Michael Trajer v. The Lord Advocate [2008] ScotHC HCJAC

APPEAL COURT, HIGH COURT OF JUSTICIARY

Lord Osborne

Lord Clarke

Lord Philip

[2008] HCJAC 78

Appeal No: XC203/08

OPINION OF THE COURT

delivered by

LORD OSBORNE

APPEAL IN TERMS OF SECTION 26 OF THE EXTRADITION ACT 2003

MICHAL TRAJER

Appellant;

against

THE LORD ADVOCATE

Respondent;

Act: Shead; Mason; Robertson & Ross, Paisley

Alt: Miss R Crawford; Crown Agent

19 December 2008

The background circumstances

[1] On 16 May 2002, at the District Court of Prostejov in the Czech Republic, the appellant was found guilty, in his presence, of contraventions of Articles 241 and 248 of the penal code of the Czech Republic, namely rape and embezzlement. The appellant was sentenced to four years and six months imprisonment. On 1 July 2002 he lodged a note of appeal. The decision of the Brno Court of Appeal, issued on

28 January 2003, was to confirm the decision of the District Court of Prostejov and uphold the appellant's conviction and sentence.

[2] The appellant had been released on bail in connection with these matters on

26 February 2002, on the condition that he informed the court of his domicile. However, the appellant had not been staying at his given domicile, so that the judgment of the Court of Appeal in Brno was not delivered to him. On 6 March and

23 March 2003 the court sent to the appellant calls for him to enter custody and serve his sentence of imprisonment. Again on 14 July 2003 the court ordered the appellant to hand himself over in order to serve his custodial sentence. Thereafter there were repeated attempts by the authorities in the Czech Republic to trace the appellant. On

19 August 2003 a Republic-wide police search for the appellant was announced. The last attempt of the court to contact the appellant was on 4 August 2006. On

16 November 2007, the court was advised by the police in the Czech Republic that they had received information from Interpol to the effect that the appellant was residing outwith the Czech Republic. In the relevant correspondence it is noted that the first information about the appellant's whereabouts was given by Interpol to the Czech authorities on 14 November 2007. On 7 January 2008 a European Arrest Warrant was issued in respect of the appellant.

[3] Thereafter, the appellant was arrested in Scotland, where, for a time, he had been resident. At an initial hearing in Edinburgh Sheriff Court on 29 February 2008, the solicitor then acting for the appellant confirmed that the appellant had been arrested under a Part 1 Warrant issued by a Category 1 territory in terms of the Extradition Act 2003, "the 2003 Act". He also confirmed that a copy of the warrant had been given to the appellant in both the Czech and English languages, as soon as practicable after his arrest; and that the appellant was the person in respect of whom the warrant had been issued. Having been informed of his right to consent to extradition, the appellant advised the court that he did not consent to the extradition and accordingly an extradition hearing was fixed to take place on 17 March 2008.

The appellant was remanded in custody, bail having been refused.

[4] On the latter date, the sheriff heard submissions on behalf of the appellant and the Lord Advocate. He decided that the offences specified in the Part 1 Warrant were extradition offences, within the meaning of Section 10(2) of the 2003 Act; that the extradition of the appellant to the Czech Republic, being a Category 1 territory was not barred by reason of any of the circumstances set out in Section 11(1)(a) to (j) of the 2003 Act; that the appellant, who was alleged to be unlawfully at large after conviction of the extradition offences, had been convicted in his presence, in terms of Sections 20(1) and (2) of the 2003 Act; that his extradition would be compatible with Convention rights, within the meaning of the Human Rights Act 1998, in terms of Section 21(1) of the 2003 Act; and therefore, in terms of Section 21(3) of the 2003 Act, he ordered the appellant to be extradited to the Czech Republic, being the

Category 1 territory in which the relevant European Arrest Warrant had been issued. Against that decision, the appellant has now appealed to this court.

Grounds of Appeal

[5] On 20 March 2008 there was lodged on behalf of the appellant a Note of Appeal under Section 26(1) of the 2003 Act, in which the following grounds of appeal were set out:

"(1) the sheriff erred in law in refusing the appellant's argument that the sentence was time-barred, given the statutory limitation of five years and the absence of any evidence as to the appellant's whereabouts since 28 January 2003; (2) the appellant maintains that it would be unjust and oppressive, to return him to the Czech Republic for sentence given (1) supra, and (2) given the anomalies relative to his conviction and the Czech prison regime."

