Part 6 – Case Review
144. At the time of the review there were 364 live cases in ICU. We examined 99 concluded cases, including 20 out of 80 incoming extradition requests, 25 out of 49 outgoing requests for extradition, 29 out of 130 outgoing MLAs and 25 out of 105 incoming MLAs equating to 27% of the total existing ICU workload. In addition, we reviewed 8 current extradition cases.
Extradition Out (EO)
145. Scottish extradition warrants are only issued in the most serious cases and only on the instruction of the Lord Advocate. In outgoing extradition, in 2010 there were 22 new cases, in 2011 there were 21, in 2012 there were 32 and in the first six months of 2013 there were 13 new cases.
EO-CASES RECEIVED PER YEAR
146. In general we found no areas of concern in the cases reviewed with EAWs being drafted appropriately and timeously.
147. However, the use of two separate IT systems and a lack of understanding on the part of some prosecutors in the Federations on what is required by ICU to obtain an international or European warrant have caused difficulties.
148. One such difficulty identified is obtaining information and documentation from local offices, including the provision of certified copy fingerprints, photographs of the fugitive and certified copy warrants. This has resulted in delays, including in some instances several years in obtaining an EAW or international warrant where an accused person had failed to attend court or where criminal proceedings have been initiated by COPFS and in some cases has resulted in conflicting actions being taken. Such delays can lead to additional difficulties if, for example, the investigating officer is no longer working with the same investigation team. Although with the introduction of the FU and IAU, it is hoped that this will be less problematic in future.
149. In one case, the original warrant was issued in June 2005 although it was not referred to ICU for consideration until April 2007 due to the whereabouts of the fugitive being unknown and further inquiries being undertaken. The application for extradition to a non-EU country was not made until November 2008 due to difficulties in obtaining the relevant information from the local prosecution office. The initial application was rejected as it was not in accordance with the foreign country's legal requirements and a second application was submitted in December 2009. This coincided with intelligence that the fugitive was intending to leave the country and the judicial authorities abroad agreed to provisionally arrest him on the understanding that the formal extradition request was made within 60 days.
150. In another case, despite repeated attempts by ICU to obtain information, nine years elapsed between the offence and the domestic warrant eventually being withdrawn.
151. In outgoing extraditions, the original case sits in the national COPFS system. Although, the request for an international warrant or EAW is submitted to ICU by the local prosecutor, the documentation relating to any extradition is retained in ICU Live and there is no flag in the national system to alert staff that an international warrant or EAW has been sought or exists. This causes concern as it raises the possibility of a domestic warrant being withdrawn without informing ICU.
152. An EAW or international warrant is only valid if there is a domestic warrant in existence. Therefore, if the domestic warrant is withdrawn, the EAW and international warrant are no longer competent. Accordingly, failure to reconcile actions relating to the domestic and international warrant could lead to a person being unlawfully arrested and detained. Such a scenario would be extremely damaging to the reputation of COPFS. We are aware of cases where a lack of understanding has had the potential to expose COPFS to such risk.
153. In one case the domestic warrant granted by the High Court for an assault and robbery was sent to police in early 2003. The whereabouts of the accused at that time was unknown. In November 2008, it became known that the accused was in Ireland. Following a request from ICU to obtain a certified copy of the domestic warrant the local prosecutor erroneously requested the police to return the original domestic warrant. The police were advised that the warrant was "not to be treated as executed". In other words, the warrant was to remain active. However, complying with the request had the effect of withdrawing the warrant from the Police National Computer and thus removing the marker indicating that the accused was to be arrested.
154. In May 2009, the accused was detained in Ireland for offences committed in Ireland and in August 2009, an EAW was obtained and issued to Ireland for his arrest. Due to the accused serving a sentence in Ireland and, in accordance with international protocol that domestic matters require to be concluded before other international matters, no action was taken at that time. As a result it was not until December 2010 that the accused was arrested on the EAW. There then followed numerous hearings in Ireland and following the accused failing to attend at one such hearing in October 2011, a warrant was issued for him by the Irish authorities. He was arrested in Ireland in May 2012 on an unconnected Irish matter and remanded.
