England and Wales High Court (Administrative Court) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION (SULLIVAN J)

		Royal Courts of Justice Strand, London, WC2A 2LL
		2nd December 2005

Lord Justice Maurice Kay :

1. This is the judgment of the Court to which both members have contributed. Enrico Mariotti (the applicant) is the subject of an extradition request from Italy. He applies to this court for habeas corpus and discharge pursuant to sections 6(2) and 11(3) of the Extradition Act 1989. The matter has a long history and it is necessary to summarise it. On 7 November 1977 Duke Grazioli was kidnapped in Rome. His kidnappers demanded a ransom and a substantial figure was paid to them on 4 March 1978. The Duke was not released. He was murdered about that time. The motive for the murder was that he would otherwise have been able to identify at least one of the kidnappers. The applicant was a friend of the Duke's son. On 10 March 1978 the applicant went voluntarily to the investigation unit. In his second affidavit he says that, after hearing rumours, he went to the police to ask if they wanted any information from him and to make sure that he was not a suspect. His attendance and the fact that he was not then considered to be a suspect are common ground.
2. For a long time the Italian authorities made no progress in the investigation. However, in 1992 Maurizio Abbatino admitted his involvement to the police and implicated a number of others. One of the men implicated by Abbatino was Franco Giuseppucci. He was identified as the ringleader. He had himself been murdered on 13 September 1980. Some of what Abbatino said to the police was based on what Giuseppucci had told Abbatino. It implicated the applicant. On 2 October 1993 the pre-trial investigation judge issued an order for the arrest of the applicant. Police officers attended the applicant's house in Ostia but he was not there. The officers completed a report of an unsuccessful search. There is cogent evidence that the applicant had been living at the address in Ostia in the years between 1977 and 1993. He had a betting office permit for premises in the vicinity which was renewed annually and other bureaucratic requirements were satisfied during that period by reference to his residence at that address. However, in 1993 he came to England and has resided here ever since.
3. In July 1995 the applicant and nine others were tried before the Second Assize Court of Rome. The applicant did not attend but knew of the proceedings and was represented. He was convicted of kidnapping but acquitted of murder. On 24 December 1995 he was arrested in England on an extradition warrant issued at Bow Street Magistrates Court. The warrant erroneously stated that the conviction had been for murder. He was remanded in custody until granted conditional bail in February 1996. On 19 January 1996 the prosecution in Italy gave notice of appeal in relation to the acquittal for murder. A week later the applicant gave notice of appeal against conviction for kidnapping. On 7 February 1996 the Minister of State at the Home Office signed an authority to proceed in relation to the conviction which, in a formal request for extradition made on 29 January 1996, had correctly identified the offence of kidnapping.
4. The hearing of the cross-appeals was due to take place in the Court of Appeal in Rome at the end of October 1996. On 9 October 1996 the applicant wrote to the Court of Appeal in these terms:

"While not relinquishing the exercising of my right to defend myself in the extradition case with the English authorities, in which I find myself with the conditions imposed by the courts of this country, I state that I wish to be present at the second level hearing at [the Court of Appeal]."

5. That was intended to be and was treated as an application to adjourn the appeal hearing but the application to adjourn was refused on 16 October 1996. The decision of the Court of Appeal on 28 October 1996 was that the applicant's appeal and that of the prosecution were both dismissed. On 21 February 1997 the applicant and the prosecution instituted appeals to the Court of Cassation on points of law. Meanwhile, in the extradition proceedings, on 12 March 1997 the Secretary of State withdrew the authority to proceed based on the conviction and issued a new one on an accusation basis. In Italy, the conviction was suspended during the appellate process. On 6 June 1997 the applicant was committed by a Metropolitan Stipendiary Magistrate as an accused person on kidnapping and blackmail charges.
6. The Court of Cassation allowed the prosecution appeal in relation to the murder charge on 27 November 1997. It remitted that part of the case to the Court of Appeal for further argument. At the same time, the Court of Cassation dismissed the applicant's appeal in respect of the kidnapping and at that point his conviction for kidnapping became final. On 7 April 1998, the Secretary of State, having been informed of the finality in relation to kidnapping, exercised his discretion under section 12 of the Extradition Act 1989 and decided not to return the applicant to Italy. In the letter communicating that decision to the applicant's solicitors the Secretary of State said:

"Mr Mariotti was committed by Bow Street as an accused person and the Secretary of State also issued an order to proceed on that basis. Given that Mr Mariotti's conviction has now been made final, the Secretary of State has exercised his discretion under section 12 of the Extradition Act 1989 and decided not to order Mr Mariotti's return to Italy."

