Villota v 2nd Section of the National High Court of Madrid, Spain [2014] EWHC 2623 (Admin)

[2014] EWHC 2623 (Admin)Case No CO/5734/2013
IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 29/07/2014
Before
MR JUSTICE FOSKETT
Between
RAUL ANGEL FUENTES VILLOTAAppellantTHE 2 ND SECTION OF THE NATIONAL HIGH COURT OF MADRID, SPAINRespondent
Mark Summers QC (instructed by Birnberg Peirce & Partners) for AppellantPeter Caldwell (instructed by Crown Prosecution Service) for RespondentHearing Hearing date: 4 July 2014
Judgment

Introduction

[1]The Spanish authorities consider that the Appellant is, or at the material time was, a member or supporter of Euskadi Ta Askatasuna (‘ETA’), the Basque nationalist and separatist organization.[2]The Appellant, who was born in Bilbao, is now aged 47.[3]Along with others the Appellant was arrested in the early morning of 6June 1991 in circumstances set out in the European Arrest Warrant (‘EAW’) to which I will refer below. He spent 4 years in custody in Spain awaiting trial, but by June 1995 the trial had not commenced and, because the maximum period of pre-trial detention in Spain (equivalent to the ‘custody time limit’ in the jurisdiction of England and Wales) is 4 years, he was released from custody conditionally on 9June 1995.[4]Having breached the terms of his conditional release an order for his remand in custody was issued by the 5th Section of the National High Court of Madrid on 5 or 6 September 1995. He did not surrender to the court in compliance with that order and at some stage he came to the UK. He accepts that he left Spain knowing of the outstanding criminal proceedings against him.[5]An EAW was issued over 16½ years later on 27 June 2012 seeking his extradition to Spain to face trial. On 16November 2012 he was arrested in Liverpool after 17 years of being “wanted” in Spain.[6]The Appellant contested his extradition. The final extradition hearing took place before District Judge Nicholas Evans on 16 April 2013. In a reserved judgment delivered on 7 May 2013, the District Judge ordered the Appellant’s extradition to Spain.[7]He appeals to this court against that decision pursuant to section 26 of the Extradition Act 2003.

The terms of the EAW

[8]The warrant is, as I have indicated, an accusation warrant. The (translated) particulars given in the warrant of the alleged offences in respect of which extradition is sought are as follows, the numbering being numbering I have added for ease of subsequent reference:
“1. [The Appellant and others] were recruited for the terrorist organisation E.T.A. Militar in 1990. They were trained in handling arms and explosives, in a flat located in Deusto. They were told the objectives to be pursued. They were given weapons and explosive material and information. On various occasions they carried out verifications and collected much information on members of law enforcement bodies, drug dealers, the Civil Governor in Biscay, supported various actions and carried out the orders given by “Gadafi”, “Manu” and “Turko”
. Apart from this they had several hiding places filled with arms and explosive material to be precise: a) a mobile fridge hidden in Archanda Hill, inside of which were an automatic rifle M.A.T. with its numeration wiped off, two magazines, two grenades made in France as well as one grenade type E.T.A, and an explosives handbook; b) a hiding place located in Trapaga Valley (Biscay) that was hidden by sleepers. It contained screws for shrapnel; c) A hiding place located at Archanda Hill. This hiding place was made by GERMAN URIZAR, in the vicinity of the Tueba School. This hiding place contained a bag with a pair of surgical gloves; 2. From the 6th of June 1991 on, two pistols make Browning and one pistol make Sig Sauer were seized from JON MIRENA, [the Appellant] and GERMAN URIZAR. All serial and manufacturing numbers had been wiped off. On the 22nd of May 1991, RAUL ALONSO ALVAREZ, following the orders given by the three ETA members TURCO, GADAFI and MANU, left the group and handed over his pistol and an explosive device which he and GERMAN URIZAR had received from the three ETA members at the Deusto flat since it did not work. Two hours later they gave back that device to the last individual mentioned in order that he places that device in a vehicle that belongs to a police officer who was living in Baracaldo. The vehicle was a white Ford Scort, with license plate VA-4061-P. They had already informed about this vehicle. This vehicle used to be parked in Calle Landabeko. 3. For the purpose of carrying out the action that had been ordered by JUAN CARLOS IGLESIAS CHOUZA, JESUS MARIA MENDINUENTA and JUAN MARIA ORMAZABAL, in the first place they kept the pistols and device at JON MIRENA’s home. JON MIRENA, [the Appellant] and GERMAN URIZAR DE PAZ picked up those items once they had carried out several verifications regarding the place where the car in which the explosive had to be placed used to be parked. In the early morning of the 6th of June 1991 they cautiously approached the vehicle but could not place the explosive since they were caught by police when trying to do so. 4. When police officers shouted “STOP POLICE”, [the Appellant] left the weapon he was carrying on the vehicle roof. GERMAN URIZAR who was carrying the bag with the explosives as well as JON MIRENA started running, but not without first throwing the bag to the ground and firing several rounds at the corner of Calle Lukizago. They did not succeed in shooting the police officers, but police officers had to return fire. Eventually both men were arrested.”[9]Deusto, referred to in (1), is a district of Bilbao.[10]The warrant refers to the “nature and classification” of the offences and the applicable parts of the Spanish Criminal Code, all of which were summarised as follows: i) ‘membership in a terrorist organisation’ (referred to elsewhere in the warrant as ‘participation in an armed group’) - punishable by 10 years imprisonment and a fine of €6,000 - contrary to Articles 147 (which is thought to be a typing error for ‘174’) and 173; ii) ‘attack … in conjunction with the offence of attempted murder’ - punishable by 20 years imprisonment - contrary to Articles 233 and 406; iii) ‘possession of weapons of war’ – punishable by 12 years imprisonment - contrary to Articles 257 and 258; iv) ‘possession of explosives’– punishable by 12 years imprisonment - contrary to Article 264.[11]The EAW was issued by Judge Fernando Garcia Nicolas on (as previously indicated) 27 June 2012 and certified by SOCA on 23 October 2012.[12]Certain further information was requested by the Respondent from the judicial authority and the prosecution in Spain in March 2013 to which I will refer later.[13]I will refer to the reasons given by the District Judge for the decision to which he came when dealing with the Grounds of Appeal advanced before me.[14]The hearing of the appeal was delayed pending judgment in the case of Sanchez v The Second Section of the National High Court of Madrid, Spain [2013] EWHC 2264 (Admin) and then the Supreme Court’s decision on the application for leave to appeal against Artola v The Sixth Section of the National High Court of Madrid, Spain [2013] EWHC 524 (Admin). Permission in that case was refused by the Supreme Court on 28 October 2013 on the basis that the case did not raise an arguable point of law which could lead to a different substantive result.

