QUEEN'S BENCH DIVISION
IN THE MATTER FOR AN APPLICATION
FOR A WRIT OF HABEAS CORPUS AD SUBJICIENDUM
London, WC2A 2LL
B e f o r e :
MR JUSTICE SILBER
| INIGO MAKAZAGA CASTILLO
|THE KINGDOM OF SPAIN
THE GOVERNOR OF HM PRISON BELMARSH
Smith Bernal Wordwave Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
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
Crown Copyright ©
LORD JUSTICE THOMAS :
The extradition requests
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 RequestThe 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 arsonCharge 2: Attempted arson andCharge 3: Possession of an explosive substance with intent to endanger life or cause serious injury to property.
iii) Third RequestThe 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 lifeCharge 6: Attempting to cause really serious bodily injury to the police officer by an explosion of an explosive substance andCharge 7: Attempted murder of a police officer.
The withdrawal of the first request and the hearing of the first application
"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."
"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
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.
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 contrary to Article 12.2(b) of the European Convention on Extradition which did not permit an enquiry into the sufficiency of the evidence.
iii) The fact that the Kingdom of Spain had withdrawn charge 4 did not imply bad faith.
iv) The period of 2 years which the applicant had already spent in prison in Belmarsh Prison would count towards the sentence in Spain where the court could impose a sentence of up to 20 years.
The present application
i) The Kingdom of Spain had not made the accusation in good faith in respect of charges 5-7 and also charges 1-3 because the materials now produced, particularly those in relation to charges 5-7, demonstrated that there had been a serious misrepresentation of the conduct alleged against the applicant.
ii) In the event that that submission was unsuccessful, the evidence now showed that the charges could not be sustained in law.
iii) The court should in any event exercise its general discretion at common law and discharge the applicant.
The making of the third request.
" a statement of the offences for which extradition is requested. The time and place of their commission, their legal descriptions and a reference to the relevant legal provisions shall be set out as accurately as possible"
In its reservations to the Convention, set out in Schedule 2 to the Order, the United Kingdom specified in respect of Article 12:
"The statement of offences for which extradition is requested must contain a description of the conduct which it is alleged constitutes the offence or offences for which the extradition is requested"
i) On 20 October 1997, an arrest warrant for the applicant was issued in the Central Court of Criminal Proceedings in Madrid for attempting to place a package under the vehicle of the police officer; on 17 November 1997, an order for search and capture was made; on 1 December 1997 the proceedings against him were suspended until he was found.
ii) As set out at paragraph 2, the applicant was arrested at Dover on 25 April 2001.
iii) On 30 April 2001, the same court in Madrid re-opened the proceedings and ruled that the facts alleged against the applicant constituted the crime of terrorism contrary to Article 577 of the Criminal Code; this article provided (in the somewhat poor translation provided to us):"Those who, without belonging to an armed gang, terrorist organisation or group, and with the aim of subverting constitutional order or seriously modifying public peace, commit homicides, injuries included in articles 149 or 150, illegal detentions, kidnappings, threats or coercions against persons, or carry out any types of crimes of fire, ravages, possession, traffic or deposit of arms and ammunitions, shall be punished with the corresponding penalty for the committed fact, in its superior half"
iv) On 15 May 2001, the prosecutor applied to the Court in Madrid for a ruling proposing the extradition of the applicant; the application contained a description of the conduct relied on as constituting the offences which was expressly stated to be for the purposes of Article 12:a) at 23:30 on 24 May 1997 he was "attempting to place an explosive artefact" under a car belonging to a police officer which was parked in Obispo Ballester Street near Gregorio Altube Square; he was caught unaware, rebuked by the policeman and ran away.b) Following information from a local resident, the police found "in the nearby of the aforementioned place" at 14:55 on the following day, 2 bottles filled with petrol, three gas spays (one of which had exploded), 2 button batteries, the remains of two heads of pyrotechnic rockets, all of which constituted " the explosive artefact which [the applicant] had attempted to place under the aforementioned vehicle."c) The policeman had identified the applicant from a photograph "as the person he had seen placing the artefact under his motor vehicle, moment in which [the applicant] ran away. Immediately after, a police inspection was able to pick up some components of the explosive artefact".
