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
		4th May 2006

Lord Justice Latham :

1. This is an appeal pursuant to section 26 of the Extradition Act 2003 (the 2003 Act) against the order made by District Judge Evans on the 17^th November 2005 that the appellant be extradited to Spain to await his trial. The District Judge made the order pursuant to the issue of a European Arrest Warrant out of the Central Court for Committal Proceedings No 6, High Court of Justice, Madrid (Spain) on the 17^th March 2005 by Judge Juan del Olmo Galvez for the arrest of the appellant. The validity of this warrant is governed by Part 1 of the Extradition Act 2003 which was enacted in discharge of the United Kingdom's duty to transpose into national law the obligations imposed on it by the European Council Framework Decision of 13^th June 2002 which set out the requirements of a European Arrest Warrant and the surrender procedures to be adopted by member states. The appellant challenged the validity of the warrant on three grounds, first that it was not clear that he was accused of any crime in Spain as opposed to being wanted for questioning, second that the warrant did not properly set out the provisions of Spanish Law identifying the crime in question, and third that the warrant did not identify an extradition offence within the meaning of section 64 of the Act. He further submitted that extradition would not be compatible with his Convention rights within the meaning of the Human Rights Act 1998 and that he was at risk of refoulement to his home country, Syria, again in breach of his Convention rights; pursuant to section 21(2) of the Act, the District Judge was bound to order his discharge if extradition was not in conformity with those rights.
2. The decision on which the arrest warrant was based was an order made by Judge Galvez on the same day that the appellant should be subject to unconditional temporary imprisonment for the alleged offence of collaboration with an Islamist terrorist organisation. The description of the offence was set out in the following terms, in the English translation of the arrest warrant:

"The investigations, in relation to Moutaz Almallah Dabas (already investigated in Spain because its supposed relations with a presumed cell of Al Qaeda in Spain) have determined that until year 2004 included, he allegedly would carry out the following activities:

He enabled the provision of care for radical Islamists in Spain, in order to transfer them later abroad, lodging them, among other places in a house placed in Calle Virgen del Coro No 11 in Madrid, being the tenant.

There were carried out meetings of indoctrinating and setting of Jihadist Platform, being present, beside himself Moutaz Al Mallah – who had a relevant an manager position – among others Sarhane Ben Abdelmajid Fakhet – committed suicide in Leganes on April 3 2004 – Mustafa Maymouni – convicted in Morocco because his connection with the attacks in Casablanca – and other alleged involved in the attacks of March 11^th 2004 as Basel Ghalyoun.

Moutaz Alamallah Dabas kept in this house cellar texts referred to OSAMA BIN LADAN to be distributed; and he stated his affinity to the Jihadist thesis of OSAMA BIN LADAN and ABU QUTADA.

He used strict safety measures in his phone calls (since he supposed that the police could control them) – telephone boxes and booths, he changed his cell telephone cards periodically, he used deviation systems of phone calls.

It does not stated that he had made any work activity to justify his incomes, even living in residences of accused people of Islamist terrorist activity (nevertheless in the beginning of 2001, he denounced the robbery of a 1,400,000 pesetas that he had in the address where he lived – supposedly proceedings from the money collection to which he was dedicated, to favour the activities of the radical Jihadists Islamists)

The telephone used by the Moutaz Almallah were found in diaries/telephone memories of other alleged involved in the March 11 2004 attacks, with whom he was already related in the year 2002 (so that Sarhane Ben Abdelmajid Fakhet, Basel Ghalyoun, Fouad el Morabit Amghar, Rabei Osman El Sayed Ahmed). Basel Ghalyoun, at the moment of his arrest in March 2004 used a telephone card whose holder was Moutaz Almallah Dabas; Rabi Osman El Sayed when he was arrested in Italy in Juin of 2004, he had in his diary and in his phone card the Moutaz Almallah Dabas phone number.

Moutaz Almallah Dabas left Spain, with destination the United Kingdom of Great Britain in October 2002, but he came back to Spain repeated times along year 2003; in Spain he regularly met with Sarhane Ben Abdelmajid Fakhet (one of the suicided people in Leganes on April 3 2004), celebrating meetings in the house of Calle Virgen del Cor (where other alleged involved in March 11 2004, and where other of the suicided people in Leganes after the March 11^th 2004 attacks to be sheltered and to spend the night from March 11 to 12 2004.

The terrorist attacks occurred on March 11^th 2004 in Madrid (explosions occurred in four trains), committed by presumed Islamist terrorists, produced 191 deaths, more than a thousand injured and a huge material damages.

On April 3 2004 in Calle Carmen Martin Galte No 40 in Leganes (Madrid) committed suicide seven people alleged Islamist terrorists who participating in the March 11 2004, among them Sarhane BEN ABDELMAJID FAKHET.

