APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Clarke Lord Bonomy Lord MacLean	[2011] HCJAC 113 Appeal No: NO. XC511/11 OPINION OF THE COURT delivered by LORD CLARKE in BILLS OF ADVOCATION AND APPEAL UNDER SECTION 147(3) OF THE CRIMINAL PROCEDURE (SCOTLAND) ACT 1995 by HER MAJESTY'S ADVOCATE ON BEHALF OF THE SLOVAK REPUBLIC Complainer, and Respondent; against RENATA HAVRILOVA Complainer, Appellant, and Respondent: _______

Appellant: Wolffe, Q.C.; Lord Advocate; on behalf of the Slovak Republic

Respondent: McCluskey, Advocate

18 November 2011

[1] The court has before it, for disposal, two Bills of Advocation and an appeal under section 147(3) of the Criminal Procedure (Scotland) Act 1995. In the first of the Bills of Advocation the Lord Advocate is the complainer. In the second the complainer is Renata Havrilova. Ms Havrilova is the appellant in the section 147(3) appeal. Throughout this Opinion we will, for convenience, refer to the Lord Advocate on behalf of the Slovak Republic as the complainer and Ms Havrilova as the respondent.

[2] All foregoing applications to this court arise from a decision of Sheriff Crowe in dealing with a European Arrest Warrant issued by the Slovak Republic for the extradition of the respondent, in respect of a charge of neglecting her baby daughter whereby the child died.

[3] The procedural history of the extradition proceedings is as follows:

The respondent first appeared at Edinburgh Sheriff Court on the European Arrest Warrant on 15 April 2011. Bail was refused and an appeal was marked against that decision. An appeal against the bail decision was taken but was apparently unsuccessful. A full hearing was fixed for 5 May 2011, but was adjourned until the 2 June 2011. Bail was again refused. Preliminary hearings were held on 16 May and 26 May 2011. The respondent remained in custody. On 26 May the respondent sought an adjournment to secure legal aid for a psychological report. The motion was granted and a fresh date was fixed for the full hearing to take place on 30 June 2011. The respondent remained in custody until 2 June, when the next calling of the case took place. On 2 June a further hearing was fixed for 9 June 2011, when the case was continued to 20 June for the expert report to be obtained. The respondent was remanded in custody of both 2 and 9 June. On 10 June 2011, the respondent was granted bail by Lord Bannatyne, sitting in the High Court. The appellant has remained on bail since that date.

[4] Further preliminary hearings then took place prior to the full hearing which had been fixed for 30 June 2011, but which was in the event adjourned once again until 4 August 2011. The full hearing was designed to consider the merits of the application for the extradition of the respondent and the opposition thereto. At its commencement, however, counsel for the respondent intimated that he wished to raise a preliminary issue to the effect that the period of time which the appellant had spent in custody, from 15 April to 10 June 2011, when bail was ultimately granted, totalled 56 days and, therefore, exceeded the 40 day period set down in section 147(1) Criminal Procedure (Scotland) Act 1995 ("hereinafter referred to as 'the 1995 Act'"). As a consequence, it was contended, the extradition proceedings fell. This submission apparently had been first intimated to the court on 20 June 2011, but the presiding Sheriff had decided that it should be considered by the Sheriff dealing with the full hearing on the merits of the application. The submission was made under reference to section 9(2) of the Extradition Act 2003 ("hereinafter referred to as 'the 2003 Act'") which is to the following effect:-

"In Scotland, at the extradition hearing the appropriate judge 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".

Section 147(1) of the 1995 Act is to the following effect:-

"Subject to subsections (2) and (3) below, a person charged with an offence on summary proceedings shall not be detained in that respect for a total of more than 40 days after the bringing of the complaint in court unless his trial is commenced within that period, failing which he shall be liberated forthwith and thereafter he shall be forever free from all question or process for that offence".

Subsection 2 of section 147 provides:-

"On an application made for the purpose, the Sheriff may, on cause shown -

(a) Extend the period mentioned in subsection (1) above; and

(b) order the accused to be detained awaiting trial, for such period as the Sheriff thinks fit".

It is furthermore provided by section 147(3) that:-

"The grant or refusal of any application to extend the period mentioned in subsection (1) above may be appealed against by note of appeal presented to the High Court; and that Court may affirm, reverse or amend the determination made on such application."