The grounds of appeal

[15]Mr Mark Summers QC, for the Appellant, relies upon three of the four grounds of appeal originally advanced. He accepts that there is no prospect of succeeding on Ground 2 in the light of the outcome in Artola v The Sixth Section of the National High Court of Madrid, Spain, but he reserves the right to take the point if this case should go further. I say nothing more about that ground.[16]The other grounds can be summarised as follows: Ground 1 The District Judge erred in concluding that the EAW contained adequate particulars of the conduct alleged in respect of offences numbered 3 and 4 above pursuant to section 2(4)(c) of the 2003 Act. Ground 3 The District Judge erred in concluding that the extradition of the Appellant was not a violation of Articles 5 and/or Article 8 of the ECHR or section 64 of the 2003 Act, in circumstances where the limitation period has expired under Spanish law. Ground 4 The District Judge erred in concluding that the extradition proceedings were not an abuse of process, in circumstances where the Appellant had been tortured by the Requesting State.

Ground 1

[17]It is, perhaps, helpful to indicate in the first instance the District Judge’s reasoning, which itself encapsulates the arguments advanced to a degree, and then to deal with the criticisms made by Mr Summers. I should say that submissions were made before the District Judge about the adequacy of the particulars in relation to charges 1 and 2, but the criticisms then made are no longer pursued. The District Judge’s conclusions on the arguments relating to charges 3 and 4 were as follows:
“6. Section 2(4)(c) of the Act requires the EAW to provide 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. … 9. It is submitted the third offence, possession of weapons of war, lacks specificity as it (the offence) might relate to (a) those with which the [Appellant] trained in the flat in Deusto in 1990, (b) those that were supplied to him after his training, (c) the rifle hidden in the mobile fridge in Archanda Hill and/or (d) the gun he left at the scene on 6th June 1991. Mr Caldwell suggests it refers to all of those. In my view the warrant implicitly is referring to (d) and there is no real confusion. 10. A very similar submission is made in relation to fourth offence of possession of explosives. My response is as above. The warrant implicitly is referring to (d), the explosive device that was to have been placed under the car on 6th June 1991; which was (implicitly) recovered as an exhibit. 11. I am satisfied that sufficient particulars have been provided in respect of all four offences and this EAW is a Part 1 warrant in compliance with section 2(4)(c) of the Act.”
[18]Perhaps not surprisingly, Mr Summers has homed in on the difference in view between the position taken by Mr Caldwell in his submissions to the District Judge and the position taken by the District Judge. Mr Summers puts his argument attractively in his Skeleton Argument when he asserted that these two contrasting approaches to the EAW “visibly [demonstrate] its ambiguity”. He submits that the EAW fails to specify the weapons (which he equates with the “conduct”) to which Charge 3 relates or the explosives to which Charge 4 relates. Do the allegations, as the District Judge recorded, relate to(a) those with which the Appellant “trained” in the flat in Duesto in 1990,(b) those that were supplied to him after his training,(c) the rifle (and the grenades) that he had hidden in the mobile fridge in Archanda Hill and/or(d) the gun (and/or the explosive device) that he left at the scene on 6June 1991, or some combination or all four? The divergence of view, he submits, demonstrates that the answer is sufficiently uncertain for section 2(4)(c) not to have been met. Mr Summers recognises that the effect of an order discharging the Appellant on this ground would be likely to be a new warrant, more specifically directed, for offences 3 and 4.[19]Mr Summers draws attention to Dhar v National Office of the Public Prosecution Service, the Netherlands [2012] EWHC 697 (Admin), a decision of a Divisional Court comprising Moore-Bick LJ and King J. It is, of course, one of many cases where the question of the adequacy of the particulars in an EAW has been considered, a number of which were reviewed by King J at [63]-[70]. The two passages of particular relevance to the test to be applied are as follows: “The Appellant is entitled … to sufficient particulars to enable him to understand how the case is being put against him on critical allegations without that understanding being obscured by the fog of vagueness or ambiguity.” (per King J at [81].) “Although I accept that the warrant need not contain highly detailed information of the kind that one might expect to find in a civil pleading, it must contain enough information to enable the requested person to understand with a reasonable degree of certainty the substance of the allegations against him, namely, what he is said to have done, when and where, and also, in a case where knowledge of particular matters is an essential ingredient of the offence, sufficient information to enable him to understand why it is said that he had the necessary knowledge.” (per Moore-Bick LJ at [117].)[20]Mr Summers submits that there is a risk that the specialty protection otherwise to be afforded to the Appellant may be lost if further clarity is not given. He also argues that if, for some reason, the events of 6 June 1991 are “not prosecutable” offences 3 and 4 should “fall away”.[21]Mr Caldwell does not shy away from his primary proposition that the particulars relating to the guns and explosives relate to all the offences and not just to those alleged to have been committed on 6 June 1991. He submits that the EAW gives full and specific particulars of the relevant conduct, including the period of time during which the Appellant is said to have been involved in ETA and the locations where firearms, explosives and bomb-making equipment were secreted. His participation in the handling of explosives and weapons, as well as the hiding of these articles, is expressed in terms of a joint enterprise with the others named. In respect of his conduct on 6 June 1991, Mr Caldwell submits that the warrant is unambiguous: the Appellant is said to be with two others who are named (Jon Mirena and German Urizar de Paz) and a joint attempt was made to place an explosive device on a police officer’s vehicle at an identified location (Calle Landabeko, Baracaldo) and that each of them had a pistol (said to be a “weapon of war”). The warrant, he submits, identifies clearly and unambiguously the parameters of the alleged conduct and there is, he asserts, no uncertainty about the explosives or weapons with which the Appellant is alleged to have been concerned. His participation encompasses training in the use weapons and explosives, the hiding of these articles and their ultimate use in what was to be an attempt on the life of the police officer.[22]Whilst, of course, careful consideration must always be given to the question of whether an EAW fails to satisfy section 2(4)(c), quite frequently the answer will be based upon an overall impression of what is set out rather than a minute contextual analysis of the contents or individual aspects of the contents, a contextual analysis that, if undertaken, would be upon a document translated into English from the original. Equally, it is necessary to look at the particulars given as a whole in order to see whether it can be said that the particulars for any individual offence are inadequate. The way that this EAW is framed is not dissimilar to the manner in which many warrants that come the way of the Administrative Court on appeal are framed, namely, in a narrative way that tells the story of the alleged participation of the Appellant in the offences specified. Here the background to the events of 22 May and 6 June 1991 are set out fully and, as Mr Caldwell says, there is no uncertainty about the explosives or weapons with which the Appellant is alleged to have been concerned.[23]For my part, I would agree with the District Judge that the EAW was sufficiently particularised, but I would not myself conclude that any particular “implication” needs to be made to make good that conclusion. To the extent that it is of relevance, I would, for my part, say that it is clear that offence 3 embraces conduct going beyond the conduct alleged for 6 June 1991 because it follows offence 2 which itself refers to the events of 22 May. Offence 4 appears to relate solely to the Appellant’s involvement with the weapon he had with him for the purposes of the events of 6 June 1991. To that extent the particulars are clear and there is no “fog of vagueness or ambiguity” – the Appellant knows to “a reasonable degree of certainty the substance of the allegations against him” and which he will have to meet on his return to Spain if ordered.[24]Mr Caldwell also says in this connection, in my view with justification, that there is nothing to suggest that Spain will not honour its international obligations in respect of specialty. Indeed so much was confirmed by a passage in the judgment of the Divisional Court (Richards LJ and Silber J) in Brodziak v Circuit Court in Warsaw, Poland [2013] EWHC 3394 (Admin) at [46]:
“There is, moreover, a strong presumption that other Member States will act in accordance with their international obligations in respect of specialty. In Hilali v Central Court of Criminal Proceedings Number 5 of the National Court, Madrid [2006] 4 All ER 435, Scott Baker LJ referred to “a surprising submission that Spain is likely to act in breach of the international obligations to which it has signed up” (para 52). In Ruiz & Others v Central Court of Criminal Proceedings No 5 of the National Court, Madrid [2008] 1 WLR 2798, Dyson LJ endorsed the approach in Hilali, stating: “67. It is to be presumed that the Spanish authorities will act in good faith in the absence of compelling evidence to the contrary. They are trusted extradition partners and parties to the Framework Decision. They have incorporated the specialty rule into their domestic law, so that the appellants have a remedy under their domestic law in the unlikely event of a breach of specialty. 68. Secondly, there is no compelling evidence that the Spanish authorities will act in breach of their specialty rule and article 27 of the Framework Decision. Castillo’s case (which was governed by the Extradition Act 1989) does not provide such evidence. It appears that proceedings have not been completed. Even if Castillo’s case were to be evidence of a breach of specialty, it would be a single instance. There is no other evidence. Moreover, if there has been a breach of specialty in that case, the defendant has his remedy in Spanish domestic law.”
The need for compelling evidence of a breach of specialty arrangements was further emphasised in Arronategui v 1st, 2nd, 3rd, and 4th Sections of the National High Court Madrid, Spain [2012] EWHC 1170 (Admin), at para 47.” “67. It is to be presumed that the Spanish authorities will act in good faith in the absence of compelling evidence to the contrary. They are trusted extradition partners and parties to the Framework Decision. They have incorporated the specialty rule into their domestic law, so that the appellants have a remedy under their domestic law in the unlikely event of a breach of specialty.[25]In my judgment, the challenge to the particulars of the EAW fails.

