The Dawn of the New Era in Extradition Law

Published on the 11th of August 2017 on the New Law Journal (www.newlawjournal.co.uk), leading on debate, litigation and dispute resolution.

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On 23 June 2017, the Divisional Court handed down judgment in Alexander v Public Prosecutor’s Office, Marseille District Court of First Instance, France; Benedetto v Court of Palermo, Italy [2017] EWHC 1392 (Admin), [2017] All ER (D) 76 (Jun).Up until this decision one of the most powerful arguments against any extradition was that the requesting state had failed to properly set out the conduct alleged on the part of the requested person that formed the basis of the extradition request (the s 2 argument). The Alexander decision massively expands any requesting states’ ability to ‘patch-up’ any inadequate extradition warrant with further information. This has arguably removed a very powerful protection of citizens facing extradition within the European Arrest Warrant (EAW) area.

Background

With the advent of the Extradition Act 2003 (EA 2003), for the first time, Parliament provided for extradition from the UK to other countries where no evidence of crime was produced. In other words, EA 2003 scrapped the ancient requirement that foreign states must produce at least ‘a case to answer’ in order to properly apply for extradition. The sole essential requirement of an EAW was that the requesting state prove that the requested person was accused of or had been convicted of an extradition crime (in practice any crime other than speeding etc). The only possible requirement to set out a ‘case to answer’ came in s 2(4)(c) under which the requesting state has to provide: ‘Particulars of the circumstances in which the person is alleged to have committed the offence, including the conduct alleged to constitute the offence, the time and place at which he is alleged to have committed the offence…’

A ‘case to answer’ requirement by the ‘back-door’?

In testing the new legislation English judges tended to favour a slightly more conservative approach to the lack of a need for the requesting state to produce a ‘case to answer’. The first real test came in the leading Divisional Court case of Palar v Court of First Instance Brussels [2004] All ER (D) 185 (Apr).

In Palar, I successfully argued that s 2(4)(c) of the Act required that, in order to be valid, an EAW must contain a high degree of detail in terms of the allegation that formed the basis of the EAW request.

Palar provided the foundation for a line of authority leading up to the Supreme Court case of Dabas v High Court of Justice, Madrid [2007] 2 AC 31, where Palar was cited with approval and used to enshrine the fundamental principle that a failure of the requesting state to sufficiently particularise the conduct alleged would invalidate the EAW. This principle was further re-enforced in Lord Hope’s celebrated speech in the case of King’s Prosecutor, Brussels v Cando Armas [2006] 2 AC 1.

This was thought by practitioners to be settled law and led to the successful challenge of many EAW’s on the basis of invalidity flowing from insufficient particularisation (the s 2 arguments). The Palar Principle was used through Dabas and Cando Armas and right up to and including the leading case of Assange v Swedish Prosecution Authority [2012] UKSC 22 as support for the proposition that while the requesting state did not have to formally produce evidence of a case to answer, it certainly had to produce a high degree of detail in terms of what the evidence of the alleged conduct was.

In terms of the political dimension, this line of authority served to potentially undermine the entire EAW scheme. The English courts were freely striking out extradition requests on the basis that the allegations were not set out in enough detail.

The EU fightback

Following Assange, and perhaps facing political pressure from within the EU, on 1 December 2014, the UK opted back into the European Council (EAW) Framework Decision no 2002/584/JHA (the EAW Framework Decision).

Opting back in to the EAW Framework Decision was a political decision taken at cabinet level. It created a sea-change in the interpretation of EA 2003, as from then on the English courts were compelled to interpret EA 2003 consistently with the EAW Framework Decision. Therefore, the EAW Framework Decision itself and all the case-law from the European Court of Justice (ECJ) regarding it had direct effect on the English courts. Thereafter the s 2 requirements had to be interpreted through Art 8 of the EAW Framework Decision and the ECJ jurisprudence flowing therefrom.

Unsurprisingly, the case law from the ECJ was heavily in favour of speeding up and streamlining the EAW processes. On one view this was a further facet of the development of the European super-state. Using the principles of mutual trust and recognition enshrined in the EU Treaties, the ECJ was and is continually pushing for the creation of one common area where the courts, in executing EAW requests, are treated as one unit serving the EU.

This in turn strongly undermined the English courts’ ability to thwart extradition requests via the ‘interpretive’ s 2 method. Dabas and Cando Armas had been dealt a fatal blow and the number of EAW requests exploded.

The number of EAW requests to the UK’s National Crime Agency (NCA) went up from 5,522 to 12,613 between 2013 and 2015 (source NCA); an increase of over 100%.

