Secret pay deals give top police thousands extra

A SCOTS couple who have four children face the possibility of prison and extradition to America next month despite having not stood trial in a court for the crime of which they are accused.

In a case that highlights the controversial impact on British justice of the post-9/11 extradition treaty signed between the UK and the US, Brian and Kerry Howes of Bo’ness, West Lothian, are facing extradition to America on allegations of supplying chemicals over the internet in a conspiracy to produce crystal meth.

The couple, who deny the charges, face a preliminary extradition hearing at the high court in Edinburgh on January 14. They fear they will be remanded in custody and their four children will go into care ahead of their removal to America.

Under the terms of the treaty, the US can apply to have someone extradited without any trial taking place in the UK. On signing the Extradition Act 2003, the then home secretary, David Blunkett, removed the obligation on US law enforcement agencies to present British courts with prima facie evidence of criminality. Thanks to the Royal Prerogative, the treaty became law without parliamentary debate, which means that the US must only provide “written information” relating to an alleged wrongdoing.

Crystal meth – a form of amphetamine that has been crystallised so that it can be smoked – is a highly dangerous and addictive drug that has pervaded the poorer sections of American society for the past 20 years. Pseudoephedrine, iodine and red phosphorus are the three main chemicals required to make the drug, which produces a high that may last 12 hours or more.

Brian Howes – an amateur pyrotechnician who sold chemicals in the UK legally – denies that he and his wife broke the law by selling iodine and red phosphorus through their internet business. But federal prosecutors at the Drug Enforcement Agency in Arizona allege they were part of a drugs racket supplying a global network of meth labs in the United States, Europe, Australia, New Zealand, and other countries.

Howes said their children will have to go into care if they are remanded in custody and that his wife, Kerry, is 23 weeks pregnant and faces giving birth to their fifth child on a chain gang in Arizona. “We just want a fair trial in the UK but that is not going to happen as the extradition treaty replaces the word evidence’ with information’ – and information is accepted as true, that is the wording of the act. We have no faith in these proceedings as the files from our previous solicitors have not arrived with our current solicitors after three months, so no defence has been able to be mounted.

“In England, people are bailed right up to the House of Lords and then the European Court of Human Rights (ECHR), but we will be remanded during or after the high court hearing in Edinburgh. We need help with a fund to fight in the ECHR and then we may have a chance of bail. The Scottish legal aid system does not pay for this – in England it is even afforded to people who have confessed to a crime.”

While a passionate debate raged across Britain about the 42-day limit for terror suspects, Brian, 44, and, Kerry-Ann, 30, previously spent 214 days on remand in prison, a detention that lasted five times longer than the proposed terror suspect threshold passed by the House of Commons in June but recently rejected by the House of Lords.

People can be held on remand indefinitely under the extradition treaty.

John Sweeney

For Suzanne Holdsworth, the long, dark December nights were always the worst. But then, every minute she spent incarcerated in Low Newton prison, County Durham, was a living nightmare.

As the monotonous weeks and months stretched on, she would often sit and wonder how her partner and two daughters were coping without her.

But it was at night, in her sparse, cramped cell, that the 38-year-old mother would lie awake, weeping silent lonely tears and wondering if she would ever spend another Christmas and New Year with her family again.

‘Everybody who’s got children and who’s in prison knows that every day is hell, but birthdays, Christmas Day and New Year’s Eve are the worst days of your life,’ she says. ‘Everyone else is having a happy time with their families, but you are locked inside.

‘You can’t have visits on Christmas Day: you have phone calls, but only at certain times of the day. All that me and the other girls wanted to do was talk to our children all day.

‘But there’s nothing you can do but close the door behind you and cry and cry and cry.’

Were Suzanne a cold-blooded killer, or even a part-time petty criminal, it might be hard to feel any sympathy.

But the fact is she was serving a life sentence for a crime she did not commit.

In 2005, she was convicted of the murder of two-year-old Kyle Fisher, the son of a 19-year-old single mother who had left him in her charge. Suzanne has always denied harming the little boy in her care.

She was jailed for life for Kyle’s murder. In May this year, however, the Court of Appeal ruled that her conviction was unsafe after new medical evidence emerged suggesting the baby may have died from an epileptic seizure. A retrial was ordered, and at the new trial a jury unanimously found Suzanne not guilty.

Just eight days ago, on December 18, Suzanne was freed. She stood, hand-in-hand with her partner Lee Spencer, on the steps of Teesside Crown Court, enjoying her first taste of freedom in more than 1,000 days.

She is now home, spending Christmas and New Year with Lee and daughters Lesley, 20, and Jamie-Leigh, 14, as well as her new grandson, Matthew.

She falters as she speaks: ‘Did I ever think this day would come? No. I thought I would be in prison forever.’

An emotional Suzanne Holdsworth leaves Teeside Crown Court after being found not guilty in her retrial for the murder of Kyle Fisher

At the time of Kyle’s death, police investigating accused Suzanne, from Seacroft, Leeds, of repeatedly smashing his head against a banister in a fit of rage.

‘I never harmed him, I loved him,’ she said, and certainly it left family and friends bewildered that the woman they called a modern-day Mary Poppins could have any connection to such horror.

But Cleveland police were adamant: Suzanne Holdsworth, a former supermarket shelf-stacker, was a brazen liar and a baby killer.

Only something didn’t quite add up. If there was a smashing of Kyle’s head into a wooden banister, why was there no sign of impact? No blood, no hair, no traces of Kyle’s skin anywhere in Suzanne’s house. Why had no DNA test  -  which could have cleared Suzanne in the first instance  -  ever been carried out?

‘It was horrendous’

Kyle also suffered from myriad problems. First, heterotopia  -  brain matter in the wrong place, which can cause fits; second, megalencephaly  -  an abnormally big brain, which can cause fits; third, hydrocephaly  -  water on the brain, which can also cause fits; fourth, subdural haemorrhage, which can also cause fits.

Fifth, Kyle had been accidentally stabbed in the brain, in someone else’s care, a year before he died  -  a terrible injury that caused his eye to droop as his damaged brain squeezed down ‘like toothpaste through the tube’. It was pressing down through a hole in his eye socket onto the back of his eye.

Stabbing, squeezing and scarring of the brain can cause fits, too. And fits can kill.

These five brain disorders, any one of which could trigger an epileptic fit, eluded Cleveland Police’s ‘relentless investigation’.

So when Suzanne told the first trial jury in 2005 that Kyle had suffered from a fit, no one believed her.

‘I remember the verdict coming,’ says Suzanne, who even now is traumatised when talking about her ordeal. ‘I remember seeing my partner Lee. Next minute, I was in a prison cell with just a bed and a CCTV camera looking at me. It was horrendous. Having no freedom, having people tell you what to do all the time.

Clare Fisher, Kyle’s mum, had gone out clubbing and left her son in Suzanne’s care.

‘Missing my two children was the most terrible thing, and to begin with some of the other prisoners called me names: nonce, child killer. It didn’t matter that I knew I’d done nothing wrong, no one can ever understand what that feeling is like  -  to be locked away in such a dreadful place and for murder no less, when you have done nothing wrong.’

Today, as they prepare to welcome in 2009, she and Lee, a lorry driver, want to put the past behind them. But they are angry and bitter at how such a grotesque miscarriage of justice could tear their family apart for over four years.

I first reported on the possibility that Suzanne was in jail thanks to a grotesque miscarriage of justice a year ago for BBC2’s Newsnight.

Since 2001, I have helped free or clear the names of eight people who have been wrongly accused of child murder and manslaughter, starting with cot death mothers Sally Clark, who died of grief last year, Angela Cannings and Donna Anthony.

All eight stories are double tragedies: the death of a child compounded by the false conviction of an innocent parent or carer. In seven of the eight cases, police and the courts were misled by rogue experts such as Professor Sir Roy Meadow or disputed scientific theories such as ’shaken baby syndrome’.

I was approached about Suzanne’s case by her lawyer, whom I had worked with on previous occasions and court cases. The minute he showed me all the evidence  -  NOT taken into account by police officers working on the original murder inquiry  -  it seemed obvious that this was one of the worst miscarriages of justice I had ever encountered.

And it was also deeply troubling because it raises questions about the thoroughness of the original inquiry carried out by Cleveland Police.

It was led by Detective Superintendent Tony Hutchinson, who has since retired.

Hutchinson was Cleveland’s bullet-headed super-cop, leading dozens of murder inquiries, who shot to international fame when he nailed missing ‘canoe man’ John Darwin.

