Salvatore Bertino v Public Prosecutor's Office, Italy
| Jurisdiction | England & Wales |
| Judge | Mr Justice Swift |
| Judgment Date | 24 March 2022 |
| Neutral Citation | [2022] EWHC 665 (Admin) |
| Docket Number | Case No: CO/269/2021 |
| Court | Queen's Bench Division (Administrative Court) |
[2022] EWHC 665 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Swift
Case No: CO/269/2021
Graeme Hall (instructed by Lloyds PR Solicitors) for the Appellant
Stefan Hyman (instructed by CPS Extradition Unit) for the Respondent
Hearing date: 26 January 2022
Approved Judgment
A. Introduction
On 18 January 2021 Deputy Senior District Judge Ikram ordered Salvatore Bertino's extradition to Italy. The order was made on a basis of a European Arrest Warrant (“EAW”) issued on 6 February 2020 by the Italian Public Prosecutor's Office. The warrant was certified by the National Crime Agency on 26 February 2020. The warrant is a conviction warrant. On 16 April 2018 Mr Bertino had been convicted of an offence described in the warrant as an offence of child grooming. That decision became final on 31 July 2018. Mr Bertino committed that offence by sending WhatsApp messages to a 14-year-old girl asking her to perform oral sex on him. Mr Bertino was sentenced to serve 1 year in prison, suspended on condition of payment of compensation within 6 months. Mr Bertino did not pay the compensation required, with the consequence that the custodial sentence was activated by an order made on 20 January 2020.
At the extradition hearing the submission for Mr Bertino was that he should not be extradited by reason of section 20 of the Extradition Act 2003 (“the 2003 Act”). Section 20 of the 2003 Act applies to extradition pursuant to a conviction warrant. The court must decide whether the requested person was “convicted in his presence” (subsection (1)). If the person was convicted in absentia the court must then decide whether the requested person “deliberately absented himself from his trial” (subsection (3)). If the requested person did not deliberately absent himself, the court must discharge the warrant unless it decides that on surrender, the requested person “ would be entitled to a retrial or (on appeal) to a review amounting to a retrial” (subsection (5)).
At the hearing before Judge Ikram the Requesting Judicial Authority did not submit that if surrendered, Mr Bertino would be entitled to a re-trial or equivalent appeal proceeding. The only issue was whether Mr Bertino had deliberately absented himself from the proceedings in Italy. The Judge's conclusion at paragraph 11 of his judgment, was that:
“11. … I am sure that the RP demonstrated at least a “manifest lack of diligence” in moving addresses without notifying of an updated address and thus ensuring that he could not, personally, be served and notified of the date of his court hearing (but allowing service on a court appointed lawyer).”
That conclusion rested on the Judge's finding of fact that a document dated 23 July 2015 had been read to and signed by Mr Bertino at the Spadafora Carabinieri Station. That document included the following:
“The person specified above is invited to declare or elect domicile in Italy under Article 161 of the Code of Criminal Procedure, and he is warned that, as he is being investigated, he is under an obligation to notify any change of his declared or elected domicile by a statement to be rendered to the judicial authority in charge pursuant to the relevant rules of procedure. The aforementioned person is also warned that if he does not notify any change of his declared or elected domicile, if his declaration or election is insufficient or not suitable, or if he refuses to declare or elect domicile, the service of any document will be executed by delivery to the defence lawyer of choice or to a court-appointed defence lawyer.
In light of the above, the aforementioned person declared
• I hereby elect domicile for purposes of service of process in Venitco (Provence of Messina), via Paolo Sindoni No. 30, Brezza Marina, with my home address, and I will be assisted by a defence lawyer that will be appointed by the court.
• This record has been kept of the above, and after reading it out and confirming it, it has been signed by the official and Salvatore BERTINO, and a copy thereof is handed over to him in the place and on the day specified above.”
In short, Mr Bertino provided an address for service and stated that he would be represented in the proceedings by a court-appointed defence lawyer.
The judge further found that Mr Bertino left Italy on 4 November 2015 to come to the United Kingdom, and at paragraph 10 of his judgment said as follows:
“10. I find it no coincidence that the RP left his address without notifying a forwarding address and emigrated to UK within months of being released from the police station. He did so in full knowledge that the police wanted his address so they knew where court papers could be served. I find that he left the country so that he could not be located to be served with papers /future dates for his trial.”
