Statements of uncontroversial evidence can be lodged in extradition proceedings, sheriff rules

Sheriff Nigel Ross held that the procedure outlined in section 258 of the Criminal Procedure (Scotland) Act 1995, the purpose of which is to focus the dispute with the self-evident benefits of efficient use of time and resources to the administration of justice, was not only part of extradition procedure, but should be “actively encouraged”.

The preliminary issue arose in proceedings brought by the Lord Advocate on behalf of the Russian Federation, which has requested the extradition of Alexander Shapovalov.

Edinburgh Sheriff Court heard that on behalf of Mr Shapovalov, agents lodged two separate SUEs in support of his position that assurances received from the Russian Federation about issues such as fair trial and prison conditions are untrue, and that if he is admitted to the general prison population in Russia there is a real risk that Mr Shapovalov would be detained in conditions that breach his rights under Article 3 of the European Convention on Human Rights (ECHR)

In response to the two SUEs the Crown lodged notes challenging the statements made, in effect by a simple denial, as well as challenging the competency of invoking the section 258 procedure in extradition proceedings.

In response to those notices to challenge, Mr Shapovalov’s agents lodged a motion to invoke section 258(4) of the 1995 Act, namely an application to the court for a direction that the Crown’s challenge be disregarded.

However, the Crown submitted that there were “special circumstances” in extradition proceedings which prevented s.258 from applying: firstly, that s.77 referred only to court powers, not the rights of a party to serve a notice; and secondly, that s.258 referred to procedure which did not exist in extradition proceedings.

However, the sheriff observed that this issue was addressed and answered by the Appeal Court in the case of HMA v Havrilova 2012 SCCR 361, in which it was stated, at paragraph 13, that: “It is plain that section 9(2) is intended to bring into play in extradition proceedings, whenever circumstances allow, the rules of summary cause procedure and evidence…that is how those provisions have been understood by the courts to date and that is the correct approach”.

While there were special circumstances in Havrilova, the present case was of a “different character”.

Sheriff Ross’s written note stated: “The mechanism in the present case is not impossible to fit into the Extradition Act 2003, unlike in Havrilova. This is because the SUEs do not introduce any competing principle or conflicting mechanism to the 2003 Act. It is quite the opposite. The principles behind sec 258 are absolutely compatible with the 2003 Act. The SUEs are a basic procedural tool to focus the preparation and presentation of evidence.“

He added: “The requirement for efficient leading of evidence is every bit as central to extradition proceedings as it is to summary, and for that matter all, criminal procedure. It follows, in my view, that the sec 258 procedure is to be regarded as properly incorporated into extraction proceedings by virtue of sec 77(2) of the 2003 Act. In my view, such procedure is not only part of extradition procedure, but is actively to be encouraged. Sec 77 awards the judge basic powers to oversee the process, and to make sure that it is not abused, by allowing for a challenge to SUEs. There is nothing incompatible with that procedure.”

However, the sheriff refused Mr Shapovalov’s motion to disregard the notice of challenge, on the basis that the Russian Federation’s challenge to the SUEs was not “unreasonable”.

Sheriff Ross said: “In my view Mr Shapovalov’s applications have, on the face of both SUE1 and SUE2, exceeded the proper purpose of section 258, and therefore I will not exercise the power under section 258(4A) to direct that the challenges be disregarded.

“I do so in the knowledge that the Crown will make admissions of any matters which properly are to be regarded as uncontroversial. In the event that this further exercise becomes contentious, Mr Shapovalov is able to lodge a further application which will be considered on its merits.”