APPEAL COURT, HIGH COURT OF JUSTICIARY

Act: M. Bovey, Q.C., M. Hughes; George Mathers & Co., Aberdeen

Alt: J. Wolffe, ad hoc A.D, Harman for Scottish Ministers; Crown Agent

29 September 2006

Introduction

[1] There are before us two appeals at the instance of the appellant. The first is brought under section 103 of the Extradition Act 2003 against a decision dated 24 February 2006 made by the sheriff of Lothian and Borders under reference to section 78(2), section 78(4)(b) (as read with section 137) and section 87 of the Act. The second is brought under section 108 of the Act against an order dated 23 May 2006 made by the Scottish Ministers that the appellant be extradited to the United States of America in respect of the charges listed in an Annex to that order.

[2] In the course of the proceedings before the sheriff the appellant complained by way of devolution minute that the sheriff had erred in failing to hold that the statutory exclusion of a right of appeal from the High Court of Justiciary to the House of Lords in a case such as the present constituted a violation of the appellant's rights under the European Convention for the Protection of Fundamental Rights and Freedoms - in particular those under Article 6 et separatim Article 8 (as read with Article 14). In the event that argument was not the subject of any decision made by the sheriff under the statute and a question may accordingly arise as to the competency of bringing it under review in an appeal under section 103. However that may be, the issue in question has been the subject of a decision adverse to the appellant in two recent cases in the High Court (Goatley v H.M. Advocate [2006] HCJAC 55 and La Torre v H.M. Advocate [2006] HCJAC 56). In all, five judges of this court reached the same decision on that issue. Mr. Bovey recognised that in these circumstances he could not, other than formally, invite the court as presently constituted to decide this issue in his favour. He invited us to direct that a larger court be convened to reconsider the issue. For the reasons which we later explain we decline to accede to that invitation.

[3] The appellant is a citizen of the United Kingdom who was born in the north east of Scotland and who, apart from short periods of work, has lived there all his life. When he has required to work outwith Scotland, he has commuted back to Scotland every week or as much as possible. He lives in a house in Aberdeen which he owns. He worked in Aberdeen until he lost his job as a result of publicity related to the present case. His leisure interests and his friends are in Aberdeen and his sisters and parents all live in the United Kingdom. Apart from a family holiday when he was much younger, the appellant has never been to the United States of America. He has no friends or family there.

[4] On 24 June 2004 a grand jury, sitting in San Francisco, California, returned a superseding indictment charging the appellant and another, Jamie Norman Greiman, with criminal offences against the laws of the United States. (An original indictment named only Greiman as a defendant; that indictment is irrelevant to the present proceedings). On 2 August 2004 the same grand jury issued a second superseding indictment charging the appellant and Greiman with criminal offences against the laws of the United States. On 16 August 2004, with respect to the second superseding indictment, a deputy clerk of the court signed a warrant of arrest for the appellant. That warrant remains unexecuted.

[5] The second superseding indictment charged in 377 counts that the appellant and others committed offences which were each a felony punishable under United States law by more than one year's imprisonment. The Government of the United States requested the extradition of the appellant to face these charges. It subsequently emerged that many of them related to conduct occurring prior to 1 July 2003, during a time when such conduct would not have been criminal in Scotland; accordingly it is now accepted on all sides that it would be unlawful under section 137 of the 2003 Act for the appellant to be extradited in relation to any such charges. The extradition request has been accordingly restricted to 49 charges and these charges in turn amended to restrict them to conduct occurring between July 2003 and August 2004.

[6] The subsisting charges are as follows. Charges 1-4 are each a charge of conspiracy, the first, broadly speaking, being conspiracy to manufacture the drug Gama Hydroxybutryric Acid ("GHB") and the second to fourth inclusive being, broadly speaking, conspiracies to import Gama Butryolactone ("GBL") in violation of distinct provisions of the United States Criminal Code. Counts 89 to 92 inclusive are each charges of acting together with Greiman to import GBL from the United Kingdom to the United States with intent to manufacture GHB in an unauthorised manner. Counts 177 to 180 inclusive are each a charge of acting together with Greiman to import GBL knowing that it would be used to manufacture GHB. Counts 265 to 268 inclusive are each a charge of acting together with Greiman to import GBL intending that it be used for human consumption. Counts 269 to 276 inclusive are each a charge against the appellant alone of importation of GBL with intent to manufacture GHB. Counts 277 to 284 inclusive are each a charge against the appellant alone of importation of GBL knowing that it would be used to manufacture GHB. Counts 285 to 292 inclusive are each a charge against the appellant alone of the knowing importation of GBL intending that it be used for human consumption. Counts 294 and 295 are each charges against the appellant and Greiman of conspiracy to commit money laundering, each a charge amended to cover the period from July 2003 to March 2004, and counts 343 to 346 inclusive and 375 to 377 inclusive are each charges against the appellant and Greiman of laundering monetary instruments.

