Daniele, R (on the application of) v HM Prison Wandsworth & Ors

MR JUSTICE LLOYD JONES: The applicant, Mr Nunzio Daniele, is the subject of an extradition request by the Government of Italy. The request and these proceedings are governed by the Extradition Act of 1989 ("the 1989 Act"). The applicant has been convicted of four offences of dishonesty in three separate trials before the criminal courts of Catania, Sicily. The facts founding the conviction are said to be that on three separate occasions the applicant received stolen cheques and used them to obtain property, including antique furniture and carpets. He was sentenced to various terms of imprisonment, ultimately by an order of aggregation made in 2002, and he was sentenced to a total of five years and eight months imprisonment, all of which term remains outstanding.

The committal hearing began on 20th July 2006 in the City of Westminster Magistrates' Court before District Judge Nicholas Evans. Further hearings took place on 26th September 2006, when the applicant gave evidence, and 26th October 2006. The main issue at the committal hearing was the issue of in absentia convictions and the authenticity of documents submitted in support of the extradition request. It was conceded by the applicant at the hearing of 26th October that no further point would be taken on authenticity, the court having been satisfied that all documents had been received in the appropriate form through diplomatic channels.

The District Judge invited submissions on the issue of the meaning of the words "unlawfully at large" in section 6(2) of the 1989 Act. These submissions appear in the second skeleton argument submitted by the Government of Italy in the court below. In the event, these submissions were not contested by the applicant.

The District Judge gave his ruling at the conclusion of the hearing on 27th October 2006. He concluded that there was no legal impediment to Mr Daniele being returned to Italy and he remanded him in custody pending a decision by the Secretary of State for the Home Department.

Mr Daniele now applies to this court for habeas corpus. Through his counsel, Mr Paraskos, he makes a number of submissions, some of which were made in the court below. His submissions may be summarised as follows: (1) the extradition request should have been pursued as an accusation case rather than a conviction case; (2) it would be unjust or oppressive to return him because of the trivial nature of the offences; (3) it would be unjust or oppressive to return him because of the passage of time; and (4) the applicant's Article 6 rights would be violated were he to be returned to Italy because, notwithstanding the fact that he was convicted in absentia, he would not be entitled to a retrial of those convictions upon his return. I will address these submissions in turn.

The first submission is that this should have been treated as an accusation case and not a conviction case. The Extradition Act 1989 distinguishes between an application for the return of a person who is accused and a person who is convicted.

In Re. Ismail [1999] AC 320, the House of Lords examined the term "accused" in the context of the 1989 Act. It held that it was not a term of art, but should be accorded a broad, generous and purposive construction. Lord Steyn observed at page pp. 326F-327B:

In R v Governor of Brixton Prison ex parte Foy, unreported 14th April 2000, the requesting judicial authority, France, had submitted that Foy was "accused" of a crime notwithstanding his conviction in his absence in France for money laundering offences. The reason advanced at the committal proceedings and before the High Court was that, because in French law Mr Foy had an automatic right to "oppose" the conviction recorded against him in his absence, the proceedings could not be said to be final. Kennedy LJ concluded at page 5:

To my mind, Foy does not decide that because a conviction may be reopened a person must be treated as a person accused. In the particular circumstances of that case, Foy had an automatic right to "oppose" the conviction recorded against him in his absence and the conviction could not be regarded as final.

The three convictions recorded against this applicant, which are the subject of this extradition request, are final in the sense that the proceedings are not "ongoing". In particular, charges 3 and 4, which are the first convictions in time recorded against the applicant on 16th June 1993, were appealed in November 1998. On the hearing of that appeal the applicant was represented by a lawyer of his own choosing. Moreover, all three convictions, reflected in the four charges, have resulted in the imposition of sentences described as "irrevocable" and it appears that all of these sentences have been "aggregated". I accept the submission of Mr Brandon on behalf of the Government of Italy that these features provide further evidence of the finality of these convictions.

