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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Wright v. The Scottish Ministers [2005] ScotCS CSIH_40 (27 May 2005) URL: http://www.bailii.org/scot/cases/ScotCS/2005/CSIH_40.html Cite as: [2005] CSIH 40, 2005 GWD 17-307, 2005 SLT 613, 2005 1 SC 453, [2005] ScotCS CSIH_40, 2006 SCLR 14 |
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Wright v. The Scottish Ministers [2005] ScotCS CSIH_40 (27 May 2005)
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EXTRA DIVISION, INNER HOUSE, COURT OF SESSION |
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Lord Osborne Lord Nimmo Smith Lord Reed
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[2005CSIH40] P720/01 OPINION OF THE COURT delivered by LORD OSBORNE in RECLAIMING MOTION in PETITION FOR JUDICIAL REVIEW by ROBERT BRUCE WRIGHT Petitioner and Reclaimer; against THE SCOTTISH MINISTERS Respondents: _______ |
Act: Bovey, Q.C., Blair; Balfour & Manson (Petitioner)
Alt: Doherty, Q.C., Crawford; Richard Henderson, solicitor to the Scottish Executive:
C.H.S. MacNeill, Advocate (Crown Agent)
27 May 2005
The background
[1] On 7 March 2001 the procurator fiscal at Edinburgh presented a petition to the Sheriff at Edinburgh in which it was narrated that, from information received by the petitioner, there were reasonable grounds for suspecting that the reclaimer had committed an extradition crime, punishable under the law of Estonia, a foreign State within the meaning of section 3 of the Extradition Act 1989, referred to hereafter as "the 1989 Act", which was a party to the European Convention on Extradition, concluded at Paris on 13 December 1957, referred to hereafter as "the Convention on Extradition", and with which general extradition arrangements had been made in terms of that Convention, subject to reservations and notifications embodied in the European Convention on Extradition Order 1990 (S.I. 1990 No. 1507), in respect that he had committed the crime of organising the smuggling of narcotic drugs, contrary to Article 17, passage 4 and Article 76, passage 3, section 2 of the Estonian Penal Code, which crime in Scots law in the particular circumstances of this case was known as the crime of being concerned in the supply of controlled drugs, contrary to section 4(3)(b) of the Misuse of Drugs Act 1971, and which, in both jurisdictions, was punishable with imprisonment for a term of 12 months, or by greater punishment. It was averred that, in particular, the reclaimer was alleged to have been concerned in the supply of class A controlled drugs in Estonia, the United Kingdom of Great Britain and elsewhere in Europe between 22 September 2000 and 2 November 2000. A warrant for the arrest of the reclaimer in respect of the crime mentioned, or other order having the same effect, had been issued by Mart Toming, Judge of the City Court of Tallinn on 2 March 2001, in accordance with the procedure laid down in the law of Estonia. It was also narrated that the competent authorities of Estonia had requested the provisional arrest of the reclaimer and had stated that, in the event of his arrest, his extradition would be requested. Against that background the Sheriff was craved to grant a warrant in terms of section 8(1)(b) and 9(1) of the 1989 Act for the arrest of the reclaimer and for him to be brought as soon as practicable before the court. On the same date, the Sheriff at Edinburgh granted the warrant craved. [2] In response to an extradition request from the Republic of Estonia for the return of the reclaimer dated 13 March 2001, the respondents, by an order dated 26 March 2001, issued an authority to proceed to the Sheriff Principal of Lothian and Borders, under section 7(4) of the 1989 Act, in pursuance of that request. By an interlocutor dated 29 March 2001, the Sheriff at Edinburgh made an order in terms of section 9(8) of the 1989 Act, committing the reclaimer to the prison of Saughton, Edinburgh, to await the decision of the respondents as to his return. In accordance with section 11 of the 1989 Act, the court informed the reclaimer of his right to make an application to the High Court of Justiciary for review of the order of committal. The petitioner did not challenge the order of the Sheriff. [3] On 18 April 2001, in accordance with section 13(1) of the 1989 Act, the respondents gave notice to the reclaimer that they were contemplating making an order under section 12(1) of the 1989 Act for his return to Estonia. The reclaimer was advised of his right to make representations to the respondents at any time prior to 2 May 2001 as to why he should not be returned to Estonia. On 31 May 2001 solicitors acting on behalf of the reclaimer submitted such representations to the respondents. Although these representations were not submitted timeously, they were in fact considered by the respondents. On 12 June 2001 the respondents signed an order for the reclaimer's return to Estonia. The reasons for the respondents' decision were contained in a letter, dated 14 June 2001, addressed to the reclaimer's then solicitors. Following the decision of the respondents to order the return of the reclaimer to Estonia, his mental health deteriorated while he was within Saughton Prison. [4] On 18 June 2001, the present petition for judicial review was presented on behalf of the reclaimer to this court, when a first order was made. Under that order, the petition was appointed to be served upon, among others, the Lord Advocate. In the petition, various remedies were sought, including reduction of the order, dated 12 June 2001, for the return of the reclaimer to Estonia. Subsequently, on or about 9 August 2001, the reclaimer was transferred from Saughton Prison to the State Hospital, Carstairs, on account of his mental condition and because no other hospital offered adequate security in which to house him. There followed procedure in the reclaimer's petition for judicial review, with which we do not require to be concerned. In view of the changed circumstances of the reclaimer, the respondents reconsidered their decision, of 12 June 2001, but, by letter dated 26 June 2002, they intimated to the reclaimer's solicitors that they had decided to uphold that decision to order the return of the reclaimer to Estonia. The reclaimer remained in the State Hospital, Carstairs, until on or about 23 November 2003, when he was transferred to prison. Thereafter, further representations were made on his behalf by his solicitors, but, by letter dated 17 February 2004, the respondents adhered to their earlier decision that it was not unjust or oppressive to order the reclaimer's return and that he should be returned to Estonia. [5] The reclaimer's petition for judicial review came before Lord Sutherland on 13 May 2003, when he heard argument relating to certain parts of the petition. By interlocutor dated 30 May 2003, Lord Sutherland rejected certain of the criticisms made in the petition of the respondents' decisions and appointed a second hearing to be held on the remaining matters in dispute between the parties. A second hearing was duly held between 24 and 26 February 2004 before Lord Hardie. On 9 July 2004, Lord Hardie repelled the pleas in law for the reclaimer, sustained the fifth and tenth pleas in law and the ninth plea in law, as amended, for the respondents and refused the prayer of the petition. Against that interlocutor the reclaimer has now reclaimed. [6] Six grounds of appeal have been stated on behalf of the reclaimer. These are in the following terms:"1. The Lord Ordinary erred in law in applying the same approach to an extradition case as would apply to an immigration case. The Lord Ordinary erred in affording the respondents a wide margin of appreciation. Reference is made to paragraph [28] of his Opinion. The reclaimer is a United Kingdom citizen. He has rights under Article 8 of the European Convention on Human Rights in relation to an established family and private life in this country. His extradition is for the prevention of disorder or crime. Immigration control involves foreigners who have no legal right to be in the United Kingdom.
2. The Lord Ordinary erred in law. He found at paragraph [26] of his Opinion that the extent of the interference with the petitioner's private and family life as secured to the reclaimer by Article 8 of the European Convention on Human Rights and Fundamental Freedoms 1950 as amended is
' ... the additional restriction of contact between the petitioner and his immediate family occasioned by his incarceration in Estonia, as opposed to his detention in Scotland.'
This approach is not correct. At paragraphs [15] and [23] of his Opinion the Lord Ordinary acknowledged that a transfer to Estonia will involve a risk of a deterioration in the mental condition of the petitioner. Such a transfer and the associated risk constitute an interference with private life even if any medical treatment is, in principle, adequate. Undergoing a trial abroad (as opposed to in one's own country) is a further interference. The Lord Ordinary left out of account
(i) the question of transfer and associated risk of deterioration and
(ii) the interference of the trial itself in his assessment of
(i) the extent of any interference,
(ii) and thereby erred in law in his assessment of the
proportionality of extradition given the true extent of the interference of the said Article 8 rights of the reclaimer.
3. The Lord Ordinary erred in law. He erred in his approach to the question of proportionality in considering whether it is a proportionate interference with the petitioner's private and family life under Article 8 of the European Convention on Human Rights to extradite him to Estonia when he could be tried in Scotland for the same offence. The Lord Ordinary was wrong in law in suggesting at paragraph [28] of his Opinion that the United Kingdom would not fulfil its international obligations in seeking to prosecute the reclaimer in the United Kingdom when the alternative of extraditing the reclaimer would involve an interference with the Article 8 rights of the reclaimer. This error undermines the reasons given by the Lord Ordinary for not then taking the possibility of prosecution in the United Kingdom into account in the assessment of the proportionality of extradition.
4. The Lord Ordinary erred in law. At paragraph [28] of his Opinion his assessment of the need for co-operation on the part of the Estonian authorities in prosecuting the reclaimer in Scotland failed to take into account or give adequate weight to the material considerations advanced by the reclaimer that
(i) the key witness Hain is now in the United Kingdom and would require
to give his evidence by video link to Estonia;
(ii) the witnesses who sold the vehicle and the spare petrol tank to Hain are
resident in the United Kingdom;
(iii) the former co-accused Petrenko could provide his evidence by video
link if he was unwilling to travel to Scotland.