Ground 3

[26]Before the District Judge Mr Summers called as a witness Senor Don Alfonso Zenon who is a Spanish defence lawyer who will represent the Appellant in Spain if he is extradited. His evidence was to the effect that all of the offences specified in the EAW (which are offences committed prior to the coming into force of the 1995 Criminal Code in Spain) are subject to the limitation periods specified in the 1973 Spanish Criminal Code. He explained that Spanish law operates in accordance with Article 7 ECHR such that if the law is changed more restrictively after the commission of an offence, a defendant is entitled to the benefit of the more favourable law. Apparently, the limitation laws were generally made more restrictive by the 1995 Code, but because the relevant offences date from 1991, the Appellant is entitled to the benefit of the 1973 Code and its more favourable limitation periods.[27]Senor Zenon’s evidence was that the relevant limitation period in a situation such as that revealed by the EAW in this case is defined by the limitation period applicable to the most serious offence. According to the Spanish Criminal Code, “attack, in connection with the offence of attempted murder” (contrary to Articles 233 and 406 of the Code) is the most serious offence because, as the EAW demonstrates, it is punishable with up to 20 years’ imprisonment. He said that what he described as “the prescription” would take effect after 15 years, a period which, he said, began with “the judicial ruling which marks the moment in which the procedure is commenced against the culprit” which in this case is “the ruling dated the 5th of September 1995”. Since the EAW was issued on 27 June 2012 (some 16 years and 9 months later), the “prescription” would apply.[28]He prepared a report to this effect dated 5 March 2013. The Respondent referred the report to the Judicial Authority and to the prosecution in Spain. The judge (Angel Hurtado Adrian, the Presiding Judge at the Second Chamber of the Criminal Court at the National Court) replied on 20 March 2013 in the following terms:
“The judge who signs this document will not inform on this point, since he is not appointed to sit on the Court which, if appropriate, will hold the oral hearing once the requested person is in our country. As you know, any discussion on the statute of limitations implies going into the substance of the case. This matter must be resolved pursuant to our national law and national case-law. In any case, for further information on the statute of limitations see the Public Prosecutor’s report attached hereto. What we can say is that if this Court in view of the background information had deemed that the statute of limitations period for the crimes the requested person is charged with had elapsed, this Court would not have issued this EAW.”
[29]The prosecution said this:
“The authorities who ask for more extensive information should be reminded of the fact that the elapse of the statute of limitations period in the requesting State is not among the grounds for optional non-execution of a EAW covered by article 4 of the Framework Decision of 13 June 2002. Only where the requested State has jurisdiction over the facts, the requested State has the right to apply the statute of limitations applicable under the laws of the requested State. The requested State must never assess the statute of limitations applicable under the law of the requesting State. To call for a clarification of that point infringes directly the above Framework Decision. A modicum of respect for mutual confidence on which the regime applicable to EAWs is based makes it impossible to accept an issue that goes far beyond the European Union provisions. Notwithstanding the foregoing, it should be made clear that the statute of limitations period for these facts has not elapsed, neither pursuant to the Spanish Criminal Code of 1973 nor pursuant to the Spanish Criminal Code of 1995.”
[30]The prosecution response then goes on to justify the position indicated in the second paragraph of that quotation. It asserts that the limitation period for attempted murder and attack is 20 years and that the relevant period has not expired under the Criminal Code of 1973 since the Appellant was “prosecuted” on 6 July 1992 (which is probably a mistake or mistranslation for 6 June or 6 July 1991) and that the proceedings have been “paralysed” since the order of 5 September 1995 (see paragraph 4 above). Equally, it is said that the period under the Criminal Code of 1995 has not expired either: that period is also said to be 20 years.[31]Those competing views were considered by the District Judge. As I have indicated, Senor Zenon gave oral evidence and was cross-examined. As I understand it, no oral evidence was given by an expert on behalf of, or other representative of, the prosecution in Spain.[32]The District

Judge introduced his response to this argument in this way:

“23. … Paragraph (f) of the EAW provides an opportunity for a [judicial authority] to enter information relating to limitation periods. In this case that paragraph has been left blank. In those circumstances the court would normally proceed on the basis that there was no limitation issue. 24. However, here [the Appellant] raises a limitation issue and seeks to persuade the court that the limitation period has elapsed and that if he were to be extradited he would be entitled to rely upon it and demand his immediate release. If that is correct then to keep him in custody here pending extradition or even worse to order his extradition would be incompatible with his Convention rights in particular his article 5 and 8 ECHR rights and further could be said to be an abuse of process by the [Judicial Authority] if it appreciates that any prosecution in Spain, is doomed to fail on this limitation point.”
[33]He then referred to Senor Zenon’s evidence and to what he described as the “rather tetchy” response of the Judicial Authority and said that the judge’s view, as revealed in the passage quoted in paragraph 28 above, “does little to reassure anyone that he turned his mind to the issue.” He also referred to the prosecutor’s view (see paragraph 29 above) and said (correctly, in my view) that it was wrong to say that “the requested state must never assess the statute of limitations applicable under the law of the requesting state” (my emphasis), although the District Judge observed that for the issue to arise it must do so as part of an abuse argument. I will return to that position shortly. He said that there was no basis for alleging abuse here and his conclusion on this issue was expressed as follows:
“… I have to be satisfied that the [Judicial Authority] honestly believes that it has a sustainable case against [the Appellant]. This is not an instance of a [judicial authority] claiming to have such a belief but offering no explanation for its belief. The [Judicial Authority] has here squarely addressed the argument advanced by [the Appellant] that the limitation period has elapsed. In my view, it cannot be concluded that its reasoned position, as set out in the Public Prosecutor’s letter of 2lst March 2013, has plainly no merit and that the [Judicial Authority] knows that it has no merit, so as to found an abuse of process. I do not say that [the Appellant’s] arguments will inevitably fail, or even that it is likely to fail. But on the authorities that is not the relevant test for determining whether there has been an abuse of process.”
[34]On that basis he said that he did not need to determine the issue of whether the limitation period had expired, but indicated his view of the evidence “ifa higher court were to conclude that there is an obligation upon this court to come to a decision, one way or the other, on this point” in the following terms:
“… I did not find Senor Zenon’s evidence particularly convincing on the start and end dates of the 15 year period, but I did find him more convincing that it was a 15 year period rather than the prosecutor’s assertion that it was a longer one. On balance, and with some misgivings, I find that [the Appellant] has not persuaded me that it is more likely than not that he has become immune by reason of limitation.”
[35]Mr Summers relies upon that passage as demonstrating that the Appellant “won on the facts” that there was a 15-year limitation period and that the period had run by the time the EAW was issued. I am not quite sure how that can be asserted given the terms of the final sentence of the passage quoted (which Mr Summers says was “simply illogical”), but at all events the District Judge’s expression of view on the effect of the evidence he heard must plainly be treated with some caution. He was evidently reluctant to express a view on the issue (because he considered that he did not need to do so) and such view as the passage quoted conveys was clearly expressed in suitably guarded terms. He had before him only one “live” witness with professed expertise on the matter and did not have the advantage of any “live” countervailing view. That always makes it difficult to make a properly informed decision on a complicated issue such as this: limitation, in whatever context, is often a difficult issue. It also highlights the proposition, to which I will turn shortly, that this kind of debate should only be entered by the courts of the requested state in the most exceptional of circumstances when there is the clearest possible evidence of the engagement in abuse by the prosecuting authorities of the requesting state. It needs also to be remembered that ordinarily there is no limitation period, certainly none prescribed by statute, in relation to crimes as serious as those involved in this case which have to be considered by the courts of England and Wales in relation to offences committed within their own jurisdiction. It follows that those courts are inevitably unfamiliar with the concept. That does not make it impossible for the courts of this jurisdiction to consider the issue if it arises, but a judgment on the issue that commands respect and recognition demands high quality evidence upon which it is based. It is possible, in the light of the District Judge’s view, that the Appellant’s advisers are right that the Spanish limitation period has run its course (although, speaking for myself, I would be surprised if this was soand, as Mr Caldwell submitted, it is counter-intuitive from the perspective of English law that judicial inactivity should have the effect of suspending the limitation period whilst actively seeking an order for arrest should give a fugitive the benefit of a limitation period running in his favour: Gomes and Goodyer v Government of Trinidad and Tobago [2009] UKHL 21); but irrespective of that, it seems to me that the mere advancement of a potentially erroneous proposition of law does not of itself necessarily evidence abuse of the kind needed for the requested state to intervene. In this case, of course, the disputed proposition emanates, at least implicitly, from the judicial authority of the requesting state.[36]Mr Summers, however, says that it is wrong for the courts of England and Wales only to address this issue in the context of a potential abuse argument. He recognises that this has been the approach in cases such as Battistini v The Court of Naples, Italy [2009] EWHC 3536 (Admin), Bendik v Judicial Authority of Slovakia [2010] EWHC 1821, Mohammed v The Court of Appeal, Paris [2013] EWHC 1768 (Admin) and Konuksever v The Government of Turkey [2012] EWHC 2166 (Admin). He says, however, that discharge was ordered on limitation grounds in the absence of bad faith by this court in Laskowski v District Court of Legnica, Poland [2011] EWHC 994 and Janaszek v Circuit Court in Plock (Polish Judicial Authority) [2013] EWHC 1880 (Admin). He also draws attention to some cases that address what he describes as “the broadly parallel situation where a defendant has served the entirety of his sentence (or possible punishment) on remand awaiting extradition”: see, e.g., Wysocki v Polish Judicial Authority [2010] EWHC 3430 (Admin) and Newman v District Court of Krakow, Poland[2012] EWHC 2931 (Admin).[37]For my part, I do not see the approach in the cases of Laskowski, Janaszek, Wysocki and Newman as anything more than, in each case, a pragmatic response to an acknowledged and obvious legal situation in the requesting state. I would not myself have deduced from them any support for the approach sought to be established by Mr Summers. Indeed the same, as it seems to me, can be said of Jaffar (No. 1) v HM Prison Brixton[2003] EWHC 3077 and Atilla v Government of Turkey [2006] EWHC 1203 (Admin), both relied upon by Mr Summers. The former can, of course, be said to support the proposition that an expired limitation period may establish “oppression” under the “lapse of time” provisions now to be found in section 14 and the latter that, in similar circumstances, Article 5 may be engaged. However, neither sheds light on what the domestic court should do when the issue is not clear cut and is contested.[38]Mr Caldwell says that the approach in Battistini (followed by me in Mohammed), which involved disputed opinions about Italian law, is the correct approach and consistent with other authorities. It is worth repeating what Maurice Kay LJ said in Battistini:
“However, the prior question is whether this court should become involved in adjudicating upon these inconsistent interpretations of Italian law. For my part, it seems to me fundamental that in a European Arrest Warrant case it is wholly inappropriate for this court to proceed to adjudicate upon rival interpretations of Italian law. All this is a matter for the Italian courts in accordance with the principle expounded by Lord Brown in Gomes. Quite simply, we should not get involved.”
[39]To that Mr Caldwell adds Symeou v Public Prosecutor’s Office at the Court of Appeals, Patras, Greece[2009] EWHC 897 (Admin), where the Divisional Court (Laws LJ and Ouseley J) had to consider the primary submission of the appellant that “extradition would be an abuse of process because of the way the Greek police had investigated the offence, within which was subsumed what had been a separate argument to the effect that a serious defect in its domestic procedure invalidated the Greek domestic arrest warrant and thereby invalidated the EAW” (see [2]).In that case there was a conflict of evidence before the District Judge as to whether there had been a breach of the Greek Criminal Code by the prosecutor. Ouseley J, giving the judgment of the court, said this:
