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Cite as: [2016] WLR(D) 184, [2016] EWHC 802 (Admin), [2016] 4 WLR 75

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		Neutral Citation Number: [2016] EWHC 802 (Admin)
		Case No: CO/5797/2015

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

Royal Courts of Justice
Strand, London, WC2A 2LL

14/04/2016

B e f o r e :

THE RT HON LORD JUSTICE BURNETT
THE HON MR JUSTICE CRANSTON
____________________

Between:

	SALVIS AUZINS	Appellant
	- and -
	PROSECUTOR GENERAL'S OFFICE OF THE REPUBLIC OF LATVIA	Respondent

____________________

Mr Geoffrey Robertson QC & Graeme L Hall (instructed by Kaim Todner) for the Appellant
Mr Mark Summers QC & Miss Catherine Brown (instructed by CPS Extradition Unit) for the Respondent
Hearing dates: 03 March 2016 with further written submission 12 April 2016
____________________

HTML VERSION OF JUDGMENT
____________________

LORD JUSTICE BURNETT:

On 20 November 2015 District Judge Goldspring ordered the appellant's surrender to Latvia pursuant to a European arrest warrant ["EAW"] issued on 12 March 2014 and certified by the National Crime Agency on 10 April 2014. The EAW sought the surrender of the appellant for prosecution for a series of four thefts alleged to have been committed between July and November 2007. The total value of the stolen items is put at a little over £6,000. The maximum sentence available for each offence is five years' imprisonment. He appeals against that order on five grounds:

i) The judge should have discharged him because the Latvian authorities were estopped, or the issue of his surrender was res judicata, on account of his discharge in March 2011 in Scotland in extradition proceedings for substantially the same matters in connection with an earlier EAW which was subsequently withdrawn;

ii) Alternatively, the judge should have discharged him because by seeking the appellant's surrender the Latvian judicial authority was abusing the process of the court;

iii) The judge should have discharged him on grounds of delay pursuant to section 14 of the Extradition Act 2003 ["the 2003 Act"];

iv) The judge should have discharged him pursuant to section 21A of the 2003 Act because his surrender would violate his rights under article 8 of the European Convention of Human Rights ["The Convention"];

v) The judge should have discharged him pursuant to section 25 of the 2003 Act because of his physical condition.

Mr Robertson QC, who appears on behalf of the appellant, submits that the first ground engages a question about the permissible scope for a judicial authority to withdraw an EAW and issue another for the same or substantially the same matters, after a court of a Member State on the European Union has refused to execute it following a contested hearing. That, he submits, is a question which should be answered by the Court of Justice of the European Union on a reference because it arises under Council Framework Decision (2002/584/JHA).

The Facts

The appellant, who is 36 years old, was detained in Latvia for two days in November 2007. He admitted his guilt for three of the four offences in evidence before the district judge, much of which was disbelieved. The unequivocal evidence from the Latvian authorities is that he admitted all four offences. The appellant was released by the Latvian authorities subject to conditions. Those required him to reside at a specified address. He was subject to a curfew and prohibited from leaving the Riga District or the territory of Latvia without permission. He was required to register twice a week at a police station. He failed to abide by those conditions with the result that a domestic warrant for his arrest was issued on 28 December 2007. An EAW was issued when it became clear that he had left the country. By 2010 the appellant was living in England but came to the attention of the police whilst visiting Scotland. A check revealed the outstanding EAW. He was arrested pursuant to the EAW in Scotland. Proceedings followed in the Sheriff Court. The appellant resisted surrender on health grounds arising from his having contracted HIV together with hepatitis, tuberculosis and peripheral neuropathy. The appellant had contracted HIV as a result of dental treatment in 2001. The tuberculosis and peripheral neuropathy developed following a car accident in 2008. He relied upon section 25 of the 2003 Act which provides that a requested person must be discharged if his physical or mental condition is such that it would be unjust or oppressive to extradite him. The essence of the argument was that the treatment available in the Latvian prison estate for those suffering from HIV and his associated conditions was so poor that his life would be imperilled were he to be surrendered, with the result that his extradition would be oppressive.

The appellant's argument was resisted by the Latvian judicial authority but in the course of providing information about the treatment available on his surrender it was candid about the consequences of the lack of financial resources available for medical treatment in the prison estate. In a letter dated 11 November 2010 it concluded:

"Taking into consideration the above mentioned health treatment for A. Auzins in the imprisonment institutions of the Republic of Latvia due to insufficient public funding will be restricted, insufficient and incompatible with European guidelines."

A similarly gloomy statement about the quality and extent of the medical care then available on surrender was contained in another communication a month later. The order made by the Sheriff Court on 24 March 2011 recorded that there were no bars to extradition under section 11(1) of the 2003 Act and that the appellant's extradition would be compatible with the Convention. However, the Sheriff concluded that the appellant's "physical condition is such that it would be oppressive to extradite him" and ordered his discharge. There is no judgment available but, on instructions, Mr Robertson tells us that the entire focus of the hearing was on whether the appellant's constellation of medical conditions would be adequately treated in Latvia. The Latvian judicial authority did not appeal.

The order discharging the appellant had no bearing on the validity of the EAW, a judicial act of another Member State, nor on the underlying domestic warrant for his arrest.

