APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Carloway Lord Clarke Lord MacLean	[2011] HCJAC 98 Case No.XC414/11 OPINION OF THE COURT delivered by LORD CARLOWAY in APPEAL AGAINST EXTRADITION by RM Appellant; against HER MAJESTY'S ADVOCATE Respondent: _____________

Appellant: McCluskey; McSporrans

Respondent: Drummond QC AD; Crown Agent

27 September 2011

[1] The appellant lives in Forfar with his wife and 13 year old son. He has two other adult children living in Germany and Denmark. On 7 January 2010 the Latvian authorities issued a Part 1 European Arrest Warrant (EAW) for his arrest. The EAW relates to criminal proceedings against the appellant on charges alleging evasion of personal income tax in the years 2002 to 2004. The sums in that regard are modest, being about £2,000. In addition, it is said that the appellant traded in cars but did not pay the relative Value Added Tax. Between February 2003 and February 2005 he had sold about 50 cars and the allegation is that he evaded VAT of approximately £8,000. The Latvian authorities maintain that he has broken several revenue laws, contrary to section 218 of the Latvian Criminal Code. The maximum penalty is five years imprisonment.

[2] On 24 February 2011, in determining a plea resisting extradition, the Sheriff at Edinburgh found that there had been no undue delay in the issuing of the EAW. He found that information in relation to the offences had been received by the Latvian courts on 29 April 2008, which was when the appellant initially left that country. The appellant had been summoned to appear at the court in Latvia on 16 September 2008, but did not do so. A domestic warrant for his arrest was issued on 31 October 2008 and the police commenced a search in the following month. They were unable to trace the appellant.

[3] The Sheriff accepted that the appellant had not known anything of the criminal proceedings against him until he was arrested in Scotland, pursuant to the EAW, in February 2010. The appellant's movements were that he had changed his address in Latvia sometime before going to Denmark at the end of April 2008. He had returned to Latvia in March 2009, but not to any of his previous addresses. In September 2009 he had again left Latvia and it is then that he appears to have come to Scotland.

[4] Some emphasis was placed on the fact that the appellant is a native Russian speaker. He is classified as an alien because he has elected not to swear an oath of allegiance to the Latvian state, albeit that he is entitled to, and has, a Latvian passport. Reference was made to the case of R (Zadvornovs) v Riga City [2011] EWHC 1257 (Admin). It was said in his claim that, whilst living in Latvia, he had been assaulted by members of a Latvian nationalist organisation and subjected, as were his children, to bullying from this group. The Sheriff noted that the incidents, of which the appellant had initially complained, had been investigated by the domestic authorities but had been terminated because the appellant had not wanted to proceed with them. The Sheriff reports (para 21) that he did not consider that these incidents would have any material affect upon the appellant were he to be returned to Latvia. He also determined (para 33) that they would have no impact on his prospects of a fair trial.

[4] The Sheriff continued in relation to the revenue offences:

"16. It was apparent from the nature of the charges that any alleged crime would not be apparent to the authorities until some time had passed since the dates required for submission of various tax and VAT documents. It appeared that the appellant had moved house at least once before leaving Latvia for Denmark and it may be that he was unaware of the authorities looking for him. I did not regard that aspect of the Latvian chronology established but it did not appear to me that there had been undue delay in raising proceedings, attempting to trace the appellant and then raising an EAW, particularly in light of the type of charge involve here".

In so finding, and determining that no injustice or oppression would arise in terms of sections 11 and 14 of the Extradition Act 2003, the Sheriff applied the dictum of Lord Clarke in Campbell v HM Advocate 2008 JC 265 (at paragraph [48]), that where delay is alleged, the focus is not principally on the length of time but on the effect which it has had, or will have, on the individual. The appellant's family circumstances were part of the equation. All the facts required to be considered.

[5] It was argued that the Sheriff's conclusions in respect of both injustice and oppression in the context of the alleged delay were in error. Reference was again made to Lord Clarke's dictum in Campbell and also to that in Allen v HM Advocate 2010 SCCR 861 (paragraph [12]). The first leg of the argument focussed upon injustice and a contention that, because of the lapse of time, the appellant's business records were now unavailable. He would therefore, it was submitted, not obtain a fair trial in the event of a return to Latvia. However, the court notes, as it is bound to do, that Latvia is both a signatory to the European Convention and a member of the European Union. It is presumed, in the absence of clear evidence to the contrary, to have appropriate mechanisms in place to adjudicate on any claim of unfairness raised under the terms of Article 6. If there is a point to be made in relation to the absence of records then the appropriate court to do that in is in Latvia and not Scotland.

[6] The second leg of the argument related to oppression. The appellant had established that he had been assaulted in the past, but he accepted, in submissions, that it was not sufficient to bar extradition that he would be returning to an environment less comfortable than that which he now has in Scotland. The facts as found by the Sheriff, and for which there was adequate material, were that the incidents complained of were not prosecuted as he had not pressed them. Although the appellant's contention was that he had been persecuted by a particular Latvian nationalist group, the Sheriff's findings did not go so far as to hold that there had been any such persecution. The material before him from the authorities in Latvia was that the particular named organisation was neither criminal nor sinister in its composition or activities. This court has no contrary information to suggest that that is not an accurate assessment. In these circumstances, the court cannot hold that these incidents, and the potential for repetition on a return, will have any effect on the appellant's prospects of a fair trial.

[7] On the general issue of delay, therefore, the court does not consider that there has been any significant lapse of time in relation to the prosecution of the revenue offences and the issue and execution of the EAW which can be seen as causing any injustice or oppression. The appeal must be refused.

AS