Scottish Sheriff Court Decisions

                         SHERIFFDOM OF LOTHIAN AND BORDERS AT EDINBURGH. 

         E64/14

2015EDIN55

Judgment,

by Sheriff T Welsh QC,

Under the Extradition Act 2003.

In the Case of

The Lord Advocate, Crown

Office, Edinburgh, (on behalf of

the Kingdom of Spain).

                                                                                                                             (Applicant).                                                  

Against

Scott Harrison, 430 Aitkenhead Road,

Glasgow, Scotland.

(Respondent)

Act: Mr T Crosbie, Crown Office Edinburgh

Alt: N McCluskey, Advocate. Glasgow Defence Lawyers.

4^th August 2015

The Issue.

[1] On 28^th May 2015 at a continued full hearing, Scott Harrison appeared before me on a European Arrest Warrant (EAW) dated 12th September 2014. He is wanted by the Kingdom of Spain to serve a sentence of 4 years imprisonment following a conviction by a court in Malaga on 9^th October 2012. The Respondent is a British national living with his partner and children in Glasgow. The Lord Advocate now seeks a warrant for his extradition to Spain, to serve the sentence.

[2] I am asked to decide three questions: (1) whether, in limine, the EAW, as presented, is formally defective in a number of material respects and if so to discharge the respondent for want of due process; (2) whether the respondent was convicted, in his absence, in terms of s20(1) of the Extradition Act 2003 and if so to discharge him on the basis that the warrant is further defective; and (3) whether his return to Spain would now be compatible with his right to a trial within a reasonable time, as guaranteed by article 6 of the European Convention on Human Rights, the Human Rights Act 1998 and s21(1) of the 2003 Act. No statutory bar to extradition was argued.

The Kingdom of Spain.

[3] Spain is an independent sovereign state which joined the Council of Europe on 24^th November 1977. It has been a member of the European Union since 1^st January 1986.  In such circumstances, Spain, has been designated a category 1 territory in terms of section 1 of the Extradition Act 2003, and Part 1 of the Act accordingly applies. See the Extradition Act 2003 (Designation of Part 1 Territories) Order 2003/3333 as amended by the Extradition Act 2003 (Amendment to Designations) Order 2005/365 (March 1, 2005).

The Evidence.

[4] I heard evidence from the respondent and received translated copies of certain clarifications from the Spanish judicial authority which comprised:

1. Crown Production 1 (CP1) – Translation of the certified Spanish Final Judgment 141/2013 which comprises the written Judgment 370/12 (dated 9th October 2012), the Spanish post appeal enforcement order (dated 8th March 2013) and the post appeal order for a domestic warrant and EAW (dated 12th September 2014).
2. Crown Production 2 (CP2) - a response by Judge Guerra, dated 22nd April 2015, to a letter written by Crown Office, on 14th April 2015, seeking certain clarification and assurances.

[5] On the basis of the evidence I heard from the respondent, the content of the EAW and the clarification documents submitted I have constructed the following chronology of events which are also findings in fact:

1. 20th May 2007 – The 2 assaults in Malaga, which are the initiating events, occurred.
2. 2009 – The respondent was sentenced to custody in Spain on an unrelated matter on a date unknown.
3. 2011 – The respondent was released from his unrelated Spanish custodial sentence on a date unknown.
4. 26th September 2012 – The respondent’s public hearing/summary trial in the Malaga First Instance Court on the 2 relevant assaults. The respondent was personally present and legally represented at the hearing.
5. 9th October 2012 – The respondent was convicted of the 2 assaults in a written judgment. He was not present in Spain at that time.
6. 8th November 2012 – The respondent’s Spanish lawyer was notified of the convictions.
7. 13th November 2012 - The respondent’s Spanish lawyer requested a copy of the audio-visual record of the public hearing/summary trial of 26th September 2012.
8. 7th December 2012 – The respondent’s Spanish lawyer marked an appeal.
9. 30th January 2013 – The respondent’s Spanish appeal was refused and the original conviction and sentence sustained by the Malaga Provincial Court. That judgment is final.
10. 8th March 2013 – The case was passed for enforcement of sentence from the First Instance Court, to the Public Prosecutor’s Office, in Malaga. An attempt was made to serve an enforcement order on the respondent, at his then Scottish address, 3/5, 256 Cambuslang Road, Glasgow GT2 7BZ. Effective service was not possible and his whereabouts were treated as unknown by the Spanish authorities.
11. 12th September 2014 – The respondent, having repeatedly failed to appear for enforcement of the sentence in Spain, a domestic warrant for his arrest and a European Arrest Warrant were issued, by the First Instance Court in Malaga.
12. 26th September 2014 - The Part 1 Certificate commencing extradition proceedings in the UK was signed.
13. 30th September 2014 – The respondent first appeared in Edinburgh Sheriff Court to answer the EAW. Bail was granted.
14. 14th October 2014 – certified copies of the Spanish Final Judgment 141/2013, which comprises the written Judgment 370/12 (dated 9th October 2012), the post appeal enforcement order (dated 8th March 2013) and the post appeal order for a domestic warrant and EAW (dated 12th September 2014) are all sent to the British Liaison Magistrate, in Madrid, by the clerk to the Malaga court.

