England and Wales High Court (Queen's Bench Division) Decisions

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

		Royal Courts of Justice Strand London WC2
		28th July 2000

Friday, 28th July 2000

1. LORD JUSTICE JUDGE: Morison J will give first judgment.
2. MR JUSTICE MORISON: On 24th June 1999 the Italian Government, through its diplomatic representative, made a request to the Secretary of State for the surrender of Paolo Migliorelli (the fugitive). The Secretary of State, upon receipt of this request, gave his written authority to proceed under section 7(4) of the Extradition Act 1989 (the Act) on 8th July 1999. In the document the Secretary of State recorded that the fugitive was accused of conduct in the jurisdiction of the Government of Italy

"which appears to the Secretary of State to be conduct which had it occurred in the United Kingdom would have constituted offences of robbery, conspiracy to rob, possession of a firearm with intent to commit an indictable offence and handling stolen goods."

3. In fact, the evidence shows that the fugitive was tried and convicted, in his absence, of various offences allegedly committed with others on 2nd June 1994, including armed bank robbery. A warrant for his arrest prior to trial had been issued on 28th July 1994 but the fugitive escaped from Italy before it could be effected. At the trial, in absentia, the fugitive's legal representative called for and was granted the right to examine witnesses and refer to written witness statements in accordance with law. The fugitive was convicted in his absence on 22nd September 1998. Following conviction, the fugitive's lawyers lodged a notice of appeal with the Court of Appeal of Rome both against conviction and the sentence imposed upon him of imprisonment for a term of 6 years and 8 months and a fine of 2 million lire. A hearing of the appeal has been fixed for 11th November 2000.
4. The Government of Italy applied to the Chief Stipendiary Magistrate, the Court of Committal, who, on 6th October 1999, made an order committing the fugitive to prison to await the decision of the Secretary of State as to his return to Italy. The fugitive has applied for a writ of habeas corpus under section 11 of the Act.
5. The fugitive argued before the Court of Committal that he was not an accused person as was alleged but rather he was a convicted person and that because he had been convicted he could not lawfully be returned to Italy as an accused by reason of section 6(3) and the principle of autrefois convict. The magistrate concluded as follows:
6. (1) There appeared to be no statutory requirement upon the Secretary of State to specify in the written authority to proceed whether extradition was authorised because a person was accused of an offence or because a person was convicted of such an offence and was unlawfully at large. But the issue as to the validity of the authorisation did not arise on the facts as the Secretary of State was correct to issue his authorisation "on an accusation basis".
7. (2) The section 6(3) argument was hopeless as the papers showed that the conviction and sentence were not final because they are both still subject to an appeal. Therefore, the doctrine of autrefois convict did not arise.
8. After that hearing and before this court the Government of Italy sought to introduce and rely upon fresh evidence about the present state of the trial process, including material as to the powers of the appellate court in Rome.
9. On the fugitive's behalf Mr Knowles of counsel, in a conspicuously able argument, submitted that this court should not receive evidence which was not before the Court of Committal. He relied in particular upon the decision of the House of Lords in the case of R v Governor of Brixton Prison ex parte Schtraks [1964] AC 577 at page 508 where Lord Reid said:

"The accused sought to adduced further evidence before your Lordships in order to show that on the whole material now available it would be improper to commit him. In my judgment we are not entitled to look at such evidence and we have not done so. Owing to the restricted character of habeas corpus proceedings a court is not concerned with anything that comes to light after committal. This could easily lead to injustice if the accused had no other remedy: there may well be cases where new evidence throws quite a different light on the material originally before the magistrate. But that is a matter which the Secretary of State is entitled to consider when deciding whether to grant extradition."

10. That dictum was supported by Lord Radcliffe who said at page 588:

"I think it is clear that in habeas corpus proceedings which arise out of a committal order under the Extradition Act 1870, the court does not rehear the case that was before the magistrate, nor does it hear an appeal from his order. Its function, apart from considering any issues relating to the offence charged being a political one, is to see that the prisoner is lawfully detained by the police."

