Antonio La Torre V. Her Majesty's Advocate
| Jurisdiction | Scotland |
| Judge | Lord Justice Clerk,Lord Macfadyen,Lord Nimmo Smith |
| Judgment Date | 14 July 2006 |
| Neutral Citation | [2006] HCJAC 56 |
| Court | High Court of Justiciary |
| Docket Number | XC920/05 |
| Published date | 14 July 2006 |
| Date | 14 July 2006 |
| APPEAL COURT, HIGH COURT OF JUSTICIARY | |
| Lord Justice Clerk Lord Macfadyen Lord Nimmo Smith | [2006] HCJAC 56 Appeal Nos: XC920/05 and XC19/06 OPINION OF THE COURT delivered by THE LORD JUSTICE CLERK in APPEAL by ANTONIO LA TORRE Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______ |
For the appellant: Bovey QC; Mrs Hughes; Nolf & Co., Aberdeen
For the respondent: Moynihan QC; Crown Agent
14 July 2006
I INTRODUCTION
[1] All members of the court have contributed to this Opinion. These are appeals against (i) the decision of Sheriff K M Maciver, a sheriff of Lothian and Borders at Edinburgh, dated 27 September 2005 by which he remitted the appellant's case to the Scottish Ministers for them to decide whether or not to extradite the appellant to Italy to stand trial on certain charges relating to organised crime, and the decision of the Scottish Ministers dated 26 November 2005 by which they ordered extradition; and (ii) the decision of Sheriff Maciver dated 21 December 2005 by which he ordered the extradition of the appellant. The first appeal (the Part 2 appeal) relates to an extradition request made by the Government of Italy in January 2005. The second (the Part 1 appeal) relates to a European Arrest Warrant submitted to the Crown Agent in September 2005. The appellant has also lodged devolution minutes in both appeals.
II THE EXTRADITION ACT 2003
[2] The 2003 Act made fundamental changes to the law of extradition. It provides for two separate regimes of extradition based on the distinction between category 1 and category 2 territories. Throughout this Opinion all references to statutory provisions are references to the 2003 Act unless we state otherwise. The following summary covers only those features of the 2003 Act that are relevant to the issues in this case.
Part 1
[3] Part 1 of the Act implements the Council Framework Decision of 13 June 2002 on the European Arrest Warrant and the surrender procedures between Member States (2002/584/JHA) (the Framework Decision). It sets out a code of procedure for extradition on a European Arrest Warrant. The Warrant is 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 his being prosecuted in the requesting State (s 2(3)(a)) or for the execution in that State of a custodial sentence or detention order (s 2(5)(a)). The European Arrest Warrant regime is designed to achieve fast track extradition procedures based on the principle of mutual recognition of judicial decisions by the parties to it. Part 1 of the Act applies to extradition between the United Kingdom and category 1 territories, that is to say those which are parties to and have implemented the Framework Decision.
[4] This procedure is initiated by the issue of a European Arrest Warrant ("the Warrant") by a judicial authority in a category 1 territory. When a Warrant is received by the Crown Agent, the "designated authority" in Scotland, a decision must be taken whether to certify the Warrant for execution (s 2(7)-(10); s 3). As soon as practicable after an arrest is effected, a copy of the Warrant must be given to the arrested person and he must be brought before a sheriff of Lothian and Borders (s 67(1)(b)), failing which he must be discharged (s 4). At this appearance, the sheriff must inter alia fix a date for the holding of the extradition hearing within 21 days from the date of the arrest (s 8(1), (4)).
[5] At the extradition hearing, the Sheriff must decide whether the offence specified in the Warrant is an extradition offence (s 10(2)). The answer to that question depends on whether the person has yet to be convicted, or sentenced, in respect of the offence in the issuing state or is said to be unlawfully at large after being sentenced (ss 64-66, Sched 2). The sheriff must then consider whether extradition is barred for any of the reasons listed in section 11(1). These reasons include the rule against double jeopardy (s 11(1)(a)) and the passage of time (s 11(1)(c)). If none of these reasons applies, the sheriff must decide whether the person is accused of the extradition offence or is unlawfully at large after conviction of it (s 11(4), (5)). If the person has been convicted, the sheriff is required to determine whether he was convicted in his presence and, if not, whether he deliberately absented himself from his trial (s 20(1), (3)). If the sheriff decides that he did not, he must decide whether the person would be entitled to a retrial or, on appeal, to a review amounting to a retrial (s 20(5)). If he would be, the sheriff must then consider the human rights aspects of the proposed extradition under section 21 (s 20(6)). It provides inter alia as follows:
"21 Human rights
(1) If the judge is required to proceed under this section (by virtue of section 11 or 20) he must decide whether the person's extradition would be compatible with the Convention rights within the meaning of the Human Rights Act 1998 (c 42).
