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You are here: BAILII >> Databases >> Scottish High Court of Justiciary Decisons >> Campbell v. Her Majesty's Advocate [2008] ScotHC HCJAC_11 (26 February 2008) URL: http://www.bailii.org/scot/cases/ScotHC/2008/HCJAC_11.html Cite as: 2008 SCCR 284, 2008 JC 265, [2008] ScotHC HCJAC_11, [2008] HCJAC 11 |
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APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Nimmo Smith Lord Clarke Lord Marnoch
|
[2008] HCJAC 11 Appeal No: XC232/07 OPINION OF LORD NIMMO SMITH in APPEAL UNDER SECTION 26(1) OF THE EXTRADITION ACT
2003 by ALISTAIR IAIN Appellant; against HER MAJESTY'S ADVOCATE Respondent. |
Act: E
Alt: A. D. R. Crawford, Advocate;
Crown Agent
Introduction
[1] This is an appeal under section 26(1)
of the Extradition Act 2003 ("the 2003 Act") against an order made by the
Sheriff of Lothian and Borders at
The relevant statutory
provisions
[2] Part 1 of the
2003 Act was enacted in discharge of the United Kingdom's duty to transpose
into national law the obligations imposed on it by the European Council
Framework Decision of 13 June 2002 on the European arrest warrant and the
surrender procedures imposed on it by the Member States (2002/584/JHA; OJ 2002
L190, p1) ("the Framework Decision"). As
Lord Bingham of Cornhill said in Dabas
v High Court of Justice in Madrid, Spain [2007] UK HL 6, [2007] 2 AC 31, at paragraph [4], Part 1 of the 2003 Act must be read
in the context of the Framework Decision.
Lord Bingham continued:
"This was conceived and adopted as a
ground-breaking measure intended to simplify and expedite procedures for the
surrender, between member states, of those accused of crimes committed in other
member states or required to be sentenced or serve sentences for such crimes
following conviction in other member states.
Extradition procedures in the past had been disfigured by undue
technicality and gross delay. There is
to be substituted 'a system of surrender between judicial authorities' and 'a
system of free movement of judicial decisions in criminal matters' (recital (5)
of the preamble to the Framework Decision).
This is to implement the principle of mutual recognition which the
Council has described as the cornerstone of judicial co-operation (recital (6)). The important underlying assumption of the
Framework Decision is that member states, sharing common values and recognising
common rights, can and should trust the integrity and fairness of each other's
judicial institutions.
[5] By
Article 34(2)(b) of the treaty on European Union, reflecting the law on
directives in Article 249 of the EC Treaty, framework decisions are
binding on member states as to the result to be achieved but leave to national
authorities the choice of form and methods. In its choice of form and methods a national
authority may not seek to frustrate or impede achievement of the purpose of the
decision, for that would impede the general duty of co-operation binding in
member states under article 10 of the EC Treaty. Thus while a national court may not interpret
a national law contra legem, it must 'do so as far as possible in the light of
the wording and purpose of the Framework Decision in order to attain the result
which it pursues and thus comply with Article 34(2)(b) EU' (Criminal
proceedings against Pupino (Case
C-105/03) [2006] QB 83, paras 43. 47)."
There are statements to similar effect in Office of the King's Prosecutor,
"This Framework Decision does not
prevent a
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
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
[4] By section 1
of the 2003 Act, Part 1 deals with extradition from the
[5] Section 3
makes provision for arrest under a certified Part 1 warrant. By section 4(3) a person arrested under
a Part 1 warrant must be brought as soon as practicable before the appropriate
judge, who by section 67(1)(b) is in Scotland the Sheriff of Lothian and
Borders. By section 191(1) the Lord
Advocate must, inter alia, conduct
any extradition proceedings in
"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.
[7] By section
21(1), if the sheriff is required to proceed under that section (by virtue of
section 11 or 20) he must decide whether the person's extradition would be
compatible within the Convention rights within the meaning of the Human Rights
Act 1998. By subsection (2), if the
sheriff decides the question in subsection (1) in the negative, he must order
the person's discharge, but, by subsection (3), if he decides that question in
the affirmative he must order the person to be extradited to the category 1
territory in which the warrant was issued.
