England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
ADMINISTRATIVE COURT
DIVISIONAL COURT

		CO/2804/2003 Royal Courts of Justice The Strand London
		1 March 2004

Monday 1 March 2003

THE LORD CHIEF JUSTICE:

1. This is a matter which arises out of an attempt by the Italian Government to obtain the extradition of the applicant who is an Italian national, born on 23 October 1964.
2. The principal issue which arises on the application is what rights, if any, an applicant who is tried in his absence has to a right of appeal against sentence when he accepts that he was properly convicted of an offence of a serious nature which he undoubtedly committed.
3. While in Italy the applicant was convicted on two occasions. The first occasion was on 21 January 1991 when the Court of Pistoia found him guilty of possession of 571 milligrammes of a controlled class A drug, namely heroin, which was equal to approximately four daily doses. He was then given a conditional suspended sentence of one year and four months' imprisonment together with a substantial fine. The conviction and sentence in that case became final on 22 March 1991.
4. The second conviction occurred on 23 February 1996. The applicant was convicted in his absence, although he was represented by a lawyer appointed by the court. He was found guilty of conspiracy by the same court. The conspiracy, which was alleged to have been committed in November 1990 and the beginning of 1991, was to supply controlled class A drugs (heroin and cocaine). On this occasion the quantity involved was substantial. It was considered by the prosecution sufficient to last for about ten years. The applicant was sentenced to eight years' imprisonment together with a fine. The conviction had the effect of revoking the suspended element of the earlier sentence. The result was that the total sentence was one of nine years and four months' imprisonment.
5. There is no issue but that prior to his second conviction the applicant had been co-operative with the authorities. As appears in one paper which is before us, he had given "very precise, detailed and articulated, corroborated by important elements and therefore useful in acquiring proofs against the others .... and in interrupting the ongoing trafficking". His information allowed the identification of other associates in the investigations and had the important effect of determining the criminal association involved in the drug distribution.
6. In passing sentence the court therefore acknowledged this co-operation but said that the diminution in sentence passed would be limited "by reason of the fact that the accused is in fact alluding the enforcement thereof".
7. Attempts were made to trace the applicant in Italy in or shortly before July 1992 and again in 1996.
8. The applicant was arrested in Italy in May 1991 in connection with the other offence; but in June 1991 he was released and put under house arrest. Following an application on 13 November 1991 he was released from house arrest, and able to resume his work as a plasterer and to travel freely.
9. There is no doubt that the applicant had reason to believe that he was going to be provided with police protection because of the individuals against whom he had informed. A document exhibited by the Italian Government, signed by the Deputy Prosecutor General of the Republic states as follows:

"The Public Prosecutor in charge of the investigation, stated that according to her recollection, since she could not look at the case file in a short time:

'Raffaele Sadutto's co-operation with investigators was very useful and conclusive and therefore he was granted the concession set out in paragraph 7 of Article 73 of the Presidential Decree 709/90. Furthermore on account of this co-operation there was an attempt to obtain official protection for him as a co-operating witness by the Ministry given the criminal prominence of the Leveque family which was mentioned by him.'

This attempt was unsuccessful and therefore Sadutto decided to hide abroad because he feared for his safety. Mr Niccolai was actually appointed by the Court as [his] defence counsel."

10. In his statement in support of his application the applicant said that his conviction in 1996 stemmed from his arrest on 1 May 1991. He continued:

"6. I co-operated with the police from the outset.... I wanted to be represented by Modero who had represented me previously but the police said that I would be better off being represented by a lawyer called Nikkolai.

7. During the next few days whilst in prison I spoke to the police about the possibility of me assisting in the investigation. This was at the preliminary investigation stage of the case. At this point Judge Renzo Dell'Anno, the prosecution Miss Corsiers and Mr Nikkolai came to the prison. These matters were discussed....

8. Discussions took place in front of the Judge as to whether some sort of arrangement might be reached whereby I would assist the police. The police wanted to see firstly how much I knew. I was shown photographs of people and asked to identify them. I was able to do this and therefore began to assist the prosecution.

9. I informed the police about people whom they did not know about. A senior officer came from Naples to see if [I] knew people operating in Naples. I was able to give information about persons not mentioned in this case.

10. I was released from custody on 20 June 1991, having assisted the police.

11. I was given home detention. Whilst under home detention I accompanied the police to Milan to point out places that I had been with other people involved in the drug trade.

