Sadutto v HM Prison Brixton & Anor

In extradition proceedings concerning a conviction in absentia, the court must decide whether return would be unjust in all the circumstances. The inquiry is fact-sensitive and involves matters of fact and degree. Where the person accepts the conviction but has no effective opportunity to appeal sentence, the court may refuse return if special circumstances mean that the sentence may have been materially harsher than justice required. Relevant circumstances may include a credible reason for absence, serious risks arising from cooperation with prosecuting authorities, official awareness of those risks, delay, and the absence of a right of appeal. The court must consider the combined effect of those matters rather than treat absence from trial as automatically decisive.

The Italian Government sought the return of an Italian national to serve a sentence imposed after he was convicted in his absence of a serious drug-conspiracy offence. His earlier suspended sentence was also activated. He accepted that he had been properly convicted, but argued that return would be unjust because he had left Italy owing to fears arising from valuable cooperation with the authorities, the authorities had failed to protect him, and he had no right of appeal against sentence.

The application was made under sections 6(2) and 11(3) of the Extradition Act 1989. The central issue was whether, having regard to all the circumstances, return would unjustly expose him to a sentence that might have been lower had the sentencing court known why he had left.

1. The application for habeas corpus was allowed. The applicant was released on unconditional bail pending notification of whether a further challenge would be pursued. Leave to appeal was refused.

2. Sections 6(2) and 11(3) of the Extradition Act 1989 required substantially the same inquiry: whether return would be unjust in all the circumstances. The assessment was necessarily fact-sensitive and concerned with fact and degree.

3. Although voluntary absence from a known trial ordinarily attracts little sympathy, this was an exceptional case. The applicant had left lawfully because of a genuine fear for his safety after giving valuable assistance to the prosecution. The authorities knew, or had reason to know, why he had gone abroad, and there were indications of substantial inactivity in tracing him.

4. The sentencing court had allowed for cooperation but may have imposed a lower sentence had it known that the applicant had left because promised protection was unavailable. Since there was no right of appeal against sentence, return would probably require him to serve longer than justice required. That consequence made return unjust.

5. The court accepted the general importance of attendance and representation in criminal proceedings identified in R v Jones [2003] 1 AC 1, but distinguished that non-extradition case because the present dispute concerned sentence, not guilt. The court applied the approach in R v The Governor of HM Prison, ex parte Barone, where review of a conviction obtained in absence was treated as necessary to do justice.

First-instance decision in the Administrative Court. The court refused leave to appeal. The applicant was released on unconditional bail pending any petition for leave to appeal.