EXTRADITION: DAVID JOHN CALDER v. HER MAJESTY'S ADVOCATE, 14 July 2006, Lord Macfadyen+Lord Kingarth+Lady Cosgrove

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DAVID JOHN CALDER v. HER MAJESTY'S ADVOCATE, 14 July 2006, Lord Macfadyen+Lord Kingarth+Lady Cosgrove
APPEAL COURT, HIGH COURT OF JUSTICIARY


Lord Macfadyen Lord Kingarth Lady Cosgrove [2006] HCJAC 62 Appeal No: XJ250/06
OPINION OF THE COURT
delivered by LORD MACFADYEN
in
BILL OF ADVOCATION
by
DAVID JOHN CALDER
Appellant;
against
PROCURATOR FISCAL, Aberdeen
Respondent:

Act: Bovey, Q.C., M. Hughes; George Mathers & Co., Aberdeen
Alt: Miss Crawford; Crown Agent
14 July 2006
Introduction

[1] This Bill of Advocation relates to proceedings under the Crime (International Co-operation) Act 2003 (the 2003 Act), which took place in the Sheriff Court in Aberdeen. On 10 June 2004 the sheriff, on the application of the respondent, pronounced an order allowing certain evidence to be received under section 15 of the 2003 Act, and ordering that it be forwarded to the requesting

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authority, the United States Department of Justice. In the Bill, the complainer seeks to have the

order of the sheriff recalled.

The legislation
[2] It is convenient to begin by setting out the relevant provisions of the legislative framework

within which the proceedings before the sheriff took place. Chapter 2 of Part 1 of the 2003 Act deals

with the mutual provision of evidence, and sections 13 to 18 contain provisions for assisting

overseas authorities to obtain evidence in the United Kingdom. Sections 13 to 15 are of particular

relevance in the present case.

[3] Section 13 provides inter alia as follows:

"(1) Where a request for assistance in obtaining evidence in a part of the United Kingdom is received by the territorial authority for that part, the authority may ―

(a) if the conditions in section 14 are met, arrange for the evidence to be obtained under section 15, ...

(2) The request for assistance may be made only by ―

(a)
a court exercising criminal jurisdiction, or a prosecuting authority, in a country outside the United Kingdom,
(b)
any other authority in such a country which appears to the territorial authority to have the function of making such requests for assistance, ..."
The "territorial authority" in relation to evidence in Scotland is the Lord Advocate (section 28(9)

(b)). By section 51(1) "evidence" is given a broad, non-technical definition - it includes

"information in any form and articles" and giving evidence includes "answering a question or

producing any information or article".

[4] Section 14 provides inter alia as follows:

"(1) The territorial authority may arrange for evidence to be obtained under section 15 if the request for assistance in obtaining the evidence is made in connection with

―

(a) criminal proceedings or a criminal investigation, being carried on outside the United Kingdom, ...

(2) In a case within subsection (1)(a) or (b), the authority may arrange for the

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evidence to be so obtained only if the authority is satisfied ―

(a)
that an offence under the law of the country in question has been committed or that there are reasonable grounds for suspecting that such an offence has been committed, and
(b)
that proceedings in respect of the offence have been instituted in that country or that an investigation into the offence is being carried on there. ...
(3) The territorial authority is to regard as conclusive a certificate as to the matters mentioned in subsection (2)(a) and (b) issued by any authority in the country in question which appears to him to be the appropriate authority to do so."

It is to be noted that in terms of that section, assistance may be provided in two situations, namely

where criminal proceedings are already taking place in the country in question, and where, although

there are as yet no current criminal proceedings, a criminal investigation is being carried on.

[5] Section 15 provides inter alia as follows: "(3) Where the evidence is in Scotland, the Lord Advocate may by a notice nominate

a court to receive any evidence to which the request relates which appears to the court to be appropriate for the purpose of giving effect to the request."

Section 15(5) gives effect to Schedule 1 in relation to proceedings before the nominated court.

Paragraph 6 of Schedule 1 provides inter alia that: "(1) The evidence received by the court is to be given to the court or authority that made the request or to the territorial authority for forwarding to the court or authority that made the request."

