Domi v Public Prosecutor's Office, Court of Udine (An Italian Judicial Authority)

The Appellant, Mr Hekri Domi, is a 27 year old Albanian citizen. On 19 December 2018 the Respondent, the Public Prosecutor's Office at the Court of Udine, Italy, issued three European Arrest Warrants seeking his extradition ("the EAWs"). The EAWs are conviction warrants seeking the Appellant's return to Italy in order to serve an overall sentence of ten years and four months' imprisonment (of which nine years, nine months and 22 days remain to be served). Italy is a Part 1 territory for the purpose of the Extradition Act 2003 ("the 2003 Act").

On 20 January 2020 District Judge McGarva ("the District Judge") ordered the Appellant's extradition pursuant to s. 21(3) of the 2003 Act. This is the Appellant's appeal pursuant to s. 26 of the 2003 Act against that order. By s. 27(2) this court can allow the appeal if:

The appeal raises questions as to the circumstances in which, if at all, an individual who has been deported from a territory is to be treated as present at a subsequent criminal trial in that territory for the purpose of s. 20 of the 2003 Act ("s. 20”) and the scope (and correctness) of the decision in Cretu v Local Court of Suceava, Romania [2016] EWHC 353 (Admin); [2016] 1 WLR 3344 ("Cretu"). The court is asked, amongst other things, to consider the interplay between the 2003 Act and the Council Framework Decision 2002/584/JHA (as amended by Council Framework Decision 2009/299/JHA (“the 2009

As set out more particularly below, the issues fall to be decided by reference to the law applicable before the end of the transition period governing the departure of the United Kingdom (“UK”) from the European Union (“EU”) on 31 December 2020. In order to resolve them the court has had the benefit of helpful submissions from Mr Hickman QC and Mr Grandison for the Appellant and Mr Perry QC and Ms Brown for the Respondent.

The Appellant was born on 10 March 1994 in Albania. In September 2009, at the age of 15, he moved to Udine in Italy. He wanted a better life: to study and then to work. He reported to the Italian police on arrival and was sent to a college for unaccompanied immigrant children.

On 20 April 2011 the Appellant committed "robbery" and "bodily injury" offences ("the EAW 2 offences"). The offending involved a joint enterprise armed robbery on a supermarket using a toy gun; the Appellant was armed with a knife. Violence was used against two female members of staff and €1,800 taken.

The Appellant was arrested on 21 April 2011 and placed in pre-trial custody on 23 April 2011. On that occasion the Appellant requested an "abbreviated" trial (rito abbreviato) (granting him a right to a one-third reduction in sentence in the event of conviction). On 4 October 2011, upon request by the Appellant's court-appointed lawyer, Avv. Petaryni, the Judge ordered that pre-trial custody be replaced with a community order. An order was made suspending the trial for a year in order for the Appellant to be placed on probation and monitored. That order, however, was subsequently revoked on the basis of non-compliance by the Appellant. After a further suspension was terminated for violation of conditions by the Appellant, the trial commenced and proceeded. On 18 May 2012 a sentence of three years' imprisonment was imposed. It was suspended at that stage ("the EAW 2 sentence"). The sentence became final on 4 July 2012.

On 11 October 2012 the Appellant is said to have committed "robbery", "unlawful carrying of arms and objects able to inflict injuries" and "bodily injury" ("the EAW 1 offences"). The offending involved the threatening of a shop assistant with a box cutter in order to steal €350. During the course of his escape, he was encountered by a man whom he pushed to the floor, causing injuries.

Between 20 and 22 January 2013 the Appellant committed offences of "extortion" (twice), "resisting a public official" and "unlawful possession and carrying of weapons ("the EAW 3 offences"). The Appellant robbed a man of money and jewellery and then sought money for return of the jewellery. When arrested, the Appellant used violence on police officers and was found to be in possession of a 27 cm knife. He was remanded in custody on these offences on 22 January 2013.

On 13 February 2013 the Appellant was served with a "notice of the end of the preliminary investigations" in respect of the EAW 1 offences and informed of his rights to appoint a lawyer of his choice and declare/elect domicile for service. He was also notified of the obligation to inform the Italian authorities of any change in the declared/elected domicile. At first, the Appellant did not appoint a lawyer of his choice to represent him in relation to the EAW 1 offences, so the Judicial Police confirmed the appointment of the court appointed lawyer, Avv. Cassina. However, on 27 April 2013 the Appellant instructed Avv. Crosilla to represent him in relation to the EAW 1 offences. He met her for the first time on 30 April 2013 when he attended court for a preliminary hearing. On his instructions, Avv. Crosilla sought and obtained an adjournment (of six weeks) until 11 June 2013 in order for her to take further instructions. The Appellant's case is that she never took any such instructions. The Appellant was returned to custody. Avv. Crosilla at no stage visited him prior to his deportation.

On 13 May 2013 the Appellant appeared in court in respect of the charges on the EAW 3 offences. He was represented by Avv. Cassina. Following another "abbreviated" trial procedure, he was sentenced to a term of two years and six months' imprisonment, suspended ("the EAW 3 sentence") and released on probation.

On 13 May 2013 the Appellant was served with a deportation order ("the deportation order") and deported to Albania on 15 May 2013. That deportation order was made not

The Appellant's position is that he (genuinely and reasonably) believed that his deportation brought all of the criminal proceedings in Italy to an end.

