Hilali v Governor of HMP Whitemoor & Ors [2007] EWHC 939 (Admin)

[2007] EWHC 939 (Admin)

Case No CO/9725/2006

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 25/04/2007

Before

LADY JUSTICE SMITH

MR JUSTICE IRWIN

Between

FARID HILALIClaimant

GOVERNOR OF HMP WHITEMOORFirst Respondent

CENTRAL COURT OF COMMITAL PROCEEDINGS NO 5, THE HIGH COURT, MADRIDSecond Respondent

THE SECRETARY OF STATE FOR THE HOME DEPARTMENTIntervener

Alun Jones QC & Ben Brandon (instructed by Arani & Co) for Claimant

John Hardy (instructed by The Crown Prosecution Service) for Respondents

David Perry QC & Victoria Ailes (instructed by The Treasury Solicitors) for Intervener

Hearing Hearing dates: 22/23 February 2007

Judgment

Lady Justice Smith : This is the judgment of the court.

Introduction

[1]This is an application by Application for Writ of Habeas Corpus ad Subjiciendum by Farid Hilali who has been detained in prison following the completion of extradition proceedings arising from the issue, on the 29 April 2004, of a European Arrest Warrant (EAW) by the Central Court of Criminal Proceedings Number 5 of the National Court of Madrid, Spain to whom we will refer hereafter as the issuing judicial authority (IJA). The applicant was arrested pursuant to the EAW on 28th June 2004 and extradition proceedings ensued, pursuant to Part 1 of the Extradition Act 2003 (the Act). An extradition order was made by Senior District Judge Workman on 1st June 2005. The statutory appeal pursuant to section 26 of the Act was dismissed by the Divisional Court (Scott Baker LJ and Openshaw J) on 26th May 2006. Thereafter the applicant’s solicitor indicated an intention to seek permission to appeal to the House of Lords. On 16th November, 2006, the Divisional Court refused to certify a point of law of general importance and the statutory extradition process was at an end.

[2]However, during the period between May and November 2006, the applicant’s legal team had obtained new information, which they contended undermined the basis on which the EAW had been enforced and rendered the applicant’s detention unlawful. They invited the British authorities not to return the applicant to Spain pending an application for a writ of Habeas Corpus. The applicant remains detained in HMP Whitemoor. The governor of that prison is the respondent to this application but has not appeared. The application has been opposed by the IJA (acting through the Crown Prosecution Service (CPS)) and by the Secretary of State for the Home Department (SSHD), who has been given permission to intervene.

[3]The grounds for the application are that proceedings in Spain against another defendant (a man named Yarkas), in a trial of the same allegations as those faced by the applicant, have resulted in the acquittal of Yarkas of the most serious charge following the trial and in the quashing of his conviction on the second most serious charge, on appeal to the Supreme Court. The prosecution supported the quashing of that conviction. The contention is that the evidence against this applicant is to all intents and purposes the same as that which was available to the prosecuting authority in Yarkas’s case. Therefore, the applicant cannot be convicted and the basis of his extradition has been undermined. It is however, important to note that Yarkas’s conviction for a third offence (which amounted to an offence of involvement in a terrorist organisation) was upheld by the Supreme Court and he has been imprisoned for 12 years.

The Content of the European Arrest Warrant

[4]Part 1 of the Act gave effect to the obligations imposed on and accepted by the United Kingdom pursuant to the Framework Decision of the Council of European Union and the surrender procedures between Member States (2002/584/JHA). The Framework decision was intended to introduce a speedy and efficient means of surrender between members states of those accused or convicted of crime. It was intended to be based upon the mutual trust and confidence that member states had in the fairness of each others’ judicial procedures. The intention behind the EAW was that the requesting state would not need to set out the evidence on which it relied in support; it would be sufficient if the warrant identified the offences alleged to have been committed and provided a description of the manner in which they were said to have been committed, including the date, hour, place and degree of participation of the person sought. On receipt of that information, there would be no need for the requested state to consider the adequacy of the evidence. The only questions for the court of the requested state should be the identity of the person arrested, the validity of the warrant, whether the warrant includes an allegation of an extradition offence, whether there is any bar to extradition and whether extradition would breach the arrested person’s Convention rights.

[5]The basis upon which the IJA sought the applicant’s return was set out in the EAW. Unfortunately, the IJA did not complete the EAW in the way in which it was intended to be completed. At subparagraph (e) of the proforma warrant, where the IJA was supposed to specify the number of offences for which the applicant was sought, the box was left blank. Below that, where the IJA was supposed to describe the manner in which the offences had been committed, there was set out eight pages of script, comprising partly a description of conduct but mainly a recitation of the evidence on which the prosecutor intended to rely. It alleged terrorist activities by a group of men, led by Yarkas (alias Abu Dahdah) which group included the applicant Hilali, (whose aliases included ‘Shakur’ and ‘Shukri’).

[6]The description began as follows:

“Based on the information incorporated in the proceedings it may be inferred that there is a link between Barakat Yarkas (Abu Dahdah) and the terrorist attacks of 11th September 2001 in New York, Washington and Pennsylvania, attacks that resulted in thousands of victims. According to this information, Abu Dahdah maintained certain contacts with several individuals related to those facts.”

There followed a list which included Shakur, the applicant. So it appeared that the applicant was wanted for trial on an allegation that he was involved in the terrorist conspiracy leading to the events of 11th September 2001. There then followed a description of the content of intercepted telephone conversations, allegedly between the applicant and Yarkas, which occurred in August 2001. On 6th August the applicant was alleged to have said that he was going to do important things in a month’s time. On 26th August, the applicant was alleged to have said that he was taking lessons and had entered ‘the aviation sector’. He claimed that they had ‘slit the throat of the bird’. There were further conversations between the two men in late September, when the applicant appeared to be warning Yarkas that he thought he was being watched by the police. During some of these conversations, there was reference to a man named Abdulrahman, from which it could be inferred that this man was known to both Yarkas and the applicant.