12. During the time I was under home detention I made a statement setting out what I knew.

13. In October or November 1991 home detention was lifted and I was allowed to work and travel freely without having to sign on at a police station. I was not bailed to attend a court.

14. I worked as a plasterer and travelled for the purposes of work. This went on for a number of months until late 1991. I was in touch with Nikkolai from time to time.

15. Things changed dramatically when the police started to arrest people that I had named. I was told that [a] safe place would be found for me to go before the police started to arrest people. This was on the basis that it was likely that I would be revealed as the informant.

....

17. I came to England with my wife and daughter at Christmas. My wife remained here with our child.

18. I returned to Italy at the start of 1992 because I wanted to sort things out. I called the police because I wanted to know what was going on as there had been an arrest and I had not been warned. They did not take my fears seriously and they went back on their promise to protect me. It was clear that I was not going to be offered a safe place to live or any protection.

19. I spoke to Nikkolai about it -- he didn't seem to want to be involved.

20. At that time it was still not known that I was the informant but I knew it was only a matter of time so I returned to the UK after about 8 weeks. I had no choice except to go."

Later he said:

"23. By giving information I put myself at considerable risk. The people who I had informed upon were dangerous and powerful. They were not people that you would want to upset and I knew that I was in danger.

24. I believed my life was in danger. It will still be in danger if I am returned."

Finally, he said:

"28. I had previously understood that as a result of my co-operation that I would receive a much lesser sentence. In the end my life was at risk because of the help I had given."

11. The application is made under sections 6(2) and 11(3) of the Extradition Act 1989. Section 6(2) of the Act provides so far as relevant:

"A person who is alleged to be unlawfully at large after conviction of an extradition crime shall not be returned to a foreign state, or committed or kept in custody for the purposes of return 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."

Section 11(3) so far as relevant provides:

"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 ....

....

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

12. In the present case the test under both statutory provisions which this court has to apply is very much the same. It is whether it would be unjust to require the applicant to be returned to Italy. That has to be decided on all the circumstances of the particular case. Decisions as to whether or not someone should be returned are often very much a matter of fact and degree.
13. The following facts are of importance in relation to the determination of the issue that is before us:

(1) The applicant left his country of origin, Italy, lawfully.

(2) The reason he left was because he had given very valuable co-operation to the prosecuting authorities about other persons involved in drug crimes.

(3) He knew he was likely to be tried.

(4) He returned to Italy a year or thereabouts after he had originally left. He contacted the authorities, but the position had not changed. The risk to him was likely to be substantially increased because of his being identified as the offender.

(5) Until he was arrested he heard no more from the authorities in Italy.

(6) The sentencing judge reduced the sentence he would otherwise have imposed because of the applicant's co-operation, but the reduction was not as great as it would otherwise have been if he had attended the hearing. There is no reason to believe that the judge was aware of the applicant's reasons for departing from Italy so that he would not be aware of, or able to attend, the hearing.

(7) There is no right of appeal available to the applicant when and if he is returned (although under the legislation which has been passed in Italy post the times which are relevant to this case there is now such a right of appeal).

14. There can be no doubt that the crimes that were committed by the applicant were serious. Normally if a person absents himself from the country where he knows he is about to be tried, he will be entitled to little sympathy if he avoids attending the trial. Here the situation is different. First, the applicant, as we have indicated, had good cause for leaving. So far as this court knows there was no attempt made to trace the applicant until long after the 1966 conviction had taken place. In drawing attention to the last matter, I make it clear that I am not suggesting that in the ordinary situation if a person absents himself there is any duty on a government such as the Italian Government to search out that person so as to make him aware of the facts of which he is not aware because he chose deliberately to leave the country. But again this case is different from the norm for the reasons already indicated. It appears from the statement of the Prosecutor General, from which I have quoted, that the prosecution authorities were aware that the applicant had gone abroad to hide because he feared for his safety in the circumstances already indicated. It seems to me that that is a significant feature of this case.
15. It is important to take into account in this case the whole of the timescale involved; there was a substantial time gap between the applicant confessing his part in the 1966 offence and the actual proceedings for that offence, and then again after the conviction before he was eventually arrested after the Italian Government had obtained authority to proceed.
16. There is ample authority before the European Court of Human Rights dealing with the conviction of individuals in their absence and the importance in such a situation of there being at least a right of appeal. However, those cases differ from the present, as counsel agree, because they deal with the situation where the guilt of the defendant in those proceedings is still in issue, whereas that is not the situation in this case. However, it is desirable to look shortly at the recent decision of the House of Lords in R v Jones [2003] 1 AC 1, where those cases were considered. Jones is a wholly different situation from that in which we are involved here. Jones was not an extradition case. However, in giving the first speech Lord Bingham of Cornhill cited the learning to be gleaned from the relevant authorities in these terms:

"8. The European Court of Human Rights and the Commission have repeatedly made clear that it regards the appearance of a criminal defendant at his trial as a matter of capital importance: see, for example, Poitrimol v France (1993) 18 EHRR 130, 146, para 35; Pelladoah v The Netherlands (1994) 19 EHRR 81, 94, para 40; Lala v The Netherlands (1994) 18 EHRR 586, 597, para 33. That court has also laid down

(1) that a fair hearing requires a defendant to be notified of the proceedings against him: Colozza v Italy (1985) 7 EHRR 516, 523-524, para 28; Brozicek v Italy (1989) 12 EHRR 371;

(2) that a person should as a general principle be entitled to be present at his trial: Ekbatani v Sweden (1988) 13 EHRR 504, 509, para 25;

(3) that a defendant in a criminal trial should have the opportunity to present his arguments adequately and participate effectively: Ensslin, Baader and Raspe v Germany (1978) 14 DR 64, 115; Stanford v United Kingdom 23 February 1994, Publications of the European Court of Human Rights, Series A no 282-A;

(4) that a defendant should be entitled to be represented by counsel at trial and on appeal, whether or not he is present or has previously absconded: Delcourt v Belgium (1970) 1 EHRR 355, 366-367, para 25; Poitrimol v France 18 EHRR 130, 146, 147, paras 34, 38; Pelladoah v The Netherlands 19 EHRR 81, 94, para 40; Lala v The Netherlands 18 EHRR 586, 597-598, paras 33-34; Van Geyseghem v Belgium Reports of Judgments and Decisions 1999-1, 127, 140, para 34; Omar v France (1998) 29 EHRR 210, 233, paras 41-42.

The right to be defended has also been described by the European Court of Justice as a fundamental right deriving from the constitutional traditions common to the member states of the European Union: Bamberski v Krombach (Case C-7/98) [2001] QB 709.

9. All these principles may be very readily accepted. They are given full effect by the law of the United Kingdom. But the European Court of Human Rights has never found a breach of the Convention where a defendant, fully informed of a forthcoming trial, has voluntarily chosen not to attend and the trial has continued. In the Ensslin case 14 DR 64, in which proceedings were continued during the absence of the defendants caused in large measure by self-induced illness, the proceedings were held to have been properly continued. In Poitrimol v France 18 EHRR 130, 145, para 31 the court questioned whether a full hearing on appeal could be required by a defendant who had waived his right to appeal and defend himself at trial. In Van Geyseghem v Belgium 21 January 1999, at p 138, para 28 the court was not concerned that the applicant had not wished to avail herself of her right to attend an appeal hearing. In a concurring opinion in that case Judge Bonello (at p 145) held that the presence of a defendant during his trial was basically his right, not his obligation. There is nothing in the Strasbourg jurisprudence to suggest that a trial of a criminal defendant held in his absence is inconsistent with the Convention."

17. It is also convenient to look at an extradition case which was heard in this jurisdiction in November 1997. R v The Governor of HM Prison, ex parte Barone (CO/2734/1996) came before the Divisional Court presided over by Kennedy LJ. In his judgment at paragraph 4 Kennedy LJ said:

"Miss Montgomery helpfully traced for us the history of Section 6(2), beginning with the report of an inter-departmental working paper in May 1982. Paragraph 4.15 of that paper sets out what was seen to be the problem:

'Where a fugitive has been convicted by the courts of the requesting State, there is in general no question of enquiring into the circumstances of his conviction. It is enough to prove that he has been convicted of an offence which is extraditable by the laws of each Party and it is regarded as unnecessary to asses the evidence on which the finding of guilt is based. Special considerations arise, however, where the fugitive has been tried and convicted in his absence. The position in English law is 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, or if he misbehaves in a court and is ordered by the Judge to be removed. The discretion of the Judge to allow the trial to proceed must however be exercised with great reluctance, and with a view to the due administration of justice rather than to the comfort or convenience of anyone. It is arguably wrong in principle to surrender a fugitive upon no other ground than a finding of guilt reached in his absence, in circumstances in which the trial would not have been allowed to proceed in England.'

