Stephen Goatley V. Her Majesty's Advocate+advocate General
| Jurisdiction | Scotland |
| Judge | Lord Kingarth,Lord McEwan,Lord Nimmo Smith |
| Judgment Date | 12 July 2006 |
| Neutral Citation | [2006] HCJAC 55 |
| Court | High Court of Justiciary |
| Docket Number | XC232/06 |
| Published date | 12 July 2006 |
| Date | 12 July 2006 |
APPEAL COURT, HIGH COURT OF JUSTICIARY
| Lord Nimmo Smith Lord Kingarth Lord McEwan | [2006] HCJAC 55 Appeal No: XC232/06 OPINION OF THE COURT delivered by LORD NIMMO SMITH in NOTE OF APPEAL under section 26(1) of the Extradition Act 2003 by STEPHEN MAURICE GOATLEY Appellant; against (1) HER MAJESTY'S ADVOCATE and (2) THE ADVOCATE GENERAL FOR SCOTLAND Respondents: _______ |
Act: M. Bovey, Q.C., M. Smart; Hamilton, Burns & Co., Glasgow
Alt: Ms. R. Crawford, A.D; Crown Agent: Lord Davidson of Glen Clova, Q.C., Carmichael; Advocate General
12 July 2006
Introduction
[1] These are proceedings under Part 1 of the Extradition Act 2003 ("the 2003 Act"). In accordance with the provisions of section 1, the Kingdom of the Netherlands has been designated as a category 1 territory for the purposes of Part 1. A Part 1 warrant was issued by the Netherlands on 18 October 2005 for the arrest after conviction of the appellant for participation in a criminal organisation and illicit trafficking in narcotic drugs and psychotropic substances. The appellant, who was born on 10 August 1951, was arrested by virtue of the warrant at Stranraer on about 19 January 2006. On 28 March 2006, after sundry procedure, the Sheriff of Lothian and Borders at Edinburgh ordered the appellant's extradition to the Netherlands. The appellant has now appealed to this court under section 26(1) of the 2003 Act on the grounds set out in paragraphs 4, 7, 8, 9, 10 and 11 of the relative Note of Appeal. This is our decision on those grounds. All three members of the court have contributed to the preparation of this Opinion.
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 between Member States (2002/584/JHA; OJ 2002L 190, p. 1) ("the Framework Decision"). 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 (SI 2003/3109) ("the 2003 Order"), made in exercise of the powers conferred by section 2(9) and (10), the Crown Agent of the Crown Office has been designated for the purposes of Part 1 of the Act. By section 2(2) a Part 1 warrant is an arrest warrant which is issued by a judicial authority of a category 1 territory and 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 subsection (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 (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. By section 2(7) the designated authority, i.e. 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. There is no definition in section 2 of the expression "judicial authority", but it may be noted that in terms of section 66(2) of the 2003 Act, which applies for the purposes of sections 64 and 65, an appropriate authority of a category 1 territory is a judicial authority of the territory which the appropriate judge believes has the function of issuing arrest warrants in that territory. By section 67(1)(b) the appropriate judge in Scotland is the Sheriff of Lothian and Borders.
[3] 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 Sheriff. 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 the 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. By section 11(4), if he decides those questions 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. Section 20 contains various questions, the terms of which are not otherwise relevant for present purposes, but if they are answered in the affirmative the Sheriff must proceed under section 21. 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.
The proceedings before the Sheriff
[4] The appellant first appeared before the Sheriff on 20 January 2006, when the Sheriff inter alia assigned 3 February 2006 as an extradition hearing. On 2 February 2006 the first and second devolution minutes on behalf of the appellant were lodged. On 3 February 2006 the Sheriff held that both these minutes were incompetent and refused to allow them to proceed. At that hearing counsel for the appellant raised a preliminary matter relating to the validity of the warrant upon which the extradition proceeded. The Sheriff adjourned the extradition hearing to 21 February 2006 and directed that the preliminary issue be dealt with at the extradition hearing. On 22 February 2006, having heard submissions on the preliminary issue on the previous day, the Sheriff held that the warrant had been competently issued and was competently before the court. The extradition hearing was adjourned until 6 March 2006. On 27 February 2006 the third devolution minute on behalf of the appellant was lodged. On 6 March 2006 the Sheriff held that the third devolution minute was incompetent. He then proceeded to hear parties in respect of the extradition hearing. On 7 March 2006 the Sheriff answered in the negative the questions posed in section 11(1) of the 2003 Act and found that there was no bar to extradition by reason of any circumstance. Thereafter, since the appellant was alleged to be unlawfully at large after conviction of the extradition offence, the Sheriff proceeded in terms of section 20 of the 2003 Act to hear parties, and answered in the affirmative the questions posed in subsections (1) and (3) thereof. The Sheriff then proceeded to hear parties in respect of section 21. On 28 March 2006 the Sheriff answered the question in section 21(1) in the affirmative, holding that the appellant's extradition would be compatible with the Convention rights. Therefore, in terms of section 21(3), he ordered the appellant to be extradited to the Netherlands.
The appeal to this court
[5] The appellant has now appealed to this court by Note of Appeal under section 26(1) of the 2003 Act. Of the original grounds of appeal, as set out in paragraphs 4 to 11 of the Note of Appeal, senior counsel for the appellant did not advance any argument in support of grounds 5 and 6. The remaining grounds, with cross-references to the Sheriff's judgment removed, are as follows:
"(4) The learned Sheriff erred in holding that there was before him a valid European Arrest Warrant. In particular, the Sheriff erred in holding that the requirement in the Framework Decision of 13 June 2002 that the warrant be issued by a judicial authority had been satisfied. The learned Sheriff erred in holding that the warrant satisfied the requirements of section 2(1) of the Extradition Act 2003. The learned Sheriff erred in taking into account the fact that the warrant was for the enforcement of a judicial decision.
(7) The learned Sheriff erred in holding that the devolution minutes lodged on behalf of the appellant were incompetent. The third devolution minute related to alleged violation of community law and not the ECHR and the learned Sheriff erred in not...
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