AC-2023-LON-000173 - [2025] EWHC 1897 (Admin)

The existence of the abuse of process jurisdiction in extradition proceedings has been recognised since Bermingham and others v Government of the United States of America and another [2006] EWHC 200 (Admin) [2007] QB 727 and R (on the application of the Government of the United States of America) v Bow Street Magistrates Court [2006] EWHC 2256 (Admin) at (§§82-89).

Guidance was given in Giese v Government of the United States of America [2018] EWHC 1480 (Admin)where Lord Burnett CJ said at §§32-33:

“32.

The key, in our judgment, to cases where it is said that the requesting state failed in the first set of proceedings such that the second set are an abuse of process is to make a ‘broad, merits-based judgment which takes account of the public and private interest involved and also takes account of all the facts of the case’: see Johnson v Gore Wood [2002] 2 AC 1 at [31] and Arranz v High Court of Madrid [2016] EWHC 3029 (Admin) at [32] and [33]. Such a broad, merits-based judgment should take account of the fact that there is no doctrine of res judicata or issue estoppel in extradition proceedings.

33.

Underlying extradition are important public interests in upholding the treaty obligations of the United Kingdom; of ensuring that those convicted of crimes abroad are returned to serve their sentences; of returning those suspected of crime for trial; and of avoiding the United Kingdom becoming (or being seen as) a safe haven for fugitives from justice. The 2003 Act provides wide protections to requested persons through the multiple bars to extradition Parliament, originally and through amendment, has enacted. There are likely to be few instances where a requested person fails to substantiate a bar but can succeed in an abuse argument.”

In Jasvins v Latvia [2020] EWHC 602 (Admin), it was noted by the Divisional Court (Davis LJ and Swift J) that:

“…there is no necessary conclusion that proceedings on a second (or later), warrant will amount to an abuse of process with the consequence that those proceedings will be dismissed.” [17]

At [20[-[21] the Divisional Court highlighted the need for an overall merits based assessment of the circumstances of the case:

“Mr Jones’s submission in this case is that wherever proceedings on a subsequent EAW amount to collateral attack on decisions taken in proceedings on an earlier materially identical EAW, the second proceedings must amount to an abuse of process and must be dismissed. We do not agree that the matter can be put in such absolute terms. Where there are successive warrants or successive extradition requests, if proceedings on the subsequent warrants can properly be characterised as a collateral attack on a decision in proceedings on the first warrant, the latter proceedings are capable of amounting to an abuse of process. It may be possible to go further and say that ordinarily this will be the case. But the outcome in any given situation must depend on the overall merits-based assessment of public interests and careful evaluation of the facts, referred to at paragraph 32 in judgment of Giese.

There is a particularly important public interest that the system of enforcement of EAWs is undermined. That public interest covers a number of objectives. One objective, plainly, is that those who are charged with criminal offences overseas or have been convicted overseas and are wanted for punishment are provided to requesting authorities. But maintaining the integrity of the EAW system includes ensuring that decisions can be made expeditiously and that courts are able to exercise effective case management powers. Put bluntly, if such orders are made, the starting presumption is that they will be complied with. Where, as in this appeal, the claim of abuse of process arises from a failure in earlier proceedings to comply with a court order, the court in the later proceedings must assess the significance of permitting the Requesting Authority to avoid the consequences of the earlier decision, while also taking account of the public interest in that particular extradition. This will also include considering the gravity of the alleged or actual offending, and the prejudice (if any) to the requested person arising from pursuit of the further warrant. In other words, a Giese-style broad, merits-based judgment taking account of the public and private interests as they are manifest on the facts of the particular case.”

