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

District judges conducting extradition proceedings must investigate allegations of abuse which are particularised, legally capable of constituting abuse and supported by reasonable grounds. Such allegations should normally be addressed within the extradition hearing. The judge should request necessary information or evidence from the issuing judicial authority or requesting state, rather than order ordinary civil or criminal disclosure. That material should normally be available to the person resisting extradition. A fresh request made after commencement of the Extradition Act 2003 is governed by that Act once an earlier request has been withdrawn. Seeking the benefits of the less onerous regime does not, by itself, constitute abuse. Statutory timetables require active case management, with extensions granted only exceptionally in the interests of justice.

The United States Government sought judicial review of decisions made by the Senior District Judge in proceedings for the extradition of Stanley and Beatrice Tollman, who lived in the United Kingdom. Requests made under the Extradition Act 1989 were withdrawn after the Extradition Act 2003 came into force. Fresh requests were subsequently made under the new regime. The Tollmans disputed its applicability and alleged that withdrawal and resubmission improperly avoided the earlier requirement to establish a prima facie case.

The Senior District Judge agreed to consider jurisdiction and abuse before the extradition hearing. He ordered disclosure and subsequently rejected the contention that communications between the Crown Prosecution Service and the United States Government attracted legal professional privilege through a solicitor and client relationship. The United States Government sought declarations, an order requiring the extradition hearing to be fixed and the quashing of the privilege ruling.

A related judicial review claim was brought by the Madrid court which had issued European Arrest Warrants against seven people. Two earlier attempts to obtain their extradition had failed. The requested persons alleged that the Crown Prosecution Service had improperly helped draft a third set of warrants. District Judge Anthony Evans ordered disclosure concerning British assistance. The claims raised common questions about the investigation of alleged abuse and the appropriate means of obtaining supporting information.

1. Both claims succeeded. The United States Government was entitled to all four heads of relief sought. The Spanish disclosure order was quashed. The joint judgment distinguished investigation of arguable abuse from ordinary disclosure proceedings.

2. Extradition proceedings were criminal proceedings of a special kind. Relevant criminal evidence and procedure rules applied subject to the statutory schemes. The court and parties had duties of active case management and cooperation. Statutory timetables should be observed, with extensions granted only exceptionally in the interests of justice. A straightforward jurisdictional question of statutory construction should be resolved before the extradition hearing. Abuse allegations should normally be considered within that hearing.

3. The extradition judge had jurisdiction, and a duty when put on enquiry, to protect the process against abuse. The jurisdiction recognised in Bermingham and Others, [2006] EWHC 200 (Admin), was endorsed. The duty described in R v Liverpool Stipendiary Magistrate, ex part Ellison, [1990] RTR 220, extended to extradition proceedings and could arise without a defendant's complaint. Alleged conduct must first be particularised. The judge must decide whether it could constitute abuse and whether reasonable grounds supported its occurrence. If those conditions were satisfied, extradition should be refused unless the judge was satisfied that the abuse had not occurred.

4. Ordinary civil and criminal disclosure rules could not be applied to extradition hearings. The appropriate course was to call upon the issuing judicial authority or requesting state for the information or evidence needed to resolve the issue. The material should normally be available to the requested person, consistently with equality of arms and the standards required by Article 13 of the European Convention on Human Rights.

5. By way of guidance, confidential material might exceptionally be considered without disclosure, subject to a fact-specific assessment of fairness. The public interest immunity procedure in R v H and others, [2004] UKHL 3, could not be adopted directly where the same tribunal inspected the material and determined the substantive issues. If fairness required disclosure and consent was refused, fair process would be impossible and the requested person should be discharged. The particular privilege and immunity claims therefore did not arise for determination.

6. The commencement saving concerned existing requests and ceased to apply once a request was withdrawn. Fresh requests were governed by the Extradition Act 2003, irrespective of substantially identical allegations or the motive for withdrawal. Choosing its less onerous regime was not itself abusive. An arguable abuse case required grounds for suspecting an improper motive in the current proceedings or some other abuse.

7. In the Spanish case, the judge should first assess whether the alleged drafting assistance could constitute abuse, then seek admissions or necessary information. Its impropriety remained undecided. Argument should address the advisory duty under section 190. For the Tollmans, an extradition hearing should be fixed without delay, ordinarily within 60 days, with an earlier case management conference and particularised grounds of opposition. The timetable remained subject to the Senior District Judge's discretion.

• High Court (Administrative Court): In the present joint judgment, [2006] EWHC 2256 (Admin) , the court granted the United States Government the four heads of relief sought and quashed the disclosure order challenged by the Madrid court. Permission for the United States claim, including challenges brought out of time, had been granted by Thomas LJ and Silber J on 15 June 2006. Silber J granted permission for the Spanish claim.
• High Court (Administrative Court): An earlier judicial review application by the Tollmans concerning the Senior District Judge's October 2004 ruling was withdrawn by an agreed order dated 17 December 2004. The agreed basis included consideration of jurisdiction and abuse as preliminary issues.
• Bow Street Magistrates' Court: In the United States proceedings, the Senior District Judge ordered disclosure on 6 June 2005, addressed public interest immunity on 13 October 2005 and ruled on legal professional privilege on 6 December 2005. In the Spanish proceedings, the requested persons were discharged following the first two attempts at extradition. District Judge Anthony Evans made the challenged disclosure order concerning the third set of warrants on 21 April 2006.