Judgments - Caldarelli V Court of Naples (Criminal Appeal From Her Majesty's High Court of Justice)

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25.  In Migliorelli v Government of Italy (28 July 2000, unreported) the Government sought the return of a fugitive who had been tried and convicted in his absence. The issue, arising under the 1989 Act, was whether the warrant should have been issued against the fugitive as a convicted person and not, as it had, as an accused person. Morison J, with whom Judge LJ agreed, held that the warrant had been correctly issued since the trial process had not yet come to an end. As Judge LJ put it, the process in Italy was incomplete not only in relation to sentence but also conviction. This was on the evidence a correct decision.

26.  In La Torre v Her Majesty’s Advocate 2006 SCCR 503 the Appeal Court of the High Court of Justiciary had a number of issues to decide on an application for extradition of the appellant to Italy. As in the present case the appellant had been tried and convicted at a trial which he had not attended but at which he had been represented. One of the issues was whether the extradition of the appellant should have been sought as a convicted rather than (as was the case) an accused person. The question arose under section 70(4)(a) in Part 2 of the 2003 Act, applicable at the time, but the language of that subsection closely follows that of section 2(3)(a), which has not been amended. The appellant contended that he should have been treated as a convicted person. For the Lord Advocate it was submitted (para 126) that the appellant was not unlawfully at large after conviction because his sentence was not yet enforceable; that he must therefore be an accused person in terms of section 70(4)(a); that there was no category other than those two; that the categorisation had to be made as at the date of the request, even if the appellant’s status later changed; and that the appellant was not, at the date of the request, said to be unlawfully at large after conviction. The Appeal Court rejected the appellant’s argument as misconceived (para 127). The Lord Advocate’s submission was, as I respectfully think, sound.

27.  The extradition of this appellant was properly sought as an accused person. I would accordingly dismiss the appeal and invite the parties to make written submissions on costs within 14 days.

LORD HOPE OF CRAIGHEAD

My Lords,

28.  I have had the advantage of reading in draft the opinion of my noble and learned friend Lord Bingham of Cornhill. I agree with it, and for the reasons he gives I would dismiss the appeal.

BARONESS HALE OF RICHMOND

My Lords,

29.  I too would dismiss this appeal, for the reasons given by my noble and learned friends Lord Bingham of Cornhill and Lord Carswell, with which I agree. The crucial distinction drawn in article 1.1 of the Council Framework Decision (2002/584/JHA) is between an arrest warrant issued with a view to the arrest and surrender of the requested person “for the purposes of conducting a criminal prosecution” and an arrest warrant issued with a view to the arrest and surrender of the requested person “for the purposes of . . . executing a custodial sentence or detention order". A lower minimum sentence is required, under article 2.1, to bring the matter within the scope of the scheme if a sentence has been passed or a detention order has been made. It is clear from the particulars required under article 8.1 that this refers to a “final judgment".

30.  In this case, the appellant is not being sought for the purpose of executing a custodial sentence or order, because no enforceable order has yet been made. He is being sought for the purpose of a conducting a criminal prosecution. The statements in the warrant fall squarely within section 2(3)(b) of the 2003 Act and not within section 2(5)(b): he is being sought “for the purpose of being prosecuted for the offence", and not “for the purpose of . . . serving a sentence of imprisonment . . . imposed in respect of” it. It is therefore a valid Part 1 warrant. The process can continue in accordance with the procedures laid down in Part 1 of the Act. When he came before the district judge at the extradition hearing, he was not a person “alleged to be unlawfully at large after conviction of the extradition offence” for the purpose of section 11(4), because although convicted his extradition is not sought “for the purpose of … his serving a sentence of imprisonment … imposed in respect of the offence", which is now part of the definition of “unlawfully at large after conviction” by virtue of section 68A(1)(b). He was therefore covered by section 11(5), as a person “not alleged to be unlawfully at large after conviction". The judge was therefore required to proceed under section 21 and decide whether his extradition would be compatible with his Convention rights and not under section 20 which only applies to persons who are alleged to be “unlawfully at large after conviction” within the meaning of the Act.

31.  It may be thought unfortunate that distinctions were drawn and expressions used in Part 1 of the 2003 Act which owed more to the historical development of the law of extradition and fugitive offenders than to the wording of the Framework Decision. But we must assume that Parliament intended the Act to work so as to implement rather than to frustrate the intentions of the Framework Decision. In this case it is not difficult to conclude that the extradition of this appellant was properly sought as an accused person.

LORD CARSWELL

My Lords,

32.  I have had the advantage of reading in draft the opinion prepared by my noble and learned friend Lord Bingham of Cornhill. I am in full agreement with his reasons and conclusions and wish to add only a few observations of my own.

