APPEAL COURT, HIGH COURT OF JUSTICIARY
Lady Paton Lord Turnbull Lord Marnoch	[2012] HCJAC 17 Appeal No: XC255/11 OPINION OF THE COURT delivered by LORD TURNBULL in Appeal under Section 103 of the Extradition Act 2003 by FATJON KAPRI Appellant; against THE LORD ADVOCATE FOR AND ON BEHALF OF THE REPUBLIC OF ALBANIA Respondent: _______

Act: Bovey Q.C., Mason; J.P. J. Pryde & Co, Edinburgh for Mowbray Limited, Glasgow

Alt: Wolffe Q.C., Hawkes; Crown Agent

2 February 2012

[1] In this case the appellant seeks to appeal under section 103(1) of the Extradition Act 2003 ("the Act") against a decision of the sheriff at Edinburgh to send his case to the Secretary of State. As a preliminary to disposal of that appeal, on 12 October 2011 the court fixed a hearing to determine the admissibility of new evidence which pertains to an amended Note of Appeal. That hearing took place on 11 November and 20 December 2011. The circumstances in which the question of admitting new evidence arises are set out below.

Background

[2] The appellant is an Albanian national who was convicted in an Albanian Court, in his absence, of the murder of another Albanian citizen which took place in London in April 2001. The Albanian authorities requested the appellant's extradition to Albania to serve the period of 22 years imprisonment imposed following upon this conviction.

[3] At the time of the murder the appellant was living in London as an illegal immigrant. The day after the murder he left London and went to live in Glasgow under a false Macedonian identity. He lived in Glasgow thereafter until his arrest in June 2010 on a provisional arrest warrant granted under Part 2 of the Act.

The Extradition Hearing

[4] After various hearings and postponements a full extradition hearing took place before the sheriff at Edinburgh over three days in December 2010. Given that Albania is a category 2 territory the procedure followed was as set out in Part 2 of the Act. On 20 January 2011 the sheriff issued his decision in which he held that:

1. The documents sent by the Scottish Ministers consisted of those required in terms of section 78(2) of the Act;

2. The appellant was the person whose extradition was requested, that the offence specified in the request was an extradition request and that copies of the relevant documents had been served upon the appellant, all as required by section 78(4) of the Act;

3. The extradition of the appellant to Albania was not barred by reason of any of the circumstances set out in section 79(1) of the Act;

4. In terms of section 82 of the Act there was no bar to the appellant's extradition by reason of the passage of time;

5. In terms of section 85(5) and (8) of the Act the appellant would be entitled to a re-trial or to a review amounting to a re-trial if returned to Albania;

6. In terms of section 87(1) of the Act the appellant's extradition to Albania would be compatible with the Convention rights within the meaning of the Human Rights Act 1998.

[5] Having so decided the sheriff sent the case to the Scottish Ministers for their decision as to whether the appellant was to be extradited, as he was required to do in terms of section 87(3) and 141 of the Act. On 14 March 2011 the Scottish Ministers decided that they were not prohibited from ordering the appellant's extradition in terms of section 93(2) of the Act and on 15 March 2011 the extradition order was served on the appellant.

The Note of Appeal

[6] A Note of Appeal dated 18 March 2011 was lodged on the appellant's behalf which intimated seven separate grounds of appeal. However subsequent events have affected the scope of the grounds intimated. At a procedural hearing held on 14 July 2011 counsel for the appellant informed the court that he no longer wished to insist on grounds one, two and three. At a subsequent procedural hearing held on 13 September 2011 counsel informed the court that he did not intend to insist on ground six. On 12 October 2011 the court allowed a Minute of Amendment to the Note of Appeal to be received the effect of which was to delete grounds five, six and seven and to substitute a new ground, numbered five. The effect of this combined procedure is that the grounds of appeal which remain before the court are numbered 3(iv) and (v) and are in the following terms:

"(iv) The sheriff erred in concluding that the appellant would be entitled to a retrial in terms of section 85(5) of the Act. Separatim. The sheriff erred in concluding that the rights specified in section 85(8) of the Act would be made available to the appellant."

and

"(v) The learned Sheriff erred in concluding that the Appellant's extradition would be compatible with his Convention rights in terms of section 87 of the said Act."

