Dumitru v Court of Verona, Italy

For the purposes of section 12A, standard wording in an accusation European arrest warrant seeking surrender for a criminal prosecution ordinarily indicates that decisions to charge and try have been made. The mere identification of a pre-trial custody order, or the fact that the warrant was issued by a pre-trial investigation judge, does not itself provide a contrary indication. Additional material may nevertheless satisfy the statutory threshold where it reasonably suggests that no prosecution decision has been made. In an appeal concerning Article 8 and proportionality, the appellate court should not reassess factual findings or the requesting state’s evidence where the district judge applied the correct legal principles and conducted the required evaluative assessment.

The appellant challenged an order for her extradition to Italy in relation to an accusation European arrest warrant concerning an alleged robbery. The district judge ordered extradition, rejecting arguments based on Article 8 ECHR and statutory proportionality under section 21A(3). Permission to appeal was refused on the papers, and the appellant renewed the application. She added a new argument that extradition was barred by section 12A because the Italian authorities had not decided to charge or try her. The issues were whether that new point could be raised and whether either the section 12A argument or the Article 8 and proportionality grounds was reasonably arguable.

1. Permission refused. The new section 12A ground was not reasonably arguable on its legal merits. The court was prepared to put aside the fact that the point had not been raised before the district judge, while recognising that there is no general entitlement to raise late points on appeal.
2. Section 12A involves a two-stage analysis. At stage one, the requested person must show that it is reasonably arguable that there are reasonable grounds for believing that the competent authorities have not decided to charge or try the person, or that absence is not the sole reason for the failure.
3. The standard wording of the warrant, seeking surrender for the purposes of conducting a criminal prosecution, gives rise to an inference that a decision to charge, and contingently to try, has been made. The mere existence of a pre-trial custody order and the identity of the issuing judge do not amount to a contrary indication. The authorities concerning Ijaz depended on additional references to investigation and further information, which were absent here. The later Italian document expressly recorded a decision by the Court of Verona that the trial should take place and identified a trial date. That was independently fatal to the section 12A argument.
4. The district judge applied the correct Article 8 principles. The children’s best interests were a primary consideration, the impact of separation from their primary carer was addressed, and the available family support and consequences for the children were evaluated on the evidence. There was no reasonably arguable error in the judge’s reasons, characterisation of the alleged offending, treatment of the alibi, or refusal to adjourn for a social-worker report.
5. The statutory proportionality assessment under section 21A(1)(b) and (3) was independent of Article 8 compatibility. The district judge considered the seriousness of the alleged offending, the likely domestic sentencing category and the unavailability of less coercive measures. The strength of the Italian evidence was a matter for the Italian court, not the extradition court. The appeal therefore disclosed no reasonably arguable ground.

• High Court (Administrative Court): permission to appeal refused by Fordham J on 24 June 2020.
• District judge: extradition ordered on 9 October 2019.
• High Court: permission to appeal refused on the papers by Saini J.