Man facing extradition has application for disclosure and recovery of documents refused

A sheriff ruled that it was neither competent nor appropriate to make such a “coercive order” against a foreign state in the context of a part 2 extradition case.

Sheriff Tom Welsh QC heard that the respondent Johar Mirza, a Pakistani citizen, is wanted by the US Government for prosecution on nine serious fraud charges, all allegedly committed in the state of Virginia between 2005 and 2008.

Mirza is also presently in custody in respect of a sentence he is serving arising from crime committed in this jurisdiction, after being jailed for three years at Glashow Sheriff Court in December 2014 following his conviction for assault to injury with intent to rape.

He was seeking disclosure/recovery of all documents and emails passing between the Civil Recovery Unit and the relevant US authorities with a view to arguing an “abuse of process” case at his full extradition hearing.

The correspondence would then be used in any future US prosecution to demonstrate that information obtained by US prosecuting authorities was “acquired illegally” and accordingly “inadmissible” in those proceedings.

However, the sheriff ruled that the request for disclosure was “incompetent”.

In a written judgement, Sheriff Welsh said: “The rules which apply to disclosure have no relevance or place in extradition proceedings. The duty to disclose relevant information applies to a prosecutor in Scotland, see, section 121 Criminal Justice and Licensing (Scotland) Act 2010.

“Extradition is not prosecution. Disclosure applies to prosecution in order to provide an accused person with all the relevant information he or she needs to present his or her defence against an allegation levelled by the state.

“The extent, to which disclosure civil or criminal is thought appropriate in these proceedings, is misguided. The application to that extent is incompetent.”

While the civil and criminal recovery of documents is competent in adversarial proceedings in Scotland and the sheriff’s power in an extradition matter is “equivalent”, the application for recovery also failed after the sheriff observed that the application was “entirely speculative and irrelevant” to the extradition request.

Sheriff Welsh further held that the court did not have the power to compel the US authorities to produce the documents.

“As formidable as the powers of the extradition sheriff in Scotland may be, I doubt they stretch so far, as to command unwavering obedience from the US executive and its agents. A coercive order against a foreign state made by an extradition judge is an absurd proposition,” he said.

However, in so far as the order sought was against the Scottish Ministers, the sheriff said the matter could only be decided after “full argument” in a process to which the Scottish Ministers were a party, but he added that counsel had failed to demonstrate how it was either competent or relevant for the extradition judge to order such recovery or production.

On behalf of the Lord Advocate it was submitted that the 2007 English case of R (Govt of USA) v Bow St Mags’ Ct should be used as a model for dealing with alleged abuse of process cases.

He said it would only be at a full hearing on the extradition request that the court could be in a position to assess, after close inspection of all the material proffered in support of the extradition request and any information supplied by the respondent, whether there was any question of possible abuse of process, which might result in further necessary inquiry of the requesting state to determine whether the extradition is barred by reason of abuse of process.

But the sheriff was not persuaded that it was competent to proceed as was suggested.

Sheriff Welsh said: “Accordingly, I will not refuse the motion on the basis that it is premature, as I was invited to do, because I am not persuaded that a procedure, such as the one contemplated by him, is competent, without, either, clear authority that the summary criminal jurisdiction of the sheriff includes, as nearly as may be, a power to participate in, direct or initiate investigation of abuse of process after proof, or a finding by a higher court that the absence of such an extended abuse of process jurisdiction is incompatible with the respondent’s right to a fair trial, in Scotland.”