Lewicki v Preliminary Investigation Tribunal of Napoli, Italy

Notwithstanding the decision of the House of Lords in Caldarelli v Court of Naples, Italy (“Caldarelli”) [2008] 1 W.L.R. 1724; [2008] UKHL 51 (which was said to be no longer good law in the light of article 4a of Framework Decision 2002/584/JHA, as inserted by Framework Decision 2009/299/JHA, or was otherwise wrongly decided) the EAW ought, given the Applicant’s conviction in Italy on 22 October 2015 for the offence of criminal association, to have been (or be treated as having been) a conviction warrant, and therefore fell foul of s.2(2), (5) & (6) (as well as s.20) of the EA.

In the alternative, if the EAW was correctly an accusation warrant, it was inadequately particularised, contrary to s.2(4)(c) of the EA and/or, because of the Applicant’s acquittal of the nine substantive tobacco smuggling offences in Italy on 22 October 2015 (on limitation grounds), and by the application of Spain v Murua [2010] EWHC 2609 (Admin), as interpreted by the Supreme Court in Zakrzewski v The Regional Court in Lodz, Poland [2013] 1 W.L.R. 324, the DJ should have discharged him, and this Court was required to discharge him, in relation to those offences, the pursuit of which, and of the original time span of alleged offending (when the Italian proceedings showed it to be much shorter) amounted to an abuse of process.

Surrender would be unjust and/or oppressive, contrary to s.14 of the EA.

Surrender would breach Articles 5 & 6 of the ECHR, contrary to s.21A of the EA.

Surrender would be an abuse of process.

Whether Caldarelli applied, and/or was good law.

If so, whether the EAW now contained (if it ever did) an accurate description of the alleged conduct.

Whether proceeding to conviction in absentia, whilst the Applicant was engaged in ongoing extradition proceedings abroad was Article 6 ECHR compliant, or otherwise abusive.

If so, whether the Applicant has an unfettered right to a re-trial.

The decisions of the Court of Justice of the European Union (“the CJEU”) in Criminal Proceedings against Tupikas (“Tupikas”) and Criminal Proceedings against Zdziaszek (“Zdziaszek”) – as they were likely to involve analysis of the meaning and scope of article 4a of the Framework Decision, which could be significant in the resolution of Ground 1.

The service of further written submissions from the parties in relation to the judgments in those cases.

Given the decision of this Court in June 2017 in Alexander v Marseille District Court of First Instance, France[2018] QB 408 (Admin) (since endorsed in Kirsanov v Viru County Court, Estonia [2017] EWHC 2593 (Admin)) it was accepted that the rules concerning “validity” under s.2 of the EA had undergone a “sea-change” consequent upon the Supreme Court’s ruling in Goluchowski v District Court in Elbag [2016] 1 W.L.R. 2665 (to which reference had been made in argument at the rolled-up hearing) and that, therefore, whether the EAW fell to be considered as an accusation warrant under s.2(4) of the EA, or as a conviction warrant under s.2(6), the necessary details could be discerned from the further information supplied by the Respondent, and that accordingly Alexander was fatal to substantial parts of Grounds 1 and 2. Nonetheless, the Court was invited to formally rule on the issue.

Although the decision in Tupikas did not directly address the situation in the instant case (i.e. the period after first instance judgment but before appeal), it was nevertheless accepted that the analysis by the CJEU of article 4a of the Framework Decision broadly reflected the Caldarelli approach to s.20 of the EA, in consequence of which the Applicant could no longer maintain the broad argument advanced in support of Ground 1 that Caldarelli was no longer good law.

Nevertheless, there was a significant difference between the Tupikas approach and the Caldarelli approach (with the former being more nuanced than the latter) such that, applying the more nuanced Tupikas approach, article 4a applied to the Applicant’s first instance conviction, hence he was finally convicted in his absence, not accused, and therefore s.20 applied and he should be discharged.

Further information provided by the Hungarian Court showed that he had been convicted in his absence at first instance, and that although he had a right of appeal it would not afford him (in particular) an opportunity to test the prosecution evidence which was adduced at the trial.

Applying Tupikas (above) the decision at first instance had to be regarded as the final decision determining the Appellant’s guilt.

In the result, the Appellant was a convicted person and therefore the EAW, read with the further information, was defective and invalid.

As a convicted person, the Appellant was entitled to the protection of s.20 of the EA, including the right to a full re-trial; or, in the alternative, that it would be contrary to his rights under Article 6 of the ECHR to extradite him.

When further information is provided pursuant to article 15 of the Framework decision, it is not to be regarded as “extraneous evidence”, and the EAW and the further information must be read together.

The information provided by the Hungarian Court showed that there would be a full trial in the appellate court, and therefore (also proceeding on the basis that, as a Part 1 territory, Hungary would comply with its obligation under Article 6 of the ECHR) the Court rejected the premise which formed the starting point for the Appellant’s arguments as to why he should be regarded as a convicted person.

Whilst it had been argued, based on Tupikas, that a requested person who has been convicted in his absence at first instance, but who has exercised a right of appeal, must be regarded as convicted unless the appeal will be a full re-hearing of his case, Tupikas was not concerned at all with whether the requested person should be regarded as convicted or merely accused. In that case there was no doubt that Tupikas was convicted – the issue was whether, for the purpose of applying the tests relevant to extradition of a convicted person, the requested court should focus on the first instance decision or the appeal decision. Thus Tupikas had little or no bearingon the question of whether the Appellant was to be regarded as convicted or accused.

