England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		26/05/2006

Lord Justice Scott Baker:

1. This is the judgment of the court. There is before the court an appeal by Farid Hilali brought under s.26 of the Extradition Act 2003 ("the 2003 Act"). The appeal is against an extradition order made by Senior District Judge Workman on 1 June 2005 in the Bow Street Magistrates' Court under s.21(3) of the 2003 Act ordering his extradition to Spain. Spain seeks his extradition under a European Arrest Warrant ("EAW") issued by the Central Court of Criminal Proceedings, Madrid, on 29 April 2004.
2. The appeal is concerned with Part I of the 2003 Act. This Act created a new extradition regime. The origins of Part I are to be found in the Council Framework Decision of 13 June 2002 on the European Arrest Warrant and the surrender procedures between Member States. As Laws LJ pointed out in The Queen on the application of Bermingham and Others v The Director of the Serious Fraud Office and others [2006] EWHC 2000 (Admin), Part I of the 2003 Act contains provisions dealing with extradition from the United Kingdom to "Category 1" territories, namely territories designated by the Secretary of State that are, in effect European Union countries which operate the EAW.
3. The preamble to the Framework Decision refers to the objective for the European Union to become an area of freedom, security and justice and the abolition of extradition between Member States and its replacement by a system of surrender between judicial authorities. The new system is said to be designed to remove the complexity and potential for delay inherent in the previous extradition procedures. Reference is made to "a system of free movement of judicial decisions in criminal matters, covering both pre-sentence and final decisions within an area of freedom, security and justice." In our judgment it is important to keep in mind the objectives of speed and simplicity when interpreting Part I of the Act, albeit those desirable objectives must be balanced against the legitimate rights of the individual.
4. Extradition is sought on the basis that the appellant's conduct falls within the framework list offence of participation in a terrorist organisation. The EAW sets out particulars of the conspiracy and the appellant's alleged role in it. In summary, what is alleged is that there was a group of conspirators within Europe who were involved in the preparation for the attacks on 11 September 2001 in the United States and that the conspirators all collaborated in those attacks either directly or indirectly.
5. Barakat Yarkas was initially alleged to be a key figure within the conspiracy in Spain and he had links with the leadership of Al Quaeda. The appellant is a former Mujahedeen who was in contact with Yarkas. Yarkas is said to be linked to Bahaji, a member of the unit led by Atta, the leader of the 11 September atrocities.
6. The allegations against the appellant are in summary as follows. He arrived in the United Kingdom in 1987 and remained here for 10 years. At the end of 1998 he went to Saudi Arabia, Pakistan and Afghanistan using forged documentation. He was arrested in 1999 in the United Arab Emirates and deported to Morocco. He left Morocco and returned to the United Kingdom via Spain. On 6 November 1999 he returned to Spain. In 2001 he was living in Grenada with Jasem Mahboule with the support of other parties to the conspiracy who were under the leadership of Yarkas. Yarkas lived in Spain and had an address in Madrid.
7. On 6 August 2001 there was a telephone conversation between Yarkas and the appellant. In it the appellant told Yarkas that he was cutting off his old communications and that he did not want anyone to know of him. He thanked him for his support and made reference to having "a month to go".
8. This was followed up by another telephone call on 27 August 2001 in which the appellant stated he was "taking very good lessons" and that he had now "entered the aviation sector". He went on to say that they had "slit the throat of the bird". He referred to suspicions that his phone was being tapped.
9. There were two further conversations between Yarkas and the appellant after 11 September. There was a veiled reference to their being watched by the police. There was also a reference to the possibility of the appellant going to another country.
10. Given these links to Yarkas and others within the conspiracy and the references within the recorded telephone calls to the effect that the appellant was part of a unit training in aircraft linked to the attacks of 11 September the respondent sought the extradition of the appellant in the following terms:

"During the 45 days previous to the terrorist attacks of 11 September, the members of the group ("commando") that committed the attacks travelled constantly in aeroplanes in order to analyse them and to be prepared for the day of action. It is precisely during this period of time when the conversations of 6 August and 27 August 2001 took place. In these conversations, SHAKUR/SHUKRI (FARID HILALI) tells Abu Dahdah that he had a month to go and that he had some important matters to do, that he had ordered threads and things that Abu Dahdah (Yarkas) was going to like, that everything was going to be fine and that he had cut off all his old conversations…, that he had entered the aviation sector, that he had slit the throat of the bird, that he was taking good lessons and that it would take him more or less a month."

11. It was submitted on behalf of the 1^st respondent that had this conduct taken place in the United Kingdom it would have amounted to the offences of:

(1) Conspiring, between 1 January 2000 and 12 September 2001, in Spain with Yarkas and others to pursue a course of conduct that would necessarily amount to or involve the commission of an offence of murder of persons in America;

(2) Directing the activities of an organisation, namely Al Quaeda, which is concerned in the commission of acts of terrorism;

(3) Destroying, damaging or endangering the safety of an aircraft;

(4) Terrorist bombing.

This is how the case was initially put by the 1^st respondent but, as will become apparent, it was argued more narrowly on the appeal.

12. Following the extradition order against the appellant on 1 June 2005, on 26 September 2005 the first respondent gave judgment in the trial of 24 other individuals accused with appellant of being part of an Islamic terrorist network in Spain. A number of those individuals had been trained in Mujahedeen training camps in Bosnia, Indonesia and Afghanistan and upon return to Spain became involved, so it was alleged, in supporting or participating in terrorist activity. Yarkas was described as being at the "top of the pyramid" and as being "fully integrated" into Al Quaeda. 12 of those were convicted of the offence of "integration in a terrorist group". These included Mahboule, Mohamed Zaher Asade, Yarkas and Gahaleb Kalaje Zouaydi (individuals who are referred to in the EAW).
13. A further 5 of those accused were found guilty of the lesser offence of "collaboration with a terrorist group". Yarkas was further convicted of "conspiracy to commit terrorist killing". He was, however, found not guilty of "terrorist homicide".
14. It is an important plank in the argument of Mr Alun Jones QC, who has appeared for the appellant, that Yarkas has an appeal pending in the Spanish Supreme Court against his Spanish conviction on 26 September 2005 for conspiracy to commit terrorist killing and that his appeal is supported by the prosecution on the basis that the evidence against him on that offence is too weak. His argument, as we understand it, is that if the case against Yarkas on conspiracy to commit terrorist killing cannot stand there is no case against the appellant either. It should be noted, however, that this is not accepted by the Spanish authorities and, even if acquitted of conspiracy to commit terrorist killing, Yarkas would remain convicted of "integration in a terrorist group". It is also to be observed that the Spanish court has not yet, as we understand it, made a decision on the Yarkas appeal. We shall return to this aspect of the case later.
15. The appellant's grounds of appeal are contained under 7 headings. It is convenient to deal first with ground 5, proof of identity.

