ABUSE OF PROCESS

In considering whether an offence on a European arrest warrant seeking the return of a requested person to Austria met the requirements of dual criminality the court had to look at the alleged conduct rather than at the term used to name the offence. In the instant case the offence of slander equated to the UK offence of perverting the course of public justice.

A district judge’s decision to order an alleged offender’s extradition to Hungary was upheld. The European arrest warrant complied with the Extradition Act 2003 s.2; the appellant had suffered no unfair prejudice in consequence of the extradition proceedings and, as a consequence of the judge’s finding that the appellant was a fugitive, her extradition was proportionate.

[2017] EWHC 229 (Admin)

An appeal against an extradition order was allowed where the court could not be satisfied that the prosecution of the appellant in Latvia was not an abuse of process.

Where a European arrest warrant clearly stated that the requested person was to be surrendered in order to face criminal prosecution, and the particulars supported that assertion, there was no need for a judge, when asked to make an extradition order, to seek further information on the issue of whether there had been a decision to charge or try within the meaning of the Extradition Act 2003 s.12A.

[2017] EWHC 47 (Admin)

Where European arrest warrants were based on aggregate sentences imposed under the Polish penal code on offenders who had re-offended before judgment was pronounced on an earlier offence, there was no breach of the principle of double jeopardy because the calculation of the aggregate sentences recognised and gave credit for sentences which had already been served in full.

[2017] EWHC 311 (Admin)

In extradition proceedings, it was clear from Puceviciene v Lithuanian Judicial Authority [2016] EWHC 1862 (Admin) that the consideration of whether a state had looked at using mutual legal assistance was not relevant to whether extradition was barred under the Extradition Act 2003 s.12A. Further, the Convention relating to the Status of Refugees 1951 (United Nations) art.31 did not provide a defence to extradition, it provided only for immunity from the imposition of penalties by the UK.

[2016] EWHC 3029 (Admin)

An individual could, in principle, bring a private prosecution against someone who had been given a prior police caution for the same incident, and where that caution was still extant. However, that was only so as long as there had been no assurance at the time of administering the caution that there would be no future prosecution. It would be bad practice on the part of the police not to use the recommended form of caution in paras 72 and 88 of the Ministry of Justice guidance about simple cautions, issued in November 2013.

[2016] EWHC 3536 (Admin)

A requested person’s extradition to France to serve a prison sentence for offences of organised fraud and money laundering did not amount to an abuse of process as considered in Zakrzewski v Poland [2013] UKSC 2 and was not barred by reason of specialty pursuant to the Extradition Act 2003 s.17.

[2016] EWHC 2868 (Admin)

Convictions under the Malicious Damage Act 1861 s.36 for obstructing engines or carriages on railways were upheld where two men who had walked through the Channel Tunnel from France before being apprehended close to the English entrance. Their actions had caused rail services to be suspended and that interruption was plainly an obstruction of a number of engines and carriages.

[2016] EWCA Crim 1733

A prison officer’s conviction for misconduct in public office was upheld where he had given information to a journalist in return for payment. There had been no impropriety regarding the relevant newspapers’ voluntary disclosure to the police which had identified the officer.

[2016] EWCA Crim 1564

A requesting state’s failure to inform the court that an individual in extradition proceedings was entitled to a retrial, such that his extradition was initially refused but then subsequently ordered, was not an abuse of process. However, it was a breach of the public policy rule requiring all parties to bring their whole case before the court to be finally decided and was a factor that should be taken into account when considering the statutory bars to extradition.

[2016] EWHC 1766 (Admin)

In considering the mens rea of the offence of making an indecent image of a child contrary to the Protection of Children Act 1978 s.1(1)(a), a distinction had to be drawn between cases where images were made by downloading to a phone or computer and those where the image was made by the more direct action of photographing or filming. In cases of photographing or filming, the s.1(1)(a) offence was made out by the deliberate act of photographing or filming without the need for knowledge that the image was or was likely to be of an underage child.

