International Extradition law has been evolving for some time with protections now enshrined within The Convention for the Protection of Human Rights. It would seem however that there is an unequivocal defiance and a refusal to accept such protections by some legal authorities within the United Kingdom. Extradition to and from Scotland is a 'reserved matter' under devolved government with the UK Government being ultimately responsible for such issues irrespective of where a request emanates. It is evident that the UK Government, in whose name extraditions to Scotland are ultimately being undertaken, is conveniently shirking that responsibility.
It is clear from documents secured under The Freedom of Information (Scotland) Act 2002, that the Scottish Authorities did not expect John's arrest at such an early stage. Could it be that they had fooled themselves into thinking that he really was an absconder and a fugitive from justice as portrayed by those incompetents at SCO or was this yet another so-called convenient breakdown in communications within the Crown Office?
The Diffusion Notice issued by Lothian & Borders Police to Interpol at the behest of the Crown Office & Procurator Fiscal Service seeking John's Provisional Arrest put into effect a set of specific requirements enshrined under European Law and ratified by the UK Government. In addition to the Human Rights Act, the laws relating to arrest and extradition were contained within The European Convention on Extradition 1957, The European Convention on Extradition Order 1990 , The European Convention on Extradition Order 2001 and The European Union Extradition Regulations 2002.
Amongst these requirements was the need to provide specific documents and information to the Spanish Authorities which would have allowed John to agree to extradition and an early resolution under what is known as the Simplified Procedure. Unfortunately, this did not occur in that there was a basic failure by the Scottish Crown Office to communicate all the required information to the Spanish Authorities which in turn prevented them from fulfilling their obligation to John resulting in his prolonged detention. In fact, they supplied inaccurate and misleading information to John's Spanish legal representatives which led them to believe that he had been convicted in his absence for something he knew absolutely nothing about. What we had in actual fact was John being asked to agree to something, the terms and consequences of which being unspecified and more to the point, delivered in a language that he could not fully understand. At the initial Court hearing following John's arrest, the Spanish interpreter including John's own Spanish lawyer couldn't even translate the Spanish legal jargon into English. I think in some cynical legal circles they call this fair!
At the time of John's arrest there was in effect a strict maximum detention period of some 40 days in relation to any Provisional Arrest and which if breached would automatically invalidate the entire extradition request. In the event and due solely to the Scottish Authorities further failure to provide the requisite documents and information timeously, John was detained by the Spanish Authorities beyond this maxim and ended up spending a total of 178 days in two Spanish Prisons. These events occurred even though John agreed from the outset to return to Scotland voluntarily and had given substantial guarantees to that effect.
The Crown Office & Procurator Fiscal Service continue to dispute these events at every opportunity portraying the illusion that they had somehow personally attend proceedings and were witness to events when this was clearly not the case; apparently yet another figment of their imagination. As a matter of fact, the British Consul who attended the Court building in Denia on the evening of John's arrest was actually excluded from proceedings.
As a perceived refusal under the Simplified Procedure the Scottish Authorities had a limited period in which to provide the full extradition request. This request subsequently comprised a Deposition by Stephen James Henderson of the former Inland Revenue SCO being the lead investigator in the case, a Statement of Law by Elizabeth Cumming Munro of the Crown Office, and a copy of the aforementioned revised Warrant. The documents under cover of an official letter requesting the extradition were signed on 28th August 2003 by the then Solicitor General for Scotland, Mrs Elish Angiolini (now Lord Advocate). The documents were thereafter sent by courier to England for official translation into Spanish. These documents were never provided to John or his legal representatives and were only obtained following several requests under The Freedom of Information (Scotland) Act 2002 during May 2005.
Later examination of the documents and the accompanying partial extradition file (sections still being withheld in order to protect Crown officials and others) revealed that part of the aforementioned Statement of Law had been altered illegally during the translation process in order to comply with strict Spanish legal specifications. Further scrutiny of the withheld documents also revealed that there were many inaccuracies within them such was the last minute panic to comply with time limits. The documents were later to attract much criticism from the sentencing judge, Lord Hardie, who charged Crown Counsel that such errors were not to be repeated. His Lordship refused to go further however thus denying a defence submission under the Human Rights Act that the extradition was incompetent.
According to the Crown Office's own timetable, the extradition documents including the translation in Spanish were delivered to the Spanish Foreign Ministry on Monday 8th September 2003. They were not lodged with the Central Magistrates Court in Madrid however until the afternoon of Friday 12th September 2003 which just happened to be the absolute final hour for such lodgement. On the 28th October 2003 John was moved from prison in Alicante to Valdemoro prison outside Madrid as a prelude to attending the second extradition hearing at the Central Magistrates Court in Madrid. The hearing took place in private on 4th November 2003 when the extradition could be finally agreed on the basis of all the information provided by the Scottish Authorities including that previously omitted from the original request but belatedly provided as supplementary information following an urgent request by the Spanish Authorities. Included within this supplementary information was a statement by the Crown Office in Edinburgh to the effect that any sentence could not exceed three years imprisonment. The then Lord Advocate, Lord Colin Boyd Q.C. was later to refute that any such supplementary information was ever provided to the Spanish Authorities. The Crown Prosecutor, Procurator Fiscal Depute, Mrs Joan Guy, was also later to state during the trial that they (the Crown Office) could do whatever they liked once an extradited person was returned to Scotland. So much for Scottish guarantees and justice!
The Extradition Order having been agreed on the 4th November 2003 was later ratified by the Spanish Council of Ministers on 9th January 2004. John was extradited to the United Kingdom on 30th January 2004. During the subsequent trial at Edinburgh Sheriff Court in September 2004 the judge, Sheriff Gordon Liddle, refused to consider the terms of the Extradition Order as the documents were in Spanish even though several requests had been made by Defence Counsel to the Crown Office for an official translation. The translation in English was not provided by the Crown Office until many weeks after the trial citing the excuse that the request had unfortunately been overlooked! Most convenient for the Crown!
The entire extradition process is now the subject of an ongoing appeal before the Appellant Court in Scotland after John's legal Counsel sought and received permission to bring such by a panel of three senior High Court Judges. The behaviour of certain public officials involved in the case is certain to come under intense scrutiny as will the legal procedures involved in both the extradition and the trial itself.
HM Revenue & Customs now seek to blame the Crown Office & Procurator Fiscal Service for the farce surrounding John's arrest and detention in Spain stating that such was at their inception even though it is clear that their own officials pressed the issue at every opportunity.