[7] On 25 August 2004 the Scottish Ministers received a request for the extradition of the appellant to the United States to face the charges set forth in the second superseding indictment. The United States of America is designated as a category 2 territory for the purposes of Part 2 of the Act. The Scottish Ministers certified under section 70(8) of the Act that the request had been made in the approved way. They sent the prescribed documents to the appropriate judge (the sheriff of Lothian and Borders at Edinburgh). Prior to those events the procurator fiscal at Edinburgh had petitioned the sheriff for a provisional warrant for the arrest of the appellant. That warrant was granted on 28 June 2004. The appellant appeared before the sheriff on 30 June 2004 when he was remanded in custody. On 7 July 2004 he was admitted to bail by the High Court of Justiciary. After sundry proceedings the sheriff made the order now challenged in the appeal under section 103.

The warrant

[8] The first ground on which that order is appealed against concerns whether the documents sent to the sheriff by the Scottish Ministers included "a warrant for [the appellant's] arrest issued in the category 2 territory" (section 78(2)(d)). Mr. Bovey, for the appellant, contended that there was no ex facie valid warrant before the sheriff and that the sheriff had erred in holding that there was.

[9] Among the documents before the sheriff was an affidavit signed and sworn by Christopher J. Steskal, Assistant United States Attorney, in support of the request for extradition of the appellant. Attached to and authenticated by that affidavit were a number of documents, including "a copy of Rule 9, Federal Rules of Criminal Procedure" (Exhibit 1) and "a certified copy of the arrest warrant for Calder" (Exhibit 3). Rule 9 of the Federal Rules of Criminal Procedure provides, in respect of form:-

"Warrant. The warrant must conform to Rule 4(b)(i) except that it must be signed by the clerk and must describe the offense charged in the indictment or information.

... ".

No copy of Rule 4(b)(i) is produced but Mr. Bovey took no point in that respect.

[10] As presented to the sheriff and to this court the affidavit and the exhibits annexed to it are secured in a single bundle by a heat-sealing process. Immediately following Exhibit 2 and immediately preceding Exhibit 4 are two sheets, the first of which is headed "Warrant of Arrest". Each of these two sheets shows signs that it or its principal were at some time stapled together or with some other sheet or sheets; but any such stapling has been removed from the copy exhibited. The first sheet is a pro forma with boxes for the entry of particulars. Within the box headed "NAME OF PERSON TO BE ARRESTED" is typed "David John Calder" and within the box headed "MAGISTRATE/CLERK DOCKET NO." is typed the reference

"CR04-138 WHA". Under the headings "U.S.C. [United States Code] TITLE" and "SECTION" appears "** SEE ATTACHED". In the box headed "SIGNATURE OF ISSUING OFFICIAL" appears a signature, apparently that of a deputy clerk. This sheet also bears a stamp and a signed and dated certificate that it is a true and correct copy of the original. The following sheet bears no signature but has towards its head the typed reference "CR04-138 WHA" under which is typed "U.S.A. v David John Calder et. al.". Beneath that in turn is a list of offences against US law, each under reference to the relative titles and sections of the US Code; these correspond to those charged in the second superseding indictment against the appellant and Greiman, a certified copy of which is Exhibit 2 attached to Mr. Steskal's affidavit.

[11] Mr. Bovey argued that the sheriff was not entitled to hold that there had been sent to him by the Scottish Ministers a warrant for the appellant's arrest issued in the category 2 territory since what was before him did not comply with Rule 9 of the Federal Rules of Criminal Procedure, a rule itself relied on in the request for extradition. The first sheet, he argued, was signed but did not describe any offence, while the following sheet might describe certain offences but had not been signed by the clerk. Sheets could be attached or separated without restriction. The court could not be satisfied that there had been a single principal arrest warrant comprising two sheets in the terms of the two copy sheets exhibited. Under Scots law a warrant required to be signed (H.M. Advocate v Bell 1984 SCCR 430). An unsigned page was insufficient. Reference was also made to Office of King's Prosecutor, Brussels v Armas [2005] UKHL 67, [2005] 1 All ER 647, per Lord Hope of Craighead at para. [24], Bentley v United States [2005] EWHC 1078 (Admin.), per Sedley L.J. at paras. 3-11 and Welsh and Thrasher v Secretary of State for the Home Department [2006] EWHC 156 (Admin.), at paras. [14] - [19]. The standard of proof of the validity of the warrant was proof beyond reasonable doubt - Extradition Act 2003 section 206.