7. In a letter to the Italian authorities of the same date the Secretary of State indicated that it was open to the Italian authorities to submit a second request for extradition and indicated "full co-operation". So far as the applicant was concerned, at that point extradition proceedings were at an end and he was no longer in technical custody.
8. On 28 January 2000 the Court of Appeal in Rome convicted the applicant of murder. He appealed again to the Court of Cassation in relation to the murder conviction but on 11 July 2000 his appeal was dismissed. The conviction for murder therefore became final. Two days later an enforcement order was issued in Italy but it could not be executed in that country. A report of an unsuccessful search was issued on 28 July 2000. Nothing further happened until 25 June 2003 when the applicant was arrested in this country pursuant to a further request for extradition which had resulted in an authority to proceed signed on 1 April 2003. On 26 March 2004 the applicant was committed by District Judge Pratt to await the decision of the Secretary of State. The committal was on the basis that the applicant is unlawfully at large after conviction for murder, kidnapping, false imprisonment and blackmail. The sentence imposed by the Italian court is one of 26 years' imprisonment. In his judgment, the District Judge said:

"It now seems clear that there is no opportunity for the applicant to appeal these convictions, he having decided of his own choice not to return to Italy for the hearings when it would certainly have been possible to do so … The charges of which he has been convicted are extremely grave, he was aware of all stages of the proceedings in Italy, opting not to return and deliberately absenting himself from the hearings. I am unable to find any reason why the applicant should not be returned to Italy."

9. In the present application to this court, the case for the applicant is that he should be discharged under sections 6(2) or section 11(3) of the 1989 Act. It is further submitted that it has not been properly established that the applicant was unlawfully at large. Finally, a point is taken that, in the context of section 2 of the 1989 Act, the conduct of the applicant in Italy, if it occurred in the United Kingdom, would not constitute the substantive offence of murder.

Sections 6(2) and 11(3) of the 1989 Act

10. These two statutory provisions are independent of each other but, on behalf of the applicant, Mr Lewis QC makes submissions relevant to both. In each case, this court has an original jurisdiction and not simply a function of review.
11. Section 6(2) provides:

"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."

12. Section 11(3) 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:

(a) …;

(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; or

(c) because the accusation 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."

13. I deal first with the submission by reference to section 6(2).
14. The primary submission of Mr Lewis on behalf of the applicant is that it would not be in the interests of justice to return the applicant to Italy. The submission is that, in considering the interests of justice, the court must have regard to the substance of the case which resulted in the conviction of the appellant and also to the procedure through which that conviction was obtained. It is suggested that it behoves this court to address these issues because the conviction is final in Italian law with no further appeal or review available to the applicant. If returned, he will probably spend the rest of his life in prison.
15. Mr Lewis seeks to support his submission by reference to R (Barone v Governor of HM Prison, Brixton [1997] EWHC Admin 988 and, in particular, these passages from the judgment of Kennedy LJ:

"The discretion of the judge to allow the trial to proceed [in a defendant's absence] must however be exercised with great reluctance, and with a view to the due administration of justice rather than to the comfort and 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 …

It is not the view of the European Court of Human Rights that all trials in absentia are ipso facto unfair (Colozza v Italy (1986) 7 ECHR 516) but the part of the Convention which I have quoted does draw attention to the need to look at not only the substance of the case against the applicant as it appears from the extradition request, but also at the procedure which prevailed in Italy at the time of his trial …

I bear very much in mind that this court is not a further Court of Appeal, but it is not possible to decide, for the purposes of section 6(2), what the interests of justice require without some examination of the case against the applicant as it was presented and accepted in Italy." (see paragraphs 18, 21 and 22).

16. So far as the substance of the case is concerned, Mr Lewis makes the following points:

i) Abbatino's evidence against the applicant was hearsay originating from a dead accomplice;

ii) there is no independent evidence of the applicant's involvement in the crime;

iii) Abbatino was himself a party to the crime;

iv) Abbatino has been found to be a discredited witness when acting as a supergrass in another trial involving Signor Andreotti, a former Prime Minister of Italy; Abbatino received a reduced sentence (from 21 to 8 years) for his evidence;

v) there was uncertainty around the circumstances in which Abbatino had identified the applicant by photograph.

All this leads Mr Lewis to submit no English court would have convicted the applicant on such evidence.

