Hilali, R (on the application of) v Secretary of State for the Home Department

Under Part 1 of the Extradition Act 2003, the appropriate judge and the High Court have no jurisdiction, after surrender, to supervise how an extradited person is treated by the requesting state, investigate an alleged breach of specialty, direct the foreign authorities, or order the person’s return. Their post-surrender powers are confined to those expressly or necessarily implied by the statutory scheme, principally the limited powers in sections 54 to 59. The European Arrest Warrant system rests on mutual recognition and confidence between Member States. Alleged breaches of specialty must ordinarily be remedied in the requesting state, through the relevant European court, or diplomatically. The act of state principle also ordinarily prevents adjudication on foreign sovereign acts where an effective remedy exists in the foreign state.

The claimant had been extradited from the United Kingdom to Spain under a European Arrest Warrant concerning conspiracy to murder in connection with the 11 September 2001 attacks. After surrender, he alleged that Spain was proceeding against him for participation in a terrorist organisation, contrary to the specialty rule.

The Senior District Judge declined to investigate the complaint or request the claimant’s return, holding that the Extradition Act 2003 conferred no such power. The claimant sought judicial review, contending that the judge and the High Court possessed implied powers to investigate the alleged breach, declare it unlawful, and seek his return. The central issues were jurisdiction and, alternatively, whether the Spanish proceedings breached specialty.

1. The judicial review application was dismissed. The decision of the Senior District Judge and his reasons were correct.

2. The powers of the appropriate judge and the High Court in extradition proceedings derive from the Extradition Act 2003. The Act provides a detailed code governing pre-surrender decisions and gives the appropriate judge limited post-extradition powers under sections 54 to 59. It gives no power to investigate how an extradited person is being treated abroad or to request his return.

3. No such power could be implied. The contrast between the detailed pre-surrender provisions and the restricted post-surrender provisions reflected a legislative policy that, subject to the statutory exceptions, events after surrender were not for the United Kingdom courts to supervise. The Framework Decision was based on mutual recognition and a high level of confidence between Member States. An implied supervisory power would undermine that scheme.

4. Bermingham, concerning an alleged abuse of the extradition process before surrender, did not support a new post-surrender power. The principles concerning ancillary orders in Masri were inapplicable because that case concerned a private law claim, an in personam defendant, and non-statutory jurisdiction. The deportation cases, including Abuzar Chanuizi, were distinguishable because the order operated against the Secretary of State, whose own unlawful act was being remedied.

5. The High Court likewise had no jurisdiction to declare that the Spanish authorities were breaching specialty or to order the claimant’s return. In any event, relief against a foreign authority could not be granted without that authority being properly joined.

6. The act of state principle ordinarily prevented an English court from adjudicating on sovereign acts within a foreign state. Although exceptional jurisdiction might exist for a clear breach of international law involving fundamental human rights, the present case did not engage it because Spain was bound by the Framework Decision, had incorporated specialty into domestic law, and provided a domestic remedy.

7. Although unnecessary to the jurisdictional result, the court held that the available material did not establish a specialty breach. The orders of 8 and 11 February 2008 had to be read together. The latter order, made after receipt of the United Kingdom documents, described the accusation as conspiracy to commit terrorist murder through membership of Al Qaeda, not the separate offence of membership of a terrorist organisation. The later information from the Spanish authorities put the position beyond doubt.

• House of Lords: The claimant’s earlier habeas corpus proceedings were rejected, and his extradition order was affirmed in [2008] UKHL 3, [2008] 2 WLR 299.

• High Court (Administrative Court): The present judicial review claim was dismissed. The Senior District Judge had correctly held that he lacked jurisdiction to investigate post-surrender treatment or seek the claimant’s return.