The Defective Warrant Point.

[6] Counsel for the respondent argued that the EAW was formally defective and did not comply with the statutory requirements contained in s2(5) and s2(6) of the Extradition Act 2003. I disagree. These sections provide that to be valid a conviction EAW must contain a statement and certain information:

“(5) The statement is one that—

(a) the person in respect of whom the Part 1 warrant is issued has been convicted of an offence specified in the warrant by a court in the category 1 territory, and

(b) the Part 1 warrant is issued with a view to his arrest and extradition to the category 1 territory for the purpose of being sentenced for the offence or of serving a sentence of imprisonment or another form of detention imposed in respect of the offence.

(6) The information is—

(a) particulars of the person’s identity;

(b) particulars of the conviction;

(c) particulars of any other warrant issued in the category 1 territory for the person’s arrest in respect of the offence;

(d) particulars of the sentence which may be imposed under the law of the category 1 territory in respect of the offence, if the person has not been sentenced for the offence;

(e) particulars of the sentence which has been imposed under the law of the category 1 territory in respect of the offence, if the person has been sentenced for the offence.”

[7] Accordingly, I required to compare the EAW with the statutory provisions, to ensure the necessary requirements had been complied with. I examined the EAW to determine if it contained the mandatory statements specified in s2(5) of the 2003 Act. If it did not it was invalid. It is dated 12th September 2014 and stamped with the official seal of Criminal Court No 7 in Malaga, Spain and signed by Julian Xavier Cruz Guerra who is described as a senior judge of that court. I was satisfied he is a competent judicial authority in a Part 1 Territory. The EAW bore, on the face of it, to state (Box b) that it relates to a warrant for search and committal to prison of the respondent.  This was in respect of enforcement proceedings in what was described as case number 141/13 which related to the enforcement of summary proceedings case reference 210/2011 which resulted in a judgment which also has a reference number, 370/12.  The maximum length of sentence competent for the offences is described in the EAW (Box c) as 4 years custody, pursuant to the final judgment of 9th October 2012.  The actual sentence imposed was described as 4 years, with the full term remaining unserved. Thus I considered the EAW appeared ex facie regular. It also appeared to me to contain the statements necessary to comply with the formal mandatory requirements specified in s2(5) of the 2003 Act. Separately, the Lord Advocate provided CP1, which is an English translation of the Final Judgment in case 141/2013 which contains the full text of the written judgment of case 370/12, dated 9th October 2012. Also contained in CP1, is a post appeal enforcement order relating to 370/12 dated 8th March 2013 and a post appeal order for a domestic warrant and EAW dated 12th September 2014. I was able to check the contents of these certified translations with the terms of the warrant and found the warrant reflected what the translations indicated happened. I compiled the above chronology to make the timeline easier to follow.

[8] I then examined the EAW to determine if it contained the mandatory information specified in s2(6)(a) to (e) of the 2003 Act. If it did not it was invalid. The warrant identified the respondent by full name, gender, date and place of birth (Box a). His fingerprints and photograph were appended to the warrant. The EAW specified the particulars of the domestic Spanish conviction, giving rise to the EAW (Box b). It did not indicate there was any other Spanish warrant outstanding. Sentence had been passed and the EAW went on to indicate the length of sentence, (Box c), as 4 years. The EAW goes on to state that it relates to 2 offences (Box e) and gives a short narrative specifying that the respondent was convicted of assault on a concerted basis on two named persons. Within this narrative occurs the phrase “..and sentenced by the enforcement proceedings of 24th April 2009 to six months in prison for the offence of assault’.  I took this phrase to be descriptive of the respondent and a reference to another unrelated incident, distinct from the sentence, in respect of which, the respondent’s return is now sought. I did not consider this phrase ambiguous or confusing on a fair reading of the warrant. I did not consider the phrase contradicted the EAW. I note from the chronology that the respondent was sentenced to custody in Spain between 2009 and 2011. I considered that the EAW included all the information required by s2(6)(a) to (e) of the 2003 Act. Having perused the warrant and checked it again against translated documents in CP1, I considered the EAW gave the respondent fair notice of the fact that he was convicted of two serious assaults in Malaga on 9th October 2012. It gave brief details of the assaults and named the victims and locus of the assaults. It specified the length of the sentence and told him the sentence remained unserved. On the third page of the warrant (section I.) there is a tick-box list of legal offences, which attract maximum sentences of at least 3 years imprisonment, in Spain. The box for grievous bodily injury is ticked, indicating in my opinion that offence is an extradition offence (see s65 (2) and (3) of the Act), which was not disputed.  A space for ‘Full descriptions of offences not covered by section I above’ is provided at section II wherein reference is made to ‘two offences of assault and one misdemeanour of assault set out and punishable under articles 147.1 and 617.1, respectively, of the Spanish Criminal Code’. This information, in my opinion, was inserted to explain that as well as the two extradition offences which the respondent was convicted of he was also convicted of a minor offence in respect of which extradition is not sought. I did not consider this information related to 3 additional or entirely different offences, nor did I find it confusing, as counsel suggested. The information was consistent with that supplied in (Box e) of the EAW and the translation of the Final Judgment 141/2013 in CP1. I read the content of section II to mean the respondent was convicted of 2 serious offences and 1 minor offence in respect of which he was fined. This was correct when checked against CP1. Extradition is sought and competent in respect of the 2 serious offences but not competent in respect the minor offence. CP1, on the penultimate page of the written Judgment 370/12 (dated 9th October 2012) makes it clear that the Spanish court convicted the respondent of 2 serious offences and 1 minor offence. The minor offence is not an extradition offence because the respondent was fined.

[9] Counsel also argued the EAW was defective because the warrant required to describe the respondent’s status as ‘being unlawfully at large’. However, since 15 January 2007, the words “is alleged to be unlawfully at large after conviction” have been deleted from s2(5)(a) and the words “has been convicted” substituted [Police and Justice Act 2006 c. 48 Sch.13(1) para.1(1)][cf the heading to s21]. Therefore, for the reasons I have given above, I did not discern any discrepancy in the warrant between (Box e) and sections I and II of the warrant, as argued by counsel. Accordingly, as a preliminary issue, I did not consider the EAW was defective, ambiguous or misleading. In my opinion, it was clear and plain, on its face and it satisfied the terms of the legislation.

The Conviction in Absence Point.

[10] The preliminary objection having then been disposed of, Counsel argued that the respondent was not convicted in his presence but convicted in his absence and thus a further fatal flaw in the procedure in this case was exposed. In my opinion, the respondent was not convicted in his absence.  The EAW at (Box [d]) does not suggest he was convicted in absentia. As I understand this point, as argued, the respondent must have been convicted in absence, if he was not physically present in Malaga at the precise point of conviction, therefore two legal consequences follow. Firstly, the EAW is further defective because it does not contain confirmation of certain important procedural guarantees, persons convicted in absence, are entitled to and secondly, substantive injustice might follow, were the respondent to be returned to Spain without these guarantees being given by the requesting state.