As will be seen, the sheriff answered the questions in section 11(1)(c),
read with section 14, in the negative, the question in section 20(1) in the
negative, the question in section 20(3) in the affirmative and the question in
section 21(1) in the affirmative, and as a result complied with the obligation
to order the appellant to be extradited to France, being the category 1
territory in which the warrant was issued.
At the appeal before us it was submitted that the sheriff should have
answered the question in section 11(1)(c), read with section 14, in the affirmative,
and in any event should have answered the question in section 20(3) in the
negative, the question in section 20(5) in the negative and thus at either
stage should have ordered the appellant's discharge. Despite a ground of appeal to that effect, it
was not argued before us that he should have answered the question in section
21(1) in the negative. This appeal is
therefore concerned with what may be called "the passage of time issue" and
"the deliberate absence from trial issue".
"(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 chronology of
events
[9] Before the sheriff, and again before us,
the parties referred to an agreed chronology of events. This was further supplemented before us, in
response to questions from the bench. In
narrative form, the history is as follows.
[10] On
[11] The trial of
[12] At the trial
on
[13] On
[14] On
Procedural matters
[15] The appellant first appeared before
Sheriff Maciver at
[16] At the outset
the sheriff repelled an objection on behalf of the appellant to the form of the
certificate and thereafter answered in the affirmative the question posed in
section 10(2) of the 2003 Act, holding that the offence specified in the EAW
was an extradition offence, and in the negative all the questions posed in
section 11(1). In particular he held
that the appellant's extradition to
[17] The final
stage in the sheriff's determination of the extradition request related to the
question posed by section 21(1) of the 2003 Act, the human rights issue. At the first stage of the extradition
hearing, the appellant had been represented by counsel. By the final stage the appellant had decided
to dispense with his services. It seems
that the appellant was of the view that he should have been called to give
evidence on the deliberate absence from trial issue. At the final stage he was represented by a
solicitor, who called him, with the sheriff's consent, to give evidence on a
number of factual matters. As will be
seen, the factual matters included some which might have been relevant to
determination of the deliberate absence from trial issue, even though the sheriff
had already decided that issue. By
judgment issued on
[18] Before this
Court, the appellant was represented by different solicitors and counsel from
those who had represented him at the extradition hearing. Much of the incidental procedure before the
hearing of the appeal was taken up with an allegation that the appellant had
been defectively represented at the extradition hearing, under reference to
[19] In relation to
the first part of the motion, counsel referred to the fact that the sheriff had
decided the deliberate absence from a trial issue without hearing evidence from
the appellant, albeit that the appellant did give evidence at the final stage,
when the human rights issue was under consideration. Counsel did not suggest that the appellant
would give evidence on any material matter on which he had not given evidence
before the sheriff, but said that there would be a difference of emphasis. It is no doubt competent for this Court,
having regard to the terms of section 27(4) of the 2003 Act, to hear fresh
evidence; and this was done, for
example, in La Torre v The Republic of Italy [2007] EWHC 1370 (Admin). But it remains a matter for the
exercise of the Court's discretion.
Given that the sheriff had found the appellant to be a credible and
reliable witness on matters of fact, and had made findings in fact on the basis
of the appellant's evidence which he accepted, that these findings in fact
included findings relating to the circumstances in which the appellant did not
attend the trial, and that it was not suggested that there would be any
difference in substance if he gave evidence before us, we decided to refuse the
motion. It did not seem appropriate to
allow the appellant to give evidence simply to put a different emphasis on
questions of fact which had already been established; counsel could, if so
advised, do this in his submissions.
This left the motion to allow the affidavit to be received. Given that it was directed, as counsel
informed us, to the Anderson issue,
which was no longer live, and otherwise for reasons similar to those given for
refusing the first part of the motion, we refused this part of the motion
also. We did, however, indicate that
this Court could and would have regard to the findings in fact made in the
sheriff's judgment of
The deliberate absence
from trial issue
[20] Although the structure of the 2003 Act required
the sheriff to consider this issue after deciding the passage of time issue, I propose
to discuss it now because the events in question come earlier in the chronology
(although they are also to some extent relevant to the passage of time issue).
[21] The facts
found by the sheriff included the following.
