THE LORD ADVOCATE (FOR THE GOVERNMENT OF THE UNITED STATES OF AMERICA) v JOHAR MIRZA also known as JACOB MIRZA

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SHERIFFDOM OF LOTHIAN AND BORDERS AT EDINBURGH

 

[2015] SCEDI32

[E 83/11]

 

JUDGMENT OF SHERIFF T WELSH QC

 

In the cause

 

The Lord Advocate (for the Government of the United States of America), Crown Office, Edinburgh, EH7 4AU. 

 

Applicant;

 

Against

 

Johar Mirza also known as Jacob Mirza, Prisoner, Edinburgh

 

Respondent:

 

Act:  D Dickson;  Crown Office, Edinburgh

Alt:  Govier;  Wardlaw Stephenson Allan, Edinburgh

 

Edinburgh,      22nd April 2015

 

The issue

[1]        This case called before me on 9 April 2015.  It is an extradition application under Part 2 of the Extradition Act 2003.  The respondent is a citizen of Pakistan.  He is wanted by the US Government for prosecution on nine serious fraud charges, all allegedly committed in the state of Virginia between 2005 and 2008, resulting in total defalcations of $2.7 million.  On 28 October 2010 a US federal grand jury returned indictments in respect of those offences against the respondent and others.  On 2 August 2011 the US Government made a formal request to the UK Government for extradition of the respondent, who was believed to be residing in Glasgow.  Following normal protocol the request was passed to the Scottish Ministers for validation.  The Cabinet Secretary for Justice in Scotland certified the case on 19 November 2011 and sent it to the Extradition Court for due process.  A warrant for the arrest of the respondent was issued from this court on 24 November 2011.  The respondent first appeared in the Extradition Court on 25 November 2011.  Bail was granted and continued uninterrupted until 12 January 2015 when he was remanded in custody in this process.  He is also presently in custody in respect of a sentence he is serving arising from crime committed in this jurisdiction.  I was also informed that a proceeds of crime application is being pursued against him, at the instance of the Scottish Ministers, by the Civil Recovery Unit, in the Court of Session.  A full hearing on the US extradition request has been fixed for 1 June 2015.  Against that background, counsel invited me to order disclosure/recovery of all correspondence between the Scottish Ministers’ Civil Recovery Unit and the US prosecution authorities, relating to the respondent, as part of the present extradition proceedings.  Accordingly, the question for me to decide is whether and to what extent it is either competent or appropriate to make such a coercive order against (1) a foreign state and/or (2) the Scottish Ministers, in the context of a Part 2 extradition case.

 

Submissions for the respondent

[2]        Counsel explained his instructions were to seek disclosure/recovery of all documents and emails passing between the Civil Recovery Unit (CRU) and the relevant US authorities, relating to the respondent, with a view to enabling his client to argue an “abuse of process” case at the full extradition hearing.  Further this material is also sought in anticipation of his extradition being granted.  It would then be used in any future US prosecution to demonstrate that information obtained by US prosecuting authorities was acquired illegally and accordingly inadmissible in those proceedings.  Mr Govier argued there is no rule of court requiring a written specification of documents in an extradition case.  Accordingly, he was comfortable making an oral application at the bar of the court for full disclosure/recovery.  Extradition proceedings were sui generis, he said.  There was also a paucity of authority on the competency of such an application.  He said his client was very concerned about the extent to which the US investigating authorities and the CRU may be colluding to create or enhance a criminal case against him.  He was concerned about improper influences being brought to bear in this extradition case, by the US authorities.  He described his client as a US citizen and realtor who settled in Glasgow in 2008.  He informed me a Prohibited Property Order (PPO) was granted against his client on 29 March 2012 under section 255A of the Proceeds of Crime Act 2002 (POCA).  This, he said, freezes all property listed in the order which includes heritage and cash in Scotland and England.  Separately, the respondent was also made the subject of a Disclosure Order (DO) in terms of section 391 of POCA.  Such an order, I was informed, imposes a legal obligation on the respondent to answer questions, provide information and produce documents to the Scottish prosecuting authorities.  Not to do so, is an offence under section 393 of POCA.  Counsel informed me that albeit any statement made as a consequence of obeying a DO is inadmissible as evidence against the maker in any proceedings taken against him, the Lord Advocate has statutory power to disclose information to third parties, including that garnered from investigations under POCA, see section 441 of the 2002 Act.  In this connection, I was referred to a part of the written pleadings in the Court of Session process which indicate, on record, that the Scottish Ministers CRU wrote to US authorities on 23 May 2013 about the respondent.  That letter was followed up by “discussions” and on December 13 2013 the Scottish Ministers’ CRU received material amounting to more than 1000 pages from US prosecutors “for digestion”.  I was informed that the respondent has now had two meetings with CRU officials following the DO.  Also, an email from CRU officials was sent to Miami, on 1 May 2014, making inquiries about the respondent and a property in Fairfax, Virginia.  A copy of this email was produced.  There was also referred to an email from a Mr Paul Nathanson dated 17 September 2014, sourced to the Federal Bureau of Investigation (FBI) relating to the Fairfax property.  This was sent to Judith Allen who, I was informed, works in the CRU.  In summary, counsel stated this was an unusual request for disclosure/recovery but his client is very concerned about a transnational conspiracy against him directed towards securing his extradition to the USA.  Hence, he moved that I grant the order he sought to assist the respondent resist the request for his extradition to the USA.

