Belbin v The Regional Court of Lille, France

This is the judgment of the court to which both of us have contributed.

On 31 July 2013 the Deputy Public Prosecutor of the Tribunal de Grande Instance de Lille (Regional Court of Lille - “the Judicial Authority or JA”) issued a “conviction” European Arrest Warrant (which we will call “the July 2013 EAW” for reasons which will become apparent) requesting the surrender of Mr Douglas Belbin (“the appellant”), a British national, in order that he might serve a sentence of imprisonment of seven years imposed by the Criminal Court of Lille on 24 October 2011 following a trial of the appellant in his absence. The July 2013 EAW identified five offences for which the appellant had been sentenced. They are: (1) criminal conspiracy; (2) money laundering; (3) the transfer of undeclared sums of money between France and other countries over the sum of €10,000; (4) undertaking financial operations between France and other countries with funds resulting from drug offences and (5) the illicit import and export of narcotic drugs. The first two offences are within the “Framework list” of offences. The third and fourth are not, but it is accepted that they satisfy the “double criminality” test for the purposes of sections 10 and 65(3) of the EA. The JA does not maintain a request for the appellant’s surrender in relation to the fifth offence, for drug trafficking.

France is, of course, a Category 1 territory for the purposes of the Extradition Act 2003 (“the EA”), so that Part One of the EA applies to all aspects of these extradition proceedings. On 2 August 2013 the July 2013 EAW was certified by the authority designated at that time under section 2 of the EA, viz. the Serious Organised Crime Agency (“SOCA”).

The appellant was arrested pursuant to the EAW on 28 August 2013. He has been remanded on conditional bail throughout the subsequent proceedings. There was an extradition hearing before District Judge Purdy (“the DJ”), on 2 September 2014 after many adjournments for various reasons. At the hearing three challenges to the EAW were raised by counsel for the appellant, Mr Ben Cooper. First, he argued that the issue of the EAW constituted an “abuse of process” because it was the third EAW to have been issued by the same JA requesting the surrender of the appellant in respect of the same offences. The first had been an “accusation” EAW, which had subsequently been discharged on the order of the Magistrates’ Court. The second had been a “conviction” EAW which had been withdrawn by the JA. Mr Cooper’s second ground was that, despite the fact that the July 2013 EAW was a “conviction” EAW and despite the wording of section 11(1A)(b) of the EA, as amended, the appellant should be entitled to rely on the “Forum Bar” provisions of section 19B of the EA as amended and, in the terms of that section, it was “in the interests of justice” that the appellant should not be extradited. The third ground was that an order for extradition of the appellant would be a disproportionate interference with his and his wife’s Article 8 Convention rights, so that extradition should be barred under section 21 of the EA.

At the extradition hearing the DJ heard oral evidence from the appellant and his wife. He reserved his Ruling and handed it down on 26 September 2014. The DJ rejected each of the three challenges and so ordered the extradition of the appellant.

The appellant appealed pursuant to sections 26 and 27 of the EA. Mr Ben Cooper raised the same three challenges before us. We heard oral argument on 5 December 2014 and reserved judgment.

We have set out the relevant provisions of Part 1 of the EA in the appendix to this judgment.

The appellant was born on 2 November 1958 so is now 56 years old. Until the present proceedings he worked as a self-employed man in the truck supply business. He has been married for 33 years. His wife suffers from MS, which was first diagnosed some 5 years ago. Her condition is deteriorating. She has associated health ailments. There are two adult children of the marriage who are now aged 31 and 29.

The narrative account of the appellant’s involvement in the extradition offences is set out in Box (e) of the EAW. The facts can be summarised as follows:

Following investigations by police in the UK the appellant was arrested in England on 21 July 2010 and he eventually faced an indictment containing two counts: one of conspiracy to supply cannabis and one of conspiracy to supply amphetamine. On 21 July 2011 at Southwark Crown Court the appellant pleaded guilty to the first count and no evidence was offered on the second. He was sentenced to 15 months imprisonment.

Given the “Forum-Bar” argument that Mr Cooper makes in this court, it is useful to summarise the case made against the appellant in the English proceedings on both counts. Count 1 was based on the fact that the appellant was observed at Barry Smith’s home address and was in conversation with him and David Pratt there on two occasions in January 2009 and that there had been meetings between the appellant and Barry Smith in various car parks. Count 2 was based on the appellant and David Pratt driving in the same vehicle to a location in Essex in October 2009 and an exchange of packages between that van and one observed at the meetings in January 2009. Subsequently the police recovered large quantities of amphetamines from a garage that David Pratt visited with the van in which he and the appellant had been seen.

On 17 March 2011 an “accusation” EAW was issued by M Christophe Gourlaouen, the Assistant State Prosecutor at the Tribunal de Grande Instance de Lille. It sought the surrender of the appellant pursuant to a domestic arrest warrant issued on 4 March 2011 by M Richard Foltzer, “Vice-Président chargé de l’Instruction” at the Tribunal de Grande Instance de Lille. We will call this EAW “the accusation EAW”. The offences identified in the accusation EAW are effectively the same as those identified in the July 2013 EAW save that there is no specific mention of a money laundering offence in the details of the offences in the accusation EAW. However, in the Framework List the offence of “laundering of criminal products” is ticked. SOCA certified the accusation EAW on 17 October 2011.

On 24 October 2011 the Chambre Correctionnelle of the Tribunal de Grande Instance de Lille gave its judgment in respect of the charges against the appellant and co-defendants Steven Kingsford, Paul Palmer and Colin Dunne. The judgment records that the appellant resided in the UK, refers to the French domestic arrest warrant of 4 March 2011 and a further arrest warrant of 30 September 2011 and states that the appellant had not appeared before the court (“non-comparant”) nor was he represented. In the narrative part of the judgment dealing with the appellant, it states that the court decided to proceed in his absence, pursuant to paragraph 1 of Article 412 of the Code de Procedure Pénale. This provides, in translation:

“If the summons has not been served personally on the accused and if it is not established that he had knowledge of the summons, then in the case of non-appearance of the accused, the judgment is given as a default judgment, save in circumstances where the provisions of Article 411 apply”. (Footnote: ¹)

The provisions of Article 411 do not apply in this case.