[7]The EAW then explained that the telephone calls of August 2001 showed that the applicant was ‘isolated from his previous contacts and was taking part in a ‘commando’ (meaning a terrorist unit), which was being trained on aircraft, only a few days before the attacks on the USA’. This led to the conclusion that the applicant was one of the men who participated in the attacks although plainly he had not been one of the suicide pilots, because he was still alive after the attacks. That seems to have been the core of the case against the applicant. However, the EAW went on to recount the content of another intercepted telephone conversation, between Yarkas and Abdulrahman, in which Shakur or Shukri was mentioned.

[8]The EAW also referred to a man named Said Bahaji, who had been a member of a commando led by Mohamed Atta. Bahaji had lived in Germany but had ‘escaped’ to Pakistan on 3rd September 2001. His whereabouts were unknown. However, there was evidence that Bahaji was an associate of Yarkas in that Yarkas’s Madrid telephone number had been found by German Police at Bahaji’s flat after he had disappeared. The police also found a photograph of Bahaji’s wedding on which were pictured various people, including two of the suicide pilots of 11th September 2001. Thus, Yarkas was said to be an associate of a man (Bahaji) who was close to the Hamburg cell which was directly involved in the attacks on the USA. The EAW then alleged that there was evidence that the applicant had for a time lived in Granada with a man named Jasem Mahboule.

[9]In a summary passage, it was said that analysis of the evidence showed that Yarkas could be clearly linked with leaders of Al Qa’eda and with some of the participants in the attacks on the USA and that the evidence showed ‘direct involvement’ in the preparation of said attacks, ‘collaborating with infrastructure, covering and coordinating the movements in Europe of the group members’ of Yarkas, the applicant and several others. It was then stated that ‘links and relations’ had been established between Yarkas and the applicant since 1998 and between those two and other men (all of whom had close links with Abu Quatada) and all of whom had been indicted in the current proceedings.

[10]There then followed an account of the applicant’s history. In 1987, he was said to have arrived in the UK with the intention of studying at University. In 1997, whilst still in England, he had taken part in a training course at Tunbridge Wells at a site which was said to have been used for military training. Then in 1998 he had gone to Saudi Arabia, Pakistan and Afghanistan, using forged British travel documents. He was arrested at Karachi Airport and returned to the United Emirates in January 1999. Yarkas mediated for his liberation and he was deported to Morocco. From there he went to Spain and lived in Granada with others including Jasem Mahboule. The information about Yarkas mediating the applicant’s release appears to have come from intercepted telephone calls between Yarkas and Abdulrahman. Some time after his arrival in Spain, the applicant was deported to Morocco. At that time he had a forged French passport. From Morocco, he stowed away on a ship to Gibraltar and then travelled through Spain to England in about October 1999. The following month he returned to Spain, where he remained until either the end of 2000 or early 2001, when he returned to England.

[11]Finally, in this section, it was asserted that, during the 45 days prior to the attacks on the USA on 11th September 2001, members of the commando that committed the attacks travelled constantly in aeroplanes in order to analyse them and to be prepared for the day of action. It was during this period that the telephone conversations between the applicant and Yarkas had occurred in which the applicant had referred to being in the aviation sector.

[12]In the section of the EAW where the requesting IJA is expected to identify the offences for which the person is wanted, the following appeared:

“Facts could constitute a crime of participation in terrorist organisation, envisaged in articles 515.2 and 516.2 of the Criminal Code, and of as many crimes of terrorist assassination envisaged in articles 572.1 paragraph 1 to article 139.1 and 16 of the criminal code as the number of victims in the three terrorist attacks of the 11th September 2001 in the United States.”

[13]Finally, where the warrant requires the requesting IJA to mark on the list of so called Framework offences any offence allegedly committed by the person requested which carries a sentence of 3 years imprisonment or more, the IJA had written:

‘Participation in a terrorist organisation’

. Those exact words do not appear in the list of Framework offences.

The Hearing before the Senior District Judge

[14]The first issue raised related to identity and was resolved against the applicant. The main issue for determination, pursuant to section 10(2) of the Act was whether the EAW disclosed an extradition offence (as defined in section 64). The Senior District

Judge considered section 64(3) which 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 occurred in that part of the United Kingdom; and (c) the conduct is punishable under the law of the category 1 territory with imprisonment … for a term of 12 months or a greater punishment…”

[15]It was submitted on behalf of the applicant that the EAW did not demonstrate that any part of the conduct alleged had taken place in the Part 1 territory (Spain). Most of the description of the conduct alleged was derived from evidence of international telephone calls and it was not possible to tell where the person to whom the applicant was speaking to was. However, the judge declared that he was satisfied that Yarkas was at the centre of the conspiracy and that he lived in Madrid. He then said:

“Those conversations link the (applicant) with Yarkas in Spain and with the conspiracy to attack the World Trade Centre and the Pentagon on 11th September 2001. If that conduct had occurred in England it would have constituted the offence of conspiracy to pursue a course of conduct that would necessarily amount to or involve the commission of the offence of murder of persons in America. I am therefore satisfied that the conduct alleged amounts to an extradition offence under section 64(3).”

[16]The judge then considered what the position would be if he were wrong to hold that part of the conduct had taken place in Spain. He considered section 64(4) which provides:

“The conduct also constitutes an extradition offence in relation to the category 1 territory if the following conditions are satisfied: (a) the conduct occurs outside the category 1 territory; (b) the conduct is punishable under the law of the category 1 territory with imprisonment … for a term of 12 months or a greater punishment …; (c) in corresponding circumstances equivalent conduct would constitute an extra-territorial offence under the law of the relevant part of the United Kingdom punishable with imprisonment … for a term of 12 months or a greater punishment.”

[17]The judge held that the conduct alleged amounted to a conspiracy to commit an offence of destroying damaging or endangering the safety of aircraft contrary to section 2 of the Aviation Security Act 1982. That offence is an extra-territorial offence. So is conspiracy to commit that offence. The offence is punishable in the UK with life imprisonment and in Spain by 30 years imprisonment. Thus the Senior District Judge was satisfied, that, if no part of the conduct had taken place in Spain so as to rule out section 64(3), then the conduct amounted to an extradition offence under section 64(4).

