Caldarelli v Judge for Preliminary Investigations of the Court of Naples, Italy
| Jurisdiction | England & Wales |
| Judge | Lord Justice Laws,Mr Justice Tomlinson,Lord Justice Toulson,Mr Justice Forbes |
| Judgment Date | 27 January 2009 |
| Neutral Citation | [2009] EWHC 107 (Admin),[2007] EWHC 1624 (Admin) |
| Docket Number | Case No: CO/1766/2007,Case No: CO/9716/2008 CO/8965/2008 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 27 January 2009 |
[2007] EWHC 1624 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
On Appeal from the City of Westminster Magistrates Court
(Senior District Judge Workman)
Lord Justice Laws
Mr Justice Tomlinson
Case No: CO/1766/2007
Mr Summers (instructed by Studio Legale Internazionale Lombardo Solicitors ) for the Appellant
Miss Cumberland (instructed by The Crown Prosecution Service) for the Respondent
Hearing dates: 4 April 2007
Approved Judgment
INTRODUCTORY
This is an appeal brought under s.26 of the Extradition Act 2003 ("the 2003 Act") against an order made for the appellant's extradition to Italy by Senior District Judge Workman at the City of Westminster Magistrates Court on 23 February 2007. The proceedings are governed by Part 1 of the 2003 Act which makes provision for extradition arrangements under what may be called the European Arrest Warrant regime, to which both the United Kingdom and Italy are parties. Part 1 was enacted to give effect to the EU Council Framework Decision of 2002 on the European Arrest Warrant ("the Framework Decision").
Four European Arrest Warrants ("EAWs") have been issued in order to secure the appellant's extradition to Italy. Two concerned what may be called "Mafia" offences, and associated firearm offences. The other two concerned drugs offences. On 3 December 2005 Judge Saraceno at Naples issued what may be called the first drugs EAW. That EAW and the first Mafia EAW, issued by Judge Foschini at Naples, were certified by the National Criminal Intelligence Service ("NCIS") in accordance with the procedural requirements of s.2 of the 2003 Act.
On 5 September 2006 the appellant was arrested on both of these warrants in Hackney. On 6 September 2006 the "initial hearing" pursuant to Part 1 of the 2003 Act took place at the City of Westminster Magistrates Court. The appellant was remanded in custody. On 21 September 2006 written submissions were lodged on his behalf attacking the validity of both warrants. Thus it was submitted that the first drugs EAW did not give legally adequate particulars of the offence or offences in question. Accordingly on 6 October 2006 a second drugs EAW, superseding the first, was issued by Judge Saraceno. I shall have to refer to its terms in due course in light of part of the argument before us. There was also a second, superseding, Mafia EAW. Both of these superseding warrants were certified under s.2 by the Serious Organised Crime Agency ("SOCA"), which had succeeded to NCIS' functions in that regard. On 10 October 2006 the appellant was arrested on the fresh warrants.
The Italian authorities applied to withdraw the first two warrants, and in respect of those the appellant was discharged pursuant to s.41 of the 2003 Act. The extradition hearing under Part 1 of the 2003 Act commenced before Senior District Judge Workman on 28 November 2006. The district judge gave a preliminary judgment on 21 December 2006. He adjourned the matters before him for further enquiries to be made of the authorities in Naples where the warrants had been issued. Further information was received pursuant to the district judge's request on 8 February 2007, and thereafter the district judge handed down a final judgment on 23 February 2007. By that judgment he discharged the appellant in relation to the second Mafia warrant. In respect of the second drugs warrant (to which I will simply refer hereafter as "the EAW"), however, he ordered the appellant's extradition to Italy. This is the order now under appeal.
OUTLINE FACTS
The EAW refers to a "pre-trial custody order". It is common ground that this is a reference to what is called the "Order of Application and Partial Reflection of Personal Real Coercive Measures" issued on 24 January 2003 by Judge Saraceno at the First Instance Court of Naples. The order directed that the appellant and others be arrested and taken into custody, and that certain other measures be taken. It seems that the process is not unlike (but is not the same as) a remand in custody pending trial in this jurisdiction. At length there followed a trial in Naples on 7 June 2005 for the drugs offences named in the EAW. The appellant was not present, but was represented by lawyers by whom witnesses were examined and cross-examined. He was found guilty and sentenced to 11 years imprisonment with associated penalties. An appeal has been lodged on his behalf.
