BS v Court of First Instance Brussels (Belgium)

The Appellant, BS, appeals pursuant to section 26 of the Extradition Act 2003 (“EA 2003”) against the decision of Senior District Judge Howard Riddle of the 19^th September 2016 ordering the extradition of the Appellant to Belgium. The Court of First Instance in Brussels, Belgium (“the Respondent”) seeks the return of the Appellant in relation to an accusation European Arrest Warrant (“EAW”) issued on the 12^th November 2013 and certified by the National Crime Agency on 30^th October 2014.

The Belgian Court seeks the return of the Appellant in order that she may stand trial for an offence categorised as “illicit trafficking in narcotic drugs and psychotropic substances” on the Framework List of Offences. The Appellant was arrested pursuant to the EAW on the 14^th March 2015 and she is presently remanded upon conditional bail.

The Appellant raises a single ground of appeal:

“1.

That, pursuant to section 27(3) of the Act, the Senior District Judge ought to have decided differently the question of whether extradition would be compatible with the Appellant’s and her family’s rights under Article 8 of the European Convention of Human Rights. Had he done so he would have been required to order the Appellant’s discharge.”

The Appellant contends that to enable this Court to determine the appeal it is necessary to make a reference to the Court of Justice of the European Union (“CJEU”) on: (i) whether Judicial Authorities must undertake a proportionality check prior to issuing a European Arrest Warrant; and (ii), whether there is a continuing duty to review the proportionality of seeking extradition throughout proceedings. The reference would be made pursuant to Article 267 of the Treaty on the Functioning of the European Union (“TFEU”).

There is an accusation for a single offence of importing 2.160kg of cocaine. The allegation before the Belgian Court is that the Appellant recruited individuals, on behalf of her husband, to import drugs. One of these individuals, Leva Volkova, was caught with 2.160kg of cocaine at an airport for which she was going to be paid £4,000 for her involvement. The maximum sentence for this offence under Belgium Law is 15 years imprisonment. The Appellant was arrested under the EAW on the 14^th March 2015 in London. She identified herself as BS and she gave her date of birth. She resided at that address with her husband, a Nigerian national referred to in the EAW. At that time she had a child who was less than one year old. When the content of the EAW was explained to her she denied that she had ever been present in Belgium. Her Lithuanian passport and identity card were handed to the police.

The procedure which has been adopted both in this jurisdiction and in Belgium is relevant to the issues arising and it is necessary to set it out in some detail. The matter first came before the Senior District Judge on the 16^th September 2015. The Appellant provided a proof of evidence and was cross examined upon it. In that evidence she stated that she was born in Lithuania on the 1^st March 1993. She had a step-sister. She came to live in London when she was 18 but had visited the UK previously to visit her father, aunt and step-sister. When she arrived in London she resided briefly with her father but subsequently she lived with her aunt in Gravesend and then with her step-sister in Romford. Afterwards, she met her husband, VO. He is a Nigerian national who had resided in the United Kingdom since January 2011. The couple married in November 2012. Because this is a comparatively recent marriage VO is ineligible for Indefinite Leave to Remain in the United Kingdom. There are two children of the marriage. V was born on the 6^th September 2014 and B was born on the 21^st June 2016.

In evidence the Appellant explained that, if extradited, her husband would struggle to look after V, her son. She explained that her mother would, however, be prepared to look after the child. Her step-sister was unable to assist as she had children of her own and she worked. She explained that she had not worked since the commencement of the extradition proceedings but she and her husband had never struggled for money. She had never visited Belgium and during the extradition proceedings she suffered a miscarriage. She had no convictions in this jurisdiction. VO was also called to give evidence and he was cross examined. He explained that he was no longer working because he lacked a passport or visa. He had no ties to Lithuania. He arrived in the United Kingdom as a student and if his wife was extradited his immigration status becomes precarious.

A report was prepared by Dr Joe Hickey, a clinical psychologist, who was called to give evidence setting out the potential effect of extradition on the children of the marriage. He concluded that V would suffer serious harmful consequences to his long-term emotional and relational well being as a consequence of the loss he would experience in the event of separation from his mother. Dr Hickey also expressed the view that placing the Appellant and her child in a mother and baby unit, in prison, would entail an immediate and traumatic separation of the child from his father and a high likelihood of care from a depressed mother. He opined that this would increase the risk of serious emotional, relational and mental health problems in later childhood and adulthood.

At the culmination of the hearing, the Judge decided that less coercive measures, pursuant to section 21B EA 2003, should be explored as well as the availability of mother and baby units in custody.

On 22^nd September 2015 a list of questions, agreed by all parties and the Court, was sent to the Belgian Judicial Authority. These questions focused upon the existence of mother and baby facilities in Belgian prisons and also upon the possibility of less coercive measures. Question 4 as posed indicated that a task of the executing Court was to consider the proportionality of extradition which would include “whether less coercive measures, as opposed to extradition, could be taken”. The question referred to the fact that the Appellant had a young child (she had but one child at that stage). The Judicial Authority was asked what less coercive measures, such as monitoring of bail, had been considered. Question 4(ii) was in these terms: “If you consider that a less coercive measure would not be appropriate in this case, can you briefly explain why”. Question 5 questioned whether consideration had been given for a Requested person to communicate with the Judicial Authority by alternative means e.g. video link. None of the questions posed asked directly whether the Belgian authorities accepted that proportionality was relevant or whether it had addressed proportionality at the point of issue of the EAW or subsequently.

A short and composite answer was given to the questions in an email dated 19^th October sent by the Belgian Police. It was in the following terms:

“Concerning the case of [BS] I had a meeting with the Judge and Prosecutor who are handling the case. For the moment we are examining the possibilities of handling the hearing of [BS] with a video-conference or a Rogatory instruction with Belgian Police Officers present. We all agree that it would not be an ideal situation to extradite [BS] with or without her baby. We will let you know as soon as possible what will be the decision of magistrate concerning this case”.

This was the only answer provided by the Judicial Authority to the questions posed. It highlights: that there had (at that time) been no judicial decision of the possibility of less coercive measures; that they recognised the difficult position that the Appellant was in; and that they were considering the possibility of alternative measures, such as a video conference.

Between October 2015 and July 2016 a series of hearings were convened and then adjourned in this jurisdiction and no substantial progress was made in relation to the possibility of less coercive measures. It appears from chronologies provided to this Court by the parties that various attempts were made to arrange a video link so that an interview with the Appellant could occur. However it proved impossible to arrange suitable dates. It is noteworthy that at least part of the responsibility for this is attributable to delays by the Appellant’s representatives in responding to requests for dates.

On 27^th July 2016 a Senior Crown Prosecutor in the CPS passed on to the Appellant’s representatives a response from the Judicial Authority in Belgium which was in the following terms:

“Because of the delay in the handling of his extradition, the public prosecutor’s office in Halle-Vilvoorde decided not to await the possible extradition or [BS] and to consider taking the matter directly to court. In this case [BS] will be summonsed to appeal in court. She will be informed of this in due course.”

No summons has however been issued and the Judicial Authority persists in the EAW.

I turn now to the judgment below which contains a careful and thorough analysis of the facts and the law.

Law: The Judge set out a detailed review of the relevant case law. He cited Celinski and ors v Slovakian Judicial Authority [2015] EWHC 1274 (Admin) which, in paragraphs [5] – [17], sets out the five principal considerations which were to be applied. First, an analysis of extradition entailed a consideration of the interests of children. Second, the public interest in ensuring that extradition arrangements were honoured was “very high” as was the public interest in discouraging persons seeing the UK as a state willing to accept fugitives from justice. Third, decisions of the Judicial Authority of Member State making a request should be accorded a proper degree of mutual confidence and respect. Fourth, decisions of whether to prosecute an offender in England and Wales were on constitutional principles ordinarily matters for the independent decision of the prosecutor save in limited and defined circumstances. Challenges to those decisions were generally permissible in the pre-trial criminal proceedings or in the trial itself. The independence of prosecutorial decisions was relevant when considering matters under Article 8. Fifth, factors mitigating the gravity of an offence or of culpability would ordinarily be matters that the Court in the requesting State would take into consideration and it was therefore important in an accusation EAW for that to be taken into account. A Judge must bear in mind that “personal factors relating to family life” which would be brought into the balance under Article 8 would also form part of the matters considered by the Court in the requesting State in the event of conviction.

The Judge also cited from the judgments of the Supreme Court in Norris v Government of the United States of America (2) [2010] UKSC 9 (“Norris”), where the Court (at paragraph [56]) stated that it was only if some “quite exceptionally compelling feature, or combination of features, is present that interference with family life consequent upon extradition will be other than proportionate to the objective that extradition serves”.

The Judge also referred to HH v Deputy Prosecutor of the Italian Republic, Genoa [2012] UKSC 25 (“HH”), where the Supreme Court drew various conclusions from Norris. At paragraph [8] the Court stated:

“We can, therefore, draw the following conclusions from Norris:

(1)

There may be a closer analogy between extradition and the domestic criminal process than between extradition and deportation or expulsion, but the court has still to examine carefully the way in which it will interfere with family life.

(2)

There is no test of exceptionality in either context.

(3)

The question is always whether the interference with the private and family lives of the extraditee and other members of his family is outweighed by the public interest in extradition.

(4)

There is a constant and weighty public interest in extradition: that people accused of crimes should be brought to trial; that people convicted of crimes should serve their sentences; that the United Kingdom should honour its treaty obligations to other countries; and that there should be no "safe havens" to which either can flee in the belief that they will not be sent back.

(5)

That public interest will always carry great weight, but the weight to be attached to it in the particular case does vary according to the nature and seriousness of the crime or crimes involved.

(6)

The delay since the crimes were committed may both diminish the weight to be attached to the public interest and increase the impact upon private and family life.