[2016] EWCA Crim 745

Issue estoppel arising from the application of res judicata was not appropriate in the context of extradition proceedings. There was nothing in the scheme of the Framework Decision or the Extradition Act 2003 that supported a different approach. A requested person’s extradition to Latvia had not been an abuse of process even though he had previously been discharged in Scotland pursuant to a European arrest warrant on substantially the same matters; he had avoided extradition the first time because of the deficiencies in the medical treatment available for him on his return, but the position had since changed.

[2016] EWHC 802 (Admin)

A declaration was granted that a defendant had failed to comply with a subject access request under the Data Protection Act 1998 s.7 and an order made that the defendant comply with that request. The defendant failed to establish that either a crime or a privilege exemption applied, and there was no good reason not to exercise the court’s discretion in favour of the claimants who had made a valid request.

[2016] EWHC 643 (QB)

The European legal principle of conforming interpretation required the domestic courts to give effect to Decision 2002/584 when interpreting the Extradition Act 2003 to the extent that it was possible to do so without contradicting the clear intent of the legislation, and the contrary decision in Podlas v Poland [2015] EWHC 908 (Admin) was given per incuriam. Article 4a of the 2002 Decision was drafted to require surrender if the European arrest warrant stated that the person, in accordance with the procedural law of the issuing Member State, fell within one of the four exceptions. It did not contemplate that the executing state would conduct an independent investigation into those matters.

[2016] EWHC 353 (Admin)

A district judge had correctly declined to determine a motorist’s application for a stay of prosecution in relation to his failure to pay excess parking charges where the application was made on the basis of the second limb of R. v Beckford (Ian Anthony) [1996] 1 Cr. App. R. 94. In any event, the motorist had failed to establish any grounds which would have entitled the judge to stay his prosecution as an abuse of process.

[2016] EWHC 1410 (Admin)

Although initially it would have been appropriate to extradite an offender to Poland to serve the remainder of a nine-month sentence for various offences, administrative errors which lead to a significant delay in his appeal against extradition being determined and service of his outstanding sentence on remand, meant that extradition would be a disproportionate interference with his ECHR art.8 rights and/or an abuse of process.

[2016] EWHC 196 (Admin)

The retrospective repeal of the Administration of Justice (Indictable Proceedings) Act 2011 (Trinidad and Tobago) s.34, which introduced a statutory limitation period for criminal prosecutions, did not violate the principle of the separation of powers. The loss of the limitation defence, which had existed for only two weeks, was attributable to a legitimate change in the law, and not to a legislative intrusion upon the judicial function.

[2016] UKPC 2

The Court of Appeal gave guidance on the proper approach to disclosure and abuse of process in criminal proceedings involving large quantities of documentation.

[2015] EWCA Crim 1941

Where a district judge making an extradition order concluded that the first limb of the test in R. (on the application of United States) v Bow Street Magistrates’ Court [2006] EWHC 2256 (Admin), [2007] 1 W.L.R. 1157 was satisfied, namely that there were reasonable grounds for believing that there was potential for an abuse of process in respect of the requested person’s identification, that did not mean that the extradition request should be regarded as abusive unless the foreign judicial authority justified the conviction. It was not for the UK courts to determine whether a requested person was guilty of an offence of which he had been convicted in another country.

[2015] EWHC 3746 (Admin)

A district judge had not erred in ordering the extradition to Kenya of a person who was accused of serious fraud offences. The judge had applied the correct test under the Extradition Act 2003 s.84(1) and had been entitled to find that test to be satisfied in respect of each charge concerned. Further, there was no evidence that extradition would breach the rights of the accused person under ECHR art.3 or art.6.

[2015] EWHC 3535 (Admin)

There was no abuse of process where the Serious Organised Crime Agency had been unaware that an offender’s extradition from Spain to the UK had been made conditional upon him having the right to request a retrial, to which he was not entitled to under UK law. The offender had been present at his trial, the retrial condition had been in breach of EU law, and SOCA’s conduct had not been so serious that to require the offender to serve his sentence would be an affront to justice.

[2015] EWHC 3576 (Admin)

A Crown Court had correctly convicted an offender of assault; there had been no abuse of process and the court had correctly rejected his case of no case to answer.

Judges had to give the most careful consideration to a case before permitting a second retrial. The test in R. v Bell (Phillip James) [2010] EWCA Crim 3, [2010] 1 Cr. App. R. 27 would usually be sufficient to identify where the interests of justice lay, but a wider consideration might sometimes be required. Where the case did not involve murder or violent crime, particularly strong justification would be needed to satisfy the test of extreme gravity.

