“(1) This section applies if the designated authority receives a Part 1 warrant in respect of a person. (2) A Part 1 warrant is an arrest warrant which is issued by a judicial authority of a category 1 territory and which contains - (a) the statement referred to in subsection (3)..., or (b) the statement referred to in subsection (5)... (3) The statement is one 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. ... (5) The statement is one that - (a) the person in respect of whom the Part 1 warrant is issued is alleged to be unlawfully at large after conviction of an offence specified in the warrant by a court in the category 1 territory, 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 sentenced for the offence or of serving a sentence of imprisonment or another form of detention imposed in respect of the offence.” (a) the statement referred to in subsection (3)..., or (b) the statement referred to in subsection (5)... (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. (a) the person in respect of whom the Part 1 warrant is issued is alleged to be unlawfully at large after conviction of an offence specified in the warrant by a court in the category 1 territory, 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 sentenced for the offence or of serving a sentence of imprisonment or another form of detention imposed in respect of the offence.”
“(1) A person is alleged to be unlawfully at large after conviction of an offence if - (a) he is alleged to have been convicted of it, and (b) his extradition is sought for the purpose of his being sentenced for the offence or of his serving a sentence of imprisonment or another form of detention imposed in respect of the offence.” (a) he is alleged to have been convicted of it, and (b) his extradition is sought for the purpose of his being sentenced for the offence or of his serving a sentence of imprisonment or another form of detention imposed in respect of the offence.”
“(3) A request for a person’s extradition is valid if - (a) it contains the statement referred to in subsection (4)... (4) The statement is one that the person - (a) is accused in the category 2 territory of the commission of an offence specified in the request, or (b) is alleged to be unlawfully at large after conviction by a court in the category 2 territory of an offence specified in the request.” (a) it contains the statement referred to in subsection (4)... (a) is accused in the category 2 territory of the commission of an offence specified in the request, or (b) is alleged to be unlawfully at large after conviction by a court in the category 2 territory of an offence specified in the request.”
“An appeal has been lodged by the defendant’s attorneys to the Court of Appeal of Naples. In accordance to article 597 of the Italian Code of Criminal Proceedings (“ICCP”), the Court of Appeal will only address issues relating to the appealed verdict only and exclusively with specific reference to the grounds of appeal; the Court of Appeal will not re-hear the evidence (or review it in a manner amounting to a re-trial), unless one of the parties has specifically requested in the ground of appeal for the evidence heard at the first trial to be re-heard in appeal or for new evidence to be produced in the appeal (in accordance with the article 603(1) ICCP); which they have not.”
“In those circumstances, where new evidence is acquired after the conclusion of the first trial, the appeal judge would order the renovation of the acts of the first trial, with the limitation listed by article 495(1) ICCP. In those circumstances, in accordance with article 603(4) ICCP, the Court of Appeal could ask for the evidence to be heard again, provided the defendant was tried in absentia by the Lower Court and the defendant files an application in this respect (in which the defendant has to prove that he could not attend the trial because either of acts of God, or because he was not aware of the existence of the proceedings – provided that the above was not caused by its own fault, or in the event the service of the proceedings was made to his attorneys in accordance to articles 159, 161(4) and 169, and he did not deliberately avoid to learn about the acts of the proceeding. Article 603(5) states that the Judge will rule on the possibility of rehearing the evidence after having discussed of this issue with both parties of the criminal litigation.”
“That order [sc. of24 January 2003 ] is still valid as it has not been revoked. On7th June 2005 , the defendant was tried and convicted in respect of this offence in his absence before the First Instance Court of Naples, 1st Criminal Section. The defendant was sentenced, but as with the other offences this sentence was not immediately enforceable as subject to appeal. Were the Defendant to be returned to Italy in accordance with the [EAW], he would be immediately subject to being held in custody under the Coercive Measures Order of24th January 2003 , until implementation of the definitive sentence, in the event that neither the current appeal in absentia nor any subsequent recourse to the Supreme Court of Cassation are successful. Again, there would be no right to a fresh trial. The [EAW] is drafted as if for a Pre-Trial Custody Order, but also states that it is in order to be judged in the subsequent instances of the ongoing proceedings. The [EAW] further makes it plain that the trial phase has concluded with a sentence, which however is not yet definitive.”
“Also in this case, the defence, even being entitled to do so, did not avail itself of the right to request that witnesses be heard again or evidence be taken again or the taking of new evidence.”
“1. When a party, in the appeal or in the grounds of appeal submitted in terms of Art. 585 paragraph 4, has requested that the evidence obtained in the first instance trial be heard again (Art. 496 et seqq.) or that new evidence be heard, the judge, when he considers that he is not in a position to decide on the basis of the already gathered evidence, orders the reopening of the trial phase. 2. If the new evidence came into existence or was discovered after the first instance trial, the judge orders the reopening of the trial phase without the limits provided for by Art. 495 paragraph 1. 3. The reopening of the trial phase is ordered ex officio if the judge regards it absolutely essential. 4. Furthermore, the judge orders the reopening of the trial phase, if the defendant who has been judged in absentia in the first instance trial so requests and can demonstrate that he failed to appear because of a fortuitous event, or force majeure or because he did not have knowledge of the writ of summons, provided that the reason for it cannot be ascribed to him or if the writ of summons for the first instance trial was served upon him by means of delivery to the defence attorney in the cases provided for in Article 159, 16, paragraph 4 and 169, he did not voluntarily avoid obtaining knowledge of the acts of the proceedings.”
