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
		19/11/2010

Lord Justice Moses :

1. The Office of the Prosecutor General of Turin, Italy, appeals against a decision of District Judge Purdy dated 17 June 2010. The Italian judicial authority had sought the extradition of Mr Franco Barone pursuant to Part I of the Extradition Act 2003. The European arrest warrant was issued on 31 July 2008, and certified on 20 January 2010, for the purpose of executing a 21-year term of imprisonment for three offences of aggravated murder, attempted robbery and illegal possession and carrying of firearms committed on 18 May 1976. The District Judge, in a clear and admirably succinct judgment, concluded that extradition proceedings constituted an abuse of process of the court. He further concluded that s.14 of the 2003 Act barred Mr Barone's extradition on the grounds that by reason of the passage of time since he became unlawfully at large, it would be oppressive to order his extradition.
2. It is necessary to set out the unusual course of events which has led to these proceedings. On 18 May 1976, a gang of four criminals broke into the house of Leonardo Ferreri in order to rob him. Leonardo Ferreri was shot dead. The murder was committed at 2.30 a.m. The respondent, Mr Barone, who was 20 at that time, was immediately suspected and arrested shortly after. Investigation established he had two injuries. He was absent from his workplace at a building yard the day before the murder. During the morning of the following day, 18 May, his hand was treated for a light injury by a nurse at work, but he had not injured himself there that day.
3. A fellow member of the gang, Nazzareno Manco, accused him of participation. He denied it and gave an alibi. But his alibi witness withdrew his evidence when he learned, from the newspapers, of the nature of the crime.
4. On 22 August 1976, Mr Barone escaped from prison, assuming the identity of another prisoner.
5. On 18 March 1981 he was convicted, in absentia but represented by counsel, by the Court of Assize of Turin. This judgment was confirmed on appeal on 17 May 1982 and subsequently by the Court of Cassation on 12 October 1983. His original sentence was 28 years' imprisonment with 3 years' supervised release. That has been reduced to a sentence of 21 years' imprisonment with supervised release for 3 years.
6. Since his arrival in England in 1976 Mr Barone has worked hard, married and had children. But, as his statements make clear, he has appreciated that if he returned to Italy or went to any other country he could be re-arrested (see page 4 of his statement). Central to this appeal is the decision of the Divisional Court on Mr Barone's application for a writ of habeas corpus R v The Governor of HM Prison Brixton ex-parte Barone [1997] EWHC Admin 988. On 7 November 1997, the Divisional Court concluded that it would not be in the interests of justice to return Mr Barone. The House of Lords subsequently refused an application for permission to appeal, advanced on behalf of the Governor acting for the Italian Republic.
7. The reasoning of the court is vital to resolution of this appeal. The statutory system for extradition at that time was contained in Part II of the Extradition Act 1989. By s.6(2):-

"The person who is alleged to be unlawfully at large after conviction of an extradition crime shall not be returned to a foreign State, or committed or kept in custody for the purposes of return to a foreign State, if it appears to an appropriate authority –

a) that the conviction was obtained in his absence; and

b) that it would not be in the interests of justice to return him on the ground of that conviction."

