Caldarelli v The Court of Naples

This is an appeal brought under s.26 of the Extradition Act 2003 (“the 2003 Act”) against an order made for the appellant’s extradition to Italy by Senior District Judge Workman at the City of Westminster Magistrates Court on 23 February 2007. The proceedings are governed by Part 1 of the 2003 Act which makes provision for extradition arrangements under what may be called the European Arrest Warrant regime, to which both the United Kingdom and Italy are parties. Part 1 was enacted to give effect to the EU Council Framework Decision of 2002 on the European Arrest Warrant (“the Framework Decision”).

Four European Arrest Warrants (“EAWs”) have been issued in order to secure the appellant’s extradition to Italy. Two concerned what may be called “Mafia” offences, and associated firearm offences. The other two concerned drugs offences. On 3 December 2005 Judge Saraceno at Naples issued what may be called the first drugs EAW. That EAW and the first Mafia EAW, issued by Judge Foschini at Naples, were certified by the National Criminal Intelligence Service (“NCIS”) in accordance with the procedural requirements of s.2 of the 2003 Act.

On 5 September 2006 the appellant was arrested on both of these warrants in Hackney. On 6 September 2006 the “initial hearing” pursuant to Part 1 of the 2003 Act took place at the City of Westminster Magistrates Court. The appellant was remanded in custody. On 21 September 2006 written submissions were lodged on his behalf attacking the validity of both warrants. Thus it was submitted that the first drugs EAW did not give legally adequate particulars of the offence or offences in question. Accordingly on 6 October 2006 a second drugs EAW, superseding the first, was issued by Judge Saraceno. I shall have to refer to its terms in due course in light of part of the argument before us. There was also a second, superseding, Mafia EAW. Both of these superseding warrants were certified under s.2 by the Serious Organised Crime Agency (“SOCA”), which had succeeded to NCIS’ functions in that regard. On 10 October 2006 the appellant was arrested on the fresh warrants.

The Italian authorities applied to withdraw the first two warrants, and in respect of those the appellant was discharged pursuant to s.41 of the 2003 Act. The extradition hearing under Part 1 of the 2003 Act commenced before Senior District Judge Workman on 28 November 2006. The district judge gave a preliminary judgment on 21 December 2006. He adjourned the matters before him for further enquiries to be made of the authorities in Naples where the warrants had been issued. Further information was received pursuant to the district judge’s request on 8 February 2007, and thereafter the district judge handed down a final judgment on 23 February 2007. By that judgment he discharged the appellant in relation to the second Mafia warrant. In respect of the second drugs warrant (to which I will simply refer hereafter as “the EAW”), however, he ordered the appellant’s extradition to Italy. This is the order now under appeal.

The EAW refers to a “pre-trial custody order”. It is common ground that this is a reference to what is called the “Order of Application and Partial Reflection of Personal Real Coercive Measures” issued on 24 January 2003 by Judge Saraceno at the First Instance Court of Naples. The order directed that the appellant and others be arrested and taken into custody, and that certain other measures be taken. It seems that the process is not unlike (but is not the same as) a remand in custody pending trial in this jurisdiction. At length there followed a trial in Naples on 7 June 2005 for the drugs offences named in the EAW. The appellant was not present, but was represented by lawyers by whom witnesses were examined and cross-examined. He was found guilty and sentenced to 11 years imprisonment with associated penalties. An appeal has been lodged on his behalf.

As I have said the appellant was arrested in Hackney on 5 September 2006 on the strength of the first two warrants, and the extradition machinery proceeded from there.

It will be necessary to explain certain procedural ramifications of the appeal process in Italy so that the arguments at the core of this appeal may be properly understood. In particular the status of the conviction and sentence of June 2005 is, as I shall show, of critical importance for the first ground of appeal. However before identifying the grounds I should set out the material provisions in the 2003 Act.

S.2 as originally enacted provided in part as follows:

“(1)

This section applies if the designated authority receives a Part 1 warrant in respect of a person.

(2)

A Part 1 warrant is an arrest warrant which is issued by a judicial authority of a category 1 territory and which contains -

(a)

the statement referred to in subsection (3)..., or

(b)

the statement referred to in subsection (5)...

(3)

The statement is one that -

(a)

the person in respect of whom the Part 1 warrant is issued is accused in the category 1 territory of the commission of an offence specified in the warrant, and

(b)

the Part 1 warrant is issued with a view to his arrest and extradition to the category 1 territory for the purpose of being prosecuted for the offence.

...

(5)

The statement is one that -

(a)

the person in respect of whom the Part 1 warrant is issued is alleged to be unlawfully at large after conviction of an offence specified in the warrant by a court in the category 1 territory, and

(b)

the Part 1 warrant is issued with a view to his arrest and extradition to the category 1 territory for the purpose of being sentenced for the offence or of serving a sentence of imprisonment or another form of detention imposed in respect of the offence.”

