Shah v Vice-Prosecutor, Regional Court In Bordeaux, France [2015] EWHC 3746 (Admin)

[2015] EWHC 3746 (Admin)Case No CO/5757/2014
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 18/12/2015
Before
MR JUSTICE SWEENEY
Between
IBRAR SHAHAppellantVICE-PROSECUTOR, REGIONAL COURT IN BORDEAUX, FRANCERespondent
Nicholas Hearn for AppellantRebecca Hill (instructed by CPS Extradition Unit) for RespondentHearing Hearing dates: 11 February 2015
JudgmentMr Justice Sweeney :Introduction
[1]The Appellant appeals under s.26 of the Extradition Act 2003 (“the EA”) against the decision of District Judge McPhee, made on 4 December 2014, to order his extradition to France pursuant to a conviction European Arrest Warrant (“EAW”), issued by the Regional Court in Bordeaux on 9 January 2013 and certified by the National Crime Agency (“NCA”) on 3 January 2014, to serve a total sentence of 2 years’ imprisonment, imposed following conviction in his absence on 26 May 2011, for the undeclared importation of cigarettes by an organised gang on 18 September 2006 and for the trafficking by an organised gang of the same cigarettes on the same date. France is a Category 1 territory for the purposes of EA, so Part 1 applies to all aspects of these proceedings.[2]There are two grounds of appeal. Given the law on abuse of process, it is appropriate to set them out in the following order, namely : i) The District Judge ought to have concluded that to order the Appellant’s extradition to France was a disproportionate interference with his rights pursuant to Article 8 of the European Convention on Human Rights. Accordingly, the District Judge ought to have ordered his discharge from the EAW pursuant to s.21 (2) of the EA. ii) The District Judge should have concluded that, on the evidence before him, he could not be satisfied that the request for extradition did not amount to an abuse of process and accordingly ought to have discharged the Appellant from the EAW.

