Franco Paderi v Prosecutor General Court of Appeal Caguari (Italy)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Johnson |
| Judgment Date | 02 May 2024 |
| Neutral Citation | [2024] EWHC 1003 (Admin) |
| Court | King's Bench Division (Administrative Court) |
| Docket Number | Case No: AC-2023-LON-001791 |
[2024] EWHC 1003 (Admin)
Mr Justice Johnson
Case No: AC-2023-LON-001791
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Rebecca Hill (instructed by Jettender Arora Saunders Solicitors) for the Appellant
Toby Cadman (instructed by Crown Prosecution Service Extradition Unit) for the Respondent
Hearing date: 25 April 2024
Approved Judgment
This judgment was handed down by release to The National Archives on 2 May 2024 at 10.30am.
The appellant appeals against an order for his extradition to Italy. A striking feature of the case is that the underlying offences were committed more than 30 years ago, and the sentence (as varied on appeal) was imposed 17 1/2 years ago. The appellant fled to the United Kingdom within days of that sentence becoming final. He says that the judge was wrong to order his extradition because that is a disproportionate interference with the right to respect for private and family life under article 8 of the European Convention on Human Rights (“the Convention”), having particular regard to the passage of time since he committed the offences.
The factual background
The appellant is 70 years old. The offences for which he was convicted concerned drug trafficking and firearms. They were committed when he was 34 years old:
(1) Between November 1987 and 16 March 1988 he was a member of an organised crime group that was involved in trafficking 1.7kg of heroin. He recovered payment for drugs that were received in Cagliari and sent the monies to Milan.
(2) On 16 February 1988 he possessed and supplied “drugs and psychotropic substances” in Cagliari.
(3) On 16 February 1988 in Cagliari he was in unauthorised possession of a Gamba revolver, a Smith & Weston revolver and related munition. The registration numbers had been scraped off the revolvers.
(4) On 16 February 1988 he unlawfully carried arms in Cagliari.
The appellant was arrested on 11 March 1989. He was remanded in custody until 6 December 1989, a period of 8 months and 27 days. He was then released. The matter did not reach trial for 10 years. There were hearings in 1999 which the appellant attended in person and a further hearing on 18 May 2000 which he attended by his lawyer, although he was not physically present. On 25 May 2000 there was a hearing which the appellant attended by the lawyer although, again, he was not physically present. He was sentenced to 11 years' imprisonment. He appealed. On 21 September 2005 the appeal was allowed to the extent of the sentence being reduced to 9 years' imprisonment. The appellant further appealed to the court of cassation, but his appeal was refused on 10 November 2006. Allowing for the time he had spent in custody, he had almost 8 years left to serve.
The appellant was, at this point, married with 2 sons.
Just 12 days after the dismissal of the appeal, the appellant left Italy on 22 November 2006 on a flight to London. On 4 December 2006 the court issued an arrest warrant for the appellant. The same day, the police in Italy entered “tracing orders” for him.
On 13 December 2006 the police notified the prosecutor that the execution of the appellant's sentence could not be enforced because he had left Italy on 22 November 2006 on a flight to London. He has remained in the United Kingdom since then. He has worked in his own name. He has not been convicted of any criminal offences in the United Kingdom.
In 2014 the appellant met his current partner. He has looked after his partner when she has suffered ill-health. She has a son who is now aged 39. The appellant has a good relationship with his partner's son and with the son's partner. The appellant's two grown-up sons both still live in Italy.
A European arrest warrant for the appellant was issued in November 2018.
In July 2022 the appellant filed an application for an Italian passport with the Italian Consulate in London. The arrest warrant was certified in September 2022. The appellant was arrested the same month and brought before the Westminster Magistrates' Court.
