Office of the Prosecutor General of Turin v Franco Barone

Hearing dates: 20 th October, 2010

Lord Justice Moses:

The Office of the Prosecutor General of Turin, Italy, appeals against a decision of District Judge Purdy dated 17 June 2010. The Italian judicial authority had sought the extradition of Mr Franco Barone pursuant to Part I of the Extradition Act 2003. The European arrest warrant was issued on 31 July 2008, and certified on 20 January 2010, for the purpose of executing a 21-year term of imprisonment for three offences of aggravated murder, attempted robbery and illegal possession and carrying of firearms committed on 18 May 1976. The District Judge, in a clear and admirably succinct judgment, concluded that extradition proceedings constituted an abuse of process of the court. He further concluded that s.14 of the 2003 Act barred Mr Barone's extradition on the grounds that by reason of the passage of time since he became unlawfully at large, it would be oppressive to order his extradition.

It is necessary to set out the unusual course of events which has led to these proceedings. On 18 May 1976, a gang of four criminals broke into the house of Leonardo Ferreri in order to rob him. Leonardo Ferreri was shot dead. The murder was committed at 2.30 a.m. The respondent, Mr Barone, who was 20 at that time, was immediately suspected and arrested shortly after. Investigation established he had two injuries. He was absent from his workplace at a building yard the day before the murder. During the morning of the following day, 18 May, his hand was treated for a light injury by a nurse at work, but he had not injured himself there that day.

A fellow member of the gang, Nazzareno Manco, accused him of participation. He denied it and gave an alibi. But his alibi witness withdrew his evidence when he learned, from the newspapers, of the nature of the crime.

On 22 August 1976, Mr Barone escaped from prison, assuming the identity of another prisoner.

On 18 March 1981 he was convicted, in absentia but represented by counsel, by the Court of Assize of Turin. This judgment was confirmed on appeal on 17 May 1982 and subsequently by the Court of Cassation on 12 October 1983. His original sentence was 28 years’ imprisonment with 3 years’ supervised release. That has been reduced to a sentence of 21 years’ imprisonment with supervised release for 3 years.

Since his arrival in England in 1976 Mr Barone has worked hard, married and had children. But, as his statements make clear, he has appreciated that if he returned to Italy or went to any other country he could be re-arrested (see page 4 of his statement). Central to this appeal is the decision of the Divisional Court on Mr Barone's application for a writ of habeas corpus R v The Governor of HM Prison Brixton ex-parte Barone [1997] EWHC Admin 988. On 7 November 1997, the Divisional Court concluded that it would not be in the interests of justice to return Mr Barone. The House of Lords subsequently refused an application for permission to appeal, advanced on behalf of the Governor acting for the Italian Republic.

The reasoning of the court is vital to resolution of this appeal. The statutory system for extradition at that time was contained in Part II of the Extradition Act 1989. By s.6(2):—

“The person who is alleged to be unlawfully at large after conviction of an extradition crime shall not be returned to a foreign State, or committed or kept in custody for the purposes of return to a foreign State, if it appears to an appropriate authority –

a) that the conviction was obtained in his absence; and

b) that it would not be in the interests of justice to return him on the ground of that conviction.”

The court had access to the judgments of the Italian courts, statements made by the Deputy State Prosecutor General, Gianfranco Burdino, and an analysis of the evidence relied on in the Italian courts by Mr Barone's solicitor. The court took the view that, in order to determine where the interests of justice lay, it was necessary to examine the evidence. The only direct witness was a co-accused, Nazzareno Manco. The Divisional Court heard expert evidence from a Consultant Psychiatrist of great standing and experience, Dr Riccio, who deduced from psychiatric reports obtained in 1976 that Manco was highly suggestible and suffering from a psychopathic personality disorder. He feigned physical symptoms, was callous and showed no remorse. His psychopathic personality disorder rendered him easily prone to anti-social behaviour, with a tendency to manipulate events to his own advantage (paragraph 24 of the judgment).

The Divisional Court considered the injuries which Mr Barone appeared to have suffered. It concluded that there had been a failure to analyse blood found on the glass at the scene of the murder in order to test whether it was Mr Barone's blood. Furthermore, no one had conducted a firearms residue test despite the allegation that Mr Barone pulled the trigger (see paragraphs 25-28).

The Divisional Court concluded that the circumstantial evidence on its own was insufficient (see paragraph 23). It was also disturbed by the comments of the Italian Court of Appeal as to the inferences to be drawn from Mr Barone's false alibi and the Italian Court of Appeal's reference to “objective traces of gunshot” on Mr Barone's body of which there had never been any evidence (see paragraphs 31-33).

The Divisional Court then considered the evidence from Professor Iorio as to the procedure adopted in Mr Barone's trial. He was tried under an Italian Code of 1930. The prosecution was able, under that Code, to rely on statements made by the co-accused Manco to the police, to an investigating judge, and to other witnesses in the absence of Mr Barone. Mr Barone had no possibility, either by himself or through his lawyer, of properly challenging that evidence. Manco, the accomplice, did not have to be called to give evidence and if he was called could not be directly cross-examined. The most the defence could do would be to ask the trial judge to put certain questions.

Moreover, if Mr Barone had given evidence himself under the 1930 Code his evidence would not have been regarded as of equal standing with other evidence available to the court. Professor Iorio explained that trials can no longer be conducted under the old Code. Under a new Penal Code the accomplice Manco would have to testify and would be exposed to cross-examination. His evidence to others would be excluded as hearsay. Moreover, as an accomplice, his evidence would now be treated with great care by the Italian courts, which would look for corroboration. The Divisional Court commented that Manco's “vital” evidence was presented in a way which would not be regarded as acceptable in Italy nowadays. It was not properly challenged and never could have been properly challenged even if Mr Barone had not fled the country.

The Divisional Court concluded that it would not be in the interests of justice to extradite Mr Barone for two linked reasons. First, that in the light of the evidence and procedure the conviction needed to be reviewed. Second, there was no possibility of such a review. Kennedy LJ said:—

“34. So, as it seems to me, for all the reasons I have identified, if justice is to be done, this conviction needs to be reviewed, but Professor Iorio says that even today there is no scope for such a review, and that is confirmed by Dr Gianfranco Burdino, the Deputy State Prosecutor General, in his letter of 7 May 1997, which concludes: ‘once Barone is expedited he shall not be tried again. He may be entitled to request a re-opening of his case – as per Art.630, the Code of Criminal Procedure – only if he can produce new evidence which was not examined in the previous trial.’

35. There is nothing from the Government of Italy to indicate that any of the matters to which I have referred would trigger a re-opening of the case pursuant to Art.630, and unless that is what will happen if the applicant is returned, I conclude that it would not be in the interests of justice to return him.”

It is plain that, under the statutory regime in 1989, the Divisional Court felt able to analyse evidence which was not before the Italian Courts, the strength of the evidence against Mr Barone, and in that context, the inadequacy of the procedures deployed at his trial under the 1930 Criminal Code.

In 2001 Mr Barone attempted to procure an official pardon from the Republic of Italy. He was unsuccessful. In 2006 his sentence was reduced from 28 years’ imprisonment to 21 years’ imprisonment. He became a British citizen in February 2000 but, as his statement makes clear, he has never regarded himself as free from the risk of having to serve his sentence should he leave the United Kingdom.

On 1 January 2004 the United Kingdom ratified the Council Framework Decision of 2002, introducing the new extradition regime under the Extradition Act 2003. The Framework Decision was ratified by Italy on 14 May 2005. There is now more than ample authority for the proposition that the new regime was designed to replace extradition between Member States by a system of surrender between judicial authorities (see...