The background facts

[3]The information regarding the identity of the requested person set out in box “a” of the EAW includes the name Ibrahim (as opposed to Ibrar) Shah, a date of birth of 12 January 1977, and a residence or known address of 11 (also referred to in correspondence as 1) Bell Flower Drive, “Warsall”, West Midlands. It was accepted during argument that the Appellant had a connection with Bell Flower Drive in Walsall.[4]The description of the offences set out in box “e” of the EAW, as amplified and/or explained in further information provided by the Judicial Authority, alleges that Shah was the, or one of the, organiser(s) of the illegal importation, from Spain to France, of a lorry load of Lambert and Butler cigarettes on 18 September 2006. The lorry (driven by Ronald Long) was intercepted by the French Authorities in the Pyrenees. It is asserted that Shah’s mobile phone was found in the lorry; that he was one of the people who guided Long to Malaga by telephone on 12 September 2006; that he was in Gibraltar from 13-16 September 2006 during which period there was intense telephone contact between him and one or more others involved – including further telephone contact between him and Long (with whom he had previously been in regular contact by telephone); and that the cigarettes were loaded onto the lorry. It is further asserted that Long’s wife and daughter subsequently made statements in which they said that they had been present when Shah had proposed participation in the offence to Long, and that Long had also formally accused Shah - including identifying him via a photograph as having organised the importation. Enquiries, it is said, had linked the importation on 18 September 2006 to an earlier illegal importation of Lambert & Butler cigarettes on 12 August 2006 - when a lorry driven by a man called Andrew Lunn had been stopped in Biarritz. There is reference to a second co-accused also having identified Shah via a photograph. It is further asserted that Shah threatened family members of both Long and a man called Beriro (who was involved in events in Gibraltar but was later acquitted – see below) not to speak to the investigation.[5]A domestic arrest warrant was issued by Mrs Valerie Noel, Examining Judge at the Bordeaux Regional Court on 3 March 2011. On 26 May 2011 “judgment in absentia” was passed by the 5th Chamber of the Specialised Inter-Regional Court of Bordeaux – which consisted of three judges. Shah was convicted of the offences summarised in [1] above. In addition to the sentence of two years’ imprisonment, a Customs fine of 600,000 Euros was also imposed, and the effects of the arrest warrant were upheld. That was notified to the Public Prosecutor’s Office on 12 December 2011.[6]The written judgment of the 5th Chamber (which was placed before me by the Appellant but was not before the District Judge) makes clear that Long, who was not present, but was represented, was convicted of the same offences, and that he was sentenced to a total of one year’s imprisonment and to a Customs fine of 200,000 Euros. Beriro (who was both present and represented) was acquitted on both charges. The evidence relied upon by the Court in convicting Shah is recorded as having included Long’s formal accusation of him; the recovery of his mobile phone in Long’s lorry; his telephone contacts with Long from the time that Long left the UK up until shortly after Long had been detained; his telephone contacts with others mentioned by Long; his contacts with Long’s wife and daughter prior to the importation; and threats made by him to them after Long had been detained.[7]On 9 January 2013 Mrs Corinne Buytet, Vice Prosecutor of the Regional Court in Bordeaux, issued the EAW. Box “d” confirms that the subject was not summoned or informed of the date of his trial, but had been convicted in his absence of two offences of smuggling cigarettes, and thus could file an “Opposition” leading to his case being heard again. As already indicated, the EAW was certified by the NCA on 3 January 2014.[8]The Appellant was arrested on 25 February 2014. There was an initial hearing before District Judge Coleman the following day, during the course of which it was indicated that the Appellant wished to obtain evidence that would demonstrate that he was in Pakistan during the period when the French Court had determined that he was in Gibraltar. The proceedings were adjourned, and the Appellant was released on conditional bail.[9]On 30 June 2014 the case was listed before District Judge Tempiah when it was pointed out that box “(e)” of the EAW (as then unexplained) asserted that Shah had been in Gibraltar to organise the importation from 13-16 November 2006 which was inconsistent with the alleged importation by, and arrest of, Mr. Long on 18 September 2006. It was asserted that the Appellant’s passport would demonstrate that he was in Pakistan in September 2006. In consequence, the Crown Prosecution Service (”CPS”) agreed to make further enquiries of the Judicial Authority. A letter was duly written on 14 July 2014 to Natalie Mathieu, Vice-Prosecutor of the Regional Court in Bordeaux, asking for clarification of the dates and whether the Judicial Authority would wish to see the evidence put forward by the Appellant in support of his alleged alibi.