Man facing drugs charges in Spain has appeal against ‘unjust’ extradition refused



Lord Carloway
Lord Carloway

A man accused of drug dealing in Spain who challenged a sheriff’s decision to order his extradition has had his appeal refused.

The Criminal Appeal Court refused the appeal after ruling the appropriate court to hear any human rights argument based on “injustice or oppression” would be the Spanish court.

The Lord Justice General, Lord Carloway, sitting with Lady Dorrian and Lord Bracadale, heard that the applicant Robert Cameron was seeking leave to appeal against an order of the sheriff at Edinburgh, dated 29 October 2015, ordering his extradition to Spain, which is a “category 1” country in terms of the Extradition Act 2003.

The court was told that he faced a charge alleging that, in Benidorm on 19 February 2010, he gave a man called Kris McDonald what appeared to be a packet of cigarettes, but which in fact contained four wraps containing 25.76 grams of cocaine with a market price of €1,525.

At the time of his detention by the Spanish police, shortly after the alleged transaction, he had some €888 in cash in his possession.

However, the applicant tabled a number of grounds upon which he maintained that the sheriff had erred.

The first was that the sheriff had been wrong in deciding that it would not be “unjust” to order extradition despite the passage of time - a period of three years and two months between his detention in Spain and the intimation of the charge against him.

An important witness, notably Mr McDonald, who would be an incriminee in the trial, was also said to be “unavailable” and “untraceable”.

The second ground was that the sheriff had erred in holding that it would not be “oppressive” to extradite him, as he had travelled to Spain on some four occasions since his original detention without any hindrance and he had an expectation that no proceedings would be raised.

Linked to these grounds was a third which was dependant on the success of the first two, namely that in considering the applicant’s right to a fair trial under article 6 of the European Convention on Human Rights, the sheriff had erred in law having regard to the absence of the incriminee.

The sheriff reasoned that the argument in connection with injustice was flawed in respect that the absence of the witness was not related specifically to the passage of time.

In relation to oppression, the sheriff declined to speculate on what had been going on in the period between detention and charge.

He rejected the submission that the applicant had not been aware of pending charges, standing what had happened to him when he had been detained and the fact that a large amount of money had been seized and retained by the Spanish police.

But the appellant referred to the general test set out in the 2015 case ofLagunionek v Lord Advocate, which involved several considerations.

The overriding one was of “injustice or oppression by reason of the passage of time”.

It was said that “injustice and oppression in this context is directed to hardship to the requested party resulting from changes in circumstances that have occurred during the period between the charge and the request”.

It went on to state that the concept of injustice required the requested court to consider, in the facts of any particular case, “whether a fair trial is impossible, having regard to the safeguards which exist under the domestic law of the requesting State”.

It added that Council of Europe countries “present no problems” as all are subject to article 6 of the Convention and should readily be “assumed capable of protecting an accused against an unjust trial”.

A further consideration was whether “oppression or injustice requires personal or family hardship greater than what is inevitable and inherent in extradition for a criminal trial in another country”.

The final consideration was that the focus, where delay is alleged, is not on the length of time and the reasons for it but on the “demonstrable effect that … has had on the individual”.

The court considered whether there was an arguable case for presenting any of these grounds in an appeal, but the judges reached the conclusion that there was “no such case” and therefore refused leave to appeal.

Delivering the opinion of the court, the Lord Justice General said: “This was a careful and detailed decision from the sheriff, which is clearly explained in his report. The court is unable to identify any error in the sheriff’s reasoning.

“In particular, the absence of a witness does not of itself constitute injustice or oppression. It is a common aspect of criminal trials and other litigation. Where it occurs, the court of first instance requires to consider what effect the absence of the witness might have.

“As has been repeatedly said, Council of Europe countries, of which Spain is one, are ‘assumed’ to be capable of applying Convention jurisprudence. That being so, if there is a substantial argument based upon delay, the absence of a witness or any other consideration which might affect the applicant’s Convention Art 6 rights, the appropriate court to hear the submission must be the court in Alicante.”

© Scottish Legal News Ltd 2020



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