England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand, London, WC2A 2LL
		28 October 2010

Mr Justice Silber:

I. Introduction

1. On 29 May 2010, District Judge Evans sitting at the City of Westminster Magistrates Court ordered the extradition to Italy of Roberto Parasiliti-Mollica ("the appellant"), who is an Italian national pursuant to two European Arrest Warrants numbered EAW 2 and EAW 3 issued by the Office of the Prosecutor General attached to the Court of Appeal of Reggio Calabria in Italy ("the respondent"). Italy has been designated a Category 1 territory pursuant to section 1 of the Extradition Act 2003 ("the 2003 Act") and therefore Part 1 of the 2003 Act applies.
2. The purpose of the extradition order, which was made pursuant to the 2003 Act, was to ensure that the appellant serves outstanding sentences of imprisonment following his convictions in Italy. The appellant appeals against the order for extradition.
3. There were originally five warrants issued but during the course of the extradition hearing before the District Judge, the respondent withdrew three warrants which were numbered EAW 1, EAW 4 and EAW 5. Of the remaining two warrants, which are the subject of the present proceedings, one of them EAW 2 concerns a conviction for the offence of illicit trafficking in narcotic substances for which the Court of Appeal in Messina sentenced the appellant to 2 years imprisonment. The enforceable judgment is dated 5 October 2004 and became final on 7 February 2007.
4. The other warrant which is the subject of the present appeal is EAW 3, which is based on an in absentia conviction of the appellant relating to two offences one of which was in complicity with others committing thefts from motor cars, typically stealing car radios during 1994 and the first half of 1995. The second conviction took place after the appellant and another person cultivated two cannabis plants in June 1995 for which he was sentenced to 3 years 6 months imprisonment with the enforceable judgment dated 15 April 2002 and becoming final on 9 October 2003.
5. The grounds of appeal on warrants EAW 2 and EAW 3 are that the District Judge erred by not holding that:-

i) They are each invalid as they did not satisfy the requirements of section 2 of the 2003 Act ("The section 2 issue"); and that

ii) The applications for extradition on each of those warrants should be rejected because it would be unjust or oppressive to extradite him by reason of a passage of time pursuant to the provisions of section 14 of the 2003 Act ("The section 14 issue").

II. The Section 2 Issue

(i) Introduction

6. The case for the appellant is that there has not been compliance with section 2 of the 2003 Act because EAW 2 and EAW 3 both fail to state when and on what basis any court in Italy had ordered that the appellant should serve any period of imprisonment. Thus it is said by Mr Steven Powles counsel for the appellant that neither EAWs nor the additional materials supplied by the respondent explains when and on what basis the appellant was said to have become "unlawfully at large". It was contended that the District Judge in his judgment did not identify when and on what basis the appellant became and remains unlawfully at large in relation to the offences committed in either EAW 2 or 3. Thus, it is said by Mr Powles that the requirements of section 2 of the Act have not been met.
7. The relevant parts of section 2 of the 2003 Act state that:-

"2. Part 1 warrant and certificate

(1) This section applies if the designated authority receives a Part 1 warrant in respect of a person.

(2) A Part 1 warrant is an arrest warrant which is issued by a judicial authority of a category 1 territory and which contains—

[…]

(b) the statement referred to in subsection (5) and the information referred to in subsection (6).

[…]

(5) The statement is one that—

(a) the person in respect of whom the Part 1 warrant is issued is alleged to be unlawfully at large after conviction of an offence specified in the warrant by a court in the category 1 territory, and

(b) the Part 1 warrant is issued with a view to his arrest and extradition to the category 1 territory for the purpose of being sentenced for the offence or of serving a sentence of imprisonment or another form of detention imposed in respect of the offence.

(6) The information is—

(a) particulars of the person's identity;

(b) particulars of the conviction;

(c) particulars of any other warrant issued in the category 1 territory

for the person's arrest in respect of the offence;

(d) particulars of the sentence which may be imposed under the law of the category 1 territory in respect of the offence, if the person has not been sentenced for the offence;

(e) particulars of the sentence which has been imposed under the law of the category 1 territory in respect of the offence, if the person has been sentenced for the offence."