[12] We have no hesitation in rejecting this ground of appeal. There are clear signs of association between the first sheet and the following sheet: the accused person is the same, as is the docket number; the particular charges specified in the following sheet are linked to the first sheet by the reference "** SEE ATTACHED"; and these charges are linked in turn to those specified in the second superseding indictment directed against the appellant and Greiman. The words "SEE ATTACHED" point to the first sheet not being in itself the complete warrant but to there being an attachment to it. The circumstance of there being in fact an attachment is supported by the indications that the principals of both sheets bear signs of having been stapled. In any event, as Mr. Wolffe for the Lord Advocate pointed out, Mr. Steskal's affidavit and its accompanying exhibits form, as presented to the sheriff, a single heat-sealed document within which the two sheets in question are to be found between the final sheet of Exhibit 2 and the first sheet of Exhibit 4. There can be no question but that these two sheets are by the affidavit proved to be in conjunction the arrest warrant attached and authenticated as Exhibit 2. In the body of the affidavit Mr. Steskal explains (at page 23):- "I have obtained a copy of the arrest warrant, certified as true and accurate, from the clerk of court and attach it to this affidavit as exhibit 3". There is no justification for going behind the affidavit. As to the warrant being, as required by Rule 9 of the Federal Rules of Criminal Procedure, signed by the clerk, the requisite signature appears in the box indicated for the purpose in a position slightly above half way down. The Rules do not provide that every sheet must be signed or subscribed. The signature appears under the description - albeit by reference to the attachment - of the offences charged. The offences charged in the indictment are also described by cross reference to the relative provisions of the US Code. Accordingly, on the face of the documents there is due compliance with Rule 9 in both respects. On the material before him the sheriff was accordingly entitled to decide that among the documents sent to him was a warrant for the appellant's arrest in the category 2 territory.

"Extradition offences"

[13] Mr. Bovey next contended that the offences in respect of which extradition was requested were not "extradition offences" within the meaning of section 137(2) of the Act. That subsection provides:-

"The conduct constitutes an extradition offence in relation to the category 2 territory if these conditions are satisfied -

(a) the conduct occurs in the category 2 territory;

(b) the conduct would constitute an offence under the law of the relevant

part of the United Kingdom punishable with imprisonment or another form of detention for a term of 12 months or a greater punishment if it occurred in that part of the United Kingdom;

(c) the conduct is so punishable under the law of the category 2 territory

(however it is described in that law)".

In particular, it was submitted that the condition that "the conduct occurs in the category 2 territory" was not satisfied. The sheriff had erred, Mr. Bovey said, in construing the test in section 137(2) as if it were one of criminal jurisdiction. It was common ground, or at least obvious, that the appellant's conduct had occurred exclusively in Scotland. It was there that he had entered into any unlawful agreement and from there that he had sent any relevant materials; a person's conduct could happen only where the person was physically present. Reference was made to the definition in the Oxford English Dictionary (2nd edition) of "conduct" in sense 8a, namely, "manner of conducting oneself and one's life; behaviour" and 8b "a piece of behaviour". Office of King's Prosecutor, Brussels v Armas was distinguishable (it being concerned with Part 1 of the Act) and was not in any event binding on this court. There had been a difference of approach between Lord Hope on the one hand and Lord Bingham of Cornhill on the other. Lord Hope's approach was admittedly against the appellant but it should not be followed. It gave a strained interpretation to the statutory language. It leapt from conduct giving rise to criminal jurisdiction to conduct taking place there. The authorities cited by Lord Hope did not support the proposition advanced by him. The observations on this point in Bentley v United States were obiter (see para. 18). Paras. 21-2 in that case involved no reasoning by Sedley L.J. Paras. (b) and (c) of section 137(2) were concerned with jurisdiction but para. (a) was not. If (a) was construed as the Lord Advocate contended, it would, having regard to (c), have no content. This was simply an attempt to avoid the difficulty of bringing the case within section 137(3).

