Strand, London, WC2A 2LL
B e f o r e :
MR JUSTICE DAVIS
| La Torre
|- and -
|The Republic of Italy
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Mr Paul Garlick QC and Miss Melanie Cumberland (instructed by The Crown Prosecution Service) for the Republic of Italy
Hearing dates: 14, 15 & 30 March 2007
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Lord Justice Laws :
THE 2003 ACT AND THE GROUNDS OF APPEAL
"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.
APPEAL GROUNDS 4 AND 5
"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."
"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.
"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."
"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.
"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."
"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  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  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."
APPEAL GROUNDS 2 AND 3
"'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."
"[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.
"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)
"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...."
The Appellant's Case in Outline
The District Judge's Decision
"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 14th 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."
"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  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'."
"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  EWHC Admin 2668
"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  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).
Conclusion on Grounds 2 and 3
Mr Justice Davis: