Bertino v Public Prosecutor's Office, Italy
| Jurisdiction | England & Wales |
| Judge | Lord Stephens,Lord Burnett,Lord Hodge,Lord Sales,Lord Burrows |
| Judgment Date | 06 March 2024 |
| Neutral Citation | [2024] UKSC 9 |
| Year | 2024 |
| Court | Supreme Court |
Lord Hodge, Deputy President
Lord Sales
Lord Burrows
Lord Stephens
Lord Burnett
Appellant
Edward Fitzgerald KC
Graeme L Hall
(Instructed by Lloyds PR Solicitors Firm (Harlesden))
Respondent
Helen Malcolm KC
Stefan Hyman
(Instructed by Crown Prosecution Service Appeals and Review Unit)
Heard on 28 November 2023
Lord Stephens AND Lord Burnett ( with whom Lord Hodge, Lord Sales and Lord Burrows agree):
The central issue in this appeal is whether Deputy Senior District Judge Ikram was correct to conclude that the appellant had “deliberately absented himself from his trial” in Italy for the purposes of section 20(3) of the Extradition Act 2003 (“the 2003 Act”) and so should be extradited to serve his sentence despite not having an entitlement to a retrial. That conclusion was upheld on appeal in the High Court by Swift J [2022] EWHC 665 (Admin).
The circumstances in which a person convicted in his or her absence may be extradited pursuant to a European arrest warrant (“EAW”) are prescribed by the 2003 Act and by the Council Framework Decision of 13 June 2002 (2002/584/JHA) (“the FD 2002”) as amended by the Council Framework Decision of 26 February 2009 (2009/299/JHA) (“the FD 2009”). That Framework Decision as amended (“the Amended Framework Decision”) provides that a convicted person must be extradited in various given circumstances, notwithstanding a trial in absence. If none of those circumstances applies, a discretion to extradite remains to be exercised in the executing state in accordance with national law and the European Convention on Human Rights (“the Convention”).
The appellant's extradition is sought pursuant to an EAW issued on 6 February 2020 by the public prosecutor's office of the Court of Pordenone (“the requesting judicial authority”) seeking to enforce a sentence of one year's imprisonment imposed following a trial in the Court of Pordenone in his absence. He was convicted and sentenced on 16 April 2018, with the sentence being activated on 27 January 2020. The offence was one of sexual activity with an under-age person contrary to article 609 of the Italian Criminal Code, through grooming a 14-year-old girl by sending her WhatsApp messages asking for oral sex. The sentence provided that if compensation were paid it would be suspended. The compensation was not paid.
The offence was alleged to have taken place on 19 June 2015 in the Province of Venice at a holiday camp at which the appellant was working as an entertainer. The police were informed promptly of the allegation and attended the appellant's place of work. His phone was seized. The formal information provided by the requesting judicial authority in response to a request for further information issued by the Crown Prosecution Service confirms that the appellant was not arrested or questioned formally at the time, although it appears from the appellant's own account that he went to the local police station. The appellant was sacked from his job and returned to Sicily from where he came. He later voluntarily attended the police station in Spadafora, Sicily on 23 July 2015. He signed a document which recorded that he was under investigation. The document invited the appellant to elect domicile in Italy. The document stated that “as [the appellant] is being investigated, he is under an obligation to notify any change of his declared or elected domicile by a statement to be rendered to the judicial authority”. It also warned “that if [the appellant] does not notify any change of his declared or elected domicile … the service of any document will be executed by delivery to the defence lawyer of choice or to a court-appointed defence lawyer.” The appellant elected his domicile by giving an address in Venetico, Messina. He also indicated on the form that he “will be assisted by a defence lawyer that will be appointed by the court.” The document was read to him by the judicial police officer. Both he and the police officer signed the document of which the appellant was given a copy.
