In re Hilali

The House of Lords allowed the appellant's appeal and set aside the Divisional Court's grant of a writ of habeas corpus. The court held that once the statutory appeal remedies in Part 1 of the Extradition Act 2003 have been exhausted, habeas corpus is not available to challenge an extradition order by re‑opening issues which relate to the merits of the requesting state's case or to whether there is a "case to answer" in the requesting state. The Framework Decision on the European arrest warrant operates on the principle of mutual recognition and requires the executing state not to determine the admissibility or sufficiency of the requesting state's evidence. Sections of the Extradition Act 2003 relevantly considered included sections 2(7), 10(2), 21, 26, 27(4) and 34, together with Part 1 and Schedule 2. The House affirmed the senior district judge's order for extradition to Spain, limited to offences properly described in his reasons (conspiracy to commit murder and offences under section 2 of the Aviation Security Act 1982).

This case concerned an application for a writ of habeas corpus by Farid Hilali, who had been ordered to be extradited to Spain under a European arrest warrant (issued 29 April 2004). The respondent had been arrested in the United Kingdom and an extradition order was made by the senior district judge on 1 June 2005. The respondent's statutory appeal under the Extradition Act 2003 was dismissed by the Divisional Court (Scott Baker LJ and Openshaw J) on 26 May 2006 and further leave to appeal and certification were refused on 16 November 2006. The respondent then applied for a writ of habeas corpus in the Divisional Court (Smith LJ and Irwin J), which granted the writ on the basis that subsequent events in Spain — notably the Spanish Supreme Court quashing part of the conviction of a central co‑accused (Yarkas) because telephone intercept evidence was held inadmissible — had removed the evidential basis on which the extradition order had been made, producing a fundamental change of circumstances rendering detention unlawful.

The issues before the House were (i) whether habeas corpus was available after the exhaustion of the Part 1 statutory appeal process where there had been a change of circumstances that allegedly rendered an extradition order unlawful and (ii) whether events in Spain relating to the quashing of Yarkas's conviction could be invoked in the executing state to undermine the finding that the respondent was accused of an extradition offence (the "case to answer" issue).

The House analysed the Framework Decision on the European arrest warrant and the statutory scheme in the Extradition Act 2003. It concluded that the Framework Decision rests on mutual recognition so that the merits of the requesting state's prosecution, and the admissibility or sufficiency of evidence, are matters for the requesting state and not for the executing state. Section 34 of the 2003 Act excludes legal proceedings other than the statutory appeal process in Part 1 in relation to decisions made under that Part. Accordingly an application for habeas corpus which in substance sought to challenge whether there was a "case to answer" in Spain or to revisit the merits of evidence was impermissible. The House therefore allowed the appeal, set aside the Divisional Court's habeas corpus order and affirmed the senior district judge's extradition order, clarifying that the proper offences for extradition were the conspiracy to commit murder (as articulated under section 64(3) of the 2003 Act) and offences under section 2 of the Aviation Security Act 1982.

Appeal allowed. The House of Lords held that habeas corpus was not available to challenge an extradition order by re‑opening matters that concern the merits of the requesting state's prosecution or the admissibility/sufficiency of its evidence; such matters fall within the mutual recognition framework of the European arrest warrant and the statutory appeal regime in Part 1 of the Extradition Act 2003 (notably sections 26, 27(4) and 34). The Divisional Court's grant of habeas corpus was set aside and the senior district judge's extradition order was affirmed, limited to conspiracy to commit murder and the offence under section 2 of the Aviation Security Act 1982.

Extradition order made by Senior District Judge Workman on 1 June 2005. Appeal under section 26 of the Extradition Act 2003 dismissed by the Divisional Court (Scott Baker LJ and Openshaw J) on 26 May 2006; leave to appeal and certificate refused on 16 November 2006. Habeas corpus application commenced 17 November 2006 and granted by the Divisional Court (Smith LJ and Irwin J) on 25 April 2007 ([2007] EWHC 939 (Admin)). The Secretary of State did not intervene in the House of Lords. The appeal to the House of Lords was allowed on 30 January 2008 ([2008] UKHL 3).