Hilali v Spain
| Jurisdiction | England & Wales |
| Judge | Lord Justice Scott Baker: |
| Judgment Date | 26 May 2006 |
| Neutral Citation | [2006] EWHC 1239 (Admin) |
| Docket Number | Case No: CO/3635/2005 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 26 May 2006 |
[2006] EWHC 1239 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Scott Baker
Mr Justice Openshaw
Case No: CO/3635/2005
Alun Jones Q.C and Osama Daneshyar (instructed by Arani & Co) for the Appellant
John Hardy and Clair Dobbin (instructed by Crown Prosecution Service) for the First Respondent
This is the judgment of the court. There is before the court an appeal by Farid Hilali brought under s.26 of the Extradition Act 2003 ("the 2003 Act"). The appeal is against an extradition order made by Senior District Judge Workman on 1 June 2005 in the Bow Street Magistrates' Court under s.21(3) of the 2003 Act ordering his extradition to Spain. Spain seeks his extradition under a European Arrest Warrant ("EAW") issued by the Central Court of Criminal Proceedings, Madrid, on 29 April 2004.
The appeal is concerned with Part I of the 2003 Act. This Act created a new extradition regime. The origins of Part I are to be found in the Council Framework Decision of 13 June 2002 on the European Arrest Warrant and the surrender procedures between Member States. As Laws LJ pointed out in The Queen on the application of Bermingham and Others v The Director of the Serious Fraud Office and others [2006] EWHC 2000 (Admin), Part I of the 2003 Act contains provisions dealing with extradition from the United Kingdom to "Category 1" territories, namely territories designated by the Secretary of State that are, in effect European Union countries which operate the EAW.
The preamble to the Framework Decision refers to the objective for the European Union to become an area of freedom, security and justice and the abolition of extradition between Member States and its replacement by a system of surrender between judicial authorities. The new system is said to be designed to remove the complexity and potential for delay inherent in the previous extradition procedures. Reference is made to "a system of free movement of judicial decisions in criminal matters, covering both pre-sentence and final decisions within an area of freedom, security and justice." In our judgment it is important to keep in mind the objectives of speed and simplicity when interpreting Part I of the Act, albeit those desirable objectives must be balanced against the legitimate rights of the individual.
Extradition is sought on the basis that the appellant's conduct falls within the framework list offence of participation in a terrorist organisation. The EAW sets out particulars of the conspiracy and the appellant's alleged role in it. In summary, what is alleged is that there was a group of conspirators within Europe who were involved in the preparation for the attacks on 11 September 2001 in the United States and that the conspirators all collaborated in those attacks either directly or indirectly.
Barakat Yarkas was initially alleged to be a key figure within the conspiracy in Spain and he had links with the leadership of Al Quaeda. The appellant is a former Mujahedeen who was in contact with Yarkas. Yarkas is said to be linked to Bahaji, a member of the unit led by Atta, the leader of the 11 September atrocities.
The allegations against the appellant are in summary as follows. He arrived in the United Kingdom in 1987 and remained here for 10 years. At the end of 1998 he went to Saudi Arabia, Pakistan and Afghanistan using forged documentation. He was arrested in 1999 in the United Arab Emirates and deported to Morocco. He left Morocco and returned to the United Kingdom via Spain. On 6 November 1999 he returned to Spain. In 2001 he was living in Grenada with Jasem Mahboule with the support of other parties to the conspiracy who were under the leadership of Yarkas. Yarkas lived in Spain and had an address in Madrid.
On 6 August 2001 there was a telephone conversation between Yarkas and the appellant. In it the appellant told Yarkas that he was cutting off his old communications and that he did not want anyone to know of him. He thanked him for his support and made reference to having "a month to go".
This was followed up by another telephone call on 27 August 2001 in which the appellant stated he was "taking very good lessons" and that he had now "entered the aviation sector". He went on to say that they had "slit the throat of the bird". He referred to suspicions that his phone was being tapped.
There were two further conversations between Yarkas and the appellant after 11 September. There was a veiled reference to their being watched by the police. There was also a reference to the possibility of the appellant going to another country.
