House of Lords

Published August 19, 2008

Caldarelli v Judge for Preliminary Investigations of the Court of Naples, Italy

Before Lord Bingham of Cornhill, Lord Hope of Craighead, Baroness Hale of Richmond, Lord Carswell and Lord Mance

Speeches July 30, 2008

Where a fugitive from Italy had been found guilty of an offence in his absence and sentenced to a term of imprisonment, under Italian law, his trial had not been finally completed pending appeal and his extradition from the United Kingdom had been properly sought as an accused rather than a convicted person.

The House of Lords dismissed an appeal by Raffaele Caldarelli from the Queen’s Bench Divisional Court (Lord Justice Laws and Mr Justice Tomlinson) ([2008] 1 WLR 31), who had dismissed his appeal from an order for his extradition made by Senior District Judge Workman at City of Westminster Magistrates Court on February 23, 2007.

Mr John Hardy, QC and Mr Mark Summers for Mr Caldarelli; Mr David Perry, QC and Miss Melanie Cumberland for the Italian authority.

LORD BINGHAM said that the Divisional Court had upheld the district judge’s order that Mr Caldarelli be surrendered pursuant to a European arrest warrant issued on October 6, 2006, by the Court of Naples.

He complained that the warrant was bad because it sought his surrender as an accused person, not, as he claimed to be, a convicted person.

In June 2005, he had been tried for and convicted of a drug offence. He had deliberately absented himself from the trial but had been represented. He had been sentenced to imprisonment for 11 years and other penalties.

His appeal against conviction and sentence remained outstanding. The first instance judgment and sentence were not under Italian law either final or enforceable until the appeal process was concluded. Under Italian law a defendant was not regarded as convicted until his conviction became final.

If he was extradited, his custody in Italy would be categorised as pretrial custody until all appeals had been exhausted. Mr Caldarelli was not now entitled, as of right, to a retrial.

His Lordship reviewed the history of extradition and said that the Council Framework Decision of June 13, 2002 (2002/584/JHA) (OJ July 18, 2002, No L190/1) had been a new departure. It had sought to achieve much greater cooperation between EU member states and to abolish formal extradition procedures. A new simplified system of surrender would make it possible to remove the complexity and potential for delay inherent in existing procedures.

Part 1 of the Extradition Act 2003 had been enacted to give effect to the obligation of the United Kingdom under article 34(1) of the Framework Decision. It applied between Italy and the United Kingdom.

As his Lordship had suggested in Office of the King’s Prosecutor, Brussels v Cando Armas([2006] AC 1, paragraph 8), the interpretation of Part 1 was to be approached consistently with that decision and on the assumption that Part 1 had not intended to provide for less cooperation by the United Kingdom than the decision required.

Providing as they did for international cooperation between states with differing procedural regimes, the Framework Decision and the 2003 Act could not be interpreted on the assumption that procedures that obtained in this country obtained elsewhere. The evidence might show that they did not.

The Italian judge who had issued the warrant had treated Mr Caldarelli as an accused, not a convicted, person. That seemed strange to an English lawyer, familiar with a procedure by which a defendant sentenced to imprisonment at the end of a jury trial went down the steps from the dock to the cells.

But such was not the practice in Italy where the trial was a continuing process, not yet finally completed in the present case, and not an event.

On the evidence, Mr Caldarelli fell within section 11(5) of the Act as a person accused of the commission of an extradition offence but not alleged to be unlawfully at large after conviction of it, not within section 11(4) as a person alleged to be unlawfully at large after conviction of it.

In terms of the Framework Decision he had not been “finally sentenced” (recital 1) and no “final judgment” had been given as to the penalty imposed (article 8(f)). His extradition had properly been sought as an accused person.

Lord Hope agreed; Lady Hale delivered an opinion agreeing with Lord Bingham and Lord Carswell; Lord Carswell delivered an opinion agreeing with Lord Bingham; Lord Mance delivered an opinion concurring in dismissing the appeal.

Solicitors: Studio Legale Internazionale Lombardo; Crown Prosecution Service, Special Crime Division.

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