Jaso & Ors v Central Criminal Court No.2 Madrid [2007] EWHC 2983 (Admin)

[2007] EWHC 2983 (Admin)Case No CO/7307/2007
IN THE HIGH COURT OF JUSTICE
DIVISIONAL COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 14/12/2007
Before
LORD JUSTICE DYSONMR JUSTICE COLLINS
Between
Zigor Ruiz Jaso,AppellantsAna Isabel Lopez,AppellantInigo Maria Albisu HernandezAppellantCentral Criminal Court No.2 MadridRespondent
Richard Gordon QC and Ben Cooper (instructed by Messrs Birnberg Peirce) for AppellantsDavid Perry QC and Melanie Cumberland (instructed by Crown Prosecution Service) for RespondentHearing Hearing dates: 4th and 5th December 2007
Judgment
[1]This is an appeal by Zigor Ruiz Jaso, (“Ruiz”), Ana Isabel Lopez Monge (“Lopez”) and Inigo Maria Albisu Hernandez (“Albisu”) under section 26 of the Extradition Act 2003 (“the 2003 Act”) against an order made for their extradition by District Judge Tubbs on 17 August 2007 pursuant to section 21(3). These proceedings are governed by Part 1 of the 2003 Act.[2]On 23 April 2007, Judge Baltasar Garzon Real of the Central Court of Criminal Proceedings No 5 of the National Court in Madrid issued European Arrest Warrants (“EAWs”) in respect of the three appellants. These warrants (“the three warrants”) request the return of all three appellants to Spain for the purpose of standing trial for offences of membership of a criminal organisation and terrorism. On 26 April, the Serious and Organised Crime Agency (“SOCA”) certified the three EAWs in accordance with section 2(7) of the 2003 Act. On the following day, the three appellants were arrested in England.[3]On 1 May, in the cells at the City of Westminster Magistrate Court, Lopez was arrested pursuant to a further EAW which had been issued on 19 April 2007 by Judge Ismail Moreno Chamorro of the Central Magistrates’ Court No 2, Madrid. This warrant (“the Lopez warrant”) was certified by SOCA on 30 April. It requested the return of Lopez to Spain for the purpose of standing trial for offences of membership of the terrorist organisation ETA and possession of explosives.

The EAWs in more detail

[4]Each of the three EAWs issued on 23 April contains the following text under the heading “Crimes, Description of the circumstances”:
“The investigations show that, at least since April 2004 until now, and specifically in this very moment, 23rd of April 2007, Zigor Ruiz Jaso, Ana Isabel Lopez Monge and Inigo Albisu Hernandez, at least since the beginning of 2007 until this date, are members of terrorist organisation E.T.A. E.T.A. is an illegal organisation, and being a member of this organisation is a crime, according to Spanish law. Spanish law establishes that participating in a terrorist gang like E.T.A. is a crime, whether the defendant is in Spain or out of Spain. The three requested individuals –Zigor Ruiz Jaso, Ana Isabel Lopez Monge and Inigo Albisu Hernandez- belong to or form E.T.A.’s group or commando named Urderra. When this commando was dismantled on the 27th of March and following days, these three individuals remained as members of E.T.A., forming a new cell called “talde de reserve” (reserve group). At the moment we have information showing that these three individuals are in Great Britain, waiting to receive instructions from their superiors in order to travel to Spain and commit terrorist attacks. Zigor Ruiz Jaso allegedly participated in one of the last actions claimed by E.T.A., specifically in the attack made on the 28th of March 2006 against the Social Institute of the Navy in Motrico, Guipuzcoa. The attack consisted in the placement of a explosive which caused material damages. The three individuals could be using forged identity documents and be in possession of fire weapons. According to information received from the Information Services of the Civil Police, these three individuals could have with them fire weapons, something usual in members of E.T.A., as well as forged documents. The individuals would have received the weapons from their immediate superiors. Said weapons would have been stolen in different actions, the last of them taking place in August 2006 in France. Through the investigations developed with the collaboration of the Police Force, the Court has come to know that these individuals are collecting information about transportation means in order to leave the United Kingdom through different ways. One of these ways would take them to Santander. The Court knows that they have been studying this city and its surrounding area, which is the usual plan members of E.T.A. develop before committing a terrorist attack.”
Each of the warrants then contains a statement of the criminal records of all three appellants. The text relating to Ruiz, for example, includes the following:
“• On the 29th of April 2004, the Central Court of Criminal Proceedings Number Five of the National Court (Audiencia Nacional) ordered his capture, arrest and imprisonment for a crime of participation in armed or terrorist gang, being the defendant involved in judicial proceedings S 18/01 SEGI 15.02. • On the 18th of December 2002, the Central Court of Criminal Proceedings Number Three of the National Court (Audiencia Nacional) ordered his capture, arrest and delivery for a crime of terrorism, within judicial proceedings PV PA 58-02. • On the 29th of May 200 the Court of Preliminary Proceedings Number Two of Pamplona, Navarra, ordered his capture, arrest and delivery for a crime of occupation of property, being the defendant involved in judicial proceedings DP 50002B. • According to the statement of Arkaitz Agote Cillero, within proceedings 4/07 of the 28th of March of the Information Services of the Civil Police in Guipuzcoa, within preliminary proceedings 11/07 of the Central Court of Criminal Proceedings Number Two of the National Court (Audiencia Nacional), this individual would have participated as material author in the perpetration of a terrorist attack made on the 28th of February 2006 against the Social Institute of the Navy in Motrico, Guipuzcoa.”
There then follows in each case under the heading “Nature and legal classification of the crime” a reference to the crimes of “Participation in criminal organisation” and “terrorism”.[5]The Lopez warrant was stated to be in respect of the offences of membership of an armed gang and being in possession of explosives.

The grounds of appeal

[6]There are seven grounds of appeal. They are that the district judge was wrong: i) not to hold that both EAWs are defective in that they do not contain “particulars of any other warrant in the category 1 territory [Spain] for the person’s arrest in respect of the offence” as required by section 2(4)(b) of the 2003 Act; ii) not to hold that all of the EAWs are defective in that they do not contain “particulars of the circumstances in which the person is alleged to have committed the offence” as required by section 2(4)(c) of the 2003 Act; iii) to hold that it would not be an abuse of process to extradite the appellants despite the existence of material which suggested that the evidence relied on in support of the prosecution included the evidence of Arkaitz Agote Cillero which he said had been obtained by torture; iv) to hold that the extradition of the appellants would not violate their rights under articles 3, 5, 6 or 8 of the European Convention of Human Rights (“the ECHR”); v) to hold that the extradition was not barred under section 11(1)(b) and 13(b) of the 2003 Act on the grounds that, if extradited to Spain, the appellants “might be….restricted in [their] personal liberty by reason of [their]….political opinions”; vi) to hold that there was no risk that, in breach of the purported commitment by Spain to its speciality arrangements, the appellants would be prosecuted for offences that fall outside the offences for which their extradition was sought; vii) to hold that there was not, or might not be, an abuse of process in the Spanish prosecuting authorities alleging that the appellants were members of “Urederra” when a recent comprehensive investigation by the Spanish authorities into “Urederra” had not linked the appellants with that group.

