Neave & Ors v Court of Rome, Italy [2012] EWHC 358 (Admin)

Case No CO/975/2011[2012] EWHC 358 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 23/02/2012
Before
LORD JUSTICE HOOPERMR JUSTICE SINGH
Between
ANDREW NEAVEAppellantsPAUL O’CONNORAppellantCOLIN DINESAppellantANDREW DINESAppellantCOURT OF ROME, ITALYRespondent
(Transcript of the Handed Down Judgment ofWordWave International LimitedA Merrill Communications Company165 Fleet Street, London EC4A 2DYTel No: 020 7404 1400, Fax No: 020 7831 8838Official Shorthand Writers to the Court)
MS CLARE MONTGOMERY QC and MR MARK SUMMERS (instructed by Peters & Peters Solicitors LLP) for Claimants on grounds 1-3Mr HUGO KEITH QC and MR MARK SUMMERS (instructed by Peters & Peters Solicitors LLP) for Claimants on ground 4MR. AARON WATKINS (instructed by the Crown Prosecution Service) for Defendant.Hearing Hearing dates: 6 th December 2011 (grounds 1-3) and 14 February 2012 (ground 4)
JudgmentLord Justice Hooper :
[1]The appellants challenge the decision of District Judge Zani sitting at City of Westminster Magistrates’ Court dated 27 January 2011 to send them to Italy on separate but materially identical European Arrest Warrants (“EAW”) in respect of offences of:(a) participation in a transnational criminal organisation consisting of more than 10 people;(b) complicity in transnational money laundering.[2]The offences detailed in the EAWs are said to arise out of an investigation into the financial activities of Telecom Media Sparkle Spa and Fastweb Spa – it is alleged that both companies were concerned in a carousel VAT fraud in Italy and elsewhere and that companies associated with the Appellants acted as fictitious clients so that money generated by the fraud was laundered through the companies’ accounts.[3]On 17 February 2010, Aldo Morgigni, Judge for Preliminary Investigations attached to the Court of Rome, Italy, issued four EAWs seeking the surrender of the appellants Andrew NEAVE, Paul O’CONNOR, Colin DINES and Andrew DINES. This followed the earlier issue on 3February 2010 of domestic arrest warrants described in the EAWs as an “ACCUSED PERSON-REMAND IN CUSTODY” order.[4]Italy is a designated Part 1 territory for the purposes of the Extradition Act 2003 (“the 2003 Act”), accordingly Part 1 of the Act (as subsequently modified) applies to these proceedings.[5]The appeal against the order of DJ Zani was listed for 6 December. The parties wanted an adjournment to deal with fresh evidence served by the appellants in support of Ground 4. It is submitted in Ground 4 that the district judge erred in concluding that the appellants’ extradition would be compatible with their Article 5 rights having regard to pre-trial detention practices in Italy. We decided to hear argument on the other three grounds and then adjourned until a date in February to permit the respondent to serve evidence in reply and to hear the arguments on Ground 4.[6]The appellants’ legal advisers have been active in Italy. They have challenged the validity of the warrant issued on 3 February. That challenge has been rejected and the rejection upheld by the highest Italian court, the Court of Cassation.

Ground 1

[7]It is submitted that the Framework Decision does not permit an EAW to be issued prior to the commencement of a prosecution and that the DJ was wrong to conclude otherwise.[8]Article 1.1 of the Framework Decision provides that:
“...The European arrest warrant is a judicial decision issued by a Member State with a view to the arrest and surrender by another Member State of a requested person, for the purposes of conducting a criminal prosecution or executing a custodial sentence or detention order...”
[9]It is submitted that, if a person is to be arrested “for the purposes of conducting a criminal prosecution”, that criminal prosecution must have by then been initiated. It is submitted by the appellants that:
“Although the phrase ‘for the purposes of’ a criminal prosecution’ may just be linguistically capable of applying to a prosecution that is intended to be brought in the future as well as one that has already commenced, that was not the purpose of the Framework Decision and would represent a fundamental departure in the law of extradition that was not intended.”
[10]If there is such a requirement, it has not been translated into the 2003 Act, although of course that is not decisive of the issue.[11]The appellants invite us to look at other background material to interpret the words “for the purposes of conducting a criminal prosecution”. The respondent submits that that the wording of the Framework Decision is sufficiently clear that one does not need to obtain clarification from other sources in the way the appellants seek to do. I agree.[12]In my view, if it was intended that some formal charging step should have been taken to initiate a prosecution before an EAW became effective, then that would have been made clear in the Framework Decision. It has not been. Italy, and probably other countries, delay the formal charge until a stage later than, for example, we do in this country. It would be surprising if the effect of article 1.1 of the Framework Decision was to prevent Italy and countries with a similar procedure to the Italian procedure, from using EAWs without some modification of their normal procedure.[13]I see no merit in this ground.[14]Ms Montgomery QC during the course of argument drew attention to the fact that in this country a person can only be remanded in custody after he has been charged, the exception being the short period in custody before charge (a maximum of 96 hours and of 14 days in the case of an arrest for terrorism offences). Having been charged the suspect becomes a defendant and a court will manage the case to trial. She compares that with the system in Italy. I return to this when considering ground 4.

Ground 2

[15]It is submitted that the District Judge was wrong to conclude that the EAWs complied with the requirements of sections 2(3)(a) and (b) of the 2003 Act in circumstances where no criminal prosecution has been commenced against the appellants in the Requesting State.[16]It is a condition set out in s.2(2) of the 2003 Act that an EAW must contain the statement set out in s.2(3):
“A Part 1 warrant is an arrest warrant ...

(a) the statement referred to in subsection (3)”

[17]By virtue of section 2(3) the EAW must contain a statement that:
“(a) the person in respect of whom the Part 1 warrant is issued is accused in the category 1 territory of the commission of an offence specified in the warrant; and (b) the Part 1 warrant is issued with a view to his arrest and extradition to the category 1 territory for the purpose of being prosecuted for the offence;”
[18]The appellants submit that the material relied upon by the respondent does not show that the appellants have been “accused”. Their return is sought, so it is said, to do no more than enable further enquiries to be made.[19]A person who is no more than a suspect is not an accused person. The mere suspicion that an individual has committed offences is insufficient to place him in the category of "accused" persons. The dividing line between a suspect wanted for questioning and an accused person is fact specific and is complicated by the fact of the different legal systems in the Part 1 countries. A purposive interpretation of "accused" ought to be adopted in order to accommodate the differences between legal systems. Courts here must adopt a cosmopolitan approach to the question whether, as a matter of substance rather than form, the requirement of there being an "accused" person is satisfied. Resolving the issue will require an intense focus on the particular facts of each case. See In Re Ismail [1999] 1 AC 320.[20]The fact that under the criminal procedure of the Requesting State a person may be asked further questions before a decision is made to charge him is not decisive, as also is the absence of a full file. A person can be accused of an offence even though the decision has not finally been taken to prosecute or charge. See Assange v. Swedish Prosecution Authority [2011] EWHC 2849 (Admin), paras. 150 and 151.[21]In this case does the material before the District Judge show that this is a case which has moved from suspicion to accusation? In my view the answer is clearly in the affirmative for the reasons given by the respondent:
“6.25 In respect of each EAW, section C of the documents sets out the two particular offences and their maximum sentences. Later, at section E, extensive detail is given about the law relevant to the offences and how it will apply in the present case. It is evident from the lengthy description of the conduct that the Appellants are implicated in the conduct. The Respondent expressly sets out in each warrant the places and dates where the offences were committed and immediately follows that with a section pertaining to each defendant setting out the “degree of participation of the person sought”
. This can only relate to participation in the criminal conduct outlined. ”[22]Over some ten pages the EAWs set out in detail not only evidence to show that a carousel fraud has been committed but, as importantly, evidence to show that the appellants were involved. The EAWs make it clear that there has been a detailed investigation, such that the appellants have moved from suspects to accused persons.[23]There is further support for my conclusion in a joint opinion prepared for the hearing before the District Judge (page 142 of the Appeal Bundle). A warrant of the kind issued on 3 February can only be issued if there is “a serious element of guilt” against the person named in the warrant. As I understand the situation, the highest court in Italy has rejected an appeal from challenges made by the appellants to the validity of the warrants on the grounds that the “serious element of guilt” had not been shown.[24]I would reject this ground.

Ground 3

[25]It is submitted that the District Judge was wrong to hold that sufficient particulars had been provided of the circumstances in which the appellants are alleged to have committed the Italian offence of ‘complicity in money laundering’.[26]It is submitted, as I shall assume rightly, that in Italian law it is not an offence to launder the proceeds of one’s own criminal conduct. If there was any doubt that the appellants were, on the material which formed part of the EAW, laundering only the proceeds of their own alleged criminal conduct, those doubts have been dispelled by a further document (page 368 of the Bundle).[27]I would reject this ground.

Ground 4

[28]It is submitted by Mr Keith QC that, if the appellants were returned to Italy, the proceedings in Italy would constitute a flagrant breach of Article 5 of the ECHR because of the period that the appellants could be held in custody prior to charge.[29]If the appellants are returned to Italy they will be subject to a preliminary investigation (I use the expression used in the Joint Opinion) led by a public prosecutor which will ordinarily last for a maximum period of six months. During that investigation the appellants will be what is called “indagato”, persons under investigation. At some point during that investigation, the prosecutor will make a decision whether to bring the investigation to an end in favour of the appellants or send them for trial. If the prosecutor decides on the latter course there are a number of alternative procedures, some speedier than others and the proceedings would have reached the stage of “un’azione penale”. The appellants would cease to be “indagato” and become, we were told, “accusato” (see pages 145-146 of the Bundle). Looking at this stage from the perspective of the system familiar to us here, the appellant would then be charged and the criminal proceedings leading to a trial would have started and would be under the supervision of a court.[30]We were told that in the case of ten of the 49 other persons arrested in connection with the alleged carousel, the stage of “un’azione penale” was reached some three months after the arrest and in the case of the others it was reached before the expiry of the six month period (letter of 11 January 2012).[31]Article 5(3) provides that a person arrested or detained on reasonable suspicion of having committed an offence shall be entitled to trial within a reasonable time or to release pending trial. It is clear that an “indagato” may ask for bail an unlimited number of times and may appeal a refusal. In the case of the other 49 persons arrested in connection with the alleged carousel fraud they all appear to have been released on some form of bail (letter of 7 February 2012). Whilst it may well be the appellants will find it more difficult to obtain bail than have the other defendants, it is clear that the decision whether to grant bail is a judicial decision. It was submitted by Mr Keith that a passage in the letter of 7 February (translated from the Italian) suggested that they would be denied bail. Looking at that passage in the context of the whole letter I reject that submission. It is also clear that a refusal of bail may also be appealed to the highest court (letter of 11 January 2012).[32]Given the right of an “indagato” to apply for bail, the argument made by Mr Keith is, and has to be, a more subtle one. He submits that the preliminary investigation stage in Italy to the extent to which it lasts longer than say three months (see the decision of the ECtHR in Abu Quatada application number 8139/09, para. 235) would be contrary to Article 5 because during the preliminary investigation stage (so he submits) the prosecutor has not decided whether to send the “indagato” to trial or not. In Italy, he submits, once the preliminary investigation has continued for more than say three months, then there would be a breach of Article 5 in respect of any “indagato” because he has not been charged.[33]No-one appears to have taken this point in Italy or to the ECHR and the appellants’ legal advisers did not take the point when challenging, unsuccessfully as it turned out, the validity of the domestic warrants before the Italian courts. Mr Keith accepts that Article 5 of the ECHR is part of Italian law.[34]I shall assume a breach of Article 5 if a person is held in custody when there is no present intention to prosecute. Mr Keith rightly accepted that if, during the preliminary investigation stage the prosecutor had a present intention to prosecute, then his Article 5 argument failed. He submits that since the prosecutor must decide whether to end the investigation in favour of the “indagato” or send him for trial, it must follow that he has no present intention to prosecute.[35]I do not agree.[36]Article 1(1) of the Framework Decision in Italian uses the words “ricertata ai fini dell’esercizio di un’azione penal” for the words “for the purposes of conducting a criminal prosecution”. The Italian EAWs use the words “ai fini dell’esercizio di un’azione penal” to describe why the arrest and surrender of the appellants is sought. Mr Keith submits that we should not rely on what is no more than a tick-box exercise, but examine what the prosecutor’s state of mind is during a preliminary investigation. I have no doubt that the appellants are wanted for the purposes of a criminal prosecution (un’azione penal) and that it is the present intention of the prosecutor to move forward to that stage. If as a result, for example, of any answers given by the appellant during questioning or of any new evidence, the prosecutor decides not to move forward to that stage then failure to release the appellants would, I shall assume, be a breach of Article 5. But that, on the material before us, is not this case.[37]Even if I am wrong, I would not reach the conclusion that the delay of more than say three months before the final decision is made by the prosecutor to move to “un’azione penal” is a flagrant breach of Article 5. This point has not apparently been taken in Italy, even by the appellants, or in the ECtHR when, on Mr Keith’s arguments, it could have been. I note also that in Abu Quatada the Court said (233) : “A flagrant breach of Article 5 would occur only if, for example, the receiving state arbitrarily detained an applicant for many years without any intention of bringing him or her to trial”.[38]During the course of argument comparisons were drawn by Ms Montgomery between the system in Italy and the system in this country. Although an ethnocentric approach is dangerous, I shall nonetheless look at the comparison.[39]During the course of argument she told us, in answer to a question, that a court in this country would not issue an EAW unless the person has been charged. Section 142 of the 2003 Act provides for the issue of an EAW if there are reasonable grounds for believing that the person has committed an extradition offence, and a domestic warrant has been issued in respect of the person. In so far as a domestic warrant is concerned, section 1(1) of the Magistrates’ Courts Act provides:
“On an information being laid before a justice of the peace that a person has, or is suspected of having, committed an offence, the justice may issue— (a) a summons directed to that person requiring him to appear before a magistrates' court to answer the information, or (b) a warrant to arrest that person and bring him before a magistrates' court.” (a) a summons directed to that person requiring him to appear before a magistrates' court to answer the information, or (b) a warrant to arrest that person and bring him before a magistrates' court.”
[40]Since the coming into force of the Criminal Justice Act 2003, the requirement that an information for a warrant be substantiated on oath has been repealed. To obtain a warrant to arrest under section 1, the information must be in writing (section 1(3)).[41]Crim PR 7.2(2) provides in part: “A prosecutor who wants the court to issue a warrant must— (a) serve on the court officer— (i) an information in writing”. (a) serve on the court officer— (i) an information in writing”.[42]Crim PR 7.3 provides:
“(1) An allegation of an offence in an information ... must contain— (a) a statement of the offence that— (i) describes the offence in ordinary language, and (ii) identifies any legislation that creates it; and (b) such particulars of the conduct constituting the commission of the offence as to make clear what the prosecutor alleges against the defendant.” (a) a statement of the offence that— (i) describes the offence in ordinary language, and (ii) identifies any legislation that creates it; and (b) such particulars of the conduct constituting the commission of the offence as to make clear what the prosecutor alleges against the defendant.”
[43]Crim PR 7.4 provides:
“(1) The court may issue or withdraw a summons or warrant (a) without giving the parties an opportunity to make representations; and (b) without a hearing, or at a hearing in public or in private.” (a) without giving the parties an opportunity to make representations; and (b) without a hearing, or at a hearing in public or in private.”
[44]An information is a brief and simple document The form may be accessed via http://www.justice.gov.uk/guidance/courts-and-tribunals/courts/procedure-rules/criminal/formspage.htm#preliminary and describes the alleged offence for which the warrant is sought in accordance with Crim PR 7.2(3) (1)(a) and (b). The information coupled with a warrant is one of a number of ways of starting proceedings in the magistrates’ court. S. 30 (5) of the Criminal Justice Act 2003 provides: " Except where the context otherwise requires, in any enactment contained in an Act passed before this Act- a) any reference (however expressed) which is or includes a reference to an information within the meaning of section 1 of the Magistrates’ Courts Act 1980 MCA (or to the laying of such information) is to be read as including a reference to a written charge (or to the issue of a written charge) ... .” Section 29 makes provision for instituting criminal proceedings by the issue of a written charge. A person arrested on a domestic warrant issued by a justice of the peace must be taken before a magistrates’ court and the court will then, in the normal course, make the necessary orders so that the trial can take place in the appropriate court for the offence charged in the information. Cf. section 37 of the Police and Criminal Evidence Act 1984 which provides that, following the execution of a warrant, the custody officer must determine whether he has sufficient evidence to charge him. See sub-sections (1) and (7). It is not easy to see how this section operates in practice.[45]It follows that Ms Montgomery is right (as one would expect her to be) when she says that a court in this country would not issue an EAW unless the person has been charged. He would have been charged in the information which led to the issue of the required domestic warrant (section 142 of the 2003 Act, above para. 39).[46]Compared with the material which we have seen in this case, the information laid before a justice of the peace in this country to obtain a warrant contains very little other than the details of the person whose arrest is sought, the brief details of the charge and the name of the person who is alleging that the person whose arrest is sought has or is suspected of having committed an offence.[47]I refer to this to show that different legal systems approach the issue of charging in different ways. In Italy, so it appears from the material before us, a warrant of arrest may only be issued if there is “a serious element of guilt” and other conditions are satisfied. The validity of the Italian warrant may, so it appears, be challenged and then appealed to the highest court in Italy on the basis that the material supporting the issue of the warrant is insufficient. If the material provided in this case is an example of the amount of material generally required to issue a domestic warrant of arrest in Italy, then the fact that the person arrested may only be charged later is, it may be thought, of less significance. I agree with Ms Montgomery that an advantage of the system in this country is that following charge a court takes control of the proceedings, whereas in Italy, subject to issues of bail, a court does not (so it seems) take charge of the proceedings until after the prosecutor has decided to send the “indagato” for trial. Nonetheless to compare the charging procedure in Italy adversely with the procedure for charging in this country would be inappropriate without, at least, much further knowledge.[48]I would dismiss the appeals.

Singh J :

[49]For the reasons given by Hooper LJ I too would dismiss these appeals. I would like to add a few words only in relation to Ground 4.[50]This is a root and branch attack on the Italian system for detention before charge and does not depend on the facts of the particular appeals before us. It is an attack that could be made by an Italian citizen as much as by a foreign national and one that could be made by a person facing proceedings entirely within Italy as much as by a person outside that country. If the point is a good one, it is surprising that it has apparently never been taken, let alone decided, either in the Italian courts or in Strasbourg. That does not necessarily mean that it is a bad point but it does lead to the need for caution before this Court accepts a challenge which would lead to the wholesale condemnation of a long-established feature of the legal system of another member of the Council of Europe.[51]Mr Keith QC sought to answer this by observing that applications to the European Court of Human Rights can only be made after a person has exhausted all domestic remedies (see Article 35(1) of the ECHR). He relied on section 21 of the Extradition Act 2003 to argue that this Court could and should intervene at this stage. Under that provision a court is required to decide whether a person’s extradition would be compatible with the Convention rights within the meaning of the Human Rights Act 1998. However, that provision does not bear the burden which Mr Keith sought to place upon it. Clearly, in an appropriate case, the courts of this country can and must prevent a person’s extradition if it would be incompatible with the Convention rights, for example if there is a real risk of torture in the Requesting State. In that sense, their role is necessarily an anticipatory one: in contrast, the European Court of Human Rights usually carries out its assessment after the event. It is nevertheless surprising that, if the Italian system under challenge in this case is fundamentally incompatible with Article 5(3), there is no authority which counsel were able to bring to our attention to support that proposition.