Hutchinson maintained after Suzanne’s first trial that she ‘must have known very quickly that she had inflicted serious, if not fatal, injuries, and while she called for medical assistance’  -  the 999 call  -  ’she also began to manipulate the situation. She very calmly applied her mind as to how she would explain the injury to the authorities.’

Could she really be such a calculating killer, though? Naturally, Suzanne’s own version of events  -  and the 999 call itself, which was broadcast last week for the first time  -  does not appear to suggest it.

It was late evening on July 21, 2004, when Suzanne was babysitting Kyle because his mother Clare Fisher had gone out clubbing. Suzanne’s daughters were with Lee, who was working abroad.

Jon Taylor, Kyle’s father, has said he never believed Suzanne was responsible for his son’s murder

Suzanne explains the events of that terrible night: ‘Clare came over with Kyle, then went out to a nightclub with a friend. Kyle had his yoghurt and juice and we sat together, watching the reality show Big Brother on TV.

‘We were having a lovely evening and then I must have yawned, because Kyle said: “Suzie tired”. Then, as he shuffled to get off the sofa, his head went down, in a sort of flopping motion. I moved the coffee table out of the way and his head fell to the floor. I put him down on the sofa and threw water on him, the shock of it should have woken him because he hated water. Nothing. I dialled 999.’

A miscarriage of justice

The emergency call was played in court at Suzanne’s trial. In it, clearly panicking, Suzanne describes Kyle as going ‘all floppy, he’s not breathing, his eyes are rolling and everything’  -  a classic description of an epileptic fit.

Suzanne is screaming and sobbing so much the operator cannot understand what she is saying, hard to reconcile with Hutchinson’s concept of a calm, manipulative mind at work.

Then there is the so-called murder weapon. Andrew Robertson QC, prosecuting, alleged at trial and retrial that Suzanne had smashed Kyle’s head against a banister at her house. But nothing was visible on the banister  -  no dent, no blood, nothing.

At the first trial, Judge Grigson said that the evidence presented by the Crown’s forensic expert was of ‘breathtaking banality’.

At the second trial, the jury pointedly asked whether Kyle’s DNA was on the banister. The answer? No tests had been carried out.

Lee, Suzanne’s partner, shakes his head in disbelief, still unable to fathom why the police didn’t carry out tests on the banister.

‘They didn’t do a DNA test on the alleged weapon. I’m no Sherlock Holmes, but what kind of investigation was that?’ he says. ‘DNA profiling can distinguish between snot, tears, saliva, hair follicles, scalp. Technology can distinguish between all of them, but no DNA test was done.’

Then there is the question of Kyle’s general well-being. Cleveland Police said that Kyle was an essentially healthy boy whom Suzanne had murdered.

‘They told me again and again, “You did it, you did it”,’ says Suzanne. ‘They were so wrong. Look at his drooping eye.’

On March, 15, 2003  -  more than a year before he died  -  Kyle was taken to hospital with an injury to that eye.

On that very day, Lee had noticed Clare Fisher cradling her injured son outside her house in Troutpool Close, Hartlepool. She explained that he had fallen from his pram onto a spike from a fireguard. His eye socket was filling with blood.

It was patched up, but months later when Kyle’s eye began to droop, he was taken back to the James Cook hospital in Hartlepool, and in February 2004 he was seen by face surgeon Professor Brian Avery and brain surgeon Sid Marks.

They carried out brain scans, found a hole in the eye socket through which the brain was squeezing ‘like toothpaste through the tube’ and planned to operate on him. This should have been crucial evidence in the investigation. But Cleveland Police never took statements from the two surgeons.

Suzanne is livid about what appears to be a gross lapse of normal police procedure: ‘The drooping eye should have been investigated properly by the police,’ she says.

‘Kyle died of a head injury. The droopy eye was a head injury.’

What angered Suzanne and Lee most, though, was that her own defence team didn’t call a single defence expert at her first trial.

Finally, a free woman

After Suzanne was convicted, Lee  -  who never doubted her innocence  -  found a new defence solicitor, Campbell Malone. He helped free wrongly convicted Stefan Kiszko, who spent 16 years in prison for the murder of schoolgirl Lesley Molseed.

Malone contacted me and we set about gathering the evidence that would help clear Suzanne’s name. Malone found three experts on human brain disorders.

Dr Waney Squier, a neuropathologist at Oxford University, was the first to identify that Kyle was in danger of suffering fits from his brain abnormalities and his injury, and the conviction against Suzanne could be a miscarriage of justice.

Last December, while Suzanne was still in prison, Dr Squier told BBC’s Newsnight programme that Kyle had ‘abnormalities in his brain that would predispose him to having seizures. And seizures can kill.’

In her view it was ‘extremely unlikely’ Suzanne had killed Kyle.

After the second trial, expert for the defence Bill Dobyns, professor of neurology, paediatrics and genetics at Chicago University, told me: ‘It’s almost embarrassing the number of medical factors they (the police and prosecution) first completely missed, and when I and other defence witnesses pointed out, they then ignored.’

On top of this, there is also the ordinary evidence of Suzanne’s character. Trusted by friends and family as a babysitter, Suzanne was said to be ‘very good with children’.

Even Kyle’s father  -  who had long since split with Kyle’s mother  -  believed her to be innocent.

But the same could not be said for the character of Kyle’s own mother. One woman juror at the second trial was seen holding her hand in front of her mouth in horror as the court watched a video of Clare Fisher’s house: clothes strewn about, objects were lying around, and Kyle’s bedroom looked like a junkyard, with a broken cot on the floor.

Judge Grigson at the first trial told the jury that the house had been described as a ’s***-pit’.

Clare even admitted at the second trial that she had been a negligent, ‘home-alone’ mother.

Four nights before he died, she had locked Kyle in a bedroom by blocking the door with a broom handle and tying it with a belt, before going out clubbing.

A neighbour heard Kyle crying and called the police. Suzanne only realised what had happened afterwards, but says Clare asked her to cover up and say she had been with Kyle that night to stop Clare getting into trouble. Suzanne agreed to help her friend and neighbour.

‘I was wrong to cover up for Clare,’ says Suzanne. ‘I told a white lie  -  but the prosecution made it much darker. I ended up paying for it for three years inside.’

Another issue at both trials was unexplained bruising on Kyle’s head. Both babysitter and mother deny causing the bruising.

Another expert, Professor Renzo Guerrini from the University of Florence, gave evidence that it could have been caused by Kyle himself, banging his own head in an unseen fit. And if the bruising had been caused by one of the two women, then which one?

As Suzanne adjusts to life back with her family, Cleveland Police have announced they will not be apologising for what they describe as a ‘thorough, diligent and professional investigation’.

Chief Constable Sean Price says: ‘I can’t criticise my officers for doing their job. The reason we have jury trials is so they can decide when they have heard all the facts.

‘I don’t really have any intention of speaking to Suzanne Holdsworth, and she probably just wants to be allowed to get on with things now.’

Suzanne and Lee are naturally disappointed, but not surprised, at the police’s reaction.

‘I spent three years in prison for a murder that didn’t happen so the chief constable is wrong,’ says Suzanne.

‘I’ll never forget Kyle. I loved him very much, but it is utterly wrong that I have had to suffer, too, for something I haven’t done. Yes, I’m thankful to be free, but an apology is something I would like very much.’

THE Chief Constable of Cleveland Police last night defended his force for taking the Suzanne Holdsworth case to trial.

Sean Price spoke out after the BBC’s Newsnight programme on Thursday night criticised the people working on the case of the Hartlepool babysitter.

Miss Holdsworth was cleared of murdering twoyear- old Kyle Fisher at her home in 2004, by a jury at Teesside Crown Court.

It was the second time she had been tried for his murder after the Appeal Court overturned her first conviction when her legal team proved they had new medical evidence showing the toddler had brain abnormalities.

Mr Price said: “Cleveland Police were a little disappointed at the one-sided nature of the presentation in the programme. There were a number of issues we spoke to Newsnight about earlier in the week.

Nonetheless, they went ahead unchanged.

“In order to get to court, we have to go through the Crown Prosecution Service.

We gather the evidence, we don’t decide if it should go to court.

“Newsnight said we did not look at pre-existing conditions, that is completely untrue. The Home Office pathologist works out the cause of death and anything that may have caused it.

“Our inquiries go from there.

“The pathologist was very clear with the injuries and he had full knowledge of his medical records and pre-existing conditions. It was a very tragic death.”