[6] Section 49 empowers this court by Act of Adjournal to make rules of court in connection with

proceedings under Part 1 of the Act. Paragraph 4 of Schedule 1 provides that such rules may make

provision in respect of the persons entitled to appear or take part in the proceedings and for

excluding the public from the proceedings. Rule 36.9 of the Act of Adjournal (Criminal Procedure

Rules) 1996 (as amended) provides inter alia that in proceedings before a nominated court:

"(c) where the request under section 13(1) of the Act of 2003 originates from current criminal proceedings any party to or persons with an interest in those proceedings may attend and, with the leave of the court, participate in any hearing; ...

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(e)
a lawyer or person with a right of audience from the requesting country who represents any party to the current criminal proceedings may participate in any hearing;
(f)
a solicitor or counsel instructed by any party may participate in any hearing;
(g)
any other person may, with the leave of the court, participate in any hearing; ...
(i)
the proceedings shall be in private."
Chronology of events
[7]
The sequence of events which has led to the present proceedings began in August 2003 when H.
M.
Customs and Excise seized 5 litres of Gamma-Butrylactone (GBL) which had been sent to an address in San Francisco by Natural Clean UK, a business operated by the complainer. GBL is a precursor chemical used in the manufacture of Gamma-Hydroxybutyrate (GHB), a class C drug specified in Part III of Schedule 2 to the Misuse of Drugs Act 1971 (the 1971 Act). The United States Drug Enforcement Administration (DEA) was informed of the seizure and an international controlled delivery was effected. Between 18 and 20 August 2003 a further eight packages of GBL addressed by the complainer to various recipients in the United States were seized, and further controlled deliveries were made between 29 August and 11 September.
[8] The authorities in California instituted a criminal investigation into whether the complainer's activities in relation to GBL constituted criminal offences there. On 14 January 2004 the US Department of Justice made a request for assistance in connection with that investigation to the appropriate authorities in the United Kingdom, seeking physical and electronic surveillance of the complainer. On 11 March 2004 the sheriff at Aberdeen, on the application of the present respondent, granted to an officer of the Scottish Drug Enforcement Agency (SDEA) two warrants, at common law and under section 23(3) of the 1971 Act, to search the complainer's premises at 9 Belmont Gardens, Aberdeen. The warrants were executed the following day. Various items were seized, including quantities of GBL, a computer and various documents. The complainer was cautioned and charged with inter alia contravention of section 4(2)(b) of the 1971 Act. On 15 March 2004 he appeared on petition at Aberdeen Sheriff Court, charged with contravention of that

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section.

[9] On 21 April 2004 the US Department of Justice made a supplemental request for assistance, seeking custody of the evidence seized under the search warrants, as well as documents obtained from various other sources. On 30 April 2004 the Lord Advocate, acting under section 15(3) of the 2003 Act, nominated the Sheriff Court at Aberdeen to receive such of the evidence requested as might appear to the court to be appropriate for the purpose of giving effect to the request. On 1 June 2004 the US Department of Justice made a second supplemental request seeking certain bank records. On 3 June the Lord Advocate made a further nomination of Aberdeen Sheriff Court under section 15(3). It is not disputed that the requests for assistance were made by an authority entitled to make such requests under section 13(2), or that the Lord Advocate was entitled to be satisfied of the matters mentioned in section 14(2).

[10] On 10 June 2004 a hearing took place before the sheriff at Aberdeen for the purpose of receiving evidence in pursuance of the supplemental requests for assistance. The hearing was conducted by a Procurator Fiscal Depute. As she indicated (see page 1 of the Transcript of the proceedings) the hearing took place in private. There were present an Assistant US Attorney for the Northern District of California and a Special Agent of the DEA, as well as officers of the SDEA. The complainer was not present and not represented. Since there were at that date no current criminal proceedings in California, the complainer was not a party to, or a person interested in, such proceedings, and was accordingly not entitled to be present in terms of Rule 36.9(c), or represented by American or Scottish lawyers in terms of Rule 36.9(e) or (f). No question of whether he should be granted leave to participate in the hearing in terms of Rule 36.9(g) was raised by the Procurator Fiscal Depute. There is nothing in the transcript to indicate that the sheriff applied his mind to paragraph (g). In the course of the hearing various pieces of evidence recovered in the search, as well as other pieces of evidence which had been recovered under production orders, were received by the court. Some of the evidence received by the court was not evidence identified in the formal

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requests, but had been the subject of informal requests (see page 4 of the Transcript). All of the evidence was presented as relating to the criminal investigation of the complainer's activities in relation to the supply of GBL. The sheriff, on the motion of the Procurator Fiscal Depute, accepted that receipt of that additional evidence was appropriate for the purpose of giving effect to the requests (see page 25 of the Transcript). The sheriff ordered that the evidence which had been received be forwarded to the requesting authority.

