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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Lila v Office of the Prosecutor of the Republic Attached to the Court of Pesaro, Italian Republic [2025] EWHC 1389 (Admin) (06 June 2025)
URL: http://www.bailii.org/ew/cases/EWHC/Admin/2025/1389.html
Cite as: [2025] EWHC 1389 (Admin)

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Neutral Citation Number: [2025] EWHC 1389 (Admin)
Case No: (1) AC-2021-LON-002385
(2) AC-2024-LON-001648

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

Royal Courts of Justice
Strand, London, WC2A 2LL
06/06/2025

B e f o r e :

MR JUSTICE MOULD
____________________

Between:
ELIS LILA
Appellant
- and -

OFFICE OF THE PROSECUTOR OF THE REPUBLIC ATTACHED TO THE COURT OF PESARO, ITALIAN REPUBLIC
Respondent

____________________

George Hepburne Scott (instructed by Bark & Co Solicitors) for the Appellant
Georgia Beatty (instructed by Crown Prosecution Service) for the Respondent

Hearing dates: 11th March 2025

____________________

HTML VERSION OF APPROVED JUDGMENT
____________________

Crown Copyright ©

    This judgment was handed down remotely at 2pm on Friday 6th June 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
    .............................
    MR JUSTICE MOULD

    MR JUSTICE MOULD :

    Introduction

  1. The Appellant, Elis Lila, an Albanian national born on 13 March 1985, appeals from the orders of the Westminster Magistrates' Court made on 1 September 2021 and 14 May 2024 that he be surrendered to Italy under extradition warrants to serve a single aggregated sentence of 11 years 2 months imprisonment, pursuant to section 21(3) of the Extradition Act 2003 ["the 2003 Act"]. Italy is a Category 1 territory for the purposes of the 2003 Act. These extradition proceedings are governed by Part 1 of the 2003 Act.
  2. The Appellant has faced two sets of extradition proceedings.
  3. The first extradition proceedings took place before District Judge Griffiths on 10 August 2021 in relation to five European arrest warrants. I shall refer to those warrants as EAW1-EAW5. By the date of the hearing before the Judge, the sentence imposed on the Appellant which had been the basis for EAW3 had been revoked by the Italian court and EAW3 was to be withdrawn. On 1 September 2021, the Judge ordered the discharge of the Appellant in relation to EAW3 pursuant to section 41 of the 2003 Act. She also discharged the Appellant in relation to EAW1 pursuant to section 20(7) of the 2003 Act. The Judge however ordered the Appellant's extradition in relation to EAW2, EAW4 and EAW5.
  4. On 1 March 2023 the Italian Judicial Authority ["JA"] issued a fresh extradition warrant under the EU-UK Trade and Co-operation Agreement in place of the now withdrawn EAW3. I shall refer to that fresh warrant as TACA1. The Appellant's opposition to his extradition pursuant to TACA1 were heard by District Judge Snow on 7 May 2024. On 14 May 2024 he ordered the Appellant's extradition to Italy.
  5. On 7 September 2021, the Appellant gave notice of appeal under section 26 of the 2003 Act against the order of District Judge Griffiths. Upon the Appellant renewing his application following refusal on the papers, on 30 March 2022 Julian Knowles J granted permission to appeal on two grounds relating to sections 14 and 21 of the 2003 Act. On 16 February 2023 Jay J granted permission to add further grounds. Following the issue of TACA1 on 1 March 2023, on 6 June 2023 Linden J ordered a stay of those appeal proceedings until the final disposal of the then pending extradition proceedings in the Westminster Magistrates Court on TACA1.
  6. On 15 May 2024, the Appellant gave notice of appeal under section 26 of the 2003 Act against the order of District Judge Snow. On 4 November 2024 Heather Williams J granted permission to appeal, again on two grounds relating to sections 14 and 21 of the 2003 Act. She directed that the two section 26 appeals be hear together. Permission was refused on further grounds alleging that the Appellant's extradition pursuant to TACA1 was an abuse of process and that his extradition pursuant to EAW2 was barred by virtue of section 20 of the 2003 Act. The Appellant has since renewed his application for permission to appeal on those further grounds. I heard that application on a "rolled up" basis at the same time as the substantive appeals.
  7. The Appellant has made two applications to admit fresh evidence. The first application, dated 16 December 2024, seeks permission to admit an addendum witness statement signed by the Appellant's wife on the same date. The second application dated 4 March 2025, seeks permission to admit an addendum proof of evidence of the Appellant and a second addendum witness statement of the Appellant's wife, both signed on 3 March 2025.
  8. The Appellant was represented before me by Mr George Hepburne Scott and the Respondent by Ms Georgia Beatty. I am grateful to them both for their helpful written and oral submissions.
  9. Ground of appeal

  10. The two substantive appeals raise the following two grounds –
  11. (1) In each case, the District Judge was wrong to conclude that extradition of the Appellant on the outstanding arrest warrants would be neither unjust nor oppressive by reason of the passage of time since the Appellant became unlawfully at large and was accordingly not barred by virtue of section 14 of the 2003 Act.

    (2) In each case, the District Judge was wrong to conclude that extradition of the Appellant on the outstanding arrest warrants was compatible with his and his family's rights protected under article 8 of the European Convention on Human Rights ['ECHR'] and was accordingly not barred by virtue of section 21(2) of the 2003 Act.

  12. The further grounds on which the Appellant renews his application for permission are as follows –
  13. (1) District Judge Griffiths was wrong to conclude that the Appellant has a right to a retrial in relation to the offence which is the subject matter of EAW2 and that the Appellant's extradition on that arrest warrant was accordingly not barred by virtue of section 20(7) of the 2003 Act.

    (2) District Judge Snow was wrong to conclude that the Appellant's extradition was not an abuse of process, in circumstances where the total aggregate sentence on the basis of which the Appellant's surrender is sought under TACA1 includes a term of imprisonment for the offence alleged under EAW1, from which the Appellant had been discharged by District Judge Griffiths.

  14. At the outset of the hearing before me, Ms Beatty confirmed the Respondent's position as stated in her skeleton argument in response to the argument advanced by the Appellant in relation to EAW2 under section 20 of the 2003 Act. It was not in dispute that the Appellant had been neither present at nor deliberately absent from his trial for the offence contained within EAW2. There was no endorsement of Box 3.4 in EAW2 to guarantee his entitlement to a retrial. Conversely, there was evidence that indicated his entitlement to a retrial was contingent upon the Italian court making a finding that he had indeed been absent, but not deliberately absent, from his trial for that offence. Applying the principle stated by the Supreme Court at [51] in Merticariu v Romania [2024] UKSC 10; [2024] 1 WLR 1506, the Respondent conceded that the question posed by section 20(5) of the 2003 Act must therefore now be decided in the negative in relation to EAW2 and the Appellant be discharged in accordance with section 20(7) of the 2003 Act.
  15. I consider that the Respondent's concession in relation to EAW2 is well-founded. I grant permission to appeal and allow the appeal in respect of EAW2 on the basis of that concession. Pursuant to section 20(7) of the 2003 Act, I order the Appellant's discharge in relation to EAW2.
  16. The remaining grounds of appeal in relation to EAW4, EAW5 and TACA1, including the Appellant's argument based on an alleged abuse of process, are fully contested by the Respondent.
  17. The extradition proceedings

  18. EAW4 and EAW5 were both issued on 1 August 2020. EAW5 was certified by the National Crime Agency ["NCA"] on 1 September 2020. On 2 October 2020 the Appellant was arrested and remanded into custody. On 9 October 2020 he was granted conditional bail. EAW4 was certified by the NCA on 5 November 2020. The Appellant was arrested on 13 November 2020. His conditional bail was extended until his extradition hearing before District Judge Griffiths on 10 August 2021.
  19. TACA1 was issued on 1 March 2023 and certified by the NCA on 15 May 2023. The Appellant was arrested on 25 May 2023 and appeared before Westminster Magistrates' Court. He was again remanded on conditional bail until his extradition hearing before District Judge Snow on 7 May 2024. He remains on conditional bail.
  20. EAW4 and EAW5 are conviction warrants. They give particulars of the following offences –
  21. (1) EAW4 – aggravated threats of assault, including threats to kill, over a period until 21 January 2006, for which the Appellant was sentenced to a term of 1 year and 4 months' imprisonment.

    (2) EAW5 – conspiracy to supply cocaine over an 18 month period in 2007 and 2008, for which the Appellant was sentenced to a term of 6 years and 6 months' imprisonment and a fine.

  22. TACA1 is a conviction warrant which relates to four offences committed between 2005 and 2007 for the supply of cocaine and for facilitating prostitution, for which a sentence of 2 years' imprisonment and a fine had been imposed. TACA1 records that sentence became final on 23 November 2016. By TACA1 the Respondent sought the surrender of the Appellant to serve a remaining sentence of 11 years and 2 months' imprisonment, following an order issued by the court in Pesaro on 1 March 2023 for the aggregation and enforcement of sentences imposed under six previous judgments against the Appellant. Particulars of those judgments were given in a copy of the order issued by the court in Pesaro which was annexed to TACA1. As District Judge Snow states in [15] of his Judgment, that aggregated sentence of 11 years and 2 months' imprisonment included sentences contained in EAW1, EAW2, EAW4 and EAW5. In particular, its composition included 4 months' imprisonment for the offence which formed the basis for EAW1, from which the Appellant had been discharged by order of District Judge Griffiths on 1 September 2021. It is that fact which leads to the Appellant's complaint of an abuse of process in the extradition proceedings on TACA1.
  23. The District Judges' Findings of Fact

