Her Majesty's Advocate On Behalf Of The Slovak Republic V. Renata Havrilova
| Jurisdiction | Scotland |
| Judge | Lord Bonomy,Lord MacLean,Lord Clarke |
| Neutral Citation | [2011] HCJAC 113 |
| Published date | 18 November 2011 |
| Date | 18 November 2011 |
| Court | High Court of Justiciary |
| Year | 2011 |
| APPEAL COURT, HIGH COURT OF JUSTICIARY | |
| Lord Clarke Lord Bonomy Lord MacLean | [2011] HCJAC 113 Appeal No: NO. XC511/11 OPINION OF THE COURT delivered by LORD CLARKE in BILLS OF ADVOCATION AND APPEAL UNDER SECTION 147(3) OF THE CRIMINAL PROCEDURE (SCOTLAND) ACT 1995 by HER MAJESTY'S ADVOCATE ON BEHALF OF THE SLOVAK REPUBLIC Complainer, and Respondent; against RENATA HAVRILOVA Complainer, Appellant, and Respondent: _______ |
Appellant: Wolffe, Q.C.; Lord Advocate; on behalf of the Slovak Republic
Respondent: McCluskey, Advocate
18 November 2011
[1] The court has before it, for disposal, two Bills of Advocation and an appeal under section 147(3) of the Criminal Procedure (Scotland) Act 1995. In the first of the Bills of Advocation the Lord Advocate is the complainer. In the second the complainer is Renata Havrilova. Ms Havrilova is the appellant in the section 147(3) appeal. Throughout this Opinion we will, for convenience, refer to the Lord Advocate on behalf of the Slovak Republic as the complainer and Ms Havrilova as the respondent.
[2] All foregoing applications to this court arise from a decision of Sheriff Crowe in dealing with a European Arrest Warrant issued by the Slovak Republic for the extradition of the respondent, in respect of a charge of neglecting her baby daughter whereby the child died.
[3] The procedural history of the extradition proceedings is as follows:
The respondent first appeared at Edinburgh Sheriff Court on the European Arrest Warrant on 15 April 2011. Bail was refused and an appeal was marked against that decision. An appeal against the bail decision was taken but was apparently unsuccessful. A full hearing was fixed for 5 May 2011, but was adjourned until the 2 June 2011. Bail was again refused. Preliminary hearings were held on 16 May and 26 May 2011. The respondent remained in custody. On 26 May the respondent sought an adjournment to secure legal aid for a psychological report. The motion was granted and a fresh date was fixed for the full hearing to take place on 30 June 2011. The respondent remained in custody until 2 June, when the next calling of the case took place. On 2 June a further hearing was fixed for 9 June 2011, when the case was continued to 20 June for the expert report to be obtained. The respondent was remanded in custody of both 2 and 9 June. On 10 June 2011, the respondent was granted bail by Lord Bannatyne, sitting in the High Court. The appellant has remained on bail since that date.
[4] Further preliminary hearings then took place prior to the full hearing which had been fixed for 30 June 2011, but which was in the event adjourned once again until 4 August 2011. The full hearing was designed to consider the merits of the application for the extradition of the respondent and the opposition thereto. At its commencement, however, counsel for the respondent intimated that he wished to raise a preliminary issue to the effect that the period of time which the appellant had spent in custody, from 15 April to 10 June 2011, when bail was ultimately granted, totalled 56 days and, therefore, exceeded the 40 day period set down in section 147(1) Criminal Procedure (Scotland) Act 1995 ("hereinafter referred to as 'the 1995 Act'"). As a consequence, it was contended, the extradition proceedings fell. This submission apparently had been first intimated to the court on 20 June 2011, but the presiding Sheriff had decided that it should be considered by the Sheriff dealing with the full hearing on the merits of the application. The submission was made under reference to section 9(2) of the Extradition Act 2003 ("hereinafter referred to as 'the 2003 Act'") which is to the following effect:-
"In Scotland, at the extradition hearing the appropriate judge 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".
Section 147(1) of the 1995 Act is to the following effect:-
"Subject to subsections (2) and (3) below, a person charged with an offence on summary proceedings shall not be detained in that respect for a total of more than 40 days after the bringing of the complaint in court unless his trial is commenced within that period, failing which he shall be liberated forthwith and thereafter he shall be forever free from all question or process for that offence".
Subsection 2 of section 147 provides:-
"On an application made for the purpose, the Sheriff may, on cause shown -
(a) Extend the period mentioned in subsection (1) above; and
(b) order the accused to be detained awaiting trial, for such period as the Sheriff thinks fit".
It is furthermore provided by section 147(3) that:-
"The grant or refusal of any application to extend the period mentioned in subsection (1) above may be appealed against by note of appeal presented to the High Court; and that Court may affirm, reverse or amend the determination made on such application."
[5] After hearing submissions made in respect of the preliminary point, taken on behalf of the respondent, the Sheriff observed that it did seem odd that, hitherto, the provisions of section 147 of the 1995 Act had never been relied upon by any person in respect of whom extradition was sought, notwithstanding that in many cases they had been held in custody for periods significantly beyond the 40 day limit provided in section 147(1). The Sheriff, nevertheless, reached the conclusion that the 40 day time limit, as set out in section 147(1), applied to the present proceedings by virtue of the powers given to him under section 9(2) of the 2003 Act. It had been argued on behalf of the complainer that esto, contrary to his primary submission, the Sheriff held that the provisions of section 147(2) fell to be held applicable, then an extension of time should be granted in terms of section 147(2). The complainer sought an extension of 16 days to cover the time that the respondent had spent on remand beyond the 40 day limit. The Sheriff granted that application.
[6] The complainer's Bill of Advocation before this court has in support of it the following plea in law:-
"The decision of the Sheriff to hold that section 147(1) of the Criminal Procedure (Scotland) Act 1995 applied to proceedings brought under the Extradition Act 2003, being unjust, erroneous and contrary to law should be recalled and the complaint remitted to the Sheriff with a direction to proceed as accords."
Initially the respondent, in turn, lodged a note of appeal which, inter alia was to the following effect:-
"The presiding Sheriff erred in granting the Crown's motion to extend on the basis that the Crown ought to have made the motion prior to the appellant being liberated.
It is respectfully submitted that the presiding Sheriff ought to have refused the Crown's motion and thereafter discharged the appellant with respect to the European Arrest Warrant".
The respondent, subsequently lodged a Bill of Advocation attacking the decision of the Sheriff to extend the 40 day period. In the event, as shall be seen, the court has been able to decide all the issues arising from the Sheriff's decision by considering the submissions made in respect of the complainer's Bill of Advocation and determining the question raised thereby.
[7] In opening his submissions on behalf of the complainer, senior counsel, Mr Wolffe QC, drew to the court's attention that, while the present extradition application was a Part I case, in terms of the 2003 Act, the Sheriff's decision relating to the application of section 147(1) of the 1995 Act would apply equally well to Part II cases since the provisions in section 77(2)(a) are to the same effect as those contained in section 9(2). The question which arose, in these proceedings, turned on the construction of section 9(2) of the 2003 Act and that question was: - Did the words "have 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 I warrant was issued" bring in to play the provisions of section 147(1) of the 1995 Act.
[8] In addressing that question, so formulated, the following observations, it was submitted, fell to be made in:-
(1) Section 147(1) calculated the 40 days "from the bringing of the complaint". What constituted a complaint for...
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