USA, R (on the application of) v Senior District Judge, Bow Street Magistrates' Court [2006] EWHC 1400 (Admin)

Case No CO/1111/2006

[2006] EWHC 1400 (Admin)

IN THE HIGH COURT OF JUSTICE

ADMINISTRATIVE

DIVISIONAL COURT

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date Thursday 15th June 2006

Before

Lord Justice Thomas

Mr. Justice Silber

Between

The Queen on the application of the Government of the United States of AmericaClaimant

The Senior District Judge, Bow Street Magistrates CourtDefendant

Stanley Stephen TollmanFirst Interested Party

Beatrice Nina TollmanSecond Interested Party

Transcript of the Handed Down Judgment of

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Alun Jones QC and John Hardy (instructed by the CPS) for Claimant

Clive Nicholls QC and Hugo Keith and James Lewis QC and James Hines (instructed by Simmons and Simmons) for Interested Parties

Hearing Hearing date: 6 th June 2006

Judgment

Date 2006-06-15

[1]There is before the court a renewed application on behalf of the Government of the United States of America (the US Government) in which they seek judicial review to challenge various decisions made by the Senior District Judge and the procedure he adopted in relation to extradition requests made in respect of the interested parties to this application, and to seek various applications for relief. The application had been made to the single judge and was refused by him on the 8 March 2006. The background can be briefly explained.

[2]The first interested party Stanley Stephen Tollman (Mr. Tollman) and the second interested party Beatrice Tollman (Mrs. Tollman) are both American citizens of some wealth with extensive interests in the hotel and travel industry; they are in their seventies. Although both have extensive business interests and houses in the United States they have resided in the United Kingdom since 1984 and have a residence in central London.

[3]On 18 March 2003 the US Government requested the extradition of Mr. and Mrs. Tollman by Diplomatic Notes. The requests for extradition arose out of two sets of criminal proceedings: i) On the 16 April 2002 a grand jury in the United States issued an indictment against Mr. Tollman followed by a supplementary indictment on the 23rd January 2003. This indictment alleged that he had been engaged in conspiring to defraud banks and other financial institutions in relation to the renegotiation of very substantial debts by misrepresenting the ability of debtors to repay their debts. ii) On 24 January 2003 the United States Internal Revenue Service issued a criminal complaint against Mrs. Tollman which was filed in the United States District Court for the Southern District of New York.

[4]At that time the extradition regime between the United States and the United Kingdom was governed by the provisions of the Extradition Act 1989. It appears that the Crown Prosecution Service (CPS) informed the solicitors to Mr. and Mrs. Tollman that a request had been made for their extradition.

[5]During the course of 2003 the Extradition Act 2003 was enacted by Parliament. The Act was commenced by the Extradition Act (Commencement and Savings) Order 2003 as amended by the Extradition Act 2003 (Commencement and Savings) (Amendment No 2) Order which provided as follows:

“2. All of the provisions of the Act shall come into force on 1st January 2004, subject to the savings contained in this Order. 3. The coming into force of the Act shall not apply for the purposes of any request for extradition, whether made under any of the provisions of the Extradition Act 1989 or of the Backing of Warrants (Republic of Ireland) Act 1965 or otherwise, which is received by the relevant authority in the United Kingdom on or before the 31st December 2003.”

[6]During the course of 2003 and 2004 there was correspondence between the Home Office, CPS and the United States Government in relation to the extradition of Mr. and Mrs. Tollman.

[7]On 19 April 2004, by diplomatic note the US Government withdrew the requests for extradition made on 18March 2003.

[8]On 6 August 2004, the US Government made a new request for the extradition of Mr. and Mrs. Tollman by Diplomatic Notes; the requests referred to the same proceedings against Mrs. Tollman as the request made in 2003, but in respect of Mr. Tollman it referred to a third supplementary indictment that had been brought against Mr. Tollman on 24April 2003. On 11 August 2004, provisional arrest warrants were issued by a District Judge under Section 73(2) of the Extradition Act 2003.

[9]On 17 August 2004 the first hearing took place at Bow Street Magistrates’ Courts before the Senior District Judge. At this first hearing, where leading counsel appeared on behalf of Mr and Mrs Tollman, it was contended by them that the process under the 2003 Act was unlawful and the extradition could only take place under the 1989 Act. Bail was granted on various conditions including the withdrawal of passports of Mr. and Mrs. Tollman, who had, it appears, wished to move to South Africa. Proceedings were adjourned for 65 days with the object of a hearing on the 14 October 2004 for the service of the request.