  24. The Appellant was born in Albania. In 1993 as a child he moved to Italy. His offending to which EAW4, EAW5 and TACA1 relate took place in Italy during the period between 2002 and 2008.
  25. Both District Judge Griffiths and District Judge Snow made findings of fact which are relevant to the issues arising on the appeals before this court.
  26. It is important to note at the outset that at both extradition hearings, the Respondent conceded that the Appellant was not a fugitive from justice in these cases.
  27. The Appellant gave oral evidence at his extradition hearing before District Judge Griffiths and was cross examined on behalf of the JA. His wife made a witness statement the contents of which were not challenged. She was not required to give oral evidence. The Appellant's eldest son, then aged 11 years, also attended the hearing before District Judge Griffiths. He had written a letter to the Judge, to which she refers in her judgment. The contents of his letter were not challenged and the Judge found it unnecessary to require him to give oral evidence.
  28. In [41] of her Judgment, District Judge Griffiths found the Appellant not to be a credible witness in relation to the history of criminal proceedings against him in Italy. She preferred the evidence of the JA, finding that the further information provided by the JA was both clear and detailed; and that it explained information provided in the EAWs.
  29. In relation to the EAW4 offence, the District Judge found that during 2008 and 2009 the Appellant had attended a preliminary hearing and been represented by a lawyer of his choice in the proceedings against him. He had been in custody at that time and had declined to attend subsequent hearings. He had been absent but represented by his lawyer on 8 July 2009 at the trial resulting in the decision. His lawyer had appealed on his behalf. On 19 December 2013 the EAW4 offence was reclassified and the sentence reduced on appeal to 1 year 4 months' imprisonment. On 28 January 2016 the Appellant's further appeal was declared inadmissible by the Supreme Court of Cassation and his sentence became final.
  30. In relation to the EAW5 offence, the District Judge found that the Appellant had been present at the decision hearing on 2 February 2012 at which he was sentenced to 6 years 6 months' imprisonment. He had also been represented by a lawyer of his choice. On 19 March 2012 his appeal was lodged bearing his signature. On 20 June 2014 the appeal court upheld his sentence for the EAW5 offence. The Appellant did not attend but was represented by a lawyer. His lawyer of choice then appealed to the Court of Cassation. On 23 November 2016 the Appellant's further appeal was rejected by the Supreme Court of Cassation and his sentence of 6 years 6 months' for the EAW5 offence became final.
  31. On 11 November 2016 an enforcement order was issued for "concurring" sentences of imprisonment of 15 years and 2 months.
  32. Turning to the Appellant's personal circumstances and family life, the District Judge made as series of detailed findings –
  33. (1) The Appellant had a large family all of whom live in Italy. He had a difficult childhood. He met his wife in Italy in June 2006. Their first child was born on 20 September 2009 in Italy. They lived in Bologna at that time, where the Appellant worked as a tiler.

    (2) On 21 September 2011, the Appellant was excluded from Italy as a result of his convictions. He returned to live in Albania. On 24 October 2011 he married his wife in Albania. His wife returned to Italy, but the Appellant remained in Albania as he was unable to return to Italy.

    (3) The Appellant was granted a temporary visa to return to Italy on 16 January 2012, so that he could attend for his trial. He attended that trial. He then returned to Albania as his visa was only temporary. His wife remained in Italy and would visit him in Albania.

    (4) On 3 February 2012, the Appellant submitted a request for a temporary residence permit as his wife was expecting their child. This was granted and their son was born on 2 October 2012.

    (5) On 2 April 2013, the Appellant's temporary visa ended. His wife continued to visit him in Albania with their son, but it was a difficult time and the Appellant struggled to live in Albania financially.

    (6) The Appellant found out that his wife had gone to live in the UK in 2013. She had been trafficked in Italy and came to the UK to escape. His wife claimed asylum in the UK which was granted. The Appellant remained in Albania, but came to the UK in 2016 where he applied for immigration status in the UK as a spouse. He was granted leave to remain for two and a half years, subject to extension.

    (7) The Appellant, his wife and family have remained in the UK since 2016. They have a settled intention to remain in the UK. There would be emotional distress to the Appellant and his family should he now be extradited.

    (8) The Appellant has worked in the UK as a tiler on a self-employed basis. Should he be extradited, he would not be able to work and there would be some resulting financial hardship both to him and his family.

    (9) The Appellant's wife looked after the children until 2018 when she opened her own beauty salon. They manage to work and care for the children by working together. They have nobody else to help with childcare. Their eldest son is a talented young football player who clearly has a good future, with this being a potential career for him. The Appellant organised his work based on his wife's work so that he could collect the children from school and take them to football where they played for Watford Academy. If he were extradited, the childcare would be a lot harder, in particular taking their son to football training.

  34. The District Judge made the following findings on the impact of extradition on the Appellant and his family –
  35. "That said, I find that this is a family who would cope. The evidence is that the Appellant's wife came to the UK with her two children, when she was extremely vulnerable, having been trafficked in Italy. Despite the obvious difficulties, given the trauma that she experienced in Italy, she was able to settle in the UK, with her children and bring them up. The Appellant was in Albania for around 3 years whilst his wife settled in the UK and made a new life for her and the children. I have no doubt that this was exceptionally difficult for the Appellant's wife and children but it demonstrates the strength of character of his wife and her amazing resilience and determination as a person and as a mother. For these 3 years, when she was no doubt at her most vulnerable, his wife built a life in the UK for her and her children, with no financial help from the Appellant and when he was in Albania and therefore, emotional support would be somewhat limited.

    Once in the UK, the Appellant's wife has been able to set up her own beauty salon. I accept that it will be difficult emotionally for her should he be extradited but the strength of character and resilience she has shown, will no doubt mean that she will cope. Sadly, emotional distress is not unusual in extradition cases. As she has her own business, and I find that she will find a way for this to work, she will be able to continue to run this, whilst also caring for her children. The Appellant stated that the salon would have to close, but I do not accept this. I find that his wife will find a way to make it work. It will be difficult. Even if I am wrong about that, his wife would be entitled to benefits. Again, it would be difficult, but I find that the family will cope.

    In relation to taking the children to football, in particular the son, and school and other activities, I find that the Appellant's wife will find a way to make this work. I have no doubt that the Academy will offer what support they can to the family. If she closes the business, then I still find that she will continue to ensure that their son is able to attend the Academy".

  36. The District Judge had read the letter from the Appellant's son. She acknowledged that entirely understandably, his son did not want his father to be extradited. She found nothing in the letter that she would not expect a child, who loves his father, to say. She had no doubt that the Appellant's son would not want his father to go to prison, even if it were in the UK. It was clear that the Appellant's son loves his father dearly and that he would be affected emotionally should his father be extradited. She continued –
  37. "Whilst the harm to the Appellant's children carries significant weight, as they are innocents in all of this, it is not my only consideration and I cannot ignore the serious nature of the offences and the significant sentence that has been imposed. I do not expect a young child to understand all of these issues fully but I do understand the depth of his feelings and the emotional distress he will suffer should his father be extradited. That said, I have no doubt with the love and support of their mother, the help of those at school and at the Academy, that the children will cope".

  38. The District Judge said that the Appellant had not committed any criminal offences since coming to the UK in 2016. However –
  39. "The Appellant's extradition is sought in relation to undoubtedly serious offences. The offences are violent offences and one of supplying drugs. The Appellant is wanted to serve a significant custodial sentence for his offences, which have been committed over a period of time. Following the JA revoking the sentence in EAW3, a sentence of 9 years and 2 months imprisonment was imposed for the remaining sentences, all of which remains to be served".

  40. The District Judge found that there had been delay in bringing the extradition proceedings which weighed in the Appellant's favour –
  41. "The offences are of some age and I accept that. That said, I cannot ignore the fact that the Appellant continued to commit offences, adding to the further cases in the EAWs. The Appellant also made several appeals which has contributed to the delay. Therefore, I find that a substantial part of the delay has been caused by the motions filed on behalf of the Appellant, which I find, have been on his instructions. The Appellant has failed to keep in touch with his lawyer, if he is right when he says that he was unaware of the outcomes of the appeal. Following the appeal, there has been very little delay in this case, in the issuing of the EAWs".

  42. At the hearing before District Judge Snow on 7 May 2024, both the Appellant and his wife gave oral evidence and were cross examined on behalf of the JA.
  43. In evidence, the Appellant said that he and his wife now had a third son who had been born on 12 January 2022. His wife had now sold her beauty business. Both of the older sons were talented young footballers and had been granted scholarships at a private school. He said that his children had been traumatised by his extradition proceedings and had attended psychotherapy. His wife was already depressed by the ongoing proceedings and would not be able to cope if he was extradited.
  44. In cross examination, the Appellant said that in 2021 his lawyer had applied to aggregate his prison sentences. There had been an aggregation hearing on 1 March 2023 attended by his lawyer. He accepted that he now had a total sentence of 11 years and 2 months' imprisonment to serve. He said that his lawyer had very recently made a further application on the grounds that the JA had not taken into account his time on curfew in the UK and that he had served one year in prison in 2008.
  45. The Appellant said that he had entered the UK illegally in 2016 on the back of a lorry. He had lawyers acting for him in relation to a pending immigration application. His wife and sons are all UK citizens. He remained of good character since arriving in the UK in 2016.
  46. In her evidence, the Appellant's wife said that he was the sole breadwinner for the family and that she would not be able to cope financially during his absence, if extradited. She would not be able to manage her older sons' daily routines by herself. They each attend football academies and train at different training grounds. She and the boys would remain in the UK, were the Appellant to be extradited. She had sold her business for £40,000. £5,000 in savings remained, which would not be enough to sustain the family without the Appellant. She would try to return to work in about 2 years' time when the youngest son begins school. In cross-examination, she said that her problem was not financial or practical, it was emotional.
  47. The Appellant said that he had been subject to a tagged curfew between 22.00 and 06.00 as a condition of his bail since October 2022. He on relied an expert report from an Italian attorney-at-law to establish that this period of night time curfew may count towards the prison sentence that he is required to serve if extradited to Italy. The expert acknowledged that possibility but also pointed to a court ruling that a curfew from 18.00 to 09.00 should not count towards sentence.
  48. District Judge Snow made a series of findings of fact. He found that the Appellant had been present at his trial. He was not a fugitive from justice. In 2016 the Appellant had entered the UK in 2016 illegally. There were doubts about his immigration status and whether he would be entitled to remain in the UK. The Appellant was aware that he had a substantial sentence to serve as a consequence of his conviction for the offences contained in TACA1.
  49. The District Judge said that the Appellant was a married man. He and his wife now had three children. He continued -
  50. "I have no doubt that the Appellant's children would be distressed at separation from their father. If the Appellant is extradited the children will continue to reside with their mother in the same home in the UK. The older children will continue to attend the same school. Mrs Lila has proved herself to be a capable parent who brought their eldest son up in reality alone between 2011-2012 and both of the older children alone from April 2013 until 2016.

