Letter from Scottish Ministers seeking onward extradition consent deemed a valid request from the issuing state under the Act of 2003.

Neutral Citation: [2016] IEHC 296

THE HIGH COURT

Record No. 2006/9 EXT

BETWEEN

MINISTER FOR JUSTICE AND EQUALITY

APPLICANT

AND

SAFET BUKOSHI OTHERWISE KNOWN AS ASTRIT PICARI

RESPONDENT

JUDGMENT of Ms. Justice Donnelly delivered the 9th day of May, 2016.

1. Is a letter written on behalf of the Scottish Ministers (the Scottish Government) seeking consent to the onward extradition to

Albania, of the respondent, a person surrendered to the United Kingdom of Great Britain and Northern Ireland (“the UK”) pursuant to

the European Arrest Warrant Act, 2003, as amended (“the Act of 2003”), a request in writing from the issuing state, within the

meaning of s. 24(4) of the Act of 2003? That is the sole issue that arises on this preliminary application.

2. On 12th May, 2015, the Scottish Cabinet Secretary for Justice, wrote a letter addressed to the “Central Authority for the European

Arrest Warrant” in this jurisdiction, seeking consent to the extradition of the respondent to Albania. His extradition was sought by

Albania for the purpose of serving a sentence of 17 years imprisonment following his conviction on charges which “essentially amount

to murder by means of an automatic firearm”.

3. The Cabinet Secretary for Justice states that the respondent was convicted of the offences for which he had been surrendered

“to Scotland” and was thereafter made the subject of a compulsion order due to concerns about his mental health and was detained

in the state hospital in Scotland without limit of time. His trial in Albania occurred in his absence, but the Scottish Secretary states

that they have been assured that “Albanian law permits re-examination of the case”. In April 2015, extradition proceedings in

Scotland were initiated against the respondent. A week later he consented to his extradition before the sheriff at Edinburgh Sheriff

Court. The case was then remitted to the Scottish Ministers for a decision on whether he should be extradited. The letter states that

no decision has been taken on whether to extradite or discharge the respondent as, despite his consent, the Scottish Ministers must

take into account his human rights in considering whether to extradite him. The letter says that they are currently investigating how

these will be upheld. In the interim, the Secretary states that he now “requests the consent of the High Court for the onward

extradition” of the respondent.

4. After the central authority placed the above letter before the High Court, there was a considerable lapse of time before this matter

was ready to come on for hearing. The respondent’s original solicitor, who had represented him on the surrender application, had

difficulties in communicating with the respondent. Thereafter, further time was required to obtain expert evidence with regard to the

situation in Albania, in particular with regard to issues of prison detention and mental health required time. The matter was, however,

set down for hearing on 5th April, 2016.

5. On the day of the hearing, counsel for the minister sought an adjournment for the purposes of seeking further information through

the Scottish authorities with regard to the situation in Albania. At that point, this Court raised the issue of whether a request on

behalf of the Scottish Government could be considered a request from an issuing state. The matter was listed on 22nd April, 2016 for

the purpose of hearing submissions on that preliminary point.

The Law

6. Section 24 of the Act of 2003 provides:

(1) The High Court shall refuse to surrender a person under this Act if it is satisfied that –

a) the law of the issuing state does not provide that a person who is surrendered to it pursuant to a European arrest

warrant shall not be extradited to a third country without the consent of the High Court and the Minister first being

obtained, and

b) the person will be extradited to a third country without such consent first being obtained.

(2) It shall be presumed that, in relation to a person to whom a European arrest warrant applies, the issuing state does

not intend to extradite him or her to a third country, unless the contrary is proved.

(3) The issuing state may request, in writing, the High Court to consent to the extradition to a third country by the

issuing state of a person surrendered to the issuing state under this Act.

(4) The High Court shall give its consent to a request under subsection (3)

if it is satisfied that –

a) were the person concerned in the State, and

b) were a request for his or her extradition received in the State from the third country concerned, his or her extradition

pursuant to such a request would not be prohibited under the Extradition Acts 1965 to 2001.