Proof of Identity

16. The appellant contends that his identity was not proved as required by s.7 of the 2003 Act. S.7 is headed "Identity of person arrested." The material parts of the section are as follows:

"(1) This section applies if-

(a) a person arrested under a Part 1 warrant is brought before the appropriate judge under s.4(3),

…..

(2) The judge must decide whether the person brought before him is the person in respect of whom-

(a) the warrant referred to in subsection (1)(a) was issued,

…..

(3) The judge must decide the question in subsection (2) on a balance of probabilities."

17. What happened was this. On his first appearance before the court the appellant came before District Judge Pratt who considered the issue of identification under s.7 as he was obliged to do. The appellant acknowledged that he was Farid Hilali and Judge Pratt concluded, on balance of probabilities, that he was the person being sought in the EAW. It appears highly likely, although it is impossible to be certain, that the District Judge had before him a witness statement of Detective Sergeant Flood in the following terms:

"On Monday 28^th June 2004 I was on duty at Paddington Green Police Station when a man who I now know as Farid HILALI was brought into the secure area. I approached him and identified myself to him by showing him my warrant card. I said to him "can you tell me your full name?" He said "Farid HILALI" I said "and your date of birth" He said "21/08/1962". I said Mr HILALI I am arresting you under a European Arrest Warrant issued by the Government of Spain and certified by the UK authority. This warrant alleges Terrorist offences against you and the Spanish authorities are seeking your extradition on those matters" I then cautioned him at 9.15 am to which he made no reply. I said "Do you understand why you have been arrested" He replied "Yes". I then gave Mr HILALI a copy of the European Arrest Warrant in both English and Spanish as well as the certificate."

The date of birth on the EAW corresponded as to day and month but not year with the date given by the appellant; the warrant gave the year as 1968.

18. The question is whether District Judge Pratt was entitled to conclude on balance of probabilities that the appellant was the person named in the warrant. In our judgment on the basis of the material that we have described, and in the absence of any evidence to the contrary, he was so entitled.
19. In the event, when the extradition hearing took place in January 2005 Senior District Judge Workman decided he had power to review the decision albeit it was not suggested the person brought before him was different from the person before Judge Pratt. Judge Workman reached the same conclusion as Judge Pratt. Mr Hardy, who has appeared for the 1^st respondent, rightly raised the question whether Judge Workman had any jurisdiction to review the decision and submits that it is at least arguable that he did not. Under Part 1 of the Act (in contradistinction to Part 2) the question of identity falls to be resolved at an initial hearing. There is no right of appeal by the appellant against a decision under s.7(2). The right of appeal lies only against an order of extradition (see s.26 and Nikonovs v Governor of Brixton Prison & Another [2006] 1All ER 927, 930 paras 9-15).
20. We have considerable doubt whether Judge Workman did have jurisdiction to review the finding of identity, although we can well understand why he was anxious to ensure that there had been no error. In the absence of such jurisdiction the appropriate route for challenging Judge Pratt's decision would, in our judgment, be judicial review. Had we thought there was any substance in Mr Alun Jones' submission we would have been prepared to grant permission to apply for judicial review out of time in respect of Judge Pratt's decision. In the event, however, we have no doubt that he was entitled to reach the decision that he did. As Judge Workman pointed out, when one considers the whole of the EAW it is plainly being said that Hilali, Shukri and Shakur are one and the same person.
21. The person named in the warrant appears immediately under the heading "information on the identity of the requested person:" as follows

Last name: Hilali

First name: Farid

Alias (if any): Shukri and Shakur

22. Mr Alun Jones' submission is that the warrant contains insufficient evidence to establish that the appellant, who admittedly identified himself in court as "Farid Hilali", is the person referred to in the warrant. We cannot accept this submission. While it is true that when arrested the appellant gave his year of birth as 1962 whereas it is stated as 1968 in the warrant, it is of much more significance, that both the day and month he gave corresponded with the day and month stated in the arrest warrant. Nor is it a case, as it appears to us, where there was any dispute before Judge Pratt as to the identity of the appellant. The 1^st respondent was simply put to proof on the balance of probabilities under s.7. Accordingly, we conclude there is no substance in this ground.

Was the appellant "accused" of an offence?

23. By ground 3 it is alleged that the appellant was not "accused" of an offence. S.64 provides that a person (i.e. the appellant) must be "accused" of an offence. Mr Alun Jones' argument is that merely being suspected of the offence is insufficient, the higher threshold of an accusation is required. He submits that the EAW does not cross that threshold.
24. Lord Steyn had this to say about the meaning of "accused" in In re Ismail [1999] 1 AC 320, 326F:

"It is common ground that mere suspicion that an individual has committed offences is insufficient to place him in the category of "accused" persons. It is also common ground that it is not enough that he is in the traditional phrase "wanted by the police to help them with their inquiries." Something more is required. What more is needed to make a suspect an "accused" person? There is no statutory definition. Given the divergent systems of law involved, and notably the differences between criminal procedures in the United Kingdom and in civil law jurisdictions, it is not surprising that the legislature has not attempted a definition. For the same reason it would be unwise for the House to attempt to define the word "accused" within the meaning of the Act of 1989. It is, however, possible to state in outline the approach to be adopted. The starting point is that "accused" in section 1 of the Act of 1989 is not a term of art. It is a question of fact in each case whether the person passes the threshold test of being an "accused" person. Next there is the reality that one is concerned with the contextual meaning of "accused" in a statute intended to serve the purpose of bringing to justice those accused of serious crimes. There is a transnational interest in the achievement of this aim. Extradition treaties, and extradition statutes, ought, therefore, to be accorded a broad and generous construction so far as the texts permits it in order to facilitate extradition: Reg. v. Governor of Ashford Remand Centre, Ex parte Postlethwaite [1988] A.C. 924, 946-947. That approach has been applied by the Privy Council to the meaning of "accused" in an extradition treaty: Rey v. Government of Switzerland [1999] AC 54, 62G"

Lord Steyn was speaking of the Extradition Act 1989, but his words apply equally to the 2003 Act, as Latham LJ noted in Dabas v The High Court of Justice Madrid, Spain [2006] EWHC 971 (Admin) to which we shall refer in more detail in a moment.

25. In Office of the King's Prosecutor, Brussels v Cando Armas and Others [2005] 3 WLR 1079, 1099E Lord Scott of Foscote observed that the grounds on which a Member State can decline to execute a EAW issued by another Member State are very limited but that Articles 3 and 4 of the Framework Decision set out the grounds on which execution must or may be refused. He went on:

"None of these grounds enable the merits of the proposed prosecution or the soundness of the conviction or the effect of the sentence to be challenged. There is one qualification that should, perhaps, be mentioned. The execution of an arrest warrant can be refused if, broadly speaking, there is reason to believe that its execution could lead to breaches of the human rights of the person whose extradition is sought: see recitals (12) and (13).

