Strand, London, WC2A 2LL
B e f o r e :
Mr. Justice Silber
| The Queen on the application of the Government of the United States of America
|- and -
|The Senior District Judge, Bow Street Magistrates Court
|- and -
|Stanley Stephen Tollman
||First Interested Party
|Beatrice Nina Tollman
||Second Interested Party
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Clive Nicholls QC and Hugo Keith and James Lewis QC and James Hines (instructed by Simmons and Simmons) for the Interested Parties
Hearing date: 6th June 2006
Crown Copyright ©
Lord Justice Thomas:
i) On the 16 April 2002 a grand jury in the United States issued an indictment against Mr. Tollman followed by a supplementary indictment on the 23rd January 2003. This indictment alleged that he had been engaged in conspiring to defraud banks and other financial institutions in relation to the renegotiation of very substantial debts by misrepresenting the ability of debtors to repay their debts.
ii) On 24 January 2003 the United States Internal Revenue Service issued a criminal complaint against Mrs. Tollman which was filed in the United States District Court for the Southern District of New York.
"2. All of the provisions of the Act shall come into force on 1st January 2004, subject to the savings contained in this Order.
3. The coming into force of the Act shall not apply for the purposes of any request for extradition, whether made under any of the provisions of the Extradition Act 1989 or of the Backing of Warrants (Republic of Ireland) Act 1965 or otherwise, which is received by the relevant authority in the United Kingdom on or before the 31st December 2003."
The 2003 Act and the conduct of the proceedings for extradition
i) Does the Extradition Act 1989 or the Extradition Act 2003 apply to the extradition of Mr. and Mrs. Tollman? It is contended by the US Government that this is a question of law; it is contended on behalf of the Tollmans that this also involves a factual enquiry. This issue has not yet been determined.
ii) If the 1989 Act applies to the Extradition of Mr. and Mrs. Tollman, then the following issues arise:
a) Have the US Government made out a case to answer?
b) Has the US Government made out an extradition crime?
c) Have there been any contraventions of Convention rights? Mr. and Mrs. Tollman rely upon the decision of Kashamu  EWHC Admin 980.
iii) If the 2003 Act applies:
a) Has there been an abuse of process in making the request under the 2003 Act?
b) Has an extradition offence been made out under s.78 (4)?
c) Can Mr and Mrs Tollman rely on the passage of time under s. 79 and s.82?
d) Would the extradition of Mr. and Mrs. Tollman be compatible with their Convention rights (s. 84)?
e) What is the relevance of the state of health of Mr. and Mrs. Tollman?
iv) Is there power to order disclosure in relation to the abuse of process issue in relation to the application for extradition under 2003 Act or the factual issue in relation to the question as to which Act applies?
v)If so are any documents that are disclosable covered by public interest immunity or legal professional privilege?
vi) How is the evidence of the assistant district attorney, Mr. Stanley J Okula to be received in the proceedings?
The proceedings before the Senior District Judge
i) Whether on the true construction of the commencement order for the 2003 Act, the receipt of a request for extradition before 31 December 2003 precluded the operation of the 2003 Act.
ii) Whether the deliberate withdrawal and resubmission of an extradition request in order to defeat the provisions of the Commencement Order amounted to an abuse of process and thus a breach of Article 5 of the Convention.
" I am satisfied that the jurisdiction of this court was only invoked on the laying of the information on the 11th August 2004 and that information related to a diplomatic note dated the 6th August 2004 which required a provisional warrant. The diplomatic note, the information leading to the provisional warrant, the provisional warrant and the subsequent remand on bail all occurred after the commencement of the Extradition Act 2003.
It appears therefore that the court acted properly within its jurisdiction under the 2003 Act.
If, however, it was acting outside its proper jurisdiction, the court having reviewed the decision, it must now be a matter for the High Court if the issue remains a live one."
"It will be our position that in order to expedite the process, as undoubtedly all parties seek, relief should be refused on the basis that the 2003 Act applies. If we are wrong and the court holds that the 1989 Act applies, it is probable that we shall accept that and proceed accordingly, although we cannot of course promise that we would not seek to appeal further in interests of certainty. We trust you will join with us in seeking finality on this issue, avoiding a protracted and expensive series of technical argument. We note from your Claim Form that your clients are seeking a "speedy" hearing in the Magistrates' Court".
"The Senior District Judge has asked me to confirm that he expects all the legal arguments to be advanced in this case at the full hearing of this extradition case, which will presumably include abuse of process issues.
The examination by the Senior District Judge of the application under the 2003 Act and the subsequent provisional warrant was to establish whether there had been any procedural errors within the court's process which would warrant the relisting of this case as a matter of urgency.
It is a matter for you as to whether you wish to challenge in the High Court the issue as to whether this Court validly issued process under the 2003 Act or whether you wish to challenge in the extradition proceedings the decision of the Government of the United States of America to bring proceedings under the 2003 Act rather than the 1989 Act."
"knowing that it would be an attempt to defeat the Commencement Order or otherwise manipulate the course of the proceedings or reckless as to whether it would be so."
The letter concluded:
"In the event that you refuse to disclose any relevant documents for any reason, we suggest the proper way to proceed is for you to set out an itemised schedule a brief description of such documents, together with the reasons for the refusal to disclose, details of their origin, and whether such documents have been shared with, or seen by, the Home Office or any other party. Any documents in relation to which privilege or PII is claimed should be included in the schedule and made available for the court in the normal way."
