England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT

		Royal Courts of Justice Strand London WC2
		4 October 2006

1. LORD JUSTICE AULD: This is an appeal by Raimondo Virciglio from the order of District Judge Workman on 24 August 2006 in the Westminster Magistrates' Court, ordering his extradition to Austria, a Part 1 territory as designated in the Extradition Act 2003 ("the 2003 Act"). Austria sought his extradition in the proceedings giving rise to the order in the following circumstances found by District Judge Workman.
2. On 27 October 2004, the appellant appeared before the Graz Criminal High Court of first instance in Austria on two charges of fraud. The court convicted him on his pleas of guilty and sentenced him on the same occasion to 24 months' imprisonment, to be served as to eight months, and as to the balance, to be conditionally satisfied by a period of three years' probation. The appellant, taking into account a period in custody spent on remand, served the equivalent of the eight months immediate custodial sentence.
3. On 28 February 2005 on his release from prison, or shortly after it, the Graz Federal Police Authority issued a decree in accordance with Article 39(1) of its Immigration Law requiring the appellant to leave Austria and not to return for a period of ten years, a residence ban imposed because the authorities regarded him as a danger to public order and economic welfare of the country. The scheme of that ban, as expressed in it and by the legislation under which it was made, was that, in the event of his return to Austria within the period of ten years without a permit from the authorities to do so, he would commit an infraction of the order and be liable to a relatively modest financial penalty and a period of detention of up to 14 days.
4. In compliance with that decree the appellant left Austria in March 2005 and came to this country. On his account on affidavit and in oral evidence before District Judge Workman, the learned in England, as a result of a notification from the Graz Regional High Court and a telephone conversation with his Austrian attorney, Dr Ruhri, that he had been summoned to attend on 8 June 2005 a hearing in that court of an appeal by the prosecutor against the leniency of the sentence imposed by the first instance court. He told Dr Ruhri over the telephone that he could not attend because he had no travel documents. On his account, Dr Ruhri told him that he did not need to attend.
5. Dr Ruhri's account, in a letter to the appellant's solicitors, was similar but different in some important respects. He stated that he had advised the appellant to attend the appeal hearing, and that if he attended voluntarily, there would be no danger of the Austrian authorities arresting him. He also stated that the appellant had instructed him to attend the appeal hearing and to represent his interests at it. On either version, it is plain that the appellant decided that he could not or would not attend the hearing for reasons connected with his travel documents, or lack of them, and District Judge Workman was so to find.
6. The Graz Regional High Court duly sat on 8 June 2005 to hear the prosecutor's appeal against the sentence imposed by the first instance court. It did so in the absence of the appellant but in the presence of Dr Ruhri who, true to his account, did so on the appellant's instructions to represent his interests. The appeal court proceeded on the basis of the information about the offences and the appellant's character that had been put before the first instance court, and the hearing was in the form of a review, not a re-hearing.
7. The outcome of the review was an increase by the appeal court of the sentence to one of three years' imprisonment. The appellant, on learning of the more severe sentence and on being requested to return to Austria to serve it, did not do so. He considered that he had served the sentence imposed on him by the first instance court in his presence. And, in a subsequent rationalisation, expressed the view that the ten-year residence ban imposed on him by the Graz Federal Police Authority forbade his return to Austria even to satisfy its court's order that he should do so.
8. On 7 February 2006, the Austrian authorities issued a European Arrest Warrant, by which they requested his arrest in this country for the purpose of executing in Austria the increased sentence. The warrant stated that he had been present at what it called the "main trial and for sentencing", but alleged that had he deliberately absented himself from the sentence appeal by the prosecutor, recording also that it had been attended by his attorney, who on his instructions had conducted and responded to the appeal on his behalf.
9. When the matter came before District Judge Workman in August 2006, he had before him the warrant and supporting documentation, setting out the facts as I have summarised them. He also had the letter from Dr Ruhri, to which I have referred, and an affidavit and oral evidence from the appellant. In the appellant's affidavit, he confirmed his attendance at and conviction and sentence imposed on him in his presence by the first instance court, and the ten-year residence ban. He maintained that, on receipt of a document in German from the higher court in Austria, he had spoken to Dr Ruhri, who had told him it was a summons to return to Austria for the appeal hearing. He deposed that he had told Dr Ruhri that, for want of travel documents, he could not come, and that Dr Ruhri had told him that he did not need to. The appellant expressly denied that he had instructed Dr Ruhri to represent him at the appeal hearing.
10. In the proceedings before District Judge Workman, the appellant took a number of points -- the main one turned on the application of sections 20 and 21 of the 2003 Act:

"20 Case where person has been convicted

(1) If the judge is required to proceed under this section (by virtue of section 11) he must decide whether the person was convicted in his presence.

(2) If the judge decides the question in subsection (1) in the affirmative he must proceed under section 21.

(3) If the judge decides that question in the negative he must decide whether the person deliberately absented himself from his trial.

(4) If the judge decides the question in subsection (3) in the affirmative he must proceed under section 21.

(5) If the judge decides that question in the negative he must decide whether the person would be entitled to a retrial or (on appeal) to a review amounting to a retrial.

(6) If the judge decides the question in subsection (5) in the affirmative he must proceed under section 21.

(7) If the judge decides that question in the negative he must order the person's discharge.

(8) The judge must not decide the question in subsection (5) in the affirmative unless, in any proceedings that it is alleged would constitute a retrial or a review amounting to a retrial, the person would have these rights-

(a) the right to defend himself in person or through legal assistance of his own choosing or, if he had not sufficient means to pay for legal assistance, to be given it free when the interests of justice so required;

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

21 Human rights

(1) If the judge is required to proceed under this section (by virtue of section 11 or 20) he must decide whether the person's extradition would be compatible with the Convention rights within the meaning of the Human Rights Act 1998 (c. 42).

(2) If the judge decides the question in subsection (1) in the negative he must order the person's discharge.

(3) If the judge decides that question in the affirmative he must order the person to be extradited to the category 1 territory in which the warrant was issued.

(4) If the judge makes an order under subsection (3) he must remand the person in custody or on bail to wait for his extradition to the category 1 territory.

(5) If the judge remands the person in custody he may later grant bail."

11. In summary, the appellant maintained that the appeal hearing as to sentence was part of the main hearing or was a hearing in its own right constituting part of the conviction process and was conducted in his absence, that his absence was not deliberate, and that District Judge Workman should consider whether he would be entitled to a retrial, and if so, whether extradition would be compatible with the European Convention on Human Rights, or if not entitled to a retrial, that District Judge Workman should order his discharge.
12. The district judge rejected all of those contentions. He found first, for the purposes of section 20(1), that the appellant had been convicted in his presence, that is before the first instance court which convicted him on his plea of guilty. This is how he put it in paragraph 12 of his ruling:

"I am satisfied from the European Arrest Warrant itself that the defendant was present at his trial and for sentencing in the Court of first instance. It was that Court at which any trial would have taken place and it was that Court which recorded the conviction upon the defendant's plea of guilty. I am satisfied that the defendant was convicted in his presence."

13. That finding required the district judge, pursuant to section 21 of the 2003 Act, to consider whether, in any event, extradition would be compatible with the European Convention on Human Rights. He found, secondly, that, if contrary to his first finding, the sentence appeal had to be considered as part of the conviction hearing for the purpose of section 20(1), the appellant had been notified of the hearing and that he had deliberately decided not to attend it. This is how he put that in paragraph 14 of his judgment:

"I am satisfied that the defendant was aware of the appeal hearing and in the absence of any evidence to show that he had taken any steps to attend, I am satisfied that he had made a conscious decision not to attend. Indeed he told me in evidence that he made the decision not to go back. He deliberately absented himself from the appeal."