[10]On 16 July 2014 Ms Mathieu wrote to explain that the correct dates were 13-16 September (rather than November) 2006. Her letter did not refer to the evidence relied upon by the Appellant.[11]On 23 July 2014 the case was listed before District Judge McPhee, when the following evidence was relied upon by the Appellant as to his whereabouts in the period from 7 July 2006 to 1 October 2006, namely: i) His UK passport which contained an entry stamp into Pakistan dated 7 July 2006 and an exit stamp dated 1 October 2006. ii) Photographs said to show his attendance at his brother’s wedding in Pakistan on 13 August 2006 and at a wedding party in Pakistan on 19 August 2006. iii) Documents said to evidence the birth of his second child Alika in Pakistan on 7 September 2006 and his wife’s discharge from hospital there on 10 September 2006.[12]Having considered that evidence and the submissions made on the Appellant’s behalf, the District Judge concluded that the first limb of the “Tollman” test (R (Government of the United States of America)v The Senior District Judge Bow Street Magistrates’ Court [2007] 1 WLR 1157) was satisfied – i.e. that, in his then view, there were reasonable grounds for believing that there was potential for an abuse of process in respect of the identification of the Appellant. In consequence, the CPS agreed to forward the documents relied upon by the Appellant to the Judicial Authority. The case was adjourned until 17 November 2014 to enable that to be done.[13]There was then a delay, despite the efforts of those acting on behalf of the Appellant, in the provision of the letter from the CPS to the Judicial Authority. On 31 October 2014 the CPS emailed the court and those acting on behalf of the Appellant to explain and to apologise for the delay. That apology was re-iterated at a mention hearing before District Judge Goldspring on 3 November 2014. The case was adjourned until 17 November 2014 – with the CPS being required to notify the court and the Appellant by midday on 13 November 2014 as to whether the adjourned date was still feasible.[14]In the result, the CPS finally wrote to Ms Mathieu on 4 November 2014 requesting that she consider the Appellant’s bundle of evidence and a colour copy of his passport. Ms Mathieu replied on 6 November 2014 – as follows:
“In response to your letter dated 4 November 2014, I hereby indicate that Ibrahim SHAH refused to be heard, on the occasion of the letter of request issued by our office, by the British police officer in charge of execution of international letters of request, between 15 and 17 June 2008 The arrest warrant was issued for him as our office was unable to locate him Ibrahim SHAH precisely; the only address identified in the investigation was indicated in an address book that BERIRO tried to hide during the search; under the alias “SHA” was indicated the address 1, Bell Flower Drive, WARSHALL, WEST MIDLANDS. Our warrant therefore mentions only this probable address in order to locate him. The Judgement of conviction was therefore notified to the public prosecutor’s office as the investigations had not succeeded in locating him. Finally, it is immaterial where Ibrahim SHAH was on 18 September 2006, in that the judgement indicates that he was charged not with importing prohibited goods in person, but with having organised and ordered this importation, notably by telephone, along with his two co-offenders who accused him formally and identified him in photographs during the investigation procedure. Therefore the allegations of Ibrahim SHAH should not be upheld”
Therefore the allegations of Ibrahim SHAH should not be upheld”[15]On 13 November 2014 the CPS emailed the court confirming the sending of the request and attaching Ms Mathieu’s response.[16]The case was duly heard by District Judge McPhee on 17 November 2014. It was submitted on the Appellant’s behalf that the response was inadequate as it failed to comprehend the essential enquiry made by the District Judge. It was submitted that to comply with the approach recommended in Tollman it was essential that the Judicial Authority be asked to provide further clarification. The District Judge indicated that he was not minded to seek further information. The hearing thus proceeded with evidence from the Appellant and submissions in relation to each challenge then made to his extradition. Judgment was reserved and, as already touched on, was delivered in writing on 4 December 2014.[17]In the judgment the District Judge found as a fact that the Appellant was not a fugitive. He then set out the background, including his decision on 23 July 2014 to request further information; the eventual response to that request; the fact that he had declined on 17 November 2014 to further adjourn the proceedings and his reason for doing so – namely that he was satisfied that he had the information that he required to properly consider the request for surrender. In particular, the phrase in box “e” of the EAW that “Shah was formally accused by Long” had been amplified by the additional information that two co-accused had formally accused the Appellant and had identified him in photographs during the investigation process.[18]The District