 

Submissions for the applicant

[3]        Mr Dickson, for the Lord Advocate, opposed the application on a number of grounds.  He informed me the Scottish Ministers are not a party to these proceedings and he only represents the Lord Advocate who has a statutory function, in terms of section 191 of the Extradition Act 2003, to conduct extradition proceedings.  He referred me to a letter from the CRU dated 5 February 2015 indicating that the contents of any correspondence between the CRU and any law enforcement personnel in the US are covered by confidentiality of communication/legal privilege.  He asserted that such inquiry as he has made of the CRU, whom he does not represent and who are not a party to these proceedings, disclosed that a petition for recovery of documents could be made in the Court of Session process.  Accordingly, an alternative and more appropriate remedy, he said, lies with the Court of Session.  It is not appropriate to seek recovery in this forum.  He doubted the court had the power to make a coercive order against a foreign government.  He said the emails produced relate to property in Fairfax Virginia which falls out with the scope of the extraditable offences contained within the nine charges confirmed by the grand jury, which form the basis of the present request.  The Fairfax property is irrelevant to the respondent’s extradition.  Mr Dickson reminded me that if the respondent is concerned about being returned to the USA and prosecuted for crimes beyond the terms of the extradition request he was protected by the extradition doctrine of specialty which limits foreign prosecution to the extradition offences in respect of which a person is returned to the foreign state.  He argued that if the respondent is seeking to mount a challenge based on “abuse of process’” then that required to be done at the full hearing.  He placed great reliance on R (Govt of USA) v Bow St Mags’ Ct [2007] 1WLR 1157 paragraphs 84 to 94 and the procedure set out there for determination whether an abuse of process has occurred.  Should the respondent be extradited he also had constitutional rights to a fair trial in the US.  Any irregularity in relation to recovery of documents here in Scotland and used against him by federal prosecutors, could also be challenged in the US prosecution.  In addition, in relation to the suggestion of conspiracy against the respondent he referred me to BH and KAS 2012 SCCR 1 and asserted that the sharing of information between states to combat international crime was lawful and approved of by the appeal court in that case.  

 

Discussion and decision
[4]        I shall deal with the various points raised by counsel in the following order: 

i.          Disclosure

ii.         Recovery

iii.        Power

iv.        Remedy

v.         Abuse of process

 

Disclosure
[5]        The rules which apply to disclosure have no relevance or place in extradition proceedings.  The duty to disclose relevant information applies to a prosecutor in Scotland, see, section 121 Criminal Justice and Licensing (Scotland) Act 2010.  Extradition is not prosecution.  Disclosure applies to prosecution in order to provide an accused person with all the relevant information he or she needs to present his or her defence against an allegation levelled by the state.  The extent, to which disclosure civil or criminal is thought appropriate in these proceedings, is misguided.  The same approach is taken in England and Wales, see, R (Govt of USA) v Bow St Mags’ Ct [2007] 1WLR paragraph 84.  The application to that extent is incompetent. 

