UK Supreme Court Determines Lack of Deliberate Absence in Bertino Extradition Case

Citation: [2024] UKSC 9
Judgment on

Introduction

The UK Supreme Court case of Bertino v Public Prosecutor’s Office, Italy ([2024] UKSC 9) examines the complexities surrounding trials conducted in a defendant’s absence and the subsequent implications for extradition processes, under the Extradition Act 2003 (“the 2003 Act”) and informed by the European Convention on Human Rights (“the Convention”). This article analyzes the pertinent legal principles and judicial reasoning involved in determining whether the appellant in this case had “deliberately absented himself from his trial” in Italy, which directly impacted his extradition eligibility.

Key Facts

The appellant, Bertino, was convicted in absentia by an Italian court for sexual activity with an under-age person. An issued European arrest warrant (“EAW”) sought his extradition to serve a one-year sentence. Despite being under investigation, Bertino was not formally notified of his decision to prosecute or the trial date, nor was he informed that the trial could proceed in his absence. Bertino had left Italy for the UK before the trial, without providing a forwarding address to the Italian authorities. The central legal issue was whether Bertino’s actions constituted a deliberate absence from his trial, which would negate his entitlement to a retrial.

Extradition Act 2003

The case falls under Section 20 of the Extradition Act 2003, which outlines the UK’s legislative requirements for extradition when a person has been convicted in their absence. The key subsections applicable are:

  • Subsection (3), where the judge must decide if the person deliberately absented himself from his trial.
  • Subsection (5), pertaining to whether the person would be entitled to a retrial or a review amounting to a retrial.

Under Section 20(3), ‘deliberately absenting oneself from trial’ is intrinsically linked to an intentional and unequivocal waiver of the right to be present at the trial under article 6 of the Convention. This interpretation aligns the provision with the EU Framework Decisions and article 6 rights.

Article 6 of the European Convention on Human Rights

The case heavily draws upon Article 6 of the Convention, focusing on the right to a fair trial and the right to be present at one’s trial. It emphasizes that waiver of the right to attend must be unequivocal, voluntary, and done with sufficient awareness of the relevant circumstances.

Council Framework Decision 2002/584/JHA

The Framework Decision, as amended by the Council Framework Decision of 2009 (2009/299/JHA), provides the conditions under which an individual may be extradited notwithstanding a trial in absence.

Case Law on Trial in Absence

The Court cites leading cases such as R v Hayward and R v Jones, which clarified that under certain conditions, a person may waive their right to be present at the trial. The court also acknowledges judgments from the European Court of Human Rights (e.g., Sejdovic v Italy) and the Court of Justice of the European Union (e.g., IR) on reasonable foreseeability and unequivocal waiver.

Outcomes

The UKSC held that Bertino did not deliberately abscond from his trial since he was never officially informed of the court proceedings against him; thus, extradition was deemed incompatible with his rights under article 6 of the Convention. The decision set a notable precedent requiring that to prove deliberate absence, there needs to be clear evidence that the accused knowingly foresaw the trial proceeding without his presence.

Conclusion

The Bertino case reinforces the significance of the defendant’s substantive rights under article 6 of the Convention, the Extradition Act 2003, and the corresponding EU Framework Decisions. The judgment emphasizes that an unequivocal waiver of the right to be present at a trial cannot be lightly inferred and certainly not in circumstances where the accused was not formally charged or warned of a trial in his absence. For extradition in cases of trials in absentia, the requesting authority holds the burden of proving intentional absence or an unequivocal, knowing, and voluntary waiver of the right to be present, ensuring alignment with the standards set by both domestic and European human rights jurisprudence. Given the intricacies of transnational legal processes, this case highlights the care courts must take to protect individual rights within the increasingly complex landscape of international criminal justice.

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