[7] Within the Minute of Amendment introducing the new ground five the underlying complaint was said to be that the judicial system of the requesting state was "systemically corrupt". In support of this contention reference was made within the body of the Minute to nine different reports from bodies such as the European Commission, the United States of America Department of State and various other international and non governmental organisations. The concluding passages of the Minute stated that:

"... any trial that the Appellant would face on his return to the requesting state would amount to a nullification of the rights guaranteed to him by Article 6 of the Convention. Reference is made to the Reports of Dr Mirela Bogdani and Ms Miranda Vickers lodged in process.

[8] The two reports referred to were lodged with the court on 10 November 2011. A further report, dated 29 July 2011, compiled by an Albanian lawyer named Periand Teta was also lodged. This report deals exclusively with the circumstances in which a right to a re-trial might or might not be available in Albania.

Written Submissions

[9] In its interlocutor of 12 October in addition to fixing a hearing the court directed that the parties should lodge written notes of argument seven days in advance of the date of that hearing. On behalf of the appellant a note of argument was lodged on 4 November 2011 in which two separate contentions were set out.

[10] Firstly, it was argued that whilst the evidence of the Teta Report would constitute new evidence in support of the appellant's fourth ground of appeal, the circumstances of the appellant's case could be distinguished from those which influenced the court in arriving at its decision in Engler v Lord Advocate 2010 JC 235. Separately it was submitted that the approach of the Albanian government had changed in light of the decision of the Court of Appeal in England in Bulla v Albania [2010] EWHC 3506 (Admin) and that accordingly the appellant could not with reasonable diligence have obtained the evidence now sought to be introduced in relation to this matter.

[11] Secondly, the written note of argument dealt with what it referred to as a new issue. That new issue was what the note referred to as "the Article 6 ground introduced by amendment". It then acknowledged that judicial corruption (the point raised under the new ground v) was not an issue which was raised before the sheriff at the extradition hearing. In summary, the contention was that this was a matter which only recently came to the notice of the appellant's agents. The purpose of seeking to lead the evidence of judicial corruption said to be available was set out in paragraph 8.2 of the note of argument, where it is made plain that the evidence is sought to be led in support of the newly formulated fifth ground of appeal, namely in support of an attack on the sheriff's decision made in terms of section 87 of the Act.

[12] On 10 November 2011 a document termed "Supplementary Outline Submission" was lodged with the court on the appellant's behalf. In this document, and for the first time in the written submissions, reference is made to section 85(8) of the Act. The tenor of this supplementary document appeared to be to suggest that the information sought to be led in the reports prepared by Dr Bogdani and Ms Vickers would affect the question to be addressed by the sheriff in considering the terms of section 85 of the Act.

[13] Section 85 of the Act is a section which the sheriff at an extradition hearing only requires to consider if the requested person has already been convicted in the requesting state. If the sheriff then decides that the requested person was convicted in his absence and did not deliberately absent himself from his trial (as in the present appellant's case) subsection (5) requires the sheriff to decide whether the requested person would be entitled to a retrial or (on appeal) to a review amounting to a retrial. In determining this question the sheriff must take account of the terms of subsection (8) which are as follows:

"(8) The judge must not decide the question in subsection (5) in the affirmative unless, in any proceedings that it is alleged would constitute a retrial or a review amounting to a retrial, the person would have these rights-

(a) the right to defend himself in person or through legal assistance of his own choosing or, if he had not sufficient means to pay for legal assistance, to be given it free when the interests of justice so required;

(b) the right to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him."

[14] Having considered the relevant information before him the sheriff in the present case was satisfied that he should answer the question posed in section 85(5) in the affirmative. That then took him through section 86 of the Act and on to the final matter for his consideration which is found in section 87 of the Act. That section is in the following terms:

"87 Human Rights

(1) If the judge is required to proceed under this section (by virtue of section 84, 85 or 86) he must decide whether the person's extradition would be compatible with the Convention rights within the meaning of the Human Rights Act 1998 (c. 42).