14. It would have followed from that finding and if the district judge had had to rely upon it, that again he should consider under section 21 of the 2003 Act whether extradition would be ECHR compatible. I should interpolate here the comment that, if contrary to that finding, he should have found that the appellant had not deliberately absented himself from the appeal hearing, it was common ground that he would not have been entitled to a retrial, or on appeal, to a review amounting to a retrial, pursuant to section 20(5), and he would have been required, under section 20(7), to order the appellant's discharge.
15. It followed from the district judge's primary finding under section 20(1) that the appellant had been convicted in his presence, or, from his alternative finding under section 20(4), that he had deliberately absented himself from the appeal hearing, that the district judge had still to consider under section 21 whether extradition would be Convention compatible. He did that, considering in particular whether it would violate the appellant's Article 8 rights to respect for his private and family life. He held that it would not, holding by reference to the test propounded By Laws LJ in Bermingham and Others [2006] EWHC 200 (Admin) that this was not a wholly exceptional case such as to render extradition disproportionate.
16. The thrust of the appeal advanced on the appellant's behalf by Mr David Trovato turned on the tension between the request by the Austrian court authorities for assistance to this country in obtaining the extradition of the appellant to Austria to serve the increased sentence imposed, and the ten-year ban on his residence in that country imposed by the Federal Police Authority in Austria, or at least the tension suggested and which was at the heart of Mr Trovato's various submissions in support of the appeal. I have numbered them as four.
17. The first was that the district judge wrongly found that the appellant was "convicted in his presence", pursuant to section 20(1) of the Act. The second was that the district judge wrongly found that the appellant had "deliberately absented himself from his trial", pursuant to section 20(3). The third was that, in either case, the district judge should have concluded that extradition would violate the appellant's Convention rights in that it would render him subject to the penalty for breaching the ten-year no residence ban if he had returned for the purpose of the appeal, thereby violating his Article 5 right under the Convention not to be arbitrarily detained or to disproportionate punishment. His fourth submission, associated with the last, was an argument as to speciality, namely that, since the very act of extradition would cause the appellant to breach that residence ban and subject him to a penalty for doing so, the court could not be satisfied that Austria would comply with its obligations under the Speciality Rule in section 17 of the 2003 Act, to which I shall return.
18. I deal now with each one of those submissions in a little more detail.
19. The first is whether the appellant "was convicted in his presence" pursuant to section 20(1). It is plain that the conviction and sentence hearing before the first instance court was a proceeding at which he was convicted within the meaning of that provision. But the question posed by Mr Trovato, as I have indicated, was whether the sentence appeal before the higher court was also a "conviction" within the meaning of that provision. He referred to a passage in the Austrian warrant itself, reading: "The named subject was convicted in absentia" as an indication that the Austrian court itself considered the appeal process as a conviction. But, in my view, such a reference is of no help to an English court in considering whether the appeal trial process indicated in the Austrian documents should constitute a "conviction" as that word is used in section 20(1) of the 2003 Act.
20. In any event, the Austrian court made clear, in supplementary information provided on 12 April 2006, the respective natures of the two proceedings, and that the appellant was only present at the first. But perhaps more importantly, the Austrian criminal trial process and its language may not make the same clear distinction as is made in English statutes so as to separate the form of criminal disposal between conviction and sentence. In other words, the word "trial" may embrace both procedural notions in Austria for determination of guilt, that is to say conviction and also determination of sentence. The references to "trial" in the Regional High Court of Graz's judgment on the sentence appeal do not assist on that, nor does the word "trial" in other contexts in the 2003 Act, in particular section 85(3), or as to it constituting a specific event for that purpose as held by this court in Government of Albania v Bleta and Another [2005] 1 WLR 3576 assist.
21. There is no help to be gained by the further case cited by Mr Trovato: Deputy Public Prosecutor of the Court of Appeal of Montpellier v Wade [2006] EWHC 1909 (Admin). In that case, the appeal process in France under consideration was a re-hearing on the issue of guilt with, as it happens, also fresh evidence.
22. I have considered whether the words "conviction" in section 20(1) and "trial" in section 20(3) are interchangeable for this purpose. It may not matter, however, as Ms Rosefield on behalf of the respondent observed, as the second hearing in this case (the one in the appellant's absence) was neither a trial nor a conviction, but an appeal by way of review, not re-hearing.
23. So it follows from the analysis I have attempted of the provision and the submissions made on both sides, that the appellant's primary case, that, because he was not present at the appeal hearing, he was convicted in his absence within the meaning of section 20(4), cannot succeed. The question of sentence which arose on the second hearing was purely by way of appeal by way of review, not by way of retrial, and could not be satisfied by application to it of the word "conviction" as used in section 20(1).
24. It is no longer necessary in the light of my conclusions on the first ground to deal with Mr Trovato's second, alternative argument that the appellant did not deliberately absent himself from the appeal hearing ("trial"). However, in fairness to the submissions made on both sides and properly to reflect what happened in the case, I shall do so briefly.
25. Mr Trovato's submission was that, whatever the appellant's state of mind or understanding of the legal position in Austria as to his entitlement to return for the appellate hearing, the fact was that his residence ban prevented it, or at any rate the Austrian authorities had not discharged the onus of proving that it did not. He dismissed as mere assertion the Austrian legal position, indicated in a letter from an Austrian judge -- who incidentally was the signatory to the warrant -- that he could have returned with impunity in response to the court summons.
26. There is no doubt that, on its terms, the ban prohibited his return and prescribed penalties for its breach, as I have said. It is also apparent that the decree itself said nothing of the ban being capable of relaxation by the Austrian authorities for certain purposes. However, the statutory instrument empowering the police to impose such a ban -- Article 41 of the Federal Law Concerning the Entry, Residence and Settlement of Aliens (the 1997 Aliens Act) -- empowered the grant of a permit to a banned person to return for, among other reasons, a public purpose, if such relaxation was sought. Article 107 of that Instrument established an administrative infraction of it only in the event of return without permission.
27. It is plain from these very extradition proceedings that far from refusing permission if sought, the Austrian authorities would have granted it with alacrity if thought necessary. It is fanciful even to contemplate the possibility that the Austrian authorities would have sought to enforce the residence ban, or subjected him to penalties for breach of it, if and when he returned to Austria in response to the Graz Regional High Court summons to him to attend the appeal hearing.
28. Moreover, and perhaps more importantly, as Ms Rosefield has emphasised, the evidence before the district judge, and on which he based his finding under this head that the appellant deliberately absented himself from the appeal hearing, was all one way. As I have indicated, the appellant's reason for not returning was not the fear of the residence ban. It does not even seem to have been present in his mind at the time. His reason, on his account at the time, and on Dr Ruhri's account of the telephone conversation, was simply absence of travel documents. If he had had any concern at the time as to the effect of the residence ban if he returned in obedience to the summons, he could have enquired. If he had enquired, he would inevitably have been told what was blindingly obvious, that not only was he permitted to return, the Austrian authorities positively required him to do so. In my view, the district judge's finding under this head was amply justified if it had been necessary for the purpose of disposal of the application before him.
29. The third and fourth submissions of Mr Trovato really turn on the issues that I have just dealt with on the second ground of appeal. The third ground was, as I have said, to require him to return would cause him vulnerability under Article 5 of the European Convention on Human Rights in that it would cause him to breach his residence ban and thereby render him liable to punishment for breach of that ban.
30. The answers to that suggestion are: first, the district judge was entitled to rely on Austria's categorical statement through the communication from the Austrian judge responsible for the warrant, that the residence ban imposed on him did not prohibit his return to Austria to serve the remainder of his sentence; and secondly, that there is no evidence that the Austrian authorities would breach any of its international obligations, and that it was fanciful to consider that they would take steps to penalise him for returning in response to their request for him to do so. There is clearly nothing in that ground.
31. The same applies to the speciality complaint which is the subject of the fourth ground. I have referred to section 17, which provides as follows:

