Robert Bruce Wright V. The Scottish Ministers
| Jurisdiction | Scotland |
| Judge | Lord Osborne,Lord Reed,Lord Nimmo Smith |
| Docket Number | P720/01 |
| Date | 27 May 2005 |
| Court | Court of Session |
| Published date | 27 May 2005 |
| EXTRA DIVISION, INNER HOUSE, COURT OF SESSION | |
| Lord Osborne Lord Nimmo Smith Lord Reed
| P720/01 OPINION OF THE COURT delivered by LORD OSBORNE in RECLAIMING MOTION in PETITION FOR JUDICIAL REVIEW by ROBERT BRUCE WRIGHT Petitioner and Reclaimer; against THE SCOTTISH MINISTERS Respondents: _______ |
Act: Bovey, Q.C., Blair; Balfour & Manson (Petitioner)
Alt: Doherty, Q.C., Crawford; Richard Henderson, solicitor to the Scottish Executive:
C.H.S. MacNeill, Advocate (Crown Agent)
27 May 2005
The background
[1]On 7 March 2001 the procurator fiscal at Edinburgh presented a petition to the Sheriff at Edinburgh in which it was narrated that, from information received by the petitioner, there were reasonable grounds for suspecting that the reclaimer had committed an extradition crime, punishable under the law of Estonia, a foreign State within the meaning of section 3 of the Extradition Act 1989, referred to hereafter as "the 1989 Act", which was a party to the European Convention on Extradition, concluded at Paris on 13 December 1957, referred to hereafter as "the Convention on Extradition", and with which general extradition arrangements had been made in terms of that Convention, subject to reservations and notifications embodied in the European Convention on Extradition Order 1990 (S.I. 1990 No. 1507), in respect that he had committed the crime of organising the smuggling of narcotic drugs, contrary to Article 17, passage 4 and Article 76, passage 3, section 2 of the Estonian Penal Code, which crime in Scots law in the particular circumstances of this case was known as the crime of being concerned in the supply of controlled drugs, contrary to section 4(3)(b) of the Misuse of Drugs Act 1971, and which, in both jurisdictions, was punishable with imprisonment for a term of 12 months, or by greater punishment. It was averred that, in particular, the reclaimer was alleged to have been concerned in the supply of class A controlled drugs in Estonia, the United Kingdom of Great Britain and elsewhere in Europe between 22 September 2000 and 2 November 2000. A warrant for the arrest of the reclaimer in respect of the crime mentioned, or other order having the same effect, had been issued by Mart Toming, Judge of the City Court of Tallinn on 2 March 2001, in accordance with the procedure laid down in the law of Estonia. It was also narrated that the competent authorities of Estonia had requested the provisional arrest of the reclaimer and had stated that, in the event of his arrest, his extradition would be requested. Against that background the Sheriff was craved to grant a warrant in terms of section 8(1)(b) and 9(1) of the 1989 Act for the arrest of the reclaimer and for him to be brought as soon as practicable before the court. On the same date, the Sheriff at Edinburgh granted the warrant craved.
[2]In response to an extradition request from the Republic of Estonia for the return of the reclaimer dated 13 March 2001, the respondents, by an order dated 26 March 2001, issued an authority to proceed to the Sheriff Principal of Lothian and Borders, under section 7(4) of the 1989 Act, in pursuance of that request. By an interlocutor dated 29 March 2001, the Sheriff at Edinburgh made an order in terms of section 9(8) of the 1989 Act, committing the reclaimer to the prison of Saughton, Edinburgh, to await the decision of the respondents as to his return. In accordance with section 11 of the 1989 Act, the court informed the reclaimer of his right to make an application to the High Court of Justiciary for review of the order of committal. The petitioner did not challenge the order of the Sheriff.
[3]On 18 April 2001, in accordance with section 13(1) of the 1989 Act, the respondents gave notice to the reclaimer that they were contemplating making an order under section 12(1) of the 1989 Act for his return to Estonia. The reclaimer was advised of his right to make representations to the respondents at any time prior to 2 May 2001 as to why he should not be returned to Estonia. On 31 May 2001 solicitors acting on behalf of the reclaimer submitted such representations to the respondents. Although these representations were not submitted timeously, they were in fact considered by the respondents. On 12 June 2001 the respondents signed an order for the reclaimer's return to Estonia. The reasons for the respondents' decision were contained in a letter, dated 14 June 2001, addressed to the reclaimer's then solicitors. Following the decision of the respondents to order the return of the reclaimer to Estonia, his mental health deteriorated while he was within Saughton Prison.
