Neave & Ors v Court of Rome, Italy

An European arrest warrant may be issued before a formal prosecution or charge has begun, unless the applicable instrument expressly requires that step. Whether a person is an “accused” person is a fact-sensitive question assessed substantively and with a cosmopolitan approach, accommodating differences between legal systems. Detailed allegations and evidence of personal involvement may establish accusation despite the absence of a final charging decision.

For extradition purposes, a prospective breach of Article 5 requires a sufficiently grave incompatibility with Convention rights. Detention during a preliminary investigation does not necessarily create such a breach where there is a present intention to prosecute and judicially reviewable access to bail.

The appellants challenged orders made by District Judge Zani at Westminster Magistrates’ Court on 27 January 2011, sending them to Italy under separate European arrest warrants. The warrants concerned alleged participation in a transnational criminal organisation and complicity in money laundering arising from an alleged carousel VAT fraud.

The appeal raised four grounds: whether the warrants could precede the commencement of a prosecution; whether they satisfied the statutory requirement that the appellants be “accused”; whether the money-laundering allegations were sufficiently particularised; and whether surrender would expose the appellants to a flagrant breach of Article 5 of the ECHR because of pre-charge detention in Italy.

1. Grounds 1 and 2. The appeal was dismissed. Article 1.1 of the Framework Decision did not require a formal charging or prosecutorial step before an European arrest warrant could be issued. If such a requirement had been intended, it would have been stated expressly. Differences between national procedures did not prevent Italy from using the warrant procedure.

2. The statutory concept of an “accused” person required a substantive, fact-sensitive and cosmopolitan assessment. A person who was merely suspected and wanted for questioning would not qualify. However, a person could be accused even though the final decision to charge or prosecute had not been made. The warrants contained extensive evidence of the alleged fraud, the appellants’ alleged involvement, the relevant places and dates, the offences and each person’s degree of participation. The investigation had therefore moved from suspicion to accusation. The reasoning was consistent with In Re Ismail [1999] 1 AC 320 and Assange v Swedish Prosecution Authority [2011] EWHC 2849 (Admin).

3. Ground 3. The challenge to the particulars of complicity in money laundering failed. On the assumed basis that Italian law did not criminalise laundering the proceeds of one’s own criminal conduct, the further material dispelled any doubt that the allegations concerned only such proceeds.

4. Ground 4. The court assumed that detention would breach Article 5 if there were no present intention to prosecute. That condition was not established. The Italian prosecutor presently intended to move the investigation towards criminal prosecution. The possibility that questioning or new evidence might later lead to discontinuance did not remove that present intention. The appellants could apply for bail repeatedly, challenge refusals, and appeal to the highest Italian court.

5. Even if the preliminary investigation lasted more than three months before the decision to proceed, that would not necessarily amount to a flagrant breach of Article 5. The court applied the high threshold identified in Abu Quatada (application number 8139/09), where arbitrary detention for many years without an intention to bring the person to trial was given as an example.

6. Both Hooper LJ and Singh J would dismiss the appeals.

1. High Court (Administrative Court): Appeals from the orders of District Judge Zani dated 27 January 2011 were dismissed.
2. Westminster Magistrates’ Court: The appellants were ordered to be surrendered to Italy under separate European arrest warrants.