England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
IN THE MATTER of an application for a Writ of Habeas Corpus

		Royal Courts of Justice Strand, London, WC2A 2LL
		10/12/2015

Sir Brian Leveson P :

1. On 17 July 2013, Tony Tague (otherwise known as Mark Lilley) was returned to the United Kingdom from Spain pursuant to the execution of a European Arrest Warrant ("EAW") and commenced serving a sentence of 23 years imprisonment imposed following a trial which had concluded as long ago as April 2000. Having subsequently obtained a translation of the order under which he was extradited, Mr Mark Summers Q.C. on his behalf now applies (pursuant to CPR Part 87) for a Writ of habeas corpus seeking his release directed to the Governor of H.M. Prison, Full Sutton where he is presently detained, on the basis that his extradition was obtained as a consequence of executive misconduct or other illegality. The Governor (whose conduct is not brought into question) has played no substantive part in the proceedings which are resisted by the National Crime Agency ("NCA") as the successor agency to the Serious and Organised Crime Agency ("SOCA") whose conduct is at issue.

The Facts

2. On 22 February 2000, in the Crown Court at Bolton, before His Honour Judge Roberts, the applicant appeared to stand trial with others on an indictment alleging drugs and firearms offences. There were several weeks of legal argument and a jury was only sworn on 14 March. Throughout the hearing of evidence, the applicant (who was on conditional bail) appeared and took a full part in the proceedings, giving evidence before the jury and calling witnesses. On 6 April 2000, however, after the conclusion of all the evidence, he failed to answer his bail and, entirely unsurprisingly, the judge issued a bench warrant for his arrest.
3. It is important to underline that his then legal representatives did not consider that their instructions had been withdrawn and were prepared to continue to act on the applicant's behalf. The judge observed:

"Is there any prejudice to Mark Lilley [as he was then known], so far as the evidential presentation of his case is concerned? The answer is; there is none. His case had concluded, he gave evidence, his witnesses gave evidence. Any prejudice against him that may stem from his absence, he has brought upon himself, given that, in my judgment, it is a voluntary absence."

4. The case then proceeded to its conclusion in the applicant's absence. In the course of his summing up, Judge Roberts said this:

"There are four defendants in this case. As you know, one of them is now absent. Mr Barraclough [Lilley's counsel] yesterday was quite correct in his submission to you when he said this; the fact that he is absent and the reason for that absence, need not, and does not, concern you and you should not speculate about it. His absence is not evidence against him or any of his co-defendants. His absence is not to be held against him and is not to be held against any of his co-defendants. The fact that he is not here does not absolve you of the responsibility of continuing to try him, along with the three defendants who are here".

5. On 14 and 17 April 2000, the applicant was convicted of six offences of conspiracy to supply drugs of class A and class B and a further offence of possession of a firearm with intent to cause fear or violence. He was sentenced to terms of 20 years imprisonment for the conspiracies to supply drugs of class A and 10 years imprisonment for the conspiracies to supply drugs of class B, all to be served concurrently with a further term of 3 years imprisonment for the firearms offence to be served consecutively, making 23 years' imprisonment in all. An appeal against conviction was mounted by those convicted (including the applicant who continued to be represented by two counsel). That appeal was dismissed: see [2002] EWCA Crim 3115.

Extradition from Spain

6. In 2006, an operation was launched with a view to capturing the UK's 'most wanted' individuals: these included the applicant. On 15 June 2006, District Judge Kitson sitting at Leeds Magistrates' Court issued an EAW for his arrest pursuant to Part 3 of the Extradition Act 2003 ("the 2003 Act"). The warrant stated that the applicant was unlawfully at large after his conviction making it clear:

"The trial started on 22 February 2000 and the requested person was represented by two barristers. The requested person was granted bail during the trial and on 6 April the requested person failed to appear at court in answer to his bail, As (sic) a result an arrest warrant was issued by the trial judge.

The trial continued in his absence and the requested person was found guilty of all the offences on Friday 14 April 2000 and Monday 17 April 2000. He was sentenced in his absence ..... He has not served any of his sentence."

