Kapri v Lord Advocate
| Jurisdiction | Scotland |
| Judge | Lord Hope,Lady Hale,Lord Kerr,,Lord Sumption,Lord Toulson |
| Judgment Date | 10 July 2013 |
| Neutral Citation | [2013] UKSC 48 |
| Court | Supreme Court (Scotland) |
| Docket Number | CO/7695/2014,No 19 |
| Date | 10 July 2013 |
[2013] UKSC 48
Lord Hope, Deputy President
Lady Hale
Lord Kerr
Lord Sumption
Lord Toulson
Appellant
John Scott QC
John Paul Mowberry
(Instructed by Bridge Litigation UK)
Respondent
W James Wolffe QC
Graeme Hawkes
(Instructed by The Appeals Unit, Crown Office)
Heard on 13 June 2013
Lord Hope (with whom Lady Hale, Lord Kerr, Lord Sumption and Lord Toulson agree)
The question in these proceedings is whether it would be compatible with the appellant's Convention rights within the meaning of the Human Rights Act 1998 for the appellant, who is an Albanian national, to be extradited to Albania. On 7 April 2001, while he was in the United Kingdom as an illegal immigrant, another Albanian national named Ylli Pepa, was killed. On the day after this incident the appellant left London and travelled to Glasgow, where he assumed a false Macedonian identity. It was alleged that he had been responsible for Ylli Pepa's murder. But the Metropolitan Police were unable to locate him, and he continued to live in Glasgow for the time being under that false identity.
In December 2001 the Crown Prosecution Service delivered all the materials about the case that were in their possession, including witness statements and productions, to the prosecuting authority in Albania. This was done under cover of a letter which referred to the European Convention on Extradition 1957, to which both the United Kingdom and Albania are parties. It invited the Albanian authorities to prosecute the appellant, and they decided to do so. Albania has jurisdiction to prosecute in cases of homicide committed extra-territorially where the deceased and the alleged perpetrator are both Albanian. The law in Albania also provides for the trial in absence of those who are accused of such crimes. As the appellant could not be traced he was not formally notified of the proceedings that were being taken against him. So the trial took place in his absence. But evidence was heard and counsel were appointed to represent his interests.
On 23 December 2002 the appellant was convicted in the Judicial Court of Elbasan of premeditated murder under article 78 of the Criminal Code of Albania. He was sentenced to 22 years imprisonment. On 3 January 2003 that decision became final. On 17 February 2003 the office of the District Prosecutor of Elbasan issued an order for the execution of the decision against the appellant. But his whereabouts were still unknown. So no further steps were taken to make the decision effective.
In May 2010 the UK police became aware of the fact that the appellant was living in Glasgow. They notified the Albanian authorities. This led to a formal request by the Albanian Ministry of Justice on 22 June 2010 that the appellant be extradited to Albania, which for the purposes of the Extradition Act 2003 ("the 2003 Act") is a category 2 territory. On 24 June 2010 the appellant was arrested in Glasgow under a provisional arrest warrant. On 25 June 2010 he appeared in the sheriff court at Edinburgh and was remanded in custody. The request for the appellant's extradition was sent to the Home Office on 29 June 2010. On 29 July 2010 the Scottish Ministers issued a certificate under sections 70 and 141 of the 2003 Act that the request for his extradition to Albania on his conviction for the offence of premeditated murder was valid.
On 20 January 2011 the sheriff at Edinburgh, having conducted an extradition hearing over a period of three days in December 2010, held that there were no bars to the extradition. So, as he was required to do by sections 87(3) and 141 of the 2003 Act, the sheriff sent the case to the Scottish Ministers for their decision whether the appellant was to be extradited. The appellant was remanded in custody under section 92(4) to await that decision. The Scottish Ministers decided that they were not prohibited from ordering the appellant's extradition, and an order was made under section 101(2) under the hand of a member of the Scottish Government which was served on the appellant on 15 March 2011. He appealed against the order under sections 108 and 216(9) of the 2003 Act to the High Court of Justiciary. He remains in custody.
