Boudhiba v Central Examining Court No 5 of the National Court of Justice, Madrid
| Jurisdiction | England & Wales |
| Judge | Lady Justice Smith,Mr Justice Newman,LADY JUSTICE SMITH |
| Judgment Date | 15 February 2006 |
| Neutral Citation | [2006] EWHC 167 (Admin) |
| Date | 15 February 2006 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/3636/2005 |
[2006] EWHC 167 (Admin)
IN THE HIGH COURT OF JUSTICE
DIVISIONAL COURT
QUEEN'S BENCH DIVISION
lady Justice Smith
Mr Justice Newman
Case No: CO/3636/2005
Toby Hedworth QC and Mark Summers (instructed by Hayes —Burcombe) for the Claimant
Edmund Lawson QC and Adina Ezekiel (instructed by CPS) for the Defendant
Introduction
This is an appeal pursuant to section 26 of the Extradition Act 2003 (the 2003 Act) against the order made by an appropriate judge, Deputy Senior District Judge Wickham, sitting at Bow Street Magistrates Court on 2 nd June 2005. The district judge ordered the appellant, Hedi Ben Youssef Boudhiba to be remanded in custody to await his extradition to Spain.
Spain is a category 1 territory to which Part 1 of the 2003 Act applies. On 11 th June 2004, a European Arrest Warrant (the first warrant) was issued by the Central Examining Court Number 5 of the National Court of Justice, Madrid. It sought the extradition of the appellant in respect of serious offences of or related to terrorism. In August 2004, a second warrant was issued by the Spanish Court, and was sent to London. It was in almost identical terms and superseded the first warrant. Acting pursuant to section 2(7) of the 2003 Act, on 12 th August 2004, an officer of the National Criminal Intelligence Service certified that the Part 1 warrant had been issued by a judicial authority of a category 1 territory which had the function of issuing arrest warrants. On 20 th August, the appellant, who at that time was already detained in HMP Prison at Belmarsh, pursuant to the Anti-Terrorism Crime and Security Act 2001, was arrested and brought before the Bow Street Magistrates Court for an initial hearing. An extradition hearing was fixed and commenced on 6 th October 2004. This hearing was adjourned part heard on a number of occasions and was completed on 2 nd June 2005.
As Lord Bingham observed in paragraph 2 of his speech in Office of the Kings prosecutor, Brussels v Cando Armas [2005] 3 WLR 1079, Part 1 of the 2003 Act is designed to provide a 'simpler, quicker more effective procedure' for the extradition of persons between member states of the European Union and is 'founded on the Member States' confidence in the integrity of each others' legal and judicial systems'. The history of this extradition hearing and this appeal would suggest that, at the present time at least, the objectives of speed and simplicity have not yet been achieved.
History
The appellant is aged 45 and of Tunisian origin. The respondent to these proceedings, the Spanish judicial authority, contends that he is accused in Spain of offences of belonging to a proscribed organisation (Al-Qaeda), terrorism and forgery of administrative documents and trafficking therein. Both the first and second warrants follow the pro forma warrant pursuant to the Framework Decision of 2002/584/JHA of the Council of the European Union. The pro forma warrant is intended to be used by all member states for European Arrest Warrants. It includes a list of 'Framework offences' which is reproduced in Schedule 2 of the 2003 Act.
Both warrants set out the circumstances of the appellant's alleged conduct and include a description of the conduct of other persons being investigated by the Spanish authorities for similar and related offences. It is said that the appellant used a number of aliases including Fathi, Ammar Moula, Abilion Guillerme Lopes de Sousa Martin and Ali Ahmed Alefetori. It is said that he was a member of a fundamentalist terrorist cell linked to Al-Qaeda. He associated with known members of Al-Qaeda in Germany, in particular members of the Hamburg cell involved in the attacks on the USA in September 2001. He travelled to Istanbul in September 2001, using the name of Ammar Moula, with members of the Hamburg cell. It is said that he associated with others in Spain who, together, received money illegally obtained in Germany. This money was received for the purpose of assisting terrorist activity. It is said that the appellant was involved in a cell operating in Portugal which was providing forged passports for associates in other parts of Europe. These activities also took place in Spain and the appellant was involved in them. The passports were used to assist in terrorist activities. The appellant's photograph was on a false Portuguese passport in the name of Abilion Guillerm Lopez de Sousa Martin found at a flat in Wood Green, London in January 2003 at which (it is said in the warrant) there were also found traces of ricin, believed to be intended for a terrorist attack on London. Lest there be any misunderstanding, I add that the UK investigations did not confirm the presence of any ricin at these premises.