Some preliminary observations

[7]In considering the grounds of appeal, it is necessary to keep in mind the purpose of the Framework Decision of 13 June 2002 on the European Arrest Warrant and surrender procedures between Member States 2002/584/JHA (“the Framework Decision”). This purpose is outlined in recitals (5), (6), (10) and (11) of the preamble:
“(5) The objective set for the Union to become an area of freedom, security and justice leads to abolishing extradition between Member States and replacing it by a system of surrender between judicial authorities. Further, the introduction of a new simplified system of surrender of sentenced or suspected persons for the purposes of execution or prosecution of criminal sentences makes it possible to remove the complexity and potential for delay inherent in the present extradition procedures. Traditional cooperation relations which have prevailed up till now between Member States should be replaced by a system of free movement of judicial decisions in criminal matters, covering both pre-sentence and final decisions, within an area of freedom, security and justice. (6) The European arrest warrant provided for in this Framework Decision is the first concrete measure in the field of criminal law implementing the principle of mutual recognition which the European Council referred to as the ‘cornerstone’ of judicial cooperation. … (10) The mechanism of the European arrest warrant is based on a high level of confidence between Member States. Its implementation may be suspended only in the event of a serious and persistent breach by one of the Member States of the principles set out in Article 6(1) of the Treaty on European Union, determined by the Council pursuant to Article 7(1) of the said Treaty with the consequences set out in Article 7(2) thereof. (11) In relations between Member States, the European arrest warrant should replace all the previous instruments concerning extradition, including the provisions of Title III of the Convention implementing the Schengen Agreement which concern extradition.”
[8]As Lord Bingham said in Dabas v High Court of

Justice in Madrid, Spain [2007] UKHL 6, [2007] 2 AC 31 para 4:

“The important underlying assumption of the Framework Decision is that member states, sharing common values and recognising common rights, can and should trust the integrity and fairness of each other’s judicial institutions.”
Lord Hope of Craighead said at para 18:
“These provisions show that the result to be achieved was to remove the complexity and potential for delay that was inherent in the existing extradition procedures. They were to be replaced by a much simpler system of surrender between judicial authorities. This system was to be subject to sufficient controls to enable the judicial authorities of the requested state to decide whether or not surrender was in accordance with the terms and conditions which the Framework Decision lays down. But care had to be taken not to make them unnecessarily elaborate. Complexity and delay are inimical to its objectives.”
[9]The other important general point is that the 2003 Act must be interpreted in conformity with the Framework Decision. I refer to Criminal Proceedings against Pupino (Case C-105.03, [2006] QB 83 at paras 32, 42 and 43.) At para 43, the ECJ said:
“When applying national law, the national court that is called on to interpret it must do so as far as possible in the light of the wording and purpose of the framework decision in order to attain the result it pursues and thus comply with article 34(2)(b) EU”
. See also Dabas, in particular paras 38 and 40 per Lord Hope.

The first ground: section 2(4)(b) of the 2003 Act

(b) of the 2003 Act

[10]Section 2(4) of the 2003 Act provides so far as material that the information required to be contained in an EAW must include:
“(b) particulars of any other warrant issued in the category 1 territory for the person’s arrest in respect of the offence; (c) 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;”
These requirements reflect article 8.1 of the Framework Decision which provides that an EAW “shall contain the following information set out in accordance with the form contained in the Annex:
“(c). evidence of an enforceable judgment, an arrest warrant or any other enforceable judicial decision having the same effect, coming within the scope of Articles 1 and 2; ………… (e). a description of the circumstances in which the offence was committed, including the time, place and degree of participation in the offence by the requested person;”
[11]It is not in issue that these requirements are mandatory and any substantive departure has the legal consequence that the warrant has not been validly issued and any person detained under the purported authority of such a warrant must be discharged.[12]Mr Richard Gordon QC submits that there was a breach of section 2(4)(b) in this case in that there was a previous warrant within the scope of section 2(4)(b) which is not mentioned in the three warrants or the Lopez warrant. The evidence of this previous warrant is to be found in an article in El Pais (28 April 2007). According to the article:
“The house in Sheffield was definitively identified and, after verifying the identity [of its occupants], Baltasar Garzon, investigating magistrate of the Central Court No.5, issued a first international arrest warrant three weeks ago. But it was rejected by the British judicial authorities, as it is understood that the warrant was not fully justified. Members of the Leeds anti-terrorist squad travelled to Madrid to meet with Garzon and Ismael Moreno and establish what basis there was for the Spanish suspicions.”
This previous warrant has not been shown to the court. Mr David Perry QC says that he is prepared to assume that it was formally issued, but not proceeded with on account of some defect and that it was issued in respect of the offences which are the subject of the EAWs with which this appeal is concerned.[13]The question raised by the first issue is whether the fact that particulars of the earlier warrant are not contained in the three warrants or the Lopez warrant is a breach of section 2(4)(b). Mr Gordon submits that it is. He says that the language of the statute is clear. It requires an EAW to contain particulars of all previous EAWs issued in the category 1 territory in relation to the offence for which the person’s arrest is requested in the index EAW. It is immaterial that the earlier warrant has been withdrawn or rejected by the requested state. Once it has been issued, its particulars must be included in the index warrant. He also submits that the words “within the scope of Articles 1 and 2” in article 8.1 of the Framework Decision show that the other warrants referred to in section 2(4)(b) are EAWs and do not include domestic warrants.[14]Mr Perry submits that section 2(4)(b) does not require particulars of all warrants (whether domestic warrants or EAWs) which have ever been issued in respect of a requested person to be included in an EAW as a precondition to its validity. He says that what is required to be included is particulars of the domestic warrant of arrest on which the index EAW is based. The purpose of this requirement is to enable the requested authority to ascertain that there are criminal proceedings in the requesting territory, subject to the scrutiny of a court, and that the EAW has not been issued on the basis of mere suspicion or whim. A requirement that particulars of all other previous warrants should be included would be unduly burdensome and unworkable and, therefore, cannot have been intended. The sanction for failure to include particulars of every warrant would be the invalidity of the EAW and the requested person’s discharge from the extradition proceedings. Such an interpretation would frustrate the spirit and purpose of the Framework Decision which requires loyal co-operation between Member States with a view to the speedy surrender of requested persons.[15]The district judge accepted the submission advanced by Ms Cumberland, which is essentially that advanced to this court by Mr Perry.[16]On the face of it, section 2(4)(b) is clear. It requires particulars to be given in the EAW of any other warrant issued in the category 1 territory for the arrest of the person in respect of the offence specified in the EAW. That appears to refer to any warrant, whether domestic or EAW, regardless of whether it has been rejected as defective by the requested state or whether the requesting state has decided not to rely on it.[17]I have referred to article 8.1(c) at para 10 above. The form contained in the Annex includes the following:- “(b) Decision on which the warrant is based: 1. Arrest warrant or judicial decision having the same effect……. Type………………………………………………………………. 2. Enforceable judgment ………………………………………….”[18]In view of the obligation, so far as possible, to interpret the 2003 Act in conformity with the Framework Decision, I propose to start by explaining what I consider to be the true meaning of article 8.1(c). The subparagraph is somewhat compressed. For example, it does not state that the EAW shall contain evidence of an enforceable judgment, arrest warrant or other judicial decision having the same effect in relation to the offence or offences for which the arrest is sought by the EAW. But it is clear that this is implicit.[19]Nor does the subparagraph state that the EAW shall contain evidence of an enforceable judgment etc on which the EAW is based, rather than any enforceable judgment that may have been issued in the past in relation to the offence or offences for which the arrest is sought. In my judgment, however, there are three reasons why, properly interpreted, the subparagraph should be so interpreted.[20]First, article 8.1 states that the EAW shall contain the information specified in subparagraphs (a) to (g) in accordance with the form contained in the Annex. The form is as much a part of the article as the body of the article itself. It contains much detail that does not appear in the main text. It must be given effect. For example, subparagraph (a) requires the EAW to state “the identity and nationality of the requested person”. The Annex specifies in some detail what information must be given regarding the identity of the requested person.[21]In relation to subparagraph (c), the form shows that the intention of the Framework Decision is to confine the evidence required to enforceable judgments etc on which the EAW is based. The reference to “Decision” in the form is shorthand for “an enforceable judgment etc.” within the meaning of article 8.1(c). The form refers, and refers only, to the “Decision on which the warrant is based”. Mr Gordon’s submission gives no effect to these words, but in my view, they clearly indicate that article 8.1(c) is only concerned with enforceable judgments etc on which the EAW is based. They clarify and qualify the apparently wide scope of article 8.1(c).[22]Secondly, as Mr Perry points out, there is a rationale for requiring the EAW to contain evidence of the judicial decisions on which it is based, whether they are judgments or warrants or other judicial decisions having the same effect. Such evidence enables the authorities of the requested state to be satisfied that there is some judicial basis for the EAW. I acknowledge that at first sight this may seem surprising in view of the fact that an EAW is itself a judicial decision: see article 1. But the explanation for this may lie in the fact that the EAW may not on its face show that it has been issued by or with the approval of a judge.[23]If Mr Gordon is right, the requesting state is obliged not only to include in the EAW evidence of the judgments on which the EAW is based, but also any earlier EAWs in respect of the same offence (and presumably also the judgments etc on which they were based). In my judgment, there is no reason to suppose that the parties to the Framework Decision would have intended article 8.1(c) to go this far. Mr Gordon suggests as a rationale that such evidence would enable the requested state to identify any inconsistencies between the index EAW and earlier EAWs. But in my judgment, it is fanciful to suppose that this is what was intended by article 8.1(c). Such a rationale flies in the face of the principle of “mutual recognition” (recital 6) and “high level of confidence between Member States” (recital 10) which are the bedrock of the Framework Decision.[24]Thirdly, article 8.1(c) requires evidence of an enforceable judgment, arrest warrant or any other enforceable decision having the same effect. In my judgment, as a matter of language this most naturally refers to any judgment or decision that is currently enforceable, not one that was enforceable at some time in the past. There is nothing in the language of subparagraph (c) to indicate that it is referring to judgments etc. that were enforceable at some time in the past. Further, for the reasons just given, there is no rationale for providing evidence of judgments etc that were enforceable at some time in the past, but no longer are.[25]For these reasons, article 8.1(c) requires the EAW to contain evidence of any enforceable judgment etc. on which the EAW is based. The previous EAW referred to in the El Pais article was not a judgment, arrest warrant or other judicial decision on which the index warrants were based, nor was it enforceable at the time of the issue of those warrants. These are sufficient reasons to reject the first ground of appeal.[26]In these circumstances, it is not necessary to decide whether Mr Perry’s submission that the enforceable judgment etc. is the domestic warrant on which the index EAW is based is correct. If it had been necessary to decide this issue, I would have rejected the submission. The concluding words of article 8.1(c) “within the scope of Articles 1 and 2” seem to me to rule out the possibility of interpreting article 8.1 as referring to a domestic judgment, arrest warrant or other judicial decision on which the EAW is based. The reference to articles 1 and 2 shows that the judgment, arrest warrant or other judicial decision referred to in article 8.1(c) must be a reference to an EAW. Those two articles are concerned with, and only with, EAWs. Article 1.1 defines an EAW as a judicial decision by a Member State “with a view to the arrest and surrender by another Member State of a requested person”. A domestic arrest warrant is not issued with a view to such arrest or surrender.[27]But for the reasons that I have given, I would dismiss the first ground of appeal.

The second ground: section 2(4)(c) of the 2003 Act

(c) of the 2003 Act

[28]Mr Gordon makes three points. First, he submits that the three EAWs are not sufficiently specific as to the dates of the appellants’ alleged participation in the terrorist organisation ETA. He draws attention to the paragraph which appears under the heading “Crimes. Description of the circumstances” viz:
“The investigations show that, at least since April 2004 until now, and specifically in this very moment 23 April 2007, Zigor Ruiz Jaso, Ana Isabel Lopez Monge and Inigo Albisu Hernandez, at least since the beginning of 2007 and this date, are members of terrorist organisation ETA.”
Mr Gordon submits that it is unclear when it is alleged their participation began. In my view, it is clear that something has gone wrong with the punctuation. If the comma after “this date” is transposed back to immediately after “Lopez Monge”, it is clear what the warrant is alleging. It is that the first two appellants have been members of ETA since at least April 2004; and that the third appellant has been a member since at least the beginning of 2007. I reject Mr Gordon’s submission.[29]His second point is that the three EAWs do not give particulars of the offence of terrorism contrary to article 573 of the Criminal Code which satisfy the requirements of section 2(4)(c) of the 2003 Act. I do not agree. The warrants allege that the three appellants are in Great Britain waiting to receive instructions to travel to Spain and commit terrorist attacks. It goes on to say that they are planning to go to Santander:
“they have been studying this city and its surrounding area, which is the usual plan members of ETA develop before committing a terrorist attack”
. In addition, there is a specific allegation against Ruiz that he participated in the attack on the Social Institute of the Navy in Motrico, Guipuzcoa. These are sufficient particulars for the purposes of section 2(4)(c).[30]Mr Gordon’s third point is in relation to the Lopez warrant. This alleges that Lopez has committed the offences of membership of the terrorist organisation ETA and possession of explosives. The warrant gives details of an allegation that two male members of ETA were killed when the car they were driving exploded when they were carrying explosives. The two men had in their possession the key to a property in which more explosives were found. The warrant alleges that the property was being used by Lopez and others who were members of ETA. Mr Gordon submits that the allegation that the property was being used by Lopez did not provide sufficient particulars of the offence to satisfy the requirements of section 2(4)(c). I do not agree. The allegation was that Lopez was a member of ETA and, through her use of the property where the explosives were found, in possession of the explosives. That is sufficient. Whether the evidence that I have outlined would be sufficient to lead to a conviction is a different matter.[31]I therefore reject the second ground of appeal.