Judge then continued:

“I have reconsidered the relevant principles and procedures to which I should have regard where it is claimed that ordering the return of a requested person would amount to an abuse of process………………………………………………………………………… Initially the allegation of abuse was made and it was sufficiently particularised as seeking his return when they know that any retrial on appeal cannot succeed so as to enable me to consider that it would be capable of amounting to an abuse and that there were reasonable grounds for believing in potential for an argument of abuse. That that fell short of the ‘Tollman’ test that such conduct as to cause an abuse may have in fact occurred and so I did make the request for further particulars on the basis of the evidence provided by the requested person. I now deal with the abuse argument within the extradition proceedings. I am quite satisfied that there is no such abuse here. The French Judicial Authority has considered the defence evidence and maintains that Ibrar Shar named in the warrant as Ibrahim Shah was formally accused by his co-accused and identified by them in photographs. The French Judicial Authority has considered the evidence which I had asked them to consider and provided additional significant information. I am now quite certain that this issue simply becomes a trial issue, that the request is a proper and genuinely motivated request for the surrender of Ibrar Shar named in the warrant as Ibrahim Shah as a man convicted on the offence stated in the warrant and sentenced to two years imprisonment. This is now a case in which the requested person is simply asking me to consider the inadmissibility or insufficiency of trial evidence. That is not my role as an appropriate judge. In any event the requested person now concedes that he has the right of retrial on his return to France; a subsequent appeal is the way to test the evidence and his conviction (Symeou v Public Prosecutor’s Office at the Court of Appeals, Patras, Greece [2009] EWHC 897 (Admin) and In Re Hilali [2008] UKHL 3 considered.”
[19]As to the Article 8 issue, the District Judge set out the principles to be applied as derived from the combination of Norris v Government of the United States [2010] 2 AC 487 and [8] of the judgment of Baroness Hale JSC in HH v Deputy Prosecutor of the Italian Republic, Genoa [2012] UKSC 25. Having referred to the fact that the question was always whether the interference with the private and family lives of the extraditee and other members of his family was outweighed by the public interest in extradition, he continued:
“It is inevitable that he and his family will suffer from a disruption to their family life for a period of time if he is extradited to France, particularly as he has already sought to exercise his right to a retrial. There is no suggestion here of delay on the part of the requesting state. In any event the Judicial Authority maintain that letters of request to the UK resulted in the Metropolitan Police seeking to speak to the requested person in June 2008 which contact he is said to have refused. There is no suggestion here however, that the requested person is a fugitive or that he knew of the proceedings in France. In fact, the warrant clearly states at box (d) that he was not summoned in person or otherwise informed of the date and place of the hearing which was conducted in absentia. I was invited to consider this conviction warrant as being equivalent to an accusation warrant in that the warrant makes clear that he has a right to retrial. I do not treat it as such as it is in fact a conviction warrant. There was a trial process in France where the evidence was assessed and a conviction was recorded, albeit in the absence of the requested person. I was invited to consider other alternatives which might be open to an accused person such as temporary surrender or letters of request, making extradition a measure which cannot be described as either necessary or proportionate. As a matter of fact I find that letters of request led in June 2008 to British Police seeking to interview the requested person which he refused, but in any event I have to return to the fact that this is now a conviction warrant and the only proper process to revisit his conviction is by way of a retrial. This is not one of those cases in which it can properly be said that the interference with family life will be exceptionally severe. The circumstances of the family are not such as would or should displace the treaty obligations of the United Kingdom and the weighty public interest in extradition and for serious offences such as these. The requested person must know and understand that this court should respect the decision of the French court, that or another European Country, signatory to the ECHR to seek his surrender for enforcement of his sentence.”
[20]In a further letter dated 2 February 2015 the Vice-Prosecutor Ms Mathieu re-iterated how and why the Bell Flower Drive address was included in the EAW. She also underlined that the evidence against “Ibrahim” Shah included telephone conversations with two co-defendants who had both formally accused him, and identified him in photographs.