It is accepted by the JA for the purposes of this appeal that the appellant had had no notice of the French proceedings and that he was not a “fugitive” from them for any purposes.

The judgment declared the appellant guilty of the offences charged and found that the gravity of the offences was such that a severe sentence must be passed. The court sentenced him in his absence to seven years imprisonment and a fine of €50,000. It also imposed a permanent ban on the appellant from entering France (save for his sentence).

The appellant was arrested in the UK on 25 May 2012 pursuant to the accusation EAW. He appeared before the Westminster Magistrates’ Court the following day. The accusation EAW was discharged, pursuant to sections 4(3) and (5) of the EA, on the ground that he had not been produced “as soon as practicable before the appropriate judge”.

On 25 May 2012 a “conviction” EAW (“the May 2012 EAW”) was issued by André Lourdelle, Deputy Public Prosecutor of the Tribunal de Grande Instance de Lille. The offences identified are the same as in the accusation EAW and the July 2013 EAW. The appellant was arrested by appointment at Westminster Magistrates’ Court on 27 June 2012. The extradition was opposed and an extradition hearing took place before DJ Purdy on 7 January 2013. The only live issue before DJ Purdy was whether the appellant’s extradition should be barred by reason of the rule against “double jeopardy”, pursuant to section 12 of the EA. The DJ ruled against him.

The appellant appealed and the matter was heard by Foskett J on 15 April 2013. He handed down judgment on 2 May 2013 and dismissed the appeal. In essence the argument on behalf of the appellant before Foskett J was that the case against the appellant in the French proceedings had been founded on the same or substantially the same facts as those which founded the two counts on the indictment and subsequent conviction and sentence by the Southwark Crown Court in July 2011.

Foskett J’s reason for rejecting the double jeopardy argument was that the case on the facts that the appellant faced in France was entirely different from the case he faced in the UK. In the latter the case was concerned with conspiracies to supply specified drugs and neither count in the English indictment mentioned the appellant’s co-defendants in the French proceedings. Nor did either count have anything to do with money laundering or allied offences. The elements of the offences charged in France were “materially different” from those charged in the UK and the offences charged in France were “not reflected in anything that had been or was likely to be charged in [the UK]”: see para 24 of the judgment.

Foskett J also held that the fact that the appellant could have been charged with money laundering offences in the UK proceedings did not mean that the double jeopardy principle had been offended. Although it might have been possible to infer that there was a conspiracy created in the UK to perform acts that were illegal in France and/or to dispose of the proceeds of the drug supply activities, the appellant had neither been prosecuted nor convicted or acquitted of such conspiracy offences. Therefore the double jeopardy rule was not offended: see paragraph 25.

Subsequently the appellant was not removed to France, so on 22 July 2013 he made an application for his discharge pursuant to section 36(8) of the EA on the ground that he had not been removed within the required period (24 days) after the dismissal of his appeal had become final and there was no “reasonable cause” for the delay beyond the specified time. DJ Evans adjourned the matter so as to allow the JA to make representations to explain the delay. On 1 August 2013 DJ Evans heard the application. In a Ruling of 7 August 2013 he held that there had been reasonable cause for the delay and dismissed the application. During the hearing the JA informed the court that the respondent had issued a further EAW, which was the July 2013 EAW which is the subject of the present appeal.

At the bottom of box (b) of the July 2013 EAW the following statements appear in the English version of the EAW:

“The person concerned has not been summoned in person or otherwise informed of the date and place of the hearing which led to the decision rendered by default but has the following legal guarantees after surrender (such guarantees can be given in advance):

The person concerned could file an objection in this case, the initial sentence will be void and he will be judged again for the facts. Moreover he will be brought before a judge (Judge of Freedoms and detention) who will decide if the person concerned will remain in custody or not until the new date of hearing on the basis of the arrest warrant”. (Footnote: ²)

It is clear from the original French language version of this wording that “the arrest warrant” means the domestic arrest warrant issued on 4 March 2011.

Originally, the two challenges to the July 2013 EAW identified in the Magistrates’ Court by the appellant’s Statement of Issues dated 11 September 2013 were: (1) that upon surrender the appellant would not be entitled to a re-trial which would comply with section 29(8)(b) of the EA, in the light of the decision of the European Court of Human Rights (“ECtHR”) in Abdelali v France (Application 43353/07), and (2) that extradition would be a disproportionate interference with the Article 8 rights of the appellant and his wife. In relation to the argument on rights to a re-trial, an expert’s report by Maitre William Julie was served. Ultimately the re-trial argument was not pursued in the light of the decision of this court in Zeneli v Public Prosecutor’s Office, Lyon France [2014] EWHC 2239 (Admin). However, two new arguments were advanced before the DJ instead, viz the “Forum Bar” and “abuse of process” arguments mentioned above.

The Ruling of the DJ is admirably concise. His conclusions were: (1) the “Forum Bar” argument must fail in principle because section 19B only applies to “accusation” EAWs: see section 11(1A)(b) of the EA. The July 2013 EAW cannot be “treated” as if it were an “accusation” EAW to make section 19B applicable. (2) The argument that it was an abuse of process to issue a “conviction” EAW after a trial in the absence of the defendant is misconceived. The appellant had the right to claim a re-trial upon his surrender to France. There was nothing in the chronology which could amount to an “abuse” which demanded a stay of the extradition proceedings. (3) Despite the fact that the appellant’s wife was seriously ill and the appellant was her carer and despite the delays that had occurred in the proceedings, those factors were more than outweighed by the seriousness of the offences and the treaty obligation to extradite. Therefore although it was accepted that there would be interference with the Article 8 rights of the appellant and his wife by virtue of his extradition, that interference would not be disproportionate.