7. Under the arrangements for EAWs in the UK, the Crown Prosecution Service of England and Wales ("CPS") has responsibility for the preparation of applications under Part 3 of the 2003 Act. These are handled either by the concerned CPS Area or by one of the CPS Headquarter Caseworker Divisions, with each Area or Division making its own arrangements regarding the allocation of such work. Further, the Fugitive Unit of SOCA (now the NCA) was the primary UK central authority for the receipt of incoming and the transmission of outgoing EAWs. Of importance for present purposes, it also co-ordinates arrangements for the return to the UK of persons whose surrender has been ordered.
8. Events move on to 6 July 2013, when, pursuant to the EAW issued some 7 years earlier, the applicant was arrested in Spain as part of a high-profile police operation, 'Operation Captura', conducted both by SOCA and Spanish police. On 8 July 2013 there was a hearing before the Central Criminal Court of First Instance No. 6 in Spain. The applicant did not consent to his surrender to the UK and did not renounce his specialty rights. UK agencies, notably SOCA and the CPS, were not represented at this hearing.
9. On 11 July 2013, the case was transferred to the Spanish High Court (the Audiencia Nacional). The applicant was legally represented; it is unclear who represented the interests of the requesting judicial authority but neither SOCA nor any other UK agency were present or represented. In a written judgment, issued only in Spanish, dated 17 July 2013, the Audiencia Nacional ordered the applicant's extradition to the UK. In its judgment, under the heading "Legal Grounds", the Audiencia Nacional summarised the EAW as stating that "the decision [was] delivered in his absence" and directly quoted it (in translation) as stating that the applicant was "sentenced in absentia". It also summarised the principle of mutual trust, underlying the EAW scheme. The court found that there was no basis for refusing extradition. An English translation of the order continues:

"...As for the rest, precisely in the area of procedural safeguards, it should be recalled that the requesting authorities acknowledge that the trial in which the requested person was sentenced, was held in his absence. He had been legally summoned but he went on the run once prison bail had been set during the plenary sessions. For this reason, this Court extends to the requested person a guarantee that, once he has been surrendered, a new trial must be held should it be requested by the person concerned or his defence. This is because Spain only allows trials [to go ahead] in the absence of a personally summoned accused party if the penalty requested is equal or less than two years' imprisonment. For all of the above reasons, the surrender must be agreed, the above guarantees having been set… which will be understood as having been accepted by the requesting State should they proceed to receive their requested national subject…"

10. It is now clear that, in accordance with Spanish law, including the Spanish Constitution as then interpreted by the Spanish Constitutional Court, the order of the Audiencia Nacional provided for the applicant's extradition to the UK to be conditional upon the UK acknowledging and agreeing that once surrendered he would be entitled to a re-trial in the UK. Under the heading "Ruling", the court ordered that the applicant be surrendered, that surrender should take effect within 10 days, that there be certification of the period the applicant has been in prison after his arrest, and that "[h]e retains the right to request a new trial to be held in his presence". That date was later extended.
11. What is also clear, however, is that at the time of that ruling, Spanish law in this regard had been determined to be in breach of EU law. On 26 February 2013, the Court of Justice of the European Union ("CJEU") held that EU law, the EAW Framework Decision together with the EU Charter of Fundamental Rights, precluded executing judicial authorities from making the execution of an EAW conditional upon the conviction being open to review in the issuing Member State, even when it is to avoid an adverse effect on the right to a fair trial and the rights of defence guaranteed in the Constitution of the executing Member State: see CJEU Case C-399/11, Melloni v Ministerio Fiscal, ECLI:EU:C2013:107, [46] and [64].
12. It is uncontroversial between the expert witnesses on Spanish law instructed by the applicant and by SOCA that, as a matter of EU law, the Audiencia Nacional should have applied Melloni and not made the execution of the EAW conditional upon a right to request a retrial on return to the UK. Further, it is certain as a matter of both Spanish and EU law that Melloni should have been applied by all Spanish courts following its reception by the Constitutional Court in its judgment 26/2014 of 13 February 2014. Indeed, had the execution of the EAW presently at issue occurred 7 months later, it would have been clear that the Audiencia Nacional did not have the power to make surrender conditional upon a right to request a new trial.
13. However, despite there not being any express provision or precedent, it appears from the (tentative) evidence of the applicant's expert witnesses, that between 26 February 2013 and 13 February 2014, as a matter of Spanish law the Audiencia Nacional had the power, and may have been required by Spanish law, to extend to the applicant a guarantee of a right to request a retrial. This was because Article 5(1) of the Organic Law on the Judiciary provided until earlier this year:

"The Constitution is the supreme rule of the legal system and binds all Judges and Courts, who shall interpret and apply the laws and regulations according to constitutional precepts and principles, pursuant to the interpretation of the same resulting from judgments issued by the Constitutional Court in all types of procedures".

14. Indeed, the condition conferring a right to request a retrial resulted from a Constitutional Court interpretation of Article 24(2) of the Spanish Constitution: see Spanish Constitutional Court judgment 91/2000 of 30 March 2000. The Organic Law on the Judiciary was only amended by Law 7/2015 on 21 July 2015 to take account of CJEU jurisprudence, inserting Article 4(1)(a):

"Judges and Courts shall apply the Law of the European Union in accordance with the jurisprudence of the Court of Justice of the European Union".

