1. In the United States case (CO/1111/2006,  EWHC 1400 (Admin) - Mr and Mrs Tollman) the Divisional Court (Lord Justice Thomas and Mr Justice Silber) on 15 June granted permission in respect of the entirety of the application for judicial review made by the United States Government, including leave out of time in respect of all decisions made in the matter to date, because the application raises issues of general public importance.
2. In his judgment at paragraphs 10 and 13 Thomas LJ said: -
"It is clear that it was the purpose of the 2003 Act to try and remedy many of the delays inherent in the extradition process under the 1989 Act. There had been numerous ways in which the extradition process had been delayed for very significant periods of time; the Osman and Pinochet cases are but examples of what had happened. An illustration of the intention of Parliament is set out in s. 116 which provided that a decision under this part by the Judge or Secretary of State may be questioned in legal proceedings only by means of appeal under this Act. Other examples are s. 75(2) and s. 76(2) which oblige the Judge to fix a date on which the extradition hearing is to begin. It is clear from those and related sections that the conduct of extradition proceedings is expected to be expeditious. Indeed administrative arrangements were put in hand in this Court and by the Senior District Judge at the end of last year, after severe public criticism was made of the delays which have arisen under 2003 Act, to monitor the progress of each case with the objective of ensuring an early case management hearing and that thereafter the proceedings (including appeals to this court) were resolved within a matter of a few months of the receipt of the request of the requesting state.
The course taken in this case has been defended by none of the parties before us. the way in which this case has proceeded gives rise to concern as to the way in which such cases should be dealt with so that the extradition process can be determined within a time that is infinitely more expeditious than what has so far happened with this case. In this case, as Mr and Mrs Tollman are in their seventies, it is particularly unjust that so little has been achieved over such a protracted period of time."
3. In paragraph 55 of his judgment Thomas LJ added: -
"It was the intention of the 2003 Act that the issues in extradition proceedings be resolved speedily and multiple hearings be avoided; It may be very helpful if the Court hearing this matter were to consider giving some general guidance, quite apart from the specific directions necessary in this case, as to the way in which issues in extradition proceedings such as those arising in relation to abuse of process, disclosure, privilege and the application of the Act should be determined."
4. The issues for consideration in the United States case were set out in a subsequent order as follows: -
"(i) (a) do the provisions of the 2003 Act apply to the proceedings relating to the extradition sought by the claimant Government against the interested parties commenced by their arrest in August 2004 or do the provisions of the 1989 Act apply and/or (b) what is the manner in which the issue as to the applicability of the Acts should be decided?
(ii) whether an application relating to the abuse of the process of the court made by the interested parties is an application (a) within the proceedings under the 2003 Act or (b) outwith the framework of the 2003 Act and under Article 5 of the ECHR or the court's inherent power or otherwise?
(iii) whether the Judge has any power to order that the requesting territory or the CPS or the Home Office should disclose material relevant to the questions (a) whether the provisions of the 2003 Act apply to these proceedings, and (b) whether the proposed proceedings are an abuse of the process of the court?
(iv) whether the documents listed by the claimant were (a) the subject of legal professional privilege or (b) public interest immunity?
(v) (a) the manner in which these proceedings should be conducted so as to achieve a resolution of all the issues set out in paragraph 14 of the judgment on the permission application and (b) whether a mandatory order, ordering the judge to fix a date for the start of the extradition hearing pending in the case of the defendants without delay, should be made?
(vi) the relief (if any) which should be granted by the court."
5. The relief sought by the claimant is: -
(i) A declaration that the provisions of the Extradition Act 2003 apply to extradition proceedings brought by the claimant against Mr and Mrs Tollman, commenced by their arrest in August 2004.
(ii) A mandatory order, ordering the Senior District Judge to fix a date for the start of the extradition hearing without delay.
(iii) A declaration that the Senior District Judge should hear any evidence and argument that the claimant's request for the extradition of Mr and Mrs Tollman is an abuse of process in the context of sections 79 87 of the Extradition Act 2003.
(iv) A quashing order, quashing the decision of the Senior District Judge of 6 December 2005.
6. The claim for judicial review in the Spanish case (CO/4352/2006 Harvinderjeet Singh Sander and others) is brought with permission granted by Silber J. It was directed that this matter be heard at the same time as the United States case. The claimant seeks to quash the order of District Judge Anthony Evans made on 21 April 2006 at Bow Street Magistrates' Court ordering the disclosure of documents and information relevant to an abuse of process application.
7. The issues for consideration in the Spanish case were set out in a subsequent order as follows: -
"(i) whether the District Judge had power to make an order for the disclosure of documents and information in the abuse of process application under the 2003 Act or otherwise?
(ii) whether the order that the District Judge made was invalid on the ground that it was too widely drawn and uncertain?
(iii) whether the District Judge had power to make an order against the issuing judicial authority?"
The United States case the background and history of the proceedings
8. The background to and the history of the proceedings in the United States case, as helpfully set out in the judgment of Thomas LJ are repeated below (with amendments and additions suggested by the parties).
9. Mr Tollman and Mrs Tollman are South African citizens, who also hold Unted States passports. They are people of some wealth with extensive interests in the hotel and travel industry; they are in their seventies. Although they have between them extensive business interests and property in the United States they have resided in the United Kingdom since 1984 and have a home in central London.
10. On 18 March 2003 the US Government requested the extradition of Mr and Mrs Tollman by Diplomatic Notes. The requests for extradition arose out of two sets of criminal proceedings:
(i) On the 16 April 2002 a grand jury in the United States issued an indictment against Mr Tollman followed by a supplementary indictment on the 23 January 2003. This indictment alleged that he had been engaged in conspiring to defraud banks and other financial institutions in relation to the renegotiation of very substantial debts by misrepresenting the ability of debtors to repay their debts.
(ii) On 24 January 2003 the United States Internal Revenue Service issued a criminal complaint against Mrs Tollman which was filed in the United States District Court for the Southern District of New York.
11. At that time the extradition regime between the United States and the United Kingdom was governed by the provisions of the Extradition Act 1989. It appears that the Crown Prosecution Service (the "CPS") informed Mr and Mrs Tollman's solicitors that a request had been made for their extradition.
12. During the course of 2003 the Extradition Act 2003 was enacted by Parliament. The Extradition Act (Commencement and Savings) Order 2003 as amended by the Extradition Act 2003 (Commencement and Savings) (Amendment No 2) Order provided as follows:
"2. All of the provisions of the Act shall come into force on 1st January 2004, subject to the savings contained in this Order.
The coming into force of the Act shall not apply for the purposes of any request for extradition, whether made under any of the provisions of the Extradition Act 1989 or of the Backing of Warrants (Republic of Ireland) Act 1965 or otherwise, which is received by the relevant authority in the United Kingdom on or before 31 December 2003."
13. During the course of 2003 and 2004 there was correspondence between the Home Office, the CPS and the United States Government in relation to the extradition of Mr and Mrs Tollman.
14. On 19 April 2004, by diplomatic note the US Government withdrew the requests for extradition made on 18 March 2003.
15. On 6 August 2004, the US Government made a request for the provisional arrest of Mr and Mrs Tollman by Diplomatic Notes. The request for provisional arrest in respect of Mr Tollman referred to a third supplementary indictment that had been brought against Mr Tollman on 24 April 2003. In respect of Mrs Tollman, the request for provisional arrest referred to the Criminal Complaint filed on 24 January 2003. On 11 August 2004, provisional arrest warrants were issued by a District Judge under section 73 (2) of the 2003Act.
Thereafter, by way of Diplomatic Notes dated 12 October 2004, the UK then received the requests for the extradition of Mr and Mrs Tollman.
16. On 17 August 2004 the first hearing took place at Bow Street Magistrates' Courts before the Senior District Judge. At this first hearing, where leading counsel appeared on behalf of Mr and Mrs Tollman, it was contended by them that the process under the 2003 Act was unlawful and the extradition could only take place under the 1989 Act. Bail was granted on various conditions including the withdrawal of passports of Mr and Mrs Tollman, who, so it was alleged, wished to return to South Africa. Proceedings were adjourned for 65 days with the object of a hearing on 14 October 2004 for the service of the request.
17. There have been 12 hearings (2 of which extended over two days), excluding the 3 hearings at which decisions were handed down. What has been achieved during that period of time is an order for disclosure of documents and consideration of issues as to whether there was power to order disclosure and as to public interest immunity and legal professional privilege. No other progress has been made.
