BS v Court of First Instance Brussels (Belgium)

Where proportionality is assumed to apply throughout the European Arrest Warrant process, an executing court may still rely on mutual trust between Member States. It should not independently supervise the requesting state’s judicial process or demand extensive reasons unless there is exceptional evidence of a disregard for fundamental rights. Evidence that the requesting authority has considered less coercive measures may be sufficient. A changed personal circumstance does not, without more, require discharge of the requested person. The court may defer the practical effect of an extradition order to permit cooperative inquiries into arrangements protecting dependent children, but the extradition remains lawful and must proceed if the requesting authority insists.

BS appealed under section 26 of the Extradition Act 2003 against an order for her extradition to Belgium to face trial for alleged involvement in importing 2.160 kilograms of cocaine. She relied on Article 8 rights arising from her family life and the interests of her two very young children.

The Senior District Judge rejected the Article 8 challenge, treating the public interest in extradition and international comity as outweighing the family consequences. The appeal raised whether the Belgian authorities had to reassess proportionality after the appellant became a mother, whether the executing court should scrutinise that assessment, and whether a reference to the CJEU was necessary.

1. Appeal dismissed. The court considered the appeal on the assumption, favourable to the appellant, that proportionality applied both when an EAW was issued and on a continuing basis where circumstances materially changed. It therefore did not decide whether EU law imposed that duty.
2. The evidence showed that the Belgian authorities had considered less coercive alternatives, including a video-linked interview and a summons. The correspondence indicated an ongoing process and did not establish a final decision that a summons would replace the EAW.
3. The principle of mutual trust and confidence required substantial restraint. The executing court does not supervise the requesting state’s supervision of its own criminal proceedings. It should undertake detailed scrutiny only where exceptional, objective and reliable evidence indicates a serious disregard for fundamental rights. No such evidence existed. The Belgian authorities were aware of the appellant’s position and had considered alternatives to extradition.
4. The absence of detailed information about bail, remand, trial timing and arrangements for the children did not justify discharge. Those matters could be relevant to the timing or implementation of the extradition order. The court could facilitate discussions under the duty of sincere cooperation, including whether the appellant might remain in the United Kingdom pending trial.
5. Any such deferral would not alter the legal conclusion that extradition was lawful. If Belgium maintained that the EAW remained valid and required enforcement, the decision would be respected. A CJEU reference was unnecessary and there was no jurisdiction to make it.

• Senior District Judge ordered extradition on 19 September 2016 and rejected the Article 8 and abuse of process arguments.
• High Court (Administrative Court) dismissed the appeal under section 26 of the Extradition Act 2003.