Taylor & Anor v The Prosecutor General's Office of Florence

For the purposes of section 20 of the Extradition Act 2003, construed compatibly with Article 4a of the Framework Decision, the relevant trial is the last proceeding that finally determines guilt and imposes a penalty after a rehearing of the merits in fact and law. An appeal confined to points of law, including cassation proceedings, is not ordinarily the relevant trial. Detailed examination of evidence does not alter that conclusion where the court is only reviewing for legal error. Cassation proceedings may nevertheless be relevant to sentencing if they involve a discretionary re-determination of the sentence. A mere arithmetical recalculation does not suffice. Article 4a contains no separate requirement of a flagrant denial of justice. That threshold applies to an Article 6 challenge considered under section 21 of the Extradition Act 2003.

The appellants appealed against District Judge Grant’s order of 17 January 2019 directing their extradition to Italy under European arrest warrants. They argued that the relevant proceedings for section 20 of the Extradition Act 2003 were the hearing before the Italian Court of Cassation, at which neither appellant nor their chosen lawyers attended, rather than the merits appeal before the Assize Court of Appeal of Florence. They also alleged incompatibility with Article 6 of the Convention. The central issues were which proceedings constituted the trial resulting in the decision under Article 4a of the Framework Decision and whether the subsequent sentence recalculation made the cassation hearing relevant.

1. The appeals were dismissed. The relevant proceedings for section 20(1) of the Extradition Act 2003, construed compatibly with Article 4a of the Framework Decision, were the proceedings before the Assize Court of Appeal of Florence.
2. Following Cretu v Local Court of Suceava, Romania [2016] EWHC 353 (Admin) and applying Criminal proceedings against Tupikas (Case C270/17PPU), the relevant trial is the last proceeding which finally rules on guilt and imposes a penalty after a fresh assessment of incriminating and exculpatory evidence in fact and law. The Assize Court of Appeal conducted a full merits appeal against conviction and sentence.
3. The Court of Cassation examined points of law only. Its detailed review of the evidence tested whether the lower court was legally entitled to reach its conclusions; it did not involve independent findings of fact or a fresh merits determination. The reasoning in Belziuk v Poland (Application No. 23103/93) supported that distinction. Industrial Diamond Supplies v Luigi Riva [1978] 1 C.M.L.R.349 was confined to the different purpose of the Brussels Convention and did not alter the construction of Article 4a.
4. Under Criminal proceedings against Zdziaszek (Case C-271/17PPU), sentencing proceedings may be relevant where they involve a discretionary determination of the sentence, including consideration of the offender’s situation or aggravating or mitigating circumstances. Here the Court of Cassation merely recalculated the sentences following time-bar findings and annulment of one conviction. No sentencing discretion was exercised.
5. Article 4a itself requires no finding of flagrancy. Outside Article 4a, however, an Article 6 challenge to extradition under section 21 requires a flagrant denial of justice, as explained in Othman v United Kingdom (Application No. 8139/09) and Soering v United Kingdom (Application No. 14038/88). The District Judge was entitled to reject that challenge. Ground 3 therefore failed with ground 2.

• Westminster Magistrates’ Court: District Judge Grant ordered extradition on 17 January 2019.
• High Court (Administrative Court): The Divisional Court rejected the challenges under sections 20 and 21 of the Extradition Act 2003 and dismissed the appeals. [2019] EWHC 2938 (Admin)