England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		24/02/2011

The Hon. Mr. Justice Lloyd Jones:

1. This is a statutory appeal by Mr. Cristian Popa against the decision of District Judge Tubbs made on 5^th October 2010 ordering his extradition to the Czech Republic.
2. The extradition of Mr. Popa ("the appellant") is sought by the issuing Czech Judicial Authority pursuant to a European Arrest Warrant issued on 8^th March 2010. It alleges many offences of fraud.
3. The Czech Republic has been designated a Category 1 territory pursuant to section 1, Extradition Act 2003 ("the Act"). Accordingly, Part 1 of the Act applies, as modified by the provisions of the Extradition Act 2003 (Multiple Offences) Order 2003 and the Police and Justice Act 2006, Schedule 13.
4. European Arrest Warrants ("EAWs") are received in England by the Serious Organised Crime Agency ("SOCA") which is a designated authority for the purpose of Part 1 of the Act pursuant to the Extradition Act 2003 (Part 1 Designated Authorities) Order 2003 as amended by the Serious Organised Crime and Police Act 2005 (Consequential and Supplementary Amendments to Secondary Legislation) Order.
5. The EAW which is the subject of this appeal is in fact the third such warrant issued in these proceedings. The first ("the first warrant") was issued on 17^th August 2009 by a Czech Judicial Authority, the District Court in Plzen Mestro. It was certified by SOCA on 30^th December 2009 and the appellant was arrested on the same day. He appeared before City of Westminster Magistrates' Court for initial hearing on 31^st December 2009 when he did not consent to extradition.
6. On 11^th January 2010 the Regional Court in Plzen Mestro issued a new EAW ("the second warrant"). That document expressly stated that it was "to replace the arrest warrant issued on 17 August 2009". It explained that in view of amendments to the Criminal Code coming into effect on 1^st January 2010 proceedings against the appellant would be in accordance with the second warrant. The second warrant was subsequently received by SOCA and the Crown Prosecution Service ("CPS") but was not certified. However, the proceedings in England continued on the basis of the first warrant. On 26^th January 2010 an extradition hearing took place before District Judge Evans on the basis of the first warrant and extradition was ordered. On 1^st February 2010 an appeal was lodged with the Administrative Court. The only ground of appeal, so far as I am aware, was a challenge to the formal validity of the first warrant in that the charges were set out in a schedule and not in the body of the warrant.
7. On 8^th March 2010 the Regional Court issued a third EAW ("the third warrant"). The third warrant expressly stated that it was "to replace the arrest warrant issued on 17 August 2009 by a judge of the District Court". The third warrant included the list of charges in the body of the warrant and not in the schedule. The third warrant was certified by SOCA on 7^th April 2010.
8. On 16^th April 2010 the appeal came before the Administrative Court (Pill L.J. and Rafferty J.). Shortly before the hearing the appellant's legal advisors had become aware for the first time of the existence of the third warrant. (It appears that, in addition, they were unaware of the existence of the second warrant). At the hearing Miss Mannion, who appeared on behalf of the appellant, questioned whether the appellant was lawfully detained. She pointed to the fact that there was a new warrant (the third warrant) which had not been executed. She drew attention to the express statement in the third warrant that it was to replace the arrest warrant issued on 27^th August 2009. Miss Mannion also drew the attention of the court to section 42 of the Act which provides:

"(1) This section applies if at any time in the relevant period the High Court is informed by the designated authority that a Part 1 warrant issued in respect of a person has been withdrawn.

(2) The relevant period is the period—

(a) starting when notice of an appeal to the court is given by the person or the authority which issued the warrant;

(b) ending when proceedings on the appeal are discontinued or the court makes its decision on the appeal.

(3) The court must—

(a) if the appeal is under section 26, order the person's discharge and quash the order for his extradition;

(b) if the appeal is under section 28, dismiss the appeal.

(4) If the person is not before the court at the time the court orders his discharge, the court must inform him of the order as soon as practicable."

Miss Mannion invited the court to discharge the appellant under section 42 (3).

9. Mr. John Jones, who appeared on that occasion on behalf of the Judicial Authority, was inclined to accept that section 42 applied. However the court was concerned that SOCA itself should give an indication. Following a short adjournment an email from SOCA was produced to the court. It stated:

"The Czech Republic have cancelled the EAW of Cristian Popa dated 17 August 2009".