Mr Ben Cooper for the appellant submitted that in circumstances where the JA accepts that the appellant’s conviction in the Lille court was in absentia and not in an Article 6 compliant manner and when the July 2013 EAW contains an express guarantee of a retrial on the facts, if the appellant applies for one, then the July 2013 EAW must be treated as if it were an “accusation” EAW. The court should look at the substance and not the form. Therefore the “Forum Bar” provisions of section 19B must be applicable to the July 2013 EAW, despite the fact that it is, nominally, a “conviction” EAW to which “Forum Bar” would not normally apply because of the terms of section 11(1A)(b) of the EA. If the statutory criteria in section 19B(2) and (3) are applied to the facts of this case then: (i) a substantial measure of the appellant’s “relevant activity” in relation to the extradition offences was in the UK so that section 19B(2) is satisfied; (ii) when the court “has regard” to the specific factors set out in section 19B(3) it is clear that it is “in the interests of justice” that the appellant should not be extradited. That would enable the extradition offences to be dealt with in the UK if needs be.

Alternatively, Mr Cooper argued that an extradition request in an EAW constitutes an “abuse of process” if it is made in bad faith by the requesting Judicial Authority, or its effect would be to usurp the integrity of the regime of the EA and its provisions: see eg R(Bermingham) v Director of the Serious Fraud Office [2007] QB 727 at [97] per Laws LJ. If the extradition of the appellant had been sought on the original “accusation” EAW, then he could have been able to rely successfully on the Forum Bar provisions of section 19B of the EA. The Judicial Authority now seeks the appellant’s extradition (ie. by the July 2013 EAW) on the basis of an “unlawful” conviction, and the July 2013 “conviction” EAW bars him from raising the Forum Bar arguments. In thus preventing the appellant from raising one of the statutory bars to extradition, the July 2013 EAW is an abuse of the process, or it usurps the integrity of the EA and its provisions. Moreover, the appellant has suffered further prejudice because: (i) he is, for the present, treated in both the UK and France as a convicted man. It will have an impact on his bail prospects in France; (ii) he has been subjected to unnecessarily protracted extradition proceedings, so that his detention (even if it is remand on bail) is a breach of his Article 5 rights; and (iii) he will face the prospect of a further trial in France whereas the matters could have been dealt with here in the UK. Because the French Judicial Authority has not taken any action to quash the “unlawful” conviction of the appellant by the French court, obtained in his absence, the resulting inability of the appellant to rely on the “Forum Bar” provisions of the EA means that the current attempt to extradite him based on the July 2013 “conviction” EAW is an abuse of process.

Thirdly, Mr Cooper argued that the appellant’s extradition would be a disproportionate breach of his and his wife’s Article 8 rights because she has a debilitating and progressive illness, MS, and he, as her husband of 33 years, is the only person who can give her the care and support she needs. Moreover, the lengthy delay in the extradition proceedings have had a profound and negative effect on both the appellant and his wife.

On behalf of the respondent JA, Mr Adam Payter submitted that the short answer to Mr Cooper’s first submission is that the July 2013 EAW is, according to its terms, a “conviction” EAW (see Adamson v Court of Appeal, Bordeaux [2013] EWHC 2037 (Admin). The nature of the EAW must be decided first; if the July 2013 EAW is a “conviction” EAW then section 11(1A)(b) of the EA is unequivocal: the “Forum Bar” provisions cannot apply because they are only applicable to “accusation” EAWs after the provision came into force on 14 October 2013. The appellant has been convicted of the extradition offences by the French court and there can be no question of him being tried for those offences in the UK. As a fall back point, even if “Forum Bar” could be argued, on the facts it would be in the interests of justice that the appellant should be extradited.

On the “abuse of process” argument, Mr Payter accepted that the court has an implied residual jurisdiction (in addition to the specific statutory bars to extradition) to order a defendant/appellant’s discharge if his extradition would constitute an abuse of process. But it is a power to be used sparingly and only for very compelling reasons and in exceptional circumstances. The abuse of process has to be that of the requesting Judicial Authority. In this case there has been no bad faith on the part of the French Judicial Authorities; nor is there any evidence to suggest that they have been aware, at any stage, of a “Forum Bar” argument which they are trying to prevent the appellant from utilising. It cannot be an abuse of process for the Judicial Authority to issue a conviction EAW when the requested person has been (according to French law) properly convicted in his absence and it is accepted by the Judicial Authority that, if surrendered, the requested person will have a right to a full, Article 6 compliant, re-trial and to apply for bail. Nor can it be an abuse of process for the provisions of the statute to be applied according to their terms: the Forum Bar is not available in conviction EAW cases and the re-trial requirements set out in section 20(8) will be fulfilled.

As for the Article 8 argument, the DJ’s assessment of the facts was plainly correct and there was no error of principle by him. The court should not interfere unless there was something in the nature of a “public law” error: see Dunham v Govt of the USA [2014] EWHC 334 (Admin) at [66] per Beatson LJ. None is demonstrated.

In Paramjit Bagri v Public Prosecutor Bordeaux Court of First Instance [2014] EWHC 4066 (Admin) Aikens LJ said, at [31]:

“Before considering the individual grounds, it is important to recall the structure of Part 1 of the EA and the approach that the Magistrates’ Court and this court (on appeal) have to take to the issues that arise on Part 1 extradition cases. As Scott Baker LJ stated in Sonea v Mehedinti [2009] 2 All ER 821, [2008] EWHC 89 (Admin) at [16], the structure of Part 1 of the EA envisages a “step by step” approach by the judge to particular questions. The answer to each question will determine the next move that the judge has to take and the next question that the judge has to consider. Scott Baker LJ emphasised in the same paragraph [16] that it is only when the judge gets to section 20 that it is pertinent to consider whether the person requested was convicted in his presence or absence and, if in his absence, whether the person was deliberately absent and, thus, whether he is entitled to a retrial upon surrender under a “conviction” warrant”.

In the present case the first step is to identify the type of EAW with which the court is concerned. That is a matter of examining the EAW itself as a whole and seeing what information is in it by comparison with the terms of section 2(2) to 2(6) of the EA. It is abundantly plain that, upon the proper construction of the July 2013 EAW as a whole, it is one that identifies the appellant and states that he has been convicted by the “Criminal Court in Lille” on 24 October 2011, (albeit “by default”) of identified extradition offences and that the EAW is issued with a view to his arrest and extradition to France (a Category 1 territory) for the purpose of serving a sentence of 7 years imposed (albeit “by default”) by the Court in Lille on 24 October 2011. The July 2013 EAW does not state that the appellant is accused of certain identified crimes and that the warrant is issued with a view to his arrest and extradition to France for the purpose of him being prosecuted for identified extradition offences. The statement contained in the July 2013 EAW is therefore that required in section 2(5) of the EA, not that required in section 2(3). To use the shorthand that has been universally adopted since Part 1 of the EA came into force, the July 2013 EAW is, upon its proper construction, a “conviction” EAW.