The appellant left Italy in November 2015 and came to the United Kingdom. He found work and moved from time to time. The prosecution in Italy was commenced on 8 June 2017. A writ of summons for the hearing set by the judge was issued on 12 June 2017. It summoned the appellant to appear at the Pordenone Court on 28 September 2017 and included a warning that non-attendance without “lawful impediment” would “lead to a judgment in absentia”. The appellant did not receive the summons. By that date the requesting judicial authority knew that he was no longer at the address he had provided in July 2015. In information provided by the requesting judicial authority to the High Court of England and Wales dated 16 January 2022 it confirmed that “service of the judicial document failed because the addressee was untraceable …[T]he writ of summons was served on the court-appointed defence counsel … because Mr Bertino had failed to notify any change of address.” The requesting judicial authority made various unsuccessful attempts to trace the appellant in Italy between 2016 and 2019. They eventually obtained contact details at an address in England in January 2019 and were given his mobile telephone number by his mother. These factual details are found in further information provided by the requesting judicial authority during the extradition proceedings. The appellant's unchallenged evidence before the District Judge was that he notified the authorities of his departure to the United Kingdom for family law purposes (his marriage was failing and arrangements had to be made for the children) but not the police in connection with the investigation.
EAWs follow a prescribed form found in the Amended Framework Decision. Having set out details of the requested person, the relevant judicial decision and sentence, section (d) of the EAW concerns whether the requested person appeared in person at the trial. Box 1 of this section enables the requesting judicial authority to confirm that the requested person was present at the trial. If that is not the case, Box 2 provides the opportunity to state that the trial was conducted in the absence of the requested person. The requesting judicial authority used Box 2 to state that the appellant did not appear in person at his trial. The EAW continues, “if you have ticked the box under point 2, please confirm the existence of one of the following:
“□ 3.1a. the person was summoned in person on … (day/month/year) and thereby informed of the scheduled date and place of the trial which resulted in the decision and was informed that a decision may be handed down if he or she does not appear for the trial;
OR□ 3.1b. the person was not summoned in person but by other means actually received official information of the scheduled date and place of the trial which resulted in the decision, in such a manner that it was unequivocally established that he or she was aware of the scheduled trial, and was informed that a decision may be handed down if he or she does not appear for the trial;
OR□ 3.2 being aware of the scheduled trial, the person had given a mandate to a legal counsellor, 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 counsellor at the trial;
OR□ 3.3 the person was served with the decision on … (day/month/year) and was expressly informed about the right to a retrial or appeal, in which he or she has the right to participate and which allows the merits of the case, including fresh evidence, to be re-examined, and which may lead to the original decision being reversed, and
OR□ The person expressly stated that he does not contest this decision,
OR□ The person did not request a retrial or appeal within the applicable time frame;
□ 3.4 the person was not personally served with the decision, but
— the person will be personally served with this decision without delay after the surrender, and
— when served with the decision, the person will be expressly informed of his or her right to a retrial or appeal, in which he or she has the right to participate and which allows the merits of the case, including fresh evidence, to be re-examined, and which may lead to the original decision being reversed,, and
— the person will be informed of the time frame within which he or she has to request a retrial or appeal which will be … days.
4. If you have ticked the box under points 3.1b, 3. 2 or 3.3 above, please provide information about how the relevant condition has been met:
………………………………………………………………… ……………………………
………………………………………………………………… ……………………………
………………………………………………………………… …………………………”
The various options between point 3.1a and point 3.4 reflect the alternative circumstances under the Amended Framework Decision in which a requested person must be extradited despite not having been present at the trial. Point 3.1a requires personal service of a summons and that the requested person is told that failure to attend may result in a trial in absence. Point 3.1b provides for official notification of the trial (for example by post), an unequivocal awareness of the trial and being told that failure to attend may result in a trial in absence. Point 3.2 requires a requested person to be aware of the scheduled trial and to be professionally defended. Point 3.3 assumes that the requested person does not know of the date and place of the trial but was served with the decision after trial and told of a right to a retrial or appeal on the merits; or, knowing of that right, decides not to contest the decision or fails to do so within the applicable timeframe. Point 3.4 is similar to point 3.3 but covers the...
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