[6] Thereafter on 19 September 2008, at a procedural hearing in this appeal, there was tendered on behalf of the appellant a Supplementary Note of Appeal. No decision was then made as to whether that Note of Appeal would be received. Consideration of that matter was continued to a further procedural hearing on 30 September 2008. On that latter date, the court allowed the appellant's grounds of appeal to be supplemented, but only to the extent set forth in paragraphs 3(b), (c) and (d) of the Supplementary Note of Appeal. The diet of appeal hearing previously assigned for 8 and 9 October 2008 was discharged, a further procedural hearing being arranged to take place on 7 October 2008. On that latter date, the court, having been informed by counsel for the appellant and counsel for the Lord Advocate that the estimated duration of the hearing was two days, assigned 22 and 23 October 2008 for the hearing of the appeal.

[7] Paragraph (3)(b), (c) and (d) of the appellant's Supplementary Note of Appeal is in the following terms:

"(b) The sheriff erred in failing to consider whether the appellant's surrender under the Extradition Act 2003 would have been unjust and oppressive. He was obliged by statute to do so. Had he considered this aspect properly he would have decided the matter differently. It would be unjust and oppressive to extradite the appellant. In these circumstances, the appellant has not had a fair hearing.

(c) In seeking the appellant's extradition to the Czech Republic the Lord Advocate and the Scottish Ministers are acting in a way which is contrary to the appellant's fundamental rights in terms of the European Convention. In particular, should the appellant be extradited to the Czech Republic he would be subject to inhuman and degrading treatment. There is also a high risk that the appellant would be subject to torture (Article 3 ECHR). Additionally, the appellant's extradition to the Czech Republic would interfere with his right to privacy and his right to respect for private and family life (Article 8 ECHR). In particular, the Prison system in the Czech Republic does not provide for segregation between categories of offenders as in Scotland. It is highly likely that the appellant would have to share a cell with up to twenty men. Many would not be classed as sex offenders like the appellant. Many would be violent. The appellant would not be protected by the Prison Authorities by way of segregation or otherwise. The prison officers may intimidate and ill-treat the appellant. In addition, the appellant would spent (sic) up to 21 hours each day in a prison cell with less than 3.5 square metres of space and a communal lavatory. There would be little in the way of facilities by way of education or otherwise. He would only be able to wash once per week. In addition to the obvious risk of violence from other prisoners he would be subject to systematic handcuffing and risks being strapped to a bed. The appellant in the circumstances is foreseeably at real risk of being seriously ill-treated should be (sic) extradited to serve his sentence in the Czech Republic.

In addition, the appellant's correspondence would be interfered with. He would not be entitled to phone his family other than with the written permission of the Prison Governor. Should he be allowed to use the phone it would be for a maximum of five minutes. In these circumstances, his extradition to the Czech Prison regime would amount to an interference private and family life (sic), his home and his correspondence.

(d) The Council Framework Decision of 13 June 2002 provides for convicted persons to serve sentences in the executing members state where that sentence is currently being served. The appellant is currently serving his sentence in HMP Saughton. In accordance with Council Framework Decision he should be allowed to serve the remainder of his sentence in the United Kingdom. Any provision preventing him from doing so is unlawful, being contrary to Articles 3 and 8 of the European Convention and disproportionate to his rights under those Articles."

[8] At the outset of the hearing before us on 22 October 2008, counsel for the appellant moved the court to grant an adjournment of the appeal hearing as a whole. He outlined the background to the appeal, which we have already described. The Lord Advocate had been asked to indicate in which penal establishment the appellant would be detained, in the event of his extradition to the Czech Republic. The answer to that question had been received by counsel within the last few days. The appellant had certain apprehensions regarding his likely treatment in the institution concerned. This aspect of the matter was particularly relevant to ground of appeal 3(c). Counsel said that he was not able to put specific material before the court concerning the prison that might be involved in the reception of the appellant, following any extradition. It was for that reason that he sought an adjournment. The purpose of the adjournment would be to enable an expert in prison conditions to be instructed and for him to make investigations.