5. The Lord Ordinary erred in law. The approach of the Lord Ordinary allows States to enter into forum shopping to secure trial in the jurisdiction most likely to secure a conviction. In particular he failed to properly consider the question of corroboration of the case against the reclaimer. Corroboration is not required in Estonia. The approach taken by the Lord Ordinary would allow the relevant two States to choose the forum where there is the best prospect of a conviction and move the individual there to be tried. The approach of the Lord Ordinary would permit Estonia to seek extradition in relation to an offence which had no connection with that country and for the extraditing State also to provide the evidence in relation to that offence. Such an approach is contrary to public policy. It encourages arbitrary decision-making. It allows States to act for an improper purpose or to take account of improper considerations in the exercise of the discretion as to whether extradition should occur.
6. The Lord Ordinary erred in law. Notwithstanding the terms of the Opinion, the reclaimer did not limit his challenge to the proportionality of extradition to circumstances where the Lord Advocate has not renounced the right to prosecute in Scotland. The same logic is entirely applicable where prosecution could have taken place in Scotland but now could not. The Lord Ordinary failed to properly consider the submission made by the reclaimer in this regard or to give adequate reasons why it fell to be rejected and thereby erred in law."
Submissions for the reclaimer
[7] At the outset of the submissions, it was indicated that there was agreement as to the matters now in issue. Reduction of the decisions of the respondents dated 12 June 2001, 26 June 2002 and 17 February 2004 was sought. These were all decisions that the reclaimer should be returned to Estonia. [8] Outlining his approach to the case, senior counsel for the reclaimer said that it concerned the Lord Ordinary's treatment of the issue of the proportionality of the interference with the rights of the reclaimer under Article 8 of the European Convention on Human Rights and Fundamental Freedoms, hereafter referred to as "the Convention on Human Rights", consequent upon the proposed extradition of the petitioner. Grounds 2 to 4 of the grounds of appeal criticised the Lord Ordinary in that respect. It would be contended that he had ignored certain matters that fell to be taken into account. If this submission were to be successful, it would be necessary for this court to make a fresh assessment relating to the proportionality of the interference. If none of those grounds of appeal were to be successful, grounds 1 and 5 would fall to be considered, in which the approach of the Lord Ordinary to his assessment was criticised. The correct approach would require to be identified. Thus the logical order for consideration of the grounds of appeal would be 2, 3, 4, 1, 5 and 6. In answer to questions by the court, senior counsel for the reclaimer agreed that there was a devolution issue involved in the case, as it was now framed. For that reason intimation to the Advocate General had been ordered in the interlocutors of 28 March and 2 April 2003. [9] Turning to ground of appeal 2, senior counsel drew attention to paragraph [26] of the Lord Ordinary's Opinion. It was submitted that the Lord Ordinary had erred in relation to the extent of the interference with the reclaimer's Article 8 rights which extradition would involve in relation to his health. In this connection reference was made to paragraphs [15] and [23] of the Opinion. The Lord Ordinary had found in fact that extradition to Estonia would be likely to lead to a deterioration in the reclaimer's medical condition, but had failed to take that element into account in assessing the interference which extradition would create with the reclaimer's right to private life in terms of Article 8. This submission did not involve treating this court as a court of review of the facts, but involved the identification of an error of law on the part of the Lord Ordinary. In essence, the contention was that the Lord Ordinary had not taken into account a relevant matter, namely the effect of extradition upon the health of the reclaimer. It was contended that the need for medical treatment which might thereby be created was itself an interference with the reclaimer's Article 8 rights, even though that treatment was likely to be effective. In this connection reliance was placed on D v. United Kingdom (1997) 24 EHRR 423, at pages 445, 448 and 449. It was recognised that the case cited was concerned with rights under Article 3 of the Convention on Human Rights. It appeared that the Lord Ordinary had simply excluded consideration of these health aspects of the situation. In this connection reliance was also placed on Raninen v. Finland 1998 26 EHRR 563 at pages 586 to 589. Paragraph (63) of the judgment in this case contained helpful observations as to the effect of Article 8. [10] Senior counsel went on to support that part of ground of appeal 2 which referred to the interference with Article 8 rights involved in the holding of a trial in a foreign State. In that connection he relied upon Wakefield v. United Kingdom, a decision on admissibility by the Commission (Application No. 15817/89). It was submitted that the Lord Ordinary was completely silent upon this aspect of the case. The case cited showed that the location of a place of detention was important as regards Article 8 rights. [11] Turning next to ground of appeal 3, senior counsel considered the significance of a trial in Estonia, as opposed to one in Scotland. It was submitted that the Lord Ordinary had erred in holding that it was proportionate to subject the reclaimer to a trial in Estonia, when he could be tried for substantially the same offence in Scotland. In response to questions by the court, senior counsel contended that the Scottish criminal courts would have jurisdiction in relation, at least, to certain parts, if not all, of the conduct alleged against the reclaimer. In this connection reference was made to the details contained in the request for extradition made by the Ministry of Justice of Estonia, dated 13 March 2001, 7/5 of process. It was plain from consideration of these details that a prosecution in Scotland would be possible. There existed certain factors which would conduce to the convenience of holding such a trial. Sergei Petrenko and William Hain, referred to in the request for extradition, had already been tried in Estonia in relation to the matters concerned. Hain had served his sentence and now lived in England. Petrenko was an Estonian subject living there. Leslie Brown, also alleged to have been involved in the transactions in question, was challenging his proposed extradition to Estonia. He was currently in custody in Scotland. In response to questions by the court, senior counsel asserted that a trial could take place in Scotland, although he recognised that there might exist certain practical difficulties in connection with that, upon which he could not comment. However, he argued that certain obstacles to prosecution in Scotland might be "legitimate" and others "illegitimate". In connection with this aspect of the case, senior counsel recognised that the reclaimer's averment that a trial could be held in the United Kingdom had been denied by the respondents. However, he went on to emphasise that what mattered alone was the fact that the Scottish criminal courts would have jurisdiction over the matter. [12] In connection with this part of the reclaimer's submissions, senior counsel referred to the Lord Ordinary's discussion of the matter of a possible trial in Scotland, at paragraphs [27] and [28] of his Opinion. Some of what the Lord Ordinary had said in those passages reflected his misapprehension of the obligations of the United Kingdom and Estonia under the relevant Treaty arrangements and the Convention on Extradition. If it appeared that the Lord Ordinary was in error in relation to these matters, the issues involved would have to be reconsidered by this court. Senior counsel next proceeded to examine in detail the terms of the Convention on Extradition, which appeared as Schedule 1 to the European Convention on Extradition Order 1990. It was important to recognise that Article 6.1 of that Convention gave a contracting party the right to refuse extradition of its own nationals. The reclaimer was, of course, a national of the United Kingdom. Article 6.2 of the Convention on Extradition reflected the fact that a contracting party might not extradite its own national, in which event it might come under an obligation to submit the case to its own competent prosecuting authorities at the request of the requesting party, in order that proceedings might be taken within the jurisdiction of the requested party, if that was considered appropriate. Thus, the Lord Ordinary was under a misapprehension in supposing that a refusal to extradite the reclaimer to Estonia would involve some breach of the arrangements existing between the United Kingdom and Estonia; on the contrary, the position was that such a situation was provided for in those arrangements. If there were such a refusal, the competent prosecuting authority in Scotland would be entitled to expect co-operation from the Government of Estonia in connection with any possible prosecution in Scotland. [13] At this stage in the submissions there followed discussion concerning the offence or offences which might have been committed by the reclaimer and the jurisdiction within which such an offence or offences might have been committed. In this connection senior counsel referred to sections 20 and 36 of the Misuse of Drugs Act 1971. Section 20 provided that a person committed an offence if in the United Kingdom he assisted in or induced the commission in any place outside the United Kingdom of an offence punishable under the provisions of a corresponding law in force in that place. Thus, it was argued that responsibility for the commission of a drug offence in Estonia, in association with the activity which had been alleged against the reclaimer in Scotland, would involve the commission of an offence within the United Kingdom under section 20. [14] Senior counsel went on to contend that an obligation to extradite or adjudicate had long been recognised as an international norm. This was recognised in Article 6.2 of the Convention on Extradition. In this connection reliance was placed on Soering v. United Kingdom (1989) 11 EHRR 439, particularly at pages 444, 448, 466 and 477. It was an underlying purpose of the process of extradition to prevent fugitive offenders from evading justice. In the circumstances of this case, there would be no question of the reclaimer evading justice if he were not extradited to Estonia, since an indictment could be brought against him in Scotland. [15] At this point in his submissions, in response to questions by the court, senior counsel made it plain that his client's complaint was not one regarding his likely treatment in Estonia, either in prison or in relation to any trial held there, but was based upon the fact that his extradition there would expose him to trial and imprisonment in a foreign State. It was important that the court should scrutinise the possible use of what he described as "arbitrary power". Asked to elaborate that contention, it was suggested that where there were concurrent criminal jurisdictions there was a risk of "forum shopping" by prosecutors. In that connection, it would be illegitimate for the reclaimer to be extradited to Estonia from Scotland, if the purpose were to render it easier to obtain a conviction against him in respect of the matters alleged: for example, if there would have been a question as to the sufficiency of evidence in Scotland, but no such question would arise in Estonia. [16] Senior counsel took issue with the position of the respondents set forth in paragraph (vii) on page 5 of their outline submissions. First, the primary obligation to extradite under Article 1 of the Convention on Extradition had to be read as subject to the remaining provisions in the Convention. It was submitted that that primary obligation was undermined in the circumstances of the present case, since the underlying purpose of extradition was to ensure that a trial took place somewhere: in the present case, however, a trial could take place without extradition. Secondly, the factor of reciprocity was a secondary issue. Thirdly, what was contemplated here was the extradition of a national of the requested State. However, there was no international norm of extradition of nationals. Indeed, Estonia itself reserved the right not to extradite its own nationals. The background to the matter was rather more complicated than the Lord Ordinary had thought. Furthermore, the submissions made to him by the respondents in relation to this matter were unsound. Support for this view could be found in In re Evans [1994] 1 W.L.R. 1006, at 1008. There Lord Templeman emphasised that extradition agreements were designed to ensure that persons who committed crimes in one country did not escape trial or punishment by fleeing abroad. That object had no application to the circumstances of this case, since concurrent jurisdictions existed. Senior counsel also relied upon Regina v. Ashford Remand Centre, ex parte Postlethwaite [1988] 1 A.C. 924, at 947. Pursuing the same theme, senior counsel referred to the White Paper on Extradition of February 1985 (Cmnd. 9421), the precursor to the 1989 Act. Part I of that document stated the recognised purpose of extradition. It was there said:"It is founded on the principles that it is in the interest of all civilised communities that an offender should not be allowed to escape justice by crossing national frontiers and that states should assist one another to bring such persons to justice."