By s.42 and Schedule 13 paragraph 1(1) of the Police and Justice Act 2006 (“the 2006 Act”) s.2(5)(a) of the 2003 Act was amended by the substitution of the words “has been convicted” for “is alleged to be unlawfully at large after conviction”. This and other relevant amendments effected by the 2006 Act came into force on 15 January 2007, and so in the absence of transitional provisions applied to this case at the time of the district judge’s final judgment of 23 February 2007. The part played in the statute by the expression “unlawfully at large” is important for the purpose of Mr Summers’ argument for the appellant, as I shall explain. I should also notice, as Miss Cumberland for the respondent Italian authority points out, that this expression is retained in other provisions of Part 1 of the Act: notably s.11(4) and (5) (bars to extradition). I should set out the greater part of s.11:

“(1)

If the judge is required to proceed under this section he must decide whether the person’s extradition to the category 1 territory is barred by reason of -

(a)

the rule against double jeopardy;

(b)

extraneous considerations;

(c)

the passage of time;

(d)

the person’s age;

(e)

hostage-taking considerations;

(f)

speciality;

(g)

the person’s earlier extradition to the United Kingdom from another category 1 territory;

(h)

the person’s earlier extradition to the United Kingdom from a non-category 1 territory.

...

(3)

If the judge decides any of the questions in subsection (1) in the affirmative he must order the person’s discharge.

(4)

If the judge decides those questions in the negative and the person is alleged to be unlawfully at large after conviction of the extradition offence, the judge must proceed under section 20.

(5)

If the judge decides those questions in the negative and the person is accused of the commission of the extradition offence but is not alleged to be unlawfully at large after conviction of it, the judge must proceed under section 21.”

I should next set out s.20 and part of s.21:

“20(1) If the judge is required to proceed under this section (by virtue of section 11) he must decide whether the person was convicted in his presence.

(2)

If the judge decides the question in subsection (1) in the affirmative he must proceed under section 21.

(3)

If the judge decides that question in the negative he must decide whether the person deliberately absented himself from his trial.

(4)

If the judge decides the question in subsection (3) in the affirmative he must proceed under section 21.

(5)

If the judge decides that question in the negative he must decide whether the person would be entitled to a retrial or (on appeal) to a review amounting to a retrial.

(6)

If the judge decides the question in subsection (5) in the affirmative he must proceed under section 21.

(7)

If the judge decides that question in the negative he must order the person’s discharge.

(8)

The judge must not decide the question in subsection (5) in the affirmative unless, in any proceedings that it is alleged would constitute a retrial or a review amounting to a retrial, the person would have these rights -

(a)

the right to defend himself in person or through legal assistance of his own choosing or, if he had not sufficient means to pay for legal assistance, to be given it free when the interests of justice so required;

(b)

the right to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him.

21(1) If the judge is required to proceed under this section (by virtue of section 11 or 20) he must decide whether the person’s extradition would be compatible with the Convention rights within the meaning of the Human Rights Act 1998.

(2)

If the judge decides the question in subsection (1) in the negative he must order the person’s discharge.

(3)

If the judge decides that question in the affirmative he must order the person to be extradited to the category 1 territory in which the warrant was issued.

...”

While the 2006 Act left undisturbed the references to “unlawfully at large” in ss.11 and 14 (and other sections which I need not cite), in contrast to its deletion of the expression from s.2(5)(a), by Schedule 13 paragraph 2(2) it added a new s.68A which is cross-headed “Unlawfully at large”:

“(1)

A person is alleged to be unlawfully at large after conviction of an offence if -

(a)

he is alleged to have been convicted of it, and

(b)

his extradition is sought for the purpose of his being sentenced for the offence or of his serving a sentence of imprisonment or another form of detention imposed in respect of the offence.”

Given the submissions addressed to us it is important to notice these provisions contained in s.70, which is the analogue in Part 2 of the 2003 Act to s.2 in Part 1:

“(3)

A request for a person’s extradition is valid if -

(a)

it contains the statement referred to in subsection (4)...

(4)

The statement is one that the person -

(a)

is accused in the category 2 territory of the commission of an offence specified in the request, or

(b)

is alleged to be unlawfully at large after conviction by a court in the category 2 territory of an offence specified in the request.”

Four grounds of appeal were originally advanced. The essence of the first ground is that while the EAW purports to be an accusation warrant, this is in reality a conviction case. An accusation case is one where the warrant must contain the statement specified by s.2(3) of the 2003 Act. A conviction case arises where the warrant must contain the statement specified by s.2(5). Here, the EAW contained the former but should have contained the latter (and also certain information required by s.2(6) which I need not set out).

The second ground of appeal has been abandoned by Mr Summers in light of certain further evidence by the respondent since the hearing, but I should identify it nonetheless. It was to the effect that even if the case is properly categorised as an accusation case, the appellant’s extradition would be incompatible with his right to a fair trial under Article 6 of the European Convention on Human Rights (“ECHR”) and therefore prohibited by s.21 of the 2003 Act. The third ground is that the EAW contains allegations which travel beyond the scope of the “Order of Application and Partial Reflection of Personal Real Coercive Measures” or of the judgment of the court at Naples on 7 June 2005; and that the Italian authorities are guilty of bad faith, having deliberately misrepresented the details of the conduct leading to the appellant’s conviction. The last ground is that the EAW was unlawfully issued because the effect of relevant provisions of Italian law (read in light of the Framework Decision) is that the EAW system may only be utilised in respect of actual or putative criminal conduct occurring after 7 August 2002; but reliance is placed on earlier conduct. It is said that in this case also the Italian authorities are guilty of bad faith.