33.  The district judge is required by section 11 of the Extradition Act 2003 to address a sequence of matters. Subsection (1) sets out a number of bars to the person’s extradition and subsection (3) requires the judge to discharge him if any of them applies. Subsections (4) and (5) provide:

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

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

This sequence appears to be intended to cover all cases, with the effect that, if none of the bars in subsection (1) applies, subsections (4) and (5) are alternatives, which are comprehensive in scope. Depending on which applies to the case, the judge is to proceed under either section 20 or section 21.

34.  Section 11(4) refers to the person whose extradition is sought being “unlawfully at large after conviction of the extradition offence". It is common cause or “ground” that the appellant was not unlawfully at large, since under Italian law his conviction was suspended pending appeal and having lodged an appeal he was not required to commence the prison sentence until its disposal. In a case to which subsection (4) applies, the judge is to proceed under section 20 under which the judge must address a series of questions relating to cases where the person whose extradition is being sought has been convicted. In the event that the judge decides that the person was convicted in his presence, or that he deliberately absented himself from the trial, or that he would, if he did not deliberately absent himself, be entitled to a retrial or (on appeal) to a review amounting to a retrial, the judge must proceed under section 21, which requires consideration of the question whether the person’s extradition would be compatible with his Convention rights. Section 11(5) applies if “the person is accused of the commission of the extradition offence but is not alleged to be unlawfully at large after conviction of it". If that subsection applies, the judge is to proceed under section 21. The appellant’s case is that he is not properly to be regarded as a person accused of the offences charged, since he has been convicted by the Naples court, subject to the appeal.

35.  The appellant claims that he is a person convicted, though not unlawfully at large. He calls in aid section 68A, which was added by Schedule 13 to the Police and Justice Act 2006. Section 68A defines the meaning of “alleged to be unlawfully at large after conviction of an offence". A person comes within that definition if

“(a) he is alleged to have been convicted of it, and

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

The argument presented on behalf of the appellant was that this applies to the present case, with the result that he is deemed to be a person unlawfully at large and so is covered by the terms of section 11(4). In consequence the warrant should have been framed as a conviction warrant, not an accusation warrant, and is accordingly bad.

36.  I am unable to accept this suggestion. The appellant is plainly not a person sought for the purpose of his being sentenced for the offence, as the sentence has already been imposed. It might be argued that he is being sought for the purpose of serving the sentence of imprisonment. The difficulty with that argument, which the appellant cannot in my opinion surmount, is that the sentence is not yet in effect and may not take effect if his appeal is successful. I accordingly do not consider that the appellant comes within the definition in section 68A.

37.  If the appellant’s case is to come within section 11, it must therefore be under the heading of subsection (5), as a person “accused of the commission of the extradition offence". It is obvious that under the system of criminal justice applying in England and Wales (or Northern Ireland) it would be difficult to class him as a person accused of the offence, when the process has reached the present stage. Nevertheless, for the reasons set out in paragraphs 18 et seq of the opinion of Lord Bingham, which it would be superfluous to repeat, I am satisfied that he can properly be regarded as still being an accused person in the Italian system of justice. The warrant was rightly characterised as an accusation warrant. The district judge was correct to order as he did and the Divisional Court was right to uphold his decision.

38.  I would dismiss the appeal.

LORD MANCE

My Lords,

39.  I have had the benefit of reading in draft the speeches of my noble and learned friends, Lord Bingham of Cornhill and Lord Carswell.

40.  I must confess to having found the answer to the present issue not easy. But it is an issue on which certainty under United Kingdom domestic law is probably more important than anything else, and this is now offered by the speeches of my noble and learned friends, following on a previous line of authority established by lower courts in Migliorelli v. Government of Italy (28 July 2000) and La Torre v. Her Majesty’s Advocate 2006 SCCR 503.

41.  The difficulties which I have felt derive from the fact that both the Framework Decision of 13 June 2002 (2002/584/JHA) and the Extradition Act 2003, as amended by the Police and Justice Act 2006, identify two categories (in shorthand: accusation and conviction warrants) which, although they must be intended and construed so as to abut, are on their face described in terms which fail to cover intermediate cases such as the present, where the appellant would neither receive a full retrial or equivalent if returned to Italy nor necessarily go to prison there, because his appeal will allow him only a partial opportunity for review of the first instance conviction and sentence to 11 years imprisonment which took place during his (in this case deliberate) absence.

