Vincenzo Surico v Public Prosecutor of the Public Prosecuting Office of Bari, Italy
| Jurisdiction | England & Wales |
| Judge | Mr Justice Julian Knowles |
| Judgment Date | 05 March 2018 |
| Neutral Citation | [2018] EWHC 401 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/3256/2017 |
| Date | 05 March 2018 |
[2018] EWHC 401 (Admin)
Mr Justice Julian Knowles
Case No: CO/3256/2017
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Catherine Brown (instructed by Hayes Law LLP) for the Appellant
Rachel Kapila (instructed by CPS) for the Respondent
Hearing dates: 7 December 2017
This is an appeal by Vincenzo Surico, the Appellant, with permission granted by myself on 18 October 2017 following an oral hearing, against the decision of District Judge McPhee dated 6 July 2017 ordering his extradition to Italy. Sir Wyn Williams, sitting as a High Court judge, had earlier refused permission on the papers. I granted permission only in respect of the Appellant's challenges under ss 14, 21 and 25 of the Extradition Act 2003 (‘ EA 2003’). The s 21 challenge relates to a claimed breach of Article 8 of the European Convention on Human Rights (‘the Convention’). I refused permission in relation to a ground of appeal to the effect that the European arrest warrant (‘EAW’) was not sufficiently particularised.
The Appellant was represented before me by Ms Catherine Brown. The Respondent was represented by Ms Rachel Kapila.
The offences specified in the EAW
The Appellant was born on 5 July 1943 in Acquaviva delle Fonte, Italy. He is therefore now aged 74. He has lived in the UK for many years. The EAW was issued on 10 October 2016. It is based on the decision of the Court of Bari, 1 st Division, dated 2 May 2007, which was upheld by the Court of Appeal of Bari on 15 October 2010, which became final on 14 December 2011. The Appellant's return is sought in order that he should serve a sentence of four years' imprisonment imposed after a trial at which (according to the EAW) he was present. According to Further Information from the Respondent, an order for the Appellant's incarceration was issued on 3 January 2012. The Further Information also states that the carabinieri were aware later in January 2012 that the Appellant was living in the UK, and that the EAW was issued as soon as the requesting judicial authority became aware of his exact address.
The offences for which the Appellant's extradition is sought are sexual offences against a minor. The particulars of conduct state that in August 2002 the Appellant was living in Hyde, Greater Manchester. A 14-year-old Italian boy, G, came to stay with him. Later, when G returned to Italy he showed signs of being psychologically disturbed. In 2004, G met the Appellant in Italy and made the allegations which led to the Appellant's arrest and eventual conviction. G said that whilst he had been in England the Appellant had forced him to watch pornography whilst masturbating, and also that the Appellant had touched him sexually and forced him to touch his penis.
The EAW Framework list is marked to designate the conduct as ‘sexual exploitation of children and child pornography’. However, as the conduct constituting the offences occurred in England, the Respondent is not able to rely upon s 65(3) of the EA 2003 to show that it amounts to extradition offences. However, it is rightly accepted on behalf of the Appellant that the conduct constitutes extradition offences by virtue of s 65(4) of the EA 2003. This is because the conduct occurred outside Italy, and in corresponding circumstances equivalent conduct would constitute an extra-territorial offence under the law of England and Wales. That is by virtue of s 7 of the Sex Offenders Act 1997, which created extra-territorial jurisdiction for the offences specified in Sch 2 of the Act, which including for the offence under s 15 of the Sexual Offences Act 1956 (indecent assault) and s 1 of the Indecency with Children Act 1960 (indecency), which are the English offences that would have been constituted by the Appellant's conduct at the time it took place.
The Appellant gave evidence before the judge that he was assaulted by G's family in Italy in 2004, and there was medical evidence before the judge from that time which corroborated his evidence.
The proceedings before the district judge
The Appellant resisted extradition before the district judge on a number of grounds.
First, he argued that the conduct was not sufficiently particularised on the EAW, as required by s 2 of the EA 2003. The judge held that because the allegations were ones of historic child sex abuse, it was often difficult to specify precisely the dates and times when the abuse occurred. But he held that the conduct was particularised sufficiently so that the Appellant was able to raise any bars to extradition. As I have said, I refused permission to appeal against that decision.