“49. In our judgment, the District Judge’s fundamental concern about hearing evidence about the Greek Prosecutor’s compliance with domestic law was well-founded. The EAW system follows the Council Framework Decision of 13th June 2002 which envisages the creation of a common area of justice, in which there would be free movement of judicial decisions in criminal matters, a common judicial area replacing traditional forms of co-operation. A new and simplified system of surrender of suspects for prosecution was to be created. As Lord Hope put it in Dabas … at para 42: “The principle on which this new system is based is the mutual recognition of criminal decisions between the member states. The European arrest warrant is designed to have a uniform effect throughout the European Union. The effect at which it aims is that of swift, speedy surrender.” 50. Lord Hope then applied that principle to the question of whether a judge considering an extradition order based on a EAW needed information not specified in section 2 in order to test whether the conduct alleged constituted an offence against the law of the requesting state. Although that is not the issue here, what he said is apposite to the argument which does arise. In paragraphs 53 – 55 he said: “53. In Office of the King’s Prosecutor, Brussels v Cando Armas … para 30, I said that the judge need not concern himself with the criminal law of the requesting state when he is asked to decide under section 10(2) whether the offence specified in the Part I warrant is an extradition offence. Miss Montgomery said that this was not so, but I believe that what I said there was accurate. The system on which the European arrest warrant is based depends on co-operation between the judicial authorities of member states. Any scheme which retained scrutiny of the text of the foreign law as a requirement would be bound to give rise to delay and complexity – the very things that in dealings between member states the Framework Decision was designed to eliminate. In my opinion section 2(4)(c) does not require the text of the foreign law to be set out in the Part I warrant. Article 8(1)(d) of the Framework Decision states that among the information that the European arrest warrant must contain is “the nature and legal classification of the offence”
. Section 2(4)(c) requires no more than that. 54. Consistent with the Framework Decision, the judge need not examine the text of the foreign law in order to decide whether the conditions set out in section 64(3) are satisfied. Section 2(4)(c) is not to be read as requiring material to be included in a Part I warrant, not mentioned in the Framework Decision, that the judge does not need when he is conducting that exercise. A warrant which contains the statements referred to in section 2(2) is a Part I warrant for all purposes. So I do not think that it is possible to spell out of the language of the statute the requirement for which Miss Montgomery contends.” 51. Although Lord Hope couches his language in terms that the judge “need not concern himself” with the criminal law of the requesting state, the thrust is that he should not do so, except in true abuse of extradition process cases, and should not do so, not as a matter of discretion, but as a matter of jurisdiction. Such inquiry is simply not his task. The effect of the Framework Decision, and the interpretation of the 2003 Act Part I, go further than the traditional assumption of good faith between sovereign states and a need to accommodate different national legal processes. 52. The circumstances of this appeal illustrate the point, and the way in which the contrary view would undermine the legislative intention. The context is an extradition case, pursuant to what is intended to be a simplified decision-making process in an area of mutual recognition of judicial decisions in criminal matters. There is a disagreement among the Greek lawyers about what the Greek Code of Criminal Procedure requires. It would be quite extraordinary for the District Judge to hear evidence from competing experts on Greek law, including the Prosecutor of the requesting state, so as to rule as a matter of fact on what Greek law was, then to find whether in fact the actions of the Prosecutor had breached whatever the law was found to be, then to rule on the effect on the validity of the warrant of a breach of its Code, each of which might be quite uncertain in Greek law, and then to rule on whether that caused the EAW to be invalid as a matter of English law implementing the Framework Decision. And if extradition then ensued, the matter would be dealt with by the Greek Courts who would be unlikely to regard the views of the English Courts on Greek law as of more than passing interest. If it did not ensue, the Greek Courts would never have the chance to put it right. 53. The District Judge, on this basis and he recognised this was probably right, should not have considered evidence about Greek domestic law. If he had ruled that on the facts that there had been a breach of domestic law and that that in Greek law invalidated the domestic warrant, he would have trespassed beyond his functions. It follows from Dabas that even if he concluded that the domestic warrant was invalid in Greek domestic law, he had no jurisdiction to rule that the EAW itself was thereby invalidated.” “The principle on which this new system is based is the mutual recognition of criminal decisions between the member states. The European arrest warrant is designed to have a uniform effect throughout the European Union. The effect at which it aims is that of swift, speedy surrender.” “53. In Office of the King’s Prosecutor, Brussels v Cando Armas … para 30, I said that the judge need not concern himself with the criminal law of the requesting state when he is asked to decide under section 10(2) whether the offence specified in the Part I warrant is an extradition offence. Miss Montgomery said that this was not so, but I believe that what I said there was accurate. The system on which the European arrest warrant is based depends on co-operation between the judicial authorities of member states. Any scheme which retained scrutiny of the text of the foreign law as a requirement would be bound to give rise to delay and complexity – the very things that in dealings between member states the Framework Decision was designed to eliminate. In my opinion section 2(4)(c) does not require the text of the foreign law to be set out in the Part I warrant. Article 8(1)(d) of the Framework Decision states that among the information that the European arrest warrant must contain is “the nature and legal classification of the offence”. Section 2(4)(c) requires no more than that. 54. Consistent with the Framework Decision, the judge need not examine the text of the foreign law in order to decide whether the conditions set out in section 64(3) are satisfied. Section 2(4)(c) is not to be read as requiring material to be included in a Part I warrant, not mentioned in the Framework Decision, that the judge does not need when he is conducting that exercise. A warrant which contains the statements referred to in section 2(2) is a Part I warrant for all purposes. So I do not think that it is possible to spell out of the language of the statute the requirement for which Miss Montgomery contends.”[40]Mr Summers’ essential argument is that there is nothing in that case to the effect that section 14, Article 5 and/or Article 8 prohibit inquiry into whether a relevant limitation period in the requesting state has expired and to act upon a positive finding that it has. Whilst, strictly speaking, that is so, it does not, in my judgment, negate the proposition (to be deduced largely from cases where the issue of abuse has either been raised or has been considered the legal umbrella under which the issue of limitation should be debated if it is to be debated at all) that the domestic courts should be extremely reluctant to engage in evaluating the competing arguments about the local law of limitation in the requesting state. It is always wise never to say ‘never’, but the circumstances when it is justified must surely be truly exceptional.[41]At all events, I do not consider that the District Judge needed to consider the issue in this case beyond the reasons he gave in the passage of his ruling set out in paragraph 33 above. Furthermore, I do not consider that his tentative expression of view on the position under Spanish law gives the Appellant any support in this appeal. In my view, this ground fails.[42]I should record that Mr Caldwell also referred me to the decision of the Supreme Court in Zakrzewski v The Regional Court in Lodz, Poland [2013] UKSC 2 and Mr Summers referred me to the decision of the House of Lords in Caldarelli v Court of Naples, Italy [2008] 1 WLR 1724. Neither, in my judgment, advanced the arguments in this particular context significantly further than the authorities to which I have already referred and I do not think I need make further reference to them.

