Hilali, R (on the application of) v Secretary of State for the Home Department [2008] EWHC 2892 (Admin)

[2008] EWHC 2892 (Admin)

Case No CO/6329/2008

IN THE HIGH COURT OF JUSTICE

DIVISIONAL COURT

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

Date 25/11/2008

Before

LORD JUSTICE DYSON

MR JUSTICE GRIFFITH WILLIAMS

Between

The Queen (on the application of Farid Hilali)Claimant

The City of Westminster Magistrates’ CourtDefendant

The Crown Prosecution ServiceInterested Party

The Secretary of State for the Home DepartmentIntervener

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

James Lewis QC and Melanie Cumberland (instructed by CPS) for Interested Party

David Perry QC (instructed by TSols) for Intervener

Hearing Hearing dates: Thursday 6 November 08

Judgment

[1]Specialty arrangements are integral to the working of extradition. They ensure that a person may only be dealt with for offences for which he is extradited to the requesting state and that he will not be dealt with for any other offence allegedly committed prior to his extradition, unless he is first afforded a reasonable opportunity to leave the requesting state. Spain and the United Kingdom are both signatories to the European Convention on Extradition which imposes on signatories the obligation to observe the rule of specialty (article 14). As member states of the European Union, they are also both bound by the European Framework Decision of 2002 (“the Framework Decision”) which (by article 27(2)) requires the rule to be observed.

[2]The issue that lies at the heart of this appeal is whether the courts of the United Kingdom have jurisdiction to order the authorities of a requesting state to which a person has been extradited to return the person to the United Kingdom on the grounds that he is being, or is likely to be, dealt with in breach of the specialty rule in the requesting state.

The facts

[3]The claimant was extradited to Spain on 8 February 2008 pursuant to a European Arrest Warrant (“the EAW”) issued on 29 April 2004 by the Central Court of Criminal Proceedings No 5 of the National Court, Madrid (“the issuing judicial authority”). Extradition was sought on the grounds that he was involved in a terrorist conspiracy, inter alia, in Spain to commit the 11 September 2001 attacks in the United States. The EAW referred to the crime of “participation in terrorist organisation” (articles 515.2 and 516.2 of the Criminal Code) and “terrorist assassination” (article 139.1 and 16 of the Criminal Code). It referred to a link between the claimant and Barakat Yarkas who, it was alleged, was a key figure in the terrorist conspiracy.

[4]On 1 June 2005, Senior District Judge Workman, sitting at Westminster Magistrates’ Court ordered the claimant’s extradition to Spain. In his reasons, he said that he was satisfied that the conduct described in the EAW amounted to an extradition offence under section 64(3) of the Extradition Act 2003 (“the 2003 Act”) because, if the conduct had occurred in England, it would have constituted the offence of conspiracy(i) to murder persons in the United States and

(ii) to commit the offence of destroying, damaging or endangering the safety of aircraft contrary to section 2 of the Aviation Security Act 1982.

[5]The claimant appealed to this court. He argued among other things that there were no specialty arrangements in Spain. In its decision reported at

[2006] EWHC 1239 (Admin)

, this court held that specialty arrangements were in place in Spain. It accepted that prosecuting the claimant for murder would breach the specialty rule, but said that there was no evidence that this would happen. The claimant also argued that there was a real risk that, in breach of the European Convention on Human Rights (“the Convention”), on his return he would be held incommunicado for up to 13 days, without his friends or family being told of his detention or his whereabouts and without access to a lawyer. The court said that, if the claimant faced the possibility of being held incommunicado, the legality and propriety of his extradition would need to be carefully examined. But they were quite satisfied from the evidence that the claimant faced no possibility of detention incommunicado.

[6]On 31 May 2006, Barakas Yarkas was acquitted by the Supreme Court in Spain of indirect involvement in the 9/11 murders on the grounds, among others, that the telephone intercept evidence relied on was inadmissible as it had been obtained without lawful authorisation. The claimant argued that the acquittal of Yarkas undermined the basis on which his extradition order had been made and sought a writ of habeas corpus. The application was allowed by this court (

[2007] EWHC 939 (Admin)

), but rejected by the House of Lords on 7 December 2007 (

[2008] UKHL 3

[2008] 2 WLR 299

[7]The language of the EAW and the extradition order dated 1 June 2005 had given rise to certain amount of uncrtainty as to the precise offences in respect of which the claimant was to be extradited. All arguments were laid to rest by the House of Lords. At [31] of his speech, Lord Hope said:

“I would allow the appeal and set aside the order which was made by the Divisional Court. I would affirm the decision by the senior district judge to order the applicant’s extradition to Spain. I would do so on the ground that the offences of conspiracy to commit the offence of murder of persons in the United States and of destroying, damaging or endangering the safety of aircraft, contrary to section 2 of the 1982 Act, are the only offences in respect of which he is to be extradited.”

