M B v Preliminary Investigation Tribunal of Napoli, Italy

These are two extradition appeals against orders by District Judge Michael Snow on 11^th August 2016 that M and B should be returned to Italy in response to two European Arrest Warrants (‘EAWs’). The District Judge held the two extradition hearings together as they were obviously linked. Likewise, the appeals to this Court were also held together.

M is the wife of B. The Interested Parties, X, Y and Z are three boys. They are the children of M and B. Z was born on 16^th February 2002. Accordingly, he was 15 in December 2017 when the first hearing of these appeals took place and 16 in June 2018. He was represented through the Official Solicitor as his Litigation Friend. X was born on 5^th April 1999. He was, therefore, 18 in December 2017 and 19 in June 2018. Y was born on 11^th May 2000 and was 17 in December 2017 and 18 in June 2018. Y was separately represented (by Steel and Shamash, solicitors at the hearing in December 2017 and, subsequently, by Malcolm Hawkes) for reasons which will be explained.

The two EAWs were issued by Judge Capuano, a Judge of the Preliminary Investigations Section of the Naples Court on 23^rd May 2013. They were both certified by the National Crime Agency on 9^th April 2015. The Appellants were arrested on 8^th December 2015 and taken before Westminster Magistrates’ Court. The extradition hearing took place on 27^th June 2016 and judgment was handed down on 11^th August 2016. Appeal notices were lodged in time. Dingemans J. refused permission on the papers on 26^th October 2016. Both Appellants renewed their applications and permission to appeal was granted by Lang J. on 1^st December 2016.

Nothing about these warrants is straightforward.

An EAW may be an accusation warrant, in which case it must include the statement in the Extradition Act 2003 (‘EA’) s.2(3) and the information in s. 2(4), or a conviction warrant, in which case it must include the statement in EA s.2(5) and the information in EA s.2(6).

The District Judge concluded that these were accusation warrants. There had been a trial in Court of Assize which had found the two Appellants guilty and sentenced M to 8 years’ imprisonment and B to 7 years’ imprisonment. However, the District Judge also had an email from Sally Cullen, the Liaison Magistrate in Rome, who had said that appeals had been lodged on behalf of both Appellants and that, as a matter of Italian criminal procedure, they remained accused persons until the appeals were disposed of. There is no challenge before us to that part of DJ Snow’s decision.

The accusations against the Appellants can, broadly, be said to concern human trafficking of young women of African origin to Italy for prostitution.

Box E of the EAW template is where the Requesting Judicial Authority is expected to set out the offences in relation to which the Requested Person’s return is sought. In these cases, Box E of each warrant was headed

Box E in each case then had several lettered sub-divisions. I will refer to the sub-divisions as ‘paragraphs’.

Paragraph A listed a number of legislative provisions under which the Appellant in question was wanted and then said

There then followed the words ‘In particular’ with 47 sub-paragraphs numbered B1 – B47.

B1 read:

The meaning of ‘nr’ at the beginning of B1 and the meaning of ‘conv Nrs.’ in parenthesis at the end of B1 was not explained.

Each of the remaining subparagraphs followed a similar pattern.

After B47, this was written,

The next paragraph within Box E is identified as ‘B’. That is confusing because, as I have shown, the particulars in respect of paragraph A are labelled B1-B47. This paragraph B sets out another offence which, after citation of the relevant provisions of the Penal Code, reads,

41 particulars are then given. These are labelled C1 – C41. Within these are C4 which says,

After the end of C41 there comes the following,

Paragraph C of Box E appears to be a further count. After citing legislative provisions, it continues,

Two particulars are given of count C in paragraphs labelled D1 and D2.

What appears to be a fourth count in Box E is described in paragraph E which, after citation of the legislative provisions, says,

42 particulars of paragraph E are then given.

Box C of the template requires the Judicial Authority to specify the maximum sentence for the offence for which the Requested Person is sought. In this case the EAWs said that it was not less than 20 years increased by one third to one half in view of the aggravating circumstances.

