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Cite as: [2007] EWHC 2059 (Admin)

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Neutral Citation Number: [2007] EWHC 2059 (Admin)


Royal Courts of Justice
London WC2A 2LL
24 July 2007

B e f o r e :



MALKIT SINGH First Interested Party


Computer-Aided Transcript of the Stenograph Notes of
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Mr John Hardy (instructed by Crown Prosecution Service, Special Crime Division) appeared on behalf of the Claimant
The Defendant was not represented and did not attend
Mr James Lewis QC and Mr Ben Watson (instructed by Challinors) appeared on behalf of the First Interested Party



Crown Copyright ©

  1. LORD JUSTICE SEDLEY: This application for judicial review is made by Mr Hardy, on behalf of an Issuing Judicial Authority (IJA), the Central Examining Court of Madrid, which has issued European Arrest Warrants (EAWs) against each of the five interested parties. The defendant to the application is the City of Westminster Magistrates' Court in the person of District Judge Anthony Evans, who, on 14 February 2007, following a day of argument on 21 January 2007, ruled that there was "an arguable case of abuse of process". In order to understand the order which he went on to make, it is necessary to describe a little of the background.
  2. The interested persons are sought by Spain for drug trafficking offences. The first group of EAWs issued against them by the claimant court was found to be legally deficient; so was the second set. The third set, to which these proceedings relate, are in good formal order thanks to the inclusion of a passage which bears clear signs of having been drafted by an English lawyer. For the purposes of the application below, Mr Hardy was content that the court should infer that it was drafted by the Crown Prosecution Service (CPS) but not that it was interposed by the CPS. It will become apparent in a moment why he put it that way rather than as a straightforward admission or assertion, but before us today he has confirmed that it was indeed so.
  3. The two paragraphs constituting the material passage, of which only one was quoted by the district judge, read as follows:
  4. "All the activities described were being undertaken until the very moment of arrest and subsequent issue of the European Arrest Warrants, with Sander, after his arrest in the UK, having acted through third parties such as Sara El Khatih.
    All money movements, transfers, investments in real property and in any other kind to which reference has been made, were undertaken by those whose surrender is sought in full knowledge that they were the products of drug trafficking."
  5. On 6 September 2006 another Divisional Court, consisting of Lord Phillips CJ and Cresswell J [2006] EWHC 2256 (Admin), gave judgment on two claims, one brought by the United States Government and one by the present claimant, against Bow Street Magistrates' Court. The latter claim was for quashing of an order made in the present proceedings by District Judge Evans in April 2006 for disclosure of documents and information relevant to an abuse of process application which had been made to him. The questions set out by the Divisional Court were these:
  6. "(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."
  7. In relation to the present case, the Lord Chief Justice said this:
  8. "119 So far as the Spanish proceedings are concerned, those whose extradition is sought have not suggested that the Spanish authorities are acting out 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 participate in the preparation of a European arrest warrant in an attempt to facilitate the production by the issuing authority of a European arrest warrant that comes closer to meeting the relevant statutory requirements. It is not for the receiving authority or the court to inquire 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 CPS 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 CPS 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 CPS 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 CPS 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 paras 84-93 above.
    124 In relation to the question of whether an arguable case of abuse or 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 CPS 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.'"
  9. It was on the resumption of these proceedings following the Divisional Court's decision that the district judge gave the ruling which is the subject of the present application. Among other things, he said this:
  10. "In order to see whether the conduct (if established) is capable of amounting to an abuse, it is necessary to examine the European Framework Decision. This refers in Recital (9) to the role of central authorities being limited to practical and administrative assistance. Article 7 permits Member States to designate one or more central authorities to assist the competent judicial authorities and Article 7 (2) allows the States to make those central authorities responsible for all administration transmission reception of all European Warrants and correspondence in relation thereto. This is the function at present performed by SOCA.
    Even if one assumes that the CPS is a central authority for the purposes of the European Framework Directive, it is clear that Recital (9) and Article 7 must be read together, so that assistance is limited to 'practical and administrative assistance.'
    Further s. 190 of the Extradition Act limits the role of the CPS to conducting extradition proceedings and giving advice. There is nothing, therefore, in either the Framework or the Act which permits the drafting of all or any part of EAW, by any authority within the requested state. I am satisfied that if this conduct is established, it is capable of amounting to an abuse.
    The next question is whether there are reasonable grounds for believing that such conduct may have occurred. The language and style of the sentence in question is totally different from that employed elsewhere in the Warrant itself, or its predecessors. It appears to have been inserted to address difficulties highlighted by District Judge Wickham when she dismissed the applications in respect of the first warrants.
    I am satisfied, therefore, that there is an arguable case of abuse of process. I have seen a letter from one of the firms of solicitors in this case dated 10 January 2007 to the CPS, enquiring whether instructions have been received as to the extent (if any) the Spanish authorities received in the drafting of the warrant. The response was that no instructions had been received.
    Therefore, I, following the direction of the Administrative Court, require the CPS to inform the Court whether they did assist the Spanish Authority in drafting the third warrant. If no satisfactory reply is received, then I will require them to provide information and evidence as to their exact role in the affair."