 

Recovery
[6]        Civil and criminal recovery of documents is competent in adversarial proceedings in Scotland.  The sheriff’s power in an extradition matter are equivalent, as nearly as may be, to those of a sheriff in a summary trial., see section 77 of the Extradition Act 2003 and Kapri v HM Advocate No 6 2015 JC 30;  2014 SLT 557;  2014 SCL 377,  where the Lord Justice Clerk stated:  

“It appears, from the terms of the 2003 Act, that extradition proceedings at first instance are governed by the rules of summary criminal procedure (see sec 77(2)(a) ) and that, subject to any statutory exceptions, the rules of evidence must be those applicable to criminal cases (see, eg secs 77(2)(b), 206(1), (2) ).” 

 

In summary criminal proceedings it is competent for a sheriff to make an order for the recovery/production of documents, see section 301A of the Criminal Procedure (Scotland) Act 1995.  The procedure to be followed is not clear.  Chapter 27A of the consolidated Act of Adjournal (Criminal Procedure Rules) 1996 SI 1996/513 provides no guidance as to the procedure which should be used to regulate such applications (cf chapter 24 anent evidence on commission which sets out a workable petitory procedure to be followed).  [1]Notwithstanding the lack of appropriate general guidance in the criminal court rules, in my opinion, it is incompetent to make an oral application for recovery or production of documents at the bar of the court in an extradition process.  This view is based on expediency, basic fairness and want of due notice considerations.  The workload of the extradition court would become intolerable if parties were free to move for production of documents in the custody of third parties ad lib in an extradition case.  It would be completely unfair to the holders of such documents simply to be presented with court orders demanding their production.  It would cause delay if such a procedure were allowed.  Apart from the procedural incompetence, any potential recovery must be constrained by rules regarding relevance and scope.  If this wholly unlimited and unfocused application were made in a civil process it would, rightly, be regarded as a classic “fishing diligence”.  Counsel has done no more than, ventilate the suspicion and apprehension of his client, that a grand international conspiracy is afoot.  He has not addressed the issue of how or why the documents in the hands of CRU, referred to in the POCA process, are relevant to and will assist this court in the determination of the question of whether it would be just and lawful to return the respondent to the USA to face trial.  Accordingly, in my opinion, the application is entirely speculative and irrelevant to the extradition request.  It must fail on these grounds as well. 

 

Power
[7]        As formidable as the powers of the extradition sheriff in Scotland may be, I doubt they stretch so far, as to command unwavering obedience from the US executive and its agents.  A coercive order against a foreign state made by an extradition judge is an absurd proposition.  Failures to obtemper court orders within the domestic jurisdiction can result in serious consequences for a party in wilful defiance of them.  Contempt of court is a powerful tool with which to coerce compliance to the will of the court and punish wilful defaulters.  However, the power and jurisdiction of the extradition court is entirely territorial and has no extra territorial application or effect, save, to order lawful ejection from the UK of the person sought, into the custody of the foreign requesting state, if, in a Part 2 case, that is ultimately adjudged politically appropriate and lawful by the Scottish Ministers, see section 92 of the Extradition Act 2003.  If a foreign state chooses to ignore a production order of this court, it is free to do so and it would bring the court into disrepute to make a coercive order against a party that was incapable of meaningful sanction, if wilfully ignored.  Contempt proceedings cannot be taken against US consular staff in Edinburgh as they are legally inviolable and enjoy diplomatic immunity with regard to official business, see the Diplomatic Privileges Act 1964 section 2 and Schedule 1.  So the application fails on this ground as well.

[8]        However, in so far as the order sought is against the Scottish Ministers, I do not, in hoc statu accept that the documents requested are necessarily confidential or covered by legal privilege, although it may very well be, they are.  It seems to me that matter can only be decided, after full argument, in a process to which the Scottish Ministers are a party.  What counsel has failed to do in this extradition process, is demonstrate how it is either competent or relevant for the extradition judge, with the power and jurisdiction he enjoys, to order such recovery or production.  That brings me to my next point.

