| EXTRADITION — Habeas corpus — Jurisdiction — European arrest warrant — Extradition order made against applicant — Subsequent alleged fundamental change of circumstances — Whether habeas corpus appropriate —Whether excluded by statutory provisions — Extradition Act 2003, s 34
Hilali v Governor of Whitemoor Prison and another [2008] UKHL 3; [2008] WLR (D) 18
HL(E): Lord Bingham of Cornhill, Lord Hope of Craighead, Baroness Hale of Richmond, Lord Brown of Eaton-under-Heywood and Lord Neuberger: 30 January 2008
In a case where there was a right of appeal under Pt 1 of the Extradition Act 2003 from a judge’s decision to make an extradition order, habeas corpus was excluded by s 34. To grant it on the ground of a fundamental change of circumstances would be contrary to the principle of mutual recognition given effect by the Act.
The House of Lords so held in allowing an appeal by the Central Court of Criminal Proceedings No 5 of the National Court, Madrid from the decision of the Divisional Court of the Queen’s Bench Division (Smith LJ and Irwin J) [2007] 3 WLR 621 allowing Farid Hilali’s application for habeas corpus.
LORD HOPE OF CRAIGHEAD said that the Spanish court had issued a European arrest warrant seeking the applicant’s extradition to Spain for the purpose of his prosecution for, inter alia, participation in a terrorist organisation. Senior District Judge Workman had made an order for his extradition. The applicant’s appeal to the Divisional Court had been dismissed, and leave to appeal to the House of Lords had been refused. That had brought the statutory appeal process to an end: s 32(4)(a) of the 2003 Act. The applicant had applied for habeas corpus on the ground of a fundamental change of circumstances in that the conviction of one Y, said to be the central figure in the terrorist conspiracy to which the applicant was allegedly a party, of indirect involvement in terrorist attacks had been quashed by the Spanish Supreme Court on the grounds that telephone intercept evidence had been inadmissible and in any event did not support the inference that the applicant and Y had conspired to commit the attacks. The Divisional Court had held that habeas corpus was available where there had been a fundamental change of circumstances, the question being whether the judge could have made the extradition order if the arrest warrant had been stripped of all reference to the telephone evidence. The question, however, whether there was a case to answer on the conduct alleged in the European arrest warrant was not one that could be examined in the requested state. That was contrary to the principle of mutual recognition on which the Framework Decision of the European Union of 13 June 2002 (OJ 2002 L190, p1), to which the 2003 Act gave effect, was founded. Whether the evidence relied on to prove the extradition offence was admissible was for the court in the requesting country when the person was put on trial there. S 34 of the 2003 Act had to receive effect where the decision was one against which there was a right of appeal under the Act. In that case, habeas corpus was excluded by its clear and unequivocal wording. Errors in the procedure adopted in the present case gave rise to concern. The aspiration of the Framework Decision to remove the complexity and potential for delay inherent in the previous procedures was unlikely to be achieved if the judicial authorities on whose co-operation the system depended did not carefully observe the procedures laid down. Where the right to liberty was at stake, the importance of accuracy and attention to detail in the preparation of the warrant and any order could not be over-emphasised.
LORD BINGHAM, BARONESS HALE, LORD BROWN and LORD NEUBERGER agreed.
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Appearances: James Lewis QC and John Hardy (Special Crime Division, Crown Prosecution Service, Headquarters) for the Spanish court; Alun Jones QC and Ben Brandon (Arani Solicitors, Southall) for the applicant.
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