“32. The key, in our judgment, to cases where it is said that the requesting state failed in the first set of proceedings such that the second set are an abuse of process is to make a ‘broad, merits-based judgment which takes account of the public and private interest involved and also takes account of all the facts of the case’: see Johnson v Gore Wood[2002] 2 AC 1 at [31] and Arranz v High Court of Madrid[2016] EWHC 3029 (Admin) at [32] and [33]. Such a broad, merits-based judgment should take account of the fact that there is no doctrine of res judicata or issue estoppel in extradition proceedings. 33. Underlying extradition are important public interests in upholding the treaty obligations of the United Kingdom; of ensuring that those convicted of crimes abroad are returned to serve their sentences; of returning those suspected of crime for trial; and of avoiding the United Kingdom becoming (or being seen as) a safe haven for fugitives from justice. The 2003 Act provides wide protections to requested persons through the multiple bars to extradition Parliament, originally and through amendment, has enacted. There are likely to be few instances where a requested person fails to substantiate a bar but can succeed in an abuse argument.”
“Mr Jones’s submission in this case is that wherever proceedings on a subsequent EAW amount to collateral attack on decisions taken in proceedings on an earlier materially identical EAW, the second proceedings must amount to an abuse of process and must be dismissed. We do not agree that the matter can be put in such absolute terms. Where there are successive warrants or successive extradition requests, if proceedings on the subsequent warrants can properly be characterised as a collateral attack on a decision in proceedings on the first warrant, the latter proceedings are capable of amounting to an abuse of process. It may be possible to go further and say that ordinarily this will be the case. But the outcome in any given situation must depend on the overall merits-based assessment of public interests and careful evaluation of the facts, referred to at paragraph 32 in judgment of Giese. There is a particularly important public interest that the system of enforcement of EAWs is undermined. That public interest covers a number of objectives. One objective, plainly, is that those who are charged with criminal offences overseas or have been convicted overseas and are wanted for punishment are provided to requesting authorities. But maintaining the integrity of the EAW system includes ensuring that decisions can be made expeditiously and that courts are able to exercise effective case management powers. Put bluntly, if such orders are made, the starting presumption is that they will be complied with. Where, as in this appeal, the claim of abuse of process arises from a failure in earlier proceedings to comply with a court order, the court in the later proceedings must assess the significance of permitting the Requesting Authority to avoid the consequences of the earlier decision, while also taking account of the public interest in that particular extradition. This will also include considering the gravity of the alleged or actual offending, and the prejudice (if any) to the requested person arising from pursuit of the further warrant. In other words, a Giese-style broad, merits-based judgment taking account of the public and private interests as they are manifest on the facts of the particular case.”
“This is not a case like Jasvins where there was a live question of historic fact, calling for evidence, as to what had happened. This is a case in which extradition could not be Article 3-compatible, unless and until Hungarian authorities were in a position to make a clear and concrete promise guaranteeing the position as regards the future action of Hungarian authorities. As in Giese, where there was no abuse of process (see §43), this is a case where an "adequate assurance" was needed in relation to future action, so as to "neutralise" a human rights argument, rather than being a situation of seeking to "reargue" points which had been "lost" (see §§34-35). The integrity of the EAW system and ensuring expeditious decision-making justified DJ Grant in making directions giving a deadline for the requisite prison assurance, by way of directions which were to be complied with, and then discharging the Appellant on EAW1 when it was not forthcoming. The Respondent was clearly placing itself at risk, insofar as it defaulted assuming that it could simply start again with a lookalike EAW2. The significance of permitting the Respondent to avoid the earlier consequences lies in two features: (i) the Respondent being able subsequently to give the requisite guarantee as to Hungarian authorities' own future action, allaying the concerns for the future which arise in relation to Article 3 and prison conditions; and (ii) the adverse consequences for the Appellant in having to face a fresh EAW and fresh extradition proceedings. As to these, as in Giese (see §42): the first feature (number (i) above) serves to vindicate the Appellant's ECHR rights and ensure that the strong public interest in upholding extradition arrangements is recognised; whereas the second feature (number (ii) above) is not, in my judgment, such as to give rise to unfairness, still less oppression.”
“It may also be an abuse if a new arrest warrant is issued as a device for avoiding a litigation disadvantage that might otherwise apply on appeal. To take one example, the appellate court does not usually make its own decision as to where the Article 8 balance lies. Rather, it reviews the decision of the district judge in order to determine whether that decision was wrong. It follows that there will be marginal cases where the factors are finely balanced and where different district judges might reach different conclusions. In such cases, an appellate court may dismiss an appeal even if the court would, itself, have reached a different decision as to where the Article 8 balance lies. It would be quite wrong and abusive if, in such a case, a judicial authority simply kept issuing new arrest warrants until it found a first instance judge who reached a conclusion in its favour on the Article 8 balance.”
