Caldarelli (Appellant) v Court of Naples (Respondent) (Criminal Appeal from her Majesty's High Court of Justice)

A European arrest warrant may seek surrender for prosecution where a first-instance conviction and sentence in the requesting state remain under appeal and are neither final nor enforceable. The requested person may then fall within the accusation category, even without an unqualified right to a retrial on the merits.

Under Part 1 of the Extradition Act 2003, a person is unlawfully at large after conviction only where surrender is sought for sentencing or service of an imposed sentence. Classification requires a purposive, internationalist approach which considers the requesting state's procedure rather than assuming English procedure. An accusation case proceeds under section 21, including consideration of compatibility with Convention rights.

The appellant had deliberately absented himself from an Italian trial but was represented by lawyers who tested the evidence. He was convicted and sentenced to 11 years' imprisonment. His appeal remained outstanding, so the conviction and sentence were neither final nor enforceable under Italian law. He had no unqualified right to a retrial or equivalent review.

The Court of Naples issued a European arrest warrant seeking his surrender for pre-trial custody and the continuing proceedings. The Senior District Judge ordered surrender. The Queen's Bench Divisional Court upheld that order in [2007] EWHC 1624 (Admin), also reported at [2008] 1 WLR 31, although it rejected the District Judge's finding that the appellant would receive a full rehearing.

The certified question was whether a person convicted and sentenced in absentia, whose conviction and sentence were neither final nor enforceable, could be treated as an accused person despite lacking an unqualified right to a retrial on the merits.

1. Appeal dismissed unanimously. Lord Bingham delivered the leading opinion. Lord Hope agreed with it, Lord Carswell agreed and added observations, and Baroness Hale agreed with Lords Bingham and Carswell. Lord Mance also agreed in the result, despite reservations about the statutory language. The extradition was properly sought under an accusation warrant.

2. Per Lord Bingham, Part 1 of the Extradition Act 2003 had to be construed, so far as possible, in the light of the wording and purpose of the Council Framework Decision of 13 June 2002. Parliament was presumed to have intended consistency with the Framework Decision and no lesser degree of international co-operation than it required. The legislation also required a broad, internationalist approach. English procedural assumptions could not be imposed upon a requesting state with a different criminal process.

3. An issuing foreign judge's statements in a European arrest warrant would ordinarily be accepted as accurately describing the procedure of the legal system administered by that judge, although questioning them might sometimes be necessary. The evidence showed that Italian criminal proceedings constituted a continuing process. The appellant had not been finally sentenced, and no final judgment had been given concerning an enforceable penalty.

4. Per Lords Bingham, Carswell and Baroness Hale, sections 11(4) and 11(5) provide comprehensive alternatives. Section 68A requires both an alleged conviction and a request made for sentencing or service of an imposed sentence before a person is treated as unlawfully at large after conviction. The appellant's sentence was not yet effective and might never take effect if his appeal succeeded. His surrender was sought to continue the prosecution, not to execute the sentence. He therefore fell within section 11(5), and the judge had to proceed under section 21 rather than section 20.

5. Lord Bingham approved the treatment of an incomplete Italian criminal process in Migliorelli v Government of Italy (No 1) and regarded the relevant submission accepted in La Torre v Her Majesty's Advocate 2006 SCCR 503 as sound. The lack of an automatic retrial did not convert this non-final prosecution into a conviction case.

6. Lord Mance considered the statutory language awkward and noted the reduced statutory protection available where an in-absentia conviction was classified as an accusation case. He emphasised that the foreign court's categorisation could not itself determine the domestic statutory question. Nevertheless, the appellant retained the Convention-rights safeguard under section 21, and Lord Mance agreed that certainty supported the established approach. Written submissions on costs were invited within 14 days.

1. House of Lords: The appeal in Caldarelli v Court of Naples [2008] UKHL 51 was dismissed unanimously. The Divisional Court's decision upholding the surrender order was affirmed.
2. Queen's Bench Divisional Court: Laws LJ and Tomlinson J dismissed the appeal in [2007] EWHC 1624 (Admin), reported at [2008] 1 WLR 31. The court rejected the District Judge's conclusion that a full rehearing was available but held that the warrant was properly characterised as an accusation warrant.
3. Senior District Judge: Following an extradition hearing, the judge ordered the appellant's surrender under the European arrest warrant.