18. On 3 September 2004, the solicitors for Mr and Mrs Tollman wrote to the CPS making it clear that they considered that the extradition proceedings should have been commenced under the 1989 Act and that detention under the 2003 Act was considered unlawful. A preliminary hearing was requested in order that the court could fix a date for a directions hearing at which certain evidential applications could be made. On 21 September 2004 the court declined to list the matter for mention. Following that refusal, a skeleton argument signed by both leading counsel for Mr and Mrs Tollman was submitted; the reasons why it was contended that the 1989 Act applied and not the 2003 Act were set out and two questions that were then said to arise were identified: (i) whether on the true construction of the commencement order for the 2003 Act, the receipt of a request for extradition before 31 December 2003 precluded the operation of the 2003 Act?
(ii) whether the deliberate withdrawal and resubmission of an extradition request in order to defeat the provisions of the Commencement Order amounted to an abuse of process and thus a breach of Article 5 of the Convention?
19. On 4 October 2004, the Senior District Judge gave a written ruling in which, after briefly summarising the history of the matter, he stated:
"I am satisfied that the jurisdiction of this court was only invoked on the laying of the information on the 11th August 2004 and that information related to a diplomatic note dated the 6th August 2004 which required a provisional warrant. The diplomatic note, the information leading to the provisional warrant, the provisional warrant and the subsequent remand on bail all occurred after the commencement of the Extradition Act 2003.
It appears therefore that the court acted properly within its jurisdiction under the 2003 Act.
If, however, it was acting outside its proper jurisdiction, the court having reviewed the decision, it must now be a matter for the High Court if the issue remains a live one."
20. Following that written ruling, Mr and Mrs Tollman immediately lodged an application for judicial review of what was described as the decision of the Senior District Judge to refuse an application for the case to be listed; in the grounds accompanying the application, a number of submissions were made including the submission that the District Judge had wrongly decided a fundamental issue of jurisdiction in the absence of and without hearing argument from Mr and Mrs Tollman.
21. On 14 October 2004 there was a hearing for the service of the request. The case was adjourned to the 20 October 2004 to fix the date for the extradition hearing. On 18 October 2004, the Secretary of State certified under s.70 of the 2003 Act that the requests made by the US Government were valid. On 20 October 2004 (the 3rd hearing) there was a hearing at which the Senior District Judge fixed the 16 December for the extradition hearing under the 2003 Act; this was within the 2 month period specified in s.76 of the 2003 Act from the receipt by the judge of the papers.
22. On 1 November 2004, the US Government, in their acknowledgement of service stated that they did not oppose the grant of permission on the basis that it recognised that serious jurisdictional issues were in dispute. They followed this by a letter on 24 November 2004 in which they stated:
"It will be our position that in order to expedite the process, as undoubtedly all parties seek, relief should be refused on the basis that the 2003 Act applies. If we are wrong and the court holds that the 1989 Act applies, it is probable that we shall accept that and proceed accordingly, although we cannot of course promise that we would not seek to appeal further in interests of certainty. We trust you will join with us in seeking finality on this issue, avoiding a protracted and expensive series of technical argument. We note from your Claim Form that your clients are seeking a "speedy" hearing in the Magistrates' Court."
23. On 1 November 2004, Bow Street Magistrates' Court filed an Acknowledgement of Service, attaching a witness statement from Senior District Judge Workman. In the witness statement the Senior District Judge stated: -
"In carrying out the checks to see that this court's procedures had been correctly followed, I had not reached any conclusions on issues relating to the jurisdiction of this court to make an Extradition Order or to consider any abuse of process arguments, which I fully expected to be made to the appropriate judge on the full hearing."
24. On 15 November 2004, the solicitors for Mr and Mrs Tollman wrote to Bow Street (with a copy to the CPS). The letter referred to Senior District Judge Workman's witness statement attached to the acknowledgment of service and stated: -
"At paragraph 6, Senior District Judge Workman states "I had not reached any conclusion on issues relating to the jurisdiction of this court to make an Extradition Order which I fully expected to be made to the appropriate judge on the full hearing." Thus, it would seem from the acknowledgment of service that it is now conceded that Bow Street Magistrates Court would be prepared to hear arguments in due course as to whether, as a matter of jurisdiction, the 2003 Act (and all the powers contained in it) does apply to this case.
May we therefore please have your final position on this matter? An application for judicial review has of course been lodged in relation to Bow Street's earlier refusal to hear us on this point, and the matter will shortly be put before a single judge for a decision as to whether permission should be granted (indeed, the CPS have agreed that our argument merits permission). If, however, the Senior District Judge is prepared to hear full argument on jurisdiction and abuse of process in advance of the full extradition hearing, and this is confirmed to us, then the application may serve no purpose."
25. On 1 December 2004 a letter was written on behalf of the Senior District Judge which stated as follows:
"The Senior District Judge has asked me to confirm that he expects all the legal arguments to be advanced in this case at the full hearing of this extradition case, which will presumably include abuse of process issues. The examination by the Senior District Judge of the application under the 2003 Act and the subsequent provisional warrant was to establish whether there had been any procedural errors within the court's process which would warrant the relisting of this case as a matter of urgency. It is a matter for you as to whether you wish to challenge in the High Court the issue as to whether this Court validly issued process under the 2003 Act or whether you wish to challenge in the extradition proceedings the decision of the Government of the United States of America to bring proceedings under the 2003 Act rather than the 1989 Act."
26. On 6 December 2004, solicitors for Mr and Mrs Tollman wrote to Bow Street, (with a copy to the CPS) to request the matter be listed for an application for an adjournment, (as required under the 2003 Act) and to seek further directions for the conduct of the proceedings relevant to recent correspondence. The letter requested a hearing on 8 or 9 December.
Thereafter, on 7 December 2004, solicitors for Mr and Mrs Tollman wrote to the Administrative Court (copied to the CPS) attaching Bow Street's letter of 1 December. The letter stated: -
"As you will see from the attached letter, there still remains some ambiguity as to whether or not Bow Street Magistrates Court will hear argument on the point we had wished to raise before it (the refusal being the decision now challenged in the judicial review). We have a short hearing at Bow Street on Thursday 9 December, at which we will be seeking clarification of the contents of the attached letter."
27. The 4th hearing before the Senior District Judge on 9 December 2004 was attended by leading counsel for Mr Tollman and by leading counsel for Mrs Tollman. The CPS were represented by one of their lawyers. From the transcript of the hearing provided to the court, it appears that this was listed as a hearing to adjourn the extradition hearing due on 16 December 2004 and to seek directions. The Senior District Judge was persuaded by leading counsel to adjourn the extradition hearing to 17 February 2005 and to use the date of 16 December 2004 for the giving of directions at which Mr and Mrs Tollman intended to apply for witness summonses and the like and to seek orders in relation to discovery. In the course of argument, the Judge asked whether those issues were to be resolved before the case was opened; he was told by leading counsel for Mr Tollman that it was their view that these were preliminary matters and they had to be resolved first.
28. On 10 December 2004, solicitors for Mr and Mrs Tollman sent a draft consent order withdrawing the proceedings for Judicial Review to Bow Street and the CPS. The CPS returned a signed consent order to Simmons & Simmons on 13 December 2004 and Bow Street returned a signed consent order to Simmons & Simmons on 15 December 2004. The agreed order was made in this court on 17 December 2004.
29. On 14 December 2004 the solicitors for Mr and Mrs Tollman wrote to the CPS, referring to the Senior District Judge's ruling that Mr and Mrs Tollman could raise as a preliminary matter the issue of whether the proceedings brought against them were correctly brought under the 2003 Act and whether, if they were, they nevertheless amount to an abuse of process of the court. They asked for full and proper disclosure as they did not see how the issues could be resolved without it. They set out the factual assertions made by Mr and Mrs Tollman; these included (at paragraph 4) the assertion that the US Government had withdrawn the request with no intention of withdrawing it or knowing they should not do so or on the advice of the English authorities. If they had acted on the advice of the English authorities such advice was given:
"knowing that it would be an attempt to defeat the Commencement Order or otherwise manipulate the course of the proceedings or reckless as to whether it would be so."The letter concluded:
"In the event that you refuse to disclose any relevant documents for any reason, we suggest the proper way to proceed is for you to set out in an itemised schedule a brief description of such documents, together with the reasons for the refusal to disclose, details of their origin, and whether such documents have been shared with, or seen by, the Home Office or any other party. Any documents in relation to which privilege or PII is claimed should be included in the schedule and made available for the court in the normal way. "
30. On 16 December 2004 the 5th hearing before the Senior District Judge took place. The court was told of the withdrawal of judicial review proceedings and the request for disclosure which the CPS and Home Office agreed to consider. The case was fixed for mention on 18 January 2005 and the extradition hearing adjourned until the 17 February 2005.
