Battistini v The Court of Naples, Italy [2009] EWHC 3536 (Admin)

Case No CO/10060/2009[2009] EWHC 3536 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Venue Royal Courts of JusticeDate Wednesday, 16th December 2009
Strand
London WC2A 2LL
B e f o r e:
LORD JUSTICE MAURICE KAY
MR JUSTICE LLOYD JONES
Between
ELPIDIO BATTISTINIAppellantv
Between
THE COURT OF NAPLES, ITALYRespondent
Computer-Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
Julian Atlee (instructed by Atlee Chung & Company) appeared for AppellantMelanie Cumberland (instructed by Crown Prosecution Service) appeared for Respondent
J U D G M E N T

LORD JUSTICE MAURICE KAY:

This

[1]case comes before us as an appeal under section 26 of the Extradition Act 2003. The appellant is an Italian national. His surrender is sought by the Court of Naples pursuant to a European Arrest Warrant issued on 22nd October 2008 for the purpose of his standing trial for offences of tobacco smuggling, handling stolen goods, counterfeiting bank notes and forging identity documents. The offences are alleged to have been committed in 2001.[2]On 3rd September 2009 District Judge Zani ordered the appellant's extradition. Before the District Judge the appellant mounted two challenges: first, that extradition would be unjust or oppressive by reason of the passage of time in accordance with section 14 of the 2003 Act; secondly, that the European Arrest Warrant was invalid under Italian law because the alleged offences preceded the Council Framework Decision of 13th June 2002 on the European Arrest Warrant and its incorporation into Italian law. The District Judge decided both issues against the appellant.[3]In this court the first challenge was maintained. The second has been abandoned in its original form, but is replaced by a differently-formulated abuse of process argument. Passage of time[4]Section 14 provides that:
"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 committed the extradition offence..."
[5]The classical analysis of "unjust or oppressive" is that of Lord Diplock in Kakis v Government of the Republic of Cyprus [1978] 1 WLR 779 where he stated:
"'Unjust' I regard as directed primarily to the risk of prejudice to the accused in the conduct 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."
[6]It is now well established that the potential injustice or unfairness of any trial in a European Arrest Warrant case has to be considered in its European context.[7]In Gomes and Gooodyer v Government of the Republic of Trinidad and Tobago [2009] UKHL 21; [2009] 1 WLR 1038, Lord Brown, having observed that the essential issue is whether a fair trial is possible (see paragraph 33), said at paragraphs 35 and 36:
"35... Council of Europe countries in our view present no problem. All are subject to Article 6 of the Convention and should readily be assumed capable of protecting an accused against an unjust trial — whether by an abuse of process jurisdiction like ours or in some other way... 36... The extradition process, it must be remembered, is only available for returning suspects to friendly foreign states with whom this country has entered into multi-lateral or bilateral treaty obligations involving mutually agreed and reciprocal commitments. The arrangements are founded on mutual trust and respect. There is a strong public interest in respecting such treaty obligations. As has repeatedly been stated, international co-operation in this field is ever more important to bring to justice those accused of serious cross-border crimes and to ensure that fugitives cannot find safe havens abroad..."
[8]In the present case the District Judge, when addressing the issue of whether it was unjust or oppressive by reason of the passage of time to return the appellant, observed that as far as injustice was concerned, the appellant had given scant details of how and/or why it would be unjust. He said:
"No specific details have been provided either in his proof of evidence or in the live evidence that he gave to this court..."
Moreover, the main body of evidence against the appellant consists of intercepted covert telephone calls and such evidence, and the appellant's ability to challenge it, will not have been significantly diminished by the passage of time.[9]There had been a vague reference to injustice resulting from an inability to locate witnesses, but no details were provided. That remains the position today. The material before this court, on that aspect of the case, remains just as vague and elusive. Subject to the new abuse of process argument, to which I shall return, there is nothing to support the submission, based on injustice by reason of the passage of time.[10]So far as oppression is concerned, the material is no more cogent. The appellant is 44. He has lived in this country since 1996. He lives with his partner, who is also an Italian national, and their two children aged 7 and 3. The appellant has a business involving the importation and distribution of food. Extradition would no doubt cause a degree of hardship, but again, as Lord Brown said in Gomes: "... hardship, a comparatively commonplace consequence of an order for extradition, is not enough." (See paragraph [31]).[11]The District Judge expressly applied that test and reached the inevitable conclusion that, having regard to the appellant's personal circumstances, extradition would not be oppressive by reason of the passage of time. Abuse of process[12]This ground of appeal, as now formulated in the appellant's skeleton argument, is expressed in this way:
"The probability that the extradition offences would be statute-barred in the course of the pre-trial proceedings, coupled with the available evidence of the absence of the requisite preliminary authority of the Minister of Justice for the prosecution of all counts other than A and F, and the appellant's entitlement to the application of a statutory pardon in respect of all matters in the event of conviction, are issues of which the respondent must be taken to be aware. In the particular circumstances it is submitted that the request amounts to an abuse of process, and should be refused."
[13]There are a number of obvious answers to this new ground of appeal. The emphasis is placed on the limitation periods that exist under Italian law. This was not the subject of expert evidence before the District Judge. The position now is that, on behalf of the appellant, Mr Atlee seeks to adduce recently acquired expert evidence and there is before us today evidence from a partner in Mr Atlee's firm explaining why the material was not produced before the Magistrates' Court.[14]Essentially, the proposed expert evidence seeks to support the ground of appeal by reference to limitation periods under Italian law and also contains brief reference to the issues of prosecutorial authority and a pardon. Even if we were to admit that evidence, it raises a manifest difficulty. It is not evidence that is agreed or accepted by the respondent. Indeed, there is now a response to it in the form of a letter from the Deputy Public Prosecutor in Naples, and there is also a schedule dealing with specific limitation periods in relation to the various offences.[15]On this view of the law in Italy, the ground of appeal would be utterly misconceived in any event. However, the prior question is whether this court should become involved in adjudicating upon these inconsistent interpretations of Italian law. For my part, it seems to me fundamental that in a European Arrest Warrant case it is wholly inappropriate for this court to proceed to adjudicate upon rival interpretations of Italian law. All this is a matter for the Italian courts in accordance with the principle expounded by Lord Brown in Gomes. Quite simply, we should not get involved.[16]I should add that on behalf of the respondent Miss Cumberland submitted in her skeleton argument that we should not receive the latest expert report submitted on behalf of the appellant in any event. She relies on the principles propounded by May LJ in Szombathely City Court Hungary v Fenyvesi [2009] EWHC 231 (Admin). In the event, it seems to me unnecessary to reach a final view upon that submission. At the time when Miss Cumberland wrote those submissions she did not have the benefit of the witness statements submitted this morning from the partner in Mr Atlee's firm.[17]Be that as it may, I am entirely satisfied that whether or not this material were to be received in this court as evidence, the outcome of this appeal would be the same. The reason for that is essentially that all matters sought to be raised under the heading of "Abuse of process" are matters for the Italian court and not matters for this court.[18]I should add that the submissions on injustice and oppression were put also on the basis that they were strengthened by the abuse of process argument and the supporting expert evidence, but those submissions can no more be fortified by that material than can the abuse of process argument itself.[19]For all these reasons, I have come to the conclusion that there is no issue that the District Judge ought to have decided differently. There is no further material which avails the appellant in this appeal. Mr Atlee has frankly acknowledged that if this is our view of the law (and he expressly declines to dissuade us from it) then there is nothing further he can say in support of the appeal. Accordingly, I would dismiss the appeal.

MR JUSTICE LLOYD JONES: I agree.

LORD JUSTICE MAURICE KAY: Thank you both very much.

[22]MR ATLEE: My Lord, might I ask for costs to be assessed?

LORD JUSTICE MAURICE KAY: Are you legally aided?

[24]MR ATLEE: Yes, my Lord.

LORD JUSTICE MAURICE KAY: Yes, certainly.

Cited in 5 later judgments