England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		20/06/2007

Lord Justice Laws :

INTRODUCTION

1. These are statutory appeal proceedings brought under ss.26 and 103 of the Extradition Act 2003 ("the 2003 Act") against decisions of District Judge Evans given in the City of Westminster Magistrates Court on 7 September 2006, by which he sent certain matters to the Secretary of State for the latter to decide whether the appellant should be extradited to Italy and in relation to others made orders for his extradition to Italy. I shall explain the various matters in due course. The appellant is Tiberio Francesco La Torre ("La Torre"). He is said to belong to the "La Torre Clan", a Mafia/Camorra Association, which over a period of many years has been responsible for very serious criminal offences including murder, blackmail and extortion. La Torre arrived in the United Kingdom from Italy on 2 February 1996. Following a request for his extradition to Italy he was arrested in this country on 14 July 1999 and has been in custody here ever since.
2. The Italian authorities have made five requests for La Torre's extradition from the United Kingdom. I shall refer to them as LT1 through to LT5. These appeal proceedings directly concern only LT2, LT4 and LT5. In order to explain the passage of events relating to these requests it is helpful at the outset to identify two categories of case in which a person's extradition may be sought. These are what are called "accusation" charges and what are called "conviction" charges. The former arise where the proposed extraditee is wanted for trial in the State requesting extradition. The latter arise where the proposed extraditee has already been convicted in the requesting State but has escaped part or all of the punishment imposed and fled to the requested State: he is wanted not for trial, but to serve his sentence.

THE 2003 ACT AND THE GROUNDS OF APPEAL

3. The 2003 Act created a new extradition regime. Part I, which has its genesis in the Council Framework Decision of 2002 on the European Arrest Warrant ("EAW"), contains provisions dealing with extradition from the United Kingdom to what are called "category 1" territories, so designated by the Secretary of State. These are in effect the European Union countries which operate the EAW. Part II deals with "category 2" territories. These also are designated by order of the Secretary of State, but are countries which do not operate the EAW. European Union States not operating the EAW were so designated, but effectively transferred to Part I upon their adoption of the EAW system. Thus as we shall see LT2 was issued under Part II, as it related to a period before Italy adopted the EAW. LT4 and LT5 were issued under Part I. However the difference is not significant for the determination of these appeals: save in one respect, the relevant measures in Part I and Part II effectively mirror each other. The area in which they do not concerns the provisions respectively contained in Parts I and II which confer this court's functions in the conduct of statutory appeals. For reasons which I shall explain that difference appeared to be of some significance at one stage in the case, but in the result is not so.
4. Given the scope of the issues in these appeals I need cite little of the text of the 2003 Act. Six grounds of appeal were originally put forward. The first has been abandoned. In due course I shall say a little about the circumstances in which it was advanced. Grounds 2 and 3 assert that the district judge should have held that the passage of time gave rise to a bar to extradition in relation to all three requests LT2, LT4 and LT5. That engages ss.11 and 14 (Part I – for LT4 and LT5), and 82 (Part II – for LT2) of the 2003 Act. Grounds 4 and 5 assert that the district judge should have held that the appellant's extradition on any or all of LT2, LT4 and LT5 would violate his Convention rights, that is of course his rights guaranteed by the European Convention on Human Rights ("ECHR"). That engages ss.21 (Part I) and 87 (Part II). Ground 6 asserts that the district judge should have held that ss.25 (Part I) and 91 (Part II) applied to the case so as to entitle the appellant to be discharged.
5. I turn then to the statutory provisions. Within Part I, s.11 provides that if the judge concludes that any one or more of certain specified "bars to extradition" applies, he must order the person's discharge. S.14 provides:

"A person's extradition to a category 1 territory is barred by reason of the passage of time if (and only if) it appears that it would be unjust or oppressive to extradite him by reason of the passage of time since he is alleged to have committed the extradition offence or since he is alleged to have become unlawfully at large (as the case may be)."

In Part II s.79 is the analogue of s.11 and s.82 is in effectively identical terms to s.14. I should next cite s.21:

"(1) If the judge is required to proceed under this section... [not disputed in this case, subject to the Ground 2/3 argument on passage of time] he must decide whether the person's extradition would be compatible with the Convention rights within the meaning of the Human Rights Act 1998.

(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.

..."

S.87 is in effectively identical terms. S.25:

"(1) This section applies if at any time in the extradition hearing it appears to the judge that the condition in subsection (2) is satisfied.

(2) The condition is that the physical or mental condition of the person in respect of whom the Part 1 warrant is issued is such that it would be unjust or oppressive to extradite him.

(3) The judge must -

(a) order the person's discharge, or

(b) adjourn the extradition hearing until it appears to him that the condition in subsection (2) is no longer satisfied."

S.91 is in identical terms.

6. I need not cite the Human Rights Act, nor any other statutory materials save for an important Italian legislative measure which is at the core of Grounds 4 and 5. It will make for clarity if I refer to it when I come to that part of the argument.

