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
		15 June 2007

1. LORD JUSTICE LAWS: This is an application for bail arising in somewhat unusual circumstances. The applicant is a national of Morocco. He first arrived in the United Kingdom in 1987 or 1989 (the papers are somewhat contradictory).
2. In 1998 he went to Saudi Arabia, Pakistan and Afghanistan using forged British travel documents. In 1999 he was arrested and deported to Morocco. By 2001 he was living in Spain with a person called Jasem Mahboule. Thereafter he returned to England.
3. On 3 September 2003 he was arrested under the Terrorism Act 2000, but released without charge. However the next day - 4 September - he was detained under powers in the immigration legislation pending a decision whether to grant or refuse him leave to enter. On 5 September 2003 the Secretary of State issued a certificate, pursuant to Section 3 (2) (a) of the Special Immigration Appeals Commission Act 1997, to the effect that his detention was necessary on the grounds of national security. In September 2003 he applied for asylum on the grounds of fear of persecution if he were removed to Morocco. On 29 April 2004 a European arrest warrant was issued in Spain, alleging - and here I summarise in the broadest terms - that the applicant had been party to a conspiracy in Spain to murder those who were killed in the terrorist attacks in the United States of America on 9 September 2001. On 28 June 2004 the applicant was arrested pursuant to the European arrest warrant and was thereafter detained both under immigration powers and extradition powers.
4. On 1 June 2005 the senior district judge ordered his extradition to Spain under Section 21 (3) of the Extradition Act 2003. His appeal was dismissed by this court - Lord Justice Scott Baker and Mr Justice Irwin - on 26 May 2006. The court refused permission to appeal to their Lordships' House or to certify points of general public importance. However thereafter the applicant issued proceedings for a writ of Habeas Corpus on the ground that fresh material had come to light which called into question the legality of his prospective return to Spain pursuant to the extradition order. This material consisted, essentially, in the outcome of proceedings in Spain against a man called Yarkas who had been tried as a co-conspirator in relation to the 9/11 outrage. He had been acquitted on one charge. His conviction on another - conspiracy to commit terrorist killing - had been quashed on appeal to the Supreme Court of Spain. His conviction for a third offence was upheld. The conviction for conspiracy was quashed, in part at least, on the ground that evidence of telephone intercepts had been unlawfully obtained and was therefore inadmissible.
5. The applicant's case for Habeas Corpus in this case was that if these telephone intercepts were inadmissible against Yarkas they would be inadmissible against him; and accordingly the prospective prosecution in the anticipated Spanish proceedings against him was bound to fail since it was dependent on those intercepts.
6. Judgment in the Habeas Corpus case was delivered on 25 April 2007 by Lady Justice Smith and Mr Justice Irwin. The court held (at paragraph 77) that the order made by the senior district judge on 1 June 2005 had been "invalidated by subsequent events". They ordered the writ of Habeas Corpus to issue. This conclusion was not straightforward. There was a question as to the court's jurisdiction. And the court's reasoning depended, at least in part, on the terms in which the European arrest warrant had been drafted. That had not been done in the manner in which the system was intended to work; so, at any rate, the Divisional Court concluded.
7. The court declined to grant leave to the respondents to appeal to the House of Lords. It was made clear that there would be an application to their Lordships' House for leave; that has been done. We are told that it is hoped that a decision as to leave will be made before the long vacation.
8. The issue of bail was raised before the Divisional Court on 25 April. The applicant had been remanded in custody under both immigration powers and extradition powers. The Secretary of State's certificate of 5 September 2003 had stated that any application for bail should be made to the Special Immigration Appeals Commission. On 27 April 2007 and 15 May 2007 the Home Office confirmed that the applicant's asylum claim vis-a-vis Morocco was still under consideration. However the details of the applicant's immigration status and the details of any assurances that might be given in relation to prospective bail conditions were not to hand at the Divisional Court on 25 April 2007. For that reason the court refused bail but gave the applicant leave to renew his application for bail on notice if better information became available; hence this application.
9. The statement of the applicant's solicitor, Mr Arani, exhibits details of sureties said to be available to the tune of some £41,000 and also a bail address in London SE11 which would be provided by the applicant's sister. Various potential bail conditions are suggested. There are also a number of character references.
10. It is urged this morning by Mr Brandon, on behalf of the applicant, first, that we should take note of the fact that he has been in custody for four years; next, the Habeas Corpus decision of this court has changed matters radically. Mr Brandon says that the applicant has significant ties in this country. He relies on the conditions and sureties offered. He says that the reason why the applicant has moved between one jurisdiction and another in the past is because he has been hounded or arrested or tortured in different places. His asylum applications are said to be evidence of his fear of what would happen to him in other jurisdictions. Mr Brandon says that the decisions of the Spanish Supreme Court and the Divisional Court bear very significantly on the way in which this court should now regard the matters with which he is charged.
11. I should notice that we can only deal with bail in relation to the extradition detention. His detention under immigration powers is a matter for the Special Immigration Appeals Commission.
12. Bail is opposed by Miss Dobbin on behalf of the respondents - the Spanish Court - on grounds encapsulated in writing as follows:

"(i) The nature of the criminal activity alleged against the applicant (in that he is alleged to have been involved in the 11 September bombings in the United States of America and a part of a terrorist organisation based in Spain).

(ii) His background (for example reference is made in the European arrest warrant to his having been a former Mujahedeen).

(iii) His clear ability to travel in and out of the UK, Spain, Pakistan, Afghanistan and other jurisdictions using forged documentation.

(iv) His connectedness to a terrorist infrastructure.

(v) The circumstances of his entry into the United Kingdom and his subsequent status."

13. Other matters are also relied on. They are matters arising following the judgment of the court in the Habeas Corpus case:

(1) Yarkas remained convicted for an offence akin to directing a terrorist organisation and was sentenced to a 12-year term of imprisonment.

(2) The decision of the Spanish Supreme Court demonstrates the existence of a terrorist organisation with strong links to individuals regarded as prominent in Al Qaeda.

(3) That organisation in Spain clearly had financial resources and the ability to facilitate movement between states.

(4) The applicant had links to that organisation (and reference is made to paragraph 71 of the judgment in the Habeas Corpus proceedings).

14. It seems to me important to recognise what is no more than obvious, namely we do not know what will be the outcome of the respondent's petition to their Lordships' House. There is no submission to us that that application is frivolous or bound to fail or anything of the sort. We are, as it seems to me, in no position whatever to second-guess the correctness of the Divisional Court's decision on 25 April 2007 or its possible incorrectness. In those circumstances the grounds of opposition to bail put forward by Miss Dobbin remain very substantial indeed. They cannot be undermined on the kind of contingent submissions very skilfully made by Mr Brandon on the applicant's behalf.
15. In those circumstances, for my part, I do not think it would be right to admit this applicant to bail. I would refuse the application.
16. MR JUSTICE MITTING: I agree for the reasons given.
17. LORD JUSTICE LAWS: Thank you for your assistance, Mr Brandon.
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