Abuse of process - disclosure - extradition proceedings - Spain - US - jurisdiction to consider allegation of abuse - judge requiring further information or documents to determine abuse of process issue

R (on the application of United States of America) (claimant) v Bow Street Magistrates' Court (defendant) & (1) Stanley Stephen Tollman (2) Beatrice Nina Tollman (interested parties); R (on the application of Spain) (claimant) v Bow Street Magistrates' Court & Harvinderjeet Singh Sander & 6 ors (interested parties): QBD (Admin) (Lord Chief Justice Phillips, Mr Justice Cresswell): 6 September 2006


The claimants (U and S) applied for judicial review of certain decisions made in cases in which extradition was sought to the US and to Spain respectively.


In the US case, U had requested the extradition of a husband and wife (T) by diplomatic notes in 2003. In 2004, after the coming into force of the Extradition Act 2003, U withdrew the request for extradition. Later that year, U made a further request for T's extradition, and provisional arrest warrants were issued under the Act.

T then claimed that the process under the Act was unlawful, that the extradition could only take place under the Extradition Act 1989, and that the withdrawal and resubmission of the extradition request had been deliberate and an abuse of process. T sought disclosure to determine those issues, and that process led to claims of privilege or immunity in relation to certain documents. U then sought both a declaration that the provisions of the 2003 Act applied and an order requiring the start of extradition proceedings without delay.





In the Spanish case, the defendants (S) had been discharged once, and further warrants had been withdrawn as inadequate before a third set of warrants had been issued. S had successfully applied for an order for disclosure in relation to an alleged abuse of process.



U submitted that the 2003 Act applied to the request for T's extradition, and U and S submitted that the court had no power to order disclosure in relation to an argument that proceedings under the 2003 Act amounted to an abuse of process.



Held, the judge conducting the extradition proceedings had jurisdiction to consider an allegation of abuse of process (R (on the application of Bermingham) v Director of the Serious Fraud Office (2006) EWHC 200 (Admin), (2006) 3 All ER 239 applied).



It was inappropriate for the judge in extradition proceedings to make an order for disclosure in relation to allegations of abuse of process. Neither the rules governing disclosure in a civil action nor those governing disclosure in a criminal trial could be applied to an extradition hearing. Those rules formed part of an adversarial process, which differed from extradition proceedings in which the court was under a duty to satisfy itself that the requirements for making the order were satisfied. It would also be inappropriate to order disclosure because the order would be made against a judicial authority or foreign sovereign state.



The appropriate course for the judge to take if he had reason to believe that an abuse of process might have occurred was to call on the judicial authority that had issued the arrest warrant, or the state seeking extradition, for whatever information or evidence the judge required to determine whether an abuse of process had occurred or not. In a normal case, the party contesting extradition should be made aware of and allowed to comment on that material. If the judicial authority or requesting state was not prepared to allow the material to be disclosed, the judge would have to decide whether the proceedings would in that case satisfy the requirements of fairness, failing which the extradition request would have to be refused.



The extradition proceedings against T were governed by the 2003 Act. The proceedings were not brought in respect of a request for extradition made before 31 December 2003 for the purposes of the Extradition Act 2003 (Commencement and Savings) Order 2003. The issues of jurisdiction and abuse of process should have been dealt with within, rather than outside, the extradition hearing. The extradition hearing against T should be commenced within 60 days.



Under the terms of the commencement order, it had been open to U to withdraw the initial requests and issue new requests under the 2003 Act. The fact that initial requests had been withdrawn and fresh requests subsequently made did not involve illegality or, necessarily, impropriety.



The order for disclosure in the Spanish proceedings was quashed.



Applications granted.



Alun Jones QC, Peter Caldwell (instructed by the Crown Prosecution Service) for the claimants in both cases; Clive Nicholls QC, Hugo Keith, James Lewis QC, James Hines (instructed by Simmons & Simmons) for the interested parties in US; James Lewis QC, Ben Watson (instructed by Challinors) for the first and second interested parties in Spain; Ben Watson (instructed by Farleys) for the third interested party in Spain; Richard Gordon QC, Ben Cooper (instructed by Kaim Todner) for the fourth interested party in Spain.