Caldarelli v The Court of Naples

Under Part 1 of the Extradition Act 2003, a person convicted in absentia in the requesting state may still be treated as an accused person where the conviction is not final or enforceable and the person is not alleged to be unlawfully at large after conviction.

The court must read the statutory scheme as a whole. The 2006 amendments altered the contents of a conviction warrant but did not remove the continuing statutory distinction between an accusation case and an unlawfully-at-large case. A broad and generous, cosmopolitan construction is appropriate to accommodate differing criminal procedures. Any risk of unfairness is addressed through the Convention-rights assessment required by section 21.

The appellant challenged an order made by the City of Westminster Magistrates Court ordering his extradition to Italy under a European Arrest Warrant. He had been tried and sentenced in absentia in Naples, but the Italian conviction and sentence were neither final nor enforceable while his appeal remained pending.

The principal issue was whether the warrant was properly characterised as an accusation warrant under section 2(3) of the Extradition Act 2003, or whether it was a conviction warrant. Further grounds alleged unfair trial implications, excess of particulars and misuse of the European Arrest Warrant procedure.

1. The appeal was dismissed. The European Arrest Warrant was rightly characterised as an accusation warrant.
2. The appellant had been found guilty and sentenced in Italy, but the conviction was not final or enforceable while the criminal appeal process remained incomplete. Under Italian procedure, a fresh hearing on the merits was discretionary, rather than an unqualified right. That did not prevent the appellant being treated as an accused person.
3. The 2006 amendments to the Extradition Act 2003 altered the wording required in a warrant under section 2(5)(a). They did not remove the continuing operation of sections 11(4) and 11(5), which required the court to distinguish between a person alleged to be unlawfully at large after conviction and a person accused of the offence. Section 68A did not assist the appellant because his sentence was unenforceable.
4. Following the approach in Migliorelli v Italy and In re Ismail, the word accused was not a term of art. The court should adopt a purposive and cosmopolitan approach, focusing on substance rather than form and accommodating differences between legal systems. The approach was consistent with the transnational purpose of extradition.
5. The possibility that the appellant might withdraw his Italian appeal and thereby alter the classification of the case did not produce an absurd result. Any concern that return might deny a proper adjudication was addressed by section 21 and the Convention rights, including Article 6. The Article 6 assessment would be fact-sensitive and would consider the proceedings as a whole.
6. The remaining grounds failed. The European Arrest Warrant supplied expanded particulars of the same alleged conspiracy, and there was no bad faith. Article 32 of the Framework Decision and Article 40 of Italian Law 69/2005 did not prevent Italy issuing a warrant concerning the relevant conduct.

• High Court (Administrative Court): appeal from the City of Westminster Magistrates Court dismissed. The extradition order was upheld.