The appellant returned to England. The EAW pursuant to which he had been arrested in Scotland remained extant until March 2014, when it was replaced by a new EAW. During that time no further attempt was made to execute it in England. The earlier EAW had been concerned with a fifth offence in addition to those of theft, namely using a counterfeit document. That offence became subject to a statutory time bar in Latvia. In those circumstances the Riga prosecutor's office took a decision deleting that charge from the domestic charge sheet. Other developments in Latvian criminal law resulted in further procedural changes, which are immaterial for the purposes of this appeal. The fresh EAW was issued by the judicial authority to reflect the new domestic state of affairs. The appellant was arrested in Sussex on 24 October 2014 having been stopped whilst driving a vehicle which was uninsured.

The Medical Position

The judge heard oral evidence from Professor Gazzard CBE, which supplemented the extensive written material he had provided. The judge also had before him a selection of the appellant's medical records stretching back to before the Scottish proceedings. Professor Gazzard is an undoubted authority on HIV, holding a professorship of HIV medicine in London University and a consultancy at the Chelsea and Westminster Hospital. He had visited Latvia for one day at the invitation of the British Embassy to discuss HIV care in Latvia, but had no direct knowledge of the care available to those with HIV in the prison system. He did not believe that the general availability of treatment for HIV in Latvia matched the standards in the United Kingdom and was doubtful whether the appellant would be adequately treated. Professor Gazzard confirmed that the appellant required lifelong antiretroviral treatment for his HIV. That was currently being provided in a mix of three drugs. Professor Gazzard's view was that he will require treatment for Hepatitis C when liver reviews show extensive fibrosis. In his oral evidence Professor Gazzard confirmed that no treatment is being provided at the moment for hepatitis and that the likely time scale when the treatment he envisaged would become needed was three or four years away. Professor Gazzard referred in his written reports to "sophisticated tests" relating to Hepatitis C treatment being unavailable in Latvia, but that the modern treatment that he had in mind was not yet available in the United Kingdom either. That appears to be treatment different from that he envisaged in three or four years. With appropriate treatment for HIV and Hepatitis C, neither condition would shorten the appellant's life expectancy. Without treatment for HIV his life expectancy would be as short as two years.

The appellant is being treated for tuberculosis and receives morphine for his peripheral neuropathy. A medical report from his treating doctor dated 20 January 2015 recommended that his morphine be steadily reduced and substituted with Duloxetine (a serotonin-norepinephrine reuptake inhibitor) because he had become dependent. A TENS machine was also suggested as part of the treatment. That was in connection with back pain which apparently came on in 2014 following an unspecified accident. In early 2015 the appellant developed a lump on his neck, which at the time was thought by his treating doctors likely to be associated with the tuberculosis, which was the subject of continuing investigation at the time of the hearing before the judge. In February 2015 a referral to a specialist was recommended which Professor Gazzard endorsed in a short letter dated 16 March 2015. A letter dated 2 March 2016 from Dr Pozniak, a colleague of Professor Gazzard's at the Chelsea and Westminster Hospital, was produced at the hearing of the appeal the following day. It confirms that the appellant has a recurrence of his tuberculosis. The plan was to provide treatment for nine months with visits "at least monthly" to the hospital. We have no evidence of what had been happening in the interim period even though there had been the earlier recommendations for investigation of the appellant's symptoms. The availability of treatment for tuberculosis, should it continue to be necessary, was not the subject of particular debate before the judge. The appellant has not adduced evidence about the availability of treatment for tuberculosis in Latvia, as he did for HIV, Hepatitis C and peripheral neuropathy. The same letter from Dr Pozniak says that the appellant will be assessed for treatment for Hepatitis C once the tuberculosis has been fully treated. He speaks of the possibility of a course of 12 weeks of therapy for Hepatitis C, without any further description of what that would entail. There is nothing recent from Professor Gazzard relating to Hepatitis C to qualify the opinion he expressed in his evidence. In his oral evidence Professor Gazzard had said that the treatment he envisaged, should it be necessary, was "only available in the UK for severe cases due to costs." The course, if the appellant qualified for it, would last 12 weeks. I infer that Dr Pozniak and Professor Gazzard are referring to the same course of treatment albeit that the evidence is not clear. Dr Pozniak does not express an opinion about the likelihood of the appellant requiring this treatment or, if he does, when it might be required. I do not understand his letter to qualify the evidence of Professor Gazzard on this aspect of the case.

The judicial authority answered in writing a series of questions relating to the treatment which the appellant would receive in prison in Latvia, which was designed to deal with all the issues raised by the appellant.

The underlying assumption of the questions was that the appellant would find himself in prison for some time in Latvia. It seems a reasonable assumption that, having fled the country in breach of conditions, he would be vulnerable to being remanded in custody pending his trial. I have noted that he admits at least three of the offences and is said to have admitted the fourth. There is no material before us to indicate the likely sentence which would be imposed by the Latvian court following his conviction. His acceptance of guilt (if he maintains it) and his medical condition would provide some mitigation. He has a previous conviction in Latvia for like offences for which he served a term of imprisonment. That is likely to be an aggravating feature in any jurisdiction. Mr Robertson suggested that in this jurisdiction, despite the previous conviction, it is probable that a suspended sentence would be imposed, having regard to the relevant guideline from the Sentencing Council, the delay since the commission of the offences, the appellant's "guilty plea" and his constellation of health problems. That would be a possibility at least; but there is a risk of an immediate custodial sentence in Latvia. The underlying premise of the appellant's factual case depends upon a period in custody in Latvia.

