Killoran v Investigative Judge, Antwerp Court of First Instance, Belgium

For the purposes of Extradition Act 2003, an EAW must provide the conduct alleged, the time and place of its occurrence, and the relevant legal provisions for each alleged offence. The EAW may be read with further information, provided that information expands upon rather than contradicts the warrant. A defect in prescribed particulars does not necessarily invalidate extradition or amount to abuse of process; materiality and the effect on the statutory scheme must be assessed.

In an appeal against an extradition order, the appellant must show not merely an error by the lower court but that discharge would have been required. Article 8 requires an intense, fact-specific balancing exercise. Previous decisions may assist as yardsticks but must not be treated as inflexible rules.

The appellant was sought by Belgium under an accusation EAW for alleged people-smuggling offences. Westminster Magistrates’ Court ordered extradition. She appealed under s. 26 of the Extradition Act 2003 and renewed an unsuccessful application for permission to appeal.

Six grounds challenged the adequacy of the particulars, the sentence information, abuse of process, the absence of a decision to try under s. 12A, and proportionality under s. 21A and Article 8 ECHR. Permission was sought on all grounds, but the central issues were whether the EAW, read with further information, complied with s. 2(4), whether the sentence error was material, and whether the Belgian prosecutor’s decision amounted to a decision to try.

1. Grounds 1–4 and 6. Permission was refused. Under s. 2(4)(c) of the Extradition Act 2003, read with the Multiple Offences Order, the required particulars must be supplied for each alleged offence. The relevant matters are the alleged conduct, the time and place, and the provisions of the requesting state’s law. The precise manner in which the conduct would be charged does not matter.
2. The EAW and further information, read as a whole, adequately identified the appellant’s alleged conduct and the relevant legal provisions. The further information supplied the missing dates and expanded upon, rather than contradicted, the warrant. There was no wholesale failure of particularisation.
3. The lower court had erred in its understanding of the applicable sentence. Nevertheless, on an appeal under s. 27(3)(b), an error alone is insufficient. The question is whether, had the true position been known, discharge would have been required. The offences remained extradition offences and the error was not material to the extradition decision. The abuse-of-process jurisdiction recognised in Zakrzewski v Poland remains available, but its exceptional conditions were not met.
4. Article 8. Decisions in other cases may occasionally provide a useful yardstick, but Article 8 is intensely fact-specific and prior decisions must not be converted into inflexible rules. The lower court had properly treated the child’s welfare as a primary consideration, assessed the detailed evidence, and balanced it against the seriousness of the allegations and the public interest in extradition. It was entitled to conclude that a likely sentence of less than three years did not materially reduce that public interest.
5. Ground 5. Permission was granted. It was reasonably arguable that, in the Belgian system, a decision to charge did not necessarily entail a decision to try for the purposes of s. 12A. The admissibility and significance of extrinsic evidence on that issue were matters for the substantive hearing.

• High Court (Administrative Court): Westminster Magistrates’ Court ordered extradition on 17 September 2020. The High Court refused permission on grounds 1–4 and 6, and granted permission on ground 5.