[5] After hearing submissions made in respect of the preliminary point, taken on behalf of the respondent, the Sheriff observed that it did seem odd that, hitherto, the provisions of section 147 of the 1995 Act had never been relied upon by any person in respect of whom extradition was sought, notwithstanding that in many cases they had been held in custody for periods significantly beyond the 40 day limit provided in section 147(1). The Sheriff, nevertheless, reached the conclusion that the 40 day time limit, as set out in section 147(1), applied to the present proceedings by virtue of the powers given to him under section 9(2) of the 2003 Act. It had been argued on behalf of the complainer that esto, contrary to his primary submission, the Sheriff held that the provisions of section 147(2) fell to be held applicable, then an extension of time should be granted in terms of section 147(2). The complainer sought an extension of 16 days to cover the time that the respondent had spent on remand beyond the 40 day limit. The Sheriff granted that application.

[6] The complainer's Bill of Advocation before this court has in support of it the following plea in law:-

"The decision of the Sheriff to hold that section 147(1) of the Criminal Procedure (Scotland) Act 1995 applied to proceedings brought under the Extradition Act 2003, being unjust, erroneous and contrary to law should be recalled and the complaint remitted to the Sheriff with a direction to proceed as accords."

Initially the respondent, in turn, lodged a note of appeal which, inter alia was to the following effect:-

"The presiding Sheriff erred in granting the Crown's motion to extend on the basis that the Crown ought to have made the motion prior to the appellant being liberated.

It is respectfully submitted that the presiding Sheriff ought to have refused the Crown's motion and thereafter discharged the appellant with respect to the European Arrest Warrant".

The respondent, subsequently lodged a Bill of Advocation attacking the decision of the Sheriff to extend the 40 day period. In the event, as shall be seen, the court has been able to decide all the issues arising from the Sheriff's decision by considering the submissions made in respect of the complainer's Bill of Advocation and determining the question raised thereby.

[7] In opening his submissions on behalf of the complainer, senior counsel, Mr Wolffe QC, drew to the court's attention that, while the present extradition application was a Part I case, in terms of the 2003 Act, the Sheriff's decision relating to the application of section 147(1) of the 1995 Act would apply equally well to Part II cases since the provisions in section 77(2)(a) are to the same effect as those contained in section 9(2). The question which arose, in these proceedings, turned on the construction of section 9(2) of the 2003 Act and that question was: - Did the words "have 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 I warrant was issued" bring in to play the provisions of section 147(1) of the 1995 Act.

[8] In addressing that question, so formulated, the following observations, it was submitted, fell to be made in:-

(1) Section 147(1) calculated the 40 days "from the bringing of the complaint". What constituted a complaint for the purposes of the 1995 Act was described in section 138 of that Act. In extradition proceedings there was no complaint, as so defined.

(2) Section 147(1) referred to the 40 day period as being the maximum period a person is to remain is custody pending trial. In extradition proceedings there was no trial.

(3) If the Sheriff's approach was correct it was difficult to understand what the consequences were to be, having regard to the requirements of the Extradition Act itself. The scheme of the Extradition Act was that once a person was arrested under either a Part I warrant or a Part II warrant, he was to be either remanded in custody or admitted to bail pending the completion of the proceedings. It was not in the Lord Advocate's power to discontinue the proceedings. The provisions regarding bail in the 1995 Act are expressly applied to extradition proceedings by virtue of section 24F of the 1995 Act, with certain modifications. The timetabling for the progress of the extradition proceedings, in relation to both Part I and Part II, is provided for in detail in the 2003 Act, with the explicit understanding that the individual whose extradition is being sought would, throughout, either be in custody or on bail.

[9] Part II of the 2003 Act clearly envisages that proceedings might well run longer than 40 days and that the person whose extradition was sought would be in custody for a period longer than 40 days. Reference in that connection was made to the provisions of section 71, 74 and 75. The 2003 Act established a system of procedure which could not be equiparated with summary court proceedings. In Goatley v HM Advocate [2006] SCCR 463 Lord Nimmo Smith in delivering the opinion of the court at paragraph 36 said:-

"Although extradition proceedings before the Sheriff and before this court under the 2003 Act are best regarded as being sui generis, they are nevertheless more akin to criminal than to civil proceedings".