8. It is not in dispute that if there had been non-compliance with section 2 of the Act, the court has to declare that the relevant EAW to be void ab initio.

(ii) Has an EAW to state when and how the person subject to the extradition request has become unlawfully at large?

9. In order to resolve this it is necessary to bear in mind that the genesis of the 2003 Act is the "Council of Europe's Framework Decision' of 13 June 2002 on the European Arrest Warrant and the surrender procedures between Member States" ("the Framework Decision"). The purpose of the framework is set out in its preamble and the relevant parts of it recite that:-

"(5) The objective set for the Union to become an area of freedom, security and justice leads to abolishing extradition between Member States and replacing it by a system of surrender between judicial authorities. Further, the introduction of a new simplified system of surrender of sentenced or suspected persons for the purposes of execution or prosecution of criminal sentences makes it possible to remove the complexity and potential for delay inherent in the present extradition procedures. Traditional cooperation relations which have prevailed up till now between Member States should be replaced by a system of free movement of judicial decisions in criminal matters, covering both pre-sentence and final decisions, within an area of freedom, security and justice.

(6) The European arrest warrant provided for in this Framework Decision is the first concrete measure in the field of criminal law implementing the principle of mutual recognition which the European Council referred to as the 'cornerstone' of judicial cooperation."

10. To my mind, the underlying basis of the 2003 Act is to ensure that as between those States which are parties to the Framework Direction, there is a mutual recognition of criminal law decisions both pre and post-sentence as the basis of judicial co-operation and that the courts of the requested state should only refuse to enforce a EAW if there was a good reason not to do so having borne in mind the need to examine the documents carefully to ensure no injustice is done to the requesting state or the individual concerned. This new approach, which is founded on Member States' confidence in the integrity of each other's legal and judicial regimes, replaces the delays and technicalities which were inherent in the old system. This means that under the 2003 Act, judges sitting in the receiving country must ensure that judicial cooperation will require in so far as is legitimate that there should be a free movement of judicial decision and a suitable trust in the decisions of the requesting state with courts paying attention to the substance of applications rather than formalities. To be more specific, in this appeal, this means that provided it is ascertainable in some way from the EAW that an appellant is unlawfully at large, then the EAW would be considered to have been valid with the consequence it should be acted on by the courts of the receiving state.
11. This approach is the basis of the decision of the Divisional Court in R (on the application of Kuprevicius) v Vice Minister of Justice Ministry of Justice Lithuania [2006] EWHC 1518 (Admin) in which the basis of the appeal was that the EAW did not contain an express allegation that the appellant was "unlawfully at large" and therefore it did not comply with section 2 (5)(a) of the 2003 Act. Having considered obiter and to some extent provisional statements by the Appellate Committee in the Office of the Kings Prosecutor, Brussels v Cando Armas [2006] 2 AC 1, Richards LJ giving the decision of the Divisional Court explained that:-

"15… The warrant does not need to state in terms, however, that the person who's extradition is requested post conviction is unlawfully at large. The requirement will be met if it can be inferred from the contents of the warrant as a whole that the person is alleged to be unlawfully at large".

12. When he applied that approach to the facts in the Kuprevicius case, Richards LJ then stated that:-

"17… In my judgment, there is sufficient material in the warrant to show that no further process or order would be required upon the appellant's arrest on return to Lithuania... It seems to me clear from the warrant, taken as a whole, that the appellant is now liable to serve his sentence, which means that the judgment of the Court of Appeal has been returned in the manner indicated to the County Court for the purposes of enforcement, but that he has absconded. This is language that readily supports the inference made by the District Judge. I take the view that the contents of the warrant, taken as a whole, show clearly that the appellant is unlawfully at large."