The art 15 procedure

Such was the clamour in EU member states to make extradition requests from the UK that EAW’s began to have less and less information contained within them. A practice developed whereby requesting states would issue EAW’s with minimal information on the basis that there was mounting pressure on the English courts to ‘rubber-stamp’ the requests and order extradition. In keeping with this practice, requesting states were given an increasing ability to provide further information in the course of proceedings to deal with objections from the defence legal teams. This ability flowed from Art 15 of the EAW Framework Decision.

Essentially EAW’s that were invalid due to inadequate particulars were allowed to be ‘validated’ by the provision of further supplemental information by the requesting state under the Art 15 procedure.

The ability of practitioners to mount successful s 2 challenges was becoming frequently curtailed by Art 15 ‘requests for further information. Such requests became the norm.

The death of Dabas & Cando Armas

However, the difficulty was that the Supreme Court authorities of Dabas and Cando Armas still appeared to be good law and practitioners in the English court continued to mount s 2 arguments to block the ever-increasing number of extradition requests. This apparent contradiction came to a head in the recent Supreme Court case of Goluchowski v District Court in Elblag [2016] 1 WLR 2665, which applied the ECJ case of Bob-Dogi [2016] WLR 4583. Goluchowski and Bob-Dogi in effect recognised the ability of the requesting state to ‘patch-up’ inadequate EAWs with the provision of further information during the course of extradition proceedings.

The judgment of the Supreme Court in Goluchowski effectively over-ruled the authorities of Dabas and Cando Armas in relation to future s 2 arguments. In other words, any EAW that was apparently invalid by virtue of providing inadequate particulars of conduct was no longer to be deemed invalid under s 2 because it could become valid through the provision of further information by virtue of Art 15. This has led some commentators to describe the validity of the EAW’s as being able to be in a ‘transient state’ in terms of validity.

In fact, Irwin LJ, in Alexander went as far as to state the following: “[73]. …the previous approach to the requirements of an EAW and the role of further information must be taken to no longer apply. The formality of Lord Hope’s approach in Cando Armas, based on the wording of the Act, has not survived. It is clearly open to a requesting judicial authority to add missing information to a deficient EAW so as to establish the validity of a warrant.”

“[74] …The effect of two recent decisions is, we conclude, that missing required matters may be supplied by way of further information and so provide a lawful basis for extradition.”

Brexit & the future of s 2 arguments

Clearly Brexit throws not just future s 2 arguments but also the entire EAW scheme into question for the UK. It is beyond the scope of this article to hypothesise about our future extradition relationship with the EU following Brexit.

However, it is worth noting that the ever-increasing political and legal integration with the EU, as exemplified by the expanding application of the EAW scheme, may have given more voice to those who favour Brexit. NLJ

George Hepburne Scott, extradition barrister, Church Court Chambers, www.ukextraditionlawyer.com

Vijay Mallya, the Indian Tycoon, has his Extradition Hearing set for December 2017

Vijay Mallya may be extradited to India after his hearing in December 2017. The Indian tycoon faces allegations of fraud and illegal fund diversions. The business tycoon is being represented by one of the best extradition barristers in the United Kingdom. Vijay Mallya’s London based barrister has suggested that even if the judge rules at the December hearing for the Indian Tycoon to be extradited, there would be a long appeals process that leaves a number of opportunities for the decision to be overruled.

The Indian tycoon, Vijay Mallya, is set to face the extradition courts in the United Kingdom in December 2017. The justices of the court will then decide whether Vijay Mallya can be extradited to India to face prosecution for fraud and illegal fund diversions.

In July 2017, Vijay Mallya appeared at Westminster Magistrates Court for the third time this year. Emma Arbuthnot, the Presiding magistrate of the day, heard that the Indian businessman is facing a second extradition after India requested he be returned to face further charges. Vijay Mallya allegedly laundered money whilst in India, the Indian government sent an extradition request so he could face trial for his alleged crimes. 

Vijay Mallya is being represented by one of the best barristers in London who has stated that, Narendra Modi, the Prime Minister of India, and his government have been seeking the extradition of Mr. Mallya to India for a number of months. He went on to say that if extradited Mr. Mallya will face trial for fraud and other alleged fund divisions linked to the collapse of, Kingfisher Airlines, his former company prior to its demise in 2012.

Mr Mallya has been living in London, England since March of last year. He has been under an enormous amount of pressure from India’s state banks to repay his debts. Mr. Mallya owes $1.3 billion following the demise of his airline last year.