The third ground: abuse of process and evidence obtained by torture

[32]It is not in dispute that the judge who conducts the extradition hearing has the jurisdiction to hold that the prosecutor is abusing the process of the court and to refuse to order extradition for that reason: see per Laws LJ in R (Bermingham) v Director of the Serious Fraud Office [2006] EWHC 200 (Admin), [2007] 2 WLR 635 paras 96-100. The jurisdiction is justified by the imperative that “the regime’s integrity must not be usurped” (para 97). The existence of this jurisdiction was confirmed in R (Government of the United States of America) v Bow Street Magistrates’ Court (“the Tollman case”) [2006] EWHC 2256 (Admin), [2007] 1 WLR 1157, para 82 where Lord Phillips CJ went further and applied to extradition proceedings the statement made by Bingham LJ in R v Liverpool Stipendiary Magistrate, ex p Ellison [1990] RTR 220, 227 in relation to conventional criminal proceedings:
“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 not 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.”
[33]Mr Gordon submits that there is material in the present case which shows that there is a real possibility that, at least in part, the evidence on which the prosecution against the appellants is based was obtained by torture. The evidence is that of Mr Cillero which is specifically referred to in the three warrants. That being so, he submits, there was an obligation on the district judge to conduct an investigation with a view to enabling her to decide whether the evidence of Mr Cillero had in fact been obtained by torture. Mr Gordon relies by analogy on the House of Lords decision in A v Secretary of State for the Home Department (No 2) [2005] UKHL 71, [2006] 2 AC 221 in support of his argument. In particular, he relies on the decision of the majority that, where a detainee raises a plausible reason for believing that material may have been obtained by torture, it was for SIAC to initiate relevant inquiries and consider whether it was established on the balance of probabilities that the information relied on by the Secretary of State was obtained by torture; and that, if satisfied that it was so established, the commission should decline to admit the material in evidence.[34]In my judgment, the relevant question in the present context is not whether there is a real possibility that evidence implicating all or any of the appellants was obtained from Mr Cillero by torture. Rather it is whether there is a real possibility that, if such evidence was obtained by torture, the Spanish court will admit it. Unless there is a real possibility that the evidence will be deployed against the appellants in the Spanish courts, it cannot be an abuse of process to extradite them to Spain. That is why this abuse of process argument is closely linked to the question whether there is a risk that the appellants’ article 6 rights will be violated if they are extradited. In my judgment, the decision in A is not relevant.[35]I agree with the district judge that the correct approach to the relevant question is that adopted by this court in Rachid Ramda v Secretary of State for the Home Department [2005] EWHC 2526 (Admin). There, an important part of the case against the appellant in the prospective trial in the requesting state was based on the evidence of a man called Bensaid. There was some independent evidence that he had been beaten by the French authorities during the course of his interrogation. It was argued on behalf of the appellant that there was a real risk that Bensaid’s evidence would be taken into account at his trial. At para 53 of the judgment of the court, Keene LJ said:
“We can see no evidence that the French courts would act in the way alleged. Moreover, the Secretary of State was entitled to take into account the fact that Article 6 of the ECHR forms part of French domestic law and indeed is superior to any provision contained in domestic law itself. Consequently, if a fair trial were to require the exclusion of Bensaid’s evidence, the French courts would be bound to exclude it. Nothing before us demonstrates that French courts do not faithfully seek to implement the terms of Article 6. We are in no position to say, any more than was the Secretary of State, that they would be bound to exclude it: that would depend on what findings of fact they made about the alleged ill-treatment, the effect of any such ill-treatment on what Bensaid said, and whether it is possible under French criminal procedure to admit such evidence but attach little weight to it. Those are matters for the French courts. But for present purposes it is enough that we have concluded that there was material on which the Secretary of State could properly conclude, without further enquiry, that the claimant would get a fair trial in France if extradited.”
[36]That case was governed by the Extradition Act 1989, but it does not seem to me that the difference between that Act and the 2003 Act is material for present purposes. If anything, there is a stronger case for adopting the approach of Keene LJ in cases governed by the 2003 Act in the light of the underlying assumption of the Framework Decision of trust in the integrity and fairness of the judicial institutions of the member states identified by Lord Bingham at para 4 of Dabas.[37]There is no evidence before us that the Spanish court would not faithfully seek to apply article 6. The position in Spain is no different from that described by Keene LJ in relation to France. As Scott Baker LJ said in Farid Hilali v The Central Court of Criminal Proceedings Number 5 of the National Court, Madrid [2006} EWHC 1239 (Admin) at para 77:
“the courts should give great weight to the fact that Spain is a western democracy, subject to the rule of law, a signatory of the European Convention of Human Rights and party to the Framework Decision; it is a country which applies the same human rights standards and is subject to the same international obligations as the United Kingdom. These are surely highly relevant matters which strongly militate against refusing extradition on the grounds of the risk of violating those standards and obligations.”
[38]In the context of a complaint about the possibility of breaches of article 3, in Boudhiba v Central Examining Court No 5 of the National Court of Justice in Madrid [2006] EWHC 167 (Admin), [2007] 1 WLR 124 para 48 Smith LJ accepted the submission 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.”[39]Mutatis mutandis, I would endorse this statement in relation to the present case. There is jurisdiction under Spanish law to exclude unlawfully obtained evidence. The facts in Farid Hilali (paras 22 and 23) show that evidence obtained unlawfully is inadmissible under Spanish law: in that case, the evidence of telephone intercepts was inadmissible because it had not been approved. Moreover, the appellants have placed before this court a number of reports to show that there are violations of the ECHR in Spain. These include the report of the Special Rapporteur on the question of torture dated 6 February 2004, the Human Rights Watch report “Setting an Example? Counter-Terrorism Measures in Spain” dated January 2005, and the more recent report by Amnesty International “Spain. Adding insult to injury: the effective impunity of police officers in cases of torture and other ill-treatment”. I shall return to the first of these reports when I deal with the fourth ground of appeal. For present purposes, it is sufficient to note that there is no complaint in any of these reports that the Spanish courts do not act in accordance with article 6. There is no suggestion that evidence obtained by torture is admitted. In these circumstances, I consider that there is no real risk that, if it were established that the evidence of Mr Cillero was obtained by torture, it would be admitted in the trial of these appellants. The correct forum for determining whether the evidence was in fact so obtained is the Spanish courts. The district judge was not required to investigate the allegation of torture herself. I therefore agree with her that this is a sufficient basis for dismissing the third ground of appeal.[40]In case she was wrong, however, the district judge went on to investigate the allegation that the statements by Mr Cillero implicating Ruiz had been obtained by torture. Having carefully considered the evidence, she concluded that she was “unable to rule that it is more probable than not that the evidence from Agote was obtained by torture.”[41]The relevant evidence is as follows. On 28 March 2007, Mr Cillero was detained. Following a request by the examining magistrate, the high court in Madrid ratified Mr Cillero’s being held in solitary confinement (“incommunicado detention”). At 21.45 hrs on 29 March, he was examined by a forensic surgeon. He told the surgeon that he had been arrested in a “non-violent way”. He had received some food and water and had had some sleep.[42]On 30 March, one of those arrested was released from custody on the ground that no sufficient involvement in the facts under investigation had been found. He was examined by the surgeon at 9.15 hrs and again at 16.00 hrs. The surgeon reported that Mr Cillero had said that he was very nervous. He had said:
“I cannot stand it any longer here and if I remain here I’m going to do something stupid. I will take my bandages off and I will hang myself”
. At 21.56 hrs he made a statement in the presence of the duty lawyer. In this statement, he made admissions that he was a member of ETA and gave some details of how he had been recruited and what he had done.[43]On 31 March, he was examined twice by the forensic surgeon. The surgeon reported that Mr Cillero had said:
“They put a hood on me, a mask and a bag until I lost consciousness 5 or 6 times. They do not allow me to sit. I am standing all the time.”
[44]On 2 April, he made a statement before the No 2 Central Examining Magistrates’ Court in Madrid. Present were the public prosecutor and the duty defence lawyer. Mr Cillero said that he wished it to be stated on record that during his stay on police premises he had not been allowed to sleep and had been forced to make a statement in the sense that he did under the threat of having a bag put over his head or being beaten. He now withdrew all the admissions that he had previously made. He said that on 5 occasions, they put a bag on his head, causing him to have asphyxia symptoms and on two occasions he lost consciousness.[45]Finally, in an undated statement which we understand was made for the purposes of the extradition proceedings, Mr Cillero gave more details of the alleged torture. He said that during the journey to Madrid (ie on 28 March) the Guardia Civil “made me keep my head bent down between my legs. Then the first few blows came. There were two of them sitting in the back of the car beside me and they began beating me on the head, shoulder and ribs”. On his arrival in Madrid, they interrogated him and used the bag:
“I thought I was going to suffocate….They made me spend the entire five days on my feet. There was a little spy hole in the door and if I fell down they would come in and start beating me. The light was on the whole time.”
He went on to describe the blows, threats and the use of the bag during the interrogation. He could hear them loading guns. They made constant reference to people who had died under torture and described the torture methods they were going to use on him.[46]This was the material that was considered by the district judge. She noted that the allegations of torture made by Mr Cillero were not supported by any independent observations. There were striking inconsistencies between the various accounts given to the forensic surgeon. It was in these circumstances that she reached the conclusion to which I have referred. If it were necessary to do so, I would hold that she was entitled to reach this conclusion.

