England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		07/09/2012

President of the Queen's Bench Division:

1. This appeal is brought by a prosecutor, as a judicial authority, against the decision of the Deputy Senior District Judge to discharge the respondent, Mr Bartlett on the basis that a European Arrest Warrant issued by her and the proceedings thereunder are an abuse of process. At the conclusion of the hearing we dismissed the appeal for reasons we would hand down. These are our reasons.
2. Before setting out the detailed facts, we should say that this is a paradigm example of the necessity for proper judicial co-operation. If the appellant in these proceedings, the Federal Public Prosecutor, had acted properly, the hearing before the District Judge in these proceedings, this appeal and a great deal of court time and money could have been saved. Furthermore the respondent would have been sent to Belgium long ago to face trial. It is necessary first to set out the facts.

The investigation

3. Some time prior to May 2009, the police began an investigation into international drugs smuggling and money laundering through an international gang. The Belgian police submitted a report to the public prosecutor who referred the case to a juge d'instruction as the investigation required wire tapping. The prosecutor asked the juge d'instruction to investigate the offences of being in a criminal organisation, breach of drugs legislation and money laundering.
4. On 4 May 2009 the juge d'instruction issued a domestic Belgian warrant charging Mr Bartlett with the offences of being involved in a criminal organisation, breach of drugs legislation and money laundering. Mr Bartlett was one of a number of people whose arrest was sought in connection with these offences.

The proceedings under the accusation EAW issued by the Belgian court: The Court at Hasselt v Bartlett

5. On 10 May 2009 the juge d'instruction at the court at Hasselt issued an accusation European Arrest Warrant (the accusation EAW) in respect of the three offences. The accusation EAW was duly certified by the Serious Organised Crime Office (SOCA) and further information provided. A hearing was held before Senior District Judge Workman where the party who has issued the accusation EAW and was seeking to uphold it was described as The Judicial Authority of the Court of First Instance, Hasselt, Belgium (the Court at Hasselt). On 26 November 2009 the Senior District Judge upheld the validity of the accusation EAW, but in respect of the allegation of money laundering held that he was not satisfied that it provided, in respect of the conduct described, adequate details of the allegation. He ordered that the extradition of Mr Bartlett to Belgium should only be in respect of drug trafficking and involvement in a criminal organisation. The judge rejected the contention advanced on Mr Bartlett's behalf that the accusation EAW was issued for the purpose of investigation and not for the purpose of the conduct of criminal proceedings.
6. An appeal was brought against that decision by Mr Bartlett. The Court at Hasselt cross appealed against the judge's decision on the adequacy of the details of the allegation of money laundering. In a judgment given on 11 June 2010 under the name of The Judicial Authority of the Court of First Instance, Hasselt, Belgium v Bartlett [2010] EWHC 1390 (Admin), this court (Toulson LJ and Griffith Williams J) dismissed both the appeal and the cross appeal. At paragraphs 58 and 59 of its judgment Toulson LJ said:

"The allegation of membership of a criminal organisation was more problematic because, as the district judge correctly observed, it was not for him to enquire into the meaning of that offence in Belgian law. The warrant identified the relevant paragraphs of the penal code. The judge was entitled to conclude that the details which were sufficient to convey to the appellant the essential nature of his involvement in drug trafficking were equally sufficient to convey the essential nature of his involvement in a criminal organisation.

Money laundering is often associated with drug trafficking, but it was necessary for the warrant to state the essential nature of the appellant's involvement in money laundering. About this the warrant was vague. I agree with the district judge that merely being involved in text messages about the price of the drugs and method of payment cannot be said to be a description of money laundering without further information. There was no further information about his involvement in the conduct giving rise to the allegation."

7. On 10 August 2010 this court certified a point of law of general public importance, but refused leave to appeal to the Supreme Court. On 4 February 2011 the Supreme Court considered the application for leave to appeal, but refused it.