Before confronting the merits of the live grounds it is convenient to explain the effect of materials before us relating to relevant aspects of Italian law. There is first a statement dated 22 November 2006 from Mr Lombardo, an Italian lawyer instructed on behalf of the appellant. At paragraph 25 he says:

“An appeal has been lodged by the defendant’s attorneys to the Court of Appeal of Naples. In accordance to article 597 of the Italian Code of Criminal Proceedings (“ICCP”), the Court of Appeal will only address issues relating to the appealed verdict only and exclusively with specific reference to the grounds of appeal; the Court of Appeal will not re-hear the evidence (or review it in a manner amounting to a re-trial), unless one of the parties has specifically requested in the ground of appeal for the evidence heard at the first trial to be re-heard in appeal or for new evidence to be produced in the appeal (in accordance with the article 603(1) ICCP); which they have not.”

Mr Colvin, a member of the English Bar practising in Italy, has also provided statements on behalf of the appellant, and gave live evidence before the district judge. In paragraph 13 of his statement of 22 November 2006 he says:

“That order [sc. of 24 January 2003] is still valid as it has not been revoked. On 7^th June 2005, the defendant was tried and convicted in respect of this offence in his absence before the First Instance Court of Naples, 1^st Criminal Section. The defendant was sentenced, but as with the other offences this sentence was not immediately enforceable as subject to appeal. Were the Defendant to be returned to Italy in accordance with the [EAW], he would be immediately subject to being held in custody under the Coercive Measures Order of 24^th January 2003, until implementation of the definitive sentence, in the event that neither the current appeal in absentia nor any subsequent recourse to the Supreme Court of Cassation are successful. Again, there would be no right to a fresh trial. The [EAW] is drafted as if for a Pre-Trial Custody Order, but also states that it is in order to be judged in the subsequent instances of the ongoing proceedings. The [EAW] further makes it plain that the trial phase has concluded with a sentence, which however is not yet definitive.”

In another statement Mr Colvin has said that there is no right in the appeal court to a re-hearing on the evidence: it is “fettered by the court’s discretion”.

There is also a statement from Mr Amato, of The Office of the Public Prosecutor attached to the Court of Naples. He states (in relation to the appellant’s criminal appeal):

“Also in this case, the defence, even being entitled to do so, did not avail itself of the right to request that witnesses be heard again or evidence be taken again or the taking of new evidence.”

It has been important to discover, as precisely as we may, what rights if any are enjoyed by a criminal appellant in this appellant’s position to seek or obtain a fresh trial (through the appeal process or otherwise) in a case where he has been found guilty and sentenced in his absence. A further statement from Mr Amato was produced at the hearing before us on 4 April 2007. He attaches Article 603 of the ICCP, with a translation. It provides in part:

“1.

When a party, in the appeal or in the grounds of appeal submitted in terms of Art. 585 paragraph 4, has requested that the evidence obtained in the first instance trial be heard again (Art. 496 et seqq.) or that new evidence be heard, the judge, when he considers that he is not in a position to decide on the basis of the already gathered evidence, orders the reopening of the trial phase.

2.

If the new evidence came into existence or was discovered after the first instance trial, the judge orders the reopening of the trial phase without the limits provided for by Art. 495 paragraph 1.

3.

The reopening of the trial phase is ordered ex officio if the judge regards it absolutely essential.

4.

Furthermore, the judge orders the reopening of the trial phase, if the defendant who has been judged in absentia in the first instance trial so requests and can demonstrate that he failed to appear because of a fortuitous event, or force majeure or because he did not have knowledge of the writ of summons, provided that the reason for it cannot be ascribed to him or if the writ of summons for the first instance trial was served upon him by means of delivery to the defence attorney in the cases provided for in Article 159, 16, paragraph 4 and 169, he did not voluntarily avoid obtaining knowledge of the acts of the proceedings.”

Taken together all these materials appear to demonstrate (and I understood this to be common ground) that a criminal appellant, tried at first instance in Italy in his absence, has no unqualified right to a fresh hearing on the merits with all the evidence called again. There may be such a hearing (broadly) if there is new evidence or the judge in his discretion considers it necessary.

It is also common ground that the first instance judgment, including the sentence of 11 years imprisonment, is neither final nor enforceable while the criminal appeal process is uncompleted. This circumstance is of considerable importance for the purpose of Miss Cumberland’s submissions for the respondent on ground 1, to the effect that this is indeed an accusation and not a conviction case.

I turn then to consider the merits of the grounds. On ground 1 Mr Summers says first that the EAW has all the attributes of an accusation warrant. Thus on the face of the EAW the words “length of the custodial sentence or detention order imposed” are struck through, as are the words “remaining sentence to be served”. It asserts in terms that extradition is sought “for the purposes of executing the Pre-Trial Custody Order issued against him and in order to be judged in subsequent instances of ongoing proceedings”. So far the parties are agreed; Miss Cumberland says the EAW is indeed an accusation warrant – and this is an accusation case. At this point counsel part company. Mr Summers says there is no doubt that the appellant has in fact been convicted and sentenced: this is a conviction case. I have already twice referred to his trial at Naples and sentence of 11 years imprisonment. The only reference to this first instance process on the face of the EAW is at Box H where reference is made to “11 years of imprisonment and a fine 450 euro and permanent disqualification from holding public offices and legal disqualification during the execution of the sentence, sentence not yet enforceable as not final”.