17. On behalf of Italy, Mr Jones QC submits that Barone has now to be approached in the context of later authority in this jurisdiction, in particular R v Jones [2002] UKHL 5, [2003] 1 AC 1. Although, historically, the approach of the English courts to trying a defendant on a serious charge in his absence had been resistant, particularly if the absence related to the entire trial, in Jones the House of Lords, agreeing with the Court of Appeal Criminal Division (Hayward, Jones and Purvis [2001] EWCA Crim 168, [2001] Cr App R 11), held that a trial judge has a discretion not only to continue but also to commence a trial in the absence of a defendant, although it is a discretion which has to be exercised cautiously. Lord Bingham of Cornhill summarised the Strasbourg jurisprudence in this way (at paragraphs 8 and 9):

"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 … 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 …;

(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 …

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 [2001] QB 709.

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."

18. Lord Hutton said (at paragraph 35):

"In the present case I consider that the deliberate decision of the defendant to abscond in breach of his bail conditions to avoid his forthcoming trial on a serious charge justifies the inference that he had no intention of putting forward a defence at that trial and that therefore he did waive his right to defend himself in an unequivocal manner."

19. In the Court of Appeal Criminal Division in the same case (reported as Hayward, Jones and Purvis [2001] 2 Crim App R 156), Lord Justice Rose had listed the relevant factors to be taken into account when deciding whether a trial should proceed or commence in the absence of a defendant (at page 167). His approach was approved by the House of Lords.
20. Mr Jones further submits that the importance of Jones in the present context is evident from the later case of Spinnato [2001] EWHC Admin 1124, in which Kennedy LJ said (at paragraph 13):

"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 Hayward and others … 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."

21. We accept Mr Jones' submission that it is implicit in these developments that what Kennedy LJ had said in Barone about "cases in which the trial would not have been allowed to proceed in England" is no longer applicable to a case where the applicant chooses to absent himself from a trial.
22. Where there has been a trial resulting in a conviction in the requesting state and that trial has been in accordance with the law in that state, is it for this court to review the evidence and come to a conclusion about the safety of the conviction? In our judgment, it is not. If the applicant had been present at his trial but had absconded to this country after conviction, he would not have been able to call for such a review. Section 6(2) and the "interests of justice" basis for discharge is limited to convictions obtained in the absence of the accused. The interests of justice can fall within a very wide ambit but we are unpersuaded that, without more, they can be invoked by an applicant who was absent by choice from his trial and was convicted pursuant to due process in Italy.
23. We shall have to return to the notion of "absent by choice". First it is appropriate to refer to Mr Lewis' submission that there has been procedural unfairness such that it is in the interests of justice that the applicant should be discharged. The submission is that the applicant never unequivocally waived his right to attend his trial. Reliance is placed on Article 6 of the ECHR and the approach of the ECtHR in Colozza v Italy (1986) 7 EHHR 516, at paras 27-28:

"Although this is not expressly mentioned in paragraph 1 of Article 6 …, the object and purpose of the Article taken as a whole show that a person 'charged with a criminal offence' is entitled to take part in the hearing. Moreover, sub-paragraphs (c), (d) and (e) of paragraph 3 … guarantee to 'everyone charged with a criminal offence' the right 'to defend himself in person', 'to examine or have examined witnesses' and 'to have the free assistance of an interpreter if he cannot understand or speak the language used in Court', and it is difficult to see how he could exercise these rights without being present.

In the instant case the Court does not have to determine whether and under what conditions an accused can waive exercise of his right to appear at the hearing since in any event, according to the Court's established case law, waiver of the exercise of a right guaranteed by the Convention must be established in an unequivocal manner."