54. These features of the Framework Decision explain, I think, the inclusion in the 2003 Act of the requirement that if an arrest warrant is issued for the purpose of prosecuting the person named in the warrant, the arrest warrant must so state: see section 2(3)(b). Extradition for the purpose of interrogation with a view to obtaining evidence for a prosecution, whether of the extradited individual or of anyone else, is not a legitimate purpose of an arrest warrant. But the judicial authority in the requested state cannot inquire into the purpose of the extradition. It is therefore necessary for there to be an unequivocal statement of that purpose in the arrest warrant itself. Hence the requirement in section 2(3)(b). It is to be noted that the opening words of the form of arrest warrant set out in the annex to the Framework Decision refer to a request that

"the person mentioned below be arrested and surrendered for the purposes of conducting a criminal prosecution or executing a custodial sentence or detention order."

It is presumably intended that the inapplicable alternative be deleted. The person in question is surely entitled to know which of the alternatives apply to him."

26. Against that background we turn to consider the terms of the warrant. Mr Hardy submits that, read as a whole, it is clear that the EAW was issued for the purpose of prosecuting the person named in it i.e. the appellant. The question is what message does the warrant give to the appellant or any other reader?
27. Considerable assistance is to be obtained from the judgment of Latham LJ, with whom Jack J agreed, in the Divisional Court's decision in Dabas, a case which, as its title illustrates, is another Spanish extradition case. The warrant in that case contained a similar, but not identical preamble to that in the present case. This is hardly surprising because the form of the warrant is, as Lord Scott pointed out in Armas, set out in the annexe to the Framework Decision. Any differences may be due to translation. The wording of the preamble in the present case is:

"This warrant has been issued by a competent judicial authority. I request to arrest and deliver to the judicial authorities the following person in order to be criminally tried or to execute a penalty of imprisonment or a preventative measure or imprisonment."

28. Latham LJ, having considered the observations of Lord Steyn in In re Ismail, went on to say at para 12:

"The courts have not so far had to consider the meaning of the word "accused" in section 2(3) of the 2003 Act: but I cannot believe that the general approach should be any different to that adumbrated by Lord Steyn in relation to its meaning in the Act of 1989"

He found support in the approval of Crane J in R (on the application of Bleta) v Secretary of State for the Home Department [2005] 1 All ER 810 and Lord Hope in Armas as p1098 and concluded at para 14:

"In the present case, whilst I accept that the proforma wording in the preamble to the warrant is not necessarily determinative of the issue of whether or not the requirements of section 2(2)(a)(b) have been met, it seems to me that the court could only properly conclude that they did not mean what they say if the context throws clear doubt upon their prima facie meaning. In my view nothing in the warrant itself could possibly justify the conclusion that they did not. The Court out of which the warrant was issued was the "Court for Committal Proceedings". The decision identifies "Alleged offence of collaboration with Islamic terrorist organisations" in terms which do not suggest that the procedure was merely part of the process of investigation. The particulars provided in relation to the offence show that there is substantial evidence against the appellant and not merely suspicion."

29. We return to the opening words of the EAW in the annex to the Framework Decision:

"This warrant has been issued by a competent judicial authority. I request that the person mentioned below be arrested and surrendered for the purpose of conducting a criminal prosecution or executing a custodial sentence or detention order."

Mr Hardy submits that they contemplate but two options, prosecution or sentence, the latter including detention. The wording of the request in the EAW in the present case is slightly different:

"I request to arrest and deliver to the judicial authorities the following person in order to be criminally tried or to execute a penalty of imprisonment or a preventive measure of imprisonment."

Mr Jones submits this suggests there could be a third option contemplated namely preventive detention. In our judgment however the opening words of the EAW in the present case should be read in the light of the pro-forma. We would regard any difference as likely to be attributable to translation. On any realistic reading the EAW in the present case can only have been issued for one of two purposes, either trial or the serving of a sentence of imprisonment. Having concluded that the EAW could only have been issued for one of two mutually exclusive purposes one then turns to box (b) to see which purpose it serves. Box (b) is headed: "Grounds for arrest: the warrant". It continues:

"1. Arrest warrant or executive's judicial resolution of equivalent level:

Resolution decreeing the arrest and provisional imprisonment of the person in order to be at the disposition of Central Court of Criminal Proceedings number 5 of the national court…"

We take "resolution" as being equivalent to an order of commitment.

30. Further comparison between the pro-forma and the EAW is revealing. In the pro-forma box, (b) is headed "Decision on which the warrant is based"; in the EAW the words are "Grounds for the arrest warrant". The difference in wording is of no significance. There follow two alternatives numbered 1 and 2 but 2 has been omitted in the EAW. The distinction between 1 and 2 is to reflect whether the person sought to be extradited is required as here, to be tried or whether there is already a judgment against him which is sought to be enforced i.e. sentence. The omission of the second alternative in the EAW plainly indicates that the appellant was wanted in order to be prosecuted rather than to execute or enforce a sentence against him.
31. Some further assistance is also to be found in box (c). This is headed in the pro-forma "Indication on the length of the sentence" and in the EAW "Information on the extension of the penalty." The pro-forma then gives two headings: 1. Maximum length of the custodial sentence or detention which may be imposed for the offence(s) and 2. Length of the custodial sentence or detention order imposed, with a sub-heading: Remaining sentence to be observed.

The EAW provides under 1. "Maximum extension of the penalty of imprisonment or the preventive measure of imprisonment that may be issued based on the imputed crime(s): 30 years (our emphasis). The reference to an "imputed" crime seems to us to be entirely consistent with the accusation of an offence rather than mere suspicion. Also, as was pointed out during argument, 30 years cannot realistically be considered to relate to pre-trial detention.

32. The EAW continues by giving a good deal more by way of particulars than was strictly necessary. The core of it comes in paragraph 4 at page 5 of the warrant:

"The conversations (the appellant) made on the 6^th and 27^th August 2001 show that he is isolated from his previous contacts, that he is participating in a commando that is being trained on aircrafts, a few days before the attacks of the 11^th of September 2001 which leads to the conclusion that he was one of the men who participated in the attacks although it is clear he was not one of the suicidal pilots since there are telephone calls to IMAD EDDIN BARAT YARKAT after said date of the attacks."

33. It seems to us plain from the EAW that the appellant is wanted for trial in Spain because he is accused of one or more offences. The threshold between mere suspicion and accusation is comfortably crossed.
34. If any fortification of our view is required it is to be found in the observation of Smith LJ with whom Newman J agreed, in Boudhiba v Central Examining Court No 5 of the National Court of Justice Madrid, Spain [2006] EWHC 167 (Admin) at para 21 that the opening words of the EAW that the individual is wanted in order to be criminally tried would not be applicable absent a decision to prosecute having been taken.
35. Mr Alun Jones submits that the language of the warrant is the language of suspicion rather than of accusation. We cannot agree; it seems to us that the fallacy in Mr Jones' submissions on this as with other of his submissions in this appeal is that we are not permitted to descend into an examination of the evidence or the strength of the case that the Spanish authorities may or may not have against the appellant.
36. In our view the appellant is accused in a Category 1 territory of the commission of an offence and the requirement in s.64(1)(a) of the 2003 Act is met.