[14] Section 137(2) sets three conditions, each of which requires to be satisfied if conduct is to constitute an extradition offence. Condition (a) is concerned with the place where the conduct occurred, condition (b) with whether it would constitute an offence under the law of the relevant part of the United Kingdom punishable with imprisonment or detention of 12 months or more and condition (c) with whether the conduct is so punishable (i.e. punishable, however described) in the law of the category 2 territory. There is no lack of content in (a) if (c) is construed, as the sheriff construed it; (c) is concerned with penalty in the category 2 territory, not with jurisdiction or with the place of occurrence of conduct. In our view conduct can properly be interpreted as occurring in the place where it has effect. Thus a person may, quite consistently with the ordinary use of language, be said to import materials into the United States even though he never leaves Scotland. Likewise, he may be said to have joined in a conspiracy which occurred in the United States even though he was never physically there; the transmission of written, oral or electronic communications from Scotland to the United States would amount, purposively speaking, to conduct in the latter place. Where two alternative senses of an expression are possible, that which best fits with the purpose of the legislation, properly construed, is to be preferred. We find the purposive approach adopted by Lord Hope in Office of King's Prosecutor, Brussels v Armas highly persuasive. It was followed in Hosseini and Others v Head of Prosecution Department of the Courts of Higher Instance, Paris, France [2006] EWHC 1333 (Admin.), per Richard L.J. at paras. 29-30. Although Lord Bingham reached his primary conclusion by a somewhat different route, he expressly agreed with the reasons given by Lord Hope (para. 17), as did all the other members of the Judicial Committee. In Bentley v United States Sedley L.J. set out ad longum the reasoning of the district judge on this aspect and expressly agreed with it. The district judge had narrated that Mr. Bentley had shipped more than 10,000 tablets of MDMA to an individual in Florida through regular mail delivery and had, in the course of telephone conversations between himself in the United Kingdom and that individual in Florida, made arrangements to further the objectives of the relevant conspiracy. Such conduct amounted, the district judge held, to conduct by Mr. Bentley in Florida. With that reasoning and conclusion Sedley L.J. agreed, as do we. In our view the conduct of the appellant, which is alleged in the second superseding indictment - in short, conspiracy in relation to the importation of GBL into the United States and the manufacture there of GHB - had its place (including effect) in the United States; and the money laundering charges associated with these criminal enterprises, all of which allegedly had effect in the United States, occurred, within the meaning of section 137(2)(a), in the United States. We accordingly reject this ground of appeal.

Human Rights

[15] Mr. Bovey further submitted that the sheriff had erred in the decision he had reached under section 87(1) of the Act, which required him to decide whether the appellant's extradition would be compatible with the Convention rights within the meaning of the Human Rights Act 1998. Under the 1972 Treaty between the United Kingdom and the United States extradition might be refused on any ground, apart from the grounds mentioned in Article V(i), which was specified by the law of the requested Party (The United States of America (Extradition) Order 1976 (S.I. 1976 No. 2144), Article 5(ii)). Section 87 is such a law. The sheriff should have decided, it was argued, that the appellant's extradition would not be compatible with the latter's Convention rights and accordingly should have ordered his discharge. It was so incompatible because the extradition of the appellant would not be "necessary in a democratic society ... for the prevention of disorder or crime" within the meaning of Article 8 of the Convention, that is, it would be disproportionate to extradite him. It was accepted that to render extradition to face charges which were truly extradition offences disproportionate it would be necessary to demonstrate "exceptional circumstances". The use of the emphatic adverb "wholly" to qualify "exceptional" was not legitimate. The sheriff had correctly identified that Article 8 was engaged. The appellant had his home in Aberdeen, had lived there all his life and had worked there. He had close family ties in the United Kingdom. It was not suggested that there was anything extraordinary in the criminal process in the United States. The present case fell within the category of "domestic cases" as described in R (Ullah) v Special Adjudicator [2004] EWHL 26, [2004] 2 AC 323). However, the particular circumstances which made the present case exceptional were (1) that the appellant's alleged trafficking in illicit drugs had first been detected in the United Kingdom (by customs officers at Coventry in August 2003), (2) that the evidence against the appellant was largely based on e-mails sent from his home address and from other materials recovered there by virtue of a request under the Crime (International Co-operation) Act 2003 and (3) that the appellant had been charged by the police in Scotland, appeared on a petition alleging a contravention of section 4(2)(b) of the Misuse of Drugs Act 1971, and subsequently charged here with an alleged contravention of section 20 of that Act, though no petition had been presented against him alleging that offence. There was presumably, in these circumstances, a sufficiency of evidence upon which criminal proceedings could have been brought against the appellant in Scotland. Further the prospect of extradition had put significant strain on the appellant. On the other hand, while ordinarily it would be a factor in favour of extradition that an accused could be extradited to stand trial in the United States while his co-accused could not be extradited to stand trial in the United Kingdom, the co-accused in this case (Greiman) had, since the case was before the sheriff, pled guilty to the charges. There was accordingly no longer any question of a joint trial. It was wrong to describe the United States, as the sheriff had, as the "main theatre of activity" of the alleged co-conspirators; there were essentially two equal areas of activity. There was concurrent jurisdiction in Scotland to bring criminal proceedings for essentially the same charges, namely, under sections 4(1)(b) and 20 of the Misuse of Drugs Act 1971. The prospect of a prosecution of the appellant in this country for drug related activities was not, as the sheriff had held, a "mere possibility"; although the 12-month period under section 65(1) of the Criminal Procedure (Scotland) Act 1995 had expired, it was still open to the Lord Advocate to apply for an extension of that period. The appellant would not oppose any such application. The sheriff had approached the issue of time-bar in an "arbitrary" manner. The maximum penalties on conviction in this country (14 years imprisonment) were comparable to those on conviction in the United States (20 years imprisonment).