It went on to say that it had been replaced by a new warrant. The members of the court were satisfied that the warrant which was the subject of the appeal had been withdrawn within section 42. It followed that the appellant was entitled to be discharged under 42(3) and the order for his extradition was quashed. Mr. Jones consented to an order in those terms.

10. On the evening of 16^th April 2010 the appellant was arrested on the third warrant on his release from prison. He appeared before the City of Westminster Magistrates' Court the next day for an initial hearing. He did not consent to extradition and was granted bail.
11. On 29^th April 2010 he commenced proceedings seeking permission to apply for judicial review against SOCA and the CPS. That application came before Mr. Justice Hickinbottom as a paper application on 23^rd July 2010. In his order the judge recorded that SOCA accepted that it had breached its obligations under sections 41 and 42 of the Extradition Act 2003 by failing promptly to notify the relevant court that an EAW had been withdrawn by the authorities seeking extradition for the period 17^th March to 16^th April 2010 and it had admitted liability for a violation of Article 5 ECHR and false imprisonment for that period. The judge considered that it was arguable that the breach extended back to 15^th January 2010 when SOCA was notified that a new warrant had been issued and therefore granted permission in respect of that ground for the period 15^th January 2010 to 16^th April 2010. However he refused permission in respect of the claims against SOCA for misfeasance in public office and under Article 8 ECHR and in respect of all claims against the CPS. He observed:

"I do not consider it is arguable that either defendant was guilty of misfeasance in public office; the claims are not well-particularised and there appears to be no sound evidential basis for a suggestion that these actions resulted from bad faith (as opposed to, at most, confusion and a lack of appreciation of what the statutory scheme required them to do)".

12. It is a slightly curious feature of the application before the judge that it sought permission to bring proceedings for misfeasance in public office by way of judicial review, when such a claim could have been brought as a private law claim without permission. However, the observations of Hickinbottom J. are clearly in point. Nevertheless, this court must make its own assessment of what occurred on the basis of the materials before it, which may well differ from those before Hickinbottom J.
13. We have been told that those proceedings were subsequently compromised and that damages have been paid by SOCA to the appellant.
14. At the hearing before D.J. Tubbs on 5^th October 2010 the appellant's case was one of abuse of process. There was no dispute that the Judicial Authority had always properly and fairly pursued its request for the appellant's extradition on the offences set out in the various warrants. However it was alleged that the conduct of SOCA and the CPS in relation to these proceedings had been an exercise in bad faith which had tainted the proceedings. It was submitted that the guiding principle applied by the CPS in this case was to keep the appellant in custody at all costs and that the CPS had knowingly acted illegally in doing so. In particular it was alleged that the CPS had manipulated the court proceedings by deliberately declining to reveal the full history of the EAWs. Bad faith was expressly alleged.
15. District Judge Tubbs considered that the appellant had sufficiently particularised the conduct alleged to constitute the abuse of process. However, she concluded that there had been no abuse of process. There was no question that the request for the appellant's extradition to stand trial in the Czech Republic for the extradition of offences was a valid and proper request and was being pursued by the Czech judicial authorities. Furthermore, there was nothing about the contents of the first warrant that clearly rendered it illegal or invalid as a Part 1 warrant. She considered that the somewhat convoluted and unfortunate history revealed confusion and a lack of clarity at certain stages by advocates and members of the CPS as to the factual and legal position. However it was not capable of supporting the very serious allegation of deliberate professional misconduct motivated by bad faith and a desire to keep the defendant in custody at all costs. The withdrawal of an EAW and its replacement with another amended EAW was not an unusual occurrence and did not necessarily lead to any change in a defendant's bail or custody status. She found that mistakes had occurred in this case. SOCA had accepted breaching its obligation under sections 41 and 42 of the Act and admitted liability for a period of unlawful detention of the defendant. However, there was no evidence from which it could properly be inferred that any individual or the CPS as a whole had acted in bad faith.
16. The appellant now appeals to this court pursuant to section 26 of the Act.

