Trajer v Lord Advocate
| Jurisdiction | Scotland |
| Judgment Date | 19 December 2008 |
| Neutral Citation | [2008] HCJAC 78,2009 SCCR 151 |
| Date | 19 December 2008 |
| Docket Number | No 12 |
| Court | High Court of Justiciary |
Appeal Court, High Court of Justiciary
Lord Osborne, Lord Clarke, Lord Philip
Justiciary - Extradition - European arrest warrant - Arrest after conviction and sentence in absence - Whether delay unjust or oppressive - Whether disproportionate interference with appellant's rights to respect for family life
Justiciary - Extradition - Appeal hearing - Whether fresh matters could be raised that had not been raised at the original hearing - Whether evidence could be put before the appeal court, not available at the original hearing - Extradition Act 2003 (cap 41), sec 26
On 16 May 2002 the appellant was found guilty of various offences in the Czech Republic and sentenced to imprisonment. On 28 January 2003 his conviction and sentence were upheld. The appellant had been released on bail in connection with these matters with a condition of domicile. The appellant had not been staying at his given domicile and the judgment of the Czech Court of Appeal was not delivered to him. The court ordered the appellant to hand himself over, in order to serve his custodial sentence. Repeated attempts were made by the authorities in the Czech Republic to trace the appellant. On 7 January 2008 following information from Interpol, a European arrest warrant was issued. Thereafter the appellant was arrested in Scotland where, for a time he had been resident. The appellant did not consent to his extradition and a hearing was fixed. On 17 March 2008 the sheriff ordered the appellant to be extradited to the Czech Republic.
The appellant appealed that decision. He argued that it would be unjust and oppressive to return him to the Czech Republic having regard to the whole circumstances, in particular the extent to which he had become settled in Scotland and having regard also to the proportion of his sentence which remained to be served. Thereafter a supplementary note of appeal was lodged. The appellant further argued that the sheriff had erred in failing to consider whether his surrender under the Extradition Act 2003 would have been unjust and oppressive and in those circumstances he had not had a fair hearing.
The Lord Advocate opposed the appellant's motion for reasons related to the chronology of these particular proceedings and the powers of the court of appeal.
Held that: (1) in an appeal under sec 26 of the Extradition Act 2003, matters could be raised that had not been raised at the original extradition hearing and evidence could be put before the court that had not been available at that hearing (para 29); (2) it could not be said to have been unjust or oppressive by reason of the passage of the relevant period of time, to extradite the appellant (para 33); (3) while the appellant had formed a relationship with his partner in Scotland and acquired heritable property in Scotland in which to live, those matters had not been of sufficient significance as to have been capable of giving rise to a conclusion of oppression, either themselves, or in association with the other matters that should have been considered (para 33); (4) the length of sentence remaining to be served had been a significant period and extradition had not been capable of being characterised as oppressive (para 33); (5) there had been nothing in the circumstances of this case which would have rendered extradition a disproportionate interference with the appellant's rights to respect for his family life; and appeal refused.
Observed that: (1) counsel for the appellant had invited the court to consider the contents of the appellant's affidavit on the subject of prison conditions in the Czech Republic (para 35); (2) what had been said would not of itself have displaced the presumption arising from the membership of the Czech Republic of the European Union and its participation in the European arrest warrant system, to the effect that prison conditions there are compatible with the provision of the European Convention on Human Rights and Fundamental Freedoms (para 25); (3) were it to have emerged at a later stage that there had been legitimate concerns about the conditions in which the appellant had been incarcerated in the Czech Republic, following his extradition, and their compatibility with the provisions of the Convention, that had been a matter which could have been raised in the Czech Republic itself.
Michal Trajer appeared before the sheriff of Lothian and Borders at Edinburgh in respect of a European arrest warrant issued by the Czech Republic. On 17 March 2008 after sundry procedure, the sheriff (JD Allan) ordered his extradition to the Czech Republic. The appellant appealed to the High Court of Justiciary under sec 26(1) of the Extradition Act 2003.
Cases referred to:
Campbell v HM AdvocateSCUNK [2008] HCJAC 11; 2008 JC 265; 2008 SCCR 284
Goatley v HM AdvocateSCUNK [2006] HCJAC 55; 2008 JC 1; 2007 SLT 14; 2006 SCCR 463
Jaso v SpainWLR [2007] EWHC 2983; [2008] 1 WLR 2798
Mamatkulov and Askarov v TurkeyHRC (2005) 41 EHRR 25; 18 BHRC 203
Miklis v Deputy Prosecutor General of LithuaniaUNK [2006] EWHC 1032; [2006] 4 All ER 808
Office of the King's Prosecutor, Brussels v Cando ArmasUNKELRWLRUNK [2005] UKHL 67; [2006] 2 AC 1; [2005] 3 WLR 1079; [2006] 1 All ER 647
Pilecki v Circuit Court of Legnica, Poland [2007] EWHC 2008
The cause called before the High Court of Justiciary, comprising Lord Osborne, Lord Clarke and Lord Philip, for a hearing, on 23 October 2008.
