Justin Matthew Ward v The Government of The United States of America [2025] EWHC 948 (Admin)

[2025] EWHC 948 (Admin)

Case No AC-2022-LON-003046

IN THE HIGH COURT OF JUSTICE

KING'S BENCH DIVISION

ADMINISTRATIVE COURT

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

Date 16/04/2025

Before

LORD JUSTICE HOLROYDE, VICE-PRESIDENT OF

THE COURT OF APPEAL, CRIMINAL DIVISION

MR JUSTICE MORRIS

Between

JUSTIN MATTHEW WARDAppellant

THE GOVERNMENT OF THE UNITED STATES OF AMERICARespondent

Ben Watson KC and Martin Henley (instructed by Freemans Solicitors) for Appellant

David Perry KC and Catherine Brown (instructed by CPS Extradition Unit) for Respondent

Hearing Hearing dates: 20 March 2024, 14 November 2024, 26 March 2025

Approved Judgment

[1]The Government of the United States of America (“the respondent”) seeks the return of Mr Justin Ward (“the appellant”) in order to prosecute him for a sexual offence. The United States of America (“the USA”) has been designated a Category 2 territory to which Part 2 of the Extradition Act 2003 (“the Act”) applies. After a hearing in the Westminster Magistrates’ Court, District Judge (Magistrates’ Courts) Zani (“the DJ”) handed down a written judgment dated 24 August 2022 in which he rejected the appellant’s several challenges to extradition and found that extradition would be compatible with the appellant’s Convention rights. Pursuant to section 87(3) of the Act, the DJ sent the case to the Secretary of State for the Home Department (“the Secretary of State”) for a decision as to whether the appellant should be extradited. On 19 October 2022 the Secretary of State ordered the appellant’s extradition. With limited leave granted by May J, the appellant now appeals against the decision of the DJ. Introduction:

[2]The appeal has an unusually protracted history. After the initial hearing, the court reserved judgment. A date was then fixed for the judgment to be handed down remotely. As often happens, a confidential draft of the judgment was provided to counsel two days before that date, so that they could assist the court with correction of any typographical or obvious factual errors.

[3]When the appellant was notified of the imminent handing down of the judgment, he for the first time informed his solicitors of certain medical matters. His instructions prompted a series of urgent emails seeking to delay the handing down of the judgment whilst the medical matters were considered. We are very grateful to solicitors and counsel on both sides for the speed with which they addressed this unexpected development. It is unnecessary to go into any detail. It suffices to note that the court made an order adjourning the handing down of judgment until a date to be fixed, and directing the parties as to the provision of written submissions and supporting material. One of the directions was that the appellant, if so advised, must by 21 August 2024 file and serve “an explanation for why medical problems arising in April and May 2024 were not raised with the court until late on 30 July 2024”.

[4]Further hearings followed, on 14 November 2024 and 26 March 2025. At the latter hearing, the appellant applied to amend his grounds of appeal in order to add a new ground and to seek a reconsideration, in the light of fresh medical evidence, of some of his original grounds.

[5]Following that hearing, the court sent a message to the parties noting certain features of the documents which had been placed before it. The court did not order the provision of any further information about any of those matters but indicated that it felt it right to give the appellant an opportunity to provide it if so advised. The court accordingly directed that if the appellant wished to provide any further information, he must do so by 28 March 2025.

[6]The appellant and his solicitor Ms Hogg filed witness statements and exhibits, which the court has considered.

[7]I give more detail about these matters later in this judgment. I mention them at the outset in order to outline how it comes about that the court is only now in a position to give judgment.

[8]In the circumstances I have indicated, the judgment previously prepared for hand down has necessarily been revised and extended to include the later evidence and submissions. The draft of the earlier judgment, which as I have said was provided to counsel but not handed down, is accordingly of no effect. The facts:

[9]The appellant is now aged 58. From about 1999 until about 2002 he lived in Germany, where he was employed in a USA Consulate. He met and became friends with a couple who were the parents of three boys, to whom I shall refer as PV, CV and NV. The V family are all citizens of the USA. After a time in Germany, they returned to the USA and lived in Florida.

[10]In February 2004 the appellant also went to Florida, where he resumed his contact with the V family. He remained in the USA for two years. In early 2006 he returned to this country and found work and accommodation in the Manchester area. Police investigations:

[11]In September 2011 the appellant was arrested and interviewed under caution by police officers in Cheshire in connection with alleged sexual offending in this country against a boy aged under 13. No charges were brought at that stage, but computers were seized from the appellant. When they were later examined, indecent images of children were found.

[12]In February 2012, in the USA, NV disclosed that he had been sexually abused. Later that year all three brothers – PV, CV and NV – reported to law enforcement officers in the USA that they had been sexually abused by the appellant. It should be noted that PV died in 2013, aged 24.

[13]In early December 2012 the appellant was again arrested by the police in Cheshire. In a series of interviews under caution, the appellant was questioned about the imagery stored on his computers, the allegation relating to the boy about whom he had previously been questioned, and other sexual allegations. He informed the interviewing officers that a friend in the USA had recently told him that two federal agents had been to her house and had asked her about the appellant’s whereabouts, and whether he had ever been around her children.

[14]In his third interview, on 10 December 2012, the appellant (who was accompanied by a solicitor) volunteered admissions of sexual offences. He said that between about 2003 and 2006 he engaged in mutual masturbation and oral sex with both PV and CV: the offending against PV was committed over 3 years between 2003 and 2005, mainly in Germany; the offending against CV was on 20 or 25 occasions between 2004 and 2005; and in the USA “it was more [CV] than with [PV]”. He denied that he had committed any offence against NV. He denied that any of his offending against CV and PV had involved anal penetration, and he denied that any other adult had been involved.

[15]It is the appellant’s case that he made those admissions after, and as a result of, an “off the record” conversation in which Sergeant Deakin, one of the officers who conducted the interviews, told him that if he admitted to his offending in the USA, then he would not be extradited and he would be sentenced in this country for all offending in the UK, Germany and the USA. In his proof of evidence provided for the extradition hearing, the appellant said:

“I admitted to the allegations that took place in the US in order that if I was to be charged, all offences would be sentenced together in the UK.”

[16]The respondent denies that there was any such inducement as is alleged by the appellant. Sergeant Deakin’s witness statement includes the following:

“4. Early on in the investigation, I contacted the US authorities about the US offences and their investigation. There was correspondence between myself and the FBI by email. Their response was clear that the US authorities were investigating and they did not want the UK authorities to deal. On that basis I had very little details of the US offences and their investigation. 5. I confirmed to Mr Ward that I knew nothing about the American investigation and the US authorities were going to deal with it. I had no prior knowledge or any information from the US authorities regarding the US allegations. … 8. Mr Ward confessed to sexual abuse of the two boys, [PV] and [CV]. The admissions came from him, there was no incentive, inducement or encouragement on my part. 9. You can see from the interview transcript of 10 December 2012 that I had little knowledge and details of the American offences. My questions were based on the information that he provided to me. 10. I never spoke to Mr Ward off tape suggesting that it would be in his best interests to admit to the US offences in order that all matters could be dealt with together including the UK and German offences. I did not mislead him in any way, it was clear that the US were going to deal with the US matters themselves. I knew that he would be subject to extradition proceedings to the US. … 13. I never requested the Crown Prosecution Service to consider a charging decision in relation to the American offences as it was clear that the US authorities wanted to deal with the US offences. … 17. In contrast, regarding the German offences, I contacted the German authorities, there were no statements from complainants and they requested that we dealt with the matters, they confirmed that they did want the UK to deal with them …”

[17]The emails which Sergeant Deakin had exchanged with the FBI have not been disclosed in the extradition proceedings. In February 2022, in response to a request for disclosure made by the appellant’s solicitors, a representative of the Crown Prosecution Service (“CPS”) wrote:

“We do not have any emails between the police and the US authorities, and based on the electronic case file we have not had those emails at any stage. The fact that we have not had them does not strike me as unusual. The US offences did not form any part of the advice which was requested of us by the police. That there were offences outside of the jurisdiction was mentioned in the file, but the lawyer was told they were being dealt with by the US authorities and has noted that, but had no involvement of that alleged offending.”

