APPEAL COURT, HIGH COURT OF JUSTICIARY
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Lord Macfadyen
Lord Kingarth
Lady Cosgrove
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[2006]
HCJAC 62
Appeal
No: XJ250/06
OPINION OF THE COURT
delivered by LORD MACFADYEN
in
BILL OF ADVOCATION
by
DAVID JOHN CALDER
Appellant;
against
PROCURATOR FISCAL, Aberdeen
Respondent:
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Act: Bovey, Q.C., M. Hughes; George Mathers
& Co., Aberdeen
Alt: Miss Crawford; Crown Agent
14 July 2006
Introduction
[1] This Bill of Advocation relates to
proceedings under the Crime (International Co-operation) Act 2003 (the 2003
Act), which took place in the Sheriff Court
in Aberdeen. On 10
June 2004 the sheriff, on the application of the respondent,
pronounced an order allowing certain evidence to be received under section 15
of the 2003 Act, and ordering that it be forwarded to the requesting authority,
the United States Department of Justice.
In the Bill, the complainer seeks to have the order of the sheriff
recalled.
The legislation
[2] It
is convenient to begin by setting out the relevant provisions of the
legislative framework within which the proceedings before the sheriff took
place. Chapter 2 of Part 1 of the 2003
Act deals with the mutual provision of evidence, and sections 13 to 18 contain
provisions for assisting overseas authorities to obtain evidence in the United
Kingdom.
Sections 13 to 15 are of particular relevance in the present case.
[3] Section
13 provides inter alia as follows:
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"(1)
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Where
a request for assistance in obtaining evidence in a part of the United Kingdom is received by the
territorial authority for that part, the authority may ―
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(a)
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if
the conditions in section 14 are met, arrange for the evidence to be obtained
under section 15, ...
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(2)
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The
request for assistance may be made only by ―
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(a)
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a
court exercising criminal jurisdiction, or a prosecuting authority, in a
country outside the United Kingdom,
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(b)
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any
other authority in such a country which appears to the territorial authority
to have the function of making such requests for assistance, ..."
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The "territorial authority" in
relation to evidence in Scotland is the
Lord Advocate (section 28(9)(b)). By section 51(1) "evidence" is given a broad,
non-technical definition - it includes "information in any form and articles"
and giving evidence includes "answering a question or producing any information
or article".
[4] Section
14 provides inter alia as follows:
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"(1)
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The
territorial authority may arrange for evidence to be obtained under section
15 if the request for assistance in obtaining the evidence is made in
connection with ―
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(a)
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criminal
proceedings or a criminal investigation, being carried on outside the United Kingdom, ...
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(2)
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In
a case within subsection (1)(a) or (b), the authority may arrange for the
evidence to be so obtained only if the authority is satisfied ―
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(a)
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that
an offence under the law of the country in question has been committed or
that there are reasonable grounds for suspecting that such an offence has
been committed, and
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(b)
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that proceedings in respect of the offence have been
instituted in that country or that an investigation into the offence is being
carried on there. ...
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(3)
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The
territorial authority is to regard as conclusive a certificate as to the
matters mentioned in subsection (2)(a) and (b)
issued by any authority in the country in question which appears to him to be
the appropriate authority to do so."
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It is to be noted that in terms of
that section, assistance may be provided in two situations, namely where
criminal proceedings are already taking place in the country in question, and
where, although there are as yet no current criminal proceedings, a criminal
investigation is being carried on.
[5] Section
15 provides inter alia as follows:
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"(3)
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Where
the evidence is in Scotland, the Lord Advocate may by
a notice nominate a court to receive any evidence to which the request
relates which appears to the court to be appropriate for the purpose of
giving effect to the request."
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Section 15(5) gives effect to Schedule
1 in relation to proceedings before the nominated court. Paragraph 6 of Schedule 1 provides inter alia that:
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"(1)
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The
evidence received by the court is to be given to the court or authority that
made the request or to the territorial authority for forwarding to the court
or authority that made the request."
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[6] Section
49 empowers this court by Act of Adjournal to make rules of court in connection
with proceedings under Part 1 of the Act.
Paragraph 4 of Schedule 1 provides that such rules may make provision in
respect of the persons entitled to appear or take part in the proceedings and
for excluding the public from the proceedings.
Rule 36.9 of the Act of Adjournal (Criminal Procedure Rules) 1996 (as
amended) provides inter alia that in
proceedings before a nominated court:
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"(c)
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where
the request under section 13(1) of the Act of 2003 originates from current
criminal proceedings any party to or persons with an interest in those
proceedings may attend and, with the leave of the court, participate in any
hearing; ...