    The Appellant has his own business. He will not be able to continue to operate his business if he is extradited.

    His family will remain in the UK if he is surrendered. There is doubt about whether the [Appellant] will be able to continue to return if he is extradited".

  51. The District Judge made findings in relation to the Appellant's history of offending in Italy and the criminal proceedings which founded TACA1 –
  52. "The offending is of some age, it occurred between 2005 and 2007. The Appellant was convicted at first instance on 25 March 2009. His conviction was upheld on appeal on 12 February 2013. I am sure that he was aware of the sentence that was imposed. He left Italy in April 2013. On 10 January 2014 his conviction was upheld by the Court of Cassation.

    The Appellant moved to the UK in 2016. An enforcement order was issued on 24 November 2016. EAW3 was issued on 10 August 2016. The Appellant was arrested originally on that EAW on 13 November 2020. As a result of the Appellant's application the judgment was declared unenforceable, and EAW3 was withdrawn and discharged on 1 September 2021.

    The aggregation judgment was given on 12 October 2022 and the aggregation order was issued in respect of all matters on 1 March 2023. Whilst the proceedings have been elongated the JA have been active throughout these proceedings which were complicated by the number of prosecutions that the Appellant faced".

  53. On the basis of the evidence before him, the District Judge accepted that the JA have the discretion to allow for the period that the Appellant has been subject to a tagged curfew to count towards his sentence. He found the likelihood that the Italian court would exercise its discretion to be "unclear".
  54. Ground 1 – section 14 of the 2003 Act

    Legal framework

  55. Section 14 of the 2003 Act provides as follows –
  56. "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—

    (a) committed the extradition offence (where he is accused of its commission), or

    (b) become unlawfully at large (where he is alleged to have been convicted of it)".

  57. The classic analysis of that statutory provision is that of Lord Diplock in Kakis v Republic of Cyprus [1978] 1 WLR 779, 782H –
  58. "'Unjust' I regard as directed primarily to the risk of prejudice to the accused in the effect of the trial itself, 'oppressive' as directed to hardship to the accused resulting from changes in his circumstances that have occurred during the period to be taken into consideration; but there is room for overlapping, and between them they would cover all cases where to return him would not be fair. 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. Any difficulties that he may encounter in the conduct of his defence in consequence of the delay due to such causes are of his own choice and making. Save in the most exceptional circumstances it would be neither unjust nor oppressive that he should be required to accept them.

    As respects delay which is not brought about by the acts of the accused himself, however, the question of where responsibility lies for the delay is not generally relevant. What matters is not so much the cause of such delay as its effect; or, rather, the effect of those events which would not have happened before the trial of the accused if it had taken place with ordinary promptitude. So where the application for discharge... is based upon the 'passage of time'... the court is not normally concerned with what would be an invidious task of considering whether mere inaction of the requisitioning government or its prosecuting authorities which resulted in delay was blameworthy or otherwise".

  59. In Gomes v Government of Trinidad and Tobago [2009] 1 WLR 1038, at [31], the House of Lords gave the following guidance on the approach to be adopted to the concept of oppression within this statutory context –
  60. "And, so far as concerns oppression, it is worth noting too Lord Diplock's statement in Kakis v Government of the Republic of Cyprus [1978] 1 WLR 779, 784 that: "the gravity of the offence is relevant to whether changes in the circumstances of the accused which have occurred during the relevant period are such as would render his return to stand his trial oppressive…" That said, the test of oppression will not easily be satisfied: hardship, a comparatively commonplace consequence of an order for extradition, is not enough".

  61. One factor that has been found to support a finding of oppression is that the requested person has been lulled into a false sense of security as a result of inaction on the part of the judicial authorities in the requesting state and dilatoriness in proceedings for the return of the requested person to face the outstanding charges against him or her. Counsel referred to Obert v Public Prosecutor's Office of Appeal of Ioannina, Greece [2017] EWHC 303 (Admin) at [37] and [39] –
  62. "37. …inaction on the part of the Italian and Greek authorities over such a long period in my judgment entitled the Appellant to consider that nothing would be done. It is true that this is not a case where in the interval the Appellant has had children or taken on new responsibilities of a similar kind, but the sense of security (a false sense of security as it turned out if the Appellant can now be extradited) would have been engendered nonetheless. He had in the meantime begun a new life in the UK…

    …

    39. I would find that this false sense of security… did go considerably beyond mere hardship and, in the circumstances of this, rather unusual, case did amount to oppression which was consequent upon the passage of time. It was a false sense of security engendered by the lapse of time which led Lord Diplock (at p.784) and Lord Scarman (at p.790) in Kakis to conclude that his extradition would be oppressive".

  63. In R v Governor of Brixton Prison ex parte Osman (No. 4) [1992] 1 All ER 579, 587f-g, Woolf LJ made the following observations about Lord Diplock's words about the significance of the cause of delay –
  64. "…[in] a situation where, as a result of the passage of time (not brought about by the applicant), injustice or oppression resulted then irrespective of whether the requesting state was or was not blameworthy the applicant would be entitled to be discharged. Lord Diplock was not suggesting that, in a case which was close to the borderline as to whether or not the applicant was entitled to be discharged, the fact that the requesting state had been guilty of culpable delay was not a matter which the court was entitled to take into consideration".

  65. In La Torre v Italy [2007] EWHC 1370 (Admin) at [37] , Laws LJ said –
  66. "In my view proper approach in this area of the law is, with respect, relatively straightforward. I think there is perhaps a danger that in the search for a just result the court may be inclined to stray too far from the simple words of the statute: the question is whether "it would be unjust or oppressive to extradite him by reason of the passage of time since he is alleged to have committed the extradition offence". That is, of course, the starting point. There are then Lord Diplock's observations in Kakis (at 782), which describe the overlapping scope of "unjust" and "oppressive". Next, the words of the Act do not justify a conclusion that any delay not explained by the requesting State must necessarily be taken to show fault on the State's part such as to entitle the putative extraditee to be discharged…. All the circumstances must be considered in order to judge whether the unjust/oppressive test is met. Culpable delay on the part of the State may certainly colour that judgment and may sometimes be decisive, not least in what is otherwise a marginal case (as Lord Woolf indicated in Osman No. 4). Such delay will often be associated with other factors, such as the possibility of a false sense of security on the extraditee's part. The extraditee cannot take advantage of delay for which he is himself responsible (see Lord Diplock in Kakis at 783). An overall judgement on the merits is required, unshackled by rules with too sharp edges".

  67. Counsel also referred to the trenchant reasoning of Henry LJ in R v Secretary of State ex parte Patel (1995) 7 Admin LR 56 at pages 71-72 –
  68. "… Wherever law is practised, justice is reproached by delay… So the years trip off the tongue, and so we reach a position where a citizen may be surrendered to face a trial in another state for matters at least 9 years stale without examination for the reasons for the length of delay or the consequences of it... so it is we are left with a delay period... of 9 to nearly 12 years, with yet some time to pass before trial… And when, in all the circumstances of this case, we additionally consider that the 6 years of false security included in that period, and then set that against the bland few lines dealing with the lapse of time in the affidavit in support of the Minister's decision… we conclude that the Minister's decision cannot stand. We judge the irresistible inference to be drawn from the facts of this case that it would be unjust and oppressive to surrender".

  69. In the case of a conviction warrant, the question raised by section 14 of the 2003 Act is whether it would be unjust or oppressive to extradite the requested person by the passage of time since he or she is alleged to have become unlawfully at large. The point at which a person becomes "unlawfully at large" was considered in Wisniewski v Poland [2016] EWHC 386 (Admin); [2016] 1 WLR 3750. At [52] Lloyd Jones LJ said –
  70. "The words in their plain meaning suggest that a person who is unlawfully at large is liable to arrest without further order or judicial process".

  71. I was also referred to Koc v Turkish Judicial Authority [2021] EWHC 1234 (Admin) at [25] where Fordham J said –
  72. "The seriousness of the offending, and the length of a custodial term to be served in a conviction case, are highly significant features in the evaluative exercise of considering oppression by reason of the passage of time".

    The District Judges' decisions

  73. In [44] of her judgment, District Judge Griffiths directed herself by reference to Kakis and Gomes. She said that mere delay in seeking extradition was unlikely in itself to justify a finding of injustice or oppression –
  74. "From the case law, it is clear that the principal issue which is whether, by reason of the delay, the RP has been misled into a false feeling of security that he would never be called upon to account".

  75. The District Judge accepted that the Appellant was not a fugitive and was thus entitled to rely on the consequences of delay, in particular the changes in his circumstances since he came to the UK in 2016, in support of his case under section 14 of the 2003 Act. She addressed two particular factors: firstly, the period which had elapsed since the commission of the extradition offences in 2006 and 2007-8; and secondly, the changes in the Appellant's personal and family circumstances since he arrived in the UK in 2016.
  76. In respect of the age of the offences, at [45] the District Judge said –
  77. "I accept that the offences are of some age but the offences are not insignificant nor are they trivial offences. The offences are serious, particularly the supply of drugs, but all of the offences, on their own and taken together, are serious. Further, I note that some of the delay since the date of the offences is as a result of appeals that were lodged on behalf of the requested person. Therefore, the delay has been partly caused by the motions filed on behalf of the requested person, which I find, have been on his instructions".

