Relatives of wanted Canadian who helped him flee country can be extradited with him

About this case:

• Citation:
  [2025] SC EDIN 44
• Judgment:
  External link
• Court:
  Sheriff Court
• Judge:
  Sheriff Julius Komorowski

Barry Evans and Robert Busby Evans were wanted in Canada for offence of being accessories after the fact to a manslaughter committed by Robert Evans (junior), the first respondent’s nephew and second respondent’s son. The question considered by the court was whether assisting a man to flee other than avoiding immediate apprehension constituted a crime in Scotland as to allow for extradition under the dual criminality rule.

The case was heard by Sheriff Julius Komorowski, with Ryan-Hulme appearing for the Lord Advocate on behalf of the requesting state and Loosemore, advocate, for the requested persons.

Interference with the course

It was alleged by the Canadian authorities that on 17 August 2023, Robert Evans (junior) struck the victim, Sharifur Rahman, outside the restaurant he owned where he had just had a meal along with his uncle Barry Evans and his brother. After he ran from the scene, Barry Evans drove towards him and allowed him to get in his car before driving to another town 40 mile away rather than to the hotel they had been staying in.

The next day, Robert Busby Evans arranged for his son to take a one-way flight to the UK. It was also alleged that Barry Evans attended at the hotel that he and Robert Evans were supposed to stay in the previous night, retrieved his security deposit, and removed his guest registration in order to avoid him being placed at the scene of the crime.

It was noted that there was no legal rule in Scots law making a person complicit in a crime where they assisted the offender subsequent to that crime being committed, nor any reported prosecution of aiding an offender to flee other than to avoid apprehension from those in ongoing pursuit. An affidavit was provided to the court by a prosecutor in the Province of Ontario, who deponed that the definition of accessory after the fact in the Canadian criminal code was one who, knowing that a party had been a party to an offence, receives, comforts, or assists that person for the purpose of escape.

For the requested persons it was submitted that the only reported instances of offences of attempting to defeat the ends of or pervert the course of justice involved the manipulation of evidence in some way or escape from active pursuit. There was no obligation on a person to wait around for police to apprehend them and Robert Evans had not been identified as a suspect before he left Canada. Barry Evans’ retrieval of his own documents from the hotel was not manipulation of evidence, nor was removal of the guest registration as it had no connection to Robert Evans.

On behalf of the Lord Advocate it was submitted that the essence of the crime of attempting to defeat the ends of justice was an interference with what would otherwise be expected to come to pass in the ordinary and uninterrupted course of justice. The alleged actions of Barry Evans concerned steps to avoid evidence becoming available, and both persons helped Robert Evans flee from the locale of the alleged crime and then from Canada entirely.

Existing course not essential

In his decision, Sheriff Komorowski began by observing: “I agree with the submission for the Lord Advocate that whether the course of justice has begun is not the crucial question. Indeed, despite the central place that question appears to occupy in some of the more recent cases on the subject, I think questions as to when that course has begun, what is constituted by it or what forms part of it, are a distraction. I consider that placing this as an essential requirement is contrary to precedent.”

He added: “If I am right that an existing course of justice is not essential, then it would explain the commonplace practice in murder cases of charging an accused also with an attempt to defeat the ends of justice where steps are taken to conceal, dispose or destroy the body. I understand such charges are prosecuted without any averment or necessarily any evidence that at the time of the concealment there was yet any police investigation. Indeed, the object of the exercise might often be to avoid there ever being an investigation.”

Considering the conduct of the requested persons, the sheriff said: “With respect to the allegations against Barry Evans concerning items taken by him from the hotel the day after the incident, the dual criminality requirement is met. It does not matter whether there was in fact any investigation ongoing or whether Barry Evans knew of any investigation. I consider the alleged connection between these items and avoiding the identification of Robert Evans (junior) as a perpetrator quite tenuous. But it is not for me to decide what inferences might properly be drawn from the behaviour alleged as to what the purpose was in taking these items.”

He concluded: “That Robert Evans (junior) was not a wanted man when he left Canada entire is irrelevant. The Canadian authorities essentially allege his departure was facilitated to avoid his apprehension if and when he became a wanted man. Accordingly, I do not accept that the administration of justice can only be offended against by means of evading apprehension when there is an immediate prospect of this or at least where the person has been identified as a suspect.”

The sheriff therefore found that for each requested person, the requirement of dual criminality for extradition from Scotland was met.