The 2003 Act and the conduct of the proceedings for extradition

[10]It is clear that it was the purpose of the 2003 Act to try and remedy many of the delays inherent in the extradition process under the 1989 Act. There had been numerous ways in which the extradition process had been delayed for very significant periods of time; the Osman and Pinochet cases are but examples of what had happened. An illustration of the intention of Parliament is set out in s. 116 which provided that a decision under this part by the Judge or Secretary of State may be questioned in legal proceedings only by means of appeal under this Act. Other examples are s. 75(2) and s. 76(2) which oblige the Judge to fix a date on which the extradition hearing is to begin. It is clear from those and related sections that the conduct of extradition proceedings is expected to be expeditious. Indeed administrative arrangements were put in hand in this Court and by the Senior District Judge at the end of last year, after severe public criticism was made of the delays which have arisen under 2003 Act, to monitor the progress of each case with the objective of ensuring an early case management hearing and that thereafter that the proceedings (including appeals to this court) were resolved within a matter of a few months of the receipt of the request of the requesting state.

[11]The renewed application to this court is being heard some 22 months after the first hearing before the Senior District Judge. Over that period of time there have been 12 hearings (2 of which extended over two days), excluding the 3 hearings at which decisions were handed down. What has been achieved during that period of time is an order for disclosure of documents, after resolution of issues on whether there was power to order disclosure, public interest immunity and legal professional privilege; no other progress has been made.

[12]It was a common ground before us (although this may have been in dispute before the Senior District Judge) that the case management provisions of the Criminal Procedure Rules applied. The Rules impose upon the Court a duty to manage the case and upon the parties a duty to assist the court so that the overriding objective can be achieved.

[13]The course taken in this case has been defended by none of the parties before us. Why it has come about is not a matter for this court on this application to determine, but plainly the way in which this case has proceeded gives rise to concern as to the way in which such cases should be dealt with so that the extradition process can be determined within a time that is infinitely more expeditious than what has so far happened with this case. In this case, as Mr and Mrs Tollman are in their seventies, it is particularly unjust that so little has been achieved over such a protracted period of time.

[14]As I consider that permission ought to be given for the reasons set out below, it might be helpful if I first identified the issues which arise in these extradition proceedings, as these were nowhere clearly laid out for the assistance of the Senior District Judge or this Court. Those issues, as identified during the course of argument on this application, are: i) Does the Extradition Act 1989 or the Extradition Act 2003 apply to the extradition of Mr. and Mrs. Tollman? It is contended by the US Government that this is a question of law; it is contended on behalf of the Tollmans that this also involves a factual enquiry. This issue has not yet been determined. ii) If the 1989 Act applies to the Extradition of Mr. and Mrs. Tollman, then the following issues arise: a) Have the US Government made out a case to answer? b) Has the US Government made out an extradition crime? c) Have there been any contraventions of Convention rights? Mr. and Mrs. Tollman rely upon the decision of Kashamu

[2001] EWHC Admin 980

. iii) If the 2003 Act applies: a) Has there been an abuse of process in making the request under the 2003 Act? b) Has an extradition offence been made out under s.78 (4)? c) Can Mr and Mrs Tollman rely on the passage of time under s. 79 and s.82? d) Would the extradition of Mr. and Mrs. Tollman be compatible with their Convention rights (s. 84)? e) What is the relevance of the state of health of Mr. and Mrs. Tollman? iv) Is there power to order disclosure in relation to the abuse of process issue in relation to the application for extradition under 2003 Act or the factual issue in relation to the question as to which Act applies? v)If so are any documents that are disclosable covered by public interest immunity or legal professional privilege? vi) How is the evidence of the assistant district attorney, Mr. Stanley J Okula to be received in the proceedings?

[15]In addition to those six issues (encompassing the further sub issues) there may be issues as to how those issues should have been dealt with by the Senior District Judge and, if challenges were to be made, how those should be made.

[16]It may also be helpful if I set out what has happened so far in these proceedings as we had to consider this question in some detail, so that it is available to the Court hearing the application.

