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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] HCJAC 11, [2008] ScotHC HCJAC_11, 2008 JC 265

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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 CAMPBELL

 

Appellant;

 

against

 

HER MAJESTY'S ADVOCATE

 

Respondent.

 

Act: E Targowski, QC, Caskie; Drummond Miller

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

 

26 February 2008

 

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 Edinburgh on 16 March 2007 that he should be extradited to France, which is a category 1 territory under the 2003 Act. On 2 May 2002 the appellant had been convicted in his absence by a court in Boulogne-sur-Mer in respect of his complicity in the transport, importation and possession of drugs and banned merchandise. He was sentenced, also in his absence, to a period of nine years' imprisonment. He did not appeal against either conviction or sentence. The Sheriff pronounced his order under section 21 of the 2003 Act at the conclusion of an extradition hearing upon a European arrest warrant ("EAW") (referred to in the 2003 Act as a "Part 1 warrant") presented by the relevant French authority to Edinburgh Sheriff Court under Part 1 of the Act. Recognition of the EAW was sought so that the appellant might be surrendered to the French authorities to serve the sentence imposed on him.

 

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, Brussels v Cando Armas [2006] 2 AC 1 and In Re Halili (application for a writ of habeas corpus) [2008] UKHL 3.

[3] In addition to the recitals referred to by Lord Bingham, we were asked in the course of the hearing to consider the second paragraph of recital (12), which provides:

"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."

[4] By section 1 of the 2003 Act, Part 1 deals with extradition from the United Kingdom to the territories designated for the purposes of that Part, referred to as category 1 Territories. Section 2 makes provision for a Part 1 warrant and certificate. By subsection (1) the section applies if the designated authority receives a Part 1 warrant in respect of a person. By subsection (9) the designated authority is the authority designated for the purposes of Part 1 by order made by the Secretary of State. By the Extradition Act 2003 (Part 1 Designated Authorities) Order 2003 (S.I. 2003, No 3109), made in exercise of the powers conferred by section 2(9) and (10), the Crown Agent of the Crown Office was designated for the purposes of Part 1 of the Act. The National Criminal Intelligence Service (NCIS) (now subsumed within the Serious Organised Crime Agency (SOCA)) was similarly designated. By section 2(2) a Part 1 warrant is an arrest warrant which is issued by a judicial authority of a category 1 territory which contains certain statements, expressed in the alternative. The alternative which is relevant for present purposes is that provided by subsection (2)(b), viz. the statement referred to in subsection (5) and the information referred to in sub-section (6). By subsection (5) the statement is one that (a) the person in respect of whom the Part 1 warrant is issued is alleged to be unlawfully at large after conviction 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. By subsection (6), the information includes (a) particulars of the person's identity, (b) particulars of the conviction and (c) particulars of the sentence imposed under the law of the category 1 territory in respect of the offence, if the person has been sentenced for the offence. By section 2(7) the designated authority, ie. the Crown Agent, may issue a certificate under section 2 if he believes that the authority which issued the Part 1 warrant has the function of issuing arrest warrants in the category 1 territory.

[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 Scotland. Sections 7 and 8 relate to the initial hearing before the sheriff. Sections 9 to 21 relate to the extradition hearing, which by section 68(1) is the hearing at which the sheriff is to decide whether the person in respect of whom the Part 1 warrant was issued is to be extradited to a category 1 territory in which it was issued. By section 9(2), at the extradition hearing the sheriff has the same powers (as may be) as if the proceedings were summary proceedings in respect of an offence alleged to have been committed by the person in respect of whom the Part 1 warrant was issued. By section 10(2) the sheriff must decide whether the offence specified in the Part 1 warrant is an extradition offence. If so, by subsection (4) he must proceed under section 11(1), which raises questions relating to bars to extradition, as set out in sections 12 to 19. In terms of section 11(1)(c), extradition may be barred by reason of "the passage of time". Further provision about the passage of time is made by section 14, which provides:

"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".

