Partner Edward Grange commented on the cases of Giese v Government of the USA  EWHC 1480 (Admin),  4 W.L.R. 103, DC in Criminal Law Week.
Ousley J, in Hamburg Public Prosecutor’s Office (a German Judicial Authority) v Altun  EWHC 397 (Admin), unreported, 2 March 2011, DC, should not be taken as having sought to lay down a principle (albeit obiter) that, if a requesting state could have deployed evidence successfully to secure extradition at the first attempt, but failed to do so, it is an abuse of process to do so in a second set of proceedings. A mechanistic approach to abuse is inappropriate.
The key 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 that takes account of the public and private interests involved, the facts of the case and the fact that there is no doctrine of res judicata or issue estoppel in extradition proceedings. There are likely to be few instances where a requested person fails to substantiate a bar to extradition under the Extradition Act 2003 (CLW/03/43/16) but can succeed in an abuse argument. Here, there was no abuse where initial extradition proceedings, ending in a failed appeal by the respondent, were unsuccessful because of inadequate assurances (CLW/16/02/7), where a subsequent attempt to reopen the appeal, without obtaining amended assurances, failed, and where further, adequate assurances were then obtained and a fresh request to extradite made. The offences for which the appellant was wanted were serious, there was no question of any bad faith on the part of the respondent in bringing the fresh set of proceedings and there would be no unfairness to the appellant in allowing them to proceed. The respondent’s unsuccessful application to reopen the appeal did not provide an answer to whether a further request with further assurances would amount to an abuse of process.
Edward Grange commented:
“At first blush, this judgment appears harsh, particularly so when it is borne in mind that this was the fourth judgment of the court in this matter; Mr Giese having been successful on the previous three occasions. However, this was not an attempt by the government of the United States to re-litigate issues that had been ruled against them in the past. Indeed, it was acknowledged that the US government had not ignored the previous three decisions; to the contrary they had recognised them and provided further assurances to seek to satisfy the court.
“The fact that the court found there to be no bad faith on the part of the US government and, notwithstanding the principle that there should be finality in extradition proceedings, the absence of a doctrine of res judicata or issue estoppel in extradition proceedings were impediments to this appeal succeeding. That is not to say that repetitive attempts to extradite could never be considered to be an abuse of process but, in order for a case to succeed, there would have to be an element of bad faith and the offence would have to be towards the bottom-end of the scale of gravity.”
These comments were originally published in Thomson Reuters’ Criminal Law Week Issue 29, 2018.