[8]The claimant was returned to Spain and brought before the issuing judicial authority on 8 February 2008. The judge remanded the claimant in custody until 11 February pending receipt of the relevant documents from the UK authorities.

[9]On 11 February, the court granted the prosecutor’s application for “unconditional preventative custody communicado without bail”.

Judge Garzon stated the legal grounds for his decision in the following terms:

“ONE.- The facts may constitute multiple offences of conspiring to terrorist murder through membership of a terrorist organisation Al Qaeda without prejudice to subsequent classification and as emerges from legal classification which appears in the First Legal Ground of said Indictment in relation to Farid Hilali (a) “Shakur. TWO. – In accordance with that stated in articles 503, 504 and 505 of the Criminal Procedure Act preventative custody is ordered for Mr Hilali due to the extreme circumstances of the facts object of these proceedings, to the risk of absconding from the actions of justice as demonstrated by the fact that he has had to be surrendered via extradition and in view of that gravity and while the necessary steps are performed as regards the accused, who, despite the fact that he has been in custody in the UK which must, if applicable, be taken into account on sentencing, has been at the disposal of Spanish Justice for three days.”

[10]On 28 April 2004, the court ordered an “extension” of the September 2003 indictment. The “extended” indictment stated that the claimant faced charges of “offences of membership of terrorist organisation and terrorist attacks resulting in multiple deaths, injuries and damages as a result of the terrorist attacks that took place in the USA on 11th September 2001”. The indictment stated that these were offences under article 515.2 and 516.2 of the Criminal Code (membership of terrorist organisation) and under articles 572.1 and 139.1 and 16 of the Code (terrorist homicide and deaths and injuries in the three terrorist attacks on 11th September). This description of the offences was substantially reflected in the EAW: see [3] above.

[11]The claimant appealed against the order of 28 April, but not on the grounds that to proceed against the claimant for these offences would involve a breach of the specialty rule. The appeal was dismissed.

[12]On 14 April 2008, the claimant’s defence lawyer in Spain, Jacobo Casanova, sent a report to the claimant’s solicitors in which he stated that at the 11 February 2004 hearing: “Finally, we indicated that the surrender of Mr Hilali by the UK authorities under the EAW was only for him to be tried, if appropriate, for conspiracy to commit the murders of 11th September, not for membership Al-Qaeda. It must, however, be stressed, and this is important, that in both the INDICTMENT…OF MR HILALI FROM 2003, AS WELL AS THE DECISION ORDERING THAT HE BE REMANDED IN CUSTODY, MY CLIENT CONTINUES BEING CHARGED WITH BOTH: MEMBERSHIP OF A TERRORIST ORGANISATION AND CONSPIRACY FOR THE MURDERS OF 9-11”.

[13]Mr Casanova also stated: “Mr Hilali is in prison under a special internment regime. This means that his oral and written communications are monitored, that visits are recorded, the letters read and the conversations listened to. He can only enjoy 3 hours in the courtyard (with the other prisoners) and he will remain in an individual cell”.

[14]On 22 April 2008, the claimant’s solicitor wrote to the clerk to the Senior District Judge at the City of Westminster Magistrates’ Court, stating that the claimant’s detention was unlawful because it was in breach of the specialty rule and asking for the case to be listed so that the Senior District Judge could make an order demanding “of the Spanish Court that [the claimant] be detained and proceeded against only for the extradition crimes for which he was extradited and, if the Spanish Court fails to agree, that it return the applicant to the United Kingdom.”

[15]On 29 April 2008, District Judge Workman refused to accede to this request, stating: “This court can only act under statute and in the absence of any express power this court cannot adjudicate. The matter must be resolved in the issuing state”.

[16]These judicial review proceedings were issued on 4 July. The amended relief sought is: “(a) a quashing order, quashing the decision of City of Westminster Magistrates’ Court decision that it does not have jurisdiction to hear the claimant’s complaint that there has been a breach of specialty in this case; (b) A mandatory order, directing City of Westminster Magistrates’ Court:(i) to enquire into the suggested breach of the specialty rule and the assurance as to solitary confinement;

(ii) to enquire as to whether the claimant is accused of the criminal conduct alleged in the European arrest warrant, or merely suspected;

(iii) if appropriate request the return of the claimant to the United Kingdom. (c) Alternatively, a declaration that the Spanish court is acting in breach of the specialty rule and asking for the return of the claimant to the United Kingdom. (c) Alternatively, a declaration that the Spanish court is acting in breach of the specialty rule and asking for the return of the claimant to the United Kingdom.

