Hilali v Governor of Whitemoor Prison and another (Secretary of Statefor the Home Department intervening) [2007] EWHC 939 (Admin) [QBD]
| Jurisdiction | England & Wales |
| Judge | Lady Justice Smith |
| Judgment Date | 25 April 2007 |
| Neutral Citation | [2007] EWHC 939 (Admin) |
| Docket Number | Case No: CO/9725/2006 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 25 April 2007 |
[2007] EWHC 939 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Lady Justice Smith
Mr Justice Irwin
Case No: CO/9725/2006
Alun Jones QC & Ben Brandon (instructed by Arani & Co) for the Claimant
John Hardy (instructed by The Crown Prosecution Service) for the Respondents
David Perry QC & Victoria Ailes (instructed by The Treasury Solicitors) for the Intervener
Hearing dates: 22/23 February 2007
Crown copyright©
This is the judgment of the court.
Introduction
This is an application by Application for Writ of Habeas Corpus ad Subjiciendum by Farid Hilali who has been detained in prison following the completion of extradition proceedings arising from the issue, on the 29 April 2004, of a European Arrest Warrant (EAW) by the Central Court of Criminal Proceedings Number 5 of the National Court of Madrid, Spain to whom we will refer hereafter as the issuing judicial authority (IJA). The applicant was arrested pursuant to the EAW on 28 th June 2004 and extradition proceedings ensued, pursuant to Part 1 of the Extradition Act 2003 (the Act). An extradition order was made by Senior District Judge Workman on 1 st June 2005. The statutory appeal pursuant to section 26 of the Act was dismissed by the Divisional Court (Scott Baker LJ and Openshaw J) on 26 th May 2006. Thereafter the applicant's solicitor indicated an intention to seek permission to appeal to the House of Lords. On 16 th November, 2006, the Divisional Court refused to certify a point of law of general importance and the statutory extradition process was at an end.
However, during the period between May and November 2006, the applicant's legal team had obtained new information, which they contended undermined the basis on which the EAW had been enforced and rendered the applicant's detention unlawful. They invited the British authorities not to return the applicant to Spain pending an application for a writ of Habeas Corpus. The applicant remains detained in HMP Whitemoor. The governor of that prison is the respondent to this application but has not appeared. The application has been opposed by the IJA (acting through the Crown Prosecution Service (CPS)) and by the Secretary of State for the Home Department (SSHD), who has been given permission to intervene.
The grounds for the application are that proceedings in Spain against another defendant (a man named Yarkas), in a trial of the same allegations as those faced by the applicant, have resulted in the acquittal of Yarkas of the most serious charge following the trial and in the quashing of his conviction on the second most serious charge, on appeal to the Supreme Court. The prosecution supported the quashing of that conviction. The contention is that the evidence against this applicant is to all intents and purposes the same as that which was available to the prosecuting authority in Yarkas's case. Therefore, the applicant cannot be convicted and the basis of his extradition has been undermined. It is however, important to note that Yarkas's conviction for a third offence (which amounted to an offence of involvement in a terrorist organisation) was upheld by the Supreme Court and he has been imprisoned for 12 years.
The Content of the European Arrest Warrant
Part 1 of the Act gave effect to the obligations imposed on and accepted by the United Kingdom pursuant to the Framework Decision of the Council of European Union and the surrender procedures between Member States (2002/584/JHA). The Framework decision was intended to introduce a speedy and efficient means of surrender between members states of those accused or convicted of crime. It was intended to be based upon the mutual trust and confidence that member states had in the fairness of each others' judicial procedures. The intention behind the EAW was that the requesting state would not need to set out the evidence on which it relied in support; it would be sufficient if the warrant identified the offences alleged to have been committed and provided a description of the manner in which they were said to have been committed, including the date, hour, place and degree of participation of the person sought. On receipt of that information, there would be no need for the requested state to consider the adequacy of the evidence. The only questions for the court of the requested state should be the identity of the person arrested, the validity of the warrant, whether the warrant includes an allegation of an extradition offence, whether there is any bar to extradition and whether extradition would breach the arrested person's Convention rights.