[8] Subsections (1) and (3) of section 26 of the 2003 Act provide that if the sheriff orders a person's extradition under Part 1, the person may appeal to this Court against the order, and that an appeal under section 26 may be brought on a question of law or fact. Section 27(1) enables this Court, on an appeal under section 26, either to allow the appeal or to dismiss the appeal. Section 27 continues:

"(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 20 May 2000 a lorry driver, Jeffrey Logan, was arrested near Calais when 117 kilograms of cocaine was found in his trailer. Logan subsequently implicated the appellant in the importation of this substance. On 27 March 2001 the appellant, whose home address is in Killin, Perthshire, was interviewed in Scotland by a French police officer and two United Kingdom customs officials. On 16 May 2001 a summons was served on the appellant in Scotland to attend for an interview by a judge in Boulogne-sur-Mer. The appellant did not attend.

[11] The trial of Logan took place, in his presence, on 18 September 2001. He was convicted and sentenced to imprisonment for seven years. On 18 October 2001 a summons was issued citing the appellant for trial in Boulogne-sur-Mer on 2 May 2002. This summons was served personally on the appellant in Scotland on 2 December 2001. Thereafter the appellant sought legal advice in Scotland and France; I discuss this below in the context of the deliberate absence from trial issue.

[12] At the trial on 2 May 2002 the appellant was not present. He was convicted in his absence and sentenced to imprisonment for nine years. This decision was intimated to the appellant personally on 4 November 2002 and was acknowledged by him. The notification contained intimation that he had ten days within which to appeal. He did not appeal and took no further steps in relation to the proceedings in France, whether by obtaining legal advice in Scotland or in France or otherwise.

[13] On 15 October 2003 an Interpol Difusion notice for the arrest of the appellant was received by NCIS, under the then current procedure. This procedure was overtaken by the transposition of the Framework Decision into United Kingdom national law by the 2003 Act, which was brought into force on 1 January 2004 by The Extradition Act 2003 (Commencement and Savings) Order 2003 (S.I. 2003 No 3103). We are informed that the equivalent French legislation came into force on 11 March 2004. On 15 September 2004 the first EAW was issued by the appropriate French authority for the arrest of the appellant. This was sent to NCIS, who, it appears, receive all requests for extradition from any jurisdiction in the United Kingdom. NCIS certified it on 4 January 2005. The appellant was arrested on this EAW by Tayside Police on 15 November 2005. On 16 November 2005, however, he was released without being brought before the sheriff. It had been realised that the first EAW was defective in that it had been certified under Part 1 of the 2003 Act by NCIS, who had no authority to certify warrants for execution in Scotland.

[14] On 17 November 2005 a second EAW was issued by the appropriate French authority. This cancelled and replaced the first EAW. It was sent to NCIS on 18 November 2005, and was passed by them (as the first EAW should have been), following communication with the French authorities, to the International Co-Operation Unit (ICU) of the Crown Office in Scotland on 9 January 2006. Thereafter the second EAW was considered in the ICU and was finally certified on 3 August 2006. It was issued by the ICU to Tayside Police for execution on 7 September 2006. After communication with the appellant's then solicitor, the appellant attended voluntarily at Edinburgh Sheriff Court on 3 November 2006, when the second EAW and certificate were served on him.

 

Procedural matters
[15]
The appellant first appeared before Sheriff Maciver at Edinburgh Sheriff Court on 3 November 2006. The sheriff answered in the affirmative the question posed in section 7(2) of the 2003 Act, holding that the appellant was the person in respect of whom the EAW was issued, and gave the appellant the necessary information about consent to his extradition. The appellant did not consent and was allowed bail pending the extradition hearing. After an adjournment to allow time for preparation, the extradition hearing commenced before Sheriff Stoddart on 19 December 2006.