[2015] EWCA Crim 1307

The conduct alleged against the appellant in a US extradition warrant, concerning the export from the US to Syria of equipment capable of use in the development of chemical and biological weapons, satisfied the dual criminality test because it would amount to an offence of conspiracy to defraud under English law.

[2015] EWHC 2130 (Admin)

A judge had been right to strike out as an abuse of process a claim against the British security services based on their alleged complicity in the claimant’s ill treatment and torture during his detention and interrogation in Pakistan, as the issues the claimant sought to litigate had already been considered and determined in criminal proceedings.

[2015] EWCA Civ 653

A magistrates’ court had not been justified in staying the prosecution of an Italian national charged with failing to give a breath specimen as an abuse of process on the basis that he could not receive a fair trial in the absence of CCTV of the custody suite, as the issue could have been dealt with by way of evidence from the police officers and the accused.

Where there was a disputed prima facie case concerning the origin of handwriting on falsified travel documents against an individual under the Extradition Act 2003 s.84(1), the quality of the evidence should be left to the trial process to resolve.

[2015] EWHC 1378 (Admin)

A district judge had been wrong not to allow a deposition to be taken from a witness in a murder case. The witness, who feared being prosecuted after initially giving one of the defendants an alibi, was not entitled to rely on the privilege against self-incrimination: among other things, the Crown had given an assurance that she would not be prosecuted.

[2015] EWHC 1295 (Admin)

A defendant who had been convicted upon his guilty plea to the offence of conspiracy to cause explosions with intent to endanger life was refused permission to appeal when it subsequently emerged that an expert witness for the Crown had failed to disclose some addendums to his report. Non-disclosure was not, by itself, an abuse of court process. The defendant’s guilty plea, which had not been influenced by the expert evidence, amounted to an unambiguous and voluntary confession which unequivocally established his guilt.

[2015] EWCA Crim 714

In the case of a failure by the prosecution to comply with its disclosure obligations, the court should, when considering whether to stay the proceedings as an abuse of process, balance the material considerations and decide whether it was in the interests of justice, including the interest in the integrity of the criminal justice system, that the proceedings should be allowed to continue.

[2015] EWCA Crim 662

It had not been an abuse of process to prosecute an elderly man for an historic offence of sexual assault which had been committed against a seven-year-old family member. The 23-year delay between the offence and trial did not of itself justify a stay of prosecution, and the judge had been entitled to determine that the offender, who suffered from dementia and other physical ailments, was fit to plead and stand trial.

It would be oppressive to extradite an individual to Croatia to serve a sentence for attempted murder after a 13-year delay. The requested person had been convicted in his absence and without his knowledge and, although he would probably be entitled to a retrial if returned, there was a real risk that he would be prejudiced in the conduct of any retrial by reason of the passage of time.

[2015] EWHC 548 (Admin)

An appellant’s extradition to France was not an abuse of process where a second conviction warrant had been issued following his conviction in absentia. The court would only exercise its implied abuse of process jurisdiction in extradition cases where no other bars to extradition were available, there was cogent evidence that the judicial authority had usurped the statutory regime, and the abuse of process would cause prejudice to an appellant.

[2015] EWHC 149 (Admin)

The High Court rejected an application by the Security Service to strike out claims brought by a number of Libyans for false imprisonment, misfeasance in public office and conspiracy. The claims arose from allegations that the Security Service had withheld evidence during earlier proceedings before the Special Immigration Appeals Commission and the High Court concerning the claimants’ unlawful detention pending deportation, and their subjection to unlawful control and asset-freezing orders. The claimants were entitled to bring private law claims without appealing against the earlier SIAC and High Court rulings.

[2015] EWHC 60 (QB)

Not guilty verdicts returned by a jury in respect of two of five counts of historic indecent assault did not demonstrate that the judge’s refusal to stay the prosecution on the ground of abuse of process due to delay and the consequent loss of evidence was mistaken, or that the verdicts were illogical or in any other way unsafe.