13. Insofar as I understood Mr. Powles to submit that this approach is "obviously wrong" with the consequence that I should not follow it, I am unable to accept that submission because of (i) the absence of any statutory requirement in the 2003 Act requiring an express statement to be made that a person whose extradition is sought is "unlawfully at large" while other requirements for an EAW were set out in the 2003 Act; (ii) the significant changes made to the 2003 Act as section 2 (5) (a) of the 2003 Act had originally required a statement to be included that the person mentioned in the EAW "is alleged to be unlawfully at large" but significantly an amendment introduced by the Police and Justice Act 2006 removed that requirement and replaced it with a requirement that statement should merely state that the person mentioned in the warrant "has been convicted of an offence specified in the warrant"; (iii) the underlying principles behind the 2003 Act which I set out in paragraph 10 above, which required the court to look at substance and not to allow technicalities to prevent the mutual recognition of decisions of criminal courts and (iv) the absence of any good reason showing why the Kuprevicius case was "obviously wrong". I am also unable to accept the submission that the present case is different from Kuprevicus because the EAWs in the present case were predicated on an order when it is said that the appellant could not be regarded as "unlawfully at large" because of speciality. If specialty had been relevant to the statutory concept of being "unlawfully at large", it would surely have been included in or referred to in the definition of it in section 68 A of the 2003 Act (which I set out in paragraph 14 below) but that has not occurred. The statutory concept of being "unlawfully at large" is a matter independent of specialty and has to be considered in the light of section 68 A of the 2003 Act and of the terms of the EAW at the time when they are issued and as I will explain this can be clearly established in paragraphs 14 to 28 below.

(iii) How can a person be shown to be "unlawfully at large" and can this be shown to be the position in respect of EAW2 and EAW 3?

14. The answer to the first part of that question is to be found in section 68A of the 2003 Act, which explains the term "unlawfully at large" in section 2(5) of the 2003 Act when it states that:-

"(1) A person is alleged to be unlawfully at large after conviction of an offence if

(a) he is alleged to have been convicted of it, and

(b) his extradition is sought for the purposes of his being sentenced for the offence or of his serving a sentence of imprisonment or another form of detention imposed in respect of the offences.

(2) This section applies for the purposes of this Part, other than sections 14 and 63."

15. In EAW 2, the following statement appears at the start of it:-

"This warrant has been issued by a competent judicial authority. I request the person mentioned below be arrested and surrendered for the purposes of conducting a criminal prosecution or executing a custodial sentence or detention order."

16. This statement of purpose establishes that the prosecutor who issued the EAW is aware of the two possible reasons for which an EAW may be issued: prosecution or execution of a sentence of imprisonment.
17. Section B of EAW 2 then states that:-

"b) Decision on which the warrant is based:

1. Arrest warrant or judicial decision having the same effect: ORDER UNIFYING THE CONCURRENT PENALTIES No. 206/2008 R. Es [Register of Executions] MADE ON 20 November 2008 by the OFFICE OF THE PROSECUTOR GENERAL OF REGGIO CALABRIA

Type: ORDER UNIFYING THE CONCURRENT PENALTIES

2.Enforceable judgment: judgment of 5 October 2004, which became final on 7^th February 2007".

18. Section C of EAW 2 shows that the appellant has time to serve for the offences and sentences set out in that warrant when it states that:-

"2. Length of the custodial sentence or detention order imposed:…2 (two) years of imprisonment in connection with the judgment of the Court of Appeal of Messina no 1217/2004"

Remaining sentence to be served:…2 (two) years of imprisonment in connection with the judgment of the Court of Appeal of Messina, penalty for which the pardon was provisionally applied."

19. EAW 3 similarly states that:-

"This warrant has been issued by a competent judicial authority. I request the person mentioned below be arrested and surrendered for the purposes of conducting a criminal prosecution or executing a custodial sentence or detention order."

20. At section B of that EAW, it is stated that:-

"b) Decision on which the warrant is based:

1. Arrest warrant or judicial decision having the same effect: ORDER UNIFYING THE CONCURRENT PENALTIES No. 206/2008 R. Es [Register of Executions] MADE ON 20 November 2008 by the OFFICE OF THE PROSECUTOR GENERAL OF REGGIO CALABRIA

Type: ORDER UNIFYING THE CONCURRENT PENALTIES

2.Enforceable judgment: Judgment of 15 April 2002, which became final on 9th October 2003".

