La Torre v Italy

Extradition is barred by passage of time only where, after considering all the circumstances, extradition would be unjust or oppressive. Unexplained or culpable delay by the requesting state is relevant and may be decisive in a marginal case, but it does not automatically establish the bar. The person cannot rely on delay for which he is responsible.

A court may rely on an assurance from the requesting state’s effective decision-maker where the assurance concerns discretionary executive action, is sufficiently clear and is supported by the assumption that the requesting state acts in good faith. Speculative possibilities that the assurance might later be disregarded do not establish a real risk of prohibited treatment.

The appellant challenged decisions of a district judge concerning three Italian extradition requests. The requests covered accusation charges of blackmail, forgery, perverting the course of justice and murder. The appeal was brought under sections 26 and 103 of the Extradition Act 2003.

The appellant contended that extradition was barred by the passage of time, that detention under article 41 bis of the Italian prison regime would violate article 3 of the European Convention on Human Rights, and that his mental condition made extradition unjust or oppressive. The district judge had relied on an assurance that article 41 bis would not be imposed. During the appeal, the Italian Minister of Justice supplied a direct assurance confirming that position.

The central issues were whether that assurance removed any real risk of article 41 bis detention and whether the delay and alleged prejudice made extradition unjust or oppressive.

1. The appeal was dismissed. The assurance dated 29 March 2007 was given by the Italian Minister of Justice, who was the effective decision-maker concerning article 41 bis. It clearly confirmed that the regime would not be imposed upon the appellant if he were extradited.

2. The court was entitled to rely on that assurance. The starting point was the fundamental assumption that a requesting state acts in good faith. The assurance concerned discretionary executive action governing detention conditions, rather than an undertaking to disapply the ordinary law governing trial. It was also given by a fellow European Union Member State participating in the European arrest warrant regime. The possibility that a successor might disregard the assurance, or that circumstances might change, was speculative. Accordingly, there was no real risk of article 41 bis detention, and the court did not need to decide whether that regime would violate article 3 of the European Convention on Human Rights: [2006] EWHC Admin 2927 applied; Armah v Government of Ghana [1968] AC 192 distinguished.

3. Under sections 14 and 82 of the Extradition Act 2003, the question is whether extradition would be unjust or oppressive by reason of the passage of time. “Unjust” is primarily concerned with prejudice to the conduct of the trial. “Oppressive” is primarily concerned with hardship caused by changes in the person’s circumstances, although the concepts overlap: Kakis v Cyprus [1978] 1 WLR 779 applied.

4. All the circumstances must be considered. Unexplained delay does not necessarily establish fault by the requesting state or entitle the person to discharge. Culpable delay may colour the overall assessment and may be decisive in a marginal case. A person cannot take advantage of delay for which he is responsible. The statutory evaluation is an overall judgment on the merits and should not be constrained by rigid rules.

5. The appellant had not demonstrated that the delay would deprive him of a fair trial. His claims concerning unavailable alibi evidence were insufficiently established, while imprisonment records, surveillance material and other documents might support the asserted defences. Nor had he reasonably been lulled into believing that no further proceedings would be brought. Extradition was therefore neither unjust nor oppressive.

6. The mental-health ground under section 25 added nothing. It depended upon the appellant being returned to the article 41 bis regime, which the Minister’s assurance excluded. Davis J agreed with Laws LJ.

1. High Court (Administrative Court): The statutory appeal under sections 26 and 103 of the Extradition Act 2003 was dismissed.

2. City of Westminster Magistrates’ Court: On 7 September 2006 District Judge Evans sent matters arising under the Part II request to the Secretary of State for an extradition decision and ordered extradition on the relevant Part I requests. He discharged the appellant on three convictions tried in his absence and on a separate request barred by passage of time.