Bertino v Public Prosecutor's Office, Italy

For section 20(3) of the Extradition Act 2003, a person deliberately absents himself from trial only by unequivocally waiving the article 6 right to be present. The requesting authority must prove that waiver to the criminal standard.

The waiver must be knowing and intelligent. Ordinarily, the accused must appreciate that the conduct may result in conviction and sentence in absence, which will usually require a warning. Mere lack of diligence in remaining contactable is insufficient. Actual knowledge is not invariably essential, however. Extreme conduct may establish waiver where an accused, knowing of the proceedings and charges, deliberately evades the authorities so that trial in absence is the only practical option.

Italian prosecutors sought the appellant's extradition under a European arrest warrant to enforce a one-year sentence imposed after a trial which he had not attended. Before leaving Italy, he knew that he was suspected of an offence and had supplied an address to the police. He had not been arrested, questioned, charged or officially informed that a prosecution had begun. He never received notice of the trial's date and place.

A district judge found that the appellant had deliberately absented himself from trial because he left Italy without notifying the police of a new address. Swift J upheld that conclusion in the High Court: [2022] EWHC 665 (Admin). The central issue before the Supreme Court was whether section 20(3) of the Extradition Act 2003 required proof that the appellant had unequivocally waived his right to attend his trial and, in particular, whether actual knowledge of the possibility of conviction and sentence in absence was necessary.

1. Appeal allowed. Lord Stephens and Lord Burnett delivered the judgment, with which Lord Hodge, Lord Sales and Lord Burrows agreed. The appellant had not deliberately absented himself from his trial. The extradition order was quashed and, under section 33(3) of the Extradition Act 2003, his discharge was ordered.

2. The amended European arrest warrant framework specifies circumstances in which surrender following a trial in absence is required. A properly completed warrant demonstrating one of the conditions in article 4a of the Council Framework Decision of 13 June 2002 (2002/584/JHA), as amended will ordinarily be determinative. Where none is established, the question is governed by domestic law and the European Convention on Human Rights. The court approved the conforming interpretation adopted in Cretu v Local Court of Suceava, Romania [2016] EWHC 353 (Admin).

3. The expression “deliberately absented himself from his trial” in section 20(3) is synonymous with an unequivocal waiver of the article 6 right to be present. If trial in absence would violate article 6, the section 20(3) question must be answered negatively and the court must consider entitlement to a retrial or equivalent review. If there is no article 6 violation, the person is treated as deliberately absent and the court proceeds to wider Convention compatibility under section 21.

4. The requesting authority bears the criminal burden of proving waiver. An effective waiver must be unequivocal, knowing and intelligent. The accused must ordinarily be shown to have appreciated the consequences of the conduct, including the prospect that trial could proceed in absence. A warning will usually be required. Knowledge merely that an offence is being investigated and that prosecution is possible does not establish waiver where there has been no official accusation or notification of the proceedings or trial.

5. A general or manifest lack of diligence in remaining contactable is not, by itself, enough. Dworzecki was explained as permitting diligence to be considered when exercising the residual surrender discretion, particularly where a person sought to avoid information about the date and place of trial. It did not establish that lack of diligence alone amounted to waiver. Zagrean v Romania [2016] EWHC 2786 (Admin) stated the contrary proposition too widely.

6. Although the requesting authority will ordinarily need to prove actual knowledge that conviction and sentence could occur in absence, this is not an invariable requirement. Extreme, knowing and intelligent evasion may demonstrate that an accused appreciated that trial in absence was the only practical option. The appellant's conduct was far removed from such circumstances: he left when prosecution was only a possibility and before any trial existed from which he could deliberately absent himself.

• United Kingdom Supreme Court: Allowed the appeal unanimously, quashed the extradition order and ordered the appellant's discharge.
• High Court (Administrative Court): Swift J upheld the finding that the appellant had deliberately absented himself from trial and dismissed his appeal: [2022] EWHC 665 (Admin). Swift J certified a question concerning whether actual knowledge of possible conviction and sentence in absence had to be proved.
• Westminster Magistrates' Court: Deputy Senior District Judge Ikram found deliberate absence and ordered the appellant's extradition on 18 January 2021.