However, the criminal proceedings in Italy in relation to the EAW 1 offences continued. On 11 June 2013 the adjourned preliminary hearing took place, attended again by Avv. Crosilla for the Appellant. On 4 November 2014 the Appellant was convicted on the charges relating to the EAW 1 offences. Again, although he was not personally present, he was represented at the hearing by Avv. Crosilla. He was sentenced to four years and 10 months' imprisonment. This led to the activation by the court of the EAW 2 and 3 (suspended) sentences which were "included in the order of enforcement of concurring sentences". A total sentence of 10 years and four months' imprisonment was thus imposed. The judgment of 4 November 2014 ("the November 2014 judgment") became final on 18 February 2015. An order of enforcement of the amalgamated sentences was issued on 2 May 2016.

The Appellant points to the fact that the convictions for the EAW 1 offences (committed in October 2012) were relied on to justify activation of the EAW 3 sentence (as well as the EAW 2 sentence) (even though the EAW 1 offending pre-dated the operational period of the EAW 3 sentence). However, whilst this would not have been the approach of the English criminal courts, it was permitted as a matter of Italian law.

Following his deportation to Albania in 2013, the Appellant arrived in the United Kingdom in March 2015 with his then girlfriend, with whom he had been in a relationship since 2010. She obtained work as a receptionist and he worked in a restaurant and then as a gardener. They married in May 2016 and had a son in June 2017. The Appellant was able to obtain a residence card on the basis that he was a

The EAWs were issued on 19 December 2018. The warrant in respect of the EAW 1 offences ("EAW 1") was certified by the National Crime Agency on 14 January 2019, and the Appellant was arrested on 17 February 2019. The warrants in respect of the EAW 2 and 3 offences ("EAW 2") ("EAW 3") were certified by the National Crime Agency on 15 July 2019 and the Appellant was arrested on them on 8 October 2019. The EAWs were supplemented by further information from the Italian authorities (in documents dated 18 March 2019, 27 March 2019 and 19 August 2019 which are set out and/or the contents of which are reflected in the narrative below).

In EAW 1 the Respondent, having indicated that the Appellant did not appear in person at the trial resulting in the decision, marked Box D3.2. In so doing it was declared that:

Further information dated 27 March 2019 stated that on 13 February 2013, while on remand for the EAW 3 offences, the Appellant was served with a "notice of the end of the preliminary investigations" in respect of the EAW 1 offences. He was also informed of his right to appoint a lawyer of his choice and declare/elect domicile for service. He was also notified of his obligation to inform the Italian authorities of any change in his declared/elected domicile. The Appellant did not appoint a lawyer of his choice, so the Judicial Police confirmed the appointment of the lawyer previously appointed by the court, Avv. Cassina; the Appellant had therefore selected Avv. Cassina's offices as his address for service, "signing the relevant minutes". He later, on 27 April 2013, appointed a lawyer of his choice, Avv. Crosilla, thereby revoking the appointment of Avv. Cassina as his defence advocate. The preliminary hearing took place on 30 April 2013. The appellant was present at that hearing, along with Avv. Crosilla. Ms Crosilla sought an adjournment in order to prepare the Appellant's defence. The application was granted and the hearing was adjourned for six weeks to 11 June 2013:

In EAW 2 the Respondent indicated that the Appellant did not personally appear at the trial resulting in the decision but, having been aware of the trial date, had instructed counsel to defend him and had been defended by that counsel at the trial.

Box D.4 stated that the Appellant was arrested on 21 April 2011 and was placed in pretrial custody on 23 April 2011. On 11 May 2011 the Pre-trial Investigation Judge, issued a decree for immediate trial. In the aftermath, the Appellant requested to be tried on the basis of the abbreviated trial procedure. At a hearing on 4 October 2011, upon request by the Appellant's defence lawyer, Avv. Petaryni who was appointed by the court, the Judge ordered that pre-trial custody in prison ought to be replaced with a less severe measure and imposed a community order. On the same day, once the Appellant had been released from custody, an order suspending the trial for a year was issued for the defendant to be placed on probation on the basis of a project for supervision of minors. That order was revoked due to the Appellant's serious non-compliance with the terms. The trial commenced again. The Appellant participated in the first stage, and requested trial on an abbreviated basis. He obtained suspension of trial under a project of rehabilitation, but violated the directions and interrupted contact with the supervising office. The trial resumed in his absence on the basis of an abbreviated trial with the result that, upon his conviction, he received a reduction in sentence.

In EAW 3 the Respondent indicated that the Appellant appeared in person at the trial resulting in the decision.

Shortly after his arrest in this country in February 2019, on 28 March 2019 an Italian lawyer for the Appellant filed an application requesting "non-execution of the [November 2014 judgment]" or, "subordinately" leave to file an out-of-time appeal against the November 2014 judgment under Article 175 of the Code of Criminal Procedure.

By order of 16 April 2019 the Court of Udine sitting as a panel of judges rejected the application for an out of time appeal, "holding unsubstantiated the grounds supporting the thesis that [the Appellant] did not have effective knowledge of the trial”.

On 2 May 2019 the Appellant appealed the rejection of his application for leave to file an out of time appeal against the November 2014 judgment to the Supreme Court of Cassation. It appears that the Supreme Court of Cassation rejected that appeal.