 

Remedy
[9]        I agree with Mr Dickson that if the respondent can show a legitimate interest to have access to the documents and correspondence he seeks produced, for whatever purpose, he can lodge a petition for their recovery in the POCA case.  If recovered, their relevance to these proceedings can be considered at the extradition hearing.  However, the present extradition process is only concerned with the nine serious fraud charges which the respondent faces in the US, if extradited.  If, independently, the Scottish and US prosecuting authorities are exchanging information about alleged wider criminal conduct, bank accounts, modus operandi etc., involving the respondent and others, then if that only amounts to lawful combat, by legitimate law enforcement agencies, against transnational crime then it has no bearing on the present action, see BH and KAS 2012 SCCR 1.  Mere recovery of the documents sought is no guarantee they will be considered relevant to the present proceedings.  

 

Abuse of Power
[10]      Mr Dickson for the Lord Advocate accorded great significance to and relied heavily on the case of R (Govt of USA) v Bow St Mags’ Ct [2007] 1WLR 1157, paragraphs 83 to 94 as a model for dealing with alleged abuse of process cases.  That case involved an issue under the law in England and Wales, in respect of which, orders were made by two first instance courts to recover documents in alleged abuse of process cases.  These were extraditions under Part 1 and Part 2 of the 2003 Act.  On appeal the disclosures ordered by the judges were disapproved, the orders were quashed and a more appropriate method of dealing with alleged abuse of process by state parties was outlined.  For completeness I will quote the relevant material: 

“83  The 2003 Act places a duty on the judge to decide a large number of matters before acceding to a request for extradition.  To these should be added the duty to decide whether the process is being abused, if put on inquiry as to the possibility of this.  The judge will usually, though not inevitably, be put on inquiry as to the possibility of abuse of process by allegations made by the person whose extradition is sought.

 

84  The judge should be alert to the possibility of allegations of abuse of process being made by way of delaying tactics.  No steps should be taken to investigate an alleged abuse of process unless the judge is satisfied that there is reason to believe that an abuse may have taken place.  Where an allegation of abuse of process is made, the first step must be to insist on the conduct alleged to constitute the abuse being identified with particularity.  The judge must then consider whether the conduct, if established, is capable of amounting to an abuse of process.  If it is, he must next consider whether there are reasonable grounds for believing that such conduct may have occurred.  If there are, then the judge should not accede to the request for extradition unless he has satisfied himself that such abuse has not occurred.  The common issue in the two sets of appeals before the court relates to how he should do this.

 

85  Both our civil and our criminal procedures have complex rules in relation to disclosure of documents.  In each of the cases before us the persons whose extradition is being sought have persuaded the judge that he should make an order for disclosure.  We do not consider that this was the appropriate course to take.  Neither the rules governing disclosure in a civil action, nor those governing disclosure in a criminal trial can be applied to an extradition hearing.  Furthermore, those rules form part of an adversarial process which differs from extradition proceedings.  Where an order for disclosure is made, it requires one party to disclose documents to the other, not to the court.  But where extradition is sought, the court is under a duty to satisfy itself that all the requirements for making the order are satisfied and that none of the bars to making the order exists. 

 

86  There is a further objection to ordering disclosure.  The order will be made either against a judicial authority within the European Union or against a foreign sovereign state that is requesting the Secretary of State to comply with treaty obligations.  In neither case would it be appropriate to order discovery.  Were it appropriate to make such an order, the only sanction for a failure to comply with it would be to reject the request for extradition.  That fact points the way to the appropriate course that the court should take where there are grounds for believing that an abuse of process has occurred. 

 

87  Article 15 of the Framework Decision provides:

 

‘(2)  If the executing judicial authority finds the information communicated by the issuing member state to be insufficient to allow it to decide on surrender, it shall request that the necessary supplementary information, in particular with respect to articles 3 to 5 and article 8, be furnished as a matter of urgency and may fix a time limit for the receipt thereof, taking into account the need to observe the time limits set in article 17.’ 