15. What the Audiencia Nacional did not seem to know was that the UK was not in a position to grant a right of re-trial, had the applicant requested one; having exhausted his appeal rights, neither, as a matter of English law, did he have the right to apply for a re-trial when he was surrendered. He deliberately absconded himself from his trial and the trial judge was entitled to proceed in his absence: see R v Jones [2003] 1 AC 1. Neither could the foreign "guarantee" give rise to any enforceable right to a re-trial in the UK: see R v Davidson (1977) Cr. App. R. 209, 212 and R (on the application of the Director of Revenue and Customs Prosecutions) v Birmingham Magistrates' Court [2010] EWHC 12 (Admin), [33]-[36]. Regrettably, no representative of the UK authorities was present to raise this issue at the Spanish hearing concerned with execution of the EAW; nor was it communicated to the Spanish prosecutor representing the interests of the UK judicial authority before the Audiencia Nacional by the UK authorities.
16. Had the Audiencia Nacional known that the UK could not have been complied with the right to request a new trial condition, it is unclear from the evidence of the expert witnesses whether it would have nevertheless ordered execution of the EAW. On the expert evidence submitted on behalf of the applicant, Spanish legislation does not expressly provide for this and there is no precedent to rely on; the expert advising the NCA concluded that it was not open to the Audiencia National to impose the retrial condition.
17. In the light of this uncertainty, if, on the one hand, ordering the condition was a discretionary power of the Audiencia Nacional, then it may well have exercised its discretion in favour of ordering the execution of the EAW without the condition, particularly in light of the CJEU judgment in Melloni. In this regard, it is material that on the face of their order of 17 July 2013 the Audiencia Nacional may well have misunderstood the extent to which the trial had proceeded. The Court does not appear to be cognisant of the fact that the applicant was in attendance for the entirety of the evidence and only absent for the closing addresses by counsel and the judge's summing up. Further, the preceding Second Additional Protocol to the European Convention on Extradition does not provide an international obligation to impose the condition: it gives Contracting Parties an option: see Article 3(1).
18. On the other hand, it must be recognised that if the Audiencia Nacional was aware that the UK authorities were not capable of complying with the condition, it may not have decided in favour of the surrender. That court may have regarded it as mandatory to impose the condition. Thus, as a matter of Spanish domestic criminal procedure, if a person is tried in their absence where the punishment sought exceeds two years imprisonment, proceedings are stayed until the accused appears or is found by the authorities, regardless of whether such absence is voluntary: see article 786(1) of the Criminal Procedure Law. This finds its expression in extradition proceedings outside the scope of the EAW in the Passive Extradition Act no. 4/1985 which provides that extradition is only granted:

"provided that the diplomatic representation in Spain of the requesting country… offers sufficient guarantees that the person sought will be subjected to a new trial in which they must be present and properly defended".

19. Ultimately, as the applicant's expert witnesses accept, the answer to whether the Audiencia Nacional would have nevertheless ordered execution of the EAW is "highly speculative".

The Next Steps

20. The ruling of 17 July 2013 was ordered to be notified and communicated to the Spanish Ministry of Justice, SIRENE (an EU network), Interpol, the Spanish public prosecution service, the applicant through his legal representation and the issuing judicial authority. It is therefore surprising if the applicant was not informed of the right to request a retrial condition at this stage.
21. In addition, a covering order issued by the Audiencia Nacional, with a fax heading dated 17 July 2013, and marked "extremely urgent", provided that the applicant should be surrendered within 10 days of the decision and requested confirmation that the "…judicial proceedings and… remand certificate agreeing the surrender of the requested person have been received by the authorities of the requesting country…" (i.e., the UK).
22. The order and covering order – collectively the order of 17 July 2013 – were faxed on that same day to (amongst others) Interpol and the UK liaison magistrate who is a CPS employee in Spain. The office of the UK liaison magistrate immediately scanned the fax and forwarded it by email to the responsible SOCA case officer and liaison officer to Spain. The case officer forwarded the scanned order to the responsible liaison officer (again) and to another liaison officer in Spain. The other liaison officer spoke Spanish but did not read the order as his role "did not require [him] to be involved in the extradition process".
23. Interpol Spain also scanned the faxed documents and on 18 July forwarded the order by group email to Interpol in Manchester. A member of the group was a SOCA translator, who translated the body of the Interpol Spain email into English: it simply stated that the Spanish authorities had granted the applicant's surrender to the UK. The translator did not translate the attached order: indeed, in his witness statement, he said that it was not normal practice for the team to read attached foreign rulings or translate them. The SOCA translator then sent his translation of the body of the Interpol Spain email, together with the order attached, to another mailing list – "Central Authority – Fugitives" – so that it would come to the attention of the responsible SOCA case officer. It was received by the responsible case officer's manager, who did not read the order as she did not speak Spanish, and who immediately forwarded it to the responsible case officer.
24. Within half an hour of receipt, the responsible case officer applied to Interpol Spain for an extension to the period to surrender the applicant in order to put the necessary measures in place to coordinate the handover. An hour later, she emailed a senior SOCA investigation officer and "extradition co-ordinator" asking whether a translation of the order was required for the handover with a scanned copy of the order attached. Importantly, the senior officer did not regard an English language copy of the order as needed for the handover, as it was "normal practice" for only an original foreign-language copy to be available for that purpose. This would appear to sit at odds with a 2006 Memorandum of Understanding between the Crown Prosecution Service ("CPS"), SOCA and Association of Chief Police Officers ("ACPO") which contained a Joint Guidance on the Operation of Part 3 of the Extradition Act 2003 ("the 2006 Guidance"). It recorded the parties to the Guidance's recognition that "arrest for the purposes of surrender and surrender itself are major interferences with an individual's liberty… [and that g]iven the complexity of the surrender process, the parties also recognise the importance of drafting the relevant documentation with the greatest possible care and precision".
25. In accordance with a request of the responsible SOCA case officer, Interpol then applied to the Audiencia Nacional under Spanish law for an extension of 10 days. The Court granted the extension and made a second order on 19 July 2013 setting a new deadline of 6 August 2013 for the applicant to be surrendered to the United Kingdom. This order repeated the right to retrial condition and was faxed on 22 July, with a covering order, to the same bodies that received the original order of 17 July, including the UK liaison magistrate.
26. On the morning of 23 July, an assistant UK liaison magistrate scanned the new faxed documents and forwarded them to the non-responsible SOCA liaison officer who received the original order on 17 July and the UK liaison magistrate. The assistant UK liaison magistrate also sent the 19 July order to the responsible SOCA case officer. She did not have this order translated either as the body of the email explained that the extension had been granted, and, in line with the position of her senior investigation officer, she did not regard translating the order as part of the "working process". She did not forward the order to anyone.
27. On 24 July, the responsible case officer then sent the original 17 July order to the SOCA translation service. Again, in line with practice, she did not ask for a full translation but instead requested a translator to read through the order to confirm whether the applicant consented to his extradition. Such consent is required to remove the specialty restrictions under Article 27 of the EAW Framework Decision and s. 146 of the 2003 Act. The result was that the SOCA case management system did not have a translated version of the order. Later on 24 July, a member of the SOCA translation service informed the responsible case officer by telephone that the applicant had not consented to extradition, but that "the prosecution had argued that the request met the legal requirements and therefore his extradition had been ordered".
28. The salient feature of this correspondence and the extent of the translation of the decision is that no SOCA officer was, in fact, aware that the Audiencia Nacional had made extradition of the applicant conditional upon a right to request a new trial on return to the UK. Contrary to that which appears to be submitted, I do not consider there to be anything sinister about that fact. Rather, however it might be criticised, it reflected a general view, which the SOCA officers involved in the surrender were entitled to take, that as police operatives responsible for co-ordinating arrangements for the return to the UK of persons whose surrender has been ordered under the EAW, they were not responsible for the essentially legal task of ensuring that any condition placed on the surrender could be enforced in the UK. This is not to say that SOCA did not have various opportunities in the period between the initial order of 17 July and the surrender on 5 August to pick up on the inconsistency: it did and it both could and should have done.
29. Similarly, I reach no conclusion that UK agencies should attend EAW surrender proceedings before executing judicial authorities in other Member States or that they should not rely on those representing the judicial authorities to ensure appropriate clarity. In this regard, there has been a regrettable lack of liaison between UK and Spanish authorities during the EAW proceedings in Spain as to the UK's inability to comply with a right to request a retrial condition, particularly in light of the 2006 Guidance: given the extent to which extraditions have been sought from Spain over the years, it should have been well known whether because of information passed to the Spanish prosecutor or requests by the prosecutor for an assurance that the condition could not be fulfilled.
30. In the event, on 5 August 2013, the senior investigation officer and extradition co-ordinator, travelled to Spain with two other SOCA officers and four Metropolitan Police Service officers. The Spanish authorities physically surrendered the applicant to the UK police officers and he was that day removed back to custody in the UK where he was taken to HM Prison Full Sutton to serve his outstanding sentence.
31. There matters rested until October 2013, when the CPS sought to prosecute the applicant before Bolton Crown Court for breach of bail contrary to s. 6 of the Bail Act 1976. The specialty provisions contained in s. 146 of the 2003 Act required the CPS to demonstrate that the Bail Act offence had been specified in the EAW, or at least in the Spanish surrender papers and, as a result, the orders were then considered in detail. On 29 October, the 17 July judgment and order of the Audiencia Nacional was produced to the Crown Court but, following a hearing on 31 October, the Bail Act offence was discontinued because it had not been the subject of the EAW and prosecution was therefore precluded by s. 146 of the 2003 Act. The terms of the condition, however, then became apparent to all (including the applicant and his advisers).
32. In these circumstances, the applicant seeks a writ of habeas corpus for release (formerly known as habeas corpus ad subjiciendum) in accordance with CPR Part 87 as a consequence of what is submitted on his behalf to have been an abuse of process by SOCA. In particular, he seeks an order under Rule 87.5(g) that he is released by the governor of H.M.P. Full Sutton. Mr Summers argues that although the warrant issued by Judge Roberts was (and remains) valid, it should not be enforced in this country so that if the applicant stays in the UK, he is free from the obligation to serve his sentence; he accepts that should the applicant leave the country, it would be open to the authorities to seek his extradition to serve the sentence: any order would then be capable of execution free of any taint arising from the original EAW.

Abuse of process

33. It is common ground that a court has the power to stay criminal proceedings for an abuse of process in two categories of case, namely (i) where it will be impossible to give the accused a fair trial and (ii) where it offends the court's sense of justice and propriety to be asked to try the accused in the particular circumstances of the case: see, for example, R v Horseferry Road Magistrates' Court, ex p Bennett [1994] 1 AC 42, HL and, in particular, per Lord Lowry at page 74. It is also common ground that the present case cannot fall into the first category: there is no question of any future trial or process being unfair.
34. Mr Summers argues that the present case falls within the second category on the overall basis that execution of the EAW (or, perhaps, the detention of the applicant pursuant to the order of Judge Roberts) in these circumstances offends the court's sense of justice and propriety. Mr Peter Caldwell, for the NCA, while challenging that it was appropriate to grant relief in this case, did accept that the authorities describing the concept abuse of process were wide enough to cover misconduct post trial with the result that it was necessary to examine the case on that basis and on its merits.
35. In the light of the way in which the case has been argued, therefore, it is obviously appropriate to examine the case on this basis but this judgment should not be taken as necessarily approving or agreeing with the principle which Mr Summers enunciated and which Mr Caldwell did not challenge. Explaining the concern about the broadening of the jurisdiction, it is necessary to revisit the principles governing what might be described as the second category of abuse of process. It is best summarised by Sir John Dyson SCJ in R v Maxwell [2011] 1 WLR 1837 who collected the authorities together and went on (at [13]):

"In the second category of case, the court is concerned to protect the integrity of the criminal justice system. Here a stay will be granted where the court concludes that in all the circumstances a trial will "offend the court's sense of justice and propriety" (per Lord Lowry in R v Horseferry Road Magistrates' Court, Ex p Bennett [1994] 1 AC 42, 74G) or will "undermine public confidence in the criminal justice system and bring it into disrepute" (per Lord Steyn in R v Latif and Shahzad [1996] 1 WLR 104, 112F)".

36. In that regard, as to the conduct, if the circumstances are sufficiently serious, even certain guilt may not prevent the undermining of public confidence. In R v Mullen [2000] QB 520, Rose LJ put the matter in this way (at 534C):

"[A]s appears from the passage already cited from the speech of Lord Lowry in [Bennett]… certainty of guilt cannot displace the essential feature of [the second category of] abuse of process, namely the degradation of the lawful administration of justice".

37. These abuse of process cases all concern conduct which occurred prior to or during the conduct of a criminal trial. R v Horseferry Road Magistrates' Court, Ex p Bennett [1994] 1 AC 42 and Mullen (supra) were cases of unlawful abduction prior to trial. In R v Grant [2005] EWCA Crim 1089, the police had eavesdropped, and tape recorded, legally privileged conversations. R v Latif and Shahzad [1996] 1 WLR 104 concerned entrapment and Warren v Her Majesty's Attorney General for the Bailiwick of Jersey [2012] 1 AC 22, PC, was argued on the basis that crucial evidence on which the prosecution wished to rely had been obtained as a result of serious prosecutorial misconduct. It is therefore no accident that the remedy for what might be described as second limb abuse of process has been a stay of the trial or the quashing of a conviction.
38. The case upon which Mr Summers relies for the argument that second category abuse of process extends into conduct post conviction is Secretary of State for the Home Department v CC and CF [2012] EWHC 2837 (Admin) where the court was concerned with a statutory review of control orders imposed on CC and CF under s. 3(10) of the Prevention of Terrorism Act 2005 and, in addition, terrorist prevention and investigation measures ("TPIM") imposed pursuant to s. 9 of the Terrorist Prevention and Investigation Measures Act 2011 ("TPIM Act"). In addition, CC appealed under s. 16(3) of the TPIM Act against the refusal to vary terms of the TPIM. In short, on 14 January 2011, CC and CF were detained by the authorities in Somaliland and, on 13 March 2011, were removed to the U.K. Both made allegations against the Security Services in relation to their treatment during this period and in relation to their removal to the UK, arguing that the operation to do so had no basis in the law of Somaliland, Somalia or international law.
39. The dates are significant. The control order against CC was made on 13 January 2011 and served on 14 March 2011; the control order against CF was made on 15 April 2011 and served on 11 May 2011. The TPIMs were issued on 16 January 2012 and served on 21 February 2012 (in relation to CC); for CF, the equivalent dates were 18 December 2011 and on 3 January 2012. Thus, at least in the case of CC, an order had been made prior to the return to the UK.
40. In an interlocutory judgment in the case, Ouseley J. ruled that the Court has jurisdiction under the PTA to hold that control order proceedings are an abuse of its process: see [2011] EWHC 3647 (Admin). As a result, Lloyd Jones LJ (sitting in the Administrative Court) did so and reviewed the jurisprudence in this area, observing in relation to the second category of abuse (at [91]):