The proceedings before the Senior District Judge

[17]On 3 September 2004, the solicitors for Mr. and Mrs. Tollman wrote to the CPS making it clear that they considered that the extradition proceedings should have been commenced under the 1989 Act and that detention under the 2003 Act was considered unlawful. A preliminary hearing was requested in order that the court could fix a date for a directions hearing at which certain evidential applications could be made. On 21 September 2004 the court declined to list the matter for mention. Following that refusal, a Skeleton argument signed by both leading counsel for Mr. and Mrs. Tollman was submitted; the reasons why it was contended that the 1989 Act applied and not the 2003 Act were set out and two questions that were then said to arise were identified: i) Whether on the true construction of the commencement order for the 2003 Act, the receipt of a request for extradition before 31 December 2003 precluded the operation of the 2003 Act. ii) Whether the deliberate withdrawal and resubmission of an extradition request in order to defeat the provisions of the Commencement Order amounted to an abuse of process and thus a breach of

Article 5 of the Convention

[18]On 4October 2004, the Senior District Judge gave a written ruling in which, after briefly summarising the history of the matter, he stated:

“ I am satisfied that the jurisdiction of this court was only invoked on the laying of the information on the 11th August 2004 and that information related to a diplomatic note dated the 6th August 2004 which required a provisional warrant. The diplomatic note, the information leading to the provisional warrant, the provisional warrant and the subsequent remand on bail all occurred after the commencement of the Extradition Act 2003. It appears therefore that the court acted properly within its jurisdiction under the 2003 Act. If, however, it was acting outside its proper jurisdiction, the court having reviewed the decision, it must now be a matter for the High Court if the issue remains a live one.”

[19]Following that written ruling, Mr. and Mrs. Tollman immediately lodged an application for judicial review of what was described as the decision of the Senior District Judge to refuse an application for the case to be listed; in the grounds accompanying the application, a number of submissions were made including the submission that the District Judge had wrongly decided a fundamental issue of jurisdiction in the absence of and without hearing argument from Mr. and Mrs. Tollman.

[20]On 14October 2004 there was a hearing for the service of the request. The case was adjourned to the 20 October 2004 to fix the date for the extradition hearing. On 18 October 2004, the Secretary of State certified under s.70 of the 2003 Act that the requests made by the US Government were valid. On 20 October 2004 (the 3rd hearing) there was a hearing at which the Senior District Judge fixed the 16 December for the extradition hearing under the 2003 Act; this was within the 2 month period specified in s.76 of the 2003 Act from the receipt by the judge of the papers.

[21]On 1 November 2004, the US Government, in their acknowledgement of service stated that they did not oppose the grant of permission on the basis that it recognised that serious jurisdictional issues were in dispute. They followed by a letter on 24 November 2004 in which they stated: “It will be our position that in order to expedite the process, as undoubtedly all parties seek, relief should be refused on the basis that the 2003 Act applies. If we are wrong and the court holds that the 1989 Act applies, it is probable that we shall accept that and proceed accordingly, although we cannot of course promise that we would not seek to appeal further in interests of certainty. We trust you will join with us in seeking finality on this issue, avoiding a protracted and expensive series of technical argument. We note from your Claim Form that your clients are seeking a “speedy” hearing in the Magistrates’ Court”.

[22]On 1 December 2004 a letter was written on behalf of the Senior District

Judge which stated as follows:

“The Senior District Judge has asked me to confirm that he expects all the legal arguments to be advanced in this case at the full hearing of this extradition case, which will presumably include abuse of process issues. The examination by the Senior District Judge of the application under the 2003 Act and the subsequent provisional warrant was to establish whether there had been any procedural errors within the court’s process which would warrant the relisting of this case as a matter of urgency. It is a matter for you as to whether you wish to challenge in the High Court the issue as to whether this Court validly issued process under the 2003 Act or whether you wish to challenge in the extradition proceedings the decision of the Government of the United States of America to bring proceedings under the 2003 Act rather than the 1989 Act.”

[23]The 4th hearing before the Senior District Judge on 9 December 2004 was attended by leading counsel for Mr. Tollman and by leading counsel for Mrs. Tollman. The CPS were represented by one of their lawyers. From the transcript of the hearing provided to the court, it appears that this was listed as a hearing to adjourn the extradition hearing due on 16 December 2004 and to seek directions. The Senior District Judge was persuaded by leading counsel to adjourn the extradition hearing to 17 February 2005 and to use the date of 16 December 2004 for the giving of directions at which Mr and Mrs Tollman intended to apply for witness summonses and the like and to seek orders in relation to discovery. In the course of argument, the Judge asked the question as to whether those issues were to be resolved before the case was opened; he was told by leading counsel for Mr. Tollman that it was their view that these were preliminary matters and they had to be resolved first.

