Lewicki v Preliminary Investigation Tribunal of Napoli, Italy

An accusation European arrest warrant remains an accusation warrant when the requested person is subsequently convicted at first instance but has not been finally convicted and retains an ordinary right of appeal. The executing court is bound by Caldarelli v Court of Naples, Italy and the approach confirmed by Zakrzewski v The Regional Court in Lodz, Poland.

In a multiple-offence case, the court must consider whether each foreign offence is adequately particularised and is an extradition offence. Extradition is ordered for the foreign offences specified in the warrant, rather than merely for the underlying conduct. It may therefore be barred in relation to particular offences where subsequent events make extradition materially unfair or an abuse of process.

The claimant sought leave to appeal under section 26 of the Extradition Act 2003 against the Westminster Magistrates’ Court decision ordering his extradition to Italy under an accusation European arrest warrant. The warrant alleged one offence of participation in a criminal association connected with tobacco smuggling and nine substantive tobacco-smuggling offences.

After the warrant was issued, the claimant was convicted in Italy of participation in a criminal association and acquitted of the nine substantive offences as time-barred. The principal issues were whether the warrant had become a conviction warrant, whether the offences were adequately particularised, whether extradition would be unjust, oppressive, incompatible with the Convention, or an abuse of process, and whether the court could quash extradition in relation to only some offences.

1. Ground 1. The court refused permission to appeal. Applying Caldarelli v Court of Naples, Italy and Zakrzewski v The Regional Court in Lodz, Poland, the warrant was correctly issued as an accusation warrant and remained one. The claimant had not been finally convicted and still had an ordinary right of appeal. The reasoning in Tupikas was broadly consistent with Caldarelli and did not alter that conclusion. The evidence also supported the conclusion that Italian law provided a route to a new trial or an equivalent rehearing.
2. Ground 2. The court held that the warrant and Form A adequately particularised each of the ten offences for the purposes of section 2(4)(c) of the Extradition Act 2003. The claimant’s role, the criminal association, the alleged conduct, the places and the period of offending were sufficiently identified. The offence of participation in a criminal association was not limited to the conduct underlying the nine substantive offences or to the narrower period identified in the Italian judgment.
3. Nevertheless, under the multiple-offence modifications and the abuse-of-process principles identified in Spain v Murua and Zakrzewski, it was reasonably arguable, and ultimately established, that extradition for the nine offences of which the claimant had been acquitted as time-barred would create a risk of prejudice or unfairness. There was no formal undertaking that those offences could not be resurrected.
4. The court refused permission on the challenges based on section 14, Articles 5 and 6 of the ECHR, and abuse of process in the wider sense. The claimant had not shown oppression, injustice, or a prospective flagrant denial of justice. The extradition order was quashed only in relation to the nine substantive offences. Extradition for participation in a criminal association remained in force, covering December 2005 to 25 February 2010.

• Westminster Magistrates’ Court: District Judge Zani ordered extradition on 9 August 2016.
• High Court (Administrative Court): Permission was refused on Grounds 1, 3, 4 and 5. The appeal was allowed on the limited abuse-of-process issue under Ground 2, and extradition was quashed for the nine substantive offences. Extradition for participation in a criminal association remained in force.