QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
- and -
MR JUSTICE CRESSWELL
| Case No: CO/1111/2006
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
|- and –
|Beatrice Nina Tollman
||Second Interested Party
|Case No: CO/4352/2006
The Queen on the application of the Central Examining Court, Criminal Court of the National Court, Madrid
|- and -
|The District Judge, Bow Street Magistrates' Court
|- and –
|Harvinderjeet Singh Sander
John Anthony Rowe
Kuldip Singh Sander
Terence Peter Wilcock
Alun Jones QC and Peter Caldwell (instructed by CPS) for the Claimant
Clive Nicholls QC and Hugo Keith and James Lewis QC and James Hines (instructed by Simmons and Simmons, Solicitors) for the Interested Parties
Case No: CO/1111/2006
Alun Jones QC and Peter Caldwell (instructed by CPS) for the Claimant
James Lewis QC and Ben Watson (instructed by Challinors, Solicitors) for the First and Second Interested Parties
Ben Watson (instructed by Farleys, Solicitors) for the Third Interested Party
Richard Gordon QC and Ben Cooper (instructed by Kaim Todner, Solicitors) for the Fourth Interested Party
Hearing dates: 17 July 2006
Crown Copyright ©
Lord Phillips CJ:
This is the judgment of the court to which each member has contributed.
"It is clear that it was the purpose of the 2003 Act to try and remedy many of the delays inherent in the extradition process under the 1989 Act. There had been numerous ways in which the extradition process had been delayed for very significant periods of time; the Osman and Pinochet cases are but examples of what had happened. An illustration of the intention of Parliament is set out in s. 116 which provided that a decision under this part by the Judge or Secretary of State may be questioned in legal proceedings only by means of appeal under this Act. Other examples are s. 75(2) and s. 76(2) which oblige the Judge to fix a date on which the extradition hearing is to begin. It is clear from those and related sections that the conduct of extradition proceedings is expected to be expeditious. Indeed administrative arrangements were put in hand in this Court and by the Senior District Judge at the end of last year, after severe public criticism was made of the delays which have arisen under 2003 Act, to monitor the progress of each case with the objective of ensuring an early case management hearing and that thereafter the proceedings (including appeals to this court) were resolved within a matter of a few months of the receipt of the request of the requesting state.
The course taken in this case has been defended by none of the parties before us. … the way in which this case has proceeded gives rise to concern as to the way in which such cases should be dealt with so that the extradition process can be determined within a time that is infinitely more expeditious than what has so far happened with this case. In this case, as Mr and Mrs Tollman are in their seventies, it is particularly unjust that so little has been achieved over such a protracted period of time."
"It was the intention of the 2003 Act that the issues in extradition proceedings be resolved speedily and multiple hearings be avoided; … It may … be very helpful if the Court hearing this matter were to consider giving some general guidance, quite apart from the specific directions necessary in this case, as to the way in which issues in extradition proceedings such as those arising in relation to abuse of process, disclosure, privilege and the application of the Act should be determined."
"(i) (a) do the provisions of the 2003 Act apply to the proceedings relating to the extradition sought by the claimant Government against the interested parties commenced by their arrest in August 2004 or do the provisions of the 1989 Act apply and/or (b) what is the manner in which the issue as to the applicability of the Acts should be decided?
(ii) whether an application relating to the abuse of the process of the court made by the interested parties is an application (a) within the proceedings under the 2003 Act or (b) outwith the framework of the 2003 Act and under Article 5 of the ECHR or the court's inherent power or otherwise?
(iii) whether the Judge has any power to order that the requesting territory or the CPS or the Home Office should disclose material relevant to the questions (a) whether the provisions of the 2003 Act apply to these proceedings, and (b) whether the proposed proceedings are an abuse of the process of the court?
(iv) whether the documents listed by the claimant were (a) the subject of legal professional privilege or (b) public interest immunity?
(v) (a) the manner in which these proceedings should be conducted so as to achieve a resolution of all the issues set out in paragraph 14 of the judgment on the permission application and (b) whether a mandatory order, ordering the judge to fix a date for the start of the extradition hearing pending in the case of the defendants without delay, should be made?
(vi) the relief (if any) which should be granted by the court."