There is, of course, other information in the July 2013 EAW. But, as this court pointed out in Bagri v Public Prosecutor Bordeaux Court of First Instance at [24], the fact that some or all of the “information” referred to in section 2(4)(a) to (c) of the EA is, in fact, set out in that EAW cannot turn what is clearly a “conviction” EAW into an “accusation” EAW. Further, as was decided in Sonea v Mehedinti District Court of Romania and has been reiterated in other cases since then (referred to in footnote 9 at [24] of Bagri), the fact that, if surrendered, the requested person may decide to exercise his right to a retrial cannot turn this “conviction” warrant into an “accusation warrant.

Once it is established that the July 2013 EAW is, upon its proper construction, a “conviction” warrant, then the court must proceed to the next step. This is to identify which possible statutory bars to extradition might be available to the person whose surrender is requested pursuant to a “conviction” EAW. The new “Forum Bar” provisions in Part 1 of the EA were introduced by Schedule 20(1) paragraph 2 of the Crime and Courts Act 2013 and they came into force on 14 October 2013. The provisions have been slightly amended sine then by Schedule 11(4) paragraph 104 of the Anti-Social, Crime and Policing Act 2014 and those modifications came into force on 21 July 2014. The later amendments are not material to the present argument.

Section 11(1) and (1A)(b) of the EA state the bars to extradition that have to be considered by the “appropriate judge” and in which order. Section 11(1A)(b), which was inserted by virtue of the 2013 Act, makes it clear that the judge is to decide whether a person’s extradition is barred by reason of forum “…only in a case where the Part 1 warrant contains the statement referred to in section 2(3) (warrant issued for purposes of prosecution of offence in category 1 territory)”. If the relevant EAW does not contain that statement, the “Forum Bar” provision is not available as a bar to extradition in that case. As this court re-emphasised in the Bagri case at [39], the fact that a requested person will have the right of retrial upon his surrender under a “conviction” EAW will not turn that warrant into an “accusation” warrant.

The issue of whether a person whose extradition is sought under a “conviction” EAW is entitled to a retrial is a different issue. It is clear from section 11(4) that the issue of a right to a retrial, dealt with in section 20, is to be considered by a judge after he has determined that other possible bars to extradition listed in section 11(1) are not available to bar the extradition of the person whose surrender is requested under a “conviction” EAW. In the present case it is common ground that the appellant was convicted in his absence and that his absence at the trial in Lille on 24 October 2011 was not deliberate. Despite Mr Cooper’s written submissions on the issue of what might happen if the appellant sought a retrial upon his surrender to the French court under the July 2013 EAW, at the hearing before us he did not attempt to argue that the appellant would not have a right of retrial upon surrender under that EAW. He could not do so in the light of this court’s decision in Zeneli v Public Prosecutor’s Office, Lyon, France [2014] EWHC 2239 (Admin), (“Zeneli”)a case in which Mr Cooper had appeared for the appellant Zeneli.

In Zeneli (in which Ouseley J gave the principal judgment with which Elias LJ agreed with some additional comments), the court recalled that section 20(8) sets out what ingredients must be present in order that the judge can conclude that the requested person would be entitled to a retrial (or on appeal a review amounting to a retrial) upon surrender. In addition, by virtue of section 21 of the EA, any retrial must be compatible with the requested person’s Article 6 rights to a fair trial: see [4] of Zeneli. The argument in Zeneli was that the requirements of section 20(8) and Article 6 would not be satisfied because, by virtue of Article 385-3 of the French Code of Criminal Procedure (“CPP”) and consistent decisions of the Cour de Cassation, a person who had been tried in his absence by a French court, but who was resident abroad, would not be able to challenge the procedures that had taken place during the investigation stage of a case, ie. before the trial itself had started. Thus such a person could not contend eg. that the investigation did not establish a prima facie case or that certain evidence should have been excluded.

That argument appeared hopeless in the light of the decision of the ECtHR in Abdelali v France (Application 43353/07: decision made definitive on 11 January 2013). The ECtHR held that the previous practice of the French courts, based on Article 385-3 of the CPP, which effectively prevented either “fugitives” or those living abroad from challenging the pre-trial investigatory stages of proceedings, was in breach of Article 6, which the ECtHR held must be applied to all stages of the criminal procedure, ie. both the investigation stage and the trial stage. Mr Cooper attempted unsuccessfully to persuade the court in Zeneli that in practice French courts were continuing to apply Article 385-3, despite the ECtHR’s decision in Abdelali and despite the decision of the Cour de Cassation (Criminal Chamber), post Abdelali, of Abdelmajid (decision rendered on 16 Janulary 2013) which adjusted the proper approach to Article 385-3 in the light of Abedelali.

Ouseley J therefore concluded that, on the basis of French law and practice as it now stood, section 20(8) would be complied with (see [18]) upon the surrender of a person who had been tried in absentia and that there was no tenable argument that there was a risk that, upon the requested person being surrendered, the retrial would not conform to the norms set by Abdelali: see [19] and [20]). Elias LJ stated that there was no evidence to suggest that the French courts would not apply the Convention and the principles established in Abdelali: see [33].

The July 2013 EAW states specifically that the appellant will be entitled to a retrial on the facts. This is confirmed in a statement dated 7 February 2014 of Caroline Fichel, Vice-Procureur of the Tribunal de Grande Instance de Lille. The statement also confirms that the Cour de Cassation has modified its jurisprudence to take account of the decision of the ECtHR in Abdelali. We are quite satisfied that this right of retrial satisfies the requirements of section 20(8) of the EA. Moreover, except perhaps in the rare cases where an “abuse of process” argument is successfully mounted, this court will take full cognisance of the processes of a court in the European Union which involves a trial in absentia and then the setting aside of a conviction in absentia. This will be so, even if those procedures may in some respects differ from the procedures in this jurisdiction: see Istanek v District Court of Preov, Czech Republic [2011] EWHC 1498 (Admin) and Federal Public Prosecutor, Brussels Belgium v Bartlett [2012] EWHC 2480 (Admin) at [33].