[18]The facts which I have summarised have given rise to criminal proceedings both in this country and in the USA. Criminal proceedings in this country:

[19]In August 2013 the appellant was charged by Cheshire Police with offences relating to alleged sexual abuse of young boys in Germany and in this country, and the making and possession of indecent images of children. None of the charges related to any member of the V family.

[20]On 12 September 2014, in the Crown Court at Chester, the appellant pleaded guilty to 23 offences: four of indecent assaults on boys in Germany; six relating to the commission or incitement of sexual activity with boys in Cheshire; one of attempting to pervert the course of justice between the date of his 2011 arrest and the date of his 2012 arrest, by destroying a hard drive which contained indecent imagery; and 12 of making and possessing indecent images of children.

[21]The appellant was sentenced to a total term of 11 years 8 months’ imprisonment, reduced on appeal to 8 years. He was released on licence from his sentence in August 2018, and his sentence was completed in August 2022. It is not suggested he has committed any further sexual offences since his release. Criminal proceedings in the USA:

[22]On 20 December 2018, in the United States District Court for the Southern District of Florida, a grand jury returned an indictment charging the appellant with an offence contrary to Title 18, section 2423(b) of the United States Code of travelling into the USA for the purpose of engaging in illicit sexual conduct with a person under 18 years of age. The maximum penalty for such an offence is 30 years’ imprisonment. The allegation against the appellant is that in and about February 2004 he engaged in illicit sexual activity with CV.

[23]On the same date the Florida court issued a domestic warrant for the arrest of the appellant. The extradition proceedings:

[24]On 14 May 2020 the United States Justice Department issued a request for the extradition of the appellant. The request was supported by an affidavit by an Assistant US Attorney, who indicated that the respondent would rely at trial on the evidence of CV and on the statements which the appellant made when interviewed by the police in Cheshire. It is alleged that the appellant moved to Florida for the purpose of continuing to molest CV sexually and that the sexual abuse of CV included both oral and anal penetration. It is further alleged that whilst in Florida, the appellant introduced an adult male friend, to whom I shall refer as “G”, to NV; that G began sexually abusing NV; and that the appellant also occasionally engaged in masturbation with NV. The affidavit indicated that charges were currently being pursued against G in Florida.

[25]The request was subsequently certified by the Secretary of State pursuant to s70 of the Act. On 21 August 2020 District Judge Goozée issued a warrant for the appellant’s arrest. District Judge Goozée stated that the conduct alleged – penile penetration of the anus of CV, a child aged under 16 – would be an offence contrary to s9 of the Sexual Offences Act 2003 if it occurred in this country.

[26]The appellant was arrested on 27 August 2020. He said words to the effect “I can’t believe it has taken them so long and I knew this was coming”. He was initially remanded in custody, but was granted bail in November 2020. The extradition hearing in May 2022:

[27]The appellant raised a number of challenges to extradition: the rule against double jeopardy (s80 of the Act); injustice or oppression arising from the passage of time (s82); forum (s83A); article 3 (a challenge based on prison conditions, including those relating to the appellant’s medical issues and status as a sex offender); article 8; and abuse of process.

[28]The appellant gave evidence. He accepted that, when arrested, he may have said words to the effect of “I can’t believe it has taken them so long”. He said that whilst serving his sentence he had “tried to bury all of this in my subconscious”, and that when he was not “gate arrested” upon release from prison he “thought it was not being proceeded with”. He accepted that none of his guilty pleas related to any of the allegations in the USA, and that nothing in the interview transcripts suggested that offences committed in the USA would be dealt with in this country.

[29]The DJ made the following findings relevant to this appeal:

“52) s82 ruling: oppression: It is reasonable to note that since release from his UK sentence, Mr Ward has made efforts to reintegrate into society, subject to his ongoing (post release) obligations to the relevant UK authorities. Indeed it is not suggested that he has failed to abide by his post-release supervision requirements. 53) However, I am not satisfied that he has been able to point to such changes in his life from 2013 to the present day that would give rise to his extradition resulting being s82 oppressive in the particular circumstances of this case. … 176) Abuse of process ruling: The US authorities have made no secret of the fact that they have liaised with their UK counterparts in this case for a lengthy period of time. … 177) In this court’s opinion, there is no action or inaction by either the US or UK authorities that can reasonably be considered to amount to an abuse of this court’s extradition process. 178) I find that there is no evidence that the US authorities have ever made any promises to Mr Ward that he would not be prosecuted there for the US allegations. I note that the US case relates to allegations of oral and anal rape, which were absent from those prosecuted in the UK. 179) I find that there is nothing that can reasonably be considered to amount to an abuse of process in the Request or any supplementary information provided by Mr Egan on behalf of the US authorities. 180) I reject Mr Ward’s evidence that he was led to believe that the US allegations would be tried in the UK. 181) This covers the situation whereby the US authorities wish to retain jurisdiction over the ongoing prosecution, noting, as I do, that the complainant resides in the US. 182) It is noted that JW seemed to anticipate that he may well be sought for extradition by the US authorities. This is demonstrated by his comment to the UK police when they executed the warrant and arrested him. 183) Put shortly, when the extradition request and the chronology of both criminal investigations and prosecutions are carefully analysed, I am entirely satisfied that there is no cogent evidence that the US authorities have sought to abuse or manipulate the process of this court. 184) Accordingly, the abuse of process challenge must fail.”

[30]The judge thus determined all issues against the appellant. He sent the case to the Secretary of State, who subsequently ordered the appellant’s extradition to the USA, pursuant to s93 of the Act. The original grounds of appeal:

[31]The appellant applied for leave to appeal on grounds challenging every aspect of the DJ’s ruling. In summary, ground 1 related to the ruling on double jeopardy (s80); ground 2, passage of time (s82); ground 3, forum (s83A); ground 4, prison conditions (art 3); ground 5, disproportionate interference with the appellant’s right to private and family life (art 8); and ground 6, abuse of process.

[32]On an initial consideration on the papers, the application for leave to appeal was refused on all grounds. The appellant renewed his application at an oral hearing. Leave was granted on grounds 2 and 6 only. The powers of this court on appeal:

[33]Section 103 of the Act provides the appellant with a right of appeal against the decision of the DJ. By subsection (4) the appeal – “(a) may be brought on a question of law or fact, but (b) lies only with the leave of the High Court.”

[34]So far as is material for present purposes, s104 of the Act contains the following provisions as to the powers of this court on the hearing of the appeal:

“(1) On an appeal under section 103, the High Court may – (a) allow the appeal; (b) direct the judge to decide again a question (or questions) which he decided at the extradition hearing; (c) dismiss the appeal. (2) The court may allow the appeal only if the conditions in subsection (3) or the conditions in subsection (4) are satisfied. (3) The conditions are that – (a) the judge ought to have decided a question before him at the extradition hearing differently; (b) if he had decided the question in the way he ought to have done, he would have been required to order the person’s discharge. (4) The conditions are that – (a) an issue is raised that was not raised at the extradition hearing or evidence is available that was not available at the extradition hearing; (b) the issue or evidence would have resulted in the judge deciding a question before him at the extradition hearing differently; (c) if he had decided the question in that way, he would have been required to order the person’s discharge. (5) If the court allows the appeal it must – (a) order the person’s discharge; (b) quash the order for his extradition. ...”