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(e)
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a
lawyer or person with a right of audience from the requesting country who
represents any party to the current criminal proceedings may participate in
any hearing;
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(f)
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a
solicitor or counsel instructed by any party may participate in any hearing;
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(g)
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any
other person may, with the leave of the court, participate in any hearing; ...
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(i)
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the proceedings shall be in private."
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Chronology of events
[7] The sequence of events which has led to
the present proceedings began in August 2003 when H.M. Customs and Excise
seized 5 litres of Gamma-Butrylactone (GBL) which had been sent to an address
in San Francisco by Natural Clean UK,
a business operated by the complainer.
GBL is a pre-cursor chemical used in the manufacture of
Gamma-Hydroxybutyrate (GHB), a class C drug specified in Part III of Schedule 2
to the Misuse of Drugs Act 1971 (the 1971 Act).
The United States Drug Enforcement Administration (DEA) was informed of
the seizure and an international controlled delivery was effected. Between 18 and 20 August 2003 a further eight
packages of GBL addressed by the complainer to various recipients in the United
States were seized, and further controlled deliveries were made between 29
August and 11 September.
[8] The
authorities in California instituted
a criminal investigation into whether the complainer's activities in relation
to GBL constituted criminal offences there.
On 14 January
2004 the US Department of Justice made a request for assistance
in connection with that investigation to the appropriate authorities in the United
Kingdom, seeking physical and electronic
surveillance of the complainer. On 11
March 2004 the sheriff at Aberdeen, on the application of the present
respondent, granted to an officer of the Scottish Drug Enforcement Agency
(SDEA) two warrants, at common law and under section 23(3) of the 1971 Act, to
search the complainer's premises at 9 Belmont Gardens, Aberdeen. The warrants were executed the following day. Various items were seized, including
quantities of GBL, a computer and various documents. The complainer was cautioned and charged with
inter alia contravention of section
4(2)(b) of the 1971 Act. On 15 March 2004 he appeared on petition at Aberdeen
Sheriff Court, charged with contravention of
that section.
[9] On
21 April 2004 the US
Department of Justice made a supplemental request for assistance, seeking
custody of the evidence seized under the search warrants, as well as documents
obtained from various other sources. On 30 April 2004 the Lord
Advocate, acting under section 15(3) of the 2003 Act, nominated the Sheriff
Court at Aberdeen to receive
such of the evidence requested as might appear to the court to be appropriate
for the purpose of giving effect to the request. On 1 June 2004 the US Department of Justice made a second
supplemental request seeking certain bank records. On 3 June the Lord Advocate made a further
nomination of Aberdeen Sheriff Court under
section 15(3). It is not disputed that
the requests for assistance were made by an authority entitled to make such
requests under section 13(2), or that the Lord Advocate was entitled to be
satisfied of the matters mentioned in section 14(2).
[10] On 10 June
2004 a hearing took place before the sheriff at Aberdeen for the
purpose of receiving evidence in pursuance of the supplemental requests for
assistance. The hearing was conducted by
a Procurator Fiscal Depute. As she
indicated (see page 1 of the Transcript of the proceedings) the hearing took
place in private. There were present an
Assistant US Attorney for the Northern District of California and a Special
Agent of the DEA, as well as officers of the SDEA. The complainer was not present and not
represented. Since there were at that
date no current criminal proceedings in California, the
complainer was not a party to, or a person interested in, such proceedings, and
was accordingly not entitled to be present in terms of Rule 36.9(c), or
represented by American or Scottish lawyers in terms of Rule 36.9(e) or (f). No question of whether he should be granted
leave to participate in the hearing in terms of Rule 36.9(g) was raised by the
Procurator Fiscal Depute. There is
nothing in the transcript to indicate that the sheriff applied his mind to
paragraph (g). In the course of the
hearing various pieces of evidence recovered in the search, as well as other
pieces of evidence which had been recovered under production orders, were
received by the court. Some of the
evidence received by the court was not evidence identified in the formal
requests, but had been the subject of informal requests (see page 4 of the
Transcript). All of the evidence was
presented as relating to the criminal investigation of the complainer's
activities in relation to the supply of GBL.
The sheriff, on the motion of the Procurator Fiscal Depute, accepted
that receipt of that additional evidence was appropriate for the purpose of
giving effect to the requests (see page 25 of the Transcript). The sheriff ordered that the evidence which
had been received be forwarded to the requesting authority.