 

88  Article IX of the 1972 Extradition Treaty between the United Kingdom and the United States provides: 

 

‘(2) If the requested party requires additional evidence or information to enable a decision to be taken on the request for extradition, such evidence or information shall be submitted within such time as that party shall require.’

 

89  The appropriate course for the judge to take if he has reason to believe that an abuse of process may have occurred is to call upon the judicial authority that has issued the arrest warrant, or the state seeking extradition in a Part 2 case, for whatever information or evidence the judge requires in order to determine whether an abuse of process has occurred or not. 

 

90  The information and evidence obtained should be made available to the party contesting extradition.  We agree with [Counsel] that the standards required by article 13 of the Convention should apply to the extradition proceedings.  Equality of arms requires that, in normal circumstances, the party contesting extradition should be aware of, and thus able to comment on, the material upon which the court will be basing its decision.

 

91  What if the judicial authority or the requesting state is only prepared to provide the court with the information or evidence on terms that it is not shown to the party contesting extradition?  We do not consider that principles of public interest immunity or legal professional privilege are germane, for the judge is not in a position to order the judicial authority or the requesting state to disclose information or evidence if it is not prepared to do so.  Nor is it possible to adopt directly the approach to a claim for public interest immunity laid down by the House of Lords in R v H [2004] 2 AC 134.  That approach is only viable when the tribunal considering the material for which immunity is claimed differs from the tribunal that will be determining the substantive issues.

 

92  There may be occasions where a judicial authority or requesting state is content that the court should see evidence but, on reasonable grounds, is not prepared that this should be disclosed to the person whose extradition is sought.  The evidence might, for instance, disclose details of on-going investigations into suspected co-defendants.  The judge will be capable of evaluating the material that is provided to him, whether it is favourable or unfavourable to the person resisting extradition.  The issue will then be whether, if a decision is reached without allowing that person the chance to comment on the material, the procedure will fail to satisfy the requirement of fairness.  That question will be fact specific and must be left to the judge to decide on the particular facts. If the judge concludes that fairness requires that the material be disclosed, but the requesting authority or state is not prepared to agree to this, then the appropriate course will be for the judge to hold that fair process is impossible, that to grant the application for extradition in the circumstances would involve an abuse of process, and to discharge the person whose extradition is sought. 

 

93  We believe that the scenario described above will be rare.  Once it has been shown that there is an issue of abuse of process that requires investigation, it should be possible, provided that the parties act reasonably, to agree material facts, or that the material necessary to resolve any issue is placed in the public domain.” 

 

[11]      Mr Dickson’s submission was that this model should be followed after evidence is led at the full extradition hearing.  The first matter to be addressed, he said, would be the identification of an issue, which may amount to an abuse of process, on the part of the requesting state.  This would require scrupulous examination of the facts with some “particularity” as is stated in the case.  If such a compelling issue were so identified by the court, then, a request for supplementary information could be made to the requesting state and on the basis of that supplementary information, a judgement could be made about the impact of the alleged abuse of process, if established, on the extradition request.  Accordingly, Mr Dickson asserted that, in his opinion, the present application was, premature.  

[12]      He said it would only be at a full hearing on the extradition request that the court could be in a position to assess, after close inspection of all the material proffered in support of the extradition request and any information supplied by the respondent, whether there was any question of possible abuse of process, which might result in further necessary inquiry of the requesting state to determine whether the extradition is barred by reason of abuse of process, which he suggested would be a bar to extradition in terms of section 79(1)(b) of the 2003 Act.  That subsection relates to what are described as “extraneous considerations”, as a bar to extradition.  However, the court, he said, would require to be ever mindful of possible delaying tactics on the part of the requested person, when assessing any allegation of abuse of process. 