[9] Counsel for the Lord Advocate opposed the appellant's motion for reasons related to the chronology of these particular proceedings and the powers of the court of appeal. She indicated that she would draw certain authorities to the attention of the court. The first of these was Jaso &c v Central Criminal Court No 2, Madrid [2007] EWHC 2983 (Admin). Paragraphs 32, 37 and 38 in the judgement of Dyson, L.J. were particularly important. In that case it was made clear that, in considering an application for extradition, great weight had to be given to the fact that the state seeking extradition was a western democracy, subject to the rule of law, and a signatory of the European Convention on Human Rights. Before this court could hold that the appellant's extradition would be incompatible with his human rights, there would require to be very clear evidence that such violation was likely, in the event of extradition. In the circumstances of the present case, there was no such evidence. In Mamatkulov and Askarov v Turkey E.C.H.R. 2005-1, similar views were expressed by the Grand Chamber of the court. The test was whether there was a real risk of a person who might be extradited being subject to treatment contrary to Article 3 of the Convention. The counsel pointed out that, in the present case, there were no adverse reports relating to the penal institution in the Czech Republic which might be involved in the detention of the appellant. Having regard to the provisions of section 27(1) and (4) of the 2003 Act, which referred to evidence being available at an appeal hearing, any material upon which the appellant sought to rely should have been made available to this court for the purposes of this hearing. In Miklis v The Deputy Prosecutor General of Lithuania [2006] EWHC 1032 (Admin), Latham, L.J., made certain observations concerning the operation of those parts of the legislation and the standard which had to be met if a person who was the subject of an extradition application was successfully to resist it upon the ground of an apprehended breach of convention rights. It was made clear that material which merely raised a speculative, as opposed to a real risk, was insufficient. Finally, counsel relied upon Pilecki v The Circuit Court of Legnica, Poland [2007] EWHC 2008 (Admin). In that case, in paragraphs 21 and 25 Burnton, J., made it clear that issues of controversy in relation to extradition proceedings ought to be raised in the ordinary course before the judge of first instance, unless there was very good reason indeed why that could not be done.

[10] Reverting to the circumstances of the present case counsel pointed out that the extradition order appealed against had been granted as long ago as 17 March 2008. The appeal had been set down for hearing on 29 August 2008. However, fresh solicitors and counsel had been instructed the day before that hearing. The grounds of appeal then tabled were skeletal. The original diet for the hearing had been discharged and a further diet fixed for 8 and 9 October 2008. Only as late as the procedural hearing on 19 September 2008 was the additional note of appeal submitted. The court's interlocutor made clear that, if fresh material were to be relied upon, it was to be lodged by 30 September 2008. That had not been done. This shortcoming on the part of the appellant was particularly serious having regard to the timetable contemplated for proceedings of this kind. That timetable was established in Chapter 34 of the Act and Journal (Criminal Procedures Rules) 1996.

Paragraph 34.4(5) provided for a 40 day period within which the court was to begin to hear an appeal of the present nature. Plainly that had not been achieved, largely in consequence of the unpreparedness of the appellant. In all the circumstances the motion for adjournment should be refused.

[11] In the light of the foregoing submissions, we decided to refuse the appellant's motion for the adjournment of the hearing. That adjournment was sought with a view to the appellant having an opportunity to obtain material to support the allegations made in ground of appeal 3(c). It became clear to us, in the course of the discussion of the motion, that, at the time of the hearing, the appellant was not in a position to indicate what material, if any, might become available to support his allegations. Furthermore, there was no indication as to if or when such material might become available, or from what source. If there were genuine concerns about the possible treatment of the appellant in the event of his being extradited, no explanation was given to us that indicated why those matters had not been pursued at a much earlier stage in these proceedings. In this situation, we concluded that it would be wholly inappropriate to grant the adjournment sought. Accordingly we refused the appellant's motion. Thereafter, counsel for the appellant indicated that he would proceed to make such submissions as he could in relation to the appellant's grounds of appeal.

