Castillo v Kingdom of Spain & Anor

This is the second application for habeas corpus by the applicant who is a citizen of the Kingdom of Spain and was born in Vitoria in the Basque autonomous province.

On 25 April 2001 he was arrested at Dover in possession of a false passport; he was charged with an offence related to this and sentenced to a short period of imprisonment. The Spanish Government learnt of his detention and requested his extradition in relation to three alleged terrorist offences committed by the applicant in 1997. On 24 July 2001 permission was given by the Secretary of State to proceed under s. 7 of the Extradition Act 1989. On 25 July 2001 the applicant was arrested on his release from prison and returned to custody pending a decision on the request by The Kingdom of Spain.

The requests for extradition related to three events in which it was alleged by the Kingdom of Spain the applicant had participated. The three requests were covered by seven extradition charges. It is convenient to set out briefly the events said to give rise to the request and the extradition charges which they are said to constitute.

The requests are governed by the European Convention on Extradition Order 2001; there was no need for the Kingdom of Spain to satisfy UK courts of evidential sufficiency.

On 28 November 2001 the applicant came before the District Judge at Bow Street and was committed to await extradition.

After his committal, the first application was made to this court for habeas corpus. On 5 June 2002, shortly prior to the hearing of that application which was to be heard on 13 June 2002, the Kingdom of Spain withdrew the first request for extradition in respect of charge (4) – the allegation in respect of the explosion at the barracks at Vitoria.

In summary it appears that the principal evidence against the applicant was a map which was found in a van which those who had caused the explosion had hijacked. The map could be connected to the appellant. It was alleged that it was a map showing the barracks and a route of how to get there. It became clear that in fact the map was of the appellant’s house; it had been provided by him to show a friend how to get there.

The principal argument before the this court on the first application was that, in the light of the withdrawal of charge 4, the charges in respect of the second request (charges 5-7) were not made in good faith within s.11(3) of the Extradition Act 1989:

“Without prejudice to any jurisdiction of the High Court apart from this section, the court shall order the applicant’s discharge if it appears to the court in relation to the offence, or each of the offences, in respect of which the applicant’s return is sought, that,

(a)

by reason of the trivial nature of the offence; or

(b)

by reason of the passage of time since he is alleged to have committed it or to have become unlawfully at large, as the case may be; or

(c)

because the accusation is not made against him in good faith in the interests of justice,

would, having regard to all the circumstances, be unjust or oppressive to return him.”

The court concluded (see [2002] EWCH 1302 (Admin)) that on the information then before it that the contention that the request was not made in good faith in the interests of justice failed. The court further rejected the argument made on behalf of the applicant that charges 5 to 7 failed to disclose facts that would constitute an offence if they occurred in the UK (as required by s.2(1)(a) of the Act). Gibbs J, giving the first judgment, stated at paragraphs 32 - 34:

“32.

The remaining objections to the lawfulness of the extradition request and consequent committal are based on the inadequacy of the description of the applicant’s conduct… It is, however, argued that the attempt to place the items described under the car cannot give rise to a prima facie case that the applicant intended to kill (charge 7) or cause serious bodily injury (charge 6). It is said that the descriptions of the items involved are inadequate or not sufficiently particularised to establish any intent beyond that of causing damage to property. It is also contended, though not with the same enthusiasm, that the acts described cannot be said to be more than merely preparatory. Thus, in English law, they could not constitute an attempt.

33.

In considering whether the District Judge's decision to commit on these charges should stand, this court is carrying out a reviewing function. If it was open in law to the District Judge to find that the relevant offence was constituted by the facts described, or that those facts constituted a prima facie case that such an offence had been committed, then this court should not and cannot interfere.

34.