In January of 2017, India’s Central Bureau of Investigation filed criminal charges against the financial tycoon, Mr. Mallya. They also filed criminal charges against nine of his bankers and a number of his former senior executives. The charges allege that Mr. Mallya diverted funds of over $134 million from a loan which had been extended to Mr. Mallya’s company, Kingfisher, by the state owned, IDBI bank.

Mr. Mallaya has one of the best extradition barristers working on his defence. Ben Watson, the said barrister, has confirmed to the court that the Indian prosecution team have sent them over eight hundred pages of material on the case. He said they have received all the documents and have just begun the process of working through all the information. He went on to say that Mr. Mallya is engaging with his extradition request constructively.

Mr. Mallya was not required to attend court last Thursday for the initial hearing. However, he attended the hearing and listened to the proceedings. The Indian Tycoon is currently on conditional bail and is not required to attend court until his extradition hearing in December.

A senior district Judge in the United Kingdom has stated that Mr. Mallya’s extradition hearing would start on the 4th December 2017. The trial is expected to last two weeks, the senior district judge will then retire to make her decision on whether she believes Mr. Mallya should be extradited to India.

However, the entire process is likely to last years. Although the hearing itself is said to last just two weeks, the appeals process offers a number of chances to have the decision appealed against.

Mr. Mallya was not only the owner of Kingfisher airline, he was also formerly the chairman of United spirits. United Spirits is the maker of Kingfisher beer and the largest spirit company in India. Mr. Mallya was arrested in April this year by Scotland Yard’s extradition unit. He was then taken into custody in London. Scotland Yard were acting on behalf of the Indian authorities who had made a request for Mr. Mallya to be arrested.

Mr. Mallya became a very unpopular figure in India after his debts began to grow. Mr. Mallya’s faltering airline company failed to pay pilots and cabin crew, individuals were not paid by the company for months. Mr. Mallya became increasingly unpopular because despite failing to pay those employed by his company, Mr. Mallya continued to live an incredibly lavish lifestyle.

Mr. Mallya moved to the United Kingdom in March of 2016. He moved to London even though a court order had been sought by his creditors to stop him from leaving the country. However, Mr. Mallya’s lawyer, who is one of the best extradition barristers based in London has commented that Mr. Mallya did not flee. Mr. Mallya himself has also denied the allegations that he fled India to avoid his creditors and paying his debts. According to Mr. Mallya his decision to leave India and move to the United Kingdom was not his decision, but that it was a “forced exile”.

The first ruling will be handed down in December 2017. Mr. Mallya’s extradition barrister will then be able to appeal if the ruling is not in their favour. If the appeal process is unsuccessful then the United Kingdom will have to surrender Mr. Mallya. In cases of extradition, the individual should normally be surrended within ten days of the final court order. In exceptional circumstances this time limit can be extended, with the agreement of the requesting state, who in this situation would be India.

Nikulin: Alleged Russian Hacker

A Russian suspected of hacking is now a step closer to being extradited to the United States

The FBI have accused Yevgeniy Nikulin, A Russian national, of hacking LinkedIn, Formspring and Dropbox. Russia and the United States have now put out requests for him to be extradited.

A judge, in the Czech Republic, has given a tentative approval for Nikulin to be extradited to the United States. The tentative approval came in number of days ago, after a court hearing was conducting inside a high security Prague prison.

Nikulin was arrested in October of 2016 whilst out for dinner at a restaurant in the Czech Republic. He appeared at the hearing on Tuesday after months in solitary confinement in the Prague prison.

The FBI have accused Nikulin of hacking a significant number of passwords on LinkedIn, Formspring and Dropback in 2012. Nikulin’s arrest occurred three days prior to the Obama administration officially accusing Russia of interfering in the election by hacking the Democratic National Committee.

Nikulin’s and some of the best extradition lawyers working for him, have declared the case a “set up”. He has stated that he is not a hacker but instead a sales man, dealing in luxury cars. His lawyer went on to comment that Nikulin was far from a hacker. He suggested that his computer skills fell short of a super hacker and he wasn’t capable of more than checking emails.

However, special agents within the FBI believe otherwise. In an affidavit the special agent lists a number of aliases Nikulin used to hack the sites. The special agent has gone on to say that there is evidence from witnesses, ISP records and electronic interceptions which prove he is an expert hacker.

The affidavit from the special agent links Nikulin only to the hacking of the three social media sites in 2012. It does not link him to the election hacking of the United States democratic party. However, a letter emerged that Nikulin wrote whilst in prison stating that he had been interrogated by the secret agent in February of 2017 and that election hacking had been raised during the interrogation. Exerts of the letter has since been published in English Newspaper, The Guardian, however, Nikulin’s claim of interrogation has not yet been substantiated.

