Daniel Lamaj v Court of Appeal of Ancona (Italy)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Johnson |
| Judgment Date | 17 June 2021 |
| Neutral Citation | [2021] EWHC 1855 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/4391/2020 |
[2021] EWHC 1855 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
THE HONOURABLE Mr Justice Johnson
CO/4391/2020
Mr M. Hall appeared on behalf of the Appellant.
Mr Hoskins (instructed by Crown Prosecution Service) appeared on behalf of the Respondent.
The appellant appeals against an order for his extradition made by District Judge Ezzat, sitting at the Westminster Magistrates' Court on 24 November 2020. His extradition is sought pursuant to a European Arrest Warrant, issued on 18 June 2018, which seeks the appellant's surrender to serve an outstanding sentence of three years, ten months and 27 days. That sentence was imposed in respect of convictions for three offences, which were described by the district judge in this way:
“Offence one: July 1999 to 28 February 2000, conspiracy to supply drugs.
Offence two: 11 August 1999, possession of drugs, 20kg of hashish.
Offence three: 27 to 28 February 2020 supplying drugs, 500g of hashish-type drug.”
The first offence is described in the European Arrest Warrant as follows:
“The person conspired with others to commit more than one offence of unlawful possession, purchase, giving transportation, import and export of large amounts of heroin, cocaine and hashish-type of drugs. The association comprised three groups acting on the national and international territory.”
The appellant was apprehended on 28 February 2000 and was remanded in custody until 30 May 2001. At that point, he was released pending trial and he notified the address at which he would reside. That was an address where he lived with his brother.
In February 2002, he moved to Albania. In doing so, he was not in breach of any obligation imposed in connection with the criminal proceedings in Italy. In November 2002, he married and the couple moved to Greece. In 2005, there is evidence that the Italian police attended the appellant's brother's property. The appellant's first child was born in February 2006 and a second child was born in February 2008.
In his proof of evidence, the appellant says that, in 2012/2013, he travelled from Greece to Italy to visit his mother, who was living in Italy but was very sick. He was not, however, allowed to enter Italy. He says that he was stopped by the police, when he disembarked from the ferry in the port of Ancona: his details were checked and he was told, “We don't want you here”.
On 27 June 2013, a hearing took place in the Court of Appeal of Ancona that resulted in the judgment which is, ultimately, the subject of the European Arrest Warrant. The appellant did not attend court, but he was represented by lawyers. An appeal against that judgment was lodged by those lawyers. That appeal was dismissed by the Supreme Court of Cassation on 23 April 2015. Further information shows that an imprisonment order was made on 24 April 2015 and 9 September 2015. Searches were made for the appellant in June 2015 and August 2016 and he was considered by the Italian authorities to be a fugitive from that date.
The appellant says in his proof of evidence that he has visited his mother in the interim, including in October 2016, December 2016 and March 2018, and on each of those occasions he was able to enter Italy without difficulty.
The appellant was arrested under the European Arrest Warrant on 26 February 2020 and the initial hearing took place on 27 February 2020. He was initially remanded in custody but was granted conditional bail from 6 March 2020. The substantive extradition hearing took place on 3 September 2020. The appellant challenged his extradition on grounds of passage of time, under s.14 of the Extradition Act 2003, and on the grounds that his extradition would be incompatible with his rights to respect for private and family life under Article 8 of the European Convention on Human Rights.
The district judge heard evidence from the appellant, from the appellant's brother and from the appellant's wife. The district judge also heard evidence from an expert witness on Italian law. So far as the appellant's wife is concerned, she gave evidence about her health. In her witness statement, she says,
“I suffer from regular migraines. I do regular acupuncture for them. I have tried many treatments but nothing much worked, but I tried another acupuncture treatment recently and it worked. When they come, they can last for three to four days. They are so bad that I vomit and they stop me from leaving the house or even getting out of bed. When I have a migraine, Daniel does everything, childcare, work, etc. I do not know how I will cope if Daniel is sent to Italy.”
A medical legal report was also put before the district judge from Mr Amin, a consultant neurosurgeon. He said that the appellant's wife's general practitioner records show that she has been diagnosed with migraine since the age of 12 and her current symptoms remain consistent with that diagnosis. He said:
“The prognosis of migraine is highly variable and unpredictable. There is no cure for it. In [her] case, I would expect her migraine to worsen in the absence of her husband who helps her with the care of their children and the house chores, as physical and mental stress are known to exacerbate the severity and frequency of the migraine attacks.”
The district judge rightly observed that the appellant is not entitled to rely on s.14 of the Act if he is a fugitive. Accordingly, the district judge first determined whether or not he was a fugitive.
The judge recognised that the appellant had been permitted to move out of Italy and that he chose to do so. Accordingly, he did not thereby commit any offence and he was not in breach of any obligation owed to the Italian authorities. The district judge did not believe the appellant's evidence that he thought that, once he was released from custody, that was an end of the matter. Although the district judge accepted that the appellant was free to leave Italy, he found that the appellant's motivation for leaving Italy was “at least in part to avoid the possibility of being returned to prison”.
In considering whether the appellant was a fugitive, the district judge expressly applied the test set out in De Zorzi v. Attorney General Appeal Court of Paris (France) [2019] EWHC 2062 (Admin) at [46]:
“[A person is a fugitive where that] person has knowingly placed himself beyond the reach of a legal process …”
The district judge found that the appellant was a fugitive. He said:
“I am satisfied that while the requested person was not restricted from leaving Italy, he chose to leave to avoid a potential return to custody. Whether the requested person engaged with his lawyers or severed all contact with them makes little difference. If he remained in contact, then he was aware of the proceedings. He chose not to engage and placed himself beyond the reach of the legal process. If he left Italy and failed to keep himself informed about the progress of proceedings, then the same can be said about placing himself beyond reach. I am satisfied that one of the two scenarios is true. Either makes him a fugitive”.
It followed that the appellant was not entitled to rely on s.14.
In respect of Article 8, the district judge set out those factors that weighed in favour of extradition and those which militated against. In respect of the former, he referred to the “constant and weighty public interest” in ensuring that those convicted of crimes serve their sentences. He recognised that the weight of that interest depends on factors that include the seriousness of the underlying offending. He considered that the offences for which the appellant was sought were serious and that they involved significant criminality. Moreover, a substantial sentence had been imposed and the remaining sentence to be served was significant. He recognised, too, the public interest in complying with the UK's obligations under the EAW system and in discouraging people from seeing the United Kingdom as a safe haven for fugitives from justice.
In relation to the factors that militated against extradition, the district judge referred to the
“considerable unexplained delay, the fact that the appellant's wife suffered from migraines and that when they strike she is unable to care for the children.”
The district judge referred to the fact that the appellant had led a life free from criminality for the last 20 years, that he has an established life with his wife and two children (and now three children) in the United Kingdom, and that his extradition would be hard for his family to cope with. He recognised that his extradition would have a significant impact on his wife and children, but said that the children — and at that point he was considering the two older children — were old enough to have the circumstances explained to them in an...
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