(7)

Hence it is likely that the public interest in extradition will outweigh the article 8 rights of the family unless the consequences of the interference with family life will be exceptionally severe.”

In paragraph [83] of HH the Court stated that the cases likely to require further investigation were those where the extradition of both parents, or of the sole or primary carer, was sought in which case the Court would have to have information: about the likely effect upon the individual child or children involved if the extradition was to proceed; about the arrangements which would be made for their care whilst the parent was away; about the availability of measures to limit the effects of separation in the requesting State, such as mother and baby units, house arrest as an alternative to prison, prison visits, telephone calls and face-time over the telephone or internet; and about the availability of alternative measures such as prosecution in the United Kingdom or early repatriation.

The expert evidence relating to the children: The Judge addresses the positon of the children at length. He cited extensively from the report of Dr Hickey, which set out the potential effect of extradition upon V. His expert assessment of impact was based on “general theory and experience” and not any “special reason to be concerned about this particular child”. The Judge recorded that Dr Hickey had confirmed in oral evidence that it was impossible to say exactly how the harmful consequences of separation of V from his mother would manifest themselves. But in general the greater the degree of contact between both a child and a parent and as between the parents themselves the better: “face to face contact is better than contact at a distance”.

The Judge recorded also the position of the new baby, B, conceived and born during the currency of the extradition proceedings. The Judge recorded the evidence of a further expert, Dr Grange, who expressed a generic overview of the impact of separation upon the infant. The Judge accepted that separation of infant from mother was best avoided and could have far reaching consequences, particularly in the early years when secure attachment was an essential part of a child’s healthy development. The Judge accepted also that much of what Dr Hickey said about V, applied to B who was even younger than was V at the time of assessment.

The interests of the children in law: The Judge then turned to consider the interests of the children: It was “… essential for the Court to consider the interests of the children. Their interests are a primary consideration, although not always the only primary consideration and not necessarily paramount consideration” (ibid, Judgment page [11]). If extradition was ordered the future of the children was uncertain. The mother was the primary carer. But he did not assume, as did the experts, that the mother would necessarily spend many years in custody in Belgium. It was possible that she would be acquitted and released or that the Belgian Courts would impose a shorter sentence than would be the case in this jurisdiction, perhaps taking into account the position of the children. He acknowledged, equally, that conversely the Appellant could be convicted and spend a lengthy period of time in custody.

In relation to options being considered for the care of the children, he considered: (i) the position of the father as a potential carer; (ii) the possibility that V and B would reside with their maternal grandmother in Lithuania; and (iii), the possibility of the children being accommodated, at least temporarily, with their mother in a baby and child unit in prison. The Judge observed:

“I am satisfied that in ordinary circumstances that the longer that [V] spends with his mother in the early years of his life, the better that will be for his attachment and for his development. The same applies to [B]. Only more so in view of his infancy. Everything said by Dr Hickey about [V] applies to [B]. He is only three months old, and at a particularly vulnerable stage of his development. Dr Grange confirms the well known general principles about the harm of separation, the risk of ‘insecure attachment’ and difficulties in later life. I accept his generic information. I accept the views of mother that on extradition the best placement is with her mother (subject to any assessment by social services).

Another possibility is that they both remain with father, here or in Nigeria. The long delays in this case have not clarified the position. I do not believe further delay will make the position any clearer. I am confident that when the time comes, proper arrangements will be made, and that further delays for further inquiries simply do not help. If extradition is ordered, social services will want to explore the alternatives, and see what is best.

Whatever the arrangements for the children, they will be a poor second best for care by mother. I accept the learning that children are often damaged by separation, and the younger the child the greater the harm. Moreover, the most likely outcome is also separation from father, which is sad for him and for the children. Father may lose the right to remain here, but that is for another Tribunal to decide.

In summary, extradition has serious consequences, probably harmful for two small children and impacting upon the whole family.”

The extradition balance sheet: The Judge then set out the extradition “balance sheet”, setting factors in favour of extradition against factors against extradition. His weighing exercise was articulated in the following terms:

“Factors in favour of extradition

1.

The public interest in ensuring that extradition arrangements are honoured is very high.

2.

So too is the public interest in discoursing persons seeing the UK as a state willing to accept fugitives from justice. While there is no suggestion that [BS] fled Belgium, nevertheless she is looking to this country to avoid her facing justice there.

3.

It is important to have confidence in our judicial colleagues in Belgium. They will consider the interests of the children when considering bail, when considering sentence if there is a conviction, and if custody is imposed whether the children should be accommodated with mother.

4.

This is a very serious allegation.

5.

This defendant’s ties to this country are slim, in the sense that she came here about four years ago, is not married to a national of the UK, and appears to have family ties in her native Lithuania.

Factors against extradition

1.

[V] is two years old. He will suffer, as do all children, if he is separated from mother. The evidence of Dr Hickey shows the harm he may suffer. I have considered the position in more detail above. There is no evidence of any current health problem.

