Zeka v The Court of First Instance, West Flanders Division, Bruges (Belgium)

For an accusation European Arrest Warrant, section 2 compliance does not generally require the precise number of alleged incidents to be stated where the species of offence and the substance of the alleged conduct are sufficiently clear to permit dual-criminality testing.

Where an accused person is convicted in absentia after extradition has been ordered, the resulting change may raise distinct questions under section 20 of the Extradition Act 2003 and article 6 of the European Convention on Human Rights. Such issues should not be summarily excluded where they are reasonably arguable and require the requesting state’s response. A rolled-up hearing may fairly determine permission and, if appropriate, the substantive appeal.

The appellant had been ordered to be extradited by a District Judge on 30 November 2018 under an accusation European Arrest Warrant. An earlier proposed appeal relied on article 3 and section 2 of the Extradition Act 2003. The article 3 ground was abandoned. Goose J refused permission to appeal on the existing section 2 ground on 2 July 2020.

After the extradition order, the Belgian authorities convicted the appellant in his absence and imposed a custodial sentence. The appellant sought to introduce fresh evidence and three linked grounds concerning section 20, section 2 and abuse of process. The central questions were whether the conviction had transformed the basis of the extradition, whether article 6-compliant retrial safeguards remained available, and whether the late grounds should be considered.

1. Existing section 2 ground. Permission to appeal was refused. Although the warrant stated that the total number of offences remained to be determined and further information referred to at least 25 incidents, the appellant accepted that the warrant and further information contained sufficient information to summarise the alleged conduct. Once the species of offence was clear, dual-criminality compatibility could be tested. The precise number of incidents did not itself make the warrant non-compliant. Taylor 2012 EWHC 475 (Admin) did not support a contrary proposition: the concern in that case was identifying the place of offending, not specifying the number of occasions.
2. New grounds arising from the conviction. The court declined to dismiss them summarily. The Belgian conviction might have transformed the case in substance from accusation-based to conviction-based extradition. That raised arguable questions under section 20 of the Extradition Act 2003 and article 6 of the European Convention on Human Rights, including whether participation by a lawyer who sought to prevent trial in the appellant’s absence constituted compliant participation and whether effective merits-retrial rights remained available.
3. The court required the respondent to have a proper opportunity to address both the factual availability of retrial rights and the legal consequences if those rights were unavailable because the appellant was resisting extradition. No final view was formed on the new section 2 argument that a fresh conviction warrant and fresh hearing were required. Bartlett [2012] EWHC 2480 (Admin) was not on all fours, since it involved a fresh conviction warrant.
4. The three new grounds were sufficiently interlinked that separating them could cause injustice. A rolled-up hearing was therefore directed, covering permission to amend, permission to appeal and, if permission were granted, the substantive appeal. Permission to rely on the witness statement as fresh evidence was reserved for that hearing.
5. Expert evidence was refused because the issues were already squarely before the court on the existing material and further evidence would delay the case without good reason. There was no order as to costs.

• District Judge: Extradition ordered on 30 November 2018 after an oral hearing on 15 November 2018, under an accusation European Arrest Warrant.
• High Court, Goose J: Permission to appeal and an application to extend the representation order for expert evidence were refused on 2 July 2020.
• High Court (Administrative Court): The existing section 2 ground was refused. A rolled-up hearing was directed on the three new grounds, with fresh evidence to be considered at that hearing.