R (Farid Hilali) v Secretary of the Home Department

JurisdictionEngland & Wales
JudgeLORD JUSTICE MOSES,MR JUSTICE SULLIVAN,Lord Justice Dyson
Judgment Date25 November 2008
Neutral Citation[2008] EWHC 2892 (Admin),[2008] EWHC 905 (Admin)
Docket NumberCase No: CO/6329/2008,CO/2938/2007
CourtQueen's Bench Division (Administrative Court)
Date25 November 2008
Between
The Queen (on The Application Of Farid Hilali)
Claimant
and
The City Of Westminster Magistrates' Court
Defendant
and
The Crown Prosecution Service
Interested Party
and
The Secretary Of State For The Home Department
Intervener

[2008] EWHC 2892 (Admin)

Before:

Lord Justice Dyson

Mr Justice Griffith Williams

Case No: CO/6329/2008

IN THE HIGH COURT OF JUSTICE

DIVISIONAL COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Alun Jones QC and Ben Brandon (instructed by Messrs Arani & Co) for the Claimant

James Lewis QC and Melanie Cumberland (instructed by CPS) for the Interested Party

David Perry QC (instructed by TSols) for the Intervener

Hearing dates: Thursday 6 November 08

Lord Justice Dyson

this is the judgment of the court.

Introduction

1

Specialty arrangements are integral to the working of extradition. They ensure that a person may only be dealt with for offences for which he is extradited to the requesting state and that he will not be dealt with for any other offence allegedly committed prior to his extradition, unless he is first afforded a reasonable opportunity to leave the requesting state. Spain and the United Kingdom are both signatories to the European Convention on Extradition which imposes on signatories the obligation to observe the rule of specialty (article 14). As member states of the European Union, they are also both bound by the European Framework Decision of 2002 (“the Framework Decision”) which (by article 27(2)) requires the rule to be observed.

2

The issue that lies at the heart of this appeal is whether the courts of the United Kingdom have jurisdiction to order the authorities of a requesting state to which a person has been extradited to return the person to the United Kingdom on the grounds that he is being, or is likely to be, dealt with in breach of the specialty rule in the requesting state.

The facts

3

The claimant was extradited to Spain on 8 February 2008 pursuant to a European Arrest Warrant (“the EAW”) issued on 29 April 2004 by the Central Court of Criminal Proceedings No 5 of the National Court, Madrid (“the issuing judicial authority”). Extradition was sought on the grounds that he was involved in a terrorist conspiracy, inter alia, in Spain to commit the 11 September 2001 attacks in the United States. The EAW referred to the crime of “participation in terrorist organisation” (articles 515.2 and 516.2 of the Criminal Code) and “terrorist assassination” (article 139.1 and 16 of the Criminal Code). It referred to a link between the claimant and Barakat Yarkas who, it was alleged, was a key figure in the terrorist conspiracy.

4

On 1 June 2005, Senior District Judge Workman, sitting at Westminster Magistrates' Court ordered the claimant's extradition to Spain. In his reasons, he said that he was satisfied that the conduct described in the EAW amounted to an extradition offence under section 64(3) of the Extradition Act 2003 (“the 2003 Act”) because, if the conduct had occurred in England, it would have constituted the offence of conspiracy (i) to murder persons in the United States and (ii) to commit the offence of destroying, damaging or endangering the safety of aircraft contrary to section 2 of the Aviation Security Act 1982.

5

The claimant appealed to this court. He argued among other things that there were no specialty arrangements in Spain. In its decision reported at [2006] EWHC 1239 (Admin), this court held that specialty arrangements were in place in Spain. It accepted that prosecuting the claimant for murder would breach the specialty rule, but said that there was no evidence that this would happen. The claimant also argued that there was a real risk that, in breach of the European Convention on Human Rights (“the Convention”), on his return he would be held incommunicado for up to 13 days, without his friends or family being told of his detention or his whereabouts and without access to a lawyer. The court said that, if the claimant faced the possibility of being held incommunicado, the legality and propriety of his extradition would need to be carefully examined. But they were quite satisfied from the evidence that the claimant faced no possibility of detention incommunicado.

6

On 31 May 2006, Barakas Yarkas was acquitted by the Supreme Court in Spain of indirect involvement in the 9/11 murders on the grounds, among others, that the telephone intercept evidence relied on was inadmissible as it had been obtained without lawful authorisation. The claimant argued that the acquittal of Yarkas undermined the basis on which his extradition order had been made and sought a writ of habeas corpus. The application was allowed by this court ( [2007] EWHC 939 (Admin)), but rejected by the House of Lords on 7 December 2007 ( [2008] UKHL 3, [2008] 2 WLR 299).

