Boudhiba v Central Examining Court No 5 of the National Court of Justice Madrid Spain [2006] EWHC 167 (Admin)

Case No CO/3636/2005[2006] EWHC 167 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Wednesday, 15 th February 2006
Before
LADY JUSTICE SMITHMR JUSTICE NEWMAN
Between
BOUDHIBAClaimantCENTRAL EXAMINING COURT NO 5 OF THE NATIONAL COURT OF JUSTICE MADRID SPAINDefendant
(Transcript of the Handed Down Judgment ofSmith Bernal WordWave Limited190 Fleet Street, London EC4A 2AGTel No: 020 7421 4040 Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Toby Hedworth QC and Mark Summers (instructed by Hayes - Burcombe) for ClaimantEdmund Lawson QC and Adina Ezekiel (instructed by CPS) for Defendant
JudgmentLady Justice Smith :Introduction
[1]This is an appeal pursuant to section 26 of the Extradition Act 2003 (the 2003 Act) against the order made by an appropriate judge, Deputy Senior District Judge Wickham, sitting at Bow Street Magistrates Court on 2nd June 2005. The district judge ordered the appellant, Hedi Ben Youssef Boudhiba to be remanded in custody to await his extradition to Spain.[2]Spain is a category 1 territory to which Part 1 of the 2003 Act applies. On 11th June 2004, a European Arrest Warrant (the first warrant) was issued by the Central Examining Court Number 5 of the National Court of Justice, Madrid. It sought the extradition of the appellant in respect of serious offences of or related to terrorism. In August 2004, a second warrant was issued by the Spanish Court, and was sent to London. It was in almost identical terms and superseded the first warrant. Acting pursuant to section 2(7) of the 2003 Act, on 12th August 2004, an officer of the National Criminal Intelligence Service certified that the Part 1 warrant had been issued by a judicial authority of a category 1 territory which had the function of issuing arrest warrants. On 20th August, the appellant, who at that time was already detained in HMP Prison at Belmarsh, pursuant to the Anti-Terrorism Crime and Security Act 2001, was arrested and brought before the Bow Street Magistrates Court for an initial hearing. An extradition hearing was fixed and commenced on 6th October 2004. This hearing was adjourned part heard on a number of occasions and was completed on 2nd June 2005.[3]As Lord Bingham observed in paragraph 2 of his speech in Office of the Kings prosecutor, Brussels v Cando Armas [2005] 3 WLR 1079, Part 1 of the 2003 Act is designed to provide a ‘simpler, quicker more effective procedure’ for the extradition of persons between member states of the European Union and is ‘founded on the Member States’ confidence in the integrity of each others’ legal and judicial systems’. The history of this extradition hearing and this appeal would suggest that, at the present time at least, the objectives of speed and simplicity have not yet been achieved.

History

[4]The appellant is aged 45 and of Tunisian origin. The respondent to these proceedings, the Spanish judicial authority, contends that he is accused in Spain of offences of belonging to a proscribed organisation (Al-Qaeda), terrorism and forgery of administrative documents and trafficking therein. Both the first and second warrants follow the pro forma warrant pursuant to the Framework Decision of 2002/584/JHA of the Council of the European Union. The pro forma warrant is intended to be used by all member states for European Arrest Warrants. It includes a list of ‘Framework offences’ which is reproduced in Schedule 2 of the 2003 Act.[5]Both warrants set out the circumstances of the appellant’s alleged conduct and include a description of the conduct of other persons being investigated by the Spanish authorities for similar and related offences. It is said that the appellant used a number of aliases including Fathi, Ammar Moula, Abilion Guillerme Lopes de Sousa Martin and Ali Ahmed Alefetori. It is said that he was a member of a fundamentalist terrorist cell linked to Al-Qaeda. He associated with known members of Al-Qaeda in Germany, in particular members of the Hamburg cell involved in the attacks on the USA in September 2001. He travelled to Istanbul in September 2001, using the name of Ammar Moula, with members of the Hamburg cell. It is said that he associated with others in Spain who, together, received money illegally obtained in Germany. This money was received for the purpose of assisting terrorist activity. It is said that the appellant was involved in a cell operating in Portugal which was providing forged passports for associates in other parts of Europe. These activities also took place in Spain and the appellant was involved in them. The passports were used to assist in terrorist activities. The appellant’s photograph was on a false Portuguese passport in the name of Abilion Guillerm Lopez de Sousa Martin found at a flat in Wood Green, London in January 2003 at which (it is said in the warrant) there were also found traces of ricin, believed to be intended for a terrorist attack on London. Lest there be any misunderstanding, I add that the UK investigations did not confirm the presence of any ricin at these premises.[6]The first warrant listed four offences relevant to this appellant and identified the relevant articles of the Spanish criminal code. These were:• Crime of Integration in Terrorist Organisation (Articles 515.2 and 516.2 of the Penal Code)• Crime of Terrorism (Article 572 of the Penal Code)• Crime of Collaboration with Terrorist Organisation ( Article 576 of the Penal Code)• Crime of Document Forgery (Articles 390 and 302 of the Penal Code). Also attached to that warrant was the list of Framework offences. Three offences were ticked. These were participation in a criminal organisation, terrorism and forgery of administrative documents and trafficking therein.[7]In the second warrant, upon which the order was made by the district judge, it was said that the warrant related to four offences but these were not set out in a list as they had been in the first warrant. The list of Framework offences was used; three boxes were ticked and the relevant provisions of the Criminal Code were identified as follows:• Participation in a criminal organisation: Articles 515.2, 516.2 and 576 of Spanish Criminal Code• Terrorism; Article 572 Spanish Criminal Code• Forgery of administrative documents and trafficking therein; Arts 390 and 392 Spanish Criminal Code[8]Annexed to the first warrant was an Order of Commitment made by the examining magistrate in Madrid on 18th May 2004. This Order was also referred to in the second warrant and was treated as being annexed also to that. Within that Order, under a section headed ‘Facts’ there was set out the same circumstances of conduct as were set out in the warrant itself. In a section headed, ‘Legal Bases’ there was an exposition of the way in which the law was to be applied to the facts alleged. Finally there was an order committing the appellant to custody and directing the issue of a warrant for his arrest.[9]Annexed to the order made by the district judge at Bow Street was a list of four charges. On this, it was said that the appellant was accused of conduct, which, had it occurred in the United Kingdom, would have constituted the following offences:(1) Hedi Ben Youssef Boudhiba, Ahmed Taleb, Said Bahaji, Abderazzak Mahdjoub, Fard Mahdjoub, Samir Mahdjoub and Francisco Garcia Gomez (between) 1st day of January 2000 and 31st July 2004 conspired together and with persons unknown to receive money or other property to be used for terrorist purposes.(2) (The same people between the same dates) conspired together and with persons unknown to provide money or other property to be used for terrorist purposes.(3) Between 1st April 2001 and 31st July 2004 belonged to a proscribed organisation namely Al-Qa’ida.(4) Between 1st September 2001 and 31st September 2001 used a false instrument, namely a document purporting to be a genuine passport in the name of Ammar Moula which was and which he knew to be false with the intention of inducing another to accept it as genuine and by reason of so accepting to allow him to travel from Spain using the passport.[10]On 29th October 2004, the district judge held that the conduct set out in the warrant amounted to offences falling within the European Framework and that, pursuant to section 64(2) of the 2003 Act, these were extradition offences. Accordingly, section 10 was satisfied. She added that, if she were wrong about that, the conduct comprised extradition offences under section 64(3) because the conduct occurred in Spain, it would constitute an offence under English law and would be punishable in Spain with imprisonment of at least 12 months.[11]On 10th December 2004 and thereafter, the district judge heard and eventually, on 2nd June 2005, rejected a submission on behalf of the appellant under section 25 of the 2003 Act that it would be unjust to extradite him by reason of his mental condition. The district judge also ruled on bars to extradition. She rejected a submission under section 13 that, if extradited, the appellant might be prejudiced at his trial by reason of his race, religion, nationality or political opinions. She also ruled against the appellant under section 21 of the 2003 Act. It had been contended for the appellant that his extradition would not be compatible with Articles 3 and 6 of the European Convention on Human Rights (ECHR). Finally, she rejected the appellant’s submission that the application by the Spanish authority was an abuse of process.[12]Each of the decisions made by the district judge was challenged in this appeal and several other grounds were also pursued. The notice of appeal contained 10 discrete grounds. The sixth ground was not pursued. I shall retain the original numbering.