In his final ruling on 23 February 2007 the district judge said this:

“12.

My understanding gleaned from the responses from the Judges, from the evidence of Andrew Colvin and from the statement of the Public Prosecutor dated 25^th November 2006, is that at the hearing at the Court of Appeal, issues of both fact and law can be considered. The defence are entitled, if they so request, to a re-evaluation of the evidence on its merits. If fresh evidence is acquired after the end of the first instance trial, the Court of Appeal will order a re-trial. Such a re-evaluation of the merits of the conviction at first instance has been requested by the defence in relation to the drug offence and the Court of Appeal has yet to hear the case.”

Here I think the district judge was in error. The defence have no absolute right to “a re-evaluation of the evidence on its merits”. At least in the absence of new evidence, whether such a “re-evaluation” is conducted would appear to be a matter for the court’s discretion.

Mr Summers would accept that there are some circumstances in which an accusation warrant properly so called may rightly be issued even though there has already been a first instance process in the requesting State leading to a finding of guilt (I avoid the word “conviction” merely to beg no questions) and the pronouncement of a sentence. However he submits that such a position only properly arises where there is an available appeal process within which the fugitive enjoys an unqualified right to a full re-trial on the merits. If so ample a reconsideration of the merits is only given at the discretion of the courts of the requesting State, and not as of right, then the earlier first instance process must be held to have led to a conviction properly so called, and the case must be treated as a conviction case.

Learning cited by Mr Summers in support of this position included Foy v Governor of Brixton Prison (14 April 2000, unreported, CO/3969/1999) a case under the Extradition Act 1989 (“the 1989 Act”). Kennedy LJ stated (p. 5):

“Prior to 1989 courts in this country examined the finality of proceedings abroad to see if a fugitive should be regarded as a person convicted or accused, and that process has continued. In re Sarig 26^th March 1993 unreported, where the request came from the United States, the conviction of the fugitive in his absence was treated as final because if he were returned the court would have a discretion whether or not to set that conviction aside. As Evans LJ put it at 25E –

‘The question is, does the applicant have a right to trial of the alleged or admitted extradition crime, notwithstanding the conviction which has been recorded?’”

Mr Summers referred also to Hewitson [2005] EWHC Admin 135, a case which also proceeded under the 1989 Act. Moses J (as he then was) said this:

“18.

In the instant case the material before this court is that should the applicant be returned he is entitled to set aside the conviction and the sentence in his case, as of right, provided that he lodges objection within ten days of arrival in France... That is why, earlier in this judgment, I referred to this case as being an accusation case.

19.

On the basis of that material, it is clear that this applicant has an absolute right to set aside the judgment on his return to France. In those circumstances this case is analogous to Foy...”

Clearly, where the fugitive (having been convicted in the requesting State in his absence) is in effect entitled on being returned to a full re-trial on the merits as of right, the case will properly be regarded as an accusation case. But what if a reconsideration of the merits is only given at the discretion of the courts of the requesting State (or if there is fresh evidence)?

Miss Cumberland relies on the decision of this court in Migliorelli (unreported, 28 July 2000, CO/4188/99). In that case also the fugitive had been tried and convicted in Italy in his absence and (as here) lawyers on his behalf had had the opportunity to examine the witnesses. The offences in question included armed bank robbery. A notice of appeal was lodged and, again like this case, the appeal hearing was awaited at the time of the extradition proceedings in this jurisdiction; as the dates imply those proceedings were conducted under provisions contained in the 1989 Act rather than the 2003 Act. Before this court a document from the Public Prosecutor in Italy was produced which stated:

“The defendant lodged an appeal. The appeal trial before the Court of Appeal of Rome is pending. [The fugitive] challenged his conviction, and the Court of Appeal holds the authority to change the sentence and even acquit the defendant.”

The submission to this court on behalf of the fugitive was analogous to that made here as regards the accusation/conviction dichotomy. Morison J, giving the first judgment at the invitation of Judge LJ, said this:

“22.

In my judgment, the answer in this case is reasonably clear. The starting point on the question at issue must be what is meant by an ‘accused’ person in the Act, having regard to the fact that in most civil law jurisdictions a person may be tried in his absence, as here. As per Lord Steyn in Re Ismail [1999] 1 AC 320, the word ‘accused’ is not a term of art but depends upon the facts in each case. A person who is convicted in his absence may nevertheless be an accused within section 1 of the Act [sc. of 1989] if after evidence it can be seen that his conviction is not final. Lord Steyn emphasised that the court should have regard to the context and purpose of the Act, which is to bring to justice those accused of serious crimes.

‘There is a transnational interest in the achievement of this aim. Extradition treaties and extradition statutes ought therefore to be accorded a broad and generous construction so far as the text permits it in order to facilitate extradition.’

23.

Is the conviction of the fugitive in this case final or is the trial process still ongoing? I agree with the magistrate that the trial process has not yet come to an end...

...

25.

... In my view the additional material supports the magistrate’s conclusions. The Human Rights court in Strasbourg has concluded that a trial in absentia does not by itself conflict with the principles of fairness incorporated in article 6(3) of the Convention: Colossi v Italy [1986/7] ECHR 516. It is proper to infer that the appeals procedures open to the fugitive on his return will afford him an opportunity if he so wishes of putting forward any material which the Court of Appeal in Rome considers appropriate.”