7

The language of the EAW and the extradition order dated 1 June 2005 had given rise to certain amount of uncrtainty as to the precise offences in respect of which the claimant was to be extradited. All arguments were laid to rest by the House of Lords. At [31] of his speech, Lord Hope said:

“I would allow the appeal and set aside the order which was made by the Divisional Court. I would affirm the decision by the senior district judge to order the applicant's extradition to Spain. I would do so on the ground that the offences of conspiracy to commit the offence of murder of persons in the United States and of destroying, damaging or endangering the safety of aircraft, contrary to section 2 of the 1982 Act, are the only offences in respect of which he is to be extradited.”

8

The claimant was returned to Spain and brought before the issuing judicial authority on 8 February 200The judge remanded the claimant in custody until 11 February pending receipt of the relevant documents from the UK authorities.

9

On 11 February, the court granted the prosecutor's application for “unconditional preventative custody communicado without bail”. Judge Garzon stated the legal grounds for his decision in the following terms:

“ONE.—The facts may constitute multiple offences of conspiring to terrorist murder through membership of a terrorist organisation Al Qaeda without prejudice to subsequent classification and as emerges from legal classification which appears in the First Legal Ground of said Indictment in relation to Farid Hilali (a) “Shakur.

TWO. – In accordance with that stated in articles 503, 504 and 505 of the Criminal Procedure Act preventative custody is ordered for Mr Hilali due to the extreme circumstances of the facts object of these proceedings, to the risk of absconding from the actions of justice as demonstrated by the fact that he has had to be surrendered via extradition and in view of that gravity and while the necessary steps are performed as regards the accused, who, despite the fact that he has been in custody in the UK which must, if applicable, be taken into account on sentencing, has been at the disposal of Spanish Justice for three days.”

10

On 28 April 2004, the court ordered an “extension” of the September 2003 indictment. The “extended” indictment stated that the claimant faced charges of “offences of membership of terrorist organisation and terrorist attacks resulting in multiple deaths, injuries and damages as a result of the terrorist attacks that took place in the USA on 11 th September 2001”. The indictment stated that these were offences under article 515.2 and 516.2 of the Criminal Code (membership of terrorist organisation) and under articles 572.1 and 139.1 and 16 of the Code (terrorist homicide and deaths and injuries in the three terrorist attacks on 11 th September). This description of the offences was substantially reflected in the EAW: see [3] above.

11

The claimant appealed against the order of 28 April, but not on the grounds that to proceed against the claimant for these offences would involve a breach of the specialty rule. The appeal was dismissed.

12

On 14 April 2008, the claimant's defence lawyer in Spain, Jacobo Casanova, sent a report to the claimant's solicitors in which he stated that at the 11 February 2004 hearing:

“Finally, we indicated that the surrender of Mr Hilali by the UK authorities under the EAW was only for him to be tried, if appropriate, for conspiracy to commit the murders of 11 th September, not for membership Al-Qaeda. It must, however, be stressed, and this is important, that in both the INDICTMENT…OF MR HILALI FROM 2003, AS WELL AS THE DECISION ORDERING THAT HE BE REMANDED IN CUSTODY, MY CLIENT CONTINUES BEING CHARGED WITH BOTH: MEMBERSHIP OF A TERRORIST ORGANISATION AND CONSPIRACY FOR THE MURDERS OF 9–11”.

13

Mr Casanova also stated:

“Mr Hilali is in prison under a special internment regime. This means that his oral and written communications are monitored, that visits are recorded, the letters read and the conversations listened to. He can only enjoy 3 hours in the courtyard (with the other prisoners) and he will remain in an individual cell”.

14

On 22 April 2008, the claimant's solicitor wrote to the clerk to the Senior District Judge at the City of Westminster Magistrates' Court, stating that the claimant's detention was unlawful because it was in breach of the specialty rule and asking for the case to be listed so that the Senior District Judge could make an order demanding “of the Spanish Court that [the claimant] be detained and proceeded against only for the extradition crimes for which he was extradited and, if the Spanish Court fails to agree, that it return the applicant to the United Kingdom.”

15

On 29 April 2008, District Judge Workman refused to accede to this request, stating: “This court can only act...

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