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Spinnato, Re v Governor of HM Prison Brixton & Anor [2001] EWHC Admin 1124 (20th December, 2001)

		Neutral Citation Number: [2001] EWHC Admin 1124
		Case No: CO/4103/2001

IN THE HIGH COURT OF JUSTICE
DIVISIONAL COURT

Royal Courts of Justice
Strand, London, WC2A 2LL

20th December 2001

B e f o r e :

LORD JUSTICE KENNEDY
and
MRS JUSTICE HALLETT
____________________

In the matter of Giuseppe Spinnato

- v -

The Governor of HM Prison Brixton
and
The Government of Italy

____________________

(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)

____________________

Mr John Lyons (instructed for the applicant)
____________________

HTML VERSION OF JUDGMENT
(AS APPROVED BY THE COURT)
____________________

Lord Justice Kennedy:

Introduction

This is an application for Habeas Corpus brought pursuant to sections 6(2) and 11(3)(b) of the Extradition Act 1989, with some reliance being placed upon Articles 6 and 8 of the European Convention on Human Rights. The applicant is an Italian citizen who in January 1991 in Palermo in his absence was convicted of conspiracy to rob and aggravated unlawful carrying of arms, and was sentenced to a term of imprisonment of three years and 8 months. He was also fined two million lira. By the time that he was convicted he was resident in England, and relatively recently a formal request was made for his extradition so that he could serve the sentence imposed ten years ago. In June 2000 he surrendered to the Metropolitan Police, and in October 2000 he was committed by District Judge Evans to await the decision of the Secretary of State. Since then solicitors acting on his behalf have been exploring the question of what knowledge he can be shown to have had of the proceedings which resulted in his conviction. When the matter came before this court earlier this year it was adjourned so that further enquiries could be made, and on Tuesday 11^th December we were asked by Mr Lyons for the applicant to adjourn the matter once again so as to enable further enquiries to be made, but in our judgment the time has now come for a decision to be taken on the information at present available. Accordingly we indicated that we would refuse the application for an adjournment but proceed upon the basis that the results of further enquiries would have been as favourable to the applicant as the report of his expert Dr Twibell indicates that they might be. What that means in practice will become more apparent when I come to deal with the report of Dr Twibell later in this judgment.

Factual Background

The applicant was born in Sicily on 19^th January 1965 so he is now 36 years of age. In March 1990 he was serving a sentence of imprisonment but was released each day to work at a welding factory at Carini. On 23^rd March 1990 there was an armed robbery at a tobacco shop in the centre of Carini. The Italian prosecutor contends that this applicant was one of four men who were involved, the others being his brother in law Leonardo Randazzi, Giuseppe Rossi and Giovanni Mannino. Apparently a motor cycle and a car were used to which the applicant could be connected, but the applicant contends that he knew nothing of the offence and was on his way back to prison when it occurred. He was arrested next day just outside of the prison, and his day release was stopped. About a month later he was seen by an investigating magistrate in prison and made his position plain. According to the Italian authorities on 8^th November 1990 the applicant was banned from meeting certain people, and on 10^th November 1990 he was personally served with trial papers and a notification of the trial date, signing a document to indicate that he had received that documentation. The applicant contends that he did not receive the documentation, and his signature upon the receipt is in issue.

On 25^th December 1990 the applicant was released having served his sentence, and on 5^th January 1991 he left Sicily. In his affidavit of 8^th June 2001 he accepts that he was aware at that time that the matter would go to court, but he was never advised of any court date. The Italian authorities contend that not only was he served with documents on 10^th November 1990, but on 4^th January 1991, the day before he left Sicily, he signed an application for an abbreviated trial, which was lodged by his counsel on 11^th January 1991. The applicant does not admit that he saw or signed that document.

From Sicily the applicant flew to England. He says that he travelled in his own name using his own passport. He joined a friend in Slough and got work in a nursery. He registered with a general practitioner, the Inland Revenue, and with the National Insurance authorities, and he remained at the same address and in the same employment for about 2 years.

