Cimieri v Court of Agrigento (Italy)

Section 12A of the Extradition Act 2003 does not create an inflexible rule excluding extrinsic evidence which may undermine statements in a European arrest warrant that decisions to charge and try have been made. Evidence issued by the requesting judicial authority may be admissible under section 202, subject to a fact-sensitive assessment. Evidence from a requested person’s lawyer will generally require compliance with the rules governing expert evidence and will be admitted only rarely.

The warrant remains the starting point. The court must consider the warrant together with admissible evidence and decide whether reasonable grounds exist for believing that a prosecution decision is absent. Continuing investigation does not, by itself, show that decisions to charge or try have not been made.

The appellant appealed against District Judge Snow’s decision of 5 May 2017 directing his extradition to Italy under a European arrest warrant issued on 16 March 2017. The warrant concerned five continuing offences and stated that decisions to charge and try had been made.

Before the High Court, the appellant argued that extradition was barred by section 12A of the Extradition Act 2003 and that it would disproportionately interfere with his Article 8 rights. The central issues were whether the District Judge had correctly excluded extrinsic evidence and whether the admissible evidence established reasonable grounds for believing that a prosecution decision was absent.

1. Section 12A. The appeal was dismissed. The District Judge had adopted an inflexible approach to extrinsic evidence, but his conclusion that section 12A did not bar extradition was correct.
2. The statutory inquiry is fact-sensitive. The European arrest warrant is the starting point, and standard statements that the requested person is sought for criminal prosecution will ordinarily establish that the decisions to charge and try have been made. That is not an absolute rule. Evidence issued by the judicial authority may be admissible even where it is said to undermine a clear statement in the warrant. Its admissibility and effect depend on the circumstances of the case.
3. The documentary evidence concerning the extension of the investigation and the further information supplied by the respondent fell within section 202 of the Extradition Act 2003 and should have been admitted. The letters from the appellant’s Italian lawyer were not documents issued in Italy for the purposes of section 202(2). If admissible at all, they were expert evidence, but the required formalities had not been met.
4. Considering the warrant and the admissible evidence together, there were no reasonable grounds for believing that either the decision to charge or the decision to try had not been made. An extension of an investigation does not itself establish that those decisions have not been made, since investigations may continue after charging and before or during trial.
5. The fresh report from another Italian lawyer was excluded. Much of it could have been available before the District Judge, and the remaining material was equivocal and would not have altered the result. The approach in Fenyvesi’s case supported exclusion of the fresh evidence.
6. Article 8. Permission to appeal was granted on this ground, but the challenge failed. The appellant’s health and family circumstances did not make extradition disproportionate. In the absence of cogent evidence to the contrary, the court was entitled to assume that the Italian prison authorities would provide appropriate medical treatment. The appeal was dismissed.

• High Court (Administrative Court): District Judge Snow’s decision of 5 May 2017 directing extradition to Italy was upheld. The High Court dismissed the appeal.