[24]On 14 December 2004 the solicitors for Mr. and Mrs. Tollman wrote to the CPS informing them that the Senior District Judge had ruled that Mr. and Mrs. Tollman could raise as a preliminary matter the issue of whether the proceedings brought against them were correctly brought and, if so, they were nevertheless an abuse of process of the court. They asked for full and proper disclosure as they did not see how the issues could be resolved without it. They set out the factual assertions made by Mr and Mrs Tollman; these included (at paragraph 4) the assertion that the US Government had withdrawn the request with no intention of withdrawing it or knowing they should not do so or on the advice of the English authorities. If they had acted on the advice of the English authorities such advice was given:

“knowing that it would be an attempt to defeat the Commencement Order or otherwise manipulate the course of the proceedings or reckless as to whether it would be so.”

The letter concluded:

“In the event that you refuse to disclose any relevant documents for any reason, we suggest the proper way to proceed is for you to set out an itemised schedule a brief description of such documents, together with the reasons for the refusal to disclose, details of their origin, and whether such documents have been shared with, or seen by, the Home Office or any other party. Any documents in relation to which privilege or PII is claimed should be included in the schedule and made available for the court in the normal way.”

[25]On 16 December 2004 the 5th hearing before the Senior District Judge took place. The court was told of the withdrawal of Judicial review proceedings and the request for disclosure which the CPS and Home Office agreed to consider. The case was fixed for mention on 18 January 2005 and the extradition hearing adjourned until the 17 February 2005.

[26]On 17December 2004 an agreed order was made in this court under which the proceedings for Judicial Review were withdrawn on the basis of an agreed statement of matters relied on. Paragraph 5 of the statement was in the following terms:

“By letter dated 1 December Bow Street Magistrates’ Court confirmed that it would be prepared to hear “all legal arguments”

On 9 December 2004, on an application to adjourn the date of the extradition hearing, after hearing submissions, the court ruled that prior to the extradition hearing (1) It would hear as a preliminary issue the question of whether the extradition proceedings were correctly brought under the Extradition Act 2003 (3) It would hear as a preliminary issue, if it held that the extradition proceedings were correctly brought under the Extradition Act 2003, whether such proceedings were an abuse of the process of the court”

[27]On 21December the CPS wrote to the solicitors for Mr and Mrs Tollman stating that they maintained the position on behalf of the US Government that the issue of disclosure fell to be considered only after the question of which of the two Extradition Acts applied had been judicially determined; none of the matters in respect of which disclosure had been sought was relevant to the question of jurisdiction.

[28]On 18 January 2005, the 6th hearing in the matter took place. It does not appear anything happened except the case was further adjourned until February.

[29]On 8 February 2005, the 7th hearing in this matter took place. It was directed that a two day date be fixed for a hearing on the arguments on the issues of disclosure. The date fixed was the 19 and 20 May .We enquired as to the reason in the delay and were told by counsel that the Senior District Judge heard most of the most difficult cases himself and could not therefore make available a two day hearing until the 16 May 2005. The case was accordingly fixed for the 19 and 20 May. Directions were given for the service of skeleton arguments.

[30]On 15 March 2005 a 17 page skeleton argument was submitted on behalf on Mr. and Mrs. Tollman seeking disclosure and evidence in relation to the issues of the applicability of the 2003 Act and abuse of process. Disclosure was sought from the CPS of 9 categories of document, 3 further categories from the Secretary of State and one further category from the US Government. Paragraph 55 of the skeleton argument stated: “In order to properly assess the documents, the defence require a schedule of documents from the CPS, the Home Office and the US authorities with a description of each document and, if it is not to be disclosed for reasons of PII or purported legal professional privilege, that reason should be set out against each document so that the appropriate ruling of the court can be sought on the document not disclosed.” (i). Invite the CPS, Home office and the requesting state, through its agent appearing in this jurisdiction, to disclose the requested documents. (ii). Order the CPS and the Home Office to make disclosure under its inherent jurisdiction. (iii). Invite the Secretary of State to disclose and invoke his powers under article 1X of the 1972 treaty. (iv). Issue a witness summons against Alison Riley of the CPS and Irving Jones of the Home office and Mr. Okula under s.97 of the Magistrates Courts Act 1980. (v). Issue a request for assistance under section 7 of the Crime (International Cooperation) Act 2003.