[11] I disagree because in my opinion, for the purposes of the 2003 Act, the respondent was convicted in his presence and these consequences do not follow. It was clear from the respondent’s evidence before me and CP 2 for the Lord Advocate, which is the response by Judge Guerra, dated 22nd April 2015, to a letter written by Crown Office, on 14th April 2015, seeking certain clarification and assurances, that the respondent was present at the evidential hearing phase of his Spanish trial process. That was in public, in Malaga, on 26th September 2012. He was legally represented there and defended by his counsel, Damian Canovas Baena and had a Court Procedural Representative allocated to him, Ms Fernandez Luque. He had the benefit of English translation of the proceedings. The written judgment 370/12, which is contained in CP1, refers to this hearing as both ‘a trial’ and ‘an oral hearing’ in which evidence was heard in the presence of the respondent and his counsel. The evidence led became part of the case records. The respondent’s counsel requested his client be acquitted of all charges at the close of the evidence.

[12] According to Judge Guerra, under Spanish summary criminal procedure, conviction/judgment is not declared in the immediate presence of the accused after the evidence is heard, as it usually is in Scotland. The Spanish judges hear the evidence in public, then deliberate in private and send intimation of the judgment/conviction (or otherwise) to the accused’s lawyer.  This is in the form of a written reasoned judgment setting out the charges, the procedural history of the case, the facts established, the law applicable, the reasons for conviction, the civil liability in respect of the victim’s compensation and the sentence imposed.  The judgment determines both the criminal responsibility and the civil liability of the convicted person. In the instant case the respondent told me, in evidence that his Spanish lawyer had told him he could go back to Scotland, ‘after the trial’. That was a reference to the public hearing, on 26th September 2012, which was held before the conviction was intimated. The respondent returned to Scotland, after a short holiday in Spain.  His conviction, dated 9th October 2012, was intimated to his Spanish lawyer on 8th November 2012. That lawyer then requested a copy of the audio-visual recording of the trial/hearing on 13th November 2012 and marked an appeal against the decision on 7th December 2012. According to the Order of 12th September 2014 issuing a Spanish arrest warrant and a EAW for the respondent, which is a part of CP1, the respondent’s appeal was refused by the Spanish Provincial Appeal Court, on 30th January 2013, which upheld and confirmed the original conviction. The appeal court judgment was intimated to the respondent, via his court procedural representative, according to the information supplied by Judge Guerra, in CP2.  In these circumstances I did not conclude the respondent was convicted, in his absence.  His interest was represented and he was very much present in the Spanish judicial process, which ultimately resulted in conviction.

[13] With all that in mind, the question I addressed, was in terms of s20(1) of the 2003 Act, which states:

“(1) If the judge is required to proceed under this section (by virtue of section 11) he must decide whether the person was convicted in his presence.”

The central question which I required to consider was, in my view, within the framework of the Extradition Act 2003, what does the phrase ‘convicted in his presence’ mean, in the context of a request for extradition, following a hearing conducted under Spanish summary criminal procedure. That, I took, to be a matter of fact. I concluded from the written judgment 370/12, which is part of CP1, together with CP2,  that the public hearing on 26th September 2012  was a substantive hearing where evidence was led and facts found proven by the Spanish court in the respondent’s presence when he was legally represented. I was satisfied the respondent’s statement denying guilt was taken into account and that the Spanish proceedings were regular and properly conducted according to Spanish law.  I followed the general approach of the English Court of Appeal in Mohammed Elashmawy v Court of Brescia, Italy v Fabio Riva, Court of Taranto, Italy [2015] EWHC 28 (Admin). That court, in analysing whether a person tried in a civil law legal system, (Italy), was convicted in his presence, recognised that, the civil law system of trial resulting in conviction, is a process which has a number of stages and not an event, such as occurs, in common law systems. Thus, where a person attended some stages but not all the hearings, which resulted in his conviction, the court held:

“33 On the basis that what must be established is that the appellant attended the substantive hearing which resulted in his conviction, viz. the second appeal, the appellant was “convicted in his presence” for the purpose of section 20(1) of the EA .”

