Wright v Scottish Ministers
| Jurisdiction | Scotland |
| Judgment Date | 27 May 2005 |
| Date | 27 May 2005 |
| Docket Number | No 37 |
| Court | Court of Session (Inner House - Extra Division) |
Court of Session Inner House Extra Division
Lord Osborne, Lord Nimmo Smith, Lord Reed
Administrative law - Judicial review - Extradition - Proportionality of interference with human rights resulting from extradition to public interest and legitimate aim of extradition process - Extradition Act 1989 (cap 33) - Human Rights Act 1998 (cap 42), sch 1, Art 8
The Extradition Act 1989 and the European Convention on Extradition Order 1990 (SI 1990/1507) reflect, inter alia, the obligations undertaken by the United Kingdom under the European Convention on Extradition concluded in 1957, and set out procedures for implementing them. By sch 1 of the Order the United Kingdom undertakes, subject to the provisions of the Convention, to surrender to other contracting parties persons against whom the competent authorities thereof are proceeding. The Republic of Estonia is a contracting party. Article 8 of the European Convention on Human Rights and Fundamental Freedoms provides that everyone is entitled to respect for their private and family life.
The petitioner, a British national, was detained in prison in Scotland following the receipt of an extradition request from Estonia which was made on the ground that he had been involved in smuggling narcotic drugs, contrary to the Estonian Penal Code. No proceedings had been brought against him in Scotland. An order was signed by the respondents authorising the petitioner's extradition. The petitioner's mental health then deteriorated and he was transferred to the State Hospital, Carstairs. He brought a petition for judicial review of the decision to extradite him. The respondents reviewed their decision in the light of his changed circumstances, but upheld it. Hearings took place, and on 9 July 2004 the Lord Ordinary refused the prayer of the petition.
The petitioner reclaimed. He contended that the Lord Ordinary had erred in his assessment of the proportionality of the interference with his right to respect for his private and family life which extradition would cause. He had found that extradition would involve a risk of deterioration of the petitioner's mental health, and restriction of contact with his family. It was submitted that the petitioner could be prosecuted in Scotland for substantially the same offence, so there was no question of his evading justice and thus defeating the purpose of the process of extradition. It was suggested that the court could examine the reasons the Lord Advocate had for deciding whether or not to prosecute the petitioner in Scotland. It was submitted that the Convention gave a contracting party the right to refuse to extradite its own nationals. The petitioner also contended (1) that the Lord Ordinary failed to take into account the fact that important witnesses were resident in the United Kingdom; (2) that he erred in approaching the case as if it were an immigration case, and affording the respondents a wide margin of appreciation; and (3) that his approach permitted 'forum shopping' by states to try individuals in the state where they were most likely to be convicted. In the light of the petitioners' submissions about the possibility of prosecution in Scotland, the court afforded the Lord Advocate the opportunity to enter the process, which he did. He advised the court that no evidence had been presented to him about the alleged crime, and no decision had been taken about prosecution. The investigation had taken place in Estonia, and the petitioner had first come to his attention when the request for extradition was made. He submitted that there was no obligation on him to consider investigating the matters raised in the extradition request, far less to mounting a prosecution in Scotland. The respondents submitted that the Lord Ordinary had correctly concluded that such interference as extradition might cause to the petitioner's Art 8 rights was justified and proportionate. The Lord Ordinary had examined the possibility of adverse effects on the petitioner's health; conditions and medical treatment available in Estonia; and the likely effects on contact with the petitioner's family. The respondents also submitted (1) that a wide margin of appreciation was appropriate in the area of extradition as in the area of immigration, and that in any event the Lord Ordinary had not based his decision on according the respondents a wide margin; and (2) that the Lord Ordinary was correct in saying there was a treaty obligation to Estonia to extradite the petitioner.
Held that: (1) there were both domestic and foreign aspects to the alleged interference with the petitioner's Art 8 rights, and the Lord Ordinary had fully considered the former, being the potential effects on the petitioner's health and family contact caused by extradition; in respect of the latter, an extremely high threshold had to be overcome, and the petitioner would have to show that if extradited there would be a flagrant denial or gross violation of his rights, which he had not made out (paras 50, 55); (2) an extradition treaty was a contract between two sovereign states intended to bring to justice persons guilty of crimes committed in either state, and the operation of such salutary international arrangements should not be inhibited on account of the limited interference their operation would involve with the petitioner's Art 8 rights (paras 56-59); (3) the underlying purpose of extradition is to return a person properly accused or convicted of an extradition crime in a foreign country to face trial or serve his sentence there, and while a legal basis for prosecution of the petitioner in Scotland might exist, that was very far from certain, and in any event would not render disproportionate the interference with the petitioner's Art 8 rights to the legitimate aim of extradition, which was the prevention of disorder or crime (paras 60-70); (4) the Lord Ordinary had not erred in concluding that the same principles should apply in respect of affording a wide margin of appreciation to extradition decisions and immigration decisions; while the reasons favouring such a margin in immigration cases and extradition cases are different, in both situations the ministerial decision-maker has to take into account considerations of public policy, albeit different considerations, and is best placed to make decisions in relation to that type of consideration; but in any event, the Lord Ordinary's decision did not depend on his view that the respondents should be afforded a wide margin of appreciation (paras 72-75); (5) there was no foundation for the claim that the approach of the Lord Ordinary would allow 'forum shopping' to obtain trial in the jurisdiction most likely to secure a conviction; such a claim not only had no foundation in fact but failed to take into account the nature and significance of the international obligations involved (paras 76, 77); and reclaiming motionrefused.