2.

[B] is three months old. The problems with separation are well-known and have been set out by Dr Grange. There is no evidence that [B] is anything other than a healthy baby.

3.

[VO’s] right to remain here is precarious and he may lose it if his wife is extradited. Even if he remains his family life will be badly disrupted and he may lose contact with his children. This will be hugely distressing for him.

4.

The defendant faces separation from her children. She has been in this country for four years.

5.

The future for the children is uncertain. There are a number of options, all less favourable than being cared for by mother, but including care by maternal grandmother.”

Article 8 ECHR / Comity: The Judge placed the above analysis into the context of Article 8 ECHR. If convicted in the United Kingdom the Appellant would almost certainly receive a lengthy custodial sentence notwithstanding Article 8 and the position of V and B. The Judge cited the observation of Lord Judge in HH (ibid) who considered the proportionality of the imposition of a custodial sentence on the carer of a child who would be adversely affected thereby:

“When resistance to extradition is advanced, as in effect it is in each of these appeals, on the basis of the Article 8 entitlements of dependent children and the interests of society and their welfare, should only be in very rare cases that extradition may properly be avoided if, given the same broadly similar facts, and after making proportionate allowance as we do for the interests of dependent children, the sentencing courts would nevertheless be likely to impose an immediate custodial sentence: any other approach would be inconsistent with the principles of international comity.”

The Judge noted the considerable experience that judges had of sentencing mothers with young children and families to custody when convicted of drug trafficking. Such defendants were often only couriers, poorly educated and seeking to raise money for their family who lived in difficult circumstances in other, poorer, countries. Often the defendants were “drug mules”; their “plight is often sad”. Yet significant custodial sentences would still be passed, even for a mother of dependent children. In this jurisdiction the fact of being a sole or primary carer for a dependent relative would be a factor relevant to personal mitigation.

The Judge accepted that Article 8 applied to children of defendants sentenced in this jurisdiction as well as those sentenced abroad. However: “… the obvious and well-founded concerns the children simply cannot outweigh the public interest in appropriate sentencing for drug smuggling offences, both here and in other countries”. International comity was not the exclusive touchstone of the Judge’s reasoning. He was also “sure” that the Belgian Authorities would give high priority to the welfare of the children if they accompanied their mother.

Recognising that the Belgian Authorities and Courts would give full weight to the interests of the child under Article 8 the Judge was satisfied that international comity militated in favour of ordering extradition. The Courts in this jurisdiction were, in short, no different to the Courts in Belgium.

For these reasons the challenge under Article 8 failed.

Less coercive measures / abuse of process: Finally, the Judge considered an argument advanced under the heading of “abuse of process”. In this connection it was argued that in maintaining the request for extradition in circumstances where the Judicial Authority had stated that they would, instead, summons the Appellant to appear in Court was an abuse of process. The Judge referred to the explanatory message given by the Belgian Authorities which was to the effect that delays in the handling of the extradition were compelling the Prosecution to take the matter “directly to Court” in which circumstances the Appellant would be summoned to appear in Court and would be informed of this in due course. The Judge observed that the Judicial Authority no longer consented to an interview pursuant to section 21B EA 2003. He stated:

“The Belgian Authorities are right that there has been a delay. Frankly, it has been far too long. Attempts to arrange an interview here have failed, not necessarily true of anybodies fault. With the benefit of hindsight (and more recent UK case law), it was a mistake to adjourn for this purpose last October. Having had sight of the questions as well as the answers, it is clear that Belgium maintains this request. Because of the delay, it is entirely reasonable to seek also an alternative method of prosecution. Extradition for prosecution is the preferred method of proceeding. There is no bad faith and no manipulation of the process. The abuse argument fails.”

In the course of oral argument the issue crystallised and it is helpful therefore to start by spelling out what is not in dispute.

First, there is no complaint about the approach of the Judge to comity. It is accepted that in his careful analysis the Judge properly balanced the position of the Appellant and her children in this jurisdiction and in Belgium. It was accepted that the relevant counterfactual was how the Appellant would be treated here in criminal proceedings relative to how she would be treated in Belgium. And as to this it is acknowledged that if she were convicted of organising drugs mules here she could expect a significant custodial sentence notwithstanding her position as a mother of very young children. Equally it is not suggested that in the ordinary course the Belgian Courts would fail to attribute substantial weight to the interests of the children in the context of criminal proceedings there, yet it is also acknowledged that she could expect a significant custodial sentence if convicted, again, notwithstanding the plight of the children.

Second, it is accepted that when the EAW was first issued it was a proportionate act. This was because the offence in question was a very serious one and at that point in time the Appellant had no children so that she had no Article 8 right that she could then invoke contingent upon the rights and interests of dependent children.

Third, it is common ground that in Belgium the case as it progresses to trial is under the supervision of the Courts and that the Belgian Courts are under a duty to ensure that their processes are compliant with, inter alia, Article 8 ECHR. In this regard it is also accepted that the Courts in Belgium are both aware of their duties under the ECHR and will, if called upon to act, seek to apply the Convention, including Article 8, in good faith. No case has been advanced that conditions of detention in Belgium violate Article 3 ECHR (degrading and inhuman treatment). It is well established that it is only in exceptional circumstances that the principle of mutual trust and confidence will be set aside in favour of a more rigorous scrutiny by the executing court of the position of the requesting state. This typically arises in cases where the executing state has “evidence of a real risk” of an ECHR violation by the requesting state such as evidence of an “objective, reliable, specific and properly updated nature” on inhuman and degrading detention facilities in the requesting state: See e.g. Case C404/15 and C-659/15 PPU Criminal Proceedings against Aranyosi (5^th April 2016) (“Aranyosi”) paragraphs [82] – [96]; and Opinion 2/13 EU:C:2014:2454 (ECJ).

Fourth, no case is advanced on the basis of the rights of VO either as a father to the children or as the husband and partner of the Appellant.

The complaint is therefore a narrow one but one which I accept has potentially significant personal consequences for both the Appellant and for her children. It is said that the Judge below erred in his analysis of the application of the proportionality test because it should have been apparent from the documents before the Court that whilst the Belgian authorities recognised (i) that extraditing the Appellant would have serious consequences for her and her children and (ii) that a summons requiring her to attend would be less coercive and more proportionate; nonetheless (iii) the authorities maintained the EAW without giving any or any adequate reasons for so doing.

The “serious consequences” referred to above are the real possibility that if extradited now the Appellant faces the prospect of being remanded in custody for a significant period to the detriment of her children pending trial whereas if the Belgian authorities simply issued a summons requiring her to attend for trial then she could and would comply but in the interim she would remain in this jurisdiction with her children. It is said that she is not a flight risk, not the least because she is a mother of two very small children, and because she has been on conditional bail in this country for over two years without difficulty. It is further said that she is and has always been willing to give whatever assurances were necessary and to take whatever steps were required to prove to the Belgian authorities that she would attend to answer a summons if one were issued. The essence of the Article 8 issue thus turns upon the benefit to the children of being with their mother for an extended period of time before she is compelled to face trial in Belgium relative to the position that she now confronts if extradited and possibly remanded.

The acceptance by this Court of a live and arguable issue

Ms McGahey QC for the Appellant argued that there was a live issue of law as to the duty of Judicial Authorities to apply the proportionality test to the decision to issue an EAW. I describe the various strands to this argument below. As to this I accept that in fact there is an important and live issue of law. I also accept Ms McGahey QC’s argument that if she is right and that there is in law a duty to apply the proportionality test to the issuance of an EAW then, logically, it must also apply to the maintenance in force of an EAW such that if the facts change and the EAW is no longer proportionate then the Judicial Authority has a duty to re-review the situation and if necessary withdraw the EAW. Ms McGahey QC advances the argument in this way because she recognises that she cannot sensibly challenge the proportionality of the EAW upon issue but she argues that once the Appellant had children and became a mother the position changed and the continuance in force of the EAW became intertwined with the interests of the children to have access to and care from their mother. At that point maintaining the EAW became disproportionate and unlawful.

The case thus boiled down to two main issues. First, the proportionality of the decision on the part of the Judicial Authorities in Belgium to maintain the EAW in the face of the Appellant’s changed circumstances. Second, the approach that this Court, as the executing court, should adopt the decision of the Belgian authorities to maintain the EAW since it is common ground that in Belgium the decision to maintain the EAW is subject to judicial supervision. This second issue requires this Court to consider the extent to which it must, in fulfilment of its duty of mutual confidence and trust as between courts of different Member States, exercise circumspection.

In her oral submissions Mr McGahey QC argued that a reference to the Court of Justice would clarify the law relating to the duty of Judicial Authorities to apply the proportionality test and, (of practical significance in this case) their duty to give reasons for decisions to issue and/or maintain in force an EAW. Such a ruling was “necessary” to enable this Court to determine what the duty of the Belgian authorities was and as to the weight that this Court should then accord to the ostensible decision of the Belgian Judicial Authority to maintain the EAW. But in any event Ms McGahey QC also argued that on the facts there is patent disproportionality and/or procedural failings because of the failure of the Belgian authorities to respond fully and adequately to questions from the Court.

I turn next to the law on the question of proportionality. Pursuant to the 2002 Framework Decision (Council Framework Decision on the European Arrest Warrant and the Surrender Procedures between Member States (2002/584/JHA)) (the “Framework Decision”) there is no express obligation imposed upon a Requesting Authority to perform a proportionality review before issuing an EAW.

However, it is argued that there is nonetheless such a duty arising out of general principle of EU law and this has been made clear in a series of recent opinions of Advocates General in cases before the CJEU; and is also reflected in publications of the European Commission and Council and the European Parliament.

Set out below is a short recitation of the main policy developments. These are relevant because they have been relied upon by Advocates General when considering how proportionality should apply in relation to an EAW.

In a Report from 2011 on implementation since 2007 of the Framework Decision (Com (2011) 175 final) the Commission noted that confidence in the application of the European arrest warrant has been undermined by the systematic issue of European arrest warrants for the surrender of persons sought in respect of very minor or trivial offences and it indicated that there was a disproportionate effect upon the liberty of requested persons “when [European arrest warrants] are issued concerning cases for which (pre-trial) detention would otherwise be felt inappropriate” (ibid Section 5).

The European Parliament, in a Resolution of 27 February 2014 with recommendations to the Commission on the review of the European Arrest Warrant (Document T7-0174/2014), recommended that when issuing a European arrest warrant, the competent authority should: “… carefully assess the need for the requested measure based on all the relevant factors and circumstances, taking into account the rights of the suspected or accused person and the availability of an appropriate less intrusive alternative measure to achieve the intended objectives”. 

The Council of Ministers in its final report on the 4^th round of mutual evaluations entitled “The practical application of the European Arrest Warrant and corresponding surrender procedures between Member States” adopted on 4 and 5 June 2009 (Document 8302/4/09 REV 4 — Crimorg 55 COPEN 68 EJN 24 Eurojust 20) analysed (ibid at section 3.9) the introduction of a proportionality test “understood as a check additional to the verification of whether or not the required threshold is met, based on the appropriateness of issuing a European arrest warrant in the light of the circumstances of the case”. In recommendation No 9, addressed to the Member States, the Council instructed its preparatory bodies to open discussions on the establishment of a requirement for proportionality with the aim of developing a coherent solution at Union level.

Subsequently, in June 2010 the Council decided to amend the European Handbook (Document 17195/1/10 REV 1 — COPEN 275 EJN 72 Eurojust 139) on how to issue a European arrest warrant  order to include (cf section 3) criteria to be applied when issuing such a warrant. The relevant test now reads:

“… considering the severe consequences of the execution of a [European Arrest Warrant] with regard to restrictions on physical freedom and the free movement of the requested person, the competent authorities should, before deciding to issue a warrant consider proportionality by assessing a number of important factors’ [such as] ‘the seriousness of the offence, the possibility of the suspect being detained, … the likely penalty imposed if the person sought is found guilty of the alleged offence [and] ensuring the effective protection of the public and taking into account the interests of the victims of the offence’. In addition it states that ‘[t]he [European Arrest Warrant] should not be chosen where the coercive measure that seems proportionate, adequate and applicable to the case in hand is not preventive detention.”

In Case C-241/15 Criminal Proceedings against Bob-Dogi (1^st June 2016) (“Bob-Dogi”) Advocate General Bot observed that: “The question of the review of proportionality is one of the major difficulties which has faced the European arrest warrant system since its inauguration”, (Opinion paragraph [77]). He then summarised the major policy developments including those set out above and he acknowledged that on its face the Framework Decision did not impose an express duty to apply proportionality. However, he did not see this as dispositive:

“87.

To my mind, the Framework Decision is binding both in as much as it requires a proportionality check to be conducted when the European arrest warrant is issued, and in as much as it forbids such a check, in principle, when the warrant is executed, subject to exceptional circumstances.

88.

The principle of proportionality, as a general principle of Union law now enshrined in Article 5 TEU, is mentioned in recital 7 of the Framework Decision, which states that, in accordance with that principle, the decision does not go beyond what is necessary in order to achieve the objective of replacing the multilateral system of extradition based on the European Convention on Extradition of 13 December 1957.

89.

Moreover, Article 1(3) of the Framework Decision states that it is not to have the effect of modifying the obligation to respect fundamental rights and fundamental legal principles as enshrined in Article 6 EU and reflected in the Charter.

90.

Under Article 52(1) of the Charter, limitations may be imposed on the exercise of the rights and freedoms recognised by the Charter only if ‘[s]ubject to the principle of proportionality … they are necessary and genuinely meet objectives of general interest recognised by the Union or the need to protect the rights and freedoms of others’.

91.

In criminal matters, that principle of proportionality finds specific expression in the principle of proportionality between offences and penalties enshrined in Article 49 of the Charter.

92.

Over and above those general references to the principle of proportionality, Article 2(1) of the Framework Decision, in defining the substantive scope of the European arrest warrant, addresses, albeit obliquely but specifically, the matter of the appraisal of the proportionality of the decision issuing such a warrant by providing that it may be issued for the purpose of prosecution only for acts punishable by the law of the issuing Member State by a custodial sentence or a detention order for a maximum period of at least 12 months and, in regard to the execution of such measures, for sentences of at least four months.

93.

Nonetheless, the issue of a European arrest warrant in accordance with the requirements of that provision does not necessarily mean there has been no infringement of the principle of proportionality. As demonstrated by the non-exhaustive list of factors to be taken into account in the Handbook, in order for a proportionality check to be conducted effectively, it is necessary to carry out a concrete assessment in light of the specific circumstances of each case.

