R (Hilali) v Governor of Whitemoor Prison
| Jurisdiction | England & Wales |
| Judge | LORD BINGHAM OF CORNHILL,LORD NEUBERGER OF ABBOTSBURY,LORD BROWN OF EATON-UNDER-HEYWOOD,LORD HOPE OF CRAIGHEAD,BARONESS HALE OF RICHMOND |
| Judgment Date | 30 January 2008 |
| Neutral Citation | [2008] UKHL 3 |
| Date | 30 January 2008 |
| Court | House of Lords |
[2008] UKHL 3
HOUSE OF LORDS
Appellate Committee
Lord Bingham of Cornhill
Lord Hope of Craighead
Baroness Hale of Richmond
Lord Brown of Eaton-under-Heywood
Lord Neuberger of Abbotsbury
Appellants:
James Lewis QC
John Hardy
(Instructed by Crown Prosecution Service)
Respondents:
Alun Jones QC
Ben Brandon
(Instructed by Arani Solicitors)
My Lords,
I have had the advantage of reading in draft the opinion of my noble and learned friend Lord Hope of Craighead. For the reasons he gives, with which I agree, I would allow this appeal and make the order which he proposes.
My Lords,
This is an appeal against the grant on 25 April 2007 by the Divisional Court (Smith LJ and Irwin J) of a writ of habeas corpus ad subjiciendum to the respondent, Farid Hilali, on the ground that his detention in custody while he was awaiting extradition under a European arrest warrant had become unlawful due to a fundamental change in circumstances since the making of the extradition order: [2007] EWHC 939 (Admin); [2007] 3 WLR 621.
On 29 April 2004 the appellant, the Central Court of Criminal Proceedings No 5 of the National Court, Madrid, issued a European arrest warrant seeking the extradition of the respondent to Spain for the purpose of his being prosecuted there for participation in a terrorist organisation and the assassination of the victims of the three terrorist attacks in the United States on 11 September 2001. On 4 May 2004 a certificate was issued by the National Criminal Intelligence Service under section 2(7) of the Extradition Act 2003 ("the 2003 Act") certifying that the warrant had been issued by a judicial authority of a category 1 territory which had the function of issuing arrest warrants.
The respondent was arrested on 28 June 2004. On 1 June 2005 Senior District Judge Workman made an order for his extradition. The form which he signed stated that the extradition offence was participation in a terrorist organisation. But this was a departure from the written reasons that the senior district judge gave for his decision. In his reasons he said that he was satisfied that the conduct described in the European arrest warrant amounted to an extradition offence under section 64(3) of the 2003 Act because, if that conduct had occurred in England, it would have constituted the offence of conspiracy to pursue a course of conduct that would necessarily amount to or involve the commission of the offence of murder of persons in America. He also said that, if none of the conduct occurred in Spain, it amounted to a conspiracy to commit the offence of destroying, damaging or endangering the safety of aircraft, contrary to section 2 of the Aviation Security Act 1982, which, because it is an extraterritorial offence, is an extradition offence under section 64(4).
The respondent appealed to the High Court against the extradition order under section 26 of the 2003 Act. On 26 May 2006 the Divisional Court (Scott Baker LJ and Openshaw J) dismissed his appeal. On 16 November 2006 the court refused leave to appeal to this House. It also refused to certify that a point of law of general public importance was involved in the decision. The effect of that decision was to bring the statutory appeal process to an end: see section 32(4)(a). Section 34 states that a decision of the judge under Part 1 of the Act may be questioned in legal proceedings only by means of an appeal under that Part.
The European arrest warrant
Article 8(1) of the Council of the European Union Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States (2002/584/JHA) (OJ L 190/1, 18 July 2002) states that the European arrest warrant shall contain the information set out in that article in accordance with the form contained in the Annex to the Decision. In terms of para (a) of article 8(1), that information must include "the identity and nationality of the requested person." In terms of para (e) it must include "a description of the circumstances in which the offence was committed, including the time, place, and degree of participation in the offence by the requested person."