    Newman J gave the Madrid Court permission to seek judicial review of this decision.

  11. The claimant court's case is, in short, that if it had the assistance of the CPS in drafting part or indeed the entirety of its European Arrest Warrants, so long as it was that Court (as the Issuing Judicial Authority) and not the CPS which issued the warrants, nothing unlawful, abusive or improper is involved.
  12. The reason why the claimant was initially content for the CPS's hand in the drafting of the warrants to be assumed, but was not prepared to confirm or deny it, is that it wishes to reserve the submission that such facts are protected from disclosure by legal professional privilege.
  13. The interested parties submit, by contrast, that the inference which the district judge has - without opposition and, we know now, correctly drawn about the partial authorship of the warrants - is evidence of an interference in the extradition process which may turn out, on investigation, to be an abuse. It is too soon, says Mr Lewis QC for the first interested party, to say for certain precisely because the district judge's order for disclosure has yet to be complied with. The application to quash it is therefore, the interested party submits, at the very least premature.
  14. The claimant, for its part, says that this argument assumes the very thing that is in issue, that the district judge was entitled to make such an order. But Mr Lewis submits that what is already known suggests that the CPS has, at least partially, drafted the third warrant and in doing so has compromised the Madrid Court's apparent independence and impartiality and violated the principle of equality of arms.
  15. The previous Divisional Court's judgment, some of which I have already cited, set out some of the principles involved:
  16. "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. Article 5 of the Convention 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 [2002] 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. Rose LJ said, at para 34:
    'What is pertinent here in the present cases is solely whether the detention is unlawful by English domestic law and/or arbitrary, because of bad faith or deliberate abuse of the English courts' 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 has rendered the detention unlawful under article 5 (4).'.
    82 Recently, in R (Bermingham) v Director of the Serious Fraud Office [2007] 2 WLR 635 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': paras 97-98. 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 p Ellison [1990] RTR 220,227:
    '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 so 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 inquiry 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 had 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 shall request that the necessary supplementary information, in particular with respect to articles 3 to 5 and article 8, 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 limits 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 that 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 Convention 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 [2004] 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."
  17. To this, Mr Lewis adds parts of Lord Hope's speech in Office of the King's Prosecutor Brussels v Cando Armas [2005] 3 WLR 1079, [2005] UKHL 67, paragraphs 22 to 24:
  18. "The grounds on which a member state can decline to give effect to the European arrest warrant are ..... very limited.
    "The system has, of course, been designed to protect rights. Trust in its ability to provide that protection will be earned by a careful observance of the procedures that have been laid down.
    "But the liberty of the subject is at stake here, and generosity must be balanced against the rights of the persons who are sought to be removed under these procedures. They are entitled to expect the courts to see that the procedures are adhered to according to the requirements laid down in the statute."
  19. In Castillo v The Kingdom of Spain, at paragraph 25, Thomas LJ said:
  20. "It is in my view very important that a state requesting extradition from the UK fairly and properly describes the conduct alleged, as the accuracy and fairness of the description plays such an important role in the decisions that have to be made by the Secretary of State and the Court in the UK."
  21. What is now said by Mr Hardy is that the district judge, on resuming the case as directed by the Divisional Court, has assumed the possibility of a form of abuse of process which has no foundation in law and that it is on the basis of this that he has made orders, as opposed to requests, which he has in any event no power to make.
  22. Mr Lewis' account of the suspected abuse is well set out in paragraph 3 of his skeleton argument:
  23. " ..... there is a real possibility requiring explanation, that after the IJA failed twice on its warrants to describe conduct amounting to an extradition offence, that someone at the CPS said or advised 'if you add in this paragraph the next EAW will be fine' without instructions to settle such paragraph reflecting the actual underlying conduct alleged. The alleged abuse was identified with particularity in the skeleton argument before the District Judge ..... The material part of the particulars alleged before the district judge was:
    'The alleged abuse
    53 The requested persons allege that:
    53.1 the newly inserted last line of the EAWs was not drafted by the Spanish judicial authority;
    53.2 it was drafted in the UK by counsel instructed by the CPS, a lawyer employed by the CPS, or a lawyer employed by SOCA/NCIS, either:
    (i) without instructions from the Spanish authority (ie to perfect a flaw that the UK lawyer considered he/she could see in the warrants); or
    (ii) otherwise outside that individual's proper role in extradition proceedings."
  24. In argument before us, Mr Lewis developed it in this way. He said that the district judge was fully entitled to suspect that the passages had been drafted without instructions because the purpose of the interpolation was to deal with gaps that had been previously identified by the Magistrates' Court; because of responses in two letters, to which I will turn in a moment, and a refusal to answer candidly; because the reasons for refusing to answer had shifted; and because Mr Hardy himself had said this morning in opening his case that it was perfectly reasonable to infer that the Spanish authority had said to the CPS, "Will you please put the warrant in a suitable form that will result in its execution." All of these, Mr Lewis says, are matters raising enough suspicion to entitle - indeed oblige - the district judge to satisfy himself that there had not been an abuse.
  25. The two letters are to be found in the bundle. Since they are by themselves impenetrable we have asked for copies of letters to which they were a response. Taking it briefly, the first request dated 27 January 2006 from solicitors for the interested party asked, among other things:
  26. "Why three separate warrants for the same offence have been issued?"


