England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
DIVISIONAL COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		28 May 2004

Lord Justice Maurice Kay :

1. The Claimant is the subject of an extradition request by the Republic of Italy in relation to four charges. They are formulated as follows

"(1) ANTONIO CASALE, MUBARAK SHAH, NICOLAU NICHOLAS SAVVAS, and ALBERTO GUARNERI between the 1^st day of November 2000 and the 9^th day of November 2001 conspired together and with KUJTIM KRASNIQUI and others fraudulently to evade the prohibition on the importation of a controlled drug of Class 'B', namely cannabis.

(2) ANTONIO CASALE, MUBARAK SHAH, NICOLAU NICHOLAS SAVVAS, and ALBERTO GUARNERI between the 1^st day of November 2000 and the 9^th day of November 2001 conspired together and with KUJTIM KRASNIQUI and others fraudulently to evade the prohibition on the exportation of a controlled drug of Class 'B', namely cannabis.

(3) ANTONIO CASALE, MUBARAK SHAH, NICOLAU NICHOLAS SAVVAS, and ALBERTO GUARNERI between the 1^st day of November 2000 and the 9^th day of November 2001 conspired together and with KUJTIM KRASNIQUI and others to unlawfully possess a controlled drug of Class 'B', namely cannabis, with intent to supply it to another.

(4) ANTONIO CASALE, MUBARAK SHAH, NICOLAU NICHOLAS SAVVAS, and ALBERTO GUARNERI between the 1^st day of November 2000 and the 9^th day of November 2001 conspired together and with KUJTIM KRASNIQUI and others to unlawfully possess a controlled drug of Class 'B', namely cannabis.

All within the jurisdiction of Italy."

The application for extradition is made pursuant to section 1(1)(a) and Part III of the Extradition Act 1989. Italy is of course a fellow signatory to the European Convention on Extradition. Authority to proceed was granted by the Secretary of State on 15 October 2002.

2. On 3 September 2003 District Judge Pratt, sitting at Bow Street Magistrates Court, committed the Claimant on bail to await the decision of the Secretary of State as to his return to Italy pursuant to section 9(8)(a) of the 1989 Act.
3. There is now before this court an application for habeas corpus. It raises three issues (a fourth issue having been abandoned at the outset of the hearing). The first relates to identification, in particular whether there was before the District Judge appropriate and sufficient evidence to identify the Claimant as the person sought in the extradition request. The second issue goes to the factual material in relation to charge 1. The third issue relates to charge 3 and dual criminality.

Issue 1. identification

4. It is common ground that it was incumbent upon the Government of Italy to prove that the person before the District Judge was the same person who was the subject of the extradition request and that such proof must be to the criminal standard. (I pause to observe that had the Extradition Act 2003 been in force when this case was heard, the standard would have been upon a balance of probabilities). At the hearing in the Magistrates' Court the District Judge had before him the cases of Casale, Guarneri and Savvas. Although they were the subject of separate extradition requests, the committal hearing was a conjoined or consolidated one. The District Judge was satisfied that the Claimant is the same person as the man named in the extradition request. The District Judge stated:

"It is submitted on Mr Savvas' behalf that he answered upon arrest to the name Nicolau Nicholas Savva. It is pointed out that there is no photograph, no fingerprints, no physical description and no dock identification; neither was there any acknowledgment from Mr. Savvas upon arrest as to knowledge about the nature of these proceedings.

It is true there is a discrepancy in the spelling of Mr. Savvas' name but it is extremely limited and appears to have given no cause for confusion on the part of Mr. Savvas' mother at the address where Mr. Savvas was arrested. The papers reveal that Mr. Savvas was born in Hounslow and it is clear that Mr. Savvas was arrested at his home address in Hounslow. It is, of course, possible that there are two Nicholau Savvas residing in Hounslow but it would be an extraordinary coincidence that they would both have the identical date of birth.

A set of papers has been prepared for each of the Defendants each containing the Authority to Proceed for each individual Defendant. In the papers for Mr. Guarneri reference is made to a passport number for Mr. Savvas. It is contained in papers prepared on the 10^th November 2001 but with the same passport number as that which came into the court's possession in December 2002. It is argued that I cannot look at information concerning Mr. Savvas which is contained in papers relating to another. The fact of the matter is that all three Defendants are jointly charged with all these offences. Three separate bundles have been prepared notwithstanding, to no great effect and with no particular logic. I take the view that I am able to extract information from the totality of the papers provided.

I am again satisfied to the required standard that the subject of this extradition request, Nicholas Savvas, is the person appearing before me."

Thus, the District Judge was satisfied as to identification on two separate bases: first, on the basis of name/Houslow/date of birth; the second, on the basis of extracting the passport number attributed to the Claimant from the papers concerning Mr. Guarneri.

