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 WC2
		16th November 2006

1. LORD JUSTICE SCOTT BAKER: Yes Mr Jones.
2. MR JONES: Your Lordship knows representation, it is as before. My Lords, this is an application for permission to appeal to the House of Lords under section 32 of the Extradition Act 2003. It is necessary, in order for the question of permission to be considered, that questions of law of general public importance are involved in the decision.
3. LORD JUSTICE SCOTT BAKER: Yes.
4. MR JONES: We have proposed, I should say, in our note of 28th June four questions of law of public importance which we say arise out of this decision.
5. LORD JUSTICE SCOTT BAKER: Yes.
6. MR JONES: Now my Lords, there is a complication in this case which your Lordships will obviously appreciate, and that is that there has been fresh material from Spain which is relevant to the subject matter of question 3, which is:

"Is it an abuse of process of the court to seek the surrender of a person ... under the terms of a European arrest warrant, where the authority responsible for the prosecution of the person, and the applicable appellate court, regards the conduct set out in the European Arrest Warrant as insufficient to justify conviction for the principal offences in it?"

Your Lordship will appreciate that that was a question that rose in the context of a court judgment in Spain, and that since then there has been a judgment of the Supreme Court in which the principal alleged co -conspirator, Mr Yarkas, has been acquitted even of conspiracy to murder.