In the circumstances governing Elashmawy the substantive hearing in Italy was the second appeal. In the present case, in Spain, I concluded that the substantive hearing, giving rise to the respondent’s conviction, was the public hearing of 26th September 2012. I took into account that written submissions were lodged on his behalf before the case commenced. The respondent attended the hearing with legal representation, when evidence was led in his presence, from which, the Spanish court found facts established, which satisfied the domestic legal standard for guilt, having afforded the respondent’s lawyer the opportunity to argue for an acquittal, in his presence. The respondent’s written statement denying guilt was part of the evidence taken into account by the Spanish judges according to the final written judgment. This public hearing had the hallmarks of a summary criminal trial, as it might be understood, in Scotland. The fact that the verdict was deferred for the production of a written judgment did not mean, in my opinion, following the reasoning of Elashmawy, that the respondent was not convicted in his presence, for the purposes of s20(1) of the 2003 Act.  Accordingly, in my opinion, he was for the purposes of s20(1) of the 2003 Act convicted in his presence.  Having answered the consequential question in s20(2) in the affirmative I was then obliged to proceed under s 21, which I did.

[14] Separately, I may add, I interpreted the phrase ‘in his presence’ having due regard to the important obligation of mutual recognition contained in Article 1(2) of the Framework Decision of 13th June 2002 (2002/584/JHA) and held that the respondent was convicted in his presence for the purposes of the 2003 Act.  Article 1(2) of the Framework Decision provides:

“2. Member States shall execute any European arrest warrant on the basis of the principle of mutual recognition and in accordance with the provisions of this Framework Decision.”

I considered myself bound to recognise the validity of the Spanish criminal procedure, unless it was clearly demonstrated to be patently irregular, as a matter of fact, or Convention non-compliant (for which, see below). No evidence was led that the Spanish process was patently irregular. Counsel observed there was no separate sentencing diet under the Spanish process. I agree. In my opinion it is not uncommon in civil law systems that a separate conviction and sentencing phase of a trial, such as occurs in the common law, does not feature. It did not feature in the present case. I did not consider the absence of what, under Scots law, would be termed a sentencing diet meant that for the purposes of s20(1) of the 2003 Act the respondent was not convicted in his presence. Routinely, the public evidential hearing and the court papers or dossier provide, in a civil law system like Spain, all the relevant personal information about the accused the judges need for sentence. It is also worth noting that the public hearing dealt also with civil liability, as well as criminal responsibility. The process is quite different from that which exists in the UK jurisdictions. I also noted from Judge Guerra’s clarification of 22nd April 2015, CP2, (first sentence) that legal representation is mandatory in criminal trials under Spanish law. Counsel argued that there is no evidence the guilty verdict was notified to the respondent. In fact, the clarification of 22nd April 2015, from Judge Guerra, CP2, at point two states the ruling was notified to the respondent’s lawyer and through him “to the convicted party”.

[15] Having reached my conclusion in relation to s20(1), I did not consider it was necessary to go on to consider questions about the EAW lacking information about certain procedural rights and guarantees accorded to persons truly convicted in their absence. In my opinion, the EAW must contain details of these rights and guarantees but only in cases when the requested person has actually, genuinely, been convicted, in absentia. In that event, the EAW must indicate the requested person is entitled to a retrial or (on appeal) to a review amounting to a retrial, should he be returned to the requesting state. I did not address these matters because of my interpretation of s20(1) and because a Spanish appeal had already been lodged and heard at the instance of the present respondent, through his Spanish lawyer. In my opinion, on return to Spain he has no further right of appeal, re-hearing or review, directly arising from his UK extradition (though he may have other rights of appeal, in Spanish domestic law), as he was not convicted, in his absence, in the sense that he was genuinely excluded from or ignorant of the Spanish judicial process, which resulted in his conviction. Judge Guerra also indicated he has no further ordinary right of appeal in Spain at point (Four) of his clarification CP2.

The Article 6 Point.

