Neutral Citation Number: [2008] EWHC 2619 (Admin)
Case No: CO/9640/2008
CO/9591/2008
IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
DIVISIONAL COURT
IN A MATTER OF AN APPLICATION
FOR HABEAS CORPUS AD SUBJICIENDUM
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 30/10/2008
Before :

LORD JUSTICE KEENE
&
MR JUSTICE OWEN
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Between :
	(1) Habib IGNAOUA, 
(2) Mohamed Salah Ben  Hamadi KHEMIRI 
& (3) Ali Ben Zidane CHEHIDI	Claimants	
	- and -		
	(1)	The Judicial Authority of the Courts of Milan
(2)	The Serious and Organised Crime Agency
(3)	The Secretary of State for the Home Department 	Defendants	
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Richard Gordon QC, & Ben Cooper (instructed by Birnberg Peirce & Partners) for the Claimants (1) & (2)
Clair Dobbin (instructed by Birnberg Peirce & Partners) for Claimant (3)

James Lewis QC & Marcus Thompson (instructed by Treasury Solicitor) for Defendant (2)

Jonathan Swift & Joanne Clement (instructed by Treasury Solicitor) for Defendant (3)

Hearing date: Tuesday 28 October 2008
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Judgment

Lord Justice Keene:

Introduction:
1.	These are applications for writs of habeas corpus ad subjiciendum by Habib Ignaoua, Mohamed Salah Ben Hamadi Khemiri and Ali Ben Zidane Chehidi, all three of whom are currently detained in prison awaiting extradition to Italy following the issuing of European Arrest Warrants duly issued and certified under section 2 of the Extradition Act 2003 (“the 2003Act”).  The warrants were issued by a judge attached to the Court of Milan.  The applicants, who are Tunisian nationals, were arrested in the United Kingdom in 2007.  They are accused of membership of a criminal organisation for the purposes of terrorism.
2.	An extradition hearing took place at the City of Westminster Magistrates Court before District Judge Evans, who on 20 May 2008 decided that the extradition of the applicants would be compatible with their rights under the European Convention on Human Rights (“ECHR”), an issue which he was required to determine under section 21(1) of the 2003 Act.  He ordered their extradition to Italy pursuant to section 21(3) of that Act.  An appeal was then brought against the judge’s order to a Divisional Court by all three applicants under section 26 of the 2003 Act.  By a decision dated 28 July 2008 the Divisional Court (Pill LJ and Rafferty J) dismissed the appeal: the decision bears the neutral citation (2008) EWHC 1988.  The issue which the Divisional Court was called upon to decide was whether, on the return of the applicants to Italy, there was a real risk of their onward transmission to Tunisia, in breach of Article 3 of the ECHR.  As I have indicated, the Divisional Court held that there was not.  An application for a certificate of a point of law of general public importance was dismissed by the same court on 30 September 2008.
3.	On that same date the applicants made an application to the European Court of Human Rights under rule 39 of the Rules of Court, for an order preventing their extradition to Italy, on the ground that, if extradited, they would be at real risk of onward removal to Tunisia where they would be subjected to treatment contrary to Article 3 of the ECHR.  The United Kingdom’s Serious Organised Crime Agency (“SOCA”) undertook not to return the applicants to Italy pending the determination of the rule 39 application.  On 7 October 2008 the Strasbourg Court refused that application.  In decision letters of that date to the applicants’ solicitors and to the Agent of the Italian Government, the Registrar of the 4th Section of the Court stated that the Court found that it would be open to the applicants to make an application, including one under rule 39, against Italy, if it appeared that they would be surrendered from Italy in breach of their rights under the ECHR.  The letters also referred to the Court’s express understanding: 
“… that Italy as a Contracting State would abide by its obligations under Articles 3, 13 and 34 of the Convention and in particular the obligation to respect the terms of any interim measure which the Court might indicate in respect of Italy at the request of the applicants.”