The District Judge had four letters from the Judicial Authority providing further information in support of the warrants. He referred to them as ‘RFFI 1’, ‘RFFI 2’, ‘RFFI 3’ and ‘RFFI 4’. In summary, these were:

At the extradition hearing a number of objections were raised by the Appellants. Two only are pursued on these appeals and it is therefore sufficient to focus on what the District Judge said about them. The two live matters are:

It is convenient to defer summarising the evidence relevant to the Article 8 issue until I turn to consider that ground of challenge. I will first explain how the District Judge dealt with the first issue.

As I have explained, s.2(4) prescribes the information which must be contained in an accusation warrant. So far as material it says,

The District Judge ruled as follows;

Ms Hill on behalf of M and Mr Hall on behalf of B submitted that the District Judge was wrong to conclude that the EAWs were adequately particularised. In particular, it was submitted:

In response, Ms Townshend on behalf of the Respondent argued that the District Judge was right to dismiss this complaint about the warrants. She argued that, since Box E began by stating that what followed were the ‘charges against the accused person’ it was to be inferred that all of what followed was alleged against each of the Appellants. The particulars provided a plethora of detail as to the alleged offending. Ms Townshend also submitted that the purpose of s.2(4) was to allow the District Judge to be satisfied that the offences in question had their equivalent in England and that they were properly characterised as extradition offences. The present warrants plainly allowed the District Judge to do just that and there was no ground of complaint in either regard.

At the hearing in December 2017, Mr Hall submitted that the requirement in s.2(4) had a further purpose which was to allow the requested person to object on specialty grounds if he or she was prosecuted for an offence other than one for which extradition had been ordered. In this case, that would not be possible because of the uncertainties in the warrants. Indeed, it was not even clear if the Appellants were wanted to face prosecution for one charge or more than one.

At the conclusion of the hearing in December, we considered that it would be desirable to request further information from the Judicial Authority. The request was communicated to the Respondent Judicial Authority on 14^th December 2017. A response was received from Judge Federica Colucci dated 15^th January 2018. With his response Judge Colucci enclosed a copy of the decision of the Court of Assize of 6^th December 2012.

The Court of Assize’s decision did clarify some matters.

Judge Colucci’s message of 15^th January 2018 confirmed that both Appellants had been convicted of, and sentenced for, offences B4, B9, B32, C4, C9, C26, E4, E9 and E29. He adds ‘The two defendants are charged with all the counts’.

We received further submissions from the parties in relation to this further material. In her written submissions of 9^th March 2018 Ms Townshend submitted that the further information provided by the Judicial Authority corrected any purported failure to comply with EA s.2.

Ms. Hill in her submissions of 14^th March 2018 and Mr Hall in his submissions of 15^th March 2018 repeated their arguments that, at the time of the hearing before the District Judge, the EAWs did not comply with EA s.2(4)(c). They argued that the further information provided since the hearing in December 2017 was inadmissible. If the further information was admissible, it showed that the EAWs were an abuse of process and, for that reason as well, the Appellants’ discharge should be ordered. Alternatively, the EAWs had been shown to be invalid. In the further alternative, if the further information was admissible, that, together with the original EAWs showed that the EAWs did not comply with EA s.2.

We considered that the new material, coupled with the Appellants’ submissions, could only be considered fairly by holding a further hearing of the appeal. We notified the parties on 29^th March 2018 that we would welcome submissions on two particular issues: (a) whether the further information from the Judicial Authority was admissible; and (b) whether, if the new evidence was admitted, the Appellants’ extradition would be an abuse of process.

Since the same constitution of the Court would need to conduct the further hearing and since a date had to be chosen at which the same counsel could attend, the earliest that this hearing could be arranged was 25^th June 2018.

In the meantime, yet two further pieces of further information were received from the Judicial Authority.