In a document dated 28 October 2015, the Public Prosecutor’s Office attached to the Court of Naples indicated that:

In a Note dated 26 February 2016, the Court of Naples 6^th Criminal Division confirmed that in the judgment of 22 October 2015 the Applicant had been convicted as being unlawfully at large for participation in a criminal association (Count B). The nine substantive offences of tobacco smuggling (Counts B1-5, 7, 11, 13 & 16) had all been dismissed as being time-barred by statute. It was said that any complaint that the Applicant’s rights had been infringed would have to be challenged in the appropriate fora.

In a document dated 9 March 2016, Judge Barbara Mendia (who was a member of the three-judge panel that had delivered the judgment on 22 October 2015) indicated, amongst other things, that:

In a document dated 10 March 2016, Judge Antonio Palumbo, the Presiding Judge of the 6^th Criminal Division of the Court of Naples stated, amongst other things, that (if issued) the decree declaring that the Applicant was unlawfully at large was likely to be found in the Public Prosecutor’s case file.

In another document dated 10 March 2016, Vincenzo Ranieri, the Deputy Public Prosecutor attached to the Court of Naples, confirmed that the remand in custody order issued against the Applicant had not been able to be enforced; that the Applicant was recorded as having been nowhere to be found when the decree scheduling the preliminary hearing in the case was made; and that searches were still under way to find the decree stating that the Applicant was unlawfully at large during the pre-trial investigation stage.

In a document dated 14 March 2016, Chiara Paolucci, a Magistrate in the Italian Ministry of Justice, responded to a Report, dated 11 December 2015, from Professor Andrea Saccucci (an expert in Italian law). The report had been served on behalf of the Applicant, and dealt with various issues concerning trial in absentia in the Italian legal system. Ms Paolucci opined that:

In a Note dated 5 April 2016, the Italian authorities confirmed that the Italian Court had been unaware of the Applicant’s arrest in England at the time of his conviction, and provided 84 pages of extracts (in Italian and English) from the reasoned judgment of the Court, which showed that:

The Applicant had been declared to be unlawfully at large during the preliminary investigations stage. Thereafter he had been duly summoned at his defence lawyer’s firm on 26 July 2011 and, on his non-attendance (without providing any legitimate reason for failing to appear) at a hearing on 3 October 2011, had been declared an absconder at that hearing. Hence, after that, he had been referred to as “unlawful at large, absconder”.

The Applicant had yet to lodge an appeal, but the time limit for him to do so had not expired – as time would only start running once he or his lawyer gave notification of his elected domicile to the Court.

Section 10(2) is modified to provide that: “The judge must decide whether any of the offences specified in the Part 1 warrant is an extradition offence”.

Section 10(3) & (4) are substituted to provide that:

“(3)

If the judge decides the question in sub-section (2) in the negative in relation to an offence he must order the person’s discharge in relation to that offence only.

(4)

If the judge decides that question in the affirmative in relation to one or more of the offences he must proceed under Section 11”.

Section 11(3) is modified to provide that: “If the judge decides any of the questions in subsection (1) in the affirmative in relation to an offence, he must order the person’s discharge in relation to that offence only”.

The statements in the warrant comprise statutory particulars that are wrong or incomplete in some respect.

The true facts required to correct the error or omission are clear and beyond legitimate dispute (and the application is not being used as an indirect way of mounting a contentious challenge to the factual or evidential basis for the conduct alleged in the warrant – that being a matter for the requesting court).

The error or omission is material to the operation of the statutory scheme – which, in some instances, will depend upon its impact on the decision whether or not to order extradition.

Section 20 applied only to persons “unlawfully at large after conviction”, not to “accused” persons.

Caldarelli was distinguishable as he was not alleged to be “unlawfully at large after conviction”, whereas the Applicant plainly was – in the sense that the further information confirmed that he had been convicted, and he was wanted for the enforcement of the detention order made against him. Thus, against the background of article 1(1) of the Framework Decision, and in the terms of ss.11(4) and 68A of the EA, he was alleged to be convicted of the offence and was sought “for the purpose of his serving…..a sentence of imprisonment in respect of the offence”.

In any event, Caldarelli had dealt with the position of someone deliberately absent from his first instance trial, but where there was an outstanding appeal. Caldarelli had argued that he was “unlawfully at large after conviction”, and thus able to rely on s.2(5) – (6) & s.20. However, the House of Lords had held that, until an individual was “finally” convicted, and the conviction was enforceable, with no possibility of further appeal, he remained “accused” for the purposes of extradition law and so s.20 did not apply. Such an individual had to rely on Article 6 of the ECHR and s.21A(1)(a) of the EA (and surmount the flagrancy threshold, imposed by cases such as Rexha v Italy [2012] EWHC 1274 (Admin)), to litigate “trial in absence” issues.

The decision in Calderelli had been driven by two significant factors. Firstly, that the concept of the “trial” in s.20 was a broad one that included the entire prosecution process, up to and including the final appeal. Secondly, that had his case been deemed to be a “conviction” case, not only would s.20 have applied, but so also would the (then stricter) s.2(6) validity requirements for a conviction EAW have been in play, such that the EAW would not have survived, and that to permit such an outcome would have frustrated the EAW scheme.

In contrast, article 4a made no distinction between “accused” and “convicted” persons, nor did it refer to “final” convictions.

The Applicant was, like Caldarelli, a person who had been convicted at first instance (albeit that, unlike Caldarelli, he had not been deliberately absent), but where there may exist the possibility of further appeal. Therefore, if Caldarelli was still good law, his was an accusation case, he could not rely on s.20, and had instead to resort to Article 6 of the ECHR.