The Notice of Appeal against the extradition order was settled on 4 February 2020. The Notice contained three grounds: that the Judge had been wrong to conclude that Mr Bertino had deliberately absented himself (Ground 1A); that Mr Bertino had told the Italian Police that he was moving to the United Kingdom and for that reason had not shown a manifest lack of diligence (Ground 1B); and that Mr Bertino had not been warned that he might be tried in absentia (Ground 1C). Following a renewed application for permission to appeal, Whipple J granted permission to appeal, but only on Ground 1C: see her Order, sealed on 8 November 2021.
Very shortly before the hearing of this appeal, by an Application Notice filed on 21 January 2022, the Requesting Judicial Authority sought permission to rely on further evidence comprising: (a) a copy of a writ of summons dated 8 June 2017 (filed 12 June 2017) which informed Mr Bertino that the hearing of the case against him would take place on 28 September 2017; and (b) a document dated 18 January 2022 from the Requesting Judicial Authority containing further information provided in response to a request sent by the CPS following Whipple J's decision to grant permission to appeal. The questions sent to the Requesting Judicial Authority were as follows:
“1. Please can you provide us with a copy of the Writ of Summons for the hearing, which was sent by the judge, and can you confirm how this was served on Mr BERTINO.
2. Can you confirm that in accordance with Article 625- ter and 629- bis of the Code of Criminal Procedure, Mr BERTINO would be entitled to a retrial if he can prove that his absence is due to his blameless lack of knowledge of the proceedings.
3. Can you also confirm that in line with Article 175 of the Code of Criminal Procedure, the time for submitting a request to lodge an out of time appeal will still start on the date of the surrender of the convicted person.”
In response, the Requesting Judicial Authority provided the writ of summons together with the following information (in a document dated 18 January 2022).
“In reply to the request of UK Judicial Authority:
(a) On 20 June 2015 Carabinieri of the Station of Bibione searched and seized computer-related material against Salvatore BERTINO, at the time an entertainer at a tourist resort.
(b) Mr Salvatore BERTINO, within the framework of these criminal proceedings, and with reference to the proceedings, that lead to the search set forth in point (a) above, at the express request of the Carabinieri of Spadafora, was invited to declare or elect domicile for future service. On 23 July 2015 he elected domicile at his located in Venetico (Messina), Via Paolo Sindoni n.30. The records of his elected domicile signed by Mr BERTINO, (of which he was given a copy), read as follows, “the aforesaid is invited to declare or elect domicile (address of service) in Italy under Article 161 of the Code of Criminal Procedure and warned that, being under investigation, he is obliged to notify any change in his declared or elected domicile by making a statement as prescribed by procedural law to the competent prosecuting Judicial Authority. The aforesaid person is also warned that should he not notify any change in his elected or declared domicile, any incapacity, insufficiency or refusal to declare his domicile, service shall be effected by delivery to defence counsel of choice or court-appointed.”
(c) On 8 June 2017 a writ of summons was issued requiring Mr BERTINO to appear on 28 September 2017 before the Court of Pordenone, but the service by post of the judicial document failed because the addressee was untraceable at the address of Via Sindoni 30, Venetico.
(d) Under Article 161, paragraph 4, of the code of criminal procedure, the writ of summons was served on the court-appointed defence counsel, Avv. Di Roma, practising in Trieste, and this was done because Mr Bertino had failed to notify any change in his address.
(e) The proceedings thus started in the absence of the defendant on 28.9.2017 and then postponed until 26.2.2018.
(f) The proceedings were carried out in absentia of the defendant.
Article 420 of the code of criminal procedure reads:
“ When a defendant, in custody or not in custody, is not present at the hearing and, even when impeded to do so, has expressly waived to take part, the court shall proceed in the defendant's absence. Without prejudice to Article 420 ter, the court shall also proceed in the absence of a defendant who during the proceedings declared or elected domicile…
Article 625 ter of the code of criminal procedure reads:
1. A convicted person or a person subject to a detention measure by final judgment, who was absent for the whole duration for his/her proceedings, may ask for the judgement to be overturned if he/she proves that his/her absence was due to a blameless lack of knowledge of the...
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