21. Section C of EAW 3 also shows time to be served by the appellant for the offence and conviction set out in that warrant when it states that:-

"2. Length of the custodial sentence or detention order imposed:…3 (three) years 6 (six) months of imprisonment in connection with the judgment of the Court of Appeal of Reggio Calabria no 679/2002"

Remaining sentence to be served:…1 (one) year 6 (six) months 29 (twenty nine) days of imprisonment in connection with the judgment of the Court of Appeal of Reggio Calabria no 679/2002".

22. I consider that this information is sufficient to enable a reader of these documents to understand that the Appellant is at the time of the warrant wanted for the purposes of serving a custodial sentence in Italy and is therefore alleged to be unlawfully at large. The defence have provided no evidence from an Italian court or lawyer post-dating the issuing of the EAWs in 2009 to indicate that, in respect of the offences set out in EAW 2 and 3, the Appellant is not properly sought for the purpose of executing a remaining term of imprisonment. That shows clearly that in the words of section 68(A) "the appellant's extradition is sought for the purposes… of his serving a sentence of imprisonment".
23. Indeed, such further information which is available supports the IJA's position. The most recent document provided by the Appellant is a judgment from the Court of Appeal, Reggio Calabria dated 1 April 2010. At the conclusion of the English translation, it says (with my emphasis added) that:-

"FOR THESE REASONS

Having considered Art 666, 670 and 671 of the Code of Criminal Procedure;

Annuls the enforcement order for concurrent sentences no 206, issued by the Chief Prosecutor's Office at the Court of Appeal in Reggio Calabria on 20.11.2008 in respect of Roberto MOLLICA PARASILITI, only for the sanctions handed down in the sentences stated above under points 1, 2 and 4 respectively of the above-mentioned order and confirms the remainder."

24. The document referred to as dated "20.11.2008" is "The most recent order" enforcing the sentences against the Appellant. It is not disputed that offences 3 and 5, the enforcement of which is expressly confirmed by the judgment of the Court of Appeal judgment of 1 April 2010, relate respectively to EAW 2 and EAW 3 which are the subject of the present appeal.
25. The Appellant's criticism is that the learned District Judge failed to consider counsel's submissions in respect of EAWs 2 and 3 but this complaint is not justified because he stated in his decision that:-

"37. I reject the defence submission that the remaining elements of the decision of 20^th November 2008 are in some way compromised by this most recent decision [decision of Court of Appeal of Reggio Calabria, 1^st April 2010]. The defendant is clearly still wanted in respect of EAWs (2) and (3) and the submission that this court cannot conclude he is unlawfully at large is rejected."

