Federal Public Prosecutor, Brussels, Belgium v Bartlett

Extradition proceedings may be an abuse of process where a requesting prosecutor deliberately delays extradition under an accusation warrant, permits or procures an unfair conviction in absentia, and then relies on a conviction warrant to obtain advantages unavailable under the original warrant.

Judicial comity and mutual confidence between European Union member states require respect for judicial decisions and foreign procedures, but they do not protect a tactical and objectively unfair decision by a prosecutor who is a party to the criminal proceedings. Prosecutorial conduct must be subjected to rigorous scrutiny. The court may refuse extradition where the new warrant would cause prejudice that would not have arisen under the original warrant.

The Federal Public Prosecutor appealed against the Deputy Senior District Judge’s decision to discharge Warren Bartlett under a conviction European Arrest Warrant on the ground that the warrant and the proceedings were an abuse of process.

Mr Bartlett had previously been liable to extradition under an accusation warrant issued by the Court at Hasselt for drug trafficking and participation in a criminal organisation. Extradition was delayed so that the trial of other defendants in Belgium could conclude. He was then convicted in absentia, including for money laundering, and a conviction warrant was issued by the Public Prosecutor.

The Deputy Senior District Judge found that the conduct amounted to an abuse of process. The central issue was whether that conclusion was legally available and supported by the evidence.

1. Appeal dismissed. The Deputy Senior District Judge was entitled to find that the matters relied on were capable of amounting to an abuse of process and was right to make that finding.
2. Mr Bartlett’s extradition had been delayed under the accusation European Arrest Warrant to assist the Belgian proceedings. His conviction in absentia could not stand, and he had not deliberately absented himself from the trial. The conviction warrant exposed him to material prejudice, including possible prosecution for money laundering despite his discharge from that allegation in England and Wales, loss of safeguards under the specialty provisions, and detention without the ordinary possibility of bail.
3. The Public Prosecutor could have used the accusation warrant after the Belgian trial. Issuing the conviction warrant was objectively a tactical decision by a party to the proceedings. It was not a decision taken fairly and impartially by a judge in the interests of justice.
4. The court ordinarily respected procedures in European Union states concerning trials in absentia and their subsequent setting aside: Istanek v District Court of Preov, Czech Republic [2011] EWHC 1498 (Admin). This case was materially different because Mr Bartlett had not absented himself; his extradition proceedings were still pending.
5. Judicial comity and the mutual confidence underlying the Framework Decision could not justify upholding a course of conduct that was objectively unfair and unjust. The distinction between judicial and prosecutorial conduct was important: prosecutorial acts required rigorous scrutiny, as explained in Swedish Prosecution Authority v Assange [2011] EWHC (Admin).

• High Court (Administrative Court): The appeal against the Deputy Senior District Judge’s discharge of Mr Bartlett under the conviction European Arrest Warrant was dismissed.
• Deputy Senior District Judge: Mr Bartlett was discharged on 29 September 2011 after the conviction warrant and proceedings were found to constitute an abuse of process. The judgment under appeal was [2011] EWHC 1407 (Admin).