The placing of an explosive device under a private car is something which is likely to cause death or personal injury to a person entering or driving a car, or indeed a person nearby if and when the device is detonated. The items found nearby, described as being for the purpose of causing an explosion, such as petrol, gas sprays, batteries and so on, give detail to the assertion that an explosive device was being placed under the car and confirm the nature of the danger posed by it. These are matters which, in my judgment, would entitle a tribunal of fact, in the absence of any satisfactory explanation, to find an intent to cause serious injury or death to the user of the vehicle, especially in the context of terrorist activity. The District Judge's decision to that effect cannot be described as either irrational or wrong in law. Nor, in my view, can the acts described reasonably be regarded as merely preparatory. It is hard to envisage any action more proximate to the causing of an explosion than actually trying to place a bomb under a car. Certainly the District's Judge's finding that this constituted an attempt cannot be impugned.”

In July 2002 and January 2003 the applicant made representations to the Secretary of State. In those representations it was claimed on behalf of the applicant

There appears to have been some delay in making responses to those representations. An application was made for bail which was heard by Gibbs J on 19 June 2003. It was contended that the applicant should no longer be held in custody at Belmarsh Prison in circumstances where it appeared that the Government of Spain was not responding to the representations. Gibbs J adjourned the application for bail, giving the Kingdom of Spain until 10 July 2003 to respond. On 15 July 2003, a response was made in a letter sent by the Secretary of State setting out the response of the Kingdom of Spain; in essence that response stated that:

The application for bail subsequently came before Penry-Davy J who refused bail.

This application for habeas corpus was made in August 2003 on the basis that the Spanish government had not responded.

The Kingdom of Spain on 17 February 2004 served its evidence; this comprised a statement from a Senior Crown Prosecutor which exhibited the translation of a bundle of documents which included a statement by Chief Prosecutor Eduardo Fungairino; he produced statements from the Court dossier which had been seen by the lawyers acting for the applicant in relation to the enquiries made.

A preliminary objection was first taken by the Kingdom of Spain; it was submitted that this court should not entertain this application as the Secretary of State was still considering the representations made under s.13(2); the application had prevented him considering the representations. I do not accept this argument; the significant delay by the Kingdom of Spain meant that the Secretary of State was not in a position to consider the representations. It is, in all the circumstances, just that this court should consider the application for habeas corpus.

The application was based on three main submissions:

The submissions were principally directed at the third request and in particular the description of the conduct alleged against the applicant contained in the request. It is therefore first necessary to set out the circumstances in which that request was made.

Article 12.2.b of the European Convention on Extradition (as set out in the 2001 Order) provided that the request for extradition had to be supported by:

“ a statement of the offences for which extradition is requested. The time and place of their commission, their legal descriptions and a reference to the relevant legal provisions shall be set out as accurately as possible”

In its reservations to the Convention, set out in Schedule 2 to the Order, the United Kingdom specified in respect of Article 12:

“The statement of offences for which extradition is requested must contain a description of the conduct which it is alleged constitutes the offence or offences for which the extradition is requested”

The description of the conduct which it is alleged constituted the offences had its origin in the way the proceedings in Spain had progressed.

The materials in the dossier (which as I have said at paragraph 10.ii) was examined on behalf of the applicant and then made available to the court through the evidence filed by the Kingdom of Spain in February 2004) can be summarised as providing the following account:

It was argued on the applicant’s behalf that the request which I have set out at paragraph 19.vi) was, in the light of the account from the dossier which I have summarised, seriously incomplete and inaccurate; it had created a misleading impression that the applicant had attempted to murder the policeman (or a passer-by) by placing an explosive artefact under his car. The description of the conduct required by Article 12 was not accurate or fair:

On that basis it was submitted that, if the request had properly described the conduct from the materials contained in the dossier, it would not have been possible to say that the description constituted offences under the law of the UK of attempting to cause an explosion of a nature likely to endanger life, attempting to cause really serious bodily injury to the policeman and attempted murder of the policeman. A true description of the conduct would have amounted to:

In the alternative, it was contended that on the basis of a proper description of the conduct of the applicant, the charges under UK law were not sustainable:

It is the obligation of a state making a request under the Convention, in the light of Article 12, to set out a description of the conduct which it is alleged constitutes the offence or offences for which extradition is requested. That requirement does not mean that the evidence has to be provided, because Article 3 of the Convention provides the state requesting extradition does not have to provide the courts of the state to which the request is directed with evidence and the court in that state does not have to be satisfied that there is sufficient evidence; as reflected in s 9(4) of the Act and paragraph 3 of the European Convention Extradition Order 2001 there is no requirement of evidential sufficiency. As the House of Lords made clear in re Evans [1994] 1WLR 1006 at 1013:

“The magistrate is not concerned with proof of the facts, the possibilities of other relevant facts, or the emergence of any defence; these are matters for trial.”

