QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
MR JUSTICE EDIS
| DOUGLAS BELBIN
|- and -
|THE REGIONAL COURT OF LILLE, FRANCE
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Adam Payter (instructed by CPS) for the Defendant
Hearing date: 05/12/2014
Crown Copyright ©
Lord Justice Aikens :
Synopsis of the case
Details of the appellant and the extradition offences alleged
(1) On 21 October 2009, French customs at Calais stopped Steven Kingsford coming from the United Kingdom in his vehicle. In the spare wheel of his vehicle French customs recovered €693,000 in cash.
(2) Steven Kingsford was a salaried truck driver for Kent Trucking Ltd, a company that was managed by Paul Palmer. Steven Kingsford admitted that he had made three trips by vehicle from the United Kingdom to the Netherlands via France since August 2009. On those trips he transported cash from the United Kingdom at the request of his employer, Paul Palmer.
(3) Steven Kingsford also explained that Colin Dunne, another employee of Kent Trucking Ltd also made trips for the same purpose. Colin Dunne later accepted that this allegation was correct and he had made the trips at the request of his employer, Paul Palmer.
(4) It is estimated that the amount of funds conveyed and laundered was more than €4 million.
(5) Paul Palmer was also arrested in France while visiting Steven Kingsford in prison. He accepted that he had given instructions to his two employees as set out above.
(6) Paul Palmer explained that he had received instructions to make the transfers of cash to the Netherlands at the request of an individual known as 'Franck'. As a results of the investigations in the United Kingdom that had begun prior to the stop and search and arrest of Steven Kingsford on 21 October 2009, and an examination of Steven Kingsford's telephone data, 'Franck' was identified as the Appellant. Paul Palmer formally identified him as the individual who had given him the instructions to make the transfer of cash.
(7) The Appellant was arrested and interviewed in the United Kingdom following a French letter of request. The Appellant refused to answer any questions asked by the police.
History of proceedings in the UK and France
"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".
The provisions of Article 411 do not apply in this case.
"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".
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.
The appellant's case before the DJ and DJ Purdy's decision
The arguments of the parties on appeal
Issue one: are the "Forum Bar" provisions applicable to the July 2013 EAW?
"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  2 All ER 821,  EWHC 89 (Admin) at , 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  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".
Issue 2: "abuse of process".
"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."
Issue 3: Article 8.
"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."
"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)  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 -, - and . Lady Hale and Lord Kerr dissented ibid, at ,  and ."
"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."
Note 1 The original states: « Si la citation n’a pas été délivrée à la personne du prévenu, et s’il n’est pas établi qu’il ait eu connaissance de la citation, la decision, au cas de non-comparution du prévenu, est rendue par défaut, sauf s’il est failt application des dispositions d l’article 411 ». [Back] Note 2 The French language original of the second paragraph states: « Préciser les guaranties juridiques: l’interessé pourra faire opposition. Dans ce cas, le jugement initial sera anéanti et ils sera à nouveau jugé pour les faits. Il sera par ailleurs présenté à un juge (le juge des libertés et de la détention) qui décidera si l’interessé restera ou non détenu jusqu’à la nouvelle audience, sur la base du mandat d’arrêt ». [Back]
Note 1 The original states: « Si la citation n’a pas été délivrée à la personne du prévenu, et s’il n’est pas établi qu’il ait eu connaissance de la citation, la decision, au cas de non-comparution du prévenu, est rendue par défaut, sauf s’il est failt application des dispositions d l’article 411 ». [Back]
Note 2 The French language original of the second paragraph states: « Préciser les guaranties juridiques: l’interessé pourra faire opposition. Dans ce cas, le jugement initial sera anéanti et ils sera à nouveau jugé pour les faits. Il sera par ailleurs présenté à un juge (le juge des libertés et de la détention) qui décidera si l’interessé restera ou non détenu jusqu’à la nouvelle audience, sur la base du mandat d’arrêt ». [Back]