[31]The response of the US government was contained in a one page skeleton argument which was served with the affidavit of Mr. Okula. It contended that no issue of disclosure could arise; the court ought to determine as a matter of law whether the 2003 Act applied. The affidavit of Mr. Okula purported to give an explanation as to why the original extradition request was withdrawn.

[32]In response to that affidavit and one page skeleton argument, the leading counsel for Mr. and Mrs. Tollman served on 18 May 2005 an 11 page skeleton argument on a number of issues. Among those was a contention that the affidavit was inadmissible and that oral evidence and cross examination of Mr. Okula ought to be ordered to enable the court to determine findings of fact; anything less would infringe the common law and ECHR rights of Mr and Mrs Tollman (see paragraph 34 of the skeleton). The skeleton also set out a number of significant criticisms of the affidavit of Mr. Okula and relied on matters that had been proceeding in Canada in relation to the extradition of Gavin Tollman, a nephew of Mr. and Mrs. Tollman. The draft order was prepared for the court later..

[33]On the 19and 20 May 2005, the 8th hearing took place and lasted over the two days. On 6th June 2005 the Senior District Judge gave his decision. It may be summarised as follows: i) He rejected a submission on behalf of the United States Government that the issue of whether they were proceeding under the 1989Act or the 2003 Act should be resolved swiftly by the High Court; the proceedings were at present being determined under the Extradition 2003. If the proceedings were not being brought under the 2003 Act, then it would be the duty of the court to discharge the case. ii) He was satisfied as a result of the decision in Kashamu that the court could entertain an abuse of process application albeit on a limited basis. He was also satisfied that the court had a responsibility to rule upon allegations of breach of Article 5 and to conduct an Article 5 enquiry where the defence were able to establish there was a need for such an enquiry. The defence were therefore entitled to raise the issue of Article 5 and call upon the Court to enquire into whether the defendants’ rights under Article 5 had been denied; they were also entitled in due course to persuade the court there had been an abuse of process which would lead to the proceedings being discharged. iii) In relation to the application for disclosure, there was a fundamental assumption that the requesting State was acting in good faith and it was for that state to decide what material to advance in the course of its application. Whilst there was a duty of candour on the requesting State, the court in England and Wales would not order a specific disclosure in respect of the extradition proceedings themselves:

“However, the Defence say that in this case the order being sought for disclosure is not in relation to the extradition proceedings themselves, but is in relation to an Article 5 inquiry and consideration of an abuse of process argument. I am satisfied that in relation to those two specific inquiries this Court would have the power to order disclosure, provided the Court was satisfied that there was a proper and valid issue to be considered and provided that the order related to matters within the geographical jurisdiction of this court.”

After referring to what had taken place in 2003 and 2004, he concluded:

“The delay following the initial request is considerable. It may be that there were good and justifiable reasons for the delay but in the light of the fact that the American Lawyer, Mr Okula, assures me in an affidavit that there was a prima facie case, it is surprising that no order to proceed was issued after the request was received in March 2003. An Order for disclosure may well reveal the explanation, and for the purposes of the Article 5 inquiry, I conclude that the Defence are entitled to see the relevant documentation. The explanation may be entirely innocent and may have no effect on these proceedings but the defence have satisfied me that they have grounds for raising the issue and having done so, they are entitled to have the jurisdiction point resolved.”

He then made a written Order for disclosure in the terms requested by the defence which contained a reservation for legal professional privilege and Public Interest Immunity. iv)He made it clear that he was not making an order in relation to the evidence of Mr. Okula, save to decide that he had no power to require Mr. Okula to give evidence in person. The 2003 Act provided that duly authenticated documents might be received in evidence. He would decide later whether the affidavit could be admitted in the extradition proceedings as it was not possible to make a proper judgment on that issue until disclosure, if made, was considered.

[34]Following that hearing the CPS considered whether they could apply for judicial review of that decision. They decided not to.

