England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand London WC2A 2LL
		18 February 2010

1. LORD JUSTICE ELIAS: I will ask Calvert Smith J to give the first judgment.
2. MR JUSTICE CALVERT SMITH: This is an appeal under section 26 of the Extradition Act 2003 from the decision of District Judge Evans to order the extradition of the appellant to Italy to serve a sentence of three years and eight months in respect of four convictions for fraud and extortion offences committed in four different locations in Italy.
3. Italy is a designated Category 1 territory pursuant to section 1 of the Extraction Act 2003. Accordingly, Part 1 of that Act applies, as modified by the provisions of the Extradition Act 2003 (Multiple Offences) Order 2003 and the Police and Justice Act 2006, Schedule 13.
4. Section 26 of the Act, where relevant, states:

"(1) If the appropriate judge orders a person's extradition under this Part, the person may appeal to the High Court against the order.

...

(3) An appeal under this section may be brought on a question of law or fact."

By section 27:

"(1) On an appeal under section 26 the High Court may—

(a) allow the appeal;

(b) dismiss the appeal.

(2) The court may allow the appeal only if the conditions in subsection (3) or the conditions in subsection (4) are satisfied.

(3) The conditions are that—

(a) the appropriate judge ought to have decided a question before him at the extradition hearing differently;

(b) if he had decided the question in the way he ought to have done, he would have been required to order the person's discharge.

(4) The conditions are that—

(a) an issue is raised that was not raised at the extradition hearing or evidence is available that was not available at the extradition hearing;

(b) the issue or evidence would have resulted in the appropriate judge deciding a question before him at the extradition hearing differently ..."

5. I refer to sub-section (4) because, when the case was brought on for hearing today, a matter was raised by the appellant arising from a very recent judgment of a court in Milan concerning the sentence to be served by this appellant, and effectively ordering that a period of time when he had been in custody in France prior to his trial for offences for which he was later convicted in the Milan court should be deducted from the term which he would need to serve. However, having considered the matter carefully and having had the benefit of a translation of part of the document from the Milan court, supplied by a Deputy Public Prosecutor today by e-mail, and other documents supplied by the appellant, we took the view at the commencement of the proceedings that this was not in fact an issue not raised at the extradition hearing which could possibly affect the validity of the original decision, and so the appeal remains as it was, based upon a submission that the District Judge should have decided questions before him differently at the extradition hearing.
6. The sole ground of the appeal is that the extradition should not have been ordered because it was barred by section 14 of the Act. So far as relevant, section 14 reads:

"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 ..."