OUTLINE FACTS

7. It will be convenient to describe some matters of fact in the context of particular grounds of appeal, but I should at this stage give a general outline account.
8. The first extradition request in this case, LT1, was issued by the Italian authorities in 1999 (so that the Extradition Act 1989, and not the 2003 Act, governed the ensuing process). That led to La Torre's arrest in the United Kingdom, as I have said on 14 July 1999. The request concerned a number both of accusation and of conviction charges. On 18 February 2003 the Office of the State Prosecutor General at the Court of Appeal in Naples wrote to the United Kingdom authorities stating that further extradition requests were likely to be made in respect of La Torre which however would be "included later in an additional request for extradition".
9. The second extradition request, LT2, was sealed by the Italian Ministry of Justice on 30 August 2004 and submitted to the Secretary of State. It was as I have said subject to the provisions of Part II of the 2003 Act. It referred to 13 accusation and 3 conviction charges.
10. On 25 October 2004 La Torre was acquitted, in his absence, of all the accusation charges contained in LT1. There has been a dispute, which was relevant to the first ground of appeal to this court, as to the time in custody which La Torre was required to serve in respect of the conviction charges in LT1. It is unnecessary to deal with this at any length since as I have foreshadowed Mr Fitzgerald QC for La Torre informed us when opening his case on 13 March 2007 that this first ground was no longer pursued. Purely for completeness I should say that La Torre's advisers were contending that he was entitled to be released from custody on 17 October 2004, because by that date he would have served the sentences passed in Italy in respect of the conviction charges (taking time served in prison in the United Kingdom into account). The Italian authorities were by contrast contending that the proper date was a year later, 17 October 2005. On 7 March 2005 La Torre lodged applications in the High Court for judicial review and habeas corpus. At length on 26 October 2005 a consent order was made in those proceedings whose effect was that the Secretary of State would not order La Torre's return on LT1 because by that date he had in any event served the sentence or sentences attributable to the conviction offences included in that request, whoever was right about the period's correct calculation. So it was that any issues arising on LT1 fell away. This history (and other details which I need not recite) was relevant because La Torre was contending (as the District Judge put it at paragraph 7 of his judgment) "that the Italians knew perfectly well that he could not be held beyond 17 October 2004 and they deliberately put up as a bogus explanation the extra year in order to win time for Secretary of State to consider LT2". Thus it was said that it was an abuse of the process to pursue LT2. However any such contention has been abandoned so that none of this need detain us any further.
11. As I have said, LT2 contained 13 accusation charges and 3 conviction charges. The three convictions were recorded in La Torre's absence, at a time when he was in custody here in England. It appears that La Torre would not be entitled to a retrial or a review on appeal in Italy, and it was not shown that, knowing of the trial in Italy, he determined not to be there. In those circumstances on 7 September 2006 the District Judge ordered his discharge in respect of those charges pursuant to s.85 of the 2003 Act (which I need not set out).
12. Of the thirteen accusation charges in LT2, charges 1 – 12 are allegations of perverting the course of justice, blackmail and forgery. Charge 13 is an allegation of murder. In light of appeal Grounds 2 and 3 it is necessary to look at the chronology. The offences comprising charges 1 – 12 were allegedly committed between 1995 and 1999. The evidence against La Torre on these charges effectively consists in the fruits of telephone intercepts. The murder alleged in charge 13, of a man called Farky Mahmoud, was said to have taken place on 9 February 1990. The evidence in support of it against La Torre is proposed to be given by "supergrass" witnesses, known as "pentiti". In relation to charges 1 – 2 (both offences of blackmail) orders for La Torre's arrest had been made on 11 April 1997 and (as the District Judge was to accept – paragraph 13 of his judgment) the delay from that date until the effective commencement of LT2 on 30 August 2004 was "wholly unexplained". The offences charged at nos. 3 – 12 were said to have taken place variously between October 1998 and February 1999, and La Torre's arrest on all of them was ordered on 2 January 2003. In relation to these charges, the Italian authorities claimed that no extradition was sought until LT2 was launched because of the complexity of the case, which involved complaints from no less than 74 individuals.
13. LT3, issued pursuant to Part I of the 2003 Act, contained three accusation charges. It is however unnecessary to enter into any of the details, because District Judge Evans ordered La Torre's discharge in relation to those charges pursuant to ss.11(3) and 14 of the 2003 Act, concluding that it would be unjust or oppressive to extradite La Torre in relation to them by reason of the passage of time.
14. LT4 and LT5 were as I have said also subject to Part 1 of the 2003 Act, having arisen out of EAWs issued against the appellant. They raise two accusation charges of murder. LT4 concerns an allegation that La Torre was involved on 9 January 1991 in the murder of two men, Vincenzo Boccolato and Antonio Nugnes. LT5 concerns an allegation that he was involved on 1 August 1990 in the murder of another two, Alberto Benoduce and Armando Miraglia. LT4 also contains an allegation of possessing firearms. EAWs were issued in respect of LT4 and LT5 respectively on 20 December 2005 and 16 November 2005. La Torre was arrested on 21 February 2006 in pursuance of those EAWs and taken before a District Judge pursuant to Part 1 of the 2003 Act on the same day. The evidence against La Torre on these allegations again crucially consists in the testimony of supergrass witnesses – pentiti. The Italian authorities were to say that the relevant witnesses did not give statements implicating La Torre until 2003.
15. There are some other background facts which I should summarise. La Torre was detained in Italy from 1991 to 1996. During this period he was subject to a regime, referred to in the papers as the Article 41 bis regime after the law under which it was established. Article 41 bis is a provision of the Italian Prison Code, and is the important Italian legislative measure to which I have already referred in passing. It is said that the Article 41 bis regime is very harsh. La Torre gave evidence before the District Judge, and had made a witness statement, describing ill treatment suffered by him when he was detained under it in the 1990s. He claims that if he were returned to Italy pursuant to any of the outstanding extradition requests, he would be liable to be detained under the regime again; and his Convention rights, arising notably (and I think in effect exclusively) under Article 3, would be violated. This is the principal basis of ground 4 of the grounds of appeal. Ground 5 concerns what is said to be an assurance given by the Office of the State Prosecutor at Naples on 15 July 2006 upon which the respondent government relies as showing, in truth, that La Torre would not be subjected to Article 41 bis if he were returned.