The First Ground

[13]Mr Hedworth QC for the appellant submitted that the arrest warrant did not comply with the requirements of section 2(3)(a) of the 2003 Act and was not therefore a Part 1 arrest warrant within the meaning of that expression in the Act.[14]Mr Edmund Lawson QC for the respondent took a preliminary point on this ground of appeal. He pointed out that this argument had not been raised before the district judge and submitted that it could not therefore be raised before this court on appeal. Sections 27(2) and (4) provide that an appeal may be allowed where a new issue is raised or new evidence is presented at an appeal but only if that new issue or evidence would have resulted in the district judge deciding a question before him at the extradition hearing differently. Thus, submitted Mr Lawson, new issues can be raised and new evidence presented but this court cannot be asked to decide questions that were not before the district judge. The word ‘question’ has a specific meaning under the 2003 Act. The Act set out the various questions which the district judge has to answer at the extradition hearing. They begin at section 10, where the judge must decide whether the offences named in the warrant are extradition offences. At section 11 there are listed eight questions, the so-called bars to extradition. Questions can also arise under sections 20 and 21. Finally at section 25, the judge has the power to discharge the person whose extradition is sought if it appears to him that that person’s physical or mental condition is such that it would be unjust or oppressive to extradite him. Those are the only questions for the judge at the extradition hearing. Mr Lawson’s contention was that it was open to an appellant to argue a new issue but not to raise a question which had not been raised before. He accepted that it was at least arguable that, under section 11, the district judge had to decide the question raised by each potential bar to extradition, whether or not he received submissions. He accepted therefore that it would be open to an appellant to raise any bar to extradition even though it had not been raised below. But he submitted, the argument under section 2(3)(a) of the Act was not a question that could ever arise for the district judge at the extradition hearing.[15]I was initially attracted to this last submission. The structure of the Act purports to set out exhaustively the procedure to be followed. Certain questions are to be considered at the initial hearing; then others at the extradition hearing. On the face of it, the adequacy of the warrant and compliance with the requirements of section 2 are not questions to be considered at either hearing. From their position in the Act, it appears that they are preliminary matters which should be considered before the warrant is given a certificate by the designated authority in this country pursuant to section 2(7). However, we were told that, prior to certification, the warrant is scrutinised by the Crown Prosecution Service, who may seek the advice of counsel. This is necessarily a one-sided process. If the warrant is certificated, the arrest is authorised. If the person arrested considers that the warrant is inadequate and his arrest unlawful, he can apply for habeas corpus. But, if he does not do that and the case proceeds against him, must it be taken that he has waived any objection to the validity of the warrant? On reflection, I think not. The warrant founds the jurisdiction of the appropriate judge. Even if no objection is taken to the validity of the warrant, it must be assumed that the Court has considered and been satisfied as to its validity. Otherwise it could not have accepted jurisdiction. So, even though validity is not expressly mentioned in the Act as a question which must be determined, it must be treated as a question which has been answered. If, at any stage of the proceedings, the question of validity is raised, it calls jurisdiction into question. For that reason, despite the absence of an express power to consider compliance with section 2(3) or 2(4), I am satisfied that the appropriate judge is entitled to consider and determine whether, as the result of non-compliance with those provisions, he does not have jurisdiction. Further, the jurisdiction of this court is also dependent on the validity of the warrant. So, although section 27 permits this court to allow an appeal only if it is satisfied that the appropriate judge ought to have decided a question before him at the extradition hearing differently or would have decided it differently if he or she had considered the new issues or evidence raised on appeal, this court can still examine the validity of the warrant. If this court were to hold that the warrant did not comply with section 2, the proceedings would have been a nullity.[16]I revert now to the merits of Mr Hedworth’s submission that the warrant does not comply with section 2(3)(a). Section 2 of the Act provides:(1) This section applies if the designated authority receives a Part 1 warrant in respect of a person.(2) A Part 1 warrant is an arrest warrant which is issued by a judicial authority of a category 1 territory and which contains – (a) the statement referred to in subsection (3) and the information referred to in subsection (4) or (b) ………(3) The statement is one that - (a) the person in respect of whom the Part 1 warrant is issued is accused in the category 1 territory of the commission of an offence specified in the warrant, and (b) the Part 1 warrant is issued with a view to his arrest and extradition to the category 1 territory for the purpose of being prosecuted for the offence.[17]Mr Hedworth contended that the warrant in this case does not contain a statement that the appellant is accused in Spain of the offence or offences specified in the warrant. He is right; it does not. He accepted that it is stated that the warrant was issued with a view to his arrest and extradition to Spain for the purpose of being prosecuted for the offences specified. That, he said, was not enough. It was not clear from the warrant whether the appellant was wanted because he had already been charged and a prosecution had begun or whether he was wanted for questioning in the course of investigation which had not yet resulted in a charge or the commencement of criminal proceedings. Mr Hedworth accepted that it was not necessary for the very words of section 2(3) to appear in the warrant but, he submitted, the position must be clear.[18]Mr Lawson contended that the words of the warrant were sufficiently clear in themselves, but that, if any doubt remained, the position was made quite clear from the accompanying Order of Commitment.[19]Both counsel agreed that the correct approach had been set out in Re Ismail [1999] 1 AC 320, where, on an application for habeas corpus in extradition proceedings under the Extradition Act 1989, the question arose as to whether the applicant was an accused person or a mere suspect. At page 326H, Lord Steyn said that the word ‘accused’ is not a term of art. It was a question of fact in each case whether the person passed the threshold test of being an accused person as opposed to a suspect. At page 327A, he said that there was a transnational interest in bringing to justice those accused of serious crimes. It followed that extradition statutes ought to be accorded a broad and generous construction, so far as the text permitted. Then at 327D he said:
“It is not always easy for an English court to decide when, in a civil law jurisdiction, a suspect becomes an accused person. All one can say with confidence is that a purposive interpretation of ‘accused’ ought to be adopted in order to accommodate the differences between legal systems. In other words, it is necessary for our courts to adopt a cosmopolitan approach to the question whether as a matter of substance rather than form the requirement of there being an accused person is satisfied.”
A little later at 327E, he continued:
“I for my part am satisfied that the Divisional Court in this case posed the right test by addressing the broad question whether the competent authorities in the foreign jurisdiction had taken a step which can fairly be described as the commencement of a prosecution.”
[20]More recently, in R(Bleta) v Secretary of State for Home Department [2005] 1 WLR 3194, Crane J had to consider a similar problem, namely whether an extradition request contained a statement that the claimant was unlawfully at large. He concluded that, although it was not necessary for the very words of the statute to be used in the request, the position had to be clear. His reasoning was that the requirements of the section are there for the protection of the person sought and the court should not make good any deficiencies by guesswork This decision was considered by the House of Lords in Cando Armas (supra) but it was not central to their decision and no concluded view was expressed. However, at page 1101A, Lord Scott of Foscote said that his provisional view was that if the words of the warrant were not clear and the position could not be unequivocally implied from what is included, the warrant would be bad.[21]In my view, this warrant does comply with the requirements of section 2(3). The warrant states that the appellant is wanted for the purposes of conducting a criminal prosecution, sentencing following conviction or executing a custodial sentence or detention order. I accept that there is some ambiguity in those words in that they do not make clear whether the person sought has yet been convicted. However, they would not be applicable if the decision to prosecute had not yet been taken. In any event, such ambiguity as there was is removed on the following page where it is made clear that the decision on which the warrant is based is the Order of Commitment dated 18th May 2004 and that there is not yet an enforceable judgment in existence. On the page following, there is a statement that the maximum sentence that can be imposed for the offences is 15 years imprisonment. I would accept Mr Lawson’s submission that that was enough in itself to make it plain that the appellant was an accused person and that proceedings had begun. I accept too that the position is confirmed by the Order of Commitment itself which states:
‘I order that a European Arrest Warrant be issued to the UK against Boudhiba so that he be placed before the Spanish courts in respect of these proceedings’
. It appears to me that that Order puts beyond doubt that there are already criminal proceedings on foot in Spain and that this appellant is accused within those proceedings. The first ground fails.

The Second Ground

[22]Mr Hedworth submitted that the request of the Spanish government is an abuse of the process of the English courts. He accepted that there was a heavy burden on him to prove this contention. The facts relied on were that, in March 2004, the appellant was interviewed as a suspect at the request of the Spanish authorities pursuant to the Mutual Legal Assistance arrangements. The topics covered in that interview were those facts, circumstances and offences now alleged in the warrant. The appellant exercised his right to silence. On 1st May 2004, a further request was communicated to the appellant’s solicitors by the Metropolitan Police asking that the appellant should be interviewed at the request of the Spanish authorities. It appeared that the request was that he be interviewed as a witness. His solicitors apparently asked for clarification or confirmation in writing that he was to be interviewed as a witness and not as a suspect. That clarification was received by letter dated 19th May. The appellant decided that he would not cooperate with the request. Not long afterwards, the warrant for his arrest was issued.[23]Mr Hedworth submitted that the Government of Spain was abusing the extradition process. It was not clear exactly what had been going on, he said, but it looked as though the extradition machinery was being used to secure the presence of an uncooperative witness or possibly to punish the appellant for not cooperating. He invited the court to draw the inference that the Government of Spain was acting in bad faith.[24]It seems to me that there are at least two possible explanations for this series of events. One is that there might have been a misunderstanding or failure of communication between Spain and the Metropolitan Police. Another is that there may have been some confusion within Spain. I note that the Order for Commitment was made on 18th May 2004, the day before the Metropolitan Police wrote to confirm that the appellant was to be interviewed as a witness. The authority seeking the interview may not have been aware of that Order. It may be that, at one stage, there was uncertainty within the Spanish prosecuting authority as to how this appellant should be treated. However, it is now known that, on 18th May, the examining magistrate made the Order for Commitment which founded this warrant of arrest. By that time, I am satisfied that the decision had been taken to prosecute the appellant. It would appear that that decision had not been communicated to the Metropolitan Police when they wrote their letter of the 19th May. As confusion or failure of communication is a real possibility, I would not be prepared to draw the inference that the warrant was issued as a device to secure the appellant’s presence or to punish him for his lack of cooperation.[25]If that confusion or failure of communication had resulted in any prejudice to the appellant, I might well have been prepared to say that the extradition proceedings were an abuse of process. If, for example, the appellant had agreed to be interviewed as a witness and had made potentially damaging admissions at a time when he was unaware of the existence of the Order for Commitment, he might have a real complaint. But, he did not; he declined to cooperate. He has suffered no prejudice as the result of these events. This ground of appeal must fail.