According to the letter, the secret agent demanded a confession from Nikulin, saying that if he admitted to hacking the servers of the DNC then the current United States government promised good treatment. Nikulin continued that he rejected this offer.

A document within the court papers has stated that an interrogation of Nikulin was conducted on the 7th February 2017. The assistant US attorney was present, alongside four Czech intelligence officers. It states that he was read his rights, pleaded not guilty and the interrogation was completed within 29 minutes.

As mentioned above, Nikulin’s has some of the best extradition lawyers working on his behalf, and they have suggested that the record of the interrogation was incomplete and that Nikulin had fallen victim to an FBI plot. Other individuals close to the case have dismissed the idea of a conspiracy, they have however conceded that there are several unusual elements surrounding the case.

One theory made by an American journalist, suggests that FBI has been rounding up Russian hackers. He believes they are doing so, so they will inform on other hackers and thus find all the individuals involved in the hacking.

Nikulin had crossed the Belarus-Poland border on the 1st October 2016. He posted a picture of himself in Warsaw on the 3rd October 2016 and was arrested on the 5th October whilst at dinner in Prague’s old town.

Immediately after Nikulin’s arrest, Russia filed their own extradition request. The reuest was based on a minor electronic theft committed in 2009. Nikulin has some of the best extradition lawyers working on his case who have stated that Russia’s arrest request is unconvincing. Howver, they continued that Nikulin would be willing to accept extradition to the United States. It has been suggested by several extradition experts that the arrest request was a thinly veiled attempt at stopping Nikulin being extradited to the United States.

It has been reported that the United States and Russia have placed considerable pressure on Prague to have Nikulin extradited. It has been reported in the Czech paper the Respekt that Russia has informally offered a swap of Nikulin for a number of Czech citizens who are wanted by Prague for a series of financial crimes.

The hearing on Tuesday afternoon was held in a small room inside of the Prague prison, the measure was considered necessary however, this meant there were only four journalists within the room that were able to witness and report on the issues. Nikulin’s top extradition lawyer has commented that in his 25 year career he had never before witnessed such a proceeding, not even for serial killers or individuals involved in serious organized crimes.

Nikulin’s mother appeared at the hearing, she stated that her son looked like skin and bones and that the decision to extradite him was political. She refused to pass comment on the nature of the allegations against Nikulin.

The judge who oversaw the case held that the requests made by both the Russian government and the United States government, met the legal requirements for an extradition request. Some of the best extradition lawyer in the country have advised Nikulin to appeal against the United States extradition but not the Russian extradition request.

After all appeals, have been heard and ruled upon, it will be at the discretion of the Czech Justice minister to decide where Nikulin will be extradited to.

It has been suggested by informed sources that the decision will be to extradite to the United States.

However, the Minister cannot currently comment on the case.

Julian Assange will not be extradited to face rape charges in Sweden

Prosecutors in Sweden have dropped their investigation into Julian Assange over the rapes he allegedly committed. This brings an end to a legal standoff which lasted seven years and could have seen him extradited from England to Sweden.

One of the best extradition lawyers, who was in charge of prosecuting Assange, held that the decision to drop the investigation was because they had exhausted all possibilities of conducting the investigation. She went on to say, that to continue with their investigations they would need to notify Assange of the criminal suspicions against him and felt they were not able to rely on the Ecuadorian embassy to do this. She stated that for now the investigation is suspended, if and when, Assange makes himself available to Swedish authorities, then they can consider resuming the investigation.

Assange has sought refuge in the Ecuadorian embassy since 2012. He has remained at the embassy since he lost his court battle in 2012. The court had ruled that he was to return to Sweden to face the rape allegations against him.

In 2015 the Swedish authorities dropped a similar case against Assange. Allegedly, he raped a Swedish woman, again by not using a condom when he said he would. In that case, however, charges were dropped because the Statute of limitations ran out before he could be brought before a Swedish court.

Assange responded to the news on Twitter with an image of himself smiling and later the same day tweeting “Detained for 7 years without charge while my children grew up and my name was slandered. I do not forgive or forget.”

A criminal defence lawyer working on behalf of the alleged rape victim has called the decision a scandal. She has stated that it is unjust that an [alleged] rapist can escape justice and the courts. She went on to say that her client is upset and shocked and that the decision to stop investigating the case does not change the mindset of the victim. The alleged victim still believes she was raped.

This now means that the threat of Assange being extradited to Sweden has been removed. Assange, now forty-five, is free to leave the embassy without risk of extradition to Sweden. However, Assange still risks extradition to the United States if he opts to leave the safety of the Ecuadorian embassy.

