Marek Lewicki v Preliminary Investigation Tribunal of Napoli, Italy
| Jurisdiction | England & Wales |
| Judge | Lady Justice Sharp,Mr Justice Sweeney |
| Judgment Date | 18 May 2018 |
| Neutral Citation | [2018] EWHC 1160 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/4077/2016 |
| Date | 18 May 2018 |
[2018] EWHC 1160 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Lady Justice Sharp
and
Mr Justice Sweeney
Case No: CO/4077/2016
Mark Summers QC and Graeme L Hall (instructed by Neumans) for the Applicant
Julian B Knowles QC and Daniel Sternberg (instructed by CPS Extradition Unit) for the Respondent
Hearing dates: 23 February 2017
Final Written Submissions: 7 & 14 November 2017
Judgment Approved
Introduction
The Applicant (who is now aged 45) applies, under the provisions of s.26 of the Extradition Act 2003, as amended (“the EA”), for leave to appeal against the decision of District Judge Zani (“the DJ”) who, in the Westminster Magistrates' Court on 9 August 2016, ordered the extradition of the Applicant to Italy (a Part 1 territory) pursuant to an accusation European Arrest Warrant (“EAW”) issued on 25 February 2010, and certified by the NCA on 23 June 2015, in relation to ten offences (one offence of criminal association in connection with tobacco smuggling, and nine substantive offences of tobacco smuggling) variously said to have been committed in the period between 2005 and 2010.
At the rolled-up hearing in this Court on 23 February 2017, the Applicant sought, and the Respondent resisted, the grant of leave to appeal and, if successful, the allowing of the appeal, on five broadly inter-related Grounds (which I have re-numbered for convenience) namely that:
(1) Notwithstanding the decision of the House of Lords in Caldarelli v Court of Naples, Italy (“ Caldarelli”) [2008] 1 W.L.R. 1724; [2008] UKHL 51 (which was said to be no longer good law in the light of article 4a of Framework Decision 2002/584/JHA, as inserted by Framework Decision 2009/299/JHA, or was otherwise wrongly decided) the EAW ought, given the Applicant's conviction in Italy on 22 October 2015 for the offence of criminal association, to have been (or be treated as having been) a conviction warrant, and therefore fell foul of s.2(2), (5) & (6) (as well as s.20) of the EA.
(2) In the alternative, if the EAW was correctly an accusation warrant, it was inadequately particularised, contrary to s.2(4)(c) of the EA and/or, because of the Applicant's acquittal of the nine substantive tobacco smuggling offences in Italy on 22 October 2015 (on limitation grounds), and by the application of Spain v Murua [2010] EWHC 2609 (Admin), as interpreted by the Supreme Court in Zakrzewski v The Regional Court in Lodz, Poland [2013] 1 W.L.R. 324, the DJ should have discharged him, and this Court was required to discharge him, in relation to those offences, the pursuit of which, and of the original time span of alleged offending (when the Italian proceedings showed it to be much shorter) amounted to an abuse of process.
(3) Surrender would be unjust and/or oppressive, contrary to s.14 of the EA.
(4) Surrender would breach Articles 5 & 6 of the ECHR, contrary to s.21A of the EA.
(5) Surrender would be an abuse of process.
A further Ground, that surrender would breach Article 8 of the ECHR, contrary to s.21A of the EA, was not pursued.
The issues in Ground 1 and (save for compliance with s.2(4)(c) of the EA) Ground 2 were not raised before the DJ. During the rolled-up hearing in this Court, the Applicant argued that there were four overall issues in the case, namely:
(1) Whether Caldarelli applied, and/or was good law.
(2) If so, whether the EAW now contained (if it ever did) an accurate description of the alleged conduct.
(3) Whether proceeding to conviction in absentia, whilst the Applicant was engaged in ongoing extradition proceedings abroad was Article 6 ECHR compliant, or otherwise abusive.
(4) If so, whether the Applicant has an unfettered right to a re-trial.
Judgment was reserved – with the parties subsequently providing, at the invitation of the Court, further submissions in writing as to the effect of the Extradition Act (Multiple Offences) Order 2003 ( SI 2003/3150) (“the Multiple Offences Order”).
Thereafter, judgment was stayed, by agreement, to await:
i) The decisions of the Court of Justice of the European Union (“the CJEU”) in Criminal Proceedings against Tupikas (“ Tupikas”) and Criminal Proceedings against Zdziaszek (“ Zdziaszek”) – as they were likely to involve analysis of the meaning and scope of article 4a of the Framework Decision, which could be significant in the resolution of Ground 1.
ii) The service of further written submissions from the parties in relation to the judgments in those cases.