The Third Ground

[26]Ground 3 is closely related to Ground 1. It was contended that the warrant is invalid because it does not comply with section 2(4) of the Act, which requires that it should contain various specified items of information.

(c) , the warrant must contain:

“particulars of the circumstances in which the person is alleged to have committed the offence, including the conduct alleged to constitute the offence, the time and place at which he is alleged to have committed the offence and any provision of the law of the category 1 territory under which the conduct is alleged to constitute an offence.”
[27]Mr Hedworth contended that this warrant does not comply with the requirement to set out the provision of Spanish law under which the conduct is alleged to constitute an offence. He accepted that the relevant provisions of Spanish law were identified but submitted that section 2(4) required that warrant should set out the text of the Spanish legal provisions (presumably in translation) and not merely to identify them. He submitted first that it was clear from Article 8 (d) of the Framework Decision that the text was required. Article 8 provides that:
“The European Arrest Warrant shall contain the following information set out in accordance with the form contained in the Annex… (d) the nature and legal classification of the offence, particularly in respect of Article 2 [the Framework list provisions].”
It seems to me that the words used in Article 8 suggest that what is required is not the text of the provision of the Spanish Criminal Code but simply an identification of the nature of the offence (eg participation in a criminal organisation) and the legal classification of the offence (eg Article 576 Spanish Criminal Code). The fact that that is all that is required by Article 8 is not conclusive of the question as to what is required by section 2(4)(c) but it may be an indication. Only if the words of section 2(4)(c) go clearly beyond what is required by Article 8 will there be a greater requirement. (d) the nature and legal classification of the offence, particularly in respect of Article 2 [the Framework list provisions].”[28]Mr Hedworth also submitted that the text of the Spanish Code is necessary so as to enable the court in England to decide whether the facts alleged ‘fit’ the Spanish law. The definition of an extradition offence in section 64(3)(c) of the 2003 Act is identical to the definition in section 2(1)(a) of the Extradition Act 1989. That provision was considered by the House of Lords in re Evans [1994] 1 WLR 1006, where Lord Templeman (with whom other members of the Committee agreed) said that it was open to a person whose extradition was sought to make representations that the conduct described could not amount to the offence alleged by the requesting state. It was apparent from the report that, in that case, the full text was set out of the offences under Swedish law for which extradition was sought. Mr Hedworth contended that, although the issue before the House was not what had to be provided with the request, it was apparent from the decision that a full text in translation was required. As section 64(3)(c) contained the same definition of an extradition offence, it must still be open to a person whose extradition is sought to argue that the conduct alleged does not amount to the identified offence under the law of the requesting state. If he can argue that point, the full text of the foreign law is a necessary requirement.[29]Mr Lawson submitted that section 2(4)(c) requires only that the provisions of Spanish law should be identified; it does not require the provisions to be set out in detail. Moreover, the suggestion that the English court needs to decide whether the alleged facts ‘fit’ the Spanish law is misconceived. The English court has to decide whether the offences are extradition offences as defined in section 64 (2), (3), (4) (5) or (6). In no circumstance is it necessary for the court to consider whether the conduct alleged amounts to the Spanish offence identified in the warrant. Mr Lawson relied upon the dicta of Lord Scott of Foscote in Cando Armas (supra) where, at paragraph 30, he said:
“The definitions of what constitute an extradition offence for the purposes of Part 1 are based on the principle, recognised in international law, that states claim criminal jurisdiction over conduct which takes place within their territory. The judge need not concern himself with the criminal law of the requesting state when it is addressing the question whether the offence specified in the Part 1 warrant is an extradition offence.”
Mr Lawson submitted that in Evans, the House was considering a different question under different legislation from that which arises under this third ground of appeal.[30]I for my part accept Mr Lawson’s submissions on this point. In my view, section 2(4)(c) does not require the provision of the text of the law of the requesting state. The whole ethos underlying the Framework Decision is that the states who are a party to that decision trust each other to make requests in accordance with their own law. Some but not all of the provisions of section 64 require the English court to consider whether the conduct alleged would amount to an offence if committed in England. However, none of the provisions of section 64 require the English court to consider whether the conduct alleged amounts to an offence in the requesting state. The regime under the 1989 Act was different. The fact that one of the section 64 definitions of an extradition offence is couched in the same words as were used in section 2 of the 1989 Act does not, in my view, mean that the process that the court will undertake is the same. In my judgment, this warrant complied with the requirements of section 2(4) (c) and Ground 3 should fail.