In Konczos v Hungary [2021] EWHC 3287 (Admin), granting permission to appeal against an order for extradition based on a second arrest warrant on the basis of abuse of process but dismissing the appeal, Fordham J said at [30]:

“This is not a case like Jasvins where there was a live question of historic fact, calling for evidence, as to what had happened. This is a case in which extradition could not be Article 3-compatible, unless and until Hungarian authorities were in a position to make a clear and concrete promise guaranteeing the position as regards the future action of Hungarian authorities. As in Giese, where there was no abuse of process (see §43), this is a case where an "adequate assurance" was needed in relation to future action, so as to "neutralise" a human rights argument, rather than being a situation of seeking to "reargue" points which had been "lost" (see §§34-35). The integrity of the EAW system and ensuring expeditious decision-making justified DJ Grant in making directions giving a deadline for the requisite prison assurance, by way of directions which were to be complied with, and then discharging the Appellant on EAW1 when it was not forthcoming. The Respondent was clearly placing itself at risk, insofar as it defaulted assuming that it could simply start again with a lookalike EAW2. The significance of permitting the Respondent to avoid the earlier consequences lies in two features: (i) the Respondent being able subsequently to give the requisite guarantee as to Hungarian authorities' own future action, allaying the concerns for the future which arise in relation to Article 3 and prison conditions; and (ii) the adverse consequences for the Appellant in having to face a fresh EAW and fresh extradition proceedings. As to these, as in Giese (see §42): the first feature (number (i) above) serves to vindicate the Appellant's ECHR rights and ensure that the strong public interest in upholding extradition arrangements is recognised; whereas the second feature (number (ii) above) is not, in my judgment, such as to give rise to unfairness, still less oppression.” 

Fordham J went on to explain the latter conclusion on the facts of the case. The appellant had been discharged on the first warrant in May 2016 because the respondent failed to comply with directions to provide an assurance as to prison conditions. The second warrant was issued 11 days later and the appellant was promptly told about it. He then opted to request a retrial in Hungary. In 2018 the retrial was terminated because the Hungarian authorities insisted that a prison sentence previously passed on him remained in force pending the retrial, he refused to attend for trial and the Hungarian court refused to proceed in his absence. Challenges by the appellant were dismissed, up to and including June 2019. The second arrest warrant was certified in July 2019, he was arrested in June 2020 and the prison assurance was provided in September 2020. In those unusual circumstances the public interest in extradition outweighed the consequences to the appellant of allowing the respondent to avoid the consequences of its original failure to obtain the prison assurance.

In Wawrzyczek v Poland [2021] EWHC 64 (Admin) at [104], Julian Knowles J explained that the Court would consider the public and private interests involved and all the facts, and would “determine whether extradition on the second EAW would result in unjust oppression to the defendant”:

In Rymarski v Poland [2023] EWHC 3389 (Admin), the DJ in a first set of proceedings found that the judicial authority had not proved that the appellant had deliberately absented himself from trial and discharged him pursuant to s20. The judicial authority did not appeal. A new EAW was issued two and a half months later including further and better information regarding the Appellant’s summons. Finding this to amount to an abuse of process, Johnson J said:

“There is a strong public interest in the finality of legal proceedings. At common law, the courts expect parties to “bring forward their whole case” when engaged in litigation. The courts will not, except under special circumstances, permit a party to re-litigate an issue that has been determined …” [28].

“The need for efficiency and economy in legal proceedings which underpins the application of the abuse of process jurisdiction to re-litigation applies as much in the context of extradition proceedings as it does to other areas of litigation…Thus, the public interest and finality that underpins re-litigation abuse applies in the context of extradition proceedings. It is therefore not surprising that it has been applied in this context.” [31]

“It is only a judicial authority, not a requested person, that can, in effect, launch a second set of extradition proceedings. The need to ensure that parties are treated fairly and are on the same footing therefore requires a degree of rigour in ensuring that the restrictions that apply to appeals are not side-stepped in a way that is only available to one party. If the judicial authority had known of the further evidence clarifying the minor discrepancy and had considered that it would not be able or might not be able to adduce that evidence on an appeal as fresh evidence and had decided to issue a fresh arrest warrant as a way of avoiding the procedural requirements that are explained in Fenyvesi, then in my judgment the second set of proceedings would be a clear abuse of process for that separate reason.” [42]

Johnson J set out some examples of cases in which a second attempt at extradition was unlikely to be held abusive at [35]:

“(1)

where the new extradition request is based on an entirely new underlying offence, particularly where that offence post-dates the previous proceedings.