In R (Govt. of USA) v Bow Street Magistrates Court [2007] 1 WLR 1157, Lord Phillips C J (as he then was), at para 76, after referring to the English equivalent of section 9(2) of the 2003 Act, said:-

"Extradition proceedings are criminal proceedings, albeit of a very special kind. The judge should apply the normal rules of criminal evidence and procedure to the extent that there are appropriate having regard to the specifics of the statutory schemes in Part I and Part II".

Section 147(1) and (2) of the 1995 Act, which are predicated on a complaint having been brought, and a trial being concluded within a period thereafter, did not, it was submitted, fit with the statutory scheme established under the 2003 Act. For these reasons the Bill of Advocation brought by the Lord Advocate should be passed.

[10] We heard from junior counsel for the respondent in opposition to the Lord Advocate's Bill of Advocation. He submitted that the "judge's powers" referred to in section 9(2) and section 77(2) of the 2003 Act were habile, when read in context, to cover the availability of the right in a person charged with an offence to be liberated in terms of section 147(1) of the 1995 Act. One example of the court, in Scotland, recognising the analogy that should be drawn between extradition proceedings and summary criminal proceedings could be seen in the case of Gherhardt v HM Advocate [2010] SCCR 572 at para 18. Reference was also made to the case of The District Court in Ostroleka v Dytlow [2009] EWHC 1009 (Admin) para 13. We were referred also to Asliturk v HMP Wandsworth [2010] EWHC 1720 (Admin) and Chaos v Kingdom of Spain
[2010] NIQB 68. In the first of these two last mentioned cases, the court in England was dealing with the question as to the interplay between the provisions relating to bail in the 2003 Act and the court's general powers regarding bail. In the second of the two cases the court in Northern Ireland had to address the question as to whether a court, other than a court having jurisdiction in relation to the extradition proceedings, had the power to revoke bail granted by the extradition court. Neither of these authorities provides us with any assistance in the determination of the question before us, as raised by the Lord Advocate's Bill of Advocation. They were prayed in aid by, junior counsel for the respondent, as we understood it, to support the proposition that the powers contained in section 9(2) of the 2003 Act should be construed having regard to other features of our criminal procedure system. But the question first and foremost which falls to be answered is what do the words of section 9(2) mean and embrace?

Decision

[11] We have little difficulty in reaching the clear conclusion that the Sheriff was wrong in holding that the provisions of section 147(1) and (2) of the 1995 Act applied to extradition procedure. The reasoning of the Sheriff by which he reached that conclusion, it seems, is set out at paras 37 to 40 of his report to this Court which are in the following terms:-

"(37) Looking at matters in light of the accused's submission it does seem unusual that hitherto the provisions of section 147 of the 1995 Act have not been deployed by the Court to manage these cases and ensure that the EAW cases are dealt with within the period envisaged in Article 17 of the Framework Decision set out at para (15) above. The 110 day rule (now 110 and 140 days) is a long tradition in our system dating back to the Criminal Procedure (Scotland) Act 1701. The 40 day rule has been in place for summary cases since the enactment of section 14(2) of the Criminal Justice (Scotland) Act 1980. Although extradition proceedings are likened to summary procedure by section 9(2) of the 2003 Act, this does not mean that the cases themselves are at the bottom end of the criminal spectrum and have no court programming priority.

(38) It is well known that for outgoing requests the Lord Advocate's policy is to seek the return of fugitives for crimes thought serious enough to merit proceedings in the High Court. Not all inward requests from requesting states involve cases of that perceived degree of seriousness; however such inward requests regularly involve cases of murder and may involve terrorist allegations. The present case involves an allegation of homicide which may be similar to a contravention of section 12 of the Children and Young Persons (Scotland) Act 1937, an offence which is triable either summarily or on an indictment.

(39) Since all Scottish criminal cases are governed by time limits at first instance when the accused is remanded it does not seem logical for an appropriate time limit regime not to apply in respect of requests from foreign states regarding of accusations (sic) or convictions which may be of High Court gravity; indeed sections 64 and 65 of the 2003 Act require the offence in the EAW to be at least of the level of a serious summary prosecution.