[11] Under the federal law of the United States, a criminal prosecution commences when a grand jury files an indictment. On 24 June 2004 a grand jury sitting in San Francisco returned a superseding indictment charging the complainer and one Jamie Norman Greiman with criminal offences under the laws of the United States and filed it with the US District Court for the Northern District of California. (The original indictment, which had been returned on 15 April 2004, named only Greiman as a defendant.) The filing of the superseding indictment of 24 June 2004 constituted the commencement of criminal proceedings against the complainer. A second superseding indictment was returned and filed on 12 August 2004. The second superseding indictment contained 377 charges. Charges 1 to 4 were conspiracy charges. They related to alleged conspiracies (1) to manufacture GHB, (2) to import GBL with intent to manufacture GHB, (3) to import GBL knowing that it would be used to manufacture GHB and (4) to import GBL. Charges 5 to 292 related to individual drug transactions. The drugs charges all involved alleged contraventions of sections of Title 21 of the US Code. Charges 294 to 377 were money laundering charges alleging contraventions of provisions of Title 18 of the US Code. (Charge 293 related only to Greiman.)

[12] Proceedings for the extradition of the complainer to the United States were commenced in June 2004. On 28 June the sheriff at Edinburgh granted a provisional warrant for the arrest of the complainer under sections 73(3) and 74(3) of the Extradition Act 2003. Thereafter sundry procedure took place in the extradition process. There was also a related petition for judicial review. It is unnecessary for present purposes to go into the detail of those proceedings, save to note that it was

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on 19 January 2006 in the course of a hearing in the extradition process that the complainer and his advisers first became aware of the order made by the sheriff in Aberdeen on 10 June 2004. On 24 February 2006 the sheriff at Edinburgh in terms of section 87(3) of the Extradition Act 2003 sent the case to the Scottish Ministers for their decision whether the complainer was to be extradited. On 23 May 2006 the Scottish Ministers decided to extradite the complainer. The complainer has appealed to this court against the decisions of the sheriff at Edinburgh and the Scottish Ministers, and a hearing in the appeal is set down for 23 August 2006.

Submissions for the complainer
[13] The complainer's submissions were founded on two provisions of the European Convention on

Human Rights, namely Article 1 of the First Protocol (Article 1), and Article 8. Article 1 provides

inter alia as follows: "Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest ...".

Article 8 provides as follows:

"1. Everyone has the right to respect for his private and family life, his home and his

correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests ... for the prevention of disorder or crime ...".

[14] The submission for the complainer was that the requirement of lawfulness, expressed in these provisions of the Convention, meant that there had to be not only compliance with the relevant provisions of domestic law, but also compatibility with the rule of law. The domestic law had to be construed in a way that was compatible with the complainer's Convention rights (Human Rights Act

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1998, section 3; R v A [2002] 1 AC 45, paragraphs 29 to 30 and 46). The rule of law, as one of the fundamental principles of a democratic society, was inherent in all of the articles of the Convention (Iatridis v Greece (2000) 30 EHRR 97, paragraph 58). The provisions of the domestic law therefore had to be sufficiently precise and foreseeable (Hentrich v France (1996) 21 EHRR 199, paragraph 42; Beyeler v Italy (2001) 33 EHRR 52, paragraph 109). Moreover, the law must provide a measure of legal protection against arbitrary interferences by public authorities with Convention rights (Capital Bank AD v Bulgaria, application no. 49429/99, 24 November 2005, paragraph 134). The scope of any discretion therefore required to be indicated with sufficient clarity to give affected persons adequate protection against arbitrary interference (Zlínsat v Bulgaria, application no. 57785/00, 15 June 2005, paragraphs 97 and 98). The concepts of lawfulness and the rule of law require that measures affecting fundamental human rights be accompanied by appropriate procedural safeguards, and in ascertaining whether that condition has been satisfied, a comprehensive view must be taken of the applicable procedures (Hentrich, paragraph 49; Jokela v Finland, application no. 28856/95, 21 May 2002, paragraph 45). Similar procedural safeguards applied in relation to article 8 (Hasan and Chaush v Bulgaria, application no. 30985, 26 October 2000, paragraph 84).