However, as limited by the Caldarelli construction, s.20 did not properly reflect, implement, or give effect to, article 4a. Therefore, it had to be recognised (by reference to the EU principle of conforming interpretation, which since December 2014 had governed Part 1 again – see Cretu v Local Court of Suceava, Romania [2016] 1 WLR 3344) that the decision in Caldarelli had been overtaken by article 4a. In the result, persons such as the Applicant were “convicted” (their trial having been conducted) not accused, and so s.20 applied to them.

The idea (propounded by the House of Lords in Caldarelli) that, in this context, a trial was an ongoing “process” was at odds with Framework Decision 2009/299/JHA itself (preambles 7-8 and article 4a) and with the decision of the CJEU in Dworzecki (2016) C-108-16 PPU at [45] – [47] – both of which expressly referred to “the trial” as a scheduled event with a specific date and place (of which notice had to be given in person).

In addition, the s.2 validity concerns which had influenced the House of Lords to the contrary view in Caldarelli no longer existed, via the “sea change” resulting from the decision in Goluchowski (above) in consequence of which treating someone like the Applicant as being convicted did not raise insuperable validity problems – as any validity problems could be dealt with by way of further information from the Respondent.

Given the incompatibility of Caldarelli and its approach to s.20 of the EA (convictions in absence), with article 4a of the Framework Decision, the EAW should be treated as being a conviction warrant – in which event the particulars provided in the warrant were insufficient to comply with s.2(6), so the warrant was invalid, and nor was s.20 complied with.

In the alternative, Caldarelli was wrongly decided, regardless of article 4a, as the House arguably erred in its assessment of “final judgment” (which was critical to its ultimate decision) and which imported injustice in the Italian context – as the term could equally arguably be interpreted as meaning a decision by a competent judicial authority which convicted a requested person and on which surrender can be sought. If so, leave was sought so that the Applicant could preserve his future appeal rights.

At all events, if Caldarelli did not preclude recourse to s.2(6) of the EA then the EAW would not survive examination by that route. Equally, if recourse to s.20 of the EA was not precluded, then this was a straightforward case under that section and article 4a, given that UK courts are bound to apply the principle of conforming interpretation, and that:

The Italian Authorities ought to have issued a new conviction warrant – in which event the Applicant would have had access to s.20 of the EA, and the Respondent would have borne the burden of satisfying the court to the criminal standard that the Applicant had deliberately absented himself from his trial, or that he was guaranteed a re-trial with a full evidential hearing. Instead, via a side effect of Caldarelli, the burden was on the Applicant to surmount the high threshold involved under s.14, or to show that there had been a flagrant denial of his Convention rights – which was not enough protection.

The Applicant was in a twilight zone where he faced a high burden and presumptions of compliance, and the core argument on his behalf was that justice required that s.20 of the EA should be in play – in which event there was plainly a case for his discharge.

When the EAW was issued the Applicant was an accused person, and he was properly characterised as such in the warrant. In Caldarelli, the accusation warrant had been issued after Caldarelli had been convicted and the issue therefore was whether the EAW in his case had been flawed ab initio. Accordingly, no Caldarelli issue actually arose in the Applicant’s case. Rather, Zakrzewski made clear that an EAW which was correct and valid when it was issued did not become invalid by reason of a subsequent change in the factual position in the requesting state. Thus, in this case, the EAW did not lose its jurisdictional basis just because the Applicant had been convicted (albeit not finally). In any event, Caldarelli was correctly decided, its correctness could not be challenged in this Court, and there was no substance in the Applicant’s argument that it could no longer be regarded as correct in the light of subsequent EU developments.

The Applicant was wrong to submit that absence of consideration under s.20 deprived a person who was not finally convicted of any mechanism for raising their conviction in absence at an extradition hearing – since the Applicant himself raised several alternative routes, namely breach of Articles 5 & 6; injustice and oppression such as to give rise to a s.14 bar (which was said to be flexible enough to remedy the injustice in this case); and abuse of process.

At the time that the EAW was issued in 2010, the EAW Framework Decision 2009 had not been implemented in Italian law – indeed, it was not implemented until 1 January 2014. At the time of issue, the CJEU case law (see I.B., [2011] 1 WLR 2227) was that a person who was sentenced in absentia, who had a right to a re-trial, was properly considered an accused person – which showed that Caldarelli was right, and (given the duty of conforming interpretation) would have to be followed by the Supreme Court.

Given the judgment of the Supreme Court in Zakrzewski,and its conclusion (at [8] of the judgment) that the validity of a warrant is not a transient state, the changes introduced by the Framework Decision could not invalidate a warrant that was valid before the changes came into force – see also e.g. Goluchowski (above) at [44].

All that Framework Decision 2009/299/JHA had done, against a background of inconsistency in approach prior to its coming into force, was to provide common grounds for non-recognition of decisions rendered following a trial at which the person concerned had not appeared in person. It did not provide a basis upon which to assert that Caldarelli was wrongly decided, since the EA had to continue to give effect to the Framework Decision and thus to cater flexibly for persons who have been convicted but whose conviction is not final, who have a right to a retrial, and are therefore considered ‘accused’ under the law of the requesting state – see the decision of this Court in Istanek v District Court of Prerov [2011] EWHC 1498 (Admin) at [21] – [28]. The reasoning of Lord Bingham at [23] & [24] in Caldarelli was, and remained, Mr Knowles submitted, correct.

Is concerned with final convictions and sentences ([70] – [74]).