APPEAL GROUNDS 4 AND 5

16. Those facts last described may serve as an introduction to Grounds 4 and 5, which I find it convenient to deal with first. The respondents by Mr Garlick QC do not accept that subjection to Article 41 bis would as a matter of fact violate La Torre's Convention Rights. However the district judge did not find it necessary to decide that question, since in his view it did not arise: the court could be confident that the regime would not be applied to La Torre, because of the assurance that had been given. Here is paragraph 21 of his judgment:

"The overwhelming impression one gets from this material [which included the oral testimony of La Torre and also that of a sociologist by name of Dr Torrente] is that the operation of the Art. 41 bis regime has, in the past, resulted in 'mistreatment' of prisoners. The consistency of complaints, the number of independent enquiries and the failure of the Italian authorities properly to investigate the allegations all give cause for concern. The Art. 41 bis prison regime has been in existence for many years and has been modified over time. The most recent modification brought to my attention was law 279/2002 which substantially reduced the harshness of the regime that had operated when LT had been subjected to it. The Italian authorities are well aware of the regime's condemnation in the eyes of many organisations. The amendments to Art. 41 bis and other changes suggest a recognition that things needed to change. No one in my position could be expected to make findings of fact in respect of any particular incident. I am unsure whether LT suffered as he claims. I cannot rule out that what he says may be correct, but equally, he may be a manipulative prisoner sufficiently astute to put forward false allegations in an attempt to escape extradition. I do not find the so-called 'corroborative material' helpful. However it is unnecessary that I make a determination of what happened in the past. What I need to do is to determine whether there is a real risk that LT, if returned, will have his Article 3 rights violated. I have received assurances that LT will not be subject to Art. 41 bis. This is not a promise not to apply the normal laws of Italy. Indeed it is, on the contrary, the correct application of Italian law which requires the Minister to consult with the maker of the assurance. LT says the assurances are worthless. Professor Iorio [a legal expert who prepared a report on La Torre's behalf which was put before the district judge, and who as I shall show gave evidence on the appeal in this court] says the assurance will not bind the Minister. Perhaps as a matter of law that is correct. However, the Minister is obliged to consult the prosecutor and the anti-Mafia National Office and both do not seek Art. 41 bis detention and accordingly it would be perverse and unreasonable for the Minister to insist upon it. The assurances are sufficient to satisfy me that LT will not be subjected to Art.41 bis and there is no other basis to fear a violation of Article 3 ECHR. I see no reason to assume the Minister will behave in some unreasonable and irrational manner. The burden is on LT to establish that he will be at a real risk of ill-treatment of the requisite degree of severity in Italy. He has failed to do so."

17. In this court Mr Fitzgerald mounted a substantial challenge to the reliability, or more accurately the efficacy, of the assurance on which the respondent government relied. I shall come to the documentation in due course. He submitted that the assurance did not bind the Minister of Justice who was the decision-maker as regards the application or otherwise of the regime. The document before the district judge was simply an internal memo from a deputy prosecutor to his superior. Mr Fitzgerald called Professor Iorio, who is an advocate and Professor of Criminal Procedure at Rome (and to whom as I have said the district judge referred), to give oral testimony supporting the view not merely that the Minister would not be (or feel) bound by the assurance but that the overwhelming likelihood (my words) was that the appellant on being returned would in fact be placed under the Article 41 bis regime.

Procedure

18. After this evidence had been given, and we had heard counsel's submissions, we were provisionally inclined to the view that the assurance indeed could not be relied on. This created a substantial difficulty in view of the course taken by the district judge. If there were a real risk that the appellant might be exposed to the Article 41 bis regime upon his return, it would be the court's duty to consider and decide whether in that case, to use the language of s.21(1) of the 2003 Act, "the [appellant's] extradition would be compatible with the Convention rights". But as paragraph 21 of his judgment shows, the district judge had made no findings on that question because, of course, he had concluded there would be no such risk having regard to the assurance. Now, whether or not on his return the appellant's exposure to Article 41 bis in an Italian gaol would or might constitute a violation of his Article 3 rights by the United Kingdom was a hotly disputed issue. As I have indicated such a proposition was certainly not accepted by the Italian authorities. The question could only be resolved by evidence, including live evidence. What then should this court do? Appeals under ss.26 and 103 may be brought on grounds of fact or law and it is beyond doubt that the court has power to receive oral evidence. But that would be an unusual and in some respects highly inconvenient course. On the face of it the most satisfactory way forward seemed to be to send the case back to the district judge for him to make further findings. However it was very doubtful whether, in the events which had happened, this court's powers on appeal (ss.27 and 104) allowed that course to be taken. S.27 (Part I) empowers the court only to allow or dismiss the appeal (and to allow it only in specified circumstances). S.104 (Part II) by contrast empowers the court to allow or dismiss the appeal, or to "direct the judge to decide again a question (or questions) which he decided at the extradition hearing" (s.104 (1)(b)).
19. In the result on 14 March 2007, the second day of the hearing, we adjourned the case so that the Secretary of State might attend by counsel on a later occasion when we would hear further submissions as to the court's powers, including the possibility of constituting a judicial review as an appropriate vehicle by which to send the case back to the district judge (but that course would have posed very great difficulty having regard to the ouster provisions contained in ss.34 and 116).
20. However as matters transpired we were relieved of the necessity to decide these issues as to the scope of the court's powers and the procedures it might adopt (they may well arise in another case), and also whether as a matter of fact the appellant might if returned suffer a violation of ECHR Article 3, because when the case was restored for hearing on 30 March 2007 fresh evidence was available which persuaded us that the appellant would not in fact be exposed to the Article 41 bis regime upon his return. That conclusion disposes of Grounds 4 and 5 against the appellant. I now give my reasons for arriving at it.