8. The court had access to the judgments of the Italian courts, statements made by the Deputy State Prosecutor General, Gianfranco Burdino, and an analysis of the evidence relied on in the Italian courts by Mr Barone's solicitor. The court took the view that, in order to determine where the interests of justice lay, it was necessary to examine the evidence. The only direct witness was a co-accused, Nazzareno Manco. The Divisional Court heard expert evidence from a Consultant Psychiatrist of great standing and experience, Dr Riccio, who deduced from psychiatric reports obtained in 1976 that Manco was highly suggestible and suffering from a psychopathic personality disorder. He feigned physical symptoms, was callous and showed no remorse. His psychopathic personality disorder rendered him easily prone to anti-social behaviour, with a tendency to manipulate events to his own advantage (paragraph 24 of the judgment).
9. The Divisional Court considered the injuries which Mr Barone appeared to have suffered. It concluded that there had been a failure to analyse blood found on the glass at the scene of the murder in order to test whether it was Mr Barone's blood. Furthermore, no one had conducted a firearms residue test despite the allegation that Mr Barone pulled the trigger (see paragraphs 25-28).
10. The Divisional Court concluded that the circumstantial evidence on its own was insufficient (see paragraph 23). It was also disturbed by the comments of the Italian Court of Appeal as to the inferences to be drawn from Mr Barone's false alibi and the Italian Court of Appeal's reference to "objective traces of gunshot" on Mr Barone's body of which there had never been any evidence (see paragraphs 31-33).
11. The Divisional Court then considered the evidence from Professor Iorio as to the procedure adopted in Mr Barone's trial. He was tried under an Italian Code of 1930. The prosecution was able, under that Code, to rely on statements made by the co-accused Manco to the police, to an investigating judge, and to other witnesses in the absence of Mr Barone. Mr Barone had no possibility, either by himself or through his lawyer, of properly challenging that evidence. Manco, the accomplice, did not have to be called to give evidence and if he was called could not be directly cross-examined. The most the defence could do would be to ask the trial judge to put certain questions.
12. Moreover, if Mr Barone had given evidence himself under the 1930 Code his evidence would not have been regarded as of equal standing with other evidence available to the court. Professor Iorio explained that trials can no longer be conducted under the old Code. Under a new Penal Code the accomplice Manco would have to testify and would be exposed to cross-examination. His evidence to others would be excluded as hearsay. Moreover, as an accomplice, his evidence would now be treated with great care by the Italian courts, which would look for corroboration. The Divisional Court commented that Manco's "vital" evidence was presented in a way which would not be regarded as acceptable in Italy nowadays. It was not properly challenged and never could have been properly challenged even if Mr Barone had not fled the country.
13. The Divisional Court concluded that it would not be in the interests of justice to extradite Mr Barone for two linked reasons. First, that in the light of the evidence and procedure the conviction needed to be reviewed. Second, there was no possibility of such a review. Kennedy LJ said:-

"34. So, as it seems to me, for all the reasons I have identified, if justice is to be done, this conviction needs to be reviewed, but Professor Iorio says that even today there is no scope for such a review, and that is confirmed by Dr Gianfranco Burdino, the Deputy State Prosecutor General, in his letter of 7 May 1997, which concludes: 'once Barone is expedited he shall not be tried again. He may be entitled to request a re-opening of his case – as per Art.630, the Code of Criminal Procedure – only if he can produce new evidence which was not examined in the previous trial.'

35. There is nothing from the Government of Italy to indicate that any of the matters to which I have referred would trigger a re-opening of the case pursuant to Art.630, and unless that is what will happen if the applicant is returned, I conclude that it would not be in the interests of justice to return him."

14. It is plain that, under the statutory regime in 1989, the Divisional Court felt able to analyse evidence which was not before the Italian Courts, the strength of the evidence against Mr Barone, and in that context, the inadequacy of the procedures deployed at his trial under the 1930 Criminal Code.
15. In 2001 Mr Barone attempted to procure an official pardon from the Republic of Italy. He was unsuccessful. In 2006 his sentence was reduced from 28 years' imprisonment to 21 years' imprisonment. He became a British citizen in February 2000 but, as his statement makes clear, he has never regarded himself as free from the risk of having to serve his sentence should he leave the United Kingdom.
16. On 1 January 2004 the United Kingdom ratified the Council Framework Decision of 2002, introducing the new extradition regime under the Extradition Act 2003. The Framework Decision was ratified by Italy on 14 May 2005. There is now more than ample authority for the proposition that the new regime was designed to replace extradition between Member States by a system of surrender between judicial authorities (see Recital 5, Council Framework Decision 2002/584/JHA of 13 June 2002). The European Arrest Warrant was designed to implement a principle of mutual recognition and was based on a high level of confidence between the Member States (see Recitals 6 and 10). The underlying assumption of the Framework Decision is that Member States share common values, recognise common rights, and should trust the integrity and fairness of each other's judicial institutions (Dabas v High Court of Justice in Madrid, Spain [2007] 2 AC 31 paragraph 4).
17. For the purposes of the instant appeal, the important change lies in the fact that the requesting judicial authority is not, in a case under Part I of the 2003 Act, required to adduce evidence to show a case to answer (see, e.g., R (Bermingham) v Director of SFO [2006] EWHC 200 [2007] QB 727 paragraph 98). However, within the statutory regime under the 2003 Act there exists an implied power in domestic courts to protect the integrity of the statutory extradition regime. As Laws LJ put it:-

