The High Court has ruled that Alan Gray cannot be surrendered to Italy under a European Arrest Warrant because no decision had been made to try him when the warrant was issued.
In a judgment delivered on 7 March 2016, Ms Justice Donnelly found that the evidence displaced the statutory presumption that a decision had been made in Italy to charge and try Mr Gray for the offences specified in the warrant. Section 21A of the European Arrest Warrant Act 2003 therefore prohibited his surrender.
The warrant, issued by a judge at the Court of Genoa on 31 July 2013, sought Mr Gray’s surrender for prosecution over alleged aggravated smuggling of foreign finished tobacco and alleged false swearing by a public officer and public documents by mistake determined by someone else’s cheating. The judgment records that the alleged tobacco import involved 9,890 kilograms on 13 December 2011, and that the incident was established in Genoa.
The court examined the Italian prosecution process and communications from the issuing judicial authority. The authority said the prosecutor sought committal for trial in May 2015, after the warrant had been issued, and that a preliminary hearing was scheduled for December 2015. The judge concluded that a later request for committal did not show that an intention to try Mr Gray existed when the warrant was issued. The fact that the warrant followed a precautionary custody order based on serious circumstantial evidence could indicate a decision to charge, she said, but charging and deciding to try were separate matters.
Mr Gray had also objected that he would have no opportunity to seek bail in Italy. After requesting clarification, the court received information that a defendant could ask a judge to revoke custody or replace it with less restrictive measures. At a further hearing, Mr Gray’s counsel accepted that this matched the view of his Italian-law expert. The judge found a system of pre-trial release existed and no real risk to Mr Gray’s right to liberty on surrender had been shown.
The court was otherwise satisfied that the warrant had been properly endorsed and that the statutory provisions considered did not prohibit surrender. But its finding under section 21A was decisive: surrender was prohibited because no decision to try Mr Gray had been made in Italy at the date of issue of the warrant. The judgment did not determine whether the later committal request itself amounted to a decision to charge and try.