Van Mansart & Anor v Public Prosecutor's Office, East Flanders (Belgium)

The court refused permission to appeal in two applications arising from four European arrest warrants issued by the Public Prosecutor's Office, East Flanders. The judge held that the European arrest warrants were to be read as a whole and that the issuing authority's categorisation of offences under the Framework Decision and s.65(5) of the Extradition Act 2003 should ordinarily be accepted unless clearly inconsistent. The court found that the particulars in the warrants were adequate in relation to the offences in issue (including alleged misappropriation, abuse of creditors and failure to cooperate with a receiver) and that dual criminality or the application of s.65(5) was satisfied on the material before the court.

On the Article 8 ECHR challenge in relation to the second claimant, the judge was entitled to conclude that the combined effects of pregnancy, mental health risks and the likely severe impact on four young children made surrender incompatible with Article 8 at this time. The judge applied the correct legal tests, weighed public interest and prosecutorial confidence against family and health factors, and his decision to discharge the second claimant and to order extradition of the first claimant was not shown to be wrong.

Background and parties:

• The proceedings arise from four European arrest warrants issued by the Public Prosecutor's Office, East Flanders, Belgium, seeking surrender of Johan van Mansart and Gina de Wulf to serve sentences imposed in their absence. The claimants are husband and wife and parents of four young children; Ms de Wulf was pregnant.

Procedural posture and relief sought:

• The underlying extradition hearing was before District Judge Snow at Westminster Magistrates' Court (judgement dated 9 October 2020). The magistrates' court ordered the extradition of Mr van Mansart but discharged Ms de Wulf under Article 8 ECHR. Mr van Mansart sought permission to appeal the extradition order; the Belgian judicial authority sought permission to appeal the discharge of Ms de Wulf. Permission to appeal had earlier been refused on the papers by Johnson J and both applications came before the High Court.

Issues framed:

• Whether several offences in the European arrest warrant were sufficiently particularised and correctly categorised to engage s.65(5) of the Extradition Act 2003 and/or satisfy dual criminality.
• Whether surrender of the claimants would be incompatible with Article 8 ECHR, with particular focus on Ms de Wulf’s pregnancy, both claimants’ mental health and the welfare and best interests of their children.

Court's reasoning and findings:

• The court reaffirmed the principle that an EAW must be read as a whole and that the executing court should ordinarily accept the issuing state's categorisation of offences absent obvious inconsistency (citing authorities such as Assange and Jama). The judge correctly treated the framework list and the warrant particulars together and found that offences described as misappropriation and abuse of creditors were reasonably to be read as falling within the framework list for fraud/swindling (engaging s.65(5)).
• Particulars concerning failure to cooperate with a receiver were sufficient to map onto s.353(1) of the Insolvency Act 1986; the issuing authority was not required to negate every possible defence or exception under domestic law.
• In relation to Article 8, the judge accepted expert evidence that extradition posed risks to the mental health of the claimants and that the children faced a significant risk of emotional harm if both parents were surrendered; he weighed these factors against strong public interests in extradition and respect for prosecutorial decisions. The judge was entitled to conclude that, in the circumstances, surrender of Ms de Wulf would be incompatible with Article 8 at this time, though the Belgian authority could seek extradition again later (for example after the husband's release).

Outcome:

• Permission to appeal was refused in both applications; the court held the magistrates' judge did not err in law or principle and his factual conclusions were open to him on the evidence.

Appeals refused (permission to appeal refused). The High Court held that the magistrates' judge had correctly read the European arrest warrants as a whole, properly accepted the issuing authority's categorisation of offences under the Framework Decision and s.65(5) of the Extradition Act 2003 where not obviously inconsistent, and reasonably concluded that extradition of the second claimant would be incompatible with Article 8 ECHR given the combined effects on her mental health, pregnancy and the best interests of the children.

Appeal from decision of District Judge Snow at Westminster Magistrates' Court (judgment dated 9 October 2020) in which extradition of Mr van Mansart was ordered and Ms de Wulf was discharged under Article 8. Permission to appeal was initially refused on the papers by Johnson J. The High Court (Chamberlain J) heard the applications and refused permission to appeal. Neutral citation: [2021] EWHC 1339 (Admin).