On 4^th May 2018 Judge Colucci:

The next piece of further information again came from Judge Colucci on 11^th June 2018. He recalled that the EAWs had been issued by his colleague, Judge Capuano. He had done so on 12^th June 2013 which was after the Court of Assize had given its judgment on 6^th December 2012. Count A of the original indictment had not been included in the EAWs because the Court of Assize had found it to be time-barred. It was Count A which had potentially given rise to the aggravating circumstances referred to in Article 416-bis of the Italian Criminal Code. Because he was not the Judge who issued the EAWs, he was limited in what he could say about their form. He added ‘What I can say is that my colleague included in the EAW the individual purposed offences with regard to all the episodes the defendants are charged with’. He undertook to investigate the state of the outstanding appeals.

The final further information was provided by Judge Colucci on 19^th June 2018. He said that his inquiries had shown that the appeal was still pending in the Court of Assize of Appeal of Naples and no hearing had been scheduled so far.

In advance of the hearing in June 2018 we received further skeleton arguments from the parties.

I remind myself that the critical parts of EA s.2 are as follows:

As already noted, where an EAW is issued for more than one offence then the requirements of the Act have to be complied with in relation to each of the offences - see Extradition Act 2003 (Multiple Offences) Order 2003 SI 2003 No. 3150.

I do not consider that the following propositions are controversial:

It is fundamental, as is clear from EA s.2, that the warrant should identify the offence or offences for which the Requested Person is sought. One reason for this is that the offence (and each offence if there is more than one) must be an ‘extradition offence’ – see EA ss.10(2) and 64. A second reason is that, if extradited, the Requested Person can only (putting it over-simply) be prosecuted for the offences for which extradition was ordered. A Requested Person is unable to assert his or her entitlement to Specialty Protection if insufficient particulars are provided,.

At this stage, I stress, I am considering the position as it was before the District Judge. I have very great sympathy for him. As will have been clear, the warrants were extremely difficult to follow. That was so, even making reasonable allowance for the fact that they had been written in Italian and translated (it might be thought somewhat imperfectly) into English. Nonetheless, bearing in mind particularly the burden and standard of proof, I do not consider that he was entitled to conclude that the warrants did identify the offences for which each of the Requested Persons’ extradition was sought. I draw attention in particular to the following:

The District Judge said ‘I am not entitled to consider extraneous material in considering whether [the EAWs] are s2 compliant’. He cited Dabas v Spain [2007] 2 AC 31. The law, however, has moved on since then. A broader approach is now taken to the entitlement of the courts of a Requested State to seek further information, indeed, in some circumstances there may be an obligation to request further information: see Case C-241/15 Criminal Proceedings against Bob-Dogi [2016] 1 WLR 4583 and Goluchowski v District Court in Elbag Poland [2016] UKSC 36; [2016] 1 WLR 2665.

On the present understanding of the law, the District Judge could, therefore, have sought further assistance from the Judicial Authority. Absent that assistance, he could not, in my view, have concluded that the EAWs as they stood satisfied the requirements of EA s.2. Quite simply they did not specify with the necessary clarity the offences in respect of which each EAW had been issued – a matter borne out by subsequent events.

Ms Townshend submits that we can and must receive the further information. She recognised that the position was different from that which DJ Snow had found to be the case (and indeed different from what she herself had submitted to him was the proper interpretation of the warrant). She argued that the offences with which the Appellants had been charged were now clarified. Although those included the offences which had been found to be time-barred and also included the offences of which the Appellants had been acquitted, she made clear that the Italian court was not now seeking the return of the Appellants on more than the charges of which they had been convicted.

Her position, therefore, was that we could and should receive the new evidence, but in the light of that further evidence, we should uphold the extradition only in relation to the following offences (in respect of each Appellant): B4, B9, B32, C4, C9, C26, E4, E9 and E29 and that we should allow the appeals and discharge the Appellants in respect of the remaining offences i.e. those offences (a) with which they had never been charged, (b) those offences which the Court of Assize had found to be time-barred and (c) those offences of which the Appellants had been acquitted.