“Cases in which a submission founded onarticle 8 ECHR may defeat the public interest in extradition will be rare. It is most unlikely that extradition will be held to be disproportionate on the ground of interference with private life. Even in cases where interference with family life is relied upon, it will only be in cases of exceptionally severe impact on family life that anarticle 8 ECHR ‘defence’ will have any prospect of success.”
“29. I considered the circumstances of this case. Ms Hill represented the RP in the previous proceedings. She was not involved at the initial hearing after arrest, but confirmed that to her knowledge, the s20 issue was raised when the SoI (presumably alongside the proof of evidence which stated the RP could not recall being present at trial) was provided on5 April 2022 , with the hearing listed on25 April 2022 . The judgment of DJ Godfrey did not allude to an application to adjourn nor his reasoning for refusing the application. Ms Hill submitted the JA did not seek further information nor make an application to adjourn prior to the day of hearing. Ms Burton had access to Counsel’s notes from the hearing in April 2022, she did not challenge the account provided by Ms Hill. 30. The judgment of DJ Godfrey recorded in paragraph 39, the consensus between Counsel that there was insufficient material before him to conclude s20 of the Act had been complied with. He discharged the RP for the two offences to which the s20 argument related. On the information before me, unlike Jasvins or Giese, there was no failure to respond to an order of the Court. There was no suggestion that the information was sought from the JA and they failed to respond in time. It was not requested at all. This is not a case where orders were made, and the presumption that they will be complied with was not adhered to. I acknowledge the information should have been contained within the AW upon issue. There is a clear line of authorities that the AW can be considered alongside further information, if provided. The JA were not afforded the opportunity to obtain further information on this specific point. There is no doctrine of res judicata or issue estoppel. There is no barrier to a second AW being issued. I draw a clear distinction between the circumstances of Jasvins and this case because there was no failure to comply with a direction or order of the Court. In my view, the remedy available to the JA was to re-issue the AW with the missing information, which they have done in a timely manner.”
“31. I am not satisfied, on the evidence before me, that the JA have issued this AW to usurp the statutory regime nor that the integrity of the regime relating to AWs had been impugned. For reasons unknown, the original AW was incomplete. The JA did not have a realistic opportunity to supplement the AW on the s20 issue after it was raised. The proceedings were concluded on the information available. The statutory regime permitted a second request. There is no evidence of any bad faith by the JA. The only explanation for DJ Godfrey’s reasoning is Counsel’s note from the hearing, as set out within the SoI at paragraph 10. DJ Godfrey had regard to the fact that the JA were taken directly to the issue on5 April 2022 , that it was overlooked by them, the special objective in extradition proceedings, the provisions within TaCA whereby the expectation is that hearings are conducted within 60 days of arrest and the impact on the RP who had privately instructed representation. 32. I do not find the JA may be manipulating or using the procedure of the court to oppress or unfairly prejudice the RP. Further information on the s20 point was not requested from the JA in the first proceedings. In my view, there is no prejudice to the RP in the proceedings in the UK. He can respond in full to the information contained within the re-issued AW. I further find there is no prejudice to the RP upon return. The RP’s position was that he could not remember whether he was present, and whether re-trial rights were applicable. It transpired; the RP was not present at trial but was present at the sentence hearing, so the issue of re-trial rights was not applicable to him. … 34. I agree with the submission of Ms Hill that there will be a stage at which the RP is entitled to finality in proceedings, rather than having the same issues re-litigated with the associated expense and stress caused by repeat proceedings. In my view, this RP in the context of these proceedings, is not at that stage given the Court did not have the full detail before it in the first proceedings. If the JA had had the opportunity to address the s20 evidential lacuna, and failed to do so, then I would agree with the submissions of Ms Hill, that the JA were seeking to circumvent the decision of DJ Godfrey. In this instance, given the issue was raised not long before the first hearing and there were no orders of the court in place that the JA had failed to comply with, I am of the view that the RP has not established the re-issue of the AW is an abuse of process nor that these proceedings have resulted in unjust oppression of the RP to amount to an abuse of process.”
“The totality of the RP’s offending is serious notwithstanding the passage of time since offending and conviction.”
“I acknowledge the age of the original offending and acknowledge that it is a factor mitigating against extradition but I place little weight on it, in view of the nature of the original offences.”
“‘It is for the CPS and the JA to have their case in order on the day the case is listed for final hearing. Proceedings are expected to proceed on the first hearing. It was on the 5th April that the CPS were taken directly to the issue and it nevertheless appears to have been overlooked by them. I have regard to the special objective and also the provision in the TCA at Art 615 where the expectation is that the final decision is taken within 60 days of the arrest. I also have regard to the point made that Mr Bakowski is privately instructing and there would be additional costs of a further hearing in due course, although I accept it could be that the CPS would pay those costs, but even then still the prejudice of further delay and further stress. Not satisfied good reason for the adjournment.’”