[16] Mr. Wolffe in response submitted that there was a strong public interest in the state acknowledging its treaty obligations (R (Ullah) v Special Adjudicator, per Lord Bingham at para. [24]; La Torre v H.M. Advocate, at para. 97). As to the function of an appellate court, in so far as the matters raised on appeal were not new (section 104(3)), the sheriff had required to carry out a balancing exercise and his decision should not be interfered with unless it was not within an admissible range; in so far as new matters were raised on appeal, this court had to apply section 104(4). The new matters were (1) the fact that Greiman had pled guilty, (2) a somewhat fuller explanation of the background to the offences and (c) the reference to section 20 of the 1971 Act. It was important to bear in mind that the allegations were of trans-national conduct which concerned the United States as well as Scotland. There was a strong public interest in the prosecution of trans-national crime. It was appropriate that there should be co-operation between the relative authorities in different States. There was no suggestion of impropriety in the co-operation which had taken place here. Particularly where there were allegations against more than one person, it was desirable that there should be a single trial. Where proceedings were already in train in a foreign country it was a matter for the Lord Advocate to decide whether or not to bring proceedings here. It was relevant that the scope for harm by the criminal activity in question was located in the United States and was extensive. The victims were there. Until very recently there had been two co-accused. Notwithstanding Greiman's plea the interests of the United States and British authorities in compliance with treaty obligations remained the same. Evidence had been gathered in the United States as well as in Scotland. Reference was made to the observation by the Lord Ordinary in Wright v Scottish Ministers 2005 SC 453, approved by the Inner House at para. [67].

[17] It is not disputed that Article 8 of the Convention is engaged in this case. The appellant's home is in Scotland and his family life is closely associated with the United Kingdom. Apart from his alleged involvement in the pertinent criminal activities, he has no material connection with the United States. Interference with that family life would, subject to any successful argument on any other ground of appeal, be in accordance with law, i.e. the Extradition Act 2003. The issue in this branch of the case is accordingly whether such interference as would result from his extradition to the United States is "necessary in a democratic society ... for the prevention of disorder or crime". As construed in European jurisprudence that issue comes to be whether, in all the circumstances, his extradition would be disproportionate to his legitimate interest in non-interference with his family life. There is a strong public interest in the United Kingdom meeting its treaty obligations including those with the United States. If it does not do so, it is at risk that the United States and other states will not meet their reciprocal obligations. There is also a strong public interest in the effective prosecution of trans-national crimes. These crimes of their nature are perpetrated by activities in different countries. It is important to the rule of law and to international comity that a person who is the subject of a proper request should be extradited to stand trial (Bentley v United States, per Sedley L.J., at para 26). There is also a strong public interest in honouring extradition treaties made with other states (R (Ullah) v Special Adjudicator, per Lord Bingham at para. 24). It would only be in exceptional circumstances that the courts would be justified in not ordering extradition where that would otherwise be lawful. Although in the present case it was in this country that the appellant first came to the notice of the public authorities and although much of the evidence against him has been ingathered here, there is a strong connection with the United States. Although the appellant was at no relevant stage physically present in the United States, his actions in the United Kingdom allegedly resulted in the commission of serious crimes in that country, affecting or potentially affecting a large number of people there. Some of the evidence was ingathered there. Criminal proceedings and an indictment were first initiated there. Although petition proceedings were initiated in Scotland under reference to section 4(3)(b) of the Misuse of Drugs Act 1971, no indictment on that or on any other charge was served within the 12-month time scale. That was wholly understandable where indictment proceedings had already been initiated in California, particularly where there was at that stage a co-accused and the desirability of having a single trial was manifest. The circumstance that Greiman has now pled guilty does not affect the treaty obligations which have been engaged. Nor does the stated willingness of the appellant to waive his right to oppose an extension of time in relation to proceedings under section 4(2)(b) affect the international arrangements which have been put in place. Further his unwillingness to be extradited, and any strain which it is said has been imposed on him could not, at least in the present case, be said to be exceptional circumstances. We are satisfied that it would not be disproportionate to extradite the appellant to the United States to face the charges laid against him there. This ground of appeal is accordingly also rejected.