[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 France was not barred by reason of the passage of time. The sheriff then moved on to a consideration of section 20 of the 2003 Act. It was accepted that the appellant did not attend at his trial, so the sheriff answered in the negative the question posed in section 20(1). He then considered the issue raised by section 20(3), namely whether the appellant deliberately absented himself from his trial. After hearing argument, he decided that this was a question of fact, and that in terms of section 206 of the 2003 Act it was for the Lord Advocate to prove beyond reasonable doubt that the absence of the appellant from his trial on 2 May 2002 was deliberate. No evidence was led, and the sheriff decided this issue on the basis of submissions, in the course of which reference was made to various documents. By a judgment delivered on 12 January 2007 the sheriff answered in the affirmative the question posed in section 20(3).

[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 16 March 2007, the sheriff answered in the affirmative the question posed in section 21(1) of the 2003 Act and ordered that the appellant be extradited to France to serve his sentence.

[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 Anderson v HM Advocate 1996 JC 29. In the written submissions which the appellant's representatives were ordered to lodge it was alleged that because of this defective representation there had been a "miscarriage of justice" before the sheriff: an expression derived from section 106(3) of the Criminal Procedure (Scotland) Act 1995. But when it was pointed out, at the start of the hearing before us, that in terms of section 26(3) of the 2003 Act an appeal under that section may be brought on a question of law or fact, and the manner in which the conditions in subsections (3) and (4) are expressed entitles this Court to re-examine the evidence led before the sheriff, and, where appropriate, to hear fresh evidence, senior counsel for the appellant departed from the Anderson approach. Instead, he moved us either to allow the appellant to give evidence before us, or to allow an affidavit by the appellant to be received.

[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 16 March 2007, on the human rights issue, in considering the appeal against the decision contained in his judgment of 12 January 2007 about the deliberate absence from trial issue.

 

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 27 March 2001, the appellant was interviewed in Scotland by a French police officer and two United Kingdom customs officials. The appellant understood that he would be asked to go to France to be interviewed by an examining magistrate, and on 16 May 2001 a summons was served on him to attend for such an interview on 22 May 2001. On receipt of this summons, the appellant consulted a partner in a firm of solicitors in Nairn. By letter dated 18 May 2001 this partner gave advice, based on his understanding of the legal position in France, but also advised the appellant to obtain further legal advice from a solicitor more knowledgeable than he was. He suggested that the appellant contact Messrs Levy & McRae, Solicitors, Glasgow. The appellant decided not to go to France for interview on 22 May 2001 and did not do so. Thereafter he contacted a partner in Messrs Levy & McRae. He also learned from newspapers that Logan had been convicted and had received a sentence of seven years' imprisonment.

[22] On 2 December 2001 the appellant was served with a summons requiring him to attend for trial on 2 May 2002. The summons was in French, with an English translation. The summons informed him of the nature of the offences with which he was charged, the date and place of the trial and his right to attend in person or to be represented by a lawyer, with the possibility of representation free of charge. On receipt of this summons, the appellant contacted Messrs Levy & McRae, and attended a consultation at their offices in late April 2002. During the consultation a telephone conference call was conducted with a lawyer in France. The appellant was advised orally that if he did not attend his trial he would be convicted in his absence and sentenced to imprisonment. He was also advised that if he did attend his trial, the same consequences would follow. He was told that any extradition proceedings (under the law as it then stood) would not be straightforward. The appellant formed the view that extradition was unlikely and hoped that no-one in France would pursue the matter.

[23] The oral advice given to the appellant was confirmed in a letter from Messrs Levy & McRae to him dated 1 May 2002. This letter contained the following passages:

"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."

[24] The appellant did not go to France for the trial on 2 May 2002, or appeal after receipt on 4 November 2002 of formal notification of the outcome of the trial. He took no further steps in relation to the proceedings France, whether by obtaining legal advice in Scotland or France or otherwise.

[25] The 2003 Act does not offer an interpretation of the word "deliberately" in section 20(3). In its ordinary usage, the word connotes that the conduct in question is intentional and follows prior consideration. This in turn connotes possession of relevant information. In the case of a decision whether or not to attend for a criminal trial, the relevant information may be taken to extend to the nature of the charges, and the date and place of the trial: cf. Article 5 of the Framework Decision, quoted at paragraph [3] above. The relevant information might also be taken as extending to the possible consequences of a failure to attend for trial.

[26] Senior counsel for the appellant went further than this. He submitted that, for a person deliberately to absent himself from trial, there had to be a fully informed decision whether to absent himself or not. If the decision was taken on advice which was probably wrong, then it was tainted. The advice which the appellant had received not to attend the trial was bad advice. The appellant's position was that he was innocent of the charges against him, and the correct advice should have been to attend the trial to defend himself.

[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 Perpignan. At a later date, at a hearing in his absence, the Court of Appeal in Montpellier overturned the acquittal and directed a conviction. The French authorities subsequently issued an EAW for his surrender by the English court. In an appeal against the decision of the senior district judge not to order his extradition, the High Court characterised the proceedings in Montpellier as a rehearing and therefore the "trial" at which a conviction was substituted. The Court went on to consider whether he had deliberately absented himself from this trial. The senior district judge, who had heard evidence about this issue, held that the appellant was not aware of the nature of the Montpellier hearing, which constituted a rehearing at which fresh evidence might be heard, and that he was not aware of the consequences of not attending. Moreover, he was given written advice by his French lawyer which included the statement "you can ignore this appeal with all his [sic: sc. its] consequences." In the course of his judgment, with which Aikens J. agreed, May LJ said at paragraph 15:

"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 French Court but it does, in my judgment, mean that he did not deliberately absent himself within the terms of section 20(3) of the 2003 Act."

[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 1 May 2002. It may be taken from this letter that the French lawyer had had an opportunity of considering "the evidence apparently available". Reference is made to Logan's evidence, and there may have been other evidence implicating the appellant. The French lawyer's advice, based on this consideration, was that, if the appellant attended the trial, he "would be condemned", that is to say convicted, and would be immediately taken to prison. This represented advice on the prospects of success if the appellant faced trial, and there is nothing before us which would entitle us to reach the view that it was other than good advice. The advice also was that the appellant should not attend trial, in which event he would be convicted in his absence; but it was "then for the French authorities to proceed with extradition proceedings", under the procedures in force before the 2003 Act came into effect. The substance of this advice therefore was that the appellant's best prospect of avoiding imprisonment would be to remain in the United Kingdom and hope that he would not be extradited. Indeed, as mentioned above, the sheriff found in fact, having heard his evidence, that the appellant formed the view that extradition was unlikely and hoped that no-one in France would pursue the matter. As counsel for the Lord Advocate put it, the appellant simply chose to take his chance. There is no possible basis for holding that he was materially misinformed: on the contrary he and his advisers had sufficient information to enable him to take an informed decision as to whether to attend the trial. He decided, no doubt on advice, not to attend. In doing so he was fully aware of the possible consequences.

[29] Having regard to the foregoing considerations, I am fully satisfied that the appellant had deliberately absented himself from his trial, and I can see no good reason to hold that the sheriff ought to have decided the deliberate absence from trial issue differently.

 

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 3 November 2006, when the second EAW and certificate were served on the appellant, and I proceed on this basis, though there is a case to be made for the earlier date of 15 November 2005, when the appellant was arrested on the first EAW. The history of events is as set out in the agreed chronology (paragraphs [9] to [14] above) and the sheriff's findings in fact (paragraphs [21] to [24] above), and I see no need to

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.