Submissions of the appellant

[12] Counsel for the appellant observed that a matter debated before the sheriff at the hearing on 17 March 2008 was the issue of whether, according to Czech law, the proceedings were barred by reason of the passage of time. There had been an application in the Czech Republic to have it declared that the appellant's sentence was "time-barred". That had not been determined, which was unfortunate. However, counsel said that he could not attack what the sheriff had said in paragraph 7 of his judgment. There the sheriff had observed that it was clear to him that the presiding judge in the court of the Czech Republic seized of the matter had already given consideration to the question of the possible statutory invalidity of the judgment of

20 January 2003 and had concluded that the relevant period had not ended and that the judgment was not out-of-date, but was still valid. Thus, if any remedy was available in relation to this aspect of the case, it was one available in the Czech Republic.

[13] However, the passage of time remained important because of the provisions of Sections 11(1)(c) and 14(b) of the 2003 Act. Extradition might be barred by reason of the passage of time. In particular, in the case of post-conviction extradition proceedings, under the latter enactment, extradition might be barred if it were concluded that it would be "unjust or oppressive to extradite him by reason of the passage of time since he is alleged to have - (b) become unlawfully at large. Those statutory provisions were considered in Campbell v Her Majesty's

Advocate 2008 SCCR284. The observations of Lord Nimmo Smith in paragraphs

42 to 44 and of Lord Clarke in paragraphs 48 and 49 of that decision were of assistance here.

[14] The relevant circumstances were that the offences of which the appellant had been convicted had been committed in January 2001. He had been arrested and detained in custody until 26 February 2002, after which he had been at liberty. The final verdict in the case was given on 28 January 2003. The sentence imposed in the Czech Republic was one of four years and six months imprisonment. Time served in that state would count towards the serving of the sentence. There would be automatic release after the serving of one half of the sentence imposed. Accordingly there were approximately six months left to serve. There was no consensus regarding the circumstances following the issue of the final verdict on 28 January 2003. In this connection counsel referred to the appellant's affidavit, dated 30 September 2008, in particular paragraph 7, in which he stated that he had not left the Czech Republic between 2003 and 2006. He had not received communications from the Czech Authorities calling him into custody. It was accepted that the Czech Government had made efforts to find him in 2003, but it was not clear what steps had been taken between that year and 2006. The appellant had travelled between the Czech Republic and the United Kingdom on account of work commitments, travelling back and forth by conventional means by way of border controls. In particular, in 2005 the appellant had spent two weeks holiday in the United Kingdom, when he had discussed with friends the possibility of living and working here. He had obtained employment in the United Kingdom in 2006 as a driver. Subsequently he had purchased a property by means of a mortgage. He had formed a relationship with a Scottish Slovak partner and lived with her in Uddingston. The house occupied by them had been purchased in

January 2008. The relationship had commenced in August 2007. Counsel accepted that these matters had not been gone into before the sheriff. The focus of the argument before him had been very narrow.

[15] Under Section 27(4) of the 2003 Act, it was contemplated that an issue might be raised in appeal proceedings that was not raised at the time of the extradition hearing, subject to the conditions there set forth. There was no statutory provision that required that there should be a reasonable explanation for the raising of such an issue at that time.

[16] There followed discussion as to when, if at all, the appellant had become "unlawfully at large", in terms of Section 14(b) of the 2003 Act. In paragraph 8 of his affidavit, the appellant claimed that he had not been unlawfully at large in Scotland since the imposition of his sentence in the Czech Republic. For practical purposes, it was appropriate to assume that the relevant period had commenced on 14 July 2003 when an order had been issued that the appellant should serve his custodial sentence.

[17] In the present context it was necessary for the court to look at the portion of the sentence remaining to be served and, in particular, the disruption which would affect the appellant, were he to be extradited. The public interest also had a part to play. It was submitted that it would be both unjust and oppressive for the appellant to be extradited in the existing circumstances.

[18] Counsel went on to request the court to look at the contents of the appellant's affidavit, in so far as they described the prison conditions in the Czech Republic. It was acknowledged that there might be an issue as to the relevance of that matter. One of the problems perceived by the appellant was that, in the Czech Republic, he would not be segregated along with other sexual offenders, whereas in Scotland that would occur. Allied to that matter there was an issue of the appellant's rights under Article 8 of the European Convention. Plainly, were he to be extradited, his family life would be disrupted.