[35]The correct approach to the exercise of those powers was stated as follows at paras 25-26 of the judgment of Lord Burnett CJ and Ouseley J in Love v Government of the United States of America

[2018] EWHC 172 (Admin)

[2018] 1 WLR 2889

“25. … The words ‘ought to have decided a question … differently’ (emphasis added) give a clear indication of the degree of error which has to be shown. The appeal must focus on error: what the judge ought to have decided differently, so as to mean that the appeal should be allowed. Extradition appeals are not re-hearings of evidence or mere repeats of submissions as to how factors should be weighed; courts normally have to respect the findings of fact made by the district judge, especially if he has heard oral evidence. The true focus is not on establishing a judicial review type of error, as a key to opening up a decision so that the appellate court can undertake the whole evaluation afresh. This can lead to a misplaced focus on omissions from judgments or on points not expressly dealt with in order to invite the court to start afresh, an approach which risks detracting from the proper appellate function. … 26. The true approach is more simply expressed by requiring the appellate court to decide whether the decision of the district judge was wrong. What was said in the Celinski case and In re B (a child) are apposite, even if decided in the context of article 8. In effect, the test is the same here. The appellate court is entitled to stand back and say a question ought to have been decided differently because the overall evaluation was wrong; crucial factors should have been weighed so significantly differently as to make the decision wrong, such that the appeal in consequence should be allowed.”

Grounds of appeal 2 and 6:

[36]As I have said, leave to appeal was granted only on grounds 2 and 6. In the judgment initially prepared for hand down, it was therefore unnecessary to refer in any detail to the appellant’s other grounds, on which leave was refused. I summarise the submissions as to grounds 2 and 6 which were made at the initial appeal hearing. Ground 2: passage of time:

[37]The appellant contends in Ground 2 that – “… the DJ fails to note the 20 to 30 year prison sentence that the Applicant faces in the USA in addition to the 8 year sentence that he has already served in the UK is manifestly unjust and oppressive. … the DJ has failed to take note of this issue and has failed to note the very substantial prejudice the actions of the USA in delaying the trial process at their request and in then subjecting the Applicant to a probable draconian sentence.”

[38]By s82 of the Act:

“82 Passage of time A person’s extradition to a category 2 territory is barred by reason of the passage of time if (and only if) it appears that it would be unjust or oppressive to extradite him by reason the passage of time since he is alleged to have (a) committed the extradition offence (where he is accused of its commission) …”

[39]The appellant is charged in relation to his alleged conduct in February 2004, 20 years ago. In their written grounds and skeleton argument, Mr Watson KC and Mr Henley submit that in the exceptional circumstances of this case it would be oppressive now to extradite him to be tried on that charge. They rely on the cumulative effect of a number of factors. They contend first, that the passage of time is extremely long: it is 12 years since the alleged offence came to light. Secondly, the appellant has done nothing to cause or contribute to that delay: on the contrary, he made admissions in 2012. Thirdly, no explanation has been given for what it is submitted are two periods of culpable delay: the six years between December 2012 (when the appellant made admissions to the Cheshire Police) and December 2018 (when the grand jury returned the indictment); and the 18 months between the returning of the indictment in 2018 and the request for extradition in 2020. Fourthly, the appellant has in the interim been prosecuted and convicted for all other aspects of his sexual offending, and has served his sentence. Fifthly, whilst serving his sentence in this country the appellant was the victim of a serious sexual assault. Sixthly, the appellant’s mental health has deteriorated. Seventhly, if extradited he would be subject to sequential prosecutions and sentences in circumstances which it is submitted would be prohibited if they occurred exclusively in this jurisdiction. Lastly, reliance is placed on the matters put forward under ground 6, including the failure of both the UK authorities and the respondent to follow agreed guidance issued in 2007 as to the appropriate handling of cases involving concurrent criminal jurisdiction.

[40]It is submitted that the DJ failed sufficiently to analyse and give weight to these relevant considerations. In particular, it is submitted that the DJ, whilst recognising that there had been delay, ignored both the oppressive effect of that delay and the false sense of security which the appellant enjoyed from December 2012.

[41]It is common ground between the parties that the courts in England and Wales would have extraterritorial jurisdiction over the sexual offending in other countries which the appellant admitted in interview. In his oral submissions in relation to ground 2, Mr Watson KC argues that in consequence of the passage of time, the appellant has been severely prejudiced: if all matters had been dealt with in this country, application of the principle of totality would have resulted in a much shorter overall period in custody than he now faces. He further argues, relying on s119 of the 2003 Act, that the appellant could have been extradited to the USA whilst serving his sentence. Ground 6: abuse of process:

[42]To set this ground in its context, it is necessary to refer briefly to guidance contained in two documents which came into effect in or about 2007: the 2007 Guidance for Handling Criminal Cases with Concurrent Jurisdiction between the UK and the USA (“the 2007 Guidance”), and The Attorney General’s Domestic Guidance for Handling Criminal Cases Affecting Both England, Wales or Northern Ireland and the United States of America (“the domestic guidance”). The domestic guidance sets out the domestic procedures to be adopted by prosecutors in cases which raise concurrent jurisdiction – meaning, in this context, cases which may have the potential to be prosecuted in both this country and the USA. It does not affect the substance of the 2007 Guidance, to which I shall return later in this judgment.

[43]The appellant contends in Ground 6 that the DJ’s findings in relation to abuse of process are “perverse and against the weight of the evidence”.

[44]Relying on Wawrzyczek v Poland

[2021] EWHC 64 (Admin)

, it is submitted that extradition may be refused on grounds of abuse of process in circumstances where there is no statutory bar to extradition. Mr Watson KC accepts that this will only arise in unusual circumstances and where it is necessary to protect a requested person against unfairness. He submits, however, that it must be assumed that the 2007 Guidance remains in force; and he relies on that Guidance as showing that decisions must be considered by prosecutors, not by investigators; that prosecutors must consider the public interest; and that there should be a joined-up approach which avoids sequential prosecutions. His core submission is that in the circumstances of this case, where the appellant has admitted offending in more than one jurisdiction, it would plainly be oppressive to permit separate prosecution in a foreign jurisdiction after the domestic sentence has been served.

[45]Mr Watson KC argues that there was a failure to follow the 2007 Guidance, which has resulted in the appellant’s offending being approached in a piecemeal and disjointed manner by UK and USA investigators and prosecutors, such that if a prosecution for the alleged USA offences were brought here, it would be stayed as an abuse of the process. He submits that an inference should be drawn that the USA investigators arrogated to themselves the decision to prosecute an aspect of the offending within the UK investigation, in a manner totally contrary to the 2007 Guidance, and that the UK investigators and prosecutors failed to comply with their own responsibilities. Mr Watson KC goes on to submit that issues relating to concurrent jurisdiction were not considered or resolved, with consequent unfairness to the appellant. He invites the court, when considering this ground of appeal, to bear in mind all the circumstances, including Ground 2, the overlap between the offending which was prosecuted in this country and the offending alleged in the USA, and the implications for the appellant of his now being extradited. The respondent’s submissions at the original appeal hearing:

[46]In their written and oral submissions on behalf of the respondent, Mr Perry KC and Ms Brown resist both grounds. They begin by noting that the appellant was refused leave to appeal on the issues of double jeopardy, forum, article 3 in relation to prison conditions in the USA and article 8. There are therefore findings, no longer challenged, that extradition would be in the interests of justice and a proportionate interference with the appellant’s article 8 rights. It is submitted that it is paradoxical for the appellant now to argue that his extradition would be oppressive. It is further submitted that the abuse jurisdiction is exceptional and that it should not be allowed to subvert the statutory scheme, which provides a number of overlapping bars to extradition.

[47]Mr Perry KC goes on to submit that the DJ’s finding, rejecting the appellant’s evidence that he had been led to believe he would be prosecuted in this country for his offending in the USA, was plainly correct in view of the appellant’s comment on arrest that he had been “expecting it”. Mr Perry KC points out that although the appellant volunteered information in his 2012 interviews, he did so knowing that the FBI were looking for him, and he made no admissions as to the extent of his criminality (in particular, denying any anal penetration) or as to who else was involved. Further investigation by the USA authorities was therefore necessary.