"Any decision of the Lord Advocate in his capacity as head of the systems of criminal prosecution and investigation of deaths in Scotland shall continue to be taken by him independently of any other person."
Senior counsel for the respondents indicated that he could respond on behalf of the Scottish Ministers on this aspect of the case only by arguing that the court ought not to embark upon any assessment of the reasons which the Lord Advocate might have had for not prosecuting the reclaimer in Scotland.
[26] Having considered this particular aspect of the case, we reached the conclusion that it would be appropriate for the Lord Advocate to be afforded a further opportunity of entering the process, with a view to making such submissions as might seem to him fit on the matter. So that he might be acquainted with what had been contended on behalf of the reclaimer, we adjourned the case to give counsel for the reclaimer the opportunity of focusing this part of the argument in an amendment to ground of appeal 3. Following that adjournment, senior counsel for the reclaimer proposed an addition to ground of appeal 3 in the following terms:"The Lord Ordinary erred in his assessment of the proportionality of the interference with the reclaimer's Article 8 rights involved in extraditing him. This being a case in which both the Scottish and Estonian courts have jurisdiction to prosecute the conduct forming the subject of the proposed prosecution in Estonia, it was incumbent upon the Lord Ordinary to form a judgment whether extradition would be proportionate in those circumstances, conducting such enquiry as is necessary to form that judgment. The Lord Ordinary erred [27] in refusing to address the issue of the need to extradite because of the possible involvement of the Lord Advocate. To the extent that the court fails to address the issue because some of the underlying decisions may have been taken by the Lord Advocate, it will be failing in its duty to enforce the Convention. The non-justiciability of the Lord Advocate's decisions on prosecution does not extend to arrangements between States to move an individual from one State to another."
We were also furnished with a written summary of the submissions which had been made to us on this aspect of the case. We then allowed the proposed addition to ground of appeal 3 to be made and we ordered intimation of the case to be made to the Lord Advocate, including intimation of the addition made to ground of appeal 3. We also ordered that the reclaimer's advisers should send to the Lord Advocate the summary of the submissions made to this court on the matter. Our interlocutor allowed the Lord Advocate, if so advised, to enter the process by means of a Minute with a view to being heard. The hearing before us was then again adjourned.
The position of the Lord Advocate
[27] Following the adjournment, at a fresh diet, the Lord Advocate was represented. Counsel for the Lord Advocate drew our attention to the fact that a Minute for the Lord Advocate had been lodged, setting out his position in relation to ground of appeal 3, as amended. Answers to that Minute had been lodged by the reclaimer. Counsel for the Lord Advocate pointed out that it now appeared that some of the earlier discussion in the reclaiming motion might have proceeded upon a factual misapprehension. In view of the fact that the foregoing procedure has clarified the position of the Lord Advocate as prosecutor it is appropriate that that position should be recorded here. It is also appropriate that the reclaimer's response to the Lord Advocate's Minute should be recorded.Minute and Answers
[28]
1. The Lord Ordinary was correct in refusing to conduct an enquiry into the
question of the Lord Advocate's decisions on prosecution. No decision had been taken as to whether to prosecute the reclaimer. Accordingly the question of the non-justiciability of the Lord Advocate's decision on prosecution did not arise. The United Kingdom as a party to the European Convention on Extradition has undertaken to surrender to other contracting parties all persons against whom the competent authorities of the requesting party are proceeding for an offence. As set out in the submissions for the respondent, the decision to extradite arose out of the treaty obligations incumbent on the Scottish Ministers. Accordingly, the Lord Ordinary did not err as suggested by the reclaimer.
Ans. Denied. Scottish police were involved in the detection of the offences of
which the reclaimer stands accused. In the normal course they would report evidence of offences of this nature to the Lord Advocate. In the whole circumstances, the reclaimer infers that the Lord Advocate has decided not to prosecute the reclaimer in Scotland pending the outcome of the extradition proceedings. The United Kingdom's obligation to extradite is subject to its obligations under the European Convention on Human Rights and Fundamental Freedoms ("the Convention").
2. It was not appropriate for the Lord Ordinary to seek to review a decision of the
Lord Advocate. The Lord Advocate is the independent head of the system of prosecution in Scotland. Accordingly it would have been incompetent for the Lord Ordinary to undertake a review of the lack of any prosecution.
Ans. Denied. Explained and averred that a decision of the Lord Advocate not to prosecute or to prosecute or to defer a decision on whether to prosecute are matters which fall to be assessed for compatibility with the obligations of the United Kingdom under the Convention. This was accepted by the Lord Advocate during the House of Lords' consideration of the Scotland Act (28 October 1998: column 1,943).
3. There was no question of the two states selecting the appropriate forum in
which to try the reclaimer. Questions relating to issues such as the need for corroboration were irrelevant provided the Lord Ordinary was satisfied that the reclaimer would receive a fair trial in Estonia in terms of Article 6 of the European Convention on Human Rights.
Ans. Not known and not admitted that there was no question of the two states selecting the appropriate forum in which to try the reclaimer. Quoad ultra denied.
4. Esto it was appropriate to consider which state was the proper forum to try the
reclaimer. It is submitted that the crime allegedly committed by the reclaimer ought to be tried in Estonia. The witness Hain was tried in Estonia. The drugs carried by him were seized in Estonia. The reclaimer travelled to Estonia and met with Hain and Sergei Petrenko and arranged the drugs transaction with them. The crime was inextricably linked with Estonia. There was no need for the Scottish authorities to prosecute in these circumstances.
Ans. Denied. Explained and averred that the reclaimer can appropriately be tried in Scotland. The witness Hain lives in England. Esto (which is denied) the reclaimer travelled to Estonia and met Hain and Sergei Petrenko and arranged a drug transaction with them, the crime was not inextricably linked with Estonia. The crime was also committed in Scotland.
Submissions for the respondents
[30] Senior counsel for the respondents submitted that the Lord Ordinary had not erred in law and therefore the reclaiming motion should be refused. His submissions would fall into four chapters. These were: (1) the Lord Ordinary had not erred in his estimation of the extent of the interference that extradition would involve with the reclaimer's rights under Article 8 of the Convention on Human Rights; (2) he had not erred in his view that the respondents' decision to order return of the reclaimer was entitled to a wide margin of deference; (3) the Lord Ordinary had not erred in relation to the proportionality of the decision to order the reclaimer's return; and (4) the Lord Ordinary had not erred in the respects identified in grounds of appeal 4, 5 and 6. [31] Dealing with the first chapter of his submissions, which related to ground of appeal 2, it had been argued that, while the Lord Ordinary had taken account of Article 8 in relation to extradition itself, he had ignored the effects of a trial abroad. In relation to that, it had to be recognised that this had not been a factor founded upon in this way before the Lord Ordinary. Accordingly, it was not open to the reclaimer to criticise the Lord Ordinary in that way. However, it was submitted that the Lord Ordinary and the respondents themselves had taken into account all interference with the reclaimer's rights under Article 8. The major factor founded upon by the reclaimer, which was said to have been ignored by the Lord Ordinary, was the risk of deterioration in the reclaimer's health as a consequence of his extradition. The Lord Ordinary had taken full account of that risk, and of the fact that there would be proper medical care and treatment available in Estonia. He had not overlooked the risk. He had concluded that, when the risk was assessed and the availability of medical care taken into account, there was no risk of such interference as would engage the reclaimer's Article 8 rights. In this connection paragraphs [19], [23] and [26] of the Lord Ordinary's Opinion were relied upon. Looking at these matters in that way was consistent with the way in which the European Court of Human Rights had approached them. In this connection senior counsel relied upon D v. United Kingdom and Bensaid v. United Kingdom (2001) 33 EHRR 10. In addition, it had to be noted that, since the Lord Ordinary had heard the case in February 2004, the House of Lords had decided the cases of Regina (Ullah) v. Special Adjudicator [2004] UKHL 26, [2004] 2 AC 323 and Regina (Razgar) v. Secretary of State for the Home Department [2004] UKHL 27, [2004] 2 AC 368. The former case involved examination of a direction for removal to a country where the right to practice religion was restricted. While removal to a State where an individual was foreseeably at real risk of proscribed ill-treatment would engage Article 3 of the Convention, it was also possible that issues might exceptionally be raised where the anticipated ill-treatment would infringe other Articles, in particular, 2, 5, 6 and 8; possibly also 9. However, reliance on such Articles required presentation of an exceptionally strong case, such that the actual or threatened treatment would amount to a flagrant denial or gross violation of the relevant right. In this connection reference was made particularly to the observations of Lord Bingham of Cornhill at pages 349 and 352, Lord Steyn at page 357 and 361 and Lord Carswell at page 366. In the latter case, the issues were somewhat different, but the issue of principle arising was whether the rights protected by Article 8 could be engaged by the foreseeable consequences for health of removal from the United Kingdom, pursuant to an immigration decision. Reference was made to the observations of Lord Bingham of Cornhill at page 383, Lord Walker of Gestingthorp at page 392, Lady Hale of Richmond at pages 395 to 396 and Lord Carswell at page 403. [32] Senior counsel emphasised that the foregoing authorities made clear the distinction between the domestic and foreign aspects of any case. The domestic aspect embraced the disruption of family ties in the requested State. The Lord Ordinary had concluded that there was such interference with Article 8 rights, but that the interference was justified and proportionate. Any risk of deterioration in health consequent upon extradition was a foreign aspect of the case. Having regard to the authorities cited, the reclaimer had to demonstrate that there would be a flagrant denial of his Article 8 rights before there would be a breach of Article 8 in regard to the foreign aspects of the case. While the Lord Ordinary had not addressed the matter in these particular terms, the conclusions he had drawn were consistent with the approach emerging from these cases. [33] Senior counsel for the respondents next entered upon chapter 2 of his submissions, which were related to ground of appeal 1. The background was that it had been submitted that the Lord Ordinary had erred in holding