Caldarelli v The Court of Naples

Under Part 1 of the Extradition Act 2003, the statutory distinction is between an accusation case and a case in which the person is alleged to be unlawfully at large after conviction. A person convicted in absentia in the requesting state may still be treated as accused where the conviction remains subject to appeal and is not final or enforceable. The court should adopt a broad, purposive and cosmopolitan construction capable of accommodating differing criminal procedures. That approach must operate alongside the protection afforded by section 21 and the Convention rights. Any Article 6 complaint requires a fact-sensitive assessment of the proceedings as a whole. Amendments to the warrant’s required contents did not remove the continuing statutory requirement that a conviction case engage the unlawfully-at-large provisions.

The appellant appealed under section 26 of the Extradition Act 2003 against an order of the City of Westminster Magistrates Court directing his extradition to Italy under a European Arrest Warrant.

He had been tried and sentenced in absentia in Naples, but his conviction and sentence were not final or enforceable while his Italian appeal remained pending. The warrant stated that extradition was sought to execute a pre-trial custody order and for the appellant to be judged in the subsequent stages of the proceedings. The appeal challenged the warrant’s classification, the fairness of the prospective proceedings, the particulars of the alleged offences and the temporal scope of the European Arrest Warrant regime.

1. Appeal dismissed. The European Arrest Warrant was properly characterised as an accusation warrant.
2. The 2006 amendments to section 2(5)(a) of the Extradition Act 2003 altered the information required in the warrant. They did not remove the continuing operation of the distinction in section 11 between an accusation case and a case where the person is alleged to be unlawfully at large after conviction. A conviction case could therefore proceed under section 11(4) only where the person was alleged to be unlawfully at large.
3. The appellant’s sentence was not enforceable because the Italian appeal remained pending. Under section 68A(1), extradition was not sought for the purpose of serving an imposed sentence. The approach in Migliorelli v Italy and La Torre v HM Advocate could not be distinguished and was followed. The court adopted the broad and cosmopolitan approach to the term accused described in In re Ismail.
4. The possibility that a person treated as accused might lack an absolute right to a full retrial did not make the statutory construction unacceptable. Section 21 required the extradition judge to refuse extradition if it would be incompatible with Convention rights. Article 6 issues were fact-sensitive and required consideration of the proceedings as a whole, including the first-instance trial and available appeals.
5. The appellant’s complaint that the warrant extended beyond the earlier warrant and the Italian custody order failed. The later warrant supplied fuller particulars of the conspiracy, which had consistently been the accusation and had been reflected in the Italian conviction. The allegation of bad faith was unfounded.
6. The argument based on Article 32 of the Framework Decision and Article 40 of Italian Law 69/2005 also failed. The relevant temporal declaration concerned requests received by Italy as executing state, not warrants issued by Italy.

• High Court (Queen’s Bench Division, Divisional Court): appeal from the City of Westminster Magistrates Court dismissed.
• City of Westminster Magistrates Court: Senior District Judge Workman discharged the appellant on the second Mafia warrant but ordered extradition on the second drugs warrant on 23 February 2007.