[48]Mr Perry KC invites our attention to what was said in R (Ahsan) v Government of the USA (“Ahsan”)

[2008] EWHC 666 (Admin)

at [20] about the background to the 2007 Guidance. He particularly relies on the acceptance by the court in that case of a submission made on behalf of the DPP to the effect that the 2007 Guidance only applied where the prosecutor was “seized of a case as prosecutor”. Richards LJ, with whom Swift J agreed, said at [35]:

“I agree that the 2007 Guidance is to be read and understood in that way. It is directed at issues arising out of concurrent investigations. It does not require consideration to be given to the prosecution of a requested person in this country in circumstances where there has been no investigation of his case in this country and the Director has not been seized of the case as prosecutor.”

[49]In the present case, it is submitted, the appellant has never been prosecuted in this country for his conduct in the USA, and cannot have thought that he would be. The prosecutor in this country has never been seized of the prosecution of offending in the USA, and the 2007 Guidance does not confer any right to be prosecuted in one jurisdiction rather than another.

[50]Mr Perry KC argues that the DJ properly considered all the matters which s83A of the Act required him to consider in relation to the forum bar, and decided them adversely to the appellant. He submits that the DJ’s findings in relation to oppression have to be read in the context of the whole judgment rejecting that and other suggested bars to extradition. He further submits that in s76A (“Person charged with offence in United Kingdom before extradition hearing”) and s76B (“Person serving sentence in United Kingdom before extradition hearing”) of the Act, Parliament has recognised that it may be appropriate to wait until an offender has been released from a sentence in this country before the extradition hearing proceeds.

[51]It is not accepted that the respondent had been guilty of any culpable delay. Mr Perry KC submits that it is not for this court to investigate how matters are conducted in another jurisdiction, nor to exercise any form of disciplinary role. Events after the original appeal hearing:

[52]In the circumstances which I have outlined at the start of this judgment, and at a very late stage before the scheduled time for handing down judgment, the court was made aware of matters which had arisen arising during the period between the original appeal hearing and the intended date for handing down judgment. The information initially provided in haste was supplemented with further details before the hearing on 14 November 2024. It nonetheless remained a striking feature, even at the time of the hearing on 26 March 2025, that the appellant had failed to address a number of obviously important matters. It was for that reason, and in order to be fair to him, that he was given the opportunity to provide yet further information if he wished.

[53]I summarise the picture which has eventually emerged from this protracted process.

[54]On 19 April 2024 the appellant suffered the very painful and distressing consequences of a colonic perforation, the cause of which is unknown. He was admitted to hospital and underwent an emergency operation which he was warned he may not survive. He remained in hospital for 13 days, during which time he was fitted with a stoma to collect waste. He was discharged home on 2 May wearing a stoma bag. The discharge letter indicated that there would be routine follow up with the surgeon “in 2-3 months”.

[55]The appellant informed his solicitors of that hospital admission, because it was relevant to his compliance with the conditions of his bail. He also informed EMS, the company which was responsible for administering an electronic monitoring condition of his bail, and we accept that EMS was satisfied with the explanation he gave. The matter relating to his bail was therefore not brought to this court’s attention at that stage.

[56]Unfortunately, and again in very distressing circumstances, the appellant’s stomach wound reopened on 4 May. He was again admitted to hospital and underwent a second emergency operation, which was carried out by a different surgeon. Whilst in hospital, he developed pneumonia. He was discharged home, again wearing a stoma bag, on 13 May. The discharge letter again referred to follow up with the surgeon “in 2-3 months time”.

[57]At some stage of that second admission to hospital the appellant again explained his situation to EMS. He did not, however, inform his solicitors of that further operation. Nor did he inform them of his further contact with EMS. In a recent statement he has explained his failure to do so on the basis that he was too embarrassed and anxious to speak to anyone about his medical position. It was only when he was informed of the date when judgment would be handed down that he disclosed his continuing problems. The appellant refers in a statement to the effect of these events on his long-standing mental health issues, for which he has sought expert assistance. He expresses his fear that, if extradited, the prison authorities will be unable properly to manage his physical and mental health.

[58]On 25 September 2024 the appellant was due to attend an out-patient review. That appointment was later cancelled, and a new appointment made for 20 November 2024. That, too, was cancelled, and the appellant was told that a further appointment “will be raised”.

[59]On 6 December 2024 Professor Payne-James, a forensic physician and honorary clinical professor instructed on behalf of the appellant, provided a report. He interviewed the appellant at his home. The appellant appears to have told Professor Payne-James that he was due to be reviewed in December 2024 for consideration of reversing the colostomy. That information was incorrect: no such appointment had then been made. The appellant has explained in a statement why he had come to think that he would be seen in December 2024, and I accept that he was not trying to mislead anyone.

[60]On 4 March 2025 the appellant had an out-patient appointment with the surgeon who had carried out the second operation. The appellant understood this to be for the purpose of a planned follow-up after that operation, which he had been told would happen “in 2-3 months” but which had been delayed. He was told that it would be possible to reverse the colostomy, but that a pre-operative procedure of some sort would first be necessary. The surgeon subsequently wrote to the appellant’s GP saying:

“Mr Ward is keen to consider reversal. This will need to be performed by our Colorectal colleagues and I will make a referral for him to be seen in their Outpatients clinic to plan further regarding this. in anticipation, I have also requested a colonoscopy through the stoma and flexible sigmoidoscopy to check the stump in preparation for possible reversal. I have explained to Mr Ward that he will receive an appointment from our Endoscopy department once they have a slot and also an outpatient appointment from the Colorectal team.”

[61]On 24 March 2025, two days before the hearing before this court, the appellant received notice of an outpatient general surgery appointment for 17 June, which he assumed would be for the purpose of the colorectal review about which he had been told on 4 March. The letter includes the following:

“During your consultation with the clinician, you may be booked for a procedure. If so you may be asked to stay longer in clinic for additional pre-procedure checks.”

[62]Following the hearing on 26 March, and subsequent to the provision of further information to which I have referred, the appellant has notified the court that on 9 April 2025 he received notice of an appointment for a colonoscopy on 8 May 2025. The appellant states that he assumes this means that at his existing appointment on 17 June 2025 the reversal procedure which he wishes to take place will be carried out. Despite his best efforts, however, he has been unable to confirm whether that assumption is correct. The proposed amended grounds of appeal:

[63]On 24 January 2025 the appellant applied to amend his grounds of appeal and to file a skeleton argument in which it is submitted that the medical evidence now available should be considered in relation to the following: i) A new ground 7 of appeal relying on s91 of the Act; ii) A reconsideration of ground 2; iii) Leave to appeal on grounds 3, 4 and 5. The proposed fresh evidence:

[64]The appellant seeks to rely by way of fresh evidence on – i) Discharge summaries following the appellant’s operations in April and May 2024; ii) Statements by the appellant and Ms Hogg; and iii) Medical reports from three expert witnesses: Professor Payne-James, whose report dated 12 January 2025 addresses the appellant’s physical condition; and Dr Timothy Green a chartered consultant clinical psychologist, and Dr Pamela Waters, a consultant forensic psychiatrist, whose reports dated 7 January 2025 and 9 January 2025 respectively address the appellant’s mental health.

[65]The appellant has provided the court with psychiatric reports by Dr Ehjaz and Dr Thirumalai which were obtained by the appellant’s former solicitors but were not relied on at the extradition hearing. This has been done for completeness, because the earlier reports are referred to in the new evidence, and the earlier reports are not relied upon at this stage.

[66]Professor Payne-James takes the view that the appellant cannot safely be transferred to custody in the USA whilst awaiting the reversal operation. He states that it is important that review of the appellant, and the reversal operation, be carried out “by the surgical team who are familiar with his case”. He goes on to state that extradition prior to the reversal operation would only be safe if, prior to surrender, a clear management plan was established by surgeons who would be undertaking the procedure in the USA.

[67]Dr Green finds that the appellant is suffering from major depression and anxiety. He describes the appellant as a vulnerable man who has suffered with poor mental health for a considerable time. Dr Green opines that extradition to the USA would likely worsen the appellant’s situation, and expresses concern that the risk of suicide may well escalate. He believes – “… it is credible to suggest that Mr Ward could well become overwhelmed and be no longer capable of resisting an impulse to commit suicide should his worst fears of incarceration in the United States become a reality.”