"The implication arises from the express provisions of the statutory regime which it is his (the district judge's) responsibility to administer. It is justified by the imperative that the regime's integrity must not be usurped. Where its integrity is protected by other powers, as in the Atkinson, Schmidt, and Gilligan cases, the implication is not justified. But under the 2003 Act that is not the case. The implication of an abuse jurisdiction – Lord Reid's inference – follows." (paragraph 97)

18. Laws LJ gave, as example of abuse, the failure of a prosecutor to exercise good faith by pressing a request when he knows he has no real case or the deliberate delay of the extradition process to gain the advantage of the 2003 Act. (paragraph 100). The rationale for the existence of the power to protect the statutory regime's integrity is to protect the court from manipulation by invoking procedures which might oppress or unfairly prejudice a requested person (see the application of the statement of Bingham LJ in Ex-parte Ellison [1990] RTR 220 at 227 to the 2003 regime by Lord Phillips CJ in R (Government of the United States of America) v Bow Street Magistrates Court [2006] EWHC 2256 (Admin) [2007] 1 WLR 1157 paragraph 82).
19. The Extradition Act 2003 identifies a series of steps which the district judge must take before ordering a requested person's extradition where he is unlawfully at large after conviction of the extradition offences. The judge must consider the bars to extradition specified in s.11 and if there are no bars, consider the statutory questions raised in s.20 (see s.11(4)). Where the judge concludes that a person was not convicted in his presence he must decide whether that person deliberately absented himself from trial (s.20(3)). If he does so decide he must proceed under s.21 (s.20(4)). S.21 'Human Rights' provides:-

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

(2). If the judge decides the question in sub-section (1) in the negative he must order the person's discharge.'"

20. At the hearing before District Judge Purdy it is clear that the judge was not invited to consider the statutory questions posed by s.21. Rather, he considered the extent to which he was bound, or should follow, the decision of the Divisional Court in the hearing in 1997. When I queried that course of events, Miss Montgomery QC, for the respondent, Franco Barone, with her customary frankness, told the court that the decision to advance an argument as to abuse of process was deliberate. It was adopted in order to avoid any possibility of further evidence being adduced by the judicial authority and to underline the effect of the decision of the Divisional Court. That that was the course adopted, at the invitation of Mr Barone, by the district judge, is confirmed by the Respondent's Notice in this appeal which reads:-

"Should there be any dispute as to whether the district judge made a determination on whether extradition would breach the respondent's human rights within the meaning of the Human Rights Act 1998, the respondent will contend extradition would breach his human rights."

21. This approach underlies the essential contention of the respondent that the district judge was estopped from reaching any decision inconsistent with the conclusion of the Divisional Court. Alternatively, if issue estoppel does not apply, the judicial authority should not be permitted to mount a collateral attack on the final decision of the Divisional Court in the previous proceedings. To do so is impermissible and abusive.
22. There can, in my view, be no question of issue estoppel. The statutory question posed by s.6 of the Extradition Act 1989 was quite different from the jurisdiction which Mr Barone now seeks to invoke. The statutory question in the 1998 Act was whether it was in the interests of justice to extradite Mr Barone. The Court concluded in the light of its examination of the evidence, the procedural inadequacy of the 1930 Criminal Code, and the impossibility of review, that it was not in the interests of justice to do so. That is an issue different from the question whether the Court should exercise its implied power to conclude that it must protect the integrity of the statutory regime by refusing extradition.
23. Miss Montgomery QC accepted that there was no impediment, other than questions of abuse of process, which prevents a requesting State which has hitherto failed to obtain extradition through an arrest warrant from trying again. She was right to do so. In R (Kashamu v Governor of Brixton Prison [2001] EWHC Admin 1980, a request for extradition under the 1989 Act had failed for non-disclosure. The institution of second proceedings was not of itself an abuse (paragraph 34).
24. But, she submitted, if issue estoppel did not strictly apply, to seek extradition on the basis of a European arrest warrant amounted to a collateral challenge to the final conclusion of the Divisional Court in 1997. That appears to have been the basis of District Judge Purdy's decision. He said:-