[15] Seeking to apply these considerations to the circumstances of the present case, counsel for the complainer submitted that the decision of the sheriff was contrary to the Convention in three respects. First, there were insufficient procedural safeguards, in respect that the proceedings before the sheriff were not intimated to the complainer, so as to give him an opportunity of seeking leave under rule 36.9(g) to participate in the proceedings. Secondly, the procedural safeguards were insufficient in respect that, despite the terms of rule 36.9(g), no consideration was given to whether the proceedings should have been intimated to the complainer. Thirdly, the test of legality was not met, because the permissible interference with the complainer's convention rights was not sufficiently prescribed by law.

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[16] In elaborating the submission based on the absence of intimation or notification of the proceedings to the complainer, counsel drew attention to a Home Office circular dealing with Part 1 of the 2003 Act which, at paragraph 47, stated inter alia that: "The court will ... notify parties with interests in the proceedings." The duty of notification was thus incumbent on the court. In terms of rule 36.9(c), an accused person in current criminal proceedings was entitled to attend as of right. The reference to "any other person" in rule 36.9(g) included a person who was the subject of a criminal investigation. Such a person might participate in the hearing with leave of the court. There was no good reason why the complainer should not have been notified of the hearing. In the answers to the Bill of Advocation the Crown aver:

"... intimation to the complainer of proceedings before the nominated court would have been tantamount to intimation of an ongoing investigation into criminal conduct over which the Courts of the United States of America had jurisdiction. It would not have been in the interests of justice for such intimation to have been given."

That reason for not notifying the complainer was, it was submitted, insufficient to justify interference with his Convention rights. Counsel accepted that if there had been danger of property being put away if the complainer was notified, that might justify the court, on considering the matter, to decline to notify the complainer. But here the complainer already knew about the allegations against him as a result of the Scottish proceedings, and the property was already in the hands of the Scottish prosecuting authorities. The Californian prosecutor and the representatives of the DEA were in Scotland in the period before the hearing, and present at it, and could have indicated any specific ground for apprehending that intimation of the proceedings to the complainer would prejudice their investigation, but they did not do so. In these circumstances the reference to the interests of justice in the answers was insufficiently specific.

[17] It was further submitted on the complainer's behalf that if he had had intimation of the hearing, he would have applied to be present and legally represented, and to take part in the proceedings. There would have been no reason for the sheriff to refuse such an application. The complainer

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would have made submissions against the granting of the order. He would have done so, in particular, on the ground that to send the evidence to the United States when there were current proceedings based on the same material in Scotland involved pre-judging the issue of where he should stand trial. By sending the evidence to the United States, the Scottish prosecuting authorities put it beyond their power to prosecute the complainer in Scotland. The fact that in the circumstances that now prevailed there was only a "mere possibility" of prosecution in Scotland had been taken into account in the extradition proceedings.

[18] Counsel made reference to Harris, Complainer 1994 JC 18, a case under section 2 of the Criminal Justice Act 1987, and accepted that it afforded some support for the competency of refusing to intimate proceedings to the person concerned if to do so would give rise to a possibility of frustrating the criminal investigation to which they related. He accepted that intimation could be refused if there was ground for apprehending such frustration. It was, however, for the court to consider whether intimation would have such an effect. If that was not the duty of the court, there were no adequate procedural safeguards to support the legality of the interference with the complainer's Convention rights. It was clear from the transcript of the proceedings before the sheriff that the sheriff was not informed that the complainer had been interviewed by the police in Scotland in terms that disclosed to him that the investigation was concerned inter alia with supply of GBL in the United States. The sheriff thus had not had before him facts which had a bearing on the likelihood of frustration of the investigation. Indeed it was evident that the sheriff had simply not considered the question of intimation at all. The fact that the sheriff had received evidence which was not evidence to which the requests related demonstrated that the procedure of a hearing before the sheriff was not by itself a sufficient safeguard. It was necessary in addition that the sheriff consider intimation to the person under investigation. If that had been done, intimation would have been ordered, because there was in the circumstances no risk of frustration of the investigation. If intimation had taken place and the complainer had been legally represented at the hearing, it was

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inconceivable that the sheriff would have made the order that he did.

