Graeme Hall persuades High Court to certify points of law regarding retrial rights
On 19 May 2022, Mr Justice Swift certified points of law arising from an Italian extradition request.
Mr Bertino is sought by Italy to serve a one year sentence for an offence which took place in June 2015. At first instance he was deemed to be deliberately absent from his trial meaning that, if extradited, he is not entitled to a retrial per section 20 of the Extradition Act 2003.
The issue in the appeal was whether, to be deliberately absent from trial, Mr Bertino needed to be expressly informed that his trial could take place, and a decision handed down, in his absence per Article 4a(1)(a)(ii) of the Framework Decision 2002/584/JHA.
Swift J. concluded that (a) an express warning need not be given so long as Mr Bertino could reasonably foresee that he would be dealt with in his absence; and, (b) the requesting state could prove that Mr Bertino did reasonably foresee that his trial could take place in his absence on the basis of reasonable inference.
Swift J. subsequently certified the following points of law of general public importance:
“(1) For a requested person to have deliberately absented himself from trial for the purposes of section 20(3) EA, must the requesting authority prove that he has actual knowledge that he could be convicted and sentenced in absentia?
(2) Where the requesting authority asserts that it can be demonstrated by inference that a requested person could reasonably foresee that he could be convicted and sentenced in absentia, must the inference be the only reasonable inference?”
The decision to certify these points of law offers a rare opportunity for the Supreme Court to consider the requirements of section 20 EA and its inter-relation with the Framework Decision, the combination of which have produced significant High Court litigation.