Popa v Regional Court In Plzen Mestro, Czech Republic

Extradition proceedings may be stayed or terminated for abuse of process where executive conduct threatens the integrity of the statutory scheme. The alleged abuse must be identified with particularity. The court must then consider whether the conduct is capable of amounting to abuse and whether there are reasonable grounds for believing that it occurred. If so, the issuing judicial authority should be asked for an explanation, and extradition should not be ordered unless the court is satisfied that no abuse occurred.

Unlawful detention and serious administrative failures do not necessarily amount to abuse. The threshold is high. Incompetence, confusion and muddle, without bad faith or conduct approaching the requisite level of egregiousness, are insufficient.

This was a statutory appeal under section 26 of the Extradition Act 2003 against District Judge Tubbs’s order for the appellant’s extradition to the Czech Republic under a European Arrest Warrant.

Several warrants had been issued. The first was withdrawn and replaced, but the withdrawal was not promptly notified to the court. The appellant was consequently detained unlawfully for a period. He alleged that the CPS and SOCA had deliberately concealed the position and had pursued the proceedings in bad faith to keep him in custody. The central issue was whether that conduct required the extradition proceedings to be treated as an abuse of process.

1. Appeal dismissed. The Divisional Court held that the conduct of the CPS and SOCA did not amount to an abuse of process.
2. The court accepted that extradition proceedings under the Extradition Act 2003 possess an abuse of process jurisdiction. The governing approach, stated in Bermingham and Others v Government of United States of America [2006] EWHC 200 (Admin), [2007] QB 727, R (Government of United States of America) v Bow Street Magistrates Court and Tollman [2006] EWHC 2256 (Admin), [2007] WLR 1157, and Haynes v Malta [2009] EWHC 880, requires the court to identify the alleged abuse with specificity, decide whether the conduct is capable of amounting to abuse, and determine whether there are reasonable grounds for believing that it occurred.
3. Although SOCA had breached its duties under sections 41 and 42 and the appellant’s detention had been unlawful, the evidence did not establish bad faith. The correspondence showed incompetence, confusion and muddled legal analysis, rather than a deliberate plan to retain the appellant in custody or mislead the court.
4. The CPS nevertheless owed the defence a duty of candour. The refusal to provide reasonable information about the withdrawal of the warrant was unacceptable, but it did not itself establish abuse of process.
5. Following the approach in Lopetas v Minister of Justice for Lithuania [2007] EWHC 2407 (Admin), the court held that the conduct did not approach the high threshold required before executive misconduct can taint newly instituted extradition proceedings. The valid Czech extradition request remained unaffected, and the appeal was dismissed.

1. District Judge Tubbs: on 5 October 2010 ordered the appellant’s extradition and rejected the abuse of process argument.
2. High Court (Administrative Court): on the statutory appeal under section 26 of the Extradition Act 2003, the court upheld that conclusion and dismissed the appeal.