The appellant is not accused of an "extradition offence".

37. By ground 4 it is contended that the appellant has not been accused of an extradition offence. S.10(2) of the 2003 Act requires the judge to decide whether the offence specified in the Part I warrant is an extradition offence. S.64(2) sets out the conduct that constitutes an extradition offence. It is in these terms:

"The conduct constitutes an extradition offence in relation to the category 1 territory if these conditions are satisfied-

(a) the conduct occurs in the category 1 territory and no part of it occurs in the United Kingdom;

(b) a certificate issued by an appropriate authority of the category 1 territory shows that the conduct falls within the European framework list;

(c) the certificate shows that the conduct is punishable under the law of the category 1 territory with imprisonment or another form of detention for a term of 3 years or a greater punishment."

S.64(3) provides:

"The conduct also constitutes an extradition offence in relation to the category 1 territory if these conditions are satisfied-

(a) the conduct occurs in the category 1 territory;

(b) the conduct would constitute an offence under the law of the relevant part of the United Kingdom if it occurred in that part of the United Kingdom;

(c) the conduct is punishable under the law of the category 1 territory with imprisonment or another form of detention for a term of 12 months or a greater punishment (however it is described in that law)."

S.64(4) provides:

"The conduct also constitutes an extradition offence in relation to the category 1 territory if these conditions are satisfied-

(a) the conduct occurs outside the category 1 territory;

(b) the conduct is punishable under the law of the category 1 territory with imprisonment or another form of detention for a term of 12 months or a greater punishment (however it is described in that law);

(c) in corresponding circumstances equivalent conduct would constitute an extra-territorial offence under the law of the relevant part of the United Kingdom punishable with imprisonment or another form of detention for a term of 12 months or a greater punishment."

It is unnecessary to recite the remaining provisions of the section.

38. The appellant submits that the particulars of conduct set out in the EAW do not disclose any extradition offence. S.64(2) does not apply because the appellant is alleged to have been in the United Kingdom when he took part in part of the conspiracy. Judge Workman however concluded that the provisions of subsection (3) were satisfied. He said of the details given in the warrant:

"There are references in the description to a large number of countries. Many of the allegations against (the appellant) involve international telephone calls and in some instances it is difficult to be sure whether the person that (the appellant) is alleged to be speaking to is in Spain. I am however satisfied that the centre of the conspiracy revolves round a man named Abu Dahdah or Yarkas, whose home address was in Madrid. Those conversations link the (appellant) with Yarkas in Spain and with the conspiracy to the attack on the World Trade Centre and the Pentagon on the 11^th September 2001.

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 or have amounted to or involve the commission of the offence of murder of persons in America – I am therefore satisfied that the conduct alleged amounts to an extradition offence under s.64(3). "

39. The judge went on to reject the further submission that if there was no conduct in Spain there was nevertheless an extra territorial offence in English law arising from the conduct alleged and that accordingly s.64(4) applied. The basis of this argument was that the aircraft were flying bombs and that there was an intent to cause explosions within the meaning of the Explosive Substances Act 1883.
40. In our judgment the judge was right to conclude that s.64(3) applies. The focus here was on conspiracy to murder. The conspiracy must be founded or maintained in Spain (the requesting jurisdiction). It is sufficient that any overt act in furtherance of the conspiracy occurred in Spain. In fact a number of overt acts were alleged to have taken place in Spain. The EAW contends that the Yarkas group, of which the appellant was said to be a member, was involved in preparation for the attack on 11 September and that the appellant lived for a time in Spain. There were telephone calls to Yarkas in Spain on 6 and 27 August and 28 September. Thus s.64(3)(a) is satisfied.
41. As Mr Hardy points, out the origins of s.64(3) are to be found in Government of Denmark v Nielsen [1984] 1 AC 606 and the earlier extradition legislation. The degree of level of inquiry into international foreign law was in issue in that case. Nomenclature of the offence in the foreign state does not matter. Lord Diplock said at p625F:

"So it is the facts proved before the magistrate at the hearing of committal proceedings against the fugitive criminal under s9-10 (of the Extradition Act 1970), and not whatever article of the Danish penal code that may be referred to in the original Danish warrant of arrest that determines the only crime or crimes under Danish law for which the fugitive criminal who has been surrendered can be tried in Denmark without being given an opportunity of returning to the United Kingdom.."

42. The next step is to transpose the alleged conduct to the United Kingdom and ask whether in terms of English law, if the conduct were proved to have occurred here, it would constitute an offence. We have been referred to s.1A of the Criminal Law Act 1977 which covers conspiracy to commit offences outside the United Kingdom. Mr Hardy makes the point that the words "if it occurred" in subsection (b) mean "if it is proved to have occurred". We are looking at the conduct of which the appellant is accused and not at issues of evidence as to whether the conduct alleged may or may not be established. The conduct alleged would constitute the offence of conspiracy to commit murder abroad if it occurred in this country and in our view the condition in s.64(3)(b) is met.
43. That leaves s.64(3)(c). The conduct is punishable in Spain by up to 30 years imprisonment. This comfortably exceeds the minimum period of 12 months specified in the subsection.
44. Accordingly, this case falls within s.64(3) and in our judgment Judge Workman was right so to conclude. It is accordingly unnecessary for us to express any view upon whether this case is also covered by s.64(4).

Specialty arrangements.

45. The appellant submits by ground 2 that there are no specialty arrangements within the meaning of s.11(1)(f) and s.17 of the 2003 Act and that specialty arrangements should not only exist but also be effective (see Laws L.J in Bermingham para 135). Specialty is the term used in extradition law to describe the rule that an extradited person may only be tried in the requesting state for the crime or crimes for which he has been extradited. As Laws L.J pointed out in Bermingham, the 2003 Act refers to speciality rather then specialty. Like Laws L.J we shall continue to use the time-honoured word specialty. Under the 2003 Act the issue of specialty falls for consideration by the District Judge in Part I cases and by the Secretary of State in Part 2 cases. Whilst the wording of s.17 and s.95 is not identical, the same considerations apply.
46. S.11 is headed "Bars to extradition". Various bars are then set out, one of which is specialty. The detailed provisions are to be found in s.17. Nothing turns on the detailed provisions of s.17 in the present case. The issue is whether there are practical and effective arrangements in Spain to ensure that the appellant will only be tried for the offence for which he has been extradited or others disclosed by the same facts.
47. The bar of specialty was not raised before the District Judge but that does not prevent the point being taken before us (see s.27). The fact however that the point was not taken before the District Judge, despite the appellant's representation by experienced lawyers in the extradition field, is perhaps an indication that there is force in Mr Hardy's submissions that the point is wholly misconceived.
48. The thrust of Mr Alun Jones' submission is that nothing in the papers in the present case to enables the United Kingdom courts to be satisfied that there are the requisite specialty arrangements in Spain; we cannot be satisfied that there are practical and effective arrangements.
49. In our judgment the basic question is whether the rule of specialty is catered for in Spanish law. Mr Jones seems in effect to be suggesting that every EAW should recite the specialty arrangements in place.
50. Mr Hardy submits that specialty arrangements have always been integral to the working of extradition. The rationale behind the rule is the exercise and preservation of sovereignty of the requested state over the person who is returned to the requesting territory. 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). They are also bound by the terms of the Framework Decision (see paras 2 and 3 of Article 27).
51. Mr Hardy further makes the point that, as with all bars to extradition under s.11 of the 2003 Act, the burden is on the appellant to establish that his extradition is barred.
52. It seems to us a surprising submission that Spain is likely to act in breach of the international obligations to which it has signed up. There is no evidence before us that it has done so in the past and in these circumstances we would need compelling evidence that it is likely to do so in the future. By Article 34 of the Framework Decision Member States were requested to take the necessary measures to comply with its provisions by 31 December 2003. It is not suggested that Spain has failed to meet this implementation provision. It seems to us therefore that it is to be inferred that the specialty arrangements referred to in s.17(2) of the 2003 Act are in place.
53. Against that background we turn to see how the appellant's case is put. In essence what it comes to is this. It is intended to prosecute him for murder and that would be a breach of the specialty rule. It is certainly true that prosecuting the appellant for murder would breach the specialty rule. We were referred to a letter dated 7 April 2006 written by Judge Fernando Marlaska Gomez from the Preliminary Investigating Court in Madrid in which there is a passage:-

