Bertino v Public Prosecutor's Office, Italy

The Supreme Court allowed the appeal against an order for extradition under a European arrest warrant. The key legal principle is that the phrase in section 20(3) of the Extradition Act 2003 that a person has "deliberately absented himself from his trial" must be read consistently with the Amended Framework Decision (FD 2009) and the Strasbourg case law on Article 6 ECHR. That concept is synonymous with an "unequivocal" waiver of the right to be present at trial, which ordinarily requires awareness of the scheduled trial and a sufficient appreciation of the consequences of non‑attendance. The court held that the requesting authority had not proved to the criminal standard that the appellant had unequivocally waived his right to be present: there was no personal service of a summons, the EAW did not rely on any Article 4a/FD 2009 criterion, and the appellant had not been officially informed of a prosecution or of the date and place of trial. The district judge and the High Court were therefore wrong to find deliberate absence; the appellant must be discharged and the extradition order quashed under section 33(3) of the 2003 Act.

Background and procedural posture:

• The appellant was the subject of a European arrest warrant issued to enforce a one year custodial sentence imposed in Italy after a trial conducted in his absence. The offence was sexual activity with an under‑age person (article 609 Italian Criminal Code). The trial and conviction in Italy occurred after the appellant had left Italy to the United Kingdom.
• At the UK extradition hearing the sole issue was whether, for the purposes of section 20(3) of the Extradition Act 2003, the appellant had "deliberately absented himself from his trial". The district judge found that he had; the High Court (Swift J) upheld that decision ([2022] EWHC 665 (Admin)). The matter reached the Supreme Court on appeal.

Nature of the application and issues framed:

• The application concerned extradition pursuant to a European arrest warrant; the relief sought by the appellant was discharge and quashing of the extradition order.
• The principal legal issues were (i) the meaning of "deliberately absented himself from his trial" in section 20(3) of the 2003 Act and its conformity with the Amended Framework Decision (FD 2009) and Article 6 ECHR; (ii) whether the requesting authority was required to prove actual knowledge that the appellant could be convicted and sentenced in absentia, or whether an inference of unequivocal waiver could be drawn from his conduct; and (iii) the application of Strasbourg and Luxembourg authorities on waiver, reasonable foreseeability and "manifest lack of diligence".

Facts relevant to the issues:

• In July 2015 the appellant voluntarily attended a police station in Sicily and signed a document noting he was under investigation, electing domicile and being informed that failure to notify a change of address could lead to service on a court‑appointed lawyer. He left Italy in November 2015 and later moved to the United Kingdom. Proceedings in Italy were commenced in June 2017, a summons for a trial date in September 2017 was issued but personal service failed because the appellant was untraceable at his last provided address. The EAW did not tick any of the Article 4a boxes that, if satisfied, would render extradition mandatory despite a trial in absence.

Court’s reasoning and decision:

• The Supreme Court held that section 20(3) must be interpreted in conformity with the Amended Framework Decision and Strasbourg jurisprudence: to be "deliberately absent" for s.20(3) is to have unequivocally waived the Article 6 right to be present. That requires a level of "knowing, voluntary and intelligent" relinquishment, which ordinarily entails awareness of the scheduled trial and appreciation of the consequences of non‑attendance.
• The court emphasised that the requesting authority bears the criminal standard burden under section 206 to prove unequivocal waiver/deliberate absence. The facts here—no personal service, no formal notice of prosecution or of trial date, and an earlier stage of investigation at the time the appellant provided an address—meant he had not been put on notice in the way required by the Strasbourg authorities.
• Accordingly the Supreme Court concluded the district judge and Swift J erred in finding deliberate absence. The appellant did not unequivocally waive his right to be present; extradition should not proceed. The court ordered discharge and quashed the extradition order under section 33(3) of the 2003 Act.

The Court also endorsed the conforming‑interpretation approach in Cretu and summarised the interaction between FD 2009, section 20 and Article 6 jurisprudence, noting that an EAW that properly completes the Article 4a boxes will usually be determinative but that where none apply domestic law and Convention rights govern the exercise of discretion.

The appeal is allowed. The court held that for the purposes of section 20(3) of the Extradition Act 2003 a person is to be treated as having "deliberately absented himself from his trial" only where there is an unequivocal (knowing, voluntary and intelligent) waiver of the Article 6 right to be present, a standard informed by the Amended Framework Decision and Strasbourg case law. The requesting authority had not proved that standard on the facts (no personal service or formal notice of prosecution or trial); the district judge and the High Court therefore erred. The Supreme Court ordered the appellant's discharge and quashed the extradition order under section 33(3) of the 2003 Act.

District Judge (magistrates' court) ordered extradition on 18 January 2021. Appeal to the High Court (Swift J) [2022] EWHC 665 (Admin) upheld the district judge's conclusion. Appeal to the Supreme Court resulted in the order for extradition being quashed and the appellant discharged ([2024] UKSC 9).