[35]On 17 June 2005 the 9th hearing in this matter took place. At that hearing the US Government indicated that without prejudice to the issue whether the court could make an order for disclosure, they would endeavour to comply with it. They asked for 2 weeks to compile a schedule and stated that it was highly probable that they would claim that legal professional privilege or public interest immunity would apply to the great majority if not all of the documents. A timetable was agreed for the service of the schedule of documents on 1 July, a skeleton argument from the US Government as to the documents said to be privileged (and the reasons for the claim) by 15 July, a skeleton if thought necessary by the Treasury Solicitor by 15 July (with liberty to apply) and a response by 29 July from Mr and Mrs Tollman. There would then be a directions hearing on 15 August 2005 to decide how long the argument was going to take. The extradition hearing was adjourned to 22 August 2005. A written order was apparently signed embodying these directions.

[36]On 1 July 2005 the CPS served a list of correspondence between the CPS and the US Government and between the Home Office and US government but claimed they did not have to disclose these documents as they either attracted legal professional privilege or public interest immunity or diplomatic immunity.

[37]Correspondence then ensued between the parties. On 15 August 2005 there was the 10th hearing in the matter. A written Order was made by the Senior District Judge requiring the US Government and CPS to confirm there were no further documents and for the CPS to serve within 14 days a skeleton argument setting out the details of the category of public interest immunity or legal professional privilege claimed for each document, the identity of every party between whom the documents had passed, legal argument in support of each claim and a list of authorities to be relied upon.

[38]On 28 August 2005, the United States government submitted a 4 page skeleton argument. It contended that it did not accept the court had jurisdiction to make the order but it would comply voluntarily with the spirit of the first order and had accordingly served a schedule of correspondence. It was contended that certain documents were covered by legal professional privilege and that the proper way to proceed was to apply the domestic rules relating to PII, where applications were almost always made ex parte. It was submitted on that on the ex parte application, the court would be able to conduct its own assessment of the material both for the purposes of PII and legal professional privilege. On 23 September 2005 a 19 page skeleton argument was served in response by Mr. and Mrs. Tollman; one of the main points taken was that the CPS could not make a claim on behalf of the US Government that PII arose, as PII could only properly be claimed by a person on behalf of the Government of the United Kingdom. Such an application was almost always supported by an affidavit from a Minister and different considerations might apply in ordinary criminal cases where a police officer or member of security services would usually speak. Extensive submissions were made on the issue of legal professional privilege; one of the principal points made that there was no relationship of absolute confidentiality between the CPS and the US Government as there was between solicitor and client which would give rise to legal professional privilege.

[39]On 30 September 2005, the 11th hearing in the matter took place. The Senior District Judge reserved his decision which he gave on the 13 October 2005. He dealt only with the issue of PII; it was contended before us that this was at the request of the CPS. He concluded that in practice the procedure for a claim of PII required someone to form a judgement on the disclosure of each individual document and that judgement had to be based upon an informed view of the public interest, as a claim for class protection was no longer permissible. He concluded that it was not appropriate for the CPS to sign a certificate in their capacity as solicitors for the US Government, unless the lawyer signing it was entirely unconnected with those representing the US Government. He continued:

“It will be usual in cases where Public Interest Immunity is being asserted for the certificate to explain the nature of the public interest which could be adversely affected, and in broad terms the damage, which could result from disclosure. The second and closed part of the certificate would need to go into precise details of each particular document. In this case, the defendants maintain that there is no proper certificate defining the individual documents in which Public Interest Immunity is sought and it would be inappropriate for this court to consider any ex parte application because the preliminary threshold has not been met. I accept that submission and I am not satisfied that the preliminary threshold has been reached and I can see no grounds for considering an ex parte application at this stage.”

He rejected the claim for diplomatic privilege. In respect of legal professional privilege, he held:

“The Prosecution have also raised the issue of Legal Professional Privilege, I am satisfied that there is an argument for saying that the relationship between the Crown Prosecution Service and the Government is one of a Solicitor and Client. As this is at least arguable, it seems to me that there may well be documents which fall within the narrow category of having Legal Professional Privilege. However, these documents cannot be defined as a class and need to be properly itemised and identified. If those documents can be identified they can be the subject of submissions on the principles to be applied. This can then be followed by an ex parte application in which each of the documents will need to be considered in the light of the usual principles.”

At the end of his judgment the Senior District

Judge concluded:

“This case is inevitably going to take some time but I am concerned that these procedural steps are becoming protracted. Clearly, the case requires careful consideration and preparation by both sides but I will be grateful for Counsel’s advice as to how the real issue in this can be resolved as speedily as possible.”