26. The District Judge's conclusion was consistent with the approach in Kuprevicius. This is another reason for explaining why I am satisfied that the appellant is wanted for the purpose of serving a sentence of imprisonment and is unlawfully at large.
27. In respect of the further documents provided there is a reference to a document dated 20.11/2008 which states that it is a "Measure to Enforce Overlapping Penalties against Convicting Person at Liberty and Simultaneous Enforcement Order.." The document refers to the appellant and sets out the convictions referred to in EAW 2 and EAW 3 again explaining in respect of each EAW, the penalty that was imposed and in respect of EAW 3 the penalty that was imposed together with details of a period already served. This information supports the respondent's case as showing the sentences still to be served by the appellant together with the wish to enforce those penalties as the heading to the document shows. It is said on behalf of the appellant that the documents do not state that the appellant was at large and it could not do so because of specialty. I cannot accept this point because the independent statutory concept of being "unlawfully at large" (which is set out in section 68A of the 2003 Act which I set out in paragraph 14 above) is not dependent either expressly or impliedly on specialty. If specialty had been relevant to the statutory concept of being "unlawfully at large", it would surely have been included or referred to in the definition of it in section 68 A of the 2003 Act but that has not occurred. Indeed the concept of being "unlawfully at large", is based on the actual position, which requires that the appellant in the words of section 68 A of the 2003 Act "(a) is alleged to have been convicted of [an offence]" and "(b) his extradition is sought for the purposes of … his serving a sentence of imprisonment" .These were the only relevant requirements and they were satisfied in this case and that disposes of this point especially as none of the other points made by Mr. Powles undermine this conclusion. I should add that if I had been in any doubt about this point, I would have reached the same conclusion because on the facts of this case, I consider that specialty could not be relevant especially as at the date of the document (20 November 2008), the appellant had left Italy in flagrant breach of his requirement to remain there for 2 years; in addition, the terms of the previous extradition warrant had been satisfied.
28. There is a further document dated 12 May 2010 from the appellant relating to the appellant entitled "Order regarding the Enforcement of Concurrent Sentences in respect of a Convicted Individual not being held in Prison". The document states that it is "a new order for the enforcement of concurrent sentences needs (sic) to be issued in respect of those sentences can immediately be enforced". This shows the sentences referred to in EAW 2 and EAW 3 and states the remaining sentences. Indeed none of the other points made by Mr Powles show that the appellant was not at the relevant time "unlawfully at large" or that either EAW 2 or EAW 3 cannot be enforced.

III. The Section 14 Issue

(i) Introduction

29. The appellant submits that he should be discharged because it would be oppressive to extradite him owing to the passage of time particularly in the light of his prior extradition to Italy, which had taken place on 6 January 2006 after a decision of the Divisional Court rejecting the appellant's appeal made on 14 December 2005. The appellant was extradited as he had been wanted in relation to a serious drug offence for which he had received a sentence of 6 years, 8 months and 20 days imprisonment. He was released from this sentence under early release provisions on 18 November 2008 having served 3 years and 21 days and he immediately returned to the United Kingdom even though he was prohibited from leaving Italy for two years. It would be seen that this extradition came after he had been sentenced for the offences, which are the subject-matter of EAW 2 and EAW 3 but no request was made at that time for his extradition. This is the background against which the appellant's appeals had to be considered.
30. The District Judge rejected a submission made on behalf of the appellant that because the respondent had not requested the appellant's extradition earlier, he should not be extradited in paragraphs 23 and 30 of his decision where he stated that:-

"29. It is correct to say there is no clear explanation why the JA did not seek extradition on six EAWs back in 2005. However, since the defendant's return to Italy in January 2006, the Italian authorities have been trying to enforce these sentences of imprisonment. They have not been very efficient. I accept there was no obligation upon the defendant to cooperate in the process, but if, as is the case, he has adopted a position of non-cooperation he can hardly complain if the enforcement process takes a little longer. He could have waived his extradition protection when he was in Italy. He could have accepted service of court documents see paragraph 9 above. His reasons for refusing service (see paragraph 2 of his second statement dated 19^th May 2010) are nonsense. I do not understand how he could consider the contents of the documents if he refused to accept service of them. He didn't have to leave Italy within days of his release from prison in November 2008. Certainly, since shortly after January 2006 at the latest, he has been aware of the outstanding cases and has taken no steps, either himself alone or with the assistance of his Italian lawyer, to resolve his position with the Italian authorities. There are several parallels here with the case of Marco Secchi v Deputy Prosecutor of the Republic of Italy [2010] EWHC 521 (Admin).

30. I basically accept and agree with the representations and submissions helpfully set out in paragraph 3 of the JA's skeleton. It would not be oppressive to return the defendant by reason of the passage of time since he is alleged to have become unlawfully at large."

(ii) Section 14 of the 2003 Act and the Approach of the Court.

31. Section 14 of the 2003 Act provides in so far as is material that:-

"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 become unlawfully at large."