94.

In my view, the Framework Decision lays down an obligation to conduct such a check at the time when the European arrest warrant is issued, and it cannot legitimately be objected that the issuing conditions are a matter for the exclusive competence of the Member States in regard to criminal matters.”

The opinion expressed in Bob-Dogi is to the same effect as the Opinion the Advocate General had expressed in Aranyosi (ibid, Opinion of 3^rd March 2016 at paragraphs [137] -149]. His opinion in that case has subsequently been cited with approval in the Opinion (19^th October 2016) of Advocate General Campos Sanchez-Bardona in Case C-452/16 Openbaar Ministerie v Krzysztof Poltorak at footnote 21. These opinions have yet to be endorsed by the CJEU itself.

I accept on this basis that there is a seriously arguable point which has been raised by the Appellant in this case. As already observed if proportionality applies upon issuance of an EAW then I accept that it is at least arguable that it applies throughout the process of the EAW, i.e. that if there is a material change of circumstance then there might need to be a re-review of the proportionality of the maintenance of an EAW.

In view of this I consider that the Court should proceed to consider the appeal (though without ultimately deciding the point) upon the basis that the Appellant is correct in her submission on proportionality.

There is however another aspect to this issue which was considered by the Court in the above cases which also bears upon the analysis to be undertaken. This relates to the judicial restraint and forbearance that the principle of mutual trust and confidence, which lies at the epicentre of the EAW system, imposes upon an executing court. The Judge below emphasised this point in his judgment (supra). In Aranyosi (ibid) the CJEU was at pains to emphasise the centrality of the principle of mutual trust. At paragraphs [78] and [79] the Court stated:

“78.

Both the principle of mutual trust between the Member States and the principle of mutual recognition are, in EU law, of fundamental importance given that they allow an area without internal borders to be created and maintained. More specifically, the principle of mutual trust requires, particularly with regard to the area of freedom, security and justice, each of those States, save in exceptional circumstances, to consider all the other Member States to be complying with EU law and particularly with the fundamental rights recognised by EU law (see, to that effect, Opinion 2/13, EU:C:2014:2454, paragraph 191).

79      In the area governed by the Framework Decision, the principle of mutual recognition, which constitutes, as is stated notably in recital (6) of that Framework Decision, the ‘cornerstone’ of judicial cooperation in criminal matters, is given effect in Article 1(2) of the Framework Decision, pursuant to which Member States are in principle obliged to give effect to a European arrest warrant (see, to that effect, judgment in Lanigan, C-237/15 PPU, EU:C:2015:474, paragraph 36 and the case-law cited).”

There is no dispute in the present case, and indeed it is trite law, that when the Court refers to the obligation being imposed upon or as between “Member States”, this includes their judicial organs. It means, as applied to the present case, that this Court must be very chary of failing to respect the position adopted by the Judicial Authorities in Belgium or of second guessing the future position of the Belgian Courts which are duly seised of this case and which exercise supervisory jurisdiction over its conduct and progress. Ms McGahey QC acknowledges the potency of the principle of mutual trust and therefore accepts that this Court is bound to show very considerable reticence. But she argues that on the particular facts of this case there is clear evidence of disproportionality: (a) in the absence of any clear acknowledgment on the part of the Belgian Judicial Authority that it is prepared to apply the principle of proportionality; (b) in the absence of any reasoning on the part of the Judicial Authority as to why Belgium persists with the EAW in circumstances where the Appellant is not a flight risk and where her plight, as a mother of infant children, has been recognised as problematic; and (c), in circumstances where the Judicial Authority has already expressed an intention to issue a summons (which is a less coercive measure).

I do not accept the Appellant’s arguments, even assuming, as I do for the purposes of this appeal, that the principle of proportionality applies on a continuing basis to an EAW and that if there is a material change of circumstances then a review may be called for.

First, the evidence shows that at the very least the Judicial Authority in Belgium addressed itself to the issue of less coercive measures. This is evident from the email exchange of 19^th October 2015 (paragraph [11] above) where it is apparent that the Authority was considering a video linked conference/interview and there is a reference to it being accepted that it would not be “an ideal situation” for the Appellant alone or with her children to be compelled to travel to Belgium to be interviewed. That email also makes clear that ultimately this was a matter for the “magistrates”, i.e. the supervising court. Further it is evident from the email of 27^th July 2016 (paragraph [14] above) that the delay in arranging an alternative to a face to face interview had led to the Judicial Authority to change its mind. However there was at this juncture an intention to issue a summons. Some debate in Court focused upon the words in the email: “In this case she will be informed of this in due course”. The Appellant argues that this revealed a clear decision on the part of the Judicial Authority to issue a summons in which case, the moment that the decision was arrived at, it was conceptually inconsistent with the maintenance of the EAW. I do not read the letter in that way. The words “in this case” I consider most likely mean “in this eventuality”, i.e. they connote that the possibility of the issuance of a summons was under consideration but that a final decision had not yet been taken. Be that as it may it is in my view evident that the Judicial Authority was considering alternatives to the EAW and was aware of the desirability of being responsive to the Appellant’s position. In substance the Judicial Authority was applying a proportionality appraisal. To this extent I reject the suggestion that the proportionality of the EAW was not in substance in the minds of the Judicial Authority.