155. In September 2012, it came to the attention of ICU that the domestic warrant was not active on the PNC and ICU contacted the local prosecutor to inquire as to whether the EAW was still required or whether it should be withdrawn. Following discussion with the local prosecutor, ICU withdrew the EAW, although from the case papers it does not appear that Crown Counsel's instructions were obtained.
156. A similar scenario occurred in another case. The suspect in that case was one of a number of accused charged with drug offences but before proceedings could commence in Scotland, he was arrested in England in connection with an EAW issued by another European country and was subsequently extradited to that country. He was also sought by the English police on unconnected drug-related matters.
157. A domestic warrant was granted at the High Court in Scotland in March 2011 following Crown Counsel's instructions to prosecute the accused and in November 2011, it was decided to pursue an EAW. In addition to certified copy minutes, ICU erroneously requested the original domestic warrant from the local prosecutor. The EAW was obtained but on 14 February 2012 the local prosecutor advised the police that the domestic warrant should be withdrawn and requested that it was returned. The domestic warrant was therefore withdrawn on the PNC and the warrant was then sent as requested to ICU. Due to other non-related extradition proceedings no action could be taken on the Scottish EAW. In September 2012, the police via an international conduit informed the foreign authorities that the domestic warrant had been withdrawn.
158. On 9 November 2012 SOCA and the police advised ICU that the Scottish domestic warrant had been withdrawn from the PNC. Following investigation, ICU ascertained that they were in possession of the original warrant and it was re-issued to police and a new EAW was sought and obtained. The case remains active as the accused is still being dealt with on other unrelated matters in another EU country.
159. While the erroneous withdrawing of the warrant was not fatal in either case to the extradition proceedings, they demonstrate confusion on the part of some prosecutors on international requirements and in particular that the original domestic warrant in the possession of the police should not be returned unless a decision has been taken to discontinue the case.
160. They also identify the need for ICU and the functional leads in the Federations to have greater dialogue regarding cases with international warrants and EAWs. The lack of access to ICU Live and the absence of any flag on the national system creates a knowledge vacuum in the Federations of the cases that have such warrants. This could and has resulted in a domestic warrant being withdrawn without alerting ICU and it may result in any reviews of such cases not being fully informed. The absence of safeguards to ensure that any decision to withdraw the domestic warrant must be intimated to ICU and SOCA, who administer all international warrants, requires to be addressed.
A comprehensive checklist of the procedures and requirements for local prosecutors seeking to obtain an international warrant or EAW through ICU is prepared and publicised by ICU. ICU should issue standard instructions in every such case to the Federation seeking the warrant.
A complete list of all cases in each Federation with an EAW or international warrant is collated by ICU and circulated to each Federation.
Guidance should be published on the requirements to be undertaken prior to the withdrawal of a domestic warrant in cases where there is also a European or international warrant. There should be clarity on who has responsibility for monitoring and reviewing cases with EAWs or international warrants within the Federations.
A process is introduced to ensure that no domestic warrant relating to a solemn case can be withdrawn without a check being made to see if there is an EAW or international warrant in existence.
All such cases where there is an EAW or an international warrant should be reviewed on a regular basis within the Federations.
Extradition In (EI)
161. From the data relating to incoming extradition work, in 2010, there were 152 new cases, in 2011 there were 134 new cases, in 2012 there were 150 new cases and in the first six months of 2013 there were 94 new cases.
EI-CASES RECEIVED PER YEAR
162. Incoming requests for extradition are submitted from jurisdictions all over the world with every country having different criteria for seeking international warrants. European law provides that extradition can only be ordered when the offence is a framework offence or has dual criminality. We found that in every case we reviewed, certification was obtained timeously with any delay arising due to poorly drafted warrants being sent to ICU.
