Kapri v The Lord Advocate representing The Government of the Republic of Albania (Scotland)

Extradition must be refused where there is a real risk of a flagrant denial of justice. The threshold is stringent: the unfairness must be so fundamental that it nullifies or destroys the essence of the right to a fair trial.

Where credible allegations concern systemic judicial corruption, the person need not establish particular circumstances unique to their own trial before the evidence becomes relevant. Systemic corruption threatens the independence and impartiality of every tribunal operating within the affected system. The court must therefore examine reliable and current evidence about the prevalence and effect of the corruption before determining whether extradition is compatible with article 6 of the European Convention on Human Rights.

The appellant, an Albanian national, had been convicted in his absence in Albania of a murder committed in London. After his discovery in Scotland, Albania requested his extradition. The sheriff found no bar to extradition, and the Scottish Ministers ordered it.

The High Court of Justiciary excluded reports offered to support the allegation that Albania's judicial system was systemically corrupt, holding that they contained only general material and did not show how the appellant's own retrial would be affected: [2012] HCJAC 17. It later dismissed his appeal after deciding that he would be entitled to a review amounting to a retrial: [2012] HCJAC 84.

The Supreme Court considered whether the Convention challenge remained a devolution issue after the Scotland Act 2012, and whether evidence of systemic judicial corruption could be relevant to the risk of a flagrant denial of justice without proof of circumstances particular to the appellant.

1. The appeal was allowed unanimously. Lord Hope delivered the judgment, with which Lady Hale, Lord Kerr, Lord Sumption and Lord Toulson agreed. The High Court's interlocutor dismissing the appeal was recalled, its ruling that the reports were irrelevant was set aside, and the case was remitted for further consideration.

2. Extradition proceedings are not “criminal proceedings” for the compatibility-issue provisions introduced by the Scotland Act 2012. They do not determine a criminal charge. The Lord Advocate performs his extradition functions as a member of the Scottish Government, rather than as head of the Scottish prosecution system. The challenge therefore remained a devolution issue under paragraph 1(d) of Schedule 6 to the Scotland Act 1998. The amendments did not convert it into a compatibility issue: paras 14–23.

3. The applicable article 6 standard was whether extradition created a real risk of a flagrant denial of justice. That is a stringent threshold. The prospective unfairness must be so fundamental that it nullifies or destroys the very essence of the right to a fair trial. Mere irregularities or shortcomings which would constitute an ordinary article 6 violation within a contracting state do not suffice: paras 27–32.

4. The requirement for a flagrant denial does not mean that a person alleging systemic judicial corruption must always identify circumstances particular to their own case. Systemic corruption affects everyone subjected to the judicial system. If it is widespread, no tribunal operating within that system can reliably be regarded as independent and impartial. General evidence capable of establishing such a systemic condition is therefore relevant to whether an extradited person will receive a fair trial: paras 28 and 32–33.

5. The allegations were sufficiently serious to require closer examination. The Supreme Court could not itself decide whether the threshold was met because the appellant's reports were two years old and the Lord Advocate's further evidence was not before it. The High Court was to receive current information and reach a properly informed decision. Both parties should exchange and agree as much material as possible, while the Lord Advocate could adduce rebuttal evidence: paras 33–35.

6. The appellant was to remain in custody pending the High Court's reconsideration: para 35.

1. United Kingdom Supreme Court: The appeal was allowed unanimously. The interlocutor reported at [2012] HCJAC 84 was recalled, the evidential ruling reported at [2012] HCJAC 17 was set aside, and the case was remitted to the High Court of Justiciary.
2. High Court of Justiciary: The court dismissed the appeal against the sheriff's order after holding that the appellant would be entitled to a review amounting to a retrial with the rights specified in section 85(8) of the Extradition Act 2003: [2012] HCJAC 84.
3. High Court of Justiciary: At an earlier preliminary hearing, the court refused to admit reports concerning alleged systemic judicial corruption because their general content did not show how the appellant's own retrial would be affected: [2012] HCJAC 17.
4. Sheriff Court at Edinburgh: The sheriff held that there were no bars to extradition and sent the case to the Scottish Ministers, who ordered extradition.