v) On 24 May 2001 the Court gave its Ruling which made clear that the extradition of the applicant was sought for two offences - terrorism and attempted murder in accordance with Articles 16, 62, 138 and 139 of the Criminal Code. The Ruling then essentially reproduced the description of the conduct relied on as constituting the offences.
vi) The request to the UK was then formulated in these terms:"At around 2330 hours of 24th May 1997 in the City of Vitoria [the applicant]… was trying to place an explosive artefact under the motor vehicle of a member of the National Police Corps, being the vehicle parked in Obesto Ballester Street, in the nearby of Gregorio Altube Street and running away. [The applicant] was caught and rebuked by the aforementioned agent, proprietor of the vehicleAt around 2330 hours of 24 May 1997, an individual but after being identified in a photograph to be [the applicant]… was attempting to place a package under the motor vehicle of a member of the National Corps of Police, being caught unawares by the proprietor of the vehicle, ran away. The package was formed by two plastic bottles of 1.5 litres each filed with a yellow liquid (petrol); one gas spray, "Clipper" labelled; one gas spray, "Tar Guard" labelled, two button batteries and two rocket heads.At around 1455 of the next day, police agents informed by a local resident, found in the nearby of the aforementioned place the following objects: two bottles of 1.500cc of capacity each, filled with petrol; three gas sprays, two gas sprays, Clipper labelled - one of which had already exploded – and one Tar Guard labelled; two button electric batteries and the remains of two heads of pyrotechnics rockets, all these objects aimed at constituting the explosive artefact which [the applicant] had attempted to place under the aforementioned vehicle"
vii) This request was transmitted to the Secretary of State to consider granting an authority to proceed, in accordance with s.7(5) of the Act; which provided:"the offence or offences which it appears to the Secretary of State … would be constituted by equivalent conduct in the United Kingdom"
viii) The authority to proceed signed on behalf of the Secretary of State on 24 July 2001 stated that a request had been made for the surrender of the applicant" who is accused of conduct in the jurisdiction of Spain which, had it occurred in the United Kingdom would have constituted offences of … possession of an explosive substance with intent, attempted murder and attempting to cause an explosion with intent to endanger life."
The further materials contained in the Spanish dossier
i) A policeman (50328) stated that he was at his home at 23:35 on 24 May 1997 on his balcony when he saw a male trying to place a bag under the car; he had shouted at him and the person ran off towards the church in Obispo Ballester Street. He gave a description of the man. On 26 May 1997 he had identified the applicant from a police photograph as the person he had seen. The description he had given matched that of the applicant.
ii) At 23:30 on the same day, a witness (50486) was at home in Gregorio Altube Square (which was about 150m from the home of the police officer) when he heard an explosion which he described as greater than a firework; he leant out of the window and saw smoke in a parking area opposite his home; the following day at 10:30 he found the remains of the explosive artefact; he telephoned the police at 14.35 to tell them what he had found; the police visited the scene and found the components which the police described as the artefact. It was partially burnt out.
iii) A laboratory report on the artefact described it as home-made; the device was to be lit by a wick which would ignite the pyrotechnic articles producing an explosion which would burst the gas containers and, if the bottles contained a flammable liquid, set them on fire. It concluded:"The damage which is caused with this device is due to the explosions of the pyrotechnic devices, explosion of the gas containers and the inflammable substances catching fire.Establishing the possible harm from the device would depend on its target. Property would be affected by the explosion and fire generated."
iv) There had been some surveillance of the applicant.