The abuse of process jurisdiction

17. It is now well established that this court has an abuse of process jurisdiction in relation to extradition proceedings under the Extradition Act 2003. In Bermingham and Others v Government of United States of America [2006] EWHC 200 (Admin); [2007] QB 727 Laws L.J. said at paragraph 97:

"I should not leave the point without considering the nature of the juridical exercise involved in concluding as I would, that the judge conducting an extradition hearing under the 2003 Act possesses a jurisdiction to hold that the prosecutor is abusing the process of the court.

… the implication arises from the express provisions of the statutory regime which it is his responsibility to administer. It is justified by the imperative that the regime's integrity must not be usurped. Where its integrity is protected by other powers, as in the Atkinson, Schmidt and Gilligan cases, the implication is not justified. But under the 2003 Act that is not the case. The implication of an abuse jurisdiction – Lord Reid's inference – follows."

18. In R (Government of United States of America) v Bow Street Magistrates Court and Tollman [2006] EWHC 2256 (Admin); [2007] WLR 1157 Lord Phillips C.J. observed (at para 82):

"Indeed, we would go further than this and apply to extradition proceedings the statement made by Bingham L.J., in relation to conventional criminal proceedings in R v Liverpool Stipendiary Magistrate, ex parte Ellison [1990] R.T.R. 220, 227:

"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 enquire into the situation and ensure that its procedure is not being so abused. Usually, no doubt, such enquiry 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.""

Later at paragraph 24 he addressed the procedural steps to be followed:

"No steps should be taken to investigate an alleged abuse of process unless the judge is satisfied that there is reason to believe that an abuse may have taken place.

…

the first step must be to insist on the conduct alleged to constitute the abuse being identified with particularity. The judge must then consider whether the conduct, if established, is capable of amounting to an abuse of process. If it is, he must next consider whether there are reasonable grounds for believing that such conduct may have occurred. If there are, then the judge should not accede to the request for extradition unless he has satisfied himself that such abuse has not occurred…"

Finally Lord Phillips CJ stated (at paragraph 89):

"The appropriate course for the judge to take if he has reason to believe that an abuse of process may have occurred is to call upon the judicial authority that has issued the arrest warrant, or the State seeking extradition in a Part 2 case, for whatever information or evidence the judge requires in order to determine whether an abuse of process has occurred or not."

19. Similarly in Haynes v Malta [2009] EWHC 880 Richards L.J. observed (at paragraph 6):

"To sustain an allegation of abuse of process in relation to proceedings under the Act, it is necessary, first to identify with specificity what is alleged to constitute the abuse; secondly to satisfy the court that the matter complained of is capable of amounting to an abuse; and thirdly to satisfy the court that there are reasonable grounds for believing that such conduct has occurred. If the matter gets that far, then the court should require the judicial authority to provide an explanation. The court should not order extradition unless satisfied that no such abuse has taken place."

The appellant's case on abuse of process.

20. The starting point on this appeal is that it has been accepted by SOCA that the continuing detention of the appellant under the first warrant after it had been withdrawn was unlawful. It is further accepted that it was the duty of SOCA to notify the court promptly of the fact of the withdrawal of the first warrant and that SOCA was in breach of that duty. It is not alleged that the conduct of these proceedings has impaired in any way the fairness of any judicial proceedings against the appellant if he is returned to the Czech Republic. However, it is said that the deliberate abuse of extradition procedures which has occurred in this case is so offensive to standards of justice that the court should mark its disapproval by refusing to order the extradition of the appellant.
21. I turn first to consider how the appellant puts his case and whether the alleged abuse of process has been identified with sufficient particularity.
22. In the skeleton argument lodged for this hearing on behalf of the appellant bad faith is not expressly alleged. However it states:

"… there are sufficient grounds to show that the CPS kept the appellant in custody in full knowledge that EAW1 had become null and void. Those actions were unjust and unfair. The subsequent extradition proceedings…are therefore tainted by a protracted effort to keep the appellant in custody at all costs."

and further alleges that:

"The CPS breached their duty of candour to the court by not withdrawing the proceedings in relation to EAW1 until they were able to re-arrest the appellant."

23. On behalf of the appellant it is submitted that on a detailed examination of the correspondence it is apparent that there was knowledge of the invalidity of the first warrant. The appellant accepts that the duty to inform the court of the withdrawal of an EAW is on SOCA under section 42. However he submits that there is also a duty to prosecute fairly. In all the circumstances it is submitted that it was improper for a prosecutor to continue to pursue an appeal knowing that the first warrant was invalid in order to ensure that the appellant remained in custody until fresh proceedings could be initiated.
24. The appellant points to six key factors which, it is said, show that the appellant should be discharged because of the actions of the CPS.