(i) A declaration that the provisions of the Extradition Act 2003 apply to extradition proceedings brought by the claimant against Mr and Mrs Tollman, commenced by their arrest in August 2004.
(ii) A mandatory order, ordering the Senior District Judge to fix a date for the start of the extradition hearing without delay.
(iii) A declaration that the Senior District Judge should hear any evidence and argument that the claimant's request for the extradition of Mr and Mrs Tollman is an abuse of process in the context of sections 79 – 87 of the Extradition Act 2003.
(iv) A quashing order, quashing the decision of the Senior District Judge of 6 December 2005.
"(i) whether the District Judge had power to make an order for the disclosure of documents and information in the abuse of process application under the 2003 Act or otherwise?
(ii) whether the order that the District Judge made was invalid on the ground that it was too widely drawn and uncertain?
(iii) whether the District Judge had power to make an order against the issuing judicial authority?"
The United States case – the background and history of the proceedings
(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 23 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.
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 31 December 2003."
Thereafter, by way of Diplomatic Notes dated 12 October 2004, the UK then received the requests for the extradition of Mr and Mrs Tollman.
(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."
"In carrying out the checks to see that this court's procedures had been correctly followed, I had not reached any conclusions on issues relating to the jurisdiction of this court to make an Extradition Order or to consider any abuse of process arguments, which I fully expected to be made to the appropriate judge on the full hearing."
"At paragraph 6, Senior District Judge Workman states "I had not reached any conclusion on issues relating to the jurisdiction of this court to make an Extradition Order … which I fully expected to be made to the appropriate judge on the full hearing." Thus, it would seem from the acknowledgment of service that it is now conceded that Bow Street Magistrates Court would be prepared to hear arguments in due course as to whether, as a matter of jurisdiction, the 2003 Act (and all the powers contained in it) does apply to this case.
May we therefore please have your final position on this matter? An application for judicial review has of course been lodged in relation to Bow Street's earlier refusal to hear us on this point, and the matter will shortly be put before a single judge for a decision as to whether permission should be granted (indeed, the CPS have agreed that our argument merits permission). If, however, the Senior District Judge is prepared to hear full argument on jurisdiction and abuse of process in advance of the full extradition hearing, and this is confirmed to us, then the application may serve no purpose."
"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."
Thereafter, on 7 December 2004, solicitors for Mr and Mrs Tollman wrote to the Administrative Court (copied to the CPS) attaching Bow Street's letter of 1 December. The letter stated: -
"As you will see from the attached letter, there still remains some ambiguity as to whether or not Bow Street Magistrates Court will hear argument on the point we had wished to raise before it (the refusal being the decision now challenged in the judicial review). We have a short hearing at Bow Street on Thursday 9 December, at which we will be seeking clarification of the contents of the attached letter."
"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 in 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
(i) it would hear as a preliminary issue the question of whether the extradition proceedings were correctly brought under the Extradition Act 2003
(ii) 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."
(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  QB 887 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 seek 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 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."
"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 United States case – submissions of the parties.
The submissions of the US Government
i) The issue of jurisdiction had been determined by the Senior District Judge in favour of the US Government by his decision of 4 October 2004.
ii) In any event the 2003 Act applied to the US Government's request and they were entitled to a declaration to that effect.
iii) There was no arguable case of abuse of process to be investigated; alternatively:
iv) The abuse of process issue fell to be determined within the extradition hearing, and not outside it.
v) The Senior District Judge had had no power to order discovery; alternatively:
vi) The United States Government was entitled to claim public interest immunity and legal professional privilege in relation to the documents that the judge had ordered to be disclosed.