[18]The judge considered the bars to extradition and the applicant’s Convention rights. He held that there was no reason why an order should not be made. He made the order which stated, inter alia:

“I am satisfied that the offence(s) specified in the Part 1 warrant is an/are extradition offences, namely: Participation in terrorist organisation.”

The Appeal to the Divisional Court

[19]The appeal raised many grounds. It was conducted against the background that, since the extradition order had been made, the trial of 24 alleged co-conspirators had taken place in Madrid and had resulted in twelve men being convicted of ‘integration in a terrorist group’. These included Yarkas, Mahboule and others mentioned in the EAW. A further five of those accused had been convicted of the lesser offence of ‘collaboration with a terrorist group’. Yarkas was also convicted of ‘conspiracy to commit terrorist killing’. He was however acquitted of ‘terrorist homicide’. Soon after the conclusion of the trial, the IJA had confirmed to the United Kingdom authorities that it still sought the applicant’s return. At the time of the appeal hearing in the Divisional Court, Yarkas had an appeal to the Supreme Court outstanding against his conviction of ‘conspiracy to commit terrorist killing’. The applicant claimed that Yarkas’s appeal would be supported by the prosecution and would result in that conviction being quashed.

[20]We do not propose to discuss the grounds of appeal in detail. Each ground was rejected and Mr Alun Jones QC, who appeared for the applicant before us (as he had done on the statutory appeal), accepted that he could not go behind the holdings of the Divisional Court on the appeal. However, what is germane for present purposes is that the Court upheld the approach of the Senior District Judge to section 64(3) of the Act. Scott Baker LJ pointed out that the focus of the EAW was on conspiracy to murder. The conspiracy had to be founded or maintained in Spain but for that purpose it was sufficient if any overt act in furtherance of the conspiracy had occurred in Spain. A number of alleged acts were said to have occurred in Spain. In particular, it was said that the Yarkas group, of which the applicant was a member, was involved in preparation for the attack on 11th September. The applicant himself had lived in Spain for a time. Section 64(3)(a) was satisfied. The conduct alleged would constitute an offence in this country if it were proved to have occurred and the conduct would be punishable in Spain by 30 years imprisonment. All the requirements of section 64(3) were satisfied. The Court did not consider what the position would be under section 64(4) if none of the conduct alleged had taken place in Spain.

[21]The final ground pursued on the applicant’s behalf was that, in the light of Yarkas’s pending appeal to the Supreme Court, which was to be supported by the prosecutor, the continuance of the extradition proceedings was an abuse of process. The submission was that, if Yarkas was found to be not guilty of conspiracy, there could be no case of conspiracy against the applicant. Scott Baker LJ dealt with this submission quite briefly. He observed that just because one conspirator was acquitted did not mean that there would be no case against another. There might be other evidence. Mr Jones also relied on a translation of the prosecutor’s submission to the Supreme Court, from which it appeared that the prosecutor was not at all sure who had been speaking to Yarkas on the telephone on 6th and 27th August 2001. However, Scott Baker LJ observed that this statement was made in the context of Yarkas’s appeal and was not directly concerned with the applicant. He also noted that the IJA still sought the applicant’s extradition notwithstanding the acquittal of Yarkas of the offence of terrorist homicide. There was no suggestion that the IJA was acting in bad faith in continuing to pursue its request.

The Basis of the Application for Habeas Corpus

[22]After the decision of the Divisional Court was handed down, on the 31st May 2006, the Supreme Court of Spain handed down its decision in Yarkas’s appeal. The conviction for conspiracy to commit terrorist killing was quashed, not only on the ground supported by the prosecution namely that the evidence was weak and vague but also on the ground that all the evidence of telephone intercepts was inadmissible as it had been obtained unlawfully. In Spain, telephone intercepts are admissible in evidence provided that the interception is given prior approval by the court. These intercepts had not been approved and indeed it seems clear that the rules had been deliberately flouted by those carrying out these intercepts. Without that evidence, the case against Yarkas on conspiracy failed. It was this information that led to the applicant’s legal team asking the Home Secretary to delay his return to Spain pending this application.

[23]The basis of the application for Habeas Corpus is that, now that the Supreme Court of Spain has ruled the telephone intercept evidence inadmissible, the entire foundation for the extradition order has been undermined. The continued detention of the applicant is unlawful and a breach of his

Article 5 Convention

rights. The applicant says that the appropriate remedy is a writ of Habeas Corpus which can issue, notwithstanding that the Extradition Act 2003 purports to provide a complete statutory code for the surrender of persons wanted in Part 1 territories.

[24]Three issues arise for decision. First, is Habeas Corpus available at all where extradition proceedings have taken place under Part 1 of the 2003 Act? The second and third arise only if the answer to the first is in the affirmative. They are: should Habeas Corpus be issued on the facts of the present case? Is the continuance of the extradition proceedings to the point of return an abuse of the process of the English Court?

The First Issue

[25]Mr Jones submitted that it is well established that the issue of a Writ of Habeas Corpus is available as a remedy to a person whose extradition is sought and can be obtained in proceedings outside the statutory proceedings. He relied first, on two cases in which Habeas Corpus had been issued in connection with extradition proceedings.

[26]In Pinto v Governor of Brixton Prison and another

[2004] EWHC 2986

, the Divisional Court was asked to grant Habeas Corpus on the ground that the EAW was ‘fundamentally deficient’. At the initial hearing, the district judge had remanded the applicant in custody to await the commencement of the extradition hearing. There was no statutory appeal against that decision; the applicant sought Habeas Corpus. The Court accepted that the EAW was deficient and that all steps taken pursuant to it were invalid. The court granted Habeas Corpus.

