Rexha v Serious Organised Crime Agency

Factual and Procedural Background

The Appellant was subject to an extradition order issued by a district judge at the City of Westminster Magistrates' Court, ordering his extradition to Italy pursuant to a European Arrest Warrant (EAW) certified by the Serious Organised Crime Agency (SOCA) on 22 February 2011. The EAW concerned a conviction in absentia by the Criminal Court of Rome VII Division on 20 June 2003, for participation in a criminal association engaged in drug trafficking and conspiracy to import cannabis, resulting in a ten-year sentence finalized on 17 October 2006.

The Appellant appealed this extradition order to the Divisional Court, which rejected the appeal on 17 May 2012, concluding that the Appellant would be entitled to a re-trial under Section 20 of the Extradition Act 2003. The Appellant then applied for a certificate on a point of law of general public importance, which was refused on 6 October 2012.

Subsequently, on 18 August 2012, the Appellant applied to the Court of Appeal in Rome to set aside the 2003 conviction. This application was not communicated to the UK court or the Italian judicial authority seeking extradition before the refusal of the certificate. The Appellant was notified by SOCA on 10 October 2012 that he would be removed on 12 October, prompting an urgent injunction application to prevent removal pending the decision of the Rome Court of Appeal, which was refused on 18 October 2012. The injunction was later continued by a further order.

The current application before the court seeks to re-open the appeal under Civil Procedure Rule (CPR) 52.17, arguing that the decision of the Rome Court of Appeal constitutes a fundamental change of circumstances or fact, undermining the Divisional Court’s conclusion that a re-trial would be available.

Legal Issues Presented

1. Whether the decision of the Rome Court of Appeal constitutes a fundamental change of circumstances or fact sufficient to re-open the appeal under CPR 52.17.
2. Whether the Appellant is entitled to a re-trial under Section 20 of the Extradition Act 2003, given the procedural posture and the Italian legal provisions governing re-trials following convictions in absentia.
3. Whether the timing and manner of the application to the Rome Court of Appeal amount to an abuse of process affecting the propriety of re-opening the appeal.
4. Whether the requirements of CPR 52.17 are met, namely to avoid real injustice, exceptional circumstances, and lack of alternative effective remedy, in the context of extradition proceedings.

Arguments of the Parties

Appellant's Arguments

• The decision of the Rome Court of Appeal shows that the Appellant cannot now have a re-trial, representing a fundamental change of circumstances or new evidence undermining the Divisional Court’s conclusion.
• Extradition in these circumstances would breach Article 6 of the European Convention on Human Rights and the court’s duty under Section 6 of the Human Rights Act 1998.
• The appeal should be re-opened under CPR 52.17 as the conditions of avoiding real injustice, exceptional circumstances, and no alternative remedy are satisfied.

Judicial Authority's Arguments

• The application to the Rome Court of Appeal could and should have been made earlier and is therefore not a valid basis to re-open the appeal.
• The application constitutes an abuse of process designed to delay or avoid extradition rather than to secure a legitimate re-trial.
• The decision of the Rome Court of Appeal does not fundamentally undermine the Divisional Court’s decision, which anticipated a post-surrender application for re-trial under Italian law.
• The requirements of CPR 52.17 are not met, and the application should be refused.

Table of Precedents Cited

Court's Reasoning and Analysis

The court began by reaffirming the high threshold for re-opening a final determination under CPR 52.17, which requires avoiding real injustice, exceptional circumstances, and no alternative remedy. It noted that the Divisional Court had carefully analyzed the entitlement to a re-trial under Section 20 of the Extradition Act 2003, relying on Italian law, particularly Article 175(2) of the Italian Code of Criminal Procedure.

The court emphasized that the entitlement to a re-trial depends not only on knowledge of the proceedings but on the voluntary nature of the defendant's absence. The Divisional Court had preferred the evidence of the judicial authority’s expert, Dr Terracina, over the Appellant’s expert, Professor Iorio, concluding that the Appellant retained the right to lodge an out-of-time appeal and be granted a re-trial post-surrender.

The court scrutinized the application made by the Appellant to the Rome Court of Appeal, finding it deficient and deliberately omitting critical facts such as the Appellant’s custody status and the extradition context. The court characterized this omission as an abuse of process intended to delay extradition rather than to secure a legitimate re-trial. It further concluded that the Rome Court of Appeal was not informed of the full circumstances, which undermined the weight of its decision.

Regarding the timing, the court held that the application to the Rome Court of Appeal could and should have been made earlier, and the failure to do so militated against re-opening the appeal. The court applied the principles from Ladd v Marshall to refuse to admit this late evidence.

Ultimately, the court found that the CPR 52.17 criteria were not met: the alleged change in circumstances was not fundamental or sufficiently established; the application was an abuse of process; and no real injustice would arise from refusing to re-open the appeal.

Holding and Implications

The court refused the application to re-open the appeal under CPR 52.17.

The direct effect is that the Appellant’s extradition order remains in force, and the appeal against extradition is final. The court emphasized that the Appellant’s procedural choices and timing led to this outcome. No new legal precedent was established beyond the reaffirmation of the strict conditions under CPR 52.17 for re-opening appeals in extradition cases.