Nature and legal classification of the offence(s) and the applicable statuary provision/code; Penal type would be collaboration with Islamist terrorist organisation foreseen in Article 576 of Penal Code. "

3. Thereafter the proforma part of the warrant set out in a list the offences (framework offences) identified in the European Council Framework Decision as being offences in respect of which the traditional dual criminality principles are not to apply, that is the principles under which an offence, to be an extraditable offence, had to be an offence in both the requesting state and the state asked to execute any such request. This part of the warrant required the Spanish Authorities to identify by means of a tick which, if any, of the framework offences was applicable. The maker of the warrant ticked "terrorism".
4. On receipt of the warrant, a certificate pursuant to section 2(7) of the 2003 Act was issued by the National Criminal Intelligence Service, the relevant United Kingdom authority, on the 18^th March 2005 to the effect that the warrant was issued by a judicial authority which has the function of issuing Arrest Warrants in a Category 1 territory, that is a territory designated as such by the Secretary of State pursuant to section 1 of the 2003 Act; [in effect countries in the European Union who have accepted and put into effect the provisions of the Framework Decision]. Pursuant to that Certificate, the warrant was executed; and the appellant was brought before the Bow Street Magistrates' Court where the respondent asserted that the appellant was accused of committing a framework offence within the meaning of section 64(2) of the Act, alternatively an extradition offence within the meaning of section 64(3) of the Act and should accordingly be extradited to Spain. For the purposes of determining whether the offence was capable of being the latter, the opening note on behalf of the respondent, provided to the court on the 1^st June 2005, identified the offence in domestic law as an offence of conspiracy to support terrorism contrary to section 12 of the Terrorism Act 2000, in the following terms:

"MOUTAZ ALMALLAH DABAS, between a date unknown before the year 2000 and the 12^th day of March 2004, conspired together and with Sarhane Ben Abdulmajid Fakhet, Basel Ghalyoun and other persons to arrange and/or manage and/or assist in the arrangement or management of meetings which they knew supported and furthered the activities of a proscribed organisation or proscribed organisations."

5. When the matter ultimately came before the court for hearing, there was, in addition to the material to which I have already referred, an original and a translation of the reasoned decision and order made by Judge Galvez ordering unconditional preventive custody of the appellant and a mandatory national and international arrest warrant including the European Arrest Warrant. Further, there was a document prepared by Judge Galvez and its translation, dealing essentially with the allegations that had then been made on behalf of the appellant to the effect that to order extradition would not be compatible with his Convention rights.
6. The District Judge concluded that the warrant and supporting materials made it plain that the appellant was accused of a crime in Spain and not merely wanted for questioning and that the warrant adequately identified the provisions of law constituting the offence. He further concluded that the material established that the warrant related to an extradition offence, both by reason of it being a framework offence and so meeting the requirements of section 64(2), and an extraditable offence, in that it met the dual criminality test formulated in section 64(3) of the Act. Having considered the material provided both by the appellant and by the Spanish judicial authorities, he concluded that extradition would not be incompatible with the appellant's Convention rights, and that there being no other bar to extradition argued on behalf of the appellant, the appellant should be extradited .
7. The appellant appeals on five grounds. These essentially replicate the arguments before the District Judge which I have set out in paragraph 1 above. The first ground is that the warrant did not assert that the appellant was an accused person nor was the position clear from the documents before the judge. Second, the warrant did not contain particulars of the provisions of Spanish law alleged to constitute an offence. Third, the warrant did not comply with the provisions of section 64(2) of the Act. Fourth, the conduct did not satisfy the dual criminality requirements of section 64(3) of the Act. And fifthly, the appellant's extradition was not compatible with Articles 3, 5, 6, and/or 8 of the Convention.
8. Before us Mr Mark Summers did not seek on behalf of the appellant to pursue the second ground. He conceded that we are bound by the previous decision of this court, differently constituted in Boudhiba –v- Central Examining Court No 5 of the National Court of Justice in Madrid, Spain [2006] EWHC 167 (Admin) in which judgment was given on the 15^th February 2006. He does not, however, abandon it, and he reserves his right to raise it at a later stage if these proceedings go further. He further accepts that this court in the same case concluded that a number of the alleged breaches of the Convention which he originally intended to pursue did not prevent extradition under section 21 of the 2003 Act; and whilst not abandoning them, he did not pursue them before us for the same reason. He nonetheless did pursue the argument that two aspects of the Spanish procedure in relation to terrorist charges breached his rights, in particular under Articles 5 and 6 of the Convention, namely the probability that he would be held incommunicado for a period of up to eight days when first admitted to custody, and, pursuant to a procedure known as secreto de sumario, information regarding the charges and material to support the charges could be withheld from him until a late stage in the prosecution process. Mr Summers further pursued the argument that there is a risk of refoulement to Syria contrary to Article 31 of the Convention in the absence of any assurance to the contrary, as to which there has been none in the present case.

The First Ground.