24. Mr Lewis' point is that the Italian authorities chose to proceed by way of an application for extradition. Within the extradition proceedings, the applicant was entitled to stand on his rights, - for example, if returned, to be tried only for an offence for which he had been extradited in accordance with the specialty rule. In these circumstances, it was quite wrong to deal with the applicant on the basis that he would only be tried in his presence if he gave up his extradition rights. That is said to have been the effect of the refusal to adjourn in October 1996.
25. We are not impressed by this submission. The applicant had a range of choices. He could have waived his rights and returned to Italy voluntarily to stand trial. He could have refused to return otherwise than by extradition but without actively contesting or prolonging the extradition proceedings, thereby preserving his specialty protection. Or he could do as he did, with the result that he might be tried in his absence. We cannot escape the conclusion that he chose to take a calculated risk to let the trial proceed in his absence in the hope of an acquittal. If that was not the outcome, he would then contest extradition after conviction. Having chosen to proceed as he did, we do not consider that he can now maintain that it would be in the interests of justice in the context of section 6(2) to discharge him. Nor was it unjust for the Italian court to try him in his absence. In similar circumstances, an English court might well do the same in a case where there are numerous defendants and a supergrass witness and with time passing by. The reality is that the applicant had full knowledge of the Italian proceedings and was professionally represented in them throughout. This was, in our judgment, a case of absence by choice and we do not consider that, in such circumstances, it would be contrary to the interests of justice to return him.
26. If section 6(2) does not avail the applicant, what about section 11(3)? As to the passage of time since the alleged offence, some sixteen years elapsed between the murder and the issue of the arrest warrant in 1993. The original trial took place in 1995. The delay is explained by the fact that the supergrass, Abbatoni, did not provide evidence until 1992 (we ignore one reference to 1982 which is clearly a typographical error). Between 1995 and 2000, the Italian courts dealt with the matter in accordance with their procedures. Having regard to the gravity of the offence, we do not consider that the passage of time renders it unjust for the applicant to be returned. Mr Lewis also points to an unexplained gap of three years between July 2000 and the arrest of the applicant in June 2003. We do not condone that delay but we do not consider that it sustains a submission of injustice or oppression in the circumstances of this case. We reach the same conclusion in relation to the passage of time since the applicant became unlawfully at large.
27. Mr Lewis next turns his attention to the issue of good faith. He is very critical of the Italian officials in relation to statements they have made in the course of these extradition proceedings following the murder conviction. There is some justification for the criticism although Mr Jones has successfully mitigated part of it. So far as section 11(3)(c) is concerned, all this is nothing to the point because that provision relates to bad faith in the accusation, of which we find no evidence. The alternative submission is that the justified criticism is also relevant to the consideration of the "interests of justice" in the context of section 6(2). Whether or not the overenthusiastic and careless statements of Italian officials are also tainted by bad faith (and we do not consider it necessary to make such a finding), we do not believe that it would be appropriate to discharge the applicant in the interests of justice by reference to them. This is a conviction case and we find no bad faith on the part of the Italian authorities or anyone for whom they are responsible in the processes which resulted in the conviction. In circumstances where a conviction for a very grave offence has been obtained by due process, in my judgment it would be a very rare case in which extradition would be refused simply because officials acting on the extradition request have been shown to have overegged the pudding. We do not approve of their so doing but if the applicant cannot obtain his discharge for other reasons by reference to sections 6(2) or 11(3), we do not consider that these matters avail him.
28. We now turn to a different point advanced on behalf of the applicant. Mr Lewis submits that the evidence does not establish that the applicant is or has been "unlawfully at large". In the Magistrates' Court, the District Judge said:

"I have before me a Sentence Enforcement Order dated 13 July 2000 signed by the Deputy State Prosecutor attached to the Court of Appeal of Rome, effectively a warrant of arrest, which shows that Mr Mariotti was unlawfully at large and not present at his trial. I am satisfied that Mr Mariotti is unlawfully at large."

29. In Urru v Governor of HM Prison, Brixton, unreported, 22 May 2000 (CO/4009/99), the court was faced with similar documentation from Italy. Lord Bingham of Cornhill CJ said:

"That language may indicate that the applicant is already regarded as unlawfully at large and therefore liable to arrest which, if so, would of course support the government's case. But it may, as it seems to me, be authority to arrest him when he has been found and when he has been handed a copy of the order, which would suggest that he was not unlawfully at large until those steps had been accomplished. In the absence of expert evidence of Italian law I do not know how the magistrate could, or how we can, choose between those hypotheses."

30. If the document relied upon by the District Judge in the present case stood alone, Mr Lewis' submission would have some force. However, in this court the documentation is not so limited. There is an advice from the Office of the State Prosecutor attached to the Court of Appeal of Rome dated 14 July 2003 which states:

"The wanted person is qualified as an absconder until the arrest warrant is revoked or the wanted person arrested. Any judicial document is served on the absconding defendant by delivering a copy of said document to the absconder's defence counsel; the absconder is represented to all intents and purposes by his defence counsel (Article 165 of the Code of Criminal Procedure – Annex 3). In this case, on October 2^nd 1993, the judge for preliminary investigations issued a pre-trial custody warrant against Mariotti. Mariotti was nowhere to be found and, the same day, a report of vain search was issued … Following the above mentioned procedure, Mariotti was summoned to appear as an absconder."