31. On 17 December 2004 an agreed order was made in this court under which the proceedings for judicial review were withdrawn on the basis of an agreed statement of matters relied on. Paragraph 5 of the statement was in the following terms:
"By letter dated 1 December Bow Street Magistrates' Court confirmed that it would be prepared to hear "all legal arguments". On 9 December 2004, on an application to adjourn the date of the extradition hearing, after hearing submissions, the court ruled that prior to the extradition hearing
(i) it would hear as a preliminary issue the question of whether the extradition proceedings were correctly brought under the Extradition Act 2003
(ii) it would hear as a preliminary issue, if it held that the extradition proceedings were correctly brought under the Extradition Act 2003, whether such proceedings were an abuse of the process of the court."
32. On 21 December the CPS wrote to the solicitors for Mr and Mrs Tollman stating that they maintained the position on behalf of the US Government that the issue of disclosure fell to be considered only after the question of which of the two Extradition Acts applied had been judicially determined; none of the matters in respect of which disclosure had been sought was relevant to the question of jurisdiction.
33. On 18 January 2005, the 6th hearing in the matter took place. The matter was adjourned until February 2005, pending a response from the Secretary of State to the interested parties' request for disclosure.
34. On 8 February 2005, the 7th hearing took place. It was directed that a two day date be fixed for a hearing on the arguments on the issues of disclosure. The date fixed was the 19 and 20 May. 19 May was the first date on which all counsel were available. Directions were given for the service of skeleton arguments.
35. On 15 March 2005 a 17 page skeleton argument was submitted on behalf on Mr and Mrs Tollman seeking disclosure and evidence in relation to the issues of the applicability of the 2003 Act and abuse of process. Disclosure was sought from the CPS of 9 categories of document, 3 further categories from the Secretary of State and one further category from the US Government. Paragraph 55 of the skeleton argument stated: -
"In order to properly assess the documents, the defence require a schedule of documents from the CPS, the Home Office and the US authorities with a description of each document and, if it is not to be disclosed for reasons of PII or purported legal professional privilege, that reason should be set out against each document so that the appropriate ruling of the court can be sought on the document not disclosed."
36. The skeleton argument also invited the court to invoke one of five procedural routes that might be adopted to secure disclosure. These were:
(i) Invite the CPS, Home Office and the requesting state, through its agent appearing in this jurisdiction, to disclose the requested documents.
(ii) Order the CPS and the Home Office to make disclosure under its inherent jurisdiction.
(iii) Invite the Secretary of State to disclose and invoke his powers under article 1X of the 1972 treaty.
(iv) Issue a witness summons against Alison Riley of the CPS and Irving Jones of the Home Office and Mr Okula under s.97 of the Magistrates Courts Act 1980.
(v) Issue a request for assistance under section 7 of the Crime (International Cooperation) Act 2003.
37. The response of the US government was contained in a one page skeleton argument which was served with the affidavit of Mr Okula. It contended that no issue of disclosure could arise; the court ought to determine as a matter of law whether the 2003 Act applied. The affidavit of Mr Okula purported to give an explanation as to why the original extradition request was withdrawn.
38. In response to that affidavit and one page skeleton argument, the leading counsel for Mr and Mrs Tollman served on 18 May 2005 an 11 page skeleton argument on a number of issues. Among those was a contention that the affidavit was inadmissible and that oral evidence and cross examination of Mr Okula ought to be ordered to enable the court to determine findings of fact; anything less would infringe the common law and ECHR rights of Mr and Mrs Tollman (see paragraph 34 of the skeleton). The skeleton also set out a number of significant criticisms of the affidavit of Mr Okula and relied on matters that had been proceeding in Canada in relation to the extradition of Mr Gavin Tollman, a nephew of Mr and Mrs Tollman. The draft order was prepared for the court later.
39. On the 19 and 20 May 2005, the 8th hearing took place and lasted over the two days. On 6 June 2005 the Senior District Judge gave his decision. It may be summarised as follows:
(i) He rejected a submission on behalf of the United States Government that the issue of whether they were proceeding under the 1989Act or the 2003 Act should be resolved swiftly by the High Court; the proceedings were at present being determined under the Extradition 2003. If the proceedings were not being brought under the 2003 Act, then it would be the duty of the court to discharge the case.
(ii) He was satisfied as a result of the decision in Kashamu  QB 887 that the court could entertain an abuse of process application, albeit on a limited basis. He was also satisfied that the court had a responsibility to rule upon allegations of breach of Article 5 and to conduct an Article 5 enquiry where the defence were able to establish there was a need for such an enquiry. The defence were therefore entitled to raise the issue of Article 5 and call upon the court to enquire into whether the defendants' rights under Article 5 had been denied; they were also entitled in due course to seek to persuade the court there had been an abuse of process which would lead to the proceedings being discharged.
(iii) In relation to the application for disclosure, there was a fundamental assumption that the requesting State was acting in good faith and it was for that state to decide what material to advance in the course of its application. Whilst there was a duty of candour on the requesting State, the court in England and Wales would not order specific disclosure in respect of the extradition proceedings themselves:
"However, the Defence say that in this case the order being sought for disclosure is not in relation to the extradition proceedings themselves, but is in relation to an Article 5 inquiry and consideration of an abuse of process argument. I am satisfied that in relation to those two specific inquiries this Court would have the power to order disclosure, provided the Court was satisfied that there was a proper and valid issue to be considered and provided that the order related to matters within the geographical jurisdiction of this court."
After referring to what had taken place in 2003 and 2004, he concluded:
"The delay following the initial request is considerable. It may be that there were good and justifiable reasons for the delay but in the light of the fact that the American Lawyer, Mr Okula, assures me in an affidavit that there was a prima facie case, it is surprising that no order to proceed was issued after the request was received in March 2003. An order for disclosure may well reveal the explanation, and for the purposes of the Article 5 inquiry, I conclude that the Defence are entitled to see the relevant documentation. The explanation may be entirely innocent and may have no effect on these proceedings, but the defence have satisfied me that they have grounds for raising the issue and having done so, they are entitled to have the jurisdiction point resolved."
He then made a written Order for disclosure in the terms requested by the defence which contained a reservation for legal professional privilege and public interest immunity.
(iv) He made it clear that he was not making an order in relation to the evidence of Mr Okula, save to decide that he had no power to require Mr Okula to give evidence in person. The 2003 Act provided that duly authenticated documents might be received in evidence. He would decide later whether the affidavit could be admitted in the extradition proceedings as it was not possible to make a proper judgment on that issue until disclosure, if made, was considered.
40. Following that hearing the CPS considered whether they should apply for judicial review of that decision. They decided not to.
41. On 17 June 2005 the 9th hearing took place. At that hearing the US Government indicated that without prejudice to the issue whether the court could make an order for disclosure, they would endeavour to comply with it. They asked for 2 weeks to compile a schedule and stated that it was highly probable that they would claim that legal professional privilege or public interest immunity would apply to the great majority, if not all, of the documents. A timetable was agreed for the service of the schedule of documents on 1 July, a skeleton argument from the US Government as to the documents said to be privileged (and the reasons for the claim) by 15 July, a skeleton if thought necessary by the Treasury Solicitor by 15 July (with liberty to apply) and a response by 29 July from Mr and Mrs Tollman. There would then be a directions hearing on 15 August 2005 to decide how long the argument was going to take. The extradition hearing was adjourned to 22 August 2005.
42. On 1 July 2005 the CPS served a list of correspondence between the CPS and the US Government and between the Home Office and US Government, but claimed they did not have to disclose these documents as they either attracted legal professional privilege or public interest immunity or diplomatic immunity.
43. Correspondence then ensued between the parties. On 15 August 2005 there was the 10th hearing in the matter. A written order was made by the Senior District Judge requiring the US Government and CPS to confirm there were no further documents and for the CPS to serve within 14 days a skeleton argument setting out the details of the category of public interest immunity or legal professional privilege claimed for each document, the identity of every party between whom the documents had passed, legal argument in support of each claim and a list of authorities to be relied upon.
44. On 28 August 2005, the US Government submitted a 4 page skeleton argument. It stated that it did not accept the court had jurisdiction to make the order but it would comply voluntarily with the spirit of the first order and had accordingly served a schedule of correspondence. It contended that certain documents were covered by legal professional privilege and that the proper way to proceed was to apply the domestic rules relating to PII, where applications were almost always made ex parte. It was submitted on that on the ex parte application, the court would be able to conduct its own assessment of the material both for the purposes of PII and legal professional privilege.
45. On 23 September 2005 a 19 page skeleton argument was served in response by Mr and Mrs Tollman. One of the main points taken was that the CPS could not make a claim on behalf of the US Government for PII, as PII could only properly be claimed on behalf of the Government of the United Kingdom. Such an application was almost always supported by an affidavit from a Minister, save in ordinary criminal cases where a police officer or member of security services would usually claim the immunity. Extensive submissions were made on the issue of legal professional privilege; one of the principal points taken was that there was no relationship of absolute confidentiality between the CPS and the US Government (as there was between solicitor and client), which was necessary to give rise to legal professional privilege.
46. On 30 September 2005, the 11th hearing in the matter took place. The Senior District Judge reserved his decision which he gave on the 13 October 2005. He dealt only with the issue of PII; this was (according to the interested parties) at the request of the CPS on behalf of the US Government. He concluded that in practice the procedure for a claim of PII required the court to form a judgment on the disclosure of each individual document and that judgment had to be based upon an informed view of the public interest, as a claim for class protection was no longer permissible. He concluded that it was not appropriate for the CPS to sign a certificate in the capacity of solicitors for the US Government, unless the lawyer signing it was entirely unconnected with those representing the US Government in the extradition proceedings. He continued:
"It will be usual in cases where Public Interest Immunity is being asserted for the certificate to explain the nature of the public interest which could be adversely affected, and in broad terms the damage, which could result from disclosure. The second and closed part of the certificate would need to go into precise details of each particular document. In this case, the defendants maintain that there is no proper certificate defining the individual documents in which Public Interest Immunity is sought and it would be inappropriate for this court to consider any ex parte application because the preliminary threshold has not been met.I accept that submission and I am not satisfied that the preliminary threshold has been reached and I can see no grounds for considering an ex parte application at this stage."
47. He rejected the claim for diplomatic privilege. In respect of legal professional privilege, he held:
"The Prosecution have also raised the issue of Legal Professional Privilege. I am satisfied that there is an argument for saying that the relationship between the Crown Prosecution Service and the Government is one of a Solicitor and Client. As this is at least arguable, it seems to me that there may well be documents which fall within the narrow category of having Legal Professional Privilege. However, these documents cannot be defined as a class and need to be properly itemised and identified. If those documents can be identified they can be the subject of submissions on the principles to be applied. This can then be followed by an ex parte application in which each of the documents will need to be considered in the light of the usual principles."
At the end of his judgment the Senior District Judge concluded:
"This case is inevitably going to take some time but I am concerned that these procedural steps are becoming protracted. Clearly, the case requires careful consideration and preparation by both sides but I will be grateful for Counsel's advice as to how the real issue in this can be resolved as speedily as possible."
48. A further hearing was fixed to deal with the issue of legal professional privilege. Prior to that hearing a skeleton argument of some 18 pages was submitted on behalf of Mr and Mrs Tollman on the issue of legal professional privilege. The US Government argued that the judge should look at the documents in the case and make his decision on this basis, but as the defendants refused to agree with this course, the Judge declined. Full argument therefore took place in the 12th hearing on 22 and 23 November 2005. The Judge reserved his decision which was given on 6 December 2005. He held that there were certain documents to which legal professional privilege could not attach as they were documents passing between civil servants who were not legal professional advisers. As to the meetings and e-mail exchanges between the CPS and the Assistant District Attorney, it was necessary to establish the nature and the role of the responsibility of the CPS in relation to extradition proceedings. If the US Government instructed a private firm of solicitors to act, then the relationship of solicitor and client would be established. However, the position of the CPS was significantly different; he concluded that the CPS was "effectively acting for the United Kingdom authorities in relation to this country's treaty obligations". The CPS did not act in a solicitor and client relationship with the requesting state that gave rise to a claim of legal professional privilege. He made it clear that the decision he had made was in respect of an abuse of process argument and did not touch upon the law relating to disclosure in extradition proceedings in general.
49. After this ruling, though not with any expedition, the US Government applied to this court for permission to bring judicial review proceedings, claiming the relief that we have set out in paragraph 5.
The United States case submissions of the parties.The submissions of the US Government
50. The submissions of Mr Alun Jones QC on behalf of the US Government were as follows:
i) The issue of jurisdiction had been determined by the Senior District Judge in favour of the US Government by his decision of 4 October 2004.
ii) In any event the 2003 Act applied to the US Government's request and they were entitled to a declaration to that effect.
iii) There was no arguable case of abuse of process to be investigated; alternatively:
iv) The abuse of process issue fell to be determined within the extradition hearing, and not outside it.
v) The Senior District Judge had had no power to order discovery; alternatively:
vi) The United States Government was entitled to claim public interest immunity and legal professional privilege in relation to the documents that the judge had ordered to be disclosed.The submissions of Mr and Mrs Tollman
51. The submissions by Mr Clive Nicholls QC on behalf of Mr Tollman and Mr James Lewis QC on behalf of Mrs Tollman were as follows:
i) The Senior District Judge had not determined the issue of jurisdiction.
ii) The issue of jurisdiction and of abuse of process were properly in the course of determination by the Senior District Judge by hearings outside rather than within the extradition hearing.
iii) On true construction of the Commencement Order the 2003 Act did not apply to the United States Government's request because:
a) The subject matter of the request was the same as that of the request made before 31 December 2003; alternatively:
b) The United States Government had, in bad faith, withdrawn their 2003 request with the intention of making a new request after 31 December 2003.
iv) The United States Government was acting in abuse of process in that "deliberately and in bad faith, the USA withdrew the 2003 Request and re-submitted that Request in 2004 in order to thwart and circumvent the proper extradition process under the 1989 Extradition Act. In doing so it deliberately set out to evade the burden of producing evidence of a prima facie case and deprived the accused of that protection, among others, to which they would have been entitled under the 1989 scheme."
v) The Senior District Judge had correctly held that he had power to order discovery and properly exercised that power.
vi) The Senior District Judge had adopted the correct approach to the claim for PII and legal professional privilege.
vii) There was no right to legal professional privilege for one or more of the following reasons: (i) there was no lawyer/client relationship; (ii) the communications had not been made in a "relevant legal context"; (iii) such privilege would be contrary to Articles 5 and 6 of the European Convention on Human Rights ('ECHR'); (iv) the crime/fraud exception applied; (v) any claim to such privilege had been implicitly waived.
The Spanish case the background and history of the proceedings
52. On 31 August 2005 an extradition hearing was held under section 10 of the Extradition Act 2003 in respect of seven defendants. European Arrest Warrants had been issued against them in the claimant court, 'the Madrid Court', in July 2005.
53. These proceedings came to an end on 8 September 2005, when Deputy Senior District Judge Wickham gave judgment at Bow Street Magistrates' Court discharging all seven defendants. No appeal was lodged against that discharge, in spite of an initial indication by counsel for the Madrid Court that there would be an appeal.
54. The Madrid Court transmitted further European Arrest Warrants, dated 8 September 2003, pursuant to which the defendants were arrested by appointment on 6 October 2005 at Bow Street Magistrates' Court.
55. On 20 December 2005 counsel instructed for the Madrid Court accepted that the warrants should be withdrawn as inadequate and the defendants were discharged again.
56. A third set of European Arrest Warrants was issued on 20 December 2005. The Madrid Court attempted to set out allegations of participation by the defendants in an organised criminal gang dedicated to the importation of cocaine into Spain and its re-export to other countries and, in particular, to the United Kingdom. It is the defendants' case that these allegations were so poorly drafted and translated as to verge on the incomprehensible to the extent that they did not satisfy the requirements of Part 1 of the 2003 Act. Arguably, however, the warrants were saved by respects in which they differed significantly from the first two versions. In particular, they included what has been described as a 'catch-all' description of the criminal conduct, in impeccable English:
"All money movements, transfers, investments in real property and any other kind to which reference has been made, were undertaken by those whose surrender is sought in full knowledge that they are proceeds of drug trafficking."
It is the defendants' case that this addition was attributable to advice improperly given by the CPS in circumstances that amounted to an abuse of process.
57. At a hearing on 21 April 2006, before District Judge Anthony Evans, leading counsel for Harvinderjeet Singh Sander and Malkit Singh made an oral application for disclosure in relation to the alleged abuse of process. This gave rise to the contested order. The order was in the following terms: -
"1. The issuing judicial authority and the CPS disclose all documents, notes, memoranda and information relevant to the issue set out in paragraph 3 below within 28 days of the date of this order.
2. Paragraph 1 of this order does not require disclosure of any document or information to which a claim for Public Interest Immunity or Legal Professional Privilege is upheld. Any such claim to be made within 14 days of the date of this order.
3. What input, drafting or other help did the British Authorities give the issuing judicial authority?"The Spanish case the submissions of the parties
58. Mr Lewis QC on behalf of the first and second interested parties in the course of argument identified the abuse alleged as follows that the United Kingdom authority went beyond its proper role in extradition proceedings by drafting the particulars of conduct in the European Arrest Warrant, without proper evidential support.