Miss Cumberland also cites the decision of the High Court of Justiciary in La Torre v HM Advocate [2006] HCJAC 56. In that case the provisions of Part 2 of the 2003 Act were engaged because the case started life before Italy ratified the Framework Decision and so adopted the EAW system; however the provisions which are material for present purposes replicate or reflect parallel measures contained in Part 1. In particular, as I have shown, s.70 is the analogue of s.2. In fact there were also Part 1 proceedings because an EAW was issued after Italy became a Part 1 territory. So appeals under both Part 2 and Part 1 were before the Scottish courts. The fugitive, La Torre, had been found guilty of extradition crimes in Italy and sentenced; but, as here, this first instance process was not final in the eye of Italian law. One of his arguments in the Part 2 appeal was that “the sheriff erred in holding that the appellant fell to be regarded as a person ‘accused’ of a criminal offence, he having been already convicted and sentenced” (paragraph 33).

In light of the submissions advanced before us it is helpful to set out the court’s account of certain parts of the argument. First, for the appellant:

“125.

... The documents before the sheriff referred to the appellant as having been found guilty in his absence and sentenced.  That meant that he was convicted.  The fact that his conviction could be set aside on appeal did not affect the matter.  Accordingly, the appellant fell to be dealt with by the sheriff as a convicted and not as an accused person.  The sheriff treated him as an accused person... and thereby deprived him of the guarantees provided by section 85.  As in R (Guisto) v Governor of Brixton Prison ([2004] 1 AC 101), the extradition request had proceeded on a false basis.  If the present case had been brought against the appellant as a convicted person, he could have argued the point as to whether or not he deliberately absented himself from trial and whether or not he would be entitled to a rehearing.  Since the sheriff treated him as an accused person only, he was deprived of that opportunity.”

Then the argument for HM Advocate:

“126.

Counsel submitted that the distinction made on behalf of the appellant between an accused person and a convicted person was a false one.  The distinction used in Part 2 was between an accused person and a person unlawfully at large after conviction.  Section 70(1) required the making of a ‘valid’ request for extradition.  To be valid, the request had to contain a statement in terms of section 70(4) (s 70(3)(a)), that is to say a statement in either of two forms, namely (a) that the person was accused in the category 2 territory of an offence specified in the request or (b) was alleged to be unlawfully at large after conviction.  [I interpolate: cf the unamended form of s.2(5)(a).] If the sheriff decided that the person in question was accused but not unlawfully at large after conviction, he had then to proceed under section 84.  If it was alleged that he was unlawfully at large after conviction, the sheriff must proceed under section 85.  It was obvious that the statement in this case did not proceed on the basis of section 70(4)(b) by alleging that the appellant was unlawfully at large after conviction.  He was not unlawfully at large after conviction because his sentence was not yet enforceable.  Therefore, he must be an accused person in terms of section 70(4)(a).  There was no category other than these two.  The categorisation had to be made as at the date of the request, even if the appellant’s status later changed.  It was not alleged that at the date of the request he was unlawfully at large after conviction.  For the resolution of this ground of appeal, that was all that mattered.  The whole system depended on taking the statement made in the request on trust.  It was the allegation of the requesting State that mattered.  That determined the category into which the appellant would be put for the purposes of proceedings in this country. (R Guisto) v Governor of Brixton Prison [[2004] 1 AC 101] was distinguishable.  It was decided under different legislative language that distinguished between an ‘accused’ person and a ‘convicted’ person.  It had no bearing on the 2003 Act.  In In re Ismail [1999] 1 AC 320 the appellant alleged that he had not been charged with any offence.  It was held that the expression ‘accused’ was not a term of art.  It could be interpreted flexibly to accommodate differences between the common law and civilian systems.  Extradition treaties should be given a broad and generous interpretation in order to facilitate extradition.  The court should adopt a cosmopolitan approach to the term ‘accused’.  The court should take the approach that was taken in Migliorelli v Italy (2000 WL 1421286 (DC)), where the subject of the request was in a similar position to the appellant.  In that case the Divisional Court held that the appellant’s trial was not complete in the sense of being final (Morison J, at p 3).  The court had before it written confirmation that the sentence was still subject to appeal.  It was not alleged that the appellant in that case was unlawfully at large.  Adopting the approach of Lord Steyn in In re Ismail (supra), the Divisional Court held that the conviction could not be said to be final.  Accordingly, the status of the appellant in respect of section 70(4) was fixed at the time of the request.  Subsequent events were irrelevant.  But in fact in the present case the appellant’s status had not changed.  The Italian sentence remained unenforceable.”

The court’s conclusion follows in the next paragraph:

“127.

In our opinion, the submission on behalf of the appellant is misconceived.  The key provision in relation to this argument is section 70(4).  It does not distinguish between an accused person and a convicted person.  It distinguishes between an accused person and a person alleged to be unlawfully at large after conviction.  Since it is agreed that the accused is not alleged to be unlawfully at large after conviction, it follows, in our view, that he has to be categorised as an accused person within the meaning of section 70(4)(a).  That was the basis on which the sheriff dealt with the matter.  He was right in proceeding under section 84.  In any event, even on the information before the sheriff it was apparent that the sentence passed upon the appellant had not yet become final.  We agree that Guisto (supra) is distinguishable from the present case, for the reasons given by counsel for the Lord Advocate, and has no bearing on the interpretation of section 70(4).  The view that we have reached can be founded on a straightforward reading of section 70, and in particular section 70(4).  But should it be necessary, we consider that the approach that was urged by Lord Steyn in cases of this kind (In re Ismail, supra) amply justifies the conclusion which the sheriff drew.  As in Migliorelli v Italy... the key consideration is the fact that the accused’s sentence is still subject to appeal and his conviction cannot be said to be final.”