“12. My understanding gleaned from the responses from the Judges, from the evidence of Andrew Colvin and from the statement of the Public Prosecutor dated25th November 2006 , is that at the hearing at the Court of Appeal, issues of both fact and law can be considered. The defence are entitled, if they so request, to a re-evaluation of the evidence on its merits. If fresh evidence is acquired after the end of the first instance trial, the Court of Appeal will order a re-trial. Such a re-evaluation of the merits of the conviction at first instance has been requested by the defence in relation to the drug offence and the Court of Appeal has yet to hear the case.”
“Prior to 1989 courts in this country examined the finality of proceedings abroad to see if a fugitive should be regarded as a person convicted or accused, and that process has continued. In re Sarig26th March 1993 unreported, where the request came from the United States, the conviction of the fugitive in his absence was treated as final because if he were returned the court would have a discretion whether or not to set that conviction aside. As Evans LJ put it at 25E – ‘The question is, does the applicant have a right to trial of the alleged or admitted extradition crime, notwithstanding the conviction which has been recorded?’”
“18. In the instant case the material before this court is that should the applicant be returned he is entitled to set aside the conviction and the sentence in his case, as of right, provided that he lodges objection within ten days of arrival in France... That is why, earlier in this judgment, I referred to this case as being an accusation case. 19. On the basis of that material, it is clear that this applicant has an absolute right to set aside the judgment on his return to France. In those circumstances this case is analogous to Foy...” ‘The question is, does the applicant have a right to trial of the alleged or admitted extradition crime, notwithstanding the conviction which has been recorded?’”
“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.”
“125. ... The documents before the sheriff referred to the appellant as having been found guilty in his absence and sentenced. That meant that he was convicted. The fact that his conviction could be set aside on appeal did not affect the matter. Accordingly, the appellant fell to be dealt with by the sheriff as a convicted and not as an accused person. The sheriff treated him as an accused person... and thereby deprived him of the guarantees provided by section 85. As in R (Guisto) v Governor of Brixton Prison ([2004] 1 AC 101 ), the extradition request had proceeded on a false basis. If the present case had been brought against the appellant as a convicted person, he could have argued the point as to whether or not he deliberately absented himself from trial and whether or not he would be entitled to a rehearing. Since the sheriff treated him as an accused person only, he was deprived of that opportunity.”
“126. Counsel submitted that the distinction made on behalf of the appellant between an accused person and a convicted person was a false one. The distinction used in Part 2 was between an accused person and a person unlawfully at large after conviction. Section 70(1) required the making of a ‘valid’ request for extradition. To be valid, the request had to contain a statement in terms of section 70(4) (s 70(3)(a)), that is to say a statement in either of two forms, namely (a) that the person was accused in the category 2 territory of an offence specified in the request or (b) was alleged to be unlawfully at large after conviction. [I interpolate: cf the unamended form of s.2(5)(a).] If the sheriff decided that the person in question was accused but not unlawfully at large after conviction, he had then to proceed under section 84. If it was alleged that he was unlawfully at large after conviction, the sheriff must proceed under section 85. It was obvious that the statement in this case did not proceed on the basis of section 70(4)(b) by alleging that the appellant was unlawfully at large after conviction. He was not unlawfully at large after conviction because his sentence was not yet enforceable. Therefore, he must be an accused person in terms of section 70(4)(a). There was no category other than these two. The categorisation had to be made as at the date of the request, even if the appellant’s status later changed. It was not alleged that at the date of the request he was unlawfully at large after conviction. For the resolution of this ground of appeal, that was all that mattered. The whole system depended on taking the statement made in the request on trust. It was the allegation of the requesting State that mattered. That determined the category into which the appellant would be put for the purposes of proceedings in this country. (RGuisto) v Governor of Brixton Prison [[2004] 1 AC 101 ] was distinguishable. It was decided under different legislative language that distinguished between an ‘accused’ person and a ‘convicted’ person. It had no bearing on the 2003 Act. In In re Ismail[1999] 1 AC 320 the appellant alleged that he had not been charged with any offence. It was held that the expression ‘accused’ was not a term of art. It could be interpreted flexibly to accommodate differences between the common law and civilian systems. Extradition treaties should be given a broad and generous interpretation in order to facilitate extradition. The court should adopt a cosmopolitan approach to the term ‘accused’. The court should take the approach that was taken in Migliorelli v Italy (2000 WL 1421286 (DC)), where the subject of the request was in a similar position to the appellant. In that case the Divisional Court held that the appellant’s trial was not complete in the sense of being final (Morison J, at p 3). The court had before it written confirmation that the sentence was still subject to appeal. It was not alleged that the appellant in that case was unlawfully at large. Adopting the approach of Lord Steyn in In re Ismail (supra), the Divisional Court held that the conviction could not be said to be final. Accordingly, the status of the appellant in respect of section 70(4) was fixed at the time of the request. Subsequent events were irrelevant. But in fact in the present case the appellant’s status had not changed. The Italian sentence remained unenforceable.”