"By letter dated 1 December Bow Street Magistrates' Court confirmed that it would be prepared to hear "all legal arguments" On 9 December 2004, on an application to adjourn the date of the extradition hearing, after hearing submissions, the court ruled that prior to the extradition hearing
(1) It would hear as a preliminary issue the question of whether the extradition proceedings were correctly brought under the Extradition Act 2003
(2) It would hear as a preliminary issue, if it held that the extradition proceedings were correctly brought under the Extradition Act 2003, whether such proceedings were an abuse of the process of the court"
"In order to properly assess the documents, the defence require a schedule of documents from the CPS, the Home Office and the US authorities with a description of each document and, if it is not to be disclosed for reasons of PII or purported legal professional privilege, that reason should be set out against each document so that the appropriate ruling of the court can be sought on the document not disclosed."
The skeleton argument also invited the court to invoke one of five procedural routes that might be adopted to secure disclosure. These were:
(i) Invite the CPS, Home office and the requesting state, through its agent appearing in this jurisdiction, to disclose the requested documents.
(ii) Order the CPS and the Home Office to make disclosure under its inherent jurisdiction.
(iii) Invite the Secretary of State to disclose and invoke his powers under article 1X of the 1972 treaty.
(iv) Issue a witness summons against Alison Riley of the CPS and Irving Jones of the Home office and Mr. Okula under s.97 of the Magistrates Courts Act 1980.
(v) Issue a request for assistance under section 7 of the Crime (International Cooperation) Act 2003.
i) He rejected a submission on behalf of the United States Government that the issue of whether they were proceeding under the 1989Act or the 2003 Act should be resolved swiftly by the High Court; the proceedings were at present being determined under the Extradition 2003. If the proceedings were not being brought under the 2003 Act, then it would be the duty of the court to discharge the case.
ii) He was satisfied as a result of the decision in Kashamu that the court could entertain an abuse of process application albeit on a limited basis. He was also satisfied that the court had a responsibility to rule upon allegations of breach of Article 5 and to conduct an Article 5 enquiry where the defence were able to establish there was a need for such an enquiry. The defence were therefore entitled to raise the issue of Article 5 and call upon the Court to enquire into whether the defendants' rights under Article 5 had been denied; they were also entitled in due course to persuade the court there had been an abuse of process which would lead to the proceedings being discharged.
iii) In relation to the application for disclosure, there was a fundamental assumption that the requesting State was acting in good faith and it was for that state to decide what material to advance in the course of its application. Whilst there was a duty of candour on the requesting State, the court in England and Wales would not order a specific disclosure in respect of the extradition proceedings themselves:
"However, the Defence say that in this case the order being sought for disclosure is not in relation to the extradition proceedings themselves, but is in relation to an Article 5 inquiry and consideration of an abuse of process argument. I am satisfied that in relation to those two specific inquiries this Court would have the power to order disclosure, provided the Court was satisfied that there was a proper and valid issue to be considered and provided that the order related to matters within the geographical jurisdiction of this court."
After referring to what had taken place in 2003 and 2004, he concluded:
"The delay following the initial request is considerable. It may be that there were good and justifiable reasons for the delay but in the light of the fact that the American Lawyer, Mr Okula, assures me in an affidavit that there was a prima facie case, it is surprising that no order to proceed was issued after the request was received in March 2003. An Order for disclosure may well reveal the explanation, and for the purposes of the Article 5 inquiry, I conclude that the Defence are entitled to see the relevant documentation. The explanation may be entirely innocent and may have no effect on these proceedings but the defence have satisfied me that they have grounds for raising the issue and having done so, they are entitled to have the jurisdiction point resolved."
He then made a written Order for disclosure in the terms requested by the defence which contained a reservation for legal professional privilege and Public Interest Immunity.
iv)He made it clear that he was not making an order in relation to the evidence of Mr. Okula, save to decide that he had no power to require Mr. Okula to give evidence in person. The 2003 Act provided that duly authenticated documents might be received in evidence. He would decide later whether the affidavit could be admitted in the extradition proceedings as it was not possible to make a proper judgment on that issue until disclosure, if made, was considered.
"It will be usual in cases where Public Interest Immunity is being asserted for the certificate to explain the nature of the public interest which could be adversely affected, and in broad terms the damage, which could result from disclosure. The second and closed part of the certificate would need to go into precise details of each particular document.
In this case, the defendants maintain that there is no proper certificate defining the individual documents in which Public Interest Immunity is sought and it would be inappropriate for this court to consider any ex parte application because the preliminary threshold has not been met.
I accept that submission and I am not satisfied that the preliminary threshold has been reached and I can see no grounds for considering an ex parte application at this stage."
He rejected the claim for diplomatic privilege. In respect of legal professional privilege, he held:
"The Prosecution have also raised the issue of Legal Professional Privilege, I am satisfied that there is an argument for saying that the relationship between the Crown Prosecution Service and the Government is one of a Solicitor and Client. As this is at least arguable, it seems to me that there may well be documents which fall within the narrow category of having Legal Professional Privilege. However, these documents cannot be defined as a class and need to be properly itemised and identified. If those documents can be identified they can be the subject of submissions on the principles to be applied. This can then be followed by an ex parte application in which each of the documents will need to be considered in the light of the usual principles."
At the end of his judgment the Senior District Judge concluded:
"This case is inevitably going to take some time but I am concerned that these procedural steps are becoming protracted. Clearly, the case requires careful consideration and preparation by both sides but I will be grateful for Counsel's advice as to how the real issue in this can be resolved as speedily as possible."
The contentions of the parties
Mr. Justice Silber: I agree.