QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| Office of The Prosecutor General of Turin
|- and -
Ms C Montgomery QC and Mr J Smith (instructed by Whitelock & Storr) for the Defendant
Hearing dates: 20th October, 2010
Crown Copyright ©
Lord Justice Moses :
"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."
"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."
"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)
"(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.'"
"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."
"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  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  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."
"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." 
"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;"
"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)
"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;"
"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."
"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'."