4.	At 11.30pm on 7 October 2008, a telephone application was made ex parte without notice to King J, seeking injunctive relief preventing the applicants’ extradition.  He granted an injunction preventing their removal until determination of habeas corpus applications, which were in fact issued on 9 and 10 October.  On 10 October 2008 a Divisional Court continued the injunction and directed that the habeas corpus applications be listed for a two day hearing before 3 November 2008.  That is the hearing which has taken place before us.  The matter is of considerable urgency, not merely because it involves issues of personal liberty.  We are told, and it has not been challenged, that because of the law as to custody time limits in Italy, the applicants Khemiri and Chehidi will have to be released from custody if not returned to Italy by 5 November 2008, that is to say next Wednesday.  If that happens, the sheer passage of time will have rendered all the arguments about a risk of Article 3 treatment academic.  For that reason we are giving our judgments as soon as possible after the conclusion of the hearing.  Inevitably those judgments may be less detailed than would otherwise have been the case and we may not have dealt in them with every nuance of the arguments addressed to us.  However, we have taken into account each and every submission and all the evidence to which our attention has been drawn, whether we expressly refer to it or not, and we are confident that we have dealt with the main issues.
The Issues:
5.	The principal issues arise from the applicants’ contention that there is fresh evidence now available which demonstrates that, contrary to the findings of the District Judge and the Divisional Court, the removal of the applicants to Italy would give rise to a real risk of them being deported to Tunisia.  Before setting out those issues in more detail, it is helpful to record certain matters not in dispute.  In particular, there is no challenge to the proposition that the applicants would be at risk of treatment contrary to Article 3 if they were to be removed to Tunisia: see paragraph 14 of the Divisional Court decision of 28 July 2008. Secondly, as the Divisional Court recorded at paragraph 7 of that judgment:
“It is also accepted that the respondent’s application to the English court was a genuine exercise of the power conferred by the Framework Decision with a view to bringing criminal proceedings against the appellants in Italy.  It was not a device to achieve deportation to Tunisia.”
6.	Thirdly, the risk of removal to Tunisia is not said to arise because of the possibility of extradition from Italy, where it is agreed that there is effective judicial oversight of extradition proceedings.  The risk is said to arise because of possible deportation of the applicants by Italy to Tunisia.  As it was put by the Divisional Court at paragraph 9:
“In summary, the appellants’ case is based on the alleged absence in Italian law of sufficient safeguards for a person at risk of deportation to Tunisia and the likely conduct of the Italian Government if and when it is given an opportunity to deport the appellants to Tunisia.”
7.	It was, therefore, the question of whether there was a real risk of the applicants being deported to Tunisia if they were sent to Italy under the 2003 Act which was addressed and answered negatively by the District Judge and the Divisional Court in the present case.  I refer to the Divisional Court, because of course an appeal to that court under section 26 lies both on questions of law and on questions of fact: see section 26(3).
8.	The issues which now arise can conveniently be summarised as follows: first, does this court have jurisdiction to entertain an application for habeas corpus based upon the same ground as that decided by the District Judge and the Divisional Court on appeal, because it is asserted that there is fresh evidence on that ground?  Secondly, if there is jurisdiction of any kind under which this court can consider fresh evidence, does the material now put forward qualify as such?  Thirdly, if it does, does it, together with the evidence put before the District Judge and Divisional Court, demonstrate that the Divisional Court’s decision was arrived at on some fundamentally erroneous basis?  Fourthly, does it make any difference that Ignaoua has made an asylum claim in this country which has not yet been determined by the Secretary of State for the Home Department and that Khemiri has refugee status?
(i) The Jurisdiction Issue:
9.	The starting point for consideration of this issue is section 34 of the 2003 Act.  That provides:
“A decision of the judge under this Part may be questioned in legal proceedings only by means of an appeal under this Part.”
In that section “the judge” clearly refers to the designated District Judge (Magistrates Court), and the decision of District Judge Evans on 20 May 2008 to order the extradition of the applicants was on the face of it a decision to which section 34 applies.  If so, only by an appeal under Part I of the 2003 Act can his decision be challenged.
10.	But Mr Gordon QC on behalf of Ignaoua and Khemiri contends that section 34 provides no bar to habeas corpus proceedings when new evidence has become available which was not before the District Judge or the Divisional Court and which, in a case like this, demonstrates that to extradite a person would involve a breach of the United Kingdom’s obligations under the ECHR.  Miss Dobbin on behalf of Chehidi supports this line of argument, and I mean no disrespect to either if I treat their submissions as one entity.  It is said that habeas corpus proceedings in such circumstances would not amount to questioning the judge’s decision, which was not wrong on the material before him, but would merely assert that his decision had been “undermined” by new material which has become available.