The fourth ground: violation of the ECHR

[47]The principal foundation for Mr Gordon’s arguments in relation to all the articles of the ECHR which he submits are in play here is the submission that, if extradited to Spain, there is a real risk that the appellants will be subject to incommunicado police detention for up to 5 days before being brought before a judge. It is said that such detention is of itself inhuman treatment (article 3); it prevents an arrested person from being brought before a judge “promptly” (article 5(3)); it severely restricts the arrested person’s right to see a lawyer during the period of incommunicado detention thereby denying him the right to an effective defence, an essential element of the right to a fair trial (article 6); and it amounts to a breach of article 8.[48]It is, therefore, necessary to examine the evidence as to the risk that the appellants will be subject to incommunicado detention if extradited to Spain. Incommunicado detention is permitted under Spanish law in certain prescribed circumstances. Article 509 of the Law of Criminal Procedure 1882 (as amended ) provides:
“1. The court may exceptionally order detention or custody to be incommunicado, in order to prevent persons purportedly involved in the matter under investigation escaping justice, in order to prevent such persons acting against the legal interest of the victim, in order to prevent the concealment, alteration or destruction of evidence associated with the commission of the offence, or in order to prevent the commission of further offences. 2. A person may be kept incommunicado only for the time strictly necessary to execute the urgent measures for the prevention of the harms mentioned in the previous paragraph. In those cases where custody is ordered for an offence mentioned in Article 384 bis, or for other organised crimes committed jointly by two or more persons, the period of being kept incommunicado may be extended up to a total of a further period up to five days. ((Article 384 bis refers to an offence committed by a person who is a member of, or has links with, armed gangs or terrorist individuals)) However, in these cases, the court seised of the matter may order that the defendant remain incommunicado even after the order has been lifted, provided always that the later conduct of the investigation or the proceedings provide reason to do so. This latter period of being held incommunicado shall not in any case be longer than three days. 3. The incommunicado order or any extension of the order must give the reasons for adoption of the measure.”
[49]The Special Rapporteur’s report of 6 February 2004 said this about incommunicado detention:
“60. The Special Rapporteur fully shares the view repeatedly expressed by CPT that experience has shown that it is in the period immediately following deprivation of liberty that the risk of intimidation and physical ill-treatment is the greatest. It is crucial that in this period of police custody effective safeguards against torture and ill-treatment be ensured. These safeguards must weigh the more heavily when persons are held in incommunicado detention, as provided for in the Spanish Code of Criminal Procedure with respect to persons suspected of certain categories of crimes, including membership in or connection with an armed group, terrorists or rebels. The issue of incommunicado detention is always of special concern to the Special Rapporteur in view of the opinion repeatedly expressed by the Commission on Human Rights that prolonged incommunicado detention may facilitate the practice of torture and can in itself constitute a form of cruel, inhuman or degrading treatment, or even torture. It is during this period that the detainee is deprived of basic guarantees, in particular access to a lawyer or to a doctor of his/her choice, and when he/she is not able to contact his/her family or friends. It is true, as emphasized by the Spanish authorities, that in accordance with the Code of Criminal Procedure a detainee may be ordered held incommunicado only by a judicial authority and with proper substantiation; however, the Special Rapporteur has received ample information from a variety of sources that in this regard judicial control is more often of a formal and administrative nature than substantive and scrutinizing. The Special Rapporteur is also concerned that someone held incommunicado is not in a position to consult in private with a lawyer of his/her choice, or even with an assigned lawyer.”
[50]For the reasons given by Mr Perry, I do not accept that there is any real risk that the appellants will be subject to the incommunicado regime if they are extradited. In October 2005, the Secretary of State for Foreign and Commonwealth Affairs published a document entitled “Counter-Terrorism Legislation and Practice: A Survey of Selected Countries”. One of the countries surveyed was Spain. At para 94, the document states:
“In terrorist cases, the judge may order that the suspects be held incommunicado if they have ground to believe that knowledge of the suspect’s detention would prejudice the investigation. This involves a limitation of detainees’ rights in two ways: relatives may not be informed of the detention, and legal assistance is provided by a duty solicitor, not a lawyer of their own choice. All other rights, including habeas corpus, continue to apply. The initial incommunicado order is valid for 72 hours following arrest. It can be prolonged for a further two days upon the authority of the investigating magistrate. After this period the investigating magistrate must decide whether to commence criminal proceedings. If so, the investigative magistrate may order preventive detention, at which point the suspect is transferred from police custody to judicial custody (prison). At this point, he may extend the incommunicado period by five days, exceptionally followed by a final period of three days. Thus, it is possible for a person against whom criminal proceedings have begun to be held incommunicado for up to 13 days.”
[51]There is no evidence in this or any of the reports that we have seen that the incommunicado regime is applied otherwise than in accordance with article 509 of the Law of 1882 (as amended). In other words, a person will not be subject to the regime unless there are grounds to believe that knowledge of the suspect’s detention would prejudice the investigation. The appellants’ arrests in April 2007 were publicised throughout Spain. It was the fear that knowledge of their detention in the United Kingdom might prejudice the investigation that inspired the request by the Spanish Government in July 2007 to the prison authorities in West Yorkshire that the appellants be denied access to any social visits or telephone calls. This request was refused. It follows that it is now well known by the appellants’ families and supporters that they have been detained and are the subject of extradition proceedings. In so far as knowledge of the appellants’ detention might prejudice the investigation by the Spanish authorities, the damage has been done. There is, therefore, no cause for concern that knowledge of the appellants’ arrival in Spain following extradition might lead, for example, to the destruction of evidence or the alerting of co-conspirators. In these circumstances, incommunicado detention could not be justified in accordance with article 509. Detention is obviously justified, but the exceptional measure of detention incommunicado is not. Since there is no evidence that the Spanish authorities deploy incommunicado detention otherwise than in accordance with Spanish domestic law, there is no real risk that, if extradited, they will be subjected to it.[52]It follows that the central foundation for Mr Gordon’s submission that the extradition of the appellants will violate their ECHR rights has not been established. This is a “foreign case” as described by Lord Bingham in R (Ullah) v Special Adjudicator [2004] UKHL 26, [2004] 2 AC 323 para 9, ie a case in which “it is claimed that the conduct of the state in removing a person from its territory (whether by expulsion or extradition) to another territory will lead to a violation of the person’s Convention rights in that other territory.” At para 24, he said:
“While the Strasbourg jurisprudence does not preclude reliance on articles other than article 3 as a ground for resisting extradition or expulsion, it makes it quite clear that successful reliance demands presentation of a very strong case. In relation to article 3, it is necessary to show strong grounds for believing that the person, if returned, faces a real risk of being subjected to torture or to inhuman or degrading treatment or punishment....:.....Where reliance is placed on article 6 it must be shown that a person has suffered or risks suffering a flagrant denial of a fair trial in the receiving state........Successful reliance on article 5 would have to meet no less exacting a test. The lack of success of applicants relying on articles 2, 5 and 6 before the Strasbourg court highlights the difficulty of meeting the stringent test which that court imposes. This difficulty will not be less where reliance is placed on articles such as 8 or 9, which provide for the striking of a balance between the right of the individual and the wider interests of the community even in a case where a serious interference is shown. This is not a balance which the Strasbourg court ought ordinarily to strike in the first instance, nor is it a balance which that court is well placed to assess in the absence of representations by the receiving state whose laws, institutions or practices are the subject of criticism. On the other hand, the removing state will always have what will usually be strong grounds for justifying its own conduct: the great importance of operating firm and orderly immigration control in an expulsion case; the great desirability of honouring extradition treaties made with other states. The correct approach in cases involving qualified rights such as those under articles 8 and 9 is in my opinion that indicated by the Immigration Appeal Tribunal (Mr C M G Ockelton, deputy president, Mr Allen and Mr Moulden) in Devaseelan v Secretary of State for the Home Department [2002] IAT 702, [2003] Imm AR 1, paragraph 111: "The reason why flagrant denial or gross violation is to be taken into account is that it is only in such a case - where the right will be completely denied or nullified in the destination country - that it can be said that removal will breach the treaty obligations of the signatory state however those obligations might be interpreted or whatever might be said by or on behalf of the destination state".” "The reason why flagrant denial or gross violation is to be taken into account is that it is only in such a case - where the right will be completely denied or nullified in the destination country - that it can be said that removal will breach the treaty obligations of the signatory state however those obligations might be interpreted or whatever might be said by or on behalf of the destination state".”
[53]The threshold is, therefore, a high one. In relation to article 3, it must be shown that there are strong grounds for believing that the appellants would face a real risk of being subjected to torture or inhuman or degrading treatment or punishment. In relation to articles 5 and 6, it must be shown that there is a real risk of a flagrant breach of their ECHR rights. I shall deal with article 8 separately because Mr Gordon submits that what Lord Bingham said at para 24 in Ullah in relation to article 8 has been modified by what the House of Lords said in the later case of Huang v Secretary of State for the Home Department [2007] UKHL 11, [2007] 2 WLR 581.[54]As regards article 3, apart from the incommunicado detention point, Mr Gordon relies on the general evidence about torture in Spain contained in the reports to which I have referred at [para 36] above. It is perhaps sufficient to refer to the report by the Special Rapporteur. The report stated that Spain purported to comply with the protection of fundamental rights (paras 53-55). There were divergent views as to whether and to what extent torture and ill-treatment by the police and security forces did in fact occur. The Special Rapporteur concluded (para 58) that torture and ill-treatment was not a regular practice, but its occurrence was “more than sporadic and incidental”. Further, although the Spanish legal system did provide for investigations of abuse, it was “underutilised and often ineffective” (para 59). It follows that, once the incommunicado detention point is put to one side, little remains apart from some generalised evidence of sporadic torture. In my judgment, the appellants have come nowhere near showing strong grounds for believing that they that would face a real risk of being tortured or being subjected to other article 3 treatment if extradited to Spain.[55]Similarly in relation to articles 5 and 6. Once incommunicado is put to one side, little remains. The appellants have not shown that there is a real risk of a flagrant breach of their rights under these articles.[56]I turn finally to article 8. The district judge held that, even if the appellants were subject to incommunicado detention and prison dispersal, they had not established a case “of wholly exceptional circumstances which could be held to be an unjustified or disproportionate interference with their article 8 rights” (p 16). I refer to the prison dispersal policy at paras [59 and 61 below]. The reference to “exceptional circumstances is derived from Launder v UK (1997) 25 EHRR CD 67 (an extradition case) para 3 and Bermingham para 118 where Laws LJ said that the execution of a properly constituted extradition could be resisted on article 8 grounds only where a “wholly exceptional case” is shown “to justify a finding that the extradition would on the particular facts be disproportionate to its legitimate aim”. As I have said, in Ullah, Lord Bingham said that the difficulty facing an applicant will be no less where he is relying on article 8 than where he is relying on articles 5 and 6. Ullah was an article 9 case. Article 8 was directly in play in R (Razgar) v Secretary of State for the Home Department [2004] UKHL 27, [2004] 2 AC 368. In Huang, the House of Lords said that in an immigration case, a fair balance must be struck between the rights of the individual and the interests of the community. There was no test of exceptionality, but there was an expectation that the number of claimants not covered by the rules and supplementary directions but entitled to succeed under article 8 would be a very small minority (para 20).[57]Mr Gordon submits that the district judge was in error in applying an exceptionality test. I agree that it is not right to apply such a test as a formula for proportionality. So much is made clear by Huang. As Sedley LJ said in AG (Eritrea) v Secretary of State for the Home Department [2007] EWCA Civ 801 para 31:
“The fact that in the great majority of cases the demands of immigration control are likely to make removal proportionate and so compatible with article 8 is a consequence, not a precondition, of the statutory exercise”
. The same applies in relation to extradition. What is required is that the court should decide whether the interference with a person’s right to respect for his private or (as the case may be) family life which would result from his or her extradition is proportionate to the legitimate aim of honouring extradition treaties with other states. It is clear that great weight should be accorded to the legitimate aim of honouring extradition treaties made with other states. Thus, although it is wrong to apply an exceptionality test, in an extradition case there will have to be striking and unusual facts to lead to the conclusion that it is disproportionate to interfere with an extraditee’s article 8 rights.[58]The appellants do not rely on any right to private or family life acquired in England. Their case is that, by reason of the incommunicado detention and the prison dispersal policy which is applied in Spain, there will be an interference with their rights to respect for private life in Spain. For reasons that I have given, the appellants are not at risk if incommunicado detention is left out of account. Even if I had concluded that the appellants were at risk of incommunicado detention, I would have held that the interference with their article 8 rights was proportionate to the legitimate aim of honouring extradition treaties. The prison dispersal policy cannot avail the appellants: see further para 62 below. In my judgment, the article 8 case is hopeless.