The result of all this is that the Forum Bar argument is not available to the appellant. Moreover, in accordance with the terms of the July 2013 EAW, which is a “conviction” EAW, the appellant will have a right to a retrial upon surrender which is compliant with both section 20(8) of the EA and the appellant’s Article 6 rights.

There is no point in considering whether the Forum Bar would have availed the appellant on the facts of this case. So we refuse to do so. We reject this first ground of appeal.

It is clear from statements of this court in R (Bermingham) v Director of the Serious Fraud Office [2007] QB 727 (“Bermingham”), R (Government of the USA) v Bow Street Magistrates’ Court [2007] 1 WLR 1157 (“Tollman”) and Symeou v Public Prosecutor’s Office at the Court of Appeals, Patras, Greece [2009] 1 WLR 2384 (“Symeou”) that both the Magistrates’ Court and the High Court on appeal retain an implied jurisdiction to refuse to extradite a requested person under Part 1 of the EA on the basis that there has been an abuse of the process of requesting extradition by the prosecuting authority or other emanation of the judicial authority seeking extradition. In Tollman (which involved extradition proceedings under both Parts 1 and 2 of the EA) and in Symeou (Part 1 extradition) the court emphasised that the abuse of the process has to be that of the prosecuting authority. But, given that, under the Framework Decision of 2002 on which Part 1 of the EA is based, all extradition requests must be made by a Judicial Authority, it seems to us that the court has an implied jurisdiction to consider whether there has been an abuse of the extradition process under Part 1 of the EA by a requesting judicial authority. We note, of course, the point made by Sir John Thomas, then President of the Queen’s Bench Division, at [49]-[50] of Swedish Prosecution Authority v Assange [2011] EWHC 2849 (Admin) that the acts of a prosecutor, in contradistinction to those of a judge, must be subjected to “rigorous scrutiny” because a prosecutor is (unlike a judge) a party to the criminal proceedings in the requesting state. That “rigorous scrutiny” must be applied when considering whether a prosecuting authority, acting as a Judicial Authority for the purposes of the extradition request, has conducted itself in a way that is an abuse of the extradition process. It is important to note that the abuse of process jurisdiction does not extend to considering misconduct or bad faith by the police of the requested state in the investigation of the case nor in the preparation of evidence for the trial in the requesting state: see [34] of Symeou.

However, whether it is the prosecuting authority’s behaviour or that of another entity that constitutes the Judicial Authority of the requesting state that is being criticised, it will only amount to an abuse of the extradition process if the statutory regime in the EA is being “usurped” (see [97] of Bermingham). It would, for example, be “usurped” by bad faith on the part of the Judicial Authority in the extradition proceedings or a deliberate manipulation of the extradition process. But any issues relating to the internal procedure of the requesting state are outside the implied abuse of process jurisdiction concerning extradition proceedings: see [36] of Symeou. Moreover, as is clear from the decision of this court in Federal Public Prosecutor, Brussels, Belgium v Bartlett [2012] EWHC 2480 (Admin), this “usurpation” of the statutory extradition regime has to result in the extradition being “unfair” and “unjust” to the requested person. In this regard it has also to be shown that, as a result of the “usurpation” of the statutory regime, the requested person will be unfairly prejudiced in his subsequent challenge to extradition in this country or unfairly prejudiced in the proceedings in the requesting country if surrendered there.

The first question, therefore, is whether there is anything in the actions of the Judicial Authority, in the form of the various people who issued the “accusation” EAW, the first “conviction” EAW and the July 2013 EAW, that amounts to a usurpation of the statutory regime of the EA. The “accusation” EAW had been issued on 17 March 2011, seven months before the trial in the Lille court in October 2011. At that time the “Forum Bar” ground for challenging extradition did not exist. There is not (and cannot be) any suggestion that the French Judicial Authorities were in any way responsible for the delay (from March to 12 October 2011) in the certification of the “accusation” EAW by SOCA, or its service on the appellant on 25 May 2012. Further, it is clear from the further information letter of 13 August 2012 sent by the Deputy Prosecutor Christophe Gourlaouen that the appellant could not be served with the official summons for his trial in the Lille court, given his absence from France. That letter also accepts that the appellant was not officially aware of the date of his trial. Article 412 of the French Code of Criminal Procedure, which we have already quoted above, makes it clear that a default conviction may be entered against someone who is absent from his trial. There is not and cannot be any suggestion of impropriety or irregularity by the French prosecuting authorities in proceeding as they did against the appellant before or at the trial on 24 October 2011.

Once the appellant had been convicted in his absence and the “accusation” EAW had rightly been discharged because of the failure to produce the appellant “as soon as practicable”, the only step that the French Judicial Authority could take if the appellant was to be surrendered was to issue a new “conviction” EAW. Mr Cooper’s argument that the French authorities should somehow have taken steps to set aside the appellant’s conviction is unrealistic. First, there is no evidence to suggest that this would be the proper step to take in terms of French procedural law. Secondly, at the time (May 2012) the Forum Bar provisions in the EA still did not exist and the French authorities could not be expected to have had a crystal ball to predict that the Forum Bar provisions would be enacted the following year or that they might be applicable to the appellant’s case. Thirdly, there was no challenge to the first “conviction” EAW either before the District Judge or this court on the basis that it constituted an abuse of process by the French Judicial Authority because the proper step to have taken by them was to set aside the conviction in absentia and then issue a further “accusation” EAW. If the appellant had been removed by the UK authorities within the proper time after Foskett J had dismissed the appeal from District Judge Purdy on 2 May 2013, there could have been no argument that the procedure was in some way improper. At that stage the Forum Bar provisions had still not come into force.

In those circumstances, once it was clear that there was to be an application to discharge the appellant on the ground that he had not been removed under the first “conviction” EAW within the requisite time, (once again, not the fault of the French Judicial Authority), it was natural, indeed inevitable, that the July 2013 “conviction” EAW should be issued to obtain the appellant’s surrender. The French Judicial Authority was, even then, unaware of the existence of the Forum Bar which was about to come into force. There is no evidence that could possibly lead to the conclusion that the course taken by the JA was to ensure that the appellant would not be able to take advantage of the new Forum Bar provisions.

