Appellant: CM Mitchell; John Pryde & Co, SSC (for JR Rahman, Glasgow)

Respondent: Hawkes; the Crown Office International Co-operation Unit

16 October 2012

[1] The appellant was arrested at Clydebank on 24 May 2012, on a warrant issued under Part 1 of the Extradition Act 2003. On 20 August 2012, the Sheriff of Lothian and Borders at Edinburgh ordered the appellant's extradition to the Republic of Ireland, which is a category 1 territory within the meaning of section 1 of the 2003 Act. On 24 August 2012, the appellant lodged a Note of Appeal under section 26(1) of the 2003 Act, using Form 34.3 of the Act of Adjournal (Criminal Procedure Rules) 1996. In terms of Rule 34.3(1)(a) and (4), this Note is to be lodged with the Sheriff Clerk. The Sheriff Clerk, is directed (Rule 34.4), upon the lodging of an appeal, to request a report from the Sheriff and to transmit the Note of Appeal and the process to the Clerk of Justiciary (ie the High Court), who is to fix a diet for the hearing of the appeal.

[2] By letter dated 18 September 2012, the appellant's agents wrote to the Sheriff Clerk in the following terms:

"We refer to the above and we can confirm that our client wishes to abandon his appeal".

A degree of confusion appears to have occurred thereafter, stemming from the current practice whereby the Note of Appeal and process are, notwithstanding the terms of the rule, only forwarded to the Clerk of Justiciary once the Sheriff's report is prepared. This ought to be within 14 days (Rule 34.4(3)). In this appeal, the report had not been prepared by the date of receipt of the letter, hence the appeal process remained physically in the Sheriff Court. The letter was addressed to that court, although any appeal to be abandoned was to the High Court. The problem, as the Crown perceived it, was the uncertainty about which court ought to take action in respect of the letter.

[3] Section 36(2) of the 2003 Act states that a person must be extradited to the relevant territory before the end of "the required period". The required period is defined as being:

"(3)(a) 10 days starting with the day on which the decision of the relevant court on the appeal becomes final or proceedings on the appeal are discontinued".

The section presupposes (36(1)) that there is an appeal to the High Court. The section goes on to provide (36(8)) that, if the time provision is not complied with, the person named in the warrant can apply to "the appropriate judge" to be discharged and the judge:

"... must order his discharge, unless reasonable cause is shown for the delay."

The appropriate judge is defined in section 67 as being the Sheriff of Lothian and Borders.

[4] On 4 October 2012 the appellant's agents lodged an application with the Sheriff seeking discharge, on the basis that the warrant had not been executed within the specified 10 days. His application called on 8 October, when the Sheriff refused it and declared that the 10 day period was to commence from that date. In so deciding, the sheriff took the view that the Crown did have reasonable cause for not extraditing within the 10 day period; that cause being the uncertainty as to whether there was a decision of the relevant court on the appeal, which had become final, or, more likely, whether the proceedings on the appeal had been "discontinued". This confusion prevailed at the time of the hearing before the Sheriff, hence his decision to declare that the time period should run from the date of his decision. In so deciding, he took the view that a formal Minute of Abandonment should, in the future, be regarded by the Crown as a final abandonment of any appeal and that, following upon such a Minute, the Crown should immediately take steps to return the extraditee in terms of the warrant.

[5] The appellant presented a petition to the nobile officium, attempting to appeal the Sheriff's decision. This petition, which is in remarkably short form, states that:

"4 Due to the failure to execute the extradition order timeously the petitioner applied to the Sheriff at Edinburgh inviting him to order his discharge. On 8^th October 2012 despite the fact that no reasonable cause for the delay was advanced by Her Majesty's Advocate the presiding Sheriff refused to order the petitioner's discharge".

As will be apparent from the narrative above, it is at least misleading to state that "no reasonable cause for the delay was advanced". Cause was advanced by the Crown for the delay and the Sheriff had accepted that cause as being reasonable.

[6] The appellant requested a warrant for service of the petition. Following concerns raised by the court in relation to competency, a hearing was fixed, at which both parties were represented. At that stage the respondent argued that the petition was incompetent. The 2003 Act contained an exhaustive set of appeal provisions and went on to provide (s 34) that decisions could be questioned in legal proceedings only by means of an appeal taken under the Act. The nobile officium was available only where the circumstances were extraordinary or unforeseen, or where no other remedy or procedure was provided by law (Macpherson, Petitioners 1990 JC 5). The nobile officium could not be invoked in order to override the express provisions of a statute, or where to do so would conflict with statutory intention, either express or clearly implied (Adair v Colville 1922 SC 672, LJC (Scott-Dickson) at 677; Anderson v HM Advocate 1974 SLT 239, LJG (Emslie) at 241). It could not be employed to supplement a statutory procedure since that would, in effect, amount to an amendment (Maitland, Petitioner 1961 SC 291, LP (Clyde) at 293). As was stressed in Macpherson, Petitioners (supra) the nobile officium could not be used to attack a decision, if a right of appeal from that decision had been deliberately excluded by Parliament (La Torre v HM Advocate 2008 JC 72).

[7] The appellant, under reference to La Torre, maintained that the petition was competent, since no other remedy existed and a compelling case had been set out.

[8] The court agrees with the submission, made by the respondent, that a petition to the nobile officium is incompetent, where an appeal is expressly excluded by statute (La Torre v HM Advocate 2008 JC 72, LJC (Gill) at paras [4] and [5]; Macpherson, Petitioners 2008 JC 5, LJG (Hope) at 11). For that reason alone, the petition will not be warranted. In addition, the nobile officium can only be used where the circumstances are extraordinary or unforeseen and where no other remedy or procedure is provided by the law (ibid). The 2003 Act allows the extraditee to apply to the sheriff for a discharge of the warrant in the event of delay A decision by the sheriff, on that matter, cannot be described as unforeseen or extraordinary. For this reason also, a petition to the nobile officium seeking to challenge such a decision is incompetent. Furthermore, even if a petition were competent, this particular petition would not have been warranted given the sparsity of averment made in order to justify exercise of the equitable remedy.

[9] All of this, however, leaves the procedure in a continuing state of uncertainty. The essential point is that, once an appeal to the High Court has been marked, any decisions in respect of that appeal can only be taken by the High Court, irrespective of where the process happens to be. Other than in relation to providing a report, the Sheriff is functus once an appeal is marked. Accordingly, any abandonment requires to be lodged with the Clerk of Justiciary before it can become effective. In the absence of a provision relative to deemed abandonment (see eg Criminal Procedure (Scotland) Act 1995 section 116(1)), any intimation of abandonment requires to be followed by a court order for dismissal of the appeal to make it effective.

[10] The particular letter in this case expresses an intention or wish to abandon. That is not sufficient to merit dismissal of an appeal. If an appellant seeks to abandon, he requires to lodge an appropriate Minute stating clearly that he abandons the appeal, not that he wishes to do so or intends to do so sometime in the future or otherwise. The terms of the letter in this case are insufficient as an intimation upon which a court order for dismissal could follow. The result is, perhaps unfortunately, that this appeal remains extant until such time as a proper Minute of Abandonment is lodged with the Clerk of Justiciary and the High Court acts upon it or a decision is taken by the High Court upon the merits.