7. There are four European Arrest Warrants the subject of this appeal. They have been numbered in various ways in these papers and most recently in a bundle. I propose to take them in chronological order. The first, which I call the Palermo warrant, derives from a conviction and final judgment and sentence in May of 1999 for an offence of extortion. The sentence was 22 months' imprisonment, originally suspended. The appellant was tried in his absence, and the offence involved an attempt to obtain some £200,000 worth by threats to reveal the complicity of his victim in weapons smuggling.
8. Second, the Treviso warrant. This derives from a conviction and final judgment and sentence in July 1999 for an offence of swindling. The sentence following final judgment was four months' imprisonment, again originally suspended. Again, the appellant was tried in his absence. This, in summary, was an attempt to perpetrate what has become known in this country as an advance fee fraud, posing as a lawyer.
9. Third, the Naples warrant. This derives from a conviction and final judgment and sentence in March 2001 for an offence of swindling. The sentence was six months' imprisonment, again originally suspended, and once again the appellant was tried in his absence. This too was an advance fee fraud in which the sum of some £80,000 was defrauded.
10. Finally, the Milan warrant, which derived from a conviction and final judgment and sentence in August 2001 for ten offences of swindling, again advance fee fraud, the sentence in that case being 48 months' immediate imprisonment. On this occasion, although there was a dispute about it before the District Judge, he found, having heard evidence from the appellant, that the appellant had indeed attended his trial, whereas the appellant had claimed that he had been represented at his trial by a lawyer who acted on his instructions and had been informed of the result of the trial, but he had not physically attended it. That case involved some ten offences and a total sum of the order of £300,000 being defrauded.
11. The offences which gave rise to all four convictions were committed between 1990 and 1995, and the total of the sentences imposed was six years and eight months. The most recent conviction, the Milan warrant conviction, had the effect of activating the earlier sentences in order to make that total. It appears that a law passed in 2006 in Italy reduced all sentences, or at any rate this sentence, by three years, the total sentence then remaining being one of three years and eight months.
12. In respect of the three trials which were conducted in his absence, he is entitled to seek a retrial. The warrants in this case were issued in December 2008 following an order of the court in Milan in April 2007 that the suspended sentences should be activated. The District Judge considered submissions that, for the purpose of ascertaining the true period of delay between the moment when the judicial authority could have first sought extradition and the date on which it actually did so, the clock should be started on 16 April 2007, when it was said on behalf of the judicial authority the sentences had become operative. The reason, it was said, for that was that the law of 2006 had been pending for some time, and the new enforcement order of the 2007 date was issued following the passage of that new law. However, the District Judge decided, for reasons which are not now in dispute before us, to calculate the time from the conviction in August 2001 when, in his presence, the appellant was sentenced to the immediate sentence of four years, which in due course triggered the operation of the remaining suspended sentences.
13. According to the appellant, and indeed backed up by information which was before the District Judge and the new material put before us this morning, the appellant was arrested in France in 1995 in respect of the Milan warrant allegations, but after he had spent some four months or so in custody in France the judicial authority abandoned its request for his extradition apparently because of difficulties over speciality in respect of some of the offences in which it sought his extradition. The very recent judgment of the court, as I have already indicated, has ruled that that period should be deducted from the sentence to be served by this appellant.
14. In 1999 or 2000, the appellant moved to Scotland. The District Judge heard evidence about his life in Scotland, and the submissions made to the District Judge have been repeated to the court today. In summary, the District Judge found that, while in Scotland, the appellant had used his correct name, that he had registered with the Italian Consulate in Scotland as an Italian living abroad, and also with his local commune in Milan. He further found that, as the appellant testified, he had been employed first as a coffee shop proprietor in Scottish National Trust premises, and later and most recently as a photographer. At this latter profession he is sufficiently well-known for his name to be found on a Google search, and he has been a photographer at a number of high profile events.
15. He further found, as I have already indicated, that the appellant knew well that he was liable to serve at the very least the four-year term of imprisonment which he had been informed he had received by his lawyer back in 2001, and further that, as he confessed in evidence, he hoped that he would not in fact be tracked down and sent back to Italy to serve it.
16. Finally, the District Judge found that the appellant had not fled as such or concealed his whereabouts or actually evaded arrest. However, in the result, he found at paragraph 16 of his reasoned judgment that:

"Both the defendant and the lawyer knew he was wanted but neither would take any action that might assist the Italian authorities in tracking the defendant down. The defendant in his evidence accepts he knew he would have to serve the 4 years. He chose to ignore it and lived in hope that he would not be tracked down. He is not in the same position as someone totally unaware of a foreign conviction and sentence. Despite all the good and useful things he has done with his life in the last 8 years I do not regard it as oppressive to order his extradition by reason of the passage of time."

