Dorothy May Fasola V. Her Majesty's Advocate
| Jurisdiction | Scotland |
| Judge | Lady Smith,Lord Nimmo Smith,Lord Kingarth |
| Judgment Date | 09 January 2009 |
| Neutral Citation | [2009] HCJAC 3 |
| Court | High Court of Justiciary |
| Docket Number | No 13 |
| Published date | 09 January 2009 |
| Date | 09 January 2009 |
APPEAL COURT, HIGH COURT OF JUSTICIARY
| Lord Nimmo Smith Lord Kingarth Lady Smith | [2009] HCJAC 3 Appeal No. xc794.07 OPINION OF THE COURT delivered by LORD NIMMO SMITH in NOTE OF APPEAL under section 26(1) of the Extradition Act 2003 by DOROTHY MAY FASOLA Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______ |
Act: Targowski QC, Anderson; G Goodfellow & Co, Aberdeen
Alt: Crawford QC; Crown Agent:
9 January 2009
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 19 September 2007 that the appellant should be extradited to Italy to serve sentences of imprisonment imposed on her in her absence by the Italian courts for offences of armed robbery and counterfeiting. The sheriff pronounced his order under section 21 of the 2003 Act at the conclusion of an extradition hearing upon two European arrest warrants ("EAWs") (such a warrant being referred to in the 2003 Act as a "Part 1 warrant") dated respectively 21 April 2006 ("Warrant 1") and 17 November 2006 ("Warrant 3") presented by the relevant Italian authority under Part 1 of the Act. A further EAW ("Warrant 2"), also dated 17 November 2006, was withdrawn in the course of the proceedings before the sheriff and the appellant was discharged in respect of that warrant in terms of section 41(3) of the 2003 Act.
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. In Scotland, this purposive approach has been adopted in Goatley v HM Advocate 2008 JC 1, La Torre v HM Advocate 2008 JC 23 and Campbell v HM Advocate 2008 JC 265.
[3] Recital 5 of the Framework Decision, the key provisions of which were quoted by Lord Bingham in the above passage, contemplated that the introduction of the new system "makes it possible to remove the complexity and potential for delay inherent in the present extradition procedures." Recital 10 began by stating: "The mechanism of the European arrest warrant is based on a high level of confidence between Member States."
[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. The Secretary of State for the Home Department designated the Republic of Italy as a category 1 territory under the 2003 Act with effect from 28 July 2005.
[5] Section 2 makes provision for a Part 1 warrant and certificate. As originally enacted, it was in inter alia these terms:
"(1) This section applies if the designated authority receives a Part 1 warrant in respect of a person.
(2) A Part 1 warrant is an arrest warrant which is issued by a judicial authority of a category 1 territory and which contains -
...
(b) the statement referred to in subsection (5) and the information referred to in subsection (6).
...
(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.
(6) The information is -
(a) particulars of the person's identity;
(b) particulars of the conviction;
(c) particulars of any other warrant issued in the category 1 territory for the person's arrest in respect of the offence;
(d) particulars of the sentence which may be imposed under the law of the category 1 territory in respect of the offence, if the person has not been sentenced for the offence;
(e) particulars of the sentence which has been imposed under the law of the category 1 territory in respect of the offence, if the person has been sentenced for the offence.
(7) The designated authority may issue a certificate under this section if it believes that the authority which issued the Part 1 warrant has the function of issuing arrest warrants in the category 1 territory.
(8) A certificate under this section must certify that the authority which issued the Part 1 warrant has the function of issuing arrest warrants in the category 1 territory.
(9) The designated authority is the authority designated for the purposes of this Part by order made by the Secretary of State.
(10) An order made under subsection (9) may -
(a) designate more than one authority;
(b) designate different authorities for different parts of the United Kingdom."
By the Extradition Act 2003 (Part 1 Designated Authorities) Order 2003 (S.I. 2003, No. 3109) the Crown Agent of the Crown Office was designated for the purposes of Part 1 of the Act.
[6] The 2003 Act was amended by the provisions of section 42 of and Part 1 of Schedule 13 to the Police and Justice Act 2006 ("the 2006 Act"). These amendments were brought into force with effect from 15 January 2007 by the Police and Justice Act 2006 (Commencement No. 1, Transitional and Saving Provisions) Order 2006 (S.I. 2006 No. 3364). By paragraph 1(1) of the Schedule, section 2(5)(a) of the 2003 Act was amended by deleting the words "is alleged to be unlawfully at large after conviction" and substituting therefor the words "has been convicted", so that it now reads:
"(a) the person in respect of whom the Part 1 warrant is issued has been convicted of an offence specified in the warrant by a court in the category 1 territory ..."
[7] 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 nearly 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".
[8] Further provision about the passage of time is made by section 14, which, as originally enacted, provided:
"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...
To continue reading
Request your trial
-
Keith Allen V. Her Majesty's Advocate
...of the court whether to allow a devolution minute which came, as the present one did, very late in the process. In Fasola v HM Advocate 2009 J.C.119 this court refused to allow a devolution minute to be lodged at the commencement of an appeal hearing in an extradition case, as coming too la......