5. On behalf of the Claimant, Mr. Summers submits, first, that the name/Houslow/date of birth evidence provided an insufficient basis for proof to the criminal standard, and, secondly, that it was unlawful for the District Judge to rely on material from the papers concerning Mr. Guarneri.
6. Mr. Summers refers to "the traditional evidence" by which the court is sometimes satisfied in cases of disputed identification. He gives the examples of authenticated photographs which can be used by the District Judge to effect the comparison with the man in court, fingerprint comparisons, physical descriptions, dock identification by a person from the requesting state and so on. Mr. Summers seeks to rely on the absence of such categories of evidence in the present case. He expressly disavows reliance upon the minor discrepancy in the spelling of the name. He submits that the most that has been established (leaving aside the information from the Guarneri file to which I shall return) is that the Claimant and the subject of the extradition request have or have used a virtually identical name, that the date of birth – 13 December 1981 – is the same in respect of both, and that the Claimant lives and was arrested in Hounslow, which is the same London Borough in which the subject of the extradition request was born. The submission is that it was not open to the District Judge to be satisfied to the criminal standard that identification had been established on this basis. There was room for reasonable doubt.
7. On behalf of the Respondents Mr. Hardy submits that the evidence was and is sufficient for the establishment of identification and that any doubt about it would be fanciful and not reasonable.
8. I accept the submission of Mr. Hardy that the District Judge was entitled to be satisfied to the criminal standard that identification is established in this case. The "traditional" categories of evidence to which Mr. Summers refers are not legal requirements but are simply examples of types of evidence whereby requested states have sometimes established identification in cases where it has been disputed. The absence of all or any of them is not determinative. Faced with the unusual name (particularly for a British citizen), the date of birth and residence in the same London Borough, the District Judge was entitled to conclude as he did.
9. I turn now to the interesting point about the use of information from the Guarneri file. The submission of Mr. Summers is, as he concedes, a narrow and technical one. It is that it was wrong of the District Judge to rely on information about the Claimant's British passport number extracted from the Guarneri file. The Claimant's passport was recovered from his possession following his arrest in Hounslow and it was properly produced before the Court. It bears the number 037194591. That number does not appear in the papers submitted by the requesting state specifically in relation to the Claimant. However, in the papers specifically relating to Guarneri, there is a reference to

"Nicholas Savvas, born in Hounslow (GB) on 13.12.1981, resident in the United Kingdom, identified by means of passport number 037194591 issued by the British authorities on 9.12.1999."

Mr. Summers frankly concedes that if that information is usable in relation to the Claimant, there can be no dispute about identification. He also concedes that he might not be able to advance the present complaint if the Claimant and Guarneri had been the subject of the same extradition request. However, he submits that the fact that they were not is significant and its significance is not diminished by the fact that the committal proceedings were conjoined or consolidated. He submits that in effect the District Judge has taken judicial notice of the contents of the court file in another case and seeks to draw an analogy with cases such as Mullen v. Hackney LBC [1997] 1 WLR 1103 and R (Kingsnorth and Denny) v. DPP [2003] EWHC 768 (Admin). Those authorities demonstrate that judicial notice cannot be taken of material within a court file; such material is not evidence. He further submits that, whereas evidence obtained within the United Kingdom is admissible in order to establish identification in a Convention case (see Antony, unreported, 27 June 1995), the Magistrates Court is required to observe the rules of evidence which would obtain in a summary trial by reason of section 9(2) of the 1989 Act which provides:

"…….a court of committal…shall have the like powers, as nearly as may be, including powers to adjourn the case and meanwhile to remand the person….as if the proceedings were a summary trial of an information against him…"

In all these circumstances, it is suggested that the District Judge had no authority to use material from the Guarneri file to prove identification in the case of the Claimant.

Mr. Hardy submits that the Court is not so limited in terms of the evidence or material which can be admitted on the issue.

In my judgment, the District Judge was entitled to resort to the information from the Guarneri file for two distinct reasons. The first is that, whether or not they need have been, the proceedings in relation to the Claimant, Guarneri and Casale were properly and sensibly being heard together. As I have said, although they were subject of separate extradition requsts, the committal hearing was conjoined or consolidated. The committal charges relate to conspiracies to which all three (and others) are said to have been parties. In these circumstances, I see no reason why the District Judge should have been inhibited from relying on authenticated material in the Guarneri file. It was not a case of taking judicial notice of that material. Since the cases were being heard together, it was part of the material before the court when the application of Savvas was being heard. Secondly, and separately, I do not consider that section 9(2) or anything else requires strict adherence to the rules of evidence which would obtain in a summary trial. Such strict adherence would be inconsistent with the policy and purpose of the 1989 Act in relation to Convention cases. It would also live uneasily with the practice of dock identification which Mr. Summers concedes is not unusual in this context. In my judgment, section 9(2) is concerned with procedural powers and orders and not with the rules of criminal evidence. The safeguard for the individual is that the District Judge has to be sure about identification. No doubt some materials would be more reliable than others. In the present case, it is significant that the disputed piece of information came from official and authenticated sources and was inextricably related. As such, no doubt a District Judge would accord it greater weight than some elusive piece of hearsay from an unofficial source. It would be absurd if properly authenticated material from a Convention state had to be verified by the calling of a witness in circumstances such as these.