11.	Reliance is placed upon the Divisional Court decision in Hilali v. Governor of Whitemoor Prison [2007] EWHC 939, where an application for habeas corpus was both entertained and allowed on the basis of fresh evidence, namely the acquittal in Spain of the man alleged to be the central figure in the conspiracy to which Hilali was said to be a party.  This was regarded by the Divisional Court as a “fundamental change in the case” in which the extradition order had been made.  Giving the judgment of the court Smith LJ said this at paragraph 35:
“We do not consider that, in the kind of circumstances that we postulate (the undermining of the factual premise of the judge’s decision) the further proceedings would amount to the questioning of the judge’s decision.  Indeed, the proceedings would be based on the acceptance that the judge’s decision had been correct at the time but an assertion that the facts had changed to such an extent that the judge’s decision was undermined.  Accordingly, such further proceedings would not be ousted by section 34.”
12.	The court took the view that, in exceptional circumstances, habeas corpus was available as a remedy in addition to the statutory appeals procedure, though it recognised (paragraph 28) that there was no authority dealing with its availability after the statutory appeal process had been completed.  
13.	As for the circumstances in which habeas corpus would be available, the Divisional Court stated at paragraphs 39 and 40:
“39. In what kind of circumstances should the remedy be available?  We are grateful for Mr Hardy’s helpful submissions on this subject.  He suggested that the threshold for habeas corpus will only be passed where there is some development which subverts either the basis on which the EAW was issued by the IJA or the basis on which the decision was made either at first instance or on the statutory appeal.  Further, an application for habeas corpus would never be appropriate if it would have been possible for the relevant point to have been raised in the course of the statutory proceedings.  He stressed that applications for habeas corpus must not be allowed to become a re-run of the statutory proceedings.  The court must be vigilant to ensure that such applications do not become a tactical device to disrupt the scheme underlying the legislation or a means of extending the period before return

40. We do not understand Mr Jones to disagree with those submissions and we accept them.  The occasions when habeas corpus will be available will be very rare.  It appears to us that the remedy itself provides the answer to the question when it should be available.  Habeas corpus will only be appropriate where the continued detention of the applicant pursuant to the extradition process has become unlawful.  That presupposes a fundamental change to the circumstances in which the (ex hypothesi) lawful order of the court had been made.”
It then added that the test would only be satisfied by something which went to the root of the case.
14.	There was then an appeal to the House of Lords, whose decision, In re Hilali (application for a writ of habeas corpus) [2008] UKHL 3; [2008] 1AC 805 reversed that of the Divisional Court.  The leading opinion, with which all members of the House agreed, was given by Lord Hope of Craighead.  The SOCA and the Secretary of State contend that the House of Lords ruled that habeas corpus is not available where a statutory appeal lies under the 2003 Act.  The applicants argue that that was not what was decided.  Mr Gordon points out that the basis for the House of Lords decision was that the Divisional Court should not have been concerning itself with the strength of the evidence against Hilali and how that had been affected by the acquittal in Spain of the central figure.  Under the Council Framework decision to which the 2003 Act gives effect, the European Arrest Warrant procedure does not allow a member state to question whether there is a case to answer in terms of the evidence available.  As Lord Hope said at paragraph 15:
“The question whether there is a case to answer on the conduct that is alleged in the European arrest warrant is not one that can be examined in the requested state.  An inquiry into that question is contrary to the principle of mutual recognition on which the Framework Decision is founded.  It was not for the Divisional Court, any more than it would have been for the senior district judge, to say that the conduct that was alleged against the respondent was incapable of being proved because the grounds on which Yarkas had been acquitted of the conspiracy removed all the evidence narrated in the European arrest warrant from which it could be inferred that the respondent was involved in it.”