The applicant's contentions
i) It had not made clear that the policeman was in his house and not in his car; given the type of device used, this was a highly material part of the description of the conduct alleged;
ii) It had not been made clear that the policeman had only seen the applicant attempting to place a bag under the car; he had not seen him placing an explosive artefact under the car;
iii) There was no evidence as to what was in the bag;
iv) The remnants of an explosive device found were not nearby but 150m away;
v) The witness who heard the explosion (which had left the remnants found by the witness) had heard that explosion before the policeman saw the man near his car;
vi) The device had to be lit manually and was designed to operate shortly after it had been lit; there was no one nearby who could have been harmed.
i) A person had been seen attempting to place a bag under a policeman's car at 23:30; there was no evidence as to what was in the bag
ii) Even if an inference could be drawn that the burnt out device related to the car, the forensic evidence made it clear that it would have caused no more than property damage
iii) There was no evidence that there was anyone nearby at the time
The accusation was therefore not made in good faith.
i) As to charge 5, there was nothing in the description of the conduct to suggest that it was likely that life would have been endangered
ii) As to charge 6, there can have been no intention to cause really serious bodily injury as the car was empty;
iii) As to charge 7, there was nothing to support an intention to kill.
It was open to this court to review the decision of the District Judge, in the light of the new materials before the Court, and discharge the applicant.
The requirements under the Convention and the Act
"The magistrate is not concerned with proof of the facts, the possibilities of other relevant facts, or the emergence of any defence; these are matters for trial."
Was the conduct alleged properly described in the request?
The request in relation to the Banco Santander
Are the terms of s. 11(3) satisfied?
"The applicant's challenge having failed both in relation to the 1987 and the 1988 offences, it is not necessary for me to decide what our order would have been if he had succeeded in relation to one of the offences and not in relation to the other, but as both counsel did address us in relation to that issue, it may be helpful if I say that having regard to the wording of s.11 (3) I am wholly satisfied that this court should only order discharge of persuaded in relation to "each of the offences in respect of which the applicant's return is sought that… it would be unjust or oppressive to return him." In other words there can be no order for discharge unless the challenge succeeds in relation to every offence. On the other hand, as Mr Lewis points out, it would be unthinkable for the Secretary of State when making an order for return pursuant to s.12 of the 1989 Act not to have regard to a finding of this court that in relation to one or more offences the requirements of s. 11(3) had been satisfied and the court had held that so far as those offences were concerned it would be unjust to order his return."
"… in my judgment, the term "good faith" has to be given a reasonably generous interpretation so that if the proceedings were brought for a collateral purpose, or with an improper motive and not for the purpose of achieving the proper administration of justice, they would not be regarded as complying with the statutory requirement. Likewise the accusations would not be made in good faith and in the interests of justice of the prosecution deliberately manipulates or misuses the process of the court to deprive the defendant of a protection to which he is entitled by law."
" related to the allegations made in this instance by the Government of Hong Kong.. The accusation may be epitomised by the charges that have been brought against this applicant, but it is not confined to them. The term no doubt extends to supporting evidence, and it may well render relevant the motivation of the accusing government."
"We do not consider that the ordinary meaning of the word "accusation" is a request, notwithstanding that the nexus between accusation and request may be obvious. Such a nexus appears from the terms of s.11(3) of the Act because the subsection refers in turn to the following: (1) "the offence, or each of the offences"; (2) the request, namely "in respect of which the applicant's return is sought";(3) "the accusation against him". But the words of the subsection are against the accusation meaning the request because 3(c) refers to "good faith in the interests of justice" in relation to the accusation not the request. A request for extradition is not in character an accusation. It is an exercise in sovereign power pursuant to a treaty in respect of an alleged offence. Whether or not it could ever be regarded as an "accusation" for the purposes of an allegation that such an exercise of power was not in good faith, does not arise in this case. But we are satisfied that even if it could be so regarded, that is not the limit of the meaning of accusation nor the most obvious reflection of what is referred to in the subsection. Accusation is broad enough to encompass the accusation of a witness or witnesses and the offence charged in consequence. By making a request for extradition, reliance is placed on the evidence of any witness and the offence disclosed thereby. The protection afforded by the subsection would be rendered "sterile", …, if the issue of bad faith could be divorced from the underlying facts supporting the request. Certainly Sedley J in Re Murat Calis (19 November 1993) examined the good faith of the complainant to determine the issue under s11(3). No one appears to have argued to the contrary. Having heard such argument, we reject it."
Mr Justice Silber: