APPEAL COURT, HIGH COURT OF JUSTICIARY

Lord Nimmo Smith Lord Kingarth Lady Smith

[2009] HCJAC 3 Appeal No. xc794.07 OPINION OF THE COURT delivered by LORD NIMMO SMITH in NOTE OF APPEAL under section 26(1) of the Extradition Act 2003 by DOROTHY MAY FASOLA Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______

Act: Targowski QC, Anderson; G Goodfellow & Co, Aberdeen

Alt: Crawford QC; Crown Agent:

9 January 2009

Introduction

[1] This is an appeal under section 26(1) of the Extradition Act 2003 ("the 2003 Act") against an order made by the Sheriff of Lothian and Borders at Edinburgh on 19 September 2007 that the appellant should be extradited to Italy to serve sentences of imprisonment imposed on her in her absence by the Italian courts for offences of armed robbery and counterfeiting. The sheriff pronounced his order under section 21 of the 2003 Act at the conclusion of an extradition hearing upon two European arrest warrants ("EAWs") (such a warrant being referred to in the 2003 Act as a "Part 1 warrant") dated respectively 21 April 2006 ("Warrant 1") and 17 November 2006 ("Warrant 3") presented by the relevant Italian authority under Part 1 of the Act. A further EAW ("Warrant 2"), also dated 17 November 2006, was withdrawn in the course of the proceedings before the sheriff and the appellant was discharged in respect of that warrant in terms of section 41(3) of the 2003 Act.

The relevant statutory provisions

[2] Part 1 of the 2003 Act was enacted in discharge of the United Kingdom's duty to transpose into national law the obligations imposed on it by the European Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures imposed on it by the Member States (2002/584/JHA; OJ 2002 L190, p1) ("the Framework Decision"). As Lord Bingham of Cornhill said in Dabas v High Court of Justice in Madrid, Spain [2007] UKHL 6, [2007] 2 AC 31, at paragraph 4, Part 1 of the 2003 Act must be read in the context of the Framework Decision. Lord Bingham continued:

"This was conceived and adopted as a ground-breaking measure intended to simplify and expedite procedures for the surrender, between member states, of those accused of crimes committed in other member states or required to be sentenced or serve sentences for such crimes following conviction in other member states. Extradition procedures in the past had been disfigured by undue technicality and gross delay. There is to be substituted 'a system of surrender between judicial authorities' and "a system of free movement of judicial decisions in criminal matters" (recital (5) of the preamble to the Framework Decision). This is to implement the principle of mutual recognition which the Council has described as the cornerstone of judicial co-operation (recital (6)). The important underlying assumption of the Framework Decision is that member states, sharing common values and recognising common rights, can and should trust the integrity and fairness of each other's judicial institutions.

5. By article 34(2)(b) of the treaty on European Union, reflecting the law on directives in article 249 of the EC Treaty, framework decisions are binding on member states as to the result to be achieved but leave to national authorities the choice of form and methods. In its choice of form and methods a national authority may not seek to frustrate or impede achievement of the purpose of the decision, for that would impede the general duty of co-operation binding in member states under article 10 of the EC Treaty. Thus while a national court may not interpret a national law contra legem, it must 'do so as far as possible in the light of the wording and purpose of the Framework Decision in order to attain the result which it pursues and thus comply with Article 34(2)(b) EU' (Criminal proceedings against Pupino (Case C-105/03) [2006] QB 83, paras 43, 47)."

There are statements to similar effect in Office of the King's Prosecutor, Brussels v Cando Armas [2006] 2 AC 1 and In Re Halili (application for a writ of habeas corpus) [2008] UKHL 3. In Scotland, this purposive approach has been adopted in Goatley v HM Advocate 2008 JC 1, La Torre v HM Advocate 2008 JC 23 and Campbell v HM Advocate 2008 JC 265.

[3] Recital 5 of the Framework Decision, the key provisions of which were quoted by Lord Bingham in the above passage, contemplated that the introduction of the new system "makes it possible to remove the complexity and potential for delay inherent in the present extradition procedures." Recital 10 began by stating: "The mechanism of the European arrest warrant is based on a high level of confidence between Member States."

[4] By section 1 of the 2003 Act, Part 1 deals with extradition from the United Kingdom to the territories designated for the purposes of that Part, referred to as category 1 Territories. The Secretary of State for the Home Department designated the Republic of Italy as a category 1 territory under the 2003 Act with effect from 28 July 2005.

[5] Section 2 makes provision for a Part 1 warrant and certificate. As originally enacted, it was in inter alia these terms:

"(1) This section applies if the designated authority receives a Part 1 warrant in respect of a person.