  78. In relation to hardship and the changes in the Appellant's personal and family circumstances since he came to the UK, at [46] to [51] the District Judge repeated her detailed findings of fact to which I have referred at paragraphs 26 to 28 of this judgment. She found that the Appellant and his family would suffer financial hardship due to the loss of his income from his tiling business and emotional hardship due to his absence and the resulting impact on his family's day to day lives, including in particular his sons' footballing activities. The District Judge nevertheless found that the family would cope. She place significant weight on the Appellant's wife's proven resilience, in coming to the UK in 2013 alone with two young children and building a life for herself and her children over the following three years with no financial help and limited emotional support from the Appellant. At [52] the District Judge said –
  79. "Therefore, whilst I accept that there will be emotional distress and financial hardship to the requested person's wife and children, I find that the emotional distress and financial hardship in this case is far short of that required to amount to oppression. The passage of time in [this] case, I find, is not such as is required to reach the high standards for oppression".

  80. In relation to the question whether extradition of the Appellant would be unjust the District Judge concluded at [53] –
  81. "In relation to injustice, the requested person has failed to identify how this will occur in this case in respect of the EAWs. The requested person has been convicted and sentenced…. The requested person has not been misled into a false sense of security that he would never be called upon to account. I did not find the requested person credible in relation to his evidence that he thought the cases were over or that he never received documents in relation to those matters and/or he did not instruct his lawyer to represent him or to appeal".

  82. District Judge Griffiths concluded the Appellant's extradition was not barred by reason of the passage of time.
  83. District Judge Snow directed himself as to the applicable legal principles in [46] to [64] of his judgment. He also reached the conclusion that extradition of the Appellant had not been shown to be barred by reason of the passage of time. His reasons are stated in [65] to [71] of his judgment –
  84. "The requested person is not a fugitive from justice. However, I am sure that he was aware from 12 February 2013 that he had a substantial sentence to serve. His life has been built in the knowledge that his sentence remained extant. He became unlawfully at large when the enforcement order was issued on 24 November 2016. Oppression must be assessed against changes in his life that occurred since that date.

    The changes are the birth of his youngest son and the fact that he has established his business. Those changes must be assessed against his knowledge that he had a substantial term to serve. It is artificial to ignore the fact that the requested person's extradition has been ordered by DJ Griffiths. I assess oppression against the extra period of two years imprisonment that the requested person will have to serve as a consequence of extradition pursuant to [TACA1].

    Mrs Lila has proved herself to be a resilient parent. She has coped with young children in the requested person's absence for about four years previously. I accept her evidence that she will be able to cope financially and practically if the requested person is extradited. The loss of a business is a sad consequence of extradition.

    Taking these factors into account, and having regard to the gravity of the offending, I am satisfied that it is not oppressive to order the requested person's surrender".

    Submissions

  85. In his submissions on behalf of the Appellant, Mr Hepburne Scott argued that both District Judge Griffiths and District Judge Snow had been wrong to conclude that extradition of the Appellant was not barred by reason of the passage of time since he became unlawfully at large.
  86. Counsel focused his submissions on the question whether it would be oppressive to extradite the Appellant to Italy. The Appellant was not a fugitive from justice. The Appellant acknowledged that his offending that was the basis for EAW4, EAW5 and TACA1 was serious and that the remaining custodial sentence to be served was a lengthy term. However, those offences were all committed when the Appellant was a young man in very different circumstances between 2005 and 2008. He had not committed any offences since 2008. He had lived in the UK since 2016, during which period he had remained of good character.
  87. It was submitted that District Judge Snow had been wrong to find that the relevant period for the purposes of applying section 14 of the 2003 Act began to run only from November 2016. The true position on the facts was that the Appellant had been unlawfully at large since 17 July 2005. That was the date on which he had been sentenced to 4 months' imprisonment for the offence which had formed the basis for EAW1; and which now formed part of the aggregate sentence for which his extradition was sought under TACA1.
  88. The question was whether the Appellant had developed a false sense of security due to the Respondent's inaction and delay in bringing these extradition proceedings against him since July 2005. It was submitted that the District Judges had been wrong to find that the lengthy passage of time since July 2005 did not render the Appellant's extradition oppressive. During that period the Appellant had moved to the UK, set up his business and for many years earned his living. He and his wife had started a family, They now had three children. They had a stable family life in the UK. For years now the Appellant had supported his family both financially and as an active and loving father. The practical and emotional support that he gave to both his wife and their three sons was not in dispute. His extradition would cause severe disruption to his wife and children's lives.
  89. Both District Judge Griffiths and District Judge Snow had made clear findings that the Appellant's extradition would cause real financial and emotional hardship to him, his wife and their children. These were changes of circumstances which had taken place during the lengthy period since 2005 since he became unlawfully at large. Taken together with the sense of security which the Appellant had understandably developed over the course of the many years since he became unlawfully at large this was, Mr Hepburne Scott argued, a clear case on the facts in which the Appellant's extradition was barred by reason of the passage of time.
  90. Conclusions

  91. With the permission of this court, an appeal under section 26 of the 2003 Act may be brought on a question of law or fact. On appeal, the question for the court is whether the District Judge ought to have decided an issue before him or her differently; and whether, had that judge decided that issue in the way in which he or she ought to have done, that judge would have been required to order the requested person's discharge.
  92. In the context of ground 1, the Appellant's case on appeal is that both District Judge Griffiths and District Judge Snow ought to have concluded that extradition of the Appellant on the authority of EAW4, EAW5 and TACA1 respectively would be oppressive, by reason of the passage of time since he is alleged to have become unlawfully at large. That is the issue, since each of the three extradition warrants is a conviction warrant: see section 14(b) of the 2003 Act. If the Appellant succeeds in that argument, it would follow that his extradition was barred and it would have been necessary to discharge him.
  93. It was not suggested that in reaching their conclusions on that issue, either District Judge Griffiths or District Judge Snow had misdirected themselves as to the applicable legal principles. I am satisfied that they directed themselves correctly on the basis of the leading authorities on the application of section 14 of the 2003 Act, to which I have referred earlier in this judgment.
  94. The question for me, therefore, is whether in each case, the Appellant has established that the District Judge reached the wrong conclusion in applying those settled principles to the facts as they had found them to be.
  95. The starting point is to establish the date on which the Appellant became unlawfully at large, since it is at that point that time begins to run in the case of a conviction warrant for the purposes of applying section 14(b) of the 2003 Act. Following the approach stated at [52] in Wisniewski, that turns on when the Appellant became liable to arrest in Italy without further order or judicial process.
  96. District Judge Snow found that the Appellant became unlawfully at large when an enforcement order was issued on 24 November 2016. The Appellant argues that was wrong; and that in fact he became unlawfully at large from 17 July 2005, the date on which a sentence of 4 months' imprisonment was imposed upon him for the offence of assault occasioning actual bodily harm. That offence formed the basis for EAW1, from which District Judge Griffiths discharged the Appellant on 1 September 2021.
  97. The enforcement order issued on 24 November 2016 is identified in both EAW4 and EAW5 as the decision on which each of those warrants was based. The order is stated to be –
  98. "Order of imprisonment following the order of enforcement for concurring sentences No. 323/2016 SIEP issued on 24.11.2016".

  99. The same order is identified as the decision on which EAW1, EAW2 and EAW3 were based.
  100. The decision on which TACA1 is based is stated to be –
  101. "Imprisonment order issued following the most recent order for the enforcement of concurrent sentences No. 323/2016 SIEP issued on 27.2.23".

  102. A copy of an imprisonment order dated 1 March 2023, for the enforcement of an aggregated sentence of 11 years and 2 months' imprisonment against the Appellant in respect of offences including those identified in TACA1, refers to –
  103. "…the order for the aggregation of sentences with the same number issued by the undersigned Office on 24.11.2016, which unified the judgments… in respective which No. 5 EAWs (European Arrest Warrants) were issued on 10.8.2020, one for each of the judgments to be enforced…".