59. Mr Alun Jones QC for the Madrid Court submitted as follows:
i) The court has no power to order disclosure in relation to an argument that proceedings under the 2003 Act amount to an abuse of the process.
ii) There is no power to order disclosure against persons abroad.
iii) There is no power to order disclosure against the Madrid Court, which is a judicial authority.
iv) If (contrary to the claimant's primary position) there is power to order disclosure, the order should be set aside on the grounds that it is too widely drawn.
v) No issue of abuse of process arises on the facts of this case.
60. Mr James Lewis QC on behalf of the first and second interested parties submitted as follows:
i) A District Judge does enjoy the power to order disclosure when enquiring into allegations of abuse of process in extradition proceedings under Part 1 of the 2003 Act. The power is derived from two sources. The implied common law power of a magistrates' court to prevent abuse of its process or alternatively section 9 of the 2003 Act. As to the latter, a magistrates' court hearing a domestic summary trial enjoys the power to order disclosure in abuse of process applications. The power is implied as part of its common law jurisdiction. It is also available under statute.
ii) The objection that the order purports to have extra-territorial effect is misconceived.
iii) The contention that the disclosure order is invalid because it is too widely drawn should be rejected.
61. The third interested party (John Anthony Rowe) adopted the submissions of the first and second interested parties.
62. Mr Richard Gordon QC on behalf of the fourth interested party (Kuldip Singh Sander) submitted as follows:
i) Part 1 of the 2003 Act was intended to transpose the Framework Decision, a piece of secondary Community Law legislation. Although Article 13 ECHR (right to an effective remedy for alleged violation of Convention rights) has not been expressly incorporated into domestic law, it is a fundamental right as guaranteed by the ECHR and, therefore, falls to be applied by the Administrative Court as reflecting a right guaranteed by the Framework Decision, and a right to be implied into Part 1 insofar as possible.
ii) There is a power at common law to order disclosure derived from principles of natural justice, which operate to supplement the omissions of the legislature: Cooper v Wandsworth Board of Works (1863) 14 CBNS 180. Further there is an overriding EU law requirement that there be an effective remedy for abuse of process in the prosecution of extradition proceedings. That overriding requirement has the effect that Part 1 is to be interpreted as containing the power of disclosure to investigate allegations of abuse of process and/or there is a free standing power in the court deriving directly from the Framework Decision and the court's duties under Article 10 of the EC Treaty.
iii) Quite apart from the point taken on the role of the CPS, there was an arguable case of abuse of process founded on a failure to prosecute the extradition proceedings with due diligence. The disclosure sought was essential to determine whether the proceedings had been prosecuted with due diligence.iv) The order was not drawn too widely.
63. The arguments of the first and second interested parties were adopted on behalf of the sixth interested party (Ian Hendry).The new extradition regime
64. The 2003 Act makes radical changes to the law of extradition. Part 1 of the Act gives effect to the Council Framework Decision of 13 June 2002 between European Union Member States. Part 2 deals with all other countries. There are many areas where provisions of Part 2 are the same as or similar to those of Part 1.
65. The preamble to the Framework Decision refers to the objective of speeding up extradition procedures in respect of persons suspected of having committed offences. It further states:
"(5) The objective set for the Union to become an area of freedom, security and justice leads to abolishing extradition between Member States and replacing it by a system of surrender between judicial authorities. Further, the introduction of a new simplified system of surrender of sentenced or suspected persons for the purposes of execution or prosecution of criminal sentences makes it possible to remove the complexity and potential for delay inherent in the present extradition procedures
(6) The European arrest warrant provided for in the Framework Decision is the first concrete measure in the field of criminal law implementing the principle of mutual recognition which the European Council referred to as the 'cornerstone' of judicial cooperation
(8) Decisions on the execution of the European arrest warrant must be subject to sufficient controls which means that a judicial authority of the Member State where the requested person has been arrested will have to take the decision on his or her surrender."
66. Under the Framework Decision the judicial authority of one Member State is required to give effect to an arrest warrant issued by the judicial authority of another Member State in relation to specified serious offences without application of the double criminality rule and without consideration of whether there is a prima facie case against the 'requested person'. The Framework Decision lays down both mandatory and optional grounds for refusing to execute the arrest warrant. The requested person is entitled to be heard, and to legal representation. Article 17 lays down a time limit of 60 days for taking a final decision on the execution of an arrest warrant.
67. Part 1 of the 2003 Act gives effect to the requirements of the Framework Decision. It provides for the arrest of the requested person under a European arrest warrant, an initial hearing before the appropriate judge, who is a District Judge (Magistrates' Courts) designated for the purpose, within 48 hours of arrest to decide whether the person arrested is the person in respect of whom the arrest warrant was issued to be followed, within 21 days of arrest, by the extradition hearing.
68. Sections 9 to 21 deal with the 'extradition hearing', which is divided into an initial stage, where the judge decides whether the offence specified in the warrant is an extradition offence, and a subsequent hearing where the judge decides, inter alia, whether any bar to extradition exists. The statutory bars to extradition include 'extraneous considerations' which would amount to an abuse of process under our domestic law. The judge is also required to consider whether the person's extradition would be compatible with the Convention rights within the meaning of the Human Right Act 1998.
69. Section 26 gives a right of appeal to the High Court against an extradition order, and section 32 provides for a further appeal to the House of Lords.
70. The Secretary of State has no role to play under the regime established by Part 1 of the Act. The same is not true of Part 2, to which we now turn. The countries covered by Part 2 fall into two groups: group 1, those that are not required to demonstrate that there is a prima facie case against the requested person and group 2 those that are required to establish a prima facie case. The United States falls into the former group.
71. When the Secretary of State receives a valid request for extradition, he must so certify and transfer the case to the appropriate judge. In a group 1 case, the judge may issue a warrant for arrest and proceed to an extradition hearing if he has information that would justify arrest had the alleged offence been committed within his jurisdiction. The judge must fix a date for the extradition hearing within 2 months of the person's first appearance before the judge.
72. Sections 75 to 91 deal with the extradition hearing. Just as in Part 1 there is an initial stage, concerned largely with the necessary formalities, and a subsequent stage at which bars to extradition, which are largely the same as in Part 1, and human rights are considered. If liability to extradition is established, the judge refers the case to the Secretary of State for his decision as to whether or not the person is to be extradited. There are provisions for appeal to the High Court and, from the High Court, to the House of Lords.
73. Thus in both Part 1 and Part 2 there are time limits designed to ensure that extradition proceedings are conducted with expedition. Thomas LJ was correct to hold that such expedition is one of the objects of the 2003 Act.
74. Part 5 of the Act makes provisions, for admissibility of evidence which, inter alia, permit proof by written statement and by admissions.
The approach of the parties and the judge to extradition proceedings
75. The judge's powers at an extradition hearing are set out in sections 9 (1) (Part 1) and 77 (1) (Part 2). The judge "has the same powers (as nearly as may be) as a magistrates' court would have if the proceedings were the summary trial of an information against the person" in respect of whom the Part 1 warrant was issued/whose extradition is requested under Part 2.
76. Extradition proceedings are criminal proceedings, albeit of a very special kind. The judge should apply the normal rules of criminal evidence and procedure to the extent that these are appropriate having regard to the specifics of the statutory schemes in Part 1 and Part 2. see R v Governor of Brixton Prison, ex parte Levin  AC 741 at pages 746-7 per Lord Hoffmann.
77. The Criminal Procedures Rules apply to extradition hearings to the extent that they contain provisions relevant to such hearings. The Rules impose upon the court a duty to manage the case and upon the parties a duty to assist the court, so that the overriding objective is achieved. (See Thomas LJ at paragraph 12). The Rules codify what were the pre-existing duties of the court and the parties.
78. The Criminal Procedure Rules 2005 (S.I 2005 No 384), Pt 1 provide:
"The overriding objective
1.1 (1) The overriding objective of this new code is that criminal cases be dealt with justly
3.2 (1) The court must further the overriding objective by actively managing the case.
(2) Active case management includes -
(a) the early identification of the real issues;
(c) achieving certainty as to what must be done, by whom, and when, in particular by the early setting of a timetable for the progress of the case;
(d) monitoring the progress of the case and compliance with directions;
(e) ensuring that evidence, whether disputed or not, is presented in the shortest and clearest way;
(f) discouraging delay, dealing with as many aspects of the case as possible on the same occasion, and avoiding unnecessary hearings;
(g) encouraging the participants to co-operate in the progression of the case;
(3) The court must actively manage the case by giving any direction appropriate to the needs of that case as early as possible.The duty of the parties
3.3 Each party must -
(a) actively assist the court in fulfilling its duty under rule 3.2, without or if necessary with a direction; and
(b) apply for a direction if needed to further the overriding objective."