10. For all these reasons, I find no error in the approach of the District Judge on the issue of identification.
11. Issue 2 the first change:

In essence, the first charge relates to a conspiracy to import cannabis from Albania to Italy. The second charge relates to its subsequent exportation from Italy to England. Mr. Summers accepts that the material before the District Judge was sufficient to support the second charge but submits that, even having regard to the more relaxed requirements in relation to Convention cases, there was insufficient material to support the first charge. He interprets the totality of the material as pointing to a "controlling team" of Albanians but with no evidence that the "UK team" were involved prior to the arrival of the drugs in Italy.

12. Mr. Hardy's answer is that the underlying allegation is of a single enterprise involving the movement of drugs from Albania to Italy and then to the United Kingdom but that, of necessity, it has been charged as two sub conspiracies involving the importation into and the export from Italy of the drugs in question. The underlying accusation is described in the authenticated documents from Italy as being an accusation

"of all the Defendants of the crime (under) Article 74….since they associated (with) each other and with other unidentified abettors in order to commit a plurality of crimes…..the aforesaid criminal association frequently bought huge amounts of marijuana coming from Albania and other Balkan countries, also relying on appropriate channels of importation, passing through Italy and afterwards exporting to England, and also relying on means of carriage, (especially cars and lorries) for drug hauls and places of drug 'cornering'. Each Defendant has played a specific role…."

It is true that the specific role attributed to the Claimant, so far as overt acts are concerned, does not include anything in Albania. However, the "extradition crime" is defined in section 2(1)(a) of the 1989 Act in terms of "conduct in the territory of a foreign state" and the conduct relevant to conspiracy is the agreement rather than the overt acts.

13. I have no hesitation in accepting the submission of Mr. Hardy that there was sufficient information before the District Judge in relation to both the importation into Italy and the export from Italy as sub-conspiracies in the overarching enterprise.
14. Issue 3: the third charge.

Section 2(1)(a) requires

"conduct in the territory of a foreign state…which, if it occurred in the United Kingdom, would constitute an offence punishable with imprisonment for a term of 12 months or any greater punishment, and which, however described in the law of the foreign state, …is so punishable under that law."

Using the language of the criminal calendar in this country, the third charge refers to a conspiracy to possess cannabis with intent to supply it to another. The submission on behalf of the Claimant is that the material before the District Judge did not disclose a matching offence in Italian law.

15. The material relating to Italian law includes translations of Article 73 which lists substantive offences and Article 74 which refers to conspiracies to commit offences under Article 73. Article 73.1 provides:

"Anyone who, without being authorised as to the Article 17, tills, produces, builds, draws, refines, sells, supplies or puts on the market, gives or receives, retails, trades, buys, carries, exports, imports, procures for third parties, sends, passes or sends by transit, delivers for any reason or however illicitly holds….drug or psychotropic substances (as itemised)."

It is certainly true that Article 73 does not expressly use the language of "possession with intent to supply". However, that misses the point. The concept of an extradition crime is founded upon "conduct which would constitute an offence" rather than on the strict definition of the offence. Section 2(1)(a) specifically states "however described in the law of the foreign state". As Mr. Justice Elias said in Stenbacka (unreported, 9 November 2000) if a similar submission to that of Mr. Summers then before the court were right

"…..it would be necessary in any case for the requesting state first to identify what offences it perceives the requested state might identify as arising out of the conduct in question. It would then have to identify which offences in its own law would be equivalent to those offences which it perceives are likely to be identified by the requested state, and then to ask whether those offences are punishable by 12 months or more. In my view, that is plainly contrary to what the section requires. It is really a very simple test which has to be carried out in these cases. The question is whether the conduct in the territory of the foreign state is punishable under that law potentially for a period of imprisonment of 12 months or more…"

Concentrating on the conduct constituting the offence in this country and in Italy, however described in Italian law, it is plain that the conduct of one possessing drugs with intent to supply is capable of matching the conduct of the person who, for example, "sells, supplies…..,gives,….retails, trades," as defined in Article 73. In my judgment there is nothing in this point.

16. Conclusion

It follows from what I have said that, the issues raised on behalf of the Claimant being resolved against him, his application for habeas corpus must be refused.

17. Mr. Justice Moses:

I agree.