(1) The CPS have a duty of candour and disclosure to the court regarding all criminal proceedings including extradition proceedings.

(2) The duty of candour to the court has not been adhered to in that the first warrant was invalid and the appellant was retained in custody so that the new warrant could be obtained.

(3) The detention of the appellant was unlawful.

(4) At the point of reissue the CPS must have known that first warrant was invalid.

(5) Nothing was done until it was possible to rearrest the appellant.

(6) There is no requirement for an extraditee to be present at a hearing where a warrant is withdrawn. That could have been done at any time by counsel from the point at which knowledge that the warrant was invalid was gained, namely 5^th February 2010.

25. At the hearing before us, Mr. David Josse QC who appeared on behalf of the appellant, was pressed by the court as to whether he alleged bad faith on the part of the CPS and, if so, how he put his case. Mr. Josse made clear that he does allege bad faith in that the CPS knowingly and deliberately acted improperly by continuing to rely on the first warrant when it knew that it had a duty to inform the court that it had been withdrawn. In the alternative, he submits that the conduct of the CPS was so incompetent as to amount to abuse of process.
26. I am satisfied that the alleged abuse of process has been identified with sufficient particularity.

The correspondence.

27. The appellant's case requires a detailed examination of the correspondence.
28. Following the arrest of Mr. Popa on 31^st December 2009 there was some correspondence within SOCA as to whether the Czech Republic should be advised to reissue the warrant. However the view was taken by SOCA that it was not necessary to do so.
29. On 15^th January 2010 Interpol in Prague informed SOCA that the Regional Court in Plzen had issued the second warrant which "replaced" the first warrant. By email dated 19^th January 2010 SOCA informed the Czech Republic that Mr. Popa had been arrested on the first warrant and that the first warrant did not need to be amended. Accordingly it asked them not to send an amended version of the warrant.
30. Notwithstanding the fact that SOCA had been told that the first warrant had been "replaced" the proceedings were allowed to continue on the basis of the first warrant. On 26 January 2010 District Judge Nicholas Evans at City of Westminster Magistrates' Court made the order for the return of Mr. Popa on the first warrant.
31. On 4^th February 2010 Interpol in Prague sent the second warrant to SOCA. On 5^th February 2010 Miss Fiona Johnson of SOCA sent to the CPS the "amended EAW". She observed that the only changes appeared to be the spelling of the first name of the subject and that the number of cases it dealt with had been altered.
32. On 10^th February 2010 Miss Johnson of SOCA informed Mr. Cadman of CPS that SOCA was unsure as the best way to proceed. "As the central authority we are under an obligation to certify any new EAW that is sent through to us and unfortunately we are not in a position to advise the JA to withdraw the warrant. We are mindful of the fact that the subject's extradition has already been ordered and to issue the amended warrant would mean having to start all over again. I know that the subject has appealed. Would you be able to advise what the grounds for appeal are as this may have a bearing on how we proceed with the amended warrant?"
33. On 11^th February 2010 Ms. Cotrell of SOCA informed Alison Riley at CPS that the new warrant had been issued due to a change in the Czech Criminal Code and therefore replaced the previous warrant and required execution. Miss Riley agreed. She said that she would draft a discharge by consent. She also said that she would ask the JA to reissue the European Arrest Warrant with the offences in the body of the warrant as opposed to a schedule. This presumably was to be done in order to meet the point which was taken by Mr. Popa on appeal against the order of District Judge Evans. The same day SOCA made that request of the judicial authority. On 20^th February 2010 SOCA was able to inform CPS that the Regional Court in Plzen had agreed to reissue the warrant but without the appendix. SOCA received the third warrant on 29^th March 2010. The following day, 30^th March 2010, there was a bail application in the High Court. The court was not told that the warrant had been replaced. Indeed, counsel instructed on behalf of the judicial authority was not made aware of the existence of the second and third warrants.
34. On 7^th April 2010 SOCA informed Alison Riley of CPS that the amended EAW had been certified. She advised that the subject would need to be produced at the City of Westminster Magistrates' Court for arrest on the amended warrant and discharged on the original warrant.
35. On 8^th April 2010 Mr. Daniel Sternberg of CPS sent an email to SOCA which referred to the fact that the appeal on the first warrant was listed to be heard in the High Court the following Friday.

