R (Battistini) v Court of Naples Italy
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE MAURICE KAY,MR JUSTICE LLOYD JONES |
| Judgment Date | 16 December 2009 |
| Neutral Citation | [2009] EWHC 3536 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 16 December 2009 |
| Docket Number | CO/10060/2009 |
[2009] EWHC 3536 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Before: Lord Justice Maurice Kay
Mr Justice Lloyd Jones
CO/10060/2009
Julian Atlee (instructed by Atlee Chung & Company) appeared on behalf of the Appellant
Melanie Cumberland (instructed by Crown Prosecution Service) appeared on behalf of the Respondent
(Approved by the court)
: This case comes before us as an appeal under section 26 of the Extradition Act 2003. The appellant is an Italian national. His surrender is sought by the Court of Naples pursuant to a European Arrest Warrant issued on 22nd October 2008 for the purpose of his standing trial for offences of tobacco smuggling, handling stolen goods, counterfeiting bank notes and forging identity documents. The offences are alleged to have been committed in 2001.
On 3rd September 2009 District Judge Zani ordered the appellant's extradition. Before the District Judge the appellant mounted two challenges: first, that extradition would be unjust or oppressive by reason of the passage of time in accordance with section 14 of the 2003 Act; secondly, that the European Arrest Warrant was invalid under Italian law because the alleged offences preceded the Council Framework Decision of 13th June 2002 on the European Arrest Warrant and its incorporation into Italian law. The District Judge decided both issues against the appellant.
In this court the first challenge was maintained. The second has been abandoned in its original form, but is replaced by a differently-formulated abuse of process argument.
Passage of time
Section 14 provides that:
“A person's extradition to a category 1 territory is barred by reason of the passage of time if (and only if) it appears that it would be unjust or oppressive to extradite him by reason of the passage of time since he is alleged to have committed the extradition offence…”
The classical analysis of “unjust or oppressive” is that of Lord Diplock in Kakis v Government of the Republic of Cyprus [1978] 1 WLR 779 where he stated:
“‘Unjust’ I regard as directed primarily to the risk of prejudice to the accused in the conduct of the trial itself, ‘oppressive’ as directed to hardship to the accused resulting from changes in his circumstances that have occurred during the period to be taken into consideration; but there is room for overlapping, and between them they would cover all cases where to return him would not be fair.”
It is now well established that the potential injustice or unfairness of any trial in a European Arrest Warrant case has to be considered in its European context.
In Gomes and Gooodyer v Government of the Republic of Trinidad and Tobago [2009] UKHL 21; [2009] 1 WLR 1038, Lord Brown, having observed that the essential issue is whether a fair trial is possible (see paragraph 33), said at paragraphs 35 and 36:
“35… Council of Europe countries in our view present no problem. All are subject to Article 6 of the Convention and should readily be assumed capable of protecting an accused against an unjust trial—whether by an abuse of process jurisdiction like ours or in some other way…
36… The extradition process, it must be remembered, is only available for returning suspects to friendly foreign states with whom this country has entered into multi-lateral or bilateral treaty obligations involving mutually agreed and reciprocal commitments. The arrangements are founded on mutual trust and respect. There is a strong public interest in respecting such treaty obligations. As has repeatedly been stated, international co-operation in this field is ever more important to bring to justice those accused of serious cross-border crimes and to ensure that fugitives cannot find safe havens abroad…”
In the present case the District Judge, when addressing the issue of whether it was unjust or oppressive by reason of the passage of time to return the appellant, observed that as far as injustice was concerned, the appellant had given scant details of how and/or why it would be unjust. He said:
“No specific details have been provided either in his proof of evidence or in the live evidence that he gave to this court…”
Moreover, the main body of evidence against the appellant consists of intercepted covert telephone calls and such evidence, and the appellant's ability to challenge it, will not have been significantly diminished by the passage of time.
There had been a vague reference to injustice resulting...
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