[19] Although in the Bill of Advocation the remedy sought is (a) the recall of the sheriff's order and

(b) a remit to the sheriff to reconsider the request for assistance anew, counsel ultimately confined his motion to the first of these steps. He submitted that such an order would be effective, despite the fact that the evidence in question is in the United States. The United States authorities would not wish to have evidence which had been obtained without lawful authority, and would therefore take steps to regularise the position, either by seeking lawful authority, or by returning the evidence to Scotland.

Submissions for the respondent
[20] Counsel for the respondent submitted that the sheriff's decision was lawful and compatible with the complainer's rights under article 8 of the Convention and article 1 of the First Protocol. She therefore submitted that the Bill should be refused. She also submitted that in the circumstances the Bill was incompetent, and should be refused on that account.

[21] It is convenient to take note first of the submission that the Bill of Advocation is incompetent. The proposition relied upon was that a Bill of Advocation cannot be used as a means of obtaining review of a final decision on its merits. The Bill of Advocation, in seeking to have the sheriff's decision recalled, and a remit made to the sheriff to reconsider the request for assistance anew, in effect sought to review the merits of the sheriff's decision. The sheriff's decision was a final disposal of the section 15 application. Reference was made to MacLeod v Levitt 1969 JC 16, in which Lord Cameron said (at 19):

"The limited sphere of competence of the process of advocation lies in the correction of

irregularities in the preliminary stages of a case". Reference was also made to Durant v Lockhart 1985 SCCR 72 and H, M, Advocate v Khan 1997 SCCR 100.

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[22] Assuming, against her preliminary submission, that the Bill of Advocation was competent, counsel for the respondent submitted that the complainer's Bill disclosed a fundamental misunderstanding of the nature of proceedings under sections 13 to 15 of the 2003 Act. In statement 15 of the Bill it was averred that had the complainer been able to take part in the proceedings before the sheriff, it would have been open to him to draw the sheriff's attention to the existence of the criminal proceedings against him in Scotland, and the extent to which the transfer of evidence to the United States prejudged any extradition request that might be made in respect of him. On a sound view of sections 13 to 15, no question of pre-judging possible extradition proceedings was before the sheriff. At the stage of the proceedings before the sheriff, it was not open to him to speculate as to where the criminal investigation being conducted in the United States might lead, or whether a request for extradition might be made, or what decision might be appropriate in relation to such a request, if made. Nor was it open to the sheriff to speculate as to what decision might be made in the public interest by the Lord Advocate in relation to criminal proceedings in Scotland. The purpose of the 2003 Act, as set out in the long title, was inter alia "to make provision for furthering cooperation with other countries in respect of criminal proceedings and investigations". Proceedings under sections 13 to 15 had the limited purpose of enabling the relevant authorities in the United Kingdom to make available to relevant authorities in another country evidence that might facilitate criminal proceedings or criminal investigation in that other country. Such proceedings involved no determination of guilt or innocence of crime, nor did they bear on whether extradition would be sought, or, if sought, would fall to be granted. They were no more than an evidence gathering process (R v Secretary of State for the Home Department, Ex parte Zardari [1998] EWHC Admin 305, per Lord Bingham of Cornhill CJ at paragraph 14). Where they related to a criminal investigation, the permissible area of search was wider than where they related to current criminal proceedings (R v Home Secretary, Ex parte Fininvest S. p. A. [1997] 1 WLR 743, per Simon Brown LJ at 752D). The interest of the individual in the proceedings under section 15 varied according to

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whether there were current criminal proceedings against him in the requesting country, or whether matters there had not yet proceeded beyond a criminal investigation.

[23] That distinction was reflected in Rule 36.9. Paragraph (c) gave a right to the subject of current criminal proceedings to be present, and to seek leave to participate in the hearing. The catch-all provision of paragraph (g), which applied to inter alios a person who was the subject of criminal investigation, gave no right to be present, but contemplated that leave to participate might be granted. The latter provision could be relied upon by a person who was the subject of a criminal investigation and became aware of the hearing (as happened in R v Secretary of State for the Home Department, Ex parte Zardari - see paragraph 5), but gave no right to receive notice of that hearing. The distinction was reflected also in the domestic rule that required intimation of an application for a warrant only after committal. The respondent's contention that it was not in the interests of justice in the present case that notice of the hearing should have been given to the complainer was based in part on the consideration that the Rules provided that the proceedings would be private (rule 36.9(i); rule 36.11(2); see also Mutual Legal Assistance Guidelines, (Third Edition) May 2006, page 20, as to the confidentiality of the process), and partly on the obvious consideration, presumptively applicable in such circumstances, that to notify the suspect of the proceedings would enable him to take steps either to thwart the recovery of evidence, or more generally to frustrate the investigation.