79. It may appear to be in the interests of a party resisting extradition to delay the extradition procedure and cases where extradition proceedings dragged on for years demonstrate the extent to which this proved possible under the old regime. It is, however, the duty of the parties and those acting for them to cooperate in ensuring that extradition procedures comply as closely as possible with the statutory time limits. The timetables set out in Parts 1 and 2 of the 2003 Act should be complied with and extensions of time granted only in exceptional circumstances where the interests of justice so require. It will usually be desirable to hold a case management conference in advance of the extradition hearing to identify any issues that are likely to arise and so that the judge can give directions designed to ensure that these issues can be addressed without causing delay.
80. The 2003 Act makes express provision for extradition to be refused when the request is motivated by 'extraneous circumstances' that under English law would constitute an abuse of process and for these and human rights issues to be considered as part of the extradition hearing. Where extradition is challenged on grounds, such as abuse of process, which are not dealt with expressly under the Act they should none the less normally be considered within the extradition hearing. The 2003 Act lays down special rules in relation to extradition that are designed to ensure that extradition proceedings are concluded with expedition. This objective will be torpedoed if allegations of abuse of process are pursued outside the statutory regime.Extradition and abuse of process
81. Compulsory extradition will, in the normal course, involve at one or more stages detention of the person who is the subject of the extradition request. Section 5 of the ECHR provides:
"1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law (f) the lawful arrest or detention of a person against whom action is being taken with a view to deportation or extradition
4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful."
In R (Kashamu) v Governor of Brixton Prison  EWHC Admin 980;  QB 887 this court held that the magistrates' court in extradition proceedings had jurisdiction to consider whether there had been an abuse of process which rendered the detention of the applicant unlawful. He said at paragraph 34:
"What is pertinent here in the present case is solely whether the detention is unlawful by English domestic law and/or arbitrary, because of bad faith or deliberate abuse of the English court's procedure. The scope of the inquiry is, therefore, narrow. In that connection, it by no means follows, merely because second proceedings have been instituted against Kashamu, following failure of the first proceedings in the circumstances earlier set out, that there has been an abuse. I add that it will only be in a very rare extradition case, provided the statutory procedures have been followed, that it will be possible to argue that abuse of process ahs rendered the detention unlawful under section 5(4)."(paragraph 34 Per Rose LJ)
82. Recently, in the case of Bermingham and Others  EWHC 200 (Admin) this court held that, under the 2003 Act, the magistrates' court has jurisdiction to ensure that "the regime's integrity" is not usurped by abuse of process, although the question whether abuse is demonstrated has to be "asked and answered in light of the specifics of the statutory scheme". We shall revert to this decision when we come to consider the appeal in the United States case. At this stage we simply endorse the conclusion that the judge conducting extradition proceedings has jurisdiction to consider an allegation of abuse of process. Indeed, we would go further than this and apply to extradition proceedings the statement made by Bingham LJ, in relation to conventional criminal proceedings in R v Liverpool Stipendiary Magistrate, ex part Ellison  RTR 220:
"If any criminal court at any time has cause to suspect that a prosecutor may be manipulating or using the procedures of the court in order to oppress or unfairly to prejudice a defendant before the court, I have no doubt that it is the duty of the court to inquire into the situation and ensure that its procedure is not being abused. Usually no doubt such inquiry will be prompted by a complaint on the part of the defendant. But the duty of the court in my view exists even in the absence of a complaint."
83. The 2003 Act places a duty on the judge to decide a large number of matters before acceding to a request for extradition. To these should be added the duty to decide whether the process is being abused, if put on enquiry as to the possibility of this. The judge will usually, though not inevitably, be put on enquiry as to the possibility of abuse of process by allegations made by the person whose extradition is sought.
84. The judge should be alert to the possibility of allegations of abuse of process being made by way of delaying tactics. No steps should be taken to investigate an alleged abuse of process unless the judge is satisfied that there is reason to believe that an abuse may have taken place. Where an allegation of abuse of process is made, the first step must be to insist on the conduct alleged to constitute the abuse being identified with particularity. The judge must then consider whether the conduct, if established, is capable of amounting to an abuse of process. If it is, he must next consider whether there are reasonable grounds for believing that such conduct may have occurred. If there are, then the judge should not accede to the request for extradition unless he has satisfied himself that such abuse has not occurred. The common issue in the two sets of appeals before the court relates to how he should do this.
85. Both our civil and our criminal procedures have complex rules in relation to disclosure of documents. In each of the cases before us the persons whose extradition is being sought have persuaded the judge that he should make an order for disclosure. We do not consider that this was the appropriate course to take. Neither the rules governing disclosure in a civil action, nor those governing disclosure in a criminal trial can be applied to an extradition hearing. Furthermore, those rules form part of an adversarial process which differs from extradition proceedings. Where an order for disclosure is made, it requires one party to disclose documents to the other, not to the court. But where extradition is sought, the court is under a duty to satisfy itself that all the requirements for making the order are satisfied and that none of the bars to making the order exists.
86. There is a further objection to ordering disclosure. The order will be made either against a judicial authority within the European Union or against a foreign Sovereign State that is requesting the Secretary of State to comply with treaty obligations. In neither case would it be appropriate to order discovery. Were it appropriate to make such an order, the only sanction for a failure to comply with it would be to reject the request for extradition. That fact points the way to the appropriate course that the court should take where there are grounds for believing that an abuse of process has occurred.
87. Article 15 of the Framework Decision provides:
"2. If the executing judicial authority finds the information communicated by the issuing Member State to be insufficient to allow it to decide on surrender, it should request that the necessary supplementary information, in particular with respect to Articles 3 to 5 and Article 8, to be furnished as a matter of urgency and may fix a time limit for the receipt thereof, taking into account the need to observe the time limit set in Article 17."
88. Article IX of the 1972 Extradition Treaty between the United Kingdom and the United States provides:
"(2) If the requested Party requires additional evidence or information to enable a decision to be taken on the request for extradition, such evidence or information shall be submitted within such time as the Party shall require."
89. The appropriate course for the judge to take if he has reason to believe that an abuse of process may have occurred is to call upon the judicial authority that has issued the arrest warrant, or the State seeking extradition in a Part 2 case, for whatever information or evidence the judge requires in order to determine whether an abuse of process has occurred or not.
90. The information and evidence obtained should be made available to the party contesting extradition. We agree with Mr Gordon that the standards required by Article 13 of the ECHR should apply to the extradition proceedings. Equality of arms requires that, in normal circumstances, the party contesting extradition should be aware of, and thus able to comment on, the material upon which the court will be basing its decision.
91. What if the judicial authority or the requesting State is only prepared to provide the court with the information or evidence on terms that it is not shown to the party contesting extradition? We do not consider that principles of public interest immunity or legal professional privilege are germane, for the judge is not in a position to order the judicial authority or the requesting State to disclose information or evidence if it is not prepared to do so. Nor is it possible to adopt directly the approach to a claim for public interest immunity laid down by the House of Lords in R v H and others  UKHL 3;  2 AC 134. That approach is only viable when the tribunal considering the material for which immunity is claimed differs from the tribunal that will be determining the substantive issues.
92. There may be occasions where a judicial authority or requesting State is content that the court should see evidence but, on reasonable grounds, is not prepared that this should be disclosed to the person whose extradition is sought. The evidence might, for instance, disclose details of ongoing investigations into suspected co-defendants. The judge will be capable of evaluating the material that is provided to him, whether it is favourable or unfavourable to the person resisting extradition. The issue will then be whether, if a decision is reached without allowing that person the chance to comment on the material, the procedure will fail to satisfy the requirement of fairness. That question will be fact specific and must be left to the judge to decide on the particular facts. If the judge concludes that fairness requires that the material be disclosed, but the requesting authority or State is not prepared to agree to this, then the appropriate course will be for the judge to hold that fair process is impossible, that to grant the application for extradition in the circumstances would involve an abuse of process, and to discharge the person whose extradition is sought.
93. We believe that the scenario described above will be rare. Once it has been shown that there is an issue of abuse of process that requires investigation, it should be possible, provided that the parties act reasonably, to agree material facts, or that the material necessary to resolve any issue is placed in the public domain.
94. We shall now turn to apply the principles that we have set out above to the individual appeals.The United States Appeal
Issue 1: Does the 2003 Act apply to these proceedings?
95. We have paraphrased the first issue ordered by Thomas LJ. While the terms of Senior District Judge Workman's ruling or 4 October 2004 gave rise to some confusion, we reject Mr Jones' submission that this issue has already been determined by him. The judge clearly considered that the issues raised on behalf of Mr and Mrs Tollman as to the applicability of the 2003 Act have yet to be resolved. In any event, this question is moot. Detailed argument was addressed to us as to the applicability of the 2003 Act. We do not consider that there is any necessity for additional evidence to enable us to resolve this issue and we propose to do so.