9. Section 2(2)(a) of the 2003 Act requires that a warrant must contain a statement setting out the matters in sub-section (3) which provides:

"The statement is one that –

(a) the person in respect of whom the Part 1 warrant is issued is accused in the Category 1 Territory of the commission of an offence specified in the warrant, and,

(b) the Part 1 warrant is issued with a view to his arrest and extradition to the category 1 territory for the purpose of being prosecuted for the offence."

10. Mr Summers argues that the warrant in the present case does not make it clear that the appellant is accused of an offence and that he is wanted for the purpose of prosecution. He accepts that the preamble to the warrant in proforma form states the following:

"This Warrant has been issued by a competent judicial authority. I 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."

He submits however that this is in itself insufficient to make it clear that the two requirements of sub-section (3) have been met. In the last paragraph of the citation from the warrant which I have set out in paragraph 2 above , the nature of the offence is described in what might be called the conditional tense, that is "Penal Type would be (my emphasis) collaboration with a terrorist organisation foreseen in Article 576 of Penal Code" Further, the opening paragraph of that citation, he submits, is more consistent with the purpose being the continuation of investigations rather than the process of prosecution. He submits that the appellant is entitled to rely on the reasoned order of Judge Galvez in addition to the warrant itself, in order to determine whether the matter is clear. By section 202 of the 2003 Act, any document issued in a Category 1 territory may be received in evidence in proceedings under the Act if it is duly authenticated. There is no doubt that the reasoned order was duly authenticated. And in the narrative part of that document, the following passage appears:

"Because of all the above and in order to clarify the link which seems to be proven between the AL MALLAH brothers with all the cast that has been identified surrounding the 11-M attack, both the principle perpetrators of the attacks as with the necessary probable collaborators in those acts, as well as the almost certain link of both brothers in the whole process of attracting, conversion, recruiting, and preparation of the Madrid attacks, IT IS REQUESTED since it is in the maximum interest for the definite clarification of the attacks of 11 March 2004 and as a precaution against other similar attacks, that an arrest warrant be issued for the brothers MOHANNAD AND MOUTAZ AL MALLAH DABAS in the case of Moutaz this involves an International arrest warrant for extradition purposes since he is currently residing in the United Kingdom."

11. In Re Ismail [1999] 1AC 320, the House of Lords considered the meaning of the word "accused" in section 1(1) of the Extradition Act 1989 the predecessor of the 2003 Act. At page 326 F Lord Steyn said as follows:

"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 the 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 text permits it in order to facilitate extradition…."

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. The nearest that the courts have come to considering the application of this provision is in relation to the parallel provision relating to warrants for the arrest and extradition of persons unlawfully at large after sentence which, by section 2(5), require the words "unlawfully at large" to appear in the warrant even though these words do not appear in the Framework decision or the proforma warrant in its Annex. Crane J had to consider this question in relation to a Category 2 Territory in R (on the application of Bleta) –v- Secretary of State for the Home Department [2005] 1 All ER 810. His ultimate conclusion was that where the words "unlawfully at large" were not expressly stated in the warrant, it was only in a clear case that the Secretary of State could conclude that the offender was not only at large but unlawfully at large.
13. In Office of the King's Prosecutor, Brussels –v- Cando Armas [2005] 3WLR 1079 at page 1098, Lord Hope, having expressed reservations as to the matter in the absence of full argument, stated at para 48:

"It is sufficient for present purposes to say that it is open to the court to draw inferences from the material available to it to determine whether the requirements of the statute have been satisfied. But those against whom the system of extradition is invoked are entitled to protection against its use in circumstances which have not been provided for by Parliament. So I think that Crane J was right to indicate that, if there is a gap in the information it ought not to be filled by mere guesswork."

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.
15. If I were in doubt, I consider that the Court would be entitled to look at the reasoned order of Judge Galvez; but we should look at it in the round. Apart from the passage to which I have referred and upon which Mr Summers relies, there is nothing to suggest that the material there set out is other than material sufficient to establish a clear case against the appellant. The critical passage, in my judgment, comes in the judge's "Judicial Reasoning" at the conclusion of the order. He there identifies the legal requirement for ordering preventive custody. First he had to be satisfied that there was evidence of the commission of the alleged offence, and

"that there are sufficient reasons in the case to believe that the person against whom the imprisonment order is to be issued is in fact guilty of the crime."

Applying that to the facts of the case he stated:

"there appear in the case sufficient reasons to believe that the person against whom the national and international arrest warrant is the perpetrator of the crime."

16. I have no doubt that in those circumstances the appellant is a person properly to be described as "accused" in Spain, and that the warrant was issued for the purposes of his being prosecuted. I accordingly reject the first ground of appeal.
17. As I have said, the appellant does not pursue before us the second ground of appeal.