Assange has some of the best extradition lawyers working on his case currently and they have advised Assange to not leave the safety of the embassy until he receives assurances from the authorities of the United States that he will not face extradition for espionage. Assange potentially faces espionage charges from the United States due to several publishing’s made on WikiLeaks. It was due to these allegations against Assange that Ecuador granted him asylum to stay in the embassy.

Assange’s worries are not over purely because the best extradition lawyer in Sweden has suspended the case. If Assange leaves the embassy he faces arrest by the London Metropolitan police. Assange breached bail conditions when a warrant was issued to attend a magistrate’s court after he entered the embassy. A statement from the Metropolitan police stated that they are obliged to execute the warrant if, and when, Assange leaves the embassy.

The Metropolitan Police held that Assange was wanted on a European Arrest warrant for an offence which was extremely serious. They held their response to that issue, issuing an arrest warrant was reflective of the level of the crime they were accused of. Although Sweden has now withdrawn their investigation and thus the European arrest warrant has been withdrawn, the Metropolitan Police still want him on a lesser offence. Not adhering to the arrest warrant. They held that the level of response will be proportionate to that offence.

Assange’s has one of the best extradition lawyers on his case, the lawyer held that the decision of the Swedish authorities represented a complete victory for Assange and his defence team.

Assange’s extradition lawyer held that the news amounted to one of the happiest moments of his legal career. He held that the interrogation of Assange in November of 2016 showed he could give a good account of the night of the alleged rape and that his account demonstrated Assange had acted in a manner that resulted in sex between to consenting adults.

Claes Borgström, the original extradition lawyer for this he alleged victims, held that the decision to withdraw the investigation is regretful. He stated that he understands the reasons behind Sweden’s decision to stop investigating but he regrets the fact Assange was not brought before a court in Sweden to address the allegations against him. He went on to say that Assange was able to address the allegations before a court at any time but he chooses to escape and live in the Ecuadorian embassy out of reach of the Swedish courts for a number of years.

Assange may still face extradition to the United States, however, they have yet to officially ask for Assange to be extradited. Furthermore, Assange may still face charges for not appearing at court after an arrest warrant was issued.

Theresa May, the Prime Minister of the United Kingdom, has recently stated that any decision with regards to Assange If he were to leave the Ecuadorian embassy, would be left to the police. Therefore, if Assange leaves the embassy he still risks arrest for the police for not appearing at court at the requested time. If he leaves he then may risk extradition if the United States request it.

Theresa May went on to say after asked about extradition of Assange to the United States, that every decision to extradite is made on a case by case basis and she was unable to give an answer of his extradition at this time.

HOW TO STAY OUT OF PRISON – ACTUAL TRANSCRIPT OF COURT PROCEEDINGS WHERE GEORGE HEPBURNE SCOTT PERFORMS A MIRACLE

Donload the full transcript here

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Before:

HIS HONOUR JUDGELW QC

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REGINA

-v-

ROBBIE B

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MR BRIAN N appeared on behalf of the PROSECUTION.

MR GEORGE HEPBURNE-SCOTT appeared on behalf of the Defendant B.

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SENTENCING HEARING

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Transcript of the DARTS recording by Marten Walsh Cherer, 1st Floor, Quality House, 6-9 Quality Court, Chancery Lane, London, WC2A 1HP.

Telephone 020 7067 2900. Fax: 020 7831 6864

THIS IS A FULL AND ACCURATE TRANSCRIPT WITH NAMES OF THE JUDGE AND DEFENDANT AND PROSECUTOR DELETED FOR PRIVACY

Thursday 16 January 2015

(3.12 p.m.)

(The Defendant was identified)

THE PROSECUTION OUTLINED THE FACTS OF THE FOUR OFFENCES OF (1) ROBBERY, (2) POSSESSION WITH INTENT TO SUPPLY A CLASS A DRUG, HERION, (3) COMMON ASSAULT, and (4) POSSESSION OF A CLASS A DRUG, HEROIN

MR HEPBURNE-SCOTT:  Your Honour, these are clearly very serious matters, and, of course, perhaps the easiest and the obvious sentencing option would be an immediate custodial sentence.  I am going to urge upon your Honour a more positive and more constructive sentence which I say is merited for a number of reasons, not least because prior to these offences the Defendant had committed no offences whatsoever, and in fact had led a very constructive and positive life.  Your Honour will see from letters I am going to hand up from his grandmother that he in fact did suffer from dyslexia and he went to Thomas Bennett School where he was helped with this condition and spent time in what is known as The Link, and there was a very positive teacher there who helped him.  I will hand these up if I may because it may be helpful.

