Royal Courts of Justice
Strand
London WC2A 2LL
B e f o r e:
LORD JUSTICE RICHARDS
MR JUSTICE OUSELEY
Between:
REXHA
Applicant
v
SERIOUS ORGANISED CRIME AGENCY
Respondent
OFFICE OF THE PUBLIC PROSECUTOR ATTACHED TO COURT
OF ROME, ITALY
Interested Party
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Mr Philip Engelman (instructed by Murdochs) appeared on behalf of the Applicant
The Respondent was not represented, did not attend
Miss Rachel Kapila (instructed by Crown Prosecution Service) appeared on behalf of the Interested Party
J U D G M E N T
MR JUSTICE OUSELEY: The applicant was an appellant before the Divisional Court. He appealed against the decision of a district judge at the City of Westminster Magistrates' Court to order his extradition to Italy. The Divisional Court rejected that appeal on 17 May 2012 in [2012] EWHC 1274 Admin.
The background is set out in paragraphs 1 and 2 of the judgment of Mr Justice Owen, with which Lord Justice Laws agreed:
"The appellant's extradition is sought by an Italian judicial authority pursuant to a European Arrest Warrant (EAW) both issued on and certified by the Serious Organised Crime Agency (SOCA) on 22 February 2011. The EAW is a conviction warrant, the appellant having been convicted in his absence at the Criminal Court of Rome VII Division on 20 June 2003 of two offences, namely that in 2000 he participated in a criminal association engaged in drug-trafficking, and secondly that in the same year he conspired with nine others to import large quantities of cannabis from Albania into Italy. he was sentenced to ten years' imprisonment. The conviction became final and enforceable on 17 October 2006."
A number of issues were raised before the Divisional Court but for these purposes the crucial one was whether under Section 20 of the Extradition Act 2003 the claimant would be entitled to a re-trial. Evidence garnered over 2011 and into 2012 was presented by both sides in relation to that issue. The Divisional Court came to the clear conclusion that the appellant would be entitled to a re-trial. Accordingly the evidence given on behalf of the judicial authority had been accepted and that given on behalf of the appellant had been rejected.
The applicant applied for a certificate in relation to a point of law of general public importance. The application was determined against him on 6 October 2012. Meanwhile on 18 August 2012 he applied to the Court of Appeal in Rome to have the conviction of 2003 set aside. There is some controversy about the circumstances in which that application came to be made but there is no suggestion that the United Kingdom court was informed that the application was being made before the certificate was refused, nor that the specific Public Prosecutor's Office in Rome wanting extradition was informed. After the refusal of the certificate on 6 October 2012 the applicant was told by the Serious Organised Crime Agency (SOCA) on 10 October that he would be removed on 12 October. On 11 October he made an application without notice to Mr Justice Wyn Williams for an injunction to prevent his removal on the basis that the decision of the Court of Appeal in Rome, on his application to set aside his conviction was imminent. On 18 October 2012, the Rome Court of Appeal refused his application. On 22 October Mr Justice Cranston continued the injunction.
There is now an application before this court to re-open the appeal pursuant to Civil Procedure Rule (CPR) 52.17 on the basis that the decision of the Rome Court of Appeal constitutes a fundamental change of circumstances or a fundamental fact undermining the decision of the Divisional Court that there would be a re-trial because it is now said the decision of the Rome Court of Appeal means no re-trial is possible.
CPR 52.17 provides that a final determination of an appeal will not be re-opened unless -
it is necessary to do so in order to avoid real injustice;
the circumstances are exceptional and make it appropriate to re-open the appeal; and
there is no alternative effective remedy."
The application of those provisions in an extradition context have been considered in Ignaoua v The Judicial Authority of the Courts of Milan and Others [2008] EWHC 2619 Admin, albeit, in form, that was a Habeas Corpus case. That case recognises that there can be a fundamental change in circumstance or evidence which demonstrates that the factual basis for decision is wholly undermined which may warrant the re-opening of an appeal. It is also said at paragraph 24 in the judgment of Lord Justice Keene, regarding the principles set out in Ladd v Marshall [1954] 1 WLR 1489, that although not necessarily directly applicable, the court should "be reluctant to receive fresh evidence which could with reasonable diligence have been put before the Divisional Court on a Section 26 appeal". Indeed, he went on to recognise an earlier decision that for these purposes the need was not merely for fresh evidence but for some event to have occurred since the appeal decision.