Meanwhile in Sicily on 18^th January 1991 the First Division of the Civil and Criminal Court of Palermo considered the case against the applicant and his three co-accused under the new 1989 Italian Criminal Code. Randazzi admitted that he had committed the robbery with Rossi. He said that on the day of the offence all four men were in the applicant’s car in the central square in Carini when Rossi and he plotted to commit the offence. The other two merely listened. He and Rossi reached the tobacco shop on the motor cycle which the applicant had lent to him to go to work. Mannino said that all four met twice in the morning in the square of Carini when they talked about how to commit the robbery, and once more shortly before the robbery was committed, but he confirmed that neither he nor the applicant had actually taken part in the robbery. Rossi, having corroborated the statements of his co-accused, said that on that evening all of them met in the square in order to commit the robbery. When they met again after the offence had been committed he did not see Mannino or the applicant, who had moved away from the square. All four were convicted and the applicant was sentenced as set out at the beginning of this judgment. He had been represented by Mr Seminara, who also represented his brother in law. The applicant claims to have given no instructions to Mr Seminara to act as his counsel, and to know nothing about him acting on his behalf. Nevertheless on 5^th February 1991 Mr Seminara applied for the return of the applicant’s car, having also at some stage applied for the revocation of the ban imposed on 8^th November 1990, and on 18^th March 1991 he lodged a notice of appeal. It is contended on behalf of the Italian authorities that the applicant signed the notice of appeal. The applicant denies that he did so, and contends that the notice of appeal was prepared in two parts. On 4^th November 1991 the appeal was dismissed. On 19^th December 1991 a petition was lodged to the Court of Cassation and on 1^st April 1992 that petition was ruled inadmissible. On 9^th February 1993 the State prosecutor issued an order to enforce sentence.

The applicant does not contend that he was unaware of his conviction. He clearly remained in touch with his family, and in paragraph 24 to 25 of his affidavit he says –

“I was not told when the first Court hearing was going to be. However since I have left the country I was aware that proceedings had taken place and I was aware that I had been convicted and sentenced in my absence.

The police went to my ex-wife’s house the day I had been sentenced to tell her what the outcome was.”

In 1993 he moved to Harlow. He was joined by his son and later by his brother and sister. In 1996 he met Katy Lines, a woman with two children, and they bought a house on mortgage. In August 1997 she gave birth to his daughter. Because the child had cerebral fits Katy could not return to work and the house had to be sold. The appellant now lives with her and her child at another address in Harlow. His son is 16 and has recently left school. He claims to be close to Katy’s other two children, and says that she would find it very difficult to manage without him.

It seems that initially from 1991 onwards the Italian authorities knew nothing as to the whereabouts of the applicant, but there is no evidence as to what if any steps they took to try to locate him. On 9^th August 1996 the Palermo Public Prosecutor learnt of his probable presence on English territory when his wife filed a complaint. Six months later on 20^th February 1997 that prosecutor’s office expressed itself in favour of extending the search for him to an international level, and sent to the office of the Prosecutor General the documentation required for extradition purposes. By then Mr Seminara had died, and any file he may have had relating to the applicant has by now been destroyed. It is not clear to me when the Italian authorities made their first approach to the Secretary of State. There is with the papers a certificate from the Italian Ministry of Justice dated 13^th August 1997, and another dated 12^th August 1999. It may be that after the initial approach further enquiries had to be made before the Secretary of State could authorise the magistrate to proceed, which he did on 4^th May 2000. The applicant was then contacted by the police, and on 26^th June 2000 he attended with his solicitor at Charing Cross police station where he was arrested and charged. In a file note the solicitor who attended with him recorded the police officer as saying –

“Came up a couple of years ago. Knew of whereabouts from previous enquiries before that – not instituted proceedings then.”

On 19^th November 2001, nearly a year after the committal by the District Judge, a forensic scientist Dr Twibell, instructed by solicitors for the applicant, examined the questioned signatures on photograph copies of the documents dated 10^th November 1990 and 4^th January 1991, and the notice of appeal dated 18^th March 1991. The expert concluded that the signatures on the last two copy documents are similar and may have been made by a single writer, but the signature on the 1990 document is different, and all three signatures differ from the control signatures with which she had been provided. Dr Twibell also found that the text of the notice of appeal appeared to have been created in two parts, judging by the font style and the alignment of the two sections. Her conclusions were qualified because she only had access to photograph copies, and before us a further adjournment was sought to see if the Italian authorities could be persuaded to release the original documents for examination in England or in Italy. However the Italian authorities are not at present prepared to say more than that the original documents may be examined by an Italian lawyer and expert instructed by the applicant once he is back in Italy. That creates the problem which we resolved by refusing the application for a further adjournment, and indicating that we would proceed upon the basis that a further examination would only serve to substantiate the findings of Dr Twibell. In other words we proceed upon the basis that it cannot be shown that the applicant signed any of the three documents the copies of which she examined, and upon the basis that the notice of appeal was for some reason created in two parts.

Return after conviction when absent: Section 6(2)

Section 6(2) of the Extradition Act 1989, so far as material, provides that –

“A person who is alleged to be unlawfully at large after conviction of an extradition crime shall not be returned 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.”

In ex parte Barone 7^th November 1977 unreported, we considered in this court the history of that provision, beginning with an inter-departmental working paper in May 1982. At that time the position in English law was said to be that “a person may not be arraigned in his absence but that, after arraignment, trial on indictment may proceed in the absence of the defendant where his absence is voluntary ...” and the report continued –

“It is arguably wrong in principle to surrender a fugitive upon no other grounds than a finding a guilt reached in his absence, in circumstances in which the trial would not have been allowed to proceed in England.”

The report was sanguine about the position where on return a fugitive could seek to have his conviction reviewed, and suggested that otherwise it might not be in the interests of justice to surrender him “for example if he had been denied adequate rights of defence at his trial.” That is plainly in accordance with Article 6(3) of the European Convention on Human Rights which, so far as material, reads –

“Everyone charged with a criminal offence has the following minimum rights :

(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him.”

But it is noteworthy that there is no automatic contravention of Article 6 if a trial proceeds in the absence of an accused. Normally the notion of a fair hearing in a criminal case includes the right of an accused to be present at and to take part in an oral hearing. But a trial in his absence cannot be regarded as unfair if he has been given a proper opportunity to be there (Colloza and Rubinat v Italy [1985] 7 EHRR 516).

In the present case the conviction was undoubtedly obtained in the absence of the applicant, so the requirement of section 6(2)(a) of the 1989 Act is satisfied, and the only question therefore is whether it can be said that it would not be in the interests of justice to return him. I would not so find for three main reasons –

(1) in my judgment it is clear that when the applicant left Sicily he knew that a criminal trial was imminent, and having been seen by the investigating magistrate he knew what the charges were going to be. Having regard to the time scale the probability is that he had received the relevant documentation, and information as to the date of trial, whether or not he personally signed the receipt of 10^th November 1990. Similarly, whether or not he actually signed the application for an abbreviated trial on 4^th January 1991 it seems to me overwhelming likely that he agreed to that application being made on his behalf. So, as it seems to me, the applicant simply chose to leave Sicily a matter of days before his trial in full knowledge of what was about to take place.

(2) At the trial he was legally represented by a lawyer who was clearly active on his behalf, and as to whose competence no complaint is made. The evidence against him was, it seems, confined to the evidence of accomplices, but he chose not to be present to contest that evidence.

(3) He was aware of his conviction, and could if he chose to have returned to Sicily and taken an active part in his appeal. He chose not to do so, whoever signed the notice of appeal.