[24] Counsel submitted that the sheriff's jurisdiction under section 15 was essentially administrative. It involved no adjudication inter partes. It was an administrative process which followed upon the Lord Advocate's nomination of the particular court to receive the evidence. The only discretion to be exercised by the sheriff was in determining whether receipt of the evidence was "appropriate for the purpose of giving effect to the request" (R v Bow Street Magistrates' Court, Ex parte Zardari [1998] EWHC Admin 461, per Latham J at paragraphs 10 and 11). The use to be made of the evidence was a matter for the requesting state (R v Secretary of State for the Home Department, Ex parte Zardari, Per Lord Bingham of Cornhill CJ at paragraph 14). Representations of the sort that

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the complainer said he could have made if he had had notice of the hearing and had been given leave to participate would have been irrelevant to the limited decision which the sheriff had to make.

[25] In relation to the complainer's submissions in respect of article 8 of the Convention and article 1 of the First Protocol, counsel for the respondent submitted that the proceedings under section 15 satisfied the tests of lawfulness and proportionality. In so far as the provision of evidence to the United States might be seen as engaging the complainer's rights under those articles, it was done in accordance with the law as laid down in the 2003 Act. It was not arbitrary. The complainer's susceptibility to such procedure was clearly laid down in the 2003 Act, and was thus foreseeable. The purpose of the procedure and the circumstances in which it might be invoked were clearly laid down. The safeguards varied according to whether the evidence was sought for current criminal proceedings or for a criminal investigation. In the latter case, however, the need for a hearing before the sheriff provided independent judicial control of the administrative process. Intimation to the person under investigation was not a necessary safeguard in such a case.

The complainer's response
[26] Counsel for the complainer responded to the submissions of counsel for the respondent by making a number of brief points. First, he submitted that the attack on the competency of the Bill of Advocation was misconceived. He was not seeking review of the sheriff's decision. He was seeking to challenge the preliminary irregularity that the sheriff had failed to secure that the hearing was intimated to the complainer, so that he might make an application for leave to participate. So viewing the purpose of the Bill, MacLeod v Levitt was in the complainer's favour. Secondly, in the context of the article 8 and article 1 submissions, he submitted that it was of no avail to categorise the proceedings before the sheriff as administrative. However they were classified, appropriate safeguards of the complainer's Convention rights were required. Thirdly, he stressed that his

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submission was not concerned with proportionality. He was concerned with the earlier question of lawfulness. Fourthly, he submitted that such indications as there were that proceedings under the 2003 Act would be kept confidential did not guarantee that they would be kept secret from the suspect. Finally, the analogy with a domestic warrant was inept, because in the present case the evidence had already been taken beyond the complainer's control, and he already knew that there was an investigation into his conduct in progress in the United States.

Discussion
[27] We reject the submission advanced by counsel for the respondent that the Bill of Advocation is incompetent. The parties were at one in relying on the observation of Lord Cameron in MacLeod v Levitt at page 19 to the effect that a Bill of Advocation is competent only to correct irregularities in the preliminary stages of a case. The difference between them lay in the characterisation of the aim of the remedy sought by the complainer. The respondent characterised it as an attempt to review the final decision of the sheriff on its merits. The complainer, on the other hand, at least as his submission was developed before us, focused on the fact that the sheriff did not consider notifying the complainer of the section 15 hearing, and consequently did not give such notification. That was said to be contrary to the complainer's Convention rights. In our view the complainer's characterisation of the issue raised in the Bill is preferable, and on that view of the matter, the Bill is competent.

[28] The complainer's submissions are founded on the proposition that the proceedings before the sheriff infringed his Convention rights under article 8 of the Convention and article 1 of the First Protocol. Since we heard no detailed submissions on the point, we proceed on the assumption that in the circumstances those Convention rights are engaged. The issues on which the parties focused were whether, in so far as article 1 of the First Protocol was engaged, any deprivation of the complainer of his possessions was "subject to the conditions provided for by law", and, in so far as

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article 8 was engaged, any interference with the complainer's article 8.1 right was "in accordance with the law". These provisions raised the issue of the "lawfulness" of the interference. Counsel for the complainer stressed that his contention was that the interference was unlawful, not that it was disproportionate. We are therefore able to concentrate our attention on the issue of lawfulness.

