USA, R (on the application of) v Senior District Judge, Bow Street Magistrates' Court

An extradition judge must normally determine allegations of abuse of process within the statutory extradition hearing. The allegation must be particularised, be legally capable of amounting to abuse, and have reasonable factual grounds before it is investigated. The judge should obtain information or evidence needed to resolve a genuine issue, rather than order civil or criminal-style disclosure from the requesting state or issuing authority.

Fairness normally requires the requested person to see and address that material. If necessary disclosure is refused and a fair determination is impossible, the person must be discharged. A withdrawn extradition request does not remain within the former regime merely because a substantially similar fresh request is later made under the Extradition Act 2003. Seeking the advantages of the new regime is not, without more, an abuse of process.

Two judicial-review claims concerning extradition proceedings were heard together. In the United States proceedings, Mr and Mrs Tollman contended that requests first made before the commencement of the Extradition Act 2003, then withdrawn and renewed, remained governed by the earlier regime. They also alleged abuse of process and had obtained disclosure orders from the Senior District Judge.

In the Spanish proceedings, persons sought under a third set of European arrest warrants alleged that the Crown Prosecution Service had improperly assisted the Spanish judicial authority in drafting the warrants. A District Judge ordered wide disclosure from the issuing authority and the CPS.

The common issue was the proper means by which an extradition judge should investigate a sufficiently arguable allegation of abuse of process.

1. The claims succeeded. The court declared that the United States proceedings were governed by the Extradition Act 2003, granted the United States the consequential relief sought, and quashed the Spanish disclosure order.

2. A jurisdictional issue under the 2003 Act could properly have been raised at the initial appearance and determined as a preliminary issue. Allegations of abuse of process should, however, normally be determined within the extradition hearing. The statutory scheme requires expedition and would be undermined if abuse allegations were litigated outside it.

3. The extradition judge has a duty to protect the integrity of the process. Endorsing R (Kashamu) v Governor of Brixton Prison [2002] QB 887, and applying the duty stated in R v Liverpool Stipendiary Magistrate, ex part Ellison [1990] RTR 220, the court held that the judge must require the alleged conduct to be identified with particularity. The judge must then decide whether the conduct, if proved, could amount to abuse and whether there are reasonable grounds to believe it occurred. Only then must the judge investigate it and be satisfied that abuse has not occurred before granting extradition.

4. The judge should not order conventional disclosure against a foreign state or issuing judicial authority. Instead, the judge should call for the information or evidence required. It should normally be disclosed to the requested person, consistently with equality of arms. If the authority will not permit necessary disclosure and the judge concludes that this makes a fair process impossible, the judge should treat extradition as abusive and discharge the requested person. The public-interest-immunity procedure in R v H and others [2004] UKHL 3 could not be directly adopted.

5. Withdrawal of the 2003 requests ended those proceedings. The later requests invoked the new Act and the saving in the commencement order did not preserve the former regime. Withdrawal and resubmission to proceed under a less onerous regime did not, by itself, constitute abuse. The Spanish judge had not applied the required threshold before making a wide disclosure order. On remittal, the judge had first to decide whether an arguable abuse issue required further information or evidence.

• High Court (Administrative Court): In this joint judgment, the court granted the United States judicial-review claim and quashed the disclosure order challenged by the Spanish judicial authority: [2006] EWHC 2256 (Admin).
• Bow Street Magistrates’ Court, United States proceedings: The Senior District Judge had treated jurisdiction, Article 5 and abuse issues as preliminary matters outside the extradition hearing and made disclosure rulings.
• Bow Street Magistrates’ Court, Spanish proceedings: District Judge Anthony Evans ordered wide disclosure concerning assistance allegedly given by British authorities in drafting European arrest warrants.