[11] Under the federal law of the United
States, a criminal prosecution commences
when a grand jury files an indictment.
On 24 June
2004 a grand jury sitting in San
Francisco returned a superseding indictment
charging the complainer and one Jamie Norman Greiman with criminal offences
under the laws of the United
States and filed it with the US District
Court for the Northern District of California.
(The original indictment, which had been returned on 15 April 2004, named
only Greiman as a defendant.) The filing
of the superseding indictment of 24 June
2004 constituted the commencement of criminal proceedings against
the complainer. A second superseding
indictment was returned and filed on 12 August 2004.
The second superseding indictment contained 377 charges. Charges 1 to 4 were conspiracy charges. They related to alleged conspiracies (1) to
manufacture GHB, (2) to import GBL with intent to manufacture GHB, (3) to
import GBL knowing that it would be used to manufacture GHB and (4) to import
GBL. Charges 5 to 292 related to
individual drug transactions. The drugs
charges all involved alleged contraventions of sections of Title 21 of the US
Code. Charges 294 to 377 were money
laundering charges alleging contraventions of provisions of Title 18 of the US
Code. (Charge 293 related only to
Greiman.)
[12] Proceedings for the extradition of the complainer to the United
States were commenced in June 2004. On 28 June the sheriff at Edinburgh granted a
provisional warrant for the arrest of the complainer under sections 73(3) and
74(3) of the Extradition Act 2003.
Thereafter sundry procedure took place in the extradition process. There was also a related petition for
judicial review. It is unnecessary for
present purposes to go into the detail of those proceedings, save to note that
it was on 19 January 2006 in the course of a hearing in the extradition process
that the complainer and his advisers first became aware of the order made by
the sheriff in Aberdeen on 10 June 2004.
On 24
February 2006 the sheriff at Edinburgh in terms
of section 87(3) of the Extradition Act 2003 sent the case to the Scottish
Ministers for their decision whether the complainer was to be extradited. On 23 May 2006 the Scottish Ministers decided to extradite the
complainer. The complainer has appealed
to this court against the decisions of the sheriff at Edinburgh and the
Scottish Ministers, and a hearing in the appeal is set down for 23 August 2006.
Submissions for the complainer
[13] The complainer's submissions were founded
on two provisions of the European Convention on Human Rights, namely Article 1
of the First Protocol (Article 1), and Article 8. Article 1 provides inter alia as follows:
"Every
natural or legal person is entitled to the peaceful enjoyment of his
possessions. No one shall be deprived of
his possessions except in the public interest and subject to the conditions
provided for by law and by the general principles of international law.
The
preceding provisions shall not, however, in any way impair the right of a State
to enforce such laws as it deems necessary to control the use of property in
accordance with the general interest ...".
Article
8 provides as follows:
"1. Everyone has the
right to respect for his private and family life, his home and his
correspondence.
2.
There shall be no interference by a public authority
with the exercise of this right except such as is in accordance with the law
and is necessary in a democratic society in the interests ... for the prevention
of disorder or crime ...".
[14] The submission for the complainer was that
the requirement of lawfulness, expressed in these provisions of the Convention,
meant that there had to be not only compliance with the relevant provisions of
domestic law, but also compatibility with the rule of law. The domestic law had to be construed in a way
that was compatible with the complainer's Convention rights (Human Rights Act
1998, section 3; R v A [2002] 1 AC 45, paragraphs 29 to 30
and 46). The rule of law, as one of the
fundamental principles of a democratic society, was inherent in all of the
articles of the Convention (Iatridis v
Greece (2000) 30 EHRR 97, paragraph 58). The provisions of the domestic law therefore
had to be sufficiently precise and foreseeable (Hentrich v France (1996) 21 EHRR 199, paragraph 42; Beyeler v Italy (2001) 33 EHRR 52, paragraph
109). Moreover, the law must provide a
measure of legal protection against arbitrary interferences by public
authorities with Convention rights (Capital
Bank AD v Bulgaria, application no.
49429/99, 24 November 2005,
paragraph 134). The scope of any
discretion therefore required to be indicated with sufficient clarity to give
affected persons adequate protection against arbitrary interference (Zlínsat v Bulgaria,
application no. 57785/00, 15 June 2005,
paragraphs 97 and 98). The concepts of
lawfulness and the rule of law require that measures affecting fundamental
human rights be accompanied by appropriate procedural safeguards, and in
ascertaining whether that condition has been satisfied, a comprehensive view
must be taken of the applicable procedures (Hentrich,
paragraph 49; Jokela v Finland, application no. 28856/95, 21
May 2002, paragraph 45). Similar
procedural safeguards applied in relation to article 8 (Hasan and Chaush v Bulgaria,
application no. 30985, 26 October
2000, paragraph 84).