However the description of the conduct alleged must be made in the request and that description will be considered by the Secretary of State and the court in the decisions each has to make in respect of the offences under the law of the UK which are constituted by the conduct described. It is in my view very important that a state requesting extradition from the UK fairly and properly describes the conduct alleged, as the accuracy and fairness of the description plays such an important role in the decisions that have to be made by the Secretary of State and the Court in the UK. Scrutiny of the description of the conduct alleged to constitute the offence alleged, where as here a question is raised about its accuracy, is not an enquiry into evidential sufficiency; the court is not concerned to assess the quality or sufficiency of the evidence in support of the conduct alleged, but it is concerned, if materials are put before it which call into question the accuracy and fairness of the description, to see if the description of the conduct alleged is fair and accurate.

It is clear that in the light of the dossier held by the Court in Spain that the description in the request of the conduct which it is alleged constituted the offences was not a proper, accurate or fair description.

It did not make clear that the policeman was in his house and not near the car and that the device was not a timed device but one requiring a fuse to be lit. If the description had made that clear, (as it plainly should have done if the conduct alleged was to have been described properly and fairly), it would in my view have been quite impossible for anyone to conclude that the description could cover the offences under the law of the UK of attempted murder of the police officer or an attempt to cause him grievous bodily harm; a proper description of the device and of the place where the policeman was at the time as taken from the dossier would have shown that there was no basis for charging him with an offence under the law of the UK in respect of an attempt to kill the policeman or an attempt to do grievous bodily harm to the policeman.

However, although I have reached that view in relation to those two charges (charges 6 and 7), it seems to me that on, what I consider to be a fair description of the conduct alleged, the description would cover the charge of attempting to cause an explosion likely to endanger life. It is clear from the description of the device which it can be inferred the applicant was attempting to put under the policeman’s car that it could well have caused a fire and an explosion if it had worked successfully and as such was likely to endanger anyone’s life who happened to be in the vicinity of the car; plainly it could be anticipated that people might be in the vicinity of a car parked in a city street, even late at night in a Spanish city.

It was also contended on behalf of the applicant that the accusation made in respect of the Banco Santander was not made in good faith. The enquiries made on behalf of the applicant in Spain had provided some evidence that a number of the applicant’s co-accused had not named him as being involved and that some of them had complained of mistreatment. It was contended that this should have been disclosed in the request.

I consider this contention unsustainable. The matters relied on go to the evidence against the applicant and not to a description of the conduct.

On this basis the question arises as to whether the terms of s.11(3) are satisfied.

There is a short answer. It was submitted on behalf of the Kingdom of Spain that unless the applicant could establish that the accusation was not made in good faith in respect of all the charges, then the section was inapplicable; they relied upon an observation by Kennedy LJ in Re Debs (6 March 1998):

“The applicant’s challenge having failed both in relation to the 1987 and the 1988 offences, it is not necessary for me to decide what our order would have been if he had succeeded in relation to one of the offences and not in relation to the other, but as both counsel did address us in relation to that issue, it may be helpful if I say that having regard to the wording of s.11 (3) I am wholly satisfied that this court should only order discharge of persuaded in relation to “each of the offences in respect of which the applicant’s return is sought that… it would be unjust or oppressive to return him.” In other words there can be no order for discharge unless the challenge succeeds in relation to every offence. On the other hand, as Mr Lewis points out, it would be unthinkable for the Secretary of State when making an order for return pursuant to s.12 of the 1989 Act not to have regard to a finding of this court that in relation to one or more offences the requirements of s. 11(3) had been satisfied and the court had held that so far as those offences were concerned it would be unjust to order his return.”