42.  The Italian court prepared the present arrest warrant (apparently with assistance from the local British liaison magistrate) as an accusation warrant on the basis that the case was one where the appellant was, within s.11(5) of the 2003 Act, “accused of the commission of the extradition offence but …. not alleged to be unlawfully at large after conviction of it". In so far as the dichotomy between accusation and conviction warrants is drawn by and potentially significant under the Framework Decision (as is the case for some purposes: see e.g. articles 5 and 18), the line may fall to be drawn autonomously, as a matter of European law. Framework decisions do not have direct effect, but, as my noble and learned friend Lord Bingham notes in paragraph 22, domestic law intended to give effect to them should so far as possible be construed consistently with their terms. In the last analysis, if a consistent interpretation of domestic legislation is not possible, domestic courts must of course give effect not to the Framework Decision, but to the domestic legislation. And, if and so far as the relevant dichotomy is a matter for domestic law contained in the 2003 Act, its meaning and application are matters for English law, once the facts regarding the relevant foreign jurisdiction are identified. Whether the dichotomy is drawn by reference to European or English law, the view of a court of a foreign requesting state as to the correct categorisation cannot on any view determine the matter.

43.  In the present case, a possible clue to the United Kingdom statutory distinction between accusation and conviction warrants may be obtained by considering article 5(1) of the Framework Decision, which relates in the scheme of the 2003 Act to ss.20(5) to (8) and 85(5) to (8), dealing with the subject of trials in absentia. Under article 5, a discretion on this subject is given to the domestic law of the executing state, which only applies in respect of an European arrest warrant “issued for the purposes of executing a sentence or a detention order imposed by a decision rendered in absentia“. However, recital (12) of the Framework Decision indicates that that Decision is also intended to be consistent with fundamental rights principles and with domestic constitutional rules relating to due process, which is probably sufficient to enable member states, if they choose, to introduce guarantees along the lines of ss.20(5) to (8) and 85(5) to (8) of the 2003 Act, even though these may apply to what would under European law be regarded as accusation warrants as well as to conviction warrants. Even if the Framework Decision itself is intended to encapsulate an inflexible distinction between accusation and conviction warrants, which I doubt bearing in mind the nature of such decisions, the primary focus must, it seems to me, be on the United Kingdom’s domestic statute in this situation. I would add that neither party before us suggested that the issue before us required a reference to the European Court of Justice.

44.  In deciding whether the present warrant constituted a conviction warrant within the definition in s. 68A(1)(b) of the 2003 Act, I for my part would see no great difficulty in describing the appellant’s extradition as being sought in the present case “for the purpose of his ….. serving a sentence of imprisonment". Unless his appeal succeeds, service of his sentence is what will happen, and the Italian authorities seeking extradition clearly propose to resist his appeal and ensure that it does happen. They do not need to secure the appellant’s return in order for his appeal to be resolved. He does not under Italian law have to attend his appeal, which can and would proceed without him. Looking at the alternative analysis, to say that the appellant is, under s.11(5), “accused of the commission of the extradition offence” in respect of which he has already been convicted and sentenced, although the conviction and sentence are not final and he is not liable to go to prison unless and until after his appeal is unsuccessful, also involves awkwardness, if not artificiality, of language.

45.  A more substantive consideration is that, in a case requiring a conviction warrant under s.11(4), s. 20 prescribes a sequence of guarantees entitling a person convicted in absentia without having deliberately absented himself to an automatic discharge in the event that he would not be entitled in the requesting state to a retrial or (on appeal) a review amounting to a retrial: s.20(5) and (7). And this is in addition to his further entitlement in any event to have the executing court consider whether his extradition would be compatible with the Convention rights: ss.20(2), (4) and (6) and 21. If an “accusation” warrant under s.11(5) is all that is required in the present case, there are no safeguards equivalent to s.20(5) and (7), although the appellant will have been convicted in absentia and have no right to a retrial or equivalent. He will of course have the (not inconsiderable) benefit of his basic entitlement to have the executing court consider whether his extradition is compatible with the Convention rights: ss.11(5) and 21. One might have expected the United Kingdom legislator, who decided to introduce such a safeguard as s.20(5) and (7), to intend all trials in absentia to entitle the person affected to a retrial or equivalent. If a right in the requesting state to a limited review is not sufficient in the case of a final conviction, but calls rather for immediate discharge by the executing state, why should a right to a limited review which prevents the conviction being regarded as “final” or “executable” in the requesting state not have the same effect?

46.  It is also relevant to look at the impact of the present issue in relation to an extradition request by a category 2 territory to which Part 2 of the 2003 Act applies. The equivalent protection which one might have expected in respect of trials in absentia is again lacking in this context: compare ss.84 and 85. However, there is the further point that, if a warrant is an accusation warrant under Part 2, then the requesting state has (save in the case of territories designated under s.84(7)) to go through the additional hoop of making out a sufficient case requiring an answer: see ss.79(4) and 84(1); and this, on the present respondents’ case, even though the “accused” has already been the subject of a first instance conviction and sentence, subject to appeal.

 
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