In paragraph 4.21 the report of the working party said:

'We would suggest that in considering what provision should be made in new legislation for the return of persons convicted in their absence, it is necessary to look beyond the possible application of the prima facie case requirement. Whilst a requirement to demonstrate that there is a prima facie case against a fugitive can test the strength of the case on which a conviction in absentia was obtained in the requesting state, it cannot test the sufficiency of the procedure by which the court's verdict was reached; and it seems to us that, in a case of this kind, the latter point is of equal importance to, if not more important than, the first.'"

18. The distinction which is there being drawn is one upon which Mr Hardy relied in his very helpful submissions. He described the facts in Barone as indicating a high-water mark of intervention by this court. In his conclusion Kennedy LJ said:

"So, as it seems to me, for all the reasons I have identified, if justice is to be done this conviction needs to be reviewed, but Professor Iorio says that even today there is no scope for such a review, and that is confirmed ...."

It was on that sort of approach that the court in that case allowed the application.

19. Here we are concerned only with the matter of sentence and not conviction. However, it seems to me that on the facts of this case, which as I have stressed are special insofar as the applicant left Italy because he was in fear for his life and also because there are indications of substantial possible inactivity by the Italian authorities, the applicant is entitled to urge before this court, as Miss Dobbin did on his behalf, that there should be, both under Article 6 and by applying our domestic standards of justice, an opportunity for him to have reviewed the sentence which was imposed upon him. If the Italian court which sentenced him had been aware of the fact that he had reason to seek protection and that protection was not forthcoming and that was the reason why he had left the country, the applicant may well have received a lesser sentence than was imposed. How much less it is not possible for this court to say.
20. It is unfortunate that there is no right of appeal. If there had been a right of appeal then the appellate court could have done justice to the applicant's position. Although the applicant could have done more to keep in touch with the Italian authorities, it is understandable that he did not do more than make one visit to Italy to find out about the situation. It seems to me that, because there is no right of appeal, it would be unjust to order his return. If we did order his return the consequence would be that he would probably have to serve a longer sentence than would otherwise be the case. That being so, if we did not accede to the application, we would be responsible for him having to serve longer than the justice of the case requires. Accordingly, I would allow the application.
21. MR JUSTICE MITTING: I agree.
22. MR HARDY: Before my learned friend makes any applications, from a consideration of the case of Barone your Lordships will be aware of what followed in that case and therefore of section 5 of the Administration of Justice Act 1960, which is the section which permits this court to retain in custody or release on bail a person who succeeds in a habeas corpus application.
23. THE LORD CHIEF JUSTICE: Yes.
24. MR HARDY: In the circumstances of this case my applications are twofold: one, for leave to appeal -- and I take it as a formality that your Lordships will not wish to hear argument and that your Lordships would refuse leave to appeal?
25. THE LORD CHIEF JUSTICE: Yes.
26. MR HARDY: Secondly, for him to be released on unconditional bail pending notification by those instructing me as to whether or not they seek to take this matter further.
27. THE LORD CHIEF JUSTICE: Subject to anything your learned friend wants to say, it seems to me that that is a perfectly proper application and I think there is every reason to make it otherwise there can be very real difficulties, can there not, MR Hardy?
28. MR HARDY: My Lord, the position would be that there would be no opportunity for reflection. That would be done in custody. The diplomatic niceties would not be gone through -- can I put it that way?
29. THE LORD CHIEF JUSTICE: Yes. Do you have any objection?
30. MISS DOBBIN: My Lord, I certainly have no objection to the applicant being released on unconditional bail. It is right that he should be bailed in the interim.
31. THE LORD CHIEF JUSTICE: That will be done. Have you any applications?
32. MISS DOBBIN: My Lord, the applicant was publicly funded in this matter and my application is for an assessment of defence costs.
33. THE LORD CHIEF JUSTICE: I think that is automatic. There is no further application?
34. MR HARDY: No. May I make it clear that as a result of your Lordship's order those instructing me would have fourteen days within which to submit a petition for leave to their Lordships.
35. THE LORD CHIEF JUSTICE: Yes.
36. MR HARDY: And if they do not do so then bail will fall away automatically, but those instructing me would wish to advise all parties --
37. THE LORD CHIEF JUSTICE: Good. We hope you get a quicker response than you sometimes do from your clients.
38. MR HARDY: I had 24 hours in mind, my Lord, but I hope your Lordships will not tie me to it.
39. THE LORD CHIEF JUSTICE: Thank you.