[40]A further hearing was fixed to deal with the issue of legal professional privilege. Prior to that hearing a skeleton argument of some 18 pages was submitted on behalf of Mr. and Mrs. Tollman on the issue of legal professional privilege. The US Government argued that the judge should look at the documents in the case and make his decision on this basis, but as the defendants refused to agree with this course, the Judge declined. Full argument therefore took place in the 12th hearing in this matter on 22 and 23 November 2005. The Judge reserved his decision which was given on the 6 December 2005. He held that there were certain documents to which legal professional privilege could not attach as they were documents passing between civil servants who were not legal professional advisors. As to the meetings and e-mail exchanges between the CPS and the Assistant District Attorney, it was necessary to establish the nature and the role of the responsibility of the CPS in relation to extradition proceedings. If the US Government instructed a private firm of solicitors to act, then the relationship of solicitor and client would be established. However, the position of the CPS was significantly different; he concluded that the CPS was “effectively acting for the United Kingdom authorities in relation to this country’s treaty obligations”. The CPS did not act in a solicitor and client relationship with the requesting state that gave rise to a claim of legal professional privilege. He made it clear that the decision he had made was in respect of an abuse of process argument and did not touch upon the law relating to disclosure in extradition proceedings in general.

[41]After this ruling, though not with any expedition, the US Government applied to this court for permission to bring judicial review proceedings. The relief sought was a declaration that the provisions of the Extradition Act 2003 applied, a mandatory order requiring the District Judge to fix a date for the start of the extradition proceedings, a declaration that the District Judge should hear any evidence and arguments that the claimant’s request for extradition was an abuse of process in the context of the Act, and an order quashing the decision of the Senior District Judge of 6th December 2005 together with such relief that the court might think fit.

The contentions of the parties

[42]That application for permission was refused by the single judge. He took the view that the broad challenge to the hearing of the preliminary issues and disclosure was brought far too late; he observed that it was possible the court would have been prepared to consider an application for narrow relief in respect of the privilege and PII matters which seem to have been ruled on in December 2005 and made directions as to what was to happen in the event of a renewed application.

[43]In the argument advanced before the court, it was the broad contention of the US Government that the way in which the proceedings had been conducted had gone seriously wrong; that the issue as to which Act applied and all the other issues in relation to it should have been conducted in one set of proceedings or hearings; it was not correct to have approached this matter on the basis that the abuse of process argument should have been determined in separate proceedings outside the scope of the Act; the court, in any event, had no duty to conduct an Article 5 inquiry. They also submitted that the rulings made by the Judge in respect of his power to order disclosure and in respect of Public Interest Immunity and legal professional privilege were wrong as a matter of law. They accepted that it had been arguable as to whether they ought to have sought Judicial Review in June 2005, but the orders made were in effect part and parcel of the same decision and it was right for them to have delayed the challenge till the present time in view of authorities that indicated no challenge should be made whilst other remedies were available and all the challenges should be made in one hearing.

[44]It was contended on behalf of Mr. and Mrs. Tollman that the decisions made by the learned District Judge were entirely correct and that it was far too late to challenge any of the decisions made, even the decision given in December 2005.

Conclusion

[45]It is, I think, clear from the history that I have set out that no one could have contemplated extradition proceedings taking the time or the course taken in this case. Various explanations were given to us as to why matters had taken the course they had, but it is not, it seems to me, correct for this court at this stage to make any comment at all.

[46]It was very strenuously contended on behalf Mr. and Mrs. Tollman this was a one off case. This was (as far as they were aware and had been able to ascertain under the provisions of the Freedom of Information Act), the only case where an issue had arisen because of the making of a request for extradition prior to the commencement of the 2003 Act, the subsequent withdrawal of that request and the subsequent making of a request at a time when the 2003 Act was applicable. They nonetheless accepted that the issue in relation to the most recent decision in respect of judicial review had been commenced in time, it was plainly an important issue as it involved the status of the CPS in such proceedings and it was clearly arguable that the learned Senior District Judge was in error.

[47]During the course of the argument, in the light of the time that already been taken, we suggested that one possible way forward would be to allow permission to be given on this single issue, on the terms that all the subsequent issues were determined by the Senior District Judge in one hearing so that the protracted nature of the present proceedings could be brought to an end. We gave the parties time to reflect on this course. On reflection, neither party, for differing reasons, favoured it.

