The appellant challenged his extradition saying that the European Arrest Warrant under which he was held wrongly said that he was convicted, whilst he said he was wanted for trial. He had been tried in his absence, and the judgment and sentence were not under Italian law either final or enforceable until the appeal process was concluded.
Held: The prosecutor’s appeal failed. The Act reflected a clear distinction between those who are convicted, and those who are only accused. While a national court may not interpret a national law contra legem, it must ‘do so as far as possible in the light of the wording and purpose of the Framework Decision in order to attain the result which it pursues and thus comply with article 34(2)(b) EU.
Lord Bingham said that the foreign judge had treated the appellant as an accused and not a convicted person. This seems strange to an English lawyer, familiar with a procedure by which a defendant sentenced to imprisonment at the end of a jury trial goes down the steps from the dock to the cells. But such is not the practice in Italy where the trial is indeed a continuing process, not yet finally completed in this case, and not an event. On the evidence the appellant falls within section 11(5) of the Act as a person accused of the commission of an extradition offence but not alleged to be unlawfully at large after conviction of it
Baroness Hale said: ‘
The foreign judge has treated the appellant as an accused and not a convicted person. This seems strange to an English lawyer, familiar with a procedure by which a defendant sentenced to imprisonment at the end of a jury trial goes down the steps from the dock to the cells. But such is not the practice in Italy where the trial is indeed a continuing process, not yet finally completed in this case, and not an event. On the evidence the appellant falls within section 11(5) of the Act as a person accused of the commission of an extradition offence but not alleged to be unlawfully at large after conviction of it.’
Lord Bingham of Cornhill, Lord Hope of Craighead, Baroness Hale of Richmond, Lord Carswell, Lord Mance
[2008] UKHL 51, Times 19-Aug-2008, [2008] All ER (D) 392, [2009] 1 All ER 1, [2008] 1 WLR 1724
Bailii, HL
Extradition Act 2003 26, Framework Decision of 13 June 2002 (2002/584/JHA)
England and Wales
Citing:
Appeal from – Caldarelli v The Court of Naples Admn 12-Jul-2007
The court certified a point of law for the House of Lords as follows: ‘Where a fugitive has been convicted and sentenced in his absence in the requesting state, but the conviction and sentence are neither final nor enforceable, may his case be . .
Cited – In re Coppin 1866
The French sought to extradite Coppin who had been convicted by a court in Paris in his absence in a conviction ‘par contumace’. That conviction might be annulled if he surrendered to the court’s jurisdiction, when he would be tried again for the . .
Cited – In re Guisto (application for a writ of Habeas Corpus) (Criminal Appeal from Her Majesty’s High Court of Justice) HL 3-Apr-2003
The applicant challenged an order for his extradition to the US. He had been convicted in his absence having absconded from bail.
Held: He had been arrested and held on the basis that he was a convicted person, but the procedure should have . .
Cited – Regina v Governor of Brixton Prison, ex parte Caborn-Waterfield QBD 1960
When an accused person is committed under the first paragraph of section 10 and surrendered to a foreign government he is surrendered for trial. Before that course is taken the magistrate has to be satisfied that a prima facie case is made out. When . .
Cited – In Re Ismail (Application For Writ of Habeas Corpus) (On Appeal From A Divisional Court of The Queen’s Bench Division) HL 20-Aug-1998
The term ‘Accused person’ for the purposes of extradition can include a person yet to be charged. Allowance are to be made for foreign systems, and should recognise the purpose of the legislation and includes the desire to interview or where a . .
Cited – Athanassiadis v Government of Greece (Note) 1971
The appellant was properly extradited as a convicted person since the conviction, though in his absence was not in contumacy. . .
Cited – Regina v Governor of Pentonville Prison, ex parte Zezza HL 1983
In the context of an application for extradition, where the conviction was a ‘conviction for contumacy’ that phrase is not defined. It does not have an ordinary meaning in the English language. ‘Contumacy’ indicates insubordination or disobedience . .
Cited – In re Avishalom Sarig 26-Mar-1993
An extradition request came from the United States. The applicant resisted saying that the conviction was not final.
Held: The court should examine the nature of the conviction itself. The conviction of the fugitive in his absence was treated . .
Cited – Office of the King’s Prosecutor, Brussels v Cando Armas and others HL 17-Nov-2005
The defendant resisted extradition to Brussels saying that the offence had been committed in part in England. He had absconded and been convicted. Application was made for his return to serve his sentence. The offences associated with organisation . .
Cited – Migliorelli v Government of Italy QBD 28-Jul-2000
The Government of Italy sought the return of a fugitive who had been tried and convicted in his absence. The issue was whether the warrant should have been issued against the fugitive as a convicted person and not, as it had, as an accused person. . .
Cited – La Torre v The Lord Advocate and Another HCJ 8-Nov-2006
The Lord Advocate had conceded that devolution minutes were competent in proceedings under the 2003 Act. . .
Cited – La Torre v Her Majesty’s Advocate HCJ 14-Jul-2006
The applicant resisted his extradition to Italy, saying that the provisions of Part 2 of the 2003 Act were engaged because the case started life before Italy ratified the Framework Decision and so adopted the EAW system. La Torre had been found . .
Cited – Criminal proceedings against Pupino ECJ 16-Jun-2005
ECJ (Grand Chamber) Police and judicial cooperation in criminal matters – Articles 34 EU and 35 EU – Framework Decision 2001/220/JHA – Standing of victims in criminal proceedings – Protection of vulnerable . .
Cited – Dabas v High Court of Justice, Madrid HL 28-Feb-2007
The defendant sought to appeal his extradition to Spain to face terrorism charges. He complained that the certificate required under the 2003 Act could not be the European arrest warrant itself, that the offence did not satisfy the double . .
Cited by:
Cited – Konecny v District Court In Brno-Venkov, Czech Republic SC 27-Feb-2019
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Lists of cited by and citing cases may be incomplete.
Extradition, European
Updated: 10 January 2022; Ref: scu.271272