(2) A Part 1 warrant is an arrest warrant which is issued by a judicial authority of a category 1 territory and which contains -

...

(b) the statement referred to in subsection (5) and the information referred to in subsection (6).

...

(5) The statement is one that -

(a) the person in respect of whom the Part 1 warrant is issued is alleged to be unlawfully at large after conviction of an offence specified in the warrant by a court in the category 1 territory, and

(b) the Part 1 warrant is issued with a view to his arrest and extradition to the category 1 territory for the purpose of being sentenced for the offence or of serving a sentence of imprisonment or another form of detention imposed in respect of the offence.

(6) The information is -

(a) particulars of the person's identity;

(b) particulars of the conviction;

(c) particulars of any other warrant issued in the category 1 territory for the person's arrest in respect of the offence;

(d) particulars of the sentence which may be imposed under the law of the category 1 territory in respect of the offence, if the person has not been sentenced for the offence;

(e) particulars of the sentence which has been imposed under the law of the category 1 territory in respect of the offence, if the person has been sentenced for the offence.

(7) The designated authority may issue a certificate under this section if it believes that the authority which issued the Part 1 warrant has the function of issuing arrest warrants in the category 1 territory.

(8) A certificate under this section must certify that the authority which issued the Part 1 warrant has the function of issuing arrest warrants in the category 1 territory.

(9) The designated authority is the authority designated for the purposes of this Part by order made by the Secretary of State.

(10) An order made under subsection (9) may -

(a) designate more than one authority;

(b) designate different authorities for different parts of the United Kingdom."

By the Extradition Act 2003 (Part 1 Designated Authorities) Order 2003 (S.I. 2003, No. 3109) the Crown Agent of the Crown Office was designated for the purposes of Part 1 of the Act.

[6] The 2003 Act was amended by the provisions of section 42 of and Part 1 of Schedule 13 to the Police and Justice Act 2006 ("the 2006 Act"). These amendments were brought into force with effect from 15 January 2007 by the Police and Justice Act 2006 (Commencement No. 1, Transitional and Saving Provisions) Order 2006 (S.I. 2006 No. 3364). By paragraph 1(1) of the Schedule, section 2(5)(a) of the 2003 Act was amended by deleting the words "is alleged to be unlawfully at large after conviction" and substituting therefor the words "has been convicted", so that it now reads:

"(a) the person in respect of whom the Part 1 warrant is issued has been convicted of an offence specified in the warrant by a court in the category 1 territory ..."

[7] Section 3 makes provision for arrest under a certified Part 1 warrant. By section 4(3) a person arrested under a Part 1 warrant must be brought as soon as practicable before the appropriate judge, who by section 67(1)(b) is in Scotland the Sheriff of Lothian and Borders. By section 191(1) the Lord Advocate must, inter alia, conduct any extradition proceedings in Scotland. Sections 7 and 8 relate to the initial hearing before the sheriff. Sections 9 to 21 relate to the extradition hearing, which by section 68(1) is the hearing at which the sheriff is to decide whether the person in respect of whom the Part 1 warrant was issued is to be extradited to a category 1 territory in which it was issued. By section 9(2), at the extradition hearing the sheriff has the same powers (as nearly as may be) as if the proceedings were summary proceedings in respect of an offence alleged to have been committed by the person in respect of whom the Part 1 warrant was issued. By section 10(2) the sheriff must decide whether the offence specified in the Part 1 warrant is an extradition offence. If so, by subsection (4) he must proceed under section 11(1), which raises questions relating to bars to extradition, as set out in sections 12 to 19. In terms of section 11(1)(c), extradition may be barred by reason of "the passage of time".

[8] Further provision about the passage of time is made by section 14, which, as originally enacted, provided:

"A person's extradition to a category 1 territory is barred by reason of the passage of time if (and only if) it appears that it would be unjust or oppressive to extradite him by reason of the passage of time since he is alleged to have committed the extradition offence or since he is alleged to have become unlawfully at large (as the case may be)."

This provision was amended by paragraph 2(1) of Schedule 13 to the 2006 Act, so that it now provides:

"A person's extradition to a category 1 territory is barred by reason of the passage of time if (and only if) it appears that it would be unjust or oppressive to extradite him by reason of the passage of time since he is alleged to have -

(a) committed the extradition offence (where he is accused of its commission), or

(b) become unlawfully at large (where he is alleged to have been convicted of it)."

