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Cite as: [2003] ScotCS 159

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Wright, Re Judicial Review [2003] ScotCS 159 (30 May 2003)

OUTER HOUSE, COURT OF SESSION

 

 

 

 

 

 

 

 

 

 

 

 

OPINION OF LORD SUTHERLAND

in the Petition of

ROBERT BRUCE WRIGHT

Petitioner;

for

Judicial Review of a decision of the Scottish Ministers

 

________________

Petitioner: Bovey, Q.C., Anderson; Andersons

Respondents: Doherty, Q.C., Crawford; R. Henderson

30 May 2003

[1]      On 7 March 2001 the petitioner was arrested on a warrant under Section 8(1) of the Extradition Act 1989 ("the Act"). It was alleged that the petitioner had committed offences against Articles 17 and 76 of the Estonian Penal Code, namely organising the smuggling of narcotic drugs, and a warrant for his arrest had been issued by a Judge of the City Court in Tallin, Estonia. In due course on 18 April 2001, a notice was issued in terms of Section 13(1) of the Act to the effect that the respondents were contemplating making an order for the petitioner's return to Estonia and he was informed of his right to make representations. Representations were duly lodged with the respondents on 31 May 2001. On 12 June 2001 the respondents made an order for the petitioner's return to Estonia and, by letter dated 14 June to the petitioner's agents, they gave their reasons for their decision.

[2]      Up to this time the proceedings had the appearance of regularity and expedition. Thereafter, the same cannot be said. Fortunately, however, it is not necessary that I should go into any detail about these matters. At the hearing before me it was agreed that the only issue raised in the petition which should at heard at this time was the petitioner's attack on the respondents' decision of 12 June 2001. The basis of that attack was that the respondents failed to make adequate findings in fact to allow them to exercise their discretion properly and, in any event, they had failed to communicate adequate reasons for their decision. In that situation, the petitioner seeks reduction of the order of 12 June 2001. It was a matter of agreement that all other matters raised in the petition should remain outstanding.

[3]      The representations which were made by the petitioner's agents and which are relevant to the present issue can be summarised as follows. The Estonian Criminal Justice System does not have any requirement that the case against an accused be proved beyond reasonable doubt or indeed to any standard whatsoever. This is of particular concern in light of the involvement in the trial of two lay assessors who sit with the professional Judge. There is no requirement for corroboration. A single piece of evidence which could justify a conviction could emanate from an alleged socius criminis who is giving such evidence in order to exculpate himself or in accordance with a deal made with the Estonian authorities. In the present case the main evidence against the petitioner appears to come from an alleged socius, William Hain. Hain was apprehended in Estonia driving a car in which a substantial quantity of heroin was concealed. He maintains that he was merely the driver of the car and that the petitioner was involved in the organisation at a higher level. It is understood that Hain's statement to the police was made after he had been given certain threats and also was given on the basis that if he gave evidence against the petitioner, the prosecutor would ask the Judge to restrict his sentence to the minimum period. It is also understood that Hain now wishes to withdraw his statement. In these circumstances it was said that the petitioner could not receive a fair trial which is a minimum requirement under Article 6 of the European Convention on Human Rights to which Estonia is a signatory. In their letter of 14 June 2001, the respondents say that they have given very careful consideration to the representations. They had obtained comments on and further information in relation to the representations from the Ministry of Justice, the Security Police Board of Estonia and the British Embassy in Estonia. They concluded that the representations did not individually or cumulatively disclose an reason why the petitioner should not be returned to Estonia. In relation to the standard of proof, the letter said:

"The Scottish Ministers have carefully considered the representations in relation to the standard of proof. They have also had regard to the comments made in relation to the difference in relation to the law of corroboration which is a requirement under Scots Law. They have concluded, however, any such differences in the rules of the evidence do not mean that there is a risk that Mr Wright could not expect to receive a fair trial. They also note, in this context, that the judicial authorities are subject to the requirements of the Convention."

