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

The Supreme Court considered whether extradition of an Albanian national to Albania would be compatible with his Convention rights under the Human Rights Act 1998, principally with the right to a fair trial under article 6 ECHR. The court examined the threshold test for a "flagrant denial of justice" and whether systemic judicial corruption in Albania might meet that test. It held that the material before the Appeal Court was insufficiently up to date to determine whether the threshold was satisfied, set aside the Appeal Court's exclusion of two expert reports and remitted the case to the High Court of Justiciary for further consideration with provision for the Lord Advocate to lead rebuttal evidence.

The decision engaged provisions of the Extradition Act 2003 (notably sections including 85, 87, 92, 101 and 104), the Scotland Act 1998 (including Schedule 6 and section 57(2)) and the interaction with the compatibility/devolution framework after the Scotland Act 2012. The court emphasised the stringent nature of the "flagrant denial" test but recognised that systemic corruption might, in principle, affect everyone and so justify closer investigation.

The appellant, an Albanian national convicted in absentia in Albania in 2002 of premeditated murder and sentenced to 22 years, was arrested in the United Kingdom following an extradition request in 2010. The Scottish sheriff held that there were no bars to extradition and sent the matter to the Scottish Ministers under the Extradition Act 2003. The Ministers ordered extradition and the appellant appealed to the High Court of Justiciary. The appellant lodged an amendment and a devolution minute asserting that extradition would be incompatible with his Convention rights, in particular articles 5 and 6 ECHR, relying on evidence alleging systemic corruption in the Albanian judicial system.

The procedural history included (i) the sheriff's extradition hearing and remand to the Scottish Ministers, (ii) the Appeal Court's preliminary ruling of 2 February 2012 excluding two expert reports as irrelevant, (iii) the Appeal Court's dismissal of the substantive appeal on 1 June 2012, and (iv) leave to appeal the devolution/compatibility issue to the Supreme Court.

The main legal issues before the Supreme Court were:

• whether the challenge was a devolution issue for the purposes of Schedule 6 to the Scotland Act 1998 or a compatibility issue under the post-2012 regime, and the consequences of that characterisation;
• whether the appellant could show a real risk of a "flagrant denial of justice" on return to Albania because of systemic corruption; and
• whether the Appeal Court had been right to exclude the proposed new evidence as irrelevant under the Extradition Act 2003 (section 104(4)(a)).

The court held that the issue remained a devolution issue as defined in Schedule 6 to the Scotland Act 1998 and that extradition proceedings under the 2003 Act are not "criminal proceedings" for the purposes of section 288AA(4) of the Criminal Procedure (Scotland) Act 1995. On the substantive human rights point, the court explained the high threshold for a finding of a "flagrant denial of justice" but recognised that systemic judicial corruption, if proved to be sufficiently widespread and current, could amount to such a denial because it affects everyone subjected to that system.

The Supreme Court concluded that the existing expert reports were out of date and that the Appeal Court should reconsider the matter in the light of up-to-date material. It set aside the Appeal Court's ruling excluding the reports of Dr Bogdani and Ms Vickers, permitted the Lord Advocate to lead rebuttal evidence, recalled the Appeal Court's interlocutor, and remitted the case to the High Court of Justiciary for further consideration. The appellant was to remain in custody pending the outcome.

Appeal allowed in part. The Supreme Court held that the question raised was a devolution issue under Schedule 6 to the Scotland Act 1998 and that the Appeal Court had erred in excluding as irrelevant the two expert reports relied upon by the appellant. Because the material before the court was out of date and the allegations of systemic corruption were sufficiently serious to require closer examination, the Supreme Court set aside the Appeal Court's ruling of 2 February 2012, allowed the Lord Advocate to lead rebuttal evidence and remitted the case to the High Court of Justiciary for reconsideration.

Sheriff court extradition hearing (Edinburgh) 20 January 2011 (no bars to extradition); Scottish Ministers order under section 101(2) served 15 March 2011; appeal to High Court of Justiciary (Appeal Court): preliminary ruling 2 February 2012 excluding two expert reports ([2012] HCJAC 17) and substantive dismissal of the appeal on 1 June 2012 ([2012] HCJAC 84); leave to appeal to the Supreme Court granted 21 June 2012; Supreme Court judgment 10 July 2013 remitting the case to the High Court for further consideration.