[4]On 18 June 2001, the present petition for judicial review was presented on behalf of the reclaimer to this court, when a first order was made. Under that order, the petition was appointed to be served upon, among others, the Lord Advocate. In the petition, various remedies were sought, including reduction of the order, dated 12 June 2001, for the return of the reclaimer to Estonia. Subsequently, on or about 9 August 2001, the reclaimer was transferred from Saughton Prison to the State Hospital, Carstairs, on account of his mental condition and because no other hospital offered adequate security in which to house him. There followed procedure in the reclaimer's petition for judicial review, with which we do not require to be concerned. In view of the changed circumstances of the reclaimer, the respondents reconsidered their decision, of 12 June 2001, but, by letter dated 26 June 2002, they intimated to the reclaimer's solicitors that they had decided to uphold that decision to order the return of the reclaimer to Estonia. The reclaimer remained in the State Hospital, Carstairs, until on or about 23 November 2003, when he was transferred to prison. Thereafter, further representations were made on his behalf by his solicitors, but, by letter dated 17 February 2004, the respondents adhered to their earlier decision that it was not unjust or oppressive to order the reclaimer's return and that he should be returned to Estonia.
[5]The reclaimer's petition for judicial review came before Lord Sutherland on 13 May 2003, when he heard argument relating to certain parts of the petition. By interlocutor dated 30 May 2003, Lord Sutherland rejected certain of the criticisms made in the petition of the respondents' decisions and appointed a second hearing to be held on the remaining matters in dispute between the parties. A second hearing was duly held between 24 and 26 February 2004 before Lord Hardie. On 9 July 2004, Lord Hardie repelled the pleas in law for the reclaimer, sustained the fifth and tenth pleas in law and the ninth plea in law, as amended, for the respondents and refused the prayer of the petition. Against that interlocutor the reclaimer has now reclaimed.
[6]Six grounds of appeal have been stated on behalf of the reclaimer. These are in the following terms:
"1.The Lord Ordinary erred in law in applying the same approach to an extradition case as would apply to an immigration case. The Lord Ordinary erred in affording the respondents a wide margin of appreciation. Reference is made to paragraph [28] of his Opinion. The reclaimer is a United Kingdom citizen. He has rights under Article 8 of the European Convention on Human Rights in relation to an established family and private life in this country. His extradition is for the prevention of disorder or crime. Immigration control involves foreigners who have no legal right to be in the United Kingdom.
2.The Lord Ordinary erred in law. He found at paragraph [26] of his Opinion that the extent of the interference with the petitioner's private and family life as secured to the reclaimer by Article 8 of the European Convention on Human Rights and Fundamental Freedoms 1950 as amended is
' ... the additional restriction of contact between the petitioner and his immediate family occasioned by his incarceration in Estonia, as opposed to his detention in Scotland.'
This approach is not correct. At paragraphs [15] and [23] of his Opinion the Lord Ordinary acknowledged that a transfer to Estonia will involve a risk of a deterioration in the mental condition of the petitioner. Such a transfer and the associated risk constitute an interference with private life even if any medical treatment is, in principle, adequate. Undergoing a trial abroad (as opposed to in one's own country) is a further interference. The Lord Ordinary left out of account
(i)the question of transfer and associated risk of deterioration and
(ii)the interference of the trial itself in his assessment of
(i)the extent of any interference,
(ii)and thereby erred in law in his assessment of the
proportionality of extradition given the true extent of the interference of the said Article 8 rights of the reclaimer.
3.The Lord Ordinary erred in law. He erred in his approach to the question of proportionality in considering whether it is a proportionate interference with the petitioner's private and family life under Article 8 of the European Convention on Human Rights to extradite him to Estonia when he could be tried in Scotland for the same offence. The Lord Ordinary was wrong in law in suggesting at paragraph [28] of his Opinion that the United Kingdom would not fulfil its international obligations in seeking to prosecute the reclaimer in the United Kingdom when the alternative of extraditing the reclaimer would involve an interference with the Article 8 rights of the reclaimer. This error undermines the reasons given by the Lord Ordinary for not then taking the possibility of prosecution in the United Kingdom into account in the assessment of the proportionality of extradition.
4.The Lord Ordinary erred in law. At paragraph [28] of his Opinion his assessment of the need for co-operation on the part of the Estonian authorities in prosecuting the reclaimer in Scotland failed to take into account or give adequate...
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