  104. In [41] of her judgment, District Judge Griffiths referred to a detailed chronology of proceedings which had been submitted by Counsel for the Judicial Authority and whose accuracy was not in dispute. The District Judge said that she had herself checked it against the EAWs and further information provided by the Judicial Authority and found it to be accurate. She said that she had made her findings in accordance with that chronology. She notes that on 24 November 2016, there was an "Order for imprisonment following the order of enforcement for concurring sentences (Ref 323/2016 Siep) – 15 years 2 months". The next following event on 5 December 2016 was that the police in Italy sent a record of unsuccessful searches.
  105. It is true to say that the Appellant appears to have served a period of imprisonment during 2008 in Italy. However, the District Judge records that period of custody as being for "other matters".
  106. On the basis of this information before the District Judges, there was a clear evidential basis for District Judge Snow's finding that it was on 24 November 2016 that the Appellant became liable to arrest without further order or judicial process, in respect of the offences stated in the arrest warrants which are the basis for these two sets of extradition proceedings. On the basis of the evidence before the court, it was on 24 November 2016 that a judicial order was issued for the Appellant's arrest and delivery to prison in Italy in order to serve the aggregated sentence of 15 years and 2 months' imprisonment. Although District Judge Griffiths did not make an express finding as to the date on which the Appellant became unlawfully at large, her chronology of events is consistent with District Judge Snow's subsequent finding that it was upon the issue of the enforcement order on 24 November 2016 that the Appellant became liable to arrest without further order or judicial process.
  107. The Appellant's argument that he became liable to arrest without further order or judicial process from 17 July 2005 onwards is not supported by the evidence before the court. On the contrary, on the facts found by District Judge Griffiths it is an implausible argument. Having been excluded from Italy on 21 September 2011, the Appellant was then permitted to return temporarily to attend a trial in early 2012. He was subsequently allowed to remain in Italy, following the birth of his eldest son, until the expiry of his temporary visa in early April 2013. Those facts do not support the contention that during those years, the Appellant was in fact liable to arrest without further order or judicial process for the offences for which his extradition is now sought. They are, however, consistent with the position as found by District Judge Snow, that prior to November 2016 the Appellant's liability to arrest was contingent upon the issue of a further judicial order for enforcement of the sentences imposed upon him for those offences. That order was issued on 24 November 2016.
  108. For these reasons, I reject the Appellant's submission that District Judge Snow, and by inference District Judge Griffiths were wrong to find, for the purposes of applying section 14 of the 2003 Act, that the Appellant became unlawfully at large on 24 November 2016.
  109. The next question is whether during the period since 24 November 2016, the Appellant has developed a false sense of security that no further action would be taken by the Italian Judicial Authority to enforce his outstanding aggregated sentence of imprisonment. Although the Appellant gave evidence to District Judge Griffiths that he had thought that the proceedings against him in Italy were over, she did not find his evidence on that point to be credible. She found that he had not been misled into a false sense of security that he would never be called to account.
  110. District Judge Griffiths heard and observed the Appellant give his evidence at the extradition hearing. I should be very slow indeed to question her findings as to the credibility of his evidence. Moreover her finding, that the Appellant was not in fact labouring under any false sense of security in relation to the prospect of being required to serve his outstanding prison sentence, was clearly supported by the evidence of the Appellant's own actions in the period after November 2016. Information provided by the Italian Judicial Authority, which the District Judge accepted as accurate, recorded that on 1 February 2017 the Appellant appointed his lawyer in Pesaro. His lawyer then filed objections to the execution of the enforcement order issued on 24 November 2016. The Appellant's lawyer made further applications to the Italian court, including the successful application for the revocation of the sentence which was the subject of EAW3.
  111. In short, the Appellant retained a lawyer in Italy to make applications to the court with a view to opposing enforcement of or, failing that, a reduction in his outstanding prison sentence. It was beyond the margins of credibility for him to assert that he was nevertheless labouring under a false sense of security that he would face no further action to enforce that sentence. District Judge Griffiths was clearly entitled to conclude that through his lawyer, the Appellant had been actively pursuing court applications in relation to his convictions and sentence for the extradition offences. Those applications had themselves had the effect of postponing the initiation of extradition proceedings, which had been begun without significant further delay following the conclusion of the Appellant's own applications to the Italian court. The District Judge's conclusions in [53] of her judgment were amply supported by the evidence before her at the extradition proceedings. In my judgment, she was correct to conclude that the Appellant had not been misled into a false sense of security that he would never be called to serve his sentences; and to reject as not credible his evidence that he thought the cases against him were over.
  112. District Judge Snow found that the Appellant had built his life in the UK, since he became unlawfully at large in late November 2016, in the knowledge that he had a substantial term of imprisonment to serve in Italy. As the District Judge further observed, following District Judge Griffith's order on 1 September 2021 it had become artificial to ignore the fact that the Appellant was liable to be extradited to serve a substantial prison sentence.
  113. For these reasons, I reject the Appellant's argument that the District Judges had been wrong in concluding that he did not have a false sense of security that proceedings would not now be pursued against him to enforce his outstanding prison sentences in Italy. The reality is that the Appellant was both aware and under no illusion that he faced the real prospect of being required to return to Italy to serve a substantial prison sentence. His understandable reaction to that risk was to instruct his lawyer actively to pursue applications in the Italian courts, with a view to securing as great a reduction as he could in the length of the prison sentence that, in due course, the Appellant expected to be called upon to serve.
  114. The Appellant's remaining contention under ground 1 is that the District Judges were wrong not to conclude that extradition would be oppressive, given the changed circumstances in the Appellant's and his family's lives since he became unlawfully at large.
  115. That contention must be considered in the light of my conclusion that the District Judges were correct in finding that the Appellant became unlawfully at large from 24 November 2016. It is the changes in the Appellant's and his family's lives that have occurred since that date which form the basis of the assessment whether his extradition would now be oppressive by reason of the passage of time.
  116. Both District Judges found that the Appellant had moved to the UK in 2016. It is unclear whether he did so before or after 24 November 2016. What is clear is that his wife had been living with their two young children in the UK for some 3 years by that date. Following his arrival in the UK, the Appellant joined his family and set up his tiling business. In 2018 his wife opened a beauty salon, which she ran until selling the business in 2022. Their youngest child was born in February 2022. Thereafter the Appellant's income from his business provided the family's primary income, although at the time of the hearing before District Judge Snow in early May 2024 the family had £5,000 in savings.
  117. Both District Judge Griffiths and District Judge Snow found that the Appellant and his family would suffer financial and emotional hardship as a result of his extradition. I have already referred to and summarised District Judge Griffiths' detailed and careful assessment of the impact on both the Appellant and, in particular, on his wife and children of his extradition to Italy to serve a lengthy prison sentence. She made the clear finding that there would be both financial and emotional hardship. District Judge Snow did not demur from that finding.
  118. Hardship is not, in itself, sufficient to establish oppression in the context of section 14 of the 2003 Act: see Gomes at [31]. In this case, both District Judges pointed to Mrs Lila's resilience and resourcefulness in coping as a single parent during the period following her arrival in the UK in 2013. It was reasonable for both judges to give significant weight to that. It indicated that although the impact of the Appellant's extradition would be keenly felt by his wife and children and significantly disruptive to family life, there was a reasonable evidential basis upon which to find that Mrs Lila would adjust and would be able to cope as a single parent.
  119. Both judges also placed significant weight on the gravity of the offending which resulted in the lengthy aggregated term of imprisonment for which the Appellant's extradition is sought by the Respondent. Again, they were clearly justified in doing so. It is always important to focus on the particular facts and circumstances of the instant case. In written submissions, Counsel suggested that the facts of the present case were "directly analogous" to the very lengthy period of unexplained delay in Ex parte Patel. That is simply incorrect. As I have explained, the District Judges in this case were correct to find that there has been no significant, unexplained delay in pursuing these conviction warrants, which are based upon a lengthy aggregated prison term imposed in relation to serious offences, including threats of violence and the supply of controlled drugs.
  120. For these reasons, I am unable to accept the Appellant's contentions that the District Judges were wrong to conclude that it would not be oppressive to extradite him to Italy to serve his outstanding prison sentence, notwithstanding the passage of time since he became unlawfully at large in late November 2016. In my judgment, applying the settled principles established by the case law to which I have referred, the District Judges were correct to find that the Appellant had not established in the circumstances of his case that it would be oppressive or unfair to extradite him. It follows that the Appellant's extradition to Italy on EAW4, EAW5 and TACA1 is not barred under section 14 of the 2003 Act. Ground 1 of these appeals is rejected.
  121. Ground 2 – section 21 of the 2003 Act and the ECHR

    Legal framework

  122. Section 21 of the 2003 requires the judge at the extradition hearing to decide whether extradition of the requested person would be compatible with his or her rights protected under the ECHR. Article 8 of the ECHR provides that every person has a right to respect for his private and family life and his home. The principles upon which the court determines whether the extradition of the requested person would be a disproportionate interference with his or her private and family life, and so not compatible with the rights protected by article 8 of the ECHR, are to be found in Norris v USA (No. 2) [2010] UKSC 9; [2010] 2 AC 487 and H(H) v Italy [2012] UKSC 25; [2013] 1 AC 338. In Polish Judicial Authority v Celinski [2015] EWHC 1274 (Admin); [2016 1 WLR 551 at [5] and [6] the Divisional Court said that –
  123. "5. The general principles in relation to the application of article 8 in the context of extradition proceedings are set out in two decisions of the Supreme Court: Norris v United States of America (No. 2) [2010] 2 AC 487 and H(H) v Italy [2013] 1 AC 338.

    6. In HH Baroness Hale of Richmond JSC, at para 8, summarised the effect of the decision in Norris, in sub-paras (3), (4) and (5), she made clear that the question raised under Article 8 was whether the interference with private and family life of the person whose extradition was sought was outweighed by the public interest in extradition. There was a constant and weighty public interest in extradition that those accused of crimes should be brought to trial; that those convicted of crimes should serve their sentences; that the United Kingdom should honour its international obligations and the UK should not become a safe haven. That public interest would always carry great weight, but the weight varied according to the nature and seriousness of the crime involved".

  124. In HH the Supreme Court considered the approach to be taken in extradition cases involving the interests of the requested person's children. At [15] Lady Hale said –
  125. "…in considering article 8 in any case in which the rights of a child are involved, the best interests of the child must be a primary consideration. They may be outweighed by countervailing factors, but they are of primary importance. The importance of the child's best interests is not to be devalued by something for which she is in no way responsible, such as the suspicion that she may have been deliberately conceived in order to strengthen the parents' case".

  126. In such a case, therefore, the child's or children's best interests must be weighed carefully in the balance in the circumstances of the individual case, in order to reach an overall conclusion whether the extradition of a parent, particularly a primary carer, is compatible with article 8 ECHR. However, at [8] in HH (following Norris) Lady Hale said that there is no test of exceptionality: the question is always whether the interference with the private and family lives of the requested person and other members of his or her family is outweighed by the public interest in extradition. The public interest in extradition will always carry great weight, but the weight to be attached to it in the particular case will vary according to the nature and seriousness of the crime or crimes involved. She said that the delay since the crimes were committed may both diminish the weight to be attached to the public interest and increase the impact upon private and family life. She summarised the principles as follows –
  127. "Hence it is likely that the public interest in extradition will outweigh the article 8 rights of the family unless the consequences of the interference with family life will be exceptionally severe".

  128. In Celinski at [15] to [17] the Divisional Court suggested an approach which district judges should follow at extradition hearings in which article 8 is relied on by the requested person. After finding the facts, the judge should list the factors which favoured extradition and those which militated against extradition. On the basis of those identified factors, the judge should then set out his or her conclusion as a result of balancing those factors with reasoning to support that conclusion.
  129. At [24] the Divisional Court said that in determining an extradition appeal in relation to issues of proportionality under article 8 of the ECHR, the single question for this court is whether or not the district judge made the wrong decision –
  130. "Findings of fact, especially if evidence has been heard, must ordinarily be respected. In answering the question whether the district judge, in the light of those findings of fact, was wrong to decide that extradition was or was not proportionate, the focus must be on the outcome, that is on the decision itself. Although the district judge's reasons for the proportionality decision must be considered with care, errors and omissions do not of themselves necessarily show that the decision on proportionality itself was wrong".

  131. At [14] in Celinski, the Divisional Court said that it should rarely be necessary to cite appeal decisions on article 8 of the ECHR in other cases, as such cases are invariably fact specific and judges of this court are not laying down new principles. The Divisional Court emphasised that the principles to be applied to the facts of the individual case are those set out by the Supreme Court in Norris and HH.
  132. The District Judges' decisions

  133. In [96] to [98] of her judgment, District Judge Griffiths directed herself in accordance with the principles set out in Norris and HH. She said that the question was always whether the gravity of the interference with family life is justified by the gravity of the public interest pursued.
  134. The District Judge followed the guidance in Celinski, identifying those factors which told in favour of and those which told against extradition being granted. In favour of extradition, she referred to the strong public interest in the United Kingdom honouring its international treaty obligations. She said that the Appellant's extradition is sought in relation to serious offences involving violence and the supply of drugs. The Appellant is wanted to serve a significant custodial sentence for his offences, which have been committed over a period of time.
  135. Of the factors which weighed against the Appellant's extradition, the District Judge referred to his difficult childhood and to the lack of stability in his personal and family life during the period of ten years after he met his wife in Italy in June 2006, a period in which he and his wife were married and had two children. The District Judge said that the Appellant and his wife had a settled intention to remain in the UK. There would be financial and emotional hardship to the Appellant and his family if he were extradited. His wife would find it difficult to run her business and to care for their children. The children would be caused emotional distress. The family would suffer financial hardship as a result of the loss of the Appellant's business and his income. The Appellant had been of good character since coming to the UK in 2016. He was not a fugitive from justice. The extradition offences were of some age and there had been a delay in seeking his surrender to Italy.
  136. In [101] to [109] of her judgment, the District Judge drew the balance between those factors in considerable detail. The key points were as follows –
  137. (1) There was a very high public interest in ensuring that extradition arrangements are honoured.

    (2) Substantial weight must be given to the interests of the Appellant's children and to the emotional distress that they would suffer as a result of his extradition.

    (3) However, this was not a sole carer case. The Appellant's wife had been the primary carer for their children in the years prior to 2016, when he came to join the family in the UK. The children had been well cared for both before her arrival in the UK in 2013 and thereafter, whilst she was building a life for herself and her young family in the Appellant's absence in Albania.

    (4) The Appellant's wife had shown herself to be a resilient person and parent since her arrival in the UK as a highly vulnerable individual with two small children in 2013. She had demonstrated her strength of character and determination to build a new life for herself and her children, with no financial help from the Appellant during the ensuing period of 3 years and with very limited emotional support.

    (5) The Appellant's wife had set up her own business. She would be able to find a way to continue with her beauty salon and to care for the children following the Appellant's extradition to Italy. Even if she found it necessary to close the beauty salon in order to fulfil her parenting responsibilities, she would be entitled to benefits as a single mother with two children. It was reasonable to anticipate that the Academy would provide support to enable the children to continue with their football training and attendance.

    (6) The absence of their father would clearly cause considerable emotional distress to the Appellant's children who had experienced emotional and behavioural changes since his arrest. However, there was no evidence to support a finding that the adverse impact on the children would be abnormally severe. It was an unfortunate but inevitable consequence of extradition of a parent that the children will suffer emotional distress and feelings of loss.

    (7) In summary, although the Appellant's wife and children would suffer significant emotional distress, disruption and possible financial hardship as a result of his extradition to Italy, there were good reasons to find that the Appellant's wife and his children would be able to cope as a family with his absence.

    (8) The Appellant had committed no further offences since his arrival in the UK in 2016. However, the offences for which his extradition was requested were serious offences which had been committed over a period of years. Allowing for the revocation of the sentence under EAW3 and the Appellant's discharge under EAW1, the remaining sentence which the Appellant was required to serve was a significant term of 8 years and 10 months imprisonment.

    (9) There had been delay in the case and the offences were of some age. However, the Appellant had continued to commit offences and had pursued appeals, which had been a substantial contributor to the period of delay in bringing proceedings to enforce his sentences, following the final resolution of his appeal proceedings. There had ben very little delay thereafter in issuing the warrants for his extradition to serve his aggregated prison sentence.

  138. In the light of this reasoning, the District Judge stated her conclusion on the issue of proportionality in [110] –
  139. "I am satisfied that the Article 8 rights of the Appellant are engaged. On the evidence before me though, there is nothing to suggest that the negative impact of extradition of the Appellant is of such a level that the court ought not to uphold this country's extradition obligations. Hardship, both emotional and financial, will be suffered [by] the Appellant, his wife and his children but as set out above, on the evidence before me, I find that they will cope".

  140. District Judge Snow also directed himself on the principles set out in Norris, HH and Celinski. He said that each case must be considered on a fact-specific basis and the courts were required carefully to evaluate the article 8 rights of the Appellant, his wife and children against the important public interest in the UK abiding by its international extradition treaty obligations.
  141. Amongst the case specific factors weighing in favour of extradition were that the Appellant now had a further two years imprisonment to serve, a total aggregated term of 11 years and 2 months. The offending for which he had been convicted was serious. Weighing against the Appellant's extradition was the distress that would be caused to his children, the fact that he had been resident in the UK since 2016, his lack of convictions since coming to the UK, the age of the offending for which his extradition was sought and the potential difficulties that he would face in returning to the UK having served his sentence in Italy.
  142. In evaluating the balance, the District Judge gave the following reasons –
  143. "The interests of the Appellant's children are a primary consideration. I accept that his children will be distressed at separation from their father. However, this is not a sole carer case. As I have found elsewhere, Mrs Lila is a resilient and capable parent. She has demonstrated her ability to care for her children without the Appellant's assistance over a four year period. She will be able to cope financially and practically if the Appellant is extradited. I accept that the eldest children are now of an age where they will be particularly affected by their father's absence, however, I am satisfied that the continued loving support of their mother will reduce the impact of that separation. This reduces the weight that I give to their interests.

    I accept that the Appellant's family will remain in the UK if he is extradited. I accept that given that he entered the UK unlawfully and the doubts about his immigration status, that there are question marks about whether he will be able to return. I give weight to this factor but it is limited since the Appellant was aware that he was building his life in the UK on sand and that [he] is at risk of deportation.

    I gave little weight to the loss of the Appellant's business. This is a not uncommon consequence of extradition.

    I give weight to the age of the offending. However, the Appellant has been aware since 2012 that he had a substantial term of imprisonment to serve. His life has been built in the knowledge that the sentence remained. This limits the weight that I give to this factor.

    I give substantial weight to the importance of upholding international agreements. I give substantial weight to the gravity of the offending and the period that the appellant has to serve".

  144. The District Judge concluded that it would not be a disproportionate interference with the Appellant's article 8 rights to order his extradition.
  145. Submissions

  146. Mr Hepburne Scott submitted that both District Judge Griffiths and District Judge Snow had been wrong to conclude that extradition of the Appellant was compatible with his rights protected under article 8 of the ECHR. It was submitted that the resulting interference with the Appellant's and his family's protected rights, particularly by virtue of the impact on his children, was clearly disproportionate in the circumstances of this case.
  147. Counsel submitted that the District Judges had failed to give sufficient weight to the following highly significant factors, each of which told powerfully against extradition –
  148. (1) The long period of time which had now elapsed since the dates when the extradition offences were committed in Italy. Given that the Appellant was not a fugitive from justice, that lengthy period of 17 to 23 years' delay in seeking the Appellant's return to Italy to serve his remaining sentence should have been given very considerable weight. In Norris and HH, the Supreme Court said that the delay since the extradition offences were committed may both diminish the weight to be attached to the public interest and increase the impact upon private and family life. That was clearly the position on the facts of the present case. The District Judges had been wrong in giving only limited weight to the age of the extradition offences and the ensuing, considerable period of delay in seeking the Appellant's surrender to serve his remaining sentence.

    (2) The financial, practical and emotional impact of extradition on the Appellant's wife and their three children. The emotional impact of the loss of their father on the Appellant's three children would be severe. The District Judges had wrongly diminished the weight given to that critical factor on the basis that his wife would remain as sole parent and carer in the Appellant's absence. That was wrong. The evidence showed that the Appellant's wife and children would be far less able to cope with the loss of his financial, emotional and practical support than was the case before his arrival in the UK in 2016, because the family's circumstances had fundamentally changed. His wife no longer had the income from her beauty business. The family's financial position would be highly precarious. The practical challenge of supporting the eldest children's fledgling careers in football without the Appellant's support would be likely to be insurmountable.

    (3) The very real likelihood that the Appellant would be unable to return to the UK to rejoin his family after having served his remaining sentence in Italy. Yet the Appellant has completely transformed his life since his arrival in the UK in 2016. He had built a strong and stable private life in the UK, raising a family and building a business. He had committed no further offences during that time. This was a clear case where, following the approach set out by the Supreme Court in HH, the very lengthy delay since the crimes were committed and the severity of the impact upon the Appellant's private and family life, particularly his three children, the correct evaluative judgment should be that extradition would be a disproportionate interference with the Appellant's and his family's article 8 rights. The District Judges had been wrong to find his surrender to be compatible with the ECHR.