The trial at Hasselt

8. In the meantime, authorities in Belgium had continued the proceedings against the others whose arrest had been sought. In December 2009 the juge d'instruction closed his file. The Federal Public Prosecutor in the Belgian Federal Public Prosecutor's Office in Brussels (the Public Prosecutor) started the procedures to bring the case to court. The case involved 16 persons, some of whom had to be extradited from Panama, Dubai, the Netherlands, Germany and England. The procedures prior to the trial took nine months to complete
9. The trial began before the Court of First Instance at Hasselt in October 2010, that is to say after the decision of this court on 15 March 2010, but before the decision of the Supreme Court on 4 February 2011.
10. In accordance with Belgian law, Mr Bartlett received a summons to attend on 6 October 2010 but, because the procedures for his extradition were still pending in England and Wales, he did not attend in response to that summons, though it appears that a lawyer instructed on his behalf was present during the course of the trial. When Mr Bartlett did not attend, although the Public Prosecutor knew she was awaiting the decision of the Supreme Court in relation to a point of law on his extradition proceedings, she sought his trial in absentia with the other defendants. It appears that the judge concurred with that decision.

The decision of the Public Prosecutor to delay extradition

11. Just before the conclusion of the trial at Hasselt, the Public Prosecutor was informed of the decision of the Supreme Court to refuse leave and that Mr Bartlett had therefore to be extradited under the accusation EAW in accordance with the Extradition Act 2003 (the 2003 Act) by 13 February 2011.
12. On 10 February 2011 the Public Prosecutor made clear to SOCA that, as the trial was expected to conclude on 11 February 2011, the extradition of Mr Bartlett should be delayed until after the judgment in the trial which would be in the week of 14 March 2011. In the trial she then took, or had taken at some earlier stage, the position that Mr Bartlett should be sentenced in absence to seven years and a penalty of €700,000 be applied. It is not clear whether she had asked for that sentence earlier or whether the judge's attention was drawn to Mr Bartlett's impending extradition before the conclusion of the hearing.
13. In view of the position taken by the Public Prosecutor, the Crown Prosecution Service, on her behalf, applied in writing to the Administrative Court on 11 February 2011 to extend the period for extradition under the accusation EAW for 10 days under the provisions of s.36(3)(b) of the 2003 Act. On 17 February 2011 the Public Prosecutor informed the CPS that the court at Hasselt had closed the trial proceedings on 11 February 2011 and announced it would give judgment on 11 March 2011. Her letter then continued.

"When Bartlett is punished in absentia the 11 of March 2011, then my proposal is: to extradite Warren Bartlett the Monday after the judgment, 14 March.

As our law permits: Bartlett can then have his own trial (trial by opposition). It will be the same trial but then with the appearance of Warren Bartlett and a solicitor of his choice.

In the meantime the EAW that was previously be prepared, remains valid. Then, on the day of the judgement, 11 March, the judgment will be the new title on which the extradition is asked. I will make a new EAW and send it to you on the 14^th of March."

14. Following receipt of that e-mail there was conversation with the CPS and a further e-mail was sent in which the Public Prosecutor made clear that if Mr Bartlett was extradited immediately she would have to re-open the case against all the others involved and the case would have to start all over again. She pointed out that would be impossible as the other indicted persons had already been in prison for more than one and a half years. If she started over again that would mean that they would have reason to ask for their release while awaiting trial. She then made clear that the crime for which Mr Bartlett would be prosecuted would be the membership of a criminal organisation and money laundering.
15. Ouseley J declined the written application that had been made under s.36(3)(b). A second application was made exhibiting the letters from the Public Prosecutor. An extension of time for extradition under the accusation EAW was again sought until 14 March 2012 for extradition under the EAW. The CPS told the Administrative Court:

"Should the Belgian authorities seek to prosecute Mr Bartlett for the money laundering charge upon which he was discharged by the District Judge, they would need to seek permission to proceed under the specialty rules."

16. A hearing took place on the second application before Ouseley J; the party to the proceedings was the Court at Hasselt, not the Public Prosecutor. It is not clear how the Public Prosecutor had the authority to take over the proceedings in England and Wales brought by the Court at Hasselt in England and Wales or what the CPS had done to check this. The Public Prosecutor and the Court are quite distinct.
17. It is important to point out that Mr Hardy QC expressly drew Ouseley J's attention to the possibility that the accusation EAW might be withdrawn and replaced by a conviction EAW; it was said such concerns were premature and that any issues concerning a new warrant would be raised at an extradition hearing.
18. In a judgment given on 11 March 2011 [2011] EWHC 1407 (Admin) the judge accepted the submissions made by Mr John Hardy QC that the court had a discretion to extend the period for extradition under the EAW. The judge considered that the discretion could be exercised as, if Mr Bartlett was returned then, the trial of the others would have to begin again. Delaying Mr Bartlett's return would cause no prejudice to his rights in Belgium as he would be re-tried in person. The time was therefore extended to 23 March 2011.

The issue of a conviction EAW by the Belgian Public Prosecutor: The Public Prosecutor v Bartlett

19. On 17 March 2011 the Public Prosecutor, not the Court at Hasselt, issued a conviction EAW seeking the extradition of Mr Bartlett on the basis of the judgment of the Court at Hasselt of 16 March 2011 against Mr Bartlett in absentia. The conviction EAW set out that the sentence of 5 years passed had been imposed for participation in a criminal organisation and for money laundering. It drew attention to the fact that a protest might be entered against a conviction made in absentia.
20. The following day Mr Bartlett's solicitors were informed that it was intended to extradite Mr Bartlett on 21 March 2011. They wrote immediately to the CPS seeking an undertaking that, as extradition had been refused in respect of money laundering, Mr Bartlett was not being extradited in respect of that allegation, given the fact that he had been convicted and sentenced in absentia for both money laundering and participation in a criminal organisation.
21. In response, the Public Prosecutor informed the CPS (who passed this information on to Mr Bartlett's solicitors) that he could be prosecuted for both money laundering and membership of a criminal organisation, although he could not be detained for crimes for which he was not extradited. On 21 March 2011 Mr Bartlett's solicitors issued judicial review proceedings of the decision of SOCA to extradite Mr Bartlett to Belgium and they sought an injunction against SOCA. That injunction was granted by Davis J preventing removal under the accusation EAW which at that time was the sole EAW relevant in England and Wales to Mr Bartlett.

Proceedings under the conviction EAW

22. On 18 April 2011, SOCA certified the conviction EAW issued by the Public Prosecutor as an EAW issued by a judicial authority. Mr Bartlett was arrested under that EAW on 21 April 2011 but released on bail. The first accusation EAW was withdrawn. Again it is not clear how the Public Prosecutor had authority to withdraw an EAW issued by the Court at Hasselt.
23. An extradition hearing was therefore required under the conviction EAW. That took place before the Deputy Senior District Judge. The parties to those proceedings were the Public Prosecutor and Mr Bartlett. The Court at Hasselt was not a party. Mr Bartlett's extradition was contested on the grounds (1) that there had been an abuse of process and (2) the conviction EAW was invalid as it could never be enforced against him. Mr Jorg Bruyndonckx, a Belgian lawyer who had been instructed on behalf of Mr Bartlett since 2009 gave evidence. The Public Prosecutor put in two documents dated 7 July and 18 August 2011.
24. In accordance with the procedure set out in what is known as the Tollman case [2007] 1 WLR 1157 at paragraph 84, the conduct relied on as amounting to an abuse of process was identified by Miss Montgomery QC on behalf of Mr Bartlett as follows:

"(a) The prosecutor has pursued a trial in absence on charges one of which has been discharged by the UK courts in the course of existing proceedings.

(b) The Federal Magistrate/Prosecutor has issued this Request based on the conviction which must almost inevitably be quashed under Article 187 of the Belgium Code.

(c) The RJA has pursued an application to extend the time for the defendant's removal under the first EAW without disclosing the plan to issue another EAW.

(d) This request was issued 1 day after the in absentia verdict and sentence and during the existence of the first EAW of which no mention is made in this EAW.

(e) From recent documents attached to this judgment the Federal Magistrate's approach to specialty is one of "lip service" only and it affords no protection in the light of a rolled up or aggregate sentence being passed.

(f) This Request is intended to secure the extradition of the defendant without further proceedings in the English court."

25. On the basis of the evidence before her, the Deputy Senior District Judge concluded that the matters set out amounted to an abuse of process. She discharged Mr Bartlett under the conviction EAW on 29 September 2011.

