R (Castillo) v Kingdom of Spain and another
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE THOMAS |
| Judgment Date | 12 June 2004 |
| Neutral Citation | [2004] EWHC 1676 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/3824/2003 |
| Date | 12 June 2004 |
[2004] EWHC 1676 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
IN THE MATTER FOR AN APPLICATION
FOR A WRIT OF HABEAS CORPUS AD SUBJICIENDUM
Royal Courts of Justice
Strand,
London, WC2A 2LL
Lord Justice Thomas
Case No: CO/3824/2003
Edward Fitzgerald QC and Julian Knowles (instructed by Birnberg Peirce & Co) for the Applicant
James Lewis QC (instructed by The Crown Prosecution Service) for the First Respondent
Khawar Qureshi (instructed by The Secretary of State for the Home Department) an Interested Party
This is the second application for habeas corpus by the applicant who is a citizen of the Kingdom of Spain and was born in Vitoria in the Basque autonomous province.
On 25 April 2001 he was arrested at Dover in possession of a false passport; he was charged with an offence related to this and sentenced to a short period of imprisonment. The Spanish Government learnt of his detention and requested his extradition in relation to three alleged terrorist offences committed by the applicant in 1997. On 24 July 2001 permission was given by the Secretary of State to proceed under s. 7 of the Extradition Act 1989. On 25 July 2001 the applicant was arrested on his release from prison and returned to custody pending a decision on the request by The Kingdom of Spain.
The extradition requests
The requests for extradition related to three events in which it was alleged by the Kingdom of Spain the applicant had participated. The three requests were covered by seven extradition charges. It is convenient to set out briefly the events said to give rise to the request and the extradition charges which they are said to constitute.
i) First Request
The first request related to an explosion on 5 May 1997 at the Araca military barracks at Vitoria. It was alleged under charge 4 that the applicant conspired with others to cause the explosions.
ii) Second Request
The second request related to an attempt by several persons to damage the Banco Santander Central Hispanico at Santander using Molotov cocktails and petrol on 22 July 1997. The applicant was charged with charges numbers 1–3 in respect of this event:
Charge 1: Conspiracy to commit arson
Charge 2: Attempted arson and
Charge 3: Possession of an explosive substance with intent to endanger life or cause serious injury to property.
iii) Third Request
The third request related to an attempt to place an explosive under a motor vehicle of a member of the National Corps of Police at Vitoria at 23:30 hours on 24 May 1997. In respect of this event he was charged with:
Charge 5: an attempt to cause an explosion of a nature likely to endanger life
Charge 6: Attempting to cause really serious bodily injury to the police officer by an explosion of an explosive substance and
Charge 7: Attempted murder of a police officer.
The requests are governed by the European Convention on Extradition Order 2001; there was no need for the Kingdom of Spain to satisfy UK courts of evidential sufficiency.
The withdrawal of the first request and the hearing of the first application
On 28 November 2001 the applicant came before the District Judge at Bow Street and was committed to await extradition.
After his committal, the first application was made to this court for habeas corpus. On 5 June 2002, shortly prior to the hearing of that application which was to be heard on 13 June 2002, the Kingdom of Spain withdrew the first request for extradition in respect of charge (4) – the allegation in respect of the explosion at the barracks at Vitoria.
In summary it appears that the principal evidence against the applicant was a map which was found in a van which those who had caused the explosion had hijacked. The map could be connected to the appellant. It was alleged that it was a map showing the barracks and a route of how to get there. It became clear that in fact the map was of the appellant's house; it had been provided by him to show a friend how to get there.