(2) If the judge decides the question in subsection (1) in the negative he must order the person's discharge.

(3) If the judge decides that question in the affirmative he must send the case to the Secretary of State for his decision whether the person is to be extradited."

[15] Accordingly it can be seen that the matters set out in section 85(8)(a) and (b) to which the sheriff must direct his attention arise only in the context of a request to extradite an individual who has been convicted in his absence and who did not deliberately absent himself from his trial. In dealing with such a person the sheriff must separately, and later, also address the question posed in section 87. In all other cases proceeding under Part 2 of the Act, whether the requested person has been convicted or not, unless the sheriff decides to discharge the person for other reasons, only the section 87 question will be considered.

The Oral Hearing

[16] In the hearing before us Mr Bovey QC acknowledged that the circumstances which would justify a sheriff in holding that extradition to a particular country would not be compatible with the person's Convention rights have been considered in a number of cases. He acknowledged that the test is whether the person would face a real risk of a flagrant denial of justice such as would constitute a breach of Article 6 of such a fundamental nature as to amount to a nullification or destruction of the right guaranteed by that Article - re Ullah v Special Adjudicator [2004] 2 AC 323, Mamatkulov and Askarov v Turkey (2005) 41 EHRR 25 (Grand Chamber), Brown v Rwanda [2009] EWHC 770. This was the approach which the sheriff took in assessing the submissions which were made to him under section 87 of the Act at the extradition hearing and Mr Bovey took no issue with the use of this test for that purpose.

[17] What Mr Bovey did seek to do though was to submit that the material now available to him in the reports prepared by Dr Bogdani and Ms Vickers was sufficient to put in question the matter of whether the rights set out in section 85(8) would be available to the appellant, were he to be returned to Albania. Relying on the decisions in R (Tous) v District Court in Nymburk, Czech Republic [2010] EWHC 1556 (Admin) and Murtati v Albania [2008] EWHC 2856 (Admin) Mr Bovey's submission was that if this question is raised on the evidence then the onus falls upon the requesting state to satisfy the court that the relevant rights will be available, in other words that the retrial or review available would be fully compliant with the terms of Article 6 of the European Convention on Human Rights. In his submission if this burden is not discharged, and to the criminal standard, then the sheriff would be obliged to order the requested person's discharge. As Mr Bovey put it, this was an entirely different matter from the consideration for the sheriff under section 87 of the Act and "was a mile away from the flagrancy test which applies in section 87".

[18] These submissions illustrate the extent to which the nature of this appeal has evolved and the importance of identifying the particular statutory provision upon which the appellant relies. Although there was an argument put before the sheriff arising out of section 87 of the Act, that argument arose out of entirely different propositions, none of which now feature in the present appeal. Nothing was said to the sheriff about a suggested absence of the rights referred to in section 85(8)(a) and (b)of the Act. The material asserting the prevalence of judicial corruption was first referred to in the Minute of Amendment which introduced a ground of appeal based on section 87 of the Act. Although it was that ground of appeal which was addressed in the written note of argument, the proposal is now to use that material in support of an entirely different argument, in relation to a different statutory provision and under the umbrella of the only ground of appeal which has remained from those first intimated.

[19] Since it was recognised that the issue now focussed was not before the sheriff and that it was being advanced on the basis of evidence which was not led at the extradition hearing, Mr Bovey addressed the impact of section 104 of the Act under reference to various cases in which meaning has been given to the statutory language. It is that section which sets out the court's powers in dealing with an appeal such as the present. Included within the section is the power to allow an appeal on the basis of an issue which was not raised at the extradition hearing or on the basis of evidence now available which was "not available at the extradition hearing". In submitting that he should be entitled to argue this new issue and to do so on the basis of the contents of the reports from Dr Bogdani and Ms Vickers, Mr Bovey relied upon the way in which section 27 of the Act (the identical provision dealing with a Part 1 territory) had been interpreted in the case of Trajer v Lord Advocate 2009 JC 108 and on the comments made by Lord Justice Stanley Burnton at paragraph 19 of his decision in Hoholm v Norway [2009] EWHC 1513 (Admin).