JUDGE LW:  Yes, it is probably easier.  (Same handed and read)  Yes, I have had a chance to read those.  I have not finished reading the reports.  Do you want me to read those now?

MR HEPBURNE-SCOTT:  Yes, please, your Honour, I will be referring to them.

JUDGE LW:  Yes.  Give me a moment.  (Pause)  Yes, Mr Hepburne-Scott.

MR HEPBURNE-SCOTT:  I am grateful.  If I could deal with this as shortly as Ireasonably can and deal with it in this way: before this offending, during this offending and after this offending: before this offending, and, of course, the offending was concentrated in a period of nine months, as your Honour will have noticed, from May 2013 through to March 2014, and prior to that he in fact completed two years at the Camilia Botnar Foundation in Cowfold.  The CamiliaBotnar Foundation provides residential training and work experience helping young people ---

JUDGE LW:  Yes, I saw that, and he was disappointed that he did not get an extension there.  It obviously suited him.

MR HEPBURNE-SCOTT:  Indeed, because he is not academic, he is more manual and he was doing very well there.  Unfortunately it did not lead to full-time employment.  He went back to Crawley.  He was homeless.  He went to The Foyer which is a known place for people for whom the next step is homelessness, and in The Foyer unfortunately he fell into the wrong crowd, which is precisely when this offending started, because he lost the place at the Botnar Foundation at the beginning of 2013, and that is precisely when these offences started to occur; prior to that he had no offending history whatsoever.  It was then he fell into the wrong crowd and this offending period began.  We have the robbery in May 2013.  I think there was a shoplifting in January 2013, and there was the assault in September 2013 and in January 2014 the possession with intent to supply and March 2014 the possession of heroin etc.

    If I could deal with the matter chronologically as briefly as I reasonably can: guilty pleas to the robbery. Your Honour sentenced his co-defendant who had not pleaded guilty to a nine month suspended sentence.  Your Honour observed on sentencing the co-defendant that the co-defendant C had set it up because he knew the victim had had arranged for him to be at a certain point at a certain time, whereupon he was attacked by the defendant and was robbed, as your Honour knows.  This defendant pleaded guilty to that matter and the co-defendant was sentenced on a joint enterprise basis.

   In the pre-sentence report in relation to the robbery your Honour will have noted the multiple references to his genuine remorse; his victim empathy and, of course, his thinking deficits in relation to that.  At the bottom of page 2 of 8:

“Mr B demonstrated some victim empathy by acknowledging Mr P would have sustained physical injuries, would have felt frightened and he would have felt angry that his phone had been stolen.  However, he acknowledged he gave little thought to victim at the time of the offence, which is self-evident.”

    At the end of the second paragraph on page 3 of 8, “The index offence demonstrates deficits in Mr B’s thinking which he could benefit from completing work around.”

    The third paragraph, second sentence, “He is extremely remorseful and regretfulof his actions.  This possibly may have motivated him to acknowledge his difficulties and the facts associated with this offending.  He presents as motivated, has developed his understanding and improved his awareness of alternative coping strategies which are a good starting point.”

    On page 4 of 8 it refers in the fifth paragraph to the Camilia Botnar Foundation, and then it says in the penultimate paragraph: “He was signed off as unfit to work due to anxiety and depression in September” etc.

    On page 6 of 8, in the second paragraph it states, “In my opinion the risk Mr Bposes could be reduced if he were to gain a deeper understanding and motivation behind his actions and improve his ability to deal with conflict in an appropriate way, increase his emotional recognition and control, develop his consequential thinking skills and problem solving” etc.

    In relation to the assault, it may not be the most serious matter before your Honour, but it involves the theft of a bicycle from a friend, and he became involved in that dispute unfortunately.  He was subjected to a conditional discharge.  In January 2014, which, together with the robbery, is perhaps the most serious matter, the possession with intent to supply heroin and cocaine and possession of cannabis.  In relation to that he got into a drug debt from his time at The Foyer in relation to cannabis and cocaine.  His debt reached £3,000.  He has told me, frankly, he was put in a car with someone who had a driving licence but who was a crack user who could not be trusted by the group to sell the drugs so the defendant was entrusted to sell the drugs, and the other man was the driver.  The defendant tells me he was given £100 a day which came off the debt.  It is very clear that it was a drug dealing group that put him in the car, gave him his stock, told him what to do and how to do it, etc., getting the phone etc. and he was told what to do and it was to come off the drug debt, not an uncommon occurrence your Honour, in my submission.  He was pressured and played a limited role, a lesser role in my respectful submission, which would enable your Honour to sentence within the sentencing guidelines to a non-immediate custodial sentence in my respectful submission if your Honour were so minded given the lesser role in category 3 on a guilty plea.  With a starting point of three years, your Honour could properly impose a sentence of two years.