Substance

21. By Ground 4 the appellant mounted a detailed assault on the nature and quality of the Article 41 bis regime, amassing a good deal of material to support the overall conclusion that it "operates with the intention of effectively 'breaking' people so as to induce them to make confessions and co-operate with the authorities" (paragraph 108 of counsel's skeleton argument dated 14 December 2006). Reference was made to the appellant's evidence of his previous detention between 1991 and 1996, numerous reports, complaints before the European Court of Human Rights, and to expert evidence. Oral testimony was given below by Dr Giovanni Torrente of an institution called the Antigone Association. This weight of material plainly raised substantial issues which, as I have explained, would have had to be resolved on the facts either in this court or perhaps by the district judge had we not been satisfied that the appellant would not in fact be exposed to the Article 41 bis regime upon his return. The likelihood or otherwise of his being so exposed is in terms the subject of Ground 5, and it is convenient at once to turn to that.
22. As I understand it, Article 41 bis was introduced in October 1986 and originally empowered the Minister of Justice to suspend the ordinary rules for the treatment of prisoners in situations of serious emergency. However in 1992 the Minister's power was widened to cover similar situations where there were accusations of serious organised crime. This extension was at first time-limited but has been made permanent, I think since 31 December 2002. It is clear that the imposition or otherwise of the regime is distinctly the responsibility of the Minister of Justice to decide, who must however have

"heard the office of the public prosecutor that is proceeding with the preliminary investigations or the judge who is proceeding and acquiring all the necessary information with the National Anti-Mafia Directive and the central police bodies and those that specialise in combating organised crime, terrorism and subversion, in their respective areas of jurisdiction." (text of Article 41 bis)

So the decision-maker, the Minister, owed a duty to consult the prosecutor or judge and to obtain information from specified bodies.

23. The assurance which was before the district judge was not given by the Minister. It is a document dated 14 July 2006, signed by or for the Deputy State Prosecutor at Naples and addressed to the Chief State Prosecutor. It is expressed to be a response to a "Request of July 13^th 2006 of the British Liaison Magistrate in Italy". The first paragraph reads as follows:

"We confirm definitively that this Office (Office of the State Prosecutor, Antimafia District Directorate) in Naples will NOT ask the Minister of Justice to order that [the appellant] is subject to the prison regime provided for in Article 41 bis of the Italian Penitentiary Act, in the case that he is extradited to Italy and that he will be subject to the ordinary prison regime."

24. Professor Iorio and Dr Torrente both expressed the view that the Minister would not be bound by this statement or undertaking. Indeed Professor Iorio had stated in writing (before he came to give oral evidence) that the appellant's subjection to the Article 41 bis regime was a virtual certainty. His live testimony was not altogether easy to assess: I think with respect he had some little difficulty in dealing with the question-and-answer process in English. But he maintained his earlier view, and more than once in the witness-box suggested that the appellant on his return would automatically be subjected to the regime, as a defendant charged with mafia murders. The thrust of his evidence was that such a defendant was the paradigm target for Article 41 bis. He made some reference to a right of challenge to the regime's imposition in proceedings before the Tribunale di Sorveglianza, which exercises a supervisory jurisdiction in matters relating to the penal system. From there lay a further appeal to the Court of Cassation. But Professor Iorio did not believe the court would take account of assurances apparently given to the United Kingdom extraditing court.
25. In light of this evidence, but more particularly in view of the terms of the document of 14 July 2006 itself, Mr Fitzgerald had some strong points to advance. He submitted, correctly (and as we have already stated), that the document is not an assurance coming from the Minister. It is on the face of it no more than an internal memorandum from the deputy prosecutor to his senior; though as we have made plain it is drafted as a response to an enquiry from the British Liaison Magistrate. It is only a statement of the deputy prosecutor's present intention. There is nothing from the National Anti-Mafia Directive or the police or the alternative consultee, the judge.
26. Another document was before us at the hearing on 14 March 2007. It is dated 6 March 2007, signed by or for "the Director of Ufficio II" (who is an official in the Ministry of Justice), and addressed to the British Liaison Magistrate. It refers to Professor Iorio's earlier written comment that there was "a real risk, actually a certainty" of the appellant's being exposed to Article 41 bis, and states:

"I have the honour to inform you that, according to the current practice, the actions taken by the Minister under Art. 41 bis of the prisons regulations, are requested and urged by the Prosecutor's office of the Republic, and that in this case the latter has already given a negative opinion with regard to that."

