and has only been able to contact one friend who was part of his circle when living in Berlin at the time of the alleged offence. Since the accused's position is one of complete denial the alibi that the accused advanced at the hearing is in fairly sketchy terms. The accused has lost contact with his then girlfriend Silka Schroeder, with whom he used to reside. He can no longer recall the address where she stayed in 2004 in the Kreuzberg area of Berlin and he cannot make contact with any of his other friends and acquaintances from that period as he has lost contact with them since moving to Ireland.

 

[41] In our system a positive defence is not necessary but may be desirable. Despite Lord Keith of Kinkel's dismissive remarks in Kakis quoted in paragraph [22] above, most alibis involve the leading of friends or relatives to vouch for an accused being elsewhere at the material time. Obviously the quality of an alibi may vary depending upon the quality and partiality of the witnesses adduced. The effect of an alibi is diminished if the accused is the only witness to it unless he can provide detail of events elsewhere which could not be known by someone at the scene of the crime at that time. At present to the best of his recollection the accused can only assert he must have been elsewhere since he says he has no knowledge of the alleged events and must have been in the company of his then girlfriend as the date of the offence occurs during the period he was living with Silka Schroeder and he implies he was in her company more or less constantly during that period. The alibi as described at the hearing is little more than the assertion made quite properly in many criminal trials that the accused was not responsible for the act and was elsewhere. Furthermore due to the relatively short passage of time since the incident and the accused being made aware of the charge the accused cannot in the circumstances recall where he was at the material time or establish an alibi.

 

[42] There is a slight concern in that the EAW contains an alias which the accused denies ever having. The continental practice is often to refer to persons surname first followed by forename. This might partially explain the German authorities referring to the accused as Allen Joseph McKeith rather than Keith Joseph Allen The accused denies having a middle name Hanell and cannot shed any light on how this name has appeared in the EAW. The accused spoke to having an identity card in Germany which he was obliged to carry with him at all times and had been in his correct name. The accused assumed it had been from his need to obtain an identity card that the German authorities had on record his date and place of birth. He accepts he is the person sought in the EAW.

 

[43] The accused accepted that he had visited Helmholzplatz, the locus of the alleged offence on various occasions. He described visiting a park there. The EAW suggests an address and the document is not clear whether the locus is a house or the park. The accused denied ever wearing safety shoes all the time he lived in Germany as he was unemployed during these years and had no need to wear safety shoes of the type worn on building sites .

 

Decision

[44] I appreciate that it is difficult for the accused to recollect events after the passage of four and a half years and in the circumstances he describes trying to locate friends and acquaintances from that period who may be able to give evidence on his behalf at any trial. I do however accept the submissions made by the Crown that more and better enquiries might be undertaken, particularly within Germany to locate witnesses and secure information sufficient to lay the foundation for positive lines of defence.

 

[45] Clearly it would be a matter for the German authorities to be satisfied that the accused's Article 6 rights are not infringed and that the trial should be fair. I take from Sheriff Stoddart's remarks in France v.Welsh at paragraph [28] quoted by me at para [22] above, that the dossier would have been available to that accused in France providing full disclosure of the case upon which the authorities are proceeding. The dossier would contain copies of the statements of witnesses gathered at the time the case was prepared and the decision to proceed taken. The German system is organised on a similar basis to the French one.

 

[46] Extradition proceedings under Part I of the 2003 Act specifically do not involve a consideration of the evidence. At this stage of the proceedings the court has to consider whether, taking all the circumstances as a whole extradition following the passage of time would be unjust or oppressive. While I accept the accused's circumstances have greatly improved in the last 5 years, and he presented well in court, I do not consider it would be oppressive for him to be returned to Germany to face proceedings on the charge. The accused is not the main carer of his son. The child normally stays with his mother and the accused exercises weekend and holiday contact.

The accused's career ambitions and efforts towards self improvement are laudable. While extradition would disrupt progress on that front, a balance has to be struck in comparison with the alleged offence which is said to be an attempted manslaughter and grievous bodily injury, where the victim is said to have sustained several fractures to the skull. In our system such a charge would be libelled as attempted murder of perhaps assault to severe injury and to the danger of life and would, if sufficient evidence was forthcoming merit proceedings at least at sheriff and jury level if not High Court. The EAW offence is a particularly serious one which in my view transcends the effect extradition may have on the accused in this context. If the accused were to be acquitted of the charge in Germany and able to return home in the near future he would still have the opportunity to resume his studies and hopefully resume his relationship with his son as he nears adulthood.

 

[47] More significantly in my view is the risk of prejudice to the accused facing the charge after the passage of time described above. A distinction has to be drawn in this context between the accused's Article 6 rights to a fair trial and the test I have to deploy under section 14 of the 2003 Act. There is no doubt at this distance, based on the limited information provided in the EAW that the accused may have some difficulties challenging the allegation. However in proceedings under Part I of the Act evidence does not have to be provided or considered. No suggestion was made that the EAW did not meet the standards required. Sufficient information is provided to assist the accused and he is clear he was not involved and knows nothing of the incident. Whether he can at this distance secure a sufficiency of evidence to specify an alibi of reasonable quality or indeed any other positive line of defence such as incrimination remains to be seen. As Ms Thomson pointed out there are more lines of enquiry that can be pursued than the one followed by the accused in the limited time at his disposal and in the circumstances he is in at present constrained by bail conditions.

 

[48] While the position the accused finds himself in is far from ideal and not of his making, nevertheless less a particularly serious charge is involved. The matter would appear to be within short compass and doubtless the accused can expect full disclosure of the evidence. In terms of Article 6 the accused has a protection at the trial stage if a fair trial cannot be secured.

 

[49] For these reasons my answer to the question posed by section 11(1) (c) and (5) of the 2003 Act is in the negative. No other bars to extradition under section 11 were raised and accordingly I must proceed to section 21 of the 2003 Act. As indicated above Mr. Dunne very fairly (and properly in my view) did not raise an Article 8 argument in this case. From my perspective in these proceedings I cannot assert that the accused cannot get a fair trial in light of the circumstances which emerged at the hearing. Accordingly I answer the question posed by section 21 in the affirmative and order that the accused should be extradited to the Republic of Germany.

It will be a matter for the German authorities to consider following the accused's preparations and participation in any trial for the offence whether the accused's Article 6 rights are infringed due to the absence of crucial evidence. Meantime I do not regard the passage of time and circumstances of this case such as to bar extradition under sections 14 or 21 of the 2003 Act.