[13]      I am not persuaded it is competent to proceed as Mr Dickson has suggested.  A question arises as to the jurisdiction of a summary sheriff in a criminal case to hear a case involving an alleged abuse of process, as detailed in R (Govt of USA) v Bow St Mags’ Ct.  That specific abuse of process jurisdiction is not known in Scotland.  It is known in England and Wales.  The sheriff’s power in a summary criminal case to sustain a preliminary plea in bar of trial, on the basis of oppression, is narrower in scope than the power of the extradition judge to prevent abuse of process.  In Scotland if a preliminary plea of oppression is raised by the accused at an early stage in proceedings it can be sustained by the sheriff and the case dismissed.  In England and Wales there appears to be an on-going inquisitorial duty on the judge to prevent any prosecutorial abuse which can arise at any time.  The abuse of process jurisdiction is explained in R (Govt of USA) v Bow St Mags’ Ct thus: 

“[82]… At this stage we simply endorse the conclusion that the judge conducting extradition proceedings has jurisdiction to consider an allegation of abuse of process.  Indeed, we would go further than this and apply to extradition proceedings the statement made by Bingham LJ, in relation to conventional criminal proceedings in R v Liverpool Stipendiary Magistrate, Ex p Ellison [1990] RTR 220, 227:

If any criminal court at any time has cause to suspect that a prosecutor may be manipulating or using the procedures of the court in order to oppress or unfairly to prejudice a defendant before the court, I have no doubt that it is the duty of the court to inquire into the situation and ensure that its procedure is not being so abused.  Usually no doubt such inquiry will be prompted by a complaint on the part of the defendant.  But the duty of the court in my view exists even in the absence of a complaint.”

 

[14]      On the other hand, in the “Review of the United Kingdom’s Extradition Arrangements” published in 2011 and presided over by Sir Scott Baker, every time “abuse of process” is mentioned, a proviso to the following effect, is entered: 

“In Scotland, where there is no abuse of process jurisdiction as such, the High Court of Justiciary exercises a nobile officium, an inherent discretion, where no other mode of review appears competent or appropriate.  An aggrieved person may petition the nobile officium for redress or to prevent injustice or oppression.  (We were informed that this was available as a potential remedy in cases of extradition)”  

 

see page 41, paragraph 3.33, footnote 58.  It is also repeatedly acknowledged in the Review that the courts in England and Wales have developed an abuse of process jurisdiction as an additional safeguard against improperly motivated requests for surrender/extradition, e.g., in referring to Part 2 extraditions, the Review states: 

“As in the case of proceedings under Part 1 of the Act, the courts have developed an abuse of process jurisdiction which operates in parallel with the statutory bars to extradition” see page 430.

 

[15]      What is not so clear is whether inquiry into an alleged abuse of process beyond a preliminary plea of oppression is a matter for the nobile officium of the High Court of Justiciary or is part of the inherent jurisdiction of the extradition sheriff based on his summary criminal jurisdiction.  I am unaware of a common law jurisdiction of “abuse of process” being developed, in Scotland, parallel to the statutory bars to extradition provided in the 2003 Act.  In relation to a summary domestic matter, a preliminary plea based on oppression giving rise to prejudice to the accused, in that it may be suggested, he would not receive a fair trial, can competently be raised in bar of trial Mowbray v Crowe 1993 JC 212 (“Criminal Defences and Pleas in Bar of Trial”, Chalmers and Leverick 2006 chapter 19).  However, at common law even when foreign irregularity is asserted the domestic court has no power to stay proceedings if the domestic process is regular: 

“… I am of opinion that where a Court of competent jurisdiction has a prisoner before it upon a competent complaint they must proceed to try him, no matter what happened before, even although he may have been harshly treated by a foreign Government, and irregularly dealt with by a subordinate officer.” 

and 

“With regard to the competency of the proceedings in Portugal, I think this is a matter with which we really have nothing to do.  The extradition of a fugitive is an act of sovereignty on the part of the state who surrenders him.  Each country has its own ideas and its own rules in such matters.  Generally it is done under treaty arrangements, but if a state refuses to bind itself by treaty, and prefers to deal with each case on its merits, we must be content to receive the fugitive on these conditions, and we have neither title nor interest to inquire as to the regularity of proceedings under which he is apprehended and given over to the official sent out to receive him into custody.” 