"That limb is not related in any way to resulting unfairness in the ensuing proceedings. (See Warren per Lord Dyson at paragraph 35.) Its purpose is the more general one of protecting the integrity of the legal system and thereby maintaining the rule of law."

41. In the course of his analysis, Lloyd Jones LJ went on to identify the question for the court as "whether the court's sense of justice and propriety or public confidence in the justice system would be offended if the proceedings were not stayed". In the context of that case, therefore, it is important to underline that the statutory regimes both specifically provided for a review, that is to say, for proceedings at which the justification for the control order or the TPIM could be questioned and, if appropriate, the order quashed. In the event, Lloyd Jones LJ (at [134]) did not consider that the arrest, detention and deportation at issue, which he assumed to be in breach of Somaliland law, to have reached "the high threshold which must be crossed to render these proceedings an abuse of process" (my emphasis).
42. Although counsel did not refer to it, the case of CC and CF was taken to the Court of Appeal: see Mohamed & CF v Secretary of State for the Home Department [2014] EWCA Civ 559. In that court, it was accepted that there was an abuse of process jurisdiction in control order and TPIM cases (see [14]) but the argument proceeds on the premise that the reasoning of the court on a fundamental issue should not be contained in a closed judgment i.e. that there are active proceedings in train, the pursuit of which could be abusive. In this case, there are no such proceedings and no mechanism for challenging Judge Roberts' order. The present application does not take its place because this challenge has been initiated by the applicant and is not a response to some other proceedings that the state wishes to initiate.
43. It is, therefore, not surprising that although Mr Summers points to the similarities between these cases and the present (both concerning extradition allegedly in breach of a foreign law), he accepted that applying the abuse of process to the present case would constitute an extension of the jurisdiction. In short, he argues that public confidence in the criminal justice system generally justifies extending the second category of case beyond the trial which is subject to judicial control to post-conviction conduct which is not. Put another way, it entails a broader understanding of the concept of the criminal justice system beyond criminal proceedings to the enforcement of any resulting sentence. I recognise the force of the argument, but, for my part, I am not prepared to accept that it is correct; given Mr Caldwell's concession, however, the jurisprudential basis for such an extension has not been the subject of adversarial argument. Suffice to say, without being taken to agree with the proposition, for the purposes of this case, I am prepared to assume that which has been conceded.

The Approach

44. In the light of the assumption that the abuse of process jurisdiction does bite in circumstances such as these, the appropriate approach to its exercise can be no less stringent than in the recognised second category abuse cases. Thus, in Bennett, Lord Lowry made it clear that a court should only use its power to stay proceedings in exceptional circumstances. He said (at page 74F) :

"… [P]rima facie it is the duty of a court to try a person who is charged before it with an offence which the court has the power to try and therefore the jurisdiction to stay must be exercised carefully and sparingly and only for compelling reasons. The discretion to stay is not a disciplinary jurisdiction and ought not to be exercised in order to express the court's disapproval of official conduct… 'pour encourager les autres'".

45. In R v Latif and Shahzad [1996] 1 WLR 104, Lord Steyn posited the following balancing exercise framework (at page 113A-B):

"[I]n a case such as the present the judge must weigh in the balance the public interest in ensuring that those charged with the gravest crimes should be tried and the competing public interest in not conveying the impression that the court should adopt the approach that the end justifies any means".

46. Both these observations were approved by Lord Dyson JSC giving the judgment of the Board in Warren. He reproduced the factors listed by Professor A L-T Choo in Abuse of Process and Judicial Stays of Criminal Proceedings, 2^nd ed (2008), at p 132, as to whether the end justifies the means (at [24]):

"… the seriousness of any violation of the defendant's (or even a third party's) rights; whether the police have acted in bad faith or maliciously, or with an improper motive; whether the misconduct was committed in circumstances of urgency, emergency or necessity; the availability of a direct sanction against the person(s) responsible for the misconduct; and the seriousness of the offence with which the defendant is charged".