11. Lord Evershed, in a passage at page 595 - 596 agreed with the general principle but acknowledged that there might be exceptional cases where the court would receive evidence were there to be a challenge to the magistrate's jurisdiction and that what was a jurisdiction issue could raise nice questions.
12. Mr Knowles submitted that without the fresh evidence the magistrate's decision could be characterised as unreasonable or perverse, or that there was no sufficient material before him to justify his conclusion that the fugitive was properly to be treated as an accused person rather than as a person unlawfully at large following a conviction. He accepted that the argument on the fugitive's behalf was technical but stressed that this court should simply apply the law as it stands however unmeritorious the result. He relied upon the decision in R v Governor of Brixton ex parte Caborn-Waterfield [1960] 2 QB 498 as an example of where the court released a fugitive on grounds that he was dealt with as an "accused" person rather than a "convicted" person.
13. Prima facie, he submitted, the fugitive in this case was a convicted person who fell to be dealt with under section 9(8)(b) of the Act rather than under section 9(8)(a). A person convicted in his absence may nonetheless be treated as an accused if, by expert evidence, it was shown "that the whole matter would be reopened in the event of subsequent surrender and appearance": R v Governor of Pentonville Prison ex parte Zezza [1983] 1 AC 46 at 55. Even were this court prepared to look at the fresh evidence it was not possible to say that on return the fugitive's conviction would be reopened in the full sense required.
14. On behalf of the requesting state Mr Hines of counsel, in an admirably succinct argument, submitted that the power of the court to receive evidence was now governed by statute. The decisions upon which Mr Knowles relied were on different statutes and of no direct assistance. Section 11(4) of the Act specified the circumstances in which evidence might be received by the court hearing an application for habeas corpus. Additional evidence might be received by the court
15. "relevant to its jurisdiction under section 6". Under section 6 there are a number of restrictions on the return of a fugitive, including a bar on the return of a fugitive if it appeared to the appropriate authority that were the fugitive to be charged in this country with the offences for which he was being extradited he would have a defence of autrefois convict. By subsection (8) appropriate authority includes this court. Since the question at issue in this case was the status under Italian law of a person convicted in his absence, the court was entitled to receive the evidence. If the fugitive was a convicted person within the meaning of the Act then section 6(3) would or might provide him with a bar to extradition. Mr Hines referred to the unreported case of ex parte Barone [1997] (CO/2734/96) which contains a full and helpful analysis of the relevant legislative history.
16. In any event, Mr Hines submitted that the magistrate was fully entitled to conclude on the evidence before him that the fugitive's trial was not complete in the sense of being final. The Metropolitan Magistrate, upon whom jurisdiction has been expressly conferred by the Act, sits as a specialist adjudicator. Such a magistrate will have considerable experience of extradition cases and will have a fund of knowledge of criminal procedures in other countries upon which he or she can draw. The facts upon which the magistrate in this case was satisfied that the fugitive was to be regarded as an accused were:
17. (1) Documents produced showed that the fugitive was described both as a person convicted and later as a person accused.
18. (2) Written confirmation from the Assistant Public Prosecutor stating that the sentence was "still subject to appeal". In the magistrate's view the word "still" was significant and led to the inference that

"the proceedings are still in existence and on-going".

19. (3) It was nowhere suggested that the fugitive was unlawfully at large and, as Mr Knowles accepted in this court, if he were right that if the fugitive was not an accused person he could not be extradited as a convicted person as he could not be said to be unlawfully at large. Consequently, were he right, the fugitive could not be returned to Italy under the Act. That is the point made by the magistrate.
20. Finally, the additional material we were asked to take into account confirmed the position. In a document which, significantly I think, is headed "Report on the current state of the trial against [the fugitive]" the Public Prosecutor said this:

"The defendant lodged an appeal. The appeal trial before the Court of Appeal of Rome is pending. [The fugitive] challenged his conviction, and the Court of Appeal holds the authority to change the sentence and even acquit the defendant."

21. On the basis of this document Mr Hines submitted that the conviction process is not at an end but is current. The Appeal Court will be reviewing the conviction and sentence and has the power to acquit the fugitive. On this basis the conviction cannot be said to be final and the presumption must be, in conformity with the Convention on Human Rights, that the fugitive on return will have an opportunity to advance reasons why he should be acquitted.
22. In my judgment, the answer in this case is reasonably clear. The starting point on the question at issue must be what is meant by an "accused" person in the Act, having regard to the fact that in most civil law jurisdictions a person may be tried in his absence, as here. As per Lord Steyn in Re Ismail [1999] 1 AC 320, the word "accused" is not a term of art but depends upon the facts in each case. A person who is convicted in his absence may nonetheless be an accused within section 1 of the Act if after evidence it can be seen that his conviction is not final. Lord Steyn emphasised that the court should have regard to the context and purpose of the Act, which is to bring to justice those accused of serious crimes.