Furthermore, I accept the submission of Mr Brandon that the right of appeal in in absentia extradition cases under Article 175 of the Italian Code of Criminal Procedure does not render the proceedings "ongoing". There are no current proceedings. It is possible that the right of appeal may not be exercised by the applicant. The applicant upon his return is not automatically "entitled to have his conviction set aside".

The second submission is that the offences are trivial and that the case falls within section 11(3)(a) of the Extradition Act 1989, which provides:

In this regard, Mr Brandon has drawn our attention to the provisions of Article 2(1) of the European Convention on Extradition 1957. In defining extradition offences for the purposes of the extradition arrangements between parties to the Convention it provides:

To my mind, the offences with which we are concerned are clearly not trivial for the reasons advanced on behalf of the Government of Italy. First, for each conviction individually the application was sentenced to a substantial term of imprisonment, the lowest term being one year and the highest term being two years, two months. Secondly, the aggregated sentence order of 5th June 2002 imposed a significant sentence of five years, eight months. Thirdly, the records of conviction record serious offences of dishonesty, including the presentation of stolen cheques for the payment for a variety of goods. Many, if not all, of the victims of the dishonest actions of the applicant were private individuals.

The third argument concerns the passage of time. Section 11(3)(b) of the Extradition Act 1989 provides in the relevant part:

The burden rests on the applicant to show that it would be unjust or oppressive to extradite him by reason of the passage of time since he is alleged to have committed the extradition offences.

In Kakis v Government of Cyprus [1978] 1 WLR 779, both Lord Diplock and Lord Scarman drew a distinction between "unjust" and "oppressive" in the corresponding provision in the Fugitive Offenders Act 1967. Lord Diplock observed (at page 782):

In this regard I would also refer to the speech of Viscount Dilhorne in R v Governor of Pentonville Prison, ex parte Narang [1978] AC 247 at page 275E and the judgment of Lord Justice Woolf, as he then was, in R v Governor of Brixton Prison, ex parte Osman (No 4) [1992] 1 All ER 579 at page 587F.

This approach has been applied consistently by the courts for many years and the principle remains good that periods of delay caused by the fugitive cannot be relied upon.

The District Judge found, having heard the applicant give evidence on oath in the court below, that the applicant deliberately absented himself from the first trial. He also considered that it was highly likely that the applicant knew of the second and third trials. However, he did not feel able to find, applying the criminal standard, that the applicant had deliberately absented himself from the second and third trials. Nevertheless, it is clear that the applicant left the jurisdiction of the Italian courts and deliberately stayed away. He has been unlawfully at large since 2002. The applicant himself gave evidence that he had been in the United Kingdom for seven years. There is no evidence before us which demonstrates that any culpability for the delay can be attributed to the actions of the Government of Italy. I accept the submission of the Government of Italy that it has not caused or contributed to any delay. Furthermore, the applicant cannot now rely upon the delay he deliberately caused in order to found a submission that it would be unjust or oppressive to extradite him.

However, the matter does not end there. At the hearing before this court on 17th November 2006, we drew to the attention of Mr Paraskos the fact that the applicant had produced no evidence to support his case on injustice or oppression arising by reason of the passage of time. At the request of Mr Paraskos, we granted an adjournment to permit such evidence to be lodged. I regret to say that there is still no evidence whatsoever on this issue.

At the renewed hearing before us this morning there was an attempt by Mr Paraskos to argue that there was prejudice to the applicant because of the effect of Article 175 of the Italian Code of Criminal Procedure. I consider that there is no basis for this submission. First, the provision itself secures certain rights to a person in the position of this applicant. Secondly, there is no link between any alleged prejudice in relation to Article 175 and the passage of time.

In these circumstances, I consider that the applicant does not begin to demonstrate that his extradition would be unjust or oppressive by reason of the passage of time.