The Third Ground

18. By section 10(2) of the Act the court must decide whether the offence specified in the warrant is an extradition offence. As I have already indicated, the issuing authority asserts that the offence identified in the warrant is an extradition offence by virtue of both section 64(2) and (3) of the 2003 Act. This ground relates to the claim that it is an extradition offence meeting the requirements of section 64(2) which provides:

"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 three years or a greater punishment."

19. Mr Summers on behalf of the appellant submits that the warrant fails in two respects. First, he submits that the material provided shows that some part of the "conduct" occurred in the United Kingdom, and secondly that the certificate required by sub-sections (2)(b) and (2)(c) was not provided. As far as the first submission is concerned, he points out that the warrant itself refers to the fact that the appellant left Spain for the United Kingdom in October 2002. He submits that it must be inferred that part of the conspiracy alleged included activities or contacts or other conduct in the United Kingdom. He further refers to the fact that in the reasoned order Judge Galvez refers on a number of occasions to the appellant leaving for the United Kingdom, and in particular refers to connections of those within the conspiracy with Abu Qutada whom the appellant's brother would visit in London in circumstances which suggested that this activity was part of the overall conspiracy or activity supporting the charge under Spanish law. Further on an occasion in May 2003 it was said that the appellant travelled to Holland with two young men whom he had been "harbouring" in Madrid, and then went to London. In these circumstances, it is submitted, the issuing authority cannot assert that "no part" of the conduct occurred in the United Kingdom.
20. The "conduct" referred to in section 64 is the "conduct" which is referred to in section 2(4) of the 2003 Act setting out what information has to be provided in a warrant if it is to comply with the Act. The information required by section 2(4)(c) is:

"particulars of the circumstances in which the person is alleged to have committed the offence, including the conduct alleged to constitute the offence, the time and place at which he is alleged to have committed the offence and any provision of the law of the Category 1 territory under which the conduct is alleged to constitute an offence…"

21. Although it is true that there is reference in the warrant to the appellant having gone to the United Kingdom, the warrant does not identify any conduct in the United Kingdom which is said to support the case against him. Equally, although there is, once again, mention in the reasoned order of Judge Galvez of the appellant having come to the United Kingdom, there is once again no allegation that he did anything in the United Kingdom which could constitute part of the conduct amounting to the offence of collaboration with an Islamist terrorist organisation. The fact that his brother may have come to the United Kingdom in circumstances which connected him with Abu Qutada was not identified as relevant conduct on the part of the appellant. In those circumstances I cannot see any justification for concluding that the warrant should be read as including any conduct in the United Kingdom as forming part of the conduct upon which the warrant was based.
22. The requirement for a certificate in section 64(2) of the 2003 Act is curious. It flows from the fact that Parliament did not follow, in setting out the various requirements for an arrest warrant, the procedure envisaged by the Framework decision. The Framework decision having defined an arrest warrant and the offences (the Framework offences) in Articles 1 and 2 proceeds in Article 8 to deal with the content and form of the European Arrest Warrant. It identifies the information which it is to contain, which includes the requirement to set out the nature and legal classification of the offence with particular regard to identifying to which of the Framework offences the warrant relates, and the prescribed scale of penalties for the offence. This information is, pursuant to the Article, to be set out in accordance with the form contained in the Annex to the Framework decision. The warrant in the present case followed exactly the requirements of Article 8 and the Annex. The submission is that although the warrant complied in precise terms with the requirements of Article 8 of and the Annex to the decision, nevertheless it did not comply with the Act because the 2003 Act requires a separate document, that is a certificate, in accordance with the words of section 64(2)(b) and (c).
23. Support for this strict construction of the provisions of section 64 can be found in a dictum of Laws LJ in Gheorghe Palar –v- Court of First Instance Brussels [2005] EWHC 915(Admin). In that case the appeal was allowed for reasons unconnected with this point; but during the argument Mr Hardy had submitted that the warrant itself was to be treated as a certificate under section 64. Laws LJ said in paragraph 11:

"Even if the warrant could in some way be treated as a distinct certificate under section 64, (which for my part I doubt), the proposition cannot assist Mr Hardy if in truth there is no conduct specified that is capable of amounting to the extradition offence relied on."