[27]Second, Mr Jones relied on Nikonovs v Governor of Brixton Prison

[2005] EWHC 2405

where Habeas Corpus was sought to secure the release of a person who, following arrest pursuant to an EAW, had not been brought before the appropriate court as soon as practicable after his arrest, pursuant to section 4(3) of the 2003 Act. Yet the district judge had refused to discharge the applicant pursuant to section 4(5). There was no statutory appeal from the district judge’s decision. The Divisional Court ordered the issue of Habeas Corpus, saying that the remedy was still available in circumstances in which section 34 of the Act did not apply. Section 34 provides that a decision of the judge can only be questioned in by way of appeal under the Act. However, there is no statutory appeal against preliminary decisions of the district judge, only against the decision to extradite.

[28]Thus, we accept that it is now well established that Habeas Corpus is available as a means of challenge to the correctness of a decision of a district judge to enforce an EAW taken at an early stage of proceedings, before the extradition hearing has begun. However, there is, so far as we are aware, no authority dealing with the availability of the writ after the extradition process, including the statutory appeal, has been completed.

[29]Mr Jones submitted that justice and common sense required that the remedy must still be available. There would be occasions when new circumstances arose after the completion of the appeal procedure which would demand that the decision to extradite must be reconsidered. Before the 2003 Act, the person to be extradited had the opportunity to make representations to the SSHD as to why he ought not to be returned. The 2003 Act had abolished that procedure and this had left a lacuna which could only be filled by allowing an application for Habeas Corpus. Otherwise there would be no effective way in which the new circumstances could be raised and dealt with.

[30]Mr John Hardy for the IJA agreed with Mr Jones that there was still a role for Habeas Corpus in the extradition process, although he submitted that it was limited to wholly exceptional cases.

[31]Mr David Perry QC for the Secretary of State submitted that Habeas Corpus is not available in any circumstances once the stage of proceedings has been reached where the statutory appeal provisions are available. He contended that this was made plain by section 34 of the Act which provides:

“A decision of the judge under this Part may be questioned in legal proceedings only by means of an appeal under this Part.”

[32]The ‘decision of the judge’ is the decision of the district judge at Bow Street Magistrates Court to make an extradition order. Section 26 provides for the person to be extradited a statutory appeal to the High Court on fact and law. Section 28 provides for an appeal against a refusal to make an extradition order. Section 32 provides for an appeal to the House of Lords from a decision of the High Court under either section 26 or section 28. In short, submitted Mr Perry, there is a comprehensive scheme for challenging the decision of the district judge. Nothing more is needed and nothing more should be allowed, given that it was the intention of Parliament, in passing Part 1 of the 2003 Act to comply with its Community obligations as set out in the Framework Decision. The purpose of the Framework Decision was to remove the complexity and potential for delay inherent in the old extradition procedures. To permit an application for Habeas Corpus in addition to the statutory procedures would be to undermine the legislative scheme and to contradict the plain words of the Act.

[33]We accept without hesitation or reserve all that Mr Perry urged upon us about the need for simplicity and expedition in dealing with the execution of EAWs. We would say, in parenthesis, that anyone who is familiar with the jurisprudence which has developed under Part 1 of the Act would be bound to observe that it has not succeeded in providing a simple and speedy process. However, that is no reason to disregard these laudable aims; nor would this court be justified in lightly making a decision which would or might have the effect of increasing the complexity of Part 1 proceedings or adding to the potential for delay.

[34]Mr Perry submitted that there was no need for any remedy additional to that provided by the Act. But what if there is no remaining challenge to the correctness of the judge’s decision (on the factual basis on which it was made) but the factual basis has completely changed since the decision? In the course of argument, the example was suggested that if A were to be ordered to be extradited to face trial for the murder of X but if after the conclusion of the extradition process and before A were returned, it were to be discovered that X was still alive; what procedure would be available to secure A’s release? The suggested answer was that the requesting state should withdraw its request. So it should, but what if it did not? It seems to us that, where a person has been deprived of his liberty as the result of a decision which is later seen to have been based on a false factual premise, but no appeal procedure is available to restore that person’s liberty, some other process must be available to fill the breach.

[35]We do not consider that, in the kind of circumstances that we postulate (the undermining of the factual premise of the judge’s decision) the further proceedings would amount to the questioning of the judge’s decision. Indeed, the proceedings would be based on the acceptance that the judge’s decision had been correct at the time but an assertion that the facts had changed to such an extent that the judge’s decision was undermined. Accordingly, such further proceedings would not be ousted by section 34.

[36]Mr Perry’s alternative submission, in the event that we considered that some further proceedings were necessary and appropriate to deal with a change of circumstances after the conclusion of the statutory appeal process, was that it was always possible for an appeal to be reopened under CPR 52.17. That would be the appropriate way of dealing with an exceptional problem, rather than a resort to Habeas Corpus.

[37]CPR Part 52.17 provides:

“The Court of Appeal or the High Court will not reopen a final determination of any appeal unless- (a) it is necessary to do so in order to avoid real injustice; (b) the circumstances are exceptional and make it appropriate to reopen the appeal; and (c) there is no alternative remedy.”

[38]It seems to us that there is one immediate and obvious objection to the use of this procedure: it does not and could not provide an opportunity to reopen an appeal which had already been dealt with by the House of Lords. Second, it seems to us that it is distinctly arguable that, in the kind of exceptional circumstances to which we have referred, there would be an alternative remedy, namely Habeas Corpus, so that relief might be refused on that ground. Third, it is our view that, where the liberty of the subject is in issue, Habeas Corpus is a far more appropriate remedy than the procedure envisaged by CPR Part 52.17. The basis for Habeas Corpus is that the detention of the applicant is unlawful. Nowadays, that test might be couched in terms of a breach of

Article 5 of the European Convention on Human Rights

. That is to be contrasted with the basis for reopening an appeal on the ground that such is necessary in order to avoid real injustice. We think that, if an applicant can demonstrate that his detention is unlawful, he should be entitled to the remedy of Habeas Corpus. It may be that an applicant who could demonstrate that an event had occurred which made his detention and return unjust might be able to invoke the procedure under Part 52. That is not for us to consider; we have to deal with an application for Habeas Corpus. Accordingly, it is our view that, in exceptional circumstances, Habeas Corpus should be available as a remedy additional to the statutory appeals procedures.