32. There has been much case law on application of this provision but it is clear that it necessitates a fact-specific inquiry and so the "authorities are of very limited value when considering the facts of individual cases" per Scott Baker LJ in Steblins v Government of Latvia [2006] EWHC 1272 (Admin) [13]. The reason for that, as Laws LJ commented in Austins v Government of Spain [2004] EWHC 2693 (Admin) [16] is that "in the end the matter is one of judgment if not, impression".
33. There are certain relevant settled principles explaining how the court should approach a claim that pursuant to section 14 it would be unjust or oppressive to extradite a person pursuant to an EAW based on a conviction should be approached. They are that:-

(a) "There is no cut off point beyond which extradition must inevitably be regarded as unjust or oppressive" (Dziedzicu v Government of Germany [2006] EWHC 1750 (Admin) [9];

(b) "Delay in the commencement or conduct of extradition proceedings which is brought about by the accused himself by fleeing the country concealing his whereabouts or evading arrest cannot, in my view, be relied upon as a ground for holding it to be either unjust or oppressive to return him" (per Lord Diplock Kakis v Government of the Republic of Cyprus [1978] 1 WLR 779 and approved more recently by the Appellate Committee in Gomes v Government of Trinidad and Tobago [2009] 1 WLR 1038 [29]. It has been said that delay "may sometimes be decisive, not least in what is otherwise a marginal case" in the words of Laws LJ in La Torre v Republic of Italy [2007] EWHC 1370 Admin ) but "…it is not the law that if there is proved to be culpable delay in finding the man, it is therefore necessarily unjust or oppressive to extradite him…Although culpable delay may be relevant, the principal focus, when it comes to considering the passage of time, is not on a judgment on the performance of the requesting state's investigation but on the effect that time passing has had" (per Hughes LJ in Government of Croatia v Spanovic [2007] EWHC 1770 (Admin) [16] with emphasis in original);

(c) "The standard of proof [of proving that extradition would be "unjust or oppressive] is the balance of probabilities and the burden of proof lies on the defendant" (See Kaciukow v District Court of Bialystok III Penal Division [2006] EWHC 56 (Admin) [9] and Union of India v Narang [1978] AC 278, 293);

(d) "If an accused.. deliberately flees a jurisdiction in which he has been bailed to appear, it simply does not lie in his mouth to suggest that the requesting state should share responsibility whether this be, as in this case, losing the file, or dilatoriness, or, as will often be the case, mere inaction through pressure of work and limited circumstances. We would not regard any of these circumstances as breaking the chain of causation (if this be the relevant concept) with regard to the effect of the accused only conduct. Only a deliberate decision by the requesting state communicated to the accused not to pursue the case against him, or some other circumstance which would similarly justify a sense of security on his part notwithstanding his own flight from justice could I allow him properly to assert that the effects of further delay where not of his own choice and making" Gomes v Government of Trinidad and Tobago (supra) [26]; and very importantly

(e) In almost every case extradition will cause some form of disruption for the person extradited and/or his or her family but "the test of oppression will not easily be satisfied; hardship a comparatively commonplace consequence of an order for extradition is not enough" Gomes (supra) [31].

34. It is appropriate at this stage to deal with a submission made by Mr Powles, which was that assistance for the appellant's case can be derived from the statement of Dyson LJ in R v Bow Street Magistrates Court, ex Parte Lloyd [2003] EWHC 2294 (Admin) where it was said that:-

"it is potentially very unfair on a defendant that he should be liable to be admitted to prison for non-payment of sums due under a confiscation order many years after the time for payment has expired, and long after he has been released from custody and resumed work and family life".

35. This statement was made in the context of an application in relation to a confiscation order in which the criteria for defeating a claim on grounds of delay are totally different from those which apply in an extradition case. The provisions in section 14 of the 2003 Act and the authorities to which I referred in paragraph 33 above are not applicable to the confiscation cases.
36. Delay is dealt with differently in different areas of law. At one end of the spectrum a very strict and rather inflexible approach is adopted to delay such as in respect of the time period for bringing some claims in the Employment Tribunal and at the other end of the spectrum are claims for extradition where there is no time period and the courts adopt a more relaxed attitude to delay by the requesting Member State where the main focus is on the effect of the passing of time. In those circumstances, I am unable to derive any assistance whatsoever from the statement of Dyson LJ which is in conflict with the approaches adopted in extradition cases and in particular in Kakis and in the Gomes' cases as I have explained in paragraph 33 above.