"Having considered this situation we take the view that the second EAW should not be executed unless and until the appeal against the order of extradition is allowed. It may be worthwhile for an officer to attend court next Friday in order to execute the new EAW in the event of the appeal being allowed. If the appeal is dismissed Mr. Popa can be removed on the first EAW."

36. On 8^th April 2010 Miss Johnson of SOCA informed Mr. Sternberg of CPS that she had spoken to Alison Riley the previous day regarding "the new EAW" and she had confirmed that the original warrant would need to be discharged and the subject arrested on the new warrant. She stated:

"The reason that the amended EAW was sent through is that statute has changed in the Czech Republic. The original EAW has been withdrawn by the Czech Republic and therefore he cannot be extradited to the Czech Republic on the basis of this warrant. I have been advised that we are required to discharge the original EAW and arrest the subject on the new EAW, regardless of what stage his appeal is at."

She explained that she was waiting to hear from the police regarding when the appellant would be presented at the City of Westminster Magistrates' Court. On receipt of this email Mr. Sternberg sent an email to Miss Riley asking "What are we supposed to do about this then?" Later that afternoon Mr. Sternberg sent an email to Alison Riley headed "Confirmation of withdrawal of EAW" and stating "Perhaps we should seek the view of learned counsel before we decide the appeal is a nullity. In any case the new EAW will need to be executed at some point."

37. On 9^th April 2010 Miss Johnson of SOCA informed Mr. Sternberg of CPS that Kent Constabulary had been advised by Wandsworth Prison that the earliest that the appellant could be produced at court was Monday 19^th April. "As the subject's appeal hearing is on 16^th April 2010 there is the obvious concern that if he is successful in his appeal he will be free to go and there would be no one there to arrest him." She asked that he speak to Alison Riley so that they could advise Kent Police of the best course of action.
38. On 12^th April 2010 Mr. Sternberg of CPS sent an email to Miss Johnson and others at SOCA which stated:

"We remain of the view that Mr. Popa must be produced at City of Westminster Magistrates' Court on or before Friday. Otherwise he will walk if his appeal succeeds.

Can you and Kent Police contact the Prison and stress to them that it is imperative that he be produced at court this week? …

The only alternative is to have an officer from Kent Police waiting outside the prison on Friday in the event that he is discharged. Since this depends on the view taken by the Administrative Court on being told the warrant is withdrawn it may be a waste of everyone's time."

39. Laura Clarke of SOCA forwarded that to the Kent Police observing "The concern is that as soon as the CPS mention the first EAW has been withdrawn, then the High Court will discharge him immediately."
40. On 13^th April 2010 Mr. Sternberg sent an email to Laura Clarke at SOCA which stated:

"The appropriate plan of action is this:

1. Mr. Popa is produced to the cells of City of Westminster Magistrates' Court on Friday

2. Kent officers attend CoW and arrest Mr. Popa on the new EAW.

3. Kent officers serve Mr. Popa with a copy of the new EAW and provide a statement to the court and the Extradition Prosecutor at court saying that they have identified Mr. Popa, arrested him and served him with a copy of the new EAW.

The appeal before the Administrative Court can then be disposed of as the EAW on which it is based is no longer valid and has been withdrawn by the Judicial Authority. We can then proceed on the new EAW."

41. Later that day Mr. Sternberg sent an email to John Jones of Counsel who was now instructed on behalf of the CPS at the hearing of Mr. Popa's appeal. Mr. Jones had asked for further information in relation to the warrant. Mr. Sternberg sent him the third warrant and, as Mr. Sternberg put it, "confirmation from the Czech authority the first EAW is now formally withdrawn."
42. On 15^th April 2010 Mr. Sternberg wrote to the Administrative Court.

"Further to my telephone call of earlier this afternoon we can confirm that the European Arrest Warrant in relation to Cristian POPA has been withdrawn by the Issuing Judicial Authority.