[68]Dr Waters agrees with the diagnosis given by other psychiatrists who have examined the appellant in the past: the appellant suffers from an emotionally unstable personality disorder and post-traumatic stress disorder. Her assessment is that the appellant would find a long period of detention in the USA very difficult, and that his mental health would very likely deteriorate. If so, she states, he could become depressed; and in view of his personality disorder and PTSD, there would be an increased risk of developing worsening depression and possibly associated suicidal ideation, plans and even intentions and the actions to take his own life. It is her opinion that if the appellant becomes severely depressed – “… he certainly could present a high risk of completed suicide.” Further information from the respondent:

[69]The respondent relies on further information from the United States Marshal Service (“USMS”) and the Federal Bureau of Prisons (“BOP”). Information was initially provided in advance of the hearing on 14 November 2024. It has been supplemented, after consideration by the respondent of the recent medical evidence, by information provided by Ms Pings, a trial attorney at the Office of Internal Affairs. I summarise this information.

[70]Chief Inspector Lopez of the USMS states that the appellant, if extradited, would likely be held at a BOP Federal Detention Center in Miami, Florida. Prior to extradition the appellant would be medically screened to determine whether a “Fit to Fly Certificate” would be issued. If medical concerns were raised by the appellant, the Operational Medical Support Unit (“OMSU”) of the USMS would evaluate his medical records, and if necessary a member of the OMSU who is an Emergency Medical Technician would accompany the appellant on his journey. The appellant would remain in the custody of the USMS unless and until convicted, at which point he would be transferred to the BOP.

[71]Chief Inspector Lopez states, on the basis of his knowledge and experience, that he is confident that the appellant can be safely transported and safely housed during pre-trial detention.

[72]Senior counsel Mr Rodrigues of the BOP states that he has confirmed with the Clinical Director and Associate Warden at FDC Miami that a person with a stoma bag can safely be housed and cared for. The FDC has housed such persons in the past. Any follow-up care which is necessary after the appellant’s operations will be provided, with any medical reports provided by the UK being considered. If appropriate medical care cannot be provided in-house, the FDC’s treatment of the appellant will be augmented by community hospitals and medical providers.

[73]Mr Rodrigues further confirms that the BOP is familiar with and capable of treating personality disorders and PTSD, which are prevalent in incarcerated communities. All of the medications currently prescribed for the appellant are available for prescription to inmates.

[74]Mr Rodrigues concludes that the BOP system, including FDC Miami, can house and care for a prisoner fitting the appellant’s profile.

[75]Ms Pings states that the recent medical evidence has been considered and the USMS and BOP have confirmed that all of the appellant’s medical, psychiatric and psychological conditions described in those reports can be managed. She reiterates the information previously provided about the resources and medical expertise available to the USMS and BOP. She explains that the BOP takes patients as they are when they enter custody, and states that the BOP confirms that the appellant, whatever his medical status when he enters the BOP, will receive all medically necessary care. In particular, she records that – “The BOP has had many persons in custody in recent years who have been appropriate candidates for colostomy reversal, and BOP has facilitated the procedure through its network of community medical providers and hospitals. In all cases, these persons entered custody with a stoma bag in place that was performed by community physicians unaffiliated with BOP prior to the person entering BOP custody. In all cases, the colostomy reversals were successfully performed by different surgeons.” The submissions at the hearing on 26 March 2025:

[76]Mr Watson KC’s primary submission is that the cumulative effect of the further medical evidence, and all the other material previously before the court, is that extradition of the appellant is presently prohibited by s91 of the Act on the grounds that it would be oppressive, having regard to his physical and mental condition and to the absence of any sufficient assurance as to whether, and how, his medical needs would be met in the USA. He further submits that the court should reconsider ground 2, and re-open the application for leave to appeal on grounds 3, 4 and 5, in the light of the new evidence.

[77]Mr Watson KC submits that the court has to consider whether to allow the appeal and discharge the appellant; or to dismiss the applications and appeal; or to remit the case to the DJ with a direction to adjourn his hearing, and a final decision, until after the appellant’s medical review; or to adjourn this appeal until the reversal procedure has taken place.

[78]As to s91, Mr Watson KC submits that the Act reflects existing case law, and that accordingly the phrase “unjust or oppressive” is to be interpreted in accordance with the familiar words of Lord Diplock in Kakis v Cyprus (“Kakis”)

[1978] 1 WLR 779

at p782. He focuses on “oppressive”, which he accepts requires something more than the hardship ordinarily involved in extradition. He also focuses on the appellant’s physical problems, with only limited submissions being made in relation to the appellant’s mental health. Counsel refers to South Africa v Dewani

[2012] EWHC 842 (Admin)

[2013] 1 WLR 82

, in which the court emphasised, at [73] and [76] that what is unjust or oppressive is fact-sensitive, and requires regard to be had to all relevant circumstances. He accepts as correct the statement of principles in Magiera v Poland at [33] – [36], again emphasising the need for an intensely fact-specific approach, and for a response by the requesting state which sufficiently explains how it would meet the care needs of the requested person.

[79]In the present case, it is submitted that the evidence now available shows an expectation that the temporary stoma will be reversed, albeit that the court cannot exclude the possibility that for some reason the procedure will not be possible. Ideally, it is submitted, that should be done in this country, and preferably at the hospital where the appellant has been treated thus far. It is accepted that the psychiatric and psychological evidence presents “a complicated picture”, but reliance is placed in particular on the opinion of Dr Green which I have summarised at paragraph 67 above.

[80]Mr Watson KC argues that the information provided by the respondent focuses on process and does not sufficiently address the specific circumstances of the appellant’s case. He suggests that the response shows no appropriate sense of urgency and gives no indication of what will be required before the appellant’s travel to the USA or of what will be done, and when, once he is in the custody of the BOP. He submits that the respondent would suffer no prejudice if extradition were delayed until after the reversal procedure has take place: the case against the appellant is largely based on his own admissions, and the respondent has itself been guilty of long periods of inactivity. Extradition now, when the appellant is on course for the reversal procedure at the hospital which carried out the original operation, would greatly increase the pain, distress and shame which the appellant suffers as a result of the perforation of his colon.

[81]Mr Perry KC invites the court to refuse leave to amend the grounds of appeal and to dismiss the appeal. He submits that the further information (which is admissible even if it would not fulfil the Fenyvesi criteria: see FK v Germany

[2017] EWHC 2160 (Admin)

, especially at [38]) addresses all of the concerns which have arisen, and that oppression has not been shown. He relies on the information showing that there will be appropriate screening before travel to the USA, and appropriate care during the journey, and that the BOP will be able to manage all of the appellant’s physical and mental health conditions. He suggests that the timeline for the appellant’s treatment if he is extradited is actually more certain than the timetable which the NHS is able to offer in this country. Mr Perry KC adds that the appellant’s health issues would not make it oppressive to imprison him in this country. He submits that, in the light of the information showing that appropriate care of the appellant can be taken at all stages, it is not oppressive now to extradite him.

[82]I am grateful to all counsel for the helpful submissions made at the various hearings, and to counsel and those instructing them for the thoroughness with which they have addressed the issues arising as the appeal has progressed. It is not necessary to mention every point which has been made, but I have taken all the submissions into account. Analysis:

[83]The judgment which I drafted after the original appeal hearing focused on grounds 2 and 6, which were the only grounds of appeal then before the court. The application to amend the grounds of appeal has made it necessary for me to reconsider grounds 2 and 6 in the light of the proposed fresh evidence, and to consider the proposed new ground 7 and the proposed re-opening of grounds 3, 4 and 5. This I have done. I have considered all of the proposed fresh evidence de bene esse. Proposed ground 7:

[84]The appellant contends that the further evidence now available in relation to the appellant’s medical issues should lead the court to take a fresh and different view of the adverse decisions indicated in my previous draft judgment. It is therefore convenient to start by considering s91 of the Act, which provides:

“91 Physical or mental condition (1) This section applies if at any time in the extradition hearing it appears to the judge that the condition in subsection (2) is satisfied. (2) The condition is that the physical or mental condition of the person is such that it would be unjust or oppressive to extradite him. (3) The judge must – (a) order the person’s discharge, or (b) adjourn the extradition hearing until it appears to him that the condition in subsection (2) is no longer satisfied.”