(iii) The Appellant's case on section 14 of the 2003 Act

37. The appellant, his wife and his employer have made witness statements. On the basis of them, Mr Powles contends that the claim by the respondent for the appellant's extradition is oppressive and/or unjust because:-

(a) The appellant has been in a committed relationship with his partner since 2002 and who he married earlier this month. She has made a particularly impressive witness statement supporting her husband and showing the suffering which extradition would cause her and obviously the appellant;

(b) He has a steady job and is settled in the United Kingdom;

(c) His wife had to endure great hardship when the appellant was imprisoned in Italy from 2006 to 2008 after his extradition which I describe in sub-paragraph (d) and further separation would be hard for her;

(d) The applicant has previously been extradited to Italy on 6 January 2006 after proceedings in this court. He was sentenced to six years eight months and twenty days imprisonment but he was released under early release provisions on 18 November 2008 and returned to this country. The significant fact is that no attempt was made to make him serve his term of imprisonment for the offences in EAW 2 and EAW 3 which had been imposed before he had been extradited to Italy and therefore before he was released;

(e) The offences which are the subject of EAW 2 and EAW 3 were committed many years ago when the appellant was 21 years and 17 years of age but he is now 33 years old; and

(f) The delay of the respondent in seeking the extradition of the appellant.

38. It is noteworthy that it is not suggested by the appellant that he was ever lulled into thinking at the time of his release from custody after serving the sentence for which he had been extradited that he would not be the subject of any further extradition request. The District Judge said having considered the evidence:-

"38. When giving evidence today the defendant told me that he left Italy the day after his release from prison on 18^th November 2008. He accepts that he knew that was done in breach of the court order that prohibited him from leaving, but he says he was keen to leave Italy because of the constant harassment he was receiving from the Italian police and judicial authorities. He wanted to return to England, which he regarded as his home, to get on with his life, obtain employment, return to his girlfriend and in due course start a family. He knew about speciality protection as he had looked up the law and knew he was entitled to leave Italy in the 45 day period. He said specialty protection played a part in his decision to leave Italy. Inconsistently with that position he went on to say he had no idea the Italian authorities were trying to enforce any of the convictions we are concerned with here. I do not believe him. I am satisfied he knew the Italian authorities were trying to enforce the sentences of imprisonment."

39. The District Judge then concluded:-

"41.. It is very clear to me that this defendant has had the benefit of an Italian lawyer pursuing on his behalf various applications and appeals in respect of these convictions. He has known about them for years and has been actively challenging enforcement, with a considerable measure of success, for a very long time. There is nothing about his personal circumstances that would make it oppressive for him to now go and serve his sentences."

40. In those circumstances it is not open to the appellant to contend that he was lulled into some false sense of security and the true position is that he has known for many years about the sentences referred to in EAW 2 and EAW 3 and that he would be required to serve them.

(iv) Discussion

41. None of these factors (a)–(c) whether considered individually or cumulatively show the degree of oppression stated in Gomes as I explained in paragraph 33 above as being needed for the appellant to succeed under section 14 of the 2003 Act.
42. Mr Powles places great significance on factor (d). At the time of that first extradition request and of course at all times until his release from custody, the appellant was at large in respect of the matters set out in the EAW 2 and EAW 3. What is important is that nothing was said or was done by the Italian authorities during the earlier extradition proceedings or indeed at any other time to indicate to the appellant that there would not be a further extradition request against the appellant. As I have explained, the District Judge found that the appellant knew that the Italian authorities were seeking to enforce the prison sentences against him which are the subject of EAW2 and EAW 3.
43. Finally, the appellant relies on the fact that there has been no explanation from the respondent judicial authority as to why the matters set out in EAW 2 and EAW 3 were not included in the 2005 extradition request and no explanation has been given as to why no effort was made to enforce the sentences at an earlier time but the position was described by the District Judge in this way:-