Given these links to Yarkas and others within the conspiracy and the references within the recorded telephone calls to the effect that the appellant was part of a unit training in aircraft linked to the attacks of 11 September the respondent sought the extradition of the appellant in the following terms:
"During the 45 days previous to the terrorist attacks of 11 September, the members of the group ("commando") that committed the attacks travelled constantly in aeroplanes in order to analyse them and to be prepared for the day of action. It is precisely during this period of time when the conversations of 6 August and 27 August 2001 took place. In these conversations, SHAKUR/SHUKRI (FARID HILALI) tells Abu Dahdah that he had a month to go and that he had some important matters to do, that he had ordered threads and things that Abu Dahdah (Yarkas) was going to like, that everything was going to be fine and that he had cut off all his old conversations…, that he had entered the aviation sector, that he had slit the throat of the bird, that he was taking good lessons and that it would take him more or less a month."
It was submitted on behalf of the 1 st respondent that had this conduct taken place in the United Kingdom it would have amounted to the offences of:
(1) Conspiring, between 1 January 2000 and 12 September 2001, in Spain with Yarkas and others to pursue a course of conduct that would necessarily amount to or involve the commission of an offence of murder of persons in America;
(2) Directing the activities of an organisation, namely Al Quaeda, which is concerned in the commission of acts of terrorism;
(3) Destroying, damaging or endangering the safety of an aircraft;
(4) Terrorist bombing.
This is how the case was initially put by the 1 st respondent but, as will become apparent, it was argued more narrowly on the appeal.
Following the extradition order against the appellant on 1 June 2005, on 26 September 2005 the first respondent gave judgment in the trial of 24 other individuals accused with appellant of being part of an Islamic terrorist network in Spain. A number of those individuals had been trained in Mujahedeen training camps in Bosnia, Indonesia and Afghanistan and upon return to Spain became involved, so it was alleged, in supporting or participating in terrorist activity. Yarkas was described as being at the "top of the pyramid" and as being "fully integrated" into Al Quaeda. 12 of those were convicted of the offence of "integration in a terrorist group". These included Mahboule, Mohamed Zaher Asade, Yarkas and Gahaleb Kalaje Zouaydi (individuals who are referred to in the EAW).
A further 5 of those accused were found guilty of the lesser offence of "collaboration with a terrorist group". Yarkas was further convicted of "conspiracy to commit terrorist killing". He was, however, found not guilty of "terrorist homicide".
It is an important plank in the argument of Mr Alun Jones QC, who has appeared for the appellant, that Yarkas has an appeal pending in the Spanish Supreme Court against his Spanish conviction on 26 September 2005 for conspiracy to commit terrorist killing and that his appeal is supported by the prosecution on the basis that the evidence against him on that offence is too weak. His argument, as we understand it, is that if the case against Yarkas on conspiracy to commit terrorist killing cannot stand there is no case against the appellant either. It should be noted, however, that this is not accepted by the Spanish authorities and, even if acquitted of conspiracy to commit terrorist killing, Yarkas would remain convicted of "integration in a terrorist group". It is also to be observed that the Spanish court has not yet, as we understand it, made a decision on the Yarkas appeal. We shall return to this aspect of the case later.
The appellant's grounds of appeal are contained under 7 headings. It is convenient to deal first with ground 5, proof of identity.
Proof of Identity
The appellant contends that his identity was not proved as required by s.7 of the 2003 Act. S.7 is headed "Identity of person arrested." The material parts of the section are as follows:
"(1) This section applies if-
(a) a person arrested under a Part 1 warrant is brought before the appropriate judge under s.4(3),
…..
(2) The judge must decide whether the person brought before him is the person in respect of whom-
(a) the warrant referred to in subsection (1)(a) was issued,
…..
(3) The judge must decide the question in subsection (2) on a balance of probabilities."
What happened was this. On his first appearance before the court the appellant came before District Judge Pratt who considered the issue of identification under s.7 as he was obliged to do. The appellant...
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