|Judgments - In re Hilali (Respondent) (application for a writ of Habeas Corpus)
24. For the same reasons I would reject the respondents alternative argument that the continued request for his extradition was an abuse of process. It should be noted too that recital (10) of the Framework Decision states that implementation of the European arrest warrant may be suspended only in the event of a serious and persistent breach by one of the member states of the principles set out in article 6(1) of the Treaty on European Union, determined by the Council pursuant to article 7(1) of the Treaty with the consequences that article 7(2) sets out. That extreme position is miles away from the situation in this case, where there is no reason whatever to believe that the respondent will not have a fair trial. The senior district judge was satisfied, as he was required to be by section 21 of the 2003 Act, that the respondents extradition would be compatible with the Convention rights.
25. Two errors in the procedure that was adopted in this case give rise to concern. The whole point of the Framework Decision, as recital (5) explains, was to remove the complexity and potential for delay inherent in the previous extradition procedures. That aspiration is unlikely to be achieved if the judicial authorities on whose cooperation the system depends do not carefully observe the procedures that the Framework Decision lays down. Failure to do this may lead to delay and misunderstanding, as the errors which I am about to describe demonstrate.
26. As I have already mentioned, the information in the European arrest warrant that was issued in this case about the alleged offences went far beyond what is contemplated by article 8(1)(e) of, and the Annex to, the Framework Decision. In the words of that paragraph, a description must be given of the circumstances in which the offences were committed, including the time, place and degree of participation in the offences by the requested person. A narrative of the evidence that is to be relied on to prove the offences is not needed. It has no place in the description, as it is not relevant to the decision by the executing judicial authority whether the person is to be surrendered: see article 15. The purpose for which the information is required is to enable the executing judicial authority to decide whether the offences are extradition offences, not whether they can be proved against the requested person. The delay that has arisen in this case is highly regrettable. But much of it is due to the fact that information in the European arrest warrant about the circumstances was developed at inordinate length and included much irrelevant material. This invited argument about the admissibility and sufficiency of the evidence which, as the Divisional Court said in para 61, would not have arisen if a clear and concise description had been given of the conduct that was alleged against the respondent.
27. The way this case was handled in this country is not beyond criticism either. The legal classification of the offences in the European arrest warrant was said to be participation in a terrorist organisation and in as many crimes of terrorist assassination as the number of victims in the three terrorist attacks in the United States. The senior district judge was careful to explain in the reasons for his decision that the conduct that was alleged against the respondent amounted to an extradition offence under section 64(3) of the 2003 Act because, if it had occurred in England, it would have constituted the offence of conspiracy to commit the offence of murder of persons in America. He also said that it amounted to a conspiracy to commit the offence of destroying, damaging or endangering the safety of aircraft, contrary to section 2 of the Aviation Security Act 1982, which is an extradition offence under section 64(4). He was not asked to say that participation in a terrorist organisation was an extradition offence.
28. Participation in a terrorist organisation is not conduct that falls within the list of offences in article 2(2) of the Framework Decision: see section 64(2) of and Schedule 2 to the 2003 Act. So the double criminality test must be applied to it: see section 64(3). But, as the Divisional Court explained in para 75, none of the conduct alleged against the respondent suggested that he was in Spain at any time between March 2001, when membership of Al-Qa'eda as a proscribed organisation became an offence under section 11 of the Terrorism Act 2000 (see the Terrorism Act 2000 (Proscribed Organisations) (Amendment) Order 2001 (SI 2001/1261)), and the issue of the European arrest warrant in April 2004. It follows that this is not an offence for which the respondent can be extradited.
29. Unfortunately the extradition order which the senior district judge signed on 1 June 2005 described the extradition offence as participation in terrorist organisation". It made no mention of the two offences that were referred to in his reasons as the offences for which the respondent could be extradited. The importance of accuracy in this respect is demonstrated by the fact that the Spanish prosecutor, Mr Rubira, states in several places in his witness statement that the respondent remains accused of participation in a terrorist organisation. It was important to make it plain in the extradition order that this was not an offence for which the respondent can be prosecuted as he is entitled to the protection of the specialty rule with regard to it. The Spanish prosecutor appears not to have appreciated this point. The misunderstanding which the form of the order appears to have created could have been avoided if the form had been filled in correctly.
30. I would urge the relevant authorities both in this country and in Spain to pay close attention to these remarks. The right to liberty is at stake in these matters. The importance of accuracy and attention to detail in the preparation of the European arrest warrant and of any order that is made to give effect to it cannot be overemphasised.
31. I would allow the appeal and set aside the order which was made by the Divisional Court. I would affirm the decision by the senior district judge to order the respondents extradition to Spain. I would do so on the ground that the offences of conspiracy to commit the offence of murder of persons in the United States and of destroying, damaging or endangering the safety of aircraft, contrary to section 2 of the Aviation Security Act 1982, are the only offences in respect of which he is to be extradited.
BARONESS HALE OF RICHMOND
32. I agree, for the reasons given by my noble and learned friend Lord Hope of Craighead, that this appeal should be allowed. I would comment only that a European Arrest Warrant may be executed in any of the Member States. The issuing judicial authority will not always know where the person concerned will be found. It cannot tailor the warrant to any particular or idiosyncratic requirements of another Member State. So, while I agree that every issuing State should do its best to comply with the requirements of the Framework Decision, it seems equally important that every requested State should approach the matter on the basis that this has been done: in other words, in a spirit of mutual trust and respect and not in a spirit of suspicion and disrespect. For better or worse, we have committed ourselves to this system and it is up to us to make it work.
LORD BROWN OF EATON-UNDER-HEYWOOD
33. I have had the advantage of reading in draft the opinion of my noble and learned friend Lord Hope of Craighead. For the reasons he gives, with which I agree, I would allow this appeal and make the order which he proposes.
LORD NEUBERGER OF ABBOTSBURY