[85]Where an issue arises on appeal which was not raised at the extradition hearing, or evidence is available which was not available to the DJ, s104(4) (quoted at paragraph 34 above) provides a route for this court to exercise its powers under s104(1). However, I am not immediately persuaded by Mr Watson KC’s submission that this case could be remitted to the DJ under s104(1)(b), because it seems to me that the applicability of s91 was not a question which the DJ decided at the extradition hearing.

[86]I do not, however, need to reach any concluded decision on that point, because notwithstanding Mr Watson KC’s admirable submissions, I do not accept that the appellant could bring himself within s91. Taking the totality of the available evidence at its highest in the appellant’s favour, and accepting for present purposes his explanation for why he did not promptly inform his solicitor of his second operation, the condition in s91(2) is in my judgement not satisfied. It is conceded that extradition would not be “unjust”. “Oppressive” is a strong word, and in my judgement it cannot properly be said to apply to the appellant in the circumstances of this case.

[87]I am, of course, sympathetic to the appellant’s misfortune in suffering the perforation of his colon, and I readily accept that he has suffered greatly as a result of that misfortune. I also accept that the nature of his physical problems has been extremely painful, distressing and embarrassing, and I can well understand why he would wish to have his reversal operation as soon as possible at his local hospital. It is not his fault that, despite the best endeavours of himself and his solicitor, the NHS has not been able to assist the appellant with a clear timeline for his future treatment.

[88]All that said, however, it seems to me that a clear distinction must be drawn between that which is desirable from the appellant’s point of view, and that which would be capable of rendering extradition oppressive. I regard the following considerations as relevant: i) The essence of the appellant’s argument that extradition now would be oppressive, as it seems to me, is the submission that removal of the appellant cannot take place at present because he is now awaiting a procedure which can safely be carried out in his local hospital within a reasonable time, and which will greatly improve the quality of his life and make him better able to withstand the experience of extradition and custody in the USA. No specific submissions have been made to the effect that extradition will continue to be oppressive until the appellant has completed a full recovery from the expected reversal procedure, or until a certain period of time has elapsed. No specific submission has been made to the effect that the appellant should be discharged because of his medical condition. The focus has therefore been on taking a course which will in effect postpone removal until a reasonable time after a reversal procedure. I note, however, that the course which Mr Watson KC invites the court to take would keep open the possibility that, even after a successful reversal procedure, the appellant may continue to argue against his extradition. ii) Although I accept that the appellant’s colostomy was intended to be temporary, and that it is likely that the appellant will be assessed as suitable to undergo the reversal procedure, there is no guarantee that that procedure will be carried out. iii) Assuming in the appellant’s favour that it will be, I cannot accept that it is medically necessary for the procedure to be carried out in his local hospital. That would not necessarily happen even if the appellant continued to be a patient in the NHS system; and even if the procedure were carried out in the same hospital, there is no basis for assuming it would necessarily be performed by a surgeon who had previously been involved in the appellant’s care. iv) I cannot accept the submission that the medical records which would be available in the appellant’s local hospital would not or might not be available to doctors in the USA: steps can easily be taken to ensure that they will be. v) I see no reason not to accept at face value the clear information provided by the respondent as to the availability of all necessary medical care if the appellant is extradited. Although the appellant’s medical circumstances are complex, this court is entitled to rely on the respondent to provide the appropriate care described in the statements to which I have referred. I see no reason to doubt that the appellant’s physical and mental problems are all of a nature which is familiar to, and capable of appropriate management by, the US authorities. Insofar as the medical problems make custody significantly harder for the appellant than for others in the prison estate, that is a matter relevant to any bail application which may be made and, in the event of conviction, a matter of personal mitigation which may be taken into account in sentencing. vi) I do not accept the submission that the respondent has provided information about the process, but not about how the appellant will be treated. It is in my view unrealistic to demand that, before the appellant is flown to the USA, he must be assessed by the medical practitioners who will treat him there. Professor Payne-James gives no sufficient explanation of why he says that is necessary. Again, there is no guarantee that the appellant would enjoy such continuity of care as an NHS patient. vii) Nor do I accept that the respondent has provided insufficient assurance that the appellant’s medical issues will be assessed, and appropriate treatment provided, promptly before, during and after his removal to the USA. Unhappily, the fact is that no clear timeline exists for the appellant’s further treatment in this country: he has an out-patient appointment which he reasonably suggests is likely to be the precursor to a reversal procedure in June; but against a background of previous delays and cancellations of appointments, there is no guarantee that the 8 May and 17 June appointments (see paragraphs 61 and 62 above) will be maintained. Even assuming that the various appointments which have been made relate to both the colonoscopy and the outpatient review by the Colorectal team which the surgeon’s letter (quoted in paragraph 60 above) indicated would be necessary before a reversal procedure could be arranged, there is still no clarity as to when a reversal procedure could take place. The timeline of NHS treatment is, in reality, uncertain and open-ended. I agree with Mr Perry KC that the timeline for a reversal procedure could actually be quicker if the appellant is extradited than it would be if he were not. I observe in this regard that those who will have custody of the appellant, if he is extradited, will have obvious reasons of their own to want him to be free of his stoma as soon as possible. viii) I also accept Mr Perry KC’s submission that the appellant’s unhappy medical problems would not provide him with any cogent argument against imprisonment if he were before a criminal court in this country. I accept that the analogy is imperfect, and that the effect on the appellant of suffering those problems in another country is more severe than it would be here; but I do not accept that that renders extradition oppressive. ix) So far as the appellant’s mental health issues are concerned, it suffices to make two points. First, his personality disorder and PTSD are at present being suitably treated with medication which will be available to him whilst in the custody of the US authorities. There is no reason to doubt the indication that such medication will appropriately be prescribed for him. x) Secondly, the preponderance of expert evidence is to the clear effect that the appellant has spoken of a plan to end his life rather than be extradited to the USA, and has chosen not to disclose any details of that plan lest steps be taken to thwart it. The evidence of Dr Green, as to a risk that the appellant’s depression will worsen to a point where he will be unable to resist an impulse to commit suicide, is therefore inconsistent with other evidence. In Turner v Government of USA

[2012] EWHC 2426 (Admin)

at [28] the court summarised six matters which would have to be established under s91 if a court is to be satisfied that extradition would be unjust or oppressive because of a risk of suicide if the order for return were made. The fourth matter was in the following terms:

“The mental condition of the person must be such that it removes his capacity to resist the impulse to commit suicide, otherwise it will not be his mental condition but his own voluntary act which puts him at risk of dying, and if that is the case there is no oppression in ordering extradition.”

On the available evidence as a whole, the appellant in my view is clearly unable to meet that requirement.

[89]Those considerations lead me to conclude that the proposed fresh evidence fails to meet the Fenyvesi criteria; that the proposed ground 7 is not arguable; and that leave to amend the grounds of appeal by adding ground 7 should accordingly be refused.

[90]The same considerations lead to the further conclusion that the additional material on which the appellant seeks to rely cannot materially assist him on the original ground 2, and provides no reason to re-open grounds 3, 4 or 5.

[91]I therefore move to my analysis of grounds 2 and 6, which were argued at the original appeal hearing. Grounds 2 and 6:

[92]There is a significant degree of overlap between these two grounds of appeal. I begin by considering the reliance placed by the appellant, in relation to both grounds, on the 2007 Guidance.

