Opening of extradition proceedings adjourned until circa the year 2050

This month, the Senior District Judge and Chief Magistrate of England and Wales, Emma Arbuthnot, sitting at the Westminster Magistrates’ Court, acceded to the application and submissions of Danilo Restivo that the opening of Italian extradition proceedings in his case should be adjourned until circa the year 2050. That year marks the earliest release date of the Requested Person, an Italian national, who is now aged forty-five.

 

Danilo Restivo was arrested on an Italian European Arrest Warrant in December 2015. 

 

Edward Fitzgerald, Q.C., Abigail Bright and Emma Scott were instructed for Danilo Restivo by Giovanna Fiorentino, Lansbury Worthington, and appeared at the substantive hearing.        

 

Submissions made this month for Danilo Restivo refined earlier arguments deployed against the Government of Italy, represented by the Crown Prosecution Service. The focus of the extradition proceedings was the statutory power conferred by section 36C of the Extradition Act 2002. Section 36C expressly empowers the Court to order that any extradition order should not be carried out until a sentence imposed in the UK has been served in full. 

 

Mr Restivo’s submissions all flowed from the fact that he is at present subject to a sentence of life imprisonment with a minimum tariff of forty years. That sentence arose after Mr Restivo’s conviction by a jury sitting at Winchester Crown Court, on 29th June 2011, for the murder of Heather Barnett, a murder committed in this country. The sentencing judge passed a whole life order. In September 2012, that sentence was found to have been wrong in principle and was set aside. A sentence of life imprisonment with a minimum period of forty years’ imprisonment was substituted by the Court of Appeal on 21st November 2012 by a special constitution of the Court of Appeal, Criminal Division, Lord Judge CJ, Hallett, Hughes, Leveson, Rafferty LJJ, reported as [2013] Q.B. 979. Mr Restivo’s appeal is reported by the learned editors of Archbold at 5-87 as establishing the principle in law that ‘the entitlement of a judge to make findings that offences have been committed other than those charged in the indictment (e.g. overt acts committed in the course of a conspiracy) does not extend to reaching a non-jury verdict about allegations put before the jury by way of similar fact evidence, unless, perhaps, the jury must have been satisfied that they were proved, or the defendant has been convicted of them in the past.’

 

Edward Fitzgerald Q.C. and Abigail Bright appeared at that appeal for Mr Restivo as referral appellate counsel, instructed by Giovanna Fiorentino, Lansbury Worthington.

 

The sentence Mr Restivo is now serving in the UK predates the conviction and sentence in Italy, in 2013, that resulted in the imposition of a sentence of thirty years’ imprisonment for conviction after trial of the murder of Elisa Claps, aged sixteen, committed in Potenza, Italy. Elisa Claps disappeared in September 1993. The trial in Italy is reported here.

 

Mr Restivo’s submission was that, as a matter of principle and as a matter of policy, the sentence of life imprisonment with a minimum term of forty years’ imprisonment, imposed in this country, should be served in full before any order for his extradition is carried out. Further: no extradition hearing should take place until the prospect of an extradition order being carried out in the near future is a realistic outcome of any extradition hearing.

 

In the light of the background history and these principles Mr Restivo submitted as follows:-

 

i. The extradition proceedings should be stayed as an abuse of process. That is because it is premature to determine at this present time the issues that would arise at an extradition hearing (including lapse of time, human rights and any medical issues under s.25). Until extradition can take place within a reasonable time if it is ordered, statutory issues of that nature cannot properly be dealt with. Moreover, for the reasons of principle set out above, it would be wrong in principle to give effect to any order of extradition until Mr Restivo has completed his sentence in the UK. So, at present, any extradition hearing would be an exercise in futility;

 

ii. Alternatively, the proceedings should simply be adjourned from time to time pursuant to section 8B(2) until there is a realistic prospect of the Court making an effective order for extradition and directing that it should be carried out. This would mean a succession of six-monthly adjournments until such time as the case can be realistically adjudicated and an effective order for extradition made. Given the length of Mr Restivo’s sentence here in England, the adjournments are likely to continue for many, many years;

 

iii. Further, or in the alternative, it was submitted that the Court should, in any event, make an order pursuant to section 36C(2) that the ‘the extradition order not be carried out until the person (Mr Restivo) is released from detention pursuant to the sentence’ which he is now serving in the UK. The reason why the extradition order should not be carried out until he has concluded his sentence in the UK is that the principle of legality and the rule of law requires that the sentence imposed by our courts should be served in full before effect is given to any order for extradition to a foreign country to serve a sentence imposed in that country.