7. Now I have been able to discuss the procedural problems which this presents with my learned friend Mr Hardy. We have recently submitted a note headed "Further submissions in support of an application for permission to appeal". I have also recently seen my learned friend's reply dated 18th October 2006 as to the effect of the Spanish Supreme Court judgment, where there is disagreements between us as to what it amounts to.
8. My Lord, in those circumstances my learned friend and I agree that the subject matter of question 3 is really now an Article 5 point about whether the appellant's current detention is for arbitrary reasons. The argument that would be advanced in favour is that the developments in the Spanish courts since the European arrest warrant was issued in June 2004 have now rendered the application to return for conduct specified in that arrest warrant completely inappropriate. We have suggested in the past that the appropriate remedy might be a fresh European arrest warrant. But that question only goes to question 3 and my learned friend suggests, as indeed we have ourselves contemplated, that the appropriate remedy might be an application for habeas corpus, because we do appreciate that it is very difficult for the court in this case to look at evidence received after its judgment, and highly questionable whether it should, and indeed highly questionable whether the House of Lords should.
9. My Lord, in those circumstances therefore we respectfully submit that questions 1, 2 and 4 which we propose on the question of identity are matters of law of general public importance arising from your Lordships' judgment. We invite the court to certify those and question 3, which of course was framed in the context of the earlier judgment of the Spanish court before the Supreme Court. We accept that your Lordships would not consider granting permission in the normal way, or your Lordships would refuse permission and suggest that we should apply to the House of Lords if those questions are certified. But it is right that we tell the court that if your Lordships do not certify, as my learned friend knows, we would instead apply for habeas corpus, relying on the whole material suggesting that detention was now arbitrary within the meaning of Article 5(4).
10. LORD JUSTICE SCOTT BAKER: You might be met with the response of abuse of process, might you not?
11. MR JONES: My Lord, I do not think we are going to be, my Lord, no, because this has arisen, this material arises since the judgment and since the European arrest warrants. I know that is my learned friend's position. Now of course I am not suggesting he is going to agree to the application.
12. LORD JUSTICE SCOTT BAKER: No, no.
13. MR JONES: But it is his position that the arguments about the effect of recent developments, if they have force, would have force under Article 5(4), rather than in the context of an appeal.
14. LORD JUSTICE SCOTT BAKER: The position this morning Mr Jones is that it has been extremely difficult to reconstitute this court at all. My Lord has been sitting in Carlisle and happens to be in London for a meeting today, so we have got a short interval of time and it is helpful to hear that there may be a quicker way to dispose of this case than at one stage appeared apparent.
15. MR JONES: My Lord, yes. My Lord, one of our great concerns has been in this that we might find that your Lordships had rejected the argument that the questions of law were of public importance and Mr Hilali might be out of the country within hours before we had a opportunity to lodge a habeas corpus application. My Lord, we know now that that is not going to happen.
16. LORD JUSTICE SCOTT BAKER: Leaving aside the merits of the issue as to whether what has happened in Spain has any and if so determinative relevance so far as your client is concerned, there is, it does seem to me, the question of what happens if the landscape completely changes between the hearing and the removal from the country.
17. MR JONES: My Lord, yes. Originally of course this was dealt with by the Secretary of State's discretion.
18. LORD JUSTICE SCOTT BAKER: Yes.
19. MR JONES: The House of Lords' authority which said that the Secretary of State not only had to consider it once, but if there was a judicial review he had to keep considering it until the moment of surrender.
20. LORD JUSTICE SCOTT BAKER: Yes.
21. MR JONES: The point is that has now gone, no doubt an unintended consequence of the 2003 Act, but the only remedy for events which take place after an appeal has been determined can be an application for habeas corpus under Article 5.
22. LORD JUSTICE SCOTT BAKER: You have also got an application for bail which is somewhat unusual in these circumstances, but do I take it that that would only arise in the event that we certified anything?
23. MR JONES: Yes, it would. In these proceedings it would, yes.
24. LORD JUSTICE SCOTT BAKER: Yes.
25. MR JONES: My Lord - -
26. LORD JUSTICE SCOTT BAKER: You have put everything on paper, I think we know where you are.
27. MR JONES: That is right. (The Bench conferred)
28. LORD JUSTICE SCOTT BAKER: Yes, Mr Hardy.
29. MR HARDY: We put everything on paper as well. Your Lordships I hope will have had a opportunity to reconsider our initial submissions of 20th June - -
30. LORD JUSTICE SCOTT BAKER: Yes.
31. MR HARDY: - - in which we set out why it is we say that no question of law of general public importance arises on this case. Therefore our primary position is that your Lordships should decline to certify. That in turn disposes of the issue of leave to appeal.
32. LORD JUSTICE SCOTT BAKER: Yes.
33. MR HARDY: As to habeas corpus, may I, in order that there is no controversy at any future stage, express our position very briefly on it.
34. LORD JUSTICE SCOTT BAKER: Yes.
35. MR HARDY: We accept that my learned friend is entitled to apply for habeas corpus on an issue which is effectively free -standing and falls outside the strict procedural rubric of the 2003 Act. We accept he is not shut out by section 34, the so -called ouster clause, and I am mindful of the fact that my Lord, Lord Justice Scott Baker, in any event presiding in this court in Nikonovs where, as it were, the court moved to a position which, shall we say, established the proposition that there may be issues which fall to be decided by way of habeas corpus outside the rubric of the Act.
36. LORD JUSTICE SCOTT BAKER: Yes.
37. MR HARDY: In the event that your Lordships dismiss the application for certification and leave, if my learned friend is able to simply put in a notice of motion, which as your Lordships knows is a very elementary document, our position will be that that engages the jurisdiction of the court. And whilst we represent only the issuing judicial authority and not therefore the executing judicial authority which has the duty of removal, we would be surprised, on behalf of the issuing judicial authority, if any efforts were made to remove Mr Hilali whilst he was seeking the protection of the court.
38. LORD JUSTICE SCOTT BAKER: Yes.
39. MR HARDY: So once that notice of notion is lodged, clearly the jurisdiction of the court is engaged on the habeas corpus issue.
40. LORD JUSTICE SCOTT BAKER: Yes.
41. MR HARDY: My learned friend is quite right, we will vigorously contest the habeas corpus application.
42. LORD JUSTICE SCOTT BAKER: That is why I mention the issue of whether it was an abuse of process in the circumstances, but that may be a different question.
43. MR HARDY: That may be a different question, and we, with respect, do not propose to respond even in outline on that issue at this juncture.
44. For the reasons that we have set out in our documents, we say that no question of law of general public importance on a proper analysis arises in this case, and my learned friend has the comfort of knowing that he has at least an avenue of remedy elsewhere.
45. LORD JUSTICE SCOTT BAKER: Thank you.
46. MR HARDY: As to bail, my Lords, we respectfully submit if your Lordships decline to certify and therefore decline to consider the issue of leave, the jurisdiction of the court under the Act falls away.
47. MR JUSTICE OPENSHAW: That would be under the proceedings.
48. MR HARDY: Indeed so. I know that my learned friend accepts that proposition.
49. LORD JUSTICE SCOTT BAKER: Yes, thank you.
50. Mr Jones do you want to add anything?
51. MR JONES: No.
52. LORD JUSTICE SCOTT BAKER: Thank you.
J U D G M E N T
53. LORD JUSTICE SCOTT BAKER: This case is listed today for consideration of certification of a point of law of general public importance and leave to appeal. There is also, in the event that that application is successful, an application for bail by Mr Hilali.
54. On 26th May 2006 we handed down a written judgment dismissing Mr Hilali's appeal against the order of District Judge Workman ordering his extradition to Spain. We do not repeat the facts of the case or the details of the judgment, all of which are set out in [2006] 4 All ER 435.
55. Subsequently, Mr Alun Jones QC for Mr Hilali lodged four draft questions for certification. We were invited not to rule on them pending further information about the appeal of Yarkas to the Spanish Supreme Court, and in particular a transcript of that court's judgment translated into English. That has now been obtained, and Mr Jones submits that the whole landscape has changed. Any case against Mr Hilali has collapsed like a pack of cards because his alleged co -conspirator has been acquitted of conspiracy by the Spanish Supreme Court.
56. Mr Hardy, for the respondent, denies that this is so. He submits that what has happened to Yarkas is of no consequence to the extradition proceedings against Mr Hilali. It is not, he submits, for this court to embark on an examination of the state of the evidence against Mr Hilali in the Spanish proceedings, as this court has already made clear in its judgment.
57. The issue of certification does not require, nor would it be appropriate, to examine any of this new material. It has been pointed out by both sides that under the new extradition legislation it is certainly theoretically possible for the landscape to change after the court's final judgment, but before the individual is actually removed from the country. It is accepted by both sides that the remedy, were that situation to arise, would be an application for habeas corpus, when the court could consider the changed landscape.
58. Mr Jones submits that this new material is relevant now in relation to Article 5(4) of the European Convention on Human Rights. He accepts that the course that he must take, if he is to take any course, is to serve notice of motion for habeas corpus. It has been pointed out by Mr Hardy that any such application would be most strenuously resisted on the part of the respondent.
59. This court, it seems to me, has reached the end of the road with the judgment handed down on 26th May, and all that remains to be done is to consider the four proposed questions and to decide whether each or any of them raises a point of law of general public importance. I would observe that each of the questions is phrased in a prolix and somewhat tendentious form. The first question is in these terms:

"Is it lawful to surrender a person under Part 1 of the Extradition Act 2003 to be tried for the offences of murder and membership of a terrorist organisation, when the conduct constituting those offences constitutes different extradition offences in the United Kingdom for which the person will not be tried after surrender?"

60. Mr Hardy submits that the appellant will not be tried for conduct constituting an offence of murder, but for conduct alleged against him in the European arrest warrant. Thus the issue of lawfulness of surrender does not arise and, he submits, nor does the question reflect any point of law of public importance. He submits, and I agree, that this question is misconceived.
61. The second question is in these terms:

"Is a United Kingdom court entitled to assume from the fact that a territory which is party to the European arrest warrant scheme has been designated as a territory to which Part 1 of the Extradition Act 2003 applies, that it has speciality arrangements within the meaning of section 17 of that Act?"

62. Mr Hardy submits that again no point of law of general public importance is capable of arising from the proposition inherent in the proposed question, and that the question is misconceived. I agree.
63. Question 3 is in these terms:

"Is it an abuse of process of the court to seek the surrender of a person from the United Kingdom under the terms of a European arrest warrant, where the authority responsible for the prosecution of the person, and the applicable appellate court, regards the conduct set out in the European Arrest Warrant as insufficient to justify conviction for the principal offences alleged in it?"

64. That is the question on which the new information from Spain touches. Mr Hardy submits that what Mr Jones is seeking to do is to get this court to evaluate the strength of the evidence against Mr Hilali in the Spanish proceedings. In my judgment, this question too does not raise an issue of general public importance and is misconceived. In so far as there is new material, it is inappropriate for this court to go into that following the judgment.
65. Question 4 is in these terms:

"Is a United Kingdom court entitled to conclude for the purposes of section 7(2) of the Extradition Act 2003 that the person brought before it is the person referred to on the European arrest warrant, where the only evidence is an assertion by the person that his name is the same as that on the warrant, and that he has a similar, but not identical, date of birth?"

66. The issue here was simply whether the person named in the European arrest warrant was the person who appeared before the court. This was, submits Mr Hardy, nothing more than an evidential exercise applying the standard of proof explicitly provided for in the 2003 Act. Again, I accept his submission that there is no point of law here of general public importance.
67. In these circumstances, I would decline to certify any of the four questions - it is of course is a matter for my Lord whether he takes the same view - and accordingly the question of leave to appeal would not arise.
68. MR JUSTICE OPENSHAW: I do take the same view for the same reasons.
69. LORD JUSTICE SCOTT BAKER: I have not expressly dealt with bail, but of course there is no jurisdiction, and that is accepted.
70. MR HARDY: Precisely so.
71. MR JONES: My Lord, I have heard what my learned friend says, we shall of course lodge notice of motion.
72. LORD JUSTICE SCOTT BAKER: Yes.
73. MR JONES: We will try to do so tomorrow, if not tomorrow it will be done by Monday. It is our intention to get the matter lodged as soon as possible, by the end of next week, unless it proves impossible because of the problems of taking instructions from Mr Hilali in Whitemoor Prison.
74. MR HARDY: Again, so that it is on the record and therefore not an issue of controversy in the future, may I make it clear we regard the notice of motion as engaging the court's jurisdiction.
75. LORD JUSTICE SCOTT BAKER: Yes.
76. MR HARDY: The timetable thereafter is effectively in my learned friend's hands.
77. LORD JUSTICE SCOTT BAKER: Well you would obviously like the Administrative Court to deal with the matter as expeditiously as possible.
78. MR HARDY: In view of the arguments that my learned friend proposes to put forward, it seems to us that it should be dealt with as expeditiously as it possibly can be. But we accept that there are issues over which instructions need to be taken, probably on both sides, and that may take a little time.
79. LORD JUSTICE SCOTT BAKER: Thank you. We are very grateful to you both for coming at this early hour.
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