Bertino v Public Prosecutor’s Office, Italy [2024] UKSC 9

Mr Bertino was convicted in Italy in his absence for a sexual offence. Italy sought his extradition via a European arrest warrant. The UK Supreme Court held that he had not 'deliberately absented himself from his trial' under section 20(3) of the Extradition Act 2003, as he was unaware of the prosecution and trial date, and had not unequivocally waived his right to be present.

Facts

The appellant, Salvatore Bertino, was an Italian national whose extradition was sought by Italy pursuant to a European arrest warrant (EAW) to serve a one-year sentence for sexual activity with an underage person. The offence allegedly occurred in June 2015 at a holiday camp where the appellant worked. The police were informed, seized his phone, and he was dismissed from his job. He returned to Sicily and attended a police station in July 2015, signing a document acknowledging he was under investigation and electing domicile. The document warned him to notify any change of address, failing which documents would be served on a court-appointed lawyer.

The appellant left Italy for the United Kingdom in November 2015 without notifying the authorities. Criminal proceedings were commenced in Italy in June 2017, almost two years later. The summons for trial was issued but could not be served personally as the appellant was untraceable; it was served instead on a court-appointed lawyer. The appellant was convicted and sentenced in his absence in April 2018, having never been informed of the prosecution or trial date.

Issues

The central issue was whether the Deputy Senior District Judge 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, thereby permitting extradition despite no entitlement to a retrial. The certified question of law was whether the requesting authority must prove that the requested person had actual knowledge that he could be convicted and sentenced in absentia.

Judgment

The Supreme Court allowed the appeal, ordering the appellant’s discharge and quashing the extradition order. Lord Stephens and Lord Burnett (with whom Lord Hodge, Lord Sales and Lord Burrows agreed) delivered the joint judgment.

Interpretation of Section 20(3)

The Court held that the phrase ‘deliberately absented himself from his trial’ in section 20(3) should be understood as synonymous with the concept in Strasbourg jurisprudence that an accused has unequivocally waived his right to be present at trial. The Court endorsed the conclusions in Cretu v Local Court of Suceava, Romania [2016] 1 WLR 3344.

Application of Article 6 ECHR Principles

Drawing on extensive Strasbourg jurisprudence, including Sejdovic v Italy and Jones v United Kingdom, the Court emphasised that waiver of the right to be present at trial must be established in an unequivocal manner. The Court stated:

“It is only where it is apparent from precise and objective indicia that the person concerned, while having been officially informed that he or she is accused of having committed a criminal offence, and therefore aware that he or she is going to be brought to trial, takes deliberate steps to avoid receiving officially the information regarding the date and place of the trial that the person may … be deemed to have been informed of the trial and to have voluntarily and unequivocally foregone exercise of the right to be present at it.”

Findings on the Facts

The Court found that when the appellant left Italy, he had not been charged, had never been arrested or questioned, and a prosecution was no more than a possibility. The decision to prosecute was made nearly two years after he provided his address to the police. He was never officially informed of the prosecution or notified of the trial date. The Court concluded:

“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.”

Rejection of ‘Manifest Lack of Diligence’ as Sufficient

The Court clarified that a general manifest lack of diligence resulting in ignorance of criminal proceedings is not itself sufficient to establish waiver, citing Sibgatullin v Russia:

“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.”

Implications

This judgment clarifies the interpretation of section 20(3) of the Extradition Act 2003 in trial in absence cases. It confirms that ‘deliberately absenting’ oneself from trial requires an unequivocal waiver consistent with Article 6 ECHR standards. Ordinarily, the requesting authority must prove that the requested person had actual knowledge that trial could proceed in their absence, though the Court left open the possibility that extreme conduct might support waiver even without such actual knowledge. The decision reinforces the importance of fair trial rights in extradition proceedings and ensures alignment between UK domestic law and European human rights standards.

Verdict: Appeal allowed. The appellant’s discharge was ordered and the extradition order was quashed. The Court held that the appellant had not deliberately absented himself from his trial for the purposes of section 20(3) of the Extradition Act 2003, as he had not unequivocally waived his right to be present at trial.

Source: Bertino v Public Prosecutor's Office, Italy [2024] UKSC 9