24. Mr Summers relies upon the fact that, for whatever reason, Parliament appears to have drawn a distinction between the warrant and a certificate. And where a warrant can be said to include a certificate, the matter is dealt with expressly, as in sections 142 and 145 of the 2003 Act which deal with extradition to the United Kingdom where a warrant for such extradition is to include a "certificate" certifying certain matters, such as the fact that the offence falls within the Framework list.
25. For my part I would be reluctant to conclude that a warrant which met the requirements of the Framework decision and was in the form intended to be a common form for all jurisdictions in the European Union was insufficient for the purposes of the 2003 Act. However there is no doubt that the requirement in the Act that a warrant where a person is wanted after sentence has to assert that the person is "unlawfully at large," a requirement not to be found in the decision or the Annex; see Crane J in Bleta (supra), Tuckey LJ in Pinto –v- Governor of HM Prison Brixton and the First Section of the First Criminal Court of Lisbon [2004] EWHC 2986 (Admin), and the dicta of Lord Hope I have already cited in Cando Armas. I can, however, see a purpose to be served in requiring the addition of that requirement, as was recognised in each of the decisions to which I have referred. I can see no justification for the requirement of the formality of a separate document to meet the requirement of a "certificate" if the material information is contained in the warrant.
26. The way in which Parliament has structured the definition of the warrant in Part 1 of the 2003 Act means that a warrant will be a valid "warrant" without the material required by section 64(2)(b) and (c). It may have been that the purpose was to enable the form of the warrant to be an effective warrant for the purposes of both section 64(2) and (3). Whatever the reason, I can see no justification for concluding that a purposive construction of the requirements of section 64(2) should preclude the relevant part of the warrant in fact issued amounting to a certificate for the purposes of section 64(2)(b) and (c) if indeed it contains that relevant information. To require a separate document adds nothing to the protection of the person in respect of whom the warrant has been issued, unlike the addition of the words "unlawfully at large". In these circumstances I see no reason why, provided the relevant material is indeed clearly set out in the warrant, the part of the warrant in which it is set out cannot amount to a certificate. In my view the fact that in Part 3 of the 2003 Act express provision is made for the warrant to include a certificate should not prevent a construction in conformity with the Framework decision. Indeed, it could be said the Part 3 provisions support the proposition that a warrant can contain a certificate therefore it is not a necessary requirement there should be some separate document. Accordingly I consider that the warrant was a valid warrant for the purposes of section 64(2).

The Fourth Ground

27. Although, if I am right in relation to section 64(2), it is strictly not necessary to proceed to section 64(3), it is clearly right that I should do so. It is submitted that the requirements of section 64(3) are not met in this case by reason of the dual criminality requirements in sub-section (3)(b) which require that:

"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"

28. Mr Summers' submissions are that, first, the equivalent domestic offence identified by the respondent as conspiracy in the terms to which I have already referred, identify the nature of the conspiracy as being a conspiracy in relation to and supporting and furthering the activities of a proscribed organisation or proscribed organisations, which is a reference back to section 12 of the Terrorism Act 2000, which only came into force on the 19^th February 2001. The dates of the alleged conspiracy are from some date before 2000 to the 12^th March 2004, and accordingly relate in part to a period when the relevant conduct was not proscribed. Second, he submits that the alleged proscribed organisation is Al Qaeda, whereas the material provided by the Spanish authorities shows that the organisation of which the appellant is said to have been a member was the Moroccan Islamic Combatant Group which was not proscribed as a matter of the United Kingdom law until the 14^th October 2005. Thirdly, Mr Summers submits that without the text of the relevant Spanish law, it is not possible to identify with precision the nature of the offence in Spain in order to compare it with the offence in domestic law to determine whether or not dual criminality has been made out.
29. As to the first and third of those submissions, it is acknowledged by Mr Summers that the arguments were rejected by this court in Boudhiba. He submits, however, that the arguments were rejected without consideration of the fact that the result was contrary to the decisions of the House of Lords in relation to the first argument, in R –v- Metropolitan Stipendiary Magistrate ex parte Pinochet (No 3) [2000] AC 147, and as far as the third, in In re Evans [1994] 1WLR 1002.
30. As far as the first argument is concerned, I consider that it is based on a misunderstanding of what the House of Lords decided in Pinochet. It is undoubtedly true that the House rejected the argument that in order to satisfy the dual criminality test, the relevant time for deciding whether the conduct was proscribed in domestic law was the date of the application for extradition. The legality of the conduct had to be judged as at the time that it took place. This was explained by Lord Browne-Wilkinson at page 193ff, and was accepted by the remainder of their Lordships. The result was that in that case those charges which solely alleged conduct predating the 29^th September 1988 when section 134 of the Criminal Justice Act 1988 came into effect, could not support charges as extradition offences. But it is plain from their Lordships speeches that the conspiracy counts which included conduct after that date were capable of being extradition offences if and in so far as they alleged conduct after the relevant date. This is most clearly stated by Lord Hope at page 239B where, having identified two charges which included conduct after the relevant date, he said:

"Although the allegations of conspiracy to torture in charge 2 and of torture and conspiracy to torture in charge 4 must now be restricted to the period from 29^th September 1988 to 1 January 1990, the fact that these allegations remain available for the remainder of the period is important…. Even when reduced to the period from 29^th September 1988 until he left office as head of state, which the provisions for specialty protection in section 6(4) of the Extradition Act 1989 would ensure was the only period in respect of which Spanish judicial authorities would be entitled to bring charges against him is he were to be extradited, the allegation is that he was a party to the use of torture as a systematic attack on all those who opposed or who might oppose his government."

31. From this passage it seems to me to be clear that when determining whether or not conduct satisfies the dual criminality test, all that is necessary is that part of that conduct should have taken place after the date upon which it became criminal conduct in this country. But whatever may be the position if the conduct complained of straddles a relevant date, as it did in the case of Pinochet, that is not the present case. All the conduct complained of in the material before us postdates February 2001. The fact that, for whatever reason, the "notional" conspiracy count which was drafted to support the claim for extradition covers a period prior to February 2001 is, in my view, irrelevant to the question that we have to determine, which is whether or not the conduct set out in the warrant satisfies the dual criminality test. It does.
32. That is the precise position in the present case. In fact the conduct complained of in all the material before us postdates February 2001. I am unclear why the notional conspiracy count sought to backdate the commencement of the conspiracy to before 2000.
33. As far as the argument based on In re Evans is concerned that again, in my view is misconceived. There may well be cases in which it will be necessary to determine by reference to the relevant provisions of the criminal code of the requesting state whether there was indeed dual criminality. But that is not an essential part of the inquiry in every case. Prima facie, the English court is not concerned with the validity of the assertion by the requesting state that the conduct complained of is criminal. That is a matter for determination by the courts of that state after trial. The question only becomes relevant if the matter is put in issue so as to require the United Kingdom court to determine the true scope of the alleged criminality in relation to the two criminal codes. There was no question raised here which could justify the conclusion that it was a necessary ingredient of the inquiry into dual criminality that the precise provisions of the Spanish legal code should be examined. In my view section 64(3) does not, of itself, require it. In these circumstances, I can see no justification for departing from the judgment in Boudhiba in this respect on the basis that it was decided per incuriam.
34. As to the second submission, that in my view is without merit. Both the warrant and the reasoned grounds provided by Judge Galvez make it plain that whatever names may have been adopted from time to time by particular groups of active Islamic terrorists, they were all essentially supporting the aims, aspirations and activities of Al Qaeda. The material is quite sufficient to justify the conclusion accordingly that the terrorist organisation the appellant was seeking to aid in Spain was a proscribed organisation for the purposes of domestic law, namely Al Qaeda.

The Fifth Ground

35. As I have said, Mr Summers has restricted his submissions in relation to the alleged breaches of the Convention to the Articles 3, 5 and 6 breaches relating to being held incommunicado, the secreto de sumario procedure, and the risk of refoulement. He originally sought to add a further complaint that the evidence established a lack of proper interpreting facilities for those who are not familiar with Spanish; but he conceded that he could not pursue that on the material before us, because there is no evidence to show that the appellant could not speak or understand Spanish adequately.
36. The material upon which the appellant relies in relation to both incommunicado detention and the effect of the secreto sumario procedure, is essentially set out in the Human Rights Watch Report "Setting an Example? Counter Terrorism Measures in Spain", dated January 2005. From this it is clear that in terrorist cases such as the instant case, a suspect can be held incommunicado for up to five days by the police, and an accused can be held in pre-trail detention for a total of eight days, again incommunicado. During the course of that period an accused can be required to give his account to the judge, but will be denied a lawyer of his choice. The only legal representative is one effectively appointed by the court. Judge Galvez, in his response, to which I have already referred, accepts that these measures are available. But he makes it plain that the appellant will be surrendered to the court not the police, so that it is only the period of pre-trial detention which is relevant. That, he says, will not necessarily result in his being held incommunicado; that would be a decision to be made by the judge. He accepts that any lawyer would be a court appointed lawyer. It is clear from all the material we have that this is a response to the fact that there are concerns in relation, in particular, to Basque terrorists, that their lawyers are themselves complicit in terrorist activities.
37. As far as the secreto de sumario procedure is concerned, once again the material relied upon by the appellant is the Human Rights Watch Report. This records a number of complaints by lawyers who have been seeking to defend alleged terrorists involved in the Madrid bombing to the effect that they had little material to enable them to understand the nature of the case against their clients, because the procedure entitles the investigating magistrate to impose an embargo on disclosure of the material which has been collected during the course of the investigation. It is not clear from the report to what extent the embargo precludes them from being able to represent their clients fairly at the trial. It clearly prevents them from being able to give full and proper advice during the pre-trial period. Judge Galvez asserts that in relation to the Madrid bombing enquires most of the files have now been made available. He asserts that there is no question of imposing the embargo in such a way as to preclude an accused from having, ultimately, a fair trial. He points out that in the present case the appellant has been given , in the material made available both to the Magistrates court and to this court, a clear and full account of the case against him so that he cannot complain that there is any risk of ultimate unfairness.
38. There is no doubt that both the detention provisions, and the secreto de sumario procedure are capable of amounting to breaches of Articles 5 and 6 of the Convention. It is also clear that there is a risk that either or both of the measures may be applied to the appellant. But it is accepted by Mr Summers on behalf of the appellant that the test that we have to apply when determining whether or not action of the United Kingdom in extraditing the appellant would amount to a breach of his Convention rights is the test in R (Ullah)-v- Special Adjudicator [2004] 2AC 323, namely that the threatened breach would amount to a flagrant denial or gross violation of the appellant's relevant rights. In my view, the potential breaches about which the appellant complains cannot sensibly be so described.
39. As far as the risk of refoulement is concerned, the position is unclear. There is no undertaking before the court from the Spanish authorities to the effect that the appellant will not be expelled at some stage to a country, such as Syria, in which he may be the subject of persecution. But equally, there is no indication that there is any real risk in his case of his being expelled or, indeed, that he would be at risk of persecution were he to be expelled to Syria or any other appropriate country. In my judgment, the District Judge was entitled to take the view in those circumstances that there was no risk of refoulement which could justify the conclusion that the appellant's extradition would not be compatible with his Convention rights.
40. I would accordingly dismiss the appeal.

Mr Justice Jack :

41. The main problem on this appeal as in Boudhiba is whether a European arrest warrant in the form prescribed in the Annex to the Framework Decision meets the requirements of Part 1 of the 2003 Act.
42. In his opinion in Office of the King's Prosecutor, Brussels v Cando Armas [2005] 3 WLR 1079 Lord Bingham first reviewed what led to Part 1 of the Extradition Act 2003, in particular the European Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between member states. Member states were required to comply with the Decision by 31 December 2003. Lord Bingham then stated in paragraph 8:

"8. Part 1 of the 2003 Act did not effect a simple and straight forward transposition, and it did not on the whole use the language of the framework decision. But its interpretation must be approached on the twin assumptions that Parliament did not intend the provisions of Part 1 to be inconsistent with the Framework Decision and that, while Parliament might properly provide for a greater measure of cooperation by the United Kingdom than the Decision required, it did not intend to provide for less."

Lord Hope stated in paragraphs 23 and 24:

"23. The reason why discussions about the introduction of the European arrest warrant generated so much heat in the United Kingdom was a lack of confidence in the ability of the criminal justice arrangements of other member states to measure up to the standards of our own, and a corresponding lack of trust in the ability of the new system to protect those against whom it might be used. Now that the argument is over and the new system is in force it has to earn that trust by the way it is put into practice. The system has, of course, been designed to protect rights. Trust in its ability to provide that protection will be earned by a careful observance of the procedures that have been laid down.

24. …….. They are entitled to expect the courts to see that the procedures are adhered to according to the requirements laid down in the statute. Unfortunately this is not an easy task, as the wording of Part 1 of the 2003 Act does not in every respect match that of the Framework Decision to which it seeks to give effect in domestic law. But the task has to be approached on the assumption that, where there are differences, these were regarded by Parliament as a necessary protection against an unlawful infringement of the right to liberty."

43. In applying the Act there thus appear to be two principles which may on occasion conflict: one to further the new system where member states are using the European arrest warrant in the Directive form, and one to give effect to the intention of Parliament to provide a greater protection in some circumstances to those subject to extradition procedures than the Directive and the use of the European arrest warrant may provide. It might have been anticipated that when the Extradition Bill was introduced in Parliament the intention as to the acceptability of the European arrest warrant in our courts would have been stated. However, we are informed by both counsel that Hansard provides no assistance.

Ground 1

44. Section 2(2) taken with section 2(3) requires a Part 1 warrant to contain a statement that (a) the person in respect of whom it is issued is accused in the country in question of the offence specified in the warrant, and (b) that the warrant is issued with a view to his arrest and extradition for the purpose of being prosecuted for the offence. It might be thought that if a person is sought to be extradited for the purpose of prosecution for an offence, he is in any ordinary sense accused of the offence. But the section treats the two separately.
45. Article 8 of the Framework Decision sets out what a European arrest warrant is to contain. It contains no provision in the terms of section 2(2) and 2(3). It does, of course, prescribe the form of the warrant as that in the Annex, which may have the same affect. The opening of the warrant requests that the person 'be arrested and surrendered for the purposes of conducting a criminal prosecution or executing a custodial sentence or detention order'. It will be clear from the rest of the warrant which it is. In my view this satisfies the requirement that there be a statement that the warrant is issued for the purposes of prosecution. If he is wanted for prosecution, and the warrant later describes the offence and sets out its circumstances and gives the statutory provision which he is alleged to have infringed, it is very difficult to see how he can be described other than as 'accused' even if there is no statement using that word. The subject of such a European arrest warrant is clearly more than a suspect or someone who is wanted for questioning: I have in mind the passage from Lord Steyn's opinion in re Ismail quoted by Latham LJ. I cannot see any protection which section 2(3)(a) might be intended to provide to a person being extradited which the content of a warrant in the European form does not provide. So I see no reason not to hold that the European arrest warrant meets section 2(2). So the court is free to give effect to the new system introduced by the Directive by holding that it does. I am, however, doubtful whether it is appropriate to look at material outside the warrant itself for this purpose. The statement must be in the warrant. If it is not, it is not a Part 1 warrant. I do not think that in this context section 202(2) of the Act can be relied on.

