Igor Gisca v Prosecutor General of Trieste, Italy

In an extradition appeal, permission should be granted where newly translated material makes an arguable challenge to findings central to statutory and Convention bars. Fugitive status requires proof that the requested person deliberately and knowingly placed himself beyond the reach of legal process. An unexecuted deportation order does not necessarily establish evasion of justice where another document required departure. Translations clarifying existing evidence may be admitted without applying the restrictive test for genuinely new evidence. A delayed amendment may be allowed where it raises genuine issues arising from material before the extradition judge and the interests of justice favour determination.

The Applicant sought permission to appeal against District Judge Clarke’s order of 10 March 2022 for his extradition to Italy on two conviction warrants. He challenged findings that he was a fugitive, which had defeated reliance on the passage-of-time bar under section 14 of the Extradition Act 2003 and materially affected the Article 8 assessment under section 21.

He also sought to revive reliance on section 20, concerning convictions in absence, deliberate absence and entitlement to a retrial, and applied to adduce English translations of Italian documents already in the bundle. The central issues were whether the proposed grounds were arguable, whether amendment should be allowed despite delay, and whether the appeal should await pending Supreme Court decisions.

1. Translations. Permission was granted to rely on translations of two Italian documents concerning deportation. They clarified existing evidence, were not genuinely new evidence requiring the restrictive Fenyvesi test, caused no prejudice, and their accuracy was not challenged.
2. Sections 14 and 21. Permission to appeal was granted. Fugitive status requires proof that the requested person deliberately and knowingly placed himself beyond the reach of legal process, proved to the criminal standard. It was arguable that the district judge’s inference from the unexecuted deportation order was a non-sequitur, because a separate document required the Applicant to leave Italy within five days and warned of consequences for non-compliance. It was also arguable that excessive weight had been placed on the form signed at Verona airport, having regard to its limited information and the uncertainty whether the Applicant understood its meaning or implications.
3. Section 20 amendment. The delayed amendment was allowed. The proposed arguments did not depend on new evidence, arose or could have arisen from material before the district judge, and raised genuine issues whose merits remained undecided. Applying Hoholm, the interests of justice favoured allowing the amendment. The signed form was not necessarily fatal, and success on EAW2 could affect EAW1.
4. Stay. Permission to appeal on section 20 was deferred pending the Supreme Court appeals in Merticariu and Bertino. The appeal as a whole was stayed so that it could be considered together rather than piecemeal.

• High Court (Administrative Court): On 10 February 2023 Bourne J granted permission to appeal on the sections 14 and 21 grounds, permitted amendment to revive the section 20 ground, deferred permission on that ground, and stayed the appeal.
• High Court (Administrative Court): On 10 October 2022 Knowles J refused permission on paper.
• District Court: On 10 March 2022 District Judge Clarke ordered extradition to Italy and rejected challenges under sections 14 and 21.