The fourth submission on behalf of the applicant is that there is a violation of Article 6 of the European Convention on Human Rights. On behalf of Mr Daniele, Mr Paraskos submits that Mr Daniele has been tried in Italy in his absence and was unaware of the proceedings against him. In these circumstances he submits that the applicant's extradition to Italy would infringe his Article 6 rights. In this regard I should also draw attention to section 6(2) of the 1989 Act, which provides:

On behalf of the Government of Italy, Mr Brandon submits, first, that the applicant deliberately absented himself from the trials in which he was convicted and, secondly, in any event the rights secured to the applicant on his return to Italy by Article 175 of the Italian Code of Criminal Procedure, as amended, will ensure that his return would not infringe his Article 6 rights. Furthermore, in these circumstances, section 6(2) of the 1989 Act would not create any impediment to his return.

The Government of Italy submitted before the District Judge that there could be no doubt that the applicant was personally aware of at least two of the three sets of criminal proceedings which led to the convictions which are recorded in the committal charges. It was submitted that the applicant was absent by choice from the proceedings which resulted in the convictions of 16th June 1993 and 23rd September 1999.

The Government of Italy contended that Mr Daniele had been represented by his privately instructed lawyer during certain of the proceedings. It appears that Mr Daniele maintained before the District Judge that, if he had been represented at his three trials by a privately instructed lawyer, a formal written instruction would appear on the relevant court file. His representatives asked that such material be provided. Such a document was found for the proceedings which resulted in the conviction of 16th June 1993. The Government of Italy maintained that this document merely confirmed other evidence of the applicant's knowledge of the proceedings submitted previously.

In his evidence before the District Judge on 26th September 2006, Mr Daniele was unable to reconcile his case that he was not aware of the relevant proceedings with the existence and content of this document, and ultimately resorted to refusing to answer questions put to him on behalf of the Government of Italy on the issue. In this regard the District Judge observed:

The District Judge found that the applicant had deliberately absented himself from the proceedings which resulted in the conviction of 16th June 1993 and the appeal against that conviction heard in 1998.

The District Judge concluded that it was highly likely that the applicant knew of the trials which resulted in the convictions of 21st September 1999 and 23rd September 1999. However, he was uncertain, applying the criminal standard of proof, that the applicant had deliberately absented himself from those trials. He considered that, with regard to the trial which led to the conviction of 21st September 1999, that was a generous finding. At three of the six hearings he had been represented by a court appointed lawyer but for the other three hearings he had been represented by his personally appointed defence counsel.

The Government of Italy made submissions on 20th July 2006 in which it dealt with certain criticisms of the Code of Criminal Procedure in cases before the European Court of Human Rights, in particular Sejdovic v Italy (Application no 56581/00). The evidence before the District Judge was that on 1st March 2006 the Code of Criminal Procedure had been amended so as to allow an appeal to be brought against a domestic conviction in absentia, within 30 days from the date that the extradited person is returned to Italy provided he had not waived his right to participate in the trials. Evidence as to the amended Article 175 of the Code and an explanation as to its effect was provided by the Prosecutor General in his letter of 19th September 2006, with extracts from the revised Code. It was submitted on behalf of the Government of Italy that this material confirmed that Article 175 would apply to the applicant should he be returned to Italy pursuant to the request. It would seem that if the applicant had no notice of the proceedings he would clearly be entitled to make an application by way of appeal. Only if he had notice and waived his right to appear would he not be entitled to do so.

With regard to all of the convictions to which the extradition request relates, the District Judge concluded that, following the judgment in Sejdovic v Italy on 1st March 2006, Italy had changed its law to make it compliant with Article 6. If the applicant wished to challenge the convictions or penalties imposed in respect of these convictions he would be entitled to a retrial or a review equal to a retrial if he applied within 30 days of his surrender to Italy provided that he had not waived his right to participate in the trials.

In Sejdovic the Strasbourg court held, inter alia, as follows. First, that the object and purpose of Article 6(1) of the European Convention on Human Rights, taken as a whole, shows that a person charged with a criminal offence is entitled to take part in any hearing which determines his guilt or innocence. Secondly, although proceedings that take place in the absence of the accused are not automatically incompatible with Article 6, a denial of justice undoubtedly occurs where a person convicted in his absence is unable subsequently to obtain from the court a fresh determination (both legal and factual) of the merits of the charge, where it has not been established that he had waived his right to appear and defend himself. Thirdly, nothing in Article 6 prevents a person from waiving of his own free will, either expressly or tacitly, his right to a fair hearing but such a waiver has to be unequivocal and must not run counter to any important public interests. It does not follow, therefore, that absence from a trial necessarily leads to the conclusion that Article 6 rights have been infringed.