The Czech Republic has reissued the warrant. Mr. Popa will be arrested on that warrant tomorrow. Our counsel has advised that the Administrative Court is therefore functus officio in relation to the appeal.

We shall invite the appellant's representatives to sign a consent order in relation to this matter withdrawing the appeal."

43. Later on 15^th April 2010 Mr. Sternberg sent the following email to Mr. Jones of Counsel:

"Further to our previous phone call here is a run down of this afternoon's events.

(1) I have written to the court at their request explaining the EAW is withdrawn and that they are functus.

(2) I have drafted a consent order and sent it to ST Law [solicitors acting for Mr. Popa] inviting them to sign it. They phoned me back asking when we knew about the new EAW and the withdrawal of the old EAW. I declined to answer their question.

(3) Amy Mannion [counsel for Mr. Popa] then phoned me. I explained the situation – that we are of the view that the court is functus and the RP will be arrested on the new EAW and dealt with on that. She queried under what power the RP was held and said they may apply for habeas corpus.

In my view the RP remains remanded in custody lawfully on the old EAW until such time as (1) the appeal is withdrawn (won't be before tomorrow) (2) the court decides it is functus officio (3) the new EAW is arrested. (sic) The RP was RIC by the DJs at CoWMC…He was also refused bail by the Admin court on March 30^th. He is therefore lawfully in custody again until the Admin court decides that there is no appeal or hears and allows the appeal. By that time he will already be held by Kent Police as a person wanted for arrest on an EAW so there is no time not lawfully in custody.

I am not an expert on habeas corpus, so am happy to be corrected on my reasoning, but this email might help if there is such an application.

44. Late in the afternoon of 15^th April 2010 Mr. Popa's solicitors sent an email to Mr. Sternberg in the following terms:

"Further to our conversation a short while ago in which you confirmed that

the EAW upon which Mr. Popa is currently detained has been withdrawn

that a new EAW has been certified by SOCA

and that CPS has arranged for Mr. Popa to be transported from HMP Wandsworth tomorrow morning to the City of Westminster Magistrates' Court where he will be arrested.

Please can you confirm at a matter of urgency

the date (and time of possible) upon which the warrant was withdrawn in the Czech Republic

the date and time this information was provided to the CPS

the date upon which the new warrant was issued in the Czech Republic;

whether the matter of the status of the warrant (currently under appeal) has been raised before any UK court to date. If so when and where?

Please could you provide answer within 30 minutes of receipt of this message. I am sure you will appreciate the urgency of this matter."

Mr. Sternberg forwarded the message to Alison Riley and Mr. Jones of counsel observing that he did not intend to respond unless either of them thought that he should.

45. On 16^th April 2010 Mr. Sternberg wrote a further letter to the Administrative Court. Mr. Josse describes this as the high point of the appellant's case.

"In relation to recent correspondence and discussions regarding the cancellation of an EAW in the case of Popa and the issuance of a new EAW, please find attached the decision cancelling an EAW dated 8 March 2010.

It appears that the situation is, in fact, this:

On 17 August 2009, the District Court of Plzen issued the EAW which is the subject of today's appeal ("the District Court EAW").

On 11 January 2010, the Regional Court of Plzen (the higher court) issued an EAW in respect of the same offences ("the Regional Court EAW").

Some time subsequent to 11 January 2010, SOCA (presumably) informed the Regional Court of Plzen that the EAW was not acceptable, because the offences were set out in an appendix – this explains the words in the decision of 8 March 2010, "the British party was not satisfied with the formal execution of the European Arrest Warrant, and insisted on including the description of the crime directly into the European Arrest Warrant, instead of the applicable Appendix"

Hence on 8 March 2010, the Regional Court in Plzen cancelled the EAW issued on 11 January 2010. We have not seen a copy of that EAW.

On 8 March 2010, the Regional Court in Plzen issued a new EAW ("the 2^nd Regional Court EAW") with the offences included in the body of the EAW itself. This is the EAW upon which Mr. Popa is due to be arrested.

As of this moment, therefore, the District Court EAW has NOT, in fact, been withdrawn. From that point of view, today's appeal could proceed. Arrangements were put in place for Mr. Popa to be arrested on the 2^nd Regional Court EAW at City of Westminster Magistrates' Court today. However, he has refused to board the van from HMP Wandsworth to attend the City of Westminster Magistrates Court."