[17]On 6 August, the Senior District

Judge Workman explained the reasons for his decision of 29 April in these terms:

“(i) There are specialty arrangements in place between the United Kingdom and Spain. (ii) Section 54 of the Extradition Act 2003 (‘the 2003 Act’) provides for an issuing judicial authority to make a request for an extradited person to be dealt with for an offence for which he was not surrendered. No such request has been received from the issuing judicial authority in the Claimant’s case. (iii) In the extradition context, the Court can only act in accordance with the powers provided for by the 2003 Act and there is no power under the 2003 Act which would allow it to give directions to a Court of another Sovereign State. (iv) If there has been a breach of speciality, this should be resolved by way of an appeal against the decision of the Spanish Court to any higher Spanish Court and if necessary then to the European Court or through diplomatic channels.”

[18]On 27 August 2008, Judge Garzon (the judge in charge of the case in Spain) wrote to the Crown Prosecution Service (“CPS”) stating:

“2. That Farid Hilali is being investigated exclusively on account of the events specified in the European Arrest Warrant, those which in fact gave rise to the warrant being certified by the United Kingdom authorities. 3. In view of the above, and with reference to point (4) of paragraph 2 of the general observations in your letter, there has been no infringement of the principle of specificity, since we are faced with a simple stratagem of the defence which does not affect the Spanish judicial proceedings, and that no response need be submitted to the Administrative Tribunal unless it is requested; in any event, this reply can serve the purpose.”

[19]The letter to which this was a reply has not been disclosed. This is surprising in view of the fact that at the hearing of 2 September 2008 at which Sullivan J gave permission to apply for judicial review, the CPS stated that they would produce it.

[20]On 3 November, Mr Perry submitted a Note on behalf of the Secretary of State in which he said that the Secretary of State had sought information from the Spanish authorities on whether there was any breach of specialty or of the assurance. Judge Garzon was absent on sick leave. Another judge (Judge Gomez) sent a written response dated 31 October which includes the statement that:

“…on 11 February 2008, having received the order [of that date] and having inspected its contents, a judicial decision was handed down that same day permitting these proceedings to be taken against Hilali Farid exclusively for multiple acts of conspiracy and not for membership of a terrorist organisation, for which his surrender had not been authorised by the English authorities.”

These proceedings

[21]In these proceedings, the claimant challenges the district judge’s decision of 29 April 2008 and his reasoning of 6 June 2008. The defendant court has taken no part in the proceedings. The CPS and the Secretary of State for the Home Department submit that the courts of the United Kingdom have no power to supervise the treatment of an extradited person following surrender to another territory under Part 1 of the 2003 Act or to direct another judicial authority to act or refrain from acting in a particular manner. There is no previous authority on the question whether the courts have jurisdiction to grant relief such as that sought by the claimant in this case. The CPS also say that there is no factual basis for these proceedings since there is no present or threatened breach of specialty and there is no evidence that there has been any breach of assurances, since the claimant is not being held incommunicado. The allegation that the claimant is being held incommunicado has not been pursued and we say no more about it.

The relevant specialty provisions

[22]The relevant provisions are set out in section 17 of the 2003 Act and Article 27 of the Framework Decision. The Framework Decision is the instrument of the European Union which established the European Arrest Warrant scheme.

[23]Section 17 of the 2003 Act provides:(1) A person’s extradition to a category 1 territory is barred by reason of specialty if (and only if) there are no specialty arrangements with the category 1 territory.

(2) There are specialty arrangements with a category 1 territory if, under the law of that territory or arrangements made between it and the United Kingdom, a person who is extradited to the territory from the United Kingdom may be dealt with in the territory for an offence committed before his extradition only if— (a) the offence is one falling within subsection (3), or (b) the condition in subsection (4) is satisfied.

(3) The offences are— (a) the offence in respect of which the person is extradited; (b) an extradition offence disclosed by the same facts as that offence; (c) an extradition offence in respect of which the appropriate judge gives his consent under section 55 to the person being dealt with; (d) an offence which is not punishable with imprisonment or another form of detention; (e) an offence in respect of which the person will not be detained in connection with his trial, sentence or appeal; (f) an offence in respect of which the person waives the right that he would have (but for this paragraph) not to be dealt with for the offence.

(4) The condition is that the person is given an opportunity to leave the category 1 territory and— (a) he does not do so before the end of the permitted period, or (b) if he does so before the end of the permitted period, he returns there.