Ground 3

46. The issue whether the offence is an extradition offence is introduced by section 10(2) as an issue to be decided by the judge conducting the extradition hearing. I agree that the case does come within the definition of extradition offence provided by section 64(2). Section 64(2)(a) is satisfied because there is no conduct of the appellant occurring in the United Kingdom which is relied on as part of the offence.
47. Sub-sections 64(2)(b) and (c) require a certificate issued by 'an appropriate authority of the category 1 country' showing first that the conduct falls within the European framework list, and second that the conduct is punishable under the law of that country with 3 years or more imprisonment or other form of detention or a greater punishment. By section 66(2) 'an appropriate authority of the category 1 territory is a judicial authority of the territory' which the designated judge dealing with the extradition application in this country 'believes has the function of issuing arrest warrants in category 1 territory'. The judge will presumably be of that belief if the certificate is issued by the authority which is certified under section 2(2) by, for example, the National Criminal Intelligence Service, as having the function of issuing warrants in the category 1 territory. But section 66(2) does introduce the possibility that the certificate will be issued by a different authority from the authority issuing the arrest warrant. Sections 64(3), (4), (5) and (6) all require that for them to apply the conduct must be punishable as provided for in section 64(2) with the substitution of 12 months for 3 years. There is however in those instances no need for a 'certificate': it is just something that must be established. The rationale behind these provisions has eluded me: none was suggested to us.
48. The issue for us is whether there must be a certificate which is separate from the Part 1 warrant itself. If it is very likely to come from the same source as the arrest warrant – the member state judicial authority, I cannot see any reason for requiring a separate document. Sections 142(3) and 145(1)(b) both provide in the context of Part 3 of the 2003 Act, extradition to the United Kingdom, that certificates shall be included in the warrant. I do not think that it can be deduced from this that, unless the Act so provides, a certificate may not be included in a warrant, and the sections do show that a warrant can double as a certificate in some circumstances. There is no provision as to the form a certificate under section 64(2) shall take: so in my view a statement issued by the appropriate judicial authority will suffice. I conclude that there is no reason why such a statement should not be found in the warrant. I agree that section 64(2) is satisfied in this case because the warrant contains statements showing that the conduct falls within the European framework list and that it is punishable with a term of imprisonment from 5 to 10 years.

Ground 4

49. Although the statement of the offence drafted as under English law, which is quoted by Latham LJ refers to the year 2000, the allegations of association with those involved in the attacks of 11^th March 2004 set out in the warrant and in the further material identified in paragraph 5 of the judgment of Latham LJ relate to the period after section 12 of the Terrorism Act 2000 came into force. For that reason I would reject an argument based on Pinochet that dual criminality cannot be shown. If that were not so, I would be doubtful whether it is consistent with Pinochet, in particular with passages in the opinion of Lord Hope between pages 231 to 240, to rely on conduct which covers a period during which the conduct was for part lawful and for part unlawful. It may be that in such a situation it is for the extraditing authority to limit the conduct to be relied on to that occurring when the conduct would have been unlawful in England.
50. For my part I tend to think that, if in re Evans were to be applied to cases falling within section 64(3) of the 2003 Act, then it would have been necessary for the district judge to have had the text of the Article 576 so he could perform the admittedly limited task postulated by Lord Templeman at 1013H of his speech in Evans:

"The magistrate will then consider whether the conduct set out in the particulars of conduct furnished by the requested state constituted an offence under the law set out in the particulars of law supplied by the requesting state."

However, despite similarities of wording between section 2(1) of the Extradition Act 1989 and section 64(3), I do not consider that such an exercise is necessary for the purpose of the section 64(3). In my view it is enough for the warrant to identify the conduct and provision of law under which it is criminal in the extraditing state. In paragraph 30 of his opinion in Cando Armas Lord Hope stated.

"30. The definitions of what constitute an extradition offence for the purposes of Part 1 are based on the principle, recognised in international law, that states claim criminal jurisdiction over conduct which takes place within their territory. The judge need not concern himself with the criminal law of the requesting state when he is addressing the question whether the offence specified in the Part 1 warrant is an extradition offence. But he does have to consider where the conduct which is alleged to constitute the offence took place."

51. Like Latham LJ I think that there is nothing in the point relating to Moroccan Islamic Combatant Group.

Grounds 4 and 5

52. I have nothing to add to the reasons given by Latham LJ for rejecting these grounds.
53. I agree that the appeal should be dismissed.

LORD JUSTICE LATHAM: In this matter, for the reasons given in the judgments which have been provided to the parties, the appeal is dismissed and there is an order for the appropriate assessment of the appellant's costs.