The Fourth Ground

[31]Mr Hedworth contended that the fourth charge on which the appellant had been extradited could not stand because he had already been convicted of that offence in England and had served a sentence of imprisonment in respect of it. Under the principle of double jeopardy, he could not be tried again for the same offence. The fourth charge to which Mr Hedworth was referring was the fourth charge on the sheet appended to the order made by the English court. It related, as I have already said, to the use of a false passport in the name of Ammar Moula for the purpose of allowing the appellant to travel from Spain during September 2001. In support of the submission that this charge put the appellant at risk of double jeopardy, we were shown a charge sheet and a certificate of conviction which demonstrated that, in July 2003, the appellant was convicted in England of two offences of using a false passport knowing or believing it to be false with the intention of inducing immigration officials to accept it as genuine. One of these false passports had been found in the flat at Wood Green to which I referred earlier. It was a Portuguese passport in the name of Abilio Guilherme Lopes de Sousa Martin. It bore the appellant’s photograph and fingerprint. He pleaded guilty to using it on entry to the UK at Dover in 2002. It is apparent therefore that the fourth charge on the list related to the use of a different passport at a different time and in a different place from the one in respect of which the appellant had been convicted in the UK in 2003.[32]That, in itself is enough to dispose of Ground 4. However, it seems to me that there is a more fundamental objection to this proposed use of the list of charges attached to the order of the English court. This list plays no part in the new extradition procedure under the 2003 Act. It appears to have been provided by counsel for the Spanish authorities for the assistance of the district judge, in the event that she had to consider (for the purposes of section 64) whether the conduct alleged would amount to offences in this country. This list would serve no other purpose and could certainly not be used so as to inhibit the Spanish authorities from prosecuting the appellant for the offences for which they sought extradition, provided that the English court had been satisfied that the conduct relied on constituted extradition offences within one of the provisions of section 64. The Spanish authorities have not sought extradition in respect of the personal use by this appellant of any particular passport. They want to try him in respect of forgery and trafficking of administrative documents, which, it appears from the conduct alleged, will comprise or include passports. The fact that this appellant used a forged passport to enter England in 2003 might well be used as evidence in support of the allegation of forgery and trafficking. Mr Hedworth accepted, rightly in my view, that there is no reason why the evidence relating to the passport found in Wood Green should not be used against the appellant, so long as he is not convicted again of the offence of using it.

The Fifth Ground

[33]Mr Hedworth contended that the district judge was wrong to declare herself satisfied under section 10 that the conduct alleged in the warrant amounted to extradition offences within either subsection 2 or subsection 3 of section 64 of the 2003 Act. Before the district judge and before this court, the appellant submitted that the conduct did not amount to an extradition offence. The respondent submitted that it did but under section 64(3) and not section 64(2). Section 64(2) provides:
“The conduct constitutes an extradition offence in relation to the category 1 territory if these conditions are satisfied - (a) the conduct occurs in the category 1 territory and no part of it occurs in the United Kingdom; (b) a certificate issued by an appropriate authority of the category 1 territory shows that the conduct falls within the European framework list; (c) the certificate shows that the conduct is punishable under the law of the category 1 territory with imprisonment or another form of detention for a term of 3 years or greater punishment.” (a) the conduct occurs in the category 1 territory and no part of it occurs in the United Kingdom; (b) a certificate issued by an appropriate authority of the category 1 territory shows that the conduct falls within the European framework list; (c) the certificate shows that the conduct is punishable under the law of the category 1 territory with imprisonment or another form of detention for a term of 3 years or greater punishment.”
[34]The district judge held that the conduct set out in the warrant amounted to extradition offences under this subsection. It appears that it was accepted that the offences were European Framework offences. The district judge said that, having read the description of the conduct, she was satisfied of that and need look no further. I for my part would say that the district judge was wrong to find that section 64(2) was satisfied. Examination of the alleged conduct, the circumstances and the dates and places where events were said to have occurred, shows that the appellant was in the United Kingdom for an appreciable period. Although it is not clear from the warrant exactly when he came to England, it appears to me from information before us that he came to the UK in July 2002 and was arrested when trying to leave for Spain in July 2003. Whether he had been here throughout that time is not clear. However, on any view, it appears to me that some of the conduct which would amount to membership of a proscribed organisation took place in the UK. Subsection 2 could not apply to that offence. The allegation that the appellant was involved in receiving money from Germany for the purpose of terrorism appears to entail conduct which took place only in Spain and I would say that subsection 2(a) is satisfied. The conduct alleged in support of the offence of forgery and trafficking in passports clearly took place, at least in part, within the UK. While in the UK, the appellant had apparently agreed to go to Spain to collect ‘documents’ which were said to be ready. Subsection 2 could not be satisfied in respect of that offence. I should mention at this stage that neither party sought to argue before us that the district judge ought to have considered each alleged offence separately. It is not clear that she did so. I am satisfied that this should be done.[35]The respondent submitted that section 64(3) was satisfied. It provides:
“The conduct also constitutes an extradition offence in relation to the category 1 territory if these conditions are satisfied – (a) the conduct occurs in the category 1 territory; (b) the conduct would constitute an offence under the law of the relevant part of the United Kingdom if it occurred in that part of the United Kingdom; (c) the conduct is punishable under the law of the category 1 territory with imprisonment or another form of detection for a term of 12 months or a greater punishment (however it is described in that law).” (b) the conduct would constitute an offence under the law of the relevant part of the United Kingdom if it occurred in that part of the United Kingdom; (c) the conduct is punishable under the law of the category 1 territory with imprisonment or another form of detection for a term of 12 months or a greater punishment (however it is described in that law).”
[36]Mr Lawson submitted that, since Cando Armas, there could be no doubt that, provided that some of the conduct took place in the category 1 territory, it mattered not for the purposes of this subsection that some part of it also took place in the UK or elsewhere other than Spain. Mr Lawson submitted that some part of the conduct relating to each offence took place in Spain and that was enough.[37]As to the law, Mr Hedworth could not disagree but he contended that much of the conduct alleged took place wholly outside Spain. For example, the use of the false passport took place in the UK and the conduct in respect of the September 11th atrocities and of involvement in a Portuguese cell took place wholly outside Spain. These matters were wholly extra-territorial and, if extradition offences at all, could be so only by virtue of section 64(4). However, questions of extra-territoriality under section 64(4) are irrelevant if the requirements of section 64(3) were satisfied.[38]As to that, it is true that some of the alleged conduct took place outside Spain. But that does not matter so long as some of the conduct alleged in respect of each offence took place in Spain. In my view, it did. There is an allegation that, for a time, the appellant was living in Bilbao and was involved in the receipt of money from Germany which was used for terrorist purposes and also in the forgery and distribution of false documents including passports for use in terrorist activity. It is alleged that during this time he was a member of Al-Qaeda. In my judgment, that is enough to satisfy subsection 3(a).[39]As to subsection 3(b), it is necessary to consider whether the conduct constitutes an offence under the law of England and Wales. For this purpose, the list of English offences was relied on. Mr Lawson for the respondent argued that the alleged conduct disclosed the offences of conspiracy to receive money or property to be used for terrorist purposes and conspiracy to provide money or property to be used for terrorist purposes. This conduct would be contrary to section 15 of the Terrorism Act 2000. The conspiracies were based in Spain and some of the conduct alleged against the appellant took place (if at all) in Spain. Similarly, the alleged conduct amounted to the offence of belonging to a proscribed organisation namely Al-Qaeda, contrary to section 11 of the Terrorism Act 2000. Some part of that conduct took place in Spain, although some parts of it took place in the UK and in other countries for example Portugal and Germany. Those three offences were sufficient to cover all the conduct for which extradition was sought. In the court below, it had been argued that the conduct alleged disclosed a fourth offence, that of using a false instrument with intent, namely a document purporting to be a genuine passport contrary to section 3 of the Forgery and Counterfeiting Act 1981. This was the use of the passport in the name of Ammar Moula. However, the factual basis for that alleged offence was not clear on the face of the warrant. As I understood Mr Lawson’s submission, it appears that those representing the respondent in the court below may have thought it necessary or appropriate to list four English offences because it was stated on the warrant that there were four offences under Spanish law. However examination of the second warrant and comparison with the first showed that there was no specific allegation of using a false passport. The offences alleged in Spain were of a wider nature, corresponding to the English offences of conspiracy, the first two offences on the English list. There had been no need for the fourth English offence to be included. Subsection 3(b) could be seen to be satisfied by reference to the first three English offences on the list. So, submitted Mr Lawson, there was alleged conduct within Spain which amounted to an offence under English law and subsection (b) was satisfied in respect of all the alleged offences. There was, he submitted, no suggestion that the offences did not carry the necessary level of punishment to comply with subsection (c).[40]Mr Hedworth pointed out that the conduct that was alleged to amount to an offence under the Terrorism Act 2000, was said to have spanned 1st January 2000 and 31st July 2004. As the Terrorism Act 2000 did not come into force until 19th February 2001, the conduct alleged could not satisfy subsection 3(b). In my view, this contention is quite without merit. First, the actual conduct alleged all post dates 19th February 2001. In any event, I do not think that there would be a failure to comply with subsection 3(b). If part of the conduct post-dated the coming into force of the Terrorism Act, in my view, that would be enough. I leave open the question of whether it would be sufficient if the Act is in force at the time of the application for extradition, even if all the conduct pre-dated the operation of that Act.[41]Mr Hedworth also submitted that, in respect of all alleged conduct, including that which occurred in Spain, subsection 3(c) requires the establishment of dual criminality. He relied on in re Evans, (supra) to which I referred in connection with the third ground of appeal. Mr Hedworth submitted that this subsection requires the production in translation of the text of the foreign law and that the judge should consider whether the conduct amounts to the foreign offences. For the reasons I gave in respect of the third ground, I reject that submission. Subsection 3(c) requires only that the English court be satisfied that, under Spanish law, the offences are punishable by more than 12 months detention. It was not suggested that that requirement was not satisfied.[42]I would accept Mr Lawson’s submissions on this issue and would hold that the district judge had been right to hold that the alleged conduct amounted to extradition offences pursuant to section 64(3).