[15] Seeking to apply these considerations to
the circumstances of the present case, counsel for the complainer submitted
that the decision of the sheriff was contrary to the Convention in three
respects. First, there were insufficient
procedural safeguards, in respect that the proceedings before the sheriff were
not intimated to the complainer, so as to give him an opportunity of seeking
leave under rule 36.9(g) to participate in the proceedings. Secondly, the procedural safeguards were
insufficient in respect that, despite the terms of rule 36.9(g), no
consideration was given to whether the proceedings should have been intimated to
the complainer. Thirdly, the test of legality
was not met, because the permissible interference with the complainer's
convention rights was not sufficiently prescribed by law.
[16] In elaborating the submission based on the
absence of intimation or notification of the proceedings to the complainer,
counsel drew attention to a Home Office circular dealing with Part 1 of the
2003 Act which, at paragraph 47, stated inter
alia that: "The court will ... notify parties with interests in the
proceedings." The duty of notification
was thus incumbent on the court. In
terms of rule 36.9(c), an accused person in current criminal proceedings was
entitled to attend as of right. The
reference to "any other person" in rule 36.9(g) included a person who was the
subject of a criminal investigation.
Such a person might participate in the hearing with leave of the
court. There was no good reason why the
complainer should not have been notified of the hearing. In the answers to the Bill of Advocation the
Crown aver:
"... intimation to the complainer of proceedings before the
nominated court would have been tantamount to intimation of an ongoing
investigation into criminal conduct over which the Courts of the United
States of America had jurisdiction. It would not have been in the interests of
justice for such intimation to have been given."
That
reason for not notifying the complainer was, it was submitted, insufficient to
justify interference with his Convention rights. Counsel accepted that if there had been
danger of property being put away if the complainer was notified, that might
justify the court, on considering the matter, to decline to notify the
complainer. But here the complainer
already knew about the allegations against him as a result of the Scottish
proceedings, and the property was already in the hands of the Scottish
prosecuting authorities. The Californian
prosecutor and the representatives of the DEA were in Scotland in the period
before the hearing, and present at it, and could have indicated any specific
ground for apprehending that intimation of the proceedings to the complainer
would prejudice their investigation, but they did not do so. In these circumstances the reference to the
interests of justice in the answers was insufficiently specific.
[17] It was further submitted on the complainer's
behalf that if he had had intimation of the hearing, he would have applied to
be present and legally represented, and to take part in the proceedings. There would have been no reason for the
sheriff to refuse such an application.
The complainer would have made submissions against the granting of the
order. He would have done so, in
particular, on the ground that to send the evidence to the United
States when there were current proceedings
based on the same material in Scotland
involved pre-judging the issue of where he should stand trial. By sending the evidence to the United
States, the Scottish prosecuting authorities
put it beyond their power to prosecute the complainer in Scotland. The fact that in the circumstances that now
prevailed there was only a "mere possibility" of prosecution in Scotland
had been taken into account in the extradition proceedings.
[18] Counsel made reference to Harris, Complainer 1994 JC 18, a case
under section 2 of the Criminal Justice Act 1987, and accepted that it afforded
some support for the competency of refusing to intimate proceedings to the
person concerned if to do so would give rise to a possibility of frustrating
the criminal investigation to which they related. He accepted that intimation could be refused
if there was ground for apprehending such frustration. It was, however, for the court to consider
whether intimation would have such an effect.
If that was not the duty of the court, there were no adequate procedural
safeguards to support the legality of the interference with the complainer's
Convention rights. It was clear from the
transcript of the proceedings before the sheriff that the sheriff was not
informed that the complainer had been interviewed by the police in Scotland
in terms that disclosed to him that the investigation was concerned inter alia with supply of GBL in the United
States.
The sheriff thus had not had before him facts which had a bearing on the
likelihood of frustration of the investigation.
Indeed it was evident that the sheriff had simply not considered the
question of intimation at all. The fact
that the sheriff had received evidence which was not evidence to which the
requests related demonstrated that the procedure of a hearing before the
sheriff was not by itself a sufficient safeguard. It was necessary in addition that the sheriff
consider intimation to the person under investigation. If that had been done, intimation would have
been ordered, because there was in the circumstances no risk of frustration of
the investigation. If intimation had
taken place and the complainer had been legally represented at the hearing, it
was inconceivable that the sheriff would have made the order that he did.