[39]In what kind of circumstances should the remedy be available? We are grateful for Mr Hardy’s helpful submissions on this subject. He suggested that the threshold for Habeas Corpus will only be passed where there is some development which subverts either the basis on which the EAW was issued by the IJA or the basis on which the decision was made either at first instance or on the statutory appeal. Further, an application for Habeas Corpus would never be appropriate if it would have been possible for the relevant point to have been raised in the course of the statutory proceedings. He stressed that applications for Habeas Corpus must not be allowed to become a re-run of the statutory proceedings. The Court must be vigilant to ensure that such applications do not become a tactical device to disrupt the scheme underlying the legislation or a means of extending the period before return.

[40]We do not understand Mr Jones to disagree with those submissions and we accept them. The occasions when Habeas Corpus will be available will be very rare. It appears to us that the remedy itself provides the answer to the question when it should be available. Habeas Corpus will only be appropriate where the continued detention of the applicant pursuant to the extradition process has become unlawful. That presupposes a fundamental change to the circumstances in which the (ex hypothesi) lawful order of the court had been made.

[41]Mr Hardy also submitted that changes in the way the case for extradition had been put would not suffice to justify the issue of Habeas Corpus. Nor, in a case in which the evidence to be relied on had been specified or summarised, would a shift in the evidence. The test would only be satisfied by something which went to the root of the case. We accept that the change must be something which goes to the root of the case, but we find it impossible to say that a change of approach or a shift in evidence could never be sufficiently fundamental to warrant the issue of the writ. As we have said, we think that the lawfulness of the detention and proposed return must be the touchstone. The Second Issue – Should Habeas Corpus be issued in this case? The Evidence Produced

The Second Issue – Should Habeas Corpus be issued in this case?

[42]In preparation for the application, the CPS sought to clarify whether the IJA still wished to pursue the return of the applicant. The IJA has not submitted any further information in support of the EAW. In an undated statement produced to the Court at a preliminary hearing in December 2006, Mr Pedro Rubira, who claimed to be authorised to make submissions on behalf of the IJA, said that the applicant was still wanted for trial on all three matters set out in the EAW, namely direct complicity in the murder of all those who died in the terrorist outrages on 11th September 2001, alternatively indirect complicity in those murders and also participation in a terrorist organisation. He recognised that the Supreme Court had ruled the intercept evidence inadmissible in Yarkas’s case but averred that it might still be admissible as against the applicant. Moreover, he asserted that the prosecution could succeed without the telephone intercept evidence. He would not rely upon it if the applicant were returned. He said that the facts set out in the warrant were borne out by other evidence, which in his opinion made out a case in respect of all the matters alleged in the warrant. The remaining evidence would be sufficient to rebut the presumption of innocence in the applicant’s favour, unless he were to give or call evidence denying the allegations.

[43]Mr Rubira claimed that the remaining evidence consisted of two elements. First, some of the applicant’s co-defendants had directly implicated him during their trial. For example, Yarkas had said that Shakur was a member of an Islamist terrorist organisation. Also, a defendant named Asade, one of those who had lived with the applicant in Granada, had admitted travelling to Andorra with Yarkas for terrorist purposes. Another member of the group named Hussein had been found in possession of instructions for the assembly of an improvised explosive device. Unless this evidence were contradicted, Mr Rubira said, it would be sufficient to convict the applicant of participation in a terrorist organisation.

[44]Mr Rubira also asserted that the applicant might be convicted of other aspects (ie the more serious aspects) of the conduct alleged in the EAW because there was going to be some evidence that he was a member of the Hamburg cell the members of which had taken part in the events of 11th September 2001. The German police had provided information which could be converted into admissible evidence. Therefore, said Mr Rubira, the applicant was still accused of direct and/or indirect complicity in conspiracy to murder.

[45]In response to this evidence produced on behalf of the IJA, the applicant produced evidence from Mr Jacobo Teijelo Casanova, a Spanish lawyer. He asserted that Mr Rubira was not in a position to speak on behalf of the IJA. He made the point that a EWA has to come from the IJA and not from someone purporting to speak on its behalf. Mr Rubira is not even qualified to send any complementary information which might be needed before the requested country can proceed to execute the warrant.

[46]Mr Casanova also attacked the validity of Mr Rubira’s claim that it might be possible to adduce the intercepted telephone calls, notwithstanding that the Supreme Court had ruled them inadmissible. We do not consider that it is necessary to say any more about that as Mr Rubira has said that he does not in fact intend to rely on them if the applicant is returned.

[47]Mr Casanova also attacked the truthfulness of Mr Rubira’s claim as to the admissibility of the alleged incriminating statements made by the defendants already tried. The statements had not in fact been made. In any event, he argued that such statements would be inadmissible because they were made in the course of a trial at which unlawfully obtained telephone intercepts were used. The statements would be excluded as ‘fruit of the poisonous tree’. Further, he argued, statements from a co-defendant are of no value unless corroborated by ‘some external fact, detail or circumstance’.

[48]The applicant also sought to challenge the truth of Mr Rubira’s assertion that there is information available from Germany which will support the allegations of the applicant’s complicity in the events of September 11th. He has produced evidence from a lawyer who took part in the trial in Germany of several members of the Hamburg cell. This witness says that at no time during that trial was a man named Shakur or Shakri or Hilali mentioned. Nor was there any reference to such a person in any of the written material he had seen. Further, information had been received from the police in Hamburg to the effect that they had no knowledge of the applicant.

The Submissions

[49]Mr Jones made two submissions which we have no difficulty in rejecting. We deal with them briefly. First, he submitted that the conduct relied on in the EAW was an agreement on the telephone between the applicant in the UK and Yarkas in Spain to commit the offence. Once the telephone calls could no longer be relied on, the whole basis of the conduct alleged had gone. With respect to Mr Jones, that is quite wrong. The conduct alleged was not an agreement made on the telephone; indeed no agreement was made on the telephone. On the telephone, the applicant was simply telling Yarkas what he was doing (allegedly in preparation for the 11th September). The telephone calls were evidence from which the existence of conspiracy could be inferred; they were not direct evidence of the agreement itself.