[9] Further provision about the meaning of the expression "unlawfully at large" is made by paragraph 2(2) of Schedule 13 to the 2006 Act, which added a new section 68A to the 2003 Act, in these terms:

"(1) A person is alleged to be unlawfully at large after conviction of an offence if -

(a) he is alleged to have been convicted of it, and

(b) his extradition is sought for the purpose of his being sentenced for the offence or of his serving a sentence of imprisonment or another form of detention imposed in respect of the offence.

(2) This section applies for the purposes of this Part, other than sections 14 and 63."

[10] Section 11(3) provides that if the judge decides any of the questions in sub-section (1) in the affirmative he must order the person's discharge. By section 11(4), if he decides the questions in subsection (1) in the negative and the person is alleged to be unlawfully at large after conviction of the extradition offence, the sheriff must proceed under section 20, which contains various questions, of which the following are relevant:

"(1) If the judge is required to proceed under this section (by virtue of section 11) he must decide whether the person was convicted in his presence. ...

(3) If the judge decides [the question in subsection (1)] in the negative, he must decide whether the person deliberately absented himself from his trial.

(4) If the judge decides the question in subsection (3) in the affirmative he must proceed under section 21."

Section 20(5) provides that if the sheriff decides the question in subsection (3) in the negative he must decide whether the person would be entitled to a retrial or (on appeal) to a review amounting to a retrial, and by subsection (7) if he decides that question in the negative he must order the person's discharge.

[11] By section 21(1), if the sheriff is required to proceed under that section (by virtue of section 11 or 20) he must decide whether the person's extradition would be compatible within the Convention rights within the meaning of the Human Rights Act 1998. By subsection (2), if the sheriff decides the question in subsection (1) in the negative, he must order the person's discharge, but, by subsection (3), if he decides that question in the affirmative he must order the person to be extradited to the category 1 territory in which the warrant was issued.

[12] Subsections (1) and (3) of section 26 of the 2003 Act provide that if the sheriff orders a person's extradition under Part 1, the person may appeal to this Court against the order, and that an appeal under section 26 may be brought on a question of law or fact. Section 27(1) enables this Court, on an appeal under section 26, either to allow the appeal or to dismiss the appeal. Section 27 continues:

"(2) The court may allow the appeal only if the conditions in subsection (3) or the conditions in subsection (4) are satisfied.

(3) The conditions are that -

(a) the [sheriff] ought to have decided a question before him at the extradition hearing differently;

(b) if he had decided the question in the way he ought to have done, he would have been required to order the person's discharge.

(4) The conditions are that -

(a) an issue is raised that was not raised at the extradition hearing or evidence is available that was not available at the extradition hearing;

(b) the issue or evidence would have resulted in the [sheriff] deciding a question before him at the extradition hearing differently;

(c) if he had decided the question in that way, he would have been required to order the person's discharge.

(5) If the court allows the appeal it must -

(a) order the person's discharge;

(b) quash the order for his extradition."

The European Arrest Warrants
Warrant 1

[13] Warrant 1 disclosed that the appellant was convicted by the Court of Milan on 4 February 1998 for the offence of organised or armed robbery, and was sentenced to imprisonment for four years and two months. The circumstances of the offence were, in brief, that on 22 March 1991 a robbery took place in a goldsmith's workroom and a quantity of gold weighing 30 kilograms was stolen. The robbery was aggravated by the use of firearms. The appellant was at the time a manager at another goldsmith's workroom. It was established at the trial that she had planned and instigated the robbery and had paid the perpetrators.

Warrant 3
[14] Warrant 3 disclosed that the appellant was convicted by the Court of Milan on 11 May 2001 for the offence of counterfeiting, and was sentenced to imprisonment for four years. The circumstances of the offence were, in brief, that a police investigation into the supply of counterfeit money in Milan, which took place between September 1988 and June 1989, and involved the appellant's husband among others, established that the appellant had ordered the printing of counterfeit $US 100 banknotes, and had supplied the relevant samples.

The proceedings before the sheriff

[15] Warrant 1 was issued on 21 April 2006. The appellant was arrested and appeared before the sheriff on 12 June 2006. Warrants 2 and 3 were issued on 17 November 2006. The appellant appeared again before the sheriff in respect of these warrants on 28 November 2006, The sheriff heard submissions on behalf of parties on various days in 2007. Warrant 2 was withdrawn on 27 April 2007.

[16] The sheriff proceeded to issue his decision on 19 September 2007. He decided that the appellant was the person in respect of whom Warrants 1 and 3 had been issued and that the offences set out in them were extradition offences, as that term is defined in section 65 of the 2003 Act. He therefore answered in the affirmative the question raised in section 10(2) of the Act. He then considered submissions on section 11(1)(c) and (f), which concerned passage of time and speciality as potential bars to extradition, and held that the appellant's extradition was not barred on these (or any other) grounds.

