QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
MR JUSTICE OPENSHAW
| FARID HILALI
|- and -
|THE CENTRAL COURT OF CRIMINAL PROCEEDINGS NUMBER 5 OF THE NATIONAL COURT, MADRID
THE SENIOR DISTRICT JUDGE, BOW STREET MAGISTRATES' COURT
John Hardy and Clair Dobbin (instructed by Crown Prosecution Service) for the First Respondent
Hearing dates: 26/27 April 2006
Crown Copyright ©
Lord Justice Scott Baker:
"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."
(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 1st respondent but, as will become apparent, it was argued more narrowly on the appeal.
Proof of Identity
"(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."
"On Monday 28th 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.
Last name: Hilali
First name: Farid
Alias (if any): Shukri and Shakur
Was the appellant "accused" of an offence?
"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  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  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  EWHC 971 (Admin) to which we shall refer in more detail in a moment.
"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."
"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."
"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  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."
"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.
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.
"The conversations (the appellant) made on the 6th and 27th 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 11th 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."
The appellant is not accused of an "extradition offence".
"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."
"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)."
"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.
"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 11th 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). "
"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.."
"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.
Extraneous considerations and human rights.
"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."
"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."
"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."
"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."
Incommunicado detention and torture
Length of pre-trial detention
Conditions of pre-trial detention
Secretio de Sumario
Expulsion or deportation to Morocco
"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."
Abuse of process.
"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.