The first ground – Article 8

[21]On the Appellant’s behalf, Mr Hearn argued that the following factors compelled a conclusion that an order for extradition would amount to a disproportionate interference with the Article 8 rights of the Appellant and his family: i) The Appellant is a British national with a firmly entrenched family life. He is a married man with three children of school age (at the time of the hearing aged 9, 8 and 4). ii) It was agreed between the parties the Appellant was not a fugitive and was not summonsed to the proceedings in France which proceeded in his absence. iii) The Appellant rejected the assertion, made by the French Prosecutor, that he failed to respond to a letter of request. He was willing to co-operate fully with any mutual assistance request and would be prepared to be interviewed in relation to the offences in this jurisdiction. iv) The submissions advanced in support of the abuse of process challenge were also supportive of the Appellant’s contention that extradition is disproportionate. A proper consideration of the Appellant’s evidence by the Judicial Authority could avoid the need for a costly extradition, and retrial procedure. This could avoid subjecting the Appellant to the severe and unnecessary interference with his family life that an extradition in custody to a foreign country would entail. v) Whilst it was acknowledged that the offences contained in the EAW were not trivial, it was submitted that nor are they of the utmost seriousness. For example, it was suggested that the offences were not so serious that less coercive measures short of extradition in custody, such as proceeding with a mutual assistance request, would not be appropriate.[22]On behalf of the Respondent, Ms Hill referred me to the authorities cited in [19] above and underlined that the circumstances in which the public policy interests in extradition will be defeated are extremely rare. She relied upon the following factors as demonstrating that the District Judge was right to conclude that extradition would not constitute a disproportionate interference with the Article 8 rights of the Appellant and his family, namely:- i) This is a conviction case, albeit that the conviction was obtained in absentia, in consequence of which, absent any successful challenge, the Appellant faces a 2 year term of imprisonment. ii) The illegal importations were serious involving international criminality, sophisticated planning and multiple offenders, and would have resulted in a custodial disposal in this jurisdiction. iii) On the District Judge’s findings of fact the Appellant was offered a less coercive means of engaging in proceedings (by way of an interview with officers in this jurisdiction) but declined to engage with it – thereby rejecting an opportunity to mitigate the harm to his family. iv) The Appellant had a right to a retrial and thus an opportunity to test the prosecution case and to advance his own evidence after his return. v) Given his failure to engage with less coercive measures, the only way to now resolve the outstanding allegations was with a retrial. vi) There was nothing to show that the District Judge misapplied well established legal principles; made a finding of fact that no reasonable judge could have made on the evidence; failed to take into account a relevant fact or factors; or reached a conclusion overall that was irrational or perverse. vii) There was no merit in the point made about the inadequacy of the Judicial Authority’s review. viii) Whilst the Appellant and his family would inevitably suffer some personal hardship that impact was insufficient to render extradition disproportionate.[23]There was debate in argument as to the correct approach on appeal in relation Article 8 issues – with disagreement as to the provenance and effect of the decision of the Divisional Court in Belbin v Regional Court of Lille, France [2015] EWHC 149 (Admin) (“Belbin”). However, it is not necessary to summarise the debate, because it was recognised at the time that the position was likely to be resolved by another appeal then in the pipeline. Indeed, awaiting the outcome of that appeal was the principal reason for reserving judgment in this case.[24]The position has indeed now been resolved by the decision of the Divisional Court, presided over by the Lord Chief Justice, in Polish Judicial Authorities v Adam Celinski & others [2015] EWHC 1274; [2015] A.C.D. 125 (“Celinski”). At [23] the Court endorsed the general approach of Beatson LJ at [66] in Dunham v USA [2014] EWHC 334 (Admin) and of Aikens LJ in Belbin (above), but concluded that the application of that approach by use of [93] & [94] of the judgment of Lord Neuberger at in Re B (A Child) (FC) [2013] UKSC 33 was likely to achieve a more consistent approach that is compliant with Article 8 and the provisions of the EA dealing with appeals.