[17] Two devolution minutes (Nos. 3 and 4) were lodged on the appellant's behalf, in which it was maintained that, because Warrants 1 and 3 had not been issued by a judicial authority, they were not valid EAWs; and as a consequence, in conducting the proceedings on that basis, the Lord Advocate had acted and was continuing to act in a manner which was incompatible with Community law and therefore ultra vires in terms of section 57(2) of the Scotland Act 1998. Having considered the parties' submissions, the sheriff upheld the validity of Warrants 1 and 3 and refused to sustain devolution minutes Nos. 3 and 4.

[18] Having answered the question in section 11(1) of the 2003 Act in the negative, the sheriff then applied section 11(4), which required him to proceed under section 20, since the appellant was alleged to be unlawfully at large after conviction of each of the extradition offences. Having considered the parties' submissions on section 20, the sheriff held that the appellant had not been convicted in her presence. He was also fully satisfied that the warrants and the whole material before him showed that the appellant had deliberately absented herself from the trials which led to Warrants 1 and 3. He took as his starting point that it was clear from these warrants and from the supporting documents which had been received in evidence that the appellant had not been present and that the judgments were rendered in absentia, and accordingly answered the question in section 20(1) in the negative, which was why he had to proceed to decide under section 20(3) whether the appellant deliberately absented herself from her trials. At paragraph 91 of his judgment the sheriff stated:

"It is also clear from the same sources of information that, in respect of the court proceedings in connection with warrants Nos. 1 and 3, not only did each of these cases go through the process of judgment of first instance, judgment of second instance and final judgment or judgment of last instance (before the Court of Cassation), but also that [the appellant] was, at each of these processes, legally represented by a lawyer of choice on all but one occasion, when she was represented by the court-appointed lawyer. I consider that to be of particular importance. Against that significant background, and keeping in mind that extradition requests and processes are to be approached in the light of mutual respect and recognition of the laws and procedures of foreign states, I consider it to be an inevitable and irresistible conclusion that there were no defects in the summoning of [the appellant] or otherwise informing her of the date and place of the hearing which led to the decision rendered in absentia, that she was aware of the dates in question, but chose to absent herself." (Emphasis in original)

He therefore answered in the affirmative the question raised in section 20(3) of the 2003 Act and, having applied section 20(4), he then proceeded under section 21.

[19] The sheriff then heard submissions in terms of section 21(1) of the 2003 Act on the question whether the appellant's extradition would be compatible with her Convention rights within the meaning of the Human Rights Act 1998. At the same time, he heard submissions in respect of two further devolution minutes (Nos. 1 and 2) which had been lodged on the appellant's behalf. In these minutes, it was maintained that, since the 2003 Act did not transpose into U.K. national law the ground for refusal to execute a Part 1 warrant on the basis contained in Article 4(6) of the Framework decision (i.e. where the requested person is staying in, or is a national or a resident of the executing Member State, and that State undertakes to execute the sentence or detention order in accordance with its domestic law), that failure was incompatible with her Convention rights in terms of Article 8 of the European Convention on Human Rights. Having considered the parties' submissions, the sheriff was satisfied that there was no disproportionate interference with the appellant's Convention rights within the meaning of the Human Rights Act 1998 and, specifically, that there was no disproportionate interference with her Article 8 rights. He accordingly refused to sustain devolution minutes Nos. 1 and 2 and answered in the affirmative the question raised in section 21(1) of the 2003 Act.

[20] Therefore, in the light of that affirmative answer, in terms of section 21(3) of the 2003 Act the sheriff ordered the appellant to be extradited to Italy, being the category 1 territory in which Warrants 1 and 3 had been issued.

The scope of the appeal to this court

[21] The appeal was originally heard in this court by the Lord Justice Clerk (Lord Gill), Lord Johnston and Lord Nimmo Smith on 29 April 2008 and subsequent days. At the start of the hearing counsel sought to lodge what would become devolution minute No. 5, in which it was alleged that the allegedly retrospective effect of the amendments made to section 2 of the 2003 Act by the 2006 Act (see paragraphs [5] and [6] above), so far as Warrant 1 was concerned, contravened the appellant's rights under Articles 5 and 8 of the European Convention on Human Rights, and that by conducting the extradition proceedings against the appellant on the basis of Warrant 1 the Lord Advocate was acting ultra vires in terms of section 57(2) of the Scotland Act 1998. The court refused to allow this minute to be lodged at such a late stage. The court then heard submissions on the appeal. Although numerous issues were argued before the sheriff, whose decision on them is reflected in the foregoing summary, only some of them were the subject of grounds of appeal to this court, and not all of these were in the event argued by Mr Bovey, QC, the counsel then instructed. The grounds of appeal overlapped to some extent, but fell under three main heads: (1) the validity of the EAWs (section 2 of the 2003 Act); (2) deliberate absence from trial (section 20); and (3) the passage of time (section 11).

