England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		17 July 2002

Mr Justice Silber:

Introduction

1. The applicant, Claudio Fini applies for a writ of habeas corpus ad subjiciendum, following his committal by District Judge Pratt on 13 March 2001 under section 9(8) of the Extradition Act 1989 (“the 1989 Act”). The applicant’s extradition has been requested by the Government of Italy for conduct which, had it occurred in the United Kingdom, would have constituted the offences of conspiracy to handle stolen goods and conspiracy to use false instruments.
2. It is alleged that the applicant has committed offences in breach of Article 648 of the Italian Penal Code, by receiving stolen property and in breach of Articles 476 and of 482 of the Penal Code by falsifying official documents. The case against the applicant is that two blank identity cards were stolen in Italy in the Municipalities of Bracciano and Rome between January 2000 and March 2000. The thefts were discovered in Trento in Italy in April 2000. It is alleged that the cards were sent to the applicant in England, where they were falsified by attaching to them the photograph of a man called Piergiorgio Dalla Pellegrina and then they were sent back to Italy. The cards were ultimately used in Austria to open a bank account. It is alleged that the applicant planned and directed the operation. The applicant’s Italian lawyer, Avv. Fedrizzi, contends that the original cards have been destroyed and that only photocopies are available.
3. Apart from seeking the applicant’s arrest, the Italian Public Prosecutor also sought the arrest in Italy of among other, the applicant’s son Claudio Fini Jr (“the applicant’s son”). The court made an order for arrest of the applicant’s son.
4. The authority to proceed against the applicant was signed by the Secretary of State on 22 November 2000. At the time, the applicant was engaged in defending another extradition request made by the Government of Italy in respect of which he was later discharged by Bow Street Magistrates Court on 22 December 2000.

The Issues

5. The applicant contends that he should be discharged on the grounds that:-

(a) it would be unjust and oppressive to return him to Italy by reason of the lapse of time since the alleged offences were committed pursuant to the provisions of section 11(3)(b) of the 1989 Act (“the delay issue”) and

(b) the accusations against the applicant are not made in good faith and in the interests of justice so that it would be unjust or oppressive to return him to Italy having regard to all the circumstances pursuant to section 11(3)(c) of the 1989 Act (“the bad faith issue”).

To understand these points, it is necessary to understand the statutory scheme to which I now turn.

The statutory scheme

6. This court has an original jurisdiction to discharge the applicant under section 11(3) of the 1989 Act. The relevant provisions of section 11(3) are as follows:

“(3) Without prejudice to any jurisdiction of the High Court part from this section, the court shall order the applicant’s discharge if it appears 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;

(c) because the accusation is not made against him is not made in good faith in the interests of justice; ….

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

7. It is accepted that the burden of proof is on the applicant.

The delay issue

8. Mr. Knowles for the applicant contends that it would be unjust and oppressive to return the applicant to Italy because of the change in his circumstances since March 2000, the date of the alleged offences. This is disputed by Mr. Lewis QC for the respondent, who contends that the applicant has not made out his case.
9. In order to consider the evidence and the rival submissions I bear in mind some important principles which are common ground between the parties. First, the relevant period during which the delay has to be considered runs from the date of the alleged offence in about March 2000 to the present time, which is the date of challenge (per Lord Diplock Kakis v. Government of Cyprus [1978] 1 WLR 779, 782). The second principle is that the refusal to return the defendant had to be based on injustice or oppression caused by the passage of time as it appeared in the circumstances of the particular case to give to that particular passage of time, the quality or significance which leads to the conclusion that return of the applicant would be unjust or oppressive (per Lord Russell of Killowen ibid at 785).
10. The principal submissions of Mr. Knowles are that for two reasons it would be unjust and oppressive to return him to Italy because of the change in his circumstances which have occurred since the date of alleged offence in March 2000. Mr. Knowles’ first contention is that if the applicant were to be returned to Italy, his substantial business interests in this country would collapse so that his employees would lose their jobs and he would also lose substantial sums of money.
11. The applicant contends that since the date of these alleged offences, he has built up a successful chain of restaurants in London, consisting of Fini’s Restaurant in Soho, Fini’s Restaurant in Knightsbridge and Camia Restaurant in Islington. These restaurants between them employ 26 people. Each of these restaurants had been funded by loans from banks. If the applicant were to be returned to Italy, it is alleged by him that this would have a disastrous effect on the businesses, not only because of the loss of his active contribution in the restaurants, but also because he acts as a guarantor for the loans of these businesses. In consequence it is contended that if returned to Italy, the applicant would suffer enormous financial hardship as he would lose what he has invested in the businesses. The applicant sums up his case on this issue by alleging in his witness statement that:-

“If I am sent back to Italy, all the business interests I have will have to be abandoned. I will not be able to run them from Italy. I would not be able to realise the value I have put into the businesses and I am at risk of losing a lot of money if the loans I have outstanding are called in suddenly”.

