Extradition Request By The Republic Of France In Respect Of Stephen Welsh Residing At Wester Bankhead Farm, Annet Road, Head Of Muir, Denny
| Jurisdiction | Scotland |
| Judge | Sheriff Charles N. Stoddart |
| Court | Sheriff Court |
| Date | 15 February 2008 |
| Published date | 12 March 2008 |
SHERIFFDOM of LOTHIAN and BORDERS at EDINBURGH
JUDGEMENT
by
CHARLES NORMAN STODDART,
Sheriff of Lothian and Borders
at Edinburgh
in
EXTRADITION REQUEST
by
THE REPUBLIC OF FRANCE
in respect of
STEPHEN WELSH (d.o.b. 22.11.59), residing at Wester Bankhead Farm, Annet Road, Head of Muir, Denny, FK5 5LL.
ACCUSED
For the Lord Advocate: Mrs E Forbes, Crown Office International Co-operation Unit.
For the Accused: Mr G Carroll, Advocate, instructed by Liam O'Donnell
& Co, Solicitors, Glasgow.
EDINBURGH, 15 February 2008.
The Sheriff, having resumed consideration, DETERMINES that the extradition of the accused to the Republic of France is barred by the passage of time; ANSWERS in the AFFIRMATIVE the question posed in section 11(1) of the Extradition Act 2003.
NOTE
Introduction
[1] In this case the Republic of France seeks the extradition of the accused under the provisions of Part I of the Extradition Act 2003 ("the 2003 Act"). France is a "category 1 territory" for the purposes of Part 1. The request follows the issue on 25 April 2006 of a European Arrest Warrant ("EAW") by the Court of Appeal in Douai in respect of drugs offences allegedly committed by the accused, contrary to Articles 222-37 and 222-36 of the French Penal Code.
[2] The accused appeared for the first time in this court on 2 April 2007 and declined to consent to extradition. An extradition hearing was originally set for 13 April 2007, but this was successively adjourned as the accused was then subject to unrelated domestic proceedings. These were ultimately concluded and accordingly an extradition hearing took place before me on 11 January 2008. At the outset, I repelled an objection to the form of the warrant and to certain of the particulars contained therein. It was then conceded on behalf of the accused that the offences for which extradition was sought were "extradition offences". Accordingly, I answered in the affirmative the question posed in section 10 of the 2003 Act and moved to a consideration of section 11.
[3] Counsel for the accused submitted in terms of section 11(1) (c) that the proposed extradition was barred by the passage of time. He accepted that the relative test was to be found in section 14, which provides:
"14. A person's extradition to a category 1 territory is barred by 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)."
[4] It was common ground that the accused had been in a car in which was stopped on a motorway near Calais on 22 October 1991. Two other persons William McNicoll and John Bonner were also in the car; the accused had been driving, while McNicoll and Bonner were passengers. McNicoll was found to be in possession of 10,000 doses of LSD. All three were arrested and put on trial on 2 June 1992 on relative drugs charges; after trial McNicoll was convicted, but both the accused and Bonner were acquitted. The French prosecutor thereupon appealed against the acquittal of the accused, who had by that time returned to Scotland; a hearing was set for the Appeal Court in Douai, but the accused failed to appear.
[5] Counsel referred to the chronology of events produced on behalf of the Lord Advocate, which disclosed (as did the information provided in support of the EAW) that the accused had been made the subject of a domestic arrest warrant issued by the Appeal Court in Douai on 31 March 1993. Counsel observed that a period of 14 years had elapsed between the grant of the domestic warrant and the arrest of the accused in Scotland on the EAW on 2 April 2007. It also appeared from the chronology that the decision of the Court of Appeal had been served by post on the accused at his address in Cumbernauld on 13 July 1993 in terms of section 1 of the Criminal Justice (International Co-operation) Act 1990.