[22] After hearing submissions, the court made avizandum. The sudden death of Lord Johnston soon afterwards led to the decision that the appeal should be re-heard. The appellant instructed different counsel. There were a series of procedural hearings, and an attempt at a full hearing, at which the appellant was principally represented by Mr Targowski, QC. Mr Targowski informed the court at an early stage that, of all the grounds of appeal, he proposed only to address the court on the ground relating to the passage of time; and that he would not be advancing argument in support of any of the devolution minutes. There was therefore no longer any challenge to the validity of the EAWs or to the sheriff's finding that the appellant had deliberately absented herself from the trials. These hearings were however bedevilled by the introduction of fresh documents, and the need for investigations arising from them. These are discussed more fully below. It was only on 9 December 2008 that it became possible to hold a full hearing. Even then, much time was taken up at the outset with an attempt by the appellant herself to introduce yet more fresh material, and by her withdrawing instructions from, and then re-instructing, those acting for her, who in the event made no motion to allow this material to be introduced. What follows is a reflection of what was in the event argued before us.

The passage of time
The authorities

[23] As we have said, the only remaining issue for our consideration is whether, in terms of sections 11(1)(c) and 14 of the 2003 Act (as amended), the sheriff correctly concluded that it would not be unjust or oppressive to extradite the appellant by reason of the passage of time since she is alleged to have become unlawfully at large. The relevant authorities on this issue were reviewed in Campbell v HM Advocate in the Opinion of Lord Nimmo Smith, supplemented by that of Lord Clarke. Reference was made in particular to the speech of Lord Diplock in Kakis v Government of the Republic of Cyprus [1978] 1 WLR 779 at pages 782 to 783, which included the statement:

"'Unjust' I regard as directed primarily to the risk of prejudice to the accused and the conduct of the trial itself, "oppressive" as directed to hardship to the accused resulting from changes in his circumstances that have occurred during the period to be taken into consideration; but there is room for overlapping, and between them they would cover all cases where to return him would not be fair."

At page 785 Lord Diplock also said:

"Regard must be had to all the circumstances. Those circumstances are not restricted to circumstances from which the passage of time resulted. They include circumstances taking place during the passage of time which may (as I think here) give to the particular passage of time a quality or significance leading to a conclusion that return would be unjust or oppressive."

Reference was also made to the case of Austins v The Government of Spain [2004] EWHC 2693 (Admin) in which Laws L.J., in a passage quoted in Campbell v HM Advocate at paragraph [37], said at paragraph 15:

"We have to consider all the circumstances of the case as I have outlined them. They include the circumstance that this is not merely an instance of a man who refuses to return to a country where he is to face trial. This applicant had already been tried and sentenced. In effect he had escaped from custody. He knew perfectly well that he had a substantial time yet to serve. It seems to me that that dimension of the case weighs heavily against the applicant."

[24] In Campbell v HM Advocate Lord Nimmo Smith said, at paragraph [43]:

"[I]n applying the concept of oppression when the extradition of the appellant is sought so that he may serve his sentence, what has to be considered is whether this would cause hardship to him as a result of changes in his circumstances that have occurred during [the relevant period]".

Lord Clarke said, at paragraph [48]:

"[T]he focus is not principally on the length of time that has passed and the reasons for it, but rather on the demonstrable effect that any such passage of time has had on the individual in question."

The materials before this Court

[25] At the hearing before us, reference was principally made to a chronology prepared on behalf of the respondent, affidavits of the appellant and of her solicitor, Gail Goodfellow, and an outline argument. There were several supporting documents, in particular those referred to under the second sub-heading below. We discuss these documents, and counsel's submissions, under three sub-headings.