[29] Before doing that, however, it is in our opinion important to place the issue which the complainer raises in its proper context. That involves reaching an understanding of the nature and purpose of proceedings under section 15 of the 2003 Act. As we have already noted, the purpose of the 2003 Act, as set out in the long title, is "to make provision for furthering co-operation with other countries in respect of criminal proceedings and investigations". The investigations in respect of which the requests for assistance were made by the United States authorities in the present case were investigations into suspected serious international drug dealing offences. There was therefore a strong public interest in affording assistance, provided the control mechanisms incorporated in the statute were allowed to operate appropriately.

[30] These control mechanisms are reflected in the statutory provisions. By virtue of section 13(3) a request for assistance must come from a criminal court, or prosecuting authority or other authority having the function of making such requests in the requesting country. By virtue of section 14(1), the request for assistance must relate to the obtaining of evidence in connection with proceedings of various defined sorts, including (by paragraph (a)), criminal proceedings or a criminal investigation. Further, by section 14(2) the territorial authority must be satisfied (a) that an offence under the law of the requesting country has been committed or there are reasonable grounds for suspecting that that is so, and (b) that proceedings have been instituted in that country or that an investigation is being carried out there. There is no dispute that all of these conditions are satisfied in the present case.

[31] It is also appropriate to note at this stage the scope of the jurisdiction conferred on the sheriff by section 15. The decision in principle that assistance should be afforded in response to a request is

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for the Lord Advocate to make (section 15(3)). He gives effect to such a decision by nominating a court to receive evidence. The jurisdiction of the sheriff is to determine whether the evidence which he is asked to receive is "evidence to which the request relates which appears to the court to be appropriate for the purpose of giving effect to the request". The sheriff has no broader discretion to exercise than that (R v Bow Street Magistrates' Court, Ex parte Zardari, per Latham J at paragraphs 10 and 11). His sole concern is with whether the evidence which he is asked to receive is within the proper scope of the request. In the present case, the sheriff took a relatively broad view of the scope of his power under section 15(3), in that some of the evidence which he allowed to be received was not expressly identified in the requests. Although counsel for the complainer submitted that the sheriff had erred in that respect, he did not on that account attack the competency of the sheriff's order, and we are not persuaded that the broad view taken by the sheriff was erroneous. What is, in our view, clear from the terms of section 15(3) is that the sheriff is concerned only with a process of evidence gathering. It is no part of his function to consider what may be made of the evidence by the requesting state. Nor is it part of his function to consider whether the evidence may lead the requesting state to seek the extradition of the suspect. These are matters for the requesting state (R v Secretary of State for the Home Department, Ex parte Zardari, at paragraph 14). Equally, it is no part of the sheriff's function to consider whether sending the evidence to the requesting state will affect the ability of the Scottish prosecuting authorities to prosecute the suspect in Scotland. That is a matter for the Lord Advocate in deciding whether in principle to give effect to the request by nominating a court to receive the evidence.

[32] We accept that the requirement of lawfulness expressed in articles 8 and 1 demands more than compliance with the relevant provisions of domestic law. The rule of law is inherent in these and other articles of the Convention, and to be lawful an interference with Convention rights must also be compatible with the rule of law. The provisions of the domestic law must therefore be sufficiently precise and foreseeable in effect. There must be a measure of legal protection against

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arbitrary interference by public authorities with Convention rights. The scope of any discretion must be adequately defined. Measures affecting fundamental rights must be accompanied by appropriate procedural safeguards. The issue in the present case is not with the acceptability of those general propositions, but with the proper application of them to the circumstances of the case. In our opinion the purpose of the 2003 Act is clear. It is designed to facilitate international co-operation in the investigation and prosecution of crime. The scope for providing assistance to another state in that connection is clearly defined, in particular by sections 13(1)(a) and (2), and 14(1) and (2). The decision in principle to afford assistance is in terms of section 15(3) a matter for the Lord Advocate, a law officer who in relation to the prosecution of crime exercises his powers in the public interest. In so far as the sheriff has a decision to make, it is a clearly defined decision of relatively narrow scope, namely whether the evidence which he is asked to receive is "evidence to which the request relates which appears ... to be appropriate for the purpose of giving effect to the request" (section 15 (3)). The jurisdiction conferred on the sheriff is defined in such a way as to exclude the exercise of an unfettered or unpredictable discretion on his part. Moreover, the introduction of the need for a hearing before the sheriff, an independent judicial officer, operates as a safeguard against an arbitrary administrative decision. For all these reasons, we do not consider that sections 13 to 15 fail the test of lawfulness.