Professor Iorio's evidence was that it was not the practice for the Minister only to impose Article 41 bis when requested to do so. And I understand it to be agreed on all hands that the Minister, and no other public body, is the decision-maker empowered to apply or disapply the regime; he is not bound by the views of the prosecutor or any other consultee. In any event it is notable, as my Lord Davis J pointed out at the hearing, that the document of 6 March 2007 does not actually state what the Minister's decision on the application of Article 41 bis would be. As a matter of language, it is consistent with the Minister proceeding to apply the Article. It was Professor Iorio's evidence that the Minister could not delegate the power of decision.

27. In all these circumstances we were disposed on 14 March 2007 to conclude that there was a real risk of the appellant's being exposed on his return to Article 41 bis, and we then adjourned the appeals for the purposes we have described. At the further hearing on 30 March 2007, fresh evidence was as I have said put before us. It is described in the covering letter from the Ministry of Justice (which was sent direct to the Crown Prosecution Service in London) as a "declaration by the Minister of Justice". It is dated 29 March 2007. I assume the signature it bears is that of the Minister. Mr Fitzgerald conceded that the assurance was given by "the effective decision maker". The first and only relevant paragraph reads:

"In the light of the express declaration made by the judicial authority of Naples not to seek the application of the penitentiary regime under Article 41 bis of the Penitentiary Regulation to Francesco Tiberio La Torre, born in Mondragone (province of Caserta) on 8.10.1959, I hereby confirm that, should Mr La Torre be extradited from the United Kingdom, I will not order such measure to be enforced against him."

28. In a further skeleton argument Mr Fitzgerald advanced a number of points in response to this document. He says it may not bind the present Minister's successor, and does not state what decision might be taken if there were a perceived change in circumstances relating to the appellant. It refers, moreover, to the declaration of the judicial authority at Naples, whereas the only earlier official statement of intent was that of the Deputy State Prosecutor dated 14 July 2006. On this latter point Mr Fitzgerald sought an adjournment to consider whether further evidence might usefully be provided by Professor Iorio. We declined to adjourn the case. It seemed to us to be plain beyond the possibility of sensible argument that despite the use of the adjective "judicial" ("giudiziaria") the reference was indeed to the document of 14 July 2006. As Mr Garlick pointed out, the document of 6 March 2007 expressly demonstrates that the Ministry was aware of that assurance by the prosecutor.
29. As regards Mr Fitzgerald's other points, they seemed to us in the end to be no more than speculative; and while no doubt in a legal sense the Minister's successor would be free to disregard the assurance (indeed in a legal sense I apprehend the present Minister might do so), I would repeat what I said in another extradition case which concerned a diplomatic assurance from the Embassy of the United States:

"The starting-point... is the statement of Kennedy LJ in Serbeh v Governor of HM Prison Brixton (31 October 2002, CO/2853/2002) at paragraph 40: '[T]here is (still) a fundamental assumption that the requesting state is acting in good faith'." (Ahmad & Aswat [2006] EWHC Admin 2927 paragraph 74, cf paragraph 101)

Mr Fitzgerald however relies on certain passages from their Lordships' speeches in Armah v Government of Ghana [1968] AC 192 (which was also cited in Ahmad & Aswat). There the appellant claimed that if he were extradited to Ghana (to face corruption charges) he would be liable to be tried by process which might contravene natural justice. However the Government of Ghana by its counsel gave the Divisional Court an undertaking that he would not be subjected to such process, but would be tried in accordance with the Ghana Criminal Code 1960. In their Lordships' House Lord Reid said this (235G – 236B):

"[I]n general it appears to me to be very undesirable that a foreign government should be encouraged to offer not to apply the ordinary law of its country to one of its own subjects if he is returned to that country. There may not be the same objection to the foreign government stating that it does not intend to take certain executive action with regard to the accused person... But any undertaking or statement of intention is liable to create misunderstanding and perhaps acute difficulties in the event of a change of circumstances."

Then Lord Upjohn at 263E:

"[I]t was readily conceded that the word 'undertaking' is a misnomer; it is no more than an expression of intention. Speaking generally, and not with any special reference to the Government of Ghana, there may be a change of government who may not feel bound by the acts of their predecessor. There may be a genuine difference of opinion as to the proper interpretation of the undertakings. Finally, it might in some circumstances be the duty of a government to depart from its expressed intention in the discharge of its duty in the good governance of the country and its inhabitants as a whole."

30. These important observations must, however, be read in their context. They concerned an assurance given by counsel in court on instructions to the effect that the proposed extraditee would not be tried in accordance with the ordinary law of the land. Here the assurance is given by the Minister himself; it does not relate to the law by which the extraditee will face trial; it does not promise to disapply the ordinary law; it concerns discretionary "executive action", relating to the proposed conditions of the extraditee's detention; and it comes from a fellow Member State of the European Union which shares with this country, through the EAW, what amounts to a common European extradition regime.
31. In all these circumstances I conclude that the court is entitled to rely on the Minister's assurance of 29 March 2007. In my judgment it lays to rest the court's earlier apprehension that there existed a real risk of the appellant's being exposed on his return to the Article 41 bis regime. If my Lord agrees, as I have said that conclusion disposes of Grounds 4 and 5 against the appellant.