that the respondents' decision was entitled to a wide margin of deference, although it had been accepted that some margin was appropriate. In particular, it had been said that it would be wrong to treat a decision in relation to extradition in the same way as one in an immigration case. Senior counsel submitted that, while plainly the reasons favouring a latitude in immigration and extradition cases were not the same, those reasons, in both cases, did justify the allowance of a substantial latitude. In immigration cases the European Court of Human Rights had recognised that any State had a right under international law to control immigration to its territory. Accordingly, a wide margin of appreciation had been recognised. In extradition cases, a State which was a party to extradition arrangements had an obligation under international law to return or deliver a person accused of crime to the State within the territory of which the crime was said to have been committed and a prosecution to have been brought. In dealing with the matter of a State's relations with other Sovereign States, there was justification for a wide margin. The question involved in such a case was one in relation to which Ministers were better placed to balance public and private rights arising than were courts. In this connection reliance was placed on International Transport Roth GmbH v. Secretary of State for the Home Department and the observations of Laws L.J. at page 762 and following. The principles set out in that case were as applicable to the respondents as to Ministers in the Government of the United Kingdom. While extradition was a reserved matter under head B11 of Schedule 5 to the Scotland Act 1998, with the result that the Scottish Parliament was not empowered to legislate upon the topic, the respondents had administrative responsibilities under section 12 of the Extradition Act 1989, as amended. It was their regular practice to avail themselves of access to the Foreign and Commonwealth Office in the exercise of their administrative responsibilities in relation to extradition. Having regard to these factors, the area of extradition was similar to that of immigration, in that a substantial margin of deference was appropriate. Support for this submission could be derived from Regina v. Secretary of State for the Home Department, ex parte Warren in the observations of Moses J. and Hale L.J. at paragraphs 23, 38, 41 and 42. [34] Having regard to these authorities, which suggested that a wide margin of appreciation was appropriate, and having regard to the limited interference with the reclaimer's Article 8 rights identified by the Lord Ordinary, the attack on the Lord Ordinary's decision in this respect ought to fail. In any event, having regard to the terms of paragraph 29 of the Lord Ordinary's Opinion, he had not based his decision upon according a wide margin to the decision of the respondents. In that paragraph he was saying that he was satisfied that, because of its limited nature, the interference with the reclaimer's right to respect for his private and family life was justified and proportionate. On any view, the Lord Ordinary was entitled to make the decision which he did. [35] Senior counsel for the respondents next proceeded to deal with chapter 3 of his submissions, which was related to ground of appeal 3. It involved the issue of the proportionality of the interference with the reclaimer's rights under Article 8 of the Convention on Human Rights constituted by extradition, where a prosecution in Scotland was said to be possible for what was said to be the same offence as that involved in the Estonian proceedings. This ground of appeal raised questions concerning (1) the Treaty obligations of the United Kingdom and (2) the soundness of the Lord Ordinary's approach to a possible prosecution in Scotland. Dealing first with the matter of Treaty obligations, it had been argued by the reclaimer that the United Kingdom was not under any obligation to extradite because of the terms of Articles 6 and 7 of the Convention on Extradition. It had to be noted that these arguments had not been advanced to the Lord Ordinary, despite the terms of the respondents' decision letter. In any event, they were misconceived. That was evident from Article 1 of the Convention on Extradition, which contained the primary obligation to extradite. The reclaimer had attempted to use Articles 6 and 7 to undermine that obligation. As regards the terms of Article 7, two points could be made. First, the offence for which extradition was sought, as described in the request for extradition dated 13 March 2001, was a customs offence said to have been committed in or on the borders of Estonia, that is to say the taking of opiate drugs over the Estonian border, contrary to the Estonian Criminal Code, Article 17, passage 4 and Article 76, passage 3, section 2. That offence was not one committed "in whole or in part" in the territory of the requested State. Secondly, even if that had been so, Article 7.1 provided merely an option which might be used by the requested party. The United Kingdom had not invoked that option, although it might have done so where the competent authorities had decided to prosecute the reclaimer in the United Kingdom, under Article 8 of the Convention on Extradition. It was vain to suggest that there could be a prosecution under section 20 of the Misuse of Drugs Act 1971 in Scotland, since the offence created by that section was not the offence for which the Estonian authorities intended to prosecute the reclaimer. [36] The reclaimer had relied upon Article 6.1 of the Convention on Extradition, pointing out that a contracting party "shall have the right to refuse extradition of its nationals." However, that right was dependent upon the making of a declaration in terms of Article 6.1(b). No such declaration had been made by the United Kingdom, which did not refuse extradition on that ground. In these circumstances the Treaty obligation under Article 1 remained. The reclaimer had sought to rely on Article 6.2, which referred to prosecution by the competent authorities of the requested party. However, that had no application in the circumstances of this case, since the United Kingdom did not exercise the right provided for in Article 6.1. If there were any doubts concerning the construction of the Convention on Extradition, it was submitted that it should not be construed narrowly but liberally, as appeared from Regina v. Ashford Remand Centre, ex parte Postlethwaite per Lord Bridge of Harwich at pages 946 to 947. Accordingly, in all the circumstances, on a proper construction of the Convention on Extradition, the Lord Ordinary was correct in saying, at paragraph 27 of his Opinion, that there existed a Treaty obligation to Estonia to extradite. [37] Turning to the Lord Ordinary's approach to the possibility of prosecution in Scotland, senior counsel submitted that he had not erred. Contrary to what was contended by the reclaimer, it had not been conceded by the respondents that the reclaimer could be tried in Scotland. That matter was not, in any event, within their competence; it was a matter for the Lord Advocate alone. In fact no criminal proceedings had been instituted by him in Scotland against the reclaimer. There was no authority for the proposition that the respondents and the Lord Ordinary had to satisfy themselves that a trial in Scotland would be impossible before they could properly make a decision that the reclaimer should be extradited. The Convention on Extradition did not envisage any such exercise being undertaken. In so far as it made any reference to the requested State's competent authorities, that was only in terms of Article 6.2, already dealt with. What was critical to proportionality was the need to identify the legitimate objective being pursued. The reclaimer had submitted that that object was "bringing to justice" the subject of the request, in some jurisdiction somewhere. The respondents submitted that the legitimate objective was rather the implementation of international arrangements for extradition, involving the sending of persons to the countries where crimes were alleged to have been committed and where their prosecution was sought. That objective was important, as appeared from the observations of Hale L.J. in Regina v. Secretary of State for the Home Department, ex parte Warren at paragraph 40. The reclaimer's extradition was designed to meet that legitimate objective. The means used were no more than necessary to accomplish it. Extradition proceeded upon the basis that justice was best served by a trial in the jurisdiction where the crime had allegedly been committed. The approach of the Lord Ordinary to these matters in paragraph 28 of his Opinion was correct. In any event, any prosecution which might be mounted in Scotland would require to depend upon the co-operation of the competent authorities in Estonia, as was apparent from the circumstances described in the request for extradition. It was quite clear from that document that most of the events and activities said to constitute the crime in question took place in Estonia. [38] Reliance had been placed by the reclaimer on Soering v. United Kingdom. It was submitted that that was an exceptional case, which was of no assistance here. There had been a competition between States to prosecute the applicant. He had agreed that he would consent to extradition to Germany. If it were to be accepted that the performance of the objectives of an extradition treaty was a proper purpose to be recognised, that could be a powerful factor even if there was a possibility of prosecutions in more than one jurisdiction. That factor was recognised by the Lord Ordinary at paragraph 27 of his Opinion. In relation to the aims of extradition arrangements, some assistance could be derived from the White Paper on Criminal Justice, dated March 1986, page 20, paragraph 28 and page 21, paragraph 52. The importance of effective extradition arrangements had been emphasised there. [39] Senior counsel for the respondents next moved to the fourth chapter of his submissions, concerned with grounds of appeal 4, 5 and 6. As regards ground of appeal 4, as had been submitted, most of the relevant activities relating to the alleged crime had occurred in Estonia. The Lord Ordinary had not failed in the manner suggested. As regards ground of appeal 5, a complaint that the Lord Ordinary's approach allowed States to enter into "forum shopping" to secure trial in the jurisdiction most likely to result in a conviction, there was absolutely no factual basis for such an allegation. No consideration had been given to a prosecution in Scotland. The Estonian authorities had made a request for extradition which deserved proper consideration. As regards ground of appeal 6, it was submitted that it added nothing to the contents of the other grounds of appeal. [40] Even if, contrary to the respondents' submissions, the Lord Ordinary had erred in one or more of the respects suggested, it would still be for this court to consider the respondents' decision, which should be sustained. The respondents had taken account of all aspects of the matter founded upon by the reclaimer. In any event, their decision was entitled to significant deference. They had not erred in striking the balance between the public interests at stake and the reclaimer's private interests. The offence alleged against the reclaimer was a serious one, since international drug trafficking was a major problem. The respondents and the Lord Ordinary were correct in concluding that, notwithstanding the inevitable interference with the reclaimer's Article 8 rights that would result from extradition, that interference was justifiable and proportionate. The reclaiming motion should be refused. [41] As a postscript to his submissions, senior counsel for the respondents referred to Launder v. The United Kingdom (1997) 25 EHRR CD 67, involving the application of an individual whose return to Hong Kong to face criminal charges had been sought. The applicant alleged, under Article 8 of the Convention on Human Rights, that an extradition which might be effected 19 years after the alleged offences could not be regarded as lawful, hence the interference with his family life would not be lawful. It was also claimed that the interference would be disproportionate, since the applicant's family would be thousands of miles away from him. The Commission decided that the applicant's extradition would amount to an interference with his family life, it being common ground that his wife currently lived in the United Kingdom. In rejecting the applicant's complaint, the Commission found that the decision to extradite the applicant had a legitimate aim, namely the prevention of disorder or crime. The Commission considered that it was only in exceptional circumstances that the extradition of a person to face trial on charges of serious offences committed in the requesting State would be held to be an unjustified or disproportionate interference with the right to respect for family life. The Commission found that in that case no such circumstances had been shown to exist. It was submitted that that case demonstrated the importance to be attached to international arrangements for extradition where serious offences were alleged.Submissions for the Lord Advocate