The submissions of Mr and Mrs Tollman
i) The Senior District Judge had not determined the issue of jurisdiction.
ii) The issue of jurisdiction and of abuse of process were properly in the course of determination by the Senior District Judge by hearings outside rather than within the extradition hearing.
iii) On true construction of the Commencement Order the 2003 Act did not apply to the United States Government's request because:
a) The subject matter of the request was the same as that of the request made before 31 December 2003; alternatively:
b) The United States Government had, in bad faith, withdrawn their 2003 request with the intention of making a new request after 31 December 2003.
iv) The United States Government was acting in abuse of process in that "deliberately and in bad faith, the USA withdrew the 2003 Request and re-submitted that Request in 2004 in order to thwart and circumvent the proper extradition process under the 1989 Extradition Act. In doing so it deliberately set out to evade the burden of producing evidence of a prima facie case and deprived the accused of that protection, among others, to which they would have been entitled under the 1989 scheme."
v) The Senior District Judge had correctly held that he had power to order discovery and properly exercised that power.
vi) The Senior District Judge had adopted the correct approach to the claim for PII and legal professional privilege.
vii) There was no right to legal professional privilege for one or more of the following reasons: (i) there was no lawyer/client relationship; (ii) the communications had not been made in a "relevant legal context"; (iii) such privilege would be contrary to Articles 5 and 6 of the European Convention on Human Rights ('ECHR'); (iv) the crime/fraud exception applied; (v) any claim to such privilege had been implicitly waived.
The Spanish case – the background and history of the proceedings
"All money movements, transfers, investments in real property and any other kind to which reference has been made, were undertaken by those whose surrender is sought in full knowledge that they are proceeds of drug trafficking."
It is the defendants' case that this addition was attributable to advice improperly given by the CPS in circumstances that amounted to an abuse of process.
"1. The issuing judicial authority and the CPS disclose all documents, notes, memoranda and information relevant to the issue set out in paragraph 3 below within 28 days of the date of this order.
2. Paragraph 1 of this order does not require disclosure of any document or information to which a claim for Public Interest Immunity or Legal Professional Privilege is upheld. Any such claim to be made within 14 days of the date of this order.
3. What input, drafting or other help did the British Authorities give the issuing judicial authority?"
The Spanish case – the submissions of the parties
i) The court has no power to order disclosure in relation to an argument that proceedings under the 2003 Act amount to an abuse of the process.
ii) There is no power to order disclosure against persons abroad.
iii) There is no power to order disclosure against the Madrid Court, which is a judicial authority.
iv) If (contrary to the claimant's primary position) there is power to order disclosure, the order should be set aside on the grounds that it is too widely drawn.
v) No issue of abuse of process arises on the facts of this case.
i) A District Judge does enjoy the power to order disclosure when enquiring into allegations of abuse of process in extradition proceedings under Part 1 of the 2003 Act. The power is derived from two sources. The implied common law power of a magistrates' court to prevent abuse of its process or alternatively section 9 of the 2003 Act. As to the latter, a magistrates' court hearing a domestic summary trial enjoys the power to order disclosure in abuse of process applications. The power is implied as part of its common law jurisdiction. It is also available under statute.
ii) The objection that the order purports to have extra-territorial effect is misconceived.
iii) The contention that the disclosure order is invalid because it is too widely drawn should be rejected.
i) Part 1 of the 2003 Act was intended to transpose the Framework Decision, a piece of secondary Community Law legislation. Although Article 13 ECHR (right to an effective remedy for alleged violation of Convention rights) has not been expressly incorporated into domestic law, it is a fundamental right as guaranteed by the ECHR and, therefore, falls to be applied by the Administrative Court as reflecting a right guaranteed by the Framework Decision, and a right to be implied into Part 1 insofar as possible.
ii) There is a power at common law to order disclosure derived from principles of natural justice, which operate to supplement the omissions of the legislature: Cooper v Wandsworth Board of Works (1863) 14 CBNS 180. Further there is an overriding EU law requirement that there be an effective remedy for abuse of process in the prosecution of extradition proceedings. That overriding requirement has the effect that Part 1 is to be interpreted as containing the power of disclosure to investigate allegations of abuse of process and/or there is a free standing power in the court deriving directly from the Framework Decision and the court's duties under Article 10 of the EC Treaty.
iii) Quite apart from the point taken on the role of the CPS, there was an arguable case of abuse of process founded on a failure to prosecute the extradition proceedings with due diligence. The disclosure sought was essential to determine whether the proceedings had been prosecuted with due diligence.
iv) The order was not drawn too widely.