[19] Although in the Bill of Advocation the
remedy sought is (a) the recall of the sheriff's order and (b) a remit to the
sheriff to reconsider the request for assistance anew, counsel ultimately
confined his motion to the first of these steps. He submitted that such an order would be
effective, despite the fact that the evidence in question is in the United
States.
The United States
authorities would not wish to have evidence which had been obtained without
lawful authority, and would therefore take steps to regularise the position,
either by seeking lawful authority, or by returning the evidence to Scotland.
Submissions for the respondent
[20] Counsel for the respondent submitted that
the sheriff's decision was lawful and compatible with the complainer's rights
under article 8 of the Convention and article 1 of the First Protocol. She therefore submitted that the Bill should
be refused. She also submitted that in
the circumstances the Bill was incompetent, and should be refused on that
account.
[21] It is convenient to take note first of the
submission that the Bill of Advocation is incompetent. The proposition relied upon was that a Bill
of Advocation cannot
be used as a means of obtaining review of a final decision on its merits. The Bill of Advocation, in seeking to have
the sheriff's decision recalled, and a remit made to the sheriff to reconsider
the request for assistance anew, in effect sought to review the merits of the
sheriff's decision. The sheriff's
decision was a final disposal of the section 15 application. Reference was made to MacLeod v Levitt 1969 JC
16, in which Lord Cameron said (at 19):
"The limited sphere of competence of the process of
advocation lies in the correction of irregularities in the preliminary stages
of a case".
Reference
was also made to Durant v Lockhart 1985 SCCR 72 and H, M, Advocate v Khan 1997 SCCR 100.
[22] Assuming, against her preliminary
submission, that the Bill of Advocation was competent, counsel for the
respondent submitted that the complainer's Bill disclosed a fundamental
misunderstanding of the nature of proceedings under sections 13 to 15 of the
2003 Act. In statement 15 of the Bill it
was averred that had the complainer been able to take part in the proceedings
before the sheriff, it would have been open to him to draw the sheriff's attention
to the existence of the criminal proceedings against him in Scotland, and the
extent to which the transfer of evidence to the United States prejudged any
extradition request that might be made in respect of him. On a sound view of sections 13 to 15, no
question of pre-judging possible extradition proceedings was before the
sheriff. At the stage of the proceedings
before the sheriff, it was not open to him to speculate as to where the
criminal investigation being conducted in the United
States might lead, or whether a request for
extradition might be made, or what decision might be appropriate in relation to
such a request, if made. Nor was it open
to the sheriff to speculate as to what decision might be made in the public
interest by the Lord Advocate in relation to criminal proceedings in Scotland. The purpose of the 2003 Act, as set out in
the long title, was inter alia "to
make provision for furthering co-operation with other countries in respect of
criminal proceedings and investigations".
Proceedings under sections 13 to 15 had the limited purpose of enabling
the relevant authorities in the United Kingdom
to make available to relevant authorities in another country
evidence that might facilitate criminal proceedings or criminal investigation
in that other country. Such proceedings involved
no determination of guilt or innocence of crime, nor did they bear on whether
extradition would be sought, or, if sought, would fall to be granted. They were no more than an evidence gathering
process (R v Secretary of State for the Home Department, Ex parte Zardari [1998]
EWHC Admin 305, per Lord Bingham of Cornhill CJ at paragraph 14). Where they related to a criminal
investigation, the permissible area of search was wider than where they related
to current criminal proceedings (R v Home Secretary, Ex parte Fininvest S. p. A. [1997] 1 WLR 743, per Simon Brown LJ at 752D).
The interest of the individual in the proceedings under section 15
varied according to whether there were current criminal proceedings against him
in the requesting country, or whether matters there had not yet proceeded
beyond a criminal investigation.
[23] That distinction was reflected in Rule
36.9. Paragraph (c) gave a right to the
subject of current criminal proceedings to be present, and to seek leave to
participate in the hearing. The
catch-all provision of paragraph (g), which applied to inter alios a person who was the subject of criminal investigation,
gave no right to be present, but contemplated that leave to participate might
be granted. The latter provision could
be relied upon by a person who was the subject of a criminal investigation and
became aware of the hearing (as happened in R
v Secretary of State for the Home
Department, Ex parte Zardari - see paragraph 5), but gave no right to
receive notice of that hearing. The
distinction was reflected also in the domestic rule that required intimation of
an application for a warrant only after committal. The respondent's contention that it was not
in the interests of justice in the present case that notice of the hearing
should have been given to the complainer was based in part on the consideration
that the Rules provided that the proceedings would be private (rule 36.9(i);
rule 36.11(2); see also Mutual Legal Assistance Guidelines, (Third Edition) May
2006, page 20, as to the confidentiality of the process), and partly on the
obvious consideration, presumptively applicable in such circumstances, that to
notify the suspect of the proceedings would enable him to take steps either to
thwart the recovery of evidence, or more generally to frustrate the
investigation.