Mother-of-two Miss Holdsworth was accused of repeatedly ramming Kyle’s head into the banister at her home in Mill Close, Hartlepool.

However, she always maintained that she did not harm him and said he appeared to have an epileptic fit before falling unconscious.

Cleveland Police say the pathologist died before the appeal hearing and the retrial, so for that reason they could not contradict the evidence given by experts by the defence.

Mr Price said: “Medical evidence was the key part of the first trial. We investigated this case like we would any other.

“I can’t criticise my officers for doing their job. The reason we have jury trials is so they can decide when they have heard all the facts.”

Mr Price said there were no plans by Cleveland Police to reopen the case at the present time.

He said he could understand if people had concerns, but that they would continue to investigate cases properly.

He said that Miss Holdsworth would not be getting an apology.

“I don’t really have any intention of speaking to Suzanne Holdsworth and she probably just wants to be allowed to get on with things now,” he said.

A spokeswoman for the BBC said: “We gave Cleveland Police the opportunity to be interviewed or give a statement and this was reflected in the piece.”

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Unfortunately corruption is part of the Cleveland Police job.

Suzanne Holdsworth always denied murdering the toddler

A babysitter who spent three years in prison for the murder of a neighbour’s two-year-old son has been found not guilty at a retrial.

Suzanne Holdsworth had been accused of banging Kyle Fisher’s head against a banister in Hartlepool in July 2004.

Ms Holdsworth, 38, now of Boggart Hill Drive, Leeds, was convicted in 2005.

However, doubts were raised about her conviction by journalist John Sweeney in a report for BBC Newsnight and it was quashed in May.

The jury at the retrial at Teesside Crown Court deliberated for two days before returning the not guilty verdict.

The mother-of-two was originally convicted of the murder in March 2005 and jailed for life.

Kyle: “Unlikely to have suffered massive blow to head” Freed babysitter’s jail torment

She was released from prison earlier this year after serving three years.

A spokesman for Cleveland Police said the force would not be reopening the case and would not be apologising to Ms Holdsworth, while the CPS defended the police’s right to bring the case to court a second time.

During Ms Holdsworth’s original trial she was accused of repeatedly banging Kyle’s head against a wooden banister with as much force as a 60mph crash after losing her temper.

The Newsnight programme interviewed leading neuro-pathologist Dr Wainey Squier who later gave evidence for the defence in the retrial.

She said it was “unlikely” Kyle had suffered a massive blow to the head.

During the retrial the court heard the youngster had bruising and marks to his head but Ms Holdsworth’s defence maintained they were inflicted the previous day – blaming Kyle’s mother – and coupled with his brain abnormalities, led to the unexpected fit.

‘Terrible experience’

Professor Renzo Guerrini, a paediatric neurologist at the University of Florence Children’s Hospital, said: “In my opinion there is compelling evidence he had some head injury before this night.

“This might have been trivial but sufficient enough to produce bleeding on the brain which triggered the epileptic seizure which because of Kyle’s brain condition was possibly prolonged.”

Standing next to Ms Holdsworth outside the court on Thursday, her partner Lee Spencer said: “This case has always been about Kyle, who was a loving child, a little boy, who Suzanne’s always loved and helped look after.

“We know his family deeply loved him and miss him.

“Sadly we now know that he had some bad medical features that led to his sudden collapse and death.

“We hope that this knowledge will help his family come to terms with his death.

“This has been a terrible experience for Suzanne and our family and we now just want to try and pick up the pieces of our lives together.”

Next you’ll begin to notice the new features subtly sprinkled through the new interface: the new dashboard that you can arrange with drag and drop to put the things most important to you on top, QuickPress, comment threading, paging, and the ability to reply to comments from your dashboard, the ability to install any plugin directly from WordPress.org with a single click, and sticky posts.

Digging in further you might notice that every screen is customizable. Let’s say you never care about author on your post listings — just click “Screen Options” and uncheck it and it’s instantly gone from the page. The same for any module on the dashboard or write screen. If your screen is narrow and the menu is taking up too much horizontal room, click the arrow to minimize it to be icon-only, and then go to the write page and drag and drop everything from the right column into the main one, so your posting area is full-screen. (For example I like hiding everything except categories, tags, and publish. I put categories and tags on the right, and publish under the post box.)

For a visual introduction to what 2.7 is, check out this video (available in HD, and full screen):

It’s all about you. It’s the next generation of WordPress, which is why we’ve bestowed it with the honor of being named for John Coltrane. And you can download it today.

Last, but certainly not least, this may be the last time you ever have to manually upgrade WordPress again. We heard how tired you were of doing upgrades for yourself and your friends, so now WordPress includes a built-in upgrade that will automatically notify you of new releases, and when you’re ready it will download them, install them, and upgrade your blog with a single click.

(As with any interface change it may take a little bit of time to acclimate yourself but soon you’ll find yourself whizzing through the screens. Even people who have hated it at first tell us after a few days they wonder how they got by before.)

The Story Behind 2.7

The real reason Coltrane is such a huge leap forward is because the community was so involved with every step of the process. Over 150 people contributed code directly to the release, our highest ever, with many tens of thousands more participating in the polls, surveys, tests, mailing lists, and other feedback mechanisms the WordPress dev team used in putting this release together.

For some of the back story in the development of 2.7, check out these blog posts (thanks to WeblogToolsCollection for the list):

• Usability Testing Report: 2.5 and CrazyHorse
• The New 2.7 Dashboard
• The Visual Design of 2.7
• WordPress 2.7 wireframes
• Comprehensive Codex Article on WordPress 2.7
• WordPress Development Updates from Jane Wells
• WordPress Usability Testing in New York
• WordPress 2.7 UI Configurability from Ryan Boren
• Customizable Post Editing Screen from Mark Jaquith
• WordPress 2.7 Navigation Survey from Jane Wells
• Shortcuts/Favorites Menu from Jane Wells
• CrazyHorse Presentation at WordCamp SF
• WordPress 2.7 Walkthrough by Matt
• WordPress 2.7 and beyond from Matt at WordCamp Utah

This was interesting to us, a blogging software release we actually blogged about, but the process was hugely informative. Prior to its release today Crazyhorse and 2.7 had been tested by tens of thousands of people on their blogs, hundreds of thousands of you count .com. The volume of feedback was so high that we decided to push back the release date a month to take time to incorporate it all and do more revisions based on what you guys said.

For those of you wondering why we didn’t call this release 3.0, it’s because we abhor version number inflation. 3.0 will just be the next release after 2.9. The major features in new point releases approach also works well for products like OS X, with huge changes between a 10.3 and 10.4.

The Future

Those of you following along at home might have noticed this was our second major redesign of WordPress this year. Whoa nelly! While that wasn’t ideal, and I especially sympathize with those of you creating books or tutorials around WordPress, there’s good news. The changes to WordPress in 2.5 and 2.7 were necessary for us to break free of much of the legacy cruft and interface bloat that had built up over the years (gradually) and more importantly provide us with a UI framework and interface language we can use at the foundation to build tomorrow’s WordPress on, to express ideas we haven’t been able to before. So at the end of 2009 I expect, interface-wise, WordPress to look largely the same as it does now.

That said, we couldn’t be more excited about the future with regards to features. Now that we’ve cleared out more basic things, we are looking forward in the coming year to really tackling media handling including audio and video, better tools for plugin and theme developers, widgets, theme updates, more integrated and contextual help, and easier integration with projects like BuddyPress and bbPress.