(1) The proceedings against the appellant

[26] As noted above, the appellant was convicted by the Court of Milan on 4 February 1988 for the offence of organised or armed robbery and was sentenced to imprisonment for four years and two months ("the 1998 conviction"). At that time she lived at an address in Fino Mornasco, Como, Italy. On 3 July 1998 she appealed. On 9 November 1998 an aggregation order was made in respect of this conviction and sentence and a previous conviction and sentence, the latter of which is no longer relevant for present purposes. In March 1999 the appellant left Italy. On 6 November 1999 and 15 November 2000 there were proceedings in respect of an appeal at the appellant's instance. On 26 April 2001 there was an order for execution in respect of the 1998 conviction. From that date onwards the appellant was unlawfully at large in respect of that conviction.

[27] As also noted above, on 11 May 2001 the appellant was convicted by the Court of Milan for the offence of counterfeiting and was sentenced to imprisonment for four years ("the 2001 conviction"). On 12 May 2001 an appeal against that conviction was lodged by a court-appointed lawyer. On 3 January 2002 the appellant signed a document nominating a lawyer to represent her in the proceedings relating to the appeal against the 2001 conviction. This was lodged at the Court of Appeal in Milan. On 14 January 2002 judgment of second instance was pronounced. On 17 October 2002 a final judgment was pronounced, and an appeal was lodged. On 26 November 2002 an order was pronounced for execution in respect of the 2001 conviction. From that date onwards the appellant was unlawfully at large in respect of that conviction. On 14 November 2003 the appellant's lawyer lodged an application for "continuation of offences" in respect of the 2001 conviction. This application was refused on 22 June 2004. On 11 May 2005 a new aggregation order was issued by the Italian authorities.

[28] In her affidavit the appellant asserts repeatedly that she was not aware of the 1998 and 2001 convictions, that lawyers were acting without her instructions, and so on and so forth. We are unable to accept these assertions. This is for the simple reason that the sheriff decided, under section 20(3) of the 2003 Act, that the appellant deliberately absented herself from her trials. We have quoted a passage from paragraph 91 of his judgment at paragraph 18 above. The sheriff held that the appellant was, at each of the processes relating to each conviction, legally represented by a lawyer of choice on all but one occasion (12 May 2001), when she was represented by a court-appointed lawyer. We were informed that, under Italian criminal procedure, an accused person is not obliged to attend either the trial or the appeal in person. Mr Targowski did not seek to argue the ground of appeal against the sheriff's decision that the appellant deliberately absented herself from her trials, and it is not therefore open to us to re-examine his judgment on that issue.

[29] Meanwhile, steps were taken by the Italian authorities to trace the appellant. On 29 May 2001 the Carabinieri Station of Fino Mornasco reported to the public prosecutor that searches for the appellant were unsuccessful and that she was nowhere to be found. The orders for execution in respect of the 1998 and 2001 convictions were placed on the Italian internal register of convictions. Interpol were asked to assist in tracing the appellant. On 26 November 2004 they reported that she was probably in the United Kingdom, but the exact location was not indicated. On 15 May 2005 they reported that she was believed to be in Scotland, and this was confirmed on 25 May 2005, when her exact address was provided. On 29 July 2005 a "Schengen alert" was issued by the public prosecutor to facilitate the appellant's arrest. This led to the issuing of the present warrants and the proceedings before the Sheriff, the relevant dates being given at paragraphs 15 and 16 above.

[30] In her affidavit the appellant claims that, because her co-accused was also appealing against the 1998 conviction, "the whole case would be re-opened", and she did not think she would have to serve the sentence. She was therefore surprised when she was served with Warrant 1. She was also surprised when she was served with Warrant 3, "because I did not think that this was an extraditable offence". None of the information before us (including the appellant's claim that she relied on certain legal advice) provides justification for such wishful thinking. On the contrary, by her participation, through a lawyer of her choice, in the various appellate proceedings, the appellant must have appreciated that if the appeals were refused both convictions and sentences would stand; and nothing in the conduct of the Italian authorities responsible for the prosecution of the appellant and the subsequent enforcement of the judgments against her suggests otherwise. In any event, even taking her affidavit at face value, there is nothing in it to suggest that any misapprehension on her part that the Italian authorities might not seek to enforce the sentences by proceedings for extradition was induced by the passage of time since she has been unlawfully at large and, in particular, by any inaction then on the part of those authorities.

[31] It is to be noted that Mr Targowski did not direct any criticism against the relevant Italian authorities in respect of any of the foregoing matters. His principal criticism was directed to the matter which we discuss under the next sub-heading.