163. In one case in which Lithuania contacted Scotland about a potential warrant, ICU assisted the Lithuanian authority to draft the EAW. The EAW arrived on 21 January 2011 and was certified and issued to the police the same day with the fugitive being arrested four days later.
164. ICU valiantly seeks to assist foreign authorities to rectify any errors and to filter out cases which do not meet the criteria.
165. There were a number of cases we reviewed where ICU declined to certify as the facts did not amount to a criminal case.
166. In other cases we found that some countries issue warrants for more minor offences than others. While ICU has no option but to certify these requests, we found that following arrest, presiding sheriffs, having regard to proportionality, dismissed many cases where the offences were several years old and of a minor nature such as possession of a minimal quantity of drugs, or a breach of the peace.
167. In one case which began as an incoming MLA for a statement to be obtained from a suspect, due to his failure to co-operate, the issuing authority then sought arrest on an EAW. The offence was described as fraud but was more in the nature of a civil rather than criminal matter. ICU, along with police, tried for months to resolve the situation but in the end the EAW was executed, as no option remained. The sheriff seemed to share similar doubts as to whether the facts constituted a crime. ICU eventually prevailed upon the issuing state to withdraw the warrant in exchange for payment of the bill, achieving a satisfactory outcome in the circumstances.
168. There were a number of cases reviewed where after several court appearances the EAW was dismissed due to passage of time. It is not an option for ICU to make a judgement on delays arising from other jurisdictions and to refuse to certify but the files demonstrated that ICU makes efforts to identify such cases where this is likely to be an issue and seeks chronologies from the issuing countries well in advance of the warrant being executed which, undoubtedly, assists in expediting hearings.
169. There are no time limits for certification of incoming requests for extradition. We examined the time between receipt of requests for incoming EAWs and the date of issue to the police following certification. As noted in the 2007 Eurojust evaluation, this was problematic with the data provided by ICU initially appearing to be unimpressive in respect of the average time involved, but on closer examination we found that the statistics were considerably skewed by a few cases where the delay was not caused by ICU.
170. Having reviewed these cases, we are confident that ICU is dealing with extradition efficiently and indeed better than its own data suggests. Taking such cases out of the equation, we found that the processes for dealing with incoming extradition cases to be effective, clear and straightforward with certification being dealt with quickly and following arrest fugitives being brought to court expeditiously.
171. Of the eight court hearings we attended, in only one of those cases was extradition ordered and the fugitive surrendered to the issuing country. Extradition was granted in another case but this decision is the subject of an appeal. Two cases are still ongoing and four cases were discharged with extradition being refused.
172. It has recently been agreed with SOCA that if a fugitive is not arrested within three months and the police are unable to trace the person in Scotland, the ICU file would be closed although the warrant would remain outstanding with SOCA who would discuss how to progress the case with the issuing state. This policy should lead to a downturn in outstanding incoming extradition files held by ICU.
173. The figures which ICU Live records for incoming MLAs show a slight increase in recent years in the amount of requests being submitted. As mentioned, the unavailability of reliable data is a major drawback in assessing the effectiveness of ICU in dealing with such work and a lack of an overview of outstanding requests can lead to delays.
MI-CASES RECEIVED PER YEAR
174. We reviewed the age profile of live MLA incoming cases. While the number of historical cases is not high, there are 11 cases which are more than two years old that clearly need to be prioritised.
175. Requests for precognitions on oath constitute a major part of incoming MLAs. These are often sought from persons who have witnessed a crime abroad, although some foreign authorities will seek a precognition on oath for a prospective accused. It is important that the rights of a person suspected of committing an offence abroad are understood by the person conducting the precognition and by the court as precognition of accused persons is not a competent procedure in Scots law. Information on such requirements should be included in the request issued by ICU. In one case where such a request was submitted to ICU in April 2011, the hearing had to be adjourned to obtain basic information about the rights of the accused being questioned. Overall, it took 29 months to deal with the request.