APPEAL GROUNDS 2 AND 3

32. These grounds concern the bar to extradition provided for by s.14 (Part I) and s.82 (Part II) based on the passage of time in relation to the accusation charges in all three requests LT2, LT4 and LT5. (As I have said, the district judge ordered La Torre's discharge in relation to LT3 on grounds of the passage of time.) Ground 2 relates to LT2 charges nos. 1 – 12 (perverting the course of justice, blackmail and forgery). Ground 3 relates to the three murders: LT2 nos. 13, and LT4 and LT5. The district judge had to decide whether it "would be unjust or oppressive to extradite him by reason of the passage of time since he is alleged to have committed the extradition offence".

The Law

33. The starting-point from which to consider these grounds is the well known passage from the speech of Lord Diplock in Kakis v Cyprus [1978] 1 WLR 779, 782:

"'Unjust' I regard as directed primarily to the risk of prejudice to the accused in the conduct of the trial itself, 'oppressive' as directed to hardship to the accused resulting from changes in his circumstances that have occurred during the period to be taken into consideration; but there is room for overlapping, and between them they would cover all cases where to return him would not be fair."

34. Mr Fitzgerald relied also on other learning, which it is convenient to consider before confronting the argument, not least given the considerable emphasis placed by Mr Fitzgerald on what he says has been inexcusable delay on the part of the Italian authorities. In Kakis itself Lord Edmund-Davies stated (785):

"[T]he fact that the requesting government is shown to have been inexcusably dilatory in taking steps to bring the fugitive to justice may serve to establish both the injustice and the oppressiveness of making an order for his return, whereas the issue might be left in some doubt if the only known fact related to the extent of the passage of time, and it has been customary in practice to advert to that factor..."

Lord Edmund-Davies stated in terms that he was "unable to concur" in part of Lord Diplock's reasoning, where he had said (783) "the question of where responsibility lies for the delay is not generally relevant". Of their other Lordships Lord Russell of Killowen and Lord Scarman agreed in terms with Lord Diplock's speech.

35. In Osman (No 4) [1992] 1 AER 579 Woolf LJ as he then was considered Lord Diplock's reasoning in Kakis and concluded that he had not intended to exclude culpability on the part of the requesting State as a material matter:

"Lord Diplock was not suggesting that, in a case which was close to the borderline as to whether or not the applicant was entitled to be discharged, the fact that the requesting state had been guilty of culpable delay was not a matter which the court was entitled to take into consideration." (587g)

36. I understood Mr Fitzgerald to submit that unexplained delay (at least, presumably, if it is substantial) might of itself make a case of prejudice, entitling the prospective extraditee to be discharged. He cited Kociukow [2006] EWHC Admin 56, a decision of this court. Jack J (with whom Hallett LJ agreed) said:

"10. It is the appellant's case that it would be unjust to return him to Poland to stand his trial because over six years have gone by since the alleged offence which gives rise to serious prejudice to him in his defence. It is his case that he came to the United Kingdom in late August 1999 or soon thereafter, entered lawfully and has been residing here lawfully since then. He asserts that he has otherwise no knowledge of the robbery, of the stalls in question, or of the women referred to. He has no knowledge now of what he was doing on 18 August 1999. There is no information as to the nature of the evidence against him. I conclude that there is a very real risk that the appellant will be prejudiced in his defence by the passage of the time that has passed. As is obvious, he is very likely to have difficulties in dealing with evidence which he first hears about over six years after the events. Also, if, for example, the case turns on identification evidence, there is very likely to be a much greater risk after this period of time of a wrong conviction. If the appellant is not to blame for this situation, I would be satisfied that it would be 'unjust' that the appellant be extradited because of the serious risk of substantial prejudice to him in the conduct of his defence."

Jack J observed that counsel for the respondent had no instructions as to why the warrant had not been issued until the previous year, and continued:

"11. ... [I]t cannot be for the appellant to show that there are no good reasons for the delay. It is his case that his leaving Poland was unconnected with the offences. In the absence of any explanation from the extraditing authority he is entitled to assert that there is a prima facie case calling for an answer, which is unanswered...."

37. As the district judge was to observe in the present case (paragraph 10) Kociukow turned on its own facts. In particular, at the time the court was considering the matter there was simply no information as to the nature of the prosecution evidence, quite apart from the causes of the delay. In my view the proper approach in this area of the law is, with respect, relatively straightforward. I think that there is perhaps a danger that in the search for a just result the court may be inclined to stray too far from the simple words of the statute: the question is whether "it would be unjust or oppressive to extradite him by reason of the passage of time since he is alleged to have committed the extradition offence". That is, of course, the starting-point. There are then Lord Diplock's observations in Kakis (at 782), which describe the overlapping scope of "unjust" and "oppressive". Next, the words of the Act do not justify a conclusion that any delay not explained by the requesting State must necessarily be taken to show fault on the State's part such as to entitle the putative extraditee to be discharged: Jack J, I am sure, did not intend to suggest as much. All the circumstances must be considered in order to judge whether the unjust/oppressive test is met. Culpable delay on the part of the State may certainly colour that judgment and may sometimes be decisive, not least in what is otherwise a marginal case (as Lord Woolf indicated in Osman (No 4)). And such delay will often be associated with other factors, such as the possibility of a false sense of security on the extraditee's part. The extraditee cannot take advantage of delay for which he is himself responsible (see Lord Diplock in Kakis at 783). An overall judgment on the merits is required, unshackled by rules with too sharp edges.

