The Lord Advocate has a statutory responsibility to act on behalf of authorities who make extradition requests through the Scottish courts. The thorough and proper execution of these responsibilities is essential to the rule of law and preservation of Scottish interests in its relationships with other international jurisdictions.
In the extradition case of Clara Ponsati the position of the Lord Advocate, on behalf of the Spanish judicial authorities, is that failures on the part of Ms Ponsati represent a clear breach of the position of trust that she was in with the Scottish courts.
It is recognised that, because of the conduct of Ms Ponsati —in breach of her position of trust and in breach of her conditions of bail — the Court now has little option but to discharge her in respect of the current proceedings.
It is highly unsatisfactory that these breaches have had the effect of preventing the Court in Scotland from hearing the merits of this case.
At the outset of extradition proceedings in Scotland, Ms Ponsati accepted various conditions of bail. These conditions allowed her to continue to live and work in Scotland but required her to attend all relevant hearings in her case. Initially they also required her to remain in this country.
In November 2019 this condition was removed by the Court, following Ms Ponsati’s appearance on a fresh European Arrest Warrant, to allow her to travel out with Scotland for work and study. At that time, in place of the earlier condition to remain in Scotland, Ms Ponsati accepted a standard condition to intimate any change of address within 24 hours.
In January 2020, when Ms Ponsati became a Member of the European Parliament, a decision was taken that it would not be appropriate for her to be prevented from taking up her mandate as an MEP.
This decision was taken on the clear understanding that Ms Ponsati would attend as required for any future extradition hearings in Scotland. It did not affect the need for Ms Ponsati’s permanent address to remain in Scotland, nor her obligation to intimate any change of address within 24 hours.
Ms Ponsati accepted those conditions. Those conditions therefore placed her in a position of trust as regards the Court in Scotland.
It was also the Scottish authorities’ understanding that Ms Ponsati remained employed at the University of St Andrews. This employment was one of the reasons Ms Ponsati was initially given bail by the Court when these extradition proceedings began.
No intimation was ever given of any change of address and no application was ever made to amend it.
It is now apparent that, contrary to her bail conditions, Ms Ponsati failed to intimate a change to a new permanent address in Brussels. She also failed to intimate her decision to resign her post at the University of St Andrews, her most substantial link to Scotland. From information received, it appears that Ms Ponsati changed her permanent address from Scotland to Brussels in January 2020. Her decision to resign her post also appears to have been taken at that time.
The Court was advised of these changes only in May 2021, and only following inquiry by the Court.
Ms Ponsati now refuses to return for any further hearings here in Scotland and, as stated, the Court now has little option but to discharge her in respect of the current proceedings.
For the avoidance of doubt, the European Arrest Warrant for Ms Ponsati’s return to Spain remains in force. Any future procedure in this case will now be a matter for the Spanish authorities.