[20] Mr Bovey pointed out that in Trajer the court's view was that the language of section 104 of the Act permitted it to hear an appeal based on a new issue or on new evidence without any form of constraint. It rejected the suggestion that a party seeking to rely on such material would need to satisfy the court that there was some reasonable explanation for the state of affairs concerned before the court could act upon it. He pointed out that in Hoholm Lord Justice Stanley Burnton considered circumstances in which an appellant wished to raise an issue which was not raised at the extradition hearing but on the basis of evidence which had been presented at that hearing. His Lordship's view was that section 104 distinguished between a new issue and new evidence and he held that where an issue was available to be raised by an appellant on the evidence adduced at the extradition hearing the appellant was in general entitled to raise that issue on appeal even though it had not been raised at that hearing.

[21] On this analysis Mr Bovey submitted that there should be no restriction on his entitlement to raise the new legal issue in relation to section 85 of the Act and to advance argument in that regard on the basis of the evidence now available. In so far as any explanation for the stage at which these matters featured Mr Bovey largely restricted himself to submitting that the matter of judicial corruption in Albania had not earlier been brought to the attention of the appellant's advisors.

[22] At the commencement of the hearing before us Mr Wolffe QC, appearing as counsel for the Lord Advocate, explained that he did not oppose receipt of the Teta report concerning the right to a re-trial in Albanian Law. He explained that there had been certain developments in Albanian Law since the appellant's extradition hearing as a consequence of decisions of the Albanian Constitutional Court. Furthermore there was presently a case before the Court of Appeal in England in which the question of whether there is a right to a re-trial in Albania was to be explored. For these reasons he acknowledged that this evidence could properly feature as part of the appellant's ground of appeal number 3(iv).

[23] Mr Wolffe also took us to the case of Da an Chen v Romania [2006] EWHC 1752 (Admin) in order to suggest that Mr Bovey's interpretation of what section 85 required a sheriff to consider was incorrect. However he stated that he would not oppose the appellant introducing a new legal argument as to the effect which the sheriff ought to have given to section 85(8) of the Act, so long as that argument was based on the evidence which had been led before him.

[24] Mr Wolffe's opposition was restricted to the question of whether or not the appellant ought to be permitted to lead the evidence of Dr Bogdani and Ms Vickers in support of their respective reports. He submitted that the proper interpretation of the reference to evidence which was "not available at the extradition hearing" was to be found in the cases of Szombathely City Court & ors v Fenyvesi [2009] 4 All ER 324 and in the opinion of the Lord Justice Clerk in the case of Engler v Lord Advocate 2010 JC 235. Mr Wolffe pointed out that in Engler the Lord Justice-Clerk had stated that "evidence which was not available at the extradition hearing" meant evidence which either did not exist at the time of the extradition hearing or was not at the disposal of the party wishing to adduce it and could not with reasonable diligence have been obtained.

[25] On the basis of this approach he submitted that the evidence sought to be adduced from Dr Bogdani and Ms Vickers did not meet this test and ought not to be admitted. Separately Mr Wolffe submitted that the reports lodged contained criticisms of the judicial system in Albania which were advanced entirely at the level of generality. Nothing was contained within either which indicated how such criticisms as were present would affect the appellant's right to a fair trial and for these reasons he invited us to hold that the reports were of no relevance to the ground of appeal and to refuse to permit them to be introduced as new evidence. On this basis Mr Wolffe submitted that the court should at this stage refuse the appeal insofar as based on ground 3(v) of the amended grounds.

Discussion

[26] The relevant portion of the interlocutor of 12 October 2011 is in the following terms:

"The Court, having heard Senior Counsel for the Appellant and Counsel for the Lord Advocate indicated that, at this stage, it was not appropriate to fix an eight day hearing and continued the appeal to a date to be afterwards fixed, for a duration of one day, for the purpose of determining the preliminary issue of the admissibility of new evidence which arises from the amended Note of Appeal".