[33] The narrower focus of the complainer's submissions relates to the provisions regulating entitlement to attend and participate in the hearing before the sheriff. The principal relevant provisions are those of rule 36.9 of the Act of Adjournal. A distinction is drawn between cases where there are current criminal proceedings and cases where there is only a criminal investigation. In the former case, the accused person is entitled to attend and may with leave participate (paragraph (c)), while in the latter the suspect may with leave participate, but has no entitlement to attend. There is thus no express requirement that the mere suspect be notified of the proceedings. The submission was that there was no justification for that distinction. There was no good reason

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why a suspect should not be notified of the section 15 hearing. The absence of a provision requiring such notification to be given, or at least actively considered by the sheriff, resulted in a lack of sufficient procedural safeguards. We do not accept those propositions. The distinction drawn in the Act of Adjournal is in our opinion readily understood. It is in accordance with principle that, once the stage is reached that criminal proceedings have been commenced, the accused person should in general have notice of any procedural step taken in relation to the case. Even then, however, it is to be noted that the sheriff retains a discretion not to give the accused person leave to participate. On the other hand, when matters have not proceeded beyond the stage of investigation, the risk that giving the suspect notice of the proceedings might prejudice the investigation in any manner of way is obvious. Although the analogy with the procedure for grant of a search warrant in domestic procedure is not perfect, the underlying rationale is the same. There is, no doubt, something to be said for the proposition that in the circumstances of the present case some of the risks to the investigation were reduced. The fact that much of the evidence had already been taken out of the complainer's control in pursuance of the domestic search warrants can no doubt be said to have reduced the risk that evidence would be put away. The fact that, in the course of a police interview, he had been given information disclosing the fact of the investigation in the United States no doubt could be said to diminish the effectiveness of not notifying the complainer of the proceedings before the sheriff. Notwithstanding these considerations, however, we are not persuaded that in general there is no justification for withholding notification of the suspect in cases where the evidence is sought in connection with a criminal investigation. The scope for steps being taken to hamper or frustrate the investigation is clear, and is in itself an adequate justification for making the distinction reflected in paragraphs (c) and (g) of rule 36.9. We therefore reject the submission that the absence of a requirement to notify, or consider notification of, the suspect of the section 15 hearing involves an absence of sufficient procedural safeguards, and thus results in a failure to pass the test of lawfulness.

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[34] We would add three further observations. First, we are not persuaded that it is self evident that if the sheriff had been obliged to consider notifying the complainer, he would have decided to order such notification. Secondly, if the sheriff had ordered such notification, it is not clear that, if the complainer had applied for leave to participate, that application would have been granted. Thirdly, if the complainer had been given leave to participate, the point which counsel indicated would have been argued would not have been relevant to the issue to be determined by the sheriff. As counsel indicated in his submissions, the point which would have been made would have involved the proposition that sending the evidence to the United States would have pre-judged the issue of whether the appellant could or should be prosecuted in Scotland rather than in the United States. As we have already said, it is not part of the sheriff's jurisdiction to predict what use might be made of the evidence by the requesting state. It is not for him to take a view on whether extradition will be sought, or what arguments might be deployed in resisting extradition, if sought. Nor is it any part of the sheriff's function to assess what impact sending the evidence to the United States would have on the practicability of bringing criminal proceedings in Scotland, or what affect that might have in the context of extradition proceedings. The sheriff is bound to proceed on the basis that the Lord Advocate has given such matters appropriate consideration before nominating the sheriff under section 15(3). In these circumstances, we are of opinion that, had the complainer been given notification of the hearing, and thereafter leave to participate in it, the submissions which he wished to lay before the sheriff would have had no relevant bearing on the sheriff's decision.

Decision

[35] We therefore refuse the Bill of Advocation.

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