JUDGE LW:  That would be all right if he had just the one offence.

MR HEPBURNE-SCOTT:  Yes.

JUDGE LW:  The difficulty is that I am sentencing him (a) for a robbery, which on the face of it calls for an immediate sentence, Class A drugs followed by a further arrest for Class A drugs.  You are going to have to explain how I justify a non-immediate sentence.

MR HEPBURNE-SCOTT:  The main thing your Honour is that he was not offending before this period began; he has not been offending since, in the following ten months he has committed no offences whatsoever.  In the ten months to today he has been working, paying rent, paying tax, being a productive and constructive member of the community, responsible and respectable, for the last ten months.

JUDGE LW:  That is commendable and I accept that but how do I justify a non-immediate custodial sentence where I have three sets of offences all of which have, basically, a minimum of two years as a starting point.

MR HEPBURNE-SCOTT:  In my respectful submission, clearly it is difficult for me to persuade your Honour of that but I would submit that your Honour could properly do that on the basis that (a) the co-defendant received a suspended sentence of nine months for the robbery, for the self-same robbery for which he pleaded not guilty, caused the victim to give evidence and contested the matter and tried his luck.  The defendant pleaded guilty at the very first opportunity.

JUDGE LW:  He also kicked him on the floor.

MR HEPBURNE-SCOTT:  He inflicted the force, your Honour, yes, which is deeply unattractive but, of course, the co-defendant lured his friend, which is an aggravating feature in his case, but given the parity of sentence your Honour could properly suspend the sentence for that, in my respectful submission, given it was a joint enterprise and he benefits from a guilty plea and he was only 19.

   In relation to the possession with intent to supply, given his limited role your Honour could sentence him to a sentence of two years or less properly within the guideline, given the guilty plea, which would enable your Honour to suspend.  Your Honour, those are the two main sentences which would on the face of it attract an immediate custodial sentence.  In relation to the other matters, possession only of Class A drugs would not necessarily attract an immediate custodial sentence, in my respectful submission, nor would the other matter of common assault, so on the two principal matters, your Honour, those are my submissions, that your Honour could properly ---

JUDGE LW:  The common assault was where?

MR HEPBURNE-SCOTT:  It was in Crawley, in September 2013.  He was given a conditional discharge.

JUDGE LW:  Yes.

MR HEPBURNE-SCOTT:  So the only two matters for which your Honour may well be minded to impose an immediate custodial sentence are (a) the robbery, which I have made submissions in relation to, (b) the possession with intent to supply, given the role, given the guilty plea, given the lack of antecedents in relation to the possession with intent to supply I would submit that, given his age and his behaviour subsequently, your Honour could properly impose ---

JUDGE LW:  But you are forgetting the second of those?

MR HEPBURNE-SCOTT:  The possession?

JUDGE LW:  Yes, with intent.

MR HEPBURNE-SCOTT:  The possession of heroin, yes, I submit that in relation to that mere possession of a Class A drug would not in itself ordinarily attract an immediate prison sentence.  Of course it was pretty stupid to be possessing heroin after he had been arrested for supplying heroin, which weaves into the stupidity argument of whyin this concentrated period of nine months he has clearly been incredibly stupid but has made every effort to redeem himself and to restore the situation through his own actions.  He has attended Addaction.  He is attending somewhere for anger management.  He is working.  He has got privately rented accommodation.  He is about to be a father in March.  He has got the strong support now of his family.  His grandmother has attended on each occasion, a very responsible confident lady.  She is in court.  If I may I will invite your Honour to hear from her briefly in character evidence.  He has got his girlfriend, and of course she supports him.  He has now got his mother and father who also support him and he is a far better place than he was when he commenced this series of offending and in my respectful submission, your Honour, the public and society of course would be served by an immediate custodial sentence.  Of course that could not be criticised, but they may be better served by building on his new responsible productive, constructive attitude and it may be a more positive sentence which would enable the court to control him for a period of two years and to monitor his ongoing progress and reintegration back into society, which may not be served with a custodial sentence which may obviously have a slightly different effect.

    Your Honour, may I call Joyce B?

JUDGE LW:  Yes.

MR HEPBURNE-SCOTT:  Briefly, I realise the time and I realise other counsel are keen to get on.

JUDGE LW:  Please do not worry about that.