[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 United Kingdom extradition statutes: see section 10 of the Fugitive Offenders Act 1881, sections 8(3) and 9(3) of the Fugitive Offenders Act 1967 and sections 11(3) and 12(2) of the Extradition Act 1989. In the case of extradition to a category 2 Territory, the relevant provision is now section 82 of the 2003 Act, which is otherwise in the same terms as those of section 14; and I conclude that Parliament intended that in considering a passage of time issue the same considerations should apply to extradition to category 1 territories as apply to extradition to category 2 territories. All these Acts are or were United Kingdom statutes, and it is clearly desirable that there should be uniformity of construction and application of the relevant statutory provisions in the various jurisdictions of the United Kingdom, so as to produce similar results in cases where the facts are similar. It seems to me to be inappropriate to approach the construction and application of section 14 solely or mainly from the standpoint of our domestic law. The international dimension is inherent in extradition law, and concepts of injustice and oppression must be considered in that context. It is therefore appropriate to consider various decisions to which we were referred, which appear to me to give valuable guidance on the proper approach. I shall refer to them in chronological order.

[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 India. The House of Lords considered the provisions of section 8(3) of the Fugitive Offenders Act 1967, which replaced those of section 10 of the Fugitive Offenders Act 1881. In considering how the Court should undertake the task of deciding whether it would be unjust or oppressive to return a fugitive, Lord Keith of Kinkel said at page 293:

"[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."

[34] In Kakis v Government of the Republic of Cyprus [1978] 1 WLR 779 the House of Lords had again to consider the provisions of section 8(3) of the 1967 Act, in a case where extradition of the appellant was sought to stand trial in Cyprus on a charge of murder. In a passage at pages 782-783, much quoted subsequently, Lord Diplock said:

"'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 Greece to stand trial on charges of theft by housebreaking at commercial premises. In delivering the Opinion of the Court, Lord Justice General Rodger said at page 188:

"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."

[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 Latvia should be dealt with in that country for it, just as someone who has burgled commercial premises in the United Kingdom and fled to Latvia should be returned to this country to be dealt with here. I would therefore refuse the application."

[37] We were referred to several cases decided under the 2003 Act. The first of these was Austins v The Government of Spain [2004] EWHC 2693 (Admin). In that case the applicant had been convicted and sentenced in Spain for a drugs offence. While he was serving his sentence, he was allowed a period of leave from the institution where he was detained, and absconded, returning to the United Kingdom in January 1995. He was arrested on 12 February 2004. Laws LJ, in a judgment with which Hallett J agreed, said:

"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. 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, Court of Novara, Italy [2007] EWHC 268 (Admin) an EAW was issued following the appellant's conviction in his absence of offences of dishonesty. The appellant had absconded from custody while serving a previous sentence. The Court found that he deliberately absented himself from his trial in full knowledge, given his experience of the Criminal Justice system in Italy, that he was waiving his right to appear and defend himself. On the passage of time issue, Stanley Burnton J, with whom Maurice Kay LJ agreed, said at paragraph 23:

"[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."

[40] In Goodyer, Gomes v Government of Trinidad and Tobago [2007] EWHC 2012 (Admin) Sedley LJ, in delivering the Judgment of the Court, said at paragraph 19, in addressing submissions about delay caused by the fault of an accused person and delay caused by the fault of the requesting state:

"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."

[42] On the basis of these authorities, counsel for the Lord Advocate submitted that, when considering the passage of time issue, the focus should be on the effect that 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. Accordingly, even the passage of a substantial period of time will not be sufficient. Just as the passage of time is not of itself sufficient, far less should the focus be on the reasons for it. The Court should not direct its attention to the question whether the reasons are culpable or simply inevitable. 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: Austins, supra. In so far as questions of culpability may be relevant, this Court would require to have an evidential basis for concluding that there was in fact culpability. In coming to such a view, this Court ought not to view the question of the passage of time on the basis of experience of the Scottish system, where the question is whether more than a reasonable time has passed. What might be described as culpable passage of time may well be associated with other factors, such as a change in circumstances. In that event the Court might well be able to conclude that there is injustice or oppression: La Torre, supra, at para. 37. In the present case the appellant did not say that the passage of time had been or was culpable. The argument was that there had been a substantial delay, and the appellant had had a sense of security during that period.