In relation to the case against the petitioner, the respondents stated:

"The representations state that Estonian authorities have insufficient evidence against Mr Wright. It is claimed that the main evidence comes from a socius criminis who has given a statement to the authorities which incriminates Mr Wright; the evidence from that witness was obtained by threats and following a deal which he struck with the prosecution authorities; notwithstanding that the witness may wish to withdraw his statement, his statement could result in Mr Wright's conviction and the evidence of that witness does not require corroboration. The Scottish Ministers do not consider that these matters are a reason not to return Mr Wright for the following reasons. The Republic of Estonia is a contracting party to the Council of Europe European Convention on Extradition and was designated by the UK government as an extradition partner under the 1989 Act. In terms of Article 3 of the European Convention on Extradition Order 1990, there was no obligation for Estonia to furnish the Court of Committal with evidence sufficient to warrant a trial for the extradition offence and in fact there was no evidence produced to that Court regarding Mr Wright. Section 9(4) of the 1989 Act further provides that the Court when considering whether to make a committal order did not need to be satisfied that there is sufficient evidence to warrant trial in this case. The Scottish Ministers are not obliged to consider the sufficiency of evidence which may be available to the Estonian authorities in proceeding before the Estonian Courts. They are satisfied that the issues raised by Mr Wright in his representations concerning sufficiency of evidence are properly matters for the Estonian Courts. In this regard it has been noted that in a prosecution before the Estonian Court Mr Wright has the right to a fair trial guaranteed under Article 6 of the Convention."

 [4]      On behalf of the petitioner it was contended that the decision letter disclosed a failure of fact-finding and a failure to give adequate reasons. The letter does not disclose what enquiries were made of Estonian authorities or what the outcome was. As the respondents' failed to make findings in fact in relation to the matters raised in the representations, it follows that they were not in a position to exercise their discretion properly. It is not a proper answer to the representations that Estonia is bound by obligations under the European Convention, as the respondents cannot assume that treaty obligations will be obtempered. It is the duty of the Scottish Ministers to consider these matters for themselves and not to make any assumption that the Estonian Courts will deal with the matters in terms of the Convention. This submission was made under reference to R v The Secretary of State for the Home Department ex parte Launder 1997 3 AER 961 where Lord Hope said that the Secretary of State cannot ignore representations on the ground that it must be assumed that a foreign government with which this country has diplomatic relations would adhere to its treaty obligations. If issues of that kind are raised in a responsible manner by reference to evidence and supported by reasoned argument, the Secretary of State must consider them. Counsel contended that there was no indication in the decision letter that the Scottish Ministers considered the representations for themselves and it appears that they were merely relying on the Estonian Courts to comply with the requirements of Article 6 of the Convention. As an example of the level of investigation which was required of the Scottish Ministers, counsel referred to R v Secretary of State for the Home Department ex parte Ramda 2002 EWHC 1278 (Admin). In that case the French authorities sought extradition of the applicant in connection with a series of terrorist bombings in France. A man Bensaid was arrested by the French police and interrogated by them over a four day period. In the course of these interviews, he made statements which implicated the applicant. Representations were made to the Secretary of State indicating that Bensaid was in good health when arrested by the police, but at the end of the four days he had a substantial number of bruises which indicated that he had been beaten up while in police custody. It was therefore suggested that his statement implicating the applicant was extorted from him by violence. The Home Secretary made enquiries of the French Department of Justice in relation to these representations. Without going into the matter in detail, the reply that he got indicated that the French authorities had formed the view that the injuries had been sustained during the course of offering violent resistance while attempting to escape. It was however clear that there was some doubt as to whether there was any investigation at all of the original complaint of ill treatment by Bensaid. Furthermore, there was considerable doubt as to whether or not the French Courts would permit any objection to Bensaid's statements by the applicant on the ground that they had been extracted from Bensaid by force. It was held that although the Home Secretary had gone into considerable detail in considering the representations made to him, he had failed adequately to consider these two issues and to give reasoned statements as to why he felt he could properly disregard them. In that situation, his decision was quashed. Counsel for the petitioner maintained that the case of Ramda shows that Scottish Ministers have to make fairly detailed investigation of complaints made in the representations and that they have failed in the present case to do so.

[5]      Counsel also referred to R v The Secretary of State for the Home Department ex parte Patel 1995 Admin LR 56. In that case extradition was sought by the United States of America in relation to an accused in connection with an offence which had occurred some nine to twelve years prior to the application. The Home Secretary had decided that that was a matter for the American Courts to take into account. It was held however that the irresistible inference to be drawn from the facts in that case was that it would be unjust and oppressive to surrender the applicant and that the Minister could not properly have reached any other conclusion.