Is engaged by decisions which result in (final) findings of guilt, and also by those which result in the (final) imposition of penalties ([77] – [79]). (Hence in Zdziaszek (above) the CJEU had held that proceedings for the purpose of aggregating, cumulating, amending or consolidating prior sentences engaged the application of article 4a.)

Applies, where a first instance conviction has been appealed, to the instance which led to the last of those decisions ([81]) – as it is the judicial decision finally disposing of the case on the merits, in the sense that there are no further avenues of ordinary appeal available, which is decisive ([83], [87] – [90]).

As indicated by Judge Mendia in her further information document dated 9 March 2016, there is no evidence that the Applicant was aware of the proceedings against him – whether the order for preliminary custody which preceded the issue of the EAW; the decree (if issued) that he was unlawfully at large; the decree of 24 February 2011 ordering his trial in the Court of Naples; the interim hearings thereafter, including the hearing on 3 October 2011 at which he was declared to be an absconder; or the various trial hearings from 30 May 2012 onwards.

At the time of his arrest on the EAW on 28 June 2015 the Applicant was on trial, in his absence, in the 6^th Criminal Division of the Court of Naples.

Although it should have been, that Court was not made aware of the Applicant’s arrest at that stage.

The Court was still unaware of the Applicant’s arrest on the EAW when, on 2 October 2015, it convicted him of participation in a criminal association and sentenced him to 3 years 8 months’ imprisonment.

There is no evidence that the failure to inform the Court was the product of bad faith.

As this Court observed in Imre v District Court in Szolnok (Hungary) (see [10] & [11] above) there is no doubt that Tupikas (who was the subject of a conviction warrant) had been convicted. The issue in that case was whether, for the purpose of applying the tests relevant to the extradition of a convicted person, the requested court should focus on the first instance decision or the appeal decision. This Court therefore concluded that Tupikas had little or no bearing on the question of whether Imre was to be regarded as convicted or accused.

Conclude that the relevant Italian law that had to be applied was that in force prior to the January 2014 amendments.

Accept the further information from the Italian authorities that the 6^th Criminal Division of the Court of Naples had been unaware of the Applicant’s arrest when it continued with his trial and that there was no abuse of process in respect thereof.

Conclude that the Applicant had a right of appeal, which he had yet to exercise, from the decision of that Court.

Accept the further information from the Italian authorities that, upon return, and if the declaration that he was unlawfully at large was adopted illegitimately, the order committing the Applicant for trial, or the first instance judgment, could be declared null and void, and that thus Applicant would be entitled to a new first instance trial (under Article 604(4) of the Code of Criminal Procedure); or, if the declaration was adopted correctly, that he would be entitled (under Article 603(4) of the Code of Criminal Procedure) to a repetition of the preliminary phase of the proceedings that would be a sufficient equivalent to a re-trial.

Proceed upon the basis that the Italian authorities are aware of their obligations under the European Convention on Human Rights to provide the Applicant with a fair trial, and that nothing that had been raised persuaded him that they would not do so.

Conclude that, given the Applicant’s assertions of innocence, any loss of plea-bargaining rights would have little relevance, and that nor did the fact the Applicant may not be able to obtain bail render the instant proceedings an abuse of process.

In addition, I accept the evidence of Magistrate Paolucci, in her further information document dated 14 March 2016, that Italian law did not make it necessary to postpone the trial of a person detained elsewhere, and that (even if the declaration that he was unlawfully at large was adopted correctly) the Applicant has the right to the repetition of the preliminary phase. I also accept the latest further information that the time limit in relation to an appeal would only start running once the Applicant or his lawyer gave notice of his elected domicile to the Italian court and that (at the time that information was provided) he had yet to lodge an appeal.

Nor, against the background of the above-mentioned evidence and of the authorities cited by the Respondent in relation to Ground 3 (see [102(3)] below), does the decision of the German Federal Constitutional Court in Re:R (see [59] above) add any arguable weight to the Applicant’s ultimate submissions.

Accordingly, in my view, and whether as originally or ultimately advanced, Ground 1 is not reasonably arguable. Therefore, no question of compliance or otherwise with s.2(6) of the EA arises. Hence, I would refuse permission to appeal on this Ground.

Ground 2 – Failure to comply with s.2(4)(c) of the EA / abuse of process

The DJ’s ruling

As already touched on, the s.2(4)(c) issue was raised before the DJ. It was submitted that the EAW contained insufficient detail of the conduct ascribed to the Applicant; that his specific role was vague and undefined (with the EAW doing little more than state that he was an accused co-conspirator); and that the period of his involvement was not clear. In the result, it was submitted, the warrant failed to comply with the requirements of s.2(4)(c).

The DJ ruled (at [33] – [35] of his reserved judgment) that, having considered the EAW as a whole, he was entirely satisfied that it fully complied with the requirements of s.2(4)(c). It asserted that the criminal association (conspiracy) related to an agreement to smuggle tobacco, thereby evading duty payable to the Italian authorities; it adequately set out the role of the Applicant as having been a permanent and continuing supplier of the tobacco in question that originated from outside Italy and was destined for the markets of Naples; and it stated on its face that the time period was from 2005 through to the issue of the EAW on 25 February 2010.

The submissions

Combining his oral and written submissions on behalf of the Applicant, Mr Summers argued, in summary, that:

On behalf of the Respondent, Mr Knowles argued that the EAW was valid and, in particular, that it complied with the requirements of s.2(4)(c) of the EA. He submitted, in summary, that:

As already indicated, the Applicant has since accepted that the decision of this Court in June 2017 in Alexander v Marseille District Court of First Instance, France, as subsequently endorsed in Kirsanov v Viru County Court, Estonia (both above),is fatal to the relevant aspects of Grounds 1 & 2. Nevertheless, he invited the Court to formally rule on the issue.