"If this case did not have the 1997 extradition history, applying current presumptions of due process being promptly available throughout ECHR countries, the Defence may have struggled to persuade this Court to consider evidence, questions of guilt/innocent and general trial procedure being squarely for the local domestic courts and not those exercising an extradition jurisdiction – see inter alia Symeou v Greece [2009] EWHC 897 (Admin), not cited before me. But that is to ignore the history and material now, as a fact, before this Court and in my judgment in the full context of this case, properly so. To my mind I must conclude Franco Barone's conviction was unsafe and secondly cannot (absent new evidence which the judicial authority clearly think highly unlikely and Franco Barone suggests none) have any further review/appeal. These factual conclusions lead me to respectfully adopt Lord Brown of Eton-under-Haywood's words in McKinnon v Government of the USA [2008] 1 WLR 1739 paragraph 8 regarding a 'jurisdiction to consider whether the extradition proceedings constituted an abuse of process so as to protect the integrity of the statutory regime.' To allow this extradition to proceed given the history of the case would be unjust in my judgment and offend 'the integrity of the statutory regime'. Accordingly, I stay this request, holding it to be an abuse of process of this Court."

25. The question whether the issue of an Extradition Warrant amounts to an abuse of process following the 1997 decision of the Divisional Court must be answered in the context of the new regime. It is important to acknowledge that the mere fact that the circumstances which give rise to the request for extradition pre-date the Framework Decision is no reason whatever for preventing a Member State from invoking the statutory regime which brings the Decision into domestic effect. As Laws LJ in Bermingham observed:-

"We cannot entertain any kind of presumption that where in an extradition case the facts arose in the life of the 1989 Act, the defendant should ordinarily have the benefit of that Act and not be fixed with the effects of the supervening statute. Such a presumption would be unconstitutional: it would imply a value judgment by this court that the scheme of the earlier legislation was to be preferred to that of the 2003 Act." [99]

26. There is nothing within the Framework Directive or the 2003 Act which suggests that the new regime cannot be invoked because the circumstances which could have been governed by the 1989 Act. Accordingly, the judicial authority in Italy contends that the Divisional court proceedings are irrelevant. Under the regime of the Framework directive it is no longer for the court of the requested State to consider the strength of the evidence. Unless it shows an absence of good faith by the prosecutor that evidence is irrelevant. The essence of the Framework Decision is to trust the courts and judicial officers of the requesting State and their assessment of the strength of the case.
27. The Divisional Court received fresh evidence about the strength of the evidence against Mr Barone, and reached conclusions as to the strength of that evidence. For example, the Divisional Court heard evidence from a Consultant Psychiatrist not called in the trials in Italy, Dr Riccio, and a distinguished Pathologist, Dr Roland Hill, as to the nature of the injuries suffered by Mr Barone (see paragraph 28 of the judgment). None of that is permissible under a regime which abolished the old system of extradition.
28. Accordingly, Mr Jones QC submits, on behalf of the judicial authority, that this court is bound to consider the communication from the judicial authority, who is the same as the official in the original extradition request, on the basis that the Divisional Court's judgment is irrelevant. The Deputy Prosecutor General declares, in a letter dated 13 May 2010 to the UK Liaison Magistrate, that:-