15.	Thus far I agree with Mr Gordon.  That part of their Lordships’ decision had nothing to do with the possibility of habeas corpus proceedings.  But the House of Lords went on to deal with that latter topic.  Lord Hope pointed out that the statutory appeal provisions in sections 26 and 28 of the 2003 Act only apply to certain of the judicial decisions which may be made during the extradition process.  As he said at paragraph 21:
“One of the features of the provisions about appeals in Part 1 is that not every decision that the judge is required to take can be appealed against under the statute: see, for example, section 4(5) which requires the judge to order the discharge of a person arrested under a Part 1 warrant who is not brought before him as soon as practicable.”
But he then went on to say this at the end of that same paragraph:
“Section 34 must receive effect where the decision was one against which there was a right of appeal under the statute.  In the case of those decisions, the remedy of habeas corpus must be taken to have been excluded by the clear and unequivocal wording of section 34.”
16.	Lord Hope then observed in paragraph 22 that the decision by the senior District Judge to make the extradition order was a decision against which a right of appeal was provided by section 26.  He briefly summarised the views of the Divisional Court and then added at the start of paragraph 23:
“I do not think that it is necessary to identify circumstances in which, notwithstanding section 34 of the 2003 Act, the remedy of habeas corpus may be available.”
17.	Mr Gordon and Miss Dobbin argue that Lord Hope’s statements do not amount to a rejection of the Divisional Court’s reasoning on this particular issue.  Mr Gordon emphasises the phrase “notwithstanding section 34.”
18.	I can see that taken by itself, that single sentence at the beginning of paragraph 23 may appear to leave the position somewhat uncertain.  But Lord Hope’s opinion must be read as a whole.  He had by that point in it already emphasised two things: first, that there were judicial decisions in the extradition process which did not attract a statutory right of appeal; and secondly, that where there was a statutory right of appeal, habeas corpus was excluded by the clear and unequivocal wording of section 34.  That was a quite explicit statement.  In those circumstances, his statement at the beginning of paragraph 23 cannot be taken to be saying that, in some cases where the statutory right of appeal existed, habeas corpus might still lie.  It would contradict the final sentence of paragraph 21, quoted above at paragraph 15.
19.	I am fortified in that conclusion by what seems to me, with all due respect, to be a fallacy in the reasoning of the Divisional Court in Hilali.  That court drew a distinction between questioning the judge’s decision, banned by section 34 save via a statutory appeal, and it being “undermined” by a change of factual circumstances.  The problem with that distinction lies in the nature of the habeas corpus remedy, as Mr Swift for the Secretary of State has submitted.  It lies to challenge the legal validity of a person’s detention.  But in the present case the order of District Judge Evans provides the authority for the detention of the applicants.  Section 176(6) of the 2003 Act states:
“(6) An order for a person’s extradition under this Act is sufficient authority for an appropriate person-
(a) to receive him;
(b) to keep him in custody until he is extradited under this Act;
(c) to convey him to the territory to which he is to be extradited under this Act.”
20.	What this demonstrates is that the applicants are indeed seeking to challenge the order of the judge, and to do so by way of collateral challenge.  Indeed, Mr Gordon expressly accepted during argument that the applicants were seeking the quashing of the extradition order made by the district judge.  That is prohibited by section 34, save by way of statutory appeal.
21.	I entirely see the force of the submissions made on behalf of the applicants that, in the period between the decision on the statutory appeal and the execution of the extradition order, some dramatic alteration in circumstances may occur.  It is possible to postulate various scenarios which would give rise to concern that the court’s finding that extradition would not involve a breach of rights under the ECHR was no longer valid – a change of regime in the State to which the person is to be extradited might potentially give rise to such a concern.  That would fall within what the Divisional Court in Hilali meant by “the undermining of the factual premise of the judge’s decision”: paragraph 35.  One has also to bear in mind that this court is by virtue of the Human Rights Act 1998 section 6(3) a public authority and that it is therefore unlawful for it to act in a way which is incompatible with a Convention right, unless primary legislation prevents it from acting differently: section 6(1) and (2) of the 1998 Act.  One would in any event strive to find a remedy if it was clear that there was a real risk that extradition would lead to treatment in breach of Articles 2 or 3 of the ECHR. 