[19] Finally, counsel said that very recently a matter had been drawn to his attention as to whether a European Arrest Warrant constituted an appropriate vehicle in the case of the appellant, having regard to the date of the commission of his offences. Counsel wished the right to address the court on that matter again. He did not propose to address the court on supplementary ground of appeal 3(c). Nor could he support ground 3(d), having regard to the decision in Goatley v Her Majesty's Advocate 2006 S.C.C.R.463.

Submissions of the respondent.

[20] Counsel for the respondent moved the court to refuse the appeal. She said that she wished to face the issue of whether the appellant had been "unlawfully at large" and, if so, for what period of time. In Campbell v Her Majesty's Advocate the clock had started ticking when the conviction became final. Counsel referred to the Council Framework Decision of 13 June 2002 on the European Arrest Warrant and the Surrender Procedures between member states. Paragraph 5 of the preamble was pertinent, as well as Article 1 thereof. She also drew our attention to Office of the Kings Prosecutor, Brussels v Candoarmas [2006] 2A.C.1 that had given rise to the enactment of Section 68A of the 2003 Act by amendment, which dealt with the expression "unlawfully at large". However, that had no application to the terms of section 14 of the 2003 Act. The position which was now advanced, which was agreed, was that the appellant had been "unlawfully at large" since 14 July 2003 when an order to commence the serving of the custodial sentence was made, until the appellant was arrested in Scotland, since when he had been lawfully in custody.

[21] The issue of the effect, if any, of the "passage of time" had not been raised before the sheriff at the extradition hearing, as it had been here. In this connection counsel drew our attention to Pilecki v The Circuit Court of Leginca, Poland [2007] EWHC 2008 (Admin), particularly paragraphs 21 and 25 of the judgement. The importance of raising issues at first instance was there emphasised.

[22] In connection with the issue of "the passage of time", counsel submitted that the period of seven months between the date of the sheriff's decision and the present hearing should be ignored. If some part of the time that had passed had to be seen as the responsibility of the appellant, that period could not be the basis for a contention of oppression. As regards the significance of the length of the remainder of the sentence that had to be served, it was pointed out that, when the appellant was arrested, there were more than twelve months of the sentence left to serve. While it was acknowledged that the length of the sentence remaining to be served could be relevant to the issue of oppression in terms of Section 14 of the 2003 Act, it was submitted that it would be of real significance only in an extreme case, where a very small portion of the original sentence remained to be served.

[23] As regards the matter of the effect of extradition upon the appellant's circumstances and the extent that those circumstances had altered in recent times, it was submitted that the events between 2003 and 2006 were not significant. While there had been some certain changes in the appellant's circumstances following his forming a relationship with his partner in August 2007, particularly the acquisition of a house in Scotland in January 2008, it was submitted that these matters were not of sufficient significance as to amount to oppression in the event of extradition being sustained.

[24] It was appropriate for the court to take into account the contents of certain productions lodged by the respondent. The first of these was the communication to the respondent from Eurojust, an organisation established to facilitate the European Arrest Warrant system. It confirmed that the length of time spent by appellant in custody would be taken into account in the serving of his sentence, whether in the Czech Republic or the United Kingdom. Reference was also made to production 2, which gave details of the chronology of the matter. Reference was also made to productions 3 and 4. The factual background revealed in these productions should, along with all other relevant matters, be taken into account in connection with the appellant's plea of oppression. The fact was that the appellant had chosen to leave the Czech Republic knowing that he had been convicted for the offences concerned and sentenced for them.

[25] Returning finally to consider the criterion to be applied in relation to Article 8 of the European Convention, counsel drew our attention to Jaso &c v Central Criminal Court No.2 Madrid [2007] EWHC 2983(Admin), particularly paragraphs 56 and 57.

