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Keith Allen V. Her Majesty's Advocate

Judgment Cited authorities 20 Cited in 4 Precedent Map Related
Vincent
JurisdictionScotland
JudgeLord Clarke,Lady Smith,Lord Hardie
Neutral Citation[2010] HCJAC 74
Year2010
Published date21 July 2010
CourtHigh Court of Justiciary
Date21 July 2010
Docket NumberXC108/10

APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Clarke Lord Hardie Lady Smith [2010] HCJAC 74 Appeal No: XC108/10

OPINION OF THE COURT

delivered by THE RIGHT HONOURABLE LORD CLARKE

in

APPEAL UNDER SECTION 26 OF THE EXTRADITION ACT 2003

by

KEITH JOSEPH ALLEN

Appellant;

against

THE LORD ADVOCATE

Respondent:

_______

Appellant: Bovey, Q.C., Govier; Belmonte & Co, Edinburgh

Respondent: Drummond, Crown Agent

21 July 2010

[1] This is an appeal against an extradition order by Sheriff Maciver, pronounced on 11 January 2010, ordering the surrender of the appellant to the Federal Republic of Germany in terms of section 21 of the Extradition Act 2003.

The background

[2] As the sheriff informs us in his report to this court, the case has had a somewhat unusual procedural history. The extradition of the appellant, who is a United Kingdom national, was originally ordered by Sheriff Crowe, following on a full hearing in March 2009. When that decision was appealed, however, it transpired that there was an error in the European Arrest Warrant and the German authorities proceeded to issue a new warrant which first called in court in late July 2009. The appellant continued to resist his return to Germany and, accordingly, the whole procedure had to be rerun. After a number of adjournments, at the appellant's request, a further extradition hearing commenced on 2 November 2009. It was adjourned until 20 November 2009 and again continued to 15 December 2009 on which day the hearing concluded.

[3] The request for return of the appellant to Germany was made by the issue of the relevant European Arrest Warrant under the procedures set out in the Council of Europe Framework Decision of 2002 in relation to mutual recognition of judicial decisions in member states and in terms of Part 1 of the Extradition Act 2003. The German authorities wished to have the appellant returned to their jurisdiction to place him on trial for a crime which in this country would be libelled either as an assault to the danger of life or attempted murder. The assault in question is said to have taken place at Heimholzplatz, Berlin during the afternoon of 27 October 2004. The victim was another United Kingdom citizen named Fulford. Mr Fulford subsequently died in England in October 2006. It was not contended before the sheriff, nor before this court, that Mr Fulford's death was linked to the alleged assault although, Sheriff Maciver notes in his report to this court that the position of the German court in that connection is entirely unknown. The sheriff, in that state of affairs, proceeded on the basis that the appellant's return is required in respect of the assault as specified in the arrest warrant. We will, naturally, proceed on the same footing.

[4] The appellant was born in Scotland, but, prior to his arrest, which took place at Stranraer, when he was visiting Scotland, in early 2009, he was resident in the Republic of Ireland.

The grounds of appeal

[5] Before this court the appellant sought to attack the decision of the sheriff on three grounds.

1. The first of these was that the sheriff erred in law in refusing to allow the appellant to raise a devolution issue in terms of a minute lodged with the Sheriff Clerk on the ground that it was lodged late.

2. The second ground of appeal was that the sheriff had erred in law in finding that it would not be unjust or oppressive to extradite the appellant to the Republic of Germany by reason of the passage of time since he is alleged to have committed the extraditable offence.

3. The third ground is that the sheriff erred in law in deciding that the appellant's extradition would be compatible with his Convention rights within the meaning of the Human Rights Act 1998. This ground of appeal goes on to say "in particular, he decided that his extradition would be compatible with the appellant's rights under Article 6.1 of the Convention to have a fair and public hearing of the case against him 'within a reasonable time', and under Article 8 to have respect for his private or family life".