7. Section 2 of the Act of 2003 defines issuing state as meaning “[i]n relation to a European arrest warrant, a Member State

designated under section 3, a judicial authority of which has issued that European arrest warrant.”

8. Section 3 of the Act of 2003 provides: “(1) For the purposes of this Act, the Minister for Foreign Affairs may, by order, designate a

Member State that has, under its national law, given affect to the Framework Decision. (2) The Minister for Foreign Affairs may, by

order, amend or revoke an order under this section, including an order under this subsection.”

9. The Minister for Foreign Affairs has designated the United Kingdom of Great Britain and Northern Ireland as a member state that

has, under its national law, given effect to the Framework Decision.

10. Article 28 of the 2002 Framework Decision on the European Arrest Warrant and the surrender procedures between member states

(“the 2002 Framework Decision”) provides for surrender or subsequent extradition. Paragraph 4 of Article 28 states:

“Notwithstanding paragraph 1, a person who has been surrendered pursuant to a European arrest warrant shall not be

extradited to a third State without the consent of the competent authority of the Member State which surrendered the

person. Such consent shall be given in accordance with the Conventions by which that Member State is bound, as well as

with its domestic law.”

Submissions

11. At the commencement of his submissions, counsel for the minister referred the Court to a letter received from the Criminal Justice

Division of the Scottish Government by the central authority. This had been a response to questions raised following, inter alia, the

decision of this Court to list this matter for preliminary hearing. The relevant contents of that letter are as follows:

“The UK is a Member State of the European Union. It would appear that, by virtue of secondary legislation made in the

Republic of Ireland under section 3 of its European Arrest Warrant Act 2003 (the European Arrest Warrant Act 2003

(Designated Member States) Order 2004 (S.I. 4/2004)), the United Kingdom has been designated “a Member State that

has, under its national law, given effect to the Framework Decision”. The UK has given effect to the Framework Decision

through the Extradition Act 2003. Part 1 of that Act deals with extradition to territories under the Framework Decision.

The European Arrest Warrant under which Mr. Picari was surrendered by the Republic of Ireland was issued on the basis

of a warrant from the Sheriff of North Strathclyde at Paisley, who is the appropriate judge in terms of the relevant UK

legislation (sections 142, (1) and 149, (1)(b) of the Extradition Act, 2003), at the request of the relevant UK central

authority, the Crown Office and Procurator Fiscal Service. In this respect, see the relevant notification by the UK to the

European Council of the bodies designated as UK central authorities for the purposes of Article 7 (2) of the Framework

Decision [a website address is given].

Consent for onward extradition is sought on behalf of the UK by the Scottish Ministers. Part 2 of the Extradition Act 2003

makes provision for extradition to category 2 countries such as Albania that are not signatories to the EAW Framework

Decision. Section 141 provides that functions of the Secretary of State in Part 2 of the Extradition Act 2003 are to be

exercised in relation to Scotland by the Scottish Ministers. Such functions include certifying requests for extradition from

category 2 countries such as Albania (see section 70) and making the final decision on such extradition requests (see

sections 92 and 93). Section 96 of Part 2 requires that consent for onward extradition to category 2 countries be

obtained before an extradition decision is made. It is, therefore, a function of the Scottish Ministers under UK law to

obtain such consent in relation to extradition cases such as Mr. Picari’s.

The request for the Irish authorities consent for onward extradition was made by letter of 12 May 2015 from Michael

Matheson, Cabinet Secretary for Justice. By virtue of section 52, (3) of the Scotland Act 1998 (as amended by section

12(2) of the Scotland Act 2012), statutory functions of the Scottish Ministers shall be exercisable by any member of the

Scottish Government.

We are of the view, therefore, that the request from the Cabinet Secretary for Justice that the Irish authorities consent

to the onward extradition of Mr. Picari to Albania has been made by the United Kingdom in the appropriate way.”

12. By way of initial comment, counsel for the minister stated that this was a clear explanation of the authority of the Scottish

Ministers to act on behalf of the member state. It was submitted that this established the matter beyond a doubt. Counsel for the

minister made three essential submissions. His first was that, on a simplistic level, one can say that what the court received had

come from the United Kingdom. On that basis the court was not required to look any further. His second submission was that one can

construe s. 24(4) of the Act of 2003 in accordance with s. 2 of the Act of 2003. He submitted that as long as a prior valid request

had been made, that any subsequent request must be taken to have emanated from this same state.