Ground 4

[43]The Appellant’s case (which was advanced by way of his own evidence before the District Judge) is that following his arrest in June 1991 he was detained incommunicado during which he was repeatedly interrogated by the Spanish police and ill-treated to an extent that he contends amounted to torture. His evidence was that he was subjected to the following: 1. being tied to a chair with his hands behind his back and punched in the stomach with force; 2. having pencils placed in the webs between his fingers and squeezed to cause intense pain; 3. having a cigarette stubbed out in an open wound on his face; 4. being questioned for hours at a time whilst tied to a chair; 5. being hit on the back of his head with the flat of the hand and with books; 6. being deprived of food and sleep; and 7. being taken into a forest and made to dig (what he was told) was his own grave, and told that he was going to be killed.[44]His account is that on the first and third days of his incarceration, 6 and 8 June 1991, he signed incriminating statements, the second having been signed in the presence of a state-appointed lawyer (with whom he was not permitted to communicate). He says that after these statements had been signed the torture ceased.[45]I will say a little more about his allegations in this regard shortly, but it is to be noted that Mr Summers says that, whilst, as he would say, problems remain in Spain, it is not suggested by the Appellant, nor has he ever suggested, that the “international materials disclose any real risk of torture for [him] in Spain now.” If surrendered, the Appellant would not be in the custody of the Guardia Civil. However, it is his case that at the material time there was a prevalent practice of ill-treatment of terrorist suspects, the existence of such practice being acknowledged by reputable sources such as Amnesty, Human Rights Watch and the Council of Europe Committee for the Prevention of Torture (‘the CPT’). The District Judge’s attention was drawn to a CPT report dated March 1996 which spoke of this practice. He took this into account in reaching certain findings of fact on the Appellant’s account.[46]Before dealing with those findings, again it should be noted that the District Judge did not consider that it was an area he ought to enter. His general approach, having referred to Konuksever v The Government of Turkey (see paragraph 36 above), was expressed as follows:
“Accordingly, if proof of torture is not, in itself, an automatic bar to extradition then the district judge at the extradition hearing needs to consider very carefully whether the court should undertake any inquiry of such an issue. Obviously, any court enquiry as to whether there has been torture in the requesting state is likely to be better undertaken by a court in the requesting state, providing of course, that court is willing to undertake such an enquiry. In this case, for example, the alleged torturers, the interviewing officers, the doctors who examined [the Appellant] and other potential witnesses are all in Spain and it would be open to a Spanish court to hear evidence from such persons and [the Appellant] and then to decide whether [the Appellant’s] allegations are true or false. It is unlikely that any court in this jurisdiction, (particularly if, as in this case, only [the Appellant] gave live evidence) could come to anyconclusion other than the court could not rule out the possibility that he had been tortured. Such a finding has little value.”
[47]Having expressed that view, he did go on to make certain findings against the background set out in the following paragraph of his decision:
“In case a higher court should conclude that there is a duty on the district judge to make a finding on whether or not [the Appellant] was tortured then what follows is my decision on that issue. For all the reasons given above and, in particular, as the [Judicial Authority] has not participated (it could have done, but in my view correctly declined to do so as the issue of whether [the Appellant] was tortured is a matter for Spain to resolve) and therefore it follows my decision is made on limited material without the benefit of the [Judicial Authority’s] contribution.”
[48]The following extract from the ruling of the District Judge will indicate the nature of the evidence he received on this issue, both from the Appellant and by reference to certain medical records:
“63. … Following [the Appellant’s] arrest early on 6th June 1991 he was seen by a doctor at 5 pm that afternoon. [The Appellant] told the doctor he had “received blows to the head with an open hand, and also by foot. Also refers to abdominal contusion from a fist and having pencils pressed into the web of left hand.”
On examination he had injuries consistent with that history (although strangely there does not appear to have been an examination of his stomach so we do not know whether there was any evidence of a bruise there) and, in particular in relation to the ‘pencil treatment’ the doctor found ‘increased local heat and erythema (superficial reddening of the skin caused by dilation ofthe blood capillaries, as a result of injury or irritation) in the web of the 4th finger of the left hand, referring to paraethesis (abnormal sensation, especially ‘pins andneedles’ caused by pressure on or damage to peripheral nerves) of the finger. [The Appellant] was seen again the next day (7th June) at 8.30 pm when he complained he had been hit again with a hand to the back of his head. No signs of new injury were found. In relation to the paraethesia in the 1st and 4th fingers of the left hand there were no signs of inflammation. [The Appellant] was seen again on the next two days but he makes no complaint of having been mistreated and no new injuries were detected, but he continued to complain about the persistent paraethesia of his fingers. 64. That evidence shows he was complaining to the doctor of mistreatment by the police and whereas some of his injuries might be consistent with a forceful arrest that seems unlikely in relation to the ‘pencil treatment injuries.’ Further there is a complaint of further mistreatment the next day, he claims he was hit with a flat hand to the back of his head whilst in police custody, although in that respect there are no supporting medical findings.”[49]The District Judge then referred to evidence of further occasions when the Appellant complained about his treatment in custody and reached the following conclusion:
“68. In the light of all this material I acknowledge [the Appellant] (i) complained to the doctors, when examined, that he had been mistreated by the police on the first and second days of his detention, (ii) when he made his statement before the court on 10th June 1991 it included allegations of his mistreatment by the police, (iii) there was medical evidence which lent support to his claims, in particular, in relation to the ‘pencil treatment,’ (iv) no one has suggested any innocent explanation that might account for the ‘pencil treatment injuries.’ 69. Given (i) the CPT reports, (ii) [the Appellant’s] contemporaneous complaints, (iii) the evidence of [the Appellant’s] injuries, as noted by the doctors at the relevant times and (iv) [the Appellant’s] evidence to this court I am persuaded (on such evidence as I have heard) that it is more likely than not [the Appellant] suffered what I have been calling the ‘pencil treatment.’ I am not persuaded he was tortured.”
[50]The District

Judge encapsulated what he saw as “torture” in the following way:

“I am not convinced, even if [the Appellant] suffered as he claims, it would be characterised as torture or even severe ill-treatment. Obviously, a deliberate hard punch to the stomach whilst [the Appellant] “was tied to a chair” …, the pencil treatment …, having a cigarette stubbed out in an open wound on his face … are all examples of deliberate assaults intended to cause pain, but whether such conduct ‘causes very severe and cruel suffering’ is debateable. Nevertheless, if it occurred it was manifest mistreatment to which he should not have been subjected.”
[51]Leaving aside other issues, Mr Summers submitted that the District Judge’s conclusion that the “pencil treatment” was not torture was unsustainable. I did not understand Mr Caldwell to disagree. I also do not, with respect, understand how such an activity could not be characterised as torture. Whilst there are plainly degrees of ill-treatment and in so far as there may be a scale of seriousness of torture, it is, of course, possible to imagine what many would regard as worse forms of torture than this, but torture this must surely have been.[52]The District Judge did not make positive findings on the other allegations made by the Appellant, but equally did not apparently reject them. For the purposes of the appeal, I will assume that the Appellant was the victim of ill-treatment during his detention (designed to secure admissions from him) such that his treatment should be characterised as torture. Mr Summers recognizes, however, that that assumption will not be sufficient for this court to conclude (as his original Ground 5 alleged) that there would be a “flagrant violation of Article 6 … owing to the prospective use of evidence obtained by torture”: see, e.g., Krolik v Several Judicial Authorities in Poland [2012] EWHC 2537 (Admin) and Sanchez v The Second Section of the National High Court of Madrid, Spain [2013] EWHC 2264 (Admin). On that basis, Ground 5 was not pursued.[53]However, it is asserted that it is unconscionable – and abusive - for a state whose officials have deliberately tortured a person in their custody to seek to use the EAW system (founded on the principles of mutual trust and international cooperation) to seek to gain further custody over that individual in (and to continue) the same proceedings. This is Ground of Appeal 4. Mr Summers submits that this would be a “tainted prosecution” which would offend the rule of law: cf. R v Horseferry Road Magistrates’ Court, Ex parte Bennett [1994] 1 AC 42.[54]Mr Summers referred to Rangzieb Ahmed, Habib Ahmed v The Queen [2011] EWCA Crim 184, where the Court of Appeal Criminal Division summarised the nature of the jurisdiction upon which he seeks to draw in this part of his argument. At [24] Hughes LJ, as he then was, said this:
“There is no doubt about the jurisdiction to stay for abuse of process. It applies where the trial process will be internally unfair …, but it is not limited to such cases. It may be exercised also where, by reason of gross executive misconduct manipulating the process of the court, the defendant has been deprived of the protection of the rule of law and it would as a result be unfair to put him on trial at all. That was clearly established by [Bennett] and R v Mullen [1999] 2 Cr App R 143. In both cases the defendant had been kidnapped abroad and brought into this jurisdiction by an unlawful rendition, to which the British authorities were party. In both those cases, however, there was a clear link between the abuse of power on the part of the executive/prosecution and the trial; the trial was the very object and result of the unlawful abuse of power. Thus in those cases it is properly said that not only is the misconduct of the executive an affront to the public conscience, but also, and critically, that the trial itself is such an affront. The first is not a sufficient ground for a stay, but the second is; the jurisdiction does not exist to discipline the police or other executive arms of the State (although of course it will incidentally do so), but rather to protect the integrity of the processes of justice. In R v Grant [2005] EWCA Crim 1089; [2005] 2 Cr App R 28 at 409 the police had deliberately and unlawfully eavesdropped on and recorded privileged conversations between a suspect and his lawyer. This court held that a stay should be imposed in consequence even without there being any product of the listening giving rise to evidence relied on at trial. We are bound by that decision, albeit that it appears to represent some extension of the jurisdiction, but we observe, as did the judge in the course of argument in this case, that even without use of the material in the trial there was a clear link between a suspect’s right of private access to legal advice when facing criminal charges and his subsequent trial on those charges. Indeed, the court in that case described the behaviour of the police as an affront to the integrity of the justice system (paragraph [54] – our emphasis). Moreover, that description is unsurprising since the actions of the police can only have been deliberately unlawful and there existed no even colourable claim to a necessity to balance competing considerations of public interest. We also accept that the jurisdiction to stay may, in certain circumstances, be invoked where to try a defendant would involve a breach by this country of a specific international obligation not to do so: see for example R v Uxbridge Magistrates Court ex p Adimi [2001] QB 667, considered in R v LM & others [2010] EWCA Crim 2327. In those cases also, however, there was the clearest link between the trial itself and the international obligation; to undertake the former involved a direct breach of the latter. It does not at all follow that in every case in which it is suggested that there has been a breach by the UK of an international obligation in respect of an individual, that individual becomes exempt from prosecution, and (if guilty) punishment, for an offence which he has committed.”
[55]In that case Hughes LJ articulated (at [25]) the case that Rangzieb Ahmed sought to advance in this way:
“The first limb of Rangzieb’s case on the application to stay was that the UK had connived in this case, as in Bennett and Mullen, at his unlawful rendition to this country by the Pakistani authorities for the purpose of putting him on trial here. If that had been so, it would indeed provide a ground for staying the prosecution. There would be a plain connection between an international wrong, to which the British authorities were party, and the trial.”
[56]Mr Summers contends that, by analogy, there is a ground for intervention by the domestic court in this case because there was an international wrong (namely, the torture) perpetrated to extract a confession with a view to putting the Appellant on trial. Whilst that case involved an alleged unlawful rendition, the same principles, it is said, should apply to this case. He also said that what was advanced as the second limb of Rangzieb Ahmed’s case (see [26]-[49]) ought also to apply and that this is a clear case of abuse (because of the torture) and the extradition should, accordingly, be halted. It is not entirely clear to me what distinction there is between the first and second limbs in Ahmed for the purposes of the arguments in this case: it is essentially a question whether the established torture is sufficient to taint the prosecution.[57]In this overall connection Mr Summers drew attention to what he said was a lack of frankness on the part of the prosecution and the Spanish judge about what had occurred during the Appellant’s interrogation.[58]In the same document as that referred to in paragraph 28 above,

the judge said this:

“Torture allegations made by the counsel for the defence are not surprising. Such allegations are usually made in this kind of proceedings. We have not been able to read the requested person’s statement that was forwarded to us, since it has been transcribed in English. What we can say is that we have reviewed the whole proceedings and we have verified that although he was held incommunicado during his arrest, this incommunication was controlled at all times by the pre-trial judge. The requested person was assisted by legal aid when making his statements before the police and before the court. Pursuant to Spanish procedural law any detainee held incommunicado must be assisted by legal aid and not by a lawyer of his choice. There are no complaints from the requested person about ill-treatment during his detention, nor during his examination by the forensic surgeon on 10 June 1991 when he was brought to the Central Pre-Trial Judge, nor when he made a statement before this Judge. We have no evidence of any later complaints for ill-treatment lodged by him.”
[59]The statement of the Appellant to which the judge refers runs to some 39 single-spaced paragraphs and 8 pages and sets out his current account of the events of June 1991. The statement suggests that he was not taken before a judge until 10 June which does appear to be borne out by what the judge said. The Appellant, however, suggests that he had no opportunity to consult a lawyer before signing the “confessions” which means that he was not “assisted” before he did so as the judge asserts. For my part, I cannot see that this affords any basis for suggesting that the judge had not been open with the District Judge. It rather depends on whether the word “assisted” in the translation conveys accurately the judge’s meaning. If, for example, what was meant was that any confession was made simply in the presence of a state-appointed lawyer (and not a lawyer of the detainee’s choice), which appears to have been the practice at the time, then, whilst that might raise other issues, it does not raise any question of misinformation being given by the judge to the District Judge.[60]The suggestion that there were no complaints by the Appellant about his treatment would, taken simply as it stands, be at variance with the evidence. However, there are two paragraphs in the same document from the judge, following a very short paragraph detailing the circumstances in which he was arrested, where the judge records the occurrence of the medical examinations on 6 June and 10 June when the Appellant did complain about his treatment. The judge also recorded the results of the examination of the doctor which, at least to some extent, confirmed the Appellant’s account. What the judge says is that the Appellant did not complain to the judge before whom he appeared whereas the Appellant says that he did. The mere fact that there is a difference in view about this (which no court in England or Wales could resolve) does not mean that the Spanish judge is giving misleading information to the District Judge.[61]Subject to the submissions to the contrary made by Mr Summers (see paragraph 63 below), the focus of a “tainted prosecution” must be upon the conduct of the prosecuting authority, not the judicial authority. Mr Summers draws attention to what the prosecuting authority said in response to the request for further information and suggests that it is less than frank (“outright untruthful and misleading” was the expression used in his Skeleton Argument) and betrays a preconceived notion about the Appellant’s allegations:
“With respect to allegations of torture it must be noted that these are the classic defence allegations made for Basque terrorist organization members who are in prison. It should be noted that the Spanish Public Prosecutor’s mission as well as the Crown Prosecution Service’s mission is to ensure the defence of legality and the defence of citizens’ rights as well as to ensure full respect and integrity of those rights. Both not only do not consent to crimes but have the mission to prosecute every crime, even those crimes that might have been committed in cases of ill-treatment of detainees. That said, nowhere in the proceedings is there any evidence whatsoever to support ill-treatments, especially not during the statement given before the pre-trial judge. In our legal system it is the pre-trial judge who directs the investigations and examinations. Furthermore, it is up to the pre-trial judge to ensure full respect of the [accused’s] individual rights throughout the investigation stage. The Public Prosecutor assists in the investigations and plays an active role. The Public Prosecutor neither is aware of any torture or ill-treatment of detainees nor would he have consented to torture or ill-treatment of detainees, acting in the same way as the CPS.”
[62]Mr Caldwell was inclined to agree that this was less dispassionate than it might have been and there can be no doubt that the suggestion that “nowhere in the proceedings is there any evidence whatsoever to support ill-treatments” is plainly incorrect. But taking this adverse criticism of what is said by the prosecutor at its highest, does it afford a basis to find bad faith on the part of the prosecutor or that it evidences the proposition that the prosecution is “tainted”? Mr Caldwell contends that there is no evidence that the prosecutor had prior knowledge of the intentions of police officers to ill-treat the Appellant or to try to obtain evidence by means of ill-treatment or that the Prosecutor connived or gave any encouragement to such conduct. There is, he says, a clear denial of complicity and the decision of the prosecutor to continue proceedings where there has been a complaint of torture does not in itself sustain a conclusion that there is an abuse of process by the Spanish state. That, he says, is a matter for the Spanish courts to determine. He also emphasises that the issue for consideration is the conduct of the prosecuting authority, not the police. This is brought into relief by Symeou (see paragraph 39 above). The following two paragraphs of the judgment of Ouseley J are relied upon:
“33. In our judgment, the reason why these two strands to the abuse argument cannot succeed is this. The focus of this implied jurisdiction is the abuse of the requested state’s duty to extradite those who are properly requested, and who are unable to raise any of the statutory bars to extradition. The residual abuse jurisdiction identified in R (Bermingham) v Director of the Serious Fraud Office [2007] QB 727 and the Tollman case [2007] 1 WLR 1157 concerns abuse of the extradition process by the prosecuting authority. We emphasise those latter two words. That is the language of those cases. It is the good faith of the requesting authorities which is at issue because it is their request coupled with their perverted intent and purpose which constitutes the abuse. If the authorities of the requesting state seek the extradition of someone for a collateral purpose, or when they know that the trial cannot succeed, they abuse the extradition processes of the requested state. 34. The abuse jurisdiction of the requested state does not extend to considering misconduct or bad faith by the police of the requesting state in the investigation of the case or the preparation of evidence for trial.”
[63]Mr Summers replies to those arguments by making a number of points about Symeou. First, contrary to the approach in Symeou, he submits that there is no scope for the division of “the state” into police, prosecutor and judge: they are all, he would say, emanations of the state and it is impossible to divide them in the way suggested. He draws attention to Ahmed and says that that case involved police misconduct, but nonetheless would have engaged the abuse powers of the English court if the facts had been established. Second, he says, on the facts of this case, that the police were not acting in isolation because the torture took place in the context of the interrogation and the CPT materials suggest that, at the material time, there was a systemic practice of torture. Third, he says that Symeou was not concerned with torture. Fourth, Symeou was concerned with police conduct relating to witnesses and not to the treatment of the accused in that case. Finally, he says that Symeou was decided before Ahmed and, presumably, contends that it should be read subject to Ahmed.[64]In the first place, in my view, some caution needs to be shown before applying any phraseology used in Ahmed to the extradition jurisdiction. That was a case in which the Court of Appeal Criminal Division was reviewing the correctness of the decision of a judge sitting in the Crown Court about whether to stop the case on the grounds of abuse. It was not addressing directly any of the normal issues that arise in extradition proceedings. Secondly, and allied to that first point, Symeouwas concerned directly with the extradition process and what the court said, albeit not directly in the context of torture, was undoubtedly in point by analogy in the context of torture allegations: I cannot see that the distinction between the two types of case is material for present purposes. Third, in my judgment, the division of the organs of the Spanish State as between the police, prosecutor and judiciary is entirely legitimate: they may each be an emanation of the state, but each is separate and distinct and the distinction maintained in Symeou is a valid distinction for these purposes.

Conclusion

[65]However the issues raised by Mr Summers on the Appellant’s behalf are articulated, they are answered by the proposition that the essential framework by which this court determines its extradition jurisdiction is to show mutual trust for the processes of those countries with which it has extradition arrangements and, of course, to assume that Convention rights will be upheld in requesting states. Whatever the history may have been in this case, it is recognised that the Appellant will not be subject to torture on his return to Spain if it is ordered and that he will receive a trial meeting Article 6 requirements. In that latter context the natural assumption is that the Spanish court will, if any disputed confession is relied upon by the prosecution, subject the circumstances in which it was given to appropriate scrutiny and, if shown to have been obtained through torture, to exclude its admissibility. In this case it cannot be ignored, as the District Judge observed, that if the primary police evidence is accepted the Appellant and his accomplices were caught “red-handed”. However, all the relevant protections against the use of tainted evidence exist within the Spanish legal system such that they can be deployed by the Appellant should he choose to do so.[66]The same broad approach applies to the question of limitation for the reasons I have given.[67]The District Judge was, correctly in my view, very reluctant to become involved in some of the fact-finding missions upon which he was invited to embark. To my mind, there is plenty of authority (for example, in the guise of Battistini and Symeou) which would have justified refusing to embark upon those missions as a matter of principle. There remains in most cases the pragmatic consideration (which also informs the principle) of the quality of evidence that could be received: half the story given orally by one side and half provided in writing on the other (with no full disclosure) is hardly a satisfactory basis for a finding of fact that is ordinarily far more conveniently made in the courts of the jurisdiction where the issues originally arose.[68]In my judgment, the grounds of appeal do not succeed and the appeal must be dismissed.