Douglas Belbin v The Regional Court of Lille, France
| Jurisdiction | England & Wales |
| Judge | Lord Justice Aikens |
| Judgment Date | 30 January 2015 |
| Neutral Citation | [2015] EWHC 149 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/4608/2014 |
[2015] EWHC 149 (Admin)
Lord Justice Aikens
Mr Justice Edis
Case No: CO/4608/2014
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Ben Cooper (instructed by Arora Lodhi Heath Solicitors) for the Claimant
Adam Payter (instructed by CPS) for the Defendant
Hearing date: 05/12/2014
This is the judgment of the court to which both of us have contributed.
Synopsis of the case
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.
Details of the appellant and the extradition offences alleged
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:
(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
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...
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