"The evidence has been examined with objectivity and conscience. The guilt of Mr Barone has been declared by three different courts (the Court of 'Assize', the Court of Appeal of 'Assize', and the Supreme Court) with amble (sic) and exhaustive reasoning, on the basis of irrefutable probative material;"

29. I quite accept that the mere fact that a previous request for extradition under the old regime had failed is not of itself a basis for refusing a fresh request for surrender, as it might more accurately be described, under the new regime. It is possible to envisage just the same circumstances as occurred in Kashamu, in which a request failed for non-disclosure but was repeated under the new regime. But it does not follow that the previous consideration of the court of the requested state is irrelevant.
30. The Divisional Court did not say that the conviction was unsafe (contrary to District Judge Purdy's comment) but it did conclude, in the light of its views as to the strength of the evidence and the unfairness of the procedure, that the conviction needed to be reviewed and refused extradition because that was not possible. The basis upon which the Divisional Court reached its conclusion was founded upon the unfairness of the 1930 Code. I have already identified the procedure which precluded cross-examination by the respondent of the accomplice, Manco. The Divisional Court records, without any evidence to contradict it and without any apparent dissent, the evidence of Professor Iorio:-

"What Manco (the accomplice) was alleged to have said was admissible in evidence without the possibility of there being any proper challenge by the applicant or by his lawyer, and that, Professor Iorio contends, contravened Article 6(3)(d) of the European Convention. Manco did not have to be called to give evidence, and if he was called, he could not be directly cross-examined." (judgment, paragraph 29)

31. The Divisional Court did not set out Article 6(3)(d) which provides:-

"3. Everyone charged with a criminal offence has the following minimum rights:

(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;"

32. In my judgement, the essence of Mr Barone's resistance to the European Arrest warrant is that under the 1930 Italian Code there was no possibility of a fair trial compliant with Article 6. Furthermore, there is now no possibility of reviewing the trial on that basis unless there is fresh evidence. No one suggests that any such fresh evidence is available. To constitute fresh evidence it would have to be "subsequently uncovered" (see letter from the Deputy Prosecutor General dated 30 March 2010).
33. The Deputy Prosecutor General knew full well the nature of the criticism made by the Divisional Court as to the procedure in the 1930 Code and as to the evidence. Yet he has not chosen to meet either the evidential or the procedural defects which the Divisional Court identified. He merely contends that he does not have to do so.
34. I do not agree. It is true that the new regime depends upon trust in the integrity and fairness "of each other's judicial institutions". But not even the expert Italian witnesses, in their uncontradicted evidence, seem to have placed any trust in the Italian criminal procedure introduced in 1930. The Deputy Prosecutor has not sought to advance any fresh evidence under the new regime as to why the courts in the United Kingdom should do so now. Moreover, the Framework Decision depends upon mutual respect and the stance adopted by the Italian judicial authority pays no respect, indeed, seeks to ignore the decision of the Divisional Court and of the Judicial Committee of the House of Lords, solely on the basis that under the 2003 Act courts would now not be able to adopt the approach to the evidence which the Divisional court previously adopted. No attempt has been made to meet the views of the Divisional court as to the defects in the evidence.
35. Mr Jones QC, on behalf of the Italian judicial authority, submits that the correct procedure would have been to invoke s.21 and, at worst, I should send the case back to the District judge to consider Article 6 under that section.
36. The Extradition Act 2003 provides a carefully crafted series of steps which the judge is required to follow in order to achieve the objective of the Framework Directive. S.21 forbids extradition if that would not be compatible with a fugitive's convention rights (see Laws LJ, Caldarelli v Court of Naples, Italy [2007] EWHC 1624 (Admin) 2008 1 WLR 31 paragraph 42).
37. Under s.21, the court would be required to consider whether there had been a flagrant denial of the right to a fair trial (see R (Ullah) v Special Adjudicator [2004] 2 AC 323 paragraph 24) and would have to have regard to the whole course of the proceedings in the requesting State (see Laws LJ in Caldarelli at paragraph 42).
38. But the circumstances of this case are unusual. The Italian authorities have had every opportunity to demonstrate that the conviction was compliant with Article 6. It is clear that the requesting State took no steps in the Divisional Court in 1997 to adduce expert evidence of Italian Law and Procedure to contradict that proffered on behalf of Mr Barone. Nor did it seek to do so before the District Judge. Even if the case were sent back pursuant to s.29(5)(b) and (c), I was not told of any material to contradict the assertions as to the unfairness of the procedure. The judicial authority condescended to no particulars in support of his assertion that there was irrefutable probative material. In those circumstances, a decision refusing to order extradition under s.21 would be inevitable.
39. I conclude that the response to the ruling of the Divisional Court, which amounts to an attempt to ignore it merely on the basis of the Framework Decision, does amount to an abuse of process and I uphold the decision of the District Judge on that basis.
40. I should mention, shortly, the other basis for refusal.
41. Judge Purdy took the view that it would be oppressive to order extradition "by reason of the passage of time" since Mr Barone became unlawfully at large, pursuant to s.14 of the 2003 Act. He acknowledged that Mr Barone was a fugitive from 1976 until 1997 and the success of his habeas corpus application. He continued:-

