Doci v Court of Brescia
| Jurisdiction | England & Wales |
| Judge | Lord Justice Beatson |
| Judgment Date | 12 August 2016 |
| Neutral Citation | [2016] EWHC 2100 (Admin) |
| Docket Number | Case No: CO/1867/2016; CO/1793/2016 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 12 August 2016 |
[2016] EWHC 2100 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Beatson
Mr Justice Ouseley
Case No: CO/1867/2016; CO/1793/2016
James Lewis QC and Rebecca Hill (instructed by Lewis Nedas Law) for the Appellant Doci
James Lewis QC and Graeme Hall (instructed by SMW Solicitors) for the Appellant Motiu
Julian Knowles QC and Hannah Hinton (instructed by CPS Extradition Unit) for the Italian Judicial Authorities
Hearing date: 5 July 2016
Further submissions: 5 August 2016
Approved Judgment
I. Introduction
This is the judgment of the court, to which both its members have contributed, but which has been drafted principally by Ouseley J.
There are before the court two appeals against decisions of District Judges sitting in the Westminster Magistrates' Court on 16 March and 4 April 2016 ordering the appellants' extradition to Italy pursuant to accusation European Arrest Warrants ("EAWs"). The appellant in the first case is Altin Doci, now aged 35, formerly a citizen of Albania but now a British citizen. The appellant in the second case is Alexandru Sergiu Motiu, now aged 27 and a citizen of Romania.
The principal issue before this court concerns section 12A of the Extradition Act 2003 ("the 2003 Act"), as amended by the Anti-Social Behaviour, Crime and Policing Act 2014. Section 12A provides that a person's extradition to a category 1 territory is barred by reason of absence of prosecution decision if (a) it appears that there are reasonable grounds for believing that the competent authorities in the territory have not made a decision to charge or to try that person and the person's absence from that territory is not the sole reason for that failure, and (b) those representing the territory do not then prove that the authorities in the territory have made a decision to charge and a decision to try or, where one of those decisions has not been made, the person's absence from the territory is the sole reason for the failure to make such a decision.
In the case of Mr Doci, the issue is whether a decision has been made to charge and try him by the competent Italian authority and, if not, whether the sole reason for that is his absence from Italy. In his case, there is also an issue as to the applicability of the "rule against double jeopardy" bar to extradition in section 12 of the 2003 Act, and a related abuse of process argument. In the case of Mr Motiu, the issue is whether there are reasonable grounds for believing that the competent authorities in Italy have not made a decision to charge or try him.
It was known at the hearing of these appeals that the construction and application of section 12A of the 2003 Act had been considered by the Divisional Court in Puceviciene v Lithuanian JA, Conrath v German JA and Savov v Czech JA. We stated that we would invite the parties to provide submissions on its implications for these appeals. Judgment was handed down in that case on 22 July 2016: see [2016] EWHC 1862 (Admin). We summarise the main points of general relevance and the further submissions at [26] –[28] below, and deal with the implications of that decision for these appeals in our conclusions in sections III and IV.
II. Mr Doci
(i) The EAW and the further information:
Mr Doci is the subject of an EAW dated 22 September 2015 issued by Carlo Bianchetti, the Giudice per le Indagini Preliminari or Judge for Preliminary Investigations (hereafter "the GIP") attached to the Court of Brescia. The EAW was certified by the NCA on 25 September 2015. It replaced an earlier EAW issued on 14 – 15 April 2015 which was discharged under section 41 of the 2003 Act on 24 September 2015. The EAW seeks Mr Doci's extradition on the basis of an order dated 14 August 2014 for precautionary measures by way of custody, or "implementing precautionary measures in prison" in the language of the EAW, issued under Article 274 of the Italian Code of Civil Procedure by a JPI attached to the Court of Brescia.
Mr Doci's return is sought in relation to two alternative counts charging him with unlawful drug dealing. Count 1 is stated in box E to be an offence of participation in a criminal association aimed at perpetrating an indefinite series of offences of illicit possession of drugs between August 2011 and February 2012. Count 13 is said to be an offence of illicit possession of large quantities of cocaine, committed on 5 and 6 December 2011. Box (e), relating to both counts, also states that there is "serious circumstantial evidence" against Mr Doci that he participated in importing a quantity of drugs from Spain to Italy and that, from August 2011 until 6 December 2011 at least, he participated in a criminal association aimed at transnational drug trafficking, his role being to collect money from customers to pay the cocaine supplier. It is stated that on his arrest he was found in possession of a "war sub-machine gun" and €219,545. It is stated that the fact that the money was used to pay for the drugs appeared from the content of intercepted telephone conversations.
In Mr Doci's case, further information was served on four occasions, respectively dated 16 July, 22 September and 27 November 2015, and 8 February 2016. The further information dated 27 November 2015 is a document from the Director General of the Italian Ministry of Justice providing information on Italian legislation covering precautionary measures and immediate trial. The District Judge referred to this as a "generic document". We start with that, before moving to the more particular.
The November 2015 document from the Director General of the Ministry of Justice describes two different ways in which criminal cases can proceed in the Italian system. At the hearing before the District Judge, these were described as the "ordinary procedure" and the "immediate procedure". In the case of the former, a person under investigation is served with a notice at the end of the investigations stating that the preliminary investigation phase has been concluded; the prosecutor files a committal to trial; the person is then entitled to present his case at a preliminary hearing before a preliminary hearing judge, the Guidice per l'Udienza Preliminare, hereafter the "GIP". The preliminary hearing results either in a committal for trial, which only requires the investigatory material to show that the accusation is "sustainable" at trial, or a in judgment of nolli prosequi.
Where however a measure such as a custodial precautionary measure has been issued, as in Mr Doci's case, as a rule the "immediate procedure" applies, although there can be exceptions. A person in this position is to be tried more quickly because he is in custody before he has been tried. Although the purpose of the detention is to prevent the person absconding, interfering with witnesses or committing other offences, such an order can only be issued where there are "serious elements of guilt". The generic document stated that, over time, "serious elements of guilt" had come to mean that an in-depth analysis of the evidence showed that a person is "likely to be found guilty," or "highly likely" to be found guilty. The remand in custody, by the order for precautionary measures, includes an accusation, a summary description of the acts and the offence they constitute, all of which satisfies the requirements of a formal charge, and the charge includes the description of the offence given in the precautionary measure. The judge, the GIP, must also check before issuing the precautionary custodial measure that there are no defences. Under the immediate procedure, the criminal case proceeds to trial without service of a notice that the investigation has concluded and without a preliminary hearing.
The reason for the difference is that, where a person is subject to a custodial precautionary measure, there is no point in a GIP considering whether the accusation is merely "sustainable" at trial. This is because the measure would not be applied in the first place unless the GIP had been satisfied at that stage that the defendant was "highly likely" to be convicted. The fact that the evidence has been assessed as weightier and more significant also means that the trial can begin and conclude more quickly. The immediate procedure can only be applied to a person subject to a preventive order of remand into custody when the person is actually in custody in Italy, and he must be interviewed, though not at a preliminary hearing. Accordingly, the procedure cannot be used in the absence of the person. Within 180 days of arrest after extradition, the prosecutor must ask the judge who made the order for precautionary custody to examine the charges and evidence and to commit the person to trial without a preliminary hearing.
The July and September 2015 pieces of further information were both served in relation to the earlier EAW to which we have referred. The document, from the Public Prosecutor, states that "The Judicial Authority having jurisdiction made a request to the GIP for the application of personal preventive measures to" Mr Doci. The Judicial Authority which makes that request is the public prosecutor; this was not at issue. Later, it states: "At present the case is in the preliminary investigation phase and soon will be closed either with a request for committal to trial or with a request for immediate trial". A person under investigation becomes a defendant when a request for trial is submitted; but "the elements which will lead to such...
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