Issue 52 February 2011 - Current Awareness: Criminal Procedure & Evidence

 

CRIMINAL PROCEDURE AND EVIDENCE - Allen v The Lord Advocate [2010] HCJAC 74

This was an appeal against an extradition order by a sheriff ordering the surrender of the appellant to Germany in terms of s.21 of the Extradition Act 2003. The German authorities wished to have the appellant returned to their jurisdiction to place him on trial for a crime which in this country would be libelled either as an assault to the danger of life or attempted murder. The assault in question is said to have taken place in Berlin during the afternoon of October 27, 2004. The victim was another UK citizen named Fulford. Mr Fulford subsequently died in England in October 2006. It was not contended before the sheriff that his death was linked to the alleged assault although the sheriff noted in his report that the position of the German court in that connection was entirely unknown. The sheriff proceeded on the basis that the appellant’s return is required in respect of the assault as specified in the arrest warrant. The appellant was born in Scotland, but, prior to his arrest he was usually resident in the Republic of Ireland. On appeal, the appellant sought to attack the decision of the sheriff on three grounds, including that the sheriff erred in law in deciding that the appellant’s extradition would be compatible with his Convention rights within the meaning of the Human Rights Act 1998. This ground of appeal went on to say that, “in particular, he decided that his extradition would be compatible with the appellant’s rights under Article 6(1) to have a fair and public hearing of the case against him ‘within a reasonable time’, and under Article 8 to have respect for his private or family life”.

Held: appeal dismissed on all grounds.

(1) In relation to the human rights arguments, the main argument by senior counsel was that reliance should be placed on the lapse of time which has ensued since the commission of the alleged offence which meant, it was said, that any possible trial in the future would not be a trial within a reasonable time for the purposes of art.6 of the Convention. Under reference to the appellant’s re-established relationship with his adult son, he also placed some reliance upon the provisions of art.8 of the Convention. It was also argued that there had been a loss of evidence since the alleged offence which would make any trial unfair.

(2) In relation to the art.6 “loss of evidence” argument, it was difficult to see why the subsequent death of the victim can be regarded as involving, per se, and without further information, the potentiality of an unfair trial. Nothing was said as to any evidence which might have emanated from that witness which would have been crucial for the defence. In any event this was a matter which was a question for the court of the requesting authority, having regard to its obligations under the European Convention on Human Rights. In Falanga v The Office of the State Prosecutor, Court of Novara, Italy (2007) EWHC 268, Stanley Burnton J., with whom Maurice Kay L.J. agreed, said, at para.23: “The European Arrest Warrant is designed to be an expeditious and summary means of securing extradition as between States or parties to the European Convention on Human Rights, where generally it may be assumed that those rights are complied with.”

(3) There is a very strong presumption that those countries who are signatories to the European Convention on Human Rights will comply with its provisions when dealing with someone in the position of the appellant. It may be possible to overcome that presumption but only where there is compelling evidence brought before the court to rebut it.

(4) As regards the art.8 argument made on behalf of the appellant, the test is that before an art.8 argument can succeed in the context of extradition, it is for the appellant to show that, on balance, there are, in his case, “striking and unusual features” which mitigate against extradition and lead to a conclusion that such extradition would be a disproportionate interference with his art.8 rights. For all the reasons set out carefully by the sheriff in his report, the material advanced on behalf of the appellant in this case came nowhere near satisfying that test. The circumstances of the present case were that the first he knew of the matter was in early January 2009 and where his life in Ireland, since leaving Germany, simply involved him living a more stable life than he had chosen to live in Germany, did not point to a breach of art.8. His life was more stable, he had contact with his son now and was studying. As has been repeatedly said, extradition will, by definition, involve disruption to a person’s normal settled life, but in this case there was nothing exceptional about the appellant.