The power of the courts of the Requesting State to receive further information has been reviewed recently by the Divisional Court in Alexander v Public Prosecutor’s Office, Marseille District Court of First Instance; Di Benedetto v Court of Palermo, Italy [2017] EWHC 1392 (Admin); [2018] QB 408. At [73] Irwin LJ said:

Irwin LJ noted that while the English Court could ask for further information, he added at [77]:

In my judgment these EAWs were wholly deficient. They failed entirely to make clear for what offences the Appellants were to be prosecuted. The deficiencies were not simply lacunae that could be made good by further information: the problems with the warrants were far more fundamental than that.

Ms Townshend had sought to rely on Lewicki v Italy [2018] EWHC 1160 (Admin) as an example of a case where the requested person had been discharged on appeal from nine out of the ten offences for which his extradition had been sought. However, I agree with Mr Hall and Ms Hill that the position in that case was fundamentally different. In that case, the EAW had accurately stated the offences for which the Requested Person was wanted at the time it was issued. After the EAW had been issued, the Italian court ruled that 9 of the 10 offences were time-barred. That scenario is quite different from the present cases where the form of the warrants led the District Judge into believing that the Appellants were wanted for each and every offence set out in the warrants. That had never been the case. Moreover, before the EAWs were issued, it was already known of which charges the Appellants had been convicted (and which had been declared time-barred or of which they had been acquitted).

Accordingly, I would conclude in agreement with Mr Hall and Ms Hill that the further information which has been provided since DJ Snow's decision is not admissible.

This leads me to the conclusion that the Appellants should be discharged since the warrants do not satisfy the requirements of s.2(4)(c) of the EA.

Because I have accepted this part of the Appellants' arguments, it is not necessary to consider alternative limbs of their argument.

They submitted that, since the information concerning the outcome of the proceedings in the Assize Court was known before the EAWs were issued and, therefore, also before the District Judge’s decision, there was no adequate explanation for it not having been adduced at that stage. The Appellants submitted that the Respondent could not, therefore, satisfy the test in Szombathely City Court v Fenyvesi [2009] EWHC 231 (Admin); [2009] 4 All ER 324 for adducing evidence at the appellate level. Ms Townshend relied on FK v Germany [2017] EWHC 2160 (Admin) for the proposition that the Fenyvesi test derives from EA s.27(4) (or, where the appeal is against an order of discharge, the equivalent provision in EA s.29) and concerns the ability of an Appellant to rely on fresh evidence: it does not restrict the ability of a Respondent to adduce fresh evidence which is, instead, governed only by the ‘interests of justice’ test.

Mr Hall and Ms Hill criticised the decision in FK as unprincipled and contrary to other authority. As I have said, because I would anyway exclude the further evidence it is not necessary for me to rule on those competing submissions.

Ms Townshend relied on FK for a different proposition. She argued that this Court, having requested the further information from the Judicial Authority, was now obliged to admit it (see FK at [49]).

I do not accept that last proposition. This Court was entitled to ask for further information and we are grateful to the Judicial Authority for responding to those requests. We considered the further material de bene esse (as is commonly the case when the admissibility of evidence is challenged). Having seen it, my conclusion remains that the EAWs represented a wholesale failure to comply with EA s.2 and the further information does not make good lacunae, rather it reinforces that conclusion. FK was not dealing with such a wholesale failure.

The Appellants also argued that, even with the further information, their individual roles in the different conspiracies was not sufficiently particularised. Pelka v Poland [2012] EWHC 3989 (Admin). As Calvert-Smith J. put it in Kopycki v Poland [2012] EWHC 744 (Admin) at [16] the particulars needed to explain whether the Requested Person was alleged to be a ‘foot soldier, lieutenant or colonel’. It is right, as Ms Townshend submitted, that a great deal of information is provided in relation to the individual offences. As long as the impression was created that the warrants were alleging overarching conspiracies of which the individual 'particulars' were the equivalent in England to overt acts, I could see some force in the Appellants' objections. However, it now seems to be alleged that the remaining offences are not conspiracies but stand alone offences. In those circumstances, it does not seem to me that this discrete complaint about the warrants is justified. That said, if there are to be further proceedings in relation to these matters (see below) and since the allegations against the Appellants are considerably narrowed, the Judicial Authority may be well advised to consider whether further information can be given about the individual role alleged to have been played by the Appellants in the distinct charges against them.