Next, the Appellant argued that it would be unjust or oppressive to extradite him by reason of the passage of time, and thus that extradition was barred by s 14 of the EA 2003. The judge held that the Appellant was not a fugitive and so was not debarred from relying upon s 14. The judge heard evidence about the Appellant's state of health from Dr Nabavi, who is a consultant psychiatrist. He told the judge that Mr Surico has a number of medical conditions including multiple myeloma and a panic disorder which would make him very vulnerable in prison. He said there would be a marked deterioration in the Appellant's mental health if he were to be extradited, and that he would be without the support of his family. He thought there would be a significant increase in the risk of a depressive disorder. The Appellant himself also gave evidence. He described having attended one hearing in Italy, and learning of his sentence when he was back in the UK and in hospital suffering from pneumonia. He described a number of other ailments including Type 2 diabetes and reduced kidney function. He also gave evidence about various lawyers becoming involved in the case in the UK and in Italy.
The judge observed that in relation to s 14 he was only concerned with events since January 2012, when the Appellant became unlawfully at large. He reviewed the Appellant's various medical conditions and pointed out that many of them began prior to January 2012. He observed that his myeloma is controlled and does not currently require treatment; he found that his diabetes is also controlled; and he found that he suffered from moderate panic disorder. Overall, the judge concluded it would not be unjust or oppressive to extradite the Appellant by reason of the passage of time.
The next substantive challenge considered by the judge was s 21, read with Article 8 of the Convention. The judge directed himself by reference to the decisions in Norris v. Government of the United States of America [2010] 2 AC 487, HH v. Deputy Prosecutor of the Italian Republic, Genoa [2013] 1 AC 338 and Polish Judicial Authorities v. Celinski [2016] 1 WLR 551. He held that the factors in favour of not extraditing the Appellant were his life in the UK and the assistance which be receives from his family; his age and infirmity and his medical conditions; and the time that has passed since the offences were committed. The judge identified the following factors as weighing in favour of extradition: the UK's extradition treaty obligations; the seriousness of the offences; the length of the sentence to be served; the public interest that those who have been convicted should serve their sentences; that he had been ordered to serve his sentence; and that he had known for some time about the likely outcome of the case.
The judge said the three issues to consider were the Appellant's age and ability to cope in prison; his health; and the time which the case had taken leading to the issue of the EAW. For the reasons that the judge then went on to explain, having regard in particular to the seriousness of the offences and the fact that his conditions were in remission or controlled (except for the panic disorder) the judge said he was satisfied that it would not be disproportionate to order extradition, and he said that he relied upon Italy as being able to provide the Appellant with the requisite health care in the event that his health deteriorated in prison.
The judge then dealt with the Appellant's arguments under s 25, by reference specifically to the risk of suicide (cf. Wolkowicz v Regional Court in Bialystock, Poland [2013] 1 WLR 2402). He held that the risk of suicide was not sufficiently high and that, as he had previously found, the Appellant's conditions were for the most part either controlled or in remission, it would not be unjust or oppressive to extradite him.
Accordingly, the judge ordered the Appellant's extradition. He gave directions that the date of extradition be arranged with the requesting judicial authority so that the Appellant's medical notes could be assembled for submission to Italy in order that he could begin to receive appropriate medical care immediately upon his return.
The parties' submissions on the appeal
As I have said, Ms Brown on behalf of the Appellant appeals against the judge's conclusions on s 14, s 21/Article 8 and s 25.
In relation to s 14 Ms Brown submits that the judge was wrong to conclude that the Italian authorities had only known of the Appellant's address in 2016. She says that they must have known where he was long before that. She also criticises the judge's reasoning and what she says was his failure to take account of the Appellant's family life under s 14 and the effect that separation from his family would have upon him.
In relation s 21/Article 8, Ms Brown accepts that the risk of suicide is not so high as to engage the very high threshold which, on the authorities, must be surmounted before a risk of suicide can give rise to a bar to extradition....
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