Conclusions – Ground 2

I agree with the Applicant that the DJ had to be satisfied that each of the ten offences had been adequately particularised as an extradition offence. In his reserved judgment the DJ found that, taken as whole, the EAW fully complied with the requirements of s.2 of the EA. That involved an express finding in relation to the offence of participation in a criminal association, and an implicit finding in relation to the substantive offences. In my view, given the content of the EAW and of the Form A appended to it, and for the reasons advanced on behalf of the Respondent (as summarised at [77(1) - (8) & (11)] above) the DJ was clearly entitled to reach the conclusion that he did, and thus to reject the challenge made under s.2(4)(c) of the EA. In my view, it is not reasonably arguable that he erred in doing so.

Accordingly, I decline the Applicant’s invitation to formally rule as to the effect of Alexander and Kirsanov (above). It is not necessary to do so.

Mr Summers accepted (see [76(14)] above) that, consistent with specialty (for which, I would add, arrangements plainly exist) Italy could prosecute for the offence of participation in a criminal association by reference to any of the conduct specified in the EAW. However, I reject his contention that the Applicant’s alleged participation in that offence must be limited to the time period and overt acts involved in the alleged commission of the substantive offences. Rather, I agree with the Respondent that the Applicant’s alleged involvement in the offence of participation in a criminal association is not so limited. Nothing in either the EAW, Form A or the further information (including the extracts from the judgment of the 6^th Criminal Division of the Court of Naples) so limits it. On the contrary, for example, Form A clearly states that the overall period during which the offending took place was “FROM DECEMBER 2005 AND UNTIL NOW” (i.e. February 2010 not November 2006), and the extracts from the judgment make clear that the last two authorisations for interception in relation to the Applicant were obtained after the last of the alleged substantive offences.

However, I am persuaded, for the reasons advanced by Mr Summers (see [76(1), (9) – (13)] above) that extradition is ultimately ordered for the foreign offence(s) specified in the EAW. I reject the arguments to the contrary advanced by Mr Knowles (see [77(12) – (18) above). In particular, in Kubun v Poland [2012] EWHC 3036 Collins J followed his judgment in Taylor v Germany (upon which the Applicant relies) variously stating that:

“8.

It is clear beyond any doubt that the purpose of the 2003 Order is to enable the court to direct the extradition for one or more of a number of offences even if one or more of them is not properly to be regarded as an extradition offence for any reason….

9.

….If one goes to section 10 one sees the reason for that modification because what it does is simply to ensure that at the initial stage of the extradition hearing the judge has to decide whether the offences, or any of the offences (this is the amendment) is an extradition offence. If he decides that any of the offences are not extradition offences, he must order the discharge in respect of those offences, but only those offences….

11.

The whole purpose of (the Order) quite clearly is to enable a court to decide whether any of the offences charged in a warrant which seeks return is a proper extradition offence. If it is then - on that - return can take place. If it is not then - on that and that alone – return cannot be directed.”

There is no evidence that the prosecution in Italy has sought to appeal against the acquittals in relation to the nine substantive offences. However, although Mr Knowles submitted (see [77(8)] above) that those offences were now dead, he was careful to make clear that that submission was not advanced on instructions, and there is therefore no formal guarantee in place that that is the case.

Against that background, and although I do not accept Mr Summers’ argument as to the limited scope in time and conduct of the offence of participation in a criminal association, it is, in my view, reasonably arguable, in accordance with Spain v Murua as interpreted by Zakrewski, that it would be an abuse of process to extradite the Applicant for the nine substantive offences of which he was acquitted as being time barred.

Accordingly, on this Ground, I would grant permission to appeal on that limited basis, and will deal with the outcome under the heading “Overall Conclusions” below.

Ground 3 – Surrender would be unjust or oppressive, contrary to s.14 of the EA

The DJ’s ruling

At [65] – [72] of his reserved judgment, the DJ set out extracts from Kakis v Government of Cyprus [1978] 1 WLR 772 and Gomes v Government of Trinidad & Tobago [2009] 1 WLR 1038, and aspects of the factual background and arguments – including the Applicant’s assertion that the Italian authorities should have sought his return much earlier and that, as a result of changes in his domestic circumstances, it would now be oppressive to order his return.

The DJ went on to say, at [73] – [81], that whilst he accepted that there would be a degree of hardship caused to the Applicant, his partner and their children (and to a lesser extent to the Applicant’s two older children who were said to be living abroad) it was not sufficient to prevent extradition from being ordered. The DJ continued that whilst the Applicant was not suggested to be a fugitive, the Judicial Authority had stated that, upon return, he had a right to appeal to the Court of Appeal (when he would be able to challenge the prosecution evidence and call evidence on his own behalf) and, if unsuccessful, a potential further appeal to the Court of Cassation, and that cases such as Nastase v Italy [2012] EWHC 3671 (Admin) had made clear that under Article 175(2) of the Italian Penal Code, as amended, a defendant who was absent from his first trial would be granted a fresh merits hearing without strings or conditions, unless he had deliberately evaded the first trial.