46. Mr. Sternberg's refusal to respond to entirely reasonable requests for information from the solicitors and counsel acting on behalf of the appellant is simply unacceptable. The prosecution owes a duty of candour to the defence. It was his duty as a prosecutor to provide full information to Mr. Popa's representatives as to the position which had been reached.
47. However, I have come to the clear conclusion that this unhappy episode is the product of incompetence and muddle but not of bad faith. In particular, I do not conclude that the CPS continued to pursue an appeal knowing that the first warrant was invalid in order to ensure that the appellant remained in custody until fresh proceedings could be initiated. I have come to this conclusion for the following reasons.

(1) On 8^th April 2010 Mr. Sternberg was suggesting that the third warrant should not be executed unless and until the appeal is allowed and that if it was dismissed the appellant could be removed on the first warrant. On the face of it, that would be a most improper course if he was aware that the first warrant was invalid and that there was an obligation to draw that matter to the attention of the court. However, this suggestion was made before he was firmly advised by SOCA that the first warrant had been withdrawn and that the appellant could not be extradited on the basis of that warrant.

(2) The CPS and in particular Mr. Sternberg certainly became aware that the first warrant was no longer valid and had been withdrawn. On 8^th April SOCA had advised Mr. Sternberg that it was necessary to discharge the first warrant and to arrest the appellant on the third warrant, regardless of what stage the appeal had reached. In setting out his plan of action on 13^th April Mr. Sternberg states that the first warrant is no longer valid. However, he seems to have been genuinely confused as to the effect of the withdrawal of the first warrant on the proceedings. On 8^th April he is suggesting that they seek counsel's advice "before we decide the appeal is a nullity". On 12^th April he refers to "the view taken by the Administrative Court on being told the warrant is withdrawn" in terms which suggest that he believes that more than one outcome may be possible.

(3) The "plan of action" email of 13^th April clearly shows that the CPS was aware that the first warrant was no longer valid and had been withdrawn and that Mr. Sternberg knew that the appellant was in custody on a warrant that was no longer valid. However the email has to be considered in its factual context. The whole point of the third warrant was to render the appeal moot. The mere fact of seeking to rely on a new warrant would not in itself be improper unless the person responsible was aware of the requirements of section 42 and was deliberately dragging his feet for administrative convenience. On the evidence of this email there is no suggestion that anyone was aware of the existence of section 42.

(4) There seems to have been no intention to withhold from the Divisional Court the fact that the first warrant had been withdrawn. On 12^th April he refers to the future status of the appellant depending upon the attitude of the Divisional Court on being told that the warrant has been withdrawn. The plan of action of 13^th April involves executing the third warrant and telling the Divisional Court what has happened. On 15^th April Mr. Sternberg wrote to the court informing it that the first warrant had been withdrawn.

(5) Mr. Sternberg's letter dated 15^th April to the court reveals some muddled thinking in relation to the appeal before the court. The appellant was not bound to withdraw the appeal nor was the court functus. However there is nothing here to suggest that the CPS had considered section 42 or was aware of its implications.

(6) Mr. Sternberg's email of 15^th April to Mr. Jones of counsel shows further confusion on the part of Mr. Sternberg. His analysis makes little sense and is clearly wrong in law. However, I consider that this is a statement of the views he genuinely held at the time. In particular, I consider that Mr. Sternberg believed that the appellant was lawfully held in custody. If Mr. Sternberg was acting in bad faith and knew that he was doing wrong I very much doubt that he would set out his thoughts to counsel in this way. Once again this email strongly suggests that Mr. Sternberg was simply unaware of section 42.

(7) Mr. Josse was very critical of Mr Sternberg's letter to the court dated 16^th April. He says that the author knew that the first warrant had been withdrawn and that in stating that it had not he was attempting to mislead the court. It is difficult to see how Mr. Sternberg could have persuaded himself that the first warrant had not been withdrawn and remained valid. He says he did not have a copy of the second warrant (which in fact expressly stated that it replaced the first warrant). However, he was in possession of a copy of the third warrant which also expressly stated that it replaced the first warrant. Nevertheless, I am persuaded that this is another example of muddle on the part of Mr. Sternberg. His conclusion that the first warrant remained valid and had not been withdrawn is totally at odds with three other statements by him.

