Central Examining Court of the National Court of Madrid v City of Westminster Magistrates' Court

Drafting assistance given by the Crown Prosecution Service to a foreign issuing judicial authority does not, without more, constitute an abuse of extradition process. The essential requirement is that the issuing authority itself formulates and adopts the European arrest warrant, rather than merely signing a warrant prepared independently by another body. An examining court may seek information where there are reasonable grounds to suspect that the issuing authority has abdicated its function or that the assisting body has usurped it. It may not make a speculative or coercive disclosure order against the issuing authority. Simple drafting assistance, even in relation to part of a warrant, is not capable in law of amounting to abuse where the warrant remains that of the issuing authority.

The Central Examining Court of Madrid issued successive European arrest warrants seeking the surrender of persons wanted in Spain for drug trafficking. The first two sets were legally deficient. The third set contained passages apparently drafted with assistance from the Crown Prosecution Service.

The City of Westminster Magistrates’ Court considered that there was an arguable case of abuse of process and required the CPS to disclose whether it had assisted in drafting the warrants. The Madrid court sought judicial review. The central issue was whether partial drafting assistance by the CPS was capable of constituting an abuse and whether the district judge had power to require further information.

1. The claim succeeded. The district judge’s order of 14 February 2007 was quashed as having been made without power. No declaration was required. The claimant was awarded its costs, and a question of law of general public importance was certified.

2. The magistrates’ court has jurisdiction under the Extradition Act 2003 to restrain abuse of process. That jurisdiction must be exercised cautiously. The alleged conduct must first be identified with particularity. The court must then ask whether, if established, it could amount to abuse and whether there are reasonable grounds for believing that it may have occurred.

3. Where those conditions are met, the court may call upon the issuing judicial authority for information or evidence needed to determine whether abuse occurred. The power is one of seeking assistance, not making a coercive disclosure order. A speculative request intended to discover whether evidence of abuse exists is impermissible.

4. The court accepted that an issuing judicial authority may obtain drafting assistance from the CPS or another person, provided that the warrant is prepared on the authority’s instructions and is adopted by it. The CPS’s assistance does not itself abdicate the issuing authority’s functions or usurp them.

5. The material before the district judge did not rationally support a suspicion that the CPS had acted without instructions or that the Spanish court had merely rubber-stamped a warrant. The drafting assistance was therefore not capable in law of amounting to abuse. It did not impair equality of arms or the visible independence and impartiality of the Spanish judicial authority.

6. Section 190 of the Extradition Act 2003 had limited value because the alleged abuse concerned the issuing authority’s conduct, not an act by the CPS outside its statutory role. The court left open questions concerning privilege or public interest immunity and the possible drawing of adverse inferences from an inadequate response.

• High Court (Administrative Court): the judicial review claim was granted and the district judge’s order of 14 February 2007 was quashed.
• Earlier Divisional Court decision: the earlier disclosure order had been quashed in [2006] EWHC 2256 (Admin), with the matter remitted for reconsideration of whether an arguable abuse existed and what information should be sought.