As I have said the appellant was arrested in Hackney on 5 September 2006 on the strength of the first two warrants, and the extradition machinery proceeded from there.
It will be necessary to explain certain procedural ramifications of the appeal process in Italy so that the arguments at the core of this appeal may be properly understood. In particular the status of the conviction and sentence of June 2005 is, as I shall show, of critical importance for the first ground of appeal. However before identifying the grounds I should set out the material provisions in the 2003 Act.
THE EXTRADITION ACT 2003
S.2 as originally enacted provided in part as follows:
"(1) This section applies if the designated authority receives a Part 1 warrant in respect of a person.
(2) A Part 1 warrant is an arrest warrant which is issued by a judicial authority of a category 1 territory and which contains —
(a) the statement referred to in subsection (3)…, or
(b) the statement referred to in subsection (5)…
(3) The statement is one that —
(a) the person in respect of whom the Part 1 warrant is issued is accused in the category 1 territory of the commission of an offence specified in the warrant, and
(b) the Part 1 warrant is issued with a view to his arrest and extradition to the category 1 territory for the purpose of being prosecuted for the offence.
…
(5) The statement is one that —
(a) the person in respect of whom the Part 1 warrant is issued is alleged to be unlawfully at large after conviction of an offence specified in the warrant by a court in the category 1 territory, and
(b) the Part 1 warrant is issued with a view to his arrest and extradition to the category 1 territory for the purpose of being sentenced for the offence or of serving a sentence of imprisonment or another form of detention imposed in respect of the offence."
By s.42 and Schedule 13 paragraph 1(1) of the Police and Justice Act 2006 ("the 2006 Act") s.2(5)(a) of the 2003 Act was amended by the substitution of the words "has been convicted" for "is alleged to be unlawfully at large after conviction". This and other relevant amendments effected by the 2006 Act came into force on 15 January 2007, and so in the absence of transitional provisions applied to this case at the time of the district judge's final judgment of 23 February 2007. The part played in the statute by the expression "unlawfully at large" is important for the purpose of Mr Summers' argument for the appellant, as I shall explain. I should also notice, as Miss Cumberland for the respondent Italian authority points out, that this expression is retained in other provisions of Part 1 of the Act: notably s.11(4) and (5) (bars to extradition). I should set out the greater part of s.11:
"(1) If the judge is required to proceed under this section he must decide whether the person's extradition to the category 1 territory is barred by reason of —
(a) the rule against double jeopardy;
(b) extraneous considerations;
(c) the passage of time;
(d) the person's age;
(e) hostage-taking considerations;
(f) speciality;
(g) the person's earlier extradition to the United Kingdom from another category 1 territory;
(h) the person's earlier extradition to the United Kingdom from a non-category 1 territory.
…
(3) If the judge decides any of the questions in subsection (1) in the affirmative he must order the person's discharge.
(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."
I should next set out s.20 and part of s.21:
"20(1) If the judge is required to proceed under this section (by virtue of section 11) he must decide whether the person was convicted in his presence.
(2) If the judge decides the question in subsection (1) in the affirmative he must proceed under section 21.
(3) If the judge decides that question in the negative he must decide whether the person deliberately absented himself from his trial.
(4) If the judge decides the question in subsection (3) in the affirmative he must proceed under section 21.
(5) If the judge decides that question in the negative he must decide whether the person would be entitled to a retrial or (on appeal) to a review amounting to a retrial.
(6) If the judge decides the question in subsection (5) in the affirmative he must proceed under section 21.
(7) If the judge decides that question in the negative he must order the person's discharge.
(8) The judge must not decide the question in subsection (5) in the affirmative unless, in any proceedings that it is alleged would constitute a retrial or a review amounting to a retrial, the person would have these rights —
(a) the right to defend himself in person or through legal assistance of his own choosing or, if he had not sufficient means to pay for legal assistance, to be given it free when the interests of justice so required;
(b) the right to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under...
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