[24] Counsel submitted that the sheriff's
jurisdiction under section 15 was essentially administrative. It involved no adjudication inter partes.
It was an administrative process which followed upon the Lord Advocate's
nomination of the particular court to receive the evidence. The only discretion to be exercised by the
sheriff was in determining whether receipt of the evidence was "appropriate for
the purpose of giving effect to the request" (R v Bow Street Magistrates'
Court, Ex parte Zardari [1998] EWHC Admin 461, per Latham J at paragraphs
10 and 11). The use to be made of the
evidence was a matter for the requesting state (R v Secretary of State for
the Home Department, Ex parte Zardari, Per Lord Bingham
of Cornhill CJ at paragraph 14).
Representations of the sort that the complainer said he could have made
if he had had notice of the hearing and had been given leave to participate
would have been irrelevant to the limited decision which the sheriff had to
make.
[25] In relation to the complainer's
submissions in respect of article 8 of the Convention and article 1 of the
First Protocol, counsel for the respondent submitted that the proceedings under
section 15 satisfied the tests of lawfulness and proportionality. In so far as the provision of evidence to the
United States
might be seen as engaging the complainer's rights under those articles, it was
done in accordance with the law as laid down in the 2003 Act. It was not arbitrary. The complainer's susceptibility to such
procedure was clearly laid down in the 2003 Act, and was thus foreseeable. The purpose of the procedure and the
circumstances in which it might be invoked were clearly laid down. The safeguards varied according to whether
the evidence was sought for current criminal proceedings or for a criminal
investigation. In the latter case,
however, the need for a hearing before the sheriff provided independent
judicial control of the administrative process.
Intimation to the person under investigation was not a necessary
safeguard in such a case.
The complainer's response
[26] Counsel for the complainer responded to
the submissions of counsel for the respondent by making a number of brief
points. First, he submitted that the attack
on the competency of the Bill of Advocation was misconceived. He was not seeking review of the sheriff's
decision. He was seeking to challenge
the preliminary irregularity that the sheriff had failed to secure that the
hearing was intimated to the complainer, so that he might make an application
for leave to participate. So viewing the
purpose of the Bill, MacLeod v Levitt was in the complainer's
favour. Secondly, in the context of the
article 8 and article 1 submissions, he submitted that it was of no avail to
categorise the proceedings before the sheriff as administrative. However they were classified, appropriate
safeguards of the complainer's Convention rights were required. Thirdly, he stressed that his submission was
not concerned with proportionality. He
was concerned with the earlier question of lawfulness. Fourthly, he submitted that such indications
as there were that proceedings under the 2003 Act would be kept confidential
did not guarantee that they would be kept secret from the suspect. Finally, the analogy with a domestic warrant
was inept, because in the present case the evidence had already been taken
beyond the complainer's control, and he already knew that there was an
investigation into his conduct in progress in the United
States.
Discussion
[27] We reject the submission advanced by
counsel for the respondent that the Bill of Advocation is incompetent. The parties were at one in relying on the
observation of Lord Cameron in MacLeod v
Levitt at page 19 to the effect that
a Bill of Advocation is competent only to correct irregularities in the
preliminary stages of a case. The
difference between them lay in the characterisation of the aim of the remedy
sought by the complainer. The respondent
characterised it as an attempt to review the final decision of the sheriff on
its merits. The complainer, on the other
hand, at least as his submission was developed before us, focused on the fact
that the sheriff did not consider notifying the complainer of the section 15
hearing, and consequently did not give such notification. That was said to be contrary to the
complainer's Convention rights. In our
view the complainer's characterisation of the issue raised in the Bill is
preferable, and on that view of the matter, the Bill is competent.
[28] The complainer's submissions are founded
on the proposition that the proceedings before the sheriff infringed his
Convention rights under article 8 of the Convention and article 1 of the First
Protocol. Since we heard no detailed
submissions on the point, we proceed on the assumption that in the
circumstances those Convention rights are engaged. The issues on which the parties focused were
whether, in so far as article 1 of the First Protocol was engaged, any
deprivation of the complainer of his possessions was "subject to the conditions
provided for by law", and, in so far as article 8 was engaged, any interference
with the complainer's article 8.1 right was "in accordance with the law". These provisions raised the issue of the
"lawfulness" of the interference.