[24]Article 27 of the Framework Decision provides: Possible prosecution for other offences 1. Each Member State may notify the General Secretariat of the Council that, in its relations with other Member States that have given the same notification, consent is presumed to have been given for the prosecution, sentencing or detention with a view to the carrying out of a custodial sentence or detention order for an offence committed prior to his or her surrender, other than that for which he or she was surrendered, unless in a particular case the executing judicial authority states otherwise in its decision on surrender. 2. Except in the cases referred to in paragraphs 1 and 3, a person surrendered may not be prosecuted, sentenced or otherwise deprived of his or her liberty for an offence committed prior to his or her surrender other than that for which he or she was surrendered. 3. Paragraph 2 does not apply in the following cases:(a) when the person having had an opportunity to leave the territory of the Member State to which he or she has been surrendered has not done so within 45 days of his or her final discharge, or has retuned to that territory after leaving it;

(b) the offence is not punishable by a custodial sentence or detention order;

(d) when the person could be liable to a penalty or a measure not involving the deprivation of liberty, in particular a financial penalty or a measure in lieu thereof, even if the penalty or measure may give rise to a restriction of his or her personal liberty;

(e) when the person consented to be surrendered, where appropriate at the same time as he or she renounced the specialty rule, in accordance with Article 13;

(f) when the person, after his/her surrender, has expressly renounced entitlement to the specialty rule with regard to specific offences preceding his/her surrender. Renunciation shall be given before the competent judicial authorities of the issuing Member State and shall be recorded in accordance with that State’s domestic law. The renunciation shall be drawn up in such a way as to make clear that the person has given in voluntarily and in full awareness of the consequences. To that end, the person shall have the right to legal counsel; (e) where the executing judicial authority which surrendered the person gives its consent in accordance with paragraph 4. 4. A request for consent shall be submitted to the executing judicial authority, accompanied by the information mentioned in Article 8(1) and a translation as referred to in Article 8(2). Consent shall be given when the offence for which it is requested is itself subject to surrender in accordance with the provisions of this Framework Decision. Consent shall be refused on the grounds referred to in Article 3 and otherwise may be refused only on the grounds referred to in Article 4. The decision shall be taken no later than 30 days after receipt of the request. For the situation mentioned in Article 5 the issuing Member State must give the guarantees provided for therein.” Possible prosecution for other offences

The issues

[25]The issues are(i) whether the claimant is being dealt with in Spain in breach of the specialty rule and

(ii) whether, even if he is being dealt with in breach of the specialty rule, (a) the district judge has jurisdiction to grant the relief sought by the claimant against the issuing judicial authority and (b) this court has jurisdiction to grant the claimant the relief claimed in these proceedings or any relief. In view of its importance, we shall start with the issue of jurisdiction. If there is no jurisdiction to grant the relief claimed, it is unnecessary to investigate the question of breach. The jurisdiction issue 26. The claimant’s submissions

The jurisdiction issue

[26]Mr Alun Jones QC submits that the district judge, as the “appropriate judge” within the meaning of section 67 of the 2003 Act, has the power(i) to enquire into the question whether the claimant is being, or is likely to be, dealt with in breach of the specialty rule and

(ii) if satisfied that breaches have occurred or are likely to occur, to request the return of the claimant. He accepts that the source of the district judge’s jurisdiction is Part 1 of the 2003 Act and that there is no express statutory power to do either (i) or (ii) above. But he submits that there is an implied power to do so. He relies on what Laws LJ said in R (Bermingham and others) v Director of the Serious Fraud Office

[2006] EWHC 200 (Admin)

[2007] QB 727

at [97]. The implication arises from the express provisions of the statutory regime which it is the judge’s function to administer. It is justified by the imperative that, to use the language of Laws LJ, “the regime’s integrity must not be usurped”. Another way of making the same point is to say that the power is to be implied in order to safeguard the court’s process from abuse.

[27]In support of his submission, Mr Jones relies by analogy on(i) the court’s power to make ancillary orders in order to make judgments effective: see the discussion by Lawrence Collins LJ about ancillary orders in Masri v Consolidated Contractors

[2008] EWCA Civ 303

at [92] to [107] and

[2008] EWCA Civ 625

at [26] to [60]; and

(ii) the power of the court in immigration cases, where appropriate, to order the Secretary of State to use her best endeavours to procure the return to the United Kingdom of a deported person: see, for example, R (on the application of Abuzar Chanuizi) v Secretary of State for the Home Department

[2002] EWHC 2569

Admin at [71] to [75] per Crane J.