It is plain, in my judgment, that the threshold set by the Divisional Court in respect of the application of CPR 52.17 is high and that it is a jurisdiction to be exercised very sparingly and only in cases which truly warrant it.
It is necessary to set out parts of the Divisional Court's judgment in which they reached the conclusions which they did in relation to re-trial. I pause to note that this was in fact the third extradition warrant which the applicant faced in relation to the charges. The first had failed as an accusation warrant because of the conviction; the second failed because it was served on him when he was in Albania, of which country he is a national and that country does not extradite its own nationals. I also note that the district judge had rejected the evidence of his expert on Italian procedure, Professor Iorio, preferring the evidence of the judicial authority through Dr Terracina. I make that point because the appellant before the Divisional Court knew that he had to persuade the Divisional Court that the decision of the district judge was wrong. In paragraphs 25 to 26 the Divisional Court set out the statutory provisions relevant to a re-trial upon extradition:
"25 The Section 20 Ground
If the judge decides that a person's extradition is not barred for any of the reasons set out in Section 11 of the 2003 Act, and the person is unlawfully at large, he must proceed under Section 20, which requires him to address a series of questions. As the appellant was not convicted in his presence (Section 20 (1)), and did not deliberately absent himself from trial (Section 20 (3)), DJ Evans' next step was to consider the question posed in Section 20 (5) namely whether the appellant 'would be entitled to a re-trial, or (on appeal) to a review amounting to a re-trial'. Section 20 (8) provides that a judge must not decide the question in sub-section (5) in the affirmative unless in such re-trial or review amounting to a re-trial, the appellant would have the following rights:
'(a) The right to defend himself in person or through legal assistance of his own choosing or, if he had no sufficient means to pay for legal assistance, to be given it free when the interests of justice are required;
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.’
It is common ground that it is for the respondent establish the entitlement to such rights to the criminal standard.
26 If the judge answers the Section 20 (5) question in the affirmative, he is obliged to proceed under Section 21, namely to decide whether the person's extradition would be compatible with the Convention rights."
It is necessary for the purposes of this case to see how the argument then proceeded. In paragraph 30 the court set out the provisions of the Italian Code:
"30 Was DJ Evans justified in his conclusion that the appellant would be entitled to a re-trial or to a review amounting to a re-trial?
The provision of Italian law governing the right to a re-trial for a defendant convicted in his absence is Article 175 (2) of the Code of Criminal Procedure. It was reproduced in full in a letter from the Italian Ministry of Justice dated 15 April 2011:
'2 When a judgment in absentia (sentenza contumaciale) or a conviction decree (decreto di condanna) is issued, the defendant - on application - shall be allowed a new term to lodge an out of time appeal or challenge (opposizione), except when he has got effective knowledge of the proceedings or judgment (provvedimento) and has voluntarily waived to appear or to lodge an appeal or challenge (opposizione). The relevant Judicial Authority shall make all necessary verification.'"
I add that Article 175 (2) (bis) has a provision concerning the time within which an application has to be made in an extradition case. It reads so far as material:
"In the case of an outgoing extradition the time for submitting the application starts to run on the date of the handing over of the convicted person."
It was not necessary for that provision to be referred to because in my judgment it is clear that the application for re-trial and entitlement, in consequence, to re-trial which the Divisional Court was contemplating was an application being made after the appellant had been surrendered to the Italian authorities.
The relevant parts of the Divisional Court's judgment are between paragraph 31 and 46. I set these out in full in this judgment and it allows ready reference to be made to the way the argument developed:
A considerable volume of written evidence was served by the parties in the course of the extradition hearings concerning the application of Article 175 to the appellant’s case. There were six written reports from Professor Iorio, supplemented by is oral evidence on 30 June 2011 and 4 October 2011. The evidenced from the Italian authorities was in the form of a number of letters from Ministry of Justice in Rome, and in letters provided by the Office of the Public Prosecutor attached to the Court of Rome, the judicial authority that issued the EAW, dated 8 September, 20 October and 16 November 2011. The author of the letters from the Office of the Public Prosecutor was the deputy prosecutor, Dr Claudia Terracina.