[93]The 2007 Guidance does not seek to dictate the decision to be made as to which country should prosecute a particular case in which two jurisdictions have an interest. Rather, it sets out the approach to be adopted by prosecutors in reaching that decision. Paragraph 4 of the 2007 Guidance explains that it - “… follows a step-by-step approach to determining issues arising in cases with concurrent jurisdiction. Firstly, there should be early sharing of information between prosecutors in the jurisdictions with an interest in the case. Second, prosecutors should consult on cases and the issues arising from concurrent jurisdiction. Third, where prosecutors in the jurisdictions with an interest in the case have been unable to reach agreement on issues arising from concurrent jurisdiction, the offices of their Attorneys General or Lord Advocate, as appropriate, should take the lead with the aim of resolving those issues.”

[94]Paragraphs 13 and 14 state:

“13. This guidance does not create any rights on the part of a third party to object to or otherwise seek review of a decision by UK or US authorities regarding the investigation or prosecution of a case or issues related thereto. 14. The aim of consultation, having shared the information set out in paragraph 10, will be to enable each country’s prosecutors to decide on the issues arising from concurrent jurisdiction through bi-lateral discussion, including, but not limited to: a. where and how investigations may be most effectively pursued; b. where and how prosecutions should be initiated, continued or discontinued; or c. whether and how aspects of the case should be pursued in the different jurisdictions. It is of course for the prosecuting authority, having applied the 2007 Guidance, to decide that a case should properly be prosecuted in its country, where that is in accordance with the law and the public interest.”

[95]The 2007 Guidance was agreed between the UK and the USA at a time before the Act was amended to introduce the forum bar in the terms now found in s83A of the Act.Given that that section is now in force, and has been for more than a decade, the present status of the 2007 Guidance is not entirely clear. Counsel on both sides agreed, however, that it appears to remain in force. I therefore proceed on the basis that the 2007 Guidance remains extant; but I accept Mr Perry’s submission that it cannot do the work of the forum bar for which s83A of the Act now provides. Where the 2007 Guidance applies, it serves to encourage greater dialogue, not to impede international cooperation, and it does not dictate the outcome of discussions between the two nations.

[96]In both of the cases which were before the court in Ahsan, the 2007 Guidance was held to be inapplicable. In paragraph 48 above, I have quoted what was said by Richards LJ in paragraph 35 of his judgment. I respectfully agree with that statement of the way in which the 2007 Guidance should be read and understood.

[97]It should be noted that in Ahsan at [39] Richards LJ went on to state that it would only be in a wholly exceptional case that the court would be likely to entertain a challenge to a failure by the CPS to embark upon a decision-making process by considering the 2007 Guidance.

[98]When considering the second of the two cases which were before the court in Ahsan, Richards LJ referred at [117] to the assumption that a requesting state is acting in good faith. At para [128] he added that the District Judge in that case had been correct to conclude that there was no basis for any finding that the non-consideration of the guidelines was capable of being a deliberate manipulation and abuse of the process of the court. In the circumstances of that case, accordingly – “Even if the 2007 Guidance had applied and there had been a failure to consider it, the failure would not be capable of rendering the extradition proceedings an abuse of the process.”

[99]In the light of the passages in Ahsan to which I have referred, the 2007 Guidance cannot in my judgement assist this appellant in relation to either ground 2 or ground 6. The respondent plainly had and has a legitimate interest in prosecuting the appellant for his alleged offending of travelling into the USA for the purpose of committing sexual offences against minors resident in Florida who were citizens of the USA. When interviewed by the Cheshire police, the appellant denied some of the conduct which is alleged by the US authorities, namely anal penetration, offences against NV and offences committed with G. Those allegations have not been investigated by the police in this country, and the CPS has never been seized of those allegations as a prosecutor. The 2007 Guidance was therefore not applicable.

[100]Although it is part of the appellant’s argument that Sergeant Deakin wrongly failed to put forward to the CPS a case for prosecution in this country, because he was influenced by the FBI, the email which I have quoted at paragraph 10 above shows that the CPS were aware of the allegation of offending in the USA. The DJ was, unarguably, entitled to find as he did that the appellant was not induced to make admissions to the Cheshire police by an indication that he would not be extradited. I see no basis for any suggestion that the CPS acted in bad faith in not seeking to prosecute the appellant in this country for offending in the USA. Any attempt to do so would in practice have been dependent upon the provision of assistance by authorities in the USA who wished to prosecute themselves, were in a much better position to do so, and may well have wished to prosecute this appellant jointly with another accused who is a citizen of, and resident in, the USA.

[101]But even if it could be said that the 2007 Guidance had wrongly been sidestepped, I do not see how that could assist the appellant: if the process set out in the 2007 Guidance had been engaged and followed through, consideration of the factors mentioned in paragraph 14 of the 2007 Guidance (see paragraph 94 above) would surely have led to the conclusion that the alleged offending in the USA should be prosecuted in the USA. Separate prosecutions in this country and in the USA would therefore not have been avoided.

[102]I accept that separate prosecutions in the two jurisdictions carries a risk that, if the appellant is convicted in the US, his overall sentencing may exceed that which could have been expected if all matters had been dealt with in this country by a court applying our principle of totality. It does not, however, follow that his extradition would for that reason be oppressive.

[103]The next point to be considered is the appellant’s argument that there was culpable delay on the part of the US authorities in commencing the prosecution in Florida and in seeking extradition. Mr Watson KC points out, correctly, that in the case of a person who is serving a sentence of imprisonment in the UK, whether in custody or on licence, s119 of the Act enables the Secretary of State to make an order for extradition to a category 2 territory conditional upon the giving by the requesting state of an undertaking to return the person to the UK to serve the remainder of his sentence after serving any sentence imposed on him in the category 2 territory.

[104]In the circumstances of this case, however, the appellant’s attempt to rely on that provision is unrealistic. The provision seems to me to be more apt to a case in which the period of time for which the requested person will be in the category 2 territory is comparatively short and the interruption of his UK sentence can therefore be regarded as reasonable. That was not the position here.

[105]In Kakis, the House of Lords considered the words of s8(3) of the Fugitive Offenders Act 1967, which were similar to, but not exactly the same as, the words of s82 of the Act. In a well-known passage to which I have already referred, Lord Diplock said at pp782-783:

“ ‘Unjust’ I regard as directed primarily to the risk of prejudice to the accused in the trial itself, ‘oppressive’ as directed to hardship to the accused resulting from changes in his circumstances that have occurred during the period to be taken into consideration; but there is room for overlapping, and between them they would cover all cases where to return him would not be fair.”

[106]Lord Diplock went on to make clear that delay caused by the accused’s flight cannot be the basis of any complaint that return would be unjust or oppressive. Where the accused had not himself caused delay, Lord Diplock took the view that the question of where responsibility lay for the delay was not generally relevant: what mattered was the effect of the delay rather than its cause. Lord Edmund-Davies, however, disagreed, saying at p785:

“… the answer to the question of where responsibility lies for the delay may well have a direct bearing on the issues of injustice and oppression. Thus, the fact that the requesting government is shown to have been inexcusably dilatory in taking steps to bring the fugitive to justice may serve to establish both the injustice and the oppressiveness of making an order for his return … .”

[107]In his short speech at p785, Lord Russell of Killowen emphasised the need to have regard to all the circumstances, and continued:

“Those circumstances are not restricted to circumstances from which the passage of time resulted. They include circumstances taking place during the passage of time which may (as I think here) give to the particular passage of time a quality or significance leading to a conclusion that return would be unjust or oppressive.”