[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 France, and that hope may have increased as time has gone by, but he has never had reason to believe that the French authorities had dropped the matter. The information that we were given about his personal circumstances amounts to saying that he has continued to live the same life as he has always done: there is no suggestion that he has materially altered his position in the belief that the French authorities would not seek his extradition. In so far as the prospect of extradition may have been hanging over him, it could be said that it has always been open to him to surrender voluntarily to the French authorities, to serve his sentence and to get the whole affair over and done with. To be required to serve a long sentence of imprisonment is no doubt a hardship for the prisoner and for his family; but that is inherent in such a punishment. As was pointed out in Triplis, these or similar circumstances could apply in many cases, and they do not in themselves make it oppressive that the appellant should have to go to France to serve his sentence. It is therefore difficult to see what prejudice he could be said to suffer.

[44] Having regard to the objectives of the Framework Decision and Part 1 of the 2003 Act, this Court should in my opinion place great weight on considerations of mutuality and international co-operation and should not lightly refuse to order extradition: see Dabas, supra. In the present case, the appellant has been convicted of a very serious drugs offence and has been sentenced to imprisonment accordingly. I am not persuaded, exercising my judgment as best I can, that the effect of the passage of time on him, in his individual circumstances, is such that it could properly be regarded as oppressive to extradite him. I do not agree that the sheriff ought to have decided the passage of time issue at the extradition hearing differently.

[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 CAMPBELL

 

Appellant;

 

against

 

HER MAJESTY'S ADVOCATE

Respondent.

 

 

Act: E Targowski, QC, Caskie; Drummond Miller

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

 

19 February 2008

[47] I respectfully agree with your Lordship in the chair, for the reasons given by your Lordship, that this appeal should be dismissed. I would merely wish to add the following observations in relation to the passage of time issue.

[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 Republic of Cyprus [1978] 1 WLR779 the relevant provision was section 8(3)(b) of the Fugitive Offenders Act 1967 which was to the following effect:

"....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 United Kingdom authorities. As your Lordship in the chair has commented there was simply no evidence before this Court which would entitle us to reach the view that the delay was, in any sense, blameworthy, even if that were, as Lord Edmund-Davies suggested in the case of Kakis at page 785, a relevant, though not of itself, conclusive factor. In that connection it is noteworthy that in the case of Steblins v Government of Latvia [2007] EWHC 1271 (Admin) the position apparently was that the Crown Prosecution Service in England had lost the relevant file and matters had been left in abeyance for some 41/2 years. In that situation Scott Baker L.J., at para.14 said:

"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 United Kingdom statute, giving effect to international obligations, was to be different from that of the Courts in England. There is, in my judgement, no good reason for there being any such difference of approach. It should, in any event, be noted that the two Scots cases dealing with our common law of oppression in relation to execution of warrants, which were referred to in the present case, namely Waugh and Beglan, are cases where the warrant was one issued after the individual in question had submitted himself to trial and had been convicted. Those cases are, for that reason, in my opinion, in any event, clearly distinguishable from the position in the present case.

 


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 CAMPBELL

 

Appellant;

 

against

 

HER MAJESTY'S ADVOCATE

Respondent.

 

 

Act: E Targowski, QC, Caskie; Drummond Miller

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

 

19 February 2008

[51] I respectfully agree with everything your Lordship in the chair has said regarding the first issue raised in this appeal and there is nothing I wish to add to your Lordship's observations on that matter.