Response of the appellant

[26] Counsel for the appellant, in reply, made certain points. As regards the timing of the arrest warrant in relation to the appellant's purchase of heritable property, the appellant had completed missives in December 2007 and took entry of the property in late January 2008. The European Arrest Warrant was not executed until 29 February 2008. As regards other matters, it had to be noted that the Czech Republic had not brought into force domestic legislation to implement the Framework Document.

The decision

[27] As matters have developed before us, only certain parts of the grounds of appeal tabled by the appellant require to be considered. In the original Note of Appeal, in paragraph 3(1) the issue of the time-bar of the appellant's sentence is raised. In the course of argument before us, counsel for the appellant made clear that he was not in a position to attack the conclusion of the sheriff in paragraph 7 of his judgment. Accordingly, that matter does not require to be considered further. As regards paragraphs 3(2) of the original Note of Appeal and 3(b) of the Supplementary Note of Appeal, the issue is raised as to whether it would be unjust or oppressive for the appellant to be extradited to the Czech Republic. That is a matter that was argued before us and requires to be the subject of decision. In view of our decision to decline the adjournment sought by the appellant, counsel for the appellant did not seek to support ground 3(c) in the Supplementary Note of Appeal, which therefore does not require to be further considered. Furthermore, counsel indicated that he did not seek to support ground 3(d) in that document, which is therefore in a similar position. For the reason that the appellant's reliance on Article 3 of the European Convention of Human Rights was related to the subject matter of ground of appeal 3(c) of the Supplementary Note of Appeal, that does not require to be considered further.

[28] Turning then to deal with the issues arising in connection with the appellant's reliance upon the provisions of Sections 11 and 14 of the 2003 Act, as we have narrated, counsel for the appellant invited us to allow the appeal upon the basis that it would be both unjust and oppressive to allow the extradition of the appellant to the Czech Republic, having regard to the whole circumstances, in particular the extent of which the appellant had become settled in Scotland and having regard also to the proportion of his sentence which remained to be served. Counsel for the respondent argued that, since the matters now founded upon had not been put before the sheriff, they should not now be entertained as a basis for consideration of the appellant's plea. In that connection she relied upon certain passages in Pilecki v The Circuit Court of Legnica, Poland, particularly paragraphs 21 and 25. In paragraph 21, Burnton J. expressed the view that "in extradition cases, as in other cases, it is important for the parties to identify to the court, and indeed to each other, the live issues which have to be determined by the court." That observation was made in the context of a matter being raised before him which had not been raised before the District Judge. So far as it goes, we take no issue with his observation. In paragraph 25 he went on to say that issues such as that which had been made the subject of his consideration "must be indicated and taken at first instance unless there is very good reason indeed why they should not be." Having regard to the provisions of section 27 of the 2003 Act, we are unable to agree with this latter observation. Section 27 deals with the powers of the court on an appeal under section 26. Section 27(2) provides that the court may allow the appeal only if the conditions in sub-section (3) or the conditions in sub-section (4) are satisfied. Sub-section (4) provides:

"the conditions are that - (a) an issue is raised that is not raised at the extradition hearing or evidence is available that was not available at the extradition hearing; (b) the issue or evidence would have resulted in the appropriate judge deciding the question before him at the extradition hearing differently; (c) if he had decided the question in that way, he would have been required to order the person's discharge."

[29] It appears to us that that particular sub-section plainly contemplates that, in an appeal under Section 26 of the 2003 Act, matters may be raised that were not raised at the original extradition hearing and evidence may be put before the court that was not available at that hearing. The sub-section contains no language which would constrain the court into consideration of such material only if there was some reasonable, or even exceptional, explanation for the state of affairs concerned. In these circumstances, while it is plainly desirable that all issues which the subject of a European Arrest Warrant wishes to raise should be raised at the extradition hearing, that may not always be possible. The court dealing with an appeal from a decision following such a hearing is unconstrained as to the matters which it may consider, in our opinion. Thus, we see no obstacle to our consideration of the matter that was put before us in the course of the appeal which was not put before the sheriff.

[30] The context of this part of the case is of course section 11 of the 2003 Act which provides that, in a situation such as that involved here a person's extradition may be "barred by reason of - ...... (c) the passage of time". Section 14 of the

2003 Act elaborates the basis upon which extradition might be barred. It provides:

"a person's extradition to a Category 1 territory is barred by reason of the passage of time if (and only if) it appears that it would be unjust or oppressive to extradite him by reason of the passage of time since he is alleged to have - ..... (b) become unlawfully at large (where he is alleged to have been convicted of it).