The Appellant's Case in Outline

38. Mr Fitzgerald's principal submissions may be summarised in barest outline as follows. There has been great delay since the alleged offences, at least some of which is unexplained by the Italian authorities. Key witnesses have died. The passage of time since La Torre's arrest and imprisonment here has lulled him into a false sense of security as regards any prospective prosecution for the offences in question. Overall, it would be unjust and oppressive to extradite him.

The District Judge's Decision

39. The district judge said this:

"10. ... The relevant time is different for each charge but at its maximum [LT/2 (A13) [ie charge 13]] is from August 1990 to September 2006 that is 16 years and the minimum [LT/2 (A11 & A12)] is from February 1999 to September 2006 that is 6½ years plus. It is noted that in February 1999 LT was in the UK. We are dealing with very considerable periods of delay."

The district judge proceeded to cite Kakis and to refer to other authority, including Kociukow. Then this:

"11. Ever since LT's arrest in the UK on 14^th July 1999 in respect of LT/1 the Italian authorities have known his whereabouts namely, in a UK prison awaiting extradition. Although these charges relate to conduct many years ago and assuming the police were aware of the offences very shortly after their commission there was insufficient evidence to justify seeking the arrest of LT, in some cases, until many years later. Much of the evidence is either from telephone intercepts or super grass evidence not immediately available. I need to analyse each charge and identify when there was a basis for seeking LT's arrest for each offence. There can be no criticism of the Italian authorities for the period of time when they had no basis for arresting LT."

40. In paragraph 12 the district judge proceeds to set out in table form the date of every offence, the nature of the offence, and the date in each case when La Torre's arrest was ordered. I should note that this exercise included the three offences of extortion the subject of LT3. As I have already stated District Judge Evans ordered La Torre's discharge in relation to those charges concluding that it would be unjust or oppressive to extradite La Torre in relation to them by reason of the passage of time. He did so because "[n]o information is provided to explain what kind of evidence is relied upon or to explain the delay" (paragraph 12). I apprehend he considered that in relation to these charges the case was akin to Kociukow.
41. In outlining the facts I have already referred to some of the features of the other accusations. I will not replicate the district judge's table. His conclusions were as follows. Charges 1 and 2 in LT2 (offences of blackmail) were sought to be supported by evidence of telephone intercepts. There was no explanation for the long delay between 11 April 1997 when La Torre's arrest was ordered and 30 August 2004 when LT2 was instituted, and the delay "can properly be characterised as culpable" (paragraph 13). However if the intercept evidence demonstrated La Torre's guilt to the criminal standard the passage of time would be unlikely to be prejudicial (also paragraph 13). As for LT2 charges 3 – 12, where again telephone intercepts are relied on by the prosecution, "there has been considerable delay between offence and the ordering of arrest and then further delay until this hearing. This was obviously a very complex enquiry and LT was but one of many suspects and/or potential defendants. I would not characterise the delay as culpable given the complex nature of the investigation and the explanations given" (paragraph 14). Then as to the remainder of the charges:

"15. LT/2 (A13), LT/4 and LT/5, the 3 murders. Although the offences date back many years, the evidence justifying these prosecutions only became available towards the end of 2002 and onwards. There can be no criticism of the Italian authorities in respect of delay. Super grass evidence is obviously very difficult to contradict. In fact LT should have some confidence in the Italian Court as it acquitted him in his absence of all the accusation charges in LT/1 on the basis of the unreliability of the witnesses. However, if at trial (should extradition take place) such evidence is found to be prima facie unreliable LT is concerned that because of the passage of time he will be prejudiced. In particular the establishment of alibis will be impossible after this lapse of time and one potential defence witness his father, not necessarily limited to alibi, has died. I recognise the establishment of an alibi can undermine super grass evidence and could even blow it apart. It is, however, in the absence of knowing the full evidence in the case, and the actual as opposed to a hypothetical defence, impossible to come to an informed judgment as to prejudice. I am reminded of the words of Tucker LJ in Re Henderson [1950] 1 All ER 283 at p. 287

'We do not know nearly enough about the facts of the case to form any opinion as to the nature of the applicant's defence or the extent to which he will be prejudiced in the presentation of it by the delay which has taken place. These are all matters which can – and no doubt will – be considered by the tribunal of any civilised country which is dealing with a criminal matter. The length of time that has elapsed will, no doubt, be a relevant consideration for this tribunal to consider in weighing the evidence, but there is nothing in the material evidence which would, in my view, show that it is impossible for the applicant to obtain justice'."

42. The district judge's reasoning on this part of the case ends thus:

"17. I recognise in submissions relating to delay, that it is not a question of solely focussing on delay attributable to the requesting state or simply identifying so-called culpable delay... LT faces allegations relating to grave crimes. The suggestions that LT has been 'lulled into a false sense of security' or that he has suffered 'prolonged fear of inhuman and degrading treatment' or that he would 'not receive a fair trial in Italy' I found implausible and/or unconvincing. The emphasis of the submission is on 'unjust' rather than 'oppressive' and I am satisfied that LT has failed to establish on the balance of probabilities that his extradition is barred by reason of the passage of time."