[16] Counsel did not argue a statutory defence to the EAW based on ‘the passage of time’ in terms of s11 of the 2003 Act. Instead, an ECHR article 6(1) point was advanced to the effect that the respondent’s reasonable time guarantee had been breached, in Spain, which amounts to a contravention of his Convention rights. This argument, in my opinion, was fundamentally ill conceived. The Spanish legal process took, as the chronology indicates, from 20th May 2007 until 30th January 2013 to complete. The respondent was serving a Spanish prison sentence between 2009 and 2011. Any article 6 point he wished to raise in relation to his Spanish case, which rendered his trial, there, unfair, in my opinion, should appropriately, have been raised during or before the Spanish public hearing/summary trial when he was legally represented by counsel, on 26th September 2012 and/or during the Spanish appeal process, which concluded on 30th January 2013. I do not consider it is open to me, as a UK extradition sheriff, to consider whether the respondent received a fair trial within a reasonable time in Spain, although I have no reason to doubt that he did and there is a strong, undisplaced, presumption, to the effect, that he did. My task, was to determine whether any bar to his extradition, within the framework of Part 1 of the 2003 Act, exists.

[17] In my view, in terms of the ECHR jurisprudence, what amounts to a reasonable time within which to bring a prosecution from the point of initial charge or the local equivalent, to final determination, in Spain, is in the first instance a matter for the Spanish courts, subject to the supervisory jurisdiction of the ECtHR in Strasbourg. In my opinion, it would be inappropriate for me to attempt to apply standards, norms and values in respect of what may, or may not, amount to a reasonable time in the UK to achieve the same end, to a Spanish case, through the prism of an extradition process. My own view is that I could only refuse to extradite the respondent on this article 6 ground and discharge him, if it was demonstrated that he had suffered a flagrant denial of justice, as a result of which, he did not receive a fair trial in Spain, in breach of his article 6 rights. No material was placed before me to suggest that such a flagrant denial happened. Accordingly, I rejected this argument.  A similar argument was also rejected in Elashmawy where (dealing with an Italian EAW) the relevant test for the application of article 6, in a ‘foreign’ case, was identified by Aikens LJ:

“38. The appellant's case before the judge and in his written submissions was that she should have ordered his discharge under section 21(2) of the EA because his right to a fair trial under Article 6 had been infringed. Mr. Jones now accepts that this was an inapt way of framing the challenge. In a “foreign” case such as this, the test is whether or not a person facing extradition or deportation “risked suffering a flagrant denial of justice in the requesting country”: see the judgment of the European Court of Human Rights (“ECtHR”) in: Othman v. UK [2012] 55 EHRR 1 at [258], applying the principle first established in an extradition case, Soering v. UK [1989] 11 EHRR 439 at [113]. However, even this principle is not directly relevant because there is no question of a retrial in Italy. That does not mean that a requested person whose extradition is sought on a “conviction” EAW to serve a term of imprisonment imposed after a “flagrantly unfair” trial is without recourse. He may be able to establish a breach of Article 5. Thus: “A flagrant breach of Article 5 might also occur if an applicant would be at risk of being imprisoned for a substantial period in the receiving state, having previously been convicted after a flagrantly unfair trial.” (See: Othman [233]).  It is clear that the requested person must establish that his trial was flagrantly unfair, not merely that it contravened Article 6.”

[18] Even if the present ground were amended to an article 5 breach, as suggested it has to be, above, the onus is on the requested person to demonstrate what he asserts was a flagrant denial of justice or unfairness. The Court of Appeal emphasised the word ‘flagrantly’ in the print of its opinion. This would suggest to me the respondent requires to demonstrate he was victim of an egregious or blatant denial of justice in the requesting country. It is difficult for me to see how the Spanish legal process brought under review in this case came anywhere close to that description. Counsel for the respondent identified no aspects of the Spanish process which I could characterise as a flagrant denial of justice or flagrantly unfair, even if the respondent’s article 5 or 6 right was breached, which I do not accept has been established. I was referred to a number of ‘well known’ cases dealing with the reasonable time guarantee [including Dyer v Watson 2002 UKPC D1, HMA v R 2002 UKPC D3, Spiers v Ruddy 2008 SCCR 131] in this jurisdiction. I have no idea how these demonstrate the Spanish trial process took an unreasonable time to complete. No evidence was led to that effect.

[19] Accordingly, I concluded the warrant was good and that as no bars to extradition in terms of the 2003 Act had been identified, extradition was as a matter of fact compatible with the respondent’s Convention rights and ordered his return to Spain to serve his sentence there.