13. Counsel’s final submission was that it was important to consider the reference to “under its national law” in s. 3(1) of the Act of

2003. Within UK national law, it was beyond doubt that the functions of seeking onward surrender were designated to the Scottish

Ministers. The Scottish Ministers were acting on behalf of the UK. Within any given member state, there could be any number of

means by which the ability to request or give consent to further extradition could be delegated. Counsel asked rhetorically: how could

the court say that this was not made by the UK. He said that prima facie it had come from the UK and that had been confirmed by

the more recent letter sent by the Scottish Ministers. He submitted that this was a sui generis type of request. The fact that

Scotland was only a part of the UK could not be taken to mean that it was not entitled to act or make the request.

14. Counsel on behalf of the respondent submitted that the issue is not how another member state chooses to exercise its sovereign

power; rather it is a matter of how the member state chooses to express it. Counsel accepted that it was not a matter for this

jurisdiction as to who decides in another member state as regards a request for extradition; the issue was at what point this Court

becomes bound to take cognisance of that decision. Counsel answered his own question by saying that the court was only required

to take cognisance when there is before it a request from the foreign state. He submitted that was a matter that had to be

considered by reference to Irish law, that is by reference to the relevant conventions or extradition arrangements and Irish domestic

law. He submitted that the European Convention on Extradition, 1957 (“the European Convention”), forms part of the domestic law.

15. Counsel for the respondent posed the question: in what sense was there a request from a foreign state? He submitted that a

request is made by a foreign state when it is made by an accredited diplomatic agent or by other means set out in the European

Convention.

16. Counsel made reference to Article 7 of the 2002 Framework Decision which provides for recourse to a central authority. Article 7

provides:

“1) Each Member State may designate a central authority or, when its legal system so provides, more than one central

authority to assist the competent judicial authorities.

2) A Member State may, if it is necessary as a result of the organisation of its internal judicial system, make its central

authority(ies) responsible for the administrative transmission and reception of European arrest warrants as well as for all

other official correspondence relating thereto.

Member States wishing to make use of the possibilities referred to in this article shall communicate to the General

Secretariat of the Council information relating to the designated central authority or central authorities. These indications

shall be binding upon all the authorities of the issuing Member State.”

17. Counsel for the respondent submitted that, while it might be argued that a request for onward extradition is included in the phrase

“all other official correspondence” in permitting a central authority to forward the request, in the present case the request had not

been forwarded by the relevant central authority which, according to the information supplied by the UK to the General Secretariat of

the Council is the Scottish Crown Office.

18. Counsel for the respondent submitted that counsel for the applicant had not pointed to any argument or any law supporting the

view that this Court ought to accept jurisdiction under the Act in circumstances where the usual rules as to how one state

communicates with another had not been followed. In particular, with respect to extradition and the European Convention, counsel

submitted that any question of foreign constitutional or administrative law was not cognisable by the court. For that reason, counsel

submitted Irish extradition law has traditionally provided two mechanisms for satisfying the court that any relevant request is properly

made: Section 23 of the Extradition Act, 1965, as amended, (“the Act of 1965”) provides for a request for the extradition of any

person to be made in writing and communicated by a) a diplomatic agent of the requesting country accredited to the state or b) any

other means provided in the relevant extradition provisions. That section reflects the contents of Article 12(1) of the European

Convention.

19. In reply, counsel for the minister submitted that it was being urged that there should be imposed some additional procedures not

provided for by the Act. Counsel submitted that the reference to the conventions and extradition was a reference to the substance

of the request for extradition and not the form.

