Fatjon Kapri V. The Lord Advocate For And On Behalf Of The Court Of First Instance Judicial District Of Elbasan, Albania
| Jurisdiction | Scotland |
| Judge | Lady Paton,Lord Turnbull,Lord Marnoch |
| Judgment Date | 02 February 2012 |
| Neutral Citation | [2012] HCJAC 17 |
| Court | High Court of Justiciary |
| Docket Number | XC255/11 |
| Date | 02 February 2012 |
| Published date | 03 February 2012 |
| APPEAL COURT, HIGH COURT OF JUSTICIARY | |
| Lady Paton Lord Turnbull Lord Marnoch | [2012] HCJAC 17 Appeal No: XC255/11 OPINION OF THE COURT delivered by LORD TURNBULL in Appeal under Section 103 of the Extradition Act 2003 by FATJON KAPRI Appellant; against THE LORD ADVOCATE FOR AND ON BEHALF OF THE REPUBLIC OF ALBANIA Respondent: _______ |
Alt: Wolffe Q.C., Hawkes; Crown Agent
2 February 2012
[1] In this case the appellant seeks to appeal under section 103(1) of the Extradition Act 2003 ("the Act") against a decision of the sheriff at Edinburgh to send his case to the Secretary of State. As a preliminary to disposal of that appeal, on 12 October 2011 the court fixed a hearing to determine the admissibility of new evidence which pertains to an amended Note of Appeal. That hearing took place on 11 November and 20 December 2011. The circumstances in which the question of admitting new evidence arises are set out below.
Background
[2] The appellant is an Albanian national who was convicted in an Albanian Court, in his absence, of the murder of another Albanian citizen which took place in London in April 2001. The Albanian authorities requested the appellant's extradition to Albania to serve the period of 22 years imprisonment imposed following upon this conviction.
[3] At the time of the murder the appellant was living in London as an illegal immigrant. The day after the murder he left London and went to live in Glasgow under a false Macedonian identity. He lived in Glasgow thereafter until his arrest in June 2010 on a provisional arrest warrant granted under Part 2 of the Act.
The Extradition Hearing
[4] After various hearings and postponements a full extradition hearing took place before the sheriff at Edinburgh over three days in December 2010. Given that Albania is a category 2 territory the procedure followed was as set out in Part 2 of the Act. On 20 January 2011 the sheriff issued his decision in which he held that:
1. The documents sent by the Scottish Ministers consisted of those required in terms of section 78(2) of the Act;
2. The appellant was the person whose extradition was requested, that the offence specified in the request was an extradition request and that copies of the relevant documents had been served upon the appellant, all as required by section 78(4) of the Act;
3. The extradition of the appellant to Albania was not barred by reason of any of the circumstances set out in section 79(1) of the Act;
4. In terms of section 82 of the Act there was no bar to the appellant's extradition by reason of the passage of time;
5. In terms of section 85(5) and (8) of the Act the appellant would be entitled to a re-trial or to a review amounting to a re-trial if returned to Albania;
6. In terms of section 87(1) of the Act the appellant's extradition to Albania would be compatible with the Convention rights within the meaning of the Human Rights Act 1998.
[5] Having so decided the sheriff sent the case to the Scottish Ministers for their decision as to whether the appellant was to be extradited, as he was required to do in terms of section 87(3) and 141 of the Act. On 14 March 2011 the Scottish Ministers decided that they were not prohibited from ordering the appellant's extradition in terms of section 93(2) of the Act and on 15 March 2011 the extradition order was served on the appellant.