Thank Yous

We would like to take a moment to thank the following WordPress.org users for being a part of 2.7: Verena Segert, Ben Dunkle, 082net, _ck_, Aaron Brazell, Aaron Campbell, Aaron Harp, aaron_guitar, abackstrom, Alex Rabe, Alex Shiels, anderswc, andr, Andrew Ozz, andy, Andy Peatling, Austin Matzko, axelseaa, bendalton, Benedict Eastaugh, Betsy Kimak, Björn Wijers, bobrik, brianwhite, bubel, Byrne Reese, caesarsgrunt, capripot, Casey Bisson, Charles E. Frees-Melvin, Chris Johnston, codestyling, corischlegel, count_0, Daniel Jalkut, Daniel Torreblanca, David McFarlane, dbuser123, Demetris Kikizas, Dion Hulse, docwhat, Donncha O Caoimh, Doug Stewart, Dougal Campbell, dsader, dtsn, dwc, g30rg3x, guillep2k, Hailin Wu, Hans Engel, Jacob Santos, Jamie Rumbelow, Jan Brasna, Jane Wells, Jean-LucfromBrussels, Jennifer Hodgdon, Jeremy Clarke, Jérémie Bresson, jick, Joe Taiabjee, John Blackbourn, John Conners, John Lamansky, johnhennmacc, Joost de Valk, Joseph Scott, kashani, Kim Parsell, Lloyd Budd, Lutz Schröer, Malaiac, Mark Jaquith, Mark Steel, Matt Freedman, Matt Mullenweg, Matt Thomas, matthewh84, mattyrob, mcs_trekkie, Michael Adams, Michael Hampton, MichaelH, mictasm, Mike Schinkel, msi08, msw0418, mtekk, Nick Momrik, Nikolay Bachiyski, Noel Jackson, Otto, Ozh, paddya, paul, pedrop, pishmishy, Po0ky, RanYanivHartstein, raychampagne, rdworth, reinkim, rickoman, rm53, rnt, Robert Accettura, roganty, Ryan Boren, Ryan McCue, Sam Bauers, Sam_a, schiller, Scott Houst, sekundek, Shane, Simek, Simon Wheatley, sivel, st_falcon, stefano, strider72, tai, takayukister, techcookies, Terragg, thinlight, tott, Trevor Fitzgerald, tschai, Txanny, Valiallah (Mani) Monajjemi, Viper007Bond, Vladimir Kolesnikov, wasp, wet, wfrantz, x11tech, xknown, xorax, ydekproductions, yoavf, yonosoytu, yoshi, zedlander

It’s not quite that time yet, but we’re as close as we’ve ever been, hence the immediate availability of 2.7 Release Candidate 2, or RC2 for short.

Of course if you were already testing 2.7, you can just use the built-in core updater (Tools > Upgrade) to download and install RC2 for you (and later upgrade you to the final release when it’s available) but if not you can use the download link above.

We feel this release is pretty much exactly what we’re going to ship as 2.7, barring any final bugs or polish tweaks that you report or we find.

An angry politics/davidcameron”>David Cameron condemned the arrest as “Stalinesque” after Green was taken into custody at around 1.50pm in his Ashford constituency and escorted to a central London police station. At 8.30pm tonight, when the Conservatives released details of the arrest, Green was still being questioned.

In all nine counter-terrorism officers conducted simultaneous searches on three locations: Green’s constituency office, his office in the House of Commons and his London home. The MP was arrested under a common law of “aiding, abetting, counselling or procuring misconduct in public office”.

The police action followed the arrest ten days ago of a government whistleblower who had leaked four documents to Green who then passed them to the press. They were:

• A home office memo, which appeared in the Daily Mail on 13 November 2007, which showed that the home secretary Jacqui Smith had been warned four months earlier that thousands of illegal immigrants had been cleared to work in sensitive Whitehall security jobs. The memo emerged days after the Sunday Mirror disclosed that at least 5,000 illegal immigrants had been cleared by the Security Industry Authority to work sensitive Whitehall locations.

• An email to the then home office minister Liam Byrne in February this year which showed that he was informed about an illegal Brazillian immigrant who faked an identity pass to workin parliament. The memo, which was published in the Sunday Telegraph on 10 February this year, said Byrne was informed on 31 January. Byrne was accused of a cover up.

• A list of Labour MPs who were likely yo rebel against the government’s plans to detain terror suspects for up t0 42 days without charge. This appeared in the Sunday Times on 20 April 2008.

• A letter from Jacqui Smith to Gordon Brown warning that a recession would lead to a rise in crime. This appeared in wll papers, including the Guardian, on 1 September this year.

In a statement, the Conservative Party said: “We can confirm that Damian Green was arrested earlier today in connection with his work as opposition spokesman for immigration. Mr Green was arrested in Kent and taken for questioning at a central London police station. Officers from the Metropolitan Police also entered the House of Commons to search Mr Green’s parliamentary office. His home and constituency office were also searched.

“As shadow immigration minister, Mr Green has, on a number of occasions, legitimately revealed information which the Home Office chose not to make public. “Disclosure of this information was manifestly in the public interest. Mr Green denies any wrongdoing and stands by his actions.”

In a statement, the Metropolitan Police said: “A 52-year-old man was arrested in Kent shortly before 1400 today. He has been taken to a central London police station where he will be interviewed by detectives.

“The man has been arrested on suspicion of conspiring to commit misconduct in a public office and aiding and abetting, counselling or procuring misconduct in a public office. Search warrants have been executed at: a residential address in Kent; a residential address in west London; a business premises in Kent; a business premises in central London. The search at the residential address in west London has concluded – the other searches continue.”

Tory sources said that Cameron, who was kept fully informed, was furious.

They described the move as unprecedented and noted that police searched Green’s parliamentary office on the day that the commons rose for a mini recess. This would have made it easier to enter the commons.

Cameron was convinced that such a move would have to be approved at the highest level. The Guardian understands that the prime minister found out tonight.

A Tory source said: “David Cameron is angry. This is Stalinesque. He is fully supportive of Damian. We are not suggesting that MPs are above the law. But we do note that the house of commons was not sitting when MPs coulod not raise points of order in the chamber. It is odd that it happened when the house is not sitting.”

A MUM who faces up to 97 years in a US jail for drug trafficking could be forced to give birth behind bars.

Kerry Ann Howes and her husband Brian are facing extradition to Arizona to stand trial on charges of being behind a £40million crystal meth ring.

Now Kerry Ann, 30, from Bo’ness, West Lothian, has revealed she is four months pregnant and may have to give birth in a jail labelled the worst in the US.

Maricopa County Jail consists of rows of tents in the desert and inmates work in chain gangs in 130F heat.

The couple have also been told that if their appeal against extradition fails, their two youngest daughters will be put up for adoption.

The couple have four children, two-year-old Leela, Ellie, six, Bethaney, nine, and Dennie, 11.

The charges stem from 45-year-old Brian’s internet chemical sales business.

The chemicals were allegedly being used in America to make highly addictive crystal meth.

And in January last year, Brian’s premises in Grangemouth were raided.

The couple spent nine months in jail on remand before being freed last year.

Kerry Ann said: “It’s destroyed our family. Our kids don’t feel safe anymore.

“They get up in the night to make sure we are still there.”

Brian added: “My wife is 17 weeks pregnant and we have no idea what would happen if the baby is born in prison in America.”

IN THE HIGH COURT OF JUSTICE
DIVISIONAL COURT

B e f o r e :

LORD JUSTICE DYSON
MR JUSTICE GRIFFITH WILLIAMS
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Between:

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Alun Jones QC and Ben Brandon (instructed by Messrs Arani & Co) for the Claimant
James Lewis QC and Melanie Cumberland (instructed by CPS) for the Interested Party
David Perry QC (instructed by TSols) for the Intervener

Hearing dates: Thursday 6 November 08
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HTML VERSION OF JUDGMENT
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Crown Copyright ©

Lord Justice Dyson: this is the judgment of the court.

Introduction

1. Specialty arrangements are integral to the working of extradition. They ensure that a person may only be dealt with for offences for which he is extradited to the requesting state and that he will not be dealt with for any other offence allegedly committed prior to his extradition, unless he is first afforded a reasonable opportunity to leave the requesting state. Spain and the United Kingdom are both signatories to the European Convention on Extradition which imposes on signatories the obligation to observe the rule of specialty (article 14). As member states of the European Union, they are also both bound by the European Framework Decision of 2002 (“the Framework Decision”) which (by article 27(2)) requires the rule to be observed.
2. The issue that lies at the heart of this appeal is whether the courts of the United Kingdom have jurisdiction to order the authorities of a requesting state to which a person has been extradited to return the person to the United Kingdom on the grounds that he is being, or is likely to be, dealt with in breach of the specialty rule in the requesting state.