The absence of a right of appeal to the House of Lords

[18] In his Note of Appeal under section 103 the appellant also maintains that the sheriff erred by failing to hold that the circumstance that the Extradition Act 2003 gave, to a person whose extradition was sought in Scotland, no right of appeal to the House of Lords was a violation of certain of his rights under the Convention. Mr. Bovey recognised that, standing the decisions of the court in Goatley v H.M. Advocate and La Torre v H.M. Advocate, that ground could not be maintained before this court as presently constituted. He moved us to convene a larger court to consider this issue. He maintained that the court, having accepted the appellant's argument that extradition proceedings were sui generis, had erred in holding that they were more akin to criminal than to civil proceedings. The decision of the European Commission in Nelson v United Kingdom (1986) 49 DR 170 and Times Newspapers Limited v United Kingdom App. No. 1461/1989 also fell to be distinguished. The comparison made by the court between an appellate court and an enlarged court was unsound. The approach taken by the court to the statistical information before it in relation to victims was also unsound.

[19] We are not persuaded that we should convene a larger bench. The issue which the appellant seeks to raise has been considered very recently by two benches of this court (by five judges in all) and has been unanimously rejected in both cases. In these circumstances, and having regard to the arguments which the appellant seeks to advance, we see no proper basis for convening a larger bench.

[20] In the whole circumstances the appeal under section 103 is accordingly refused.

Speciality

[21] The appellant also appeals against a decision dated 23 May 2006 made by the Scottish Ministers for his extradition. The case having been sent by the sheriff to the Scottish Ministers they had to decide whether they were prohibited from ordering his extradition under any of a number of sections. The only such section which is pertinent for present purposes is section 95 ("speciality"). Under that section the Scottish Ministers must not order a person's extradition to a category 2 territory if there are no speciality arrangements with that territory. By subsection (3) of that section it is provided:-

"There are speciality arrangements with a category 2 territory if (and only if) under the law of that territory or arrangements made between it and the United Kingdom a person who is extradited to the territory from the United Kingdom may be dealt with in the territory for an offence committed before his extradition only if -

(a) the offence is one falling within subsection (4), or

(b) he is first given an opportunity to leave the territory".

By subsection (4) the offence includes the offence in respect of which the person is extradited. Article XII(1) of the relevant treaty between the United Kingdom and the United States provides:-

"A person extradited shall not be detained or proceeded against in the territory of the requesting Party for an offence other than an extraditable offence established by the facts in respect of which his extradition has been granted, or on account of any other matters ... ".

