European Arrest Warrant In Respect Of Stephen Maurice Goatley
| Jurisdiction | Scotland |
| Judge | Sheriff J. Douglas Allan |
| Court | Sheriff Court |
| Date | 28 March 2006 |
| Published date | 28 March 2006 |
SHERIFFDOM OF LOTHIAN AND BORDERS AT EDINBURGH
UNDER THE EXTRADITION ACT 2003
JUDGEMENT
by
JOHN DOUGLAS ALLAN, Sheriff of Lothian and Borders at Edinburgh
in
EUROPEAN ARREST WARRANT
in respect of
STEPHEN MAURICE GOATLEY,
(DOB: 10.8.51)
who sometime resided at 26a Gladstone Road,
Southampton, SO19 BGT
at present a prisoner in the Prison of Edinburgh
___________________________
Act: Dickson, Procurator Fiscal Depute, instructed by The Lord Advocate
Alt: Bovey, QC; Smart, Advocate, instructed by Hamilton Burns & Co, Glasgow
EDINBURGH, 28th March 2006.
The Sheriff, having resumed consideration of the cause and having, in terms of the Extradition Act, 2003, decided;
That Stephen Maurice Goatley, born 10 August 1951, is the person in respect of whom a Part 1 warrant has been issued by the Netherlands (section 10(1);
that the offence specified in the Part 1 warrant is an extradition offence (section 10(2));
that the extradition of Stephen Maurice Goatley to the Netherlands, being a category 1 territory, is not barred by reason of any of the circumstances set out in section 11(1)(a) to (h) of said Act (section 11(1));
since Stephen Maurice Goatley was alleged to be unlawfully at large after conviction of the extradition offence, that he was not convicted in his presence and that he deliberately absented himself from his trial (section 20(1) and (3));
that his extradition would be compatible with the Convention rights within the meaning of the Human Rights Act 1998 (section 21(1);
Therefore, in terms of section 21(3) of the Extradition Act, 2003, Orders Stephen Maurice Goatley to be extradited to the Netherlands, being the Category 1 territory in which the said European arrest warrant was issued.
"J Douglas Allan."
NOTE BY SHERIFF J DOUGLAS ALLAN
Validity of European Arrest Warrant
1. On 21 February 2006, before proceeding to the extradition hearing in respect of the above named, Mr Bovey sought to raise the validity of the European Arrest Warrant as a preliminary issue. His propositions were:
a. that the present warrant was signed by a prosecutor and not by judicial authority, did not comply with the requirements of section 2 (1) of the Extradition Act 2003 (the 2003 Act), and was therefore not a valid Part 1 warrant, and so Mr Goatley should be discharged;
b(i). the purpose of Part 1 of the 2003 Act was to implement the Council Framework Decision,
b(ii) .this required that a warrant be issued by a judicial authority,
b(iii). the present warrant was issued by a prosecutor and not by a judicial authority,
b(iv). and the warrant was accordingly invalid.
These were said to be two ways of putting the same point, one statutory and the other in terms of the Act implementing the Framework Decision.
2. I heard submissions from Mr Bovey on behalf of Mr Goatley and from Mr Dickson on behalf of the Lord Advocate. I reviewed and studied each of the submissions, and I studied the Judgments and Opinions in the cases to which I was referred.
In the result, I was persuaded by the submissions made by Mr Dickson and, where they were in conflict, I preferred them to those made by Mr Bovey.
3. I found particular assistance from the case of Office of the Kings Prosecutor, Brussels v Cando Armas 2005 3 WLR 1079, and the Opinions in that case of Lord Bingham and Lord Hope to which I was referred.
In the case of Regina (Guisto) v Governor of Brixton Prison [2004] 1 AC 101, I noted what was said by Lords Hope, Hutton and Rodger about the need for the courts to be vigilant to ensure that the extradition procedures were strictly observed. I also had regard to the decisions in the European Court cases of Pupino (Case No C-105/03) and Wells (Case No C-201/02).
4. I was persuaded that Mr Dickson was correct when he submitted that Mr Bovey's submission was fundamentally flawed in that what was important was a recognition by this court that extradition was based upon mutual recognition of the national legal systems of other member countries. In my judgment, this court did indeed have very limited jurisdiction to examine the national law of a member state. In so saying, I was conscious that my decision did involve some consideration of Dutch law. However, I did not believe that that was inconsistent with what I had just said. My consideration of Dutch law in this case was in the context of extradition arrangements and the involvement of the authority designated for the purposes of this Part of the 2003 Act made by the Secretary of State. Such consideration was also on the basis of mutual recognition and a high level of trust and confidence between fellow Member States.