Since I would discharge the Appellants in any event because of the Respondent's failure to satisfy EA s.2, it is also unnecessary to consider whether, if the further information was admissible, the warrants would become an abuse of process. I consider that it would be superfluous to say any more about this argument.

Before the District Judge the Appellants had submitted that their extradition would be incompatible with the Article 8 rights of themselves and their three children. Limited evidence was then available as to the arrangements which would be put in place to care for Z who was still a minor. The District Judge concluded that, in view of the seriousness of the offences for which the Appellants were wanted, such disruption as there would be to the family lives of the Appellants and their children was proportionate.

We received a considerable quantity of further evidence which went to the Article 8 issue. Notably, it included the following:

At the hearing in June 2018 we canvassed with the Appellants whether, in the event that we were to discharge the Appellants on EA s.2 grounds, they would wish us to express views on the Article 8 grounds. The Appellants and the Interested Parties were unanimous that they would not invite us to do so. The reason is that, if the present warrants are discharged, it will, in principle, be open to the Judicial Authority to issue new EAWs. There is no principle of res judicata in extradition (see for instance Auzins v Latvia [2016] 4 WLR 75 Div Court).

If new warrants were issued, it would be necessary for there to be fresh extradition hearings in the Westminster Magistrates' Court at which the then current situation of the three children could be considered. The Appellants argued that the District Judge on any such occasion should approach their task afresh without the influence of our views on the evidence as it now stands.

I accept that, if the s.2 issue had been decided differently, the very great reduction in the number of offences for which the Appellants' return was sought would have required this court to conduct afresh the Article 8 balancing exercise mandated by cases such as Celinski v Poland [2015] EWHC 1274 (Admin); [2016] 1 WLR 551. That exercise is now unnecessary if the warrants are to be discharged anyway. The EA sets a series of questions for the District Judge to consider. The issue of whether extradition would be compatible with a Requested Person's human rights is required to be addressed (in an accusation warrant) by EA s.21A, but the District Judge will only have got to that question if he (or she) has already decided that the warrant satisfies the requirements of EA s.2. If my Lord agrees with me, these warrants will have failed at that earlier hurdle and the compatibility of the warrants with Article 8 simply does not arise.

I also accept that, should there be further EAWs issued in respect of these matters, the District Judge will need to consider the position as it prevails at the time of the extradition hearing. There may or may not be significant developments between now and then. I agree, therefore, that it would not be useful for this Court to express a view on how the balance would come down if it was to be struck today.

All that said, it is axiomatic that one of the factors to be taken into account is the seriousness of the conduct for which the Requested Person is to be prosecuted. Even slimmed down to the offences of which the Appellants have been convicted, these offences were undoubtedly serious. The sentences passed by the Assize Court of 8 years (in the case of M) and 7 years (in the case of B) can be seen as a reflection of how the offences were viewed in Italy. In those circumstances I would not be surprised if the Judicial Authority were to decide that the unfortunate debacle which the present EAWs represented should not be the final chapter in this sorry history.

I agree with Nicol J and would allow the appeal for the reasons he has given. I add only a very few words of my own.

There is a very strong public interest in extradition, all the more so in the case of serious offending, such as that here alleged - human trafficking, a base offence, causing human misery. But it is also necessary for the EAW system to work as it should. The requesting state must be expected to get its tackle in order. For the reasons given by Nicol J, the EAWs here were unacceptable, glaringly demonstrated by the additional information supplied to this Court.

As became clear, we were faced not with lacunae - but with a wholesale failure to provide the necessary particulars. Moreover, the further information did not assist in upholding the judgment of the District Judge but served to undermine it, very substantially. The upshot was that the proceedings limped from one hearing to another, with inevitable delay (even if the requesting state’s failures were not the sole cause of that delay).

It is much to be hoped that should the Judicial Authority issue new EAWs, they will absorb the lessons of this sorry history (as Nicol J has, rightly, described it).