(40) Due to legal aid procedures, particular delays in hearings and seeking sanction for counsel and request to adjourn the Full Hearing to secure evidence, it is often the case that the hearing does not get properly underway until the 40 day period has expired. In the present case had it been clear that the 40 day rule applied, the accused could have objected to any extensions sought and if agreed by a decision to extend the period lodged on appeal with the High Court in terms of section 147(3) of the 1995 Act and Rule 17.1 of the Act of Adjournal".

Any difficulty that the Lord Advocate, acting for the requesting authority, may have had as a result of section 147(1) time limit being applied would require, the sheriff considered, to be addressed by the Lord Advocate seeking to have an extension to the time limit under section 147(2). In light of his decision in the present case as regards the applicability of section 147(1) the Sheriff, in the event, as has been seen, granted the Lord Advocate an extension, that decision being the subject of attack by the respondent both by way of appeal and her own Bill of Advocation.

[12] In our judgment, the Sheriff's starting and finishing point in addressing the question raised in these proceedings should have been with the wording of section 9(2) of the 2003 Act. It confers powers on the court. It says nothing about the rights of the person in respect of whom extradition is sought. What section 147(1) is concerned with are rights of accused persons who have been charged and are to be brought to trial for offences committed in this jurisdiction in certain circumstances. Section 9(2) of the 2003 Act, therefore, does not engage, by virtue of its wording, the provisions of section 147(1) of the 1995 Act. That is a short answer to the question which was raised before the Sheriff and turns on construing the statutory provision according to its plain terms.

[13] It is plain that section 9(2) is intended to bring into play in extradition proceedings, whenever circumstances allow, the rules of summary cause procedure and evidence (compare the dictum of Lord Phillips C J in R (Govt. of USA) referred to above.) That is how those provisions have been understood to operate by the courts to date and that is the correct approach. The provisions of section 147(1) cannot be lifted and grafted on to proceedings brought under detailed provisions set out in the 2003 Act. Those provisions apply only when a person has been charged with a summary offence under summary proceedings. The person in extradition proceedings in respect of whom extradition is sought has not been charged with a summary offence under the 1995 Act. Section 147(1) provides for the computation of the time limit to commence with the bringing of a complaint in the case. No such thing happens in extradition proceedings. The terminus for the time limit under section 147(1) is the commencement of a trial. No such event happens in extradition proceedings. It is therefore impossible to fit the provisions of section 147(1) on to the extradition process.

[14] In addition it has to be noted that the scheme provided for in the 2003 Act provides its own timetable. As Lord Phillips C J in R (Govt. of USA) at para. 79 observed:-

"It may appear to be in the interest of a party resisting extradition to delay the extradition procedure and in cases where extradition proceedings dragged on for years demonstrate the extent of which this proved possible under the old regime. It is, however, the duty of the parties and those acting for them to cooperate in ensuring that the extradition procedures comply as closely as possible with the statutory time limits. The timetable set out in Parts I and II of the 2003 Act should be complied with and extensions of time granted only in exceptional circumstances, where the interests of justice so require. It will usually be desirable to hold a case management conference in advance of the extradition hearing to identify any issues that are likely to arise and so that the judges can give directions designed to ensure that these issues can be addressed without causing delay."

It is regrettably the experience of this court, that on occasion it does appear that parties resisting extradition do, through their representatives, seek to delay the extradition procedure for as long as possible. Within the context of the purpose of extradition proceedings, the liberty of the person whose extradition is sought has to be catered for by provisions for bail, explicitly conferred by section 24F of the 1995 Act. While that provision confers on the court dealing with extradition proceedings the general powers in respect of bail available in criminal courts in this jurisdiction, it does so subject to certain modifications. One of these modifications which is important having regard to the position adopted by the respondent is that there is no restriction on when a review of an adverse decision in relation to bail may be sought (see section 24F(1)(c)(ii)).

[15] For all the foregoing reasons we consider that the Bill of Advocation brought by the Lord Advocate falls to be passed. It follows, as a consequence, that the Bill of Advocation at the instance of the respondent and that the appeal brought by her fall to be dismissed.

[16] The complaint at instance of the Lord Advocate on behalf of the Slovak Republic is accordingly remitted to the Sheriff to proceed as accords.