[50]Second, Mr Jones contended that now that Yarkas had been acquitted of conspiracy to commit terrorist killing, there could be no question of the applicant being found guilty of such an offence. The issues pleaded in the EAW are, he said, res judicata in Spanish law. He referred to the evidence of Mr Casanova to that effect. We reject this submission. Just because Yarkas has been found not guilty of conspiracy to commit terrorist killing on the basis of the evidence advanced against him cannot mean that it would be impossible for the applicant to be convicted of such an offence if there were sufficient evidence against him. It does now appear that the evidence of what the applicant said to Yarkas on the telephone cannot now be relied on but that is a far cry from saying that, as a necessary consequence of the principle of res judicata, he is not guilty of the offence. There might be other evidence relevant to the issue.

[51]However, although we reject Mr Jones’ submission that the issue of the applicant’s guilt of conspiracy to murder is res judicata because Yarkas was acquitted, we do consider that Yarkas’s acquittal of conspiracy to commit terrorist killing is relevant to this application. As we will show, material in the EAW suggesting that the applicant was involved in the preparation for the 11th September attacks rests upon his association with Yarkas. We will return to this point in due course.

[52]The core of Mr Jones’ submission, as pursued in oral argument, was that because the judge had relied on the evidence from the telephone calls and since it was now accepted that the Spanish prosecutor could not rely on that evidence, the foundation of his decision was undermined and in effect automatically invalidated. In the course of the hearing, this argument was developed in a way which, in our view, has greater merit. Mr Jones submitted that, in the EAW, the Spanish IJA had chosen to describe the conduct alleged against the applicant by setting out the evidence on which it proposed to rely. There was in fact no need for the IJA to set out the evidence; indeed it ought not to have done so. The evidence by which the allegations are to be proved is a matter for the Spanish court. It would have been sufficient and proper if a summary description of the conduct had been provided. However, the IJA had not done that. It had provided only evidence and had left the Senior District Judge to infer what conduct was alleged from the evidence set out.

[53]It was clear from his judgment that the judge had depended on the evidence of the telephone calls and had drawn inferences from it. He had done so, in particular, when reaching his conclusion that the conduct alleged amounted to the offence of conspiracy to murder persons in America and was an extradition offence under section 64(3) because part of the conduct took place in Spain. He said:

“I am satisfied that the centre of the conspiracy revolves round a man named Abu Dahdah or Yarkas whose home address was in Madrid. These conversations link the defendant with Yarkas in Spain and with the conspiracy to attack the World Trade Centre and the Pentagon on 11th September 2001.”

[54]Mr Jones submitted that once the telephone conversations are removed from the EAW, there is nothing left that could comply with the fundamental requirements of an EAW. Article 8 of the European Framework requires that the EAW shall contain certain information including the nature and legal classification of the offence and 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. Section 2(1) of the 2003 Act requires that the warrant must contain among other things the information referred to in subsection (4) which includes:

“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….”

[55]It seems to us that this submission raises a real and difficult issue for determination.

[56]Mr Hardy accepted much of this last submission but contended that the EAW as it stood was still sufficient to support extradition. The conduct alleged was clear; it had not changed. The evidence by which that conduct was to be proved was entirely a matter for the Spanish Courts. Mr Rubira’s statement demonstrated that there was other evidence besides the telephone conversations which would support the allegations. However, he submitted that we need not concern ourselves with that. Nor need we concern ourselves with the applicant’s attempts to undermine Mr Rubira’s evidence. We should look only at the EAW. We would then see that, even without the telephone evidence, the conduct alleged amounted to at least one extradition offence. Mr Hardy submitted that the conduct alleged amounted to one or more Framework list offences and did not therefore require any further elucidation in terms of detail beyond that required by Article 8 of the Framework decision. The EAW itself identifies the Framework list offence relied on as ‘Participation in a terrorist organisation’. As we have observed, in fact, the Framework list does not include an offence defined in exactly those words but it does include ‘participation in a criminal organisation’ and also ‘terrorism’. It also includes murder and we would have thought that that should by implication include conspiracy to murder. So, we would be prepared to accept that all the matters alleged in the EAW are Framework list offences.

[57]Further, we would accept (in part) Mr Hardy’s submission that Framework list offences do not require any further elucidation besides that required by Article 8. We have no doubt that that was the intention behind the Framework decision. However, under the 2003 Act, even a Framework list offence must be examined and must be shown to be an extradition offence, within one of the provisions of section 64. The only provision of section 64 that makes specific reference to Framework list offences is subsection (2). That subsection provides that conduct constitutes an extradition offence if the conduct occurs in the Part 1 territory (Spain) and no part of it occurs in the United Kingdom, if there is a certificate from the IJA of the Part 1 territory that the conduct falls within the framework list and if the certificate shows that the conduct is punishable with at least 3 years imprisonment. Mr Hardy acknowledged that, during the extradition hearing, it had been accepted that, because some of the conduct alleged had taken place in the UK (as opposed to it all taking place in Spain) the Judge could not hold that the conduct amounted to an extradition offence within section 64(2). He had to rely on subsections (3) and (4). Thus it seems to us that the fact that the offence or offences identified in the EAW are or could be described as Framework offences does not assist Mr Hardy.

[58]Mr Hardy took us through the EAW, applying a notional blue pencil to the telephone evidence and everything that was dependent on it. He submitted that, even as so redacted, the EAW disclosed extradition offences and that the extradition order was still valid.

Discussion

[59]In our view, the right approach to this issue is to ask whether, in the light of the discovery that the prosecution will not be able to rely on the evidence of telephone intercepts, the basis of the extradition order is undermined to such an extent that return (and continued detention prior to return) would now be unlawful. The question we must answer is whether, if the EAW were stripped of all reference to evidence garnered from the telephone calls, the Senior District Judge would have been able to make an extradition order. He would be obliged to make one if it were possible for him properly to do so. He could do so if he could properly conclude that the conduct described in the remaining EAW amounted to adequate particulars of at least one extradition offence.

