Domi v Public Prosecutor's Office, Court of Udine (An Italian Judicial Authority)

For the purposes of Extradition Act 2003, a person represented by a lawyer mandated to conduct the trial may be treated as present, even without physical attendance. Section 20 must be interpreted consistently with Article 4a of the 2002 Framework Decision. The executing court should not independently investigate the accuracy of statements in a European arrest warrant, except where the warrant is ambiguous, confusing or possibly abusive. A person’s failure to verify whether criminal proceedings continue may amount to a lack of due diligence relevant to human-rights and proportionality assessments. Extradition will be barred under Articles 5 or 6 only where there is a risk of a flagrant denial of justice. Article 8 requires a structured balancing exercise, with the child’s best interests treated as a primary consideration.

The appellant had been convicted in Italy in proceedings conducted without his physical presence after he was deported to Albania. His lawyer of choice continued to represent him. The District Judge ordered extradition under Extradition Act 2003, holding that he was deemed present for section 20 purposes, that extradition would not create a flagrant denial of justice, and that the Article 8 balance favoured extradition.

The appellant appealed under section 26. He argued that Article 4a(1)(b) of the 2002 Framework Decision was not satisfied, that section 20 required his discharge, and that extradition would breach Articles 5, 6 and 8 of the Convention.

1. Section 20 and Article 4a. The appeal was dismissed. Section 20 must be interpreted in conformity with the 2002 Framework Decision. The relevant framework is based on mutual trust and recognition, so execution is the rule and refusal is exceptional.
2. The court rejected the submission that it should independently determine whether the statements in the European arrest warrant were factually correct. Under Cretu v Local Court of Suceava, Romania [2016] EWHC 353 (Admin), further information should be sought only in cases of ambiguity, confusion or possible abuse of process. Any mistaken assertion is principally addressed through the protections available in the requesting state.
3. Under Italian law, a defendant represented by a lawyer present at trial was deemed present. The lawyer had been mandated by the appellant and had not withdrawn. The District Judge was therefore entitled to conclude that the burden under section 20(1) was satisfied. The question of deliberate absence under section 20(3) did not arise.
4. The appellant’s proposed construction would produce an incoherent result: a person could be treated as not deliberately absent under section 20(3), yet absent under section 20(1), despite having chosen legal representation in a trial compliant with Article 6. Section 20 did not require an express statutory deeming provision.
5. The District Judge was entitled to find that the appellant’s belief that the Italian proceedings had ended was unreasonable. He knew of the proceedings, had attended a hearing with his chosen lawyer, knew of the adjourned date, and was obliged to remain in contact with his lawyer. His failure to make inquiries amounted to a lack of due diligence.
6. The applicable Article 5 and 6 test was whether extradition created a risk of a flagrant denial of justice, involving a breach fundamental enough to nullify or destroy the essence of the fair-trial right. The appellant’s representation, the availability of a request to return for trial, and the other safeguards meant that this threshold was not met.
7. For Article 8, the District Judge correctly balanced the serious interference with family life against the weighty public interest in extradition. The child’s best interests were a primary consideration but did not outweigh the seriousness of the offending, the sentence, mutual recognition obligations and the public interest in preventing the United Kingdom becoming a safe haven. The appeal was dismissed.

• High Court (Administrative Court): the appeal against the District Judge’s extradition order was dismissed.