His analysis was disputed by Dr Terracina. The salient features of her evidence, supported by extracts from the Italian Criminal Code and documentary evidence of the relevant orders made in the Italian courts, were as follows:
The Italian courts were not aware at the time that the contumacia declaration was made that the Appellant was “in detention or anyhow unable to come to Italy”
Where a defendant is “in detention abroad or anyhow [is] impeded from appearing” there is no power under the Italian Criminal Code to declare his failure to appear, and to proceed in his absence, unless he requests or agrees to such a course: see Article 420 quinquies, paragraph 1. A declaration of failure to appear made in these circumstances is null and void, as are the ensuing proceedings conducted in the defendant’s absence
It follows that in the Appellant’s case, “the declaration of his absence could not have been duly made and consequently the notification of the abstract of the judgment of the first instance proceedings in absentia is null and void and consequently the out of time appeal would be allowed.”
She added that even if a defendant does have “full knowledge of the acts of the proceedings” it must also be established that there had been a voluntary renunciation” by the defendant of his rights under Article 175 paragraph 2 will be lost, and as the Appellant was detained abroad at the material time, he was not in a position voluntarily to renounce his rights. Mr Celi could not do so on his behalf as his nomination was ‘tamquam non esset’
Dr Terracina’s analysis of the appellant’s position was compelling and was confirmed in emphatic terms by the Ministry of Justice in its letter of 18 November:
“The position of Mr REXHA in the proceedings is such as to lead us to hold that he has to be granted an out of time appeal and be entitled to a new trial in the appeal phase. As a matter of fact, he has never had any contact with the Italian judicial authorities, and has always been represented by a court appointed defence lawyers: all the requirements for the application of article 175 of the Italian code of criminal procedure are met, in its new wording.”
In my judgment DJ Evans was fully entitled to reject the evidence of Professor Iorio, and to conclude that the appellant has not lost his right to lodge an out of time appeal under Article 175 (2).
Miss Kapila who appeared for the respondent, acknowledged that it was not for the Office of the Prosecutor or the Ministry of Justice to give a guarantee that the appellant would be accorded a re-trial, that being a matter for the Italian courts. But she submitted that although the Italian Court of Appeal could in theory refuse the appellant’s application under Article 175, the likelihood of its doing so is so remote that it can be discounted, as it is clear from the evidence from the judicial authority that there is no basis upon which it could resist an application for a retrial.
The reality of the situation was spelt out by DJ Evans in rejecting the argument advanced by Professor Iorio:
“This line of argument (that the appellant has lost his right to seek a retrial) will never be pursued by the RP (appellant) if he is extradited. He knows the JA (judicial authority) raises no objection to his entitlement to a retrial, and when in Italy it is inconceivable that the RP will want to argue that he is not so entitled.”
In my Judgment DJ Evans was fully entitled to find that the respondent had established, to the requisite standard of proof, that the appellant will be granted a retrial if he exercises his right to an out of time appeal under Article 175(2)”
In my judgment a number of points are clear. First, as Article 175 (2) of the Italian Code makes clear, the issue is not just whether an individual had knowledge of the criminal process but whether his absence from it was voluntary. As much appears from what Dr Terracina said, as recorded in paragraph 36 (b) and paragraph 40 of the judgment. Secondly, it is clear from paragraph 45 that the application by the appellant, on return, for a re-trial was, if not guaranteed, so close to being guaranteed that the likelihood of it being refused was remote and the entitlement to a re-trial was established to the requisite standard of proof. Thirdly, it is obvious that the Divisional Court in paragraph 45 was dealing with an application for a re-trial made post-surrender in which the involuntary absence of the appellant - because in custody or on bail or subject to licence terms in this country - would be explained and, if necessary, the position in relation to Article 6 of the European Convention on Human Rights and a fair trial would be explained and the application would necessarily refer to the time limit in which applications for a re-trial had to be made following extradition. That means that the context of the application would have been crystal clear.