On 10 August 2017, the CJEU gave judgment in both Tupikas [2017] 4 W.L.R. 188 and Zdziaszek [2017] 4 W.L.R. 189. It is a matter of considerable regret that, owing to administrative error which was not the fault of the parties, the Court did not receive the last of the consequent written submissions until mid-November 2017.
At all events, in a Further Note to the Court on behalf of the Applicant (which was re-served on 7 November 2017) it was submitted, in summary, that:
i) Given the decision of this Court in June 2017 in Alexander v Marseille District Court of First Instance, France [2018] QB 408 (Admin) (since endorsed in Kirsanov v Viru County Court, Estonia [2017] EWHC 2593 (Admin)) it was accepted that the rules concerning “ validity” under s.2 of the EA had undergone a “ sea-change” consequent upon the Supreme Court's ruling in Goluchowski v District Court in Elbag [2016] 1 W.L.R. 2665 (to which reference had been made in argument at the rolled-up hearing) and that, therefore, whether the EAW fell to be considered as an accusation warrant under s.2(4) of the EA, or as a conviction warrant under s.2(6), the necessary details could be discerned from the further information supplied by the Respondent, and that accordingly Alexander was fatal to substantial parts of Grounds 1 and 2. Nonetheless, the Court was invited to formally rule on the issue.
ii) Although the decision in Tupikas did not directly address the situation in the instant case (i.e. the period after first instance judgment but before appeal), it was nevertheless accepted that the analysis by the CJEU of article 4a of the Framework Decision broadly reflected the Caldarelli approach to s.20 of the EA, in consequence of which the Applicant could no longer maintain the broad argument advanced in support of Ground 1 that Caldarelli was no longer good law.
iii) Nevertheless, there was a significant difference between the Tupikas approach and the Caldarelli approach (with the former being more nuanced than the latter) such that, applying the more nuanced Tupikas approach, article 4a applied to the Applicant's first instance conviction, hence he was finally convicted in his absence, not accused, and therefore s.20 applied and he should be discharged.
In its written Submissions in Response (dated 14 November 2017) the Respondent argued, amongst other things, that it was doubtful whether there was a difference in approach between Caldarelli and Tupikas, but that it was not necessary for this Court to resolve that issue in this case, as Italian law provided for an appeal containing the necessary guarantees in respect of a fair trial, and the Applicant (having not elected domicile in Italy) was still in time to pursue his right of an ‘ordinary’ appeal.
Since then the Respondent has drawn attention to the decision of this Court (differently constituted) in Imre v District Court in Szolnok (Hungary) [2018] EWHC 218 (Admin). In that case there was an accusation EAW, after the issue of which the Appellant was convicted in his absence, and had appealed. It was submitted on his behalf that:
(1) Further information provided by the Hungarian Court showed that he had been convicted in his absence at first instance, and that although he had a right of appeal it would not afford him (in particular) an opportunity to test the prosecution evidence which was adduced at the trial.
(2) Applying Tupikas (above) the decision at first instance had to be regarded as the final decision determining the Appellant's guilt.
(3) In the result, the Appellant was a convicted person and therefore the EAW, read with the further information, was defective and invalid.
(4) As a convicted person, the Appellant was entitled to the protection of s.20 of the EA, including the right to a full re-trial; or, in the alternative, that it would be contrary to his rights under Article 6 of the ECHR to extradite him.
In the result, the Court confirmed or decided, amongst other things, that:
(1) When further information is provided pursuant to article 15 of the Framework decision, it is not to be regarded as “ extraneous evidence”, and the EAW and the further information must be read together.
(2) The information provided by the Hungarian Court showed that there would be a full trial in the appellate court, and therefore (also proceeding on the basis that, as a Part 1 territory, Hungary would comply with its obligation under Article 6 of the ECHR) the Court rejected the premise which formed the starting point for the Appellant's arguments as to why he should be regarded as a convicted person.
(3) Whilst it had been argued, based on Tupikas, that a requested person who has been convicted in his absence at first instance, but who has exercised a right of appeal, must be regarded as convicted unless the appeal will be a full re-hearing of his case, Tupikas was not concerned at all with whether the requested person should be regarded as convicted or merely accused. In that case there was no doubt that Tupikas was convicted – the issue was whether, for the purpose of applying the tests relevant to extradition of a convicted person, the requested court should focus on the first instance decision or...
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