The Appellant appealed to the European Court of Human Rights (“the ECHR”). On 8 October 2020 the ECHR, having examined the application (which was introduced on 16 March 2020), declared it inadmissible:

The extradition hearing on all three EAWs took place before the District Judge on 18 December 2019. The Appellant, his wife and an expert witness on Italian criminal law, Avv. Benito Capellupo, gave evidence. Judgment was handed down in writing on 20 January 2020 (“the Judgment”).

The District Judge rehearsed the evidence. In relation to the Appellant's evidence, he emphasised the Appellant's reliance on his youth (18 years old) at the time of deportation and that he thought that his deportation to Albania was "an end of it all". His evidence was described as "fairly vague". As for the evidence of Avv. Capellupo, the District Judge recorded the following (at [20]):

The District Judge recorded that the deportation was not imposed by the court but by the Prefect of Udine (under Article 12 paragraph 2(b) of the Legislative Decree 286/1998) on the basis that the Appellant's leave to remain had expired.

The District Judge rejected the Appellant's evidence to the effect that the charges in relation to the EAW 1 offending were dropped in April 2013 because of a lack of evidence or that he was told by Avv. Cassina that the deportation order was an alternative to the continuation of criminal proceedings. The Appellant's evidence was vague and contradictory in this regard, and such advice would not have been accurate.

At [28] of the Judgment, the District Judge stated that, whist the Appellant was not told in the deportation order of his right to return to Italy for trial, the District Judge would have expected his lawyer to advise him of that right if he had asked her "which he did not. Such advice was not given because [the Appellant] did not contact his lawyer after his deportation."

The District Judge found that Avv. Crosilla, the Appellant's lawyer of choice, had only seen the Appellant once at court on 30 April 2013 and did not have instructions beyond what she was told at that hearing. She did not visit him in prison.

The District Judge went on (at [29]) to find that the Appellant had assumed that the criminal proceedings in relation to the EAW 1 offences were suspended or completed. However, this assumption was not reasonable:

At [30] the District Judge also held that the Appellant had not been voluntarily absent from his trial in November 2014; he had been deported from Italy:

At [33] the District Judge stated:

The District Judge went on to consider the passage of time (by reference to s. 14 of the 2003 Act), concluding that extradition would not be unjust or oppressive, and then s. 20 (at [38]). Given that he was bound by the decision in Cretu, the Appellant was deemed to be present by virtue of having instructed his lawyer of choice who was present at trial:

As for Article 6 (and Article 5), the hurdle for the Appellant to cross was high. The District Judge considered the domestic case of R v Raymond Gavin [2011] Cr App R (S) 126 and the decision of the European Court in Othman v UK [2012] 55 EHRR 1 (“Othman”). He concluded that there had been no flagrant breach of the Appellant's rights. At [41] he stated:

The District Judge then carried out the Celinski (Footnote: ¹) balancing exercise, concluding that the balance lay firmly in favour of extradition. He also rejected the submission for the Appellant that there had been an abuse of process such as to justify barring extradition.

He proceeded to make the order for extradition. It is common ground that the Appellant has no right to a retrial or rehearing if he is returned to Italy.

Two overarching grounds of appeal are advanced:

The grounds were developed, in summary, as follows.

In support of Ground 1 it is said:

In support of Ground 2 it is first said that the District Judge's finding that it was unreasonable for the Appellant to believe that the criminal proceedings on the EAW 1 offences would not proceed to trial following his deportation was wrong. The courts will overturn a decision on the reasonableness of a party's belief or diligence: see Purcell and ors v The Public Prosecutor of Antwerp, Belgium [2017] EWHC 1328 (Admin) ("Purcell") and Penta v District Public Prosecutor's Office Zwolle-Lelystad, Netherlands [2011] EWHC 992 (Admin) ("Penta").

It is said to be impossible (in circumstances where the Appellant was deported and told unequivocally that he would be committing an offence if he returned within five years and never informed that he could return to defend the criminal prosecution or that it was continuing) to see why it was unreasonable for the Appellant to believe that the criminal proceedings would be suspended. The District Judge identified no evidential basis for his finding that the Appellant's belief that the proceedings would be suspended was unreasonable.

As for Article 5, the District Judge should have concluded that the Appellant was convicted after a "flagrantly unfair trial", thereby breaching Article 5 (see Othman at [233]). Whatever the European Court of Human Rights may have decided, this court has to make its own judgment.

A flagrant denial of justice can occur when the State refuses to re-open proceedings conducted in absentia where the accused has not waived his/her right to be present (see Sejdovic v Italy Application No. 5681/00 ("Sejdovic") (at [84])). As a general principle, a defendant is entitled to be present and participate effectively in criminal proceedings. Any waiver must be unequivocal (see Sejdovic at [86], [91] and [92]).

The Appellant submits that the District Judge's conclusions that i) whilst there may have been a breach of Article 6, the Appellant's lack of diligence meant that he could conclude that his conviction was not based on a flagrantly unfair and uncompliant trial and ii) there were enough safeguards for him to conclude that there had been no nullification or destruction of the Appellant's Article 6 rights, were flawed:

As for Article 8, if the District Judge was wrong to find that the Appellant's belief that the proceedings were at an end was unreasonable, the Appellant's case under Article 8 is said to be overwhelming. Reference is made to JK at [53] to [62]. The court here would need to reconsider the balancing exercise.

It is submitted that it would now be oppressive and/or disproportionate to order the Appellant's extradition to Italy:

In the event that the appeal against the District Judge's decision in relation to EAW 1 by reference to s. 20 and/or Article 5 alone were to succeed (but not by reference to Article 8), Mr Hickman submitted that this court should "remit (Footnote: ²)" the question of extradition under EAWs 2 and 3.

The Respondent's essential position is that Box D of EAW 1 was completed properly. In line with Cretu (at [34(v)]) the burden of proof has been discharged and extradition should follow. The investigative exercise that the Appellant invites the court to take is precisely what the Divisional Court in Cretu (at [35]) cautioned against. The court should look at EAW 1 and any further information and take it at face value. In this case it should not speculate as to what passed between the Appellant and his lawyer, or as to the quality of any instructions. Nor should it impose English notions of instruction on the Italian criminal inquisitorial process. The court is not concerned with how Avv. Crosilla carried out her professional duties. The decision in Cretu was correct.

The District Judge's conclusion was that the Appellant was present at trial by virtue of his instructed counsel (as would be the position in England and Wales: see s. 122 of the Magistrates' Court Act 1980). Even if an individual is not personally present, an accused who has instructed ("mandated") a lawyer to represent him in the trial is not, for the purpose of s. 20, absent from his trial. Italian law, as Avv. Capellupo confirmed and as the District Judge recorded at [20] of the judgment, deemed the Appellant to be present via his instructed lawyer. The Appellant's construction of s. 20 is a "heresy". It is impermissible to interpret s. 20 so as to ignore a fundamental feature of civil common law systems which do not require a defendant to appear at his or her trial in person.

The "whole point" of s. 20 and the 2002 Framework Decision is to protect defendants from a violation of their Article 6 rights. It is not for this court to make value judgments as to the processes adopted in other legal systems, provided that there is compliance

As for the District Judge's finding that the Appellant's belief that the criminal proceedings were at an end was unreasonable, there is no proper basis on which to interfere with his findings. The fact that the Appellant was not a fugitive from justice did not mean that he had not exhibited a "manifest lack of diligence". Finally, the District Judge's conclusions on Article 8 were unimpeachable.

The 2003 Act was enacted against a background of domestic and European developments in international criminal law. In particular, the EU was to be established as an area of freedom, security and justice. Mutual recognition of judicial decisions was intended to become the cornerstone of judicial cooperation in both criminal and civil matters. The 2003 Act was intended to create a quick and effective domestic framework in which to extradite a person to the country where they are accused or have been convicted of a serious crime, providing that this does not breach their fundamental human rights.

The procedure established by the 2003 Act adopted the 2002 Framework Decision, creating a fast-track extradition arrangement within the EU and Gibraltar. In doing so, the 2003 Act provided for extradition, unless any of the prescribed statutory bars to extradition exist.

Part 1 of the 2003 Act applies as between Member States of the EU, described as "category 1 territories", and thus between Italy and the UK.

The obligation on the requested state, here the UK, arises on receipt of a Part 1 warrant in respect of a person: that is, of an EAW properly so described. The EAW, as defined in s. 2, may fall into one or other of two categories, depending on the statement and information which it contains. It may (see ss. 2(2)(a), (3), (4)) be a warrant issued with a view to a person's arrest and extradition to a category 1 territory for the purpose of his being prosecuted for an offence. Or it may (under s. 2(2)(b), (5)) as originally enacted and (6)) be issued where:

Part 1 of the 2003 Act provides for an extradition hearing (see s. 9) at which the court must decide (see s. 10) whether the EAW specifies an extradition offence. If not, the

S. 20 provides a specific basis for refusing extradition. More particularly, it deals with trials in absentia which are commonplace in many civil law jurisdictions.

S. 20 provides materially:

Thus the s. 20 enquiry requires the court to address a series of questions. The first question is whether the requested person was convicted in his presence. If this question is answered in the negative, the court must then decide whether the requested person "deliberately" absented himself from his trial (see s. 20(3)). If this question is answered in the negative, the court must then decide whether the requested person would be entitled to a retrial or (on appeal) to a review amounting to a retrial. If any of the three questions is answered in the affirmative, the court must then proceed under s. 21 (see ss. 20(2) and (4)).

S. 21 provides materially:

The 2002 Framework Decision was enacted originally to produce a faster and simpler procedure for extradition within the EU and founded on Member States' confidence in the integrity of each other's legal and judicial systems.

Recitals 1, 5 to 7, and 10 read as follows:

It suffices to note the following Articles at this stage:

The clear purpose of the 2002 Framework Decision (apparent, in particular, from Article 1(2) and likewise from Recitals 5 and 7) was to replace the multilateral system of extradition based on the European Convention on Extradition, signed in Paris on 13 December 1957, with a system of surrender between judicial authorities of convicted or suspected persons for the purpose of enforcing judgments or of conducting prosecutions based on the principle of mutual recognition. Member States were required to execute any European arrest warrant on the basis of the principle of mutual recognition and in accordance with the provisions of the 2002 Framework Decision. They could refuse to execute such a warrant only in the cases of mandatory nonexecution (provided for in Article 3) and in the cases of optional non-execution (listed in Article 4). Moreover, the executing judicial authority could impose conditions on execution only as set out in Article 5.

