An Italian national convicted in absentia of a sexual offence challenged his extradition to Italy. The UK Supreme Court held he had not deliberately absented himself from trial, as he was never informed of criminal proceedings or the trial date, and had not unequivocally waived his right to be present. His extradition was quashed.
Background
The appellant, Salvatore Bertino, an Italian national, was convicted in his absence by the Court of Pordenone, Italy, on 16 April 2018 of sexual activity with an under-age person contrary to article 609 of the Italian Criminal Code. The offence related to sending WhatsApp messages to a 14-year-old girl at a holiday camp in June 2015. He was sentenced to one year’s imprisonment. The Italian Public Prosecutor’s Office issued a European Arrest Warrant (EAW) on 6 February 2020 seeking to enforce that sentence.
The factual background was that the appellant’s phone was seized by police in June 2015, and he was dismissed from his employment. He returned to Sicily and voluntarily attended Spadafora Police Station on 23 July 2015, where he signed a document recording that he was under investigation. That document required him to elect a domicile in Italy and warned him that he was under an obligation to notify any change of his declared domicile to the judicial authority, failing which service of documents would be effected upon a court-appointed defence lawyer. The appellant gave an address in Venetico, Messina, and indicated that he would be assisted by a court-appointed lawyer.
The appellant left Italy in November 2015 and came to the United Kingdom. He did not notify the Italian judicial police of his change of address in connection with the investigation. The decision to prosecute was taken on 8 June 2017, nearly two years later. A writ of summons was issued on 12 June 2017, but service failed because the appellant was untraceable. It was served instead on the court-appointed defence counsel. The appellant was never personally informed of the prosecution or the trial date. The EAW itself confirmed that none of the prescribed criteria in section (d) of the EAW pro forma—reflecting article 4a of the Amended Framework Decision—was satisfied, as no boxes were ticked by the requesting judicial authority.
The Issue(s)
The central issue was whether Deputy Senior District Judge Ikram was correct to conclude that the appellant had “deliberately absented himself from his trial” for the purposes of section 20(3) of the Extradition Act 2003. If so, extradition could proceed without an entitlement to a retrial. If not, the appellant would be entitled to discharge under section 20(7), given that no retrial right was available.
The certified question of law of general public importance was:
For a requested person to have deliberately absented himself from trial for the purpose of section 20(3) of the Extradition Act 2003, must the requesting authority prove that he has actual knowledge that he could be convicted and sentenced in absentia?
The Parties’ Arguments
The Appellant
Mr Fitzgerald KC submitted that the appellant had never been arrested or questioned about the alleged offending. At the time he provided his address to the Italian police, criminal proceedings were only a possibility. The decision to prosecute was not taken until nearly two years later. He was never informed that failure to notify the authorities of a change of address might result in prosecution or that proceedings could be conducted in his absence. There was no basis to conclude that the appellant had unequivocally waived his right to be present at trial, and the Strasbourg and Luxembourg jurisprudence pointed to the opposite conclusion.
The Respondent
Miss Malcolm KC submitted that the document signed by the appellant at Spadafora Police Station concerned the service of criminal process, and the appellant was thereby aware of the jeopardy in which he stood. By failing to notify the judicial police of his move to England, he demonstrated that he did not intend to take part in the trial or wished to escape prosecution, relying on the language of Sejdovic v Italy at paragraph 99.
The Court’s Reasoning
The judgment was given by Lord Stephens and Lord Burnett, with whom Lord Hodge, Lord Sales, and Lord Burrows agreed.
The Supreme Court affirmed that section 20 of the 2003 Act must be interpreted in conformity with the Amended Framework Decision (the FD 2002 as amended by the FD 2009) and with article 6 of the European Convention on Human Rights. The Court endorsed the conclusions in Cretu v Local Court of Suceava, Romania [2016] EWHC 353 (Admin), including that “trial” in section 20(3) means an event with a scheduled date and place, not the general prosecution process.
Critically, the Court held that the phrase “deliberately absented himself from his trial” in section 20(3) is synonymous with the concept in Strasbourg jurisprudence that an accused has unequivocally waived his right to be present at trial:
The phrase ‘deliberately absented himself from his trial’ should be understood as being synonymous with the concept in Strasbourg jurisprudence that an accused has unequivocally waived his right to be present at the trial.
The Court reviewed the extensive Strasbourg and Luxembourg case law, including Sejdovic v Italy, Jones v United Kingdom, Pishchalnikov v Russia, Sibgatullin v Russia, Idalov v Russia, and IR (Case C-569/20). The Court identified the standard imposed by the Strasbourg Court as follows:
It is apparent from these cases that the standard imposed by the Strasbourg Court is that for a waiver to be unequivocal and effective, knowing and intelligent, ordinarily the accused must be shown to have appreciated the consequences of his or her behaviour. That will usually require the defendant to be warned in one way or another.
The Court rejected the proposition that a general “manifest lack of diligence” in failing to update one’s address could itself support a finding that the accused had deliberately absented himself from trial. Citing Sibgatullin, the Court stated:
there can be no question of waiver by the mere fact that an individual could have avoided, by acting diligently, the situation that led to the impairment of his rights.
Applying these principles to the facts, the Court found that the appellant had never been officially informed that he was being prosecuted, nor was he notified of the time and place of trial. At the time he left Italy, no criminal proceedings existed. His dealings with the police fell far short of an official “accusation”:
When the appellant left Italy without giving the judicial police a new address there were no criminal proceedings of which he could have been aware, still less was there a trial from which he was in a position deliberately to absent himself.
On the certified question, the Court declined to answer it in absolute terms, noting that the Strasbourg Court had been careful not to present the issue in stark black-and-white terms. Ordinarily, the requesting authority must prove that the requested person had actual knowledge that he could be convicted and sentenced in absentia. However, in extreme circumstances—such as where the accused is aware of proceedings and charges against him and deliberately evades justice—unequivocal waiver may be found even without such specific knowledge. But the present facts were far removed from any such scenario.
Practical Significance
This decision is of considerable importance for extradition law in the United Kingdom and, given its close engagement with the ECHR and the Amended Framework Decision, more broadly. It establishes authoritatively that “deliberately absented himself from his trial” in section 20(3) of the Extradition Act 2003 must be equated with the unequivocal waiver of the right to be present at trial under article 6 ECHR. A mere failure to keep authorities informed of a change of address during a pre-charge investigation, without awareness of actual criminal proceedings or the scheduled trial, cannot constitute deliberate absence. The decision also clarifies that a general lack of diligence by an accused person does not, of itself, equate to unequivocal waiver, correcting the overly wide formulation in Zagrean v Romania [2016] EWHC 2786 (Admin). The case underscores the high threshold required before extradition may proceed following a trial in absence where the EAW does not satisfy any of the prescribed article 4a criteria.
Verdict: The appeal was allowed. The Supreme Court ordered the appellant’s discharge pursuant to section 33(3) of the Extradition Act 2003 and quashed the order for his extradition to Italy, holding that the appellant had not deliberately absented himself from his trial for the purposes of section 20(3) of the 2003 Act.
Source: Bertino v Public Prosecutor’s Office, Italy [2024] UKSC 9