47. Lord Dyson went on, however, to observe that this was no more than "a useful summary of some of the factors that are frequently taken into account by the courts when carrying out the balancing exercise" and that it was "necessary to keep in mind that an infinite variety of cases will arise and [as such] how the discretion should be exercised will depend on the particular circumstances of the case": see [25]. That said, he observed that "in abduction and entrapment cases, the court will generally conclude that the balance favours a stay" ([26]).
48. Exercising that balance is far from straightforward. Lord Steyn's words of caution (the ends must not be seen to justify the means) have to be read alongside Lord Lowry's observation that abuse of process is not a disciplinary jurisdiction. In Maxwell, Lord Dyson grappled with this distinction when concluding that the decision in R v Grant [2006] QB 60 to refuse to order a retrial, was incorrect. He said (at [37]):

"[I]t may not always be easy to distinguish between (impermissibly) granting a stay in order to express the court's disapproval of official conduct "pour encourager les autres" and (permissibly) granting a stay because it offends the court's sense of justice and propriety. But it is difficult to avoid the conclusion that in Grant the proceedings were stayed in order to express the court's disapproval of the police misconduct and to discipline the police".

49. This problem arises because maintaining confidence in the criminal justice system (or, as it has been put, avoiding "an affront to the public conscience") is an aim or aspiration which has to be perceived from different directions. On the one hand, there is gross misconduct which the criminal justice system cannot approbate (as in cases such as Bennett and Mullen). On the other hand, however, it is important that conduct or results that may merely be the result of state incompetence or negligence should not necessarily justify what might be colloquially described as a "Get Out of Jail Free" card: in those cases, the public might conclude that the justice system was little more than a game. There is no bright line and a broad brush approach is likely to be necessary. In CC and CF, Lloyd Jones LJ put the approach in this way (at [99]):

"[T]he objective of maintaining the integrity of the legal system can be achieved only by a consideration of the entirety of the conduct in question and untrammelled by any rigid rules."

Analysis

50. Turning to the circumstances of the present case, I start with Mr Summers' submission that SOCA developed a deliberate policy and procedure not to read the full orders which have led to extradition and, in so doing, deliberately and wilfully shut its eyes to what had happened such as to justify the inference of bad faith in relation to conditions placed on EAW extraditions by executing Member States. He also points to the absence of evidence from some of those involved in the process.
51. I start with the Guidance issued in 2006 which describes the role to be taken by SOCA in these terms:

"… the primary UK central authority for receipt of incoming and transmission of outgoing European Arrest Warrants. It advises law enforcement agencies and prosecuting agencies on procedures for tracing fugitives abroad. It arranges for enquiries to be conducted abroad to locate fugitives. It co-ordinates arrangements for the return to the UK of persons whose surrender has been ordered".