[6]      On the whole matter counsel submitted that I should hold that the Scottish Ministers had failed adequately to consider the representations made, had failed to make any proper findings in fact, had failed to exercise their discretion on a proper factual basis and had failed to give proper and adequate reasons for the decision which they took.

[7]      Counsel for the respondents maintained that the petitioner's argument had one basic fallacy, namely that there were facts which the respondents were bound to find before proceeding to a decision. In the present case the respondents appear, from the decision letter, to have accepted that there were differences between Scotland and Estonia in relation to the standard of proof, the requirement of corroboration and the effect of the evidence of a socius criminis. The only matter which might be said to involve a dispute in fact was whether or not Hain had been threatened before making his statement. That however, as was pointed out in the decision letter, was a vague and unsubstantiated observation. There was no reason to suppose that the Estonian Courts would be unable to deal with that matter properly themselves. It is not for the Scottish Ministers to hold an enquiry into such a dispute which is properly a matter for the Courts of the country concerned. It is a matter of agreement that as a general rule, questions of admissibility of evidence should be left to the trial Court and should not be decided by the Minister dealing with extradition. If there is evidence that the trial Court would not properly consider the matter, as appears to have been the position in Ramda, then the order should be refused on the basis that there would be a flagrant denial of justice. Similarly if, as in Patel, the delay is so lengthy that it would be unjust and oppressive to return the prisoner, then again the order should not have been made. In the present case however, there is no indication that the Courts in Estonia are in any way incapable of dealing with arguments relating to sufficiency of evidence or that they are in any way incapable of deciding the factual dispute as to whether or not Hain's statement was extracted by the use of threats or promises. There was therefore nothing in the representations which could form a basis for the respondents to conclude that leaving all of these matters to the trial Court would be likely to lead to a flagrant denial of a fair trial, which is the proper test. The respondents had also given sufficient, if brief, reasons for their decision. What they say is:

"The Scottish Ministers are not obliged to consider the sufficiency of evidence which may be available to the Estonian authorities in proceedings before the Estonian Courts. They are satisfied that the issues raised by Mr Wright in his representations concerning sufficiency of evidence are properly matters for the Estonian Courts. In this regard it has been noted that in a prosecution before the Estonian Courts, Mr Wright has the right to a fair trial guaranteed under Article 6 of the Convention."

This is a perfectly accurate representation of the correct law. It is also clear that the respondents considered the representations for themselves and had not simply relied upon the fact that under Article 6 the petitioner is entitled to a fair trial. The reference to the Convention merely buttresses the decision which the respondents have already made and is not the reason for arriving at the decision. These submissions were made under reference to R v The Secretary of State for the Home Department ex parte Elliot 2001 EWHC Admin 263, R (Abdulla H) v The Secretary of State for the Home Department 2001 HC Admin 263, Kozlov v Finland 69 DR 321 and K & F v Netherlands 51 DR 272.

[8]      In my opinion the petitioner fails in his attack upon the respondents' decision. It is clear from the cases cited that there is no obligation to test the sufficiency of the evidence against an accused, nor is there any obligation to consider whether such evidence is admissible, that being a matter for the trial Court. While there is always a residual discretion left to the Ministers, as a general rule an order will be granted unless doing so would lead to a flagrant denial of a fair trial or would otherwise be unjust and oppressive. The only matter in the representations which could give rise to a dispute in fact would be whether or not Hain's statements was extorted from him by threats or promises. There is no indication that the Estonian Courts are incapable of dealing with this matter, unlike the situation in Ramda where is was apparent that the French Courts might well not be capable of dealing with the matter properly. In the absence of any indication whatsoever to the contrary, I am of the opinion that the respondents are entitled to assume that Courts of Convention countries are capable of performing their duties properly and adequately. In the present case there are no indications to the contrary and therefore I am satisfied that the respondents arrived at a correct conclusion and gave adequate reasons for arriving at that conclusion.

[9]      In the circumstances I shall repel the first and third pleas in law in the petition and appoint a second hearing to deal with the remaining matters in dispute.

[10]      Finally I should note that counsel for the petitioner maintained that the crime committed in Estonia could in fact have been tried in this country as the petitioner is domiciled in Scotland. Whatever may or may not be the merits of that proposition, this was not a matter which was before the Scottish Ministers at the time they made their decision and therefore I do not consider that it is a matter which should be taken into account at this stage in considering whether or not the decision should be quashed.

 

 

 

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