(2) Proceedings involving the appellant as a witness

[32] In October 2001 a search was carried out in premises occupied by one Kurt Mair in Rome and Palermo, in the course of a criminal investigation relating to him. The appellant's address was noted on an invoice found in the course of this search. This led the public prosecutor's office in Palermo to prepare a letter of request seeking judicial co-operation to obtain evidence from the appellant. The letter of request was dated 12 April 2002, and gave the name and address in Aberdeen of the appellant. Her examination as a witness was sought "about the relations with Mr Mair and Mr Gierth and about Mr Mair['s] real position inside IPI Ltd and Itasco 2000 Ltd [ a company with which it appears from her affidavit the appellant had some involvement]". Despite the dates of the letter of request, it was not sent to the relevant United Kingdom Central Authority until 5 January 2005, and was passed to the Crown Office in Edinburgh on 31 January 2005. Thereafter there was correspondence between the International Co-operation Unit at the Crown Office and the United Kingdom Liaison Magistrate in Rome clarifying various points and the questions to be put to the appellant. On 10 March 2005 the Lord Advocate signed a nomination appointing the Procurator Fiscal at Aberdeen to seek a hearing of evidence in terms of Rule 36 of the Act of Adjournal (Criminal Procedure) Rules 1996. Between March and May 2005 the Procurator Fiscal at Aberdeen became aware that the appellant's address was not that stated in the letter of request but was in Bucksburn. The appellant was then cited on 24 June 2005, as authorised by an interlocutor of that date, to give evidence; and on 30 August 2005 she did so before Sheriff Cusine, the Italian Liaison Magistrate based at the Home Office, and the prosecutor from Palermo conducting the investigation against Mr Mair. A transcript of the proceedings was sent to the Italian Liaison Magistrate on 1 November 2005.

[33] None of the information set out in the preceding paragraph was put before the sheriff by Mr Bovey on behalf of the appellant. It appears from the affidavit of the appellant's solicitor that the appellant told counsel at consultation on 11 July 2006 that she had appeared before the sheriff at Aberdeen to give a statement on oath as a witness for the Italian prosecutor in 2005. The solicitor was requested to investigate the matter, and in due course obtained from the appellant's previous solicitors copies of the interlocutor granting authority to cite the appellant to give evidence, and the citation itself. These were discussed at a consultation on 24 July 2006. Further discussion took place following a hearing before the Sheriff on 6 March 2007, and at a subsequent consultation on 19 April 2007 in preparation for the adjourned hearing which was to take place on 27 April. Prior to the adjourned hearing, the solicitor was instructed by counsel to prepare a number of documents to be lodged as productions. These included the copies of the interlocutor and citation. These documents were not in fact lodged, as has been confirmed to us by reference to the process, and nothing more was said about them. Mr Targowski confirmed to us that Mr Bovey had decided not to use this material. Much of the delay following Mr Targowski's being instructed in place of Mr Bovey arose from the introduction of this material for the first time and the consequent need for further investigation by both parties.

[34] The question we now have to consider is whether, having regard to the provisions of section 27(4) of the 2003 Act, quoted at paragraph 12 above, we should now consider this issue. There is no question of our holding that the material now before us is evidence that was "not available at the extradition hearing": it was available to counsel then acting for the appellant and a decision was taken not to use it. Mr Targowski invited us to approach the matter as an issue which was "not raised at the extradition hearing", which is not subject to the availability test. In resisting this, Miss Crawford relied in particular on Pilecki v The Circuit Court of Legnica, Poland [2007] EWHC 2080 (Admin), where at paragraph 25 Stanley Burnton J, with whom Leveson LJ agreed, said that "issues such as that must be indicated and taken at first instance unless there is very good reason indeed why they should not be." We note, however, that in Trajer v Lord Advocate [2008] HCJAC 78, 19 December 2008, the opinion in which was issued after the hearing in the present case, this court disagreed with this observation. At paragraph 29 in Trajer the court said that section 27(4) "contains no language which would constrain the court into consideration of such material only if there was some reasonable, or even exceptional, explanation for the state of affairs concerned." It was also said that the court dealing with an appeal from a decision following an extradition hearing "is unconstrained as to the matters which it may consider, in our opinion". We doubt whether, in putting the matter in this way, the court in Trajer intended the generality of their observations to extend to the introduction of material which counsel had deliberately decided, no doubt for good reason, not to use before the sheriff. Nevertheless, we are prepared, now that it is desired to raise the issue before us, to consider whether it would have resulted in the sheriff deciding a question before him at the extradition hearing differently, that is to say the question whether the appellant's extradition is barred by reason of the passage of time.

[35] Mr Targowski acknowledged that the Italian authorities responsible for the prosecution of the appellant and the enforcement of the judgments against her were not the same as the prosecutor in Palermo who sought to have her interviewed as a witness in an entirely separate criminal investigation. He nevertheless directed criticism towards what he called a lack of system on the part of the Italian authorities. He submitted that, if the Italian authorities had had a "joined-up system", with names, and addresses where known, being entered on a central database, this would have led those concerned with the enforcement of the judgments against her to discover the appellant's whereabouts in Scotland in 2002 rather than in 2005, when Interpol provided information about it.

[36] We can see no justification for this criticism. Recital 10 of the Framework Decision, quoted at paragraph 3 above, predicates a high level of confidence between Member States. We can see no reason not to have a high level of confidence in the Italian authorities. There is no information before us, beyond counsel's submission, that a central database such as that desiderated by him exists in any Member State, or that if it did exist in Italy it would have led to the appellant being traced as a wanted person in 2002. We do not even know if such a system exists in Scotland. In any event, even if there is any degree of culpability on the part of the Italian authorities, we consider that it is outweighed by the public interest in giving effect to the arrangements for extradition pursuant under the EAW scheme: see Seminara v Government of Italy Public Prosecutor Office of Lecce [2008] EWHC 2877 (Admin) at paragraphs 21-24. Reference may also be made to Government of Croatia v Spanovic [2007] EWHC 1770 (Admin), in which Hughes LJ said, at paragraph 16, that although culpable delay may be relevant, the principal focus, when it comes to considering the passage of time, is not on a judgment on the performance of the requesting state's investigation but on the effect that time passing has had. We are therefore satisfied that, even if this issue had been before the sheriff, it would have made no difference to his decision.

(3) The appellant's personal circumstances

[37] The appellant left Italy in 1999. She claims in her affidavit that she did so for reasons connected to her daughter's education in Scotland; but it is difficult to conclude that she was not also motivated by a desire to avoid serving her sentence following the 1998 conviction. Since then she has lived at a number of address in and around Aberdeen, where her family are based. She set herself up in the fish-exporting business. Since 2001 this has been conducted through a company called Maresca Ltd, which deals in the buying of fish in Scotland and its sale in Italy. The appellant and her daughter, who now has a law degree and diploma in legal practice from Aberdeen University, are the directors and employees of the company, which has three other employees. The appellant states in her affidavit that the business is successful and expanding, and that much of its success depends on her personal skills, linguistic ability and contacts. The company would have to cease trading if she were required to serve a custodial sentence in Italy, though this would not be so if she were required to serve it in Scotland. The appellant also states that she has no friends or family in Italy, which would make it an additional hardship for her to serve a sentence there. Finally, she questions the motives of the Italian authorities. She is apparently suspected by the police in Tokyo of an involvement in a robbery there, and fears extradition from Italy to Japan.

Discussion

[38] No doubt the appellant has hoped that the Italian authorities would not seek her extradition to Italy, and that hope may have increased as time has gone by, but she has never had reason to believe that the Italian authorities had dropped the matter. On the contrary, she left Italy after the 1998 conviction, and to that extent her case may be compared with Austins v The Government of Spain. The information that we were given about her personal circumstances amounts to saying that she has continued to live the same kind of life as before: she has renewed the family life she had in Scotland before moving to Italy; and she appears always to have engaged in entrepreneurial activities, such as the present fish-exporting business. This business has been built up under the shadow of possible extradition to Italy; and it remains for conjecture whether or not, in what are in any event difficult times for many businesses, it can be carried on in the appellant's absence by her daughter and the remaining staff. To be required to serve a long sentence of imprisonment is no doubt a hardship, but that is inherent in such a punishment. Circumstances such as these do not themselves make it oppressive that the appellant should have to go to Italy to serve her sentences. There is nothing unfair about the extradition of a person in circumstances such as hers in order to serve sentences imposed for the commission of serious crimes. It is a question for the Italian and British authorities to decide whether arrangements may be made for her to serve part at least of her sentences in Scotland. So far as this court is concerned, the appellant has been convicted and sentenced as stated in warrants 1 and 3, and it is for the purpose of serving her sentences that her extradition is sought. It is not for us to question the motives of the Italian authorities in issuing the warrants, and in any event we can see no justification in doing so. Our overall judgment on the merits (see La Torre v Republic of Italy [2007] EWHC 1370 (Admin), per Laws LJ at paragraph 37) is that it would not be oppressive to extradite the appellant by reason of the passage of time since she is alleged to have become unlawfully at large in respect of either the 1998 or the 2001 conviction.

Decision

[39] For all these reasons, we are satisfied that the Sheriff correctly decided that the appellant's extradition was not barred by reason of the passage of time. This appeal is accordingly refused.