R v Governor of Pentonville Prison, ex parte Zezza

JurisdictionEngland & Wales
CourtHouse of Lords
JudgeLord Russell of Killowen,Lord Keith of Kinkel,Lord Lowry,Lord Roskill,Lord Brandon of Oakbrook
Judgment Date20 May 1982
Judgment citation (vLex)[1982] UKHL J0520-2
Date20 May 1982

[1982] UKHL J0520-2

House of Lords

Lord Russell of Killowen

Lord Keith of Kinkel

Lord Lowry

Lord Roskill

Lord Brandon of Oakbrook

In re Zezza (A.P.) (on Appeal from a Divisional Court of the Queen's Bench Division)
Lord Russell of Killowen

My Lords,

1

I have had the advantage of reading in draft the speech to be delivered by my noble and learned friend, Lord Roskill. I agree with it and with his conclusion that this appeal must be dismissed.

Lord Keith of Kinkel

My Lords,

2

I have had the benefit of reading in draft the speech to be delivered by my noble and learned friend Lord Roskill. I agree with it, and for the reasons he gives I too would dismiss the appeal.

Lord Lowry

My Lords,

3

I have had the advantage of reading in draft the speech prepared by my noble and learned friend, Lord Roskill, with which I agree. I too would dismiss the appeal.

Lord Roskill

My Lords,

4

On the 19th September 1975 the appellant Nicola Zezza was one of three men convicted by the Tribunale di Bologna in Italy of armed robbery, that robbery having taken place at a bank in Bologna on the 24th July, 1975. He was tried and convicted in his absence in accordance with the relevant Italian legal procedure for the trial of those who are absent at the time their trials take place. He was however represented at the trial as that procedure requires. The Tribunale di Bologna at the conclusion of the trial sentenced the appellant to eight years imprisonment and a fine of 600,000 lire. One of his co-accused who stood trial received a sentence of six years imprisonment and a fine of 300,000 lire. The other co-accused was acquitted "due to insufficient evidence". The appellant was also sentenced to loss of civil rights for five years. The co-accused who was convicted suffered the like further penalty. Subsequently on the 24th June 1976 the Court of Appeal in Bologna heard an appeal by the appellant and that co-accused, the appellant again being represented. The appellant's prison sentence was reduced to one of seven years and a fine of 500,000 lire. On the 24th March 1979 that court by way of amnesty remitted one year of that seven years sentence and 200,000 lire of the already reduced fine, leaving the appellant if extradited to serve a sentence of six years and pay a fine of 300,000 lire.

5

My Lords, the appellant had meanwhile come to this country, and in due course the Italian Government, the first respondent to this appeal, sought the appellant's extradition pursuant to the provisions of the Extradition Treaty between the United Kingdom and Italy which was first concluded in 1873. The Italian Government contended that the appellant was a convicted person, having been duly tried, convicted and sentenced in accordance with Articles 497 to 501 of the Italian Code of Criminal Procedure.

6

My Lords, your Lordships were provided with copies of those Articles, both in Italian and in translation in English. It is clear that those Articles provide for trials to proceed in the absence of an accused in cases where it is not proved that their absence is "due to absolute impossibility to appear by reason of a legitimate impediment." Provision is also made for the representation of an absent accused and to enable him to appeal. It is not necessary to cite the text of those Articles in full. It is to be observed that the English translation uses the Italian phrase "in contumacia", itself derived directly from the Latin, to describe the form of proceedings which are authorised by these Articles.