Finally I note from the judgment that the evidence of Dr Terracina was strongly preferred to the evidence of Professor Iorio and, as I read the Divisional Court's judgment, was preferred for very good reasons.
I turn to the application to the Rome Court of Appeal which was dated 18 August 2012 and lodged on some date in September. It was made by Avv Sonia Grassi, who is an advocate at the Italian Bar in the same firm as Professor Iorio. I say that because there can be no doubt but that in making the application she was well aware of the debate over Dr Terracina's views, the issues and the outcome of the Divisional Court appeal preferring the views of Dr Terracina.
The application is more striking for what it omits than for what it says. The applicant is described as having been "in the UK" at all the relevant times. That is true but what the application does not say is that he was in the United Kingdom in prison at the time of the declaration of contumacia which was a declaration necessary for the trial to proceed, which it did while he was in custody. Nor does it say that he was on bail before or licence afterwards on terms which naturally restricted his movements and would not have permitted him to go lawfully to Italy.
The application is also striking because of its want of reference to a breach of Article 6, were there to be no re-trial, because he was to be surrendered with a view to re-trial. Indeed, there is no reference to the extradition process at all or to the outcome of the appeal before the Divisional Court or to the circumstances in which it was intended that a re-trial would take place. There were no oral submissions on behalf of the applicant to supplement the omissions of the written application.
18. There is no doubt in my mind but that these are quite deliberate omissions. Professor Iorio says that he did not include any reference to custody because it was not relevant. That reflects his view of the law and he did not make mention, even to controvert it, of the views of Dr Terracina or the decision of the Divisional Court. Professor Iorio bridles at the suggestion by the judicial authority that this was a process by which the court was deliberately deceived.
Miss Kapila in her submissions put it this way:
"The interested party submits that this is a cause for considerable concern. The overwhelming inference is that the application to the Italian court was designed not to achieve an out-of-time appeal through that but quite the reverse, a last-ditch attempt to avoid extradition. If this is the case then the present application is an abuse of The Court's process and should not be entertained."
The Office of the Public Prosecutor attached to the Court of Rome which is the judicial authority handling the extradition was not notified. The Prosecutor General's Office was notified of the application and made written submissions opposing the application. That is not very surprising in the circumstances as they would have appeared to the Prosecutor General's Office. We have been provided with a handwritten untranslated note of the written submissions. From what can be gleaned, the submission was silent as to custody or detention in the United Kingdom or to the extradition process.
The basis of the application for the injunction before Mr Justice Wyn Williams was that it was anticipated that a decision would be made shortly on that application by the Rome Court of Appeal. So, at the time the injunction was granted, there was not any basis upon which it could be said there was or had been a fundamental change of circumstances. Caution is needed over the grant of anticipatory injunctions in respect of extraditions where the duty to remove has arisen following a final decision.
The decision of Court of Appeal in Rome is as follows:
" ..... the application aimed to declared not enforced the [relevant] judgment."
It then sets out the grounds:
"The fugitive-contumace was not informed nor got knowledge of charges or criminal case against him, accordingly he has right to be granted with another deadline to lodge an appeal;
considered that the judgement was served in accordance with article 165 cpp to Mr Distratis lawyer [court appointed lawyer for someone being tried in his absence] on 1 December 2003, the counsel of Mr Celi Genci (without considering his professional qualification) by the application of 15 January 2004 (with the enclosed appointment made by Mr Rexha) has declared that in 2003 Mr Rexha already was informed about the criminal case and in any case on 15 January 2004 knew the charges against him."
It is plain from that decision that the Court of Appeal in Rome was not considering any question of detention or extradition or the rights to a re-trial which might arise on an application being made following surrender.
