M v Preliminary Investigation Tribunal of Napoli, Italy
| Jurisdiction | England & Wales |
| Judge | Lord Justice Gross,Mr Justice Nicol |
| Judgment Date | 16 July 2018 |
| Neutral Citation | [2018] EWHC 1808 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/4180/2016 & CO/4196/2016 |
| Date | 16 July 2018 |
and
[2018] EWHC 1808 (Admin)
Lord Justice Gross
Mr Justice Nicol
Case No: CO/4180/2016 & CO/4196/2016
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Rebecca Hill (instructed by Lawrence and Co, solicitors) for the 1 st Appellant (M)
Graeme L. Hall (instructed by Lansbury Worthington, Solicitors) for the 2 nd Appellant (B)
Caoilfhionn Gallagher QC (instructed by Simpson Millar LLP Solicitors) for Interested Parties X and Z
Malcolm Hawkes (instructed by Steel and Shamash, solicitors) for Interested Party Y
Saoirse Townshend (instructed by CPS Extradition Unit) for the Respondent
Hearing dates: 14 th December 2017 & 25 th June 2018
These are two extradition appeals against orders by District Judge Michael Snow on 11 th August 2016 that M and B should be returned to Italy in response to two European Arrest Warrants (‘EAWs’). The District Judge held the two extradition hearings together as they were obviously linked. Likewise, the appeals to this Court were also held together.
M is the wife of B. The Interested Parties, X, Y and Z are three boys. They are the children of M and B. Z was born on 16 th February 2002. Accordingly, he was 15 in December 2017 when the first hearing of these appeals took place and 16 in June 2018. He was represented through the Official Solicitor as his Litigation Friend. X was born on 5 th April 1999. He was, therefore, 18 in December 2017 and 19 in June 2018. Y was born on 11 th May 2000 and was 17 in December 2017 and 18 in June 2018. Y was separately represented (by Steel and Shamash, solicitors at the hearing in December 2017 and, subsequently, by Malcolm Hawkes) for reasons which will be explained.
The two EAWs were issued by Judge Capuano, a Judge of the Preliminary Investigations Section of the Naples Court on 23 rd May 2013. They were both certified by the National Crime Agency on 9 th April 2015. The Appellants were arrested on 8 th December 2015 and taken before Westminster Magistrates' Court. The extradition hearing took place on 27 th June 2016 and judgment was handed down on 11 th August 2016. Appeal notices were lodged in time. Dingemans J. refused permission on the papers on 26 th October 2016. Both Appellants renewed their applications and permission to appeal was granted by Lang J. on 1 st December 2016.
Nothing about these warrants is straightforward.
An EAW may be an accusation warrant, in which case it must include the statement in the Extradition Act 2003 (‘ EA’) s.2(3) and the information in s. 2(4), or a conviction warrant, in which case it must include the statement in EA s.2(5) and the information in EA s.2(6).
The District Judge concluded that these were accusation warrants. There had been a trial in Court of Assize which had found the two Appellants guilty and sentenced M to 8 years' imprisonment and B to 7 years' imprisonment. However, the District Judge also had an email from Sally Cullen, the Liaison Magistrate in Rome, who had said that appeals had been lodged on behalf of both Appellants and that, as a matter of Italian criminal procedure, they remained accused persons until the appeals were disposed of. There is no challenge before us to that part of DJ Snow's decision.
The accusations against the Appellants can, broadly, be said to concern human trafficking of young women of African origin to Italy for prostitution.
Box E of the EAW template is where the Requesting Judicial Authority is expected to set out the offences in relation to which the Requested Person's return is sought. In these cases, Box E of each warrant was headed
‘The present warrant is issued for the following crimes: charges against the accused person…’
Box E in each case then had several lettered sub-divisions. I will refer to the sub-divisions as ‘paragraphs’.
