Parasiliti-Mollica v Court of Appeal of Reggio Calabria
| Jurisdiction | England & Wales |
| Judge | Silber J |
| Judgment Date | 28 October 2010 |
| Neutral Citation | [2010] EWHC 2722 (Admin) |
| Docket Number | CO/5937/2010,Case No: CO/5937/2010 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 28 October 2010 |
[2010] EWHC 2722 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Before: The Honourable Mr Justice Silber
Case No: CO/5937/2010
Steven Powles (instructed by Whitelock and Storr) for the Appellant
Aaron Watkins (instructed by Crown Prosecution Service) for the Respondent
Hearing date: 14 October 2010
Mr Justice Silber:
I. Introduction
On 29 May 2010, District Judge Evans sitting at the City of Westminster Magistrates Court ordered the extradition to Italy of Roberto Parasiliti-Mollica (“the appellant”), who is an Italian national pursuant to two European Arrest Warrants numbered EAW 2 and EAW 3 issued by the Office of the Prosecutor General attached to the Court of Appeal of Reggio Calabria in Italy (“the respondent”). Italy has been designated a Category 1 territory pursuant to section 1 of the Extradition Act 2003 (“the 2003 Act”) and therefore Part 1 of the 2003 Act applies.
The purpose of the extradition order, which was made pursuant to the 2003 Act, was to ensure that the appellant serves outstanding sentences of imprisonment following his convictions in Italy. The appellant appeals against the order for extradition.
There were originally five warrants issued but during the course of the extradition hearing before the District Judge, the respondent withdrew three warrants which were numbered EAW 1, EAW 4 and EAW 5. Of the remaining two warrants, which are the subject of the present proceedings, one of them EAW 2 concerns a conviction for the offence of illicit trafficking in narcotic substances for which the Court of Appeal in Messina sentenced the appellant to 2 years imprisonment. The enforceable judgment is dated 5 October 2004 and became final on 7 February 2007.
The other warrant which is the subject of the present appeal is EAW 3, which is based on an in absentia conviction of the appellant relating to two offences one of which was in complicity with others committing thefts from motor cars, typically stealing car radios during 1994 and the first half of 1995. The second conviction took place after the appellant and another person cultivated two cannabis plants in June 1995 for which he was sentenced to 3 years 6 months imprisonment with the enforceable judgment dated 15 April 2002 and becoming final on 9 October 2003.
The grounds of appeal on warrants EAW 2 and EAW 3 are that the District Judge erred by not holding that:—
i) They are each invalid as they did not satisfy the requirements of section 2 of the 2003 Act (“The section 2 issue”); and that
ii) The applications for extradition on each of those warrants should be rejected because it would be unjust or oppressive to extradite him by reason of a passage of time pursuant to the provisions of section 14 of the 2003 Act (“The section 14 issue”).
II. The Section 2 Issue
(i) Introduction
The case for the appellant is that there has not been compliance with section 2 of the 2003 Act because EAW 2 and EAW 3 both fail to state when and on what basis any court in Italy had ordered that the appellant should serve any period of imprisonment. Thus it is said by Mr Steven Powles counsel for the appellant that neither EAWs nor the additional materials supplied by the respondent explains when and on what basis the appellant was said to have become “unlawfully at large”. It was contended that the District Judge in his judgment did not identify when and on what basis the appellant became and remains unlawfully at large in relation to the offences committed in either EAW 2 or 3. Thus, it is said by Mr Powles that the requirements of section 2 of the Act have not been met.
The relevant parts of section 2 of the 2003 Act state that:—
“2. Part 1 warrant and certificate
(1) This section applies if the designated authority receives a Part 1 warrant in respect of a person.
(2) A Part 1 warrant is an arrest warrant which is issued by a judicial authority of a category 1 territory and which contains—
[…]
(b) the statement referred to in subsection (5) and the information referred to in subsection (6).