The facts

3. The claimant was extradited to Spain on 8 February 2008 pursuant to a European Arrest Warrant (“the EAW”) issued on 29 April 2004 by the Central Court of Criminal Proceedings No 5 of the National Court, Madrid (“the issuing judicial authority”). Extradition was sought on the grounds that he was involved in a terrorist conspiracy, inter alia, in Spain to commit the 11 September 2001 attacks in the United States. The EAW referred to the crime of “participation in terrorist organisation” (articles 515.2 and 516.2 of the Criminal Code) and “terrorist assassination” (article 139.1 and 16 of the Criminal Code). It referred to a link between the claimant and Barakat Yarkas who, it was alleged, was a key figure in the terrorist conspiracy.
4. On 1 June 2005, Senior District Judge Workman, sitting at Westminster Magistrates’ Court ordered the claimant’s extradition to Spain. In his reasons, he said that he was satisfied that the conduct described in the EAW amounted to an extradition offence under section 64(3) of the Extradition Act 2003 (“the 2003 Act”) because, if the conduct had occurred in England, it would have constituted the offence of conspiracy (i) to murder persons in the United States and (ii) to commit the offence of destroying, damaging or endangering the safety of aircraft contrary to section 2 of the Aviation Security Act 1982.
5. The claimant appealed to this court. He argued among other things that there were no specialty arrangements in Spain. In its decision reported at [2006] EWHC 1239 (Admin), this court held that specialty arrangements were in place in Spain. It accepted that prosecuting the claimant for murder would breach the specialty rule, but said that there was no evidence that this would happen. The claimant also argued that there was a real risk that, in breach of the European Convention on Human Rights (“the Convention”), on his return he would be held incommunicado for up to 13 days, without his friends or family being told of his detention or his whereabouts and without access to a lawyer. The court said that, if the claimant faced the possibility of being held incommunicado, the legality and propriety of his extradition would need to be carefully examined. But they were quite satisfied from the evidence that the claimant faced no possibility of detention incommunicado.
6. On 31 May 2006, Barakas Yarkas was acquitted by the Supreme Court in Spain of indirect involvement in the 9/11 murders on the grounds, among others, that the telephone intercept evidence relied on was inadmissible as it had been obtained without lawful authorisation. The claimant argued that the acquittal of Yarkas undermined the basis on which his extradition order had been made and sought a writ of habeas corpus. The application was allowed by this court ([2007] EWHC 939 (Admin)), but rejected by the House of Lords on 7 December 2007 ([2008] UKHL 3, [2008] 2 WLR 299).
7. The language of the EAW and the extradition order dated 1 June 2005 had given rise to certain amount of uncrtainty as to the precise offences in respect of which the claimant was to be extradited. All arguments were laid to rest by the House of Lords. At [31] of his speech, Lord Hope said:

“I would allow the appeal and set aside the order which was made by the Divisional Court. I would affirm the decision by the senior district judge to order the applicant’s extradition to Spain. I would do so on the ground that the offences of conspiracy to commit the offence of murder of persons in the United States and of destroying, damaging or endangering the safety of aircraft, contrary to section 2 of the 1982 Act, are the only offences in respect of which he is to be extradited.”

8. The claimant was returned to Spain and brought before the issuing judicial authority on 8 February 2008. The judge remanded the claimant in custody until 11 February pending receipt of the relevant documents from the UK authorities.
9. On 11 February, the court granted the prosecutor’s application for “unconditional preventative custody communicado without bail”. Judge Garzon stated the legal grounds for his decision in the following terms:

“ONE.- The facts may constitute multiple offences of conspiring to terrorist murder through membership of a terrorist organisation Al Qaeda without prejudice to subsequent classification and as emerges from legal classification which appears in the First Legal Ground of said Indictment in relation to Farid Hilali (a) “Shakur.

TWO. – In accordance with that stated in articles 503, 504 and 505 of the Criminal Procedure Act preventative custody is ordered for Mr Hilali due to the extreme circumstances of the facts object of these proceedings, to the risk of absconding from the actions of justice as demonstrated by the fact that he has had to be surrendered via extradition and in view of that gravity and while the necessary steps are performed as regards the accused, who, despite the fact that he has been in custody in the UK which must, if applicable, be taken into account on sentencing, has been at the disposal of Spanish Justice for three days.”

10. On 28 April 2004, the court ordered an “extension” of the September 2003 indictment. The “extended” indictment stated that the claimant faced charges of “offences of membership of terrorist organisation and terrorist attacks resulting in multiple deaths, injuries and damages as a result of the terrorist attacks that took place in the USA on 11^th September 2001″. The indictment stated that these were offences under article 515.2 and 516.2 of the Criminal Code (membership of terrorist organisation) and under articles 572.1 and 139.1 and 16 of the Code (terrorist homicide and deaths and injuries in the three terrorist attacks on 11^th September). This description of the offences was substantially reflected in the EAW: see [3] above.
11. The claimant appealed against the order of 28 April, but not on the grounds that to proceed against the claimant for these offences would involve a breach of the specialty rule. The appeal was dismissed.
12. On 14 April 2008, the claimant’s defence lawyer in Spain, Jacobo Casanova, sent a report to the claimant’s solicitors in which he stated that at the 11 February 2004 hearing:

“Finally, we indicated that the surrender of Mr Hilali by the UK authorities under the EAW was only for him to be tried, if appropriate, for conspiracy to commit the murders of 11^th September, not for membership Al-Qaeda. It must, however, be stressed, and this is important, that in both the INDICTMENT…OF MR HILALI FROM 2003, AS WELL AS THE DECISION ORDERING THAT HE BE REMANDED IN CUSTODY, MY CLIENT CONTINUES BEING CHARGED WITH BOTH: MEMBERSHIP OF A TERRORIST ORGANISATION AND CONSPIRACY FOR THE MURDERS OF 9-11″.

13. Mr Casanova also stated:

“Mr Hilali is in prison under a special internment regime. This means that his oral and written communications are monitored, that visits are recorded, the letters read and the conversations listened to. He can only enjoy 3 hours in the courtyard (with the other prisoners) and he will remain in an individual cell”.

14. On 22 April 2008, the claimant’s solicitor wrote to the clerk to the Senior District Judge at the City of Westminster Magistrates’ Court, stating that the claimant’s detention was unlawful because it was in breach of the specialty rule and asking for the case to be listed so that the Senior District Judge could make an order demanding “of the Spanish Court that [the claimant] be detained and proceeded against only for the extradition crimes for which he was extradited and, if the Spanish Court fails to agree, that it return the applicant to the United Kingdom.”
15. On 29 April 2008, District Judge Workman refused to accede to this request, stating: “This court can only act under statute and in the absence of any express power this court cannot adjudicate. The matter must be resolved in the issuing state”.
16. These judicial review proceedings were issued on 4 July. The amended relief sought is:

“(a) a quashing order, quashing the decision of City of Westminster Magistrates’ Court decision that it does not have jurisdiction to hear the claimant’s complaint that there has been a breach of specialty in this case;

(b) A mandatory order, directing City of Westminster Magistrates’ Court:

(i) to enquire into the suggested breach of the specialty rule and the assurance as to solitary confinement;

(ii) to enquire as to whether the claimant is accused of the criminal conduct alleged in the European arrest warrant, or merely suspected;

(iii) if appropriate request the return of the claimant to the United Kingdom.

(c) Alternatively, a declaration that the Spanish court is acting in breach of the specialty rule and asking for the return of the claimant to the United Kingdom.

17. On 6 August, the Senior District Judge Workman explained the reasons for his decision of 29 April in these terms:

“(i) There are specialty arrangements in place between the United Kingdom and Spain.

(ii) Section 54 of the Extradition Act 2003 (‘the 2003 Act’) provides for an issuing judicial authority to make a request for an extradited person to be dealt with for an offence for which he was not surrendered. No such request has been received from the issuing judicial authority in the Claimant’s case.

(iii) In the extradition context, the Court can only act in accordance with the powers provided for by the 2003 Act and there is no power under the 2003 Act which would allow it to give directions to a Court of another Sovereign State.

(iv) If there has been a breach of speciality, this should be resolved by way of an appeal against the decision of the Spanish Court to any higher Spanish Court and if necessary then to the European Court or through diplomatic channels.”

18. On 27 August 2008, Judge Garzon (the judge in charge of the case in Spain) wrote to the Crown Prosecution Service (“CPS”) stating:

“2. That Farid Hilali is being investigated exclusively on account of the events specified in the European Arrest Warrant, those which in fact gave rise to the warrant being certified by the United Kingdom authorities.

3. In view of the above, and with reference to point (4) of paragraph 2 of the general observations in your letter, there has been no infringement of the principle of specificity, since we are faced with a simple stratagem of the defence which does not affect the Spanish judicial proceedings, and that no response need be submitted to the Administrative Tribunal unless it is requested; in any event, this reply can serve the purpose.”