[27] Accordingly the issue for our consideration is a narrow one. Furthermore, given the approach taken on behalf of the Lord Advocate, it is not appropriate to offer any view on the question of the proper interpretation of section 85 of the Act at this stage.

[28] An examination of the reports under discussion raises a number of questions and discloses that Mr Wolffe's analysis of them is correct. Each presents a general picture of aspects of Albanian political and legal structures. Corruption and organized crime are said to be endemic. The judicial system is said to be weak with instances of judges becoming targets for defamation and assassination being mentioned. There is said to be an absence of the rule of law, the absence of an effective police force and a functioning judiciary system. However at other parts of the same reports descriptions and assessments of the functioning of the judiciary as undertaken by International Bodies are referred to. An extract from the United States of America State Department's Country Human Rights Report for 2008 is included to the following effect:

"... the constitution provides for an independent judiciary; however, political pressure, intimidation, widespread corruption, and limited resources sometimes prevented the judiciary from functioning independently and efficiently."

[29] The examples of the particular deficiencies in the judicial system which are given include;

"Interference of politics on the judiciary is more evident in the political crimes or when high profile or official figures are involved.

It is normal that, in order to escape convictions, criminals pay the judges and subsequently are released.

However, by presenting the judges with a 'processing fee', the lawyers ensure that the case is dealt with in sufficient detail, knowing that if properly investigated their client is likely to win it. This form of bribery typically occurs when large sums of money are involved, such as property and procurement disputes, and restitution of property."

[30] None of these examples impact on the circumstances in which the present appellant would find himself if returned to face trial in Albania. Whilst the examples quoted represent only some of what is said, in our opinion the material contained in both of the reports in question is of a wholly general nature and contains nothing to suggest that any of the concerns identified would be of application to the appellant's case. Nothing within either report supports the appellant's contention that "he" would face an unfair trial on his return to Albania or in any way supports his contention that any retrial would lack the fundamental requirements of Article 6. We note also that nothing in either report bears upon the question of whether any such retrial would comply with the particular requirements referred to in section 85(8) of the Act. Accordingly, in our view, the proposed new evidence contained in the reports prepared by Dr Bogdani and Ms Vickers is irrelevant to the ground of appeal in question and ought not to be admitted for this reason. By concession we will permit the appellant to lead the additional evidence of the "Teta" report and of its author Periand Teta. The respondent will, in turn, be entitled to lead evidence in rebuttal if so advised. Given that our sole remit was to consider the admissibility of proposed new evidence we do not consider that we can give effect to Mr Wolffe's submission in relation to ground of appeal 3(v). In any event the appellant will be entitled to present argument in support of both remaining grounds of appeal, using such of the evidence as was led before the sheriff and is to be led in connection with the Teta report as he contends is relevant.

[31] In light of the view which we have arrived at it is unnecessary to decide whether Mr Bovey was correct in submitting that section 104 of the Act entitles an appellant to rely on new evidence, even if it could have been made available at the extradition hearing. In so far as the cases of Trajer v Lord Advocate and Engler v Lord Advocate might be thought to differ on this point we would incline to the view that the decision in Engler ought to be preferred.

[32] Finally we wish to make one further observation in relation to the particular reports tendered. Both of the reports whose use was challenged were prepared by authors who have written widely on Albanian history and politics. Each seems to be based in the United Kingdom and neither appears to be legally qualified, or to have experience of working within the Albanian legal system. In their respective reports each draws on other reports by various governmental and non-governmental organisations. To this extent significant aspects of what they sought to contribute arose out of material gathered at second hand, or at an even more remote point. In these circumstances we were not entirely satisfied that the evidence of these witnesses was competent. Whilst no objection to this aspect of the proposed evidence was taken and whilst there are no doubt circumstances in which evidence gathered at second hand can properly be admitted, it seems to us that at some point a line must be drawn. As it happens however it is unnecessary for us to decide on which side of the line the particular evidence under discussion fell.