Lord Neuberger said this:

“There is a danger in over-analysis, but I would add this. An appellate judge may conclude that the trial judge’s conclusion on proportionality was (i) the only possible view, (ii) a view which she considers was right, (iii) a view on which she has doubts, but on balance considers was right, (iv) a view which she cannot say was right or wrong, (v) a view on which she has doubts, but on balance considers was wrong, (vi) a view which she considers was wrong, or (vii) a view which is unsupportable. The appeal must be dismissed if the appellate judge’s view is in category (i) to (iv) and allowed if it is in category (vi) or (vii). As to category (iv), there will be a number of cases where an appellate court may think that there is no right answer, in the sense that reasonable judges could differ in their conclusions. As with many evaluative assessments, cases raising an issue on proportionality will include those where the answer is in a grey area, as well as those where the answer is in a black or a white area. An appellate court is much less likely to conclude that category (iv) applies in cases where the trial judge’s decision was not based on his assessment of the witnesses’ reliability or likely future conduct. So far as category (v) is concerned, the appellate judge should think very carefully about the benefit the trial judge had in seeing the witnesses and hearing the evidence, which are factors whose significance depends on the particular case. However, if, after such anxious consideration, an appellate judge adheres to her view that the trial judge’s decision was wrong, then I think that she should allow the appeal.”
[26]Accordingly, at [24] in Celinski the Court concluded:
“The single question therefore for the appellate court is whether or not the district judge made the wrong decision. It is only if the court concludes that the decision was wrong, applying what Lord Neuberger said, as set out above, that the appeal can be allowed. Findings of fact, especially if evidence has been heard, must ordinarily be respected. In answering the question whether the district judge, in the light of those findings of fact, was wrong to decide that extradition was or was not proportionate, the focus must be on the outcome, that is on the decision itself. Although the district judge’s reasons for the proportionality decision must be considered with care, errors and omissions do not of themselves necessarily show that the decision on proportionality itself was wrong.”
[27]As to decisions at first instance, the Court ruled, amongst other things, in Celinski, that:(1) The general principles in relation to the application of Article 8 in the context of extradition proceedings are set out in Norris (above) and HH (above). In future, absent further guidance from a specially constituted Divisional Court or the Supreme Court, it would not be necessary to cite any other authorities. In the latter case at [8] Baroness Hale JSC made clear, at subparagraphs (3), (4) and (5), that the question raised under Article 8 was whether the interference with private and family life of the person whose extradition was sought was outweighed by the public interest in extradition; that there was a constant and weighty public interest in extradition that those accused of crimes should be brought to trial; that the UK should honour its international obligations; that the UK should not become a safe haven; and that the public interest would always carry great weight, but that the weight varied according to the nature and seriousness of the crime involved (emphasised again by Baroness Hale JSC later in her judgment, and also by Lord Judge LCJ, Lord Kerr JSC and Lord Wilson JSC).(2) It was important that the judge bore in mind, amongst other things, that: (i) HH was concerned with cases that involved the interests of children, and the judgments must be read in that context [8]. (ii) The public interest in ensuring that extradition arrangements are honoured is very high, as is the public interest in discouraging persons seeing the UK as a state willing to accept fugitives from justice (both of which factors would be expected to be addressed in the judgment) [9]. (iii) The decisions of the judicial authority of a Member State making a request should be accorded a proper degree of mutual confidence and respect – particularly since the UK has been subject to the CJEU (which has stressed the importance of mutual confidence and respect) since 1 December 2014 [10]. (iv) The independence of prosecutorial decisions must also be borne in mind [11]. (v) It is also important for the judge to bear in mind that factors that mitigate the gravity of the offence or culpability will ordinarily be matters that the court in the requesting state will take into account; and the judge must also take into account that personal factors relating to family life which will need to be brought into the balance under Article 8, will also form part of the matters considered by the court in the requesting state in the event of conviction [12]. (vi) A structured approach to Article 8 cases is essential, given that each case will turn on the facts found by the judge and the balancing of the considerations set out in Norris and HH [14 (ii)]. (vii) The approach should be one in which the judge, after finding the facts, sets out a list of the “pros” (militating for extradition) and “cons” (militating against extradition) in “balance sheet” fashion, and then sets out his reasoned conclusion as to the result of the balancing exercise and why extradition should be ordered or the defendant discharged [16] & [17].[28]In my view the District Judge did not make the wrong decision when he decided that the interference with the private and family life of the Appellant was outweighed by the public interest in extradition. On the contrary, he clearly made the right decision. Whilst unsurprisingly, given that Celinski had not been decided when he gave judgment, he did not set out his findings in balance sheet style, he nevertheless weighed the correct factors – in particular that the Appellant and his family, then including three young children, would suffer disruption for a period of time (as militating against extradition), and the seriousness of the offences, compliance with our treaty obligations, and the weighty public interest in extradition (as militating in favour of extradition).[29]Given the delay in the provision of this judgment, which is much regretted, I invited the Appellant to make any further submissions that he wished in relation to the issues raised. In the result, I was invited to consider the delay as a factor in the court’s overall assessment of whether the extradition is a proportionate interference with the Appellant’s Article 8 rights – the more so as he has relatively recently become the father of four children. I have done so. Bearing in mind the matters underlined in Celinski (see [27] above) and weighing up the factors advanced on each side (as set out above including, as urged by Ms Hill, respecting the District Judge’s finding that of fact that the Appellant had been offered a less coercive means of engaging proceedings but had declined to engage with it) my assessment remains the same – extradition is a proportionate interference with the Article 8 rights of the Appellant and his family.

The second ground - abuse of process

[30]In the Tollman case (above) Lord Phillips, at [84], held that the following approach should be taken when an appropriate

judge is faced with an abuse of process application:

“The judge should be alert to the possibility of allegations of abuse of process being made by way of delaying tactics. No steps should be taken to investigate an alleged abuse of process unless the judge is satisfied that there is reason to believe that an abuse may have taken place. Where an allegation of abuse of process is made, the first step must be to insist on the conduct alleged to constitute the abuse being identified with particularity. The judge must then consider whether the conduct, if established, is capable of amounting to an abuse of process. If it is, he must next consider whether there are reasonable grounds for believing that such conduct may have occurred. If there are, then the judge should not accede to the request for extradition unless he has satisfied himself that such abuse has not occurred. ”
[31]On the Appellant’s behalf Mr Hearn submitted that the District Judge was right on 23 July 2014 to rule that the circumstances of the case gave rise to potential for abuse of process and accordingly that the Tollman procedure was engaged, but submitted that the events thereafter gave rise to a real cause for concern – in particular the delay by the CPS in contacting the Judicial Authority and what he characterised as a hurried, peremptory, ill-considered and inadequate response by the Judicial Authority. In the result he submitted that the Judicial Authority’s response raised more questions than answers and the District Judge fell into error when he ruled that the response was sufficient to re-assure the Court that no abuse of process might occur.[32]The abuse of process that he asserted was that the Judicial Authority: i) Had failed to address, or to properly consider, the evidence put before it on behalf of the Appellant so as to ensure that it was seeking the extradition of the correct person. ii) Had acted incompetently or in bad faith in putting forward contradictory accounts if its case.[33]Mr Hearn further asserted that the critical issue that he was raising was one relating to identity rather than innocence. He took me through aspects of the judgment of the Court on 26 May 2011 (which, as already touched on, District Judge McPhee did not have before him) and suggested that the findings were not consistent with someone who had been in Pakistan, and that the case then put was inconsistent with the case asserted on the warrant and thereafter.[34]In addition Mr Hearn pointed out that the person sought was called Ibrahim not Ibrar, and that the photograph used by the co-accused to identify Shah had not been proved to be a photograph of the Appellant. He asserted that the Prosecutor had given inconsistent accounts of the case and had avoided answering straightforward question, and that thus the prosecution needed to be treated with caution. Indeed, whilst recognising the normal high degree of trust in a judicial authority, he submitted that, in the particular circumstances of this case and in the continuing absence of an adequate assurance from the Judicial Authority capable of reassuring the court that an abuse of process would not occur, the Appellant was entitled to be discharged.[35]On the Respondent’s behalf Ms Hill correctly summarised the key principles expounded in the Tollman case, as follows: i) Where an allegation of abuse of process is made the allegation should first be identified with particularity. ii) The Court should consider whether the conduct identified, if established, is capable of amounting to an abuse. iii) If so, the court should then consider whether there are reasonable grounds for believing that such conduct may in fact have occurred. iv) If the court concludes that there are such grounds, the court should not order extradition unless satisfied that such abuse has not in fact occurred.[36]Ms Hill then referred me to [35], [36] and [39] of the judgment of Ouseley J in the Divisional Court in Symeou v Public Prosecutors Office at the Court of Appeals, Patras, Greece (to which the District Judge referred in his judgment, above) – in which Ouseley J underlined that it is the exclusive function of the trial court of the requesting state to try issues relevant to the guilt or otherwise of the individual, and that the courts of the requested state cannot decide, let alone do so on partial or incomplete evidence, what is for the courts of the requesting state to decide.[37]Ms Hill also pointed to [4] of the judgment of Ouseley J in The Queenon the Application of Starzomski v Regional Court Kielce, Poland [2014] EWHC 2673 (Admin) in which the Appellant advanced an identical point, namely that he could not be guilty.

The judge said this:

“The fundamental error which Mr Starzomski makes is to suppose that it is for this court to resolve whether he is guilty or innocent of the accusation. If he shows that he was in the United Kingdom and could not have committed the offences because he was in the United Kingdom, the Polish court will of course have to consider what impact that has on his innocence or guilt. But is it not for this court to resolve where he was or what significance that has for his ability to commit the offences.”
[38]Further, Ms Hill drew my attention to [43]-[59] of the judgment in Belbin (above) as to the correct approach to abuse of process in extradition cases. The Court made clear that the alleged abuse may be either that of the prosecuting authority or the requesting judicial authority and that if the case is one involving the acts of a prosecutor, in contradistinction of those of a judge, those acts must be subjected to “rigorous scrutiny” in deciding whether the prosecuting authority, acting as a judicial Authority for the purposes of the extradition request, has conducted itself in a way that is an abuse of process. Conduct will, however, only amount to an abuse of process of the extradition process if the statutory regime in the EA is being usurped – for example by bad faith on behalf of the Judicial Authority in the extradition proceedings, or a deliberate manipulation of the extradition process. However, any issues relating to the internal procedure of the requesting state are outside the implied abuse of process jurisdiction concerning extradition proceedings. The “usurpation” of the statutory regime has to result in the extradition being “unfair” and “unjust” to the requested person, and it must also be shown that the requested person will be unfairly prejudiced in his subsequent challenge to extradition in this country or unfairly prejudiced in the proceedings in the requesting country if surrendered there.[39]At [59] of the judgment, Aikens LJ summarised the position, as follows; “We wish to emphasise that the circumstances in which the court will consider exercising its implied ‘abuse of process’ jurisdiction in extradition cases are very limited. It will not do so if, first, other bars to extradition are available, because it is a residual, implied jurisdiction. Secondly, the court will only exercise the jurisdiction if it is satisfied, on cogent evidence, that the Judicial Authority concerned has acted in such a way as to ‘usurp’ the statutory regime of the EA or its integrity has been impugned. We say ‘cogent evidence’ because, in the context of the European Arrest Warrant the UK courts will start from the premise, as set out in the Framework Decision of 2002, but there must be mutual trust between Judicial Authorities, although we accept that when the emanation of the Judicial Authority concerned is a prosecuting authority, the UK court is entitled to examine its actions with ‘rigorous scrutiny’. Thirdly, the court has to be satisfied that the abuse of process will cause prejudice to the requested person, either in the extradition process in this country or in the requesting state if he is surrendered. ”[40]Ms Hill pointed out that, in Part 1 cases, issues of identity are dealt with at the initial hearing under the provisions of s.7 of the EA which, in so far as relevant, provides that: “(1) This section applies if – (a) a person arrested under a Part 1 warrant is brought before the appropriate judge under section 4(3)…….. (2) the judge must decide whether the person brought before him is the person in respect of whom – (a) the warrant referred to in section (1)(a) was issued…… (3) The judge must decide the issue in subsection (2) on a balance of probabilities. (4) If the judge decides the question in subsection (2) in the negative he must order the person’s discharge. (5) If the judge decides that question in the affirmative, he must proceed under section 8.” (a) a person arrested under a Part 1 warrant is brought before the appropriate judge under section 4(3)……..