I agree entirely with the observation of Kennedy LJ. The words of the subsection are clear; it provides that the finding must be in “relation to the offence, or each of them”. Therefore in this case, there would have to be a finding in respect of all offences, if the court was to order his return.

However, this does not mean that an applicant might not be protected if there was a lack of good faith in respect of some of the charges. As was pointed out in Debs, it would be unthinkable for the Secretary of State to order the return of a person for an offence in respect of which this court considered that there had been bad faith.

As there can be no question of the accusation in the request in respect of the Banco Santander not being made in good faith on the basis of the conclusion I have reached, the terms of s. 11(3) cannot be satisfied. However, in the light of the expectation that the Secretary of State would not give effect to a removal on charges where the accusation was not made in good faith in the interests of justice, I will express my view on whether the accusation in respect of the third request was made in good faith in the interests of justice.

It was submitted on behalf of the Kingdom of Spain that the accusation was not made in bad faith because the essence of the complaint made by the applicant related to the nature of the offences charged against him under the law of the UK. The decision in respect of the charges was made by the Secretary of State under s. 7(5) and there was no evidence that the Secretary of State had acted in any other way than in good faith.

I am entirely satisfied that the Secretary of State in giving the authority to proceed in respect of charges 5, 6 and 7 was acting entirely properly on the basis of the conduct described in the request. Indeed, it was not argued on behalf of the applicant that there was any lack of good faith on the part of the Secretary of State. The argument developed by the applicant in response to the contention of the Kingdom of Spain was that those responsible for framing the request on behalf of the Kingdom of Spain had acted in bad faith in framing the request and maintaining their position in respect of that request when its deficiencies were pointed out. It was submitted that the accusation comprised of the whole of the process of seeking the return of the applicant, including conduct after the request had been made.

In approaching the question of determining whether there has been a lack of good faith under 11(3), it is necessary to give that subsection a broad construction. In Osman (transcript 28 February 1992), Woolf LJ expressed the approach in these terms:

“… in my judgment, the term “good faith” has to be given a reasonably generous interpretation so that if the proceedings were brought for a collateral purpose, or with an improper motive and not for the purpose of achieving the proper administration of justice, they would not be regarded as complying with the statutory requirement. Likewise the accusations would not be made in good faith and in the interests of justice of the prosecution deliberately manipulates or misuses the process of the court to deprive the defendant of a protection to which he is entitled by law.”

We were referred principally to two decisions of this court on the meaning of “accusation”. First, in an earlier Osman (20 June 1990) decision, where it was argued that there was nondisclosure by the prosecuting authorities in Hong Kong and that this amounted to bad faith, Leggatt LJ concluded that the accusation:

“ related to the allegations made in this instance by the Government of Hong Kong.. The accusation may be epitomised by the charges that have been brought against this applicant, but it is not confined to them. The term no doubt extends to supporting evidence, and it may well render relevant the motivation of the accusing government.”

Secondly and more recently in R(Saifi)v Governor of Brixton Prison [2001] 1 WLR 1134 where the court decided, having regard to the evidence supporting the request and the circumstances surrounding its use, that the accusation had not been made in good faith in the interests of justice, Rose LJ giving the judgment of the court, stated at paragraph 63 page 1157:

“We do not consider that the ordinary meaning of the word “accusation” is a request, notwithstanding that the nexus between accusation and request may be obvious. Such a nexus appears from the terms of s.11(3) of the Act because the subsection refers in turn to the following: (1) “the offence, or each of the offences”; (2) the request, namely “in respect of which the applicant’s return is sought”;(3) “the accusation against him”. But the words of the subsection are against the accusation meaning the request because 3(c) refers to “good faith in the interests of justice” in relation to the accusation not the request. A request for extradition is not in character an accusation. It is an exercise in sovereign power pursuant to a treaty in respect of an alleged offence. Whether or not it could ever be regarded as an “accusation” for the purposes of an allegation that such an exercise of power was not in good faith, does not arise in this case. But we are satisfied that even if it could be so regarded, that is not the limit of the meaning of accusation nor the most obvious reflection of what is referred to in the subsection. Accusation is broad enough to encompass the accusation of a witness or witnesses and the offence charged in consequence. By making a request for extradition, reliance is placed on the evidence of any witness and the offence disclosed thereby. The protection afforded by the subsection would be rendered “sterile”, …, if the issue of bad faith could be divorced from the underlying facts supporting the request. Certainly Sedley J in Re Murat Calis (19 November 1993) examined the good faith of the complainant to determine the issue under s11(3). No one appears to have argued to the contrary. Having heard such argument, we reject it.”

I agree with this broad approach; the term “accusation” is a broad term which encompasses the evidence of the witnesses and the process in the requesting state prior to making the request. But should it be limited so that it does not encompass the description of the conduct which is alleged to constitute the offence as required by Article 12? That description is a summary of the allegations made and I cannot see why it is not within the ordinary meaning of the word “accusation”. Indeed in Osman, Woolf LJ referred to an accusation not being made in good faith if the prosecution deliberately misused or manipulated the processes of the court. In my judgment therefore a description of the conduct in the request which was deliberately exaggerated would form part of the accusation for the purposes of determining whether or not the accusation had been made in good faith.

However, although it is not necessary for me to express a concluded view on this point in the light of the facts of this application, it does not seem to me that conduct subsequent to the lodging of the request with the Secretary of State by those on behalf of the requesting state can amount to the accusation, though it may form powerful evidence of the fact that the allegation was not made in good faith; in R (Asilturk) v Government of Turkey [2002]EWCA 2326 (Admin), the court did refer to the subsequent conduct of the requesting state in failing to provide material to rebut allegations made (see paragraph 24); but in doing so, it was considering the failure in the context of the evidence in relation to the case made by the applicant and not any independent action thereafter.

In my view, even giving the subsection a generous construction as suggested in Osman, I do not consider that it can be said the accusation was not made in good faith. I have no doubt that those framing the description of the conduct alleged against the applicant for the purposes did not have proper regard to the requirements of Article 12. That is most regrettable as, given the fact there is no enquiry into evidential sufficiency, it is of the utmost importance that the description of the conduct alleged is framed with the greatest care; it is an essential protection to the person whose extradition is sought. It is to be expected that the description will be framed with very considerable care and expressed in terms in which it can be easily understood by the court in the state to which the request is addressed.

But although there was a lack of care on the part of those framing the request, I do not consider that it can be inferred that those responsible were deliberately exaggerating the position or otherwise failing to act in good faith when drafting the description of the conduct in the request. Indeed, their subsequent behaviour is wholly inconsistent with a lack of good faith. It is important to note that they made the Court dossier available to the applicant’s lawyer in Spain and have produced it to this Court; they have been entirely open. There is nothing to suggest that in continuing to maintain their position in the light of the new materials which the Spanish authorities themselves made available that they have acted other than in accordance with the advice of the CPS and counsel.

I am therefore unable to conclude in respect of charges 6 and 7 that there was a lack of good faith.

However, as I have set out at paragraph 27, it is clear (on a proper description of the conduct alleged) that the offences under the law of the UK of attempted murder of the police officer and attempt to cause serious bodily injury to the police officer cannot be made out. Although the District Judge had determined that the conduct described amounted to the crimes set out in charges 6 and 7, in my judgment that determination cannot stand in the light of the wrong description contained in the request.

It is right that on this basis this Court should at once take the step in the exercise of its discretion (which all parties accepted it should consider exercising) of discharging the applicant on charges 6 and 7, because, if a proper description had been provided to the Secretary of State or to the District Judge, the applicant would not have been committed on charges 6 and 7. It would be otiose and unnecessary to remit the matter to the District Judge.

To that extent the application succeeds, but the application fails as regards charges 1-3 and 5.

I agree