Migliorelli was a case under the 1989 Act. Miss Cumberland acknowledges, indeed asserts, that it was an important feature of the case (reflecting the provisions of the 1989 Act) that if the fugitive was not classified as an accused person he could not be extradited at all: he could only be extradited as a convicted person if he could be said to be unlawfully at large, which he was not. As we shall see directly, this circumstance engages with a major aspect of Mr Summers’ argument on the first ground.

Mr Summers submits that Migliorelli is bad law and we should not follow it. I apprehend he would go so far as to say that it is an unprincipled decision because it allows a case to be treated as an accusation case even though the fugitive does not enjoy an unqualified right to a re-trial on the merits. He submits also that it leads to absurd results: this appellant could simply withdraw his appeal and thus convert the finding of guilt against him into a final conviction, and the case would become a conviction case properly so called.

In the alternative, Mr Summers would have us distinguish Migliorelli. It is convenient to take the submission from his principal skeleton argument:

“24.

... Migliorelli was decided under Part III of the 1989 Act. Like the first incarnation of the 2003 Act, Part III of the 1989 Act required the court to decide between ‘accusation’ or ‘unlawfully at large’. In a case such as the present [i.e. Migliorelli], where a sentence is not immediately enforceable, and a defendant was therefore not unlawfully at large, there existed an obvious and real public interest in extending the scope of ‘accusation’ so as not to permit such a defendant to escape extradition altogether (see paras. 19 & 22 per Morison J).

25.

By contrast, the amendments to the 2003 Act, by Schedule 13 of the [2006 Act], closed, and were plainly intended to close, that hole...

27.

La Torre... was also decided under an ‘unlawfully at large’ regime (section 70 of the 2003 [Act], prior to the 2006 amendments).”

So the argument is that if Migliorelli can be justified at all, it is because a fugitive from Italy who had been found guilty in his absence by a judgment which by Italian law was not final and enforceable until any appeal process was exhausted would, if the 1989 Act or the unamended 2003 Act applied, escape extradition altogether unless the case could be treated as an accusation case. If it could not, the power to extradite would depend on his having been unlawfully at large: which, while the judgment remained non-final and unenforceable, he was not.

That was a potent factor supporting the result in Migliorelli and La Torre. But Mr Summers says all that has changed by force of the amendments to the 2003 Act introduced by the 2006 Act. He says a different approach has in the past obtained where the statutory antithesis is between an accusation case and a conviction case rather than an “unlawfully at large” case, and cites Guisto [2004] 1 AC 101, which as I have shown was distinguished in La Torre. He says that the effect of the 2006 amendments is indeed to put in place an antithesis between an accusation case and a conviction case, and to take “unlawfully at large” out of the equation. If that is right, this appellant could – subject no doubt to other points, notably relating to the Convention rights – properly be extradited on a conviction warrant notwithstanding that his conviction is not final or enforceable. There is thus no reason to stretch an “accusation” case to cover a state of affairs where the fugitive has no absolute right to a re-trial on the merits.

Miss Cumberland’s reply is that the 2006 amendments do not have the effect contended for by Mr Summers. It is true, as I have shown, that by force of paragraph 1(1) of Schedule 13 to the 2006 Act the reference to “unlawfully at large” has been excised from s.2(5)(a) of the 2003 Act, which now contemplates a statement to be made in the warrant that “the person in respect of whom the Part 1 warrant is issued has been convicted of an offence specified in the warrant...” (my emphasis); and there is certainly an antithesis between that provision and s.2(3)(a) which contemplates a statement to be made in the warrant that “the person in respect of whom the Part 1 warrant is issued is accused in the category 1 territory of the commission of an offence specified in the warrant” – an accusation case (s.2(3(a)) on the one hand, and a conviction case (s.2(5)(a)) on the other. But the amendment to s.2(5)(a) is by no means the whole story.

As I have already stated the use in s.11(4) and (5) of the 2003 Act of the expression “unlawfully at large” is untouched by the 2006 Act. Miss Cumberland submits that the judge’s duty under s.11 is unchanged by the 2006 Act, and is as follows (where, as here, there is no contest but that the district judge is “required to proceed” under s.11 – see s.11(1)). If the judge finds no bars to extradition within s.11(1)(a) – (h) (“decides those questions in the negative”) he must act either under s.11(4) or under s.11(5). The former applies if “the person is alleged to be unlawfully at large after conviction of the extradition offence”, and in that case the judge must proceed under s.20. The latter applies if “the person is accused of the commission of the extradition offence but is not alleged to be unlawfully at large after conviction of it”, and in that case the judge must proceed under s.21. I need not repeat ss.20 and 21. The upshot is that, as surely after the 2006 amendments as before them, the fugitive in a conviction case may only face extradition if he is alleged to be unlawfully at large: s.11(4), leading to action by the judge under s.20.