The Court’s Analysis and Determination

20. At the outset, the Court observes that s. 24(1) of the Act of 2003 contains what appears on its face to be an anomaly. When

considering a request for surrender by an issuing judicial authority, the court must refuse that surrender if satisfied that both sections

(a) and (b) of s. 24(1) of the Act of 2003 have not been satisfied. Section 24(1)(a) refers to the requirement that the law of the

issuing state must have a provision that a person shall not be extradited to a third country without the consent of the High Court and

the minister first being obtained. A similar provision was contained in s. 24 as originally drafted. Nowhere in the rest of the section, or

indeed the rest of the Act of 2003, does it appear that any provision is made for the consent of the minster to be obtained before

consent can be given to an issuing state for subsequent surrender. Therefore, a requirement is imposed by s. 24(1)(a) on the law of

another member state to seek consent of the minister, when our domestic law makes no provision for consent to be given by the

minister.

21. Any difficulty that this requirement in s. 2(1) may or may not cause for surrender generally, is not necessary to determine in this

judgment. Suffice to say that the drafting of the section is, at best, loose. Article 28(4) of the 2002 Framework Decision makes it

clear that the only consent necessary is consent from the competent authority of the member state which surrendered the person.

The interpretation of that provision may be that the competent authority of the member state which surrendered the person is to be

equated with the executing judicial authority which surrendered the person. Perhaps it is also arguable that the competent authority

could be another non judicial authority in the member state. In the situation of Ireland, however, under s. 24 (4) of the Act of 2003,

the competency has been granted to the High Court. Indeed, it is unlikely that the law of another member state will make specific

reference to the High Court of Ireland. The laws of other member states are more likely to refer to “the issuing judicial authority” or

perhaps “competent authority”.

22. While it is difficult to understand the reference to the minister in s. 24(1) of the Act of 2003, it could have been prompted by the

fact that a subsequent extradition from a member state to a third state, does not concern the mutual recognition of criminal

decisions. Subsequent extradition is not covered by the system of free movement of judicial decisions in criminal matters which is

required as part of the objective set for the European Union (“EU”) to become an area of freedom, security and justice. As the

authors of “The European Arrest Warrant in Ireland” (Farrell and Hanrahan, Clarus Press, 2010) note at para. 1-03: “[h]istorically the

question of extradition has been a matter for the executive branch of government rather than the judicial branch. After all the nature

of a request for extradition is a request between the executive branches of two sovereign governments rather than as between their

respective judiciaries.”

23. Apart from the system of the backing of warrants, otherwise rendition, which had been in operation under Part III of the Act of

1965 between this jurisdiction and the UK, other extraditions were governed at an executive level. Even under Part III of the Act of

1965, there was an element of executive supervision over the backing of warrants.

24. The manner in which a request for subsequent surrender or extradition is determined following surrender on an EAW, differs from a

request for subsequent extradition to a third country where extradition had been granted under the Act of 1965. Under s. 21 of the

Act of 1965, it is the minister who must give the consent. Where a person has been surrendered to a member state under the Act of

2003, and is required for onward surrender to another member state, it is purely a decision of the High Court, pursuant to s. 23, as to

whether the consent to such a request should be granted. Section 24 has, despite the reference to the minister in s. 24(1), also

given the power to consent solely to the High Court.

25. In both s. 23 and s. 24 of the Act of 2003, it is provided that the request for onward surrender/extradition must be received in

writing from the issuing state. It is perhaps of some note that s. 23 of the Act of 2003 provides that the request for onward surrender

be received from the issuing state, even though the issuing state will have received a request, in the form of an EAW, from the

issuing judicial authority of another member state. That provision reflects the fact that an issuing judicial authority may have little, if

any, role to play in any further aspect of the person’s status in the country other than for the offence for which he or she has been

surrendered. It is really for the relevant authorities in the issuing state to pass on the request for surrender from another member

state to the executing judicial authority.