JOYCE B, Sworn – GRANDMOTHER GIVES EVIDENCE

(The witness withdrew)

MR HEPBURNE-SCOTT:  I am very grateful to your Honour hearing from that witness and listening to my perhaps over-lengthy submissions.  Your Honour does have the power to be merciful to this young man, in my respectful submission, properly within the guidelines given the guilty pleas and the role of PWI (Possession with Intent to Supply) and the sentence for the co-defendant in the robbery.  In my respectful submission, that sentence would be a proper sentence in the circumstances given all the mitigation and the fact that he has been impeccably well behaved in the last ten months.  It was a concentrated period of time, borne out of circumstances of mental illness and he committed a series of offences within that limited of time and he bitterly regrets that.  He has done everything he can to redeem himself and he has pleaded guilty to every single matter and he does ask for your Honour’s mercy in this particular case with a positive constructive, although very punitive, sentence which your Honour can impose within the community and would involve also a prison sentence although not an immediate one.

JUDGE LW:  Thank you.

SENTENCING REMARKS

JUDGE LW:  MrB, totting up the sort of sentences that you should get for these offences we get to about four to five years: that is the reality of it but somehow there seem to be circumstances that make that the wrong sentence.  To impose a sentence which I hope will allow you to continue to make progress but holds a threat over your head I am going to distort what should happen.

    For the robbery there will be nine months suspended for two years.  For possession with intent to supply Class A drugs two years imprisonment suspendedtwo years on each concurrent: for possession of the cannabis three months suspended, that is concurrent to the two years and concurrent to the nine months.  The bladed article, six months suspended for two years, again concurrent.

    For possession of heroin there will be a fine of £150: for the obstructing a police officer a fine of £200.  There will be no order on the breach of conditional discharge.

    There will be a statutory surcharge on the possessions with intent to supply Class A drugs (£100).  You will be told what that is by Mr Hepburne-Scott.

I may be doing the right thing by you but there are a large number of members of the public who will think I have gone stupid.  If you come back because you behave badly in the next two years you will come back to me and you will be sentenced to that sentence of imprisonment, so do not, but you are very lucky.

     I have put down 250 hours of unpaid work.  Does that need to attach to any particular sentence?  Possession with intent to supply Class A drugs.

     The drugs and the bladed article will be forfeit and destroyed.

     The fines should be paid at £50 per months, first payment 1 February.

Top Officials Indicate that Ottawa is set to Renegotiate Extradition Treaty with the Chinese Government Lawyers

The Ottawan authorities have indicated an intention to renegotiate an extension to its extradition treaty with China. This is a politically controversial move in light of the fact it took place just two days before Canadian missionary Kev Garratt was expected to be deported from the country.

Canada’ national security adviser met with officials from the Chinese government in Calgary last Tuesday in order to hold talks on the extradition issue, which a former top Canadian politician describes as a ‘classic quid pro quo’ between the two countries.

China has long desired a renegotiation to the extradition treaty that would then ensure that Canada transfers corrupt Chinese officials to a country known for secret courts and creative interrogation methods and where the death sentence is routinely imposed even for minor misdemeanors.

Top Foreign Affairs Spokesman Stéphane Dion has said that Canada did not accept and sweeteners for the swift return of Garratt, who had served three years in Chinese custody on ‘trumped-up’ charges of espionage.

“It’s not the Prime Minister’s general style,” Dion told press representatives on Friday in Calgary when she was asked if Canada had done a special deal to ensure Mr. Garratt’s return. “Prime Minister Trudeau doesn’t make unprincipled concessions.”

A top diplomat who was close to the extradition negotiations said that it appeared that China had used Mr. Garratt to gain leverage in the discussions.

“The Chinese government is just a very canny negotiator with a lot of experience in negotiating with various Western states andwe may not have been operating with the same degree of care and sophistication,” explained the diplomat who did not wish to be named.

Sources indicate that the Chinese and Canadian lawyers have negotiated an extradition treaty whereby each nation will share the confiscated assets of corrupt Chinese officials that are made the subject of extradition proceedings.

A day after the talks were initiated Garratt was released by a top Chinese Court. Extradition lawyers have stated that he is now free to return to Cananda

This is a goodwill gesture and his lawyers have said that he will return to his homeland as soon as possible.

Critics of the treaty have indicated that extradition to China will involve inevitable human rights abuses that should not be ignored.

Canada does usually forbid the extradition of people to countries where the death penaltyis in place, although Chinese fugitives have been repatriated on condition they are not executed and this assurance has generally been upheld.

In 2011, Canada unofficially extradited Lai Changxing, who had beenconvicted in China of heading a massive smuggling operation.

China reassured Canada he would not face the death penalty.

Canada has extradited more than 1,400 Chinese nationals since 2009, mainly involving illegal immigration. Top extradition lawyers say many more are to now follow.