12. Mr. Lewis contends that the applicant has not made out his contention that these matters mean that it would be unjust or oppressive to return him to Italy. I accept that submission and it is noteworthy that the applicant knew from about 21 November 2000 onwards that the Italian Government had requested his extradition and yet in spite of this, he nevertheless decided to develop and broaden his commercial interests. The Fini Restaurant in Knightsbridge was only purchased in December 2001 and the applicant has only had an interest in the Camia Restaurant in Highbury since May 2001. Furthermore, Fini Soho only opened in September 2001 and the applicant in February was in the process of buying out a previous part-owner. So the applicant took a calculated commercial risk by developing these interests when he was faced with the prospect of the pending extradition proceedings being successful; he must have calculated that it was a risk worth taking. The claimant’s position is fundamentally different from that of an applicant who had developed his commercial interests in this country before the alleged offence was committed. In the circumstances in which these investments were made, he cannot now rely on the fate of them to show that it would be unjust or oppressive for him to run the risk of losing them.
13. I add that I have until now been assuming that the allegations of the applicant are correct but in the light of a witness statement of the applicant’s former solicitor, I am by no means satisfied that this is a correct assumption. It is, however, not necessary for me to determine this in the light of my other findings.
14. The second factor relied on by Mr. Knowles is that the applicant’s eldest child, his daughter Susannah suffers from serious and worsening ill-health. She is aged 36 and she came to the United Kingdom in 1999 at the request of her father because of her poor health as she suffers from leukaemia, asthma and angina and she later had a heart attack in 2000. In 2001, she suffered a series of episodes of chest pain, which are linked to coronary artery disease. She also began to suffer fainting spells, which have led to other injuries. It is alleged that her illness has got progressively worse since 2000 when these offences were allegedly committed. The applicant says that he cheers her up when he visits her regularly.
15. Mr. Knowles contends that the applicant’s return to Italy would have a serious effect on his daughter and her family. As the applicant explains in his witness statement, he is financially responsible for his daughter and her husband, Arnaldo Comper, who does not work full-time because he is the principal carer for his wife and their daughter. The applicant pays their bills including their rent and he also provides for their day to day living expenses. He also services their loans and pays their credit card bills. Susannah Fini contends if her father were to be returned to Italy, then she and her family would have to return too as she would be unable to live here without his financial support. It is submitted that the combined effects of the applicant’s return to Italy on his daughter clearly qualify as ‘oppression’ within the meaning of section 11(3)(b).
16. It is not disputed that the court can and should take into account the effect on Susannah of the applicant being removed to Italy. Indeed in Cookson v Government of Australia [2001] EWHC Admin 149, this Court ordered the release of a man because of the very real risk of deterioration to the health of his schizophrenic son by his removal to Australia. It was held that the removal of the applicant’s father would have caused oppression to him and then through him to his father and this would be sufficient to meet the requirements of the section.
17. As I have explained, it is common ground that the onus is on the applicant to prove that in all the circumstances his return to Italy would be “unjust or oppressive” because of the delay “having regard to all the circumstances”. Those circumstances include, as Kennedy LJ explained in Re Rosser [2001] EWHCA Admin 1056, the interests of justice and the need to ensure that extradition proceedings are effective.
18. Like everybody who has heard of the state of health of Susannah Fini, I have great sympathy for her and her family, but I do not know what prejudice she would actually suffer if she had to return to Italy. I assume, in the absence of contrary evidence, that there are perfectly acceptable and competent doctors and hospitals in Italy who would ensure that she could and would receive proper treatment there. There is no evidence that the actual move back to Italy would damage her health. In any event, it would not be unjust or oppressive for her to go back to Italy, bearing in mind that the applicant is not her sole carer. She would then have a husband and other members of her family in Italy, where she would be joining her siblings. If, on the other hand, she decided to stay in this country after her father’s departure, she would have the benefit of the British social and health facilities. Thus, these considerations relating to Susannah, together with the commercial problems confronting the applicant do not enable the applicant to show that it would be “oppressive or unjust” for him to be returned to Italy.

The bad faith issue

The prosecutor’s promises

19. Mr. Knowles submits that the accusations against the applicant are not made in good faith in the interests of justice and therefore that he should be discharged under section 11(3)(c) of the 1989 Act. He points out that this exception is wide as in Re Osman, (Unreported, 25 February 1992), Woolf LJ (as he then was) considered the meaning of ‘bad faith’ in this context. He explained with my emphasis added that:-

“In my judgment the term ‘good faith’ has to be given a reasonably generous interpretation so that if the proceedings were brought for a collateral purpose, or with an improper motive and not for the purpose of achieving the proper administration of justice, they would not be regarded as complying with this statutory requirement. Likewise the accusations would not be made in good faith and in the interests of justice if the prosecution deliberately manipulates or misuses the process of the court to deprive the defendant of a protection to which he is entitled by law”.

20. In Re Murat Calis, (Unreported, 19 November 1993 (CO/2757/92)) Sedley J (as he then was) stated on an application under 11(3) of the Act that:-

“.. Where the ground established by the applicant is that the accusation against him is not made in good faith in the interests of justice, it is possible but not easy to envisage a case in which it would be just or other than oppressive – to use Lord Diplock’s portmanteau term, fair – to return him to face that accusation”.