    Conclusions

  149. There is much force in Mr Hepburne Scott's submissions under this ground. A long period of time has elapsed since he committed the offences for which his extradition is sought in these proceedings. He was a young man in his early twenties when he committed those offences. He is now a married man of 40 years of age, supporting a close family with three children aged fifteen, twelve and three years old. He has been living a stable life with his family since his arrival in the UK to join his wife and children in 2016. He is not a fugitive from justice in Italy. He has built a business in the UK which enables him financially to support his family. Although his wife used to run a beauty salon, she no longer does so and her savings from that enterprise are now quite limited. The Appellant has strong emotional ties as a father with his children, particularly with his eldest sons. He and his wife organise their lives so as to provide the practical day-to-day support needed to enable his eldest children to build on their footballing skills and develop their potential as future professional football players. There is a very real risk that, if extradited to Italy, after serving his remaining sentence the Appellant will not be permitted to return to live in the UK.
  150. The emotional and practical impact on the Appellant's children of the absence of their father for, at least, many years is a primary consideration. His children's interests would evidently be significantly harmed by the Appellant's extradition. The degree of interference with the Appellant's family life resulting from his extradition is likely to be both prolonged and serious, both in its financial and practical consequences. There will be very considerable emotional hardship. In this respect, I would attach no great significance to Mrs Lila's evidence in answer to questions in cross-examination that the problem would be emotional, rather than financial and practical. I suspect that she meant to emphasise what she feared would be the emotional impact on the children; but there can be no doubt that, on the evidence before the District Judges, the financial and practical impact of the Appellant's absence would be considerable.
  151. Taken together, those matters weigh heavily against extradition in this case. However, they are not necessarily determinative. As the Supreme Court established in both Norris and HH, the public interest in extradition so that those convicted of crimes should serve their sentences also carries great weight. The more serious and sustained the offending, and the lengthier the remaining prison sentence, the greater the weight that will be given to the public interest in extradition.
  152. In this case, the Appellant's offending between 2005 and 2007 for which he was convicted and now faces extradition to serve his sentence was indisputably of a serious and sustained nature, involving threats of lethal violence and the supply of controlled drugs. Allowing for the reduction in the aggregated prison sentence for which his surrender is requested to reflect his discharge in respect of EAW1 and EAW2, he faces a term of nine years and ten months' imprisonment on his return to Italy. These factors point to a strong public interest in the Appellant's extradition.
  153. Counsel fairly acknowledged those factors, but relied strongly on Lady Hale's guidance in HH, that long delay since the offences were committed may both diminish the weight to be attached to that public interest and increase the weight to be given to the impact upon private and family life. As I understood it, it was the contention that the District Judges had failed to give proper weight to that long delay and its consequences which lay at the heart of this ground of appeal.
  154. The thrust of the Appellant's argument founded on delay, as I saw it, was that notwithstanding the seriousness of his offending and the length of his outstanding prison sentence, there had been a very long and unexplained delay before steps were taken to enforce his sentences. During that period of delay, the Appellant had committed no further offences. In 2016 he had moved to the UK to build a new life with his family. He had done so openly. He was not a fugitive. He had established his business and was now a law abiding citizen with a stable and happy family life in the UK. It would be disproportionate in these circumstances to hold him to account for offences committed many years ago in his relative youth; and thereby to interfere severely with his now well established and thriving family life in this country.
  155. In support of that argument, Counsel sought to draw an analogy on the facts to those in Lysiak v Poland [2015] EWHC 3098 (Admin). In that case, criminal proceedings in Poland had taken nine years to come to trial and a further two and half years had elapsed before Mr Lysiak's conviction was confirmed on appeal. During that period of delay, Mr Lysiak had moved to the UK with the permission of the Polish court, together with his wife and eldest child. They had made their home in the UK and now had a second child born in this country. The Divisional Court said that the long delay in that case was relevant to the question whether extradition would be compatible with Mr Lysiak's rights under article 8 of the ECHR. My attention was drawn to Burnett LJ's judgment at [31] –
  156. "The reality in this case is that there was very significant delay of more than nine years before the trial at first instance occurred and then a further period of more than two years until the appeals process was completed. The important feature is that none of that delay can be laid at the door of the appellant….".

  157. Mr Hepburne Scott also saw an analogy with the circumstances in Koc v Turkish Judicial Authority [2021] EWHC 1234 (Admin), where at [46] Fordham J found a lengthy period of largely unexplained delay as a result of which 16 years had elapsed between the date of the admittedly serious offending and the extradition request to carry significant weight, given the changes in Mr Koc's and his family's circumstances during the intervening period. During that period Mr Koc, who had left Turkey and arrived in the UK during 2004, was unaware of the progress of criminal proceedings against him, and of his conviction and sentence in his absence in 2008, until April 2015, when he discovered those facts on a visit to Turkey.
  158. There is, however, an important distinction to be drawn between the facts in Lysiak and Koc and those in the present appeals. In those cases, the factual position was that neither Mr Lysiak nor Mr Koc had contributed to the lengthy periods of delay in seeking their extradition. Moreover, in both cases, the consequence of the unexplained delays before seeking their surrender had been that they had moved to the UK and built their lives here with their families with little if any knowledge or expectation that they would some day be subject to proceedings for their extradition to serve lengthy prison sentences.
  159. The factual position in the present appeals is materially different. In relation to both EAW4 and EAW5, District Judge Griffiths found that the Appellant had been aware of the course of proceedings against him for the alleged offences and had been represented by a lawyer of his choice who had appealed on his behalf. District Judge Griffiths found that the Appellant had lodged several appeals, and that applications made by his lawyer on his instructions had contributed to the overall period of time which elapsed between his offending and the issue of the extradition warrants. In respect of EAW4, there had been appeal proceedings which culminated in the decision of the Supreme Court of Cassation on 28 January 2016 declaring the Appellant's appeal to be inadmissible. In respect of EAW5, the appeal proceedings also advanced as far as the Court of Cassation. The consequence of these appeals was that the Appellant's conviction and sentence in respect of the offences for which his extradition is sought under those warrants did not become final until November 2016.
  160. As I have already said, on 24 November 2016, the Italian court issued an enforcement order for the Appellant's imprisonment. The evidence shows that in early 2017 the Appellant instructed his lawyer to pursue objections to the execution of that enforcement order. That was after the Appellant had arrived in the UK and joined his wife and children. The Appellant's evidence to District Judge Snow was that his lawyer made applications in Italy on his behalf in 2021 for the aggregation of all his outstanding prison sentences.
  161. There can of course be no criticism made of the Appellant for pursuing his appeals and applications through his lawyer in Italy. He was entitled to bring proceedings to challenge his convictions and the sentences imposed upon him. For present purposes, however, the relevance of that course of action lies in its impact on the timing of proceedings on the part of the Respondent judicial authority to enforce his remaining sentences, including bringing extradition proceedings. The continuing litigation on the Appellant's appeals and applications provides an explanation for at least a substantial part of the period of delay which occurred before extradition proceedings were begun in 2020.
  162. Moreover, the fact that the Appellant through his lawyer continued to pursue legal proceedings in Italy following his arrival in the UK justifies the inference that he was well aware that he and his family faced the risk of his being required to return to Italy to serve his remaining prison sentence.
  163. District Judge Griffiths' conclusion was that there had been delay in seeking the Appellant's extradition, a factor which weighed in his favour and against his surrender. However, a significant contributor to that delay had been the legal proceedings which the Appellant's lawyer had pursued on his instructions in Italy. District Judge Snow concluded that the Appellant had been aware both prior to and following his arrival in the UK that he had a substantial prison sentence to serve in Italy as a result of his previous offences in that country.
  164. In the light of this analysis, I return to the single question which I have to answer, which is whether I am persuaded by the Appellant's submissions that the District Judges were wrong to conclude, in the circumstances of this case, that extradition would not be a disproportionate interference with the Appellant's and his family's rights protected under article 8 of the ECHR. As I have said, there is force in the Appellant's submissions, particularly in the light of the financial, practical and emotional impact which his extradition is likely to have on his wife and their three children. However, the offences for which the Appellant's surrender is requested were indeed serious offences, and the remaining sentence which he is required to serve is a lengthy period of imprisonment. There has been delay in seeking his extradition, but that delay is to a considerable extent explained by the Appellant's own actions in pursuing legal proceedings through the lawyers of his choice in Italy by way of appeals against conviction and sentence, and latterly in seeking to reduce the aggregated term of imprisonment which he faces. I am satisfied that the Appellant was under no illusion when he came to the UK in 2016 that he faced the real risk of proceedings seeking his return to Italy to serve his outstanding prison sentences. He has built his life in the UK since then in that knowledge.
  165. The most powerful factor weighing against the Appellant's extradition is the impact on his three children. There is likely to be real hardship and the impact on family life will be considerable. There is a real risk that the Appellant will not be able to return to the UK in future, after having served his sentence in Italy. Nevertheless, I am satisfied that the District Judges were correct to give weight to the proven resilience and resourcefulness of Mrs Lila, and the likelihood that she would be able to cope with the loss of the Appellant. That was a factor which lessened the severity of the impact of extradition in this case.
  166. Overall, for these reasons, I conclude that the District Judges were right to conclude that extradition of the Appellant to Italy to serve his lengthy remaining prison sentence for serious offending would not interfere with his and his family's rights protected under article 8 of the ECHR so severely as to constitute a disproportionate interference. His extradition has not been shown to be incompatible with the Appellant's Convention rights.
  167. In reaching that conclusion, I have taken into account Mr Hepburne Scott's submission relying on the night time curfew to which the Appellant has been subjected as a condition of his bail since his arrest in late 2020. That matter was considered by District Judge Snow, who heard expert evidence from an Italian attorney-at-law of the possibility that the Italian judicial authority may find the period for which the Appellant was subject to an electronically monitored night-time curfew may be deductible from his remaining sentence. District Judge Snow concluded that it was unclear how the Italian judicial authority might approach that question in the Appellant's case. There was evidence of another case in which the Italian court had ruled that a curfew operating between 6:00pm and 9:00am should not count towards sentence. In the light of the evidence, in my view, District Judge Snow was correct to give no significant weight to that particular factor. There was no real basis on the evidence to find that the night-time curfew to which the Appellant has been subjected would result in any material reduction in the length of the outstanding term of imprisonment which the Appellant faces in Italy.
  168. Fresh Evidence