 

These points were developed, in oral submissions. 

 

Mr Restivo submitted it would be unfair for the extradition proceedings to be opened now because Mr Restivo cannot now predict or anticipate what arguments, based on lapse of time, the human rights position in Italy, or his own health, would arise many, many years down the line when actual extradition becomes a realistic prospect. It was submitted that those issues are by definition issues that should be determined when there is a real prospect that extradition will take place in the near future. It is known that there have been times when extradition to Italy has been refused because of the conditions in some Italian prisons breach Article 3 (see the case of Badre). That is a matter that needs to be determined when actual extradition in the near future is a real prospect and when the actual destination prison can be predicted. Similarly, issues of the passage of time and any health grounds that render extradition unjust or oppressive need to be determined at the time that extradition is imminent.

 

Moreover, the extradition scheme itself contemplates that an extradition order is to be given effect within ten days of the order being made or an appeal being determined. If an extradition order is made without any realistic prospect of it being fulfilled in the near future, then this subverts the statutory scheme.  

 

Repeated adjournments avoid the injustice of holding a premature extradition hearing now, at a time when extradition cannot realistically be carried out in the foreseeable future or for a very long time.

 

Whilst a deportation order has been made by the Secretary of State, which is the subject of an appeal at present, the deportation order itself could not lawfully be carried out until Mr Restivo has concluded at least the minimum sentence imposed by the court – i.e. the period of forty years’ imprisonment specified as a relevant part of his sentence for the purposes of retribution and deterrence.

 

It was submitted that, even if the extradition hearing were to proceed, and extradition were to be ordered, the Court would be invited to make an order pursuant to section 36(2)C that the extradition order should ‘not be carried out’ until Mr Restivo has served the relevant part of his sentence (i.e. forty years’ imprisonment). The reasons for that are:

 

i. As a matter of principle, the English sentence should take precedence. It is a fundamental part of the rule of law that a sentence imposed by an English court should be served in full unless the prisoner is released pursuant to the exercise of some statutory power or some recognised prerogative power. There is no express power to override the sentence of the English court for the purposes of extradition. By contrast there are express statutory powers to order the temporary transfer of a prisoner provided for under different legislative provisions.

 

ii. Further, or the alternative, there are reasons of policy and justice why the greater sentence imposed by the English courts after an earlier conviction should be served in full before Mr Restivo is extradited to serve the later and lesser sentence imposed by the Italian courts in respect of which his extradition is sought. At the conclusion of his sentence in the UK, when he has served that sentence it would be an appropriate time to consider what should happen in respect of the later Italian sentence and whether it would appropriate for him to be extradited to serve that sentence consecutively to the sentence he would by then have served in the UK for an offence that was in fact later in time.

 

iii. It would be irrational, unjust and contrary to the rule of law for an English court not to give priority to the earlier and greater sentence imposed by the English courts.

 

Edward Fitzgerald, Q.C. is ranked 1st in Extradition in Chambers and Partners and has been described as “a true intellectual giant – a top-class extradition and appellate lawyer”.

 

Edward’s Practice Manager, Harriet Massie, can be contacted on h.massie@doughtystreet.co.uk

 

Instructed counsel and Solicitors continue to represent Danilo Restivo. The right to legal aid of requested persons in extradition proceedings was observed by the President of the Queen's Bench Division and Mr Justice Haddon-Cave in Stopyra [2012] EWHC 1787 (Admin) [at para. 32]. The Court referred to the right to legal representation and had regard to the Framework Decision which provides, by Article 11(2), ‘A requested person who is arrested for the purpose of the execution of a European arrest warrant shall have a right to be assisted by a legal counsel and by an interpreter in accordance with the national law of the executing Member State.’

 

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