The fifth ground: section 13(b) of the 2003 Act

(b) of the 2003 Act

[59]Section 11 of the 2003 Act provides that “if the judge is required to proceed under this section he must decide whether the person’s extradition to the category 1 country is barred by reason of …(b) extraneous considerations”. Section 13 provides that a person’s extradition is barred by reason of extraneous considerations if it appears that “….(b) if extradited he might be ….restricted in his personal liberty by reason of his….political opinions.”[60]The restrictions relied on are the incommunicado detention policy and the prison dispersal policy. I have already dealt with the incommunicado detention issue. As regards prison dispersal, the evidence is to be found in a report dated 28 June 2007 by members of the Bar of Madrid and Donostia-San Sebastian. The report states that Basque detainees are “subject to a prison policy related in its entirety to anti-terrorist policy, there the political has priority over the legal”. The report continues:
“Prison dispersal is therefore one of the first violations which these people suffer because of their political ideology and their [Basque] nationality. In this way, article 25.2 of the Constitution and article 12.1 of the General Organic Law of Prisons are violated since these people are distanced from there place of origin and, causing them to lose their social connections. This causes harm to family and friends, obliging them to travel hundreds and hundreds of kilometres to undertake visits.”
[61]Mr Gordon points to the low threshold for engagement of section 13, viz:
“he might be restricted…” and submits that the section 13(b) bar is made out. I do not agree. Most crimes are not motivated by political ideology. In principle, the application of section 13(b) should cause no difficulty where a person is charged with an offence which is not politically motivated. But where the offence is politically motivated, e.g. participating in an organisation which commits terrorist acts in order to further a political aim, the dividing line between the alleged crime and the political opinions which inspire the crime becomes blurred. In my view, the line which the members of the Spanish Bar seek to draw between the “political” and the “legal” is artificial. I find it impossible to say in a case such as this that the prison dispersal policy is motivated by political considerations rather than legal. The district judge was right to say that “to submit the defendants are being punished by reason of their political beliefs is untenable”
. There is no basis for a finding other than that all detainees charged with serious offences of terrorism, whatever their political beliefs, will be subject to the same or similar restrictions legitimately imposed to try to contain and obviate the risks to the public posed by such offences. There is no reasonable ground for thinking that there is a causal link between the restrictions on personal liberty and the appellants’ political beliefs.[62]In any event, as Mr Perry points out, there is no evidence as to where the appellants’ family members live or where the appellants are from. The appellants have been living in England and away from their families for a considerable period of time. Nor is there any evidence as to where they might be detained. I would, therefore, reject this ground of appeal.