"With reference to the second offence included in the EAW which is a terrorist murder related to the famous 11s attacks of 2001 in the USA, the EAW must be also maintained for the second offence irrespective of the report issued by the Public Prosecutor of the Supreme Court, because of the following considerations:"

The consideration that follows are:

(1) there is nothing to stop the appellant admitting his participation in those attacks; and

(2) only the Supreme Court has the jurisdiction to assess the evidence against Yarkas; there is also referred to the "degree of conspiracy" on his part.

54. This letter was written as a result of questions whether the EAW against the appellant was to be maintained following the prosecution position on the appeal of Yarkas, to which we have referred to in para 14. It is clear that the EAW is maintained against the appellant and in its original form. We agree with Mr Hardy's submission that conspiracy to murder precisely replicates what the appellant will be tried for under Spanish law. It has never been suggested that the appellant was one of the suicide pilots (he would not be here today if he was) or that he was as a participant in all or any of the murders.
55. What seems to us to be crucial are the facts upon the basis of which the appellant's return is sought. He is said to be one of a number of conspirators; that has not changed since the warrant was issued. Nor is it affected by the outcome of proceedings against Yarkas.
56. In our view there is no evidence to suggest that the Spanish Government is seeking the appellant's return for other than bona fide reasons or that they are asking for his return for other than the purpose requested.
57. We entirely reject Mr Alun Jones' submission that the Spanish authorities probably have no idea about the provisions of s.17 and that they are going to prosecute him for an offence namely murder, for which he cannot be extradited. That seems to us to be tantamount to saying the Spanish authorities have no idea of their obligations under the Framework Decision. This is something we cannot accept.
58. In our judgment the appellant's specialty argument is, as Mr Hardy submits, misconceived.


 


Extraneous considerations and human rights.

59. In ground 6 the appellant alleges that his extradition is barred by extraneous circumstances and in ground 7 that if he is extradited his human rights will be violated. There is a good deal of overlap between these two grounds. His essential complaint is that in Spain Arabs accused of committing Islamic terrorist offences are liable to be mistreated and will not – or at least may not - receive a fair trial.

Extraneous Considerations

60. S.13 of the Extradition Act 2003 provides:

"A person's extradition to a category 1 territory is barred by reason of extraneous considerations if (and only if) it appears that-

(a) the Part 1 warrant issued in respect of him (though purporting to be issued on account of the extradition offence) is in fact issued for the purpose of prosecuting or punishing him on account of his race, religion, nationality, gender, sexual orientation or political opinions, or

(b) if extradited he might be prejudiced at his trial or punished, detained or restricted in his personal liberty by reason of his race, religion, nationality, gender, sexual orientation or political opinions."

61. These provisions reflect s.6(1)(c) and (d) of the Extradition Act 1989; therefore the principles established under those provisions continue to apply.
62. The burden is on the appellant to show a causal link between the issue of the warrant, his detention, prosecution, punishment or the prejudice which he asserts he will suffer and the fact of his race or his religion. He does not have to prove on the balance of probabilities that the events described in s.13 (b) will take place, but he must show that there is a 'reasonable chance' or 'reasonable grounds for thinking' or a 'serious possibility' that such events will occur (Fernandez v The Government of Singapore [1971] 1 WLR 987)
63. It has long been established (since Schtraks v Government of Israel [1964] AC 556) that the Court in considering these matters is not bound by the ordinary rules of evidence; the appellant may rely on any material in support of a submission based on s.13.

Human Rights

64. Ground 7 asserts that the appellant's surrender would not be compatible with his human rights; this is based on s.21(1) of the Act, which provides that:

"If the judge is required to proceed under this section (by virtue of sections 11 or 20) he must decide whether the person's extradition would be compatible with the Convention rights within the meaning of the Human Rights Act 1998."

65. We turn to the relevant principles to apply. In R (Ullah) v Special Adjudicator [2004] 2 AC 323, Lord Bingham (at page 352) said this:

"24 While the Strasbourg jurisprudence does not preclude reliance on articles other than article 3 as a ground for resisting extradition or expulsion, it makes it quite clear that successful reliance demands presentation of a very strong case. In relation to article 3 it is necessary to show strong grounds for believing that the person, if returned, faces a real risk of being subjected to torture or to inhuman or degrading treatment or punishment: Soering, para 91: Cruz Varas, para 69, Vilvarajah, para 103. In Dehwari, para 61 (see para 15 above) the Commission doubted whether a real risk was enough to resist removal under article 2, suggesting the loss of life must be shown to be a "near-certainty". Where reliance is placed on article 6 it must be shown that a person has suffered or risks suffering a flagrant denial of a fair trail in the receiving state: Soering, para 113 (see para 10 above); Drodz, para 110; Einhorn, para 32; Razaghi v Sweden; Tomic v United Kingdom. Successful reliance on article 5 would have to meet no less exacting a test. The lack of success of applicants relying on articles 2, 5 and 6 before the Strasbourg court highlights the difficulty of meeting the stringent test which the court imposes. This difficulty will not be less where reliance is placed on articles such as 8 or 9, which provide for the striking of a balance between the right of the individual and the wider interests of the community even in a case where a serious interference is shown."

66. In Government of the United States of America v Montgomery [2004] 1 WLR 2241, Lord Carswell (at page 2251) said this:

"24 The European Court has affirmed on a number of occasions the existence in principle of the possibility in a suitable case of invoking article 6. The context has generally been that of extradition or expulsion of aliens seeking admission to the country concerned, but in my opinion it is capable of being applied to the enforcement in a Convention state of a judgment obtained in another state, whether or not the latter is an adherent to the Convention. No decision was cited to your lordships in which the court went so far as to hold that an act of extradition or expulsion amounted to a breach of article 6, and in all of the reported cases the European Court has strongly emphasised the exceptional nature of such a jurisdiction and the flagrant nature of the deprivation of an applicant's rights which would be required to trigger it."

