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The two requested persons appealed to the High Court against the decision to order their extradition to Italy. The case concerned the application of section 20 of the Extradition Act 2003 where the requested persons’ conviction in Italy became final following a hearing at the Court of Cassation (the highest court in Italy), at which they were unexpectedly not represented because their Italian lawyers attended a strike.
The requested persons argued that the relevant court for the purposes of section 20(1) was the Court of Cassation; neither of the appellants had been present at the hearing of that court on 18 July 2017; they had not deliberately absented themselves from the hearing; and they would not be entitled in Italy to a retrial or (on appeal) a review amounting to a retrial. In addition, they argued that pursuant to section 21 of the 2003 Act and Article 6 of the ECHR, the District Judge had erred in finding that there had been no flagrant denial of justice.
Hamblen LJ and Lane J sitting in the Divisional Court found that the appellants’ appeal to the Assize Court of Appeal was a full “merits” appeal against both conviction and sentence. However, proceedings in the Court of Cassation were “of a significantly different nature” because “only issues on points of law are examined”.
The Court found that the proceedings in the Court of Cassation did not amount to “the trial resulting in the decision”.
This was because the Court considered that the expression “trial resulting in a decision” in Article 4a(1) means a trial that has the characteristics described in Article 4a(1)(c) of the 2002 Framework Decision on the European arrest warrant and the surrender procedures between Member States, as amended.
The Court also found that there had been no flagrant denial of justice.
Benjamin Seifert represented Alex Foster Taylor, and Emily Wilsdon represented Victoria Foster Taylor, both led by Jonathan Hall QC.