[6] Between 1993 and 1995 the French authorities had apparently searched for the accused, but only within France. At no stage until 2006 had any attempt been made to extradite the accused to France from the United Kingdom, either under the provisions of the Extradition Act 1989 or the 2003 Act. There had also been a delay between March and July 2006, during which period the Crown Office had been seeking to obtain the EAW from the Serious Organised Crime Agency (SOCA). The existence of this warrant had appeared on the police national computer following the arrest of the accused by Central Scotland police in respect of a domestic matter on or about 20 February 2006. On the basis of all of this, Counsel suggested that there had been a long period of inactivity by the French authorities. He thereupon invited me to hear evidence from the accused and his common law wife Maureen Reid as to the circumstances of the accused's non-attendance at the Appeal Court in Douai in March 1993 and also as to his personal circumstances. For the Lord Advocate, there was no objection to this course of action.
The evidence
[7] The accused told the court that he had lived at his present address in Denny since 1999 but between 1993 and 1999 he had been living at 104 Old Road, Cumbernauld, which was the address given on the EAW. He confirmed that he had been arrested in France and charged by the French Police along with McNicoll and Bonner. He had been kept in custody in France for seven months pending trial, but was ultimately acquitted along with Bonner, while McNicoll was convicted. Following the trial he had returned to Scotland, along with his common law wife who had attended the proceedings. On his return, he had received a call from the lawyer who had represented him at his trial to tell him that the Prosecutor had appealed against his acquittal; and he was advised of the date of the appeal hearing at the Palais de Justice in Douai.
[8] The accused then said that he had left Glasgow by overnight train intending to travel to Douai to attend the appeal hearing but that when he had arrived in London, he had been directed to the wrong London station for cross-channel connections. He had boarded a train at Liverpool Street Station and had only realised his mistake when nearing Ipswich. He said he returned to London, realised he was now some four hours late, but instead of trying to reach Douai, he had simply returned to Scotland. On his return, he had contacted his French lawyer who advised that the Prosecutor's appeal had been allowed in his absence; that he had been convicted; and that a sentence of seven years' imprisonment had been imposed, along with other non-custodial penalties. He said he was told that nothing else could be done and that the French authorities might seek his arrest. He also said that he had been advised there was no possibility of a retrial.
[9] The accused then confirmed he had received the letter dated 13 July 1993 from the Crown Office under the provisions of the Crime (International Co-operation) Act 1990, a copy of which letter was produced. On its receipt, he sought legal advice from a firm of solicitors in Cumbernauld and the opinion of Counsel was obtained. The accused also made his own researches but ultimately came to the view that he would not be extradited. Since then, he had had no contact with anyone in or from France.
[10] At to his personal circumstances, the accused said that in 1993 he had started a new stain-glass business in Scotland and in 1995 had opened new premises. He had gradually re-established himself after the collapse of an earlier business while he had been in prison in France awaiting trial. In 1999 he had bought the farm where he now lived; he had a large mortgage; and he had never been a fugitive from justice. He had always lived at the addresses he had given, although over the fourteen year period since 1993 he had been in custody in Scotland on two occasions.
[11] Finally in examination in chief, the accused said that he had first become aware of the existence of the EAW in March 2007; he now understood that if an extradition order was made, he would face a retrial in France. In that event he would want to call both McNicoll and Bonner as defence witnesses but he said he could not now trace either of them. He had attempted to trace Bonner by speaking to Bonner's ex-wife, but she had told him that Bonner had left Scotland twelve years ago and was believed to be in Thailand. She did not know what had happened to McNicoll. The accused regarded both as significant defence witnesses.
[12] In cross-examination, the accused accepted that he had given evidence at his own trial, as had McNicoll and Bonner, along with customs officials. His business partner William Marshall also gave evidence on his behalf. The accused claimed he did not know of any other way of contacting Bonner or McNicoll and had not tried any other method, for example by asking his solicitor to trace them. He currently lived with his partner and both his children aged 21 and 18 years. His partner was at college; he now owned two businesses, both of which would fold if he had to return to France.
[13] In re-examination the accused indicated he could not really remember much of Marshall's evidence at his trial, but thought it had been to the effect that he (the accused) had only left Scotland briefly at the time of his visit to France in 1991. He also accepted having given his solicitor in Cumbernauld copies of all the documents he had used in his abortive attempt to get to the Appeal Court in Douai in 1993. He did not know if the solicitors still had these documents.
[14] The only other witness called by the accused was his partner Maureen Reid who simply confirmed that she had attended the accused's trial in France in 1992; after his acquittal, she had returned to Scotland with him. She was aware that some time later he had left Scotland to go back to France for the...
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