SALVATORE BERTINO v PUBLIC PROSECUTOR’S OFFICE, ITALY

For section 20 of the Extradition Act 2003, deliberate absence is not confined to proof that a person had actual knowledge that trial could proceed in his absence. The court must assess all the circumstances and decide whether waiver of the right to be present may be inferred. The person’s conduct and what he could reasonably have foreseen are relevant. Deliberately avoiding contact so that trial information cannot be served may support that inference. Section 20 must be interpreted, so far as possible, consistently with article 4a of the 2002 Framework Decision.

A District Judge ordered the appellant’s extradition to Italy under a conviction European arrest warrant. The appellant had been convicted in absentia after leaving his declared address and Italy without notifying the authorities of a new address. The District Judge found that he had done so to prevent service of documents concerning his trial.

Permission to appeal was granted only on whether actual knowledge that he could be tried and sentenced in absentia was required before he could be regarded as having deliberately absented himself under section 20(3) of the Extradition Act 2003. The separate issue of a retrial under section 20(5) was not pursued.

1. The appeal was dismissed. The District Judge had applied the correct statutory test and reached the correct conclusion.

2. Section 20 of the Extradition Act 2003 must, so far as possible, be interpreted consistently with article 4a of the 2002 Framework Decision. Where article 4a(1)(a) is not satisfied, the executing court must consider whether surrender would breach defence rights.

3. The right to be present at trial may be waived expressly or by inference. The relevant inquiry is whether, considering the circumstances overall, the person’s conduct warrants an inference of waiver and what consequences he could reasonably have foreseen.

4. A manifest lack of diligence may be relevant, particularly where the person deliberately avoids service, but it does not broaden the statutory meaning of deliberate absence.

5. Stryjecki v District Court in Lublin, Poland was not authority for an absolute requirement of actual knowledge that trial could proceed in absentia. Its summary propositions had to be understood in context.

6. The findings that the appellant intentionally left his address and Italy to avoid service supported the inference that trial in his absence was reasonably foreseeable. The section 20(3) requirement was met.

• High Court (Administrative Court): Appeal dismissed.
• Westminster Magistrates’ Court: Deputy Senior District Judge Ikram ordered extradition to Italy on 18 January 2021.