"17 Speciality

(1) A person's extradition to a category 1 territory is barred by reason of speciality if (and only if) there are no speciality arrangements with the category 1 territory.

(2) There are speciality arrangements with a category 1 territory if, under the law of that territory or arrangements made between it and the United Kingdom, a person who is extradited to the territory from the United Kingdom may be dealt with in the territory for an offence committed before his extradition only if-

(a) the offence is one falling within subsection (3), or

(b) the condition in subsection (4) is satisfied.

(3) The offences are-

(a) the offence in respect of which the person is extradited;

(b) an extradition offence disclosed by the same facts as that offence;

...

(d) an offence which is not punishable with imprisonment or another form of detention."

32. The concern expressed by Mr Trovato is that the appellant would be at risk of being brought to judgment and penalised in respect of a matter that was not the subject of the extradition offence identified in the warrant; namely a breach of the residence ban. The trouble with that submission, as can be seen from section 17(2), is that relates only to an offence committed before the extradition. Here, the breach of the residence ban could, as a matter of commonsense, only occur after he had been extradited in response to the request of the Austrian authorities. So the speciality provision is simply irrelevant; it does not have any effect in the circumstances of this case.
33. For all those reasons, I would dismiss this appeal from the order of District Judge Workman for the extradition of the appellant to Austria.
34. MR JUSTICE WILKIE: I agree. I too would dismiss the appeal for the reasons given by my Lord, Auld LJ.
35. LORD JUSTICE AULD: Are there any consequential applications?
36. MS ROSEFIELD: No, my Lord.
37. MR TROVATO: No, my Lord.
38. LORD JUSTICE AULD: Thank you both for your assistance.