Caldarelli v Judge for Preliminary Investigations of the Court of Naples, Italy

JurisdictionEngland & Wales
CourtHouse of Lords
Judgment Date30 July 2008
Neutral Citation[2008] UKHL 51
Date30 July 2008

[2008] UKHL 51


Appellate Committee

Lord Bingham of Cornhill

Lord Hope of Craighead

Baroness Hale of Richmond

Lord Carswell

Lord Mance

Court of Naples
(Respondents) (Criminal Appeal from Her Majesty's High Court of Justice)


John Hardy QC

Mark Summers

(Instructed by Studio Legale Internazionale Lombardo)


David Perry QC

Melanie Cumberland

(Instructed by Crown Prosecution Service)


My Lords,


Mr Caldarelli challenges a decision of the Queen's Bench Divisional Court (Laws LJ and Tomlinson J: [2007] EWHC 1624 (Admin), [2008] 1 WLR 31) upholding an order that he be surrendered pursuant to a European arrest warrant issued on 6 October 2006 by the Court of Naples. He complains that the warrant is bad because it seeks his surrender as an accused person and not (as he claims to be) a convicted person. The Divisional Court has neatly expressed the point to be decided in its certified question:

"Where a fugitive has been convicted and sentenced in his absence in the requesting state, but the conviction and sentence are neither final nor enforceable, may his case be treated as an accusation case even though he does not enjoy an unqualified right to a retrial on the merits?"


The appellant is said to have been party to the unlawful smuggling of drugs into a Naples prison in which he was incarcerated at the time. On 6 October 2006 Judge Saraceno, judge for preliminary investigations of the Court of Naples, issued a European arrest warrant ("EAW") relating to that offence. It is agreed by the parties that this was an accusation warrant within the meaning of section 2(2), (3) and (4) of the Extradition Act 2003. The warrant requested that the appellant "be arrested and surrendered for the purposes of executing the Pre-Trial custody order issued against him and in order to be judged in the subsequent instances of the ongoing proceedings". This warrant was duly received and certified by the Serious Organised Crime Agency under section 2(7) and (8) of the 2003 Act and on 10 October 2006 he was arrested. Following an extradition hearing the Senior District Judge ordered the appellant's extradition under the EAW, an order which (on different grounds) the Divisional Court upheld.


In the courts below there was evidence of the facts and of Italian law and practice. The effect of this evidence is agreed:

The earlier history of extradition

  • (1) On 24 January 2003 Judge Saraceno sitting as an examining judge in Naples issued an "Order of Application and Partial Rejection of Personal and Real Coercive Measures" against the appellant and others.

  • (2) On 7 June 2005 the appellant was tried and convicted of the drug offence mentioned above before the Court of Naples, 1st Criminal Section. The appellant deliberately absented himself from the trial but was represented by lawyers appointed by him personally. The evidence was heard and tested on his behalf. He was sentenced to 11 years' imprisonment and other penalties.

  • (3) The appellant appealed against that conviction and sentence to the Court of Appeal of Naples. That appeal remains outstanding. The first instance judgment and sentence are not under Italian law either final or enforceable until the criminal appeal process is concluded.

  • (4) Under Italian law a defendant is not regarded as "convicted" until his conviction becomes final. If he is extradited, his custody in Italy will be categorised as pre-trial custody until all appeals have been exhausted.

  • (5) The appellant is not now entitled, as of right, to a retrial or to a review amounting to a retrial. Such a right would exist if fresh evidence were to come to light, but it has not been suggested that such evidence exists here. Failing that, the Italian court possesses a judicial discretion as to whether or not to grant the appellant a rehearing of the evidence.