None of the facts points to the French Judicial Authority “usurping” the legislative regime of the EA or misusing it in any way. Its actions were perfectly proper.

Mr Cooper laid great stress on the decision of this court in Federal Public Prosecutor, Brussels, Belgium v Bartlett [2012] EWHC 2480 (Admin). In that case an “accusation” EAW was issued and contested and the District Judge held that in respect of one offence (money laundering) there were insufficient details of the allegation in the EAW, so, in respect of that offence, the defendant was discharged. That decision was upheld on appeal by this court. It certified a point of law for the Supreme Court but the latter refused leave to appeal. In the meantime, the case against 16 co-accused of Mr Bartlett continued in Belgium. Mr Bartlett received a summons to attend the trial on 6 October 2010, but he did not respond to the summons because the proceedings for his extradition were still pending in the UK. Although the Belgian Public Prosecutor knew that the decision of the Supreme Court on whether to grant leave on the extradition matter was still awaited, she sought the trial of Mr Bartlett in absentia with the other defendants and the judge agreed to that course. Then, after the Supreme Court refused leave (so that Mr Bartlett could then have been removed under the “accusation” EAW), but before the conclusion of the trial, (then imminent), the Public Prosecutor asked SOCA to delay the removal of Mr Bartlett under the “accusation” EAW until the trial of all the defendants was concluded and judgment had been given. She explained that if Mr Bartlett were immediately surrendered to Belgium the trial against him and all the other defendants would have to be restarted and that could not be done because it would lead to the release of some (at least) of those defendants as they had been on remand for such a long time awaiting trial. Ouseley J extended the time for extradition under the “accusation” EAW.

The trial in Belgium was then concluded and judgment given. The Public Prosecutor then issued a “conviction” EAW seeking the surrender of Mr Bartlett on the basis of the judgment of the court against him in absentia which had sentenced him to 5 years imprisonment for participation in a criminal organisation and money laundering, The latter offence was the one which the District Judge had said was not sufficiently particularised in the “accusation” EAW in the first place. The “accusation” EAW was then withdrawn by the Belgian JA and Mr Bartlett was arrested under the “conviction” EAW. That was then challenged on the grounds of (a) abuse of process; and (b) invalidity of the EAW. The District Judge found that there had been an abuse of process and discharged Mr Bartlett. The Public Prosecutor appealed.

This court dismissed the appeal. In the judgment of the court, which was given by Sir John Thomas PQBD, it found that the key facts were: (1) that the Public Prosecutor deliberately decided to go ahead with the trial against Mr Bartlett on all aspects, including the money laundering charge on which he had been discharged in the extradition proceedings, in circumstances where she knew that there was still a challenge to his extradition and, indeed, knew that the objection to his extradition on the money laundering charge was still valid. (2) If Mr Bartlett was returned to Belgium under the “conviction” EAW, (as opposed to under an “accusation” EAW) he would suffer prejudice because he could be proceeded against in respect of the money laundering charge for which he had been discharged in the UK extradition proceedings. (3) He would also suffer prejudice because he would be remanded in custody without the possibility of applying for bail until the Belgian court had set aside his conviction, which would not be “for some time”, whereas if he had been returned to Belgium under the “accusation” EAW he would have been entitled to bail. (4) Ouseley J, who had ordered the delay in Mr Bartlett’s return under the “accusation” EAW, had not been alerted to this prejudice. The court accordingly held that it was “obviously unfair and unjust” for the Public Prosecutor to use Mr Bartlett’s conviction in absentia to prejudice him in the way described: see [34]. Moreover, the Public Prosecutor’s decision to issue the “conviction” EAW was a “tactical decision” of a party to the Belgian criminal proceedings, not a decision “…taken fairly and impartially by a judge in those proceedings in the interests of justice”: [37].

None of those considerations about prejudice to the requested person arise in the present case. The only prejudice point that might conceivably be arguable is in relation to bail, but even that is very weak. The July 2013 EAW states specifically that the appellant will have the right to go before the Judge of Freedoms and Detention who will decide whether or not to grant bail. We are entitled to assume that the French judge will take proper account of the circumstances under which the appellant was convicted in absentia and the conviction and sentence were imposed “by default”. On the other hand, the judge will be entitled to take account of the fact that the appellant has been convicted of an offence in England, even though the overlap between that offence and the extradition offences is not sufficiently significant to bring double-jeopardy into play.

Mr Cooper also drew our attention to the decision of Keith J in Campbell v Public Prosecutor of the Tribunal de Grande Instance, St Malo, France [2013] EWHC 1288 (Admin). The facts have a superficial similarity with the present case. An “accusation” warrant was issued but not certified or served; Mr Campbell was tried, convicted and sentenced in absentia without having been notified of the French proceedings; a “conviction” EAW was then issued, certified and served and Mr Campbell was arrested. He challenged the “conviction” EAW on the basis that its issue was an abuse of process. Keith J held, at [10], that Mr Campbell’s position was no different from that of Mr Bartlett, because both had been convicted in their absence and both had “a valid reason for being absent”, in Mr Campbell’s case because he had not been served with notice of the French proceedings. Keith J accepted that there had not been any deliberate manipulation of the extradition process by the French judicial authority, but “the fact is that Mr Campbell’s extradition is now being sought on the sort of warrant which Bartlett held was inappropriate”. Therefore Mr Campbell’s extradition would be an abuse of process if, as a result of his extradition being sought on the second (“conviction”) EAW rather than the first (“accusation”) EAW, “he was being unfairly prejudiced in this country in his attempts to resist his extradition, or will be unfairly prejudiced in France in his trial or in the events leading up to his trial”: [11].

