SCOLAG November 2006: Administrative Law Update
Posted: January 18, 2007
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SCOLAG Journal - November 2006.pdf
Part two of a review of significant cases from Scotland and England (part one last appearing in October 2006) by Robert Sutherland, Advocate. This collection covers decisions issued to the end of August 2006 in cases of extradition.
Extradition
Chalitovas v. Lithuania, [2006] EWHC, 7 June 2006The appellant was a Lithuanian national who had been convicted of drug smuggling offences in Sweden. After serving part of his sentence in Sweden he was transferred to Lithuania. The execution of service of his remaining custodial sentence was deferred by the Lithuanian courts, subject to conditions. These conditions were not complied with and he was ordered to serve the remainder of his custodial sentence. He absconded to the UK before his detention in prison, and was subsequently arrested under a European Arrest Warrant. His extradition to Lithuania was ordered under s63, Extradition Act 2003 as being unlawfully at large from a prison in a territory in which he was serving a sentence. The appellant argued that s63 had to be interpreted literally, and that as he had not actually been imprisoned in Lithuania the section did not apply to him.
Held The failure to appear to serve the rest of his sentence meant the appellant was unlawfully at large from a prison in just the same way as if he had escaped from prison. If it had been intended that the section was only to apply to a person who had escaped then the parliamentary draftsmen would have used that word rather than the expression 'unlawfully at large'. The words 'in which he was serving a sentence' in s 63 qualified 'territory' and not 'prison'.
Mitoi v. Romania, [2006] EWHC, 7 June 2006
In deciding to order extradition to Romania under a European Arrest Warrant alleging dishonesty, the judge decided under s85(3), Extradition Act 20003 that where the appellant had been tried in his absence, this was because he had deliberately absented himself from the trial. His reasons for this finding were that the appellant had been represented at the trial by counsel of his choice and that his brother, who had been charged with the same offences, had been aware of the proceedings and it was incredible that the appellant could not have known of the proceedings through his brother. The appellant produced fresh material at his appeal in relation to the question as to whether he had deliberately absented himself from the trial.
Held It was appropriate to remit the matter to the judge for reconsideration, having regard to the fresh material. The appropriate standard of proof as to whether an individual had deliberately absented themselves from a trial in the state making the extradition request was the criminal standard of proof.
Hosseini v. France, [2006] EWHC 1333 (Admin), 8 June 2006
The three appellants were arrested on the basis of European Arrest Warrants which contained allegations of involvement in human trafficking whereby as a result of arrangements made in the UK the trafficking took place in France. They appealed against a decision that they should be extradited to France.
Held Although the actions took place in the UK, the effects of these actions were felt in France. In particular the transfer of money to persons involved in the operation was conduct partly occurring in the UK and partly occurring in France. It was enough that some of the conduct complained of occurred in the requesting Category 1 country.The requirement of double criminality was met because the conduct alleged would have constituted an offence under s25, Immigration Act 1971 if it had occurred in the UK. Guidelines on crossborder jurisdiction issued by Eurojust, which were relied upon by the appellants, did not add significantly to the factors to be taken into account in bringing a prosecution in one particular jurisdiction in a cross-border case. Although removal from the UK would interfere with the right to family life under Art 8, ECHR, the extradition would be in accordance with UK law. A wholly exceptional case would have to be made for that interference to be disproportionate to the legitimate aim being pursed. There were no particular features of the case which carried exceptional weight.
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