Counsel for the complainer stressed that his contention was that the
interference was unlawful, not that it was disproportionate. We are therefore able to concentrate our
attention on the issue of lawfulness.
[29] Before doing that, however, it is in our
opinion important to place the issue which the complainer raises in its proper
context. That involves reaching an
understanding of the nature and purpose of proceedings under section 15 of the
2003 Act. As we have already noted, the
purpose of the 2003 Act, as set out in the long title, is "to make provision
for furthering co-operation with other countries in respect of criminal
proceedings and investigations". The
investigations in respect of which the requests for assistance were made by the
United States
authorities in the present case were investigations into suspected serious
international drug dealing offences.
There was therefore a strong public interest in affording assistance,
provided the control mechanisms incorporated in the statute were allowed to
operate appropriately.
[30] These control mechanisms are reflected in
the statutory provisions. By virtue of
section 13(3) a request for assistance must come from a criminal court, or
prosecuting authority or other authority having the function of making such
requests in the requesting country. By
virtue of section 14(1), the request for assistance must relate to the
obtaining of evidence in connection with proceedings of various defined sorts,
including (by paragraph (a)), criminal proceedings or a criminal
investigation. Further, by section 14(2)
the territorial authority must be satisfied (a) that an offence under the law
of the requesting country has been committed or there are reasonable grounds
for suspecting that that is so, and (b) that proceedings have been instituted
in that country or that an investigation is being carried out there. There is no dispute that all of these
conditions are satisfied in the present case.
[31] It is also appropriate to note at this
stage the scope of the jurisdiction conferred on the sheriff by section
15. The decision in principle that
assistance should be afforded in response to a request is for the Lord Advocate
to make (section 15(3)). He gives effect
to such a decision by nominating a court to receive evidence. The jurisdiction of the sheriff is to
determine whether the evidence which he is asked to receive is "evidence to
which the request relates which appears to the court to be appropriate for the
purpose of giving effect to the request".
The sheriff has no broader discretion to exercise than that (R v Bow Street Magistrates' Court, Ex parte Zardari,
per Latham J at paragraphs 10 and 11).
His sole concern is with whether the evidence which he is asked to
receive is within the proper scope of the request. In the present case, the sheriff took a
relatively broad view of the scope of his power under section 15(3), in that
some of the evidence which he allowed to be received was not expressly identified
in the requests. Although counsel for
the complainer submitted that the sheriff had erred in that respect, he did not
on that account attack the competency of the sheriff's order, and we are not
persuaded that the broad view taken by the sheriff was erroneous. What is, in our view, clear from the terms of
section 15(3) is that the sheriff is concerned only with a process of evidence
gathering. It is no part of his function
to consider what may be made of the evidence by the requesting state. Nor is it part of his function to consider
whether the evidence may lead the requesting state to seek the extradition of
the suspect. These are matters for the
requesting state (R v Secretary of State for the Home Department,
Ex parte Zardari, at paragraph 14).
Equally, it is no part of the sheriff's function to consider whether
sending the evidence to the requesting state will affect the ability of the
Scottish prosecuting authorities to prosecute the suspect in Scotland. That is a matter for the Lord Advocate in
deciding whether in principle to give effect to the request by nominating a
court to receive the evidence.
[32] We accept that the requirement of
lawfulness expressed in articles 8 and 1 demands more than compliance with the
relevant provisions of domestic law. The
rule of law is inherent in these and other articles of the Convention, and to
be lawful an interference with Convention rights must also be compatible with
the rule of law. The provisions of the
domestic law must therefore be sufficiently precise and foreseeable in effect. There must be a measure of legal protection
against arbitrary interference by public authorities with Convention
rights. The scope of any discretion must
be adequately defined. Measures
affecting fundamental rights must be accompanied by appropriate procedural
safeguards. The issue in the present
case is not with the acceptability of those general propositions, but with the
proper application of them to the circumstances of the case. In our opinion the purpose of the 2003 Act is
clear. It is designed to facilitate
international co-operation in the investigation and prosecution of crime. The scope for providing assistance to another
state in that connection is clearly defined, in particular by sections 13(1)(a) and (2), and 14(1) and (2). The decision in principle to afford
assistance is in terms of section 15(3) a matter for the Lord Advocate, a law
officer who in relation to the prosecution of crime exercises his powers in the
public interest. In so far as the
sheriff has a decision to make, it is a clearly defined decision of relatively
narrow scope, namely whether the evidence which he is asked to receive is
"evidence to which the request relates which appears ... to be appropriate for
the purpose of giving effect to the request" (section 15(3)). The jurisdiction conferred on the sheriff is
defined in such a way as to exclude the exercise of an unfettered or
unpredictable discretion on his part.