The principal argument before the this court on the first application was that, in the light of the withdrawal of charge 4, the charges in respect of the second request (charges 5–7) were not made in good faith within s.11(3) of the Extradition Act 1989:
"Without prejudice to any jurisdiction of the High Court apart from this section, the court shall order the applicant's discharge if it appears to the court in relation to the offence, or each of the offences, in respect of which the applicant's return is sought, that,
(a) by reason of the trivial nature of the offence; or
(b) by reason of the passage of time since he is alleged to have committed it or to have become unlawfully at large, as the case may be; or
(c) because the accusation is not made against him in good faith in the interests of justice,
would, having regard to all the circumstances, be unjust or oppressive to return him."
The court concluded (see [2002] EWCH 1302 (Admin)) that on the information then before it that the contention that the request was not made in good faith in the interests of justice failed. The court further rejected the argument made on behalf of the applicant that charges 5 to 7 failed to disclose facts that would constitute an offence if they occurred in the UK (as required by s.2(1)(a) of the Act). Gibbs J, giving the first judgment, stated at paragraphs 32 —34:
"32. The remaining objections to the lawfulness of the extradition request and consequent committal are based on the inadequacy of the description of the applicant's conduct… It is, however, argued that the attempt to place the items described under the car cannot give rise to a prima facie case that the applicant intended to kill (charge 7) or cause serious bodily injury (charge 6). It is said that the descriptions of the items involved are inadequate or not sufficiently particularised to establish any intent beyond that of causing damage to property. It is also contended, though not with the same enthusiasm, that the acts described cannot be said to be more than merely preparatory. Thus, in English law, they could not constitute an attempt.
33. In considering whether the District Judge's decision to commit on these charges should stand, this court is carrying out a reviewing function. If it was open in law to the District Judge to find that the relevant offence was constituted by the facts described, or that those facts constituted a prima facie case that such an offence had been committed, then this court should not and cannot interfere.
34. The placing of an explosive device under a private car is something which is likely to cause death or personal injury to a person entering or driving a car, or indeed a person nearby if and when the device is detonated. The items found nearby, described as being for the purpose of causing an explosion, such as petrol, gas sprays, batteries and so on, give detail to the assertion that an explosive device was being placed under the car and confirm the nature of the danger posed by it. These are matters which, in my judgment, would entitle a tribunal of fact, in the absence of any satisfactory explanation, to find an intent to cause serious injury or death to the user of the vehicle, especially in the context of terrorist activity. The District Judge's decision to that effect cannot be described as either irrational or wrong in law. Nor, in my view, can the acts described reasonably be regarded as merely preparatory. It is hard to envisage any action more proximate to the causing of an explosion than actually trying to place a bomb under a car. Certainly the District's Judge's finding that this constituted an attempt cannot be impugned."
The applicant's further representations to the Secretary of State
In July 2002 and January 2003 the applicant made representations to the Secretary of State. In those representations it was claimed on behalf of the applicant
i) that he would not get a fair trial in Spain.
ii) In respect of the charges 5–7 (the third request relating to the police officer's car) that the charges were false. An inspection of the Court dossier in Spain by a lawyer instructed on behalf of the applicant had been made; the lawyer was not permitted to make copies, but made detailed notes and provided these to the applicant's solicitors. It was contended that these showed that a significant misrepresentation had been made in the extradition request. They asked the Secretary of State to request the statements held in the Court dossier.
iii) In respect of charges 1–3 (the explosion at the Banco Santander) that he should be released because the other participants had been given sentences of 2 years and he had been held for over 2 years.
There appears to have been some delay in making responses to those representations. An application was made for bail which was heard by Gibbs J on 19 June 2003. It was contended that the applicant should no longer be held in custody at Belmarsh Prison in circumstances where it appeared that the Government of Spain was not responding to the representations. Gibbs J adjourned the application for bail, giving the Kingdom of Spain until 10 July 2003 to respond. On 15 July 2003, a response was made in a letter sent by the Secretary of State setting out the response of the Kingdom of Spain; in essence that response stated that:
i) the applicant would be afforded a fair trial in Spain subject to the Conventions to which Spain was a party.
ii) The Government of Spain would not respond to the allegation of bad faith as that would be...
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