Hilali v Governor of HMP Whitemoor & Ors

Habeas corpus remains available in exceptional circumstances after completion of the statutory extradition process where a fundamental change has undermined the factual basis of an otherwise lawful extradition order. The application must not reopen issues that could have been raised in the statutory proceedings or become a tactical substitute for appeal. The change must go to the root of the case and make continued detention unlawful. Where an European Arrest Warrant relies on evidence rather than a clear description of alleged conduct, the subsequent loss of that evidence may invalidate the warrant if the remaining material would not have enabled the extradition judge to make an order. Mutual recognition and expedition do not displace the statutory safeguards governing extradition.

The claimant had been arrested under an European Arrest Warrant issued by the Spanish judicial authority and an extradition order had been made under Part 1 of the Extradition Act 2003. The statutory appeal had been dismissed and the extradition process was complete.

Afterwards, the Supreme Court of Spain quashed the conviction of an alleged co-conspirator, Yarkas, for conspiracy to commit terrorist killing and ruled that telephone intercept evidence was inadmissible. The claimant contended that the evidence had been central to the warrant and that his continued detention was unlawful. The issues were whether habeas corpus remained available, whether the later events invalidated the extradition order, and whether continuation of the request constituted an abuse of process.

1. Availability of habeas corpus. Habeas corpus had previously been available at an early stage of European Arrest Warrant proceedings. It was also available after completion of the statutory appeal process in exceptional circumstances. Section 34 of the Extradition Act 2003 did not exclude proceedings based on a fundamental change in circumstances which accepted that the original decision was lawful when made but contended that its factual basis had subsequently been undermined. Habeas corpus was the appropriate remedy where detention had become unlawful.
2. The threshold was high. The new event had to go to the root of the case and could not be a point which could have been raised in the statutory proceedings. A change in the evidence could, in a sufficiently fundamental case, satisfy that threshold.
3. The court considered the original warrant as notionally stripped of the inadmissible telephone evidence. It could not rely on later assertions of additional evidence to amend or supplement the warrant. The adequacy and admissibility of evidence were matters for the requesting state, but the requested court had to examine whether the conduct described in the warrant still constituted an extradition offence.
4. Without the telephone evidence, the warrant no longer adequately alleged the claimant’s involvement in preparation for the September 2001 attacks. The remaining case depended on his links with Yarkas, whose acquittal had broken the alleged link with the terrorist cell. Membership of a terrorist organisation did not independently establish an extradition offence under section 64(3), because the warrant did not show conduct in Spain during a period when that membership was criminal under UK law. Nor did section 64(4) apply, since the relevant extra-territorial offence under the Terrorism Act 2006 was not in force when the warrant was issued and the claimant was arrested.
5. The Senior District Judge could not have made an extradition order on the remaining material. The order, valid when made, had been invalidated by subsequent events. Continued detention was unlawful and the writ of habeas corpus was issued. The abuse-of-process issue did not require determination.

Not stated in the judgment.