QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
MR JUSTICE IRWIN
| FARID HILALI
|- and -
|GOVERNOR OF HMP WHITEMOOR
|CENTRAL COURT OF COMMITAL PROCEEDINGS NO 5, THE HIGH COURT, MADRID
|- and -
|THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
John Hardy (instructed by The Crown Prosecution Service) for the Respondents
David Perry QC & Victoria Ailes (instructed by The Treasury Solicitors) for the Intervener
Hearing dates: 22/23 February 2007
Crown Copyright ©
Lady Justice Smith : This is the judgment of the court.
The Content of the European Arrest Warrant
"Based on the information incorporated in the proceedings it may be inferred that there is a link between Barakat Yarkas (Abu Dahdah) and the terrorist attacks of 11th September 2001 in New York, Washington and Pennsylvania, attacks that resulted in thousands of victims. According to this information, Abu Dahdah maintained certain contacts with several individuals related to those facts."
There followed a list which included Shakur, the applicant. So it appeared that the applicant was wanted for trial on an allegation that he was involved in the terrorist conspiracy leading to the events of 11th September 2001. There then followed a description of the content of intercepted telephone conversations, allegedly between the applicant and Yarkas, which occurred in August 2001. On 6th August the applicant was alleged to have said that he was going to do important things in a month's time. On 26th August, the applicant was alleged to have said that he was taking lessons and had entered 'the aviation sector'. He claimed that they had 'slit the throat of the bird'. There were further conversations between the two men in late September, when the applicant appeared to be warning Yarkas that he thought he was being watched by the police. During some of these conversations, there was reference to a man named Abdulrahman, from which it could be inferred that this man was known to both Yarkas and the applicant.
"Facts could constitute a crime of participation in terrorist organisation, envisaged in articles 515.2 and 516.2 of the Criminal Code, and of as many crimes of terrorist assassination envisaged in articles 572.1 paragraph 1 to article 139.1 and 16 of the criminal code as the number of victims in the three terrorist attacks of the 11th September 2001 in the United States."
The Hearing before the Senior District Judge
"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 occurred in that part of the United Kingdom; and
(c) the conduct is punishable under the law of the category 1 territory with imprisonment … for a term of 12 months or a greater punishment…"
"Those conversations link the (applicant) with Yarkas in Spain and with the conspiracy to attack the World Trade Centre and the Pentagon on 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 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 section 64(3)."
"The conduct also constitutes an extradition offence in relation to the category 1 territory if the following 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 … for a term of 12 months or a greater punishment …;
(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 … for a term of 12 months or a greater punishment."
"I am satisfied that the offence(s) specified in the Part 1 warrant is an/are extradition offences, namely: Participation in terrorist organisation."
The Appeal to the Divisional Court
The Basis of the Application for Habeas Corpus
The First Issue
"A decision of the judge under this Part may be questioned in legal proceedings only by means of an appeal under this Part."
"The Court of Appeal or the High Court will not reopen a final determination of any appeal unless-
(a) it is necessary to do so in order to avoid real injustice;
(b) the circumstances are exceptional and make it appropriate to reopen the appeal; and
(c) there is no alternative remedy."
The Second Issue – Should Habeas Corpus be issued in this case?
The Evidence Produced
"I am satisfied that the centre of the conspiracy revolves round a man named Abu Dahdah or Yarkas whose home address was in Madrid. These conversations link the defendant with Yarkas in Spain and with the conspiracy to attack the World Trade Centre and the Pentagon on 11th September 2001."
"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…."
"As it has been said, the analysis of the telephone conversations made by Yarkas plus the evidences found along the investigations of the proceedings that link him consistently and firmly with the leaders of Al Qaeda and also with some of the participants in the terrorist attacks……. as well as the members of the 'terrorist commandos' that carried out the action, among them their leader Mohammed Atta, show the direct involvement in the preparation of the said attacks, collaborating with infrastructure, covering and coordinating the movements in Europe of the group members, of Yarkas, Shakur (the applicant, Hilali) Abdulrahman, Azizi, Belftami, Chebli, Binalshibih, Said Bahaji and referentially, Zaher and Mahboule."