This being so the next issue is whether the exercise by the Judicial Authority of the proportionality test was itself unlawful. At this stage we are bound to revert to the principle of mutual trust and confidence. The Belgian Courts are supervising the process but this Court does not have detailed information as to the decisions that the courts have taken or as to their reasoning. We have only the emails referred to in paragraphs [11] and [14] above which reveal but a glimmer of the full judicial process which is ongoing in Belgium. This however is not a point of criticism; it is the norm. The principle of mutual trust and confidence is intended to render the enforcement of an EAW largely automatic to avoid the need for the executing court to seek voluminous information and explanations from the requesting Judicial Authority: The executing court does not supervise the supervision by the foreign court of its own criminal proceedings.

Moreover – and subject to an important qualification set out below – there is no evidence in this case of an exceptional nature (see case law referred to at paragraphs [35] and [53] above) which would lead us to believe that the Belgian Judicial Authorities are ignorant of their responsibilities and which might then, arguably, justify us performing a more detailed scrutiny of the facts relating to the foreign procedure and proceedings. We know that the Belgian Judicial Authority has addressed the possibility of alternatives to extradition and measures which reflect the Appellant’s personal position. We know that there have been delays and that, at least in some measure, those may be attributable to the Appellant’s tardiness in agreeing interview dates. There is in my judgment no evidence upon which this Court could properly form the conclusion that there was such a disregard for fundamental rights that we should ignore the strong presumption of regularity that the principles of mutual trust and confidence entail, and embark upon a free standing detailed, inquisitorial review of the Belgian process.

For these reasons, and assuming that the Appellant is correct in her analysis of the law of proportionality, I reject the appeal. It follows that it is not necessary to make a reference to the Court of Justice in order to enable us to decide this case and for this reason there is no jurisdiction to make the reference.

Although I am clear that the appeal should be dismissed there is one troubling aspect of the case. There appears to be no dispute but that the children of the Appellant will suffer by reason of the prosecution and conviction of the Appellant. It is also unquestionable that it is in the best interests of the children for the Appellant to remain with her children for as long as possible. This is reflected in the evidence which the Judge below accepted and agreed with.

In this connection, as observed, there is only slim evidence as to the approach actually being adopted by the Belgian Courts. This Court therefore does not know: whether they consider the Appellant to be a flight risk; whether if she were extradited she would be remanded into custody pending trial; or whether if she were remanded she would be able to have her children with her or whether they would then be sent to live with the Appellant’s mother in Lithuania. Equally there is no evidence or information as to how long would elapse before trial if the Appellant was remanded. Further there is no evidence as to whether if the Appellant were bailed she would have to remain in Belgium or whether she could return to the UK. This Court’s ignorance of these and other matters may not be relevant for the purposes of the enforceability of the EAW but the answers might be relevant to another issue which is how we approach the timing of any order the Court makes.

One possible solution is to defer the coming into effect of the order for extradition for a period of time so as to allow the parties and the relevant authorities to explore the possibility of the Appellant remaining in this jurisdiction pending trial. This may be something that the Judicial Authority has already considered and rejected but there is no evidence before the Court on this. It is well established that Member States, including their Judicial Authorities, are bound by a duty of sincere cooperation. One aspect of this would permit this Court to facilitate a process whereby practical solutions which protected the interests of the children to the greatest possible degree were explored and considered.

The critical legal backdrop to this however is that this Court will have ruled that the extradition is lawful and must go ahead. In other words if the Belgian Judicial Authority takes the view that the EAW remains valid and must be enforced and that there is no scope for any intermediate or alternative solution then this Court will respect that decision.

The approach being advocated is not without precedent. The deferral of the coming into effect of an order for extradition to permit inquiries to be made as between relevant authorities has been applied in other cases. See for example PA v The Criminal Court in Coimbra, Portugal [2017] EWHC 331 (Admin) at paragraphs [63] – [70] in relation to the opportunity for discussions to occur with a view to a post-trial requested person serving her sentence in the UK, rather than in the Requesting State, in order to take account of a child’s interests. The deferral of an order was also made by Foskett J in Z v District Court in Kosice, Slovakia [2014] EWHC 1360 (Admin).

In conclusion the appeal is dismissed. However the Court will hear submissions on the framing of the Order with a view to facilitating the discussion and inquiries referred to in paragraphs [60] – [64] above. This should include submissions on the amount of time required for the relevant inquiries to be made. The parties are invited to agree and then submit to the Court a draft Order for consideration.

I agree.