Miss Cumberland submits that the amendment to s.2(5)(a), substituting the words “has been convicted” for “is alleged to be unlawfully at large after conviction”, was effected only to alter what had to be stated in the warrant. Paragraph 329 of the Explanatory Notes to the 2006 Act is instructive:

“Paragraphs 1 and 2 [sc. of Schedule 13] amend the wording in the 2003 Act relating to extradition requests for persons who are unlawfully at large in relation to the offence for which they have been requested. Case law has established that, as long as it is clear from the information contained in the warrant or request that the person is in fact alleged to be ‘unlawfully at large’, the warrant or request does not actually have to contain those words. And indeed many warrants and requests for the extradition from the United Kingdom of persons already convicted do not contain these words. This has given rise to difficulties, given the way in which a number of the provisions of the 2003 Act are worded.”

In my judgment Miss Cumberland is right. The amendment to s.2(5)(a) goes only to the contents of the warrant. However as regards the power (or rather, the duty) to extradite, as opposed to what has to be stated in the warrant, it remains necessary to show either an accusation case or an “unlawfully at large” case. This antithesis, between an accusation case and an “unlawfully at large” case (which was, as I accept, of great importance for the decisions in Migliorelli and La Torre), is effectively untouched by the 2006 amendments and so remains inherent in the statutory extradition scheme. Those authorities cannot, therefore, be distinguished as Mr Summers would have us distinguish them. Nor can he derive any comfort from the new definition of “unlawfully at large” in s.68A(1). The appellant’s sentence is presently unenforceable. In those circumstances it cannot in my judgment be said that “his extradition is sought for the purpose of his being sentenced for the offence or of his serving a sentence of imprisonment or another form of detention imposed in respect of the offence” (s.68A(1)(b)).

Should we decline to follow Migliorelli on more general grounds, in particular because it allows a case to be treated as an accusation case even though the fugitive does not enjoy an unqualified right to a re-trial on the merits? I do not think so. As we have seen reference was made both in Migliorelli and La Torre to Re Ismail [1999] 1 AC 320. That was a case under the 1989 Act. The question was whether the appellant was liable to be extradited as a person “accused” of extraditable offences in Germany. The appellant contended otherwise, because no formal criminal charge had been laid against him in Germany: he was merely wanted for pre-trial investigations. Lord Steyn made some general observations which are, it seems to me, at least as apposite in the present context as under the previous statute:

“It is common ground that mere suspicion that an individual has committed offences is insufficient to place him in the category of ‘accused’ persons. It is also common ground that it is not enough that he is in the traditional phrase ‘wanted by the police to help them with their enquiries’. Something more is required. What more is needed to make a suspect an ‘accused’ person? There is no statutory definition. Given the divergent systems of law involved, and notably the differences between criminal procedures in the United Kingdom and in civil law jurisdictions, it is not surprising that the legislature has not attempted a definition. For the same reason it would be unwise for the House to attempt to define the word ‘accused’ within the meaning of the Act of 1989. It is, however, possible to state in outline the approach to be adopted. The starting point is that ‘accused’ in section 1 of the Act of 1989 is not a term of art. It is a question of fact in each case whether the person passes the threshold test of being an ‘accused’ person. Next there is the reality that one is concerned with the contextual meaning of ‘accused’ in a statute intended to serve the purpose of bringing to justice those accused of serious crimes. There is a transnational interest in the achievement of this aim. Extradition treaties, and extradition statutes, ought, therefore, to be accorded a broad and generous construction so far as the texts permits it in order to facilitate extradition: Reg. v. Governor of Ashford, Ex parte Postlethwaite [1988] A.C. 924, 946H-947D. That approach has been applied by the Privy Council to the meaning of ‘accused’ in an extradition treaty: Rey v. Government of Switzerland [1998] 3 W.L.R. 1, 7B. It follows that it would be wrong to approach the problem of construction solely from the perspective of English criminal procedure, and in particular from the point of view of the formal acts of the laying of an information or the preferring an indictment...

It is not always easy for an English court to decide when in a civil law jurisdiction a suspect becomes an ‘accused’ person. All one can say with confidence is that a purposive interpretation of ‘accused’ ought to be adopted in order to accommodate the differences between legal systems. In other words, it is necessary for our courts to adopt a cosmopolitan approach to the question whether as a matter of substance rather than form the requirement of there being an ‘accused’ person is satisfied... But in the light of the diversity of cases which may come before the courts it is right to emphasize that ultimately the question whether a person is ‘accused’ within the meaning of section 1 of the Act of 1989 will require an intense focus on the particular facts of each case.”

It seems to me that the reasoning in Migliorelli and La Torre serves the very “transnational” interest which Lord Steyn is at pains to emphasise, namely the purpose of bringing to justice those accused of serious crimes: a purpose which has of necessity to be fulfilled by an overarching statutory regime which has to accommodate divergent systems of law, notably the differences between criminal procedures in the United Kingdom and in civil law jurisdictions. Hence the need to apply to the 2003 Act “a broad and generous construction so far as the texts permits it in order to facilitate extradition”; and in particular to adopt “a cosmopolitan approach to the question whether as a matter of substance rather than form the requirement of there being an ‘accused’ person is satisfied”.

