Castillo v Kingdom of Spain & Anor

In extradition proceedings governed by the European Convention on Extradition Order 2001, the requesting state need not establish evidential sufficiency, but must fairly and accurately describe the alleged conduct. The court may scrutinise that description where material raises a genuine issue as to its accuracy, without conducting a trial on the evidence. An inaccurate description cannot support charges which the properly described conduct would not constitute, although other charges may survive. Under section 11(3) of the Extradition Act 1989, discharge requires the relevant injustice or oppression finding for every offence. The statutory concept of accusation is broad and may include deliberate exaggeration, but lack of care alone does not establish bad faith.

This was the applicant’s second habeas corpus application. A Spanish citizen detained in England, he faced extradition on seven charges arising from three alleged terrorist incidents in Spain. One request had been withdrawn, and the first application had failed in [2002] EWCH 1302 (Admin). The applicant relied on further material from the Spanish court dossier, arguing that the description of the conduct relating to charges 5–7 was inaccurate and misleading, that the accusation was not made in good faith, and that the charges could not be sustained under United Kingdom law. The central issues were the proper scope of scrutiny of an extradition request, the operation of section 11(3), and whether the court should discharge him on any of the charges.

1. The application succeeded in part. The applicant was discharged on charges 6 and 7, but the application failed as regards charges 1–3 and 5.
2. Under article 12.2.b and the United Kingdom’s reservation in Schedule 2 to the European Convention on Extradition Order 2001, the requesting state had to describe fairly and accurately the conduct alleged to constitute the offences. Article 3 of the Convention, section 9(4) of the Extradition Act 1989 and paragraph 3 of the Order removed any requirement to establish evidential sufficiency. They did not prevent the court from examining whether the description itself was fair and accurate. Re Evans [1994] 1WLR 1006 was followed.
3. The request inaccurately suggested that the police officer was near the vehicle and that the applicant had attempted to place an explosive device under it. The dossier showed that the officer was in his house and that the device required a fuse to be lit. On a proper description, there was no basis for attempted murder or attempted grievous bodily harm. The device could nevertheless have caused fire and explosion and could have endangered persons near the vehicle. Charge 5 therefore remained capable of being constituted.
4. Following Re Debs (6 March 1998), section 11(3) required the injustice or oppression finding in relation to every offence before the court could order discharge. Since the Banco Santander charges were not shown to involve bad faith, the statutory condition was not met.
5. The court nevertheless considered the good-faith issue. The concept of accusation was broad enough to include witness evidence, the requesting state’s pre-request process and the conduct description. Deliberate exaggeration could form part of a bad-faith accusation. Subsequent conduct was not itself part of the accusation, although it could be evidence of the original position. The discussion of Osman, R (Saifi) v Governor of Brixton Prison and R (Asilturk) v Government of Turkey was not necessary to the formal disposition.
6. The defects in the description justified direct discharge on charges 6 and 7. Remittal to the District Judge would have been unnecessary.

The judgment records an earlier habeas corpus application, refused in [2002] EWCH 1302 (Admin), followed by bail applications and further representations to the Secretary of State. No appeal is stated; this was a fresh application before the Administrative Court.