[42] In the light of the issues which had arisen in the appeal, counsel for the Lord Advocate proceeded to emphasise salient features of the law relating to extradition, which were of significance in the present case. Section 4(1) of the 1989 Act provided for the making of Orders in Council for the application of the extradition procedures set forth in the Act as between the United Kingdom and a foreign State. Subsequently the European Convention on Extradition Order 1990 had been made. Thereafter the European Convention on Extradition Order 1990 (Amendment)(No. 2) Order 1997 (S.I. 1997 No. 2596) had been made applying the arrangements concerned to Estonia and Latvia. Thus under section 8(1)(b) a provisional warrant for the arrest of the reclaimer had been sought by the procurator fiscal, which had been granted on 7 March 2001. Subsequently, under section 7(4) of that Act, an authority to proceed had been issued by the respondents, in pursuance of the request for extradition made by the Estonian authorities. Thereafter the reclaimer had been the subject of committal under section 9 of that Act. The court of committal did not require a sufficiency of evidence in relation to the alleged crime, since an Order in Council was in force in relation to Estonia at the material time, in terms of section 9(4) of the Act. It had to be noted that, under the terms of the 1989 Act, the Lord Advocate was not mentioned directly; he was referred to only as one of the respondents. In fact, apart from his responsibility for the actings of the procurator fiscal, who had applied for the warrant just mentioned and had conducted the committal proceedings, the Lord Advocate had not been involved in this matter. In particular, having regard to the circumstances mentioned, he had at no stage been furnished with evidence, let alone a sufficiency of evidence, relating to the alleged crime. In these circumstances, it was submitted that there was no obligation on the Lord Advocate to apply his mind to the possibility of mounting his own investigation into the matters raised in the extradition request, far less to mounting a prosecution at his own instance, based on matters not brought to his attention. That approach was reinforced by the scheme of extradition arrangements established by the 1989 Act. Thus, in relation to ground of appeal 3, the Lord Advocate adopted the position taken up on behalf of the respondents in relation to the legitimate objective being pursued by means of the implementation of the Convention on Extradition. That legitimate objective was of a broad nature: the promotion of international co-operation in the face of serious crime, whereby persons might be sent to a State which participated in the arrangements, where a crime had been committed and prosecution was sought. In this connection reliance was again placed on Regina v. Secretary of State for the Home Department, ex parte Warren and the observations of Hale L.J. in paragraph 40. There was a rational connection between the extradition and the legitimate objective sought to be achieved. That was inconsistent with the notion that a requested State required to apply its mind to mounting its own prosecution on the basis of evidence available to the foreign State. For there to be such an expectation would be destructive of the extradition arrangements entered into by international treaty. [43] An attempt had been made on behalf of the reclaimer to use the provisions of Article 6 of the Convention on Extradition in support of the reclaimer's submissions. That attempt involved a misunderstanding of the provisions of that Article. Article 6.1 gave to a contracting party the right to refuse extradition of its nationals. Under Article 6.2, if the requested party did not extradite its national, the requesting party might request the submission of the case to the competent authorities in the requested State with a view to a prosecution. The provisions of this Article had no application to the present circumstances. It was not the policy of the United Kingdom to refuse extradition of its own nationals. Furthermore, no decision had been made by the United Kingdom not to extradite the reclaimer. In addition, the requesting party had not requested the submission of the case to the competent authorities in the requested party. Until such events occurred, there was no expectation that the competent authorities should participate. [44] Quite apart from the position just described, the Lord Advocate required to exercise his own independent judgment concerning the prosecution of crime in Scotland, in accordance with section 48(5) of the Scotland Act 1998. In this connection reference was made to the Stair Memorial Encyclopaedia Re-issue, volume 4, paragraph 76 and Renton & Brown's Criminal Procedure 6th edition, paragraphs 3.01 to 3.07. There was a distinction between the Lord Advocate and the respondents in relation to the prosecution of crime. The Lord Advocate had sole responsibility for decisions in relation to the prosecution of crime. Finally, the issue of the possible prosecution of the reclaimer in Scotland had not been the subject of any examination. Accordingly, there was no basis for the suggestion that this court should scrutinise the reasons why the Lord Advocate had decided not to prosecute the reclaimer in Scotland.Reply for the reclaimer
[45] In view of the way in which the submissions before us had developed and in particular of the appearance of representation for the Lord Advocate during the course of the reclaiming motion, we decided that senior counsel for the reclaimer should have the opportunity to deal with the new matters that had emerged. He indicated that he would deal with three matters: (1) the submissions for the Lord Advocate; (2) the nature and width of the legitimate aim; and (3) matters arising out of Article 8 of the Convention on Human Rights. [46] Dealing with the observations of the Lord Advocate, senior counsel submitted that this court should form a view as to concurrence of jurisdiction; it should consider the possibility of a prosecution in Scotland. When pressed as to how that might be done, senior counsel said that, looking at the narrative of events, the court could decide whether or not there was a prima facie case against the reclaimer in Scotland. Alternatively, if it were impossible to form such a view, the court could take into account, first, the fact that no decision had been taken by the Lord Advocate in relation to a Scottish prosecution and, secondly, the fact that a legal basis might exist for such a prosecution, in assessing the proportionality of interference with the reclaimer's Article 8 rights. Having regard to the fact that the court had already considered the adequacy of hospital arrangements in Estonia, it could readily investigate the practicability of a prosecution in Scotland. Senior counsel was then pressed regarding the position of the Lord Advocate. He accepted that the Lord Advocate had not in fact considered a prosecution against the reclaimer. He further accepted that the inference drawn in Answer 1 of the reclaimer's Answers to the Minute of the Lord Advocate was erroneous. In addition, he accepted that there had been no bad faith on the part of the prosecuting authorities. The question arose of what weight ought to be given to the fact that the Lord Advocate had taken no decision relating to a Scottish prosecution, although a legal basis for such might exist. It was submitted that very considerable weight should be given to that. [47] Turning to the nature and width of the legitimate aim, senior counsel for the reclaimer asserted that the only legitimate aim present was that of the fight against crime. However, it was accepted that honouring international obligations might be a means of preventing crime, although international co-operation itself was not recognised as a justification for interference with Article 8 rights. Nevertheless, what was important in order to secure the prevention of disorder or crime was that trials should take place of alleged offenders. If there was no need for a trial in Estonia in the present case, all that was left was a "mere Treaty obligation". It was accepted that the location of the alleged crime was a "matter of relevance". However, it should be recognised that most of the conduct alleged against the reclaimer appeared to have taken place in the United Kingdom. Thus the locus of the alleged offence had little weight in the present case. [48] Dealing with the case of Soering v. United Kingdom, it had been contended that it involved competing extradition claims. That was a misunderstanding. In this connection reference was made to In re Smith [1995] A.C. 339 at page 378. In Soering there had been a valid extradition agreement with the United States of America and a voluntary one in relation to Germany, which the United Kingdom could have refused to implement. It was held that it was disproportionate for the applicant to be extradited to the United States of America when he could face trial in Germany. The applicant in that case had agreed that he would not resist being sent to Germany. The comparison with the present case was striking, since the reclaimer preferred to stay in Scotland. Reference was also made to Clayton and Tomlinson, The Law of Human Rights, 1st edition, paragraphs 12.131 to 12.133: exceptions to Article 8 of the Convention on Human Rights ought to be construed narrowly. [49] Dealing with matters arising out of Article 8 of that Convention, senior counsel pointed out that the respondents had contended that issues relating to health arose only in exceptional circumstances in relation to Article 8, under reference to Regina (Ullah) v. The Special Adjudicator and Regina (Razgar) v. Secretary of State for the Home Department. That reflected an erroneous reading of those cases. They related to persons with no right to remain in the United Kingdom. In Razgar Lady Hale had identified three categories of situation. However, the case of the reclaimer was different. There had to be a holistic approach. The risk of deteriorating health and deprivation of family life were closely related. The Lord Ordinary had failed to take these considerations into account. It was conceded that adequate health care existed in Estonia. The risk of illness caused by an enforced transfer there was nevertheless a consideration.The decision