The appellant provided information about the identity of the requested person. The respondent's aliases were said to include Shukri and Shakur. Unfortunately the description of the circumstances which then followed went far beyond what appears to have contemplated by para (e) of article 8(1) of the Framework Decision. It extended to about 8 pages, and most of it consisted of a narrative of evidence. It began with these words:
"Based on the information incorporated in the proceedings it may be inferred that there is a link between IMAD EDDIN BARAKAT YARKAS, alis ABU DAHDAH, and the terrorist attacks of the 11th of 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: ABU ABDULRAHMAN, MOHAMED BELFTAMI, DRISS CHEBLI, AMER AZIZI and SHAKUR."
It then proceeded to describe the content of numerous intercepted telephone conversations between the respondent and Barakat Yarkas before and after 11 September 2001. They were said to lead to the conclusion that the respondent was one of the men who participated in the attacks although he was not one of the suicidal pilots. It also stated that analysis of telephone conversations made by Yarkas linked him with the leaders of Al Qa'eda and with some of the participants in the attacks, and that it had been established that there had been links and relations since 1998 between Yarkas and the respondent and between them and two others all with close links with Imam Abu Qutada. Details of those telephone conversations were then given.
Some time after the European arrest warrant was issued for the respondent's extradition Yarkas went to trial in the High Court of Madrid. He was said to be the central figure in the terrorist conspiracy to which the respondent was allegedly a party. He was charged with direct involvement in the murders of all those who perished in the terrorist attacks of 11 September 2001 in New York, Washington and Pennsylvania, indirect involvement in those murders and membership of a terrorist organisation. Central to the case against him was telephone intercept evidence, some of which was narrated in the European arrest warrant. On 24 September 2005 he was acquitted after trial of direct involvement in those murders but was convicted of the other offences. On 31 May 2006 his conviction of indirect involvement in the murders was quashed by the Supreme Court, with the support of the prosecution, on two grounds. The first was that the telephone intercept evidence was inadmissible as it had been obtained without lawful authorisation. The second was that the conversations between the respondent and Yarkas did not in any event support the inference that they were conspiring to commit the terrorist attacks in the United States.
The habeas corpus application
On 17 November 2006 the respondent began the proceedings that led to his being granted a writ of habeas corpus. He did so on two grounds. The first was that, having regard to the reasons why Yarkas's conviction had been quashed by the Spanish Supreme Court, there could no longer be a justification for his continued detention notwithstanding the lawfulness of the original order for his extradition. The second was that, because Yarkas's conviction for indirect involvement in the murders had been quashed with the support of the prosecution, it was wholly inconsistent for the prosecution to seek the respondent's return to Spain so that he could be put on trial there for the same offences. It was submitted that his continued detention was unlawful in these circumstances and that, notwithstanding the fact that the 2003 Act purported to provide a complete statutory code for the surrender of persons wanted in category 1 territories, the issue of a writ of habeas corpus was the appropriate remedy.
The Divisional Court rejected the argument for the Secretary of State for the Home Department, who intervened in that court but has not sought to do so in your Lordships' House, that habeas corpus was not available in any circumstances once the stage of proceedings had been reached where the statutory appeal provisions in Part 1 of the 2003 Act were available. He had submitted that to permit an application for habeas corpus in addition to the statutory procedures would be to undermine the legislative scheme and to contradict the plain words of the Act. But the court was satisfied that habeas corpus was available if there had been a fundamental change to the circumstances in which the original order was made, and that it was the appropriate remedy: para 40. In its view the question that had to be answered was whether, if the European Arrest Warrant had been stripped of all reference to the evidence garnered from the telephone calls, the senior district judge would have been able to make an extradition order.
The information before the Divisional Court included a statement from the prosecutor of the case against the respondent in the High Court of Madrid, Mr Pedro Rubira. He had been authorised to make submissions on behalf of the appellant in this case in that capacity. He said that, contrary to the respondent's assertion that he could not now be convicted of the matters referred to in the European arrest warrant, the respondent remained accused of direct complicity in the murders, of indirect complicity in them and of participation in a terrorist organisation. He also said that the case...
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