22.	There is, however, a course of action and a remedy which is available in such circumstances and which would not be prevented by section 34 of the 2003 Act, and that is by way of an application to re-open the determination of the Divisional Court under CPR 52.17, the rule which embodies the principles set out in Taylor v. Lawrence [2002] EWCA Civ. 90; [2003] QB 528.  The Civil Procedure Rules undoubtedly apply to appeals to a Divisional Court under the 2003 Act.  They are the “rules of court” referred to in section 31 of that Act: see CPR 52 PD 120.  CPR 52.17(1) provides that the Court of Appeal or the High Court will not re-open a final determination of any appeal unless:
“(a) it is necessary to do so in order to avoid real injustice;
(b) the circumstances are exceptional and make it appropriate to re-open the appeal; and
(c) there is no alternative effective remedy.”
23.	The Divisional Court in Hilali was not enamoured of this procedure, but it did not rule out its use.  Its objections, to be found at paragraph 38, are not ones that I find persuasive.  Thus, the House of Lords can regulate its own procedure, and the fact that the Civil Procedure Rules do not apply there does not matter.  Then, if I am right, habeas corpus does not provide an alternative remedy.  Thirdly, CPR 52.17 is no less effective than habeas corpus: if an applicant can show that his detention is unlawful, it would be very remarkable if his detention were not regarded as “a real injustice”, in the language of CPR 52.17(a)  
24.	Under that provision, the circumstances have to be exceptional.  But that accords with the Divisional Court’s approach in Hilali, where the circumstances where it suggested habeas corpus would be available were described as ‘very rare’ (paragraph 40) and “exceptional” (paragraph 38).  Clearly, as the Divisional Court said in that case, paragraph 39, one cannot allow a re-run of the earlier appeal.  That would be contrary to the whole spirit of the Framework Decision, which was intended to provide a speedy and more efficient procedure in extradition cases between the states involved.  One does not need to regard the principles set out in Ladd v. Marshall [1954] 1 WLR 1489 as being directly applicable in order to recognise that, whether one is using the CPR 52.17 procedure or applying the Divisional Court’s approach in Hilali to habeas corpus applications, the court should be reluctant to receive fresh evidence which could with reasonable diligence have been put before the Divisional Court on a section 26 appeal.  Indeed, in Hilali, the Divisional Court endorsed the approach suggested by counsel, that the threshold for habeas corpus will only be passed where there is some development which subverts the basis for the decision, which seems to emphasise the need normally not merely for fresh evidence, in the Ladd v. Marshall sense, but for some event to have occurred since the appeal decision.  
25.	The applicants argue that CPR 52.17 imposes an unjustifiably high hurdle in cases where a risk of Article 3 treatment is involved.  Mr Gordon refers to the decision of the Court of Appeal in In re Uddin (A Child) [2005] EWCA Civ 52; [2005] 1 WLR 2398, where the court said that if the discovery of fresh evidence were to justify re-opening a concluded appeal, the injustice had to be so grave as to overbear the pressing claims of finality in litigation.  The fresh evidence had to show not merely that there was a real possibility that an erroneous result had been arrived at but that there existed a powerful probability that it had.  Adopting that approach, submits Mr Gordon, could put the United Kingdom in breach of its international obligations under the ECHR.
26.	It needs to be remembered, in my view, what the case of Uddin was dealing with.  It was a family law case, where it was sought to re-open a finding that the threshold criteria for a care order had been met.  The court in its decision emphasised that the boundaries of the Taylor v. Lawrence jurisdiction were not rigid.  It acknowledged that the 
“ultimate rationale of Taylor v. Lawrence is the correction of injustice.”: paragraph 20.
It was not applying its mind to cases such as the present where there is an issue as to whether the applicant would be at risk of torture or inhuman or degrading treatment or punishment if the earlier decision stands, and any court dealing with an application under CPR 52.17 will bear that context in mind.  Having said that, it is to be observed that the approach advocated by Mr Gordon, namely that preferred by the Divisional Court in Hilali of using the writ of habeas corpus, would itself require the applicants to demonstrate that there had been a “fundamental change in the circumstances” since the earlier decision: paragraph 40.  I am not persuaded that there is any significant difference in the height of the hurdle to be surmounted by such an applicant, whether one assumes that habeas corpus is available or one uses CPR 52.17.  The advantage of the latter is that it respects the terms of section 34 of the 2003 Act.  