The Seventh Ground

[43]The seventh ground was the first involving section 21 of the 2003 Act. It was contended that the Spanish authorities were seeking to exercise an exorbitant jurisdiction over conduct which had occurred in Portugal, the UK, the United States of America and Germany. Each of those states had carried out its own investigations into the appellant’s conduct and had decided not to prosecute him. For Spain to take upon itself the prosecution of conduct occurring in all those countries would be exorbitant. Under the Extradition Act 1989, an allegation that the requesting state was seeking to exercise an exorbitant jurisdiction was a matter for the Secretary of State’s discretion when reaching a final decision: see R (Al Fawwaz & others) v Governor of Brixton Prison & others [2002] 2WLR 101, HL. Now that the Secretary of State no longer has discretion to take such matters into account, questions such as this must be considered by the courts under section 21 of the 2003 Act on the basis that the exercise of such a wide jurisdiction would be incompatible with the appellant’s human rights.[44]Mr Hedworth submitted that the judge who had made the order founding this warrant had, on more than one previous occasion, attempted to exert an exorbitant jurisdiction. He gave as examples the case of Senator Pinochet and also an unsuccessful request for the extradition to Spain of Argentinian dictators on charges of genocide, said to have been committed wholly in Argentina. I say nothing about those cases. Because a judge may have made an exorbitant request on one or two occasions in the past does not mean that all his requests suffer from that defect. In this case, I have already said that I am satisfied that the request satisfied the requirements of sections 10 and 64. That in itself goes a long way to demonstrate that the present request does not seek to exercise exorbitant jurisdiction. However, I would accept that it is possible that a request might range so widely and have so tenuous a connection with the requesting state as amount to the exercise of exorbitant jurisdiction. It might then be appropriate for the court to consider that situation under the rubric of section 21. However, in my view, this case comes nowhere near meeting those criteria. The respondent’s case is that the group of people (of which the appellant was one) accused of this conduct was based in Spain. True, their activities ranged quite widely into other countries but that is the nature of modern terrorism. If a state could not prosecute an alleged terrorist because some of his activities took place outside the boundaries of that state, the law would be powerless to deal with serious and important crimes. In the present case, I am satisfied that there is a strong connection between the alleged conduct and the state of Spain and that there is nothing exorbitant about the proposed exercise of jurisdiction.