(a) On 13^th April he had sent an email to Mr. Jones stating that he had confirmation from the Czech judicial authority that the first warrant was now formally withdrawn.

(b) On 15^th April he had written to the court stating that the first warrant had been withdrawn by the issuing judicial authority.

(c) On 15^th April he had sent documents to the appellant's solicitors which we have not seen but which immediately prompted the question when he knew about the withdrawal of the first warrant. (See Mr. Sternberg's email of 15 April to Mr. Jones). This strongly suggests that he had told the appellant's solicitors that the first warrant had been withdrawn.

If he really was attempting to mislead the court, this would have been an extraordinary way to set about it.

(8) To my mind nothing in this documentary history suggests that Mr. Sternberg or anyone else involved in this matter on behalf of the CPS was aware of section 42, strange as that may seem. On the contrary, all the indications are that the persons responsible for this matter at the CPS had no understanding of the duty, albeit one which fell principally on SOCA as the designated authority, to notify the court of a withdrawal of a warrant or the consequences of doing so.

(9) It was Mr. Jones of counsel who raised with SOCA the question whether it had informed the High Court of the withdrawal of the first warrant in accordance with section 42. He did so in an email of 16^th April, shortly before the hearing, because the defence had raised it with him. SOCA's response showed that those responsible there did not understand how these warrants were to be viewed.

48. For these reasons I have come to the conclusion that there was no bad faith on the part of those with the conduct of the proceedings against the appellant.
49. In his alternative submission Mr. Josse submits that, notwithstanding the absence of bad faith, the failures of the CPS have been so egregious that the court should hold that to extradite the appellant would amount to an abuse of process.
50. In this regard I have found the decision of the Divisional Court in Lopetas v Minister of Justice for Lithuania [2007] EWHC 2407 (Admin) instructive. In that case the appellant had twice been discharged on valid EAWs due to procedural mistakes in the initial phases of the extradition process. Upon the second discharge a representative of SOCA wrongly took the view that the discharged EAW could simply be re-certified by SOCA. Accordingly, rather than have the benefit of a discharge, the appellant was immediately rearrested on an incorrectly re-certified EAW and was kept in custody on that warrant for 14 days. During those 14 days the re-certified EAW was withdrawn and a freshly issued and validly certified EAW came into being. Proceedings then progressed on the basis of the fresh EAW. The appellant argued that there had been a manipulation of the court process which should be marked by a stay of proceedings on the fresh EAW.
51. The Divisional Court held that, despite the issuing of a third EAW when the appellant was in custody upon an invalidly certified EAW, there was no basis on which the District Judge or the Appeal Court could conclude that only an abuse of process had taken place. Auld L.J. stated (at paragraphs 16-17):

"...it cannot, given the circumstances, possibly be regarded in itself as an abuse of process so as to taint in any way the reinstitution of proceedings following the issue of a third properly certified warrant. The only basis urged by Mr. Lloyd was, as I have said, that, for the court not to mark what happened on 28^th April as an abuse of process by discharging Mr. Lopetas, would be to condone the unlawfulness. Such a submission is totally inappropriate to the circumstances of this case, the facts of which disclose, whether lawful or unlawful, no error in the way in which the proceedings were reinstituted. This does not approach the egregious conduct that the court has considered, notably that in Bennett which was touched on in argument.

17. As to Mr. Lloyd's third argument, that the District Judge could and should have investigated against the possibility, prompted by the error of 28^th April, that there might have been some skulduggery here, for the reasons given by the District Judge, there was clearly no basis for such suspicion."

52. I would accept that the breaches of duty which occurred in the present case and their consequences were more serious than in Lopetas. In particular, the period during which the appellant in the present case was unlawfully detained was considerably longer than that in Lopetas. Nevertheless, I am not persuaded that Lopetas is distinguishable. Incompetent as it undoubtedly was, the conduct of the CPS in the present case does not approach the high threshold that must be reached before executive conduct may amount to an abuse of process.
53. For these reasons I have come to the conclusion that District Judge Tubbs was correct in her conclusion that the conduct of the CPS and SOCA in the present case is not capable of amounting to an abuse of process. Accordingly I would dismiss the appeal.

Lord Justice Toulson

54. I agree.