In no sense could it be said in this case that he was denied adequate rights of defence at his trial. Whether he has any realistic prospect of having his conviction reviewed if returned to Italy I do not know, and I make no assumption, but in the light of the decision in R v Hayward and others [2001] 3 WLR 125 it seems clear to me that had the trial taken place in England the Court of Appeal Criminal Division would not now interfere. Whatever may have been the position in 1982 that authority does suggest that a defendant does not now have to be arraigned before he can be tried in his absence. At paragraph 22 of the judgement in that case at page 135 H Rose LJ said –

“In our judgment, in the light of the submissions which we have heard and the English and European authorities to which we have been referred, the principles which should guide the English courts in relation to the trial of a defendant in his absence are these,

(1) a defendant has, in general, a right to be present at his trial and a right to be legally represented.

(2) Those rights can be waived, separately or together, wholly or in part, by the defendant himself. They may be wholly waived if, knowing or having the means of knowledge as to when and where his trial is to take place, he deliberately and voluntarily absents himself and/or withdraws instructions from those representing him.”

Time and Impression: Section 11(3)(b)

I turn now to section 11(3) which so far as material, reads as follows –

“Without prejudice to any jurisdiction of the High Court apart from this section the court shall order the applicant’s discharge if it appears to the court in relation to the offence, or each of the offences, in respect of which the applicant’s return is sought that –

(b) by reason of the passage of time since he is alleged to have committed it or to have become unlawfully at large as the case may be;

it would, having regard to all the circumstances, be unjust or oppressive to return him.”

As Mr Lyons reminded us, those words were previously in the Fugitive Offenders Act 1967 which was considered by Lord Diplock in Kakis v Republic of Cyprus [1978] 1WLR 779 and at 782h he said –

“ ‘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 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. Delay in the commencement or conduct of extradition proceedings which is brought about by the accused himself by fleeing the country, concealing his whereabouts or evading arrest cannot, in my view, be relied upon as a ground for holding it to be either unjust or oppressive to return him. Any difficulties that he may encounter in the conduct of his defence in consequence of the delay due to such causes are of his own choice and making. Save in the most exceptional circumstances it would be neither unjust nor oppressive that he should be required to accept them.”

Here there is no risk of prejudice in the conduct of the trial. The trial has already been held, so we are concerned only with oppression. We must look at the passage of time which the applicant can reasonably ask us to take into account, discounting something for the delay inevitably caused by the applicant as I would hold fleeing the country. Even when that discount is made I conclude that there is a substantial passage of time between January 1991 and May 2000 which the Italian government has made no attempt to explain. During that time, but not by reason of it, the applicant’s circumstances have changed in the ways that I have indicated. He has assumed responsibilities in this country to others who now rely upon him. But is that change of circumstances viewed in the context of the passage of time upon which he is entitled to rely, such as to render it unfair now to return him to serve a sentence imposed nearly 11 years ago in respect of a serious offence committed 11½ years ago? Although I feel some sympathy not only for the applicant but also those who depend upon him I recognise also the need for states to honour their international obligations by supporting each other in the field of criminal justice where the giving of such support has been agreed, and I ask myself whether if this applicant had left this country in 1991 shortly before being convicted and, having assumed obligations abroad he could now be brought back to serve his sentence any one would consider it unfair to require that the sentence be served. I find myself driven to answer that question in the negative, which confirms me in the conclusion that, having regard to all the circumstances, it would not be unjust or oppressive to return him. In my judgment the provisions of Article 8 of the European Convention as to respect for family life add nothing to the wording of the section, because the court is already required to have regard to all the circumstances, and accordingly I would dismiss this application.

Mrs Justice Hallett: I agree.

*******************

LORD JUSTICE KENNEDY: For the reasons set out in the draft judgment, which is now available to anyone who wishes to have a copy of it, and therefore I do not think it is necessary to read it, I will dismiss the application.

MRS JUSTICE HALLETT: I agree.

LORD JUSTICE KENNEDY: For the benefit of the press, there is a copy here if anyone wants to take a copy of it. Is there any further order that anyone seeks?

MR LYONS: No, my Lord.

LORD JUSTICE KENNEDY: Thank you for your attendance.

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