The Note of Appeal
[6] A Note of Appeal dated 18 March 2011 was lodged on the appellant's behalf which intimated seven separate grounds of appeal. However subsequent events have affected the scope of the grounds intimated. At a procedural hearing held on 14 July 2011 counsel for the appellant informed the court that he no longer wished to insist on grounds one, two and three. At a subsequent procedural hearing held on 13 September 2011 counsel informed the court that he did not intend to insist on ground six. On 12 October 2011 the court allowed a Minute of Amendment to the Note of Appeal to be received the effect of which was to delete grounds five, six and seven and to substitute a new ground, numbered five. The effect of this combined procedure is that the grounds of appeal which remain before the court are numbered 3(iv) and (v) and are in the following terms:
"(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."
and
"(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."
[7] Within the Minute of Amendment introducing the new ground five the underlying complaint was said to be that the judicial system of the requesting state was "systemically corrupt". In support of this contention reference was made within the body of the Minute to nine different reports from bodies such as the European Commission, the United States of America Department of State and various other international and non governmental organisations. The concluding passages of the Minute stated that:
"... any trial that the Appellant would face on his return to the requesting state would amount to a nullification of the rights guaranteed to him by Article 6 of the Convention. Reference is made to the Reports of Dr Mirela Bogdani and Ms Miranda Vickers lodged in process.
[8] The two reports referred to were lodged with the court on 10 November 2011. A further report, dated 29 July 2011, compiled by an Albanian lawyer named Periand Teta was also lodged. This report deals exclusively with the circumstances in which a right to a re-trial might or might not be available in Albania.
Written Submissions
[9] In its interlocutor of 12 October in addition to fixing a hearing the court directed that the parties should lodge written notes of argument seven days in advance of the date of that hearing. On behalf of the appellant a note of argument was lodged on 4 November 2011 in which two separate contentions were set out.
[10] Firstly, it was argued that whilst the evidence of the Teta Report would constitute new evidence in support of the appellant's fourth ground of appeal, the circumstances of the appellant's case could be distinguished from those which influenced the court in arriving at its decision in Engler v Lord Advocate 2010 JC 235. Separately it was submitted that the approach of the Albanian government had changed in light of the decision of the Court of Appeal in England in Bulla v Albania [2010] EWHC 3506 (Admin) and that accordingly the appellant could not with reasonable diligence have obtained the evidence now sought to be introduced in relation to this matter.
[11] Secondly, the written note of argument dealt with what it referred to as a new issue. That new issue was what the note referred to as "the Article 6 ground introduced by amendment". It then acknowledged that judicial corruption (the point raised under the new ground v) was not an issue which was raised before the sheriff at the extradition hearing. In summary, the contention was that this was a matter which only recently came to the notice of the appellant's agents. The purpose of seeking to lead the evidence of judicial corruption said to be available was set out in paragraph 8.2 of the note of argument, where it is made plain that the evidence is sought to be led in support of the newly formulated fifth ground of appeal, namely in support of an attack on the sheriff's decision made in terms of section 87 of the Act.
[12] On 10 November 2011 a document termed "Supplementary Outline Submission" was lodged with the court on the appellant's behalf. In this document, and for the first time in the written submissions, reference is made to section 85(8) of the Act. The tenor of this supplementary document appeared to be to suggest that the information sought to be led in the reports prepared by Dr Bogdani and Ms Vickers would affect the question to be addressed by the sheriff in considering the terms of section 85 of the Act.
[13] Section 85 of the Act is a section which the sheriff at an extradition hearing only requires to consider if the requested person has already been convicted in the requesting state. If the sheriff then decides that the requested person was convicted in his absence and did not deliberately absent himself from his trial (as in the present appellant's case) subsection (5) requires the sheriff to decide whether the requested person would be entitled to a retrial or (on appeal) to a review amounting to a retrial. In determining this question the sheriff must take account of the terms of subsection (8) which are as follows:
"(8) The judge must not decide the question in subsection (5) in the affirmative unless, in any proceedings that it is alleged would constitute a retrial or a review amounting to a retrial, the person would have these rights-
(a) the right to defend himself in person or through legal assistance of his own choosing or, if he had not sufficient means to pay for legal assistance, to be given it free when the interests of justice so required;
(b) the right to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under...
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