Mr. Bovey observed that the Treaty was not restricted to the prosecution of an extraditee, but extended to such a person being detained. This formulation was echoed in section 95(3) where the wide expression "dealt with" was used. He submitted that the Scottish Ministers had erred in concluding that speciality arrangements existed with the United States. They had likewise erred in not inserting into the order particular protective words which the appellant's advisers had represented should be inserted. The appellant was at risk of being punished for a wider range of offences than those specified in the Annex to the extradition order - in particular, for those which, due to the conduct in question not having been criminal in the United Kingdom at the relevant time, had been excluded from the extradition order. He was also at risk of being prosecuted in the United States in courts other than the federal court in California. Moreover, some of these courts did not recognise that an extraditee had "standing" (title and interest) to maintain that proceedings were being brought against him which went beyond the scope of the offences for which he had been extradited. Reliance was placed on the opinions obtained from an expert in the field (Professor Bassiouni). This court should approach the matter of standing in the light of European jurisprudence which recognised that it was for a party to have the right to advance an issue (Pellegrini v Italy (2002) 25 EHRR 22, especially at para. 45). Only four out of the eight federal districts recognised the standing of an individual in treaty matters. In Fiocconi v Attorney General of the United States 462F. 2nd 475 the Second Circuit had refused to acknowledge the treaty obligations where the State in question (Italy) had not made an affirmative protest. Section 95 should be read as if it referred to "effective" speciality arrangements. The United States courts regarded the speciality (formerly specialty) rule as a matter of international comity rather than a rule which must be applied for the protection of an individual (Welsh and Thrasher v Secretary of State for the Home Department paras. 37-8). The risk was that, in the event of the appellant being convicted of one or more of the offences for which he had been extradited, he might be sentenced as if he had been convicted also on the charges (in excess of 300) which had been excluded from the extraditable offences. In these circumstances he would be being "dealt with" for offences for which he had not been extradited (and could not have been extradited). The reasoning in Welsh and Thrasher to a contrary effect at paras. 138-140 was unsound.

[22] Mr. Wolffe in response noted that Mr. Bovey had not sought to argue that the substantive law of the United States was in any respect defective. He had (implicitly) accepted that the law laid down in United States v Rauscher 7 S. Ct. 234 imposed an obligation on all courts in the United States (including all state courts) to respect speciality. The only issues which arose were of standing and of sentencing. These issues had recently and exhaustively been considered by the English courts in Welsh and Thrasher v Secretary of State for the Home Department, Bermingham v Serious Fraud Office [2006] EWHC 200 (Admin.) and Stepp v Government of the United States of America [2006] EWHC 1033 (Admin.) (standing only). The approach there adopted should be followed. In all three cases leave to appeal to the House of Lords had been refused by the Divisional Court and by the House of Lords. The matter of standing was procedural rather than substantive. Mr. Bovey had been unable to produce any example where a person had in a United States court been unable by reason of lack of standing to raise a well-founded point on the matter of speciality. There was some difference of approach to standing among the United States courts. Some of these allowed an individual himself to raise the point without any reference back to the extraditing state, the individual being regarded as a beneficiary of the treaty; others regarded the treaty as in effect a contract exclusively between states. The latter approach did not mean that an accused could not procedurally put the issue of speciality in play; but the substantive issue was whether the sending state

objected. For example in Fiocconi v Attorney General of the United States, although the Second Circuit court did not recognise "standing" on the part of the individual, the issue of speciality could still be raised and was decided. Reference was also made to Welsh and Thrasher v Secretary of State for the Home Department at para. 38 and to Stepp v Government of the United States at paras. 25, 33-4 and 39-41. The submission on standing should be rejected. As to sentencing, it was not disputed that, in the event of the appellant being convicted, the trial judge would, for the purposes of sentencing, be entitled to have regard to conduct of the accused other than that in respect of which he had been convicted. Such other conduct might include such conduct underlying the non-extradited offences as was relevant for the purpose of sentencing in respect of the crimes for which he had been convicted before the court. But it was no part of speciality for this court to have regard to what was taken into account by the United States court for the purposes of sentencing - unless a human rights issue was raised, which it was not. If Mr. Bovey were correct, a sentencing judge (whether of a person extradited from this country or to this country) would be unable to have regard for the purposes of sentencing to any relevant previous convictions. Although such a history was taken into account for the purposes of sentencing, the extraditee was still being dealt with "for" the extradited offence or offences. Under the sentencing system employed in the United States courts, there was no particular standard of proof of prior or other conduct; a pre-sentencing investigatory report was prepared which either party could challenge or comment upon. The judge then exercised his discretion as to the extent, if any, to which he relied on conduct other than that constituted by the crimes of which the accused had been convicted.