[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 13 June 2002, its provisions do not emanate from that Decision but are rather a re-enactment of provisions which appeared in earlier UK legislation. While, therefore, I readily accept that Part I of the Act should in general be given a purposive construction so as to further the "introduction of a new simplified system of surrender of sentenced or suspected persons for the purposes of execution or prosecution of criminal offences ...." (vide the preamble to the Framework Decision), I have some difficulty in seeing how the construction of this particular Section can be affected in that way. It is not suggested that its re-enactment was inimical to the purposes of the Framework Decision or that it is in some way incompatible with it. Indeed, having regard to the terms of para. 1 of Article 17 of the Framework Decision which states that "A European arrest warrant shall be dealt with and executed as a matter of urgency", I consider it readily understandable that a lapse of time prior to the execution of a Court warrant should in certain circumstances continue to be seen as "oppressive". This brings me to the peculiarity that Section 14 of the 2003 Act in my opinion seeks to deal simultaneously with two entirely different situations, viz. that obtaining pre-trial and that obtaining post-trial or in other circumstances where the person in question is "unlawfully at large". The first of these is by far the more familiar and essentially involves consideration of whether by virtue of the passage of time a person will be unable to get a fair trial. The second, however, involves, quite simply, the effect of the passage of time between the grant and execution of a Court warrant where the only remaining objective is the apprehension of the offender.

[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 Divisional Court - where the issue was the same as that arising in the present case, viz. the effect of a lapse of time prior to execution of a Court warrant for apprehension. In the first of these, Austins v Spain [2004] EWHC 2693 (Admin), the applicant was unlawfully at large for nine years. Lord Justice Laws, in delivering the Opinion of the Court, distinguished, correctly in my view, the decision and reasoning of the House of Lords in the earlier case of Kakis v Cyprus [1978] 1 WLR 779 (a "first situation" case) and at para. 15 summed up the position in these terms,

"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 Austins I must respectfully take leave to doubt the validity of that approach. And, with all due respect to Lord Justice Laws' reasoning in Austins, while I can see that persons in the position of the appellant do not readily enlist sympathy, I do not consider that they are on that account wholly beyond the reach of oppression.

[54] As it seems to me, therefore, in the tract of English authority cited to us, there has been little analysis of the distinction between the two situations I have described and, in so far as Lord Justice Laws did draw such a distinction, his reasoning can hardly be regarded as either exhaustive or conclusive.

[55] Against that background I make no apology for having recourse to Scottish authority on the meaning of "oppression" in the present context, as most recently exemplified by the decision of the Appeal Court in Waugh v HM Advocate 2005 S.L.T. 451. In that case the Court suspended a warrant for the apprehension of the Petitioner in regard to an outstanding sentence of five months' imprisonment where there had been an unexplained delay of 12 months during which the warrant had not been executed. The basis of the Court's decision was oppression and the Crown did not see fit to oppose the application. In the course of delivering the Opinion of the Court the Lord Justice Clerk, at para. [17], said this:-

"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."

[56] In my opinion, standing the lack of clear or consistent authority elsewhere, there is no reason why the approach of the Scottish Courts to this matter should not be taken as a valuable guide to the meaning of oppression for purposes of Section 14 of the 2003 Act. It follows that a change of circumstances on the part of the accused, while obviously relevant, is not, in my view, a sine qua non of relief. Much will plainly depend on the facts of each case, not least, as I see it, on whether the delay or passage of time is such as to engender in the mind of the wrongdoer the belief that the State pursuing him has abandoned its quest.

[57] It remains only to apply the foregoing reasoning to the circumstances of the present appellant. In that connection, I am very conscious that following notification of the French Court's decision a period of three years passed without anything happening so far as the appellant was concerned; and that, I suppose, in a situation where he was entitled to think that matters would be progressed as a matter of urgency. On the other hand, the circumstances of the conviction and sentence following, as they did, on the appellant's denying the Court the courtesy of his attendance, taken along with the gravity of the offence and the length of the sentence imposed are factors which clearly militate against any expectation that France would abandon enforcement of the Court's decision. With these competing considerations in mind, while I regard the issue raised as narrow, I do not, on balance, consider that oppression has been made out.

[58] In the result, I agree with your Lordship in the Chair that this appeal should be refused.

 


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