As noted above, on
[22] On
[23] The oral
advice given to the appellant was confirmed in a letter from Messrs Levy &
McRae to him dated
"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 [
[24] The appellant
did not go to
[27] Counsel
founded on Deputy Public Prosecutor of
the Court of Appeal of Montpellier v Wade
[2006] EWHC 1909 (Admin). In that case,
an English lorry driver was acquitted of drugs charges after trial in his
presence in
"In my judgment, deliberately
absenting yourself does not necessarily have overtones of deliberately evading
justice but the word 'deliberately' does involve enquiring into the person's
state of mind and it connotes a decision taken in the light of all material
information. Here, Mr Wade was
materially misinformed. That is no fault
of the
[28] As counsel for
the Lord Advocate pointed out, the circumstances in the present case are very
different from those in Wade. The advice which the appellant received was,
it was agreed, as set out in the letter of
The passage of time
issue
[30] The effect of section 14 of the 2003
Act is that the appellant's extradition to France 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 become unlawfully at large.
Although there was some discussion before the sheriff as to whether the
starting point was an earlier date, before us the discussion proceeded on the
basis that the appellant was alleged to have become unlawfully at large on
4 November 2002 when he received intimation of the outcome of the trial on
2 May 2002. The latest date when
considering the passage of time is
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
[31] The sheriff
states in his report to us, after mentioning the relevant dates:
"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.
[32] Section 14
of the 2003 Act has no direct antecedent in the Framework Decision. There are provisions about time limits and
procedures for the decision to execute an EAW in Article 17, parts of
which are quoted above at paragraph [3].
These provisions are, however, principally concerned with the conduct of
the executing judicial authority and not that of the issuing judicial
authority. Rather, section 14 has
its origins in earlier
[33] In Union of India v Narang & Another [1978] AC 247 extradition of the two respondents
was sought in order to face criminal charges in
"[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."
[35] Kakis was applied by this Court in Triplis, Petitioner 1998 SLT 186, by which time the relevant statutory
provision was section 11(3) of the Extradition Act 1989. Return was sought of the petitioner to
"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
[36] Steblins v Government of Latvia [2006] EWHC 1272 (Admin) related to an
applicant whose extradition was sought in respect of an offence of burglary and
conspiracy to steal, an offence which he admitted. The request for extradition was made before
the 2003 Act came into force, so the Court had to consider the provisions of
section 11(3) of the 1989 Act.
Baker LJ, in a judgment with which Leveson J agreed, said at
paragraph 9 that one of the principles that was not in dispute was as
follows:
"Although unjust and oppressive are
terms which can overlap, the term 'unjust' is directed primarily to the risk of
prejudice to the accused and [sic: sc. in]
the conduct of the trial itself, whereas 'oppressive' is directed to hardship
to the accused from changes in his circumstances during the period to be taken
into consideration."
At paragraph 13 he agreed with the submission that each
case must be decided on its own facts, and that there was nothing on the
evidence in the case which went beyond "the routine disruption that inevitably
occurs when someone is extradited." At
paragraph 15 he said:
"The extradition provisions are based
on reciprocity. There is a strong public
interest, Community wide, that a person who has admitted committing an offence
in
[37] We were
referred to several cases decided under the 2003 Act. The first of these was
"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
...
15. We
have to consider all the circumstances of the case as I have outlined
them. They include the circumstance that
this is not merely an instance of a man who refuses to return to a country
where he is to face trial. This
applicant had already been tried and sentenced.
In effect he had escaped from custody.
He knew perfectly well that he had a substantial time yet to serve. It seems to me that that dimension of the
case weighs heavily against the applicant.
16. I
have considered all the factors which I have described. In the end the matter is one of judgment, if
not impression. Looking at the whole
case, I have to say that in my view oppression is not shown here, and I would
decline this application."
[38] In Falanga v Office of the State Prosecutor,
"[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."
[39] In La Torre, supra, Laws LJ, with whom Davis J agreed, said at paragraph 37:
"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."
[41] Reference was
also made, more briefly, to Colda v Government of Romania [2006] EWHC 1150 (Admin), in which the Court accepted a submission that it was the appellant
"who chose, as she was entitled to, to exhaust all the appeal routes open to
her and chose not to return to Romania when the legal proceedings were finally
concluded."