52. Its role, therefore, is the practical co-ordination required for EAW co-operation. As a result, therefore, SOCA was not responsible for ensuring that the Audiencia Nacional, or any executing judicial authority for that matter, knew that the condition could not be enforced in the UK, or indeed checking for such a condition in the order emanating from Audiencia Nacional. Nor should it be said that SOCA, or any other UK agency, was required to attend the EAW proceedings before the Audiencia Nacional to ensure that no unenforceable condition was imposed. In truth, the responsibility for ensuring that the Spanish court understood the limitations of the jurisdiction in the UK and that the UK understood possible pre-conditions that could be imposed by the Spanish courts (and the issues which might arise therefrom) lay with whoever appeared on behalf of the judicial authority before the Spanish court and the UK lawyers who were responsible for managing the process in the UK.
53. It is, of course, true that SOCA officers had various opportunities to identify the right to request a new trial condition and there was inadequate communication between the UK and Spanish authorities as to the UK's inability to comply with the condition, as has been described in detail at [20]-[29] of this judgment. This is particularly regrettable given the extent to which extraditions have been sought from Spain over the years, the major interference with an individual's liberty that an extradition entails and the explicit requirement for care and precision set out in the Guidance.
54. However, for my part, I consider that, on the face of the evidence presented, the present case reveals no more than a lack of care and precision. I do not accept Mr Summers' argument that SOCA's conduct taken together amounts to a deliberate bad faith policy to ignore or exercise wilful blindness to conditions placed on EAW extraditions by executing Member States. This is not least for the reason that SOCA would assume that the applicant's own lawyer in Spain would have made the retrial condition abundantly clear to him, if the prospect of such a condition had been ventilated during the EAW execution proceedings. If SOCA had appreciated the condition, I have no doubt that advice would have been sought as to the extent to which it could be removed and what steps could be taken to safeguard the position in relation to this most wanted fugitive.
55. I do not pretend to any knowledge of Spanish law outside that which is provided by the experts in this case, but I have no doubt that any lawyer considering the matter would have quickly ascertained that the decision of the CJEU in Melloni had fundamentally undermined the argument that such a condition for surrender was ultimately going to be enforced or enforceable. How the outcome might have been achieved is not for me to say but I do not accept that it was not open to the prosecutor in some way to bring home the effect of the decision of the CJEU in such a way that it impacted on this applicant. On any showing, at the time Melloni was reviewed by the Constitutional Court following the decision in the CJEU, the result was (as it transpired) inevitable. The suggestion that rather than confront the issue, there was a deliberate or wilful disregard of the law is, in my judgment, fanciful.
56. Mr Summers further argues that the present case should be compared to abduction cases such as Bennett and Mullen, entrapment cases where an individual is lured into the UK's jurisdiction such as Latif, or other instances where "but for" the executive conduct at issue an individual would not be in the jurisdiction. I do not accept that it can be said with any certainty that such causation existed in the present case. For the reasons set out at [16]-[19] of this judgment, it is unclear whether the Audencia Nacional would have still ordered execution of the EAW even if it had known the UK could not have complied with its right to request a new trial condition.
57. Even if it were certain, a distinguishing feature of the present case is that the conduct occurred in the different and specific context of the execution of an EAW. While the principle of comity is important and should be respected, Spanish law at the material time, and therefore the Audiencia Nacional's order, was in clear breach of EU law as interpreted by the CJEU in Melloni and some months earlier had been so declared. This was acknowledged by the Spanish Constitutional Court in their judgment of 13 February 2014. In this respect, the present case is significantly less serious and sits far apart from Mullen and Bennett. It is therefore also less serious than CC and CF where the breach of Somaliland law did not push that case beyond the "high threshold" which must be crossed to render proceedings an abuse of process: see [134] of the judgment of Lloyd Jones LJ.
58. Mr Summers also sought to compare the present case to R v Downey (21 February 2014, Central Criminal Court, unreported), in which Sweeney J gave effect to a clear written assurance given to the defendant that he would not be prosecuted for crimes committed during the Northern Ireland Troubles. He concluded that carrying on with his trial in relation to the Hyde Park bombings would have undermined public confidence in the criminal justice system, bringing it into disrepute, and that it was critical to the public interest to hold officials of the state to promises they made in full understanding of what is involved in the bargain: see [175]. Again, I simply do not accept the parallel: there was no such promise and no basis for concluding that the extradition was accepted in full understanding of what was involved in the bargain.
59. The matter can also be tested in this way. As I have indicated above, Mr Summers accepted that the applicant could not be put in the same position that he was in: to return him to Spain would simply generate an entirely legitimate (and, in the light of the current authorities, unassailable) request for his extradition untainted by the previous failure. He submits, therefore, that the applicant would be entitled to remain in this country, free from any constraint but equally acknowledged that if he left the jurisdiction to visit another country with which the UK has extradition arrangements, it would be entirely lawful to seek his extradition from that country. Such a conclusion would, in my judgment, be bizarre.
60. Ultimately, the evaluation comes down to a single value judgment, untrammelled by any rigid rules and considering all the factors. The first fact is that although verdicts of guilty were returned against the applicant in his entirely self-induced absence, the trial was most certainly not conducted in his absence and his lawyers played a full part in it from first to last. He gave evidence and called witnesses; his lawyers remained in the case after he absconded and made submissions to the jury. The judge warned the jury that they did not know the reason for his absence but that it should not be held against him. He was not present only when he had no further personal part to play in the proceedings. To hold, in those circumstances, that a retrial was essential would put a premium on absconding at the time the applicant left.
61. Secondly, I accept that the failure by the authorities to ensure that the Spanish court and all affected were aware of the restriction on right to retrial is and was highly regrettable as was the failure to appreciate the condition in the order at a time when it may well be that Spanish law (and the Melloni decision) could be investigated and representations made. I reject the characterisation of these failures as deliberately deceitful or a manifestation of wilful blindness. There was negligence but no more.
62. On top of that, it is important to underline that extradition turns on comity between countries: it is open to the Spanish authorities to hold the UK authorities to account at a governmental level, for failure to act upon the condition for surrender. In that regard, I have little doubt that the Spanish would be the first to recognise that when the Constitutional Court came to consider the judgment of the CJEU in Melloni, it overruled its own judgment of 30 March 2000 to the effect that the extradition of an individual in the circumstances of the applicant without a right to request a retrial condition no longer infringed Article 24(2) of the Spanish Constitution, so that no ultimate injustice has been visited upon the applicant. In any event, it remains open to Spain to complain to the UK about the want of comity and (if it is considered appropriate) to seek some relief for the failure of the authorities in this country to honour the commitment.

Conclusion

63. In my judgment, assuming (without deciding) that the abuse jurisdiction bites in this case, a consideration of the facts in the round "untrammelled by rigid rules" does not lead me to the conclusion that SOCA's conduct can be characterised as so serious that to require the applicant to serve the sentence of imprisonment imposed upon him after a trial in which he took full part constitutes an affront to justice or would undermine the confidence of the public in the justice system. Knowing all the circumstances (and, in particular, the way in which the law had developed in Spain both before and after the extradition), in my view, it is clear that the public would consider the converse to be a more accurate description of the case.
64. In the circumstances, I would dismiss this application.

Mr Justice Cranston :

65. I agree.