[28]Mr Jones further submits that, whether or not the appropriate judge has the power to make enquiries and, where appropriate, require the return of an extradited person, the High Court has the power(i) to grant a declaration that the requesting state is acting, or threatening to act, in breach of the specialty rule and/or

(ii) by reason of the actual or threatened breach, to request the return of the extradited person. Where an extradited person is dealt with in breach of the specialty rule, there must be a remedy in the requested state to require the requesting state to make good the breach, if necessary by returning the extradited person. A person is extradited on the footing that he will not be dealt with in breach of the specialty rule in the requesting state. If a breach of the rule does occur, the requested state is misled. In a Part 1 case, it is the court of the requested state that is misled. It must have the power to complain to the issuing judicial authority and take effective steps to make good the breach.

[29]Mr Jones also submits that the problem cannot be resolved by means of diplomatic representations. Diplomatic communications have no place in the EAW scheme. Only the extraditing court has the power to protest a breach of its own order after extradition. Nor can the courts of the requesting state hold that the matter should be dealt with in the requesting state after extradition. There may, for example, be no power in the courts of the requesting state to enquire into the circumstances in which a person came within its jurisdiction. Discussion Jurisdiction of the district judge

[30]We would reject these submissions largely for the reasons given by Mr James Lewis QC and Mr David Perry QC. The powers of the courts in extradition proceedings are derived from the 2003 Act and nowhere else. Functions are allocated to the “appropriate judge” and the High Court. The “appropriate judge” in England and Wales is a District Judge (Magistrates’ Courts) designated for the purposes of Part 1 by the Lord Chancellor: see section 67(1) of the 2003 Act.

[31]The functions of the appropriate judge include the conduct of extradition hearings. Sections 9 to 25 of the 2003 Act regulate extradition hearings and specify the circumstances in which extradition is barred. The appropriate judge must decide whether a person’s extradition to the requesting category 1 territory is barred by reason of the rule against double jeopardy (section 12), extraneous considerations (section 13), the passage of time (section 14), the person’s age (section 15), hostage-taking considerations (section 16), the lack of specialty arrangements with the requesting category 1 territory (section 17), the person’s earlier extradition to the United Kingdom from another category 1 territory (section 18), and earlier extradition to the United Kingdom from a non-category 1 territory (section 19). The appropriate judge is also required by section 21 to decide whether a person’s extradition would be compatible with the Convention rights within the meaning of the Human Rights Act 1998, and if that question is decided in the negative, must order the person’s discharge.

[32]The function of the High Court is limited to dealing with appeals against extradition orders under section 26 and appeals against orders for a person’s discharge at the extradition hearing under section 28.

[33]These are the statutory provisions which govern the position pre-surrender. There is no general statutory provision which requires or even enables the appropriate judge or the High Court to supervise the treatment of extradited person following surrender to another category 1 territory under Part 1. There is, however, a part of the 2003 Act which is headed “Post-extradition matters”. This is contained in sections 54 to 59 which give the appropriate judge certain limited powers. Sections 54 and 55 concern retrospective requests by the requesting state to the appropriate judge for consent to the extradited person being dealt with for an offence other than that in respect of which he has been extradited. Sections 56-58 concern retrospective requests to the appropriate judge for consent to extradition to another category 1 territory or to a category 2 territory. Section 59 deals with the position where an individual is returned from the category 1 territory to the United Kingdom in order to serve the remainder of a sentence of imprisonment or other form of detention imposed in the United Kingdom.

[34]Thus, the 2003 Act contains a detailed code which defines the powers and duties of the appropriate judge and the High Court. It gives the appropriate judge no express power(i) to make enquiries of the requesting state about the conduct of the criminal process or any other aspect of the way in which the extradited person is being dealt with or

(ii) to request the return of the extradited person. In our judgment, this is fatal to the submission that the appropriate judge has the power to do either of these things. As we have said, the sole source of the appropriate judge’s powers is the 2003 Act. The powers for which Mr Jones contends are not there.