Paragraph A listed a number of legislative provisions under which the Appellant in question was wanted and then said
‘for having in complicity together with other persons not yet identified with a number of actions in execution of a single criminal plan, carried out activities aimed at procuring and facilitating the entry into Italy, or into the territory of other states of which the persons concerned are not citizens, and do not possess the right to permanent residence there, of foreign citizens emanating from various African countries (Nigeria, South Africa, Senegal, Sierra Leone and Ghana) in violation of … Having Committed the fact for purposes of profit or in any case for the purpose of gaining an indirect benefit, by 3 or more persons in complicity together and regarding in fact the illegal entry into or illegal residence in Italian state territory, or into another State of which the person concerned is not a citizen and does not possess the right to permanent residence there, by 5 or more persons. The fact having been committed by means of using international transport services and forged, altered and otherwise illegitimately obtained documents, as well for the purpose of the recruitment of persons to become prostitutes or for the exploitation of prostitution. Moreover, the persons listed below having been exposed to danger to their lives or their personal safety, as well as being subjected to inhuman or degrading treatment in order to procure their entry or permanent residence as indicated above.’
There then followed the words ‘In particular’ with 47 sub-paragraphs numbered B1 – B47.
B1 read:
‘nr. 1, nr.2 and nr.16 for having illicitly brought in two girls, not otherwise identified, one of them small and another one called Mabel. Fact ascertained at Castel Volturno between 10. 5.2000 and 14.6.2000 (c.f. conv. Nrs 2400…)’
The meaning of ‘nr’ at the beginning of B1 and the meaning of ‘conv Nrs.’ in parenthesis at the end of B1 was not explained.
Each of the remaining subparagraphs followed a similar pattern.
After B47, this was written,
‘With the aggravating circumstances, moreover, of having acted taking advantage of the conditions foreseen in art. 416-bis of the Penal Code i.e. in order to facilitate the activity of the associations foreseen in said article and in particular the one described in count A.’
The next paragraph within Box E is identified as ‘B’. That is confusing because, as I have shown, the particulars in respect of paragraph A are labelled B1–B47. This paragraph B sets out another offence which, after citation of the relevant provisions of the Penal Code, reads,
‘for having in complicity together with other persons not as yet identified, and greater than 5 in number, with a number of actions in execution of a single criminal plan, and on several occasions, with grave threats, physical and moral violence and with intimidation, also of a magic-religious nature, recruited for the purpose of their prostitution, facilitated and induced to travel national territory or in any case intervened to facilitate their departure, for having carried out activity in organisations and associations engaged in the recruitment of persons to become prostitutes or in exploiting prostitution, and having in any case favoured and exploited the prostitution, in particular…’
41 particulars are then given. These are labelled C1 – C41. Within these are C4 which says,
‘C4 Of a girl not otherwise identified, subsequently sold to another “madame”, with the mediation of [M] and the complicity of nr 28, by those named in points 1, 2, 27 and 28. Fact ascertained at Castel Volturno between 9, 5.2000 and (unstated) (c.f. conv. Nrs…..).’
After the end of C41 there comes the following,
‘In particular they made provision to supply the supporting accommodation, established the places in which to exercise the activity, fixed the timing, made provision to accompany and retrieve the offended persons, saw to it that prostitution was carried on in the ways established, and collected the sums cashed daily.
With the aggravating circumstance, moreover, of having taking advantage of the conditions foreseen in art. 416-bis of the Penal Code, i.e. in order to facilitate the activity of the associations foreseen in said article and in particular the one described in count A.’
Paragraph C of Box E appears to be a further count. After citing legislative provisions, it continues,
‘for having in complicity together and with other persons not as yet identified, and more than 5 in number, with a number of actions in execution of a single criminal plan, and on several occasions, induced into prostitution or having in any case assisted or exploited the prostitution of persons under the age of 18 years, and for having trafficked in or otherwise made commercial use of minors under the age of 18 years in order to induce them into prostitution. With the aggravating circumstance of having committed the fact with violence or threats. With the aggravating circumstance moreover of having acted taking advantage of the conditions foreseen in art. 416-bis of the Penal Code i.e. in order to facilitate the activity of the associations foreseen in said article and in particular the one described in count A’.
Two particulars are given of count C in paragraphs labelled D1 and D2.
What appears to be a fourth count in Box E is described in paragraph E which, after citation of the legislative provisions, says,
‘for having in complicity together and with other persons not as yet identified, and more than 5 in number, with a number of actions in execution of a single criminal plan, and on several occasions, reduced to a state akin to slavery, traded in, alienated or sold or bought the following persons who were...
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