Extradition

Caldarelli (Appellant) v Court of Naples (Respondents) (Criminal Appeal from Her Majesty’s High Court of Justice), [2008] UKHL 51

Wed, 30 Jul 2008 13:00:00 GMT

Mr Caldarelli challenges a decision of the Queen’s Bench Divisional Court upholding an order that he be surrendered pursuant to a European arrest warrant (EAW) issued by the Court of Naples. He complains that the warrant is bad because it seeks his surrender as an accused person and not (as he claims to be) a convicted person. The certified question is:

“Where a fugitive has been convicted and sentenced in his absence in the requesting state, but the conviction and sentence are neither final nor enforceable, may his case be treated as an accusation case even though he does not enjoy an unqualified right to a retrial on the merits?”

The appellant points to the fact that he has been tried and convicted and sentenced to 11 years’ imprisonment. Had the EAW sought his extradition as a convicted person, there would have been no answer. But the requesting state having chosen, wrongly, to treat him as accused when he should have been treated as convicted he cannot be committed as a convicted person. Therefore he must be discharged.

The respondents resist this argument on the basis that the EAW is valid and should be given effect.

The Senior District Judge upheld the EAW on the ground that the appellant would, if extradited, be entitled in the appeal proceedings to a full re-hearing on the facts and law. However, this was not the effect of the agreed evidence and the Divisional Court held that the EAW could not be upheld on that ground. That Court concluded that the EAW was rightly characterised as an accusation warrant.

The House of Lords agreed with the Divisional Court. The extradition of this appellant was properly sought as an accused person. The appellant was not being sought for the purpose of executing a custodial sentence or order because no enforceable order had yet been made. He was being sought for the purpose of conducting a criminal prosecution. When he came before the district judge at the extradition hearing, he was not a person “alleged to be unlawfully at large after conviction of the extradition offence” because although convicted his extradition was not sought “for the purpose of…his serving a sentence of imprisonment…imposed in respect of that offence” which is now part of the definition of “unlawfully at large after conviction” by virtue of s.68A(1)(b) of the Extradition Act 2003. He was therefore covered by s.11(5) of that Act as a person “not alleged to be unlawfully at large after conviction”.

The House of Lords unanimously dismissed the appeal stating that it was not difficult in this case to conclude that the extradition of this appellant was properly sought as an accused person.

McKinnon (Appellant) v Government of the United States of America (Respondents) and another, [2008] UKHL 59

Wed, 30 Jul 2008 09:18:00 GMT

The appellant is a 42 year old British citizen. In October 2004 the US government requested his extradition to the US alleging that between February 2001 and March 2002 he had gained unauthorised access to 97 US Government computers from his home computer in London.

In May 2006, District Judge Evans sent the appellant’s case to the Secretary of State to decide whether the appellant should be extradited and in July 2006 the Secretary of State ordered the appellant’s extradition. The appellant appealed against the decisions both of the District Judge and of the Secretary of State to the Divisional Court which in April 2007 dismissed both appeals. However, two points of law were certified by the court as being of general public importance and in October 2007 the House granted leave to appeal in respect of the following one of them:

“Is it an abuse of process of extradition proceedings, such that the proceedings should be stayed, and/or an unjustified interference with the defendant’s human rights, for the requesting state to engage in plea bargaining, including a threat to the defendant that, unless he agrees to be extradited, repatriation to the United Kingdom to serve any sentence imposed in the requesting state will not be supported by the prosecuting authority in the requesting state?”

The American prosecutor informed the appellant’s solicitor that he was authorised to offer the appellant a deal in return for not contesting extradition and for agreeing to plead guilty to two of the charges laid against him. He indicated that on this basis, it was likely that a sentence of 3-4 years would be passed and that after serving 6-12 months in the US, the appellant would be repatriated to complete his sentence in the UK. If, however, the appellant chose not to co-operate and was then extradited and convicted, he might expect to receive a sentence of 8-10 years and would not be repatriated to the UK for any part of it. The appellant declined the deal.

The appellant’s main argument focuses on the wide disparity between on the one hand the predicted likely outcome if the appellant cooperated with the US authorities and the threatened likely outcome if the appellant refused to cooperate. Such a disparity, it is submitted, is disproportionate and subjected the appellant to impermissible pressure to surrender his legal rights, particularly his right to contest extradition. Pressure of this kind, it is submitted, runs flatly counter to the principle that a judge may respond to a defendant’s request that he be told the maximum sentence that would be imposed on a plea of guilty but is not to volunteer such information unasked nor to indicate what sentence might be passed on the defendant’s conviction by the jury.

The House of Lords held that, (1) the US prosecuting authority did not attempt to interfere with the due process of the Court; (2) the US prosecuting authority did not place undue pressure on the appellant to forego due legal process in the UK and so disentitle itself from pursuing extradition proceedings; (3) extradition in this case would not violate those fundamental principles of justice which underlie the community’s sense of fair play and decency; and (4) the appellant, following extradition, would not be paying an unconscionable price having insisted on exercising his rights under English law. The disparity between the consequences predicted by the authorities was very marked. However, it was no more appropriate to describe the predicted circumstances of non-co-operation as a “threat” than to characterise the predicted consequences of co-operation as a “promise” or, indeed, a “bribe”. The discount would have to be very substantially more generous than anything promised in this case before it constituted unlawful pressure such as to vitiate the process. So too would the predicted consequences of non-co-operation need to go significantly beyond what could properly be regarded as the defendant’s just desserts on conviction for that to constitute unlawful pressure.

The House of Lords unanimously dismissed the appeal.

Alistair Campbell v. Her Majesty's Advocate [2008] HCJAC 11

Wed, 05 Mar 2008 11:37:00 GMT

Appeal under section 26(1) of the Extradition Act 2003:- On 16 March 2007 the Sheriff at Edinburgh made an order that the appellant should be extradited to France after he was sentenced to nine years imprisonment, in his absence, in 2002, in France, for involvement in the transport, importation and possession of drugs and banned merchandise. The Sheriff pronounced his order under section 21 of the 2003 Act at the conclusion of an extradition hearing upon a European arrest warrant presented by the relevant French authority to Edinburgh Sheriff Court under Part 1 of the Act. Recognition of the EAW was sought so that the appellant might be surrendered to the French authorities to serve the sentence imposed on him. Section 14 of the 2003 Act provides that the appellant's extradition to France would barred by reason of the passage of time if (and only if) it appeared that it would be unjust or oppressive to extradite him by reason of the passage of time since he is alleged to have become unlawfully at large. The Sheriff in his decision stated:- "But I could not characterise any of the apparent periods of inactivity as significant, especially from the standpoint of the appellant. He was not prejudiced by the delay; he had remained at liberty until now. Nor could I characterise the actings of the French authorities as 'dilatory', even if such a consideration were significant." Here senior counsel submitted that the appellant had been prejudiced by the delay. He submitted that the appellant had lived at the same address in Killin for ten years, during which he had been in regular employment as a lorry driver and agricultural contractor, and had supported a wife and family. During the four-year period between November 2002 and November 2006 he had developed a sense of security. The French authorities were at all material times aware of his home address and the appellant had not sought to avoid them and it would be unjust and oppressive to order his extradition. Here the court considered whether the passage of time was such that it could properly be regarded as oppressive to extradite him.

Antonio La Torre v. The Lord Advocate and the Scottish Ministers [2006] HCJAC 81

Wed, 08 Nov 2006 00:00:00 GMT

Petition to the nobile officium of the High Court

Antonio La Torre v. Her Majesty's Advocate [2006] HCJAC 56

Fri, 14 Jul 2006 00:00:00 GMT

Appeal against extradition:-The court here heard a