    "What input, drafting or other help did the British authorities give to the issuing judicial authority?"

    The answer came:

    "As to the 'Input, drafting or other help' given to the issuing judicial authority, may I refer you to Section 190 of the Extradition Act 2003 under which the Crown Prosecution Service may advise 'on any matters relating to the extradition proceedings or proposed extradition proceedings.' I cannot answer why three separate warrants have been issued for the same offence save to guess that it was because the first two attempts to secure the extradition of those named therein were unsuccessful."

    Mr Lewis invites us to infer that the last part of that answer is, so to speak, a guilty answer suggesting that it is at least possible that the purpose of the interpolation was to plug a hole, irrespective of whether instructions properly obtained warranted it.

  27. The second letter was in response to a question framed as follows:
  28. "Can I ask the Crown to confirm whether they now have any instructions on the extent of assistance offered in drafting the third European arrest warrant?"

    To this the reply was:

    "In response to your query, I have not had any instructions from the Spanish authorities in relation to the question of the extent of any assistance offered in drafting the third European arrest warrant."

    As to this, in spite of Mr Lewis' attempts to extract some support from it for his case, it appears only to show that if you ask an unintelligible question you get an unintelligible answer.

  29. As to the first letter, I am entirely unable to see how the response of the CPS is in any way suggestive of an improper interference or intervention on its part in the drafting of the third group of warrants. It is much more consonant, in my view, with the CPS simply not knowing why the Madrid Court had done what it did but making an educated guess, which indeed any sensible person would have made, as to why a third set of warrants had been issued, namely that the first two were failures.
  30. This fact, however, is at the heart of Mr Lewis' case because he submits that it is the want of particularity of conduct in the first two sets of warrants which, on any sensible inference - and I entirely accept that this is so - led to the drafting of the third set of warrants. That, however, does not seem to me in any way to imply or suggest or raise a suspicion that the additional material was added without instructions or drafted without instructions.
  31. To this, Mr Lewis adds that his client was discharged, albeit on bail, following the failure of the first set of warrants and again following the failure of the second lot. This certainly is unfortunate, and I do not doubt that a point may come at which an IJA can be stopped from repeated use of the European arrest warrant process if it is turning into a form of harassment. But we are not considering such a submission in terms here.
  32. I do not accept Mr Lewis' submission that there are any grounds, in what I have set out, to suspect that the CPS made it its business, as Mr Lewis submits we should infer it did, to tell the Madrid Court that it must add two paragraphs or fail.
  33. It is clear, following the decision in Bermingham v Government of the United States of America [2006] 3 All ER 239, that the Magistrates' Court has jurisdiction, as it did not have under the old extradition procedure, to restrain abuses of process occurring under the Extradition Act 2003.
  34. Mr Hardy does not accept that there is anything abusive or otherwise improper in a European arrest warrant issued by a foreign judicial authority having been drafted, whether partly or in its entirety, by the CPS or for that matter by anybody else. To the fact which the district judge noted that nothing in the Act permits it, Mr Hardy responds that nothing in the Act forbids it. What would, he accepts, be improper is the signing by an IJA of a warrant in blank because the content of the warrant would then be the drafter's and not the IJA's. There is no suggestion of that here. While he would, if necessary, fall back on the legitimacy of partial assistance, which is all that is in issue here, Mr Hardy's primary and essential case is, as I think it needs to be, that there would be no objection to an IJA using services such as those of the CPS to draft an entire European arrest warrant so long as it was done entirely on the IJA's instructions and adopted, not merely rubber-stamped by the IJA. I would accept this.
  35. Equally I would accept Mr Lewis' submission that where there is reason to suspect departure from these principles - but not otherwise - the examining judicial authority in this country may seek further information with a view to satisfying itself, as in law it must, that there has not been an abuse of process. In other words, the burden shifts.
  36. Mr Hardy elaborates his submission by pointing out the CPS's statutory role in the European arrest warrant process. By Section 190 of the 2003 Act, the CPS's constitutive document - the Prosecution of Offences Act 1985 - is amended to add to the functions of the Director of Public Prosecutions the conduct of any extradition proceedings and -
  37. "to give, to such extent as he considers appropriate, and to such persons as he considers appropriate, advice on any matters relating to extradition proceedings or proposed extradition proceedings."
  38. Mr Hardy goes on to argue that so long as the IJA adopts what is drafted on its instructions or on its behalf, there can be no abuse in that context. Here, however, the suspected abuse does not consist in the CPS doing something that it has no power or entitlement to do, so I think the reliance on Section 190 is of limited value. The suspected abuse consists of the IJA failing to do something which it is said by Mr Lewis it alone can do, namely formulate and adopt the entirety of the warrant.
  39. The fact, noted by the district judge, that the CPS is not a Central Authority within the meaning of Recital 9 and Article 7 of the Framework Decision means precisely, as Mr Hardy submits, that it is not limited, as central authorities are, to giving foreign judicial authorities practical and administrative assistance, although it seems to me that what is in issue here could very well fall into this class. It is arguable but debatable that the CPS stands in relation to an IJA in a position of or analogous to that of solicitor and client. The case of R v Director of Public Prosecutions ex p Thom CO/2894/94, decided under the former legislation, certainly gives support to that proposition.
  40. Mr Hardy reserves the question, not least because what was said by this court at paragraph 91 of its judgment in the previous incarnation of this case is not a complete answer to it. But no principle of law says that a foreign judicial authority may not legitimately turn to the CPS for advice on the preparation of a warrant as well as for the conduct of proceedings pursuant to it, just as, no doubt, United Kingdom judicial authorities seeking extradition from other states may legitimately secure advice and representation from any body or person, private or official, able lawfully to provide these.
  41. While it is necessary therefore in the present state of authority to regard the relationship as, at best, that of principal and agent, what matters, for the reason given by the Lord Chief Justice in paragraph 91 of the previous judgment of this Court, is that the Magistrates' Court has no power to make any coercive order against an IJA. What the magistrate can do is "call upon" the IJA for such information as is needed to decide whether a reasonably suspected or apparent abuse has in fact occurred. What he or she cannot do is to make a speculative request in order to see if any indications of abuse of process can be found.
  42. That, however, is not this case. The question here is whether what the district judge for good reason suspected had occurred, namely the partial drafting of the Spanish court's warrants by the CPS, is capable of amounting to an abuse of the English court's process. In my judgment, it is not. It represents neither an abdication of its functions by the IJA nor a usurpation of the IJA's functions by the CPS. It is a practical and, in my judgment, legitimate endeavour on the part of one country to get a suitable form of extradition process before the courts of another country. This being so, we do not need to embark on the terms in which the district judge's requirement of disclosure is couched. Whether it was framed as a direction, a requirement or a request, for the reason I have given, it was not, in my judgment, lawfully made.
  43. I would observe, however, that in a case where it is appropriate to seek such information, comity requires careful attention to be paid to the terms of the Lord Chief Justice's judgment. The Court is not exercising a coercive power. It is seeking assistance. What inferences it may legitimately draw if such assistance is not forthcoming is a question for another court on another day. Mr Hardy accepts that, in principle, an adverse inference may be drawn from a lack of any, or inadequate, response. If however the information to which the response would relate is protected either by public interest immunity or by legal professional privilege it would be necessary to go further into what was said by this Court at paragraph 91 of its previous judgment.
