Ignaoua v Judicial Authority of the Courts of Milan: [2008] EWHC 2619(Admin); [2008] WLR (D) 340 [QBD]
| Jurisdiction | England & Wales |
| Judge | Lord Justice Keene,Mr Justice Owen |
| Judgment Date | 30 October 2008 |
| Neutral Citation | [2008] EWHC 2619 (Admin) |
| Date | 30 October 2008 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/9640/2008 |
[2008] EWHC 2619 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
IN A MATTER OF AN APPLICATION
FOR HABEAS CORPUS AD SUBJICIENDUM
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Keene
&mr Justice Owen-
Case No: CO/9640/2008
CO/9591/2008
Richard Gordon QC, & Ben Cooper (instructed by Birnberg Peirce & Partners) for the Claimants (1) & (2)
Clair Dobbin (instructed by Birnberg Peirce & Partners) for Claimant (3)
James Lewis QC & Marcus Thompson (instructed by Treasury Solicitor) for Defendant (2)
Jonathan Swift & Joanne Clement (instructed by Treasury Solicitor) for Defendant (3)
Hearing date: Tuesday 28 October 2008
Introduction:
These are applications for writs of habeas corpus ad subjiciendum by Habib Ignaoua, Mohamed Salah Ben Hamadi Khemiri and Ali Ben Zidane Chehidi, all three of whom are currently detained in prison awaiting extradition to Italy following the issuing of European Arrest Warrants duly issued and certified under section 2 of the Extradition Act 2003 (“the 2003Act”). The warrants were issued by a judge attached to the Court of Milan. The applicants, who are Tunisian nationals, were arrested in the United Kingdom in 2007. They are accused of membership of a criminal organisation for the purposes of terrorism.
An extradition hearing took place at the City of Westminster Magistrates Court before District Judge Evans, who on 20 May 2008 decided that the extradition of the applicants would be compatible with their rights under the European Convention on Human Rights (“ECHR”), an issue which he was required to determine under section 21(1) of the 2003 Act. He ordered their extradition to Italy pursuant to section 21(3) of that Act. An appeal was then brought against the judge's order to a Divisional Court by all three applicants under section 26 of the 2003 Act. By a decision dated 28 July 2008 the Divisional Court (Pill LJ and Rafferty J) dismissed the appeal: the decision bears the neutral citation (2008) EWHC 1988. The issue which the Divisional Court was called upon to decide was whether, on the return of the applicants to Italy, there was a real risk of their onward transmission to Tunisia, in breach of Article 3 of the ECHR. As I have indicated, the Divisional Court held that there was not. An application for a certificate of a point of law of general public importance was dismissed by the same court on 30 September 2008.
On that same date the applicants made an application to the European Court of Human Rights under rule 39 of the Rules of Court, for an order preventing their extradition to Italy, on the ground that, if extradited, they would be at real risk of onward removal to Tunisia where they would be subjected to treatment contrary to Article 3 of the ECHR. The United Kingdom's Serious Organised Crime Agency (“SOCA”) undertook not to return the applicants to Italy pending the determination of the rule 39 application. On 7 October 2008 the Strasbourg Court refused that application. In decision letters of that date to the applicants' solicitors and to the Agent of the Italian Government, the Registrar of the 4 th Section of the Court stated that the Court found that it would be open to the applicants to make an application, including one under rule 39, against Italy, if it appeared that they would be surrendered from Italy in breach of their rights under the ECHR. The letters also referred to the Court's express understanding:
“… that Italy as a Contracting State would abide by its obligations under Articles 3, 13 and 34 of the Convention and in particular the obligation to respect the terms of any interim measure which the Court might indicate in respect of Italy at the request of the applicants.”
