Samuel Fortes Paiva v Tribunal Da Comarca De Setubal Portugal
[2024] EWHC 980 (Admin)
Bertino v Public Prosecutor's Office, Italy
6 March 2024
[2024] UKSC 9
Supreme Court
A man was convicted in Italy without attending his trial. Italy tried to extradite him. The UK court said Italy hadn't proven he deliberately skipped the trial because he wasn't properly told about it beforehand. The UK refused extradition. The key was that he wasn't properly warned he could be tried and sentenced in his absence, even if he knew there was an investigation.
Key Facts
- •Appellant convicted in absentia in Italy for sexual activity with a minor.
- •Extradition sought via European Arrest Warrant (EAW).
- •Appellant left Italy and moved to the UK after being informed of the investigation but before being formally charged or notified of trial date.
- •EAW did not tick any boxes indicating reasons for extradition despite absence from trial.
- •District Judge ordered extradition, finding appellant deliberately absented himself from trial.
- •High Court appeal focused on whether warning of potential trial in absentia is necessary to establish deliberate absence.
Legal Principles
Circumstances for extradition of a person convicted in their absence are prescribed by the 2003 Act and the Amended Framework Decision.
2003 Act and Council Framework Decision 2002/584/JHA (as amended)
To establish 'deliberate absence' under Section 20(3) of the 2003 Act, it must be shown the accused unequivocally waived their right to be present at trial.
Section 20(3) of the Extradition Act 2003, and Strasbourg and Luxembourg jurisprudence
A waiver of the right to be present at trial must be unequivocal and voluntary, requiring the accused to reasonably foresee the consequences of their conduct.
Strasbourg Court jurisprudence (Jones, Sejdovic, Pishchalnikov, Sibgatullin, Idalov, Ananyev)
A manifest lack of diligence, leading to unawareness of trial, is not automatically sufficient for a finding of deliberate absence.
Luxembourg Court jurisprudence (Dworzecki, IR)
Domestic courts must interpret Section 20 of the 2003 Act to conform with the Amended Framework Decision.
Cretu v Local Court of Suceava, Romania
Outcomes
Appeal allowed; extradition order quashed.
The appellant did not unequivocally waive his right to be present at trial because he lacked knowledge of the prosecution and trial date; his conduct did not meet the threshold for deliberate absence under Section 20(3) of the 2003 Act.
District Judge erred in finding deliberate absence.
The appellant was never formally charged or notified of trial date; his actions prior to formal proceedings did not constitute unequivocal waiver.
Swift J's decision also flawed.
Failed to consider the lack of warning about trial in absentia as a significant factor.