  44. What then is the test of a justiciable error in a case such as this? Mr Lewis points out that this is not a Section 34 appeal. Mr Hardy accepts that we can therefore interfere only if the district judge's finding is perverse or if he has made an error of law as to his own jurisdiction. In my judgment, the latter is the case here. The district judge has proceeded on the footing that the material before him was such as to be capable of constituting an abuse and so make a request to the IJA for fuller information appropriate. If he was wrong about this, as in my view he was, he had no power to make the request. It seems to me that this is a pure question of law. But insofar as it depends upon an appraisal of evidential or other material, I would, if necessary, hold that the material was not capable of founding or generating a rational suspicion of abusive conduct on the part of the IJA or the CPS.
  45. The highest that it can be put by Mr Lewis, and he finds no opposition in putting it this way, is that two paragraphs of the present (that is the third) warrant issued against his client have been added by or on the advice of the CPS. It is on no view a case of wholesale drafting by an agent albeit Mr Lewis, if necessary, would say that this is perfectly permissible if done on proper instructions. There is no reason whatever to suspect, in my view, that the CPS did this without instructions. None of Mr Lewis' grounds, which I set out earlier in this judgment, suggests more than that the IJA, having submitted two defective warrants in succession, sought the help of the CPS in formulating fresh warrants in suitable form. There is no basis for thinking that the CPS added this material without the prior or subsequent knowledge and assent of the Central Examining Court in Madrid. This is on the face of it the IJA's own warrant, and there was, in my view, nothing before the district judge enabling or entitling him to consider going behind it.
  46. The simple provision of drafting assistance to the IJA is not, in law, capable of constituting an abuse. It impacts neither on the principle of equality of arms, nor on the visible independence and impartiality of the Spanish Judicial Authority, on both of which much of Mr Lewis' argument has been predicated.
  47. I would therefore grant the order sought by the claimant, quashing the district judge's order of 14 February 2007 as having been made without power.
  48. (To counsel) Mr Hardy, I put my proposal in that form because the first limb of your application, albeit drafted no doubt by an English lawyer, is grammatically a mess and unintelligible. You might like to look at it again.
  49. MR HARDY: I had better look at it again, my Lord.
  50. LORD JUSTICE SEDLEY: I do not think - even if you can put it into English - you need it.
  51. MR HARDY: It was, as I recollect, a declaration that I had invited the court to make. It is at paragraph 35 in the skeleton argument.
  52. LORD JUSTICE SEDLEY: I have it in your application form at divider 3, page 3 of 5:
  53. "A declaration that the decision of the court to the effect that the claimant's conduct - - - - - "
  54. MR HARDY: I am sorry. One's sight goes a little awry in older age. Typing out pro formas on one's computer is apt to lead one into typographical/grammatical error. The order we sought - - - - -
  55. LORD JUSTICE SEDLEY: Do you need a declaration? You do not, do you?
  56. MR HARDY: For the avoidance of doubt, we would invite a declaration in the terms sought at paragraph 35 of the skeleton argument.
  57. LORD JUSTICE SEDLEY: (Pause) Mr Hardy, we do not think it is appropriate to make a declaration. We think that the judgment and the quashing order say everything that needs to be said.
  58. MR HARDY: Yes.
  59. MR JUSTICE NELSON: I agree that the claimant should succeed in this case for the reasons which my Lord has already given.
  60. LORD JUSTICE SEDLEY: Are there any other matters?
  61. MR LEWIS: To protect my client's interests: your Lordships will appreciate that this is a criminal cause or matter. The appeal would go to the House of Lords if there were to be one. I accept that your Lordships do not normally grant leave. I would say there is a question which could be considered here which goes to the heart of the EAW scheme. The question we have drafted having listened to your judgment, and I have shown this in advance to my friend, is:
  62. "does the extent of assistance that can properly be offered to an Issuing Judicial Authority by the CPS in a Part I case extend to drafting the EAW in whole or in part?"