26. The one case that may be of possible relevance to this issue is the decision of the Supreme Court in Creaven v. Criminal Assets

Bureau [2004] 4 I.R. 434. That case concerned the power of a District Judge to issue a search warrant under s. 55 of the Criminal

Justice Act, 1994 pursuant to “a request received by [the minister] from the government of a country in relation to which the

section applies”. The subsection went on to state that the request must be made on behalf of, inter alia a prosecuting authority in

that country. In Creaven, the request had come from the prosecuting authority. The Supreme Court (Fennelly J.) stated at p. 467

that:

“Nor can I accept that it is for [the Minister] and for him alone, to be satisfied as to the provenance of the request. If

that were so, words such as ‘appearing to emanate from the government of a country’ would have been used. The

words actually used are: ‘received by him from a government’. This is a matter of objective fact, capable of being

determined objectively. For the reasons already given, I believe it is clear that this is a matter which falls within the

purview of the District Judge. I do not mean to suggest that he, any more than [the Minister], should ‘go behind’ the

terms of a letter containing a request. The sworn information will refer to the [Minister’s] direction and to the request.

The judge is certainly entitled to accept that a direction given by the [Minister] on the basis of a request which he says,

expressly or impliedly, emanates from the government of a designated country is properly based on such a request.

Here, however, the problem is that, as counsel for the applicants has urged, the request actually produced does not

even purport to emanate from the government of the United Kingdom or from any minister of that government. It

expressly states that it comes from a ‘prosecuting authority’. The District Judge is not entitled to close his eyes to the

fact that this is one of the bodies on whose behalf the government is entitled to transmit a request. It is, in that sense,

clear that, on its face, the request was not made in accordance with the provisions of subsection (4). Since subs. (4)

had not been complied with, the District Judge could not issue warrants, even if satisfied of the matters mentioned in

subs. (3), paras. (a) and (b).”

27. The Criminal Justice Act, 1994 gave a very specific requirement that a request for mutual assistance be received from a

government. That specific requirement is not contained in the Act of 2003, referring as it does to issuing state rather than

government. Creaven, however, establishes that where the letter of request demonstrates on its face that it does not come from the

entity required under statute to make the request, then such a request cannot be accepted as having been made in accordance with

the statutory provisions. In those circumstances, a court is not entitled to act on the basis of the request.

28. In the present case, it appears that both sides are in agreement that this Court must decide this issue based on the provisions of

Irish law with regard to the receipt of a request. A member state may decide that any particular entity, authority or individual may

make a decision with regard to a request for extradition. That is a matter of internal organisation of a member state’s political and/or

legal system. What is relevant in this jurisdiction is whether the request has come from the issuing state. Therefore, the Court has to

consider whether this request, coming from the Scottish ministers, is a request from an issuing state.

29. The issuing state for the purposes of s. 24(4) of the Act of 2003 is the member state that has, under its national law, given

effect to the 2002 Framework Decision, the judicial authority of which issued the EAW on which the original surrender was made. The

definition of “issuing state” in s. 2 of the Act of 2003 by reference to the “European arrest warrant” simply sets the context for

identifying the particular member state with which the request under s. 24 is concerned. This request comes about because of the

initial request of an issuing judicial authority of the issuing state of the United Kingdom of Great Britain and Northern Ireland. The

reference to the member state as one which is designated as having under its national laws given effect to the 2002 Framework

Decision, plays a very limited part in the definition. It could not be a member state which issued an EAW subject to enforcement in

this jurisdiction, unless it had been a designated member state. In essence, the definition brings us no further than understanding

that what s. 24 of the Act of 2003 requires is a request in writing from a member state for subsequent extradition of a person who

has been surrendered to that member state under an EAW issued by a judicial authority of that state.

30. The minister’s submission that this can be viewed on a simplistic basis, i.e. that it emanates from the UK is not an argument that

stands up to scrutiny. A letter from any official body within the UK or indeed any of its constituent jurisdictions might be said to come

from the UK, but only in the sense that it has originated from within the UK. Section 24(3) of the Act of 2003 requires that the issuing

state may request consent in writing, meaning it is the issuing state that must make the request.

31. On the face of the letter first placed before the High Court, the issuing state has not made the request. Indeed, the request on

its face records that the respondent was surrendered to Scotland, when in fact he was surrendered to the person duly authorised to

receive him in the UK. Although at one stage the letter references the UK’s Extradition Act, 2003, the letter does not state that this

is a request from the UK or that the Scottish Ministers are making the request on the part of the UK. It was only when explanation

was sought, that the Scottish Ministers stated that consent for onward extradition was sought on behalf of the UK, i.e. it was sought

on behalf of the issuing state.