5. I had regard to the Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States. The 14 paragraphs of the preamble were of considerable importance in my present consideration, as of course were the various Articles, perhaps in particular Article 6. I also kept in mind that Article 34(2) of The Treaty on European Union allowed the Council to adopt framework decisions for the purpose of approximation of the laws and regulations of the Member States; that Framework Decisions would be binding upon the Member States as to the result to be achieved but there was to be left to the national authorities the choice of form and methods.
Thus, the United Kingdom government implemented its obligations under the Framework Decision by means of the 2003 Act - that is, the national law of the United Kingdom; and the Dutch government was obliged, in terms of Article 6 of the Framework Decision, to implement its obligation by virtue of its national law.
6. In that context, the Crown Agent had been satisfied that Dutch national law permitted any public prosecutor in the Netherlands to act as an issuing judicial authority, which, for that country, had been defined as "the judicial authority of a Member State of the European Union authorised by national law to issue of European arrest warrant". That had been notified by the Netherlands to the Council of the European Union and it is included in practical information issued by the Kingdom of the Netherlands for the attention of the judicial authorities of the other Member States of the European Union. Mr Bovey submitted that Dutch law would have to be the subject of proof. However, for the purposes of deciding this preliminary point, I did not consider that proof was either necessary or appropriate. I considered this was partly a matter in terms of the 2003 Act and the Order by the Secretary of State for the Crown Agent, and partly a matter of mutual recognition and trust between Member States of the European Union.
In this context, I also had regard to the cases of Warren v Secretary of State for the Home Department [2005] EWHC 1177 Admin and Wright v Scottish Ministers 2005 SC 453.
7 The terms of section 2(1) and (2) of the 2003 Act came into play if the designated authority received a Part 1 warrant, which was an arrest warrant issued by a judicial authority of a category one territory (which Holland was).
The Crown Agent was the designated authority in Scotland, and he had issued a certificate in terms of section 2(7) which he could do if he believed that, in this case, the District Public Prosecutor's Office in Leeuwarden, which issued the Part 1 warrant, had the function of issuing arrest warrants in Holland. In terms of section 2 (8), the Crown Agent required to certify that that District Public Prosecutor's Office had the function of issuing arrest warrants in Holland.
That was what had been done for and on behalf of the Crown Agent in the certificate signed on 13 January 2006.
8.1. Section 3 of the Act, which applies if such a certificate had been issued by the Crown Agent, in respect of such a Part 1 warrant, allowed the arrest of the named person; while section 4 of the Act required the person to be given a copy of the warrant and brought before the appropriate judge (in Scotland, a Sheriff of Lothian and Borders) as soon as practicable.
8.2. In terms of section 7, if the judge decided on a balance of probabilities that the person arrested was the person in respect of whom the warrant was issued, then the judge must proceed under section 8. Section 8 required the judge to fix a date for the extradition hearing, to inform the person of the contents of the warrant, to give the person the required information about consent, and to remand the person in custody or on bail.
8.3. If the foregoing steps had all taken place, one arrived at the extradition hearing in terms of section 9 et seq, which was the hearing fixed for 3 February 2006, and on that date of new assigned for 21 February 2006.
9. It did seem to me that, in his submissions, Mr Bovey was ignoring the fact that, in gremio, the European Arrest Warrant in this case was recording a decision of and judgment by a court. Accordingly, although the Judicial Authority which issued the warrant was, in terms of Dutch law, the Chief Attorney General in the District Public Prosecutor's Office in Leeuwarden, the warrant also bore, ex facie, to proceed upon the decision of and judgment by a Dutch Court. Taking further the implementation of that court decision, led to the issue of a European arrest warrant by an issuing judicial authority which, in terms of Dutch law, fell to any public prosecutor in the Netherlands.
My decision
10. In these circumstances, I was satisfied that Mr Bovey's propositions were not well-founded and fell to be repelled. Further, I was satisfied that there was here a competently issued European Arrest warrant, which was competently before me and in respect of which the extradition hearing could proceed under section 10 of the 2003 Act.
Leave to Appeal
Submission on behalf of Mr Goatley
11. After I had intimated the foregoing decision, Mr Bovey sought leave to appeal it, using as a template section 174 of the Criminal Procedure (Scotland) Act 1995, which referred back to section 144 (4)....
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