Keith J went on to consider arguments that Mr Campbell would suffer prejudice in the French proceedings. Some he rejected and others he did not decide. He then considered arguments that Mr Campbell had been prejudiced in the extradition proceedings in relation to the second, “conviction”, EAW. It was argued that Mr Campbell was prejudiced because if his extradition had been sought on the original, “accusation” warrant, he would have been able to argue, pursuant to section 14 of the EA, that it would have been unjust or oppressive to extradite him by reason of the passage of time since the offence (alleged to have been committed in 2005) whereas, if he was to be extradited under the second, “conviction” EAW, he could only argue “passage of time” since the date of his conviction, viz. November 2009. Keith J held that he had to examine the “passage of time” issue as from the earlier date and he concluded that the delay since 2005 was inordinate and unexplained, which suggested “a degree of culpability on the part of the French authorities”. If Mr Campbell’s extradition had now been sought under the original “accusation” warrant, the delay would have lead to injustice and oppression; but it would not be if the relevant period had been since November 2009. Keith J held that this difference meant “that it would be an abuse of the extradition process for Mr Campbell to be extradited now”: see [30].

We have to say that, with great respect to Keith J, we are unable to agree with the approach to “abuse of process” in extradition matters which he adopted in that case. First, the situation of Mr Campbell was not equivalent to that of Mr Bartlett. In the latter’s case, as is clear from the conclusions of this court, the Belgian authorities had deliberately manipulated the extradition process. That was not so in Mr Campbell’s case. Secondly, the fact that Mr Campbell had been tried in absentia, even when he was not deliberately absent from the trial, is not sufficient, in itself, to conclude that the second, “conviction” EAW was “inappropriate”, let alone that there has been an abuse of the extradition process. There will be cases where requested persons are tried in absentia where they have not deliberately absented themselves from the trial and they are then convicted in absentia. A “conviction” EAW issued after a trial in absentia will be “appropriate” (even if the requested person did not deliberately absent himself from the trial) provided that it fulfils the requirements of section 2(5) and 2(6), the offence is an “extradition offence”, no other bars to extradition exist, the requirements of section 20(5) and (8) of the EA are fulfilled and any “retrial” would be Article 6 compliant. Thirdly, therefore, the implied conclusion of Keith J that there had been an abuse of the extradition process by the French judicial authority was, with respect, wrong. There was no bad faith; there was no manipulation of the extradition process, deliberate or otherwise; nor was there any “usurpation” of the statutory regime.

In disagreeing with Keith J about his application of the decision in Bartlett to the facts of Campbell, we emphasise that the critical feature in Bartlettwas the way that the Belgian Public Prosecutor had engaged in the extradition proceedings in the United Kingdom. The judgment in Bartlett at [35] explains this court’s reasoning in clear terms:

“In our view, it would in those circumstances be a denial of justice to return Mr Bartlett now to Belgium. His return had been delayed under the accusation EAW to assist the Belgian Public Prosecutor. The Administrative Court decided to do so on the basis there would be no prejudice to him. His return now to Belgium under the conviction EAW would result in the prejudice to him which we have described and which would not have arisen under the accusation EAW.”

A hearing had taken place before Ouseley J in which he was allowed by the Public Prosecutor to conclude that a delay would cause Mr. Bartlett no prejudice, but that was not the case. On the strength of the incomplete and therefore misleading information that he was given, Ouseley J granted a delay at the request of the Public Prosecutor. Had he not done so, Mr. Bartlett would have been present at the trial which was then concluding. He could not have been convicted in absentia. In those circumstances this court was entitled to conclude that extradition pursuant to the conviction EAW would be an abuse of the process of the United Kingdom court, because the conviction on which that relied was only possible as a result of an order of the Administrative Court which the Public Prosecutor had secured on incomplete and therefore misleading information.

None of these factors is present in this case. There has been no “usurpation” of the EA statutory regime, nor has its integrity been impugned by virtue of the issue of the July 2013 “conviction” EAW. In any event there is no prejudice to the appellant. The DJ’s conclusion was correct. We therefore reject the second ground of appeal.

We wish to emphasise that the circumstances in which the court will consider exercising its implied “abuse of process” jurisdiction in extradition cases are very limited. It will not do so if, first, other bars to extradition are available, because it is a residual, implied jurisdiction. Secondly, the court will only exercise the jurisdiction if it is satisfied, on cogent evidence, that the Judicial Authority concerned has acted in such a way as to “usurp” the statutory regime of the EA or its integrity has been impugned. We say “cogent evidence” because, in the context of the European Arrest Warrant, the UK courts will start from the premise, as set out in the Framework Decision of 2002, that there must be mutual trust between Judicial Authorities, although we accept that when the emanation of the Judicial Authority concerned is a prosecuting authority, the UK court is entitled to examine its actions with “rigorous scrutiny”. Thirdly, the court has to be satisfied that the abuse of process will cause prejudice to the requested person, either in the extradition process in this country or in the requesting state if he is surrendered.

The third ground of challenge advanced on behalf of the appellant is that the DJ erred in concluding that the appellant’s extradition would not be a disproportionate interference with his Article 8 rights and those of Mrs. Belbin. The terms of Article 8 of the ECHR are very well known and we do not need to set them out yet again.

Plainly, an order which results in the appellant being surrendered with the result that he may be required to serve a substantial sentence of imprisonment imposed by the French court must involve an interference with his (and his wife’s) Article 8 rights. The DJ accepted this. The DJ posed the correct test of law, namely: “…is this request given the gravity of the conduct and the treaty obligation to extradite nevertheless displaced by it being disproportionate so to do given the effect on the Belbin family unit most particularly but not exclusively Kim Belbin.”

The DJ then considered the facts concisely:

“The complaint is serious with a competent French court imposing a 7 year term albeit absent any mitigation. Douglas Belbin is placed as the principal and others tried and convicted received terms of up to 5 years. Even allowing for the unhappy and protracted history of these extradition proceedings this is a top end serious crime for which, to a large degree, even the opponents of the EAW scheme accept it was introduced to enforce. In these circumstances although not unsympathetic to Mrs. Kim Belbin’s hapless position – far from it – to my mind the law allows but one conclusion on these facts and that is to reject the challenge.”

