Joel Francisco Estevez v Court of Mantua (Italy)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Holman |
| Judgment Date | 07 July 2021 |
| Neutral Citation | [2021] EWHC 2069 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | No. CO/3589/2020 |
[2021] EWHC 2069 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Mr Justice Holman
No. CO/3589/2020
Ms L. Collins (instructed by Taylor Rose Solicitors) appeared on behalf of the appellant.
Ms S. Townshend (instructed by CPS Extradition Unit) appeared on behalf of the respondent.
(As approved by the judge)
On 30 September 2020 District Judge Ezzat, sitting in the Westminster Magistrates' Court, made an order for extradition. There were before him two conviction European arrest warrants, which he labelled as “EAW 1” and “EAW 2”. Those warrants related to separate convictions on completely different dates in relation to completely different offences committed at completely different times.
EAW1 related to a conviction in February 2014 for offences of violence and aggression towards a named victim in November 2006. The district judge declined to make an order for extradition on EAW1 and discharged the requested person. His reason for doing so was, in essence, that he was not satisfied that the requested person had been served with, or had had knowledge of, the relevant conviction proceedings in Italy, which had taken place in his absence.
There is before me today a renewed application by the respondent prosecutor for permission to appeal from that decision by the district judge in relation to EAW1. I have not yet heard any argument in relation to EAW1 and I say no more about it in the present judgment.
EAW 2 related to a conviction on 10 December 2011 at a hearing at which the requested person had indeed been present. The district judge made an order for extradition on EAW2 to serve an outstanding sentence of 5 months and 10 days imprisonment. I consider, first, the appellant's appeal from that order for extradition on EAW2.
The sole and whole description of the offence to which EAW2 relates is described in paragraph 2 in the EAW which, in translation, is now at page 137 of the present bundles. It reads as follows:
“The sentenced person in that while he was in house arrest on 11 October 2011 in [stated address] in compliance with a decision of the Supervising Court of Bologna of 14 September 2010, filed and served on the person concerned on 15 September 2010, left the place of detention … on 10 October 2011.”
In that quotation I emphasise the words “house arrest” upon which this appeal turns.
A few lines further down, under the heading “Nature and legal classification of the offence” is the word “escape”. On the next page of the translation is a heading “Full description of offence not covered by section 1 above”, and under that, the sole word “escape”.
In another document dated 29 April 2020 from the Public Prosecutor's Office at the Court in Mantua, now at bundle page 150, to which I will make further reference in a moment, there is reference to “conviction for the offence of breakout”. The choice of the words “escape” and “breakout” may be simply the words selected by the particular translator into the English language, and so far as I am concerned, nothing turns on any difference, if any, between the word “escape” and the word “breakout”.
Fundamental to the law of extradition is the rule of dual criminality. This requires that before a person is extradited, whether on a conviction or on an accusation warrant, the extraditing court must be satisfied that the conduct and/or acts or omissions alleged and relied upon would amount also to a criminal offence in this country. In short, this country does not extradite people in relation to conduct which may be regarded as criminal conduct in the requesting state if it is not also regarded as criminal conduct here. Statutory effect is given to that principle by section 65(3)(b) of the Extradition Act 2003. This makes it a condition of extradition that —
“…the conduct would constitute an offence under the law of the relevant part of the United Kingdom if it occurred in that part of the United Kingdom.”
When considering that subsection and the issue of dual criminality, it is extremely important to appreciate that the focus is, as that subsection says, upon “the conduct”. It does not matter what precise label is attached by the requesting state to the conduct or offence in question. What matters is whether the conduct itself, which is described and relied upon, would constitute an offence here.
Before the district judge, Ms Louisa Collins, who represented the requested person then, as now, strongly submitted that such facts and information as had been given in EAW2 did not, and do not, amount to any recognisable offence under the law of England and Wales. In answer to that submission and argument Ms Saoirse Townshend, who appeared on behalf of the prosecutor then, as now, submitted that there is an analogous offence under English law, namely the common law offence of escaping without the use of force from lawful custody. This offence is described in the current edition of Archbold at paragraph 28–166.
In his most careful judgment District Judge Ezzat referred to this issue as to dual criminality. He said at paragraph 25 of his judgment that:
“The RP asserts that the offence as described is more akin to the breach of the community order rather than escape from lawful custody. The former not being an extradition offence; the latter being one.”
He continued at paragraph 26:
“The JA argue that the offence contained in EAW2 is an extradition offence and that its equivalent in the UK would be the common law offence of escape.”
The district judge then cited at some length from paragraph 28–166 of Archbold, and concluded, at paragraph 28 of his judgment, that the requested person was in custody for the purposes of the common law offence. He stated:
“The RP was under house arrest. His immediate freedom of movement was under the control of another, albeit he was not physically restrained. He was therefore in custody.”
He concluded at paragraph 29:
“I am satisfied that being placed under house arrest is a form of custody. The RP's unauthorised departure from it, therefore, constitutes an escape from custody. Escape is an offence in this jurisdiction and therefore I find that the offence in EAW2 is an extradition offence.”
The requested person now appeals to this court from that finding and conclusion. Permission to appeal was granted by Stacey J on 20 April 2021. She said, at paragraph 6 of her reasons and observations:
“… I consider that ground one, which challenges the judge's findings at paragraphs 27 to 29 of his judgment on dual criminality, is reasonably arguable. [The requested person] was convicted of breach of house arrest for which the analogue offence in England and Wales was considered to be the common law offence of escape from custody. It is reasonably arguable that the conditions of house arrest did not constitute custody and that he was not ‘under the direct control of another’. A more obvious comparison might be breach of a curfew requirement imposed either as a bail condition or community order, neither of which was discussed in the judgment, or whether it would amount to an extradition offence. Permission is therefore granted to appeal on this ground alone.”
Today, Ms Townshend, on behalf of the respondent prosecutor, has accepted or agreed with me that, when considering the issue of dual criminality and whether or not an offence is “an extradition offence” for the purposes of section 65 of the Act and the condition in section 65(3)(b) of the Act, the court must be sure that the facts alleged and relied upon by the requesting state would indeed constitute an offence under the law of England and Wales. In a situation where the parameters of an offence may not be precisely defined, it is not enough that the facts alleged and relied upon may constitute an offence. The court must be satisfied that they do constitute an offence. Herein lies the difficulty in the present case. As I have said, the only analogue offence relied upon under the law of England and Wales is a common law offence. There is no statutory definition of the offence, whose boundaries would thus be clearly defined by the statute. It is only possible to determine the boundaries of the common law offence of “escape from custody” by reference to a collection of decided authorities, a number of which I will refer to, in Archbold at paragraph 28–166.
The principal current authority appears from that passage in Archbold to be R v Dhillon [2005] EWCA Crim. 2996, in which the Court of Appeal Criminal Division gave judgment on 23 November 2005. It is not, in fact, possible to extract a precise ratio from the judgment in that case, because it is very clear from the latter part of the judgment, beginning at paragraph 22 through to the end of paragraph 29, that the essential basis upon which the Court of Appeal...
To continue reading
Request your trial