Battistini v The Court of Naples, Italy

Under section 14 of the Extradition Act 2003, passage of time bars extradition only where returning the requested person would be unjust or oppressive. Injustice principally concerns prejudice to the fairness of the trial; oppression concerns hardship arising from changes in the person’s circumstances. Ordinary hardship caused by extradition is insufficient. In European Arrest Warrant cases, those questions must be assessed in their European context, having regard to mutual trust and the obligation to respect treaty arrangements. The requested state’s courts, rather than the extradition court, should determine disputed issues of that state’s law. The Administrative Court therefore declined to adjudicate on competing interpretations of Italian limitation periods, prosecutorial authority and pardon provisions.

The appellant, an Italian national, appealed under section 26 of the Extradition Act 2003 against an order made by District Judge Zani on 3 September 2009 for his extradition to Italy. His extradition was sought under a European Arrest Warrant issued by the Court of Naples for offences allegedly committed in 2001.

Before the District Judge, the appellant relied on passage of time under section 14 and argued that the warrant was invalid because the alleged offences predated the European Arrest Warrant Framework Decision and its implementation in Italy. Before this court, the first ground was maintained. The second was replaced by an abuse of process argument based on Italian limitation periods, prosecutorial authority and a statutory pardon. The central issues were whether extradition would be unjust or oppressive and whether the Administrative Court should determine disputed questions of Italian law.

1. The appeal was dismissed. The District Judge had not erred in concluding that extradition was neither unjust nor oppressive by reason of the passage of time.
2. The court applied the analysis in Kakis v Government of the Republic of Cyprus, [1978] 1 WLR 779. Injustice is directed principally to the risk of prejudice in the conduct of the trial. Oppression is directed principally to hardship resulting from changes in the accused’s circumstances. The concepts overlap and together address cases where return would be unfair.
3. The assessment of possible unfairness in a European Arrest Warrant case must take place in its European context. Following Gomes and Gooodyer v Government of the Republic of Trinidad and Tobago, [2009] UKHL 21; [2009] 1 WLR 1038, Council of Europe states should ordinarily be assumed capable of protecting an accused against an unjust trial. Mutual trust, reciprocal treaty obligations and the public interest in international co-operation are relevant. The possibility of a fair trial remained the essential issue.
4. The appellant provided no sufficiently specific evidence of trial prejudice. The principal evidence consisted of intercepted telephone calls, whose reliability and challengeability had not materially diminished through the passage of time. His personal circumstances showed hardship, but ordinary hardship resulting from extradition was insufficient.
5. The proposed abuse of process ground depended on disputed interpretations of Italian law. Even if the further expert evidence were admitted, the issues were matters for the Italian courts. It was wholly inappropriate for this court to adjudicate between rival interpretations of Italian law. The additional material could not strengthen either the abuse of process ground or the section 14 challenge.

• High Court (Administrative Court): On 16 December 2009, the appeal against the District Judge’s extradition order was dismissed.
• District Judge: On 3 September 2009, District Judge Zani ordered the appellant’s extradition and rejected the passage-of-time and European Arrest Warrant validity challenges.