The judge was satisfied that the material provided by the Latvian judicial authority gave the necessary comfort that his treatment if in prison would be appropriate. The result was that his extradition would not be oppressive. Mr Robertson criticises the various responses for being contradictory and unclear. But at their heart is a number of propositions which were accepted by the judge and are clear.

A letter dated 7 May 2015 from the Riga Eastern University Hospital stated that antiretroviral drugs are paid for by the state and that the three drugs currently taken by the appellant are available in Latvia. Treatment is determined by specialists at that hospital who prescribe drugs which are then administered by the prison doctor. Importantly, if on extradition a patient has an established treatment regime, it will not be interrupted. "We will continue it regardless of the CD4 count at a given time." That is a reference to a count which is used to determine when to start antiretroviral treatment. The papers in this case (and previous authorities) contain much debate about the CD4 count needed to trigger treatment in Latvia as compared with the United Kingdom. That, however, ceases to be an issue if this communication accurately states the position on return of a requested person already being treated.

Antiretroviral treatment for Hepatitis C may be prescribed, but only at the expense of the patient.

Morphine and other opiate drugs are not generally prescribed in the prison system but only at one penal establishment. They may be prescribed by outside medical institutions. The appellant's treatment for peripheral neuropathy will be determined by a specialist physician-neurologist. It may, but may not, include the prescription of opiate drugs. It was Professor Gazzard's evidence that Eastern European doctors are generally less enthusiastic about prescribing opiates for this condition than their Western European colleagues. His fear was that opiate treatment would be stopped summarily, or at least reduced quickly, with the consequence that the appellant might suffer withdrawal symptoms, or go "cold turkey" as he put it in oral evidence. Given the fact that the appellant's reliance on morphine will have diminished in the period since January 2015, when his own doctors indicated they were reducing his opiate intake, this can no longer be a real concern.

Res Judicata and Abuse of Process

The grounds of appeal raising res judicata and abuse of process are linked because even if no principle of res judicata/issue estoppel can be applied arising from the determination of the Scottish court, this court will guard against actions which constitute an abuse of its process.

In rejecting the argument founded upon res judicata the judge rested upon the provisional conclusion of Ouseley J in Hamburg Public Prosecutor's Office v Altun [2011] EWHC 397 (Admin) at [47] that "the concept of res judicata does not apply to extradition proceedings". Ouseley J referred to R v Governor of Pentonville Prison ex parte Tarling [1979] 1 WLR 1417 in which this court concluded that the doctrine of res judicata had no application to habeas corpus proceedings. In that case Gibson J referred to the words of Lord Parker CJ in In re Hastings (No. 2) [1959] 1 QB 358 at 371 to similar effect. He continued:

"There is, however, a wider sense in which the doctrine of res judicata may be applicable, whereby it becomes an abuse of process to raise in subsequent proceedings matters which could, and therefore should, have been litigated in earlier proceedings … In our judgment, that principle is applicable to proceedings for habeas corpus …"

Ouseley J (with whom Davis J agreed) went on to deal with abuse in Altun's case on that basis, holding that a similar approach to abuse of process could arise in extradition proceedings.

Mr Robertson correctly submits that Ouseley J's conclusion on res judicata was avowedly obiter; and also that the two decisions of this court referred to were confined to habeas corpus. He submits, by reference to the classic definition found in Res Judicata, Spencer Bower and Handley (2009), that the doctrine should apply generally in extradition cases. That definition identified six ingredients:

a) The decision, whether domestic or foreign, was judicial in the relevant sense;

b) It was in fact pronounced;

c) The tribunal had jurisdiction over the parties and the subject matter;

d) The decision was (a) final and (b) on the merits;

e) It determined a question raised in the later litigation; and

f) The parties are the same or their privies [i.e. the decision was in personam], or the earlier decision was in rem [i.e. binding on the world, not just the parties].

The appellant's case is that all six ingredients are satisfied, subject to the question whether the concept applies at all to extradition proceedings. Mr Summers QC for the respondent submits that even if the concept has any part to play in extradition proceedings the question in these second English proceedings is different from that in the Scottish proceedings. They were concerned with the state of affairs in the Latvian prison medical system in late 2010 and early 2011. The factual position has changed.

Mr Robertson drew our attention to the decision of this court in Rexha v Office of the Prosecutor attached to Rome [2012] EWHC 1274 (Admin), as did Mr Summers. Owen J, with whom Laws LJ agreed, dismissed an argument based upon res judicata. There had been a previous extradition request under the Extradition Act 1989 which had eventually been acceded to by the Home Secretary. It was challenged in judicial review proceedings. There was a consent order quashing the extradition order. That was because, whilst the request had been made on the basis that the requested person was accused of crime, he had become a convicted person. The correct procedure had not been followed in the extradition proceedings. I agree with Mr Robertson that this decision is not authority for the broad proposition that res judicata can have no place in extradition proceedings. It was a decision on its facts and one, with respect, which was clearly correct. There had been a technical defect in the earlier proceedings which led to the quashing of the extradition order. That is not the stuff of res judicata.

Mr Summers submits that as a matter of principle res judicata has no application to criminal proceedings and, for the same reasons, should not extend to extradition proceedings. He relies upon DPP v Humphrys [1977] AC 1, HL. He submits that the concept is alien to the scheme of the EAW found in the 2002 Framework Decision and of the 2003 Act, both of which apply the criminal law rules of double jeopardy in their strict sense. He submits that the appellant's argument finds no support in the jurisprudence of the Luxembourg Court; has been rejected by the Supreme Court of Ireland in Minister of Justice, Equality and Law Reform v Tobin [2012] IESC 37; and is inconsistent with the opinion of Advocate General Kokott in Ignacio Goicoechea [2008] 3 CMLR 40 at [49].

"Res judicata" is an omnibus term which encompasses a range of different circumstances that precludes a litigant in civil proceedings from raising for a second time issues determined, or which should have been determined, between the same parties in earlier proceedings. In a context far removed from these proceedings, namely intellectual property, the various aspects of the doctrine, or perhaps more accurately the various different rules encompassed within the term, were considered by the Supreme Court in Virgin Atlantic Airways Limited v Zodiac Seats UK Limited (formerly known as Contour Aerospace Limited) [2013] UKSC 46; [2014] AC 160. Lord Sumption summarised the position between [17] and [26]. Lady Hale and Lords Clarke and Carnworth agreed with his judgment. Lord Neuberger expressly agreed with these paragraphs. Lord Sumption observed that the "portmanteau term" was a label which "tends to distract attention from the content of the bottle". Amongst the principles he identified in [17] were cause of action estoppel, as well as:

"Fourth, there is the principle that even where the cause of action is not the same in the later action as it was in the earlier one, some issue which is necessarily common to both was decided on the earlier occasion and is binding on the parties: Duchess of Kingston's Case (1776) 20 St Tr 355. "Issue estoppel" was the expression devised to describe this principle by Higgins J in Hoysted v Federal Commissioner of Taxation (1921) 29 CLR 537, 561 and adopted by Diplock LJ in Thoday v Thoday [1964] P 181, 197-198. Fifth, there is the principle first formulated by Wigram V-C in Henderson v Henderson (1843) 3 Hare 100, 115, which precludes a party from raising in subsequent proceedings matters which were not, but could and should have been raised in the earlier ones. Finally, there is the more general procedural rule against abusive proceedings, which may be regarded as the policy underlying all of the above principles with the possible exception of the doctrine of merger."

Mr Robertson's reliance on res judicata appeals to both the fourth and fifth aspects of the portmanteau term, and more fundamentally to the proposition that the question whether the appellant should be surrendered to Latvia was determined once and for all in the Scottish proceedings, a variation of cause of action estoppel.

As we have seen, one of the issues decided in Scotland was the question whether the appellant's physical condition was such as to make it oppressive to extradite him to Latvia. The essence of the argument is that an issue estoppel operates to bar the Latvian judicial authority from contending to the contrary in subsequent proceedings. Mr Robertson relied also on Henderson's case by submitting that the Latvian authorities could have provided the evidence they recently produced before the judge in support of the proposition that there would be no oppression attendant upon the appellant's surrender. It is a happenchance that the earlier discharge on the previous EAW occurred in a legal jurisdiction governed by the same statute. The appellant submits that if the issue had been determined in any European jurisdiction, and could be identified, these types of res judicata could be relied upon.

Lord Sumption considered whether the rule in Henderson's case is properly to be considered a manifestation of res judicata or an application of an abuse jurisdiction for the purposes of civil litigation. In the context of both extradition, as Altun shows, and Habeas Corpus, as Tarling shows, this type of complaint has been considered as a variation of abuse of process.

Res judicata is a concept which is the creature of the common law developed in civil proceedings. It was designed, as a matter of policy, to protect litigants and the courts from second (or successive) actions which seek to re-litigate issues already decided. Its application to criminal proceedings was the matter of some controversy, eventually resolved by the House of Lords in Humphrys. Mr Humphrys had been prosecuted for driving whilst disqualified. There were two issues before the jury. First, on the date in question was he a disqualified driver? It was agreed that he was. Secondly, on that date did he drive a motorcycle on a public highway? He was acquitted. The acquittal indicated that the jury decided that they could not be sure that he was driving. He was later prosecuted for and convicted of perjury relating to the evidence he gave at the trial on the question whether he had been driving. The Court of Appeal allowed his appeal against conviction on the basis that issue estoppel operated against the Crown to preclude it from advancing a case inconsistent with the issue decided by the jury in the first trial.

The House of Lords concluded that the doctrine of issue estoppel had no place in English criminal law. It was thus lawful for the prosecution to adduce evidence at the trial for perjury to show that the jury's verdict was wrong. The protections provided to an accused in criminal proceedings rested upon the principles of autrefois acquit and autrefois convict, that is the rule against double jeopardy, and the ability of the court to protect its processes from abuse. Observations of Diplock LJ in Mills v Cooper [1967] 2 QB 459 at pp 468-469 were approved:

"That doctrine [i.e issue estoppel], so far as it affects civil proceedings, may be stated thus: a party to civil proceedings is not entitled to make, as against the other party, an assertion, whether of fact or of the legal consequences of facts, the correctness of which is an essential element in his cause of action or defence, if the same assertion was an essential element in his previous cause of action or defence in previous civil proceedings between the same parties or their predecessors in title and was found by a court of competent jurisdiction in such previous civil proceedings to be incorrect, unless further material which is relevant to the correctness or incorrectness of the assertion and could not by reasonable diligence have been adduced by that party in the previous proceedings has since become available to him.

… the existence of the 'issue estoppel' results in there being no issue in the subsequent civil proceedings to which such evidence would be relevant. Issue estoppel is a particular application of the general rule of public policy that there should be finality in litigation.

That general rule applies also to criminal proceedings, but in a form modified by the distinctive character of criminal as compared with civil litigation. Here it takes the form of the rule against double jeopardy."

In the same case Lord Parker CJ, having doubted the application of the doctrine in criminal cases, said at p 467:

" … every court has undoubtedly a right in its discretion to decline to hear proceedings on the ground that they are oppressive and an abuse of the process of the court."

One of the factors which influenced Diplock LJ in Mills and the House of Lords in Humphrys was that it would be anomalous to import the concept of issue estoppel into the criminal law for the benefit of an accused, but deny it to the Crown. In civil proceedings it cuts both ways. Yet to allow it to cut both ways in criminal cases might itself be oppressive and tend towards injustice. A modern example arises from the possibility that a prosecution for homicide can follow the delayed death of a victim of an assault in respect of which there has already been a conviction for that assault. In R v Clift [2013] 1 Cr App Rep 15 the Court of Appeal, Criminal Division, was concerned with the status of convictions for assault occasioning grievous bodily harm with intent contrary to section 18 of the Offences Against the Person Act 1861 in a subsequent murder trial. If issue estoppel had applied the defendant would have been unable to deny that he inflicted unlawful violence on the deceased with intent to cause him serious bodily harm and a conviction for murder would follow without more if causation for the death was proved. However, because there was no issue estoppel that consequence did not follow. The appellants in that case contended that their earlier convictions should not have been admitted as evidence in the murder trials. The Court of Appeal disagreed; but it was open to the defendant to argue that the conviction was wrong (whether the evidence was the same or different as compared with the earlier trial) or to raise new and different defences.

The unwillingness of the courts to apply res judicata to habeas corpus proceedings is also understandable in the context of liberty of the subject, where (subject to abuse arguments) a second bite of the cherry is not necessarily objectionable, and where allowing both applicant and respondent to rely upon the principle might work injustice.

Mr Robertson drew an analogy with the principles of double jeopardy in submitting that a requested person should not have to fight surrender on an EAW (or a second similar EAW) more than once. Indeed, he developed submissions under the rubric of double jeopardy, not in relation to conviction, but in relation to the possibility of surrender. The high water mark of his submission was that the requesting authority should have one opportunity only to seek the surrender of a requested person. Following the discharge of a requested person, for whatever reason and wherever it might occur, the requesting judicial authority should be shut out from having another go.

That submission must be considered in the context of the Framework Decision and the 2003 Act which in my view carefully circumscribe the circumstances in which a requested person can rely upon double jeopardy. Those circumstances do not extend to denying a judicial authority the right to withdraw an EAW and issue a new one, or to seek extradition from more than one Member State (or legal jurisdiction within a Member State) under the same EAW.

Article 3(2) of the Framework Decision provides that one of the mandatory grounds for refusing to surrender a requested person is that he "has been finally judged by a Member State in respect of the same acts …" This is a statement of the principle of law known as ne bis in idem or "not the same thing twice". Its reach was considered by the Luxembourg Court in Criminal Proceedings Against Mantello [2011] 2 CMLR 5, which concerned an Italian EAW being considered by a German Court. Advocate General Bot explained that the principle dictated that "a person cannot be sentenced twice in respect of the same act," [AG26], and that like article 50 of the Charter of Fundamental Rights it was concerned with final acquittals or sentence [AG38]. This is the European manifestation of the rule against double jeopardy. There was no discussion by the Advocate General or the court of the concept of res judicata. The case is authority for the proposition that article 3(2) is not concerned with successive attempts by a requesting judicial authority to seek the surrender of a requested person. Similarly, section 12 of the Act which is entitled the "rule against double jeopardy", is concerned with previous convictions and acquittals. It provides:

"A person's extradition to a category 1 territory is barred by reason of the rule against double jeopardy if (and only if) it appears that he would be entitled to be discharged under any rule of law relating to previous acquittal or conviction on the assumption –

(a) that the conduct constituting the extradition offence constituted an offence in the part of the United Kingdom where the judge exercises jurisdiction;

(b) that the person were charged with the extradition offence in that part of the United Kingdom."

