Knock-out blow for Scott Harrison as appeal court upholds sheriff’s order for boxer’s extradition

The former WBO Featherweight Champion was sentenced to four years imprisonment by a court in Malaga in 2012 and a European Arrest Warrant (EAW) was issued after he failed to return to Spain from Scotland to serve his punishment, but the respondent argued that the Spanish authorities failed to follow the correct procedures for extradition and that his human rights had been breached.

However, Sheriff Tom Welsh QC at Edinburgh Sheriff Court concluded the warrant was “good” and that as no bars to extradition in terms of the Extradition Act 2003 had been identified, extradition was as a matter of fact “compatible” with the respondent’s rights under the European Convention on Human Rights and he ordered his return to Spain to serve his sentence there.

The respondent challenged that decision, but the Criminal Appeal Court upheld the sheriff’s ruling.

Sheriff Welsh was asked to decide three questions: (1) whether, in limine, the EAW, as presented, is formally defective in a number of material respects and if so to discharge the respondent for want of due process; (2) whether the respondent was convicted, in his absence, in terms of s 20(1) of the 2003 Act and if so to discharge him on the basis that the warrant is further defective; and (3) whether his return to Spain would now be compatible with his right to a trial within a reasonable time, as guaranteed by article 6 of the European Convention, the Human Rights Act 1998 and s 21(1) of the 2003 Act.

Counsel for the respondent argued that the EAW was “formally defective” and did not comply with the statutory requirements contained in s 2(5) and s 2(6) of the 2003 Act, but the sheriff disagreed.

Sheriff Welsh said: “I did not consider the EAW was defective, ambiguous or misleading. In my opinion, it was clear and plain, on its face and it satisfied the terms of the legislation.”

Counsel also argued that the respondent was convicted in his “absence” as he was not physically present in Malaga at the precise point of conviction and thus a further “fatal flaw” in the procedure in this case was exposed.

But again the sheriff disagreed because, in his opinion, for the purposes of the 2003 Act the respondent was convicted in his presence.

The court heard that the respondent was present at the evidential hearing phase of his Spanish trial process and was represented and defended by counsel.

Under Spanish summary criminal procedure, conviction/judgment is not declared in the immediate presence of the accused after the evidence is heard, as it usually is in Scotland.

The Spanish judges hear the evidence in public, then deliberate in private and send intimation of the judgment/conviction (or otherwise) to the accused’s lawyer, which is in the form of a written reasoned judgment setting out the charges, the procedural history of the case, the facts established, the law applicable, the reasons for conviction, the civil liability in respect of the victim’s compensation and the sentence imposed.

The respondent’s conviction was intimated to his Spanish lawyer and an appeal was marked, but that appeal was refused and the appeal court judgment was also intimated to the respondent, via his court procedural representative.

“In these circumstances, I did not conclude the respondent was convicted, in his absence. His interest was represented and he was very much present in the Spanish judicial process, which ultimately resulted in conviction,” the sheriff said.

An ECHR article 6(1) point was also advanced to the effect that the respondent’s reasonable time guarantee had been breached in Spain, which amounted to a “contravention” of his right to a fair trial, but the sheriff described this argument as “fundamentally ill conceived”.

In his written judgment, Sheriff Welsh said: “In my view, in terms of the ECHR jurisprudence, what amounts to a reasonable time within which to bring a prosecution from the point of initial charge or the local equivalent, to final determination, in Spain, is in the first instance a matter for the Spanish courts, subject to the supervisory jurisdiction of the ECtHR in Strasbourg.

“In my opinion, it would be inappropriate for me to attempt to apply standards, norms and values in respect of what may, or may not, amount to a reasonable time in the UK to achieve the same end, to a Spanish case, through the prism of an extradition process.

“My own view is that I could only refuse to extradite the respondent on this article 6 ground and discharge him, if it was demonstrated that he had suffered a flagrant denial of justice, as a result of which, he did not receive a fair trial in Spain, in breach of his article 6 rights.

“No material was placed before me to suggest that such a flagrant denial happened. Accordingly, I rejected this argument.”