27.	Miss Dobbin in her reply sought at one point to argue that fresh evidence need not demonstrate any fundamental change in circumstances, and that all that is required is that there should be evidence showing some difference in the circumstances.  Her submission was that, since the court is dealing with an Article 3 issue, it should simply consider afresh whether the new evidence together with the earlier evidence showed, in its judgment, a real risk of Article 3 treatment, irrespective of whether the new evidence went to the root of the earlier Divisional Court decision.  That approach was not adopted by Mr Gordon and it seems to me to be quite wrong.  It means that the proceedings, habeas corpus ones on her argument, would indeed amount to a re-run of the earlier appeal with a bit of extra evidence, and that is exactly what section 34 of the 2003 Act is intended to prevent.  One has, whether in habeas corpus proceedings or under CPR 52.17, to take the Divisional Court’s decision on the appeal under section 26 as the starting point.
28.	There are certain procedural differences between those two procedures, and Mr Lewis for SOCA has emphasised those.  In particular, the habeas corpus route would mean that an applicant could appeal to the House of Lords from a Divisional Court decision without the need for a certificate that a point of law of general public importance was involved.  Thus the extradition process could be prolonged in the way which used to happen prior to the 2003 Act being passed.  That, submits Mr Lewis, is what Parliament sought to avoid by that legislation.  Mr Swift tells us that the Secretary of State shares those concerns.  I see the force of that point, but it is primarily because of section 34 itself and the interpretation which I place upon the House of Lords’ decision in Hilali that I reject the possibility of a habeas corpus application which seeks to overturn the extradition order made by the district judge.  A statutory appeal is the only means of challenge to that, and if there is fresh evidence to demonstrate that the appeal decision was wrong in some fundamental aspect, then the proper course is to apply under CPR 52.17.
29.	To a very large degree it seems to me to make very little difference whether one is using CPR 52.17 or adopting the Divisional Court’s approach in Hilali if that were permissible.  I have approached the fresh evidence on the former basis, but my conclusions would have been the same, had I adopted the latter approach.  Out of an abundance of caution, the applicants seek permission to make an application under CPR 52.17.  We grant permission and treat this as the hearing of the application.
(ii) Is there now fresh evidence?
30.	Much of the material filed in support of this present application cannot by any stretch of the English language be regarded as material which could not with reasonable diligence have been put before the Divisional Court at the end of July 2008.  Much of it is dated well before that hearing and was publicly available.  In the end, there are only three documents which are relied on by the applicants as ones undermining the Divisional Court’s decision.  These are a letter of 11 June 2008 from a representative of the Italian government at the Strasbourg Court to a clerk at that court, responding to a request to state whether a Mr Ben Khemais had been removed to Tunisia, plus an enclosure which was a letter from the Italian Interior Ministry bearing the same date.  I shall come to Mr Ben Khemais case very shortly.  These documents obviously came into existence some weeks before the Divisional Court hearing in this case, but there is evidence that they were not known to the applicants at or before that hearing, and the respondents do not argue that the applicants should have been aware of them.  Secondly, there is a note from the Italian Embassy in Tunisia, dated 25 July 2008, referring to a meeting between representatives of the Italian and Tunisian authorities the day before.  That post-dates the hearing in the Divisional Court and it is not suggested that it is material which the applicants could with reasonable diligence have obtained before the judgment was delivered.  Thirdly, there are the formal Observations of the Italian Government in response to questions sent to it by the Strasbourg Court about its conduct in the Ben Khemais case.  Those are dated 3 September 2008.
31.	All this is new material which was not before the Divisional Court in July this year and in respect of which the applicants cannot be said to be at fault.  To that extent it constitutes fresh evidence.  What then matters is its significance.