All that said, it has to be remembered that the reasoning in Migliorelli contemplates the extradition of a person who has been found guilty in his absence and who on his return will not or may not be entitled as of right to a re-trial on the merits. Such a state of affairs may be thought, at least in some sets of circumstances, to deprive the fugitive of his basic right to a proper adjudication. In face of any fear of that kind we must surely have regard to s.21 which, as I have shown, is at once engaged if the extradition judge concludes that there are no s.11 bars to extradition and the case is an accusation case: s.11(5). S.21 forbids extradition if that would not be compatible with the fugitive’s Convention rights. Obviously they include the rights guaranteed by ECHR Article 6. It is true that where an Article 6 complaint is raised against an extraditing State by reason of what may befall the fugitive if he is returned to the requesting State, a flagrant denial of the right to a fair trial has to be shown: Ullah [2004] 2 AC 323, at paragraph 24 per Lord Bingham. But it is important to have in mind that in considering Article 6 in such a context the court will have regard to the whole course of the proceedings in the requesting State, including the original first instance trial and (as in this case) prospective appeal proceedings in the Court of Appeal and, if appropriate and relevant, a further appeal to the Court of Cassation. The court will have a conspectus of the whole case. The question whether there is a violation of Article 6 will generally be very “fact-sensitive”: see Sellick [2005] EWCA Civ 651, in particular per Waller LJ at paragraphs 35 – 37, which with respect I need not set out.

A reading of the 2003 Act in which the Migliorelli approach and the force of s.21 (and thus of the panoply of relevant Convention rights) march together is both pragmatic and principled. It applies Lord Steyn’s reasoning in Ismail. I would follow that approach. I should add that I do not consider that Migliorelli can be condemned as leading to absurd results. The suggestion that the appellant might abandon his appeal in the Italian courts so as to turn the proceedings into a conviction case and thus frustrate the EAW (at the same time opening the door to an unanswerable fresh warrant asserting his conviction) is fanciful.

For all these reasons I would hold that there is nothing in the first ground of appeal, and the EAW is rightly characterised as an accusation warrant.

As I have said ground 2 has been abandoned. Mr Summers accepts, in light of material placed before the court since the hearing by the respondent under cover of a letter of 9 May 2007, that the appellant deliberately absented himself from the first instance trial at which lawyers personally appointed by him represented his interests. That appointment was made on 17 February 2003, just after the issue of the “pre-trial custody order” referred to in the EAW. It is clear that at all material times the appellant had full knowledge of the proceedings pending against him. These circumstances have come to light under pressure of the discipline exerted by s.21 of the 2003 Act, whose rigour is thus shown in practice to complement without difficulty the Migliorelli approach to accusation cases.

The complaint is that the EAW seeks the appellant’s extradition to face accusations not contained in the first drugs warrant, nor reflected in the “pre-trial custody order”, nor, it is said, the subject of the first instance proceedings at which the appellant was found guilty. In those circumstances his extradition is sought for non-extraditable conduct. It is said that the EAW thus deliberately misrepresents the extent of the criminal accusation in fact levelled against the appellant in Italy and the Italian authorities are to that extent and for that reason guilty of bad faith. The argument on the facts is that the first warrant alleged a single unsuccessful attempt to smuggle drugs into a Naples prison, whereas the EAW ranges far wider and encompasses four alleged drugs consignments, some successful, some not.

It is important to understand the basis on which the first drugs warrant was superseded by the EAW. I have already said that it was submitted for the appellant that the first warrant did not give legally adequate particulars of what was alleged. That is made crystal clear by the terms (paragraph 34) of the skeleton argument of 19 September 2006 submitted for the appellant in the Magistrates Court. That submission was clearly good. It is right that the EAW which followed referred to four “episodes”, but it stated that “[t]hey have been considered as committed in the execution of a single criminal plan”. It is plain that the “conviction” of 7 June 2005 was for a conspiracy by defendants “committing several external elements in pursuit of the same criminal design”.

The EAW gave expanded particulars of the conspiracy with which the appellant had at all material times been accused. There is nothing in this ground, and certainly nothing in the suggestion of bad faith.

This ground also involves an accusation of bad faith on the part of the Italian authorities. The argument is that the domestic law of Italy (Article 40 of Law 69/2005) provides that the EAW procedure may be utilised only in relation to facts or events after 7 August 2002, but the EAW in this case charged earlier facts. Mr Summers refers to Article 32 of the Framework Decision which provides:

“Extradition requests received before 1 January 2004 will continue to be governed by existing instruments relating to extradition. Requests received after that date will be governed by the rules adopted by Member States pursuant to this Framework Decision. However, any Member State may, at the time of the adoption of this Framework Decision by the Council, make a statement indicating that as executing Member State it will continue to deal with requests relating to acts committed before a date which it specifies in accordance with the extradition system applicable before 1 January 2004. The date in question may not be later than 7 August 2002...”

Such a statement has been made by Italy and is contained in Article 40 of Law 69/2005. But it relates only to “requests for surrender received by Italy and not those issued by Italy”; and indeed as I read Article 32 the Framework Decision only contemplates statements relating to the former class of case (“as executing Member State” – my emphasis).

This ground of appeal is misconceived.

I would dismiss the appeal.

I too would dismiss the appeal for the reasons given by my Lord.