176. When a request for evidence to be heard via live-link to a court abroad is submitted ICU drafts a document known as Lord Advocate's Nomination. As a rule it is invariably left for the local prosecutor or ICRD to draft the application to the Scottish Court. As the information to support the application is invariably the same as contained within the Nomination, it would save time and effort if the application to the court was drafted by ICU simultaneously as the nomination, leaving the dates blank for completion locally in due course.
177. We found that many of more recent incoming MLAs have been dealt with solely by ICU, including issuing instructions to the ILO or police. These have generally been dealt with efficiently and timeously. Further, in cases progressed by ICU, we found that it often went beyond the terms of the request by providing additional assistance. For example, in one case it provided advice to complainers to enable them to attempt to recover money which had been obtained from them by fraud.
178. Outgoing MLA requests are used to obtain evidence to assist the prosecution of Scottish cases and are reliant on co-operation from other judicial authorities.
179. Requests for outgoing MLAs have been increasing. In 2010, there were 133 new cases, in 2011 there were 139, in 2012 there were 158 and in the first six months of 2013 there were 110 new cases.
MO-CASES RECEIVED PER YEAR
180. Once the request is made, ICU has no control over timescales for receipt of the information. As in every aspect of international work, it is easier and usually quicker to deal with EU countries. Dealing with countries without treaties can be very time consuming. In one such case which began in 2007, the information required was not obtained until 2011. Although clearly if evidence is to be obtained for use in a current trial, for example, where live-link evidence is to be given or a witness is to come from abroad for a trial, there is a clear deadline and ICU has had a number of successes in obtaining the relevant evidence.
181. In general requests come from police at the investigation stage of a case, or from one of the Federations once a case has begun the prosecution process.
182. We found examples of prosecutors in the Federations not being aware of what information is required to support a request for MLA. Many requests made to ICU are directed to the United States of America seeking information from various website providers based in the United States. American prosecutors are inundated with such requests from all over the world and will consequentially only deal with requests that relate to serious offending. In Scotland, this equates to solemn cases.
183. In one case where a request for information from the United States of this nature was made by a local office, it was subsequently ascertained, after several months, that only a summary prosecution was envisaged and thus the request was inappropriate. This emphasises the importance of providing detailed information to ICU and in particular information on the proposed forum.
184. We also found evidence of successful attempts to establish and maintain good relations with foreign countries. This has led to quick responses to requests, and good results being achieved.
185. One such example of efficient working was a request for a witness statement that was sent to ICU in January 2012 for a non-EU country (Canada). ICU checked the treaty, reviewed the draft and forwarded the request to UKCA as the central UK authority in February 2012. They, in turn, forwarded it to the appropriate country in February 2012. The interview took place on 4 June 2012.
186. We also found examples of MLAs adapting and extending the law for practical reasons. Some witnesses who give evidence by live-link refer to productions in the course of their evidence. In such cases, ICU has arranged to have two screens in use, one for the witness and one for documents.
187. In another case witnesses declined to return to Scotland to give evidence, which meant they were unable to identify the accused in court. ICU proposed resolving the issue of identification by use of live-link in reverse, with the witness identifying the accused from the screen abroad, although it was not ultimately required.
188. There are no internal or external performance key indicators for the processing of work in ICU. While it is acknowledged that there are various areas over which ICU does not have any control such as when an accused person is arrested or when a foreign country provides information, there are areas where it is suggested performance can and should be measured. For example, performance indicators relating to timescales for responding to requests for assistance from foreign jurisdictions and in dealing with extraditions abroad could be introduced and measured.
189. However, in order to ascertain whether such targets are met, it is essential that improved recording systems are implemented.
190. Further, the recording of better management information in areas of receiving mutual assistance and achieving extraditions from abroad would allow ICU to identify areas where it is achieving success and where there is room for improvement.
Key performance indicators should be introduced as part of a performance framework for the main areas of ICU work.