AC-2023-LON-001835 - [2025] EWHC 2770 (Admin)

The Administrative Court (Aitkens LJ and Edis J) in Belbin v France [2015] EWHC 149 (Admin) at [43]-[59] considered the role of abuse of process in extradition proceedings. The following passages from Aikens LJ’s judgment at [44] and [59] are of assistance:

“Whether it is the prosecuting authority’s behaviour or that of another entity that constitutes the Judicial Authority of the requesting state that is being criticised, it will only amount to an abuse of the extradition process if the statutory regime in the EA is being “usurped” (see [97] of Bermingham). It would, for example, be “usurped” by bad faith on the part of the Judicial Authority in the extradition proceedings or a deliberate manipulation of the extradition process. But any issues relating to the internal procedure of the requesting state are outside the implied abuse of process jurisdiction concerning extradition proceedings: see [36] of Symeou. Moreover, as is clear from the decision of this court in Federal Public Prosecutor, Brussels, Belgium v Bartlett [2012] EWHC 2480 (Admin), this “usurpation” of the statutory extradition regime has to result in the extradition being “unfair” and “unjust” to the requested person. In this regard it has also to be shown that, as a result of the “usurpation” of the statutory regime, the requested person will be unfairly prejudiced in his subsequent challenge to extradition in this country or unfairly prejudiced in the proceedings in the requesting country if surrendered there.

[…]

We wish to emphasise that the circumstances in which the court will consider exercising its implied “abuse of process” jurisdiction in extradition cases are very limited. It will not do so if, first, other bars to extradition are available, because it is a residual, implied jurisdiction. Secondly, the court will only exercise the jurisdiction if it is satisfied, on cogent evidence, that the Judicial Authority concerned has acted in such a way as to “usurp” the statutory regime of the EA or its integrity has been impugned. We say “cogent evidence” because, in the context of the European Arrest Warrant, the UK courts will start from the premise, as set out in the Framework Decision of 2002, that there must be mutual trust between Judicial Authorities, although we accept that when the emanation of the Judicial Authority concerned is a prosecuting authority, the UK court is entitled to examine its actions with “rigorous scrutiny”. Thirdly, the court has to be satisfied that the abuse of process will cause prejudice to the requested person, either in the extradition process in this country or in the requesting state if he is surrendered.”

In R (on the application of the Government of the United States of America) v Bow Street Magistrates Court [2006] EWHC 2256 (Admin), [84], guidance was provided by Lord Phillips, CJ on the procedure to be followed when an abuse of process argument is raised:

“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.”

In this case, I am satisfied that the abuse of process ground is hopeless, and I refuse permission to advance Ground 3. The abuse is said to consist of pursuing the Warrant while allowing Mr Beraru to attend the pre-trial proceedings remotely, which is said to amount to inconsistent behaviour. There is no inconsistency here. The Respondent has throughout actively pursued Mr Beraru’s extradition, but that process has been delayed by Mr Beraru’s appeal. It is certainly not abusive for the Respondent to have sought to make some progress in the case in which other defendants are involved, and afford some means of participation for Mr Beraru, in the meantime. The adoption of this expedient for a period does not render the Warrant unnecessary, as the Romanian courts have already determined.

Mr Beraru’s proportionality argument having failed, it is not possible to repackage the argument that Mr Beraru can participate in the trial remotely under an “abuse of process” head.