"29…However, since the [appellant]'s return to Italy in January 2006, the Italian authorities have been trying to enforce these sentences of imprisonment. They have not been very efficient. I accept there was no obligation upon the [appellant] to cooperate in this process, but if, as is the case, he has adopted a position of non-cooperation he could hardly complain if the enforcement process takes a little longer. He could have waived his extradition protection when he was in Italy. He could have accepted service of court documents.. His reasons for refusing service are nonsense. I do not understand how he could consider the contents of the documents if he refused to accept service of them. He didn't have to leave Italy within days of his release from prison in November 2008."

44. Mr Powles realistically accepts that the appellant left Italy at the completion of his sentence in November 2008 in contravention of a requirement that he stay in Italy. But it is further argued by Mr Powles that had the appellant remained in Italy, the judicial authority would have been able to circumvent his specialty protection under Article 27 of the European Framework Decision and to have dealt with him then for the matters set out in EAW 2 and EAW 3.
45. As to factors (e) and (f) above, it is correct that there has been a substantial delay between the times when these offences were committed and the time of extradition request. Mr. Powles contends that this is particularly potent in the light of the facts that the appellant is now 33 years of age but the offences referred to in EAW 3 were committed when he was just 17 years of age while those in EAW 2 were committed when he was 21 years of age. I do not consider those facts as constituting any form of oppression especially as the appellant left Italy at a time when, as the District Judge found in paragraph 38 of his judgment quoted in paragraph 38 above he knew that this was in breach of a court order and at a time when he knew that the Italian authorities were trying to enforce the convictions.
46. In any event as I have explained delay "may sometimes be decisive, not least in what is otherwise a marginal case" in the words of Laws LJ in La Torre (supra) but the proper approach would appear to be:-

"16…it is not the law that if there is proved to be culpable delay in finding the man, it is therefore necessarily unjust or oppressive to extradite him…Although culpable delay may be relevant, the principal focus, when it comes to considering the passage of time, is not on a judgment on the performance of the requesting state's investigation but on the effect that time passing has had" (per Hughes LJ with the emphasis in the original version in Government of Croatia v Spanovic [2007] EWHC 1770 (Admin)).

47. In my view the delay in this case by the respondent for which no excuse or justification has been suggested or been put forward for this does not assist the appellant's case as a free-standing point especially as there has been no oppression shown.
48. The position therefore is applying the principles set out in paragraph 33 above the appellant fails to show the required degree of oppression needed under section 14 of the 2003 Act. There appears to have been some possible incompetence and dilatoriness on the part of the Italian authorities but even if I accept Mr Powle's submission that these matters can be looked at in a marginal case, this is not such a case as the other evidence falls a long way short of establishing oppressive in the light of the high standard required.
49. There was much discussion about the decision of the Divisional Court in Secchi v Deputy Prosecutor of the Republic of Italy [2010] EWHC 521 (Admin) in which an appellant unsuccessfully submitted that extradition should not have been ordered against him because it was barred by section 14 of the 2003 Act. The respondent authority in this case sought to derive assistance from it but in my view it was a fact-sensitive decision although there were some similarities between the facts in that case and the present one. There were also so many differences as to preclude me from obtaining any assistance from that decision save that it was not in any way inconsistent with my conclusion that extradition is not barred by delay or oppression.
50. At the end of the day, it is necessary for me to make a fact-sensitive decision in the light of the well-established authorities which show the heavy burden on an appellant who wishes to succeed on a section 14 point. In this case I am bound by the findings of the District Judge on factual issues in respect of which he had heard evidence. This and other matters have led me to the clear conclusion that the understandable problems and unhappiness for the appellant and his wife that would be caused by his extradition do not come close to reaching the threshold required for the appeal to succeed.
51. In those circumstances, notwithstanding the able submissions of Mr. Powles, the appeal must be dismissed.