96. The United States Government originally requested the extradition of Mr and Mrs Tollman by Diplomatic Notes on 18 March 2003. Those requests were withdrawn by Diplomatic Note on 19 April 2004. At one time Mr and Mrs Tollman challenged this fact, but that challenge was not pursued before us. There was no basis for it. The 2003 Act, in sections 122 to 125, makes express provision for the effect of withdrawal of an extradition request. In short, if the Secretary of State informs the court that a request for extradition has been withdrawn the extradition proceedings come to an end. No express provision is made under the 1989 Act. No proceedings were, in fact, initiated under the 1989 Act pursuant to the 2003 requests. The 2003 requests were withdrawn. It would plainly have been unlawful for any steps to have been taken against Mr and Mrs Tollman under the 1989 Act after those requests were withdrawn. On 6 August 2004 the United States Government, by Diplomatic Notes, requested the provisional arrest of Mr and Mrs Tollman and on 12 October 2004, by Diplomatic Notes requested their extradition. These latter steps purported to be taken under the 2003 Act. The alleged conduct that formed the basis of the 2004 requests was, for the most part the same that had been the basis of the 2003 requests. The issue is whether, in these circumstances, the 2003 Act applied to the 2004 requests. This issue depends on the effect of the Commencement Order, which we have set out at paragraph 12.
97. The Senior District Judge rightly concluded that the jurisdiction of the court had been invoked by the 2004 request. The Commencement Order provides that the coming into force of the 2003 Act does not apply "for the purposes of any request for extradition received by the relevant authority in the United Kingdom on or before 31 December 2003". Mr and Mrs Tollman's primary case, as summarised in paragraph 51(iii) (a) above, is that, on true construction of the Commencement Order, these proceedings relate to a request for extradition received before 31 December 2003. They submit that if a request is made in 2003, withdrawn and then submitted in essentially the same terms after 2004, the proceedings which are initiated in response to the latter request are, for the purpose of the Commencement Order, brought in respect of a request for expedition made before 31 December 2003.
98. Mr Lewis recognised, in his submissions, that it is possible to withdraw a request for extradition and then to make a fresh request, provided that the motivation for so doing is not such as to make the exercise an abuse of process. If his primary submission is correct, it must follow that where a request made before 31 December 2003 is withdrawn, a fresh request in relation to the same alleged conduct must be dealt with in accordance with the provisions of the 1989 Act.
99. We do not find this an acceptable construction of the Commencement Order. It is simply inaccurate, in such circumstances, to suggest that the new proceedings relate to a request made before 31 December 2003. The construction of the Commencement Order suggested is not a natural one. Nor, on the face of it, is there any reason to give the Order such a construction. The Order is a mechanical provision bringing the 2003 Act into effect. The saving in relation to requests made before 31 December 2003 is naturally read as addressing the position of existing proceedings. It has no application once a request is withdrawn and the proceedings come to an end.
100. Counsel for Mr and Mrs Tollman sought to support their submissions as to the effect of the Commencement Order by reference to Parliamentary debate on the bill that led to the 2003 Act. We do not consider that this was a legitimate exercise. We doubt whether the provisions of Pepper v Hart  AC 593 can be applied to a Commencement Order. If they can, they do not apply in the present case, for we do not consider that there is any ambiguity about the natural meaning of the Commencement Order. Finally, the passages from the debate upon which counsel sought to rely did not deal with whether it would be open to a State that had withdrawn an extradition request to make a fresh request under the new regime. The relevant part of the debate related to the provisions in the bill whereby the Government would be able, by Order, to transfer existing extradition cases from the old to the new regime. In the House of Lords on 30 October 2003 Baroness Scotland, the sponsoring Minister, gave the following undertaking in relation to these provisions (Hansard p. 416):
" it became clear that the possibility of a case being transferred was causing a considerable amount of disquiet, of which this amendment is the latest manifestation. The Government have therefore reflected further on the matter and I am now in a position to give your Lordships the outcome of those deliberations. We have decided that no existing cases will be transferred to the new arrangements and that all cases already in the system when the new Act comes into force will continue to be dealt with under the 1989 procedures."
101. This statement does not support the submission that either the sponsoring Minister or Parliament intended that the removal of a case from the system, as a result of the withdrawal of a request for extradition, would preclude the submission of a fresh request from being dealt with under the new regime. The debate does not bear on that question.
102. For these reasons we reject Mr and Mrs Tollman's primary case as to the construction of the Commencement Order. Their alternative case reflects, as we see it, the difficulties that have led us to reject their primary case. Their alternative case proceeds on the assumption that if a request made prior to 31 December 2003 is withdrawn 'in good faith' because the requesting State has decided not to proceed with it, but then, perhaps because of some change of circumstances, the State decides to make a fresh request after that date, the proceedings that are initiated in response to the fresh request will be governed by the 2003 Act. If, however, the requesting State withdraws a request that has been made under the old regime 'in bad faith', with the intention of making a fresh request after 31 December 2003, it is submitted that the consequent proceedings fall to be treated, for the purposes of the Commencement Order, as relating to the request made before 31 December 2003. Thus it is suggested that the manner in which the Commencement Order applies depends upon the motive that has led the requesting State to withdraw the first request and subsequently to make a fresh request.
103. We can deal with this submission shortly. The suggested approach to the construction of the Commencement Order is extraordinary. We can see no basis for finding that the Order operates in this bizarre manner.
104. For these reasons we hold that the extradition proceedings that are currently on foot before the Senior District Judge are governed by the 2003 Act.
Issue 2: Did the issues of jurisdiction, infringement of Article 5(4) and abuse of process fall to be dealt with outside or within the extradition hearing?
105. Section 74 of the 2003 Act makes provision, in respect of a Part 2 case, for an initial appearance before the judge, of a person arrested under a provisional warrant. At this hearing any issue of bail will be determined and the person arrested will have a right to discharge if specified documentary requirements are not complied with. At this appearance the judge is required to fix a date for the commencement of the extradition hearing. Sections 75 to 91 deal with the matters that the judge must determine at the extradition hearing. These do not include the question of whether the proceedings fall within the jurisdiction of the court under the 2003 Act, nor whether there has been an infringement of Article 5 of the ECHR, nor whether there has been an abuse of process that does not fall within the express provisions of the Act that deal with 'extraneous circumstances'.
106. On analysis, the issue of jurisdiction turned on a simple point of construction of the 2003 Act. We think that the question of whether the proceedings fell within the jurisdiction of the court under the 2003 Act was one which was properly raised on Mr and Mrs Tollman's first appearance before the Senior District Judge. It should thereafter properly have been dealt with as a preliminary issue prior to the extradition hearing. After hearing argument the judge should have resolved that issue in accordance with his written ruling of 4 October 2004.
107. At the initial hearing on 17 August 2004 Mr Lewis QC dealt with the question of bail and with the fact that Mr Tollman's US lawyers considered that the Assistant US Attorney conducting the proceedings had become 'obsessive and vindictive' and that Mr Tollman did not believe that he would receive a fair trial in the United States. He then raised the question of jurisdiction almost as an afterthought. He said:
"I should also mention that we do not accept that these warrants are under the correct Act. We believe that the warrants are a continuation of the previous request under Schedule 1 of the 1989 Act. It is a matter I wish to raise before you today. We say the Commencement Order bringing into force the 2003 Act excluded requests made before January 2003, and that these warrants should have fallen under the 1989 Act and continued under Schedule 1 of the 1989 Act."
It is clear from the discussion that followed that Mr Lewis and the Senior District Judge both understood that the case would be adjourned until the start of the extradition hearing, at which all issues would be considered. This remained the Senior District Judge's understanding and intention at the time of his letter of 1 December 2004.
108. Subsequently those acting for Mr and Mrs Tollman persuaded the Senior District Judge that the issue of jurisdiction, infringement of Article 5 of the ECHR and abuse were all matters to be dealt with outside the extradition hearing rather than within it. They did so because they contended, successfully, that the judge enjoyed powers to order disclosure outside the extradition hearing that he would not, or might not enjoy, once the extradition hearing had commenced.
109. We have dealt with the question of how the jurisdiction issue should have been resolved. We understand that the allegation of breach of Article 5 was one that stands or falls with the jurisdiction point. As for the allegations of abuse of process, the Senior District Judge erred in principle in deciding that these were issues that were properly dealt with outside the extradition hearing rather than as part of it. For the reasons given in paragraph 80, any allegations of abuse of process should have been dealt with within the extradition hearing.
Issue 3: did the Senior District Judge have power to order disclosure?
110. The Senior District Judge held that he had power to order disclosure because he was acting outside the extradition hearing. We have held that the resolution of the jurisdiction issue did not require disclosure of any further evidence and that the abuse allegations should not have been investigated outside the extradition hearing. We have already dealt with the manner in which a judge should obtain any additional evidence or information that he needs to resolve an issue of abuse in extradition proceedings.