[6] We shall deal with the first ground of appeal last. As regards the other two grounds of appeal, they raise issues which, by now, have been the subject of extensive authoritative decision in the courts both of this country and England and Wales. It is to be expected that those who appear in such appeals, should be aware of the relevant jurisprudence and should be in a position to seek, in their submission, to apply, develop or distinguish it as the case may be. To make bald assertions which fly in the face of it, is not acceptable but that is what happened, at times, in this appeal. For example the requesting authority in this case being Germany, the request, as has been noted, was subject to the framework decision of 13 June 2002 (2002/584/JHA). Recitals 5 and 6 of the decision are in the following terms:

"(5) The objective set for the Union to become an area of freedom, security and justice leads to abolishing extradition between Member States and replacing it by a system of surrender between judicial authorities. Further, the introduction of a new simplified system of surrender of sentenced or suspected persons for the purposes of execution or prosecution in criminal sentences makes it possible to remove the complexity and potential for delay inherent in the present extradition procedures. Traditional co-operation relations which have prevailed up till now between Member States should be replaced by a system of free movement of judicial decisions in criminal matters, covering both pre-sentence and final decisions, within an area of freedom, security and justice.

(6) The European arrest warrant provided for in this Framework Decision is the first concrete measure in the field of criminal law implementing the principle of mutual recognition within the European Council referred to as 'the cornerstone' of judicial cooperation".

Article 1 of the Framework Decision provides:

"The European arrest warrant is a judicial decision issued by a Member State with a view to the arrest and surrender by another Member State of a requested person, for the purposes of conducting a criminal prosecution or executing a custodial sentence or detention order".

The effect of these provisions, as has been pointed out, on a number of occasions by the courts, is, as it was put by the Court of Appeal in Symeou v [2009] 1 WLR 2384 at 2397, para.39:

"...we have no doubt but that the common area of judicial decisions in criminal matters means that the judicial systems of the countries of the European Union must be regarded as capable of providing sufficient minimum safeguards for a fair trial in a civilised country ....".

The same approach has been enunciated, more generally, by the House of Lords in Gomes v The Government of the Republic of Trinidad and Tobago [2009] 1 WLR 103 where Lord Brown of Eaton-under-Heywood in giving the judgment of their Lordships said at para.35:

"Council of Europe countries in our view present no problem. All are subject to Article 6 of the Convention and should readily be assumed capable of protecting an accused against an unjust trial - whether by an abuse of process jurisdiction like ours or in some other way".

We have to say, with regret, that a good deal of the substance of the appellant's contentions in this case were made as if these judicial dicta, and others to similar effect, of the highest authority, had never been made.


Ground of Appeal 2

Passage of Time

[7] We turn now to deal with ground of appeal 2 - passage of time.

[8] The factors relied upon in relation to this ground of appeal were as follows.

Since the date of the alleged assault the victim has died. He cannot, therefore, be precognosed, or cross examined at any trial. The appellant's position is to deny any knowledge of the alleged assault and that he first became aware of the charge against him in early January 2009. He has lost contact with the girlfriend he had in Germany in October 2004 and also his other associates at that time who might have been able to provide evidence as to his whereabouts on the relevant date and thereby support a defence of alibi. The passage of time, therefore, it was contended, has caused a real risk of prejudice to his defence if he is now extradited to the Republic of Germany over five years after the relevant date.

[9] It was contended, furthermore, that his extradition would be oppressive by reason of the passage of time. Since returning to the British Isles and then in Ireland, he has re-established his relationship with his family and has changed his lifestyle, obtaining regular employment and resuming education. As is demonstrated in the sheriff's careful, and thorough, report to this court the sheriff considered all of these matters, under reference to the relevant legislative provisions contained in section 11 and section 14 of the Extradition Act and having heard evidence from the appellant. The sheriff referred, also, to an agreed chronology which was encapsulated in a joint minute. The alleged crime, as has been noted, was committed in late October 2004. A domestic arrest warrant was issued for the appellant on 24 November 2004. The appellant...

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