Ogreanu v Italian Judicial Authority

In extradition proceedings, a lacuna in a European Arrest Warrant concerning retrial entitlement may in principle be filled by appropriate further information. The information need not invariably emanate directly from the issuing judicial authority or refer specifically to the requested person. Its source, content, reliability and degree of generality affect the weight to be given to it.

The requesting authority bears the onus, to the criminal standard, of establishing each necessary ingredient of retrial entitlement. The evidence must provide a clear and sustainable basis for findings that the retrial permits evidence on the merits, that any time limit runs prospectively after surrender, and that the prosecution bears the burden of proving deliberate absence. General or unclear material may fail to discharge that burden.

The appellant challenged a district judge’s decision in extradition proceedings under section 20 of the Extradition Act 2003. He had been convicted in absentia in Italy. The district judge found that his absence was not deliberate, but accepted further information supplied after the original hearing and concluded that he would be entitled to a retrial or review amounting to a retrial.

The appeal concerned whether that conclusion was sustainable on the law and evidence. The evidence included an authenticated letter from the Italian public prosecutor, an authenticated general letter from the Italian Ministry of Justice, and controversial unauthenticated emails. A renewed application for permission to appeal on article 8 grounds was also considered.

1. Appeal allowed on the section 20 ground. The requesting authority bore the onus, to the criminal standard, of satisfying the extradition court on the necessary questions under section 20 of the Extradition Act 2003.
2. Retrial entitlement under section 20(5) required proof of three ingredients: an entitlement to adduce evidence on the merits; prospective running of any limitation period after surrender; and a prosecution burden to prove deliberate absence, rather than a burden on the requested person to disprove it.
3. A lacuna in an EAW could in principle be filled by appropriate further information. A wholesale failure to provide necessary particulars could not be rescued. There was no rigid legal requirement that every item of gap-filling information be issued directly by the requesting judicial authority or specifically refer to the individual case. Source, content, reliability and generality were matters of weight.
4. The information established the prospective running of time. The authenticated public prosecutor’s letter assisted on that issue, and the Ministry of Justice letter, read as a whole, provided a sound basis for concluding that the time limit ran from surrender.
5. The information did not, however, provide a clear and reliable evidential platform for the evidence-adducing and prosecution-burden ingredients. The Ministry of Justice letter was a dense general essay on different versions of Italian legislation. Passages said that the defendant had to prove matters concerning absence, thereby undermining the contention that the prosecution bore the burden. The district judge had not explained how the evidence established either ingredient. His finding on retrial entitlement was therefore not sustainable and the appeal was allowed.
6. The controversial emails could not materially assist. They were unauthenticated, unsatisfactory in form and unnecessary to the result. The renewed application for permission to appeal on article 8 grounds was refused.

• High Court (Administrative Court): appeal from the district judge’s extradition ruling allowed on the section 20 retrial-entitlement ground; renewed permission to appeal on article 8 grounds refused.
• District judge: found that the appellant’s absence from trial was not deliberate but concluded that he had a retrial or review entitlement.