(2) If the judge decides the question in subsection (1) in the negative he must order the person's discharge.
(3) If the judge decides that question in the affirmative he must order the person to be extradited to the category 1 territory in which the warrant was issued ..."
Where the sheriff decides to order extradition, which in Part 1 is an exclusively judicial decision, an appeal lies to the High Court of Justiciary (s 26(1), s 216(9)), on a question of fact or law, unless the person has consented to extradition. It must be brought within seven days of the granting of the order (s 26(3), (4)).
Part 2
[6] Part 2 governs the procedure for extradition between the United Kingdom and category 2 territories.
[7] The Scottish Ministers may begin proceedings under Part 2 by sending to the sheriff of Lothian and Borders a certificate in respect of a valid request from a category 2 territory under section 70(1), stating that it has been made in the approved way and enclosing with it the extradition request itself and a copy of any relevant Order in Council (s 70(8), (9)). The sheriff may issue a warrant for the arrest of the person if he has reasonable grounds for believing that the offence in respect of which extradition is requested is an extradition offence and that there is evidence that would justify the issue of a warrant for the arrest of a person accused of the offence within the sheriff's jurisdiction, if the person whose extradition is requested is accused of the commission of the offence; or evidence that would justify the issue of a warrant for the arrest of a person who was unlawfully at large after conviction of the offence within the sheriff's jurisdiction if the person whose extradition is requested is alleged to be unlawfully at large after conviction of the offence (s 71(2), (3)).
[8] Where a person is arrested under a section 71 warrant, an extradition hearing must take place within two months of his appearance before the sheriff (s 75(1)) unless a later date is fixed in the interests of justice (s 75(4)).
[9] At the extradition hearing, the sheriff must decide whether the documents sent to him by the Scottish Ministers consist of or include the formal documents necessary for the section 71 warrant to be issued (s 70(9)); the particulars of the person whose extradition is requested; particulars of the offence specified in the request and, in the case of a person accused of an offence, a warrant for his arrest issued in the category 2 territory or, in the case of a person alleged to be unlawfully at large after conviction of an offence, a certificate issued in the category 2 territory of the conviction, and of the sentence if he has been sentenced (s 78(2)). If the sheriff is not so satisfied, the person must be discharged (s 78(3)). If the sheriff is content that the necessary documents have been provided, he must then be satisfied (s 78(5)) that the person before him is the person whose extradition is requested, that the offence is an extradition offence (cf ss 137-138) and that copies of the documents sent by the Scottish Ministers to the sheriff have been served on the person (s 78(4)).
[10] The sheriff is then required to be satisfied that extradition is not barred for any of the reasons set out in section 79(1). These reasons include, as in Part 1, the rule against double jeopardy (s 79(1)(a); s 80) and the passage of time (s 79(1)(c); s 82).
[11] Where a person has already been convicted of the offence, the same considerations as apply to category 1 territories must then be applied; for example, in the case of a person convicted in absentia, whether he was wilfully absent. If a person has been convicted in absentia without knowledge of the proceedings, a prima facie case must be established against him as in the case of an accused person.
[12] If the sheriff is satisfied as to these matters, he must then consider whether an order for extradition would be compatible with the person's Convention rights (s 87). If not, he must order the person's discharge.
[13] When he is satisfied on all of these matters, the sheriff must send the case to the Scottish Ministers to decide whether or not to extradite (s 92(1)). He must at that stage inform the person that he has a right of appeal to the High Court of Justiciary, but that any appeal will not be heard until the Scottish Ministers have made their decision (s 92(2)). If the Scottish Ministers decide to make an extradition order (s 93) they must inform the person of that decision and inform him in ordinary language of his right of appeal against their decision to the High Court of Justiciary (s 100(1)).
[14] The person to be extradited may appeal against the decision of the sheriff on a question of law or fact within fourteen days of his being informed of an order by the Scottish Ministers for his extradition (cf s 103). He may appeal against the extradition order on a question of fact or law within the same...
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