[50] At the outset of the submissions for the reclaimer, it was said that the principal concern was the approach of the Lord Ordinary to the issue of the proportionality of the interference with the rights of the reclaimer under Article 8 of the Convention on Human Rights which would result from extradition. In different ways grounds of appeal 2, 3 and 4 were focused upon that matter. We agree that, for the reason mentioned, these grounds of appeal are closely related, although they are concerned with different facets of the consequences of extradition in relation to the reclaimer's Article 8 rights. In the submissions before us, despite the evident relationship between these grounds of appeal, they were the subject of separate consideration. That having been the approach followed, we are content to deal with these grounds of appeal individually. [51] Dealing first with ground of appeal 2, it is important initially to examine what the Lord Ordinary has done. In paragraph 15 of his Opinion, he undertook an examination of a number of factual matters. These were the nature and extent of any medical condition suffered by the reclaimer, whether there would be likely to be an adverse effect on his health if he were to be extradited, and, if so, the nature and extent of that effect, the conditions in which the reclaimer would be detained in Estonia, including available medical facilities, and the likely adverse effect on the reclaimer's family life as a result of his detention in Estonia. In that paragraph he reached the conclusion that a change in the reclaimer's environment might effect a deterioration in his condition. The reclaimer had not only a history of suffering from a severe adjustment disorder, which was manageable within a prison environment, but the conclusion was that it was likely that there would be an initial relapse, occasioned by the associated distress in the event of his being extradited to Estonia. Subsequently, in paragraph 16 of his Opinion, the Lord Ordinary examined prison conditions and medical facilities in Estonia, as disclosed in the wide range of documents listed by him. In paragraph 17, prison conditions at Tartu Prison were considered. The conclusion reached was that this prison was of the highest standard. It is worth observing that the facilities it contains are plainly of a higher standard than those currently existing in certain Scottish prisons. In paragraphs 18 and 19, the Lord Ordinary gave consideration to medical facilities and the arrangements which would be made for the reclaimer in the event of medical care being required. In paragraph 20 of his Opinion the Lord Ordinary went on to examine the likely adverse effect of extradition upon the reclaimer's family life. He recognised in that paragraph that the location of the place of detention was relevant to a consideration of the position in relation to Article 8. His opinion was that it could not be disputed that the extradition of any person would have an adverse effect upon his family life, for the reasons which he expresses. In paragraph 24 of his Opinion the Lord Ordinary dealt specifically with the alleged breach of the reclaimer's Article 8 rights. He considered that in that connection it was appropriate for him to consider the same evidence relating to the availability of medical treatment as was considered in connection with the allegations made before him in relation to Article 3. Finally, in paragraph 26 of his Opinion, the Lord Ordinary made a finding in these terms:"Having reviewed the evidence in this case I consider that the extent of the interference is limited to the additional restriction of contact between the petitioner and his immediate family occasioned by his incarceration in Estonia as opposed to his detention in Scotland. I am not satisfied that in the event of his suffering a relapse his medical treatment in Estonia will be inadequate or even inferior to the treatment available in the Scottish prison environment."
It is to be noted that in ground of appeal 2, the first part of that finding only is referred to. Before examining the more general allegation that the Lord Ordinary erred in law in his assessment of the proportionality of extradition given the true extent of the interference with his Article 8 rights, we may observe that it is quite clear from the passage which we have quoted that the Lord Ordinary did have in mind the risk of deterioration in the reclaimer's mental condition which might follow extradition. Having regard to the facilities available to handle such a situation in Estonia, it appears to us that the Lord Ordinary regarded the risk in question as of little weight. We may also observe that, in this ground of appeal, importance is attached to the fact that, if extradited, the reclaimer would undergo a trial in Estonia, which is said to be a further interference with his Article 8 rights. Little was made of this particular aspect of the matter in the argument before us and we have some difficulty in understanding why undergoing a trial in the context of incarceration should involve any greater inference with Article 8 rights than incarceration itself. In any event, it appears to us plain that, although he does not mention this aspect of the matter in his Opinion, the Lord Ordinary must have taken into account the fact that, if extradited, the reclaimer would be likely to face trial in Estonia.
[52] In support of the reclaimer's submissions in connection with this ground of appeal reliance was placed upon a number of cases. The first of these was D v. United Kingdom. In our view, the circumstances of that case are readily distinguishable from those involved in this one. While in prison in the United Kingdom the applicant was diagnosed as suffering from AIDS. His removal to St. Kitts would have entailed the loss of vital medical treatment, thereby shortening his life expectancy. Against that background the European Court of Human Rights decided that the implementation of the decision to remove the applicant there would violate Article 3 of the Convention on Human Rights; the applicant's complaint under Article 8 gave rise to no separate issue. It appears to us that nothing said by the court in that case is of assistance in the present context. Likewise we do not find Raninen v. Finland of any assistance here. The circumstances were far removed from those of the present case and the applicant's complaint under Article 8 was found not to have been established. In Wakefield v. United Kingdom, also founded upon, the Commission considered that the relationship between the applicant and his fiancée did fall within the scope of the notion of private life envisaged by Article 8. It was of the opinion that that Article required the State to assist prisoners as far as possible to create and sustain ties with people outside prison in order to promote prisoners' social rehabilitation. In this context the location of the place where a prisoner was detained was relevant. It is clear to us that the Lord Ordinary, to whom this case was cited, accepted that proposition, as appears from paragraphs 20 and 26 of his Opinion. [53] Before us, counsel for the respondents drew our attention to certain recent decisions of the House of Lords, which were not available to the Lord Ordinary. The first of these was Regina (Ullah) v. Special Adjudicator. It was concerned with, among other things, the application of Article 8 of the Convention on Human Rights to the position of an individual, in respect of whom a direction had been made for removal to a country where the right to practice religion was restricted. It was decided that, in a context such as existed in that case, reliance on inter alia Article 8 of the Convention required the presentation of an exceptionally strong case such that the actual or threatened treatment would amount to a flagrant denial or gross violation of the relevant right. In that case, Lord Bingham of Cornhill in paragraphs 7 to 9 of his speech drew a distinction between what he called "domestic cases" and "foreign cases". The latter category were cases in which it was claimed that the conduct of a State in removing a person from its territory, whether by expulsion or extradition, to another territory would lead to a violation of a person's Convention rights in that other territory. In paragraph 24, Lord Bingham said this:"While the Strasbourg jurisprudence does not preclude reliance on articles other than Article 3 as a ground for resisting extradition or expulsion, it makes it quite clear that successful reliance demands presentation of a very strong case ... The lack of success of applicants relying on Articles 2, 5 and 6 before the Strasbourg court highlights the difficulty of meeting the stringent test which that court imposes. This difficulty will not be less where reliance is placed on Articles such as 8 or 9, which provide for the striking of a balance between the right of the individual and the wider interests of the community even in a case where a serious interference is shown ... On the other hand, the removing state will always have what will usually be strong grounds for justifying its own conduct: the great importance of operating firm and orderly immigration control in an expulsion case; the great desirability of honouring extradition treaties made with other states. The correct approach in cases involving qualified rights such as those under Articles 8 and 9 is in my opinion that indicated by the Immigration Appeal Tribunal ... in Devaseelan v. Secretary of State for the Home Department [2003] Imm AR 1, para. 111: 'The reason why flagrant denial or gross violation is to be taken into account is that it is only in such a case - where the right will be completely denied or nullified in the destination country - that it can be said that removal will breach the treaty obligations of the signatory state however those obligations might be interpreted or whatever might be said by or on behalf of the destination state'".
Similar views were expressed by Lord Steyn at paragraph 50 and Lord Carswell at paragraphs 68 and 69. In the present case, we recognise that potentially there are both domestic and foreign aspects to the alleged interference with the Article 8 rights. As regards the domestic interference, that has been acknowledged by the Lord Ordinary. So far as the foreign aspect is concerned, in our opinion the observations which we have just quoted make it necessary for the reclaimer to overcome the high threshold described.
[54] The second decision in the House of Lords on which the respondents relied was Regina (Razgar) v. Secretary of State for the Home Department. In it the House of Lords held that, having regard to the jurisprudence of the European Court of Human Rights, the right to respect for private life, guaranteed by Article 8, protected those features of a person's private life which were integral to his identity or ability to function socially; that preservation of mental stability was recognised to be an indispensable precondition to effective enjoyment of the right; that such rights could exceptionally be engaged by the foreseeable consequences for health of removal pursuant to an immigration decision, where a claimant could demonstrate grave interference such as would amount to a flagrant denial of the right; but that removal could not be resisted merely because medical treatment or facilities in the removing country were better or more accessible than in the receiving country. Once again, in paragraph 9 of his speech Lord Bingham of Cornhill affirmed the high threshold for successful reliance, saying:"This judgment establishes, in my opinion quite clearly, that reliance may in principle be placed on Article 8 to resist an expulsion decision, even where the main emphasis is not on the severance of family and social ties which the applicant has enjoyed in the expelling country but on the consequences for his mental health or removal to the receiving country. The threshold of successful reliance is high, but if the facts are strong enough Article 8 may in principle be invoked."
Similar views were expressed by Baroness Hale of Richmond and Lord Carswell. In paragraph 72, the latter said:
"In order to bring himself within such an exceptional engagement of Article 8 the applicant has to establish a very grave state of affairs, amounting to a flagrant or fundamental breach of the Article, which in effect constitutes a complete denial of his rights."