[108]Counsel took us to a number of later cases from which I draw the conclusion that the approach of Lord Edmund-Davies to the issue of culpability has been preferred to that of Lord Diplock: see, for example, Eason v Government of United States of America

[2020] EWHC 604 (Admin)

at [28]. In my view, the extent to which delay on the part of a requesting state can properly be regarded as culpable is a factor to be taken into account in deciding whether the return of the requested person would be unjust or oppressive. As Laws LJ (with whom Davis J agreed) said in La Torre v Italy

[2007] EWHC 1370 (Admin)

at [37], the words of s82 of the Act – “… do not justify a conclusion that any delay not explained by the requesting state must necessarily be taken to show fault on the state’s part such as to entitle the putative extraditee to be discharged … . All the circumstances must be considered in order to judge whether the unjust/oppressive test is met. Culpable delay on the part of the state may certainly colour that judgment and may sometimes be decisive, not least in what is otherwise a marginal case (as Lord Woolf indicated in Osman (no. 4)). And such delay will often be associated with other factors, such as the possibility of a false sense of security on the extraditee’s part. The extraditee cannot take advantage of delay for which he is himself responsible (see Lord Diplock in Kakis at 783). An overall judgment on the merits is required, unshackled by rules with too sharp edges.”

[109]In Eason, at [35], Leggatt LJ (with whom Jay J agreed) accepted a submission on behalf of the USA that the only way in which culpability is directly relevant as a factor in itself is “in a case on the margins where it might tip the balance in favour of a person whose extradition is sought”. He went on, however, to say that in the circumstances of that case, culpable delay also went to the issue of – “… whether the person whose extradition is sought was entitled to believe that he would not be the subject of a request after a significant period of time had gone by, during which a competent prosecuting authority could naturally have been expected to initiate extradition proceedings if there was considered to be a case for him to answer.”

[110]I respectfully agree that a combination of culpable delay by the requesting state (or its prosecuting authorities) and the engendering of a sense of security on the part of the requested person may be relevant to the issue of whether extradition would be unjust or oppressive. I would however emphasise the limits of what can properly be regarded as culpable. In extradition proceedings, it is not generally appropriate for the courts of this country to enquire into the practice and procedure, or the available resources, or the prioritising of cases in the requesting state: see, for example, Gomes v Government of the Republic of Trinidad and Tobago

[2009] UKHL 21

[2009] 1 WLR 1038

at [27]. Absent bad faith, therefore, there may be comparatively few cases in which the requesting state can properly be regarded as culpable so as to lead to, or support, a finding that return would be unjust or oppressive.

[111]In the present case, it must be remembered that the appellant was still on licence, and therefore still serving his UK sentence of imprisonment, when the extradition request was issued, and when the DJ sent the case to the Secretary of State. I see no basis for the argument that the DJ should have found culpable delay on the part of the US authorities.

[112]I would also emphasise that a decision as to whether extradition would be oppressive by reason of the passage of time requires consideration of all the circumstances, including of course the seriousness of the alleged offending.

[113]As to the appellant’s submission relying on what was said in Eason about a ‘sense of security’, the appellant’s own words on arrest present him with an insuperable obstacle. Although not recorded verbatim, the clear gist of what he said was that he expected that the USA authorities would pursue him for the alleged offences in Florida. Whilst he no doubt hoped that his release from prison without a “gate arrest” might mark the end of criminal proceedings against him, his own words show that he expected the contrary. That, moreover, is consistent with the common sense of the matter: given that he had already made admissions of serious sexual offences against two of the V boys in the USA (albeit not as serious as is alleged), he cannot realistically have thought that he would hear no more about any of those offences. Notwithstanding his assertions as to the “off the record” conversation with Sergeant Deakin, it is not suggested that those representing him in the Crown Court ever enquired of the CPS what action they would take in relation to the USA offences, or asked for confirmation that any prosecution for those offences would take place in this country. The DJ was therefore clearly entitled to reject this aspect of the appellant’s case.

[114]In considering ground 2, I have had regard not only to the individual points made on behalf of the appellant but also to the collective effect of those points taken together. Although the DJ’s conclusion on the s82 issue was expressed briefly in paragraphs 52 and 53 of his judgment (see paragraph 29 above), those paragraphs have to be read in the context of the judgment as a whole. I am unable to accept the appellant’s core submission, that the DJ failed properly to take into account the various points on which the appellant relies. I am also unable to accept the submission that the DJ ought to have decided the issue differently. On the contrary, his findings and conclusion were in my view clearly open to him. It follows that in my view, ground 2 as originally argued fails; and as I have said, the further material now available does not materially assist the appellant with this ground and so does not alter my earlier conclusion.

[115]Turning to ground 6, it is well established that in extradition proceedings, notwithstanding that the statutory powers of a court are limited to those set out in the Act, there is an implied residual jurisdiction to refuse to extradite a requested person if to do so would usurp the integrity of the extradition regime: see R (Bermingham and others) v Director of the Serious Fraud Office

[2006] EWHC 200 (Admin)

[2007] QB 727

at [97]; and see Belbinv Regional Court of Lille, France

[2015] EWHC 149 (Admin)

at [44], where the court accepted the possibility of the statutory regime being usurped by bad faith on the part of the requesting judicial authority or by a deliberate manipulation of the extradition process, but emphasised that issues relating to the internal procedures of the requesting state are outside the scope of the implied jurisdiction.

[116]In Belbin the court (Aikens LJ and Edis J) stated at [59]:

“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 [Act] 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, that there must be mutual trust between Judicial Authorities, although we accept that when 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.”

[117]I respectfully agree. Although that was an appeal governed by Part 1 of the Act, the general principles stated are in my view equally applicable to consideration of a case under Part 2 in which a request is made by a trusted extradition partner. It follows that, where a requested person has unsuccessfully argued all such statutory bars to extradition as could be said to arise in his case, there is very little room left for him to invoke the residual abuse of process jurisdiction. That jurisdiction is not to be used as a means of circumventing the statutory bars or as a reward for a “near miss” in respect of one or more statutory bars.

[118]As I have already said, the appellant’s argument on ground 6 is not assisted by referring to the 2007 Guidance: it has no application here, because the CPS was never seized of the alleged offences in the USA as a prosecutor. In the circumstances of this case, it cannot be said that a failure to follow the 2007 Guidance, even if it were established, provides compelling evidence of behaviour which could found an abuse of process argument.

[119]Although the appellant failed in his attempt to invoke the forum bar under s83A of the Act, he nonetheless submits that it would be an abuse for the respondent to prosecute. However, he also submits (see paragraph 45 above) that it would be an abuse of the process if the CPS were now to prosecute the appellant in this country for the alleged offending in the USA. The effect of those submissions is that there should be no prosecution anywhere for the serious offending which the appellant has admitted he committed in the USA, or for the yet more serious offending in that jurisdiction which is alleged against him. The attempt by the appellant to rely on the public interest in finality cannot succeed in those circumstances.

[120]There is, in my view, merit in Mr Perry KC’s submission inviting consideration of the overall effect of the findings made by the DJ which can no longer be challenged, or which (in the case of the s82 issue) cannot successfully be challenged. The DJ has found that the appellant did not believe that he would not be prosecuted in the USA; that the extradition of the appellant would be in the interests of justice; that extradition would not breach the appellant’s article 3 rights, and would be a proportionate interference with his article 8 rights; and that his extradition would not be unjust or oppressive by reason of delay. I have indicated that the further material now available does not materially assist the appellant on any of those issues. In those circumstances, ground 6 is indeed aimed at a very small target. The DJ again expressed his conclusions on this issue quite briefly; but paragraphs 176-184 of his judgment (quoted at paragraph 29 above) must again be read in the light of his judgment as a whole. It is in my judgement impossible to say that the DJ was wrong to conclude that there was no cogent evidence of abuse, and no basis for exercising the exceptional jurisdiction to stay the proceedings as an abuse of the process. Ground 6 must accordingly fail. Conclusion:

[121]For those reasons, I would decline to receive the appellant’s proposed fresh evidence; refuse leave to amend the grounds of appeal; refuse leave to re-open the previous refusal of leave to appeal on grounds 3, 4 and 5; and dismiss the appeal.

[122]As previously, this judgment will be provided to counsel in draft before it is handed down. I would direct the appellant’s solicitors forthwith to provide to the respondent, in both digital and hard copy form, a bundle of all medical records and reports which the appellant would wish the US and UK authorities to take into account in considering his fitness to be removed to the USA and the appropriate care and treatment which should be provided to him. Mr

Justice Morris:

[123]I agree.