In re Hilali (Respondent) (application for a writ of Habeas Corpus)

Under the European arrest warrant system, the requested state must not investigate whether the prosecution has sufficient admissible evidence. Mutual recognition requires that question to be determined in the issuing state.

A habeas corpus application alleging that there is no case to answer in the issuing state is excluded by the statutory extradition scheme. Where an extradition decision carries a statutory right of appeal, section 34 of the Extradition Act 2003 makes that appeal the exclusive means of challenge.

A warrant should describe the alleged conduct concisely. It should not narrate the prosecution evidence. Extradition remains confined to offences which satisfy the statutory requirements and are correctly identified in the extradition order.

A Spanish judicial authority issued a European arrest warrant seeking Farid Hilali's extradition for alleged involvement in a terrorist organisation and the terrorist attacks in the United States on 11 September 2001. A senior district judge ordered extradition for conduct amounting in English law to conspiracy to murder and conspiracy to destroy, damage or endanger aircraft. The statutory appeal against that order was dismissed.

A Spanish court subsequently ruled, in proceedings against an alleged co-conspirator, that telephone-intercept evidence narrated in the warrant was inadmissible and did not support the alleged conspiracy. Hilali then obtained habeas corpus from the Divisional Court, reported at [2007] EWHC 939 (Admin) and [2007] 3 WLR 621.

The House considered whether habeas corpus remained available after exhaustion of the statutory appeal process and whether the requested state could examine whether the issuing state still had a case to answer.

1. Appeal allowed unanimously. Lord Hope delivered the leading speech. Lord Bingham, Baroness Hale, Lord Brown and Lord Neuberger agreed that the Divisional Court's order should be set aside and the senior district judge's extradition decision affirmed.

2. Per Lord Hope, the Framework Decision rests on mutual recognition of judicial decisions. The requested state must take the merits of the extradition request on trust. It must not investigate the admissibility or sufficiency of the evidence supporting the prosecution in the issuing state. The Spanish Supreme Court's later decision about the telephone-intercept evidence therefore did not alter the legal position. Whether the alleged conduct could be proved was for the Spanish court.

3. The Divisional Court erred by asking whether the district judge could still have reached his decision without the intercept evidence. The question under section 10(2) of the Extradition Act 2003 was whether the warrant specified an extradition offence, not whether that offence could be proved. Evidence newly available for an appeal under section 27(4) means evidence concerning questions entrusted to the extradition judge, such as a statutory bar or incompatibility with Convention rights. It does not include evidence directed to whether the foreign prosecution has a case to answer.

4. Per Lord Hope, section 34 gives exclusive effect to the statutory appeal procedure where the decision is appealable under Part 1. The House did not determine every circumstance in which habeas corpus might survive section 34. It held that an application asserting, for any reason, that there is no case to answer in the issuing state must always be rejected. The alternative abuse-of-process argument failed for the same reason.

5. A European arrest warrant should provide the concise description required by article 8(1)(e) of the Framework Decision. It should not contain a narrative of the prosecution evidence. Baroness Hale emphasised that executing states should approach warrants in a spirit of mutual trust and respect.

6. Participation in a terrorist organisation was not an extradition offence on the alleged facts because the double-criminality requirement was unsatisfied. Extradition was affirmed only for conspiracy to murder persons in the United States and conspiracy to destroy, damage or endanger aircraft contrary to section 2 of the Aviation Security Act 1982. The specialty rule protected the respondent from prosecution under the extradition order for participation in a terrorist organisation.

1. House of Lords: Allowed the appeal unanimously in [2008] UKHL 3, set aside the writ of habeas corpus and affirmed extradition for the two qualifying conspiracy offences.
2. Divisional Court: Granted habeas corpus on 25 April 2007 because it considered that a fundamental change in circumstances had undermined the extradition order: [2007] EWHC 939 (Admin); [2007] 3 WLR 621.
3. Divisional Court: Dismissed the respondent's statutory extradition appeal on 26 May 2006. On 16 November 2006 it refused permission to appeal and declined to certify a point of law of general public importance.
4. Senior District Judge: Ordered extradition on 1 June 2005. His reasons identified conspiracy to murder and conspiracy to destroy, damage or endanger aircraft, although the signed order incorrectly described the offence as participation in a terrorist organisation.