67. In support of his submissions, the appellant relies on two reports, one by Angel Montoya and the other by Eion McGirr.
68. Angel Montoya is a Spanish lawyer, practising in Biscay. He has experience of the National Criminal Court of Spain (the 'Audiencia Nacional') in dealing with persons suspected and charged with terrorist offences. In a long report, he claims that Muslim detainees held in police cells in Spain can be ill-treated and even tortured to obtain confessions; that detainees can be held incommunicado for up to 13 days; that detainees are not permitted access to legal advice, or if they are, that they are denied access to lawyers of their own choice, and that the whole investigative and trial process is loaded against North African Muslims, charged with terrorism offences.
69. Eion McGirr was called to the Bar in England; he did a pupillage but never practised. He has since worked principally as an interpreter. His report is to the same effect. He focuses particularly on the long period of detention – up to four years - to which he claims terrorism cases is Spain are routinely subject; he also claims that the regime to which they are subject is harsh and oppressive. He also complains about the quality of legal representation
70. Of course, appellants may rely on the way in which others in similar circumstances have been treated but the court must focus on the particular circumstance attending the particular individual and assess, as best it can from the information available, whether there is any real substance in the risks of prejudice, abuse and unfairness which he claims to face upon extradition because of his race or religion.
71. In evaluating these reports, we note that the authors deal only in generalities; neither makes any attempt to deal with the particular circumstances of this case. Neither has commented on the lengthy trial of the appellant's co-appellant Yarkas, still less have they made any criticism of the conduct of the case, or of the quality of the legal representation, or of the procedures or fairness of the trial or of the conditions in which Yarkas was detained or questioned. Neither report has shown any acknowledgement or appreciation of the position, status and protection which the appellant would have if he was to be returned to Spain under the EAW. Nor has any attempt been made to respond to the points made by the Spanish authorities. In our judgment these factors considerably undermine the weight to be given to these reports.
72. However, they make very grave allegations and if we thought that there was real substance in them, then plainly it would be quite wrong to authorise the appellant's extradition. We must therefore examine these complaints in some detail.
73. We have read with care, the responses of the Spanish authorities. We refer to the statement made by Judge Fernando Marlaska Gomez on 3^rd March 2005 under the seal of the Central Court for Committal Proceedings in Madrid (we have already referred to his further statement of 7^th April 2006, when reviewing the issue of specialty) and to the depositions of the prosecution counsel Pedro Rubira Nieto made on 7^th February, 11^th April 2005 and 24^th April 2006. It is strongly argued by the Spanish authorities that the laws and procedures in place in Spain would provide effective protection to this appellant.
74. Of course, the mere fact that Spain has laws and procedures which purport to safeguard the human rights of detainees is not sufficient. The English courts must be vigilant to ensure that those rights provided by the 2003 Act and by ECHR are 'interpreted and applied as to make their safeguards practical and effective' (to use the words of the European Court of Human Rights in Soering v UK (1989) 11 EHRR 439, para. 87).

Good faith

75. We have been alerted by the Human Rights Watch paper entitled 'Empty Promises: diplomatic assurances no safeguard against torture' to the danger that assurances by diplomatic and legal authorities in the requesting state may prove to be illusory and the courts may be impotent to protect persons detained on terrorist offences. However, we have not been given particulars of any person who has claimed to have been unfairly treated in Spain following surrender under a EAW. Furthermore, in the absence of a record of non-compliance in any such case, the best guarantee of compliance with the appellant's human rights is knowledge that, if violated, future co-operation would be imperilled and the presumption of good faith would be displaced.
76. Moreover, we have been impressed by the paper by the Foreign Office entitled 'Counter Terrorism Legislation and Practice: a Survey of Selected Countries' which suggests that human rights are protected by the Spanish courts in the context of extradition and expulsion cases.
77. It seems to us that the courts should give great weight to the fact that Spain is a western democracy, subject to the rule of law, a signatory of the European Convention of Human Rights and a party to the Framework Decision; it is a country which has and which applies the same human rights standards and is subject to the same international obligations as the United Kingdom. These surely are highly relevant matters which strongly militate against refusing extradition on the grounds of the risk of violating those standards and obligations.
78. We think that there must be, as Kennedy LJ put it in Serbeh v Governor of Brixton Prison [2002] EWHC 2356 (Admin) (paragraph 40): 'a fundamental assumption that the requesting state is acting in good faith. If there is a reason in the particular case to call that assumption into question, then the reason can be examined, and if appropriate acted upon…'.
79. With these principles in mind, we seek to deal with the points raised one by one.

Incommunicado detention and torture

80. It is claimed on behalf of the appellant that if he is returned to Spain accused of terrorist offences, he will be held incommunicado, perhaps for as long as 13 days, without his friends or family being told of his detention or whereabouts, without any access to a lawyer – let alone private and confidential access; without recourse to the courts and that he would be subject to prolonged, oppressive and uncontrolled interrogation by the police. Various other claims are made as to the harsh regime in which the appellant would be held including solitary confinement, in an underground cell, without natural light, without the opportunity to wash and without exercise or recreation. It is further suggested that appellants held in this regime are routinely subjected to torture.
81. Self evidently, if a appellant was to be held incommunicado in these circumstances and conditions there would be grave violations of the his human rights. It is said that the examining judges are sceptical about such claims and that the judicial system has proved an inadequate safeguard against such abuses in the past.
82. Some support for these allegations in terrorist cases in the past (but not in respect of those surrendered pursuant to a EAW) is to be found in the reports from Amnesty International, from the United Nations Human Rights Committee Special Rapporteur to which Senor Montayo refers. We have also read with care the Human Rights Watch paper 'Setting an Example? Counter-Terrorism Measures in Spain' (January 2005 Vol 17, No 1(D)).
83. It is true that in some cases there can be a system in Spain of detention 'incommunicado'. Terrorism in Spain is not a new phenomenon. The Basque separatist movement ETA has over the years committed many outrages in Spain. The government and the Spanish legal system have had to develop systems to deal with the many problems presented. Because of the known risks that some lawyers cannot be trusted not to pass information on to terrorist organisations, some persons detained in Spain for terrorist offences can, in some situations, be held for some days incommunicado and without access to lawyers, or with access only to lawyers authorised by the State. After such detention has ended, then the detainee can retain a lawyer of his choice.
84. There is power in exceptional cases to hold a person incommunicado for up to 13 days; we were told that there is no recent example of detention in these circumstances for longer than 5 days. The UN Commission on Human Rights resolved in 2003 that 'prolonged incommunicado detention may facilitate the perpetration of torture and can, in itself, constitute a form of cruel, inhuman and degrading treatment or even torture'.
85. If an appellant faced the possibility of extradition from this country to Spain and if he might be held there incommunicado, then the legality and the propriety of the extradition would need carefully to be examined.
86. We are, however, quite satisfied from what we have read from the Spanish authorities that the appellant faces no possibility of detention incommunicado. An EAW is a request made by a judicial authority; if the appellant is returned to Spain, pursuant to extradition following the issue of an EAW, then his case, his detention and interviewing will be held subject to immediate, continuing and effective judicial supervision. Indeed upon his arrival in Spain the appellant must be brought immediately before a judge, who must determine whether he is to be kept in custody. He will not be held incommunicado or in solitary confinement. He will have unimpeded access to a lawyer of his choice; the lawyer has a right to be present at all judicial hearings and to challenge any adverse findings, including the decision to hold him in custody at all, by way of appeal, or by way of application for Habeas Corpus, to higher courts, and if necessary all the way up to the Spanish Constitutional Court. The appellant has the right to medical examination and treatment. He will have all the protection accorded to him by the Spanish constitution, which fully protects all the rights accorded by the European Convention of Human Rights to which Spain is a signatory. There is, in our judgment, no reason at all to think that the Spanish courts will be unable – still less unwilling – to protect the appellant's rights.
87. We reject therefore the claim that there is a real risk the appellant will be held incommunicado, or that he will be tortured.