The DJ went on to record that the Applicant had said in evidence that he had instructed a lawyer in Italy to formally lodge an appeal on his behalf, so as to protect his position, and continued that whilst there had been changes in the Applicant’s life since he was said to have committed the offences, the DJ also had to consider that the alleged offending was serious (such that in the event of conviction in the UK a prison sentence of some length may well be imposed), and had thus concluded that the Applicant had not vaulted the hurdle necessary to succeed under s.14.

The submissions

Mr Summers submitted that s.14 provided a statutory route that was flexible enough to remedy what he submitted was the injustice of this case, namely (against the background set out in [12] – [17] above) that the Applicant had been tried, without notice, in his absence; that the trial had continued to conviction on the criminal organisation charge after he had been arrested (which arrest was either known about, or should have been known about); and that in consequence he had been deprived of basic rights.

Mr Summers placed reliance on the evidence of Professor Saccucci to the effect, amongst other things, that Italian law at the time permitted trials in absentia without proof that the defendant had actual knowledge of the proceedings; but that where an individual was arrested abroad, that amounted to a “legitimate impediment” to his attendance at the trial, which should therefore have been stayed. Equally, the fact that the Applicant had been declared to be unlawfully at large (if he was, given that the declaration could not be found) did not mean that he had any actual knowledge of the criminal proceedings. Such a declaration could be made if the police had done no more than searched the places where he was supposed to be found. Mr Summers further submitted that there were question marks in relation to the information provided by the Italian authorities, as to whether the court had been aware of the Applicant’s address, and whether Italian law permitted the continuation of a trial when a defendant was detained abroad.

Mr Summers reminded the Court of the well-known principles involved under s.14, including that:

In this case, Mr Summers argued, the conviction judgment made clear that the Applicant’s role in the offending had ended by November 2006, and therefore the Court was permitted to act upon events that had occurred in the decade since that time – during which the trial in Italy had taken its unfair course whilst at the same time the Applicant had established an extensive private life, including young children, in this country, whilst entirely ignorant of the proceedings in Italy.

As to injustice, Mr Summers submitted that, following unfair proceedings in absentia, the Applicant faced an uncertain, and in any event inadequate, retrial in which, even if granted, a complete review of the evidence will not be available; he will not be permitted pre-trial bail; he will not have recourse to procedures that could reduce his sentence exposure; and he will not be able to appeal on the merits if re-convicted. However, none of that would be the case if he had been summonsed properly in the first place.

Whilst, in the further information document dated 14 March 2016 (see [18(6)] above) it was suggested that there were two possible avenues of appeal open to the Applicant, under Articles 604(4) and 603(4) of the Code of Criminal Procedure, the evidence of Professor Saccucci showed that the Article 604(4) route had only a modest prospect of success, and that the Article 603(4) route involved an uphill task for the Applicant to show that he had been unaware of the proceedings. Equally, there was no promise from Italy that the Applicant would be returned to an appropriately fair position. Rather, the Respondent’s further information spoke in terms of the “possible” application of Article 604, and of the Applicant being “entitled to apply” under Article 603. In any event, Mr Summers submitted, success on appeal would not provide the same as a first instance trial in the sense that the evidence would not be the same; there was no automatic right to recall or to call witnesses; there was no right to bail (albeit that the Applicant could apply); there could be no plea bargain; and there was a restricted right of appeal.

Indeed, Mr Summers submitted, absent proper assurances as to the scope of the retrial, this Court has discharged under s.14 in similar circumstances – see Emberson v France [2015] EWHC 3030 (Admin) at [7], [9], [15] & [21], and Emberson v France (No 2) [2015] EWHC 3955 (Admin). Mr Summers underlined, in addition, that the “unlawfully at large order”, if any, had been lost, and with it, according to Professor Saccucci, any residual ability for the Applicant to challenge it.

Mr Summers further submitted that, in this case, “overlapping” considerations of oppression included the effect on the Applicant’s family, and especially his young children – as, had the Italian prosecution proceeded properly, the case would have been behind him by the time that his children were born (in July 2008 and August 2011 respectively) and thus would have had no effect on them.

Mr Summers continued that this could all be contrasted with the operation of s.20 of the EA, which was relatively straightforward. Equally, cases in which extradition to Italy had been approved were all fact specific. On the facts of the Applicant’s case Italy could not begin to satisfy the requirements of s.20 of the EA, because of the lack of guarantee of a full automatic re-trial, which amounted to injustice under s.14 of the EA. Thus, even though the burden was on the Applicant, s.14 applied and he should be discharged.

On behalf of the Respondent, Mr Knowles pointed out, by reference to the Applicant’s notes of the evidence given before the DJ (albeit that the notes were not agreed in their entirety), that:

In the result, Mr Knowles submitted, the short point in answer to the Applicant’s submissions in relation to s.14 was that he was entitled to an appeal under Italian law amounting to a re-trial, and that he had exercised (or had the opportunity to exercise) his rights of appeal.

In addition, Mr Knowles submitted that:

Further, Mr Knowles underlined that:

Finally, Mr Knowles submitted that the DJ had been correct, whilst accepting that extradition would cause hardship to the Applicant and his family, to conclude that it would not lead to oppression. As to injustice, the DJ had properly applied English law in relation to the Applicant’s appeal rights following his conviction in absence. There was no error in his citation of Nastase (above), which was clearly in point. At all events, the DJ had reached conclusions that were properly open to him on the facts and the law. The arguments advanced by the Applicant did not give rise to any basis upon which to grant permission to appeal.

Conclusions – Ground 3

As I made clear above when considering Ground 1, the Applicant’s critical assertion that the prospective Italian process will not necessarily involve an assessment, in fact and in law, of the incriminating and exculpatory evidence, or provide all the necessary guarantees with regard to a fair trial is, in my view, misconceived. Likewise, when considering Ground 2, I made clear that the offence of participation in a criminal association is alleged to have taken place in the period from December 2005 to February 2010, and is not limited to the conduct underlying the nine substantive offences of which the Applicant was acquitted as being time barred.

Against that background, and for the reasons advanced on behalf of the Respondent (see [[98] – [102] above) it is not reasonably arguable that the DJ’s erred in his conclusions as to lack of oppression or injustice, and that the Applicant had not vaulted the hurdle necessary to succeed under s.14. Accordingly, I would refuse permission to appeal on this Ground.

Ground 4 – Surrender would breach Articles 5 & 6 ECHR

The DJ’s ruling

As to Article 6, at [93] – [96] of his reserved judgment the DJ made reference to a number of cases, including Government of USA v Montgomery (No.2) (HL) (above); Rexha v Italy [2012] EWHC 1274 (Admin); Othman v U.K. (above); and RB(Algeria) v Secretary of State [2010] 2 AC 110, in support of the proposition that, in order to succeed on Article 6 grounds, the Applicant would have to show a “flagrant denial of justice” – i.e. that a prospective breach of the principles of a fair trial was so fundamental as to amount to a nullification of the very essence of that right.

At [97] & [98] of his judgment the DJ went on to rule that he was not persuaded that the Applicant had come close to establishing that he would suffer a flagrant denial of a fair trial; that the Italian Criminal Code enabled him to challenge the conviction and to avail himself of other remedies; and that he was satisfied that the Italian authorities were aware of their Convention obligations to provide the Applicant with a fair trial, and that nothing had been raised that persuaded him that they would not do so.

As to Article 5, at [101] – [103] of his judgment the DJ recognised that, in a number cases (two of which he cited) Italy had been the subject of adverse criticism in respect of pre-trial custody delays. However, he observed (by reference to decisions of this Court, including R (Klimas) v Lithuania [2010] EWHC 2076 (Admin), and Lewczuk v Poland [2010] EWHC 2960 (Admin)) that consideration of breaches of certain Convention rights (including Article 5) were generally matters initially for the requesting domestic courts.

In any event, and notwithstanding the Applicant’s case that he had been wrongly convicted at a time when he had a legal impediment for his non-appearance (because he was the subject of extradition proceedings); that he was thus prejudiced because he would inevitably be detained until the conclusion of any retrial or appeal; and that the Italian Judicial Authority must have known about his arrest in the UK and had an obligation to pass that to the Italian Court which should have stayed the proceedings, pending the conclusion of extradition; the DJ had concluded that the Applicant had been convicted by a competent court of first instance in circumstances where he was satisfied that the court was unaware of the Applicant’s arrest in the UK. Thus, by reference to Romania v Ceausescu [2006] EWHC 2615 (Admin), the DJ rejected the submission that the Applicant’s extradition, either to serve the sentence imposed, or to proceed to challenge his conviction, raised a breach of Article 5.

The submissions

Mr Summers accepted that, in this case, extradition will only be incompatible with Article 6 if there are substantial grounds for believing that there is a real risk that the Applicant has suffered, is suffering, or (in the event of a re-trial) will suffer, a flagrant denial of justice in the requesting state.

There was, Mr Summers submitted, an obvious overlap with Article 5 in relation to which extradition would be incompatible if there are substantial grounds for believing that there is a real risk that the Applicant has suffered, is suffering, or will suffer a flagrant violation – which, in accordance with Othman v United Kingdom (above) might occur if the Applicant would be at risk of being imprisoned for a substantial period in Italy, having previously been convicted after a flagrantly unfair trial.

Mr Summers submitted that the burden on the Applicant was no more than to show that there were “substantial grounds for believing” that there was “a real risk” (past, present or future) of a flagrant denial of justice, and submitted that, in the Applicant’s case, what had happened (from the issue of the unlawfully at large decree onwards), and what was likely to happen in the future, amounted to just that.

Mr Summers submitted that the trial conviction and sentence of the Applicant, in his absence, should never have happened for two reasons, namely that:

Mr Summers relied, in addition, on the decision of the European Court of Human Rights in Baratta v Italy (2015) 28263/09 at [114] – [119] (to which the DJ did not refer). In that case the defendant had been detained in Brazil, but the trial judge in Italy had refused to stop his trial in absentia, which resulted in conviction and the imposition of a life sentence. The Court held that detention pending extradition proceedings was a legitimate reason for absence and, against that background, that both the initial trial in absentia (where it was not established that the defendant had waived his right to be present, or that he had intended to evade justice) and the refusal to restart proceedings after his detention in Brazil, had breached Article 6 and that his subsequent imprisonment had been arbitrary, and thus a breach of Article 5.

Mr Summers submitted that Caldarelli had deliberately absented himself, and was thus not entitled to a re-trial, and that therefore the issue in that case was a narrow one as to what form the EAW should take. Mr Summers underlined that, in his partly dissenting opinion in Caldarelli, Lord Mance had been alive to the potential problems that could arise, if there had been a conviction in absence without the defendant having deliberately absented himself, but with no right to a re-trial or equivalent, and an accusation warrant was all that was required, he could (instead of s.20) rely on “…the (not inconsiderable) benefit of his basic entitlement to have the executing court consider whether his extradition is compatible with the Convention rights…”.

Mr Summers further submitted, relying on the evidence of Professor Saccucci, that the appeal options suggested by the Respondent in the further information document dated 14 March 2016 (see [18(6)] above) did not provide the necessary safeguards.