19. The letter to which this was a reply has not been disclosed. This is surprising in view of the fact that at the hearing of 2 September 2008 at which Sullivan J gave permission to apply for judicial review, the CPS stated that they would produce it.
20. On 3 November, Mr Perry submitted a Note on behalf of the Secretary of State in which he said that the Secretary of State had sought information from the Spanish authorities on whether there was any breach of specialty or of the assurance. Judge Garzon was absent on sick leave. Another judge (Judge Gomez) sent a written response dated 31 October which includes the statement that:

“…on 11 February 2008, having received the order [of that date] and having inspected its contents, a judicial decision was handed down that same day permitting these proceedings to be taken against Hilali Farid exclusively for multiple acts of conspiracy and not for membership of a terrorist organisation, for which his surrender had not been authorised by the English authorities.”

These proceedings

21. In these proceedings, the claimant challenges the district judge’s decision of 29 April 2008 and his reasoning of 6 June 2008. The defendant court has taken no part in the proceedings. The CPS and the Secretary of State for the Home Department submit that the courts of the United Kingdom have no power to supervise the treatment of an extradited person following surrender to another territory under Part 1 of the 2003 Act or to direct another judicial authority to act or refrain from acting in a particular manner. There is no previous authority on the question whether the courts have jurisdiction to grant relief such as that sought by the claimant in this case. The CPS also say that there is no factual basis for these proceedings since there is no present or threatened breach of specialty and there is no evidence that there has been any breach of assurances, since the claimant is not being held incommunicado. The allegation that the claimant is being held incommunicado has not been pursued and we say no more about it.

The relevant specialty provisions

22. The relevant provisions are set out in section 17 of the 2003 Act and Article 27 of the Framework Decision. The Framework Decision is the instrument of the European Union which established the European Arrest Warrant scheme.
23. Section 17 of the 2003 Act provides:

(1) A person’s extradition to a category 1 territory is barred by reason of specialty if (and only if) there are no specialty arrangements with the category 1 territory.

(2) There are specialty arrangements with a category 1 territory if, under the law of that territory or arrangements made between it and the United Kingdom, a person who is extradited to the territory from the United Kingdom may be dealt with in the territory for an offence committed before his extradition only if—

(a) the offence is one falling within subsection (3), or

(b) the condition in subsection (4) is satisfied.

(3) The offences are—

(a) the offence in respect of which the person is extradited;

(b) an extradition offence disclosed by the same facts as that offence;

(c) an extradition offence in respect of which the appropriate judge gives his consent under section 55 to the person being dealt with;

(d) an offence which is not punishable with imprisonment or another form of detention;

(e) an offence in respect of which the person will not be detained in connection with his trial, sentence or appeal;

(f) an offence in respect of which the person waives the right that he would have (but for this paragraph) not to be dealt with for the offence.

(4) The condition is that the person is given an opportunity to leave the category 1 territory and—

(a) he does not do so before the end of the permitted period, or

(b) if he does so before the end of the permitted period, he returns there.

24. Article 27 of the Framework Decision provides:

Possible prosecution for other offences

1. Each Member State may notify the General Secretariat of the Council that, in its relations with other Member States that have given the same notification, consent is presumed to have been given for the prosecution, sentencing or detention with a view to the carrying out of a custodial sentence or detention order for an offence committed prior to his or her surrender, other than that for which he or she was surrendered, unless in a particular case the executing judicial authority states otherwise in its decision on surrender.

2. Except in the cases referred to in paragraphs 1 and 3, a person surrendered may not be prosecuted, sentenced or otherwise deprived of his or her liberty for an offence committed prior to his or her surrender other than that for which he or she was surrendered.

3. Paragraph 2 does not apply in the following cases:

(a) when the person having had an opportunity to leave the territory of the Member State to which he or she has been surrendered has not done so within 45 days of his or her final discharge, or has retuned to that territory after leaving it;

(b) the offence is not punishable by a custodial sentence or detention order;

(c) the criminal proceedings do not give rise to the application of a measure restricting personal liberty;

(d) when the person could be liable to a penalty or a measure not involving the deprivation of liberty, in particular a financial penalty or a measure in lieu thereof, even if the penalty or measure may give rise to a restriction of his or her personal liberty;

(e) when the person consented to be surrendered, where appropriate at the same time as he or she renounced the specialty rule, in accordance with Article 13;

(f) when the person, after his/her surrender, has expressly renounced entitlement to the specialty rule with regard to specific offences preceding his/her surrender. Renunciation shall be given before the competent judicial authorities of the issuing Member State and shall be recorded in accordance with that State’s domestic law. The renunciation shall be drawn up in such a way as to make clear that the person has given in voluntarily and in full awareness of the consequences. To that end, the person shall have the right to legal counsel;

(e) where the executing judicial authority which surrendered the person gives its consent in accordance with paragraph 4.

4. A request for consent shall be submitted to the executing judicial authority, accompanied by the information mentioned in Article 8(1) and a translation as referred to in Article 8(2). Consent shall be given when the offence for which it is requested is itself subject to surrender in accordance with the provisions of this Framework Decision. Consent shall be refused on the grounds referred to in Article 3 and otherwise may be refused only on the grounds referred to in Article 4.

The decision shall be taken no later than 30 days after receipt of the request. For the situation mentioned in Article 5 the issuing Member State must give the guarantees provided for therein.”

The issues

25. The issues are (i) whether the claimant is being dealt with in Spain in breach of the specialty rule and (ii) whether, even if he is being dealt with in breach of the specialty rule, (a) the district judge has jurisdiction to grant the relief sought by the claimant against the issuing judicial authority and (b) this court has jurisdiction to grant the claimant the relief claimed in these proceedings or any relief. In view of its importance, we shall start with the issue of jurisdiction. If there is no jurisdiction to grant the relief claimed, it is unnecessary to investigate the question of breach.

The jurisdiction issue

The claimant’s submissions

26. Mr Alun Jones QC submits that the district judge, as the “appropriate judge” within the meaning of section 67 of the 2003 Act, has the power (i) to enquire into the question whether the claimant is being, or is likely to be, dealt with in breach of the specialty rule and (ii) if satisfied that breaches have occurred or are likely to occur, to request the return of the claimant. He accepts that the source of the district judge’s jurisdiction is Part 1 of the 2003 Act and that there is no express statutory power to do either (i) or (ii) above. But he submits that there is an implied power to do so. He relies on what Laws LJ said in R (Bermingham and others) v Director of the Serious Fraud Office [2006] EWHC 200 (Admin), [2007] QB 727 at [97]. The implication arises from the express provisions of the statutory regime which it is the judge’s function to administer. It is justified by the imperative that, to use the language of Laws LJ, “the regime’s integrity must not be usurped”. Another way of making the same point is to say that the power is to be implied in order to safeguard the court’s process from abuse.
27. In support of his submission, Mr Jones relies by analogy on (i) the court’s power to make ancillary orders in order to make judgments effective: see the discussion by Lawrence Collins LJ about ancillary orders in Masri v Consolidated Contractors [2008] EWCA Civ 303 at [92] to [107] and [2008] EWCA Civ 625 at [26] to [60]; and (ii) the power of the court in immigration cases, where appropriate, to order the Secretary of State to use her best endeavours to procure the return to the United Kingdom of a deported person: see, for example, R (on the application of Abuzar Changuizi) v Secretary of State for the Home Department [2002] EWHC 2569 (Admin) at [71] to [75] per Crane J.
28. Mr Jones further submits that, whether or not the appropriate judge has the power to make enquiries and, where appropriate, require the return of an extradited person, the High Court has the power (i) to grant a declaration that the requesting state is acting, or threatening to act, in breach of the specialty rule and/or (ii) by reason of the actual or threatened breach, to request the return of the extradited person. Where an extradited person is dealt with in breach of the specialty rule, there must be a remedy in the requested state to require the requesting state to make good the breach, if necessary by returning the extradited person. A person is extradited on the footing that he will not be dealt with in breach of the specialty rule in the requesting state. If a breach of the rule does occur, the requested state is misled. In a Part 1 case, it is the court of the requested state that is misled. It must have the power to complain to the issuing judicial authority and take effective steps to make good the breach.
29. Mr Jones also submits that the problem cannot be resolved by means of diplomatic representations. Diplomatic communications have no place in the EAW scheme. Only the extraditing court has the power to protest a breach of its own order after extradition. Nor can the courts of the requesting state hold that the matter should be dealt with in the requesting state after extradition. There may, for example, be no power in the courts of the requesting state to enquire into the circumstances in which a person came within its jurisdiction.