Accordingly, execution of the European arrest warrant constitutes the rule. A refusal to extradite is an exception to that rule and one to be made only by reference to criteria which are to be interpreted strictly (see Minister for Justice and Equality (Deficiencies in the system of justice) C 216/18 PPU, EU:C:2018:586 at [41]).

The 2009 Framework Decision amended the 2002 Framework Decision with the intention of enhancing the procedural rights of persons and fostering the application of the principle of mutual recognition to decisions rendered in the absence of the person concerned at the trial. The UK was one of its sponsors. Recital 10 reads as follows:

Article 2 of the 2009 Framework Decision inserted Article 4a into the 2002 Framework Decision. Article 4a provides:

Article 4a effects a harmonisation of the conditions of execution of a European arrest warrant in the event of a conviction rendered in absentia, reflecting the consensus reached by all Member States regarding the scope to be given under EU law to the procedural rights enjoyed by persons convicted in absentia who are the subject of a European arrest warrant. The executing judicial authority is entitled to refuse to execute the European arrest warrant issued for the purpose of executing a custodial sentence or a detention order if the person did not appear in person at the trial resulting in the decision, unless the European arrest warrant states that one (or more) of the conditions set out in subparagraphs (a) to (d) are met. Article 4a allows the executing authority to surrender the person concerned despite his personal absence at trial, whilst fully respecting his rights of defence.

The EU legislature therefore adopted the approach of providing an exhaustive list of the circumstances in which the execution of a European arrest warrant issued in order to enforce a decision rendered in absentia must be regarded as not infringing the rights of the defence. It follows that the executing judicial authority is obliged to execute a European arrest warrant, notwithstanding the personal absence of the person concerned at the trial resulting in the decision, where one of the situations referred to in Article 4a(1)(a), (b), (c) or (d) is verified.

Having exercised its right to opt-out of pre-Lisbon Treaty measures relating to Police and Judicial Cooperation in Criminal Matters, on 1 December 2014 the UK exercised

No amendment to the 2003 Act has at any time been thought necessary as a result of the 2009 Framework Decision. S. 20 is consistent and can be applied in conformity with Article 4a. The 2002 Framework Decision and the 2003 Act thus provide for judicial cooperation between the UK and other Member States with differing procedural regimes. It is this relationship that calls for an internationalist, cosmopolitan approach when construing domestic extradition statutes and instruments (see In re Ismail [1999] AC 320 (at 326 per Lord Steyn); Caldarelli v Court of Naples [2008] UKHL 51; [2008] 1 WLR 1724 (at [7] and [23] per Lord Bingham)). These statutes and instruments do not fall to be viewed through a purely insular, common law domestic legal lens.

It is common ground between the parties that the combined effect of s.7A(1) of the European Union (Withdrawal) Act 2018 and Articles 4 and 62 of the Agreement on the Withdrawal of the United Kingdom from the European Union and the European Atomic Energy Community (2019/C 384 I/01) ("the Withdrawal Agreement") require the Framework Decisions to be given the same legal effects as those which they produce within the Union and its Member States (see Polakowski and others v Warsaw Regional Court, Poland [2021] EWHC 53 (Admin) (“Polakowski”) at [21]).

It follows that:

Since the Appellant was arrested before the end of the transition period (at 11 pm on 31 December 2020 (per Article 62(1)(b) of the Withdrawal Agreement)), this is the law applicable in this appeal. The fact that the Appellant was not surrendered before 31

The leading authority in domestic law on the correct interpretation of s. 20 (in conformity with Article 4a) is Cretu. There the Divisional Court restated that domestic law was to be interpreted in accordance with the 2002 Framework Decision. Cretu has been further considered and applied many times since 2016, including in Tomasz Stryjecki v. Distrcit Court in Lublin, Poland [2016] EWHC 3309 (Admin); Tyrakowski v. Regional Court in Poznan, Poland [2017] EWHC 2675 (Admin); Dziel v. District

In Cretu Burnett LJ stated as follows:

In summary and simple terms for present purposes, the relevant principles can be identified as follows. Applying a Pupino conforming interpretation to s. 20:

It is important to identify at the outset the real issues in this case. Whilst the District Judge considered and made findings in relation to matters which might be said to go to s. 20(3) of the 2003 Act, namely deliberate absence, the rationale for his decision under

In EAW 1 the Respondent stated at D3.2:

“ being aware of the date of the trial, the person has instructed counsel who was either appointed by the person concerned or by the State, to defend him or her at the trial, and was indeed defended by that counsel at the trial”.

At D4 the Respondent set out further information as to the Appellant’s appointment of Avv. Cassina as his domicile lawyer, and of Avv. Crossina as his defence lawyer on the EAW 1 offences.

As indicated, this ground of appeal proceeds on the assumption that it is for the executing judicial authority not to accept at face value the statement made by the Italian authorities (at D3.2 in EAW 1) but rather to examine for itself whether (in its opinion) the conditions of Article 4a(1)(b) were in fact satisfied. This argument was not advanced before the District Judge because of the concession made for the Appellant that the combined effect of [24], [34(iii)] and [35] of Cretu meant that it would be difficult for the Judge to find that the conditions in s. 20 were not satisfied. As will be seen below, this concession was in my judgment rightly made.

