[2025] EWHC 2783 (Admin)

There is no doubt that there is a residual implied jurisdiction to refuse extradition on the grounds of abuse of process, but the circumstances in which the court will consider exercising it are very limited. It will only do so if two conditions are fulfilled. First there must be cogent evidence that the requesting authority has acted in such a way as to usurp the statutory regime for extradition. Secondly such usurpation of the statutory regime must have resulted in the extradition being unfair and unjust to the requested person. See Belbin v France [2015] EWHC 149 (Admin) per Aikens LJ at [44], [59]; and Devani v Kenya [2015] EWHC 3535 (Admin) per Leggatt LJ at [117].

As to the first condition, the concept of usurpation usually imports a requirement that the requesting authority is acting in bad faith or knowingly seeking to manipulate the statutory regime, although exceptionally unintentional manipulation may be sufficient. In this context, as with assurances, the court is bound to proceed in accordance with a presumption of good faith unless there is cogent evidence which calls it into question.

As to the second condition, the position differs from that in domestic law as to abuse of process. In the domestic context misconduct can be sufficiently egregious to merit a stay for abuse of process even if a fair trial is still possible if it is necessary to protect the integrity of the justice system, although cases fulfilling this test are very rare: Warren v Attorney General for Jersey [2012] 1 AC 22. Mr Smith initially sought to suggest that the domestic principle applied to enable abuse to be relied on irrespective of prejudice on the footing that “The Court must set its face against such conduct”, and by reference to the decision in R v Horseferry Road Magistrates Court, ex parte Bennett [1994] 1 AC 42. However Bennett was an incoming case in which, as Stuart-Smith LJ observed in A v Lyon Court of Appeal [2021] EWHC 2453 (Admin) at [66], but for the misconduct of the executive the defendant would not have been tried in this country at all. It provides no support for Mr Smith’s argument that the second condition identified above, namely unfairness to the requested party, does not need to be fulfilled. It is not necessary to decide in this case whether the second condition identified in Belbin and Devani is an absolute one, or whether there may be exceptional circumstances in which extradition may be stayed for abuse by way of sanction of egregious misconduct which does not make the extradition unfair or prejudicial. If the latter, the conduct must be so egregious and the circumstances so exceptional that they lie far beyond those in the present case.