Discussion

Jurisdiction of the district judge

30. We would reject these submissions largely for the reasons given by Mr James Lewis QC and Mr David Perry QC. The powers of the courts in extradition proceedings are derived from the 2003 Act and nowhere else. Functions are allocated to the “appropriate judge” and the High Court. The “appropriate judge” in England and Wales is a District Judge (Magistrates’ Courts) designated for the purposes of Part 1 by the Lord Chancellor: see section 67(1) of the 2003 Act.
31. The functions of the appropriate judge include the conduct of extradition hearings. Sections 9 to 25 of the 2003 Act regulate extradition hearings and specify the circumstances in which extradition is barred. The appropriate judge must decide whether a person’s extradition to the requesting category 1 territory is barred by reason of the rule against double jeopardy (section 12), extraneous considerations (section 13), the passage of time (section 14), the person’s age (section 15), hostage-taking considerations (section 16), the lack of specialty arrangements with the requesting category 1 territory (section 17), the person’s earlier extradition to the United Kingdom from another category 1 territory (section 18), and earlier extradition to the United Kingdom from a non-category 1 territory (section 19). The appropriate judge is also required by section 21 to decide whether a person’s extradition would be compatible with the Convention rights within the meaning of the Human Rights Act 1998, and if that question is decided in the negative, must order the person’s discharge.
32. The function of the High Court is limited to dealing with appeals against extradition orders under section 26 and appeals against orders for a person’s discharge at the extradition hearing under section 28.
33. These are the statutory provisions which govern the position pre-surrender. There is no general statutory provision which requires or even enables the appropriate judge or the High Court to supervise the treatment of extradited person following surrender to another category 1 territory under Part 1. There is, however, a part of the 2003 Act which is headed “Post-extradition matters”. This is contained in sections 54 to 59 which give the appropriate judge certain limited powers. Sections 54 and 55 concern retrospective requests by the requesting state to the appropriate judge for consent to the extradited person being dealt with for an offence other than that in respect of which he has been extradited. Sections 56-58 concern retrospective requests to the appropriate judge for consent to extradition to another category 1 territory or to a category 2 territory. Section 59 deals with the position where an individual is returned from the category 1 territory to the United Kingdom in order to serve the remainder of a sentence of imprisonment or other form of detention imposed in the United Kingdom.
34. Thus, the 2003 Act contains a detailed code which defines the powers and duties of the appropriate judge and the High Court. It gives the appropriate judge no express power (i) to make enquiries of the requesting state about the conduct of the criminal process or any other aspect of the way in which the extradited person is being dealt with or (ii) to request the return of the extradited person. In our judgment, this is fatal to the submission that the appropriate judge has the power to do either of these things. As we have said, the sole source of the appropriate judge’s powers is the 2003 Act. The powers for which Mr Jones contends are not there.
35. Nor can we accept Mr Jones’s submission that there is an implied power to make these enquiries or request the return of the extradited person in appropriate circumstances. The 2003 Act describes in detail the various powers and duties of the appropriate judge in the pre-surrender period. The statutory powers and duties of the appropriate judge post-surrender are strikingly more limited. In our judgment, this difference reflects a policy that (save to the limited extent encompassed by sections 54 to 59) what happens post-surrender is of no concern to the United Kingdom. This is not surprising. It reflects the Framework Decision which contains no provision for the requested state to monitor or supervise the way in which the extradited person is dealt with by the requesting state post-surrender. The EAW provided for by the Framework Decision implements “the principle of mutual recognition which the European Council referred to as the “cornerstone” of judicial cooperation” (the sixth recital); and “the mechanism of the European arrest warrant is based on a high level of confidence between Member States” (the tenth recital). As Lord Bingham said in Dabas v High Court of Justice in Madrid, Spain [2007] UKHL 6, [2007] 2 AC 31 at [4]: “The important underlying assumption of the Framework Decision is that member states, sharing common values and recognising common rights, can and should trust the integrity and fairness of each other’s judicial institutions”. The absence of any provision in the 2003 Act giving the appropriate judge the power to investigate the manner in which the extradited person is dealt with in the requesting state is in accord with this underlying assumption. The suggested implied power would completely undermine it.
36. We accept that, although the appropriate judge has no express power to request further information from the issuing judicial authority, he has such an implied power before making an order. In Dabas, Lord Hope said at [49] that articles 10(5) and 15(2) of the Framework Decision “show that it is within the spirit of this measure that the judge should be assumed to have this power. The principle of judicial co-operation on which it is based encourages this approach.” Article 15(2) makes express provision for the executing judicial authority to seek supplementary information from the issuing judicial authority. It is to be noted, however, that the Framework Decision does not go further than the 2003 Act in providing the court with the kind of post-extradition powers for which Mr Jones contends.
37. The decision of this court in Bermingham does not lead to a different conclusion. That was a Part 2 case where the category 2 territory had been designated for the purpose of section 84. At [97] Laws LJ said that the judge conducting an extradition hearing under the 2003 Act possesses a jurisdiction to hold that the prosecutor is abusing the process of the court. The allegation in that case was that the extradition application was abusive for a number of reasons. We do not need to decide whether by implication there can be added to the grounds for barring an extradition order in a Part 1 case the fact that the application for the order is abusive. It is one thing to hold (as Laws LJ did ) that the appropriate judge has the implied power to refuse to make an extradition order if it would be an abuse of the court’s process to make it. It is quite another matter to say that the judge has the implied power to make enquiries and request a person’s return after the extradition has taken place. The former would by implication add a further bar to the statutory bars on the exercise of the power to make an extradition order, a power which the appropriate judge undoubtedly has. The latter would give the judge a power which he does not have. With the exception of the powers created by sections 54 to 59, the judge has no statutory powers at all post-surrender. The power to make enquiries or request the return of an extradited person would not govern or qualify another existing statutory power: it would create a completely new power which Parliament did not see fit to confer on the appropriate judge and which would fundamentally conflict with the scheme embodied in the Framework Decision.
38. We do not accept that the analogies relied on by Mr Jones support his argument. It is true that, where a person is deported by the Secretary of State for the Home Department in breach of that person’s Convention rights, our courts can require her to use her best endeavours to seek the return of the deported person. That presents no jurisdictional difficulty. Such an order is made in proceedings in which the Secretary of State is defendant. It is made because the Secretary of State has made a wrongful decision to deport. A deportation in breach of a person’s Convention rights is unlawful. The purpose of the court order is to seek to undo the wrong. The court has the power to correct legal wrongs. But in such a case, the court does not make any order against the state to which the person has been deported. That is what the claimant is seeking in the present case.
39. Nor do the decisions in Masri provide any support for Mr Jones. In the second Masri appeal Lawrence Collins LJ said at [26] that the English court has power over persons properly subject to its in personam jurisdiction to make ancillary orders in protection of its jurisdiction and its processes. That power was a discretionary one, to be exercised in accordance with the requirements if international comity. That case concerned an appeal against the grant of an anti-suit injunction by the English court restraining debtors from bringing proceedings in Yemen. Judgment had already been obtained against the debtors in England. It was accepted by the Court of Appeal that, once the court had jurisdiction over the substance of the case, it had jurisdiction to make ancillary orders both before and after the judgment, including anti-suit injunctions to protect the integrity of its process. But the nature and subject-matter of that case was very different from the present. First, it was concerned with a private law claim. Secondly, the claim was against a person who was properly subject to the in personam jurisdiction of the court. Thirdly, the powers of the court that were in play did not derive from statute. In our judgment, the principles enunciated and applied in Masri have no application to litigation arising out of the execution of an extradition order.
40. For these reasons, we are of the opinion that the district judge was right to hold that he did not have jurisdiction to investigate the question whether the claimant was being detained and proceeded against in breach of the specialty rule or to demand the claimant’s return if he was. The 2003 Act requires the appropriate judge to satisfy himself that none of the bars to extradition exist and that the person’s extradition would be compatible with his Convention rights. One of the bars is that there are no specialty arrangements with the requesting state. Once so satisfied, he or she must make the extradition order. Subject to an appeal under the 2003 Act, the extradition order cannot be challenged. It may transpire that, upon his surrender, a person’s Convention rights are violated; or that he is dealt with in a manner which amounts to a breach of the specialty rule. If that occurs, it does not necessarily show that the extradition order should not have been made. But even if it does, for the reasons that we have given, the 2003 Act does not empower the appropriate judge to do anything about it. It is an assumption of the Framework Decision and Part 1 of the 2003 Act that any breaches of this kind will be capable of being remedied in the courts of the requesting state and, if necessary, in the ECtHR (breach of Convention rights) or in the ECJ.

Jurisdiction of the High Court

41. Similar reasoning leads to the conclusion that the High Court has no jurisdiction to grant a declaration that the authorities of the requesting state are acting in breach of the specialty rule or to order the return of an extradited person where he is being dealt with in breach of that rule. The powers of the High Court in relation to extradition are those which are granted, whether expressly or by necessary implication, by the 2003 Act. Its express powers are limited to dealing with appeals against extradition orders or orders for the discharge of persons whose extradition is sought. The reasons that we have given for holding that the appropriate judge has no implied power to make enquiries of the requesting state about how the extradited person is being dealt with and, if necessary, seeking his return also compel the conclusion that the High Court has no such implied power either. To accede to Mr Jones’s argument would be to fly in the face of the clear intent of Parliament and would undermine the assumption of trust and confidence which is the foundation of the EAW scheme, the Framework Decision and Part 1 of the 2003 Act which reflects it.
42. There is a yet further difficulty. Even if (contrary to our view) the High Court had the power to grant relief against the issuing judicial authority, it could only do so if the authority was properly joined as a defendant to these proceedings. The court can only make an order (or grant a declaration) against a party to proceedings. The claimant has not issued proceedings in the courts of England and Wales against the issuing judicial authority or any other Spanish authority. In the absence of such proceedings and an identifiable basis for the grant of declaratory relief against a relevant Spanish authority, the High Court cannot grant such relief.

Alternative arguments

43. That is sufficient to dispose of the jurisdictional argument as respects both the appropriate judge and the High Court. But there are other arguments which lead to the same conclusion. In view of the decision that we have already reached on the issue of jurisdiction, we shall deal with these shortly. It is a long-standing principle of law that a municipal court will not adjudicate on the acts of a foreign state within its sovereign territory. This principle, founded on comity, often referred to as the “act of state” principle, was recognised in England as early as 1848 in Duke of Brunswick v King of Hanover (1848) 2 HL Cas 1 at 21-2, 49 ER 724, The rationale of the principle is that:

“to permit the validity of the acts of one sovereign state (including the courts of that state) to be re-examined and perhaps condemned by the courts of another would very certainly “imperil the amicable relations between governments and vex the peace of nations”": per Fuller CJ in Oetjen v Central Leather Co (1918) 246 US 297, 304.

44. More recently, the apparently uncompromising nature of the principle has been subject to some qualification. For example, in R (on the application of Abbasi) v Secretary of State for Foreign and Commonwealth Affairs [2002] EWCA Civ 1598, [2003] UKHRR 76, a British national detained in Guantanamo Bay without trial and without legal representation sought judicial review to compel the Foreign Office to make representations on his behalf to the United States Government. One of the issues addressed by the Court of Appeal was whether executive action by a foreign state was justiciable. At [57], the court said that:

“…albeit that caution must be exercised by this court when faced with an allegation that a foreign state is in breach of its international obligations, this court does not need the statutory context in order to be free to express a view in relation to what it conceives to be a clear breach of international law, particularly in the context of human rights.”

45. It is clear from this decision and others considered in it that there are limits to the act of state doctrine. In particular, where the acts of the foreign state involve a clear breach of international law in the context of fundamental human rights, an English court may exceptionally have jurisdiction to adjudicate on those acts. But we find it difficult to conceive that our courts would grant relief against a foreign state if the alleged breach of human rights can be properly investigated and, where appropriate, redress given in the courts of that state.
46. In our judgment, the facts of the present case come nowhere near engaging this exceptional jurisdiction against a foreign sovereign state. The complaint here is that the claimant is being dealt with in breach of the specialty rule. Spain is a party to the Framework Decision, article 27(2) of which provides that a person may not be dealt with in breach of the specialty rule. Moreover, Spain has introduced into its domestic law a provision which mirrors that prohibition: see Article 24 of Act 3/2003, March 14, on the European Arrest Warrant. As Dyson LJ said in Jaso at [67], the Spanish authorities are “trusted extradition partners and parties to the Framework Decision. They have incorporated the specialty rule into their domestic law, so that the appellants have a remedy under their domestic law in the unlikely event of a breach of specialty.”
47. Mr Jones sought to derive support for his submissions from the decision of this court in R v Secretary of State for the Home Department, ex parte Launder (No 2) [1998] QB 994. This was a decision under the Extradition Act 1989. The applicant sought judicial review of the order of the Secretary of State to return him to Hong Kong on the grounds that (i) the chief executive of the Hong Kong Special Administrative Region was not authorised to give the undertaking that he had given that there would be no re-surrender of the applicant to the People’s Republic of China and therefore (ii) there were no specialty arrangements in place in Hong Kong. The court held that the undertaking was authorised and constituted specialty arrangements within the meaning of section 6(4) of the 1989 Act. The court did not refuse to inquire into the whole question on the footing that municipal courts will not adjudicate on transactions of foreign states: see per Simon Brown LJ at p 1003D. At p 1017B-1018F, Mance J made some observations on the limits of the act of state principle. But all of that was said in the context of a pre-surrender case. We are sure that this decision is not to be interpreted as tearing down the walls of the act of state principle. It remains an important principle which should be applied unless the act in question involves a clear breach of international law, particularly in the context of human rights.

Conclusion on jurisdiction

48. For the reasons that we have given, (i) the decision of Senior Judge Workman of 29 April 2008 and the reasons that he gave on 6 August were correct and (ii) this court has no jurisdiction to grant the relief sought against the issuing judicial authority.
49. Mr Perry tells us that, although our courts may have no power to grant relief against the issuing judicial authority, the Secretary of State would consider a breach of specialty as a very serious matter. We accept his submission that any established breach could only be dealt with by way of diplomatic protest.

Breach of the specialty rule

50. In view of our conclusion on the issue of jurisdiction, the question whether the claimant is being dealt with in breach of the specialty rule does not arise. But since it was the subject of detailed argument, we propose to address it, although not in as much detail as otherwise might have been necessary.
51. The claimant’s case is that he was extradited for conspiracy to murder and that he is now being held for “participation in terrorist organisation” which, as Lord Hope made clear, is not an offence for which he could be prosecuted. The claimant relies in part on the orders dated 8 and 11 February 2008 pursuant to which he was remanded in custody on his surrender to Spain and the statement of Mr Casanova, his defence lawyer in Spain. The 8 February order states that: “the facts being the object of the imputations amount to an offense of integrating into a terrorist organisation according to article 515.2 and 516.2 of the Criminal Code due to the grounds set out in the indictment” (emphasis added).
52. We accept the submission of Mr Lewis that the orders of 8 and 11 February, must be read together. The reference in the first order to “integrating into a terrorist organisation” might, if it stood alone, be taken to mean that the offence alleged against the claimant was participating in a terrorist organisation. But it is clear that the order of 8 February was in the nature of a provisional order, pending receipt of the extradition documents from the UK judicial authorities. The crucial order is that of 11 February which was made after receipt and in the light of those documents. Unlike the earlier order, the order of 11 February does not describe the claimant as being charged with “integrating into a terrorist organisation”. Rather, it describes him as being charged with conspiracy to “commit terrorist murder through membership of a terrorist organisation, Al Qaeda”. This description properly reflects the basis on which the claimant was surrendered to Spain: i.e. in respect of conspiracy to murder rather than participation in a terrorist organisation. Although the order refers to the offences of conspiracy to murder being committed “through membership of a terrorist organisation Al Qaeda”, this does not mean that the claimant falls to be tried in Spain for an offence of participation in a terrorist organisation. The attacks on 11 September 2001 were carried out by Al Qaeda, and the reference to membership of Al Qaeda is relevant background.
53. Mr Jones submits however that, whatever the position may have been on 11 February 2004, it is clear from the order of 28 April 2004 that, as at that date, and notwithstanding what Lord Hope had said, the claimant was being proceeded against for the offence of membership of a terrorist organisation and, therefore, in breach of the specialty rule. He submits that further support for this view is to be derived from the terms of the EAW issued on 29 April 2004: see [3] above.
54. We do not agree. It is inherently unlikely that the issuing judicial authority would intend to deal with the claimant in breach of specialty: see [46] above. In his letter dated 27 August 2007, Judge Garzon stated that there had been no breach of the specialty rule: see [18] above. We accept that, in view of the nature of the challenge in these proceedings and the specific allegation that the claimant was facing a charge of membership of a terrorist organisation, this rather bald assertion was not entirely satisfactory. No doubt that is why the further information referred to at [20] above was obtained. In our view, this puts the matter beyond doubt.

Conclusion

55. For the reasons that we have given, this judicial review application is dismissed.