After the decision of the Court of Appeal in Rome, and this application to re-open the appeal had been made, further material has been provided on behalf of the judicial authority by Dr Terracina. She says that the Office of the Prosecutor General (which is not her office) is likely to appeal to the Court of Cassation. I accept Dr Terracina's evidence that that Office is entitled to make an appeal notwithstanding that its original stance was one of opposition to the application to appeal. One of the grounds which has been drafted concerns the want of disclosure of the period of detention at the relevant times. Dr Terracina also suggests that there could still be a further application by the applicant upon surrender. (We earlier declined, at least for the time being, to adjourn the application to re-open pending either the making of an appeal or the outcome of an appeal to the Court of Cassation.)
It is my judgment that the Rome Court of Appeal did not know the full circumstances relevant to its decision on the basis of the evidence accepted by this court from Dr Terracina. I draw that inference because of the terms of the application and of the decision, the opposition to it by the Prosecutor General and the evidence of Dr Terracina.
Mr Philip Engelman, on behalf of the applicant, has made what is essentially a short, crisp point. He says that the evidence shows clearly that the applicant cannot now have a retrial. That represents a fundamental change in circumstances from those supposed by the Divisional Court or, alternatively, that can be seen as new evidence fundamentally undermining the conclusion of the Divisional Court. It would be in breach of Article 6 for him to be returned to Italy and would breach this Court's duty under Section 6 of the Human Rights Act. If the appeal is re-opened it would have to be allowed by virtue of the provisions of Section 20 (8) of the Extradition Act. Accordingly, the provisions of CPR 52.17 are satisfied.
Miss Kapila, on behalf of the judicial authority, submits that the application to the Rome Court of Appeal could and should have been made earlier if it is relevant and should not be a basis for reopening an appeal. It is also an abuse of process, for the reasons I have quoted from her skeleton argument, and does not undermine fundamentally the decision of the Divisional Court.
I take first the question of the timing of the application to the Rome Court of Appeal. This application could have been made in 2011. It could have been made after the applicant had lost his case before the district judge in November 2011. It is material that could have been presented to the Divisional Court whether as evidence to support the opinion of Professor Iorio or as factual evidence that a right of re-trial no longer existed. The timing of this application to the Court of Appeal was entirely in the applicant's hands and entirely a matter of his choosing. There was nothing to stop it being made a long time ago. As further evidence, therefore, it was fully capable of being obtained earlier. As fact it could have been brought about earlier. The evidence of the change of circumstances itself - and indeed the change of circumstance itself such as it is - was entirely within the applicant's hands.
Mr Engelman says that it was unnecessary for the application to have been made earlier. I disagree. If the application and its outcome was to be deployed to prevent extradition, whether by way of supporting expert opinion or by way of fact, it could and should have been raised before any issue was decided by the district judge or perhaps by the Divisional Court. It could not deliberately be left in abeyance. I, for my part, would refuse to admit the evidence on the basis of the principles set out in Ladd v Marshall. I am also satisfied, to which I shall come, that the other tests in CPR 52.17 are not satisfied.
I turn next to abuse of process. I feel very considerable surprise that Professor Iorio or Miss Grassi made the application without informing the court or relying upon the advantage which the fact that the applicant had been in custody or on bail or on licence at the relevant times would have brought. I feel considerable surprise that no mention was made that the time for making the application would run from surrender because the context was an extradition context so far as relevant to Article 6. These are undoubtedly deliberate omissions.
I find it difficult to accept Professor Iorio's explanation that he omitted to make those points because they were irrelevant as he saw the law. Even accepting that as he saw the law they were irrelevant, it is surprising that he chose not to tell the court of this in the light of his knowledge of Dr Terracina's view and the rejection of his view as incorrect by both the district judge and the Divisional Court. He must have realised the effect of the omission because of the Prosecutor General's opposition to an application which, he must have realised, the Office of the Public Prosecutor would support in line with the evidence given before the Divisional Court.
It is unnecessary for me to say that there was deliberate deceit of the Rome Court of Appeal by Miss Grassi. That would be a matter for investigation in Italy. But in my judgment it is clear that it is an abuse of the process of this court to put this material before it when the application did not disclose material and factors which this court had clearly held to be of importance, and instead relied on a one-sided view of the law held to be wrong by this court, and on a decision procured in that way. The particular factors that troubled me in relation to that were the absence of reference to the fact that the applicant was in custody or on bail or on licence at the relevant time and so was not voluntarily absent from his trial, and that the context of the application was to procure a re-trial in the event of extradition to avoid a breach of Article 6.