21. The case for the applicant under this head is that the Italian prosecutors procured evidence from the applicant’s son against his father the applicant by promising to recommend that he be released if he gave evidence against his father. It is then alleged that the prosecutor thereafter went back on this promise by asking the court to remand the applicant’s son in custody. According to Avv. Fedrizzi, the applicant’s lawyer, the prosecutors hoped that the applicant’s son would implicate his father in a more serious crime. When Avv. Fedrizzi protested about the way that the applicant’s son had been treated, he says that the prosecutor stated that he had changed his mind.
22. Professor Enrico Amodio, Professor of Criminal Procedure at Milan University, has stated in a witness statement that “it is unfair to obtain … testimony against an accomplice by any … deception or inducement”. Thus Mr. Knowles contends that the prosecutor’s inducement to the applicant’s son therefore constituted breach of that principle. The thrust of the case for the applicant is that the prosecution is not being made in good faith in the interests of justice, because in the words of Woolf LJ which I have quoted, the prosecution “[has] deliberately manipulate[d] or misuse[d] the process of the court to deprive the [applicant] of the protection to which he is entitled by law”.
23. Mr. Lewis contends that the evidence does not support that submission pointing out that Avv. Fedrizzi said in his statement that after he had been retained by the applicant’s son, he met him in Trento Prison and he told his client, in his own words, that “if he wanted to be released from prison, the only option, particularly as his father was in Britain and therefore ran no immediate risk, [was] to collaborate with the prosecution admitting to the charge against him, his father and other persons under investigation”. Avv. Fedrizzi proceeded to refer to the public prosecutor in the words of his statement (with my emphasis added) “making it clear that if Mr. Fini junior admitted his own liability and confirmed the suspicions of the prosecution regarding [the applicant] he would be willing to recommend his release”. Later in the same statement, he refers to what the prosecutor had “implicitly promised”. Mr Lewis says that these comments do not support the applicant’s complaint and that, in any event, the Public Prosecutor at the Court in Trento has submitted evidence disputing the contention that any promise or inducement had been made to the applicant’s son. It is noteworthy that there is no evidence from the applicant’s son, who was the one person who would have been able to give details of any representation or inducement made of the Public Prosecutor. This is very surprising as the Public Prosecutor denied giving and inducement more than 11 weeks ago.
24. I have come to the conclusion that there is uncertainty about what was or was not said to the applicant’s son and I cannot be satisfied on the balance of probabilities that the version of the inducement to the applicant’s son is true especially in the significant absence of any evidence from his son. Thus the applicant has clearly failed to discharge the onus of showing that there had been an absence of good faith.

The absence of evidence

25. The applicant also maintains that the accusation against him is not made in good faith because the prosecutor does not have on his files the original identity cards which, it is alleged, were stolen and which were then forged by him. Avv. Fedrizzi has stated that the prosecutor only has on his files photocopies of the cards. Moreover, it is alleged that attempts by the defence to inspect the prosecutor’s files have been thrawted. So it is said by Mr. Knowles on behalf of the applicant that the absence of this original card means that the charge of forgery must fail
26. In a witness statement, Professor Amodio has explained that this is a matter of significance as one of the offences faced by the applicant in Italy is a charge under article 476 of falsifying documents, which can only be proved at the trial if the originals of the identity cards, rather than photocopies of them, are adduced in evidence. So Mr. Knowles submits that it is therefore clear that the applicant cannot be convicted on one of the charges of which he is accused in Italy. For this reason, he contends that it follows that the accusation against the applicant in relation to this particular offence is not made in good faith and that it would be ‘unjust’ (see section 11(3)(b)) to return him to Italy as he cannot now be convicted of this offence.
27. Mr Lewis responds by contending that, as Avv. Fedrizzi has stated, a photocopy of a document “authenticated by a public officer” suffices for the purpose of proving the Article 476 offence. So Mr. Lewis says that this requirement has been satisfied in this case because the letter from the Public Prosecutor at the court of Trento of 15 April 2002 shows that a colour photocopy of the documents had been obtained and significantly that this had been verified by criminal investigation officers from the State Police in Trento. Thus, he submits that this complaint of the applicant about the absence of evidence of the identity card is misconceived. I am not satisfied that the applicant is correct in his contention that the prosecution will be unable to provide admissible evidence of the identity card. It follows that the claimant cannot therefore prove bad faith on the part of the prosecution and that this challenge to the committal fails.
28. In the light of this evidence, I have concluded that it is not possible to be satisfied that it would be unjust or oppressive to return the applicant to Italy. Thus, this application must be dismissed.

Lord Justice Rose:– I agree.

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LORD JUSTICE ROSE: For the reasons given in the judgments handed down this application is dismissed. Yes, Mr Knowles?PRIVATE 

MR KNOWLES: My Lords, Miss Braartskamp appears today for the Government of Italy. My Lords, I am instructed to ask for permission to appeal to their Lordships' House. I do so, of course, knowing what this court's usual practice is.

LORD JUSTICE ROSE: No. We refuse permission, Mr Knowles. Thank you. Anything else? Thank you.