The appeal by the Public Prosecutor

26. The Public Prosecutor appealed to this court on the basis that the conduct was not capable of being and did not amount to an abuse of process. Miss Montgomery QC, on behalf of Mr Bartlett, apart from contending that the decision of the Deputy Senior District Judge was correct, also sought to uphold the decision to discharge Mr Bartlett on the basis that the Deputy Senior District Judge had been wrong to reject the submission that the EAW was invalid under s.2 of the 2003 Act on the basis that the conviction of Mr Bartlett on 16 March 2011 could never be enforced against him.
27. It was submitted by Mr Hardy QC on behalf of the Public Prosecutor that if we allowed the appeal on abuse of process, we could not consider the issue raised by Miss Montgomery QC as to the validity of the conviction EAW. The matter would have to be remitted to the District Judge for that issue to be considered and that this court could only consider that issue on an appeal from a further decision. Miss Montgomery QC submitted that we could determine the issue without remitting the case and entertaining another appeal. In the event we did not have to decide whether the second issue could be determined by us, as we decided that the appeal on abuse of process should be dismissed.

The position of Mr Bartlett on the appeal

28. At the outset of the appeal Miss Montgomery QC on behalf of Mr Bartlett made his position very clear. If there had been before the court a valid accusation EAW on a charge of belonging to a criminal organisation, he could not and would not contest his extradition to face trial in the court at Hasselt. If the Public Prosecutor wished to proceed against him on a charge of money laundering, then the proper procedure for dealing with the issue of specialty that had arisen in relation to the accusation EAW should be followed.
29. As it was common ground that in due course the conviction in absentia of Mr Bartlett would have to be set aside and he would have to be retried, it had therefore been open to the Public Prosecutor since March 2011 to pursue this course. That would have avoided both the hearing before the District Judge, the appeal before us, the significant delay, the considerable costs and the great unfairness to Mr Bartlett. However, this was not the course followed by the Public Prosecutor and no instructions had been given to Mr Hardy QC to accede to that course. It was therefore necessary for us to consider the question as to whether there had been an abuse of process.

Our conclusion on abuse of process

30. The issue on the appeal was whether the judge had been right in holding that the facts set out were capable of amounting to an abuse of process and if so, whether her finding that they were an abuse of process was a decision open to her on the evidence before her. We have no doubt that the acts were capable of amounting to an abuse of process and that it was open to the Deputy Senior District Judge so to find.
31. The facts were stark:

i) Since the decision of the Supreme Court to refuse leave to appeal on the certified question, Mr Bartlett has been liable to be extradited to Belgium under the accusation EAW for the two offences of belonging to a criminal organisation and drug trafficking. He has also been liable to have the issues of specialty arising from the decision on money laundering considered in accordance with the provisions of the 2003 Act.

ii) Mr Bartlett should have been extradited under the accusation EAW immediately after the decision of the Supreme Court, but his extradition before the judgment in the trial of the others would have had serious consequences adverse to the interests of justice, as the trial of the others would have had to begin again.

iii) His extradition was delayed by Ouseley J for that reason on the basis that he would suffer no prejudice to his rights in Belgium.

iv) It is common ground that his conviction in absentia cannot stand and must be set aside.

v) Mr Bartlett cannot in any way be blamed for his non-attendance at the trial; the decision on his extradition was awaiting a decision of the Supreme Court. There is and could be no suggestion that the delay after the decision of the Divisional Court was attributable to him.

vi) There was no reason why the accusation EAW could not have been used by the Public Prosecutor; indeed using that EAW after the conviction of the others was plainly the right course.

vii) Mr Bartlett is in no ordinary sense of the word a convicted person. He may formally have been convicted, but his conviction was consequent upon a procedure under which on any objective basis it was unfair to convict him. No court could therefore regard him as a convicted person.

viii) His conviction in absentia for money laundering was a conviction in respect of a matter of which he had been discharged under the accusation EAW in England and Wales. No consideration appears to have been given by the Public Prosecutor to the specialty provisions or considerations of comity and mutual confidence in continuing with that charge against Mr Bartlett.