[35]Nor can we accept Mr Jones’s submission that there is an implied power to make these enquiries or request the return of the extradited person in appropriate circumstances. The 2003 Act describes in detail the various powers and duties of the appropriate judge in the pre-surrender period. The statutory powers and duties of the appropriate judge post-surrender are strikingly more limited. In our judgment, this difference reflects a policy that (save to the limited extent encompassed by sections 54 to 59) what happens post-surrender is of no concern to the United Kingdom. This is not surprising. It reflects the Framework Decision which contains no provision for the requested state to monitor or supervise the way in which the extradited person is dealt with by the requesting state post-surrender. The EAW provided for by the Framework Decision implements “the principle of mutual recognition which the European Council referred to as the “cornerstone” of judicial cooperation” (the sixth recital); and “the mechanism of the European arrest warrant is based on a high level of confidence between Member States” (the tenth recital). As Lord Bingham said in Dabas v High Court of Justice in Madrid, Spain

[2007] UKHL 6

[2007] 2 AC 31

at [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”

. The absence of any provision in the 2003 Act giving the appropriate judge the power to investigate the manner in which the extradited person is dealt with in the requesting state is in accord with this underlying assumption. The suggested implied power would completely undermine it.

[36]We accept that, although the appropriate judge has no express power to request further information from the issuing judicial authority, he has such an implied power before making an order. In Dabas, Lord Hope said at [49] that articles 10(5) and 15(2) of the Framework Decision “show that it is within the spirit of this measure that the judge should be assumed to have this power. The principle of judicial co-operation on which it is based encourages this approach.” Article 15(2) makes express provision for the executing judicial authority to seek supplementary information from the issuing judicial authority. It is to be noted, however, that the Framework Decision does not go further than the 2003 Act in providing the court with the kind of post-extradition powers for which Mr Jones contends.

[37]The decision of this court in Bermingham does not lead to a different conclusion. That was a Part 2 case where the category 2 territory had been designated for the purpose of section 84. At [97] Laws LJ said that the judge conducting an extradition hearing under the 2003 Act possesses a jurisdiction to hold that the prosecutor is abusing the process of the court. The allegation in that case was that the extradition application was abusive for a number of reasons. We do not need to decide whether by implication there can be added to the grounds for barring an extradition order in a Part 1 case the fact that the application for the order is abusive. It is one thing to hold (as Laws LJ did ) that the appropriate judge has the implied power to refuse to make an extradition order if it would be an abuse of the court’s process to make it. It is quite another matter to say that the judge has the implied power to make enquiries and request a person’s return after the extradition has taken place. The former would by implication add a further bar to the statutory bars on the exercise of the power to make an extradition order, a power which the appropriate judge undoubtedly has. The latter would give the judge a power which he does not have. With the exception of the powers created by sections 54 to 59, the judge has no statutory powers at all post-surrender. The power to make enquiries or request the return of an extradited person would not govern or qualify another existing statutory power: it would create a completely new power which Parliament did not see fit to confer on the appropriate judge and which would fundamentally conflict with the scheme embodied in the Framework Decision.

[38]We do not accept that the analogies relied on by Mr Jones support his argument. It is true that, where a person is deported by the Secretary of State for the Home Department in breach of that person’s Convention rights, our courts can require her to use her best endeavours to seek the return of the deported person. That presents no jurisdictional difficulty. Such an order is made in proceedings in which the Secretary of State is defendant. It is made because the Secretary of State has made a wrongful decision to deport. A deportation in breach of a person’s Convention rights is unlawful. The purpose of the court order is to seek to undo the wrong. The court has the power to correct legal wrongs. But in such a case, the court does not make any order against the state to which the person has been deported. That is what the claimant is seeking in the present case.

[39]Nor do the decisions in Masri provide any support for Mr Jones. In the second Masri appeal Lawrence Collins LJ said at [26] that the English court has power over persons properly subject to its in personam jurisdiction to make ancillary orders in protection of its jurisdiction and its processes. That power was a discretionary one, to be exercised in accordance with the requirements if international comity. That case concerned an appeal against the grant of an anti-suit injunction by the English court restraining debtors from bringing proceedings in Yemen. Judgment had already been obtained against the debtors in England. It was accepted by the Court of Appeal that, once the court had jurisdiction over the substance of the case, it had jurisdiction to make ancillary orders both before and after the judgment, including anti-suit injunctions to protect the integrity of its process. But the nature and subject-matter of that case was very different from the present. First, it was concerned with a private law claim. Secondly, the claim was against a person who was properly subject to the in personam jurisdiction of the court. Thirdly, the powers of the court that were in play did not derive from statute. In our judgment, the principles enunciated and applied in Masri have no application to litigation arising out of the execution of an extradition order.