"Thereafter, although by expressly rejecting a pardon and then re-issuing extradition proceedings by the instant EAW in 2008 the Italian Government and subsequent judicial authority have done nothing to raise or foster any proper hope of security for Franco Mr Barone, the fact of these proceedings and his legitimate positive family/business life thereafter to my mind falls into something justifying a sense of security so long, as he has, Franco Mr Barone remained in the UK. While I doubt even Lord Brown had the current factual scenario in mind when finding as he did in Gomes the principle in my judgment applies to the instant facts."

42. It is, accordingly, necessary to identify the principle explained by Lord Brown in Gomes v Government of the Republic of Trinidad and Tobago [2009] UKHL 21 [2009] 1 WLR 1038. Lord Brown acknowledged that an overall judgment on the merits was required, unshackled by rules with too sharp edges, but sought a substantial measure of clarity and certainty. He continued:-

"If an accused…deliberately flees the 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 for the ensuing delay in bringing him to justice because of some subsequent supposed fault on their part, whether this be, as in his case, losing the file, or dilatoriness, or, as will often be the case, mere inaction through pressure of work and limited resources. We would not regard any of these circumstances as breaking the chain of causation…with regard to the effects of the accused's own conduct. Only a deliberate decision by the requesting State communicated to the accused not to pursue the case against him, or some other circumstances which would similarly justify a sense of security on his part, notwithstanding his own flight from justice, could allow him properly to assert the effects of further delay were not 'of his own choice and making'." [64]

43. Mr Barone relies upon the lapse of time since 1997. Italy, of course, had no power to issue a European Arrest Warrant until it ratified the Framework Decision. Thereafter there was a delay of approximately 3 years. During that period, as I have pointed out, Mr Barone never had a sense of security other than that promoted by the courts of this country. The requesting State, Italy, never did anything to promote any such feeling. On the contrary, when a pardon was sought it was refused. Mr Barone knew that were he to leave England he would be at risk of extradition.
44. The principle set out by Lord Brown looks to the conduct of the requesting State. Mere inaction is not enough. Certainly, although Lord Brown's reference to "some other circumstances" might embrace the actions of the courts in the requested State, even the effect of the decision of the Divisional Court and refusal of permission to appeal to the House of Lords is tempered by Mr Barone's own appreciation of the risk he remained under should he leave the country.
45. Furthermore, by far the most substantial period of delay was brought about by his own decision to escape from prison. It should not be forgotten that he has not only been accused but convicted of the most serious of offences and in those circumstances the strictures of Lord Brown that the bar should only apply "in the most exceptional circumstances" (paragraph 30) and that the statutory regime should be applied so as to ensure that fugitives cannot find safe havens abroad (paragraph 36) apply with particular force in the instant case.
46. In those circumstances I disagree with the judge that it would be oppressive to extradite Mr Barone. In my view s.14 does not operate to bar his extradition. But for the reasons I have given I dismiss the appeal.