ix) If he is returned under the conviction EAW, it appears from the evidence before us that he can be proceeded against on the money laundering charge without the safeguards to which we have referred. There can be no justification for depriving him of those safeguards.

x) If he is returned under the conviction EAW, he will be remanded in custody without the possibility of applying for bail until the Belgian court sets aside his nominal conviction. If he had been returned under the accusation EAW he would have been entitled to bail. As the next hearing of the Belgian court at which that issue would be decided is not for sometime, it would self evidently be unjust to deprive him of his liberty during that period.

xi) He would have been returned under the accusation EAW unless Ouseley J had been satisfied there was no prejudice. Although the possibility of a conviction EAW being issued was raised, the judge was not told of the prejudice such an EAW would cause Mr Bartlett. That is no criticism of counsel who appeared for the Public Prosecutor, as if they had been aware of the prejudice, they would have told the judge.

32. The finding by the Deputy Senior District Judge necessarily involves finding that the conduct of the Public Prosecutor was an abuse of process. We were urged by Mr Hardy QC to have respect for the processes of another Member State of the European Union and to accept that the processes of a state such as Belgium in dealing with convictions in absentia ought to be respected by this court.
33. Ordinarily this court will take full cognisance of the processes of a court in the European Union which involve trials in absentia and the setting aside of those convictions in a manner which may in some respects differ from the procedures in our jurisdiction: see Istanek v District Court of Preov, Czech Republic [2011] EWHC 1498 (Admin).
34. However this case is quite different, as Mr Bartlett had not absented himself from the proceedings in Hasselt but during the currency of those proceedings his extradition was being sought. He was entitled to await the decision on his extradition. It is difficult to understand how in those circumstances someone can be treated as having been convicted. The Public Prosecutor, knowing that he could have been returned prior to the conclusion of the trial but, for understandable reasons not wanting him returned at that stage, nonetheless asked for him to be convicted and that a sentence be passed upon him. It is very difficult to understand how that is consistent with basic principles of justice. However what was obviously unfair and unjust was for the Public Prosecutor to use that conviction to prejudice Mr Bartlett in the way we have described.
35. 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.
36. It is important to recall that, in contradistinction to the accusation EAW which was issued by the Court at Hasselt, the conviction EAW was issued by a party to the criminal proceedings in Belgium, namely the Public Prosecutor. She chose for her own understandable reasons, to ask the courts of England and Wales to delay the extradition under the accusation EAW and issued the conviction EAW. She thereafter proceeded in the way we have described. The acts of a prosecutor, in contradistinction to those of a judge, must be subjected to rigorous scrutiny, as a prosecutor, in contradistinction to a judge, is a party to the criminal proceedings in the requesting state: see the judgment of this court in Swedish Prosecution Authority v Assange [2011] EWHC (Admin) at paragraphs 49-50.
37. The decision of the Public Prosecutor, in issuing the conviction EAW in the circumstances described, was, when considered objectively, a tactical decision of a party to the Belgian criminal proceedings and not a decision taken fairly and impartially by a judge in those proceedings in the interests of justice. Her decision therefore cannot be and is not entitled to that degree of deference that would be accorded to a decision of a judge in those criminal proceedings. There is, therefore, no basis upon which comity between judges and the need for judicial co-operation under the Framework Decision can be prayed in aid to defeat the conclusions of the Deputy Senior District Judge that the issue of the conviction EAW and the proceedings there under were an abuse of process. Indeed to uphold the extradition of Mr Bartlett under the conviction EAW might be seen by some as having the effect of undermining that mutual confidence between Member States that is the basis of the Framework Decision, as it would be upholding a course of conduct by a prosecutor that is objectively neither fair nor just.

Conclusion

38. We are therefore satisfied that the Deputy Senior District Judge was entitled to conclude that the matters relied on by Mr Bartlett were capable of amounting to an abuse of process and that it was open to her to find that it was. Indeed she was right to do so, in the light of the conduct of the Public Prosecutor in these proceedings under the conviction EAW and her conduct of the proceedings brought by the Court at Hasselt under the accusation EAW after she had assumed control over those proceedings in February 2011.