In the course of various procedural hearings which then followed the appellant informed the court that he no longer wished to insist on some of the grounds of appeal which had originally been intimated. On 12 October 2011 he was allowed to lodge a minute of amendment by which various grounds were deleted from the note of appeal and a new ground (v) was introduced. The effect was that the grounds of appeal which remained before the court were as follows:
"(iv) The sheriff erred in concluding that the appellant would be entitled to a retrial in terms of section 85(5) of the Act. Separatim. The sheriff erred in concluding that the rights specified in section 85(8) of the Act would be made available to the appellant.
(v) The learned sheriff erred in concluding that the appellant's extradition would be compatible with his Convention rights in terms of section 87 of the said Act. …
Separatim. In seeking the appellant's extradition to Albania the Lord Advocate and the Scottish Ministers are acting in a way which is contrary to the appellant's fundamental rights in terms of the European Convention. In particular, the appellant's extradition to Albania would interfere with his right to liberty and the right to fair trial as provided for in articles 5 and 6 of the Convention."
A devolution minute was also lodged in which it was stated that for the Lord Advocate to seek to support the appellant's extradition would be for him to act in a way which would be incompatible with his rights under article 6(1) and 6(3)(c) of the Convention and accordingly ultra vires in terms of section 57(2) of the Scotland Act 1998.
The new argument of which notice was given in ground (v) was supported by averments in the minute of amendment in which it was said that the judicial system in Albania was systemically corrupt. They incorporated a number of reports about the judicial system in that country by, among others, the European Commission, the Swedish International Cooperation Agency and the US Department of State, Bureau of Democracy, Human Rights and Labour. Reference was also made to reports prepared by Dr Mirela Bogdani and Ms Miranda Vickers, copies of which were lodged on 10 November 2011. The appellant also sought to rely on a report by an Albanian lawyer named Periand Teta about the circumstances in which a right to a retrial might or might not be available in Albania.
The Lord Advocate did not oppose the amendment of the grounds in the note of appeal or the receipt of the devolution minute. But he submitted that the amended ground (v) should not be argued until a preliminary issue about the admissibility of the new evidence relating to it had been determined. He did not oppose the receipt or use of the report by Periand Teta in relation to ground (iv). A further procedural hearing was fixed for determining the preliminary issue as to the admissibility of the new evidence on ground (v).
The issue as to admissibility was debated on 11 November and 20 December 2011. Counsel for the Lord Advocate submitted that the reports by Dr Bogdani and Ms Vickers did not satisfy the test for the admission of new evidence in section 104(4)(a) of the 2003 Act, as it was not evidence which did not exist at the time of the extradition hearing before the sheriff or could not have been obtained with reasonable diligence: Engler v Lord Advocate [2010] HCJAC 42, 2010 JC 235, para 12. He also submitted that their criticisms of the Albanian judicial system were advanced entirely at the level of generality, and that there was nothing in them which indicated how such criticisms as might be made of the system would affect the appellant's right to a fair trial. So they should not be introduced as new evidence, and the appeal in so far as based on ground (v) should be refused.
On 2 February 2012 the Appeal Court (Lady Paton, Lord Turnbull and Lord Marnoch) issued their decision on the preliminary issue: [2012] HCJAC 17. Delivering the opinion of the court Lord Turnbull said in paras 28–30 that an examination of the reports disclosed that counsel for the Lord Advocate's analysis of them was correct. None of the examples of the particular deficiencies in the judicial system impacted on circumstances in which the appellant would find himself if returned to face trial in Albania. The material which they contained was of a wholly general nature, and it contained nothing to suggest that any of the concerns identified would apply to his case.
In para 30 Lord Turnbull said:
"Nothing within either report supports the appellant's contention that 'he' would face an unfair trial on his return to Albania or in any way supports his contention that any retrial would lack the fundamental requirements of article 6. We note also that nothing in either report bears upon the question of whether any such retrial would comply with the particular requirements referred to in section 85(8) of the Act. Accordingly, in our view, the proposed new evidence contained in the reports prepared by Dr Bogdani and Ms Vickers is irrelevant to the ground of appeal in question and ought not to be admitted for this reason."
It was agreed that the additional evidence of Periand Teta should be admitted, and the Lord Advocate was given leave to lead evidence in rebuttal of it, if so advised. The court declined to give effect to the submission that the appeal so far as based on ground (v) should be refused, holding that the appellant could present arguments in...
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