Again I am satisfied that this does not fall within the provisions of CPR 52.17. The circumstances may be exceptional - indeed, I hope they are exceptional - but not in a way that favours the application, and it is not necessary to re-open the appeal to avoid real injustice and it certainly does not make it appropriate to re-open the appeal.
I further reject the contention that this decision of the Rome Court of Appeal fundamentally undermines the decision of the Divisional Court. That decision clearly was that an application after surrender to the authorities for re-trial in the context of the extradition process, (which the Public Prosecutor would clearly support because of its evidence to this court, and the need to avoid a breach of Article 6, and in which the position relating to custody would be made clear, would be a successful application. That application as envisaged by the Divisional Court was not made. Instead, a one-sided and, in my view, seriously deficient application was made, very far from the one contemplated by the Divisional Court. Again, in my judgment, CPR 52.17 is not remotely satisfied.
Mr Engelman argues that nonetheless, even if there were an abuse of process and even if there were deceit, it does not matter how all this came about. The simple fact is that there would be no re-trial and, accordingly, if the appeal were re-opened it would have to be allowed both because of Article 6 and because of Section 20 (8).
I am satisfied that the provisions of CPR 52.17 are not met.
I accept that there may be an appeal by the Prosecutor to the Court of Cassation with some success. There may be a further application by this applicant with some success although the situation is clearly less certain than it was before the Divisional Court. I also accept that the judicial authority would be keen to avoid a breach of Article 6 on surrender of this applicant. But - secondly and fundamentally - once in these circumstances the provisions of CPR 52.17 are not satisfied, the consequences are what they will be.
The applicant has brought this position entirely upon himself through the timing and manner of the application which he has made. He should have recognised that the decision of the Divisional Court was final and then have made the application to the Italian court which the Divisional Court anticipated would be made. If he has disabled himself from making such an application through technical choices he has made, so be it. That is not a basis upon which the appeal should be re-opened. Whatever might be the position if this had happened by the time of the hearing before the district judge or appeal before the Divisional Court, I am clear that the provisions of CPR 52.17, especially the need to avoid real injustice, and the appropriateness requirement are simply not satisfied.
Instead, I am satisfied that that application to the Court of Appeal in Rome was not done in order to advance the prospects of a re-trial on return, but quite the reverse. It was done as part of an attempt to prevent his return. It is in my judgment accurately characterised in paragraph 25 of Miss Kapila's skeleton argument (which I quoted earlier). If his tactics create difficulties for him in relation to re-trial that is his choice.
I, for my part, would dismiss this application.
LORD JUSTICE RICHARDS: I agree.
Mr Engelman, the formal position is that we refuse permission under CPR 52.17.
MR ENGELMAN: Yes.
LORD JUSTICE RICHARDS: We need to discharge the injunction.
MR ENGELMAN: Certainly.
LORD JUSTICE RICHARDS: We do.
MISS KAPILA: My Lord, there is one correction. You said the appeal was dismissed by the Divisional Court on 17 May 2002. You meant 2012.
MR JUSTICE OUSELEY: I certainly did, yes.
MISS KAPILA: There are two more applications. (1) Can I ask that the time for extradition be extended ten days from today?
LORD JUSTICE RICHARDS: Ten days from today, yes.
MISS KAPILA: I can draft a suitable order.
LORD JUSTICE RICHARDS: Sorry?
MISS KAPILA: I ask that time for extradition be extended to ten days from today.
The second application is more of a suggestion really. Can I suggest that an expedited transcript of this judgment be ordered, not for my purposes but I am aware that there is another Italian case raising similar issues and involving evidence of Mr Iorio which is in this court on Wednesday. It may be that the parties will be assisted by having a full transcript of reasons.
LORD JUSTICE RICHARDS: We will ask that at least a draft be provided on an expedited basis, and we can then grant permission for the draft to be used for the purposes of the next hearing. It will not have the status of a final approved judgment at that stage.
MISS KAPILA: I understand.