Boudhiba v Central Examining Court No 5 of the National Court of Justice Madrid Spain

A European Arrest Warrant founds the appropriate judge’s jurisdiction. Its validity may therefore be challenged during the extradition hearing or on appeal, even though validity is not an express statutory question.

The warrant must show in substance that prosecution has commenced and that the requested person is accused rather than merely suspected. It need only identify the foreign legal provisions; it need not reproduce their text. Under section 64(3) of the Extradition Act 2003, some conduct relating to each offence must occur in the requesting territory and the conduct must constitute an offence under domestic law. The English court need not decide whether it satisfies the foreign offence.

Extradition is not incompatible with Convention rights merely because bad practice or mistreatment is alleged. The evidence must establish a real danger of the relevant violation.

The appellant appealed under section 26 of the Extradition Act 2003 against an order of Deputy Senior District Judge Wickham committing him to custody to await extradition to Spain. A European Arrest Warrant sought his return for alleged participation in a terrorist organisation, terrorism, collaboration with terrorism, and forgery and trafficking in administrative documents.

The appellant challenged the warrant’s statutory validity, alleged abuse of process and double jeopardy, disputed whether the alleged conduct constituted extradition offences, and relied on Convention rights and his mental condition. The central questions were whether the warrant founded jurisdiction, whether the conduct satisfied section 64, and whether extradition would be unjust, oppressive or incompatible with his Convention rights.

1. Appeal dismissed. The European Arrest Warrant complied with the Extradition Act 2003, the alleged conduct constituted extradition offences under section 64(3), and none of the abuse, human-rights or mental-condition grounds required discharge.

2. A Part 1 warrant founds the appropriate judge’s jurisdiction. Although its validity is not expressly listed among the questions for an extradition hearing, the judge may determine whether non-compliance with section 2(3) or 2(4) deprives the court of jurisdiction. The appellate court may likewise examine validity because an invalid warrant would render the proceedings a nullity. The warrant and its accompanying Order of Commitment showed that criminal proceedings had begun and that the appellant was accused, not merely wanted for investigation.

3. Section 2(4)(c) requires identification of the foreign legal provision, not reproduction of its text. The Part 1 regime rests on mutual confidence between participating states. When determining whether conduct is an extradition offence, the English court does not decide whether it satisfies the identified offence under the requesting state’s law.

4. The district judge was wrong to rely generally on section 64(2), because part of the alleged conduct occurred in the United Kingdom. Section 64(3) was nevertheless satisfied. Some conduct relating to each offence occurred in Spain, the conduct would constitute offences under English law, and the Spanish offences carried the required punishment. Each alleged offence should be considered separately.

5. The confused requests to interview the appellant did not establish bad faith. As he had declined to cooperate and suffered no prejudice, the proceedings were not an abuse of process. The double-jeopardy ground also failed: the English conviction concerned a different passport, time and place, and the domestic list of analogous charges could not restrict Spain’s prosecution of the offences for which extradition was ordered.

6. The alleged offending had a strong connection with Spain. Its international features did not make Spanish jurisdiction exorbitant. Under section 21, anecdotal reports about mistreatment, legal representation, communications with lawyers, detention conditions and delay did not demonstrate a real danger of violations of articles 3, 5 or 6. Spain could also be trusted to determine any future asylum claim in accordance with its international obligations.

7. Section 25 asks whether extradition would be unjust or oppressive by reason of the requested person’s condition, rather than merely whether a psychiatric disorder or low intelligence exists. Spain could assess fitness for trial, suicide risk and treatment needs. Even assuming possible unfitness for trial, extradition was neither unjust nor oppressive, and a further adjournment was refused.

• High Court, Divisional Court: dismissed the appeal against the extradition order.
• Bow Street Magistrates’ Court: Deputy Senior District Judge Wickham ordered the appellant on 2 June 2005 to be remanded in custody to await extradition to Spain.