The sixth ground: breach of specialty

[63]Section 17 of the 2003 Act provides that extradition is barred by reason of specialty if there are no specialty arrangements with the category 1 territory. For present purposes it is sufficient to say that there are adequate specialty arrangements if there are practical and effective arrangements in Spain to ensure that the appellants would only be tried for the offences for which they are extradited or other offences disclosed by the same facts: see section 17(2) and (3)(a) and (b).[64]The appellants’ case rests on what occurred in the case of Castillo v Kingdom of Spain and the Governor of HMP Belmarsh [2004] EWHC 1676 (Admin). In that case, a request for extradition succeeded in relation to three charges but was dismissed in relation to two charges which did not amount to offences under English law. Notwithstanding this, a prosecution was instituted against Castillo on charges in respect of which the application to extradite had been dismissed. Submissions were made on behalf of Castillo in Spain to the effect that he could not be tried for these offences. They were rejected on the ground that this was a matter for the trial court.[65]In the light of this case, Mr Gordon submits that the existence of speciality arrangements between Spain and the United Kingdom cannot be relied on.[66]I cannot accept these submissions for the reasons given by Mr Perry. First, I would endorse the approach adopted by Scott Baker LJ in Hilali at para 52:
“It seems to us a surprising submission that Spain is likely to act in breach of the international obligations to which it has signed up. There is no evidence before us that it has done so in the past and in these circumstances we would need compelling evidence that it is likely to do so in the future. By Article 34 of the Framework Decision Member States were requested to take the necessary measures to comply with its provisions by 31 December 2003. It is not suggested that Spain has failed to meet this implementation provision. It seems to us therefore that it is to be inferred that the specialty arrangements referred to in s.17(2) of the 2003 Act are in place.”
[67]It is to be presumed that the Spanish authorities will act in good faith in the absence of compelling evidence to the contrary. They are trusted extradition partners and parties to the Framework Decision. They have incorporated the specialty rule into their domestic law, so that the appellants have a remedy under their domestic law in the unlikely event of a breach of speciality.[68]Secondly, there is no compelling evidence that the Spanish authorities will act in breach of their specialty rule and article 27 of the Framework Decision. The Castillo case (which was governed by the Extradition Act 1989) does not provide such evidence. It appears that the proceedings have not yet been completed. Even if Castillo were to be evidence of a breach of specialty, it would be a single instance. There is no other evidence. Moreover, if there has been a breach of specialty in that case, the defendant has his remedy in Spanish domestic law.[69]Thirdly, an undertaking has been given by Judge Garzon, the judge sitting in Central Criminal Court No 5 of the National Court in Madrid in the following terms:
“In the event of extradition in the case of Zigor Ruiz Jaso (10.07.1978), Ana Isabel Lopez Monge (18.02.1971) and Inigo Maria Albisu Hernandez (07.01.1984), I, on behalf of the Spanish Judicial Authority, undertake the rule of speciality will be observed, in accordance with Article 24 of the Law 3/2003 of 14th March concerning European Arrest Warrants.”
Judge Garzon is a senior judge in the court. He issued the three warrants and will have the conduct of the trial against the appellants. Mr Gordon submits that this undertaking is not reliable because (i) the warrants are not well particularised (so that it may be difficult to decide whether an offence charged is within the scope of the warrants) and (ii) the experience of the Castillo case shows that Spain cannot be relied on to observe the specialty rule. But the warrants are adequately particularised for the reasons I gave in relation to the second ground of appeal and I have already dealt with the Castillo point. I see no reason for not accepting at face value the undertaking given by this experienced judge. Indeed, to refuse to accept the undertaking (in the absence of clear evidence which cast doubt on it) would be to undermine the trust and confidence which underpins this area of the law.[70]I would, therefore, dismiss the sixth ground of appeal.

The seventh ground: abuse of process in relation to “Urederra”

[71]The appellants’ argument is that an important element of the conduct alleged to constitute the offences in the three warrants is that the appellants were members of Urederra. It is submitted that this has to be viewed in the light of the recent comprehensive investigation of Urederra membership that has been carried out by an investigating magistrate. This investigation makes no mention of the appellants. It is submitted that, if the investigating magistrate had found any relationship between the appellants and Urederra, he would have been required by Spanish law to issue a Case Summary and Preliminary Indictments against them. He has not done so.[72]Mr Gordon submits that this shows that there is cause for suspecting that abuse of process may have occurred. He argues that it is to be inferred from the failure of the investigation to find any link between the appellants and Urederra that the decision to issue the EAWs was taken in bad faith. On any view, it raises the possibility that the warrants may have been issued in bad faith and therefore the possibility of abuse of process. In these circumstances, the district judge should have conducted an investigation to see whether there had been an abuse of process: see the Tollman case [EWHC] 2256 (Admin) paras 82-84. Two members of the Spanish Bar have written a report which includes the following:
“The investigative magistrate of Court No.5 has invented an alleged relationship between the [London] detainees and the Uredera unit to justify his request. This relationship has not been identified by the magistrate who is investigating the alleged Uredera unit – who in fact has all the information on that organization, and who certainly has more information than that of the Judge in Court No. 5, which demonstrates the false nature of the representations made. The extraditees have never had any relation with that alleged ETA unit. For the reasons expressed in the first point in the body of the current statement, the procedural bad faith which guides his actions is evident. What dominates above all is a manifest urge to incriminate the three accused, and not the willingness to undertake a judicial procedure in accordance with the law.”
[73]I do not consider that this report sheds any light on the question whether the failure of the investigation to find a link between the appellants and Urederra is evidence that these extradition proceedings are an abuse of process. The allegation of bad faith against the Spanish authorities is very serious. It amounts to saying that the prosecution is being brought by the authorities knowing that the case against the appellants is without foundation. In my judgment, the appellants have fallen far short of establishing even a prima facie case of bad faith. As I understand the argument, it is limited to the three warrants. It is based on the fact that they all state that the appellants “belong to or form ETA’s group or commando named Urederra”.[74]The central allegation in the three warrants is that the appellants are members of ETA. The warrants did not need to go further and identify the ETA cell to which they belonged. Nor did the Spanish authorities need to identify the evidence on which they relied in support of their case that the appellants were members of ETA. Further, it was no part of the function of the district judge to examine the evidential basis for the issue of the EAWs, still less to reach any conclusion as to whether the prosecutions have any prospect of success. To require her to do this would be to undermine the trust in the integrity and fairness of the judicial institutions of member states to which I have earlier referred. Under the guise of an abuse of process argument, that is precisely what the appellants are seeking to do.[75]In any event, the case against the appellants of membership of ETA does not wholly depend on showing that they were members of the Urederra cell until March 2007. It is alleged that their membership of ETA continued after 27 March when they formed a new cell. Thus, even if it were appropriate for the district judge to consider whether the appellants were members of Urederra and she decided that there was no evidence of such membership, that would not raise a prima facie case of abuse of process.[76]I would, therefore, reject the seventh ground of appeal.

Overall conclusion

[77]For all these reasons, I reject each of the grounds of appeal and would dismiss the appeals. The first two grounds raise points on the form and content of the EAWs. The remaining grounds seek in different ways to impeach the processes of the Spanish judicial authorities. What is common to all of these grounds is a lack of trust in these authorities. If our courts were to accede to such arguments, they would be defeating the assumption which underpins the Framework Decision that member states should trust the integrity and fairness of each other’s judicial institutions. This is a course that we should not take.[78]I agree.

Cited in 36 later judgments

and 27 more of the most senior