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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Calder, Re Application for Judicial Review [2005] ScotCS CSOH_125 (20 September 2005) URL: https://www.bailii.org/scot/cases/ScotCS/2005/CSOH_125.html Cite as: [2005] ScotCS CSOH_125, [2005] CSOH 125 |
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Calder, Re Application for Judicial Review
[2005] ScotCS CSOH_125 (20 September 2005)
OUTER HOUSE, COURT OF SESSION [2005] CSOH 125 |
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P614/05
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OPINION OF LORD McEWAN in the petition of DAVID JOHN CALDER Petitioner; for
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Petitioner: Bovey, Q.C., Mrs Hughes; Drummond Miller, W.S.
Respondent: Moynihan, Q.C., Ms Crawford; Office of the Solicitor to the Advocate General
20 Sepember 2005
[1] Mr Calder lives in Aberdeen. He has the misfortune to be a man wanted by the authorities in the United States. They have applied to the relevant Scottish Court for his extradition to face criminal charges in California. The offences relate, I was told, to sending certain chemicals to the United States from which the "date rape" drug can be made. At present the matter is before a Sheriff in Edinburgh and is adjourned to await a decision in this case. [2] The"... what evidence is there for the allegation that the Home Secretary never genuinely came to the conclusion that it was conducive to the public good to deport the applicant? Here the applicant relies again on the facts I have already narrated. But the evidence the other way is indeed formidable. In the first place he gained admittance by a stratagem which relied for its success on the humanity of our immigration officials. That reliance was justified in the event, and the success of the stratagem has produced for the home authorities an extremely troublesome problem, and, as it now transpires, substantial expense for the taxpayer. I venture to think it would be the duty of the Home Secretary in the interests of the public to do whatever he could to prevent such a stratagem from achieving its ultimate end, lest its success should set a precedent for others to copy ...".
Then referring to the fact that the United States was an ally he added that:
"... each (country) may well think it conducive to the public good of their own citizens that they should co-operate to see that a national of one of them, who gives defence information to a common potential enemy, should not escape the consequences inflicted upon him by due process of law ...".
I wish to add one postscript. The arguments before me raised sharply the doctrine of the separation of the powers. That had its eighteenth century beginnings in England where the delicate balance in the scales between Parliament and the Judges was the envy of the civilised world; it was slowly eroded in the nineteenth and twentieth centuries due to history, war and events. Dicey and many others eloquently wrote of it. The balance swung against the Courts but in recent years with judicial review and now Human Rights the Courts especially in England have tried slowly to redress the balance. How this doctrine will fare in the "new" Scotland with its own Executive remains to be seen. The case in front of me really affects the United Kingdom. In view of what I have said in this case in the preceding pages I can add not a scruple to the Judges' side of the scales.
In the result I shall repel the petitioner's plea-in-law; sustain both the respondent's pleas-in-law; refuse the orders sought and dismiss the petition.