I am unpersuaded that Mantello, or indeed the opinion of Advocate General Kokott in Ignacio Goicoechea to which Mr Summers referred, provides any direct support, one way or the other, for the contention that res judicata or issue estoppel are in play. That said, the scheme of the Framework Decision, and the 2003 Act itself, suggests that the principle of res judicata and issue estoppel flowing from findings made in the different legal jurisdictions of the European Union, does not have a place in the workings of the EAW system. By virtue of article 34(2)(b) of the pre-Lisbon TEU, framework decisions were "binding, as to the result to be achieved, upon each Member State to which it is addressed but [left] to the national authorities the choice of form and methods…" The way in which the Framework Decision was given effect in domestic law varied across the European Union. The Framework Decision includes a number of circumstances in which one judicial authority may, rather than must, decline to surrender a requested person to another; and two of the mandatory grounds of non-execution of an EAW (articles 3(1) and 3(3)) relate to circumstances in the executing Member State. That would suggest that the fact of a refusal to surrender by one Member State could not itself be res judicata across the European Union. Similarly, article 1(3) of the Framework Decision imports obligations to respect fundamental rights enshrined in article 6 TEU (which include the Charter of Fundamental Rights and the European Convention on Human Rights). A refusal to surrender based upon a prospective breach of fundamental rights may be dependent upon the presence of the requested person in the jurisdiction concerned, or subject to a change of factual circumstances in the future.

An illustration of the former would be an article 8 based claim to resist surrender depending upon family connections in one Member State, which would be irrelevant were the requested person to leave that Member State and reside in another. An illustration of the latter would be an article 3 argument based upon prison conditions in the requesting state, which was successful at a given time, but which became untenable later when conditions improved, or because incarceration in a compliant prison could be guaranteed, or because satisfactory assurances could be provided concerning the conditions in which the requested person would be kept. It would make little sense to defeat an EAW on the basis of res judicata in such cases.

Moreover, the precise issues decided in proceedings in one jurisdiction might be difficult to determine for the purposes of an argument based upon issue estoppel. The practice of giving detailed reasoned judgments of the sort produced by the District Judges at Westminster Magistrates' Court is not replicated across the many jurisdictions of the European Union. On any view the Framework Decision, which is detailed in explaining the scheme of the EAW, is silent on such matters and so too is the 2003 Act. Both on their face limit double jeopardy considerations to final decisions on the substance of the underlying alleged criminality. All these considerations support the conclusion that the principle of res judicata has no application in extradition proceedings, whether viewed through the Framework Decision or the 2003 Act.

Mr Summers' reliance on the decision of the Supreme Court of Ireland in Tobin provides some further support for that conclusion, although the proposition was conceded before the court rather than being part of the ratio. That concession was based upon a settled line of authority in the High Court in Ireland and was 'wisely made' – see [34] of the judgment of O'Donnell J. The court considered the arguments advanced on behalf of Mr Tobin by reference to abuse of process and on the very striking facts of the case decided the point in his favour.

In my judgment there is no basis for excluding extradition proceedings from the general principle stated by the House of Lords in Humphrys that issue estoppel has no place in English criminal law. Humphrys was concerned with issue estoppel in the context of a final determination in criminal proceedings, and so does not determine the question without more. That said, extradition proceedings are not analogous to civil litigation and do not concern the private interests of individual litigants. They engage the public interest in the prosecution of alleged offenders, in ensuring those convicted of crimes serve the sentences imposed by foreign courts and in honouring our international extradition obligations. Were issue estoppel to have a place in extradition proceedings it would be available to the judicial authority as well as to the requested person. That could have serious consequences for a requested person. For example, suppose that following an order for extradition made in Scotland or Northern Ireland the requested person absconded and travelled to England. He is arrested later on the same EAW in England and appears seeking to contest his extradition. Is he to be altogether barred from doing so? Is he necessarily to be shut out because of issue estoppel or some other aspect of res judicata from seeking to argue again points he contested in the earlier proceedings but lost? The same question could arise in connection with an order for surrender made by another Member State, at least if a discrete issue could be identified as having been determined against the requested person. In my view it would be wrong to create such a bright line prohibition. Undoubtedly, due regard would be paid to the decisions of courts in the other jurisdictions of the United Kingdom or Europe, particularly if the reasoning of the court is apparent from a judgment. But I am unable to accept that an estoppel arising from the application of res judicata would be appropriate. There is, in my judgment, nothing in the scheme of the Framework Decision or the 2003 Act which supports a different approach.

To my mind the alternative protection afforded by the application of abuse of process, in the sense discussed in the authorities, is the correct way of guaranteeing, in appropriate cases, that a requested person is not subjected to oppressive conduct.

I return to the alternative submission advanced by Mr Summers, namely that even if the principle of issue estoppel applied in extradition proceedings, the section 25 question decided in the Scottish proceedings was different from the similar issue which has arisen in these proceedings. The circumstances have changed in the intervening period. In my judgment that submission is correct.

The Scottish decision under section 25 of the 2003 Act was not concerned solely with the appellant's fixed medical condition. It was judged oppressive to extradite him because his constellation of conditions would not then have been adequately treated in Latvia. It was a decision that depended upon an assessment of the evidence of conditions in Latvia at the time. On any view, the circumstances in Latvia with regard to treating HIV patients changed between late 2010 and 2015, when the judge considered the matter afresh. The evidence from Latvia concerned the state of affairs as prevailing at the end of 2010. That state of affairs has changed. The issue in 2011 was whether it was oppressive to extradite the appellant given his medical condition and the treatment available in Latvia. That is no longer the issue. Rather, it is whether his current medical condition when considered against the treatment available to him now in Latvia would make his extradition oppressive.

More generally, assessments of a person's physical or mental condition for the purposes of section 25 of the 2003 Act involve a judgement at the time of the proceedings albeit with evidence of prognosis. Any conclusion reached may be confounded by changes in the medical condition over time, regardless of whether the ability of the receiving state to provide appropriate treatment is also in issue.

On the facts of this case, therefore, I do not accept that issue estoppel could play any role even if the principle were in play.

Reference to the Luxembourg Court

The change of status of the Framework Decision in the law of the United Kingdom brought about by the block opt out from EU criminal measures and opt back in to many of them, including the Framework Decision, on 1 December 2014 has resulted in our becoming subject to the jurisdiction of the Luxembourg Court in extradition matters: see Cretu v Local Court of Suceava, Romania [2016] EWHC 353 (Admin) at [12] to [17]. A reference would be possible, when it had not been before 1 December 2014. That said, I am satisfied that a reference to the Luxembourg Court to canvass questions relating to res judicata or issue estoppel said to be implicit in the Framework Decision, is inappropriate for three reasons. First, the change in circumstances in the medical arrangements in Latvia since early 2011 means that no issue of this sort in fact arises. Secondly, it is impossible to contend that the EAW scheme contemplates that a requesting state can seek the surrender of an individual only once from one Member State by reference to circumstances prevailing at the time it seeks to enforce the EAW, and is precluded from doing so later in the same or a different Member State if circumstances change. Thirdly, the Framework Decision is concerned with double jeopardy in the strict sense and would have contained provisions directed towards issue estoppel if some broader principle applied. In terms of the analysis of the Luxembourg Court in CILFIT v Ministry of Health [1983] 1 CMLR 472, there is no reasonable doubt as to the question in issue and, on the facts, the question does not arise.

Abuse of Process

The focus of the appellant's complaint is upon the issuing of a second EAW when the judicial authority knew that a court of competent jurisdiction in Scotland had refused to surrender him to Latvia.

As I have noted, that second EAW was issued because one of the domestic charges became time-barred. The validity of the previous EAW was not affected by the decision of the Scottish court. Until it was withdrawn, the Latvian judicial authority might have sought the appellant's surrender from any Member State in which he came to the attention of the authorities. It cannot be an abuse of the process of the English courts for a foreign judicial authority to issue an EAW. That is a matter for the judicial authority of the Member State concerned over which the courts of the other Member States have no jurisdiction. The abuse, if there is an abuse, must connect with seeking to enforce the EAW in this jurisdiction. The underlying purpose of the abuse jurisdiction in extradition cases is to protect the integrity of the statutory scheme of the 2003 Act and the integrity of the EAW system, as well as to protect a requested person from oppression and unfair prejudice. These purposes are more fully discussed in R (Bermingham and others) v Director of the Serious Fraud Office [2007] QB 727 at [97]; in Belbin v the Regional Court of Lille, France [2015] EWHC 149 (Admin) at [59]; and in Italy v Barone [2010] EWHC 3004 (Admin) at [81]. Altun (supra) was a case in which this court concluded that the second attempt of a German judicial authority to secure the surrender of the requested person was an abuse of process. It was an application of the principle identified by Gibson J in Tarling that it becomes an abuse of process to raise in subsequent proceedings matters that could have been dealt with in the earlier proceedings (itself a reflection of the rule in Henderson's case) discussed by Lord Sumption in Virgin Atlantic Airways Limited. The issue at the first extradition hearing was double jeopardy under section 12 of the 2003 Act. The requested person was discharged. In the second proceedings the issue was the same but the German judicial authority adduced evidence sufficient to satisfy the District Judge that the double jeopardy bar did not apply.

Ouseley J indicated that there were limitations in the extradition context to the application of the principle identified by Gibson J. In particular, at [48], "where one warrant may be defective and lead to discharge, [it may] lawfully be replaced with another." That is a commonplace occurrence. However, the position in Altun was that all the evidence deployed in the second proceedings should have been made available by the German authorities in the first. When the issue was first raised the German judicial authority could have sought an adjournment to gather the evidence, or it could have withdrawn the warrant and issued another when it was in possession of all the evidence necessary to rebut the contention of the requested person, [49].

Ouseley J had noted that double jeopardy, if good as a point, was a complete bar to surrender which no fresh warrant could alter. In my judgment the position is different when what the court has to consider is a state of affairs at the time of the extradition hearing which, in its nature, may change. The state of a requested person's mental or physical condition is a clear example. Section 25(3)(b) of the 2003 Act allows a court to adjourn to enable the relevant condition to improve, and no doubt that would happen if the evidence was that a recovery or substantial improvement was likely in the near future. However, it is far from unknown for a person to make a remarkable and unexpected recovery from a physical or mental condition earlier relied upon in criminal proceedings to avoid a consequence. A further attempt to seek the requested person's surrender would not be abusive were that to be the case. Similarly, circumstances relevant to a successful human rights argument may move on in a requesting state so that an extradition would no longer be barred on human rights grounds. Equally, factual matters relied upon by a requested person successfully to resist extradition on article 8 grounds may change. In none of these cases would it be an abuse of process for the requesting state to return a second time to seek the surrender of the requested person.

In my view the circumstances in this case are similar. The critical factor which led the Sheriff to conclude in early 2011 that it would be oppressive to surrender the appellant appears to have been the lack of appropriate medical facilities for his treatment in Latvia. The position might change, as indeed it did. The renewed request for the appellant's surrender three years later, leading to the appellant's arrest in October 2014 and an eventual decision by the judge in November 2015, has none of the hallmarks of abuse identified in the authorities. The obvious candour of the Latvian authorities in late 2010 about the medical provision then available led to the appellant's discharge. The evidence they provided to the judge in these proceedings was describing an entirely different medical landscape by 2015 for individuals in the position of the appellant. It was not, as in Altun, an attempt to bring forward evidence available at the time of the earlier proceedings. I do not consider that the conduct of the Latvian authorities imports any notion of abusing the statutory scheme or that of the EAW more generally. Neither does it smack of oppression or unfairness. The appellant avoided extradition on the last occasion because of deficiencies in the treatment that would be made available for him on return. The judge has concluded on up to date evidence that the same situation no longer exists. There was no abuse in seeking the appellant's surrender by reference to the evidence of a changed landscape.

Delay and Section 14 of the 2003 Act

As material, Section 14 of the 2003 Act provides:

"A person's extradition to a category 1 territory is barred by reason of the passage of time if (and only if) it appears that it would be unjust or oppressive to extradite him by reason of the passage of time since he is alleged to have-

(a) committed the extradition offence (where he is accused of its commission) or

(b) …"

As is well known, the term unjust is "directed primarily to the risk of prejudice to the accused in the conduct of the trial itself" and oppressive is "directed to hardship to the accused resulting from changes in his circumstances that have occurred during the period to be taken into consideration" but "there is room for overlapping, and between them, they would cover all cases where to return [the accused] would not be fair …" See Lord Diplock in Kakis v the Government of the Republic of Cyprus [1978] 1 WLR 779, HL at 782H – 783A.

There is no question of any difficulty, still less injustice or prejudice, in the conduct of any trial in Latvia in this case, not least because the appellant has admitted the offences. Oppression is to be contrasted with hardship, which is a commonplace consequence of extradition. The test of oppression will not easily be satisfied: see Lord Brown of Eaton-under-Heywood in Gomes v Government of Trinidad and Tobago [2009] 1 WLR 1038, HL at [31].

In both Kakis and Gomes the question of delay was considered in the context of the requested person being a fugitive from justice. In Kakis at 783A - C Lord Diplock said:

"Delay in the commencement or conduct of extradition proceedings which is brought about by the accused himself by fleeing the country, concealing his whereabouts or evading arrest cannot, in my view, be relied upon as a ground for holding it to be either unjust or oppressive to return him. Any difficulties that he may encounter in the conduct of his defence in consequence of delay due to such causes are of his own choice and making. Save in the most exceptional circumstances it would be neither unjust nor oppressive that he should be required to accept them."

Lord Brown, giving the considered opinion of the Committee in Gomes, re-emphasised the point. He indicated at [21] that the delay Lord Diplock was concerned with in this passage was delay in the overall process of bringing the accused to justice. At [26] he continued:

"This is an area of the law where a substantial measure of clarity and certainty is required. If an accused like Goodyer deliberately flees the jurisdiction in which he has been bailed to appear, it simply does not lie in his mouth to suggest that the requesting state should share responsibility for the ensuing delay in bringing him to justice because of some subsequent supposed fault on their part, whether this be, as in his case, losing the file, or dilatoriness, or, as will often be the case, mere inaction through pressure of work and limited resources. We would not regard any of these circumstances as breaking the chain of causation (if this be the relevant concept) with regard to the effects of the accused's own conduct. Only a deliberate decision by the requesting state communicated to the accused not to pursue the case against him, or some other circumstance which would similarly justify a sense of security on his part notwithstanding his own flight from justice, could allow him properly to assert that the effects of further delay were not "of his own choice and making."

Lord Brown approved the approach of this court in Krzyzowski [2007] EWHC 2754 (Admin) that flight would in all save the most exceptional circumstances operate as an "almost automatic bar to reliance on delay" [27]. He gave as an example of the operation of the exception the decision of this court in In re Davies (Alfred James) [1998] COD 30. The accused was discharged because during the relevant lapse of time for which he was responsible as a fugitive, he had become unfit to plead [29]. I observe that such a case might now also be decided by reference to article 6 of the ECHR or possibly section 25 of the 2003 Act. Lord Brown concluded:

"In the great majority of cases where the accused has sought to escape justice, however, he will be unable to rely upon the risk of prejudice to his trial or a change in his circumstances, brought about by the passing years, to defeat extradition."

The judge decided, having heard evidence and considered detailed material from the Latvian authorities, that the circumstances in which the appellant left Latvia meant that he is to be treated as a fugitive. The appellant does not seek to go behind that finding. On his behalf Mr Robertson advances three submissions:

(i) Taken as a whole, the appellant can establish "most exceptional circumstances" why the delay since 2007 should be taken into account;

(ii) There was a deliberate decision by the Latvian authorities not to pursue him after his discharge by the Sheriff in 2011 and, in any event, he has a justified sense of security following the Scottish proceedings;

(iii) The delay from 2007, if taken into account, justifies the conclusion that it would be oppressive to extradite him. Alternatively, on its own, the delay from March 2011 does so.