Hilali v The National Court, Madrid & Anor

For a Part 1 European Arrest Warrant, identity under section 7 of the Extradition Act 2003 is determined on the balance of probabilities. A warrant read as a whole may establish that a person is accused, rather than merely suspected, without inviting the requested court to examine the strength of the foreign prosecution.

Conduct is an extradition offence under section 64(3) where the alleged conspiracy was founded or maintained in the requesting state, including by an overt act there, and equivalent proved conduct would amount to a domestic offence. Specialty and human-rights objections require cogent, case-specific evidence. A Convention state acting under the European Arrest Warrant system is presumed to act in good faith unless the particular evidence justifies a different conclusion.

Spain sought the appellant’s surrender under a European Arrest Warrant alleging his participation in a terrorist conspiracy connected with the attacks of 11 September 2001. The warrant identified him as Farid Hilali, also known as Shukri and Shakur, and alleged telephone contacts with Yarkas in Spain.

A Senior District Judge at Bow Street Magistrates’ Court ordered extradition on 1 June 2005 under section 21(3) of the Extradition Act 2003. The appellant appealed under section 26. He challenged identity, whether he was accused of an extradition offence, specialty arrangements, extraneous considerations, Convention compatibility, and abuse of process. He also relied on concerns about treatment and trial procedures in Spain, and on developments in the prosecution of Yarkas.

1. Appeal dismissed. The court upheld the extradition order. None of the seven grounds established a bar to surrender or an abuse of process.
2. Under section 7 of the Extradition Act 2003, the initial judge was entitled to find on the balance of probabilities that the appellant was the person named in the warrant. His admission of his name, the matching day and month of birth, and the warrant’s identification of Hilali, Shukri and Shakur as the same person were sufficient. The court doubted whether the later extradition judge had jurisdiction to revisit the initial finding, but that issue could not assist the appellant because the finding was correct.
3. The appellant was accused for section 64 purposes. The warrant, read realistically and as a whole, said that he was sought to be criminally tried. Its particulars described conduct said to link him to the conspiracy. The court could not examine the evidential merits of the Spanish case.
4. The conduct was an extradition offence under section 64(3). The alleged conspiracy was founded or maintained in Spain. Telephone calls to a conspirator there and other alleged acts in Spain were sufficient overt acts. When transposed to England, the alleged conduct would amount to conspiracy to murder abroad. The Spanish maximum penalty exceeded 12 months. It was therefore unnecessary to decide whether section 64(4) also applied.
5. Specialty did not bar extradition. Spain and the United Kingdom were bound by the relevant international arrangements, and there was no evidence that Spain would breach them. The warrant sought the appellant for the alleged conspiracy, not for substantive murder outside its stated factual basis.
6. The claims under sections 13 and 21 failed. The appellant had not shown a real, case-specific risk of prejudice, mistreatment, unfair trial, or onward removal to Morocco. On surrender under an EAW he would be subject to immediate and continuing judicial supervision in Spain, with legal representation and procedural safeguards. General reports did not displace the good-faith assumption applicable to a Convention state.
7. Abuse of process may in principle arise despite the absence of another statutory bar, but such cases will be rare and ordinarily require bad faith or comparable circumstances. The alleged weaknesses in the foreign case, including matters concerning Yarkas, were for the Spanish trial court and did not establish abuse.

• High Court (Administrative Court): dismissed the appellant’s statutory appeal and upheld the extradition order in [2006] EWHC 1239 (Admin).
• Bow Street Magistrates’ Court: Senior District Judge Workman ordered the appellant’s extradition to Spain on 1 June 2005 under section 21(3) of the Extradition Act 2003.