Hilali v Central Court of Criminal Proceedings Number 5 & Anor

Certification for an appeal requires a genuine question of law of general public importance. A question that is misconceived, tendentious or concerned only with applying evidence to the statutory standard does not satisfy that threshold. Once the court has delivered its final extradition judgment, new material concerning events or evidence arising afterwards should ordinarily be raised by habeas corpus, rather than by reopening the appeal or seeking certification. Where certification and leave are refused, the court’s jurisdiction to deal with bail under the extradition proceedings falls away.

The claimant had appealed against an order for his extradition to Spain. The Divisional Court had dismissed that appeal in a written judgment reported at [2006] 4 All ER 435. He then sought certification of four proposed questions of law of general public importance and leave to appeal to the House of Lords.

Following developments in Spain, including the acquittal of an alleged co-conspirator, he argued that the case had materially changed. The issues were whether the proposed questions met the statutory certification threshold, whether the new material could be considered at this stage, and whether bail remained available if certification and leave were refused.

1. The court declined to certify any of the four proposed questions. The questions were either misconceived or did not raise a point of law of general public importance. The application for leave to appeal therefore did not arise.
2. The new material from Spain was not appropriate for consideration in the certification application. Although the legal landscape might theoretically change after the final judgment and before removal, the appropriate remedy in that situation was an application for habeas corpus, including where the complaint was framed under Article 5(4) of the European Convention on Human Rights.
3. The first proposed question, concerning surrender for conduct said to constitute different offences in the United Kingdom, was misconceived because the claimant would be tried for the conduct alleged in the European arrest warrant.
4. The second proposed question, concerning speciality arrangements under Extradition Act 2003, raised no question of law of general public importance and was misconceived.
5. The third proposed question improperly sought to have the court evaluate the strength of the evidence in the Spanish proceedings after judgment. It did not raise a qualifying question of law.
6. The fourth proposed question concerned whether the person before the court was the person named in the warrant. That was an evidential exercise applying the standard of proof provided by the Extradition Act 2003, rather than a question of law of general public importance.
7. Lord Justice Scott Baker and Mr Justice Openshaw reached the same conclusion. Since certification and leave were refused, there was no jurisdiction to entertain the related bail application.

• High Court (Administrative Court): The claimant’s appeal against the extradition order was dismissed on 26 May 2006, reported at [2006] 4 All ER 435.
• High Court (Administrative Court): Certification of four proposed questions and leave to appeal were refused on 16 November 2006. The related bail application could not proceed.