Office of the Prosecutor General of Turin v Barone

Under the Extradition Act 2003, the court has an implied abuse-of-process jurisdiction to protect the integrity of the extradition regime. A previous refusal under the former statutory regime does not create issue estoppel and does not, by itself, prevent a fresh request under the new regime. The previous decision may nevertheless remain materially relevant, particularly where it identified an apparent incompatibility with the right to a fair trial and the requesting authority has failed to address it.

Mutual confidence between Member States does not require the requested court to ignore a prior judicial finding of serious procedural unfairness. Delay caused substantially by the requested person’s flight will not ordinarily make extradition oppressive under section 14. A sense of security must generally arise from conduct of the requesting state, and the statutory bar applies only in exceptional circumstances.

The Italian judicial authority appealed against District Judge Purdy’s decision of 17 June 2010 concerning a European arrest warrant for Franco Barone. The warrant sought his surrender to serve a sentence imposed in absentia in Italy for serious offences committed in 1976.

In 1997, the Divisional Court had refused extradition under the Extradition Act 1989, concluding that the conviction required review because of evidential and procedural defects, but that no effective review was available. The District Judge held that the renewed proceedings were an abuse of process and that section 14 of the Extradition Act 2003 also barred extradition as oppressive by reason of delay.

The central issues were whether the earlier decision prevented or affected the new request, whether the requesting authority’s response constituted an abuse of process, and whether the passage of time made extradition oppressive.

1. Appeal dismissed. The District Judge was entitled to refuse extradition as an abuse of process, although his reasoning concerning the safety of the conviction was inaccurate and section 14 did not bar extradition.
2. There was no issue estoppel. The earlier decision concerned the different statutory question under section 6 of the Extradition Act 1989, namely whether it was in the interests of justice to return the respondent. The present jurisdiction concerned the implied power under the Extradition Act 2003 to protect the integrity of the statutory regime.
3. The fact that the offences pre-dated the new regime did not prevent Italy from invoking it. Nor did the earlier refusal, by itself, make a fresh request abusive. However, the earlier decision was not irrelevant. It had identified serious defects in the 1930 Italian criminal procedure, including the inability properly to challenge the accomplice’s evidence, and the absence of any effective review.
4. The requesting authority had failed to address those findings. Its assertion that the evidence was irrefutable did not answer the procedural criticism or provide material capable of demonstrating compliance with article 6. In those unusual circumstances, attempting to ignore the earlier judicial decision solely because the evidential approach was no longer available under the 2003 regime amounted to an abuse of process.
5. Section 21 would ordinarily require consideration of whether surrender would be compatible with Convention rights, including whether there had been a flagrant denial of a fair trial. On the evidence available, refusal under section 21 would have been inevitable even if the matter had been remitted.
6. The section 14 ground failed. Applying the principle in Gomes v Government of the Republic of Trinidad and Tobago, mere inaction by the requesting state was insufficient. The principal delay resulted from the respondent’s escape, and he had never acquired a genuine sense of security that extradition risk had ended. The exceptional statutory bar therefore did not apply.

• High Court (Administrative Court): dismissed the appeal and upheld the District Judge’s refusal of extradition on abuse-of-process grounds.
• District Judge: on 17 June 2010 held that the proceedings were an abuse of process and that section 14 of the Extradition Act 2003 barred extradition.
• Divisional Court: in R v The Governor of HM Prison Brixton ex parte Barone [1997] EWHC Admin 988, refused extradition under the former statutory regime because the conviction required review and no effective review was available. The House of Lords refused permission to appeal.