The reasons for the delays
– 2006
The National Crime Agency sought further information from the respondent about the duration of the proceedings in Italy. The respondent provided the following further information:
“ About the duration of the proceedings: The judgment against Franco Paderi for facts committed between 1987 and 1988 was prepared in the first phase under the code of 1930 (old rite); the procedural process was slowed down by the procedural objections proposed in view of the legislation relating to the rite. In the light of this, the length of the proceedings against the convicted person is explained.”
The appellant called expert evidence from an Italian lawyer, Sig Benito Capellupo. He only had access to limited documentation in the case, and he had not received anything from the lawyers who had represented the appellant. The appellant's lawyers did not see the report that Sig Capellupo produced. He accepted that without access to the original file, he was only able to speculate on what should have happened and that he was not able to say what actually did happen.
He explained that a new criminal code was implemented in Italy on 29 October 1989. That meant that the proceedings against the appellant had commenced under the old law but had then continued under the new law. The available documents did not show that there were any hearings before 1999, but he could not exclude the possibility that there had been earlier hearings. The appellant's lawyer had raised a constitutional issue as a result of the change of the criminal code. Such an issue is normally raised during trial, but it could have been raised earlier.
– 2022
The appellant left Italy on 22 November 2006. That meant it was not possible to enforce the sentence without finding the appellant and securing the extradition. Since 2006, the appellant has been living openly in the United Kingdom and working in his own name. There is no evidence of travel to Italy or him otherwise coming to the attention of the Italian authorities. The respondent provided the following information as to the steps taken to trace the appellant:
“Franco Paderi has been sought on the national territory for many years, but the searches were unsuccessful in that the person sought, as established afterwards, moved from one municipality to another and made himself untraceable until he relocated abroad. The searches in the Schengen area have always been unsuccessful until Paderi requested the issuing of the passport at the Italian Consulate in London.”
The decision of the judge
The appellant advanced different challenges to his extradition, but it is now only necessary to consider his complaint that extradition would not be compatible with the right to respect for private and family life under article 8 of the Convention. District Judge Griffiths rejected that objection, finding that extradition would be compatible with article 8 of the Convention.
The judge found that the appellant knew that he was liable to serve a sentence of imprisonment, that he had left Italy in order to avoid serving that sentence and that he was therefore a fugitive from justice.
She found that the appellant and his partner have a settled intention to remain in the United Kingdom, and that if he is extradited that would cause them emotional distress. She was satisfied that his partner would cope with the support of her adult son and his partner, as she had during the period of the appellant's incarceration during the extradition proceedings.
The judge recognised that there had been “some considerable delay” which, she said, weighed in the appellant's favour. She considered the delay in its entirety but analysed two distinct parts: the period between the offences in 1987/88 and the trial in 1999, and the delay between the point that the sentence became final in 2006 and the appellant's arrest in 2022.
In respect of the first period, she said that the evidence of Sig Capellupo was limited and that much of his evidence involved some level of speculation which she considered had little value. As against that, the respondent had said that the passage of time was due to legal challenges brought by the appellant as a result of the change in the law. Sig Capellupo had conceded that such legal challenges would have been brought but was unable to give any detail about the consequence. The judge accepted the evidence of the respondent that this accounted for the delay. She considered that from 1999 the proceedings proceeded within usual timeframes, as Sig Capeullupo had conceded. Although the 10-year delay was “fairly lengthy”, the judge found that it was at least in part due to the challenges and appeals brought by the appellant.
The judge said that the second period was unexplained, other than the respondent explaining that searches that they carried out did not ascertain the appellant's whereabouts until he applied for a passport. She could not, however, ignore the finding that the appellant was a fugitive who had left Italy in the full knowledge that he had an immediate sentence of imprisonment to serve, and deliberately put himself beyond the reach of the respondent. She said that this reduced the impact of the delay.
The judge identified the factors that weighed in favour of, and against, an order for extradition. As to the former, she made reference to the strong public interest in the United Kingdom complying with its international extradition treaty obligations, the mutual confidence and respect that should be afforded to the respondent, the strong public interest in the United Kingdom not being a...
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