 

per Lord McLaren, Sinclair v HMA (1890) 17R (J) 38 and Bennett Petr, 1995 SLT 510.  There are dicta in Bennett which suggest that the rule expressed in Sinclair may require to be reconsidered by a larger court in an appropriate case but until that happens the sheriff, in my opinion, is bound by these cases.  Further, a procedure based on the one outlined in R (Govt of USA) v Bow St Mags’ Ct would involve the sheriff, after hearing the evidence at the full hearing, leading or conducting or participating in an inquisitorial investigation to obtain information (which may not be disclosable to the respondent), without a framework for guidance as to how to proceed, at common law, or under the statute.  I am not persuaded the extradition sheriff has the inherent power to act in that way or that such an inquiry is part of the summary jurisdiction of the sheriff in Scotland in criminal matters.  In my opinion being party to such an inquiry has no equivalence to the sheriff’s summary power and would constitute a material departure from and exceed the jurisdiction of the summary sheriff, as presently understood.  I would be concerned about the extent and degree to which the sheriff, after a contested proof, might be drawn into the initiation and direction of further or refined investigation as opposed to the adjudication and determination of the application on the basis of the material before the court. I do not consider that the sheriff is at liberty to alter the nature of his judicial role, even in extradition proceedings, which are sui generis. 

“A judge must keep out of the arena.  He should not have or appear to have any responsibility for the institution of a prosecution.  The functions of prosecutors and of judges must not be blurred.  If a judge has power to decline to hear a case because he does not think it should be brought, then it soon may be thought that the cases he allows to proceed are cases brought with his consent or approval.”

 

Per, Viscount Dilhorne in DPP v Humphrys [1977] AC 1;  [1976] 2 WLR 857.  For all these reasons I am not persuaded it is, presently, competent in Scotland to proceed as Mr Dickson suggests whatever the practice in England and Wales. 

[16]      With regard to Mr Dickson’s assertion that abuse of process is included or implied within the “extraneous considerations” bar mentioned in section 79(1)(b).  I disagree.  That bar enjoys a statutory definition which is contained in section 81 of the Act which provides:  

“A person's extradition to a category 2 territory is barred by reason of extraneous considerations if (and only if) it appears that—(a) the request for his extradition (though purporting to be made on account of the extradition offence) is in fact made for the purpose of prosecuting or punishing him on account of his race, religion, nationality, gender, sexual orientation or political opinions, or (b) if extradited he might be prejudiced at his trial or punished, detained or restricted in his personal liberty by reason of his race, religion, nationality, gender, sexual orientation or political opinions.” 

 

The first parenthetical limitation suggests to me that the phrase “extraneous considerations” is only intended to bar extradition, if it is sought for a specific prohibited ulterior motive by the requesting state, or, if there exists a real risk that due process and penal practice in the requesting state are so institutionally contaminated by prohibited discrimination against race, religion, nationality, gender, sexual orientation or political opinion that the requested person will be prejudiced.  The phrase “extraneous considerations”, in my view, is a closed concept because of the parenthesis.  It is not intended to be a vehicle for the organic judicial development of an abuse of process jurisdiction which, in my opinion, is a much wider concept.  

[17]      The common law abuse of process jurisdiction, in England and Wales, is a growing one.  However, it has no root or branch in Scots law.  The Scott Baker Review identifies the reason for the development of the abuse of process jurisdiction as the de-politicisation of extradition which was one of the policy drivers behind the 2003 Act:  

“9.6  To compensate for the more limited role of the Secretary of State the courts have developed an abuse of process jurisdiction as an additional bar to extradition.  The jurisdiction is available to prevent extradition if the prosecutor manipulates or uses the procedure of the court in order to oppress or unfairly prejudice a defendant before the court.” 

 

[18]      Accordingly, I will not refuse the motion on the basis that it is premature, as I was invited to do by Mr Dickson, because I am not persuaded that a procedure, such as the one contemplated by him, is competent, without, either, clear authority that the summary criminal jurisdiction of the sheriff includes, as nearly as may be, a power to participate in, direct or initiate investigation of abuse of process after proof, or a finding by a higher court that the absence of such an extended abuse of process jurisdiction is incompatible with the respondent’s right to a fair trial, in Scotland.