American wanted for sex offence trial in Utah loses final appeal against extradition

About this case:

• Citation:
  [2023] HCJAC 50
• Judgment:
  External link
• Court:
  Appeal Court of the High Court of Justiciary
• Judge:
  Lady Dorrian

Nicholas Rossi challenged the decision of the Scottish ministers to extradite him for trial in the USA on the basis of a wide range of appeal grounds ranging from infringement of his ECHR rights to corruption of various judicial bodies.

The appeal was heard by Lady Dorrian, the Lord Justice Clerk, with Lord Malcolm and Lord Armstrong. The appellant represented himself while Cameron KC appeared for the Crown.

Victim of conspiracy

The appellant was subject to two separate extradition requests, one for trial in Utah in respect of a rape said to have been committed in September 2008 and another for the rape and sexual battery of two other complainers in November and December 2008. On 11 November 2022, a sheriff found that the appellant, on the balance of probabilities, was the person named in the first extradition request, a decision followed on the basis of res judicata in respect of the second request.

In affidavits from two District Attorney offices in Utah, it was stated that the appellant was a convicted sex offender from Ohio who had failed to register while in Utah or comply with notification requirements to which he was subject. He fled to Ireland in 2017 and was later provisionally arrested at Queen Elizabeth University Hospital on 13 December 2021 pursuant to an Interpol Red Notice.

Three grounds of appeal were relied upon by the appellant. These were that his extradition was barred by passage of time, that it would be incompatible with his rights under the European Convention on Human Rights, and that his physical or mental condition made it unjust or oppressive to extradite him. In his note of appeal the appellant alleged corruption on the part of Crown, that he was the victim of a conspiracy orchestrated by the Utah County Attorney, and that he was abused by his previous legal representatives.

A number of preliminary matters were also raised by the appellant at the appeal hearing, including requests to lead additional evidence, a motion for bail, and a motion for reporting restrictions to be imposed on the basis of erroneous information being printed in the press. All of these motions were refused by the court on the grounds that no basis had been established for granting any of them.

Strong public interest

Delivering the opinion of the court, Lady Dorrian observed: “It was apparent from the outset that the appellant was approaching matters on the basis that this appeal was a rehearing of all issues, and an opportunity to lead evidence, or further evidence, rather than the limited kind of review permitted under statute. When the court asked him to advance submissions on the grounds of appeal, he repeatedly sought to lead evidence, and asked for adjournments to enable him to do so. The court made it clear that the effect of the decisions on the preliminary issues was that this would not be allowed.”

She continued: “He only desisted from further pursuit of this line when the court indicated that it would have to consider whether further challenges of this kind, when the court had repeatedly indicated that the ruling on the issue could not be reopened, might amount to contempt of court. In fact he repeatedly presented material to the court which was effectively hearsay evidence in contravention of the court’s ruling, and was highly resistant to the court’s attempt to persuade him to focus on relevant matters.”

On the ground of defective legal representation, Lady Dorrian said: “Despite the appellant’s criticisms of his lawyers, it is apparent that the sheriff was treated to submissions on subjects as diverse as the effect of the passage of time as a bar to extradition; conditions of physical and mental health being such as to render extradition oppressive; a panoply of considerations regarding the European Convention on Human Rights, as well as submissions relating to other prosecutions in the US. There is no basis upon which this court could find that the allegations of defective representation were made out.”

She concluded: “Trials based on historical sexual abuse allegations are prosecuted on a daily basis in the Scottish courts. The allegations which he will stand trial for if extradited are of an extremely serious nature. There is a strong public interest in such crimes being prosecuted and nothing placed before the court demonstrates that the appellant’s trial would either be unfair or that any of his other Convention rights would be violated if extradited.”

The appeal was therefore refused.