[23] The issue before this court is essentially one of construction of section 95(3) of the Extradition Act 2003 and its application to the treatment in the United States courts of persons extradited from this country in furtherance of the 1972 Treaty. It is not disputed that the rule of speciality is recognised in the United States (United States v Rauscher) and that all United States courts are bound to and do apply the ruling of the Supreme Court in that case. Although there are differences of procedural treatment among the different districts of the federal courts in respect of the matter of "standing", we are satisfied that any person who wishes to raise an issue bearing on compliance of the requesting state with its treaty obligations in respect of him may do so wherever he is tried. The United States courts routinely observe the ruling in Rauscher (see Welsh and Thrasher v Secretary of State for the Home Department, at para. 35). In Rauscher (a decision of the Supreme Court on appeal from the Circuit Court for the Southern District of New York) the convicted person was able to raise the issue of speciality (and was successful in the merits of that argument). As is plain from that decision (at pp. 430-1), in the event of speciality not being recognised in a United States court the aggrieved individual has remedies at his own hand. No case was cited to us in which speciality had been disregarded by an American court. In Fiocconi v Attorney General of the United States (a decision of the Second Circuit, which does not technically allow "standing" to the individual) the aggrieved person could proceed by writ of habeas corpus.

[24] On the matter of sentencing, we accept that a convicted person is, when being sentenced, "dealt with" within the meaning of section 95(3) (Welsh and Thrasher per Ouseley J. at para. 139); Bermingham v Serious Fraud Office, per Laws L.J. at para. 149). It is an unsurprising feature of many (if not all) systems of criminal justice that past general conduct, good or bad, of a person convicted of crime is, in so far as relevant to the crimes for which he stands convicted, brought into account for the purposes of sentencing. Although such extraneous conduct is brought into account, the accused is still being "dealt with ... for" an offence in respect to which he has been extradited. The convicted person is simply being dealt with for the crime for which he has been convicted, due regard being had to his previous character, good or bad, as illustrated by his past conduct. Different systems will no doubt approach the exercise of sentencing in different ways. The terms of treaties will necessarily require to reflect these differences. The sentencing practices of the United States courts were in place well before the 1972 Treaty was entered into (Welsh and Thrasher, paras. 103 and 137). No doubt there may be some situations where, applying a British interpretation, the treatment of prior conduct is perceived to go beyond sentencing for the extradited offence. It may be a matter of degree (Welsh and Thrasher, at para. 139). In such a situation section 95(3) would not be satisfied. But, in our view, that is not the case here. The use of prior analogous conduct is a regular feature of sentencing in the Scottish courts. Such conduct is not restricted to prior criminal convictions. By way of example, it is a regular feature of practice in Scotland that the court, in sentencing a young person for crimes of which he or she is convicted, takes into account information described in a social enquiry report, including information that, as a child, the person was brought before a children's panel for analogous conduct. The use of such information does not mean that the person is being sentenced for prior conduct. It may also be that some regimes involve potentially the infringement of the human rights of a person whose extradition is sought. But, although section 87 of the Extradition Act was invoked on one aspect of the appellant's contentions (see supra), it was not maintained in argument that any system of sentencing which the appellant would face if extradited to the United States and convicted there on the extradited charges, would give rise to a violation of his human rights. A flagrant denial of justice would be required (R (Ullah) v Special Adjudicator, para. 24).

Coda

[25] Some time after the court had made avizandum and when this opinion had virtually been completed in draft, agents for the appellant submitted to the Justiciary Office a Minute and a Note of Supplementary Submissions. The Minute narrated that the minuter intended "to raise a devolution minute within the meaning of Schedule 6 to the Scotland Act 1998" on grounds elaborated in the Note of Supplementary Submissions. The contention sought to be advanced was that extradition of the minuter would, on these grounds, be contrary to Article 6 et separatim 8 of his Convention rights. The contention concerned the approach likely to be taken, in the matter of sentencing, by the U.S. court to the charges excluded from the extradition order.

[26] No explanation was given for the lateness of this application other than that, on the morning of the third and final day of the hearing a document under the hand of Sara Criscitelli, an American lawyer advising the requesting State, had been produced to counsel for the appellant for the first time. In the Note it is asserted that the factual situation in relation to the approach to sentencing which might be adopted by an American court had become "apparent for the first time".

[27] We refuse to receive this Minute and Note. The issue of the approach to sentencing which might be adopted by an American court in the event of the conviction of the appellant for an extradited offence was fully canvassed in argument. It was clear well before the hearing that that approach was of potential significance to the resolution of the section 108 appeal. If it was the appellant's intention to raise an issue that his Convention rights were in any respect infringed by that approach, he had ample opportunity to do so while the appeal was pending in this court. Miss Criscitelli's supplemental declaration, elaborating to some extent on a number of matters, does not raise any new issue of fact or of law.