Moreover, the introduction of the need for a hearing before the sheriff,
an independent judicial officer, operates as a safeguard against an arbitrary
administrative decision. For all these
reasons, we do not consider that sections 13 to 15 fail the test of lawfulness.
[33] The narrower focus of the complainer's
submissions relates to the provisions regulating entitlement to attend and
participate in the hearing before the sheriff.
The principal relevant provisions are those of rule 36.9 of the Act of
Adjournal. A distinction is drawn
between cases where there are current criminal proceedings and cases where
there is only a criminal investigation.
In the former case, the accused person is entitled to attend and may
with leave participate (paragraph (c)), while in the latter the suspect may
with leave participate, but has no entitlement to attend. There is thus no express requirement that the
mere suspect be notified of the proceedings.
The submission was that there was no justification for that
distinction. There was no good reason
why a suspect should not be notified of the section 15 hearing. The absence of a provision requiring such
notification to be given, or at least actively considered by the sheriff,
resulted in a lack of sufficient procedural safeguards. We do not accept those propositions. The distinction drawn in the Act of Adjournal
is in our opinion readily understood. It
is in accordance with principle that, once the stage is reached that criminal
proceedings have been commenced, the accused person should in general have
notice of any procedural step taken in relation to the case. Even then, however, it is to be noted that
the sheriff retains a discretion not to give the
accused person leave to participate. On
the other hand, when matters have not proceeded beyond the stage of
investigation, the risk that giving the suspect notice of the proceedings might
prejudice the investigation in any manner of way is obvious. Although the analogy with the procedure for
grant of a search warrant in domestic procedure is not perfect, the underlying
rationale is the same. There is, no
doubt, something to be said for the proposition that in the circumstances of
the present case some of the risks to the investigation were reduced. The fact that much of the evidence had
already been taken out of the complainer's control in pursuance of the domestic
search warrants can no doubt be said to have reduced the risk that evidence
would be put away. The fact that, in the
course of a police interview, he had been given information disclosing the fact
of the investigation in the United States
no doubt could be said to diminish the effectiveness of not notifying the
complainer of the proceedings before the sheriff. Notwithstanding these considerations,
however, we are not persuaded that in general there is no justification for
withholding notification of the suspect in cases where the evidence is sought
in connection with a criminal investigation.
The scope for steps being taken to hamper or frustrate the investigation
is clear, and is in itself an adequate justification for making the distinction
reflected in paragraphs (c) and (g) of rule 36.9. We therefore reject the submission that the
absence of a requirement to notify, or consider notification of, the suspect of
the section 15 hearing involves an absence of sufficient procedural safeguards,
and thus results in a failure to pass the test of lawfulness.
[34] We would add three further
observations. First, we are not
persuaded that it is self evident that if the sheriff had been obliged to
consider notifying the complainer, he would have decided to order such notification. Secondly, if the sheriff had ordered such
notification, it is not clear that, if the complainer had applied for leave to
participate, that application would have been granted. Thirdly, if the complainer had been given
leave to participate, the point which counsel indicated would have been argued
would not have been relevant to the issue to be determined by the sheriff. As counsel indicated in his submissions, the
point which would have been made would have involved the proposition that
sending the evidence to the United States
would have pre-judged the issue of whether the appellant could or should be
prosecuted in Scotland
rather than in the United States. As we have already said, it is not part of
the sheriff's jurisdiction to predict what use might be made of the evidence by
the requesting state. It is not for him
to take a view on whether extradition will be sought, or what arguments might
be deployed in resisting extradition, if sought. Nor is it any part of the sheriff's function
to assess what impact sending the evidence to the United States would have on
the practicability of bringing criminal proceedings in Scotland, or what affect
that might have in the context of extradition proceedings. The sheriff is bound to proceed on the basis
that the Lord Advocate has given such matters appropriate consideration before
nominating the sheriff under section 15(3).
In these circumstances, we are of opinion that, had the complainer been
given notification of the hearing, and thereafter leave to participate in it,
the submissions which he wished to lay before the sheriff would have had no
relevant bearing on the sheriff's decision.
Decision
[35] We therefore refuse the Bill of
Advocation.