[2014] EWCA Crim 2079

Where an offender had been convicted of two firearms offences, and shortly afterwards prosecuted for further, more serious firearms offences arising from the same facts, it was right that the prosecution was not stayed as an abuse of process: there were special circumstances which displaced the general rule that such a prosecution was prima facie oppressive.

[2014] EWCA Crim 1971

The court granted leave to prefer a voluntary bill of indictment under the Administration of Justice (Miscellaneous Provisions) Act 1933 s.2(2)(b) against the defendant, Gary Glitter, on counts of alleged historic sex abuse. Acknowledging the exceptional nature of its decision, the court held that it was in the interests of justice, and the defendant would not be denied a fair trial by reason of delay.

[2014] EWHC 3307 (QB)

A requested person had failed to show that his extradition to Bermuda to face murder charges as a secondary offender would be incompatible with his human rights because of the prison conditions there. Although the prosecution evidence was far from overwhelming, a jury properly directed could conclude that he had an intention to kill the victim when the principal offender fired the gun.

[2014] EWHC 3421 (Admin)

The conduct of the police and the Security Service in withholding and destroying evidence relating to a sensitive incident involving the appellant amounted to an abuse of process, rendering unsafe his conviction for possessing firearms without a lawful object.

[2014] NICA 60

There had been nothing untoward in a police undercover operation in which officers set up a shop from which they intended to buy stolen goods from the public. Three men who pleaded guilty to various offences arising from the operation had not been in any way vulnerable or enticed by the officers into committing crimes that they would not otherwise have committed.

[2014] EWCA Crim 1681

In extradition proceedings, domestic courts should be extremely reluctant to evaluate the competing arguments about the local law of limitation in the requesting state. The circumstances where evaluation might be justified would be truly exceptional.

[2014] EWHC 2623 (Admin)

The appellants, who had been charged with failing to comply with an enforcement notice, had not been entitled to challenge the validity of the notice in the criminal proceedings by seeking a stay of those proceedings: their challenge could only be brought by way of an appeal against the notice or by way of judicial review.

[2014] EWCA Crim 1030

Summary judgment was granted against an energy purchasing manager who had fraudulently obtained £2.18 million by altering documents so that he personally obtained a rebate from an energy provider that had properly been due to a consortium of buyers led by his employer, a local authority. No answer to the claim had been provided and the manager’s counterclaims were struck out as an abuse of process.

The court upheld a decision of a district judge ordering the extradition of a drug smuggler to stand trial in the Czech Republic.

[2014] EWHC 945 (Admin)

On the facts, it was neither unjust nor unfair for the court to consider exercising its power to make a substitute confiscation order under the Criminal Justice Act 1988 in place of one that was invalidly made under the Proceeds of Crime Act 2002.

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[2014] EWCA Crim 227

A Polish national successfully challenged an order for his extradition to serve the balance of a 12-month custodial term where the Polish court orders were ambiguous and where he had lived a law-abiding life in the United Kingdom for six years, taking employment and discharging family responsibilities. The UK courts were obliged to act compatibly with the human rights of those before its jurisdiction, and to consider the proportionality of extradition requests.

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[2014] EWHC 465 (Admin)

Where defendants had been sentenced in the United Kingdom following their guilty pleas to conspiracy to defraud on a multi-national level, it was neither an abuse of process nor an infringement of the principle of double jeopardy for them to face extradition to the United States to face charges arising out of the same conspiracy. Although the two indictments had common features, they did not deal with the same transactions and were not founded on substantially the same facts.

[2014] EWHC 176 (Admin)

It was not appropriate to grant leave to appeal a refusal to vary a witness anonymity order where counsel for the Crown in the application for leave to appeal and the Director of Public Prosecutions had previously engaged on behalf of two of the defendants and the trial was still on-going. Doing so might have the effect of clouding the distinction between the roles of the Crown and the defence in the criminal trial process, and the Court of Appeal had a responsibility to respect the integrity of the administration of justice.

[2014] NICA 33

Justices had not erred in finding that there had been no abuse of process in a road traffic case where police had allowed a car to be destroyed before a defendant had had a chance to examine it. Although the police had not acted within normal and reasonable practice in destroying the car, the trial had been able to accommodate any disadvantage that arose from the loss of evidence.