    We would say that is a matter of public importance and a question which could be properly certified.

  63. LORD JUSTICE SEDLEY: Mr Hardy, you are happy that that is the question.
  64. MR HARDY: We are content with the drafting of the question. As to whether it constitutes a question of law of general public importance, we are neutral on the matter and leave that to the court. If the court certifies the point we strongly submit it should refuse leave for the reasons it ordinarily does.
  65. LORD JUSTICE SEDLEY: We will certify the question, Mr Lewis. Unless you want to persuade us on leave, I think we have to leave that to their Lordships.
  66. MR LEWIS: Thank you.
  67. MR HARDY: I hope you will forgive me putting a substantive application in this way. The first interested party is not publicly funded and his representation extends to the artillery field. Ours may be but small fire, but we seek costs against the first interested party.
  69. MR LEWIS: Normally costs follow the event, but there are three very short points here. Mr Hardy has changed his submission which he advanced below. He said the IJA can simply stamp the warrant (?) and now he says they have to adopt it. Secondly, it is only today he told us of the fact that drafting assistance was provided and why. That was never given to the judge below; it might have changed his position. Thirdly, he did not argue the error of law. Whether that makes any difference to your Lordships on costs is a matter for your Lordships.
  70. LORD JUSTICE SEDLEY: You have been the effective opposition all the way through. It was your application in the first place.
  71. MR LEWIS: Yes, but we are the interested party, not the defendant of course. On the previous occasion this court made no order as to costs.
  72. LORD JUSTICE SEDLEY: Why was that? You did not appear at that stage, did you?
  73. MR LEWIS: There was a change of position, that is right. They changed their position the last time and the Lord Chief Justice said in those circumstances he would not give costs.
  74. LORD JUSTICE SEDLEY: (Pause) Mr Hardy, we think you are
  75. entitled to your costs.

  76. MR HARDY: May I mention one other matter? As is often the case when judgments are given ex tempore, I took some small detailed notes. May I submit them to my Lord rather than canvass them in open court?
  77. LORD JUSTICE SEDLEY: Yes. And perhaps you could pass them over Mr Lewis' desk before you do so.
  78. MR HARDY: Indeed. I will certainly send Mr Lewis a copy and I will e.mail either my Lord's clerk or the learned assistant.
  79. MR LEWIS: To give us ample time to deal with, if so advised, lodging a petition, we would not normally do that until we have the transcript of your Lordship's ruling. Would it be possible to extend time? Your Lordships have power.
  80. LORD JUSTICE SEDLEY: I will ask the shorthand writer how soon we might have a draft. (Pause)
  81. MR LEWIS: There is a statutory timetable of 14 days. Can I ask your Lordships to extend it to 14 days from date of delivery of the judgment.

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