Woodcock [2003] EWHC Admin 2668

43. The judge's reference to Re Henderson calls up an issue which was the subject of some comment by Mr Fitzgerald, and it is convenient to refer to it now. In Woodcock [2003] EWHC Admin 2668 it was submitted that the passage of time since the alleged sexual offences – an average of some 20 years – was so great that a fair trial in the requesting State (New Zealand) was an impossibility. This court held, however, that it was necessary

"to have regard to whatever safeguards may exist in the domestic law of the requesting state to ensure that the accused would not be subjected to an unjust trial there. There are, it should be borne in mind, clear advantages in having the question whether or not a fair trial is now possible decided in the domestic court rather than by us. That court will have an altogether clearer picture than we have of precisely what evidence is available and the issues likely to arise." (per Simon Brown LJ at paragraph 21)

Mr Fitzgerald's submission on Woodcock is advanced on the premise that this court might conclude that the passage of time calls into question the possibility of a fair trial for La Torre in Italy, but then proceeds to consider whether any such deficiency might be cured by domestic procedures. He says that that is not an available means of resolving the case because (in contrast to Woodcock, where there was ample evidence of the material due process rules in the New Zealand jurisdiction) we have no or no adequate evidence of what procedural recourse is available in Italy to protect a defendant against injustice arising from delay. He refers to the judgment of Walker J in Lisowski [2006] EWHC Admin 3227, where it was stated that if a requesting State sought to rely on the availability of such procedures in its home courts, it would have to produce some evidence of what the procedures were and their efficacy (see paragraphs 17 and 18).

44. Clearly this court, faced with such an argument on the part of a requesting State, should only accede to it if there is an objective basis for doing so. However I view with some misgiving the suggestion that the onus lies on the requesting State to advance positive evidence so as to establish such a basis; just as I entertain some reservation whether the case of Kociukow decides anything beyond the result in the particular case. In all these respects it is, I think, important to bear in mind the strategic aims of the Council Framework Decision of 2002, not least "the introduction of a new simplified system of surrender of sentenced or suspected persons for the purposes of execution or prosecution of criminal sentences [to make] it possible to remove the complexity and potential for delay inherent in the present extradition procedures" (Recital 5). Recital 10 marches with this: "The mechanism of the European arrest warrant is based on a high level of confidence between Member States..."
45. These materials may themselves provide, or at least firmly support, the necessary objective basis for this court's confidence in the capacity of the courts of other jurisdictions where the EAW system operates to provide adequate and appropriate safeguards against injustice arising from delay. However I do not think it necessary in the circumstances of the present case to proffer any rule as to the material which would be required to establish such an objective basis. We have to consider whether the premise of this submission by Mr Fitzgerald, as I have described it, arises at all; and to that I will come.

Prejudice

46. La Torre gives some details of the prejudice which he says arises from the passage of time in a lengthy statement made by him on 19 June 2006, not least at paragraphs 6 and 107 – 133 (paragraphs 122 – 125 relate to LT3). Paragraphs 6 is in general terms, and largely argumentative; though it is to be noted that he asserts that "for some of the extradition charges I was obviously in prison in Italy or out of the country, including imprisoned here in the UK" and for others he was under surveillance and so could not have committed the crime or crimes in question – which, if true, would suggest no prejudice occasioned by delay.
47. Parts of the longer passage, at paragraphs 107 – 133, are also in general terms. However La Torre seeks to make a particular case, based on his having worked with his father until his arrest in January 1991, over a period covering all the murders charged at LT2 No 13, LT4 and LT5. His father is dead. Despite his assertion to the contrary (paragraph 108) I cannot accept that no other evidence could be produced to establish this employment which he says (paragraph 111) ran from 1986. The work apparently involved breeding buffalo and the management of a holiday park with about a thousand villas (paragraph 112).
48. Other assertions made in the statement tend to contradict rather than support a case of prejudice occasioned by the passage of time: see paragraphs 119, 123, 124, 127, 129: his confinement in prison, or the contents of surveillance reports or other documentation, are likely to provide an alibi defence.

Conclusion on Grounds 2 and 3

49. For these reasons, as well as those given by the district judge, La Torre has not in my judgment demonstrated that the passage of time will deprive him of a fair trial on any of the accusation charges upon which his extradition is sought. Nor do I consider it would be oppressive to return him. I am no more impressed with the suggestion that he has been "lulled into a false sense of security" by the passage of time than was the district judge. As I have already stated, on 18 February 2003 the Office of the State Prosecutor General at the Court of Appeal in Naples wrote to the United Kingdom authorities stating that further extradition requests were likely to be made which however would be "included later in an additional request for extradition". LT2 was sealed on 30 August 2004. On 25 October 2004 La Torre was acquitted of all the accusation charges contained in LT1. I see no reason why he might reasonably have supposed that no further process would be instituted against him.
50. There is nothing else in grounds 2 and 3.

GROUND 6

51. It will be recalled that this ground of appeal is directed to s.25 of the 2003 Act. The assertion is that La Torre's mental health has been badly affected by his previous exposure to the Article 41 bis regime, so that it would now be "unjust and oppressive to return [him] to the hands of his abusers" (skeleton argument paragraph 130). But he will not be subjected to that regime on his return. In the event this ground adds nothing to Grounds 4 and 5.

CONCLUSION

52. I would dismiss the appeal.

Mr Justice Davis:

53. I agree.