Mr Knowles submitted that the Applicant had not advanced any cogent reason as to why the DJ had been wrong to reject this ground of challenge. He relied on his earlier submissions in relation to Ground 3 (see [98] – [102] above), and submitted that there was no substance in this Ground, as Italian law provided the necessary guarantees in the appellate and subsequent trial processes that were available to the Applicant, and the Applicant’s arguments largely involved the repetition of arguments advanced under Ground 3.

As to Article 6, Mr Knowles submitted that, given that the Applicant had a right to challenge his conviction and to employ the remedies available to him under Italian law (and was doing so), there was no arguable nullification of his right to a fair trial such as to prevent extradition under Article 6 – see Othman v UK (above).

Mr Knowles further submitted that Baratta v Italy (above), which was relied upon by the Applicant, did not assist because it concerned a ‘domestic’ breach of Article 6 (and thus a different test). Equally, unlike the Applicant’s case, it involved applications to stop his trial, to annul the declaration that he was a fugitive, or not to proceed in his absence (which matters were critical to the establishment of a breach of Article 6). In contrast, in this case, the evidence showed that the Applicant had adequate protection of his Article 6 rights in Italy in both the appellate process, and thereafter. In particular, and plainly, the loss of the Applicant’s right to an accelerated trial or to a guilty plea procedure did not give rise to a total nullification of his right to a fair trial – the more so when he asserted his innocence and intended to contest his retrial.

As to Article 5 Mr Knowles, citing Romania v Ceauesescu [2006] EWHC 2615 (Admin), submitted that any detention would be by a competent court, and that therefore the Applicant’s extradition could not give rise to a breach of the Article.

Mr Knowles further submitted that the DJ had applied the correct legal principles in relation to both Articles, and had been right to find that the matters relied upon by the Applicant had come nowhere near to establishing that he would suffer a flagrant denial of justice.

Conclusions – Ground 4

As I have indicated above, the critical assertion made on behalf of the Applicant as to the prospective Italian process is, in my view misconceived. For the reasons advanced by the Respondent (see [116] – [120]), I have no doubt that the DJ was entitled to reach the conclusions that he did, and that this Ground is not reasonably arguable. Accordingly, I would refuse permission to appeal in relation to it.

Ground 5 – Surrender would be an abuse of process

The DJ’s ruling

The DJ recorded that the challenge was put in three ways, namely that:

The DJ concluded that none of those challenges came close to establishing an abuse of process, given that:

The submissions

Mr Summers argued, by reference to R (Bermingham) v Director of the SFO [2007] QB 727 and Italy v Barone [2010] EWHC 3004 (Admin), that an abuse of process primarily occurs where there has been a usurpation of the EA, or where the behaviour of the requesting state involves deliberate oppression or unfair prejudice to the requested person. He relied on cases including Belgium v Bartlett [2012] EWHC 2480 (Admin), Campbell v France [2013] EWHC 1288 (Admin) and McKinnon v USA [2008] 1 WLR 1739, HL as illustrations of when continuation of an underlying trial in the absence of the accused had been found to be an abuse of process.

Mr Summers then argued, by reference to the evidence of Professor Saccucci, and the information provided by the Italian authorities, that:

Against that background, Mr Summers submitted that:

In his submissions, Mr Knowles underlined that the test for establishing an abuse of process is a high one, namely whether the court’s process is being usurped which results in extradition being unfair and unjust to the requested person – see Belbin v France (above) at [43] – [44] & [59]. The jurisdiction is a residual one, and is not apposite if the challenge that is raised can be dealt with in the context of other bars to extradition, whereas the Applicant’s grounds of challenge were essentially the same as those raised under Grounds 3 & 4 – as to which it was clear that there was no arguable injustice, oppression, or breach of Articles 5 or 6.

In any event, Mr Knowles submitted:

Conclusions – Ground 5

This Ground also proceeds upon the same critical, but misconceived, assertion as to the prospective Italian process.

At all events, for the reasons advanced on behalf of the Respondent (see [127] – [128] above) this Ground is not reasonably arguable, and I would refuse permission to appeal in relation to it.

Overall conclusions

For the reasons set out above, I would refuse permission to appeal on Grounds 1,3,4 & 5, but would grant permission to appeal on Ground 2 – strictly limited to the abuse of process argument in relation to the ultimate order to extradite the Applicant in respect of all the offences set out in the EAW.

Whilst that was not an argument that the DJ was invited to consider, it seems to me that, in the particular circumstances of this case, which include the undoubted acquittal of the Applicant by a competent court in relation to the nine substantive offences, and the absence of any undertaking on instructions, or other viable guarantee, as to the non-resurrection of those offences (which creates a risk of prejudice or unfairness), the Zakrzewski criteria (see [41] above) are met. Accordingly, in my view, in the terms of s.27 (4) of the EA, had this issue been raised before the DJ it would have resulted in him deciding a question before him (namely what offences to order extradition for) differently - in that he would have ordered the Applicant’s discharge in relation to each of the nine substantive offences.

In the result, I would allow the appeal on the limited aspect of Ground 2 that I have indicated, and would quash the order for the Applicant’s extradition in relation to the nine substantive offences. However, the order for the Applicant’s extradition in relation to the offence of participation in a criminal association stands, and (I underline again) that offence covers the period from December 2005 until the issue of the EAW on 25 February 2010 and, whilst it includes (as is accepted) the conduct underlying the nine substantive offences, it is not confined to that conduct.

Lady Justice Sharp

I agree.