Alistair Campbell V. Her Majesty's Advocate
| Jurisdiction | Scotland |
| Judge | Lord Marnoch,Lord Nimmo Smith,Lord Clarke |
| Judgment Date | 26 February 2008 |
| Neutral Citation | [2008] HCJAC 11 |
| Date | 26 February 2008 |
| Docket Number | XC232/07 |
| Court | High Court of Justiciary |
| Published date | 26 February 2008 |
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...
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