Botos v Public Prosecutors Office, At the Court of Udine, Italy

For the purposes of Extradition Act 2003, an accused may be treated as deliberately absent from trial where valid service arrangements were maintained and the accused failed to keep in contact with the defence lawyer. In such a case, the issue of a retrial does not arise.

Under section 21, the Article 8 balancing exercise must reflect the true nature and seriousness of the offence, the sentence imposed or remaining to be served, unexplained delay, and the effect on established private and family life. Significant delay may reduce the weight of the extradition interest and increase the impact on family life. Extradition was disproportionate on the cumulative facts.

The appellant appealed against District Judge Blake’s decision of 1 March 2018 ordering his extradition to Italy under a European arrest warrant. He had been convicted in Italy in 2014 of facilitating unauthorised entry and residence and was sought to serve a sentence of one year and six months.

Permission was granted on two grounds: whether extradition was barred by section 20 of the Extradition Act 2003 because the appellant had no effective right to a retrial, and whether extradition would be a disproportionate interference with his Article 8 rights. The central issues were whether he had deliberately absented himself from trial and, if so, whether the public interest in extradition outweighed the impact on his private and family life.

1. Section 20. The appeal on the first ground was dismissed. The appellant had elected domicile at his defence lawyer’s firm for service of process. That election remained valid, and the Italian authorities were not required to contact him personally. The evidence entitled the District Judge to find that the appellant had deliberately absented himself from the proceedings because he failed to maintain contact with his lawyer. The approach in Cretu v Romania and the principles summarised in Tyrakowski v Regional Court in Poznan, Poland were consistent with that conclusion.
2. Because the appellant was deliberately absent, the question of a retrial under section 20 did not arise. The court nevertheless noted that procedural steps under Italian law do not themselves remove an entitlement to a retrial, citing Nicoli Nastase aka Nicolae Solomon v Office of the State Prosecutor, Trinto, Italy. In the circumstances, however, the dismissal of the retrial application by the Italian courts made a retrial for this appellant inconceivable.
3. Article 8. The appeal on the second ground was allowed. The District Judge had materially misstated the offence as people trafficking and had failed adequately to account for the reduction of the sentence and the availability of a non-custodial alternative. The balancing exercise therefore had to be conducted afresh.
4. The extradition interest remained substantial, but was reduced by the unexplained nine-year delay between the end of investigations and the preliminary hearing. Fifteen years had elapsed since the offence. The appellant had no other convictions, had an established family and working life in the United Kingdom, and his extradition would impose serious practical consequences on his wife and British citizen son. The electronically monitored curfew carried only limited weight against extradition, consistently with Toleikis v Klaipeda District Court, Lithuania and Bicioc v Baia Mare Local Court, Romania.
5. Taking the factors cumulatively, extradition would be a disproportionate interference with the appellant’s and his family’s Article 8 rights. This was an exceptional case in which those rights outweighed the public interest in extradition. The appeal was allowed.

• High Court (Administrative Court): The appeal from District Judge Blake’s decision of 1 March 2018 was allowed on the Article 8 ground and dismissed on the section 20 ground.
• Permission stage: Holman J granted permission to appeal on 25 May 2018.