[…]
(5) The statement is one that—
(a) the person in respect of whom the Part 1 warrant is issued is alleged to be unlawfully at large after conviction of an offence specified in the warrant by a court in the category 1 territory, and
(b) the Part 1 warrant is issued with a view to his arrest and extradition to the category 1 territory for the purpose of being sentenced for the offence or of serving a sentence of imprisonment or another form of detention imposed in respect of the offence.
(6) The information is—
(a) particulars of the person's identity;
(b) particulars of the conviction;
(c) particulars of any other warrant issued in the category 1 territory
for the person's arrest in respect of the offence;
(d) particulars of the sentence which may be imposed under the law of the category 1 territory in respect of the offence, if the person has not been sentenced for the offence;
(e) particulars of the sentence which has been imposed under the law of the category 1 territory in respect of the offence, if the person has been sentenced for the offence.”
It is not in dispute that if there had been non-compliance with section 2 of the Act, the court has to declare that the relevant EAW to be void ab initio.
(ii) Has an EAW to state when and how the person subject to the extradition request has become unlawfully at large?
In order to resolve this it is necessary to bear in mind that the genesis of the 2003 Act is the “Council of Europe's Framework Decision’ of 13 June 2002 on the European Arrest Warrant and the surrender procedures between Member States” (“the Framework Decision”). The purpose of the framework is set out in its preamble and the relevant parts of it recite that:—
“(5) The objective set for the Union to become an area of freedom, security and justice leads to abolishing extradition between Member States and replacing it by a system of surrender between judicial authorities. Further, the introduction of a new simplified system of surrender of sentenced or suspected persons for the purposes of execution or prosecution of criminal sentences makes it possible to remove the complexity and potential for delay inherent in the present extradition procedures. Traditional cooperation relations which have prevailed up till now between Member States should be replaced by a system of free movement of judicial decisions in criminal matters, covering both pre-sentence and final decisions, within an area of freedom, security and justice.
(6) The European arrest warrant provided for in this Framework Decision is the first concrete measure in the field of criminal law implementing the principle of mutual recognition which the European Council referred to as the ‘cornerstone’ of judicial cooperation.”
To my mind, the underlying basis of the 2003 Act is to ensure that as between those States which are parties to the Framework Direction, there is a mutual recognition of criminal law decisions both pre and post-sentence as the basis of judicial co-operation and that the courts of the requested state should only refuse to enforce a EAW if there was a good reason not to do so having borne in mind the need to examine the documents carefully to ensure no injustice is done to the requesting state or the individual concerned. This new approach, which is founded on Member States' confidence in the integrity of each other's legal and judicial regimes, replaces the delays and technicalities which were inherent in the old system. This means that under the 2003 Act, judges sitting in the receiving country must ensure that judicial cooperation will require in so far as is legitimate that there should be a free movement of judicial decision and a suitable trust in the decisions of the requesting state with courts paying attention to the substance of applications rather than formalities. To be more specific, in this appeal, this means that provided it is ascertainable in some way from the EAW that an appellant is unlawfully at large, then the EAW would be considered to have been valid with the consequence it should be acted on by the courts of the receiving state.
This approach is the basis of the decision of the Divisional Court in R (on the application of Kuprevicius) v Vice Minister of Justice Ministry of Justice Lithuania [2006] EWHC 1518(Admin)in which the basis of the appeal was that the EAW did not contain an express allegation that the appellant was “unlawfully at large” and therefore it did not comply with section 2 (5)(a) of the 2003 Act. Having considered obiter and to some extent provisional statements by the Appellate Committee in the Office of the Kings Prosecutor, Brussels v Cando Armas [2006] 2 AC 1, Richards LJ giving the decision of the Divisional Court explained that:—
“15… The warrant does not need to state in terms, however, that the person who's extradition is requested post conviction is unlawfully at large. The requirement will be met if it can be inferred from the contents of the warrant as a whole that the person is alleged to be unlawfully at large”.
When he applied that approach to the facts in the Kuprevicius case, Richards LJ then stated that:—
“17… In my judgment, there is sufficient material in the warrant to show that no further process or order would be required upon the appellant's arrest on return to Lithuania… It seems to me clear...
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