Bertino v Public Prosecutor's Office, Italy

Appellant

Edward Fitzgerald KC

Graeme L Hall

(Instructed by Lloyds PR Solicitors Firm (Harlesden))

Respondent

Helen Malcolm KC

Stefan Hyman

(Instructed by Crown Prosecution Service Appeals and Review Unit)

Lord Stephens and Lord Burnett (with whom Lord Hodge, Lord Sales and Lord Burrows agree):

1. The central issue in this appeal is whether Deputy Senior District Judge Ikram was correct to conclude that the appellant had "deliberately absented himself from his trial" in Italy for the purposes of section 20(3) of the Extradition Act 2003 ("the 2003 Act") and so should be extradited to serve his sentence despite not having an entitlement to a retrial. That conclusion was upheld on appeal in the High Court by Swift J [2022] EWHC 665 (Admin).
2. The circumstances in which a person convicted in his or her absence may be extradited pursuant to a European arrest warrant ("EAW") are prescribed by the 2003 Act and by the Council Framework Decision of 13 June 2002 (2002/584/JHA) ("the FD 2002") as amended by the Council Framework Decision of 26 February 2009 (2009/299/JHA) ("the FD 2009"). That Framework Decision as amended ("the Amended Framework Decision") provides that a convicted person must be extradited in various given circumstances, notwithstanding a trial in absence. If none of those circumstances applies, a discretion to extradite remains to be exercised in the executing state in accordance with national law and the European Convention on Human Rights ("the Convention").

The Facts

3. The appellant's extradition is sought pursuant to an EAW issued on 6 February 2020 by the public prosecutor's office of the Court of Pordenone ("the requesting judicial authority") seeking to enforce a sentence of one year's imprisonment imposed following a trial in the Court of Pordenone in his absence. He was convicted and sentenced on 16 April 2018, with the sentence being activated on 27 January 2020. The offence was one of sexual activity with an under-age person contrary to article 609 of the Italian Criminal Code, through grooming a 14-year-old girl by sending her WhatsApp messages asking for oral sex. The sentence provided that if compensation were paid it would be suspended. The compensation was not paid.
4. The offence was alleged to have taken place on 19 June 2015 in the Province of Venice at a holiday camp at which the appellant was working as an entertainer. The police were informed promptly of the allegation and attended the appellant's place of work. His phone was seized. The formal information provided by the requesting judicial authority in response to a request for further information issued by the Crown Prosecution Service confirms that the appellant was not arrested or questioned formally at the time, although it appears from the appellant's own account that he went to the local police station. The appellant was sacked from his job and returned to Sicily from where he came. He later voluntarily attended the police station in Spadafora, Sicily on 23 July 2015. He signed a document which recorded that he was under…