"The Contracting Parties undertake to surrender to each other, subject to the provisions and conditions laid down in this Convention, all persons against whom the competent authorities of the requesting Party are proceeding for an offence or who are wanted by the said authorities for the carrying out of a sentence or detention order."
It will be observed that Article 1 is not qualified by reference to the position of the competent authorities of the requested party. Article 6 of the Convention provides:
"1(a) A Contracting Party shall have the right to refuse extradition of its
nationals.
(b) Each Contracting Party may, by a declaration made at the time of
signature or of deposit of its instrument of ratification or accession, define as far as it is concerned the term 'nationals' within the meaning of this Convention
...
2. If the requested Party does not extradite its national, it shall, at the request of the requesting Party submit the case to its competent authorities in order that proceedings may be taken if they are considered appropriate. For this purpose, the files, information and exhibits relating to the offence shall be transmitted without charge by means provided for in Article 12, paragraph 1. The requesting Party shall be informed of the result of its request."
It is a matter of agreement that the United Kingdom has made no declaration in terms of paragraph 1 of this Article, a position which reflects the policy of the United Kingdom of preparedness to extradite its own nationals. Further, it is pertinent to note that the obligation expressed in Article 6.2 is conditional, first upon the requested party not extraditing its national, and secondly upon the making of a request by the requesting party that the case should be submitted to the competent authorities of the requested party in order that proceedings might be taken, if they are considered appropriate. In the circumstances of the present case, since neither of these conditions has been satisfied, no obligation is incumbent upon the United Kingdom in terms of Article 6.2.
[57] Article 7 of the Convention is in these terms:"1. The requested Party may refuse to extradite a person claimed for an offence which is regarded by its law as having been committed in whole or in part in its territory or in a place treated as its territory. ... ".
It will be observed that Article 7.1 confers an option upon the requested party in the circumstances described. In connection with the present case, that option has not been exercised.
[58] It is also appropriate to note the terms of Article 8 of the Convention which provides as follows:"The requested Party may refuse to extradite the person claimed if the competent authorities of such Party are proceeding against him in respect of the offence or offences for which extradition is requested."
It is a matter of agreement that those competent authorities are not proceeding against the reclaimer in respect of the offence for which extradition is requested and have no present intention of doing so.
[59] Before parting with the provisions of the Convention on Extradition, we would wish to record our understanding of how such provisions should be approached. That is based upon observations in Regina v. Ashford Remand Centre, ex parte Postlethwaite. At pages 946 to 947 Lord Bridge of Harwich explained the approach, in that case, to the Anglo-Belgian Extradition Treaty 1901. He said:"In approaching the main issue two important principles are to be borne in mind. The first is expressed in the well-known dictum of Lord Russell of Killowen C.J. in In re Arton (No. 2) [1896] 1 QB 509, 517 where he said:
'In my judgment these treaties ought to receive a liberal interpretation, which means no more than that they should receive their true construction according to their language, object and intent.'
I also take the judgment in that case as good authority for the proposition that in the application of the principle the court should not, unless constrained by the language used, interpret any extradition treaty in a way which would 'hinder the working and narrow the operation of most salutary international arrangements.' The second principle is that an extradition treaty is
'a contract between two Sovereign States and has to be construed as such a contract. It would be a mistake to think that it had to be construed as though it were a domestic statute':
Regina v. Governor of Ashford Remand Centre, ex parte Beese [1973] 1 W.L.R. 969, 973, per Lord Widgery C.J. In applying this second principle, closely related as it is to the first, it must be remembered that the reciprocal rights and obligations which the high contracting parties confer and accept are intended to serve the purpose of bringing to justice those who are guilty of grave crimes committed in either of the contracting states. To apply to extradition treaties the strict canons appropriate to the construction of domestic legislation would often tend to defeat rather than to serve this purpose."
Against this background the reclaimer in this case has set himself the formidable task of demonstrating that "the operation of most salutary international arrangements" should be inhibited on account of the limited interference that their operation would inevitably involve with the reclaimer's rights under Article 8 of the Convention on Human Rights.
[60] Coming now to the particular circumstances of the present case, it is appropriate to recognise the position regarding the possibility of the prosecution of the reclaimer for an offence in Scotland comparable with or related to that for which he might be prosecuted in Estonia, were he to be extradited there. It is evident from the terms of paragraph 27 of the Lord Ordinary's Opinion that the position of the Lord Advocate, as the independent prosecutor in terms of section 48(5) of the Scotland Act 1998, was, at that stage, uncertain. The best that could then be said was that the Lord Advocate had remained silent on the matter. We now have had the advantage of the Lord Advocate's explanation of his position given in paragraph 1 of his Minute, as supplemented by the information given to the court by his counsel. That position is that no decision has been taken by the Lord Advocate as to whether to prosecute the reclaimer. Counsel for the Lord Advocate went on to elaborate that position by explaining that the investigation of the offences alleged against the reclaimer has been conducted by the Estonian authorities. To a limited extent assistance had been rendered to them by the police in Scotland at their request. The results of that co-operation were reported to the Estonian authorities, but no similar report was made to a procurator fiscal, or to the Crown Office. The reclaimer's position came to the attention of the Lord Advocate only when the formal request for extradition was made. The view was taken by him that the investigation was an Estonian one. It was a consequence of these circumstances that no assessment had been made by the Lord Advocate, or by Crown counsel, relating to either the sufficiency or admissibility of evidence, or the strength of a case against the reclaimer. No decision had been made regarding prosecuting or not prosecuting him. It followed from that state of affairs that the Lord Advocate was unable to confirm that the reclaimer could be prosecuted in Scotland for the same or substantially the same offence as has been alleged against him in Estonia. Coming to particulars, apart from the meeting at Harthill, the view of the Lord Advocate was that the theatre of activity which constituted the factual basis for the contemplated prosecution in Estonia was primarily Estonia. [61] It was a premise underlying the reclaimer's submissions that he could be prosecuted in Scotland for an offence which would be the same, or substantially the same, offence as would be the subject of prosecution in Estonia, were the reclaimer to be extradited there. It is thus necessary for us to examine that assumption at this stage, since it was an important feature of the reclaimer's submissions. The alleged crime, in respect of which extradition is sought, is conclusively described in the Estonian Request for Extradition, dated 13 March 2001. At page 3 of that document it is described thus:"Consequently Robert Bruce Wright, working out the plan of the crime, recruiting and instructing the participants of the crime, dividing tasks between them, keeping contact between the participants of the crime, organised by a group of persons in a significant amount, illegally, hidden from customs control, taking over the customs border narcotic substance, i.e. committed the crime, stipulated by paragraph 17 passage 4 and 76, passage 3 section 2 of the Criminal Code of the Republic of Estonia, for which is stipulated a punishment in the form of a loss of freedom from 2 up to 8 years."
"A person commits an offence if in the United Kingdom he assists in or induces the commission in any place outside the United Kingdom of an offence punishable under the provisions of a corresponding law in force in that place."
The 1971 Act defines the meaning of "corresponding law" in section 36. In subsection (1) it is provided:
"In this Act the expression 'corresponding law' means a law stated in a certificate purporting to be issued by or on behalf of the government of a country outside the United Kingdom to be a law providing for the control and regulation in that country of the production, supply, use, export and import of drugs and other substances in accordance with the provisions of the Single Convention on Narcotic Drugs signed at New York on 30th March 1961, or a law providing for the control and regulation in that country of the production, supply, use, export and import of dangerous or otherwise harmful drugs in pursuance of any treaty, convention or other agreement or arrangement to which the government of that country and Her Majesty's Government in the United Kingdom are for the time being parties."
It will be evident from this comparison of the offence in respect of which extradition is sought, and the offence suggested as one in respect of which the reclaimer might be prosecuted in Scotland, that these are different offences. We have no reason to suppose that the species facti of the offence alleged in Estonia would be the same as those of the offence which might be alleged in Scotland. Plainly proof of an offence under section 20 of the 1971 Act would involve establishing activity of the kind described in that section in the United Kingdom. Looking at the request for extradition, there is no certainty that proof of the offence described therein would involve the need to prove any activity in Scotland.
[63] However, leaving aside the foregoing considerations for a moment, the question arises whether there could indeed be a prosecution of the reclaimer in Scotland under section 20 of the 1971 Act. On the material put before us on behalf of the Lord Advocate, we can have no assurance that a prosecution of the kind contemplated by the reclaimer could in fact be mounted in Scotland. The Lord Advocate has given no consideration to such issues as the sufficiency or admissibility of evidence or the strength of a case which might be made against the reclaimer. No investigations with a view to reaching any decisions of that kind have been conducted. At one stage in his submissions, senior counsel for the reclaimer went so far as to suggest that this court should conduct some form of enquiry with a view to reaching a conclusion on these matters. Indeed, ground of appeal 3 continues to suggest that the Lord Ordinary should have conducted some enquiry of that kind. We are at a loss to understand how this court could proceed in the manner suggested. It is not in a position to be able to instruct enquiries in relation to the availability or admissibility of evidence, or to assess the results of any such enquiries. In the end, we understood senior counsel for the reclaimer reluctantly to acknowledge these difficulties. He acceded to the suggestion made by the court that the court, in considering the Lord Ordinary's decision as to proportionality could only take into account (1) the fact that no decision had been taken by the Lord Advocate to initiate a prosecution in Scotland, and (2) the fact that a legal basis for such a prosecution might exist. While no doubt this court can take into account those matters, in our view, they constitute a most slender basis for any submission that the Lord Ordinary has erred in his assessment of the proportionality of the interference with the reclaimer's Article 8 rights which would be consequent upon extradition. Indeed, in paragraph 27 of his Opinion, it appears to us that the Lord Ordinary did take these matters into account. [64] Whatever may be the strength or weakness of the suggestion that a prosecution could be mounted in Scotland for an offence substantially similar to that in respect of which extradition is sought, we consider that it is also necessary to examine the underlying purpose of extradition. It was suggested to us by senior counsel for the reclaimer that the process of extradition was simply a mechanism whereby justice might be done in relation to the alleged offender in particular circumstances somewhere. However, it was suggested that justice might equally be done by the mounting of a trial in what might be called the requested country. Senior counsel put his point by saying that there was an obligation to extradite or adjudicate. That is a view with which we cannot agree. In Regina v. Secretary of State for the Home Department, ex parte Warren the object of extradition was explained by Hale L.J. at paragraph 40 in these terms:"The object of extradition is to return a person who is properly accused or has been convicted of an extradition crime in a foreign country to face trial or to serve his sentence there ... The extradition process is only available for return to friendly foreign states with whom this country has entered into either a multi or a bilateral treaty obligation involving mutually agreed and reciprocal commitments. Mr. Perry, on behalf of the claimant, accepts that there is a strong public interest in our respecting such treaty obligations. Such international co-operation is all the more important in modern times, when cross-border problems are becoming ever more common, and the need to provide international solutions for them is ever clearer."