[31] While there was some discussion before us as to the time at which the appellant became "unlawfully at large", for the purposes of our consideration, we are prepared to proceed upon the basis that that occurred on 14 July 2003, when an order was issued in the Czech Republic for the appellant to serve his custodial sentence. He was unlawfully at large thereafter, upon this basis, until arrested under the European Arrest Warrant issued on 7 January 2008.

[32] The focus of this part of the appellant's appeal was the change in circumstances of the appellant during the period of time when he was unlawfully at large. Particular reliance was placed upon his living and working in the United Kingdom, his formation of the relationship with his present partner, which commenced in August 2007 and his acquisition of a dwelling house occupied by himself and his present partner, to which entry was taken in late January 2008. Reference was also made to the fact that the appellant had obtained employment in Scotland. Another aspect of the situation upon which counsel for the appellant founded was the period of the sentence in question which remained to be served, which was said to be approximately six months.

[33] Having taken into account these various matters, our conclusion is that it cannot be said to be unjust or oppressive, by reason of the passage of the relevant period of time, to extradite the appellant. While, in relatively recent times, the appellant has formed a relationship with his partner in Scotland and has acquired heritable property in Scotland, in which to live, we do not consider that those matters are of sufficient significance as to be capable of giving rise to a conclusion of oppression, either themselves, or in association with the other matters which should be considered. As regards the length of the sentence remaining to be served, it appears to us to be a significant period. While in an extreme case, where, for example, only a few days remained to be served of a custodial sentence, extradition might, on that account, be seen as oppressive, we are unable to characterise the situation in that way having regard to the period of time remaining to be served here.

[34] The appellant also relied on the provisions of Article 8 of the European Convention on Human Rights, the contention being that extradition would disrupt and damage the appellant's family life. In that connection we consider that what was said in Jaso &c v Central Criminal Court No. 2, Madrid, particularly in paragraph 57, is applicable in this connection. There, Dyson L.J., in considering Article 8 in connection with an issue of extradition said:

"What is required is that the court should decide whether the interference with a person's right to respect for his private or (as the case may be) family life which would result from his or her extradition is proportionate to the legitimate aim of honouring extradition treaties with other states. It is clear that weight should be accorded to the legitimate aim of honouring extradition treaties made with other states. Thus, although it is wrong to apply an exceptionality test, in an extradition case there will have to be striking and unusual facts to lead to the conclusion that it is disproportionate to interfere with an extraditee's Article 8 rights."

We are unable to say that there are any "striking and unusual facts" in being in this case which would lead to that conclusion. Any extradition is bound to involve some level of disruption to the subject's family life. We can discern nothing in the circumstances of the present case which would render extradition a disproportionate interference with the appellant's right to respect for his family life.

[35] At one point in the course of his submissions, counsel for the appellant invited us to consider the contents of the appellant's affidavit on the subject of prison conditions in the Czech Republic. Having had the opportunity to consider the terms of that affidavit, we do not consider that what is said there would itself displace the presumption which we see as arising from the membership of the Czech Republic of the European Union and its participation in the European Arrest Warrant system to the effect that prison conditions there are compatible with the provisions of the European Convention on Human Rights. Were it to emerge at some later stage that there were legitimate concerns about the conditions in which the appellant was incarcerated in the Czech Republic, following his extradition, and their compatibility with the provisions of the Convention, that is a matter which could be raised in the Czech Republic itself.

[36] In all these circumstances we shall refuse this appeal.

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You are here: BAILII >> Databases >> Scottish High Court of Justiciary Decisons >> Michael Trajer v. The Lord Advocate [2008] ScotHC HCJAC_78 (19 December 2008) URL: http://www.bailii.org/scot/cases/ScotHC/2008/HCJAC_78.html Cite as: 2009 SCCR 151, 2009 GWD 3-53, [2008] HCJAC 78, 2009 JC 108, [2008] ScotHC HCJAC_78

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