“127. In our opinion, the submission on behalf of the appellant is misconceived. The key provision in relation to this argument is section 70(4). It does not distinguish between an accused person and a convicted person. It distinguishes between an accused person and a person alleged to be unlawfully at large after conviction. Since it is agreed that the accused is not alleged to be unlawfully at large after conviction, it follows, in our view, that he has to be categorised as an accused person within the meaning of section 70(4)(a). That was the basis on which the sheriff dealt with the matter. He was right in proceeding under section 84. In any event, even on the information before the sheriff it was apparent that the sentence passed upon the appellant had not yet become final. We agree that Guisto (supra) is distinguishable from the present case, for the reasons given by counsel for the Lord Advocate, and has no bearing on the interpretation of section 70(4). The view that we have reached can be founded on a straightforward reading of section 70, and in particular section 70(4). But should it be necessary, we consider that the approach that was urged by Lord Steyn in cases of this kind (In re Ismail, supra) amply justifies the conclusion which the sheriff drew. As in Migliorelli v Italy... the key consideration is the fact that the accused’s sentence is still subject to appeal and his conviction cannot be said to be final.”
“24. ... Migliorelli was decided under Part III of the 1989 Act. Like the first incarnation of the 2003 Act, Part III of the 1989 Act required the court to decide between ‘accusation’ or ‘unlawfully at large’. In a case such as the present [i.e. Migliorelli], where a sentence is not immediately enforceable, and a defendant was therefore not unlawfully at large, there existed an obvious and real public interest in extending the scope of ‘accusation’ so as not to permit such a defendant to escape extradition altogether (see paras. 19 & 22 per Morison J). 25. By contrast, the amendments to the 2003 Act, by Schedule 13 of the [2006 Act], closed, and were plainly intended to close, that hole... 27. La Torre... was also decided under an ‘unlawfully at large’ regime (section 70 of the 2003 [Act], prior to the 2006 amendments).”
“Paragraphs 1 and 2 [sc. of Schedule 13] amend the wording in the 2003 Act relating to extradition requests for persons who are unlawfully at large in relation to the offence for which they have been requested. Case law has established that, as long as it is clear from the information contained in the warrant or request that the person is in fact alleged to be ‘unlawfully at large’, the warrant or request does not actually have to contain those words. And indeed many warrants and requests for the extradition from the United Kingdom of persons already convicted do not contain these words. This has given rise to difficulties, given the way in which a number of the provisions of the 2003 Act are worded.”
“It is common ground that mere suspicion that an individual has committed offences is insufficient to place him in the category of ‘accused’ persons. It is also common ground that it is not enough that he is in the traditional phrase ‘wanted by the police to help them with their enquiries’. Something more is required. What more is needed to make a suspect an ‘accused’ person? There is no statutory definition. Given the divergent systems of law involved, and notably the differences between criminal procedures in the United Kingdom and in civil law jurisdictions, it is not surprising that the legislature has not attempted a definition. For the same reason it would be unwise for the House to attempt to define the word ‘accused’ within the meaning of the Act of 1989. It is, however, possible to state in outline the approach to be adopted. The starting point is that ‘accused’ in section 1 of the Act of 1989 is not a term of art. It is a question of fact in each case whether the person passes the threshold test of being an ‘accused’ person. Next there is the reality that one is concerned with the contextual meaning of ‘accused’ in a statute intended to serve the purpose of bringing 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 texts permits it in order to facilitate extradition: Reg. v. Governor of Ashford, Ex parte Postlethwaite [1988] A.C. 924, 946H-947D. That approach has been applied by the Privy Council to the meaning of ‘accused’ in an extradition treaty: Rey v. Government of Switzerland [1998] 3 W.L.R. 1, 7B. It follows that it would be wrong to approach the problem of construction solely from the perspective of English criminal procedure, and in particular from the point of view of the formal acts of the laying of an information or the preferring an indictment... It is not always easy for an English court to decide when in a civil law jurisdiction a suspect becomes an ‘accused’ person. All one can say with confidence is that a purposive interpretation of ‘accused’ ought to be adopted in order to accommodate the differences between legal systems. In other words, it is necessary for our courts to 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... But in the light of the diversity of cases which may come before the courts it is right to emphasize that ultimately the question whether a person is ‘accused’ within the meaning of section 1 of the Act of 1989 will require an intense focus on the particular facts of each case.”
“Extradition requests received before1 January 2004 will continue to be governed by existing instruments relating to extradition. Requests received after that date will be governed by the rules adopted by Member States pursuant to this Framework Decision. However, any Member State may, at the time of the adoption of this Framework Decision by the Council, make a statement indicating that as executing Member State it will continue to deal with requests relating to acts committed before a date which it specifies in accordance with the extradition system applicable before1 January 2004 . The date in question may not be later than7 August 2002 ...”