The opening submission for the Appellant is that it is well established that, when the contents of a European arrest warrant are ambiguous or confusing, the domestic court must determine on the evidence before it (and independently) whether the conditions stipulated are satisfied. When read together, the contents of Box D 3.2 and Box 4 in EAW 1 (which corresponds to Article 4a(1)(b)) are said to create ambiguity. More specifically, it is said that the assertions of fact in Box D4 do not support the statement at Box D 3.2.

Putting to one side the question of whether or not there is in fact any ambiguity as suggested, I do not accept the submission that it is trite law that in such circumstances it falls to the domestic court to carry out it its own determination on the evidence before it (which may be quite different to the facts and matters relied on by the requesting authority which would in any event fall to be assessed by reference to the national law of the requesting authority). The Appellant’s contention misreads what Burnett LJ stated at [35] in Cretu: the solution in cases of ambiguity on the face of a European arrest warrant is to press the requesting judicial authority for further information. It is not for the executing court to conduct an independent investigation of its own or to revisit the facts stated. That would be wholly at odds with the system of mutual trust and confidence that underpins the domestic and European extradition framework. It would be to do precisely what the Divisional Court in Cretu counselled against, and for compelling reasons, to repeat (from [35]):

“…Article 4a…does not call for one member state in any given case to explore the minutiae of what has occurred in the requesting member state or to receive evidence about the whether the statement in the EAW is accurate. That is a process which might well entail a detailed examination of the conduct of proceedings in that other state with a view to passing judgment on whether the foreign court had abided by its own domestic law, EU law and the Convention. It might require the court in one state to rule on the meaning of the law in the other state. I would entail an examination of factual matters in this jurisdiction, on which the foreign court has already come to conclusions, but on partial or different evidence. None of that is consistent with article 4a….”

Whether or not any of the four exceptions outlined in article 4a(1) applies is to be assessed "in accordance with further procedural requirements defined in the national law of the issuing Member State". Under Italian law a person is deemed present if he is represented by a lawyer who is present at the trial (as Avv. Capellupo stated and as the District Judge accepted (at [20] of the Judgment)). There was "nothing improper" in Italian law with the Italian court proceeding without the physical presence of the Appellant in those circumstances. Further, under Italian law the Appellant was under an obligation to stay in touch with his Italian lawyer following his deportation.

Here the Respondent expressly considered the Appellant to be aware of the date of the trial for the purpose of Article 4a(1)(b). (As a side note, it would appear that that conclusion has been supported both by the Court of Udine and the ECHR). It was not for the District Judge to reconsider that question by receiving evidence as to whether the statement in the EAW (that he was so aware) was accurate or, for example, to speculate as to or explore the extent and nature of the Appellant’s instructions to and communications with his lawyers.

In these circumstances, the burden of proof under s. 20(1) had been discharged and extradition should follow (subject to s. 21 considerations).

The Appellant's alternative submission does not assist him. It is suggested that, in the event of a clear mistaken assertion on the facts, the executing judicial authority has an obligation to exercise an independent judgment on the evidence before it. Again putting to one side whether it can be said that there was here any clear mistaken assertion on the facts, this amounts to an attempt to extend (or depart from) the decision in Cretu in a manner that is not justified on the basis of the EU authorities relied upon by the Appellant.

Cretu (at [36]) makes it clear that the protection for the requested person against what may turn out to be a mistaken factual assertion in relation to Article 4a is the protection provided by domestic, EU and Convention law in the requesting state’s jurisdiction.

In Dworzecki, a request for a preliminary ruling was made by the District Court of Amsterdam concerning Article 4a(1)(a)(i) of the 2002 Framework Decision. ("the summons article"). TR was also a case concerning the summons article in which the requested person deliberately absconded from his address in order to evade the criminal proceedings brought against him in Romania. Romanian law stipulated that, upon the expiry of a period of 10 days, the summons was deemed to have been notified. Both cases can be distinguished. Neither case concerned Article 4a(1)(b). Each concerned a particular set of circumstances in which a requested person had deliberately absconded in order to evade service. Further, and in relation to Dworzecki more specifically, it has been confirmed in subsequent decisions that nothing said there altered or undermined the principles enunciated in Cretu. Rather, the authorities should be viewed consistently with one another (see Romania v Zagrean [2016] EWHC 2786 (Admin) at [77]-[81]; Dziel v District Court in Bydgoszcz, Poland [2019] EWHC 351 (Admin) at [16];

Zdziaszek did not feature in the parties' oral submissions at all. It was a case dealing primarily with the question of sufficiency of information in a case where the European arrest warrant did not contain the necessary statement for the purpose of Article 4a at all.

The Appellant contends that:

The first of these contentions falls foul of [34(iii)] of the decision in Cretu, to repeat: “An accused who has instructed (“mandated”) a lawyer to represent him in the trial is not, for the purposes of section 20, absent from his trial, however, he may have become aware of it.”

Analysis as to whether or not that statement is strictly to be treated as obiter dictum (because the court in Cretu was considering Article 4a(1)(a) and not (b)) does not materially advance matters. On any view, it is a highly authoritative statement which has been adopted as correct without question by the domestic courts subsequently.