7

My Lords, following the arrest of the appellant as a result of these extradition proceedings he was, on the 5th March 1981, duly brought before Mr. W. Robins, one of the Metropolitan stipendiary magistrates, sitting at Bow Street Magistrates Court. The learned magistrate duly heard the evidence, including evidence called by both sides as to the relevant Italian law. He also heard the arguments advanced on either side, and on the same day at the conclusion of those arguments he ordered the appellant's committal to prison "to await the directions of the Secretary of State". That order as appears from its face was made on the ground that the appellant had been convicted and sentenced on the 19th September 1975 for the robbery committed on the 24th July 1975, the appellant having been "finally sentenced at the Court of Appeal of Bologna" on the 24th March 1979. Your Lordships were supplied with a note of the learned magistrate's reason for his decision. It should be mentioned that there was a difference of opinion as to the relevant Italian law between the experts who gave evidence before the learned magistrate and he stated that he preferred the evidence called for the first respondent where there was such a difference of opinion.

8

My Lords, the appellant, as was his right, thereafter moved the Divisional Court for a writ of habeas corpus. On the 20th October 1981 the Divisional Court (Donaldson L.J. and Forbes J.) refused the motion and also refused the appellant leave to appeal to your Lordships' House. Your Lordships' House, however, subsequently granted leave to appeal.

9

My Lords, in giving the judgment of the Divisional Court, Donaldson L.J. summarised the relevant facts which were not in dispute and for brevity I adopt that summary. By Italian law the appellant's conviction, he having been tried and sentenced "in contumacia", is valid and final. It follows that if the appellant be extradited, no further proceedings can thereafter be taken by him in Italy to secure the review of his conviction and sentence. Upon any return to that country the appellant must serve that sentence. This has been the position in Italian law since 1931 when the then new Rocco Criminal Code was introduced. Before 1931 and indeed at the time of the Anglo-Italian Extradition Treaty concluded in 1873 there was in force in Italy a form of conviction and sentence known as "in contumacia". Under this procedure the conviction and sentence could be re-opened upon the subsequent appearance of the accused and a new trial could be held. Thus the conviction and sentence "in contumacia" might be described as conditional or provisional. But since 1931 the position in Italian law is as I have just stated and as the learned magistrate and the Divisional Court held. Although an accused since 1931 is given the right to take part in the "in contumacia" trial if he appears before that trial is concluded, he has no right whatever to a review or to a fresh trial once that trial has been finished.

10

My Lords, the sole question for your Lordships to determine is whether the appellant, having been convicted and sentenced "in contumacia" pursuant to the 1931 legislation, is liable to extradition under the Extradition Act 1870 and the Anglo-ltalian Extradition Treaty 1873. In connection with the Treaty, I should mention that upon the outbreak of war between the United Kingdom and Italy in 1940 that Treaty was abrogated. But following the conclusion of the Treaty of Peace between the United Kingdom and Italy in 1947, this and other Treaties were revived by an exchange of notes dated 13th March 1948, of which your Lordships were provided with copies.

11

My Lords, the Extradition Act 1870 authorised Her Majesty by Order in Council to direct that where an arrangement was made with any...

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10 cases
  • Caldarelli v Judge for Preliminary Investigations of the Court of Naples, Italy
    • United Kingdom
    • House of Lords
    • 30 July 2008
    ...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 6 The Fugitive Offenders Act 1881, applicable in Her Ma......
  • Konecny v District Court in Brno-Venkov, Czech Republic
    • United Kingdom
    • Supreme Court
    • 27 February 2019
    ...the whole matter can be reopened as of right in the event of his subsequent surrender and appearance. (See, for example, R v Governor of Pentonville Prison, Ex p Zezza [1983] 1 AC 46, per Lord Roskill at p 55D-E.) This approach has also been reflected in the legislation itself. (See, for e......
  • Wiest v DPP
    • Australia
    • Federal Court
    • Invalid date
  • R (Guisto) v Governor of Brixton Prison
    • United Kingdom
    • House of Lords
    • 3 April 2003
    ...case all that is necessary in the magistrates' court is to prove his conviction." 15 As Lord Roskill observed in R v Governor of Pentonville Prison, ex parte Zezza [1983] 1 AC 46, 53F-G, the phrase "conviction for contumacy" is not defined in paragraph 20 of the Schedule. It ......
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