"There is a transnational interest in the achievement of this aim. Extradition treaties and extradition statutes ought therefore to be accorded a broad and generous construction so far as the text permits it in order to facilitate extradition."

23. Is the conviction of the fugitive in this case final or is the trial process still on-going? I agree with the magistrate that the trial process has not yet come to an end. Indeed, I think that there was no evidence before him to suggest that it had. In my view, for the reasons advanced by Mr Hines, I would have dismissed the application before the court on the ground that the decision of the experienced magistrate cannot be described as perverse or wrong.
24. But I am also satisfied that we are entitled to receive further evidence in relation to this issue as section 11(4) of the Act provides. In my view the old cases, to which reference was made My Knowles, had been superseded by express statutory provision. The question whether a person is an accused or a convicted person brings section 6(3) into play, as Mr Knowles had submitted. The words of section 11(4) plainly apply. The witness statement of the Italian criminal lawyer who represents the interests of the fugitive is somewhat general (note the words "usually" and "generally speaking" in paragraph 7) and does not, I think, really come to grips with the key issues. Although he asserts that the conviction is final he does not explain in sufficient detail the reasons why he so says.
25. Against that is the statement of the Public Prosecutor which seems more clear-cut. In my view the additional material supports the magistrate's conclusions. The Human Rights court in Strasbourg has concluded that a trial in absentia does not by itself conflict with the principles of fairness incorporated in article 6(3) of the Convention: Colossi v Italy [1986/7] ECHR 516. It is proper to infer that the appeals procedures open to the fugitive on his return will afford him an opportunity if he so wishes of putting forward any material which the Court of Appeal in Rome considers appropriate.
26. In the result, I would dismiss this application as I consider that the magistrate was right to make the committal order.
27. LORD JUSTICE JUDGE: I agree. The principle derived by Mr Knowles from R v Governor of Brixton ex parte Schtraks that this court is not permitted to look at evidence that has come to light after committal must now be approached in the light of the clear statutory provision in section 11(4) of the Extradition Act 1989. On an application for habeas corpus following committal under section 9 this court may receive additional evidence relevant to the exercise of its discretion under section 6 above or subsection 3. Section 6 is concerned with a series of restrictions against an order for return to the foreign state seeking the extradition order. Section 11(3) permits the applicant to seek his discharge by producing fresh evidence in support of the argument that it would be unjust or oppressive to return him.
28. Accordingly, the additional material put before us was admissible and, in my judgment, adds to our understanding of the judicial process in Italy. This leads me to agree with Morison J's conclusion that although formally convicted in his absence the process in Italy against the applicant is, as yet, incomplete not only in relation to sentence but also conviction. Making every allowance for the difficulties of absolute precision in the translation of legal terms, I am impressed by the report from the Public Prosecutor in Rome, dated 2nd May 2000, which describes the current state of the trial against Paolo Migliorelli. I note also that it is said that the Court of Appeal is vested with the authority to acquit the defendant. The word "acquit" in this context conveys to me a different meaning to words like "quashing the conviction".
29. Approaching the issue of one of fact Re Ismail [1999] 1 AC 320, I agree with Morison J that we should not interfere with the decision of the Chief Stipendiary Magistrate and that this application should be refused.
30. MR HINES: I am obliged, my Lord.
31. MR KNOWLES: My Lord, I was hesitating because I anticipated Mr Hines was going to ask for costs first but I am legally aided in any event.
32. LORD JUSTICE JUDGE: Very well, do you need a legal aid taxation?
33. MR KNOWLES: My Lord, I do please. My Lord, I would apply for leave to appeal to their Lordships' House. This is a habeas corpus application so no certificate is required, but I do need leave. In summary, I would seek to persuade their Lordships really on two grounds: first, would be proper approach. In cases where there is a conviction of whether it is necessary to show a full retrial is necessary or something less; and secondly, in my submission Schtraks is a decision of their Lordships' House and, my Lord, it would be proper to give their Lordships an opportunity to consider the extent of Schtraks which is (inaudible) has been undercut or overtaken by statutory provisions. So, my Lord, I would apply on that basis.
34. LORD JUSTICE JUDGE: Thank you Mr Knowles. No, Mr Knowles, permission will be refused. I hope that calling you to this court at two o'clock on a Friday afternoon did not present you with the sort of geographical problems it presented me with. Very well, thank you.