The House was referred to two early extradition statutes, 6 & 7 Vic cap 75 and 6 & 7 Vic cap 76, both enacted in 1843. The former gave effect to a bilateral treaty with France providing for the delivery up to justice of persons "being accused" of certain grave crimes, the latter to a bilateral treaty with the United States providing for the delivery up to justice of persons "being charged" with a number of serious crimes. Thus neither Act provided for the extradition of those tried and finally convicted. This was a crucial consideration in In re Coppin (1866) LR 2 Ch App 47, where the French government sought the surrender of a man who had been tried and convicted of forgery and fraud in France in his absence. It was argued on his behalf that he could not be surrendered under the Act since he had been convicted and so was not "accused". The evidence showed that judgment had been given against him par contumace, the effect of which was, under French procedure, that on his return to France the judgment against him would be annulled and he would be put on trial for the offence. Lord Chelmsford LC held that he could only be described as an accused person and so fell within the statute.


The Extradition Act 1870 extended the reach of earlier statutes by providing, in section 10, for two classes of fugitive criminals: those "accused of an extradition crime" and those "alleged to have been convicted of an extradition crime". But the definition section, section 26, gave statutory effect to the In re Coppin decision by providing that "conviction" and "convicted" should not include or refer to a conviction which under foreign law is a conviction for contumacy and the term "accused person" should include a person so convicted for contumacy. In cases governed by the 1870 Act, whether directly or through the application of Schedule 1 to the Extradition Act 1989, the distinction between accusation and conviction cases has proved troublesome. In R v Governor of Brixton Prison, Ex p Caborn-Waterfield [1960] 2 QB 498 the Divisional Court felt compelled to hold that the applicant had been wrongly treated as an accused person when he should, having regard to the final nature of the French judgment ultimately passed upon him, have been treated as a convicted person. In R (Guisto) v Governor of Brixton Prison [2003] UKHL19, [2004] 1 AC 101 it was held that the applicant could not be extradited as a convicted person on a warrant describing him as an accused person. In other cases it was held that the applicant had properly been treated as a convicted rather than an accused person because he did not fall within the contumacy exception: see, for example, Athanassiadis v Government of Greece (Note) [1971] AC 282; R v Governor of Pentonville Prison, Ex p Zezza [1983] 1 AC 46; In re Avishalom Sarig [1993] COD 472, transcript CO/2643/92.


The Fugitive Offenders Act 1881, applicable in Her Majesty's dominions, did not reproduce the contumacy exception in section 26 of the 1870 Act, no doubt because such convictions did not occur in those dominions. Parts I to III of the 1881 Act were very largely directed to persons accused of having committed a relevant offence, but section 34 (in Part IV) extended the scope of the Act, where appropriate, to a person convicted by a court in any part of Her Majesty's dominions who was "unlawfully at large before the expiration of his sentence". This last expression was not defined but was clearly used to describe someone who was effectively at liberty but not lawfully so. The Fugitive Offenders Act 1967 repealed and replaced the 1881 Act: it maintained (in section 1) the distinction between a person accused of a relevant offence and a person alleged to be unlawfully at large after conviction of such an offence.


The Extradition Act 1989 repealed and replaced the 1967 and (subject to its preservation, in relation to some statutes, in Schedule 1) the 1870 Act. It provided, in section 1, for the arrest and return to a foreign state of a person who was accused in that state of the commission of an extradition crime or was alleged to be unlawfully at large after conviction of an extradition crime by a court in that state. Convictions in absentia, which had concerned a departmental working party (see the Green Paper on Extradition, February 1985, Cmnd 9421, Annex B, p 21, para 9), were specifically addressed in section 6(2):

"A 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."

Of the many decisions given on the 1989 Act, it is only necessary to mention In re Ismail [1999] 1 AC 320, 326-327, where Lord Steyn strongly advocated a purposive and internationalist approach to interpretation of the term "accused".


It is unnecessary for present purposes to review the European Convention on Extradition 1957 to which the United Kingdom gave belated effect in 1990. It is, however, worthy of note that by the European Convention on Extradition Order 2001 (SI 2001/962), the UK accepted Article 1 which provides:

"The Contracting Parties undertake to surrender to each other, subject to the provisions and conditions laid down in this Convention, all persons against whom the competent authorities of the requesting Party are proceeding for an offence or who are wanted by the said authorities for the carrying out of a sentence or detention order."

The Council Framework Decision of 13 June 2002


The Council Framework Decision of 13 June 2002 was a new departure. It sought to achieve much greater co-operation between member states of...

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