(a) the warrant referred to in section (1)(a) was issued……

[41]Hence, Ms Hill submitted, that issue had already been resolved against the Appellant – who had not raised it at the material time. In any event, she submitted, in the light of the authorities to which she had made reference (above), in so far as it related to guilt (as it obviously did in the instant case), identity was plainly a matter for the court in the requesting jurisdiction alone – and the judicial authority was not normally required to provide evidence or explanation of such issues.[42]Nor, she submitted, would it be right for me to take into account the criticisms made on foot of the judgment of the 5th Chamber on 26 May 2011 – which criticisms the Judicial Authority had not had the opportunity to comment upon. Nor was there anything to substantiate the second limb of alleged abuse.[43]Against that background, Ms Hill submitted that the reality was that the Appellant purported to have an alibi, the truthfulness or otherwise of which was not a matter for the extradition court, and that thus the District Judge had erred in determining that the second limb of Tollman might be satisfied absent further consideration and in requiring further enquiries to be made. The mere presence of evidence purporting to amount to an alibi for a Requested Person could never, as a matter of principle, have amounted to an abuse. In any event, she submitted, the allegation of abuse in this case came nowhere near to satisfying the test as explained in Belbin (above).[44]In reply Mr Hearn argued that I should treat Starzomski (above) with caution given that, in light of [10] of the judgment, it was clear that the Appellant in that case had been manifestly inconsistent and unreliable in the accounts that he had given. He further submitted that, notwithstanding [4] of the judgment, where there are genuine concerns it is a reasonable request to ask the Court to investigate them, and that in the particular circumstances of this case, including taking into account the new material (which was the fairest thing to do), the Court should not proceed further until it had done so – any other course would, he submitted, be unreasonable or irrational.[45]In response to my invitation to make further submissions, it was accepted that the delay between the hearing of the appeal and the handing down of this judgment had no bearing on the abuse of process challenge.[46]Having applied the necessary rigorous scrutiny to the actions of the Judicial Authority, and even taking into account, de bene esse, the terms of the judgment of the 5th Chamber on 26 May 2011, I broadly agree with Ms Hill’s submissions as set out in [35]-[43] above The logical conclusion of the Appellant’s reasoning is that when a Requested Person says that he cannot be guilty of an offence (despite being convicted of it, albeit in absentia) and puts forward some evidential basis, then the extradition court should consider the request abusive unless the Judicial Authority responds to justify the conviction. If the District Judge fell into error in this case it was, against the background of the authorities to which Ms Hill referred, to go down the Tollman route at all. In any event, with at least one principal participant identifying the Appellant as being involved, with the evidence of Long’s wife and daughter, with the telephone evidence, and given the fact that three judges were persuaded of guilt to the criminal standard (albeit when the Appellant was not present), any prosecutor would be entitled swiftly to conclude that they should still pursue their case - for example the passport stamps may not be genuine, or (even if genuine) do not preclude the use of another identity document at the times material to the alleged offences. In any event, as the authorities show, it is not for the courts in this country to resolve whether the Appellant is guilty or innocent of the offences and that is what the Appellant is inviting the court to do – albeit in the guise of an abuse of process application.[47]Against that background, and albeit that the Respondent’s paperwork has been less than perfect, I see no merit in the suggestion that I should seek to investigate matters further. Nor, in my view, is there any merit in either formulation of abuse of process (see [32] above) advanced by Mr Hearn. In any event, the District Judge was clearly entitled to reject abuse of process.

Conclusion

[48]For the reasons set out above, this appeal is dismissed.[49]I propose to deal with any consequential orders administratively.