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England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Court of Florence (An Italian Judicial Authority) v Cimieri [2009] EWHC 1709 (Admin) (26 June 2009)
URL: http://www.bailii.org/ew/cases/EWHC/Admin/2009/1709.html
Cite as: [2009] EWHC 1709 (Admin)
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QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Strand London WC2A 2LL |
||
B e f o r e :
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| COURT OF FLORENCE | ||
| (An Italian Judicial Authority) | Claimant | |
| v | ||
| FRANCESCO CIMIERI | Defendant |
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WordWave International Limited
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(Official Shorthand Writers to the Court)
Alun Jones QC (instructed by Bark and Co) appeared on behalf of the Defendant
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Crown Copyright ©
- MR JUSTICE COLLINS: This is an appeal against a decision of the District Judge to grant bail on terms to Mr Cimieri.
- This followed his arrest, on 17th June, on a European Arrest Warrant, seeking his extradition to Italy to stand trial in Florence, with, it would seem, a considerable number of other defendants, on various charges. Putting it broadly, they can be divided into money laundering and racketeering, it being alleged that this appellant has been involved in assisting fraudulent conduct which has resulted in the obtaining of many millions of euros, it seems, by what can broadly be described as telephone frauds. The allegation is that this has all been done in order to assist criminals in Italy, who are themselves involved with the Mafia.
- The concern is that the extent of the fraud is large. I have heard figures of £45 million mentioned, although those are disputed. Certainly the allegation which came before the judge, based on the warrants, was that the appellant, based in London, was responsible for what was a very important aspect of the fraudulent conduct, because it enabled the funds to be got out of Italy and dealt with for the benefit of those involved.
- It perhaps is not altogether surprising that in the circumstances the suggestion was that the appellant might well not attend the hearing, were he to be granted bail. He has not returned to Italy to answer the charges, albeit they have been in existence now for over a year. Having said that, there is no particular reason why, he having his base in this country, and having lived here for 14 years, he should. There is certainly material which suggests that he has indicated, through his solicitors, that he would be prepared to answer questions of the relevant authorities in London, were they to consider it appropriate to come here.
- For reasons which may well be very good reasons, that offer has not been taken up, but the result is that he has not made himself available in Italy for investigations to be carried out. I am told that the co-defendants, if I may put it that way, are all on bail in Italy. That may in part, I know not, be due to questions of custody time limits, rather than to bail being granted on the merits.
- Normally a District Judge will consider a bail application when an arrest warrant is executed, based upon the information contained in that warrant, and no doubt also any personal circumstances peculiar to a defendant, for example, health, whether he has previous convictions and so on. In this case there was put before the District Judge a letter from the appellant's lawyer in Italy which indicated that the Court of Cassation had effectively disposed of at least two of the money laundering charges. It may be that the impression given to the District Judge was that all the money laundering charges had therefore been disposed of.
- Subsequent information from the Public Prosecutor's Office in Florence indicates that that is not the case. What had happened was that the Court of Cassation refused to accept that the appellant could still be remanded in custody were he to be returned to Italy. So, on the money laundering charges, if he is extradited, he will have to be granted bail on his return to Italy. But there are also racketeering charges, which carry a maximum of 7 years, plus possibly an increase if circumstances of aggravation are established. That, it seems to me, is a quite sufficient disincentive to taking part in the extradition process, if such disincentive is to be relied on as a basis for refusing bail.
- I am sure that the District Judge would have been well aware of that. On the other hand, it does appear that he was, or may well have been, influenced to a degree by the existence of that letter from the lawyer, which may not be entirely accurate. I say that because it is to be noted that the lawyer has maintained, and given reasons for maintaining his view, notwithstanding what the Public Prosecutor's Office has stated. Therefore, the question I have to decide is whether it would be appropriate to grant bail in the circumstances.
- I should add that the appellant is not in good health: he has some breathing difficulties, which are particularly problematical during the night. It means that he has to have what is called a "breathing machine" to assist him overnight, because otherwise there is apparently a risk that he might not be able to breathe and this might be, I suppose, fatal. This is said in itself to provide a considerable incentive for him to remain here and to keep in touch.
- He has been aware of the probability of extradition for a considerable time, because he has been in touch with what is going on in Italy and has his lawyer acting for him there. He had been advised by his solicitors, as one would expect, that when he attended at the police station on 17th June 2009 it was likely that it was in connection with an extradition request, and therefore he should bring his passport. That he did, and the passport has been surrendered.
- I can well understand the concern of the Italian authorities, having regard to the nature of the offending, that there is a flight risk in this case. Although the District Judge may have been influenced by the letter, nonetheless there were still serious charges which the appellant had to face. The District Judge would have been well aware of those.
- It seems to me that the balance is a difficult one in this case. One must bear in mind that the principle is that bail should be granted, unless it is clearly established that it should not be granted. In those circumstances, I, because largely of his health, and because of the knowledge that he has been aware of, and involved through lawyers in considering, these charges for some time, am prepared not to overturn the order made by the District Judge. I do emphasise that of course this will run only until 3rd July 2009, because he must then surrender to his bail at the hearing. What information then comes to light may put a different complexion on the matter. It will be for the District Judge to decide then, assuming surrender is ordered, on questions of bail. This may, of course, then be material as to whether the appellant, on advice, decides that he will return voluntarily, because that is always a possibility.
- It is clear, is it not, Mr Jones, that there is an argument that your are going to raise that this is not a proper case for extradition, or you do not really know until you have had a chance to --
- MR JONES: No, it is a matter I would want to discuss with him.
- MR JUSTICE COLLINS: You would have to take full instructions.
- MR JONES: Yes, of course.
- MR JUSTICE COLLINS: You know the difficulties as well as anyone in European Arrest Warrant cases.
- MR JONES: Yes.
- MR JUSTICE COLLINS: I am not going to allow this appeal. Obviously, the conditions laid down by the District Judge will continue and you will give him, no doubt, appropriate advice and wait and see what happens on the 3rd.
- MR JONES: Thank you, my Lord.
- My Lord, I am sure there are no technicalities about the surety, because that has all been done in the court below.
- MR JUSTICE COLLINS: So I understood from what you told me.