[60]In approaching that question, it seems to us that we must rely only on the original EAW (as redacted) and to pay no heed to the alleged existence of additional evidence as described by Mr Rubira. That is not because Mr Rubira’s evidence is not admissible in these proceedings. It clearly is and, to the extent that he says that he will not rely on intercepted telephone calls if the applicant is returned, it is plainly important. However, Mr Rubira is not in a position to amend or complement the EAW and does not in fact seek to do so. And we say that we will pay no heed to Mr Rubira’s claim that there is other evidence on which the prosecutor can rely because evidence is not a matter for the court of the requested state. The adequacy of the evidence by which the conduct alleged is to be proved and the admissibility of such evidence are entirely matters for the Spanish Court. It seems to us that if the EAW had been completed as it should have been, by including a concise description of the conduct alleged and omitting an account of the evidence to be relied on, this application could never have been mounted. The loss to the prosecutor of some or even all of the evidence he had intended to rely on would have been of no concern to the English court.

[61]The difficulty which this court now faces arises from the fact that the original EAW did not contain a clear and concise description of the conduct alleged against the applicant. Although it does contain some passages that can be said to comprise a description of conduct, even some of those passages are clearly dependent upon the telephone intercept evidence. It is apparent from the passage from the Senior District Judge’s judgment, which I cited at paragraph 15 above, that the judge inferred from the telephone calls that the conduct alleged was involvement in the preparations for the attacks of 11th September 2001. That was the basis of the decision and we feel bound to conclude that, without the telephone intercept evidence, the judge could not have reasoned his way to his decision in the way that he did.

[62]The next question is whether he could have made an extradition order based on different reasoning. It seems to us that, if the judge could properly have reached the same conclusion by consideration of only those parts of the EAW that now remain, the extradition order remains valid and the applicant’s detention with a view to return remains lawful. Only if the judge could not properly have concluded on the material notionally available to him that the conduct alleged was an extradition offence can this application succeed.

[63]What is the remaining conduct available for consideration? First, there is the statement which we set out at paragraph 6 above. That passage does not allege that the applicant was involved in the terrorist attacks of 11th September. Instead it alleges that there is a link between Yarkas and the attacks and a link between Yarkas and the applicant.

[64]Second, there is a passage which alleges that Yarkas is an associate of Said Bahaji, who was himself a member of the Hamburg cell or ‘commando’ which was primarily responsible for the attacks of 11th September. Bahaji has disappeared. So, up to now, we have allegations that the applicant is an associate of Yarkas who is an associate of Bahaji, a member of the Hamburg cell.

[65]Third, there is an allegation that for a time (in 2001), the applicant lived in Granada together with a man named Jasem and one other. In fact, there is an internal inconsistency with the EAW, as later it is said that he lived in Granada during 2000 and left in December 2000 or early 2001.

[66]Fourth, there is passage which partially escaped Mr Hardy’s blue pencil although we are not sure that it should have done. Omitting irrelevant parts it says:

“As it has been said, the analysis of the telephone conversations made by Yarkas plus the evidences found along the investigations of the proceedings that link him consistently and firmly with the leaders of Al Qaeda and also with some of the participants in the terrorist attacks……. as well as the members of the ‘terrorist commandos’ that carried out the action, among them their leader Mohammed Atta, show the direct involvement in the preparation of the said attacks, collaborating with infrastructure, covering and coordinating the movements in Europe of the group members, of Yarkas, Shakur (the applicant, Hilali) Abdulrahman, Azizi, Belftami, Chebli, Binalshibih, Said Bahaji and referentially, Zaher and Mahboule.”

[67]If there were in that passage no reference to the source of the evidence from which the alleged conduct is to be inferred and if the passage had been drafted simply as an allegation that the applicant was involved, with the others named, in the preparations for the attacks, we might have said that the description of the conduct would have been sufficient to satisfy the requirements of Article 8 of the Framework Directive and section 2 of the 2003 Act. We might well have said that, even though there is no detail of the precise role allegedly played by the applicant; nor is the period of time specified during which the conduct is said to have taken place. Precise details are often difficult to provide in cases of conspiracy. We think, as the district judge plainly did and as the Divisional Court must have agreed, that the particulars were adequate to comply with Article 8 and section 2. We consider that, if one could simply strike a blue pencil through the initial passage which reveals the sources of the evidence, the EAW would probably be good notwithstanding the subsequent loss of any evidence. The EAW would contain a description of conduct which constituted an extradition offence under sections 64(3) and 64(4).

[68]The difficulty we face is whether it is legitimate to strike a blue pencil through part of a passage which, as we see it, was plainly intended to be read as a whole. We are mindful of the need for this country to comply with its international obligations under the Framework Decision. Nonetheless, the 2003 Act imposes safeguards in the form of requirements which must be satisfied before the court will order surrender.

[69]It is apparent that the allegations in that passage are at least in part dependent upon the content of the inadmissible telephone conversations. In part they are not but are dependent on the ‘evidences found in the investigations in the proceedings’. That, as we understand it, is a reference to the totality of the evidence gathered for the prosecution of the whole group, 24 members of which have now been tried. The applicant would have been of the group if he had been returned in time. So, presumably would Said Bahaji, if he could have been found and arrested. However, the gist of this passage is that the applicant is alleged to have been involved in these preparatory activities because of his links with Yarkas and because of Yarkas’s links with those who were involved in the attacks.