The Eighth Ground

[45]This ground was also founded on section 21. It was contended for the appellant that his extradition to Spain to face the charges outlined in the warrant would violate his human rights under Articles 3, 5 and 6 of the ECHR. These contentions were raised before the district judge and she rejected them, after considering a large amount of evidence about such matters as the conditions of detention and availability of legal representation in Spain. All these submissions were renewed in the notice of appeal. However, before the hearing, the respondent submitted further evidence as the result of which those advising the appellant withdrew many of their contentions. For example, it had been said that, if returned to Spain, the appellant would be held incommunicado. The respondent’s evidence contained an assurance that that could not happen. So, that contention has been withdrawn. I say no more about those issues and will deal only with those on which the appellant still relies.[46]First, it is said that prisoners held in Spain on terrorism charges are subject to ill-treatment. There have been reports of beatings, sleep deprivation and such like. Although international human rights organisations have made recommendations for the eradication of these practices, the Spanish government has not heeded them. It is said that the attitude of the Spanish authorities is to say that such detainees are likely to make such accusations even though they are not true. Reports of ill-treatment are not properly investigated. If the appellant were sent to face such conditions, his Article 3 rights would be violated.[47]In reply, Mr Lawson submitted that, before this court could hold that the appellant’s extradition would be incompatible with his human rights, there would have to be very clear evidence that such violation was likely. He submitted that we should start from the position that Spain is a signatory of European Convention on Human Rights and that compliance should be expected. The workings of the Spanish legal and prison systems are subject to the control of the Spanish Courts and to the European Court of Human Rights in Strasbourg. Spain has an independent legal profession. If the anecdotal evidence produced to this Court were to have real foundation, one would expect to see cases of Article 3 breaches reported from Strasbourg.[48]I accept Mr Lawson’s submission. Although there is before us some anecdotal evidence of ill treatment of suspects before trial, I do not consider that this gives rise to a real fear that, if extradited, this appellant’s Article 3 rights would be violated. If returned, he will not be held incommunicado; he will have access to a lawyer at all times. If he has any complaint about his treatment, he will be able to seek a remedy.[49]Second, it is said that the conditions under which defence lawyers have to prepare for trial are such as amount to a breach of their clients’ Article 6 rights. There is a policy of dispersing terrorism suspects in prisons in all parts of the country. This causes difficulty for lawyers who need to see their clients to take instructions. Also, it is said that defence lawyers are poorly paid in Spain. In my view, these difficulties come nowhere to a breach of a detainee’s human rights. The fact that a lawyer may have to travel some distance and may be poorly paid does not mean that there are inadequate facilities for trial preparation or representation. The district judge found that the Spanish lawyers undertook their duties conscientiously and there was evidence on which she was entitled so to find.[50]Further it is said that telephone communications between lawyers and their clients in custody are not confidential. Prison guards are within earshot and communications may be tape recorded. Such interference amounts to a breach of Article 6: see Campbell v United Kingdom [1993] 15 EHHR 137, S v Switzerland [1992] 14 EHRR 670 and UK v Brennan [2002] 34 EHRR 507. I accept without hesitation that, if such conduct occurs, it could amount to a breach of Article 6.[51]Mr Lawson submitted that the evidence relied on was anecdotal and that this Court should not be prepared to hold that there was such a substantial risk of an unfair trial that it would be wrong to extradite the appellant. If the appellant has any difficulties in the pre-trial period, he can complain about them through his lawyers and, if necessary to Strasbourg. I accept those submissions. It is not every account of bad practice which will give rise to the conclusion that a return to face trial will amount to a breach of Article 6. There must be a real danger that the bad practice will occur and that nothing can be done to stop it.[52]Third, it was submitted on the appellant’s behalf that the length of detention which can precede a trial in Spain is dependent upon the length of sentence which can be imposed on conviction. In a case of terrorism, it is four years. It was submitted that this long period of detention is not merely a theoretical possibility; it happens in practice. An example was given of a group of terrorists arrested in November 2001 and tried in the autumn of 2005. It was submitted that these factors give rise to a breach of Article 5(3) of the Convention (trial within a reasonable period). To detain a suspect for four years before trial in respect of an offence carrying a maximum sentence of 15 years amounted to anticipatory sentencing or preventative detention.[53]Mr Lawson submitted that the evidence of long detention was merely anecdotal. Maybe it was although the example given was not challenged. In any event, he submitted that there was no reason to suppose that such delay would occur in this case. The respondent had submitted evidence to the Court showing that detention for as long as four years can only occur where an extension of time is ordered. In general, the trial must begin within two years. Moreover, preventive custody is subject to judicial control and the detainee has the right to appeal not only to the authority which made the order but also to a higher level of authority. If the appellant had any complaint about the time elapsing before his trial, he could resort to the Spanish Courts and, if necessary to Strasbourg.[54]To English eyes, detention before trial for as long as four years seems too long. However, it is well known that, in some other countries, longer periods of pre-trial detention are considered acceptable. Spanish law permits detention for up to four years. If this is thought to amount to a breach of Article 5, it is surprising that no challenge to this law has been mounted in Strasbourg. We have not been told of any such challenge. In the absence of any relevant decision of the Strasbourg Court, I do not consider that it would be right to conclude that an established feature of Spanish law amounts to a violation of Article 5.[55]Also, Mr Hedworth submitted that because detainees are kept in closed conditions, resembling solitary confinement, there would be a breach of Article 3 (inhuman or degrading treatment). Here again, there is in my view, no evidence that raises a real concern that this will happen to the appellant. If he considers that his human rights are being violated by the conditions of his detention, he can take action.

The Ninth Ground

[56]This is the third ground raised under section 21 of the 2003 Act. As I have said, the appellant is of Tunisian origin. He claims to have a well-founded fear of being returned to Tunisia on the ground that he will be tortured. The district judge held that his fears were honestly held. The appellant contends that, if he is extradited to Spain, the time will come (either on acquittal or after serving his sentence following conviction) when he will be returned to Tunisia by the Spanish authorities. Although the Spanish authorities have given an undertaking that they will not extradite the appellant to Tunisia without the consent of the UK Government, they have given no assurance that they will not return him to that country. While the risk remains that that will occur, extradition to Spain will violate his Article 3 rights.[57]One can well understand why the Spanish Government is not prepared to give an open ended undertaking never to return the appellant to Tunisia, either in any circumstances or without the consent of the UK Government. If the appellant is convicted of offences of terrorism and serves a term of years in Spain, the UK would have no further responsibility for him; he is not entitled to live here, unless he is granted asylum and, so far as we are aware, he has not been. The Spanish Government would naturally not wish to give an undertaking that he should not be returned to Tunisia under any circumstances. There might be regime change which would render it safe for the appellant to return. What this argument comes down to is whether the Spanish Government can be trusted to comply with its duty properly to consider any application for asylum in Spain which the appellant might make when he is free to do so. I for my part am not prepared to hold that there is a real danger that the Spanish authorities will not honour their international obligations in that regard.[58]For that reason, I would hold that the ninth ground of appeal fails.