Robert Bruce Wright presented a petition to the Court of Session for judicial review of a decision to extradite him to Estonia. The Scottish Ministers were called as respondents. The cause called for hearings on 13 May 2003 and 24 to 26 February 2004. On 9 July 2004, the Lord Ordinary (Hardie) refused the prayer of the petition.
The petitioner reclaimed. The cause called before an Extra Division, comprising Lord Osborne, Lord Nimmo Smith and Lord Reed, for a hearing on the summar roll, on 2,3,and 4 November 2004. In the light of the reclaimer's submissions, the court ordered intimation on the Lord Advocate, who entered the process by minute and was represented by counsel at the continued hearing, on 15 and 16 March 2005.
Cases referred to:
Bensaid v UKHRC (2001) 33 EHRR 10
Cossey v UKFLRFLRHRC [1991] 2 FLR 492; [1993] 2 FLR 97; (1991) 13 EHRR 622
D v UKHRC (1997) 24 EHRR 423
Evans (Re)WLRUNK [1994] 1 WLR 1006; [1994] 3 All ER 449
I v UKFLRFLRHRC [2002] 2 FLR 518; [2002] 2 FLR 613; (2003) 36 EHRR 53
International Transport Roth GmbH v Secretary of State for the Home DeptUNKELRWLR [2002] EWCA Civ 158; [2003] QB 728; [2002] 3 WLR 344
Launder v UKHRC (1997) 25 EHRR CD 67
Lopez Ostra v SpainHRC (1995) 20 EHRR 277
Raninen v Finland HRC(1997) 26 EHRR 563
Rees v UKFLRHRC [1987] 2 FLR 111; (1987) 9 EHRR 56
R v Ashford Remand Centre, ex p PostlethwaiteELRWLRUNK [1988] 1 AC 924; [1987] 3 WLR 365; [1987] 2 All ER 985
R v Secretary of State for the Home Dept, ex p DalyUNKELRWLRUNK[2001] UKHL 26; [2001] 2 AC 532; [2001] 2 WLR 1622; [2001] 3 All ER 433
R v Secretary of State for the Home Dept, ex p RazgarUNKELRWLRUNK[2004] UKHL 27; [2004] 2 AC 368; [2004] 3 WLR 58; [2004] 3 All ER 821
R v Secretary of State for the Home Dept, ex p WarrenUNK[2003] EWHC Admin 1177
R v Special Adjudicator, ex p UllahUNKELRWLRUNK [2004] UKHL 26; [2004] 2 AC 323; [2004] 3 WLR 23; [2004] 3 All ER 785
Schmidt (Re)ELRWLRUNK [1995] AC 339; [1994] 3 WLR 228; [1994] All ER 65
Sheffield and Horsham v UKFLRFLRHRC [1998] 2 FLR 928; [1998] 3 FLR 141; (1999) 27 EHRR 163
Slivenko v LatviaUNKHRCUNK [2004] 2 FCR 28; (2004) 39 EHRR 24; [2003] 15 BHRC 660
Soering v UKHRC (1989) 11 EHRR 439
Wakefield v UK App No 15817/89, unreported
Wright v Scottish Ministers 2003 SLT 840
Textbooks etc. referred to:
Clayton, R, and Tomlinson, H, The Law of Human Rights (2000, Oxford University Press, Oxford), paras 12.131-12.133, 13.113, 13.114
Criminal Justice: Plans for Legislation (Cmnd 9658, 1986), pp 20, 21
Extradition (Cmnd 9421, 1985)
Fraser, JOA, "Civil Jurisdiction: Jurisdiction in matters excluded from the scope of the 1982 Act" in Stair Memorial Encyclopaedia: The Laws of Scotland (1991, Butterworths/Law Society of Scotland, Edinburgh), vol 4, para 76
Renton, RW, and Brown, S, Criminal Procedure According to the Law of Scotland (6th Looseleaf ed, W Green, Edinburgh, 1996), paras 3.01-3.07
At advising, on 27 May 2005, the opinion of the Court was delivered by Lord Osborne-
Opinion of the Court-
[1] On 7 March...
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