[70]It is here, as it seems to us, that Yarkas’s acquittal of conspiracy to commit terrorist murder becomes germane. If what is alleged against this applicant is that he was involved in preparation for the attacks through his links with Yarkas and not independently of Yarkas, there is no basis for alleging this, once it is known that Yarkas is not guilty of involvement in preparation for the attacks. The content of the telephone calls suggests that the applicant’s alleged involvement with preparation for the attacks was not (or at least not entirely) through Yarkas. He was telling Yarkas about the preparations he was making for 11th September, which it did not appear that Yarkas was directly involved in, although of course he might have been. But, absent the evidence of the telephone calls, all that remains of this passage is the allegation that the applicant and others were involved in preparation for the attacks through their links with Yarkas, who was linked with members of the cell directly involved in the attacks. Yarkas was the essential link. We now know that Yarkas was acquitted of involvement with the cell involved in the attacks. It seems to us that the alleged link between the applicant and the attacks has been broken. Even if we regard the description of evidence in this part of the EAW as particulars of the alleged offending, once the material drawn from the telephone calls is removed, the remaining text nowhere states that the applicant was involved in the attacks, independently of Yarkas. It appears to us that this passage does not contain any description of conduct which can now form the basis of an allegation that the applicant was involved in the preparation for the attacks.

[71]There is nothing else in the EAW which alleges involvement in the preparation for the attacks. There is a good deal of information from which it can readily be inferred that it is alleged that, since about 1998, the applicant has been an associate of Yarkas and that both of them have been associated with other men known to be involved in terrorist organisations. Also, there is reference to the applicant’s movements, from which one can readily infer that it is being alleged that he is involved with a terrorist organisation.

[72]While undertaking this analysis of the EAW we are acutely conscious that we should not be driven to examine its adequacy in this way. We have had to do so only because of the way in which it was drafted, just as the judge had to do at the extradition hearing.

[73]We conclude that, if all reference to the telephone calls had been excised from the warrant and if the judge had known that Yarkas was not guilty of conspiracy to commit terrorist murder, he could not have made an extradition order based upon an allegation of involvement in preparations for 11th September. He would have had to consider whether or not he could make an order on the basis of an allegation that the applicant was a member of a terrorist organisation. That he was never asked to do, presumably because there was material on which he could properly be asked to make an order based on the more serious allegation of involvement in the 11th September attacks.

[74]We turn to consider whether membership of a terrorist organisation is or was at the material times an extradition offence under the 2003 Act. It is accepted that it cannot realistically be argued that this applicant’s alleged membership involved no conduct taking place in the United Kingdom. Section 64(2) cannot be prayed in aid.

[75]Section 64(3) requires first that the conduct occurred in Spain. It is clear from the decision of the House of Lords in Office of the King’s Prosecutor, Brussels v Cando Armas

[2006] 2 AC 1

that it is sufficient if part of the conduct alleged occurred in Spain. We think that that condition is satisfied. The applicant lived in Spain for a considerable period in circumstances in which it is alleged that he was involved in a terrorist organisation. Second, it must be shown that the conduct, membership of a terrorist organisation, would constitute an offence under UK law if it had taken place in the UK. Section 11 of the Terrorism Act 2000 (by which membership of a proscribed organisation became a criminal offence) came into force on 15th February 2001 (see Commencement Order No 3 (SI 2001 No 421)). Al-Qa’eda became a proscribed organisation on 29th March 2001 (see the Terrorism Act 2000 (Proscribed Organisations) (Amendment) Order 2001 (SI 2001 No. 1261)). Thus, the applicant’s membership of Al-Qa’eda could only have been an offence in the UK from March 2001. However, there is nothing in the EAW to suggest that the applicant was in Spain at any time between March 2001 and the issue of the EAW in April 2004. We do not see how it can be said that any conduct of the applicant constituting membership of Al-Qa’eda took place in Spain at a time when to do so was an offence under UK law. So, we conclude that it would not have been open to the judge to hold that membership of Al-Qa’eda was an extradition offence under section 64(3).

[76]That leaves section 64(4). To be an extradition offence under that subsection, the conduct must have occurred outside the Part 1 territory. As the applicant has been living in or at least based in the UK since late 2000 or early 2001, at least some of his activities which could amount to membership of Al-Qa’eda must have occurred in the UK. Second, the conduct must be punishable under the law of the Part 1 territory with imprisonment of at least 12 months. We know from the EAW that it is. Third, it must be shown that the conduct would constitute an extra-territorial offence under the law of the UK punishable with at least 12 months imprisonment. Here the Terrorism Act 2006 comes into play. By section 17, membership of a terrorist organisation becomes an extra-territorial offence. However, that provision plainly did not come into force until after the EAW was issued and the applicant had been arrested. We feel bound to conclude that the conduct alleged in the remaining parts of the EAW could not constitute conduct falling within section 64(4).

[77]Accordingly, we reach the conclusion that, if the EAW had been limited to those matters now available for his consideration, the Senior District Judge would not have been able to make any extradition order, let alone the one he actually made. It follows that the order made by the judge on 1st June 2005 (although valid at the time) has been invalidated by subsequent events. It follows from that premise that the applicant’s subsequent detention pursuant to the extradition order is unlawful and a writ of Habeas Corpus must be issued.

[78]That being so, there is no need for us to consider the applicant’s third submission which was that the continued request for extradition pursuant to the EAW was and is an abuse of the process of this court.

[79]We add only this. We have reached this conclusion with some reluctance because it seems to us that there was, at the time of the request, a proper basis on which this applicant could and should have been surrendered to face trial. The Framework decision governing the issue of EAWs was intended to provide a simple and speedy procedure within the European Union for the return of persons suspected of crime to face trial. If the procedure had worked as it was intended to work, within a short time frame, this applicant could have been returned to face trial along with the other alleged conspirators.

[80]It is apparent that the procedure did not work as it was intended. We perceive that there are two reasons for this. The first is that the appeal procedure under the 2003 Act (if invoked) makes it virtually impossible for the process to be completed within the time allowed by the Framework decision. Second, in this case (and in others we have seen), the Spanish IJA has not completed the EAW in the way that it was intended to be completed, namely by setting out a brief description of the conduct alleged and by giving the particulars required by the Article 8 of Framework decision and section 2 of the Act. Instead, it has provided a long, extraneous and potentially confusing recital of the evidence on which it proposed to rely. That has meant, in this case, that because the most crucial evidence has been held to be inadmissible, and thus the conduct originally described or particularised can no longer be relied on, the EAW has become invalid.

[81]For the reasons we have given the writ will be issued.