Caldarelli v Court of Naples

The appeal concerned the correct characterisation of a European arrest warrant issued by an Italian court in respect of a defendant convicted in his absence but with an outstanding appeal such that the conviction and sentence were not final or enforceable in Italy. The court held that, applying the Extradition Act 2003 (notably sections 2, 11, 20, 21 and the definition in section 68A as effected by the Police and Justice Act 2006) and construing domestic law in the light of the Council Framework Decision 2002/584/JHA, the warrant was properly an "accusation" warrant under section 2(3) and the judge was required to proceed under section 21 rather than section 20. Key considerations were (a) the Framework Decision's distinction between surrender for prosecution and surrender for execution of a sentence, (b) the evidential and legal character of Italian procedure where trial is a continuing process and conviction is not "final" until appeal is concluded, and (c) the statutory definition of "alleged to be unlawfully at large after conviction" in section 68A. The Divisional Court was therefore right to uphold the extradition order.

The appellant, convicted in absentia in Italy and sentenced to imprisonment, challenged an order for his surrender to the Court of Naples under a European arrest warrant issued on 6 October 2006. The warrant requested surrender “for the purposes of executing the Pre-Trial custody order … and in order to be judged in the subsequent instances of the ongoing proceedings”. The appellant contended that the Italian conviction and sentence, though subject to appeal, made him a "convicted" person and that the warrant should have been framed as a conviction warrant; because the requesting state had characterised him as "accused" rather than "convicted" he argued that extradition should be refused.

The courts below (a district judge and then the Queen's Bench Divisional Court: [2007] EWHC 1624 (Admin), [2008] 1 WLR 31) had evidence about Italian procedure showing that convictions are not final or enforceable while appeal proceedings remain outstanding and that a defendant tried in his absence is not always entitled as of right to a full retrial. The principal issue before the House was whether, in that situation, the warrant should be treated as an accusation warrant or as a conviction warrant under the Extradition Act 2003, read in the light of the Framework Decision 2002/584/JHA and as amended by the Police and Justice Act 2006 (which introduced section 68A).

The House held that the warrant was properly an accusation warrant under section 2(3) and that the judge was required to proceed under section 21 (not section 20). The reasons were: (i) the Framework Decision differentiates surrender for prosecution from surrender for execution of a custodial sentence and requires information about a final judgment for execution purposes; (ii) the 2003 Act should, so far as possible, be interpreted consistently with the Framework Decision; (iii) the Italian procedural evidence showed that the trial process remained ongoing and the conviction and sentence were not final or enforceable; and (iv) section 68A did not apply because extradition was not being sought for the purpose of serving an enforceable sentence. The appellant’s challenge was dismissed and the House invited submissions on costs.

Nature of claim: application to quash/appeal an order for surrender under a European arrest warrant. Issues framed: (i) whether the warrant was an accusation or conviction warrant; (ii) whether Italian procedure should be assessed as if it were English procedure or understood on its own terms; (iii) the proper construction of relevant provisions of the Extradition Act 2003 (sections 2, 11, 20, 21 and 68A) in light of the Framework Decision. Reasoning: interpret domestic statute consistently with the Framework Decision; accept evidence about foreign procedure; apply statutory definitions so the appellant was an "accused" person for the purpose of Part 1 and the judge should proceed under section 21 with Convention rights assessment.

Appeal dismissed. The House held that the EAW was correctly categorised as an accusation warrant: in light of the Framework Decision and the evidence of Italian criminal procedure the appellant, though convicted in his absence, was not the subject of a final enforceable conviction and fell within section 2(3) and section 11(5) of the Extradition Act 2003. Accordingly the district judge was required to proceed under section 21 rather than section 20 and the Divisional Court was right to uphold the extradition order.

Extradition hearing before a Senior District Judge who ordered surrender. Order upheld by the Queen's Bench Divisional Court (Laws LJ and Tomlinson J), [2007] EWHC 1624 (Admin), [2008] 1 WLR 31. Appeal to the House of Lords dismissed, [2008] UKHL 51.