Daniele, R (on the application of) v HM Prison Wandsworth & Ors

In extradition proceedings under the Extradition Act 1989, a person convicted in absentia remains a convicted person where the proceedings are final and the conviction is not automatically set aside on return. Delay caused by the fugitive cannot ordinarily support an argument that extradition would be unjust or oppressive. The court must assess the effect of the delay and the responsibility for it. Extradition following an in absentia conviction is compatible with Article 6 where the person voluntarily waived the right to participate, or where domestic law provides a genuine opportunity for a fresh determination of the merits if no waiver is established.

The claimant faced extradition to Italy after convictions for dishonesty offences committed in his absence. The convictions and sentences had become final, and the claimant had been committed for return by the Westminster Magistrates' Court. He applied for habeas corpus, arguing that the request should be treated as an accusation case, that the offences and delay made extradition unjust or oppressive, and that return would breach Article 6 because he had been tried in absentia.

The central issues were whether the convictions were final, whether the statutory bars relating to triviality and delay applied, and whether the claimant had waived participation or had sufficient domestic remedies on return.

1. Conviction case. The application was properly treated as a conviction case. Under the Extradition Act 1989, “accused” is a fact-sensitive term. However, the convictions were final: the proceedings were not ongoing, appeals had been dealt with, and the sentences were irrevocable and aggregated. The possibility of an appeal under Article 175 of the Italian Code of Criminal Procedure did not make the proceedings ongoing or give an automatic right to have the convictions set aside.
2. Triviality. The offences were not trivial for the purposes of section 11(3)(a). Each conviction carried a substantial sentence, the aggregate sentence was five years and eight months, and the offences involved serious dishonesty affecting private individuals.
3. Passage of time. The burden rested on the claimant. Delay deliberately caused by a fugitive cannot ordinarily be relied upon. The claimant had left the jurisdiction and remained unlawfully at large, while there was no evidence that Italy had caused or contributed to the delay. He also produced no evidence of prejudice linked to the passage of time.
4. Article 6 and section 6(2). The claimant had voluntarily waived participation in the proceedings leading to the 1993 and 1999 convictions. In any event, the amended Article 175 provided a route to an out-of-time appeal and a fresh determination of the merits where effective knowledge and voluntary waiver were not established. Those safeguards satisfied the court that return would not breach Article 6 or be contrary to the interests of justice.
5. The application for habeas corpus was dismissed.

The claimant had been committed for extradition by the City of Westminster Magistrates' Court on 27 October 2006. The High Court dismissed his application for habeas corpus.