(2)

where there has been a fundamental change in the underlying facts since the previous proceedings. An example may be where the extradition was refused on the grounds that it would be incompatible with the right to respect for his private or family life and where factors that were critical to the Article 8 balance have since ceased to apply.

(3)

where the requested authority takes steps to address concerns that led to the refusal of an extradition request, for example by giving an assurance as to prison conditions. Giese is such a case as Fordham J explained in Konczos v Hungary [2021] EWHC 3287 Admin at [30].

(4)

where new evidence comes to light after the proceedings and after the time for an appeal has expired in circumstances where the judicial authority could not have obtained such evidence at any earlier stage.

In the same paragraph he indicated that, conversely, “it is more likely to be an abuse if extradition is sought for the same offence and on the same evidence as in previous proceedings which resulted in the requested person’s discharge. Such proceedings, in substance if not in form, are almost inevitably a collateral attack on the previous decision”.

And at [36] Johnson J said:

“It may also be an abuse if a new arrest warrant is issued as a device for avoiding a litigation disadvantage that might otherwise apply on appeal. To take one example, the appellate court does not usually make its own decision as to where the Article 8 balance lies. Rather, it reviews the decision of the district judge in order to determine whether that decision was wrong. It follows that there will be marginal cases where the factors are finely balanced and where different district judges might reach different conclusions. In such cases, an appellate court may dismiss an appeal even if the court would, itself, have reached a different decision as to where the Article 8 balance lies. It would be quite wrong and abusive if, in such a case, a judicial authority simply kept issuing new arrest warrants until it found a first instance judge who reached a conclusion in its favour on the Article 8 balance.”

In Marinescu v Romania [2025] EWHC 600 (Admin), Collins Rice J said:

“The relevant factors will include the gravity of the offending, the nature and cause of the events leading to the outcome of the antecedent litigation, the character of the subsequent litigation and its relationship to the antecedent litigation, the effect of all that on the extent of the public interest in extradition, and the effect on the requested person including through change of circumstance or the passage of time.” [32]

“Whether a reissued arrest warrant is an impermissible collateral attack on previous proceedings or otherwise an abuse of process by relitigation may also involve an evaluation of whether, viewed in the round, it amounts to an improper and unfair litigation advantage to the requesting state. That may be so, for example, where it seeks to avoid, undo or set aside previous decisions in a manner only properly available through an appeal route.” [33]

“In these circumstances, although the District Judge himself used the expression ' collateral attack ', it was not really any such thing. That term should properly be reserved for reissued warrants which are avoidance devices – backdoor routes to different results from those a court has decided otherwise, and for which consequential litigation steps have already been provided.” [84]

As to the other issue, of Article 8 and proportionality, the principles are too well known to need more than the briefest summary here.

The court when deciding whether extradition would be a disproportionate interference with the requested person’s Article 8 rights must balance the factors for and against extradition: Celinski v Poland [2016] 1 WLR 551.

A lengthy delay between the commission of the relevant offences and subsequent criminal proceedings and extradition proceedings may both diminish the weight to be attached to the public interest and increase the impact of extradition upon private and family life. See HH v Deputy Prosecutor of the Italian Republic, Genoa per Lady Hale at [8], applying Norris v Government of the USA (No 2) [2010] 2 AC 487.

However, the “constant and weighty” public interest in extradition will only rarely be outweighed by other factors. This basic principle was very recently reiterated by the Supreme Court (per Lord Lloyd-Jones and Lord Stephens) in Andrysiewicz v Circuit Court in Lodz, Poland [2025] UKSC 23, [2025] 1 WLR 2733 at [43]:

“Cases in which a submission founded on article 8 ECHR may defeat the public interest in extradition will be rare. It is most unlikely that extradition will be held to be disproportionate on the ground of interference with private life. Even in cases where interference with family life is relied upon, it will only be in cases of exceptionally severe impact on family life that an article 8 ECHR ‘defence’ will have any prospect of success.”