At advising, on 19 December 2008, the opinion of the Court was delivered by Lord Osborne-
Opinion of the Court-
[1] On 16 May 2002, at the District Court of Prostejov in the Czech Republic, the appellant was found guilty, in his presence, of contraventions of Arts 241 and 248 of the penal code of the Czech Republic, namely rape and embezzlement. The appellant was sentenced to four years and six months imprisonment. On 1 July 2002 he lodged a note of appeal. The decision of the Brno Court of Appeal, issued on 28 January 2003, was to confirm the decision of the District Court of Prostejov and uphold the appellant's conviction and sentence.
[2] The appellant had been released on bail in connection with these matters on 26 February 2002, on the condition that he informed the court of his domicile. However, the appellant had not been staying at his given domicile, so that the judgment of the Court of Appeal in Brno was not delivered to him. On 6 March and 23 March 2003 the court sent to the appellant calls for him to enter custody and serve his sentence of imprisonment. Again on 14 July 2003 the court ordered the appellant to hand himself over in order to serve his custodial sentence. Thereafter there were repeated attempts by the authorities in the Czech Republic to trace the appellant. On 19 August 2003 a Republic-wide police search for the appellant was announced. The last attempt of the court to contact the appellant was on 4 August 2006. On 16 November 2007, the court was advised by the police in the Czech Republic that they had received information from Interpol to the effect that the appellant was residing outwith the Czech Republic. In the relevant correspondence it is noted that the first information about the appellant's whereabouts was given by Interpol to the Czech authorities on 14 November 2007. On 7 January 2008 a European arrest warrant was issued in respect of the appellant.
[3] Thereafter, the appellant was arrested in Scotland, where, for a time, he had been resident. At an initial hearing in Edinburgh Sheriff Court on 29 February 2008, the solicitor then acting for the appellant confirmed that the appellant had been arrested under a Pt 1 warrant issued by a category 1 territory in terms of the Extradition Act 2003 (cap 41) ('the 2003 Act'). He also confirmed that a copy of the warrant had been given to the appellant in both the Czech and English languages, as soon as practicable after his arrest; and that the appellant was the person in respect of whom the warrant had been issued. Having been informed of his right to consent to extradition, the appellant advised the court that he did not consent to the extradition and accordingly an extradition hearing was fixed to take place on 17 March 2008. The appellant was remanded in custody, bail having been refused.
[4] On the latter date, the sheriff heard submissions on behalf of the appellant and the Lord Advocate. He decided that the offences specified in the Pt 1 warrant were extradition offences, within the meaning of sec 10(2) of the 2003 Act; that the extradition of the appellant to the Czech Republic, being a category 1 territory was not barred by reason of any of the circumstances set out in sec 11(1)(a) to (j) of the 2003 Act; that the appellant, who was alleged to be unlawfully at large...
To continue reading
Request your trial
-
Poland V. Sebastian Bielecki
...adopted in Wellington v Secretary of State for the Home Department [2008] UKHL 72; [2009] 1 AC 335. In the case of Trajer v H M Advocate [2008] HCJAC 78 at paragraph [35] the Court did not consider information placed before them was sufficient to displace the presumption that the prison con......
-
Poland V. Adam Kropiwnicki
...out by the Polish Supreme Court of 28 February 2007 (File Ref. No. V CSK 431/06)." [41] I was referred to Trajer v Her Majesty's Advocate 2009 SCCR 151 at para [35] and Baksys v Ministry of Justice for the Republic of Lithuania [2007] EWHC 2838 (Admin). In the former case their Lordships sa......
-
Dorothy May Fasola V. Her Majesty's Advocate
...at first instance unless there is very good reason indeed why they should not be." We note, however, that in Trajer v Lord Advocate [2008] HCJAC 78, 19 December 2008, the opinion in which was issued after the hearing in the present case, this court disagreed with this observation. At paragr......
-
Fatjon Kapri V. The Lord Advocate For And On Behalf Of The Court Of First Instance Judicial District Of Elbasan, Albania
...section 27 of the Act (the identical provision dealing with a Part 1 territory) had been interpreted in the case of Trajer v Lord Advocate 2009 JC 108 and on the comments made by Lord Justice Stanley Burnton at paragraph 19 of his decision in Hoholm v Norway [2009] EWHC 1513 (Admin). [20] M......