At 11.30pm on 7 October 2008, a telephone application was made ex parte without notice to King J, seeking injunctive relief preventing the applicants' extradition. He granted an injunction preventing their removal until determination of habeas corpus applications, which were in fact issued on 9 and 10 October. On 10 October 2008 a Divisional Court continued the injunction and directed that the habeas corpus applications be listed for a two day hearing before 3 November 2008. That is the hearing which has taken place before us. The matter is of considerable urgency, not merely because it involves issues of personal liberty. We are told, and it has not been challenged, that because of the law as to custody time limits in Italy, the applicants Khemiri and Chehidi will have to be released from custody if not returned to Italy by 5 November 2008, that is to say next Wednesday. If that happens, the sheer passage of time will have rendered all the arguments about a risk of Article 3 treatment academic. For that reason we are giving our judgments as soon as possible after the conclusion of the hearing. Inevitably those judgments may be less detailed than would otherwise have been the case and we may not have dealt in them with every nuance of the arguments addressed to us. However, we have taken into account each and every submission and all the evidence to which our attention has been drawn, whether we expressly refer to it or not, and we are confident that we have dealt with the main issues.
The Issues:
The principal issues arise from the applicants' contention that there is fresh evidence now available which demonstrates that, contrary to the findings of the District Judge and the Divisional Court, the removal of the applicants to Italy would give rise to a real risk of them being deported to Tunisia. Before setting out those issues in more detail, it is helpful to record certain matters not in dispute. In particular, there is no challenge to the proposition that the applicants would be at risk of treatment contrary to Article 3 if they were to be removed to Tunisia: see paragraph 14 of the Divisional Court decision of 28 July 2008. Secondly, as the Divisional Court recorded at paragraph 7 of that judgment:
“It is also accepted that the respondent's application to the English court was a genuine exercise of the power conferred by the Framework Decision with a view to bringing criminal proceedings against the appellants in Italy. It was not a device to achieve deportation to Tunisia.”
Thirdly, the risk of removal to Tunisia is not said to arise because of the possibility of extradition from Italy, where it is agreed that there is effective judicial oversight of extradition proceedings. The risk is said to arise because of possible deportation of the applicants by Italy to Tunisia. As it was put by the Divisional Court at paragraph 9:
“In summary, the appellants' case is based on the alleged absence in Italian law of sufficient safeguards for a person at risk of deportation to Tunisia and the likely conduct of the Italian Government if and when it is given an opportunity to deport the appellants to Tunisia.”
It was, therefore, the question of whether there was a real risk of the applicants being deported to Tunisia if they were sent to Italy under the 2003 Act which was addressed and answered negatively by the District Judge and the Divisional Court in the present case. I refer to the Divisional Court, because of course an appeal to that court under section 26 lies both on questions of law and on questions of fact: see section 26(3).
The issues which now arise can conveniently be summarised as follows: first, does this court have jurisdiction to entertain an application for habeas corpus based upon the same ground as that decided by the District Judge and the Divisional Court on appeal, because it is asserted that there is fresh evidence on that ground? Secondly, if there is jurisdiction of any kind under which this court can consider fresh evidence, does the material now put forward qualify as such? Thirdly, if it does, does it, together with the evidence put before the District Judge and Divisional Court, demonstrate that the Divisional Court's decision was arrived at on some fundamentally erroneous basis? Fourthly, does it make any difference that Ignaoua has made an asylum claim in this country which has not yet been determined by the Secretary of State for the Home Department and that Khemiri has refugee status?
(i) The Jurisdiction Issue:
The starting point for consideration of this issue is section 34 of the 2003 Act. That provides:
“A decision of the judge under this Part may be questioned in legal proceedings only by means of an appeal under this Part.”
In that section “the judge” clearly refers to the designated District Judge (Magistrates Court), and the decision of District Judge Evans on 20 May 2008 to order the extradition of the applicants was on the face of it a decision to which section 34 applies. If so, only by an appeal under Part I of the 2003 Act can his decision be challenged.
But Mr Gordon QC on behalf of Ignaoua and Khemiri contends that section 34 provides no bar to habeas corpus proceedings when new evidence has become available which was not before the District Judge or the Divisional Court and which, in a case like this, demonstrates that to extradite a person would involve a breach of the United Kingdom's obligations under the ECHR. Miss Dobbin on behalf of Chehidi supports this line of argument, and I mean no disrespect to either if I treat their submissions as one entity. It is said that...
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