(iii) The effect of the fresh evidence:
32.	To consider this issue, it is necessary to refer, as briefly as possible, to the evidence put before the Divisional Court in these proceedings.  That court, like the District Judge, had before it evidence about Italian law on deportation, in particular what is known as the “Pisanu law”.  There was evidence that in the past the Italian government had adopted the practice of expelling foreign nationals believed to threaten national security, even if they might suffer treatment contrary to Article 3 in their own state.  Such had been the practice up to the date of the Strasbourg Court’s decision in Saadi v. Italy (Application no. 37201/06), a judgment dated 28 February 2008.  The District Judge had heard evidence orally from three Italian lawyers on behalf of the applicants, in addition to receiving written reports from them, and he had also had two written opinions from the Italian liaison magistrate in the United Kingdom.  The District Judge had stated:
“I consider there is no reason to suppose that any future deportation proceedings would be anything other than in accordance with the Convention and the case of Saadi v Italy.  I do not regard what has undoubtedly happened in the past as providing evidence that such an approach will be repeated in the future.  Saadi v Italy will cause the Italian authorities to rethink its approach to this issue. ”
33.	Before the Divisional Court on appeal, particular reliance was placed by the applicants on the treatment, subsequent to the Saadi decision and to the District Judge’s decision, of a Mr Ben Khemais, a Tunisian national who was expelled from Italy in early June this year, despite an interim measure under Regulation 39 by the Strasbourg Court requesting a stay on his deportation to Tunisia.  So the Divisional Court had that material before it.  Indeed, it spelt out the details of the case over paragraphs 21 to 23 inclusive of its judgment.  At the end of paragraph 23 it referred to a report that a representative of the Italian Ministry of Justice had said about the case:
“In legal terms, judgments by the European courts (sic) are executive in all European Union countries ….  But it is up to all competent authorities to assess whether there are higher State needs that should prevail.”
The Divisional Court summarised how the appellants, as they then were, relied on that material, referring to Mr Ben Khemais as “BK”: 
“Counsel for the appellants rely on the treatment of BK, first, as showing the inadequacy of judicial safeguards when the executive in Italy makes a deportation order, and secondly, the continued determination of the executive, Saadi notwithstanding, to deport people such as the appellants.”
It also noted that no assurance had been received from the Italian government about the deportation of these three men.
34.	Nonetheless it held that the risk of deportation of these applicants to Tunisia within any predictable timeframe was too remote.  The court emphasised that they would be extradited to Italy under the Framework Decision, which added an additional dimension, requiring as it did co-operation between judicial authorities on the basis of trust and a high level of confidence.  The court regarded that Framework Decision as providing a safeguard and a disincentive to the Italian authorities not to act in breach of Article 3 of the Convention. It said at paragraphs 47 and 48:
“47. This is bilateral action premised on the existence of a high degree of confidence.  Courts in a returning state would be likely to have a real sense of grievance, having regard to the contents of the Framework Directive, if a receiving state subsequently ignored its duty under Article 3 of the Convention.  The Italian government had not hitherto deported in an Article 3 case a person received under the Framework Directive and had not deported in the case of Saadi.

48. Moreover, when the Italian authorities receive a person under the Framework Directive, the entire judiciary, including the Justices of the Peace, is likely to be alerted to its duties under Article 3.  That is certainly so in the current cases.  As Mr Guedalla’s statement demonstrated they have received very considerable publicity in Italy and elsewhere.”
35.	The Divisional Court stated that it was not prepared to hold, on the basis of a single post-Saadi case, that the Italian State would in the present cases ignore its duties under Article 3 of the Convention as confirmed in Saadi.  That “single case” was obviously a reference to what had happened to Mr Khemais.  In addition, the court was evidently also influenced by the fact that these applicants, are sought by Italy with a view to their prosecution, with a  prison sentence being likely on any conviction.  If that happened, any prospect of deportation receded into the future and the court was not prepared to speculate about risk in the long-term or even medium-term future: see paragraphs 38, 41, 51 and 52.
36.	That then was the basis for the Divisional Court’s decision and it is not for this court to sit in judgment on its reasoning.  The Divisional Court took on board (a) the pre-Saadi practice of the Italian government as to deportation; (b) the deportation since Saadi of Mr Khemais, contrary to the Strasbourg Court’s interim measure under rule 39; (c) the reported statement of an Italian Ministry of Justice representative that there might be “higher State needs” that should prevail over judgments by European courts (paragraph 23); (d) the absence of any undertaking by the Italian government about deportation in respect