"Of course, there must be safeguards to protect the person accused ... It is also accepted that the right to respect for private and family life in Article 8 of the European Convention on Human Rights is engaged in this decision, and so the Secretary of State has to strike a fair balance between the competing interests of that right and the public interest to which I have already referred."
In the same decision, Moses J., in paragraph 23, considered the function of the court. He said:
"This court must consider whether the Secretary of State has struck the balance fairly between the interests of the claimant's rights enshrined in Article 8 and the needs of international co-operation in seeing that those accused of a serious crime are brought to justice. This court is not entitled to substitute for that of the Secretary of State its own decision, but must rather decide whether his decision fell within the margin of discretion afforded to the Secretary of State as primary decision-maker."
With these expressions of principle we respectfully agree. It is evident to us from paragraph 27 of the Lord Ordinary's Opinion that he adopted an identical position.
[66] In Launder v. United Kingdom, the European Commission on Human Rights had occasion to consider the relationship between the United Kingdom's arrangements for extradition and the Article 8 rights of a subject. In its decision, at page 84, the Commission stated:"The Commission finds that the applicant's extradition would amount to an interference with his family life, it being common ground that his wife currently lives in the United Kingdom. However, it appears undisputed that the decision to extradite the applicant complied with the formal requirements of U.K. law. As regards the applicant's claim that his extradition some 19 years after the alleged offences would be contrary to legal certainty and that the courts' approach to the issue of the passage of time was not reasonably foreseeable, the Commission has already found that when examining whether extradition should be allowed the decisions of the domestic courts were neither arbitrary nor unreasonable. Furthermore, the Commission finds that the decision to extradite the applicant has a legitimate aim, namely the prevention of disorder or crime. As regards the question whether the interference was necessary, the Commission recalls that the notion of necessity implies a pressing social need and requires that the interference at issue be proportionate to the legitimate aim pursued (Beldjoudi v. France (1992) 14 EHRR 801, para. 74). The Commission considers that it is only in exceptional circumstances that the extradition of a person to face trial on charges of serious offences committed in the requesting state would be held to be an unjustified or disproportionate interference with the right to respect for family life."
In our opinion two important considerations emerge from this passage. The first is that the Commission considered that the decision to extradite had a legitimate aim, namely the prevention of disorder or crime, one of the purposes specified in the qualification contained in Article 8.2 of the Convention on Human Rights. Secondly, the Commission expressed the view that it would only be in exceptional circumstances that extradition of a person to face trial on charges of serious offences committed in a requesting State would be held to be an unjustified or disproportionate interference with the right to respect for family life. Although it appears that this decision was not before the Lord Ordinary, in our opinion, his reasoning is consistent with the dicta quoted.
[67] During the course of the elaborate debate before us, no authority was put before us to support the view contended for by the reclaimer that extradition would be proportionate only in circumstances where it were demonstrated that a prosecution in the jurisdiction in which the subject lay would be impossible. We regard the absence of such authority as significant. We find ourselves in complete agreement with the observation of the Lord Ordinary at paragraph 28 of his Opinion to the effect that:"Extradition does not and should not depend upon the ability or otherwise of the requested State to undertake its own investigations with a view to prosecuting the case within its own jurisdiction. Such an approach would involve unnecessary duplication of effort, would result in additional delays in the prosecution of suspected criminals and would have an adverse effect upon international relations and international co-operation in the prosecution of serious crime. In most, if not all, extradition cases the requested State would depend upon co-operation from the requesting State if the requested State were to embark upon its own investigation and ultimate prosecution of the case. That would certainly be the situation in the present case if the Lord Advocate adopted the course of action advocated by counsel for the respondents. On the basis of the factual information provided by the Estonian authorities about the circumstances of the alleged offence it is clear that any prosecution in this country would depend upon the co-operation of the Estonian authorities in making available witnesses from Estonia. The co-operation of the Estonian Government in this regard would be based upon an assumption that Estonia would be prepared to obtemper its international obligations towards the United Kingdom at a time when the United Kingdom was unwilling to fulfil its international obligations in relation to extradition. Such a result fails to recognise the reciprocal nature of international obligations and I suspect that the only beneficiaries of the approach to extradition underlying the submissions on behalf of the petitioner would be international criminals. Such an approach would frustrate the desirable objective of bringing to justice those accused of serious crime with an international dimension."
" ... extradition agreements are designed to ensure that persons who commit crimes in one country do not escape trial or punishment by fleeing abroad. Extradition arrangements have been transformed as a result of the invention of the jet aeroplane and the mutual acceptance by means of extradition treaties by and between countries of the integrity of their different legal systems."
We do not consider that anything in these observations or elsewhere in this case supports the contentions advanced in support of ground of appeal 3 by the reclaimer.
[70] In all of these circumstances, we have reached the conclusion that ground of appeal 3 is unsound. We can detect no error of law in the approach of the Lord Ordinary to the interpretation of the provisions of the European Convention on Extradition Order 1990, or the Convention on Extradition itself, or in the assessment by him of the proportionality of the interference with the reclaimer's Article 8 rights involved in extradition. In particular, we have not been persuaded that the mere possibility of prosecution of the reclaimer in Scotland, presumably under section 20 of the 1971 Act, can be seen as rendering the reclaimer's extradition, with the consequent interference with his Article 8 rights, as not "necessary in a democratic society ... for the prevention of disorder or crime ... ", within the meaning of Article 8.2 of the European Convention on Human Rights. [71] We now proceed to consider the remaining grounds of appeal advanced for the reclaimer. The first of these is ground 4. In this ground of appeal, the reclaimer founds upon three allegedly material considerations which are specified, pertinent to the mounting of a prosecution against the reclaimer in Scotland. It is averred that the Lord Ordinary failed to take them into account, or to give adequate weight to them. The Lord Ordinary does not deal specifically with these particular considerations. However, whatever significance they might or might not have in relation to the practicalities of mounting a prosecution in Estonia, or in Scotland, we cannot regard them as anything other than peripheral. If, as we consider is the case, the Lord Ordinary has not erred in law in his approach to the matters raised in ground of appeal 3, we do not think that the fact that he has not given particular consideration to the considerations mentioned in any way vitiates the approach which he has taken. [72] We deal now with ground of appeal 1, which is focused upon the equiparation by the Lord Ordinary of extradition and immigration cases. In paragraph 28 of his Opinion, the Lord Ordinary makes a comparison between legitimate immigration control and decisions relating to extradition. He observes that a wide margin of appreciation is afforded to States which are parties to the Convention on Human Rights in such cases. He goes on to conclude that the same principles should apply in extradition cases where a State is concerned with the desirability of adhering to bilateral or multilateral treaties and giving effect to bona fide requests for extradition. While it has to be recognised that the reasons favouring a wide margin of appreciation in immigration cases and extradition cases are different, it appears to us that, in both types of case, ministerial decisions may be the subject of scrutiny by the courts. In each situation, it also has to be recognised that the ministerial decision-maker will require to take into account considerations of public policy, albeit different considerations. We consider that it must be accepted that such a decision-maker is best placed to make decisions in relation to that type of consideration. [73] Detailed consideration was given to the issue of the weight to be attached, in such a context, to the judgment of the decision-maker in International Transport Roth GmbH v. Secretary of State for the Home Department by Laws L.J. In paragraphs 83 to 87, his Lordship develops a series of principles in relation to the deference, as it was described, appropriate in different contexts. We note from paragraph 84 that the second principle enunciated is that there is more scope for deference where the Convention itself requires a balance to be struck, much less so where the right is stated in terms which are unqualified. In the present case we are, of course, dealing with the qualified rights conferred by Article 8 of the Convention where a balance requires to be struck. Furthermore, in paragraph 87, Laws L.J. develops his fourth principle which is that greater or lesser deference will be due according to whether the subject-matter lies more readily within the actual or potential expertise of the democratic powers or the courts. Looking at the present context, while extradition is a reserved matter under paragraph B11 of Schedule 5 of the Scotland Act 1998, the respondents have administrative responsibilities in relation to extradition in terms of section 12 of the Extradition Act 1989 as amended. That consideration also suggests that significant weight should be accorded to their judgment in such a matter. [74] Finally, in this connection we must revert to what was said in Regina (Warren) v. Secretary of State for the Home Department where, in paragraph 23 Moses J. said:"This court is not entitled to substitute for that of the Secretary of State its own decision, but must rather decide whether his decision fell within the margin of discretion afforded to the Secretary of State as primary decision maker."