Length of pre-trial detention

88. It is claimed that persons are frequently detained in Spain for a long time – even up to 4 years – before trial. The Human Rights Watch paper provides a number of examples of such delays in terrorism cases. It should however be borne in mind that the Spanish judicial system is inquisitorial in nature. Sometimes the complexity of the crimes alleged does result in the investigation taking a long time; there is always a tension between thoroughness and delay. This was, of course, a highly complex case; the eventual indictment was 692 pages long; there were 41 appellants; there were 133 volumes of evidence. However, here the investigative phase has long finished; there has already been one trial on the same facts.
89. There is no reason whatsoever to think that there will be any undue delay in the appellant's trial starting. Even if there was to be a delay, then the appellant's lawyers may challenge the need for his continued detention and he must then be released unless the authorities can justify his detention to the court. Accordingly, we reject this part of the appellant's case also.

Conditions of pre-trial detention

90. It is claimed that the appellant may be detained in a 'closed regime'. Every state must make provisions for the safe and secure confinement of those prisoners who are accused of grave terrorist offences, or who are unable or unwilling to comply with the normal prison regime. Furthermore there is an obligation on the prison authorities to keep such prisoners safe from other prisoners; after the terrorist outrages in Madrid, some themselves asked for the protection of the 'closed regime'. There is no reason to think that the appellant himself would be held in such conditions; and even if he was, it would not be on account of his race or religion. Further complaint is made that terrorist suspects are dispersed throughout the Spanish prison system. Again, this may be a prudent way in which to manage and control those who may, if held together, collectively form a serious security threat. We do not think that there is anything in these points.
91. For the reasons we have already given, we reject the claims that the appellant's detention in Spain will amount to any breach of Article 5: his arrest and detention will be lawful, and he will be brought before a competent legal authority, which will exercise a continuing and effective control over such detention as it may authorise.

Secretio de Sumario

92. The appellant complains that he might be further prejudiced by the Spanish procedures known as the 'secretio de sumario', by which, in some terrorist cases, some part of the investigative process is held in secret. It should be remembered that Spain has an inquisitorial system of criminal justice, which covers the process of investigation as well as the process of trial. It is obvious that in the search for those responsible for terrorist offences, much of the investigative process must be and must remain confidential and even secret. But in the present case the investigative phase is already over. There is no risk that this appellant will be subject to the process of 'secretio de sumario'. We need say no more about it.

Legal representation

93. The Spanish legal system grants legal representation to anyone accused of serious crime. Unless subject to the regime of incommunicado (which – as we have already explained – does not apply to this case), appellants in Spain have a right to be represented by a lawyer of their choice. It is, however claimed, that the rates of pay are very poor and that there is little incentive to do the work well. It is claimed that in the result, the lawyers retained are low grade and unable properly to protect the appellant's interests. We consider that these assertions are vague, unspecific and at best anecdotal. Furthermore, a consideration of the papers in the trial of Yarkas and others suggests that the lawyers representing the defendants were of high quality; indeed the reports filed by the appellant do not assert the contrary. We reject this criticism also.

Telephone evidence

94. We turn then to another separate complaint. As is clear from what we have already said, part of the case against the appellant consists of what he is alleged to have said over the telephone to Yarkas. It is said that during his trial, neither he nor his co-appellants were allowed to hear the recordings of the calls on which the prosecution relied; it is therefore suggested that the trial of the appellant also would be unfair in that he would not have the opportunity to listen to the recordings.
95. An examination of the judgment of the court in the case of Yarkas and others shows that this allegation is simply not true. At pages 114 – 118 (we refer to the internal numbering of the English translation, page 574 – 578 of our bundle), the court details the lengths to which they went to ensure fairness. Since there were many hundreds of master tapes, all of conversations in Arabic, it was not sensible – or indeed feasible – for all the tapes to be translated and transcribed. The court invited the prosecution and the defence to identify those passages to which they wished to refer: if these were relevant, then they were indeed translated and transcribed. The defence had access to all the relevant tapes. No doubt the same will apply at the trial of the appellant. This is entirely fair. There is nothing in this point.

Expulsion or deportation to Morocco

96. We turn to the claim that the real reason behind the request to extradite the appellant to Spain is to deport him on to Morocco.
97. Following the terrorist explosions in Madrid on 11 March 2004, it is said that the Spanish authorities decided to expel from Spain any foreign national suspected of involvement in terrorism. It is argued on the appellant's behalf that if he is extradited to Spain, he will be deported to Morocco, where – it is claimed – he may be detained, tortured and abused without any recourse to a legal system able – or even willing – to give any effective protection to him. The case is put in alternative ways: first, it is said that the Spanish authorities do not intend to try him at all but intend to deport him straight to Morocco. Alternatively, if he is tried but acquitted, he will be freed from custody only to be deported to Morocco.
98. These claims advanced on behalf of the appellant must be examined in the light of what the Spanish authorities say on the topic. The Spanish prosecutor Senor Nieto wrote in his statement of 7 February 2005 that 'if extradition to Spain were to be agreed, extradition to another state would never be agreed without the consent of the United Kingdom'.
99. It is said on behalf of the appellant that this response is limited to the assertion that the appellant would not be extradited from Spain to Morocco; it is asserted that they say nothing about the risk that he might be deported (our emphasis). It was to address this specific concern that Senor Nieto wrote a further statement dated 26^th April 2006; in this he writes in terms that 'the only purpose of the extradition request is to secure the surrender of (the appellant) in order that he can be tried for grave offences of terrorism, including conspiracy to murder. There is no other purpose behind the request. In particular I can say that the suggestion that (the appellant's) extradition is sought at the behest of the authorities in the UK so that he can be deported to Morocco is absurd'. This is very clear.
100. A similar claim was made in the case of Faraj v Government of Italy [2004] EWHC 2950, where it was claimed in this court that the real reason behind a request by Italy to extradite the appellant was an intention to pass him on to Libya. Tuckey LJ observed in that case (at para. 12) that 'the Italian Government has gone to great lengths, no doubt at great expense also, to get the claimant back to Italy so that he can be tried there. It makes no sense to have gone to those great lengths in order to expel him from Italy before he is tried and overlooks the fact that the claimant is alleged to be one of the principals involved in this conspiracy'. This seems to us to be an observation of powerful common sense.
101. In our judgment, there is no reason whatsoever to think that the Spanish authorities have any intention of deporting the appellant to Morocco; indeed, it is quite obvious that their intention is to try him in Spain.
102. Even if he is acquitted after a trial, then he will be able to claim asylum in Spain.
103. In the further alternative, if he is tried, convicted and sentenced, it is claimed that he will be deported to Morocco immediately upon his release after his sentence. The position is the same as in Ramda v Secretary of State for the Home Department [2005] EWHC 2526 (Admin) where the appellant claimed that there was a risk that his extradition to France would be followed by expulsion to Algeria. At para. 60, Keene LJ giving the judgment of the lower court dealt with this point:

"Moreover, if the claimant were convicted of the grave offences for which his extradition to France is sought, it can be anticipated that he would receive a lengthy custodial sentence. We understand from Miss Blunden's witness statement that Bensaid on conviction received sentences of life imprisonment and 30 years imprisonment. If that is any guide in the claimant's case, and given his alleged role as paymaster it may well be, a conviction would seem likely to mean a considerable time in prison, despite the years he has spent in custody in this country. In those circumstances, any allegation that, on release, he would be deported to Algeria relates to a situation some time in the future. The Secretary of State can scarcely be expected to refuse the claimant's return on the speculative basis that there might be a real risk to his Article 3 rights at some unknown date well into the future. Certainly there was no evidence before the Secretary of State to establish any such real risk."

104. The position facing the appellant ilali Hihere is the same. Any expulsion after trial, conviction and sentence would be many years ahead; we regard this later possibility as being far too remote to be relevant at this stage.
105. We should make clear that the appellant, in a lengthy statement, alleges that he has been unlawfully detained and tortured by the police in Dubai and Morocco. He asserts that in both countries, he was interviewed by officers from MI6. For reasons pointed out by the 1^st respondent, there are serious factual problems with the chronology suggested by the appellant but having rejected the appellant's case that he will be returned to Morocco from Spain, it is unnecessary further to examine his own claims.
106. For all these reasons we are not persuaded that the appellant has shown that the issue of the warrant, or his detention or his prosecution in Spain or that any punishment which might follow conviction are the result of his race or his religion; nor indeed do we think that he will suffer any prejudice at all on account of his race or religion. Furthermore, we are confident that his human rights will be observed by the authorities in Spain and will be properly protected by the Spanish courts. We discount the possibility that this extradition is merely a cloak for his onward deportation to Morocco. Accordingly, neither s.13 nor s.21 provides any bar to his extradition.

Abuse of process.

107. We have left until last the appellant's first ground of appeal that it would be an abuse of the process of the court to allow the extradition to proceed. Although Mr Jones put this in the forefront of his argument it seems to us that this ground has to be considered against the context of all the other grounds. If we are unpersuaded there is substance in any of the other grounds would it nevertheless be an abuse of process to extradite the appellant to Spain?
108. As will be apparent we are unpersuaded that there is anything in the other grounds of appeal either individually or collectively. We do not doubt that abuse of process could in appropriate circumstances lie notwithstanding there was no other bar to extradition: see e.g. the observations of Laws L.J in Bermingham. But we think such circumstances are likely to be rare and there would have to be bad faith or something of that kind.
109. Many of Mr Jones' abuse of process arguments are linked to other grounds of appeal. Having dealt with the other grounds of appeal we ask rhetorically what is left?
110. The remaining argument on abuse of process seems to us to centre around the following contentions. First, the prosecutor in Spain is seeking to impugn Yarkas' conviction on the basis that the evidence is too vague. Take away Yarkas as a conspirator and any case against the appellant falls too. Secondly the Spanish authorities do not know the identity of the appellant. It is at best speculative that he was the person communicating with Yarkas. Third, the Americans have never made any allegation against the appellant of involvement in events of 11 September 2001.
111. As to the first point, we have to remind ourselves that it is not for us to try the case in Spain. In the event that one conspirator is acquitted the case against others may well depend on different evidence. It certainly does not in our view follow that if Yarkas is acquitted there is necessarily no case against the appellant. It is to be noted that the terms of the EAW are maintained. There has been no change in the 1^st Respondent's position. There is nothing to suggest the requesting state is not acting in good faith
112. It seems to us that the high water mark of Mr Jones' argument relates to a passage in the translation of the public prosecutor's submission to the Supreme Court. This report is a lengthy document relating to the appeal of Yarkas. It is not all entirely easy to follow. The passage relied upon is at p.1270 of the bundle. It runs as follows:

"In relation to the participation of (Yarkas) the Court concludes in reference, days before the attempts of: 25 August 2001, he received the call of an unknown individual, and for identification purposes, named previously, called SHAKUR, where he cryptically told him: that he was involved in an aviation course, that he had "slaughtered the bird" and that he had ended all his old contacts, telling him not to tell anyone the content of the conversation.

The Court concluded with the deduction shown that: "In this way IMAD EDDIN BARAKAT YARKAS, was being informed (told) by "SHAKUR" about the familiarization and reconnaisance flights regarding the imminent objectives which the suicidal pilots were carrying out."

Great emphasis is laid on the word "unknown" and what is said is that this passage illustrates that the Spanish authorities do not know the identity of the man they are seeking and it is therefore an abuse of process to extradite the appellant.

113. The author of this statement (which is in any event a translation) is not the judicial authority who issued the arrest warrant. Further, the statement was directed to the appeal of Yarkas and not the case against Hilali. Mr Hardy submits that it is important to keep in mind that the critical document is the EAW and the vital question is whether the apparent inconsistency raised by this document at p.1270 undermines what is asserted in the warrant, to the extent that compliance with the request in the warrant would be an abuse of process.
114. This court cannot usurp the trial court's function. It is possible that there may be issues of identity at the trial, but this court is nowhere near being in the position to say that Spain is seeking to extradite the appellant despite knowing full well they cannot establish it was he who was making the phone calls is Yarkas. Mr Hardy also refers to the appellant's own witness statement from which it is plain that he was wanted in Spain because the authorities thought he was the person known or sometimes known as SHAKUR.

Conclusion.

115. None of the seven grounds advanced for allowing the appeal is made out. None of the reasons put forward by the Mr Jones either individually or collectively amounts to a ground reason why the appellant should not be extradited. Accordingly the appeal is dismissed.