[48]It is therefore necessary for this court to determine the permission application in the ordinary way.

[49]It seems to me plainly, that as I have stated, that the issue in respect of legal professional privilege is one in respect of which permission plainly should be given. It is an important point and it is arguable that the decision of the Senior District Judge is wrong. I do not accept the contention advanced by the US Government that the decision of the Senior District Judge, although given in three separate rulings, could be regarded as one operative decision. It is my view that the way in which the decisions were given by the learned Senior District Judge was plainly in a series of decisions. It is difficult to see how it can be suggested that they were one decision. Though the issue as to whether they ought to have been argued in one hearing is an open question, they were argued separately, apparently at the request of the US Government, and separate decisions made.

[50]Ordinarily, the applications made to challenge the other decisions would face the formidable objection that they were out of time. However in the context of these proceedings, I consider that a question arises as to whether a resolution of the issue on legal professional privilege would be sufficient to enable these proceedings to continue in a straightforward and rapid manner. I am satisfied that it would not; the course of the argument and the responses of counsel to the suggestion made by the court have convinced me that the only way in which these proceedings are likely to make progress is for the court to review the decisions made in this matter to date, to make such decisions as it considers appropriate to make and to make clear how the remaining issues are to be dealt with.

[51]For example, there remains outstanding for decision by the Senior District Judge the issue of the status of the evidence of Mr. Okula. This turns in part on the nature of the proceedings before the Senior District Judge. Are they separate proceedings somehow distinct from extradition proceedings under the 2003 Act or proceedings under that Act? It is contended that that issue was determined by the judge in favour of Mr and Mrs Tollman, but it is not clear to me that this is so. Moreover, it may be difficult for the very important issue in respect of legal professional privilege to be determined on the assumption that the decision that there is a right to disclosure is correct or on the assumption that the decision on PII is correct. It seems to me that the nature of the applications before the Senior District Judge, particularly the issue as to whether the present applications are made within the context of the 2003 Act or separate therefrom, are issues that are very closely connected and, given my view as to the future conduct of this matter, it is desirable that this court have a full opportunity to review, if it thinks it necessary, all the decisions so far made in this matter.

[52]It seems to me the course that is likely to result in these proceedings being determined finally in the most expeditious manner is to grant permission out of time in respect of each of the decisions made so far by the District Judge and leave open to this court the question as to the way in which the whole of these proceedings should have been conducted and in particular whether it was right to resolve the issues in respect of abuse process and Article 5 in preliminary proceedings which it is contended are in a sense separate from proceedings under the 2003 Act or, if applicable, the 1989 Act.

[53]It is clear that no prejudice whatsoever has been caused by the fact that that decision was not challenged, as nothing had happened save for more delay, whilst further rulings were made. Nor will the grant of permission in wide terms cause any prejudice or further delay to the overall conduct of these proceedings; indeed, on the contrary, it is likely to expedite the proceedings.

[54]It is clear that the Senior District Judge was faced with difficult issues as to the way in which proceedings of this kind should be conducted and the issues raised were themselves difficult. We have every sympathy with the position in which he has been placed by the way these proceedings have been approached.

[55]It was the intention of the 2003 Act that the issues in extradition proceedings be resolved speedily and multiple hearings be avoided; as I have said arrangements were recently made to try to ensure that such proceedings, including appeals to this Court, were dealt with within a matter of months. It may, it seems to me, be very helpful if the Court hearing this matter were to consider giving some general guidance, quite apart from the specific directions necessary in this case, as to the way in which issues in extradition proceedings such as those arising in relation to abuse of process, disclosure, privilege and the application of the Act should be determined; it is entirely a matter for that Court whether it would be appropriate to do so.

[56]I therefore consider permission should be granted in respect of the entirety of the application made by the United States Government, including leave out of time in respect of all the decisions made in this matter to date, including the decision made at the hearing on 9 December 2004, if necessary. In so far as it is necessary to extend the time limit for bringing this application, we extend it because this application raises issues of general public importance for the reasons that have been outlined. There will be a direction that the matter be heard as early as possible in July, reserving to Mr. Justice Silber in the first instance any issue as to the fixing of the date and any directions that are needed. All parties should send to the Administrative Court Office by 12 noon on 20 June 2006 a time estimate for this substantive hearing. Mr. Justice Silber: I agree.