It is also suggested for the Appellant that the statement in [34(iii)] applies only to presence/absence for the purpose of s. 20(3) (and not s. 20(1)). It is right that [34] appears under the heading "Argument and discussion on section 20(3)" in Cretu. However, it is clear that Burnett LJ did not intend to confine his statement in [34(iii)] to s. 20(3). The opening sentence of paragraph 34 refers to s. 20 as a whole, and when the court did intend to confine its analysis to a specific subsection, it did so in terms (see for example [34(i)] and [34(iv)]). There is nothing in [34(iii)] to confine itself to the question of "deliberate absenteeism" under s. 20(3). It was a statement of general application to the question of presence/absence for the purpose of s. 20.

There is also force in the Respondent's submission that to limit the statement in [34(iii)] of Cretu to s. 20(3) as suggested would frustrate the proper operation of s. 20. On the Appellant's construction, a requested person could (perfectly legitimately) choose not to attend his or her trial in Italy and instead be represented through a lawyer. S. 20(1) of the enquiry would be answered in the negative (because the requested person was not physically present). The requested person would also not be found to have been "deliberately absent" for the purposes of s. 20(3) (because he or she was under no obligation to attend in person under Italian law and would be deemed present (through legal representation)). On this basis, a requested person could have a trial that was fully compliant with Article 6 and yet still be able to escape extradition.

The Appellant’s construction would also lead to the paradoxical conclusion that a requested person who had chosen to instruct a lawyer for the purpose of s. 20(3) could not be deliberately absent, but could be absent for the purpose of s. 20(1). This seems absurd. Connectedly, and as a matter of ordinary principles of statutory construction, it would be odd if presence/absence meant one thing for the purpose of s. 20(3), but another for s. 20(1). It is to be presumed that, since a statute is to be read as a whole, words and phrases are intended to have a consistent meaning throughout (see Understanding Legislation, Lowe and Potter at 3.22).

Thus, far from being at the heart of the debate on the facts of this case, the question of deliberate absence does not arise.

The Appellant further submits that Article 4a (and [34] of Cretu) are to be disregarded because, on the facts of this case, a Pupino conforming interpretation to s. 20 cannot be applied. He relies on Polakowski (at [15]) in support of his submission that s. 20 must first be construed through the eyes of the domestic legal order, divorced from Article 4a(1). However, Polakowski was a case dealing with the retrospective effect of provisions dealing with the UK’s departure from EU, an entirely different context. It can be readily understood why, in that context, the correct starting point for legal analysis must be the domestic Act of Parliament. Here the legal context is the international framework of mutual trust and confidence, respecting the autonomy, laws and practices of fellow Member States.

The Appellant's argument was not easy to follow. However, certainly once the question of presence/absence for the purpose of s. 20(1) is properly understood, as set out above, there is nothing about the facts of this case that prevents the court from applying s. 20 in conformity with a Pupino interpretation.

Whilst s. 20 represents the domestic legislature's reflection of Article 4a(1), its terms are not entirely congruent. This brings into play the principle of conforming interpretation. It is the obligation of the English courts to interpret section 20, so far as possible, consistently with the wording and purpose of the 2002 Framework Decision. A useful summary of the obligation can be found in Vodafone 2 v Revenue and Customs Commrs [2009] EWCA Civ 446; [2010] Ch 77 at [37]-[38]:

It has been held consistently that the clear intent of s. 20 is to give proper protection to the requested person's Article 6 rights (see for example Szatkowski v Poland [2019] EWHC 883 (Admin); [2019] 1 WLR 4528 at [33]). There is no reason why that intent is not fulfilled by an interpretation which allows a person to be extradited in circumstances where that person was neither physically present at his trial on the offences which form the basis of EAW 1 nor deliberately absent (but was represented by a defence lawyer). That accords with the "grain" and the "underlying thrust" of s. 20 and with an approach to the construction of Article 4a(1) that is narrow and designed

Nor, so far as relevant, is there anything offensive in the notion of “deemed presence” under English criminal law. Proceedings in the Magistrates’ Courts may be conducted in a defendant's absence (so long as the defendant is legally represented (see s. 122 of the Magistrates' Court Act 1980)). Mr Hickman points to the fact that s. 20 does not have such an express statutory deeming provision. The short answer is that s. 20(1) does not need one, not least given the obligation to interpret it consistently with the 2002 Framework Decision. Further, as confirmed in R v Jones (Anthony) [2003] 1 AC 1 (at [7], [13] and [15]), proceedings in the Crown Court may continue in the absence of the defendant, all the more so, if he or she is legally represented.

For these reasons, I would dismiss the challenge by reference to s. 20. The construction of s. 20 advanced by the Respondent and adopted by the District Judge is a noncontroversial application of Cretu, which represents good law.

I would emphasise that the 2003 Act and the 2002 Framework Decision are there to provide a speedy and effective framework in which to extradite a requested person, reflecting increasing international cooperation in the fight against crime. It is not for the English courts to go behind the relevant statement in a European arrest warrant with a view to assessing the facts independently for the purpose of the exercise to be carried out under s. 20. It may be that evidence of the chronology and/or background relating to the requested person’s dealings with the authorities is relevant to Article 8 considerations (such as the question of fugitive status). However, that does not mean that the courts should be side-tracked for the purposes of s. 20.

It is convenient to address at the outset the Appellant’s challenge to the District Judge’s finding that the Appellant’s belief that the criminal proceedings against him in Italy for the EAW 1 offences were at an end (or at least suspended) was not reasonable. The result informs the analysis of the issues raised by reference to Articles 5 and 6, and Article 8.

This court will be slow to interfere with what was an evaluative finding made by the District Judge after having seen and heard all the evidence, including from the Appellant.

The Appellant was aware of the criminal proceedings in relation to the EAW 1 offences, which were serious alleged offences. He had nominated Avv. Cassina as his lawyer of domicile. He had also mandated a lawyer (Avv. Crosilla) to represent him in those proceedings. He attended court with her on 30 April 2013 and, at her request, secured an adjourned hearing date of 11 June 2013. He was under an obligation to keep in touch with his lawyer (to whom he had ready access).

No-one had informed him that his deportation between 30 April and 11 June 2013 meant that the criminal proceedings were at an end. That was merely his assumption. The deportation order was made very obviously for reasons unconnected with any criminal proceedings (and also indicated that there was at least a mechanism for return

Against this background, the District Judge was fully entitled to find that the

Comparison with the facts of other cases is unlikely to assist. However, it is to be noted that the facts of Purcell were very different. There the requested person’s extradition was sought by the Belgian authorities. The Divisional Court held (at [16]) that his subsequent extradition to the United Kingdom constituted “a very strong indication that the prosecution [in Belgium] would not be pursued”. However, the requested person had been extradited from Germany to Belgium for the very purpose of prosecution (on trafficking charges) there. He does not appear to have been represented by any Belgian lawyer at the time, or to have appointed any equivalent of an Italian lawyer of domicile. Nor had any future hearing date in the Belgian criminal proceedings, to the appellant’s knowledge, been set at the time of deportation. Penta was a case addressing the question of non-return by a requested person who had been convicted and sentenced before deportation.

I turn then to the Appellant’s challenge based on Articles 5 (right to liberty and security) and 6 (right to a fair trial). The test is whether or not there is a risk of the Appellant suffering a “flagrant denial of justice”, namely having to serve a custodial sentence following a conviction after a “flagrantly unfair trial” (see Soering v United Kingdom [1989] 11 E.H.R.R 439 at [113]; Othman at [233] and Mohammed Elashmawy v Court of Bresica, Italy [2015] EWHC 28 (Admin) at [38]). So the threshold is not mere contravention of Article 6. What is required is a breach of Article 6 “so fundamental as to amount to a nullification, or destruction of the very essence, of the right guaranteed by that Article” (see Othman at [260] and Kapri (AP) v the Lord Advocate representing the Government of the Republic of Albania (Scotland) [2013] UKSC 48 at [32] per Lord Hope).

The District Judge correctly identified the law, commenting that the hurdle is a “high” one to cross. His application of the law to the specific facts of this case cannot be impugned (Footnote: ⁴).

The District Judge recognised at the outset of his analysis that the reason for the

As for Article 8, the general principles in relation to the application of Article 8 in the context of extradition proceedings are set out in two decisions of the Supreme Court: Norris v Government of the United States of America (No. 2) [2010] UKSC 9 and HH v Deputy Prosecutor of the Italian Republic, Genoa [2012] UKSC 25. In deciding whether a person’s extradition would be compatible with his/her Article 8 rights, the question is always whether the interference with the private and family lives of the extraditee and other members of his family is outweighed by the very high public interest in extradition. The question is whether the consequence of interference with the Article 8 rights would be “exceptionally severe” so as to outweigh the importance of extradition. There is no test of exceptionality; however, given the constant and weighty public interest in extradition, cases where it is held that extradition would involve a disproportionate interference with Article 8 rights are likely to be exceptional on their facts. Self-evidently those convicted of crimes should serve their sentences and the United Kingdom should honour its international obligations and not become a safe haven. The weight of the public interest will vary according to the nature and seriousness of the crime involved. In cases in which the rights of a child are involved, the best interests of the child must be a primary consideration, even though they may be outweighed by countervailing factors. The nature of the "balancing exercise" that needs to be carried out was explored further in Celinski: the court should list the factors for and against extradition and then set out its conclusion as the result of balancing those factors with reasoning.

Again, the District Judge here correctly identified the law. He carefully set out factors for and against extradition as follows:

He then concluded that the balance lay “firmly” in favour of extradition. The impact of extradition would be heavy but this was because of the very serious nature of the offences and the sentence to be served. It should not be forgotten that the Appellant was convicted in Italy of multiple offences of robbery involving significant violence.

It is not for this court to second-guess or carry out the balancing exercise afresh (in the absence of any material error of fact or approach in principle). There is no proper basis on which to interfere with the District Judge’s conclusion, one which he was entitled to reach having faithfully carried out the necessary balancing exercise. In reality, without at least a successful challenge to the District Judge’s finding as to the (un)reasonableness of the Appellant’s belief that the criminal proceedings in Italy were at an end, neither challenge by reference to Article 5/6 or Article 8 stands any real prospect of success.

For all these reasons, the District Judge ought not to have decided a question before him at the extradition hearing differently. I would dismiss the appeal.

I agree.