17. The appellant also maintained before the District Judge, and he has effectively subsumed it in his submissions on section 14 before us, an Article 8 claim that his return would infringe his right to a private life.
18. The principles which the courts have applied in interpreting section 14 and applying it to individual cases are well-known, starting with the case of Kakis v the Government of the Republic of Cyprus [1971] 1 WLR 779. Those who flee justice and create by their own actions the delay in their being brought to justice cannot rely on the delay to prevent their extradition. Such people have come to be known as classic fugitives.
19. Clearly on the facts of this case, the District Judge found, and was right to find, that this appellant is not a classic fugitive. However, he was also right to find that he was well aware that he was wanted in his own country, that he would, if he ever set foot in his own country again, have to serve at the very least a four-year sentence imposed by the Milan court in 2001, and therefore he cannot be said, as the District Judge found, to be blameless.
20. The principle has been applied and refined in a number of cases decided since then, very recently in the case of Gomes and Goodyear [2009] UKHL 21. The factors that the court has to take into account include the seriousness or otherwise of the alleged offending, and, as a possible balancing factor, if the case is thought to fall close or on the borderline of oppression, any culpable delay on the part of the requesting state.
21. So far as the first matter is concerned, this man, albeit many years ago now, was clearly a career criminal, acting as an advance fee fraudster and obtaining what, by any stretch of the imagination, were very large sums of money from people whose businesses were in trouble and who were in desperate need of finance. It is said that the penalties were not very serious penalties, at least in the early years. However, the Milan conviction, which came as a culmination of years of this professional criminality, was a substantial sentence, and, as I have already said, involved something of the order of £300,000 and ten different offences on top of the previous three convictions.
22. As to the inexcusable delay, the cases decided since Kakis make it absolutely clear that, for the purposes of extradition, and this is only realistic, the state cannot be seen as one and indivisible. It is suggested on behalf of the appellant that the Italian authorities should have effectively put out an "all ports" or an "all consulates" inquiry worldwide to track down this man. Their failure to do so was culpable.
23. On behalf of the judicial authority, Mr Watkins concedes that there is some evidence of some delay, no doubt in part contributed to by the changes in Italian law of sentencing and the final decision of 2007, as well perhaps as by a lack of co-ordination within the Italian system concerning the search for this appellant. However, I accept the submission of the Crown that this is in fact not a case which comes even close to the borderline for an inexcusable delay to feature as a factor in preventing extradition.
24. In my judgment, and treating the District Judge's judgment with the respect which appellate courts have enjoined this court to apply, I find that the District Judge applied the correct principles, that even taking into account the 2001 date rather than the 2007 date as his starting point, he was entitled to come to the conclusion he did: namely that the appellant knew about his conviction and his sentence and the dismissal of various appeals to an appeal court, and finally the court of Cassazione, and as was stated elsewhere in the judgment by the District Judge, he was "pretty close and akin to evading".
25. He was entitled to take account of the fact that, when returned, the appellant would be entitled to seek retrials on three matters which preceded the Milan matter, and to find that there are no striking and unusual facts to justify refusing the respondent's request for extradition of a person who has, after all, been tried, convicted and sentenced to his knowledge for serious offences.
26. There are sad features to this case. His children are now almost grown up, and going through or just about to finish university. His mother, who is in her 80s, has moved to this country to be with her family. But, as Mr Watkins submitted, all extraditions, and particularly extraditions after a period of time, involve hardship, and I cannot say that the hardship here takes this case into the ambit of oppression, as defined in section 14.
27. Accordingly, I would dismiss this appeal.
28. LORD JUSTICE ELIAS: I agree. As Lord Brown pointed out in the case of Gomes and Goodyear [2009] UKHL 21 at paragraph 31, the test of oppression will not easily be satisfied. Hardship, the comparatively commonplace consequence of an order for extradition, is not enough. I accept there will be hardship in this case. As my Lord has pointed out, there will be disruption to this appellant and, sadly, for his family. To some extent, of course, that has been brought upon by himself in evading justice for a period of time.
29. One can have sympathy for somebody who has, for the last ten years, put his life on the right path having committed quite serious offences before then, but I am certain, as my Lord says, that the hardship that will be caused here does not begin to satisfy the test of oppression. Nor is it indeed a marginal case where the culpability of the requesting authority in delaying seeking extradition will come into play.
30. In any event, for the reasons given by my Lord, I do not think such culpable delay has been demonstrated in this case.
31. MR POWLES: Thank you, my Lords. May I rise two matters: first of all, legal aid. I understand it is appropriate --
32. LORD JUSTICE ELIAS: You want approval for the legal aid certificate?
33. MR POWLES: Yes please, my Lord.
34. LORD JUSTICE ELIAS: Yes.
35. MR JUSTICE CALVERT SMITH: Certainly.
36. MR POWLES: The second matter is, those who instruct me will undertake to translate the document that was provided to the court this morning. If it does give rise to anything that may lead to further litigation, may we have liberty to return to the court?
37. LORD JUSTICE ELIAS: I think the position is, we do not need to give you liberty as such. You can raise it with the authorities and Mr Watkins and his team, as it were, and it may or may not give you a fresh ground for coming back to court. I do not at the moment see that we need to give you liberty to apply. You would not be setting aside this judgment, I think. It would be fresh evidence which might cause the authorities to look at the matter again.
38. MR POWLES: My Lord, if the circumstances arise, we will have to investigate the most appropriate way to proceed.
39. LORD JUSTICE ELIAS: Thank you both.