The Tenth Ground

[59]Before the district judge, the appellant presented psychiatric evidence to support his submission, under section 25 of the 2003 Act, that his mental condition is such that it would be unjust or oppressive to extradite him. The district judge received reports from two psychiatrists, Dr Taylor and Dr Bell, both instructed on the appellant’s behalf. Their view was that the appellant was suffering from clinical depression with psychotic features, complicated by post-traumatic symptoms. He was said to be suffering from visual and auditory hallucinations. He was said to be suicidal. These symptoms were necessarily based largely on the appellant’s own accounts of his symptoms. In October 2004, Dr Taylor expressed the view that the uncertainties of his situation and the conditions of his detention were probably exacerbating the appellant’s condition. Extradition would probably lead to further deterioration and an increased risk of suicide. Dr Taylor considered that, if there were any further deterioration, the appellant might require treatment under the Mental Health Act. That would, as we understand it, entail transfer to a secure mental hospital. By the date of district judge’s decision, there was no evidence of such deterioration. Nor, as the district judge observed, was there any suggestion that the appellant was unfit to plead or stand trial. As to the possibility that he might be or might become so, the respondent had put in evidence that, following extradition, the appellant would be psychiatrically examined. Also, there are facilities for the psychiatric treatment of prisoners in specialised centres in Spain.[60]During one of the several adjournments of the extradition hearing, a report was sent to the district judge from another psychiatrist, Dr Silva. This report had not been commissioned by either party; indeed it appears that it was commissioned by the Prison Service, possibly in response to the views expressed by Drs Taylor and Bell. Dr Silva had interviewed the appellant; he had also examined all the available medical records and discussed the appellant with other health professionals. He did not confirm the diagnosis of the other psychiatrists. He drew attention to the discrepancies between the appellant’s various accounts and expressed the view that his known history strongly suggested the absence of a ‘severe and enduring mental illness’. The implication was that the appellant’s claims that he was suffering symptoms were dishonest.[61]The district judge concluded that it would not be unjust or oppressive to extradite the appellant by reason of his mental condition. Following her decision, the appellant instructed a new legal team and fresh medical evidence was sought. A psychiatrist, Dr T.H. Nayani, was instructed but we do not appear to have his report. Also, a full psychological assessment was undertaken by a consultant psychologist, Ms Tunstall. Her conclusion was that the appellant was at the lower end of the borderline range of intelligence. She estimated his IQ at 70 to 75. She expressed reservations about the accuracy of this estimate. She thought it might be an underestimate. She did not think that the appellant was deliberately underperforming but said that there were cultural factors which might affect his performance.[62]Ms Tunstall’s report was available only very shortly before the hearing of the appeal. It had not been considered in detail by the appellant’s psychiatrists. However, Dr Nayani had read it and sent an email to the appellant’s solicitor in which he expressed some tentative views. He said first that the results of the tests may affect the weight which a clinician is entitled to attach to the appellant’s reports of his psychiatric symptoms. He also said that, if the appellant is of genuinely low intelligence and if the psychiatric symptoms reported by him are genuine, it may be that he is unfit for trial.[63]In reliance on that evidence, Mr Hedworth made a conditional application to adjourn the hearing of the appeal. He invited the court to hear all the argument and then, if it were minded to dismiss the appeal on Grounds 1 to 9, to adjourn the hearing of Ground 10 so that the parties could have the opportunity to consider the impact of Ms Tunstall’s opinion and to obtain any further evidence if they so wished. The respondent opposed the suggestion that the appeal should be adjourned for further evidence.[64]It seems to me that this issue should be determined now. These proceedings have already taken many months. I am prepared to approach the matter on the basis that there is a real possibility that, on exhaustive investigation, it might emerge that the appellant is unfit to stand trial. There is, however, no evidence that he is currently in need of psychiatric treatment such as would require reliance on the Mental Health Act.[65]It is important, in my view, that the court should keep its eye firmly on the statutory question posed by section 25. The question is not whether the appellant is suffering from a psychiatric disorder with or without the added disadvantage of low intelligence; it is whether, by reason of his mental condition it would unjust or oppressive to extradite him. Spain is a civilised country. The evidence shows that, if extradited, proper examination will be made to ascertain whether the appellant is fit to stand trial. Such examination will also establish whether the appellant is a suicide risk and whether he is in need of psychiatric treatment. So, I would conclude that, even though it may turn out that the appellant is of low intelligence and might be unfit to stand trial, it is not unjust or oppressive to extradite him to Spain. I would refuse the application for further adjournment and would also hold that the tenth ground of appeal fails.[66]For the reasons I have given, I would dismiss this appeal. Mr Justice Newman: I agree.67. LADY JUSTICE SMITH: We now formally hand down the judgment in this case, the effect of which is that the appeal is dismissed. Are there any consequential orders?68. MISS EZEKIEL: No, my Lady.69. MR SMITH: There are two matters so far as the appellant is concerned. There will, in due course, be a written application for leave to appeal to the House of Lords and certification. I have spoken to those who represent Mr Boudhiba. They are content for that application to be judged on the basis of the papers rather than any necessity for an oral hearing.70. LADY JUSTICE SMITH: I must warn you that I will not be in the building for the next two weeks after Friday.71. MR SMITH: I will make sure that is passed on. The second matter --72. LADY JUSTICE SMITH: I want that to be plain, because you may run into time difficulties.73. MR SMITH: I appreciate that. The second matter is an application for legal aid assessment.74. LADY JUSTICE SMITH: No objection to that. You may have that.75. MR SMITH: Very much obliged.

Cited in 35 later judgments

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