An attached chronology states:

"2.10.93: Following the drawing up of a report of unsuccessful searches, Mariotti was declared unlawfully at large (latitante) …

28.7.2000: A report of unsuccessful searches in respect of Mariotti was issued, and Mariotti remained unlawfully at large (latitante)."

There is a further advice which refers to the considered documents as

"Conclusive evidence that Mariotti voluntarily became unlawfully at large and as such was absent at his trial."

31. In our judgment, these documents establish that at the material time the applicant was and is unlawfully at large. The gap that was identified in Urru is filled in the present case.
32. A final point is taken on behalf of the applicant by reference to section 2 of the Extradition Act 1989 which provides as follows:

"2(1) In this Act … "extradition crime" means –

a) conduct in the territory of a foreign state … which, if it occurred in the United Kingdom, would constitute an offence … "

33. Thus, for a proper committal on the charge of murder, the conduct alleged in Italy, were it to occur in England, must constitute the substantive offence of murder in English law. It is therefore necessary to identify the conduct which the court found proved in convicting the applicant of murder. It is clear from the wording of the section that a court considering extradition under section 2 is not concerned with any question of foreign law, but solely with the conduct which forms the basis of the conviction. To identify that conduct it is necessary to look at the findings which the Court of Appeal in Rome made on 28 January 2000 when the applicant was convicted of murder. The Court said this:

"… The requirements to the applicability of Article 116 of the Criminal Code are:

(a) the adhesion of all the co-defendants to an offence wished in complicity;

(b) the execution of a fact and more serious of the one wished (and that is an autonomous offence) caused only by one of the participants;

(c) a relation of material causality between the two offences;

(d) a connection of psychical causality between the behaviour of the accomplice who only wished the less serious offence previously agreed and the different and more serious fact wished and caused by the co-defendant. Essentially the most serious offence should represent itself to the psyche of the acting subject in its essential elements as a logically and normally foreseeable development of the wished offence and should not present itself as an exceptional and atypic event, occurred because of independent and unpredictable circumstances and that cannot at all be linked with the criminal offence originally agreed.

It mentioned, in particular, that as regards a kidnapping that is followed by the murder of the victim, it was repeatedly affirmed that the provision of Article 116 … may be applied to the person who, though he did not directly cause the conditions by which the death of the hostage occurred, planned and effected together with the other participants in the offence of the kidnapping, because the death of the hostage is not an exceptional and atypic event, occurred because of unpredictable circumstances that cannot at all be linked with the kidnapping …

… as the death of the hostage constitutes one of the alternatives considered and contemplated of the criminal operation and it can happen for several reasons among which the non-payment of the ransom, the violences suffered by the hostage through the action of some of one of the accomplices during the kidnapping or the identification of one of his warders …

It is easily understood that all the defendants belonging to the group … must necessarily answer also of the offence of murder as per Article 116 … , according to the principle affirmed by the Supreme Court of Cassation, with consequent modification of the judgment of the Court of Assizes with regards to this point."

34. Later in its conclusions, the Court said:

"Not only did said defendant, who was a friend of the family of the hostage and who took flight as soon as he could, betray the trust that the son of the Duke had in him, but – as it can clearly be deduced from the same deposition rendered by the latter and from all the proceedings' papers – that he had a determining role in the execution of the offence, as he provided all the useful information about the movements of the family and the extent of the assets of the hostage."

35. Mr Lewis submits that it is necessary in order to identify the conduct found to be proved by the court which convicted the applicant of murder to look at the earlier hearings where he was acquitted of murder, on the basis that the later hearings simply re-interpreted the facts found earlier. He submits on that basis that the conduct found proved goes no further than showing involvement in kidnapping. Mr Jones resists that submission, asserting that within the principles laid down by the House of Lords in R v Powell and English [1999] 1AC 1 a party to a kidnap who contemplates that the victim may be murdered by others would be guilty of murder in England. Lord Hutton, in a speech with which their lordships agreed, reviewed a long line of authority and concluded (at p.27d):

"Therefore for the reasons which I have given I would answer the certified question … by stating that … it is sufficient to found a conviction for murder for a secondary party to have realised that in the course of the joint enterprise the primary party might kill with intent to do so or with intent to cause grievous bodily harm."

36. In our judgment, approaching the matter on the basis of the principle laid down in Powell and English, the conduct found by the Italian court would sufficiently describe the offence of murder in English law and establishes an "extradition crime" within section 2 of the Act.

Conclusion

37. It follows from what we have said that, notwithstanding the persuasive way in which they were advanced, the points made on behalf of the applicant are not correct. We would dismiss the application.