The scope for remote trial by video – High Court discharges SA from extradition to Italy in case raising issues of proportionality and less coercive measures

On 12 April 2024, Ben Cooper KC, Alex Tinsley and Malcolm Hawkes’ client S. A. was finally discharged by order of the High Court, following his acquittal in absentia in a case raising new issues about the interaction of extradition, mutual legal assistance, and remote trial hearings in the issuing state.

S.A., a recognised refugee in the UK, was held in custody in the UK under an Italian arrest warrant for unfounded terrorism allegations. In June 2023, he appeared by a video-link from HMP Belmarsh at a hearing before the Italian court, at which he elected a rito abbreviato (a summary trial largely on the papers). 

Leave to appeal was granted amid a dispute as to whether the trial itself could proceed by way of a video link. The CPS and then the Italian judge took the position that it could not, as any further request from Italy for a video-link for the trial would be refused by the UK due to the UK’s May 2019 Declaration to the Second Additional Protocol (2AP) to the Council of Europe Convention on Mutual Legal Assistance (COE MLA Convention) (whereby the UK “will not allow video conferencing to be used where the witness in question is the accused (…) and the hearing is, or forms part of, the trial”).

At the full hearing in December 2023, the defence argued that the trial could now proceed regardless of the UK Declaration because S.A.’s position on the allegations was to be conveyed to the Italian court in a written statement, thus he would not be a ‘witness’.

The High Court (Sir Duncan Ouseley) decided ([2023] EWHC 3343 (Admin)), that given the Italian court’s last position that the UK Declaration was an obstacle, no alternative to extradition appeared possible and so dismissed the appeal on that basis. However, the Court accepted S.A.’s submission that the UK Declaration does not preclude any trial being held by video, but only one in which the accused is to give live evidence. It directed (§38) that the High Court’s position on the law be urgently conveyed to Italy together with an exceptional post-decision request for Further Information under Article 613(2) of the Trade & Cooperation Agreement (TCA), inviting the Italian judge to indicate whether that changed her position, given S.A.’s intention to convey his position on the allegations to the trial court in writing. S.A. was effectively invited to apply to re-open the High Court appeal if trial by video was back on the cards as a result of the judicial dialogue.

In January 2024, the Italian court, following the lead of the judgment of the High Court, duly made a formal mutual legal assistance (MLA) request to the UK Central Authority (UKCA), requesting a video-link for an adjourned trial.

Without prior notice to S.A., UKCA refused that MLA request. It claimed that to grant it would delay S.A.’s extradition and that the intention behind the UK Declaration had been to exclude videoconference for any trial hearing, regardless of the nature of the accused’s participation. UKCA disclosed this fait accompli when applying to join the appeal.

S.A. pursued pre-action protocol correspondence with UKCA, ahead of an expected judicial review of its decision, on the basis that it had acted unfairly, usurped the High Court’s extradition case management functions, and gone behind the High Court’s ruling on the effect of the UK Declaration. In parallel S.A. applied to reopen the appeal. 

The Court granted an interim injunction against extradition. However, with time running out on the Italian custody-time limits, there was no time for the issues to be litigated before the High Court was placed in an impossible position. 

Therefore, S. A. subsequently provided a written waiver of his attendance, given that his position had been conveyed in writing in the context of a rito abbreviato trial. The Italian Court then agreed to the defence invitation to proceed in his absence on his elected basis on 9 April 2024. He was acquitted the same day. Other proceedings and outstanding issues fell away. 

This process unfolded at pace between late October 2023 and early April 2024, following two applications by the CPS to expedite the determination of permission and then the appeal itself. Both times the CPS had to correct the premise of its applications after factual assertions it (not its Counsel) had made were shown to be incorrect. 

In this case, previous defence Counsel Malcolm Hawkes had argued, from the outset, that an acquittal was inevitable. Yet it took considerable effort to achieve that outcome from the UK without extradition (and the associated risk of protracted immigration detention and refoulement after acquittal in Italy). S.A. had to go so far as to waive the basic right to observe justice being done in his own case to avoid a needless extradition.

The case raises a serious question: how much does the UK Government actually believe in the proportionality ‘principle’ it negotiated in Article 597 TCA? That provision sets the tone for the whole EU-UK extradition system. Other provisions of the TCA serve to make the 2AP MLA process effective, enhancing the feasibility alternatives. On the High Court’s reading of the UK Declaration (§38), some European cases can be disposed of by the alternative of a simple video-link trial hearing. UKCA’s (still untested) view would exclude any remote trial hearing and lead to unnecessary extraditions – an unambitious vision for a principle the UK set up as the frontispiece of the TCA surrender framework.

Ben, Alex and Malcolm were instructed by Frank Brazell of Sperrin Law.

Note – The UK Declaration has no bearing on other MLA frameworks (e.g. with non-European states), or European cases where there is no recourse to MLA.