The basis upon which the IJA sought the applicant's return was set out in the EAW. Unfortunately, the IJA did not complete the EAW in the way in which it was intended to be completed. At subparagraph (e) of the proforma warrant, where the IJA was supposed to specify the number of offences for which the applicant was sought, the box was left blank. Below that, where the IJA was supposed to describe the manner in which the offences had been committed, there was set out eight pages of script, comprising partly a description of conduct but mainly a recitation of the evidence on which the prosecutor intended to rely. It alleged terrorist activities by a group of men, led by Yarkas (alias Abu Dahdah) which group included the applicant Hilali, (whose aliases included 'Shakur' and 'Shukri').
The description began as follows:
"Based on the information incorporated in the proceedings it may be inferred that there is a link between Barakat Yarkas (Abu Dahdah) and the terrorist attacks of 11 th September 2001 in New York, Washington and Pennsylvania, attacks that resulted in thousands of victims. According to this information, Abu Dahdah maintained certain contacts with several individuals related to those facts."
There followed a list which included Shakur, the applicant. So it appeared that the applicant was wanted for trial on an allegation that he was involved in the terrorist conspiracy leading to the events of 11 th September 2001. There then followed a description of the content of intercepted telephone conversations, allegedly between the applicant and Yarkas, which occurred in August 2001. On 6 th August the applicant was alleged to have said that he was going to do important things in a month's time. On 26 th August, the applicant was alleged to have said that he was taking lessons and had entered 'the aviation sector'. He claimed that they had 'slit the throat of the bird'. There were further conversations between the two men in late September, when the applicant appeared to be warning Yarkas that he thought he was being watched by the police. During some of these conversations, there was reference to a man named Abdulrahman, from which it could be inferred that this man was known to both Yarkas and the applicant.
The EAW then explained that the telephone calls of August 2001 showed that the applicant was 'isolated from his previous contacts and was taking part in a 'commando' (meaning a terrorist unit), which was being trained on aircraft, only a few days before the attacks on the USA'. This led to the conclusion that the applicant was one of the men who participated in the attacks although plainly he had not been one of the suicide pilots, because he was still alive after the attacks. That seems to have been the core of the case against the applicant. However, the EAW went on to recount the content of another intercepted telephone conversation, between Yarkas and Abdulrahman, in which Shakur or Shukri was mentioned.
The EAW also referred to a man named Said Bahaji, who had been a member of a commando led by Mohamed Atta. Bahaji had lived in Germany but had 'escaped' to Pakistan on 3 rd September 2001. His whereabouts were unknown. However, there was evidence that Bahaji was an associate of Yarkas in that Yarkas's Madrid telephone number had been found by German Police at Bahaji's flat after he had disappeared. The police also found a photograph of Bahaji's wedding on which were pictured various people, including two of the suicide pilots of 11 th September 2001. Thus, Yarkas was said to be an associate of a man (Bahaji) who was close to the Hamburg cell which was directly involved in the attacks on the USA. The EAW then alleged that there was evidence that the applicant had for a time lived in Granada with a man named Jasem Mahboule.
In a summary passage, it was said that analysis of the evidence showed that Yarkas could be clearly linked with leaders of Al Qa'eda and with some of the participants in the attacks on the USA and that the evidence showed 'direct involvement' in the preparation of said attacks, 'collaborating with infrastructure, covering and coordinating the movements in Europe of the group members' of Yarkas, the applicant and several others. It was then stated that 'links and relations' had been established between Yarkas and the applicant since 1998 and between those two and other men (all of whom had close links with Abu Quatada) and all of whom had been indicted in the current proceedings.
There then followed an account of the applicant's history. In 1987, he was said to have arrived in the UK with the intention of studying at University. In 1997, whilst still in England, he had taken part in a training course at Tunbridge Wells at a...
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