Scottish High Court of Justiciary Decisons

"This Framework Decision does not prevent a Member State from applying its constitutional rules relating to due process, freedom of association, freedom of the press and freedom of expression in other media."

We were also invited to consider provisions of Articles 5 and 17. Article 5 provides inter alia:

"The execution of the European arrest warrant by the executing judicial authority may, by the law of the executing Member State, be subject to the following conditions

1. where a European arrest warrant has been issued for the purposes of executing a sentence or a detention order imposed by a decision rendered in absentia and if the person concerned has not been summoned in person or otherwise informed of the date and place of the hearing which led to the decision rendered in absentia, surrender may be subject to the condition that the issuing judicial authority gives an assurance deemed adequate to guarantee the person who is the subject of the European arrest warrant that he or she will have an opportunity to apply for a retrial of the case in the issuing Member State and to be present at the judgment; ...."

Article 17 provides by paragraph 1: "A European arrest warrant shall be dealt with and executed as a matter of urgency." The following paragraphs provide time limits for the final decision on the execution of the EAW, depending on whether or not the requested person consents to his surrender. If he does not, by paragraph 3 "the final decision on the execution of the European arrest warrant should be taken within a period of 60 days after the arrest of the requested person." Paragraph 7 provides:

"Where in exceptional circumstances a Member State cannot observe the time limits provided for in this Article, it shall inform Eurojust, giving the reasons for the delay. In addition, a Member State which has experienced repeated delays on the part of another Member State in the execution of European Arrest Warrants shall inform the Council with a view to evaluating the implementation of this Framework Decision at Member State level."

"A person's extradition to a category 1 territory is barred 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 since he is alleged to have committed the extradition offence or since he is alleged to have become unlawfully at large (as the case may be)."

Section 11(3) provides that if the judge decides any of the questions in sub-section (1) in the affirmative he must order the person's discharge.

[6] By section 11(4), if he decides the questions in subsection (1) in the negative and the person is alleged to be unlawfully at large after conviction of the extradition offence, the sheriff must proceed under section 20, which contains various questions, of which the following are relevant:

"(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. ...

(3) If the judge decides [the question in subsection (1)] in the negative, he must decide whether the person deliberately absented himself from his trial.

(4) If the judge decides the question in subsection (3) in the affirmative he must proceed under section 21."

Section 20(5) provides that if the sheriff decides the question in subsection (3) in the negative he must decide whether the person would be entitled to a retrial or (on appeal) to a review amounting to a retrial, and by subsection (7) if he decides that question in the negative he must order the person's discharge.

"(2) The court may allow the appeal only if the conditions in subsection (3) or the conditions in subsection (4) are satisfied.

(3) The conditions are that -

(a) the [sheriff] ought to have decided a question before him at the extradition hearing differently;

(b) if he had decided the question in the way he ought to have done, he would have been required to order the person's discharge.

(4) The conditions are that -

(a) an issue is raised that was not raised at the extradition hearing or evidence is available that was not available at the extradition hearing;

(b) the issue or evidence would have resulted in the [sheriff] deciding a question before him at the extradition hearing differently;

(c) if he had decided the question in that way, he would have been required to order the person's discharge.

(5) If the court allows the appeal it must -

(a) order the person's discharge;

(b) quash the order for his extradition."

"The advice which we received from our French Agent was that you should not attend [the trial]. The consequences of not attending are that the Court will condemn you in your absence. The advice which we received from our French Agents, given the history of the case, and the evidence apparently available, to the Judge, was that you would be condemned, and would be immediately taken to Prison without the right to suspend the sentence.

....

You have seen his [Logan's] evidence, and it appears to be that the French authorities rely upon that evidence. Our French Agents indicate that the trial will proceed in your absence. They explained during our Conference Call that you will be condemned by default. It is then for the French authorities to proceed with extradition proceedings."

repeat that history here. 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.

"But I could not characterise any of the apparent periods of inactivity as significant, especially from the standpoint of the appellant. He was not prejudiced by the delay; he had remained at liberty until now. Nor could I characterise the actings of the French authorities as 'dilatory', even if such a consideration were significant."

Before us, senior counsel for the appellant took issue in particular with the sheriff's finding that he was not prejudiced by the delay. He submitted that the appellant had lived at the same address in Killin for ten years, during which he had been in regular employment as a lorry driver and agricultural contractor, and had supported a wife and family. During the four-year period between November 2002 and November 2006 he had developed a sense of security. The French authorities were at all material times aware of his home address. He had not sought to avoid them. In these circumstances it would be unjust and oppressive to order his extradition.

"[T]he Court must survey the facts and draw an inference, or form an opinion, as to whether or not it would be unjust or oppressive to return the fugitive. It should approach this task, I think, in the same way as it deals, for example, with questions whether something is reasonable or whether there has been negligence."

At page 294 he said:

"It must always be for the Court to appraise the facts upon which it thinks it right to proceed, and form a conclusion upon the matter of injustice and oppression without any presumption in either direction."

"'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."