Issue 4: Were the documents listed by the United States Government subject to (a) legal professional privilege or (b) public interest immunity?
111. For the reasons that we have given this issue does not arise.How should the case proceed?
112. The following is our guidance as to how this case should proceed. Ultimately the timetable must lie within the discretion of the Senior District Judge, for we appreciate that there may be factors of which we are unaware that may make our timetable unrealistic.
i) The Senior District Judge should fix a date for the commencement of the extradition hearing without delay. That date should be no later than 60 days from the delivery of this judgment.
ii) The Senior District Judge should fix a case management conference at least 30 days before the start of the extradition hearing.
iii) At least 7 days before the case management conference those acting for Mr and Mrs Tollman must file a statement of any grounds upon which the request for extradition is resisted. In particular detailed particulars must be given of any conduct alleged to constitute an abuse of process, together with any matters relied upon in support of the allegation that an abuse of process has, or may have, occurred.
iv) So far as any allegation of an abuse of process is concerned, the Senior District Judge should proceed in the manner that we have described in paragraphs 84 to 91 above.
113. A wide variety of allegations appear to have been made at various times in relation to the conduct of the United States in the context of abuse of process. After his ruling of 6 June 2005 the Senior District Judge scheduled to the order for discovery that he made a list of defence assertions which, as we understand it, he considered would, if made good, amount to an abuse of process: These were as follows:
"(i) the American authorities have, since March 2003, sought the Defendants' extradition;
(ii) the American authorities were advised that their 18th March 2003 requests (effected by Diplomatic Notes Nos 15 and 16 of 2003) and accompanying documents did not disclose, or may not have disclosed, a prima facie case under the 1989 Act (either in form or in substance); or otherwise advised it did not comply with practice and procedure necessary to secure a successful committal under the Extradition Act 1989;
(iii) the request to withdraw the 18th March 2003 requests, by way of Diplomatic Note 20 of 2004 dated 19th April 2004, amounted to an attempt to change the proceedings from the 1989 Act to the 2003 Act because the American and/or British authorities perceived, or were advised, that such a change would provide an easier and less onerous route;
(iv) when Diplomatic Note 20 was issued, the American authorities had no intention of genuinely withdrawing the extant extradition requests. Instead, and in order to effect a change from the 1989 Act to the 2003 Act, they issued Diplomatic Note 20 in bad faith knowing that they should not do so or, alternatively, did so in reliance upon erroneous advice from the English authorities that it was legally permissible or proper to do so, If such advice was given by the English authorities, it was given knowing that it would be an attempt to defeat the Commencement Order, or otherwise manipulate the course of the proceedings, or reckless as to whether it would be so;
(v) at no time did the Home Office or the CPS formally advise the American authorities that their request to withdraw was accepted;
(vi) the American authorities knew that Article VII and IX of the 1972 Treaty would not be complied with under their request dated October 2004;
(vii) the Home Office and/or the CPS decided (or advised) that no steps should be taken to act upon the extradition requests of March 2003 and, accordingly, no orders to proceed were issued under the 1989 Act between receipt of Diplomatic Notes 15 and 16 of 2003 (in March 2003) and receipt of Diplomatic Note 20 of 2004 (in April 2004);
(viii) the American authorities decided to attempt to transfer their extant request under the 1989 Act to one under the 2003 Act;
(ix) the 2004 request is no more that a resubmission of the 2003 request."
114. The suggestion that the facts asserted amount to abuse of process is premised on the assertion that to withdraw the 2003 requests with the intention of making fresh requests under a regime with which it was easier to comply was unlawful or improper. This case on abuse might appear to receive some support from the following passage in paragraph 100 of the judgment of Laws LJ in Bermingham:
"The prosecutor must act in good faith. Thus, if he knew that he had no real case, but was pressing the extradition request for some collateral motive and accordingly tailored the choice of documents accompanying the request, there might be a good submission of abuse of process. Again, if he knew he could not (or perhaps could not without great difficulty) make out a prima facie case and so deliberately delayed the extradition process until the 1989 Act had been safely superseded by the 2003 Act, that also might be held to be abusive."
115. We have held that, under the terms of the Commencement Order, it was open to the United States Government to withdraw the initial requests and issue new requests under the 2003 Act. The fact that initial requests were withdrawn and fresh requests subsequently made did not involve illegality or, necessarily impropriety. Mr Okula, the Assistant US Attorney acting for the US Government has sworn an affidavit, dated 13 May 2005, in which he sets out the reasons for the course taken by the United States Government. This affidavit should be admitted in the extradition hearing. It makes it clear (1) that a decision was taken not to proceed with the first requests "in their initially-submitted form" and (2) that one of the reasons for withdrawing the first requests was the change in the law produced by the 2003 Act. It also avers that the withdrawal of the initial request in relation to Mr Tollman was "predicated in significant part" on the desire to rely on charges of money laundering, which could not have been relied upon under the 1989 Act, in contrast to the position under the 2003 Act.
116. We think that it is clear from all of this that the United States Government decided to withdraw the first requests, not because it had decided not to proceed with their attempts to extradite Mr and Mrs Tollman under the 1989 Act, but because they had concluded that this could be more satisfactorily achieved under the 2003 Act.
117. We do not consider that these facts, of themselves, constitute an abuse of process. If the present requests could properly have been made had the earlier requests never been made, we cannot see how the fact that the earlier requests were made, but not pursued, materially affects the position. If Mr and Mrs Tollman are to demonstrate an arguable case of abuse of process they need to demonstrate that there are grounds for suspecting that the present proceedings are being pursued for some improper motive, or are otherwise abusive.
118. For these reasons we have concluded that the United States Government is entitled to the four heads of relief that we have set out in paragraph 5.The Spanish Appeal
119. So far as the Spanish proceedings are concerned, those whose extradition is sought have not suggested that the Spanish authorities are acting out of improper motives or that circumstances do not exist which justify their extradition to Spain. The first two attempts at extradition failed essentially because the relevant documentation was so poorly drafted. The complaint in relation to the third set of warrants is that the CPS has assisted in the drafting and thereby enabled the Spanish judicial authority to advance a more viable case for extradition.
120. The case on abuse of process appears clearly from the following passage in the skeleton argument prepared by Mr Lewis for the hearing on 21 April:
"It appears and will be further developed after disclosure has been made that there has been collusion between the UK and the Spanish authorities to procure an appropriately drafted EAW. It is submitted that it is no part of the role of the UK authorities to participate in the preparation of an EAW in an attempt to facilitate the production by the issuing authority of an EAW that comes closer to meeting the relevant statutory requirements. It is not for the receiving authority or the court to enquire into the purpose of the extradition, or assist the issuing authority in identifying or particularising the criminal conduct alleged. That is entirely for the issuing authority, and if the integrity of the extradition process is to be preserved their respective (and quite separate roles) must not be permitted to become confused."
121. The first step that District Judge Anthony Evans should have taken was to consider whether, if the facts alleged were established, they would amount to an abuse of process. There is no indication that he did so. He ordered, in wide terms, disclosure of documents relevant to the question of the assistance given by the British authorities to the Spanish judicial authority.
122. The issue referred to us was simply whether the judge followed a proper course in ordering disclosure. We are of the opinion that he did not. If he had concluded that an abuse of process had occurred, or might have occurred, if the Crown Prosecution Service had assisted the Spanish judicial authority in drafting the third warrants, the appropriate and simple course to have taken in the first instance was to ask the Crown Prosecution Service whether they had done so. Had he failed to receive a satisfactory reply he could have called for information or evidence as to precisely what role the Crown Prosecution Service had played. In the course of argument before us we understood Mr Jones to accept that drafting assistance had probably been provided, and to contend that there was nothing unusual in this. We consider that the judge should have had little difficulty of eliciting the material facts by admission. Had information requested not been provided, the overwhelming inference would have been that the Crown Prosecution Service had provided the assistance alleged.
123. In these circumstances the appropriate course is to quash the order for disclosure made by the judge. At the resumed hearing he must first decide whether there is an arguable case of abuse of process in respect of which he requires further information or evidence. If there is, he should proceed in accordance with paragraphs 84 to 91 above.
124. In relation to the question of whether an arguable case of abuse of process is made out, we would recommend the judge to call for skeleton arguments explaining the basis for the proposition, advanced as if it spoke for itself, that it was improper for the Crown Prosecution Service to assist with the drafting of the warrants and, in particular, why such assistance did not fall within the express duty imposed on the Director of Public Prosecutions by section 190 of the 2003 Act "to give, to such extent as he considers appropriate, advice on any matters relating to extradition proceedings or proposed extradition proceedings".