[40]For these reasons, we are of the opinion that the district judge was right to hold that he did not have jurisdiction to investigate the question whether the claimant was being detained and proceeded against in breach of the specialty rule or to demand the claimant’s return if he was. The 2003 Act requires the appropriate judge to satisfy himself that none of the bars to extradition exist and that the person’s extradition would be compatible with his Convention rights. One of the bars is that there are no specialty arrangements with the requesting state. Once so satisfied, he or she must make the extradition order. Subject to an appeal under the 2003 Act, the extradition order cannot be challenged. It may transpire that, upon his surrender, a person’s Convention rights are violated; or that he is dealt with in a manner which amounts to a breach of the specialty rule. If that occurs, it does not necessarily show that the extradition order should not have been made. But even if it does, for the reasons that we have given, the 2003 Act does not empower the appropriate judge to do anything about it. It is an assumption of the Framework Decision and Part 1 of the 2003 Act that any breaches of this kind will be capable of being remedied in the courts of the requesting state and, if necessary, in the ECtHR (breach of Convention rights) or in the ECJ. Jurisdiction of the High Court

[41]Similar reasoning leads to the conclusion that the High Court has no jurisdiction to grant a declaration that the authorities of the requesting state are acting in breach of the specialty rule or to order the return of an extradited person where he is being dealt with in breach of that rule. The powers of the High Court in relation to extradition are those which are granted, whether expressly or by necessary implication, by the 2003 Act. Its express powers are limited to dealing with appeals against extradition orders or orders for the discharge of persons whose extradition is sought. The reasons that we have given for holding that the appropriate judge has no implied power to make enquiries of the requesting state about how the extradited person is being dealt with and, if necessary, seeking his return also compel the conclusion that the High Court has no such implied power either. To accede to Mr Jones’s argument would be to fly in the face of the clear intent of Parliament and would undermine the assumption of trust and confidence which is the foundation of the EAW scheme, the Framework Decision and Part 1 of the 2003 Act which reflects it.

[42]There is a yet further difficulty. Even if (contrary to our view) the High Court had the power to grant relief against the issuing judicial authority, it could only do so if the authority was properly joined as a defendant to these proceedings. The court can only make an order (or grant a declaration) against a party to proceedings. The claimant has not issued proceedings in the courts of England and Wales against the issuing judicial authority or any other Spanish authority. In the absence of such proceedings and an identifiable basis for the grant of declaratory relief against a relevant Spanish authority, the High Court cannot grant such relief.

Alternative arguments

[43]That is sufficient to dispose of the jurisdictional argument as respects both the appropriate judge and the High Court. But there are other arguments which lead to the same conclusion. In view of the decision that we have already reached on the issue of jurisdiction, we shall deal with these shortly. It is a long-standing principle of law that a municipal court will not adjudicate on the acts of a foreign state within its sovereign territory. This principle, founded on comity, often referred to as the “act of state” principle, was recognised in England as early as 1848 in Duke of Brunswick v King of Hanover (1848) 2 HL Cas 1 at 21-2. The rationale of the principle is that: “to permit the validity of the acts of one sovereign state (including the courts of that state) to be re-examined and perhaps condemned by the courts of another would very certainly “imperil the amicable relations between governments and vex the peace of nations””: per Fuller CJ in Oetjen v Central Leather Co (1918) 246 US 297, 304.

[44]More recently, the apparently uncompromising nature of the principle has been subject to some qualification. For example, in R (on the application of Abbasi) v Secretary of State for Foreign and Commonwealth Affairs

[2002] EWCA Civ 1598

, [2003] UKHRR 76, a British national detained in Guantanamo Bay without trial and without legal representation sought judicial review to compel the Foreign Office to make representations on his behalf to the United States Government. One of the issues addressed by the Court of Appeal was whether executive action by a foreign state was justiciable. At [57], the court said that:

“...albeit that caution must be exercised by this court when faced with an allegation that a foreign state is in breach of its international obligations, this court does not need the statutory context in order to be free to express a view in relation to what it conceives to be a clear breach of international law, particularly in the context of human rights.”

[45]It is clear from this decision and others considered in it that there are limits to the act of state doctrine. In particular, where the acts of the foreign state involve a clear breach of international law in the context of fundamental human rights, an English court may exceptionally have jurisdiction to adjudicate on those acts. But we find it difficult to conceive that our courts would grant relief against a foreign state if the alleged breach of human rights can be properly investigated and, where appropriate, redress given in the courts of that state.

[46]In our judgment, the facts of the present case come nowhere near engaging this exceptional jurisdiction against a foreign sovereign state. The complaint here is that the claimant is being dealt with in breach of the specialty rule. Spain is a party to the Framework Decision, article 27(2) of which provides that a person may not be dealt with in breach of the specialty rule. Moreover, Spain has introduced into its domestic law a provision which mirrors that prohibition: see Article 24 of Act 3/2003, March 14, on the European Arrest Warrant. As Dyson LJ said in Jaso at [67], the Spanish authorities 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 specialty.”