"We are satisfied that the petitioner has not shown that by reason of the passage of time between February 1984 and January 1987 it would be unjust or oppressive to return him now to stand trial in Greece. As we have explained, we require to disregard the period between the end of 1984 and 1992 since the petitioner left Greece in breach of the conditions of his release and when he was aware of the allegations against him. So far as the remaining period is concerned, it appears to us that some of the 'delay' may have been due to the need for the extradition request to be considered properly, in the interest of the petitioner as well as in the public interest. We note in particular, however, that the petitioner does not suggest that any delay has made it impossible for him to have a fair trial. We accept that the petitioner has settled in this country and may even have had some reason to believe - wrongly as it happens - that the Greek authorities were not actively pursuing him. But these or similar circumstances could apply in many cases and in our view they do not in themselves make it unjust or oppressive in this case for the petitioner to be returned to stand trial."

"[T]he European arrest warrant is designed to be an expeditious and summary means of securing extradition as between states who are parties to the European Convention on Human Rights, where generally it may be assumed that those rights are complied with. Extradition cannot in my judgment be resisted by pointing to matters which could have been the subject of evidence on the part of the extraditing authority but were not, such as, in this case, the date when it was learnt that Mr Falanga was in this country or by suggesting that there may have been or may be breaches of the rights of an appellant under the European Convention. 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."

"In my view the proper approach in this area of the law is, with respect, relatively straightforward. I think that there is perhaps a danger that in the search for a just result the court may be inclined to stray too far from the words of the statute..."

After referring to the provisions of section 14 of the 2003 Act, and to Kakis, supra, he continued:

"[T]he words of the Act do not justify a conclusion that any delay not explained by the requesting State must necessarily be taken to show fault on the State's part such as to entitle the putative extradite to be discharged... All the circumstances must be considered in order to judge whether the unjust/oppressive test is met. Culpable delay on the part of the State may certainly colour that judgment and may sometimes be decisive, not least in what is otherwise a marginal case... And such delay will often be associated with other factors, such as the possibility of a false sense of security on the extraditee's part. The extraditee cannot take advantage of delay for which he is himself responsible... An overall judgment on the merits is required, unshackled by rules with too sharp edges."

"It seems to us more appropriate to regard the respective faults of the offender and the state as merging at the point where it is no longer reasonable for the requesting state not to have located the offender. From that point it becomes increasingly likely that the sense of security engendered by state inaction will render extradition oppressive."

Conclusion

APPEAL COURT, HIGH COURT OF JUSTICIARY

Act: E Targowski, QC, Caskie; Drummond Miller

Alt: A. D. R. Crawford, Advocate; Crown Agent

19 February 2008

"....the High Court ...may....order the person committed to be discharged from custody if it appears to the Court that ....

(b) by reason of the passage of time since he is alleged to have committed [the offence]...it would, having regard to all the circumstances, be unjust or oppressive to return him".

It will be noted that the words "having regard to all the circumstances" do not themselves appear in section 14 of the 2003 Act. I do not consider, however, that the absence of those words means that section 14 of the 2003 Act has to be interpreted in a manner, or to an effect, different from section 8(3)(b) of the 1967 Act and indeed it is clear, in my view, that the English authorities, to which your Lordship in the chair has referred, which have considered the provisions of section 14, have approached matters on that footing. In that respect the speech of Lord Russell of Killowen in the case of Kakis, who agreed with the speech of Lord Diplock, is instructive. His Lordship, at page 785 said this:

"I would only add this comment on section 8(3)(b) of the statute. It is not merely a question whether the length of time passed would make it unjust or oppressive to return the fugitive. Regard must be had to all the circumstances. Those circumstances are not restricted to circumstances from which the passage of time resulted. They include circumstances taking place during the passage of time which may (as I think here) give to the particular passage of time a quality or significance leading to a conclusion that return would be unjust or oppressive".

That passage appears to me, with respect, to emphasise succinctly that 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. In the present case the only effect that the passage of time was said to have had on the appellant was that he had continued to live his life as normal and that it produced a sense of security in him that the French authorities would no longer be pursuing him. In my judgement any sense of security was a false and unjustified sense of security, on the part of the appellant himself, in a situation where there was no suggestion that the relevant authorities had otherwise given him any reason to believe that they were no longer interested in pursuing such a serious matter. The dictum of Lord Justice General Rodger in the case of Triplis, to which your Lordship in the chair refers, is particularly apposite in that regard.

"It is certainly most regrettable that the Crown Prosecution Service managed to lose the file and, as a result of that, the extradition of the applicant is not sought as soon as it might have been. But, in my judgement, he has suffered no particularly significant disadvantage as a result of that".

That dictum, in my view, emphasises, again, that the focus must be on the established effect of the passage of time on the person in question.

APPEAL COURT, HIGH COURT OF JUSTICIARY

Act: E Targowski, QC, Caskie; Drummond Miller

Alt: A. D. R. Crawford, Advocate; Crown Agent

19 February 2008

"If the offender is kept in suspense during a prolonged period of delay and then has to serve the remainder of the sentence, that delay constitutes an additional punishment. It might be that in certain circumstances such a delay could be justified, even though the offender himself was not to blame. That question can be decided if and when it arises. No such circumstances are put forward in this case."