32. It is not accepted, that because each country is entitled to order its own internal legal system to provide for any number of

authorities to make a request for either extradition or re-extradition to a third country, the Court is bound to give such a request the

status of a request from a member state. It is the issuing state that must make the request. While it is a matter for the issuing state

to order its affairs as it sees fit with regard to a decision concerning extradition, where that member state seeks to engage with the

competent authorities of another member state, it must do so in a manner that makes clear that the request is coming from the state

and not simply from an authority within the state. Thus, while it is quite permissible to have member states organising their own

extradition provisions so that, for example, Catalonia might make decisions with regard to extradition in respect of offences or persons

within their jurisdiction, the request for assistance from this State must come from the issuing state, namely Spain itself. To that

extent, counsel for the minister’s submission is accepted: it is not for this state to question how the UK chooses to order its own

extradition proceedings. What is of importance is how the UK communicates with this jurisdiction.

33. As stated above, this is not a question of the mutual recognition of judicial decisions in criminal law. The 2002 Framework Decision

makes it clear that the procedures for the determination of requests for subsequent extradition are to be determined by virtue of the

conventions which may apply and by domestic law. Counsel for the minister refers to the mutual trust which this country places in

other member states of the EU. This Court recognises and places mutual trust in the member states of the EU, but this Court is

obliged to operate the provisions of domestic law which apply to these requests. The principle of mutual trust is not violated where

the High court, in accordance with the 2002 Framework Decision and the domestic legislation, requires that the request for further

surrender be received from the issuing state rather than from a constituent part of that member state. Irish law requires that the

request be received from the issuing state.

34. Although the European Convention and the Order applying it to Albania, have “the force of law in accordance with its terms”

under s. 8(5) of the Act of 1965, the application of those terms must be read in light of the provisions of s. 24 of the Act of 2003.

Section 24 concerns the specific situation of a request for subsequent extradition to a third country following surrender to a member

state. The provisions of the Act of 1965 concern requests directly made by countries to which the Minister for Foreign Affairs has, by

order, applied Part II of the Act of 1965 to that country. Albania is a country to which Part II applies; however, Albania is not making

this request. Similarly, the UK is not making a request for extradition under the Act of 1965, but is making a request for consent to

onward extradition to a third country pursuant to the provisions of the Act of 2003. Thus, provisions regarding the transmission of

documents cannot be imported directly into the provisions of s. 24 of the Act of 2003.

35. What is of central importance is that the request, in writing, comes from the issuing state. To borrow the words of Fennelly J. in

Creaven: “This is an objective fact, capable of being determined objectively.” If the request was made through diplomatic channels,

it would certainly be established with clarity that it was a request of the member state. Even under the Extradition Convention and

the Act of 1965, it is anticipated that other means of transmission of requests can be utilised. What is important is that this State,

and in particular, pursuant to s. 24(4) of the Act of 2003, the High Court, can determine as a matter of objective fact if the request

comes from the member state, a judicial authority of which had issued the original EAW.

36. If an issuing state utilises a central authority, then the transmission of a request for consent through the central authority can be

readily understood to have come from a member state. It is a channel of communication that ensures that what has been transmitted

is from the issuing member state. In the present case, the Scottish Government did not utilise the machinery of the UK’s central

authority for Scotland to transmit this information. Instead, the Cabinet Secretary, on behalf of the Scottish Government, wrote

directly to our central authority. As stated above, the manner in which the letter was written did not make clear, that the request

was from the UK itself.

37. The response to the letter of the central authority now makes clear that the request is being made on behalf of the UK. It is a

matter for this Court to determine if, objectively speaking, this is a request in writing from the UK. The particular legislative

requirement is not that it must be received from the UK government, but that it be received from the UK state. In the present

circumstances, where this is a communication placed before the High Court by our central authority, which said communication

purports to come from a Scottish Cabinet Secretary on behalf of the Scottish Government, who seek consent for subsequent

extradition on behalf of the UK, this Court is quite satisfied that, objectively speaking, this is a request in writing from the issuing

state.