  169. In accordance with the well-known approach stated in Hungary v Fenyvesi [2009] EWHC 231 (Admin), I have considered whether the Appellant's addendum proof of evidence and Mrs Lila's two addendum witness statements contain evidence which was not (and could not reasonably have been made) available at the hearing of the extradition proceedings and, if so, would have resulted in the District Judges deciding the questions raised under sections 14 and 21 of the 2003 Act differently. In doing so, I bear in mind that the Appellant's second ground of appeal concerns his and his family's rights protected by article 8 of the ECHR.
  170. In her addendum witness statement signed on 16 December 2024, Mrs Lila again emphasised her grave concerns about the emotional impact which extradition of the Appellant would have on their three children, particularly their eldest son. She said that he was on the cusp of receiving a football scholarship from a premier football club which could give him a secure educational opportunity and financial future. She mentions the prospect of her son losing that opportunity, but does not explain how it is contingent upon the outcome of the Appellant's extradition proceedings. She speaks of the psychological impact of these extradition proceedings on the Appellant, herself and their children. She then devotes a number of paragraphs to what she sees as the lack of justification for pursuing the Appellant's extradition for offences committed many years ago in Italy, given that he has lived a law abiding life with his family in the UK since 2016.
  171. In his addendum proof of evidence dated 3 March 2025, the Appellant also briefly reiterates his concerns about the impact of his extradition on his wife and children, in particular the practical difficulties that his wife will face in supporting his two eldest sons' footballing activities. He emphasises the uncertainties arising from the prolonged extradition process and how that has affected his and his family's daily lives. In her further witness statement dated 3 March 2025, Mrs Lila says that she is now working on a part time basis for her husband's company, which ties in with her youngest son's attendance at morning nursery. She is in receipt of universal credit to help support the family. She again emphasises the practical difficulties with managing her eldest sons' footballing activities and travel to training as a single parent, without the Appellant's support. She also again emphasises the psychological and emotional impact of extradition on her children and what she sees as the unfairness of the Appellant being returned to Italy given the changes in his and his family's circumstances since 2016.
  172. As will be apparent from those summaries of the content of the fresh evidence, the evidence given by Mrs Lila in her addendum witness statements and by the Appellant in his addendum proof of evidence is substantially the same as that which she gave in the extradition proceedings, as is recorded by District Judge Snow at [31] and [32] in his judgment. As I have said, the impact of extradition on the Appellant, his wife and children attracts considerable weight. The eldest sons' prospects as potential professional footballers and the practical problems that would result from the Appellant's absence was in evidence before the District Judges and formed part of the overall evaluation of proportionality. The same is true of the undoubted emotional impact on the two eldest children, in particular. See [105] to [108] of District Judge Griffiths' judgment and [103] of District Judge Snow's judgment. It is understandable that, having received and read the judgments of the District Judges, the Appellant and his wife should wish to provide further evidence which seeks to add further emphasis to those matters which they address in their addendum statements. However, I am conscious of the point made by the Divisional Court at [35] in Fenyvesi –
  173. "… the court will not readily admit fresh evidence which they should have adduced before the district judge and which is tendered to try to repair holes which should have been plugged before the district judge, simply because it has a Human Rights label attached to it. The threshold remains high. The court must still be satisfied that the evidence would have resulted in the judge deciding the relevant question differently, so that he would not have ordered the defendant's discharge. In short, the fresh evidence must be decisive".

  174. In drawing attention to that passage, I do not mean to suggest that the Appellant and his wife have sought to admit their further evidence for anything other than the best of intentions. Nevertheless, if I am to admit that evidence and consider it in support of the Appellant's appeal, I must be satisfied that it would lead me to decide that, contrary to the conclusions of the District Judges, the Appellant's extradition would constitute a disproportionate interference with his and his family's rights protected under article 8 of the ECHR, applying the principles established in Norris and HH to which I have referred above. For the reasons I have given in rejecting the second ground of appeal, I am unable to reach that conclusion. The applications to admit fresh evidence must accordingly be refused.
  175. Ground 3 – abuse of process

  176. At the extradition hearing before District Judge Snow, the Appellant drew attention to the inclusion in the aggregate prison sentence for which his surrender was requested under TACA1 of the sentence of four months imprisonment which had been the basis for EAW1, from which he had been discharged by District Judge Griffiths. It was submitted that in pursuing the Appellant's surrender under TACA1, the Italian judicial authority was acting in breach of his speciality rights, which was an abuse of process.
  177. The District Judge addressed that argument in [41] and [121] - [123] of his judgment –
  178. "41. I do not accept that the inclusion of the 4 month sentence in the Aggregation Order, relating to EAW1 which was discharged by DJ Griffiths, is evidence of bad faith on the part of the JA. The Appellant was represented by his lawyer at that hearing. His lawyer has not provided a statement asserting bad faith. I am satisfied that the inclusion is no more than error on the part of the JA which will be corrected by its removal in compliance with Specialty. The JA have confirmed the availability of rectification in the further information dated 16th January 2022.

    …

    121. I accept that it would be an abuse for a JA to deliberately ignore a requested person' specialty protection.

    122. The … issue is whether there are grounds for believing that the abuse may have occurred. I remind myself that the RP faces a high hurdle of persuasion. Counsel has not explicitly asserted that the JA have behaved with bad faith. I am satisfied that this is because there are no grounds, still less compelling grounds, to do so. I am satisfied that the sentence in EAW1 has been included in the Aggregation Order by mistake. The JA respect specialty rights and has a legal remedy to protect to do so. I am quite satisfied that the JA will remedy the position when the error is brought to its attention.

    123. I refuse to stay these proceedings as an abuse".

  179. The District Judge's reference to further information provided by the Italian judicial authority was, I think, in fact to a letter dated 16 November 2022 in which the judicial authority confirmed that it was possible under Italian law to disaggregate the overall sentence and issue a new enforcement order.
  180. Both Mr Hepburne Scott and Ms Beatty relied upon the statement of principle made by the Divisional Court at [59] in Belbin v France [2015] EWHC 149 (Admin) –
  181. "We wish to emphasise that the circumstances in which the court will consider exercising its implied "abuse of process" jurisdiction in extradition cases are very limited. It will not do so if, first, other bars to extradition are available, because it is a residual, implied jurisdiction. Secondly, the court will only exercise the jurisdiction if it is satisfied, on cogent evidence, that the Judicial Authority concerned has acted in such a way as to "usurp" the statutory regime of the EA or its integrity has been impugned. We say "cogent evidence" because, in the context of the European Arrest Warrant, the UK courts will start from the premise, as set out in the Framework Decision of 2002, that there must be mutual trust between Judicial Authorities, although we accept that when the emanation of the Judicial Authority concerned is a prosecuting authority, the UK court is entitled to examine its actions with "rigorous scrutiny". Thirdly, the court has to be satisfied that the abuse of process will cause prejudice to the requested person, either in the extradition process in this country or in the requesting state if he is surrendered".

  182. At [113] of his judgment, District Judge Snow directed himself in accordance with that statement of principle.
  183. Mr Hepburne Scott submitted that the District Judge had been wrong to conclude that the Appellant's extradition was not an abuse of process. The Italian judicial authority well knew or ought to have known that the Appellant had been discharged from EAW1 at the time of issuing the aggregation order on 27 February 2023 and TACA1 on 1 March 2023. In was a clear breach of the Appellant's speciality rights to seek his surrender to serve the sentence of imprisonment in relation to which he had been discharged from extradition by District Judge Griffiths. Moreover, District Judge Snow had founded his decision on the basis that the Italian judicial authority would rectify the position when the error which drawn to its attention. Yet ten months had now elapsed since the handing down of District Judge Snow's judgment on 7 May 2024, and the judicial authority had taken no action to remedy the error. The abuse of process therefore persisted.
  184. I do not accept that this ground of appeal is arguable. The insuperable difficulty which the Appellant faces is the District Judge's clear finding that the four month sentence which had formed the basis for EAW1 had been included in the aggregation order issued on 27 February 2023 by mistake. That error, although highly regrettable, does not amount to evidence of bad faith or of abuse. As the District Judge said, it would be abusive for a judicial authority deliberately to ignore a requested person's speciality rights and protection. However, the evidence in the present case did not support a finding that the error was deliberate. Indeed, as the District Judge said, the Appellant did not actually suggest that bad faith was involved.
  185. Moreover, the District Judge proceeded on the basis that the Italian judicial authority would respect the Appellant's speciality rights. The evidence was that Italian law enabled disaggregation. There was accordingly a remedy available to the Appellant. In the absence of cogent evidence to show that the judicial authority would fail to respect the Appellant's speciality rights, the District Judge was acting in accordance with the principled approach stated in Belbin in finding that the judicial authority would remedy the error when brought to its attention.
  186. In my judgment, there is no force in the argument that the District Judge's conclusion has been undermined and his confidence in the judicial authority proven to be misplaced, because the error has yet to be remedied. As Ms Beatty submitted, the critical point is that the Italian judicial authority is required to respect the Appellant's speciality protection in accordance with article 625 of the Trade and Co-operation Agreement. The District Judge was satisfied that the judicial authority has the power under Italian law to remedy the error as so respect the Appellant's speciality rights. It is not suggested that the District Judge was wrong in so finding. He was clearly correct in that finding, on the basis of the letter of 16 November 2022. That being the case, and given the Italian judicial authority's obligation to protect speciality rights, there is no justification for drawing the adverse inference that the judicial authority will fail to take the necessary action to respect the Appellant's speciality rights. To the contrary, the burden of Ms Beatty's written and oral submissions in response to this ground of appeal was that the judicial authority would take the necessary steps to reduce the aggregated sentence by the period of four months, in order to remedy the erroneous inclusion in the aggregation order issued on 27 February 2022 of the sentence imposed for the offence which was the basis for EAW1.
  187. For these reasons, I respectfully agree with Heather Williams J that permission to appeal against the decision of District Judge Snow rejecting the Appellant's argument for an abuse of process must be refused.
  188. Disposal

  189. Permission to appeal is granted, the appeal is allowed and the Appellant is discharged in respect of EAW 2. Otherwise, the appeal is dismissed.

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