The first warrant listed four offences relevant to this appellant and identified the relevant articles of the Spanish criminal code. These were:
* Crime of Integration in Terrorist Organisation (Articles 515.2 and 516.2 of the Penal Code)
* Crime of Terrorism (Article 572 of the Penal Code)
* Crime of Collaboration with Terrorist Organisation (Article 576 of the Penal Code)
* Crime of Document Forgery (Articles 390 and 302 of the Penal Code).
Also attached to that warrant was the list of Framework offences. Three offences were ticked. These were participation in a criminal organisation, terrorism and forgery of administrative documents and trafficking therein.
In the second warrant, upon which the order was made by the district judge, it was said that the warrant related to four offences but these were not set out in a list as they had been in the first warrant. The list of Framework offences was used; three boxes were ticked and the relevant provisions of the Criminal Code were identified as follows:
* Participation in a criminal organisation: Articles 515.2, 516.2 and 576 of Spanish Criminal Code
* Terrorism; Article 572 Spanish Criminal Code
* Forgery of administrative documents and trafficking therein; Arts 390 and 392 Spanish Criminal Code
Annexed to the first warrant was an Order of Commitment made by the examining magistrate in Madrid on 18 th May 2004. This Order was also referred to in the second warrant and was treated as being annexed also to that. Within that Order, under a section headed 'Facts' there was set out the same circumstances of conduct as were set out in the warrant itself. In a section headed, 'Legal Bases' there was an exposition of the way in which the law was to be applied to the facts alleged. Finally there was an order committing the appellant to custody and directing the issue of a warrant for his arrest.
Annexed to the order made by the district judge at Bow Street was a list of four charges. On this, it was said that the appellant was accused of conduct, which, had it occurred in the United Kingdom, would have constituted the following offences:
(1) Hedi Ben Youssef Boudhiba, Ahmed Taleb, Said Bahaji, Abderazzak Mahdjoub, Fard Mahdjoub, Samir Mahdjoub and Francisco Garcia Gomez (between) 1 st day of January 2000 and 31 st July 2004 conspired together and with persons unknown to receive money or other property to be used for terrorist purposes.
(2) (The same people between the same dates) conspired together and with persons unknown to provide money or other property to be used for terrorist purposes.
(3) Between 1 st April 2001 and 31 st July 2004 belonged to a proscribed organisation namely Al-Qa'ida.
(4) Between 1 st September 2001 and 31 st September 2001 used a false instrument, namely a document purporting to be a genuine passport in the name of Ammar Moula which was and which he knew to be false with the intention of inducing another to accept it as genuine and by reason of so accepting to allow him to travel from Spain using the passport.
On 29 th October 2004, the district judge held that the conduct set out in the warrant amounted to offences falling within the European Framework and that, pursuant to section 64(2) of the 2003 Act, these were extradition offences. Accordingly, section 10 was satisfied. She added that, if she were wrong about that, the conduct comprised extradition offences under section 64(3) because the conduct occurred in Spain, it would constitute an offence under English law and would be punishable in Spain with imprisonment of at least 12 months.
On 10 th December 2004 and thereafter, the district judge heard and eventually, on 2 nd June 2005, rejected a submission on behalf of the appellant under section 25 of the 2003 Act that it would be unjust to extradite him by reason of his mental condition. The district judge also ruled on bars to extradition. She rejected a submission under section 13 that, if extradited, the appellant might be prejudiced at his trial by reason of his race, religion, nationality or political opinions. She also ruled against the appellant under section 21 of the 2003 Act. It had been contended for the appellant that his extradition would not be compatible with Articles 3 and 6 of the European Convention on Human Rights (ECHR). Finally, she rejected the appellant's submission that the application by the Spanish authority was an abuse of process.
Each of the decisions made by the district judge was challenged in this appeal and several other grounds were also pursued. The notice of appeal contained 10 discrete grounds. The sixth ground was not pursued. I shall retain the original numbering.
The First Ground
Mr Hedworth QC for the appellant submitted that the arrest warrant did not comply with the...
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