We think that it is important to analyse how this court should approach an appeal that the “appropriate judge” erred in his conclusion on the issue of “proportionality” when deciding whether an interference with a defendant’s Article 8 rights is a ground for barring extradition. Section 26(3) of the EA stipulates that an appeal from an extradition order can be brought on a question of fact or law. Ultimately, questions of “proportionality” under Article 8 involve the court making a value-judgment on the basis of its findings of fact and by applying the well-established law as set out in the two Supreme Court decisions of Norris v. USA (No.2) [2010] UKSC 9 [2010] 2 AC 487 and HH v. Deputy Prosecutor of the Italian Republic, Genoa [2012] UKSC 25 [2013] 1 AC 338. Once again, these decisions are so well known that we think that there is no need to quote extensively from them once more.

How should this court, as an appellate court, consider an appeal in which the District Judge’s conclusion on the Article 8 “proportionality” issue is challenged? We respectfully adopt the analysis of Beatson LJ in [66] of Dunham v. United States[2014] EWHC 334 (Admin), where he stated:

“I add one observation about the principles of finality in legal proceedings and the recognition that the impact of extradition on the rights of a Requested Person under the Human Rights Act 1998 may not remain constant, and the tension between them to which Mr Justice Simon has referred in §§14–18. When the time comes to resolve that tension, the fact that this court is exercising an appellate jurisdiction under s.103 of the Extradition Act 2003  may be relevant to the way it is done. In Re B (A Child) (FC)[2013] UKSC 33 a majority of the Supreme Court held that an appellate court should treat the determination of the proportionality of an interference with the rights protected by the ECHR as an appellate exercise and not a fresh determination of necessity or proportionality, notwithstanding the duty of the court as a public body to consider human rights, see in particular [35]-[36], [83]-[85] and [136]. Lady Hale and Lord Kerr dissented ibid, at [119], [121] and [205].”

In Re B (A Child), Lord Wilson JSC stated, at [36]:

“Appellate courts must discharge their domestic duty under section 6(1) [of the Human Rights Act 1998]; but the manner in which they seek to do so is a matter for Parliament or for rules made under its authority. No one suggests, for example, that the appellate court should itself rehear all the evidence relevant to a Convention issue. On any view it will adopt much of the relevant material from the survey conducted by the trial judge. Civil appellate courts other than the Supreme Court operate in accordance with CPR r 52.11 , made pursuant to the Civil Procedure Act 1997. Paragraph (1) of the rule provides that

“every appeal will be limited to a review of the decision of the lower court unless … (b) the court considers that in the circumstances of an individual appeal it would be in the interests of justice to hold a re-hearing.”

Such courts should in my view seek to discharge their duty under section 6 of the 1998 Act by determining a Convention issue in accordance with this paragraph.”

In our view Beatson LJ was correct in suggesting that it is the “review” approach that should be taken by this court when it is considering an appeal from the conclusion of the District Judge on an issue of Article 8 “proportionality” in an extradition case. Under section 27(3) of the EA this court can only allow an appeal if it concludes that the “appropriate judge” should have decided a question before him at the extradition hearing differently. In this context the relevant “question” is whether the extradition of the requested person would be disproportionate to the interference it would have with his (and, if relevant, his family’s) Article 8 rights. If, as we believe, the correct approach on appeal is one of review, then we think this court should not interfere simply because it takes a different view overall of the value-judgment that the District Judge has made or even the weight that he has attached to one or more individual factors which he took into account in reaching that overall value-judgment. In our judgment, generally speaking and in cases where no question of “fresh evidence” arises on an appeal on “proportionality”, a successful challenge can only be mounted if it is demonstrated, on review, that the judge below; (i) misapplied the well established legal principles, or (ii) made a relevant finding of fact that no reasonable judge could have reached on the evidence, which had a material effect on the value-judgment, or (iii) failed to take into account a relevant fact or factor, or took into account an irrelevant fact or factor, or (iv) reached a conclusion overall that was irrational or perverse.

In his skeleton argument Mr. Cooper does not identify any error of law which he alleges that the DJ made. Nor did he advance any in oral argument before us. There was no disputed question of fact for the DJ to decide, and so there was therefore none which he “ought to have decided differently”. The DJ heard oral evidence from the appellant and Mrs. Belbin and it is clear he had firmly in mind the extremely distressing nature of her condition. In addition to their oral evidence, the DJ had undated statements from both of the witnesses which, like him we have read.

In the absence of any error of law or fact, and given that Mr Cooper does not allege that the DJ failed to take a relevant factor into account or took into account an irrelevant one, there is no basis on which to mount an appeal from the DJ’s overall value-judgment. He balanced the public interest against the Article 8 rights of Mrs. Belbin. He observed that the allegations against the appellant in this case amount to “top end serious crime”, which assessment was fully justified. If the appellant had been charged with the same offences in the UK, a custodial sentence would almost inevitably have been imposed by the Crown Court, despite the hardship for the appellant’s wife and family that would have followed. The DJ was entitled to regard that as a decisive factor, in accordance with statements of the Supreme Court in HH: see in particular the remarks of Lord Judge CJ at [132]. In addition the DJ had in mind the delay which has occurred in this case, which he described as “the unhappy and protracted history of these extradition proceedings”, but felt unable to give Mrs. Belbin’s Article 8 rights priority over the public interest in extradition. He was not only entitled to do this, but also, in our judgment, right to do so.

During the hearing before us it became clear that the appellant sought to rely on fresh evidence which was admitted without objection from the respondent JA. This consisted of further statements from the appellant and Mrs. Belbin which were made after the hearing before the DJ. Mrs. Belbin’s condition is serious and deteriorating. She depends heavily on her husband for care and they have been married since 1981. Her need for care will increase as her condition worsens, and she will suffer hardship should he serve a sentence of imprisonment. She is entitled to considerable sympathy.

The new evidence does not change the very clear picture which was presented to the DJ. This new evidence is not “decisive”. It would not have resulted in the DJ deciding the “proportionality” question before him differently, so that the new evidence does not satisfy the condition in section 27(4)(b) of the EA. In summary, on any reasonable view of the facts, the DJ’s decision of “proportionality” cannot be challenged. Accordingly, as neither the conditions of section 27(3) or (4) of the EA are fulfilled, the appeal on the Article 8 “proportionality” issue must fail.

We reject all three grounds of appeal, so the appeal overall must be dismissed.