Mariotti v Government of Italy & Ors

Under section 6(2) of the Extradition Act 1989, the court does not review the safety of a foreign conviction where the accused deliberately chose not to attend a trial conducted according to the requesting state’s law. A calculated decision to remain absent may amount to absence by choice, even where the accused sought to preserve extradition rights. Under section 11(3), delay must be assessed in all the circumstances, including the gravity of the offence and the reasons for the delay. Criticism of officials’ extradition statements does not establish bad faith in the accusation or ordinarily make return unjust or oppressive. The section 2 inquiry concerns the conduct found proved, rather than foreign law. The application was dismissed.

The applicant faced an Italian request for extradition following final convictions for murder, kidnapping, false imprisonment and blackmail. He had known of the Italian proceedings, was represented, and chose not to return to Italy for the trial and subsequent hearings. A District Judge committed him to await the Secretary of State’s decision. He applied for discharge under sections 6(2) and 11(3) of the Extradition Act 1989, disputed that he was unlawfully at large, and argued that the conduct found by the Italian court did not constitute murder in English law. The central issues were whether his absence was voluntary, whether return would be unjust or oppressive, whether the evidence established that he was unlawfully at large, and whether the conduct constituted an extradition crime.

1. Section 6(2). The court accepted that section 6(2) and the interests-of-justice ground concern convictions obtained in the accused’s absence. They do not ordinarily permit review of the evidence or reconsideration of the safety of a conviction where the foreign trial complied with the requesting state’s law.

2. The applicant had known of the proceedings, was professionally represented, and had several available choices. His decision to remain in England and allow the trial to proceed was a calculated risk. It constituted absence by choice. In those circumstances, return was not contrary to the interests of justice, and the Italian court was not shown to have acted unfairly by trying him in his absence.

3. Section 11(3). The passage of time did not make return unjust or oppressive. The delay was explained in substantial part by the late evidence of the supergrass and the intervening Italian proceedings. The later three-year gap was not condoned, but did not alter the conclusion given the gravity of the offences. Section 11(3)(c) concerns bad faith in the accusation. The court found no such bad faith. Overenthusiastic or careless statements by officials involved in the extradition request did not justify discharge.

4. Unlawfully at large. Although the sentence enforcement order alone might have left an evidential gap, the Italian prosecutorial advice, chronology and supporting documents established that the applicant had been declared unlawfully at large and remained so at the material time.

5. Section 2. The court had to identify the conduct found proved by the Italian court, without determining any question of foreign law. The Italian findings described participation in a kidnapping in circumstances where the hostage’s death was a foreseeable development. Applying R v Powell and English [1999] 1 AC 1, that conduct would sufficiently constitute murder in England and therefore amounted to an extradition crime.

6. The application for habeas corpus and discharge was dismissed.

• Court of Appeal (Civil Division): The court dismissed the application, upholding the committal and rejecting the challenges under the Extradition Act 1989.
• High Court, Queen’s Bench Division: The matter had proceeded before Sullivan J, from whose decision the proceedings came to this court. No citation for that decision is stated in the judgment.