[47]Mr Jones sought to derive support for his submissions from the decision of this court in R v Secretary of State for the Home Department, ex parte Launder (No 2)

[1998] QB 944

. This was a decision under the Extradition Act 1989. The applicant sought judicial review of the order of the Secretary of State to return him to Hong Kong on the grounds that(i) the chief executive of the Hong Kong Special Administrative Region was not authorised to give the undertaking that he had given that there would be no re-surrender of the applicant to the People’s Republic of China and therefore

(ii) there were no specialty arrangements in place in Hong Kong. The court held that the undertaking was authorised and constituted specialty arrangements within the meaning of section 6(4) of the 1989 Act. The court did not refuse to inquire into the whole question on the footing that municipal courts will not adjudicate on transactions of foreign states: see per Simon Brown LJ at p 1003D. At p 1017B-1018F, Mance J made some observations on the limits of the act of state principle. But all of that was said in the context of a pre-surrender case. We are sure that this decision is not to be interpreted as tearing down the walls of the act of state principle. It remains an important principle which should be applied unless the act in question involves a clear breach of international law, particularly in the context of human rights.

Conclusion on jurisdiction

[48]For the reasons that we have given,(i) the decision of Senior Judge Workman of 29 April 2008 and the reasons that he gave on 6 August were correct and

(ii) this court has no jurisdiction to grant the relief sought against the issuing judicial authority.

[49]Mr Perry tells us that, although our courts may have no power to grant relief against the issuing judicial authority, the Secretary of State would consider a breach of specialty as a very serious matter. We accept his submission that any established breach could only be dealt with by way of diplomatic protest.

Breach of the specialty rule

[50]In view of our conclusion on the issue of jurisdiction, the question whether the claimant is being dealt with in breach of the specialty rule does not arise. But since it was the subject of detailed argument, we propose to address it, although not in as much detail as otherwise might have been necessary.

[51]The claimant’s case is that he was extradited for conspiracy to murder and that he is now being held for “participation in terrorist organisation” which, as Lord Hope made clear, is not an offence for which he could be prosecuted. The claimant relies in part on the orders dated 8 and 11 February 2008 pursuant to which he was remanded in custody on his surrender to Spain and the statement of Mr Casanova, his defence lawyer in Spain. The 8 February order states that:

“the facts being the object of the imputations amount to an offense of integrating into a terrorist organisation according to article 515.2 and 516.2 of the Criminal Code due to the grounds set out in the indictment”

(emphasis added).

[52]We accept the submission of Mr Lewis that the orders of 8 and 11 February, must be read together. The reference in the first order to “integrating into a terrorist organisation” might, if it stood alone, be taken to mean that the offence alleged against the claimant was participating in a terrorist organisation. But it is clear that the order of 8 February was in the nature of a provisional order, pending receipt of the extradition documents from the UK judicial authorities. The crucial order is that of 11 February which was made after receipt and in the light of those documents. Unlike the earlier order, the order of 11 February does not describe the claimant as being charged with “integrating into a terrorist organisation”. Rather, it describes him as being charged with conspiracy to “commit terrorist murder through membership of a terrorist organisation, Al Qaeda”. This description properly reflects the basis on which the claimant was surrendered to Spain: i.e. in respect of conspiracy to murder rather than participation in a terrorist organisation. Although the order refers to the offences of conspiracy to murder being committed “through membership of a terrorist organisation Al Qaeda”, this does not mean that the claimant falls to be tried in Spain for an offence of participation in a terrorist organisation. The attacks on 11 September 2001 were carried out by Al Qaeda, and the reference to membership of Al Qaeda is relevant background.

[53]Mr Jones submits however that, whatever the position may have been on 11 February 2004, it is clear from the order of 28 April 2004 that, as at that date, and notwithstanding what Lord Hope had said, the claimant was being proceeded against for the offence of membership of a terrorist organisation and, therefore, in breach of the specialty rule. He submits that further support for this view is to be derived from the terms of the EAW issued on 29 April 2004: see [3] above.

[54]We do not agree. It is inherently unlikely that the issuing judicial authority would intend to deal with the claimant in breach of specialty: see [46] above. In his letter dated 27 August 2007, Judge Garzon stated that there had been no breach of the specialty rule: see [18] above. We accept that, in view of the nature of the challenge in these proceedings and the specific allegation that the claimant was facing a charge of membership of a terrorist organisation, this rather bald assertion was not entirely satisfactory. No doubt that is why the further information referred to at [20] above was obtained. In our view, this puts the matter beyond doubt.

Conclusion

[55]For the reasons that we have given, this judicial review application is dismissed.