Wright v HM Advocate
| Jurisdiction | Scotland |
| Judgment Date | 25 March 2004 |
| Date | 25 March 2004 |
| Docket Number | No 2 |
| Court | High Court of Justiciary |
Appeal Court, High Court of Justiciary
Lord Justice-Clerk (Gill), Lord Hamilton, Lord Macfadyen
Justiciary - Extradition - Authority to proceed with extradition addressed to sheriff principal - Whether committal proceedings required to be before sheriff principal rather than sheriff - Extradition Act 1989 (cap 33), sec 9
Section 7 of the Extradition Act 1989 provides that on receipt of an extradition request from a foreign state the Scottish Ministers may issue an authority to proceed. Section 8 provides that the sheriff may issue an arrest warrant. Section 9 provides that a person arrested in pursuance of such a warrant shall be brought as soon as possible before a court of committal, which is defined as consisting of the "sheriff of Lothian and Borders".
The petitioners were subject to extradition proceedings at the instance of Estonia. The Scottish Ministers issued an authority to proceed to "the Sheriff Principal of Lothian and Borders" The petitioners were committed to custody by a sheriff of Lothian and Borders but not by the sheriff principal. The petitioners petitioned the nobile officium for a review of the order of committal and argued that in the light of the wording of the authority only the sheriff principal could act as the court of committal in respect of the authority.
Held that: (1) any sheriff of Lothian and Borders, including the sheriff principal, might competently constitute the court of committal for the purposes of sec 9 (para 14); (2) there was nothing in the Act to suggest that the Scottish Ministers had a power or discretion by addressing the authority to a particular judge to select him as the court of committal for the particular case (para 17); and prayer of petition refused.
Robert Bruce Wright and Leslie Brown presented petitions to the nobile officium of the High Court of Justiciary in which they challenged the decision of the sheriff of Lothian and Borders (Bell), dated 29 March 2001, committing them to custody in respect of extradition proceedings.
Cases referred to:
Farinha (Re)TLR The Times, 13 Nov 1991
McAnea v HM AdvocateSCUNK 2000 JC 641; 2001 SLT 12; 2000 SCCR 779
Singh v HM AdvocateSCUNK 2001 JC 186; 2001 SLT 812; 2001 SCCR 348
Triplis, PetrUNK 1998 SLT 186; 1997 SCCR 398
The petition called before the High Court of Justiciary, comprising the Lord Justice-Clerk (Gill), Lord Hamilton and Lord Macfadyen for a hearing.
At advising, on 25 March 2004, the opinion of the Court was delivered by Lord Macfadyen-
Opinion of the Court-
[1] The petitioners are each the subject of extradition proceedings at the instance of the Republic of Estonia. Provisional warrants for their arrest were granted by a sheriff, on 7 March 2001, in pursuance of sec 8(1)(b)(iii) of the Extradition Act 1989 (as amended) ('the Act'). On 26 March 2001 the Scottish Ministers, in pursuance of their powers under sec 7(4) of the Act, issued in respect of each petitioner an authority to proceed. Acting in reliance on the authority thus granted, one of the sheriffs of Lothian and Borders (Sheriff Bell) on 29 March 2001 committed the petitioners to custody for the purposes specified in sec 9(8) of the Act. After certain further procedure the Scottish Ministers on 12 June 2001 made orders under sec 12 of the Act for the petitioners' return to Estonia. On 18 June 2001 the petitioners presented petitions for judicial review, as they were entitled to do in terms of sec 13(6). Those petitions are still pending in the Court of Session and, so long as that state of affairs continues, the return of the petitioners to Estonia is prohibited by sec 13(7).
[2] The purpose of these petitions to the nobile officium of this court is to challenge the validity of the committal proceedings before the sheriff and the orders of committal which he pronounced on 29 March 2001. It is not disputed that such petitions are the appropriate procedure by which to apply to this court under sec 11(6) of the Act for review of an order of committal (as was done, for example, in Triplis, Petr). The petition at the instance of the first petitioner was initially presented on 17 September 2003, and subsequently amended. The petition at the instance of the second petitioner was presented on 10 June 2003 and was amended in the course of the hearing before us on 25 March 2004. As the petitions now stand, they both raise the same short issue. The petitioners accept that the court of committal is defined in sec 9(3) of the Act as consisting of 'the sheriff of Lothian and Borders'. They...
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