The new extradition regime
"(5) The objective set for the Union to become an area of freedom, security and justice leads to abolishing extradition between Member States and replacing it by a system of surrender between judicial authorities. Further, the introduction of a new simplified system of surrender of sentenced or suspected persons for the purposes of execution or prosecution of criminal sentences makes it possible to remove the complexity and potential for delay inherent in the present extradition procedures…
(6) The European arrest warrant provided for in the Framework Decision is the first concrete measure in the field of criminal law implementing the principle of mutual recognition which the European Council referred to as the 'cornerstone' of judicial cooperation…
(8) Decisions on the execution of the European arrest warrant must be subject to sufficient controls which means that a judicial authority of the Member State where the requested person has been arrested will have to take the decision on his or her surrender."
The approach of the parties and the judge to extradition proceedings
"The overriding objective
1.1 – (1) The overriding objective of this new code is that criminal cases be dealt with justly…
3.2 (1) The court must further the overriding objective by actively managing the case.
(2) Active case management includes -
(a) the early identification of the real issues;…
(c) achieving certainty as to what must be done, by whom, and when, in particular by the early setting of a timetable for the progress of the case;
(d) monitoring the progress of the case and compliance with directions;
(e) ensuring that evidence, whether disputed or not, is presented in the shortest and clearest way;
(f) discouraging delay, dealing with as many aspects of the case as possible on the same occasion, and avoiding unnecessary hearings;
(g) encouraging the participants to co-operate in the progression of the case;
(3) The court must actively manage the case by giving any direction appropriate to the needs of that case as early as possible.
The duty of the parties
3.3 Each party must -
(a) actively assist the court in fulfilling its duty under rule 3.2, without or if necessary with a direction; and
(b) apply for a direction if needed to further the overriding objective."
Extradition and abuse of process
"1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law…(f) the lawful arrest or detention of a person against whom action is being taken with a view to deportation or extradition…
4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful."
In R (Kashamu) v Governor of Brixton Prison  EWHC Admin 980;  QB 887 this court held that the magistrates' court in extradition proceedings had jurisdiction to consider whether there had been an abuse of process which rendered the detention of the applicant unlawful. He said at paragraph 34:
"What is pertinent here in the present case is solely whether the detention is unlawful by English domestic law and/or arbitrary, because of bad faith or deliberate abuse of the English court's procedure. The scope of the inquiry is, therefore, narrow. In that connection, it by no means follows, merely because second proceedings have been instituted against Kashamu, following failure of the first proceedings in the circumstances earlier set out, that there has been an abuse. I add that it will only be in a very rare extradition case, provided the statutory procedures have been followed, that it will be possible to argue that abuse of process ahs rendered the detention unlawful under section 5(4)."(paragraph 34 Per Rose LJ)
"If any criminal court at any time has cause to suspect that a prosecutor may be manipulating or using the procedures of the court in order to oppress or unfairly to prejudice a defendant before the court, I have no doubt that it is the duty of the court to inquire into the situation and ensure that its procedure is not being abused. Usually no doubt such inquiry will be prompted by a complaint on the part of the defendant. But the duty of the court in my view exists even in the absence of a complaint."
"2. If the executing judicial authority finds the information communicated by the issuing Member State to be insufficient to allow it to decide on surrender, it should request that the necessary supplementary information, in particular with respect to Articles 3 to 5 and Article 8, to be furnished as a matter of urgency and may fix a time limit for the receipt thereof, taking into account the need to observe the time limit set in Article 17."
"(2) If the requested Party requires additional evidence or information to enable a decision to be taken on the request for extradition, such evidence or information shall be submitted within such time as the Party shall require."
The United States Appeal
Issue 1: Does the 2003 Act apply to these proceedings?
"…it became clear that the possibility of a case being transferred was causing a considerable amount of disquiet, of which this amendment is the latest manifestation. The Government have therefore reflected further on the matter and I am now in a position to give your Lordships the outcome of those deliberations. We have decided that no existing cases will be transferred to the new arrangements and that all cases already in the system when the new Act comes into force will continue to be dealt with under the 1989 procedures."
Issue 2: Did the issues of jurisdiction, infringement of Article 5(4) and abuse of process fall to be dealt with outside or within the extradition hearing?
"I should also mention that we do not accept that these warrants are under the correct Act. We believe that the warrants are a continuation of the previous request under Schedule 1 of the 1989 Act. It is a matter I wish to raise before you today. We say the Commencement Order bringing into force the 2003 Act excluded requests made before January 2003, and that these warrants should have fallen under the 1989 Act and continued under Schedule 1 of the 1989 Act."
It is clear from the discussion that followed that Mr Lewis and the Senior District Judge both understood that the case would be adjourned until the start of the extradition hearing, at which all issues would be considered. This remained the Senior District Judge's understanding and intention at the time of his letter of 1 December 2004.
Issue 3: did the Senior District Judge have power to order disclosure?
Issue 4: Were the documents listed by the United States Government subject to (a) legal professional privilege or (b) public interest immunity?
How should the case proceed?
i) The Senior District Judge should fix a date for the commencement of the extradition hearing without delay. That date should be no later than 60 days from the delivery of this judgment.
ii) The Senior District Judge should fix a case management conference at least 30 days before the start of the extradition hearing.
iii) At least 7 days before the case management conference those acting for Mr and Mrs Tollman must file a statement of any grounds upon which the request for extradition is resisted. In particular detailed particulars must be given of any conduct alleged to constitute an abuse of process, together with any matters relied upon in support of the allegation that an abuse of process has, or may have, occurred.
iv) So far as any allegation of an abuse of process is concerned, the Senior District Judge should proceed in the manner that we have described in paragraphs 84 to 91 above.
"(i) the American authorities have, since March 2003, sought the Defendants' extradition;
(ii) the American authorities were advised that their 18th March 2003 requests (effected by Diplomatic Notes Nos 15 and 16 of 2003) and accompanying documents did not disclose, or may not have disclosed, a prima facie case under the 1989 Act (either in form or in substance); or otherwise advised it did not comply with practice and procedure necessary to secure a successful committal under the Extradition Act 1989;
(iii) the request to withdraw the 18th March 2003 requests, by way of Diplomatic Note 20 of 2004 dated 19th April 2004, amounted to an attempt to change the proceedings from the 1989 Act to the 2003 Act because the American and/or British authorities perceived, or were advised, that such a change would provide an easier and less onerous route;
(iv) when Diplomatic Note 20 was issued, the American authorities had no intention of genuinely withdrawing the extant extradition requests. Instead, and in order to effect a change from the 1989 Act to the 2003 Act, they issued Diplomatic Note 20 in bad faith knowing that they should not do so or, alternatively, did so in reliance upon erroneous advice from the English authorities that it was legally permissible or proper to do so, If such advice was given by the English authorities, it was given 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;
(v) at no time did the Home Office or the CPS formally advise the American authorities that their request to withdraw was accepted;
(vi) the American authorities knew that Article VII and IX of the 1972 Treaty would not be complied with under their request dated October 2004;
(vii) the Home Office and/or the CPS decided (or advised) that no steps should be taken to act upon the extradition requests of March 2003 and, accordingly, no orders to proceed were issued under the 1989 Act between receipt of Diplomatic Notes 15 and 16 of 2003 (in March 2003) and receipt of Diplomatic Note 20 of 2004 (in April 2004);
(viii) the American authorities decided to attempt to transfer their extant request under the 1989 Act to one under the 2003 Act;
(ix) the 2004 request is no more that a resubmission of the 2003 request."
"The prosecutor must act in good faith. Thus, if he knew that he had no real case, but was pressing the extradition request for some collateral motive and accordingly tailored the choice of documents accompanying the request, there might be a good submission of abuse of process. Again, if he knew he could not (or perhaps could not without great difficulty) make out a prima facie case and so deliberately delayed the extradition process until the 1989 Act had been safely superseded by the 2003 Act, that also might be held to be abusive."
The Spanish Appeal
"It appears and will be further developed after disclosure has been made that there has been collusion between the UK and the Spanish authorities to procure an appropriately drafted EAW. It is submitted that it is no part of the role of the UK authorities to participate in the preparation of an EAW in an attempt to facilitate the production by the issuing authority of an EAW that comes closer to meeting the relevant statutory requirements. It is not for the receiving authority or the court to enquire into the purpose of the extradition, or assist the issuing authority in identifying or particularising the criminal conduct alleged. That is entirely for the issuing authority, and if the integrity of the extradition process is to be preserved their respective (and quite separate roles) must not be permitted to become confused."