The first question for consideration therefore is whether "expressly or implicitly through his conduct" Mr Daniele has waived his right to participate in any of his trials. If the answer to this question is in the affirmative, it cannot be said to be a breach of his Article 6 rights (or not in the interests of justice) to return him to Italy.

So far as concerns the proceedings which resulted in the conviction of 16th June 1993 and the appeal against that conviction heard in 1998, I consider that there is compelling evidence to support the conclusion that the applicant had deliberately absented himself from the proceedings. The applicant instructed Advocate Enzo Trantino to represent him and "ask for the application of an agreed sentence or an abbreviated trial and to lodge an appeal" in relation to the 16th June 1993 conviction before the Magistrates Court at Catania. Moreover, there exists a signed and dated statement by the applicant made to the police in response to the allegations which resulted in his conviction on 16th June 1993. Consequently, so far as that conviction is concerned, his return could not constitute an infringement of his Article 6 rights, nor could it be said to be contrary to the interests of justice to return him.

Mr Brandon invites us to draw the same conclusion in relation to the proceedings which led to the conviction of 23rd September 1999. I have already referred to the finding of the District Judge in this regard. However, Mr Brandon points to the following evidence. First, in the proceedings which resulted in the conviction of 23rd September 1999, there was provided to the Magistrates Court at Catania an address at which the applicant accepts he lived. Secondly, the applicant instructed Vincenzo Merlino to represent him during three of the six hearings which resulted in the 23rd September 1999 conviction. He was represented by Mr Merlino at the second, third and fourth hearings. He was represented by court appointed lawyers at the first, fifth and sixth hearings.

In this regard, I consider that the District Judge was over-generous. That evidence satisfies me to the criminal standard that of his own free will the applicant either expressly or tacitly waived his right to take part in the proceedings which resulted in the conviction of 23rd September 1999.

That is sufficient to dispose of this submission of the applicant in relation to the proceedings which resulted in the convictions of 16th June 1993 and 23rd September 1999. However, I am satisfied that this applicant, on his return to Italy, would be able to obtain from a court a fresh determination (both legal and factual) of the merits of the charges, where it has not been established that he had waived his right to appear and defend himself.

It appears from the translation with which we have been provided that the position in Italian law is now as stated in the recent revision of Article 175:

The Prosecutor General in his letter of 19th September 2006 has confirmed that, provided that the conditions in Article 175 are met (that is that the applicant is aware of the proceedings and that he has voluntarily lodged an appeal), then "the judge gives the defendant the chance to lodge an out of time appeal and adequately defend him/herself". He also states that, should the applicant be surrendered to Italy, he will have 30 days from the date of surrender to lodge an out of time appeal. It appears therefore that the process envisaged by the revised Article 175 is quite different from that considered in Sedjovic. To the extent that Mr Daniele can show that he did not voluntarily waive his right to appear at any trial, he will be entitled to invoke the procedure in Article 175 should he choose to appeal. In those circumstances, Article 175 will provide an opportunity for him to obtain a re-determination of the merits of the charges against him.

Accordingly, I consider that there are sufficient safeguards in Italian domestic law to satisfy this court that the applicant's extradition would not infringe Article 6 of the European Convention on Human Rights and would not be contrary to the interests of justice.

For these reasons I would dismiss the application.

LORD JUSTICE WALLER: I agree.

MR JUSTICE LLOYD JONES: Mr Brandon, can you help me on the correct title of the Italian code which contains Article 175. Is it the Code of Criminal Procedure?

MR BRANDON: Code of Criminal Procedure, my Lord.

MR JUSTICE LLOYD JONES: CPP. I will see that any transcript that is produced is corrected. I am grateful to you. Thank you very much.

MR BRANDON: I have no applications.

LORD JUSTICE WALLER: Thank you very much.