[43] I accept these
submissions. In the first place, having
regard to the authorities quoted above, especially Kakis, I do not regard this as a case in which the concept of
injustice is applicable. A person whose
extradition is sought in order to face trial may suffer injustice by reason of
delay, since the conduct of his defence may be prejudiced by delay, as is
commonly the case. This is not the case
here. Secondly, in applying the concept
of oppression when the extradition of the appellant is sought so that he may
serve his sentence, what has to be considered is whether this would cause
hardship to him as a result of changes in his circumstances that have occurred
during the period from November 2002 to November 2006. Time has of course passed, but there is no
basis in the evidence before us upon which it could be held that any of the
relevant authorities should be blamed for it.
No doubt the appellant hoped that the French authorities would not seek
his extradition to
[45] I agree with
Lord Clarke's additional remarks about this issue.
Conclusion
[46] For these
reasons, in my opinion the appeal should be dismissed, and I so move your
Lordships.
APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Nimmo Smith Lord Clarke Lord Marnoch |
[2008] HCJAC 11 Appeal No: XC232/07 OPINION OF LORD CLARKE in APPEAL UNDER SECTION 26(1) OF THE EXTRADITION ACT
2003 by ALISTAIR IAIN Appellant; against HER MAJESTY'S ADVOCATE Respondent. |
Act: E
Alt: A. D. R. Crawford, Advocate;
Crown Agent
[48] Whatever may
be the position in our domestic law, with regard to the application of our
common law of oppression to enforcement of warrants, as discussed in such cases
as Beglan 2002 SCCR923 and Waugh 2005 SLT 451, in the present
case, we are concerned with the application of statutory language, which in
substance, as your Lordship in the chair has indicated, has a long history in
the context of extradition law. That
context is important. In the case of Kakis v
"....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.
[49] In the present
case the discussion before us ultimately focused on the passage of time having,
perhaps, been significantly contributed to by inaction for a period of time by
the
"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.
[50] I have
already, in agreement with your Lordship in the chair, given reasons as to why
reliance on our domestic law of oppression is not appropriate in such
cases. It would be regrettable if in
this area of the law the approach to statutory language in an
APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Nimmo Smith Lord Clarke Lord Marnoch |
[2008] HCJAC 11 Appeal No: XC232/07 OPINION OF LORD MARNOCH in APPEAL by ALISTAIR IAIN Appellant; against HER MAJESTY'S ADVOCATE Respondent. |
Act: E
Alt: A. D. R. Crawford, Advocate;
Crown Agent
[52] As to the
second issue, however, I have perhaps encountered rather more difficulty than
have your Lordship and Lord Clarke. As
your Lordship has explained that issue concerns the proper construction and
application to the facts of this case of Section 14 of the Extradition Act
2003. Although that Section appears in
Part I of the Act which was intended, inter
alia, to implement the European Council Framework Decision of
[53] Almost all the
English authorities cited to us - and I accept, of course, that this is a UK
Statute which should, if at all possible, be construed consistently throughout
the UK - concerned what I shall term the "first situation" and, for the reasons
given above, I, for my part, find these to be of really no assistance in
dealing with the present case. The dicta to be found in them, of however
high authority, are pronounced in a context which seems to me quite different
from that which we have to consider. That
leaves only three decisions - all decisions of the
"We have to consider all the
circumstances of the case as I have outlined them. They include the circumstance that this is
not merely an instance of a man who refuses to return to a country where he is
to face trial. This applicant had
already been tried and sentenced. In
effect he escaped from custody. He knew
perfectly well that he had a substantial time yet to serve. It seems to me that that dimension of the
case weighs heavily against the applicant."
In the next case, in order of time, Colda v Romania [2006] EWHC 1150 (Admin), the only
authority relied on was Kakis but the
period of time involved was in any event fairly short, being only some
16 months. The third and last of
this trilogy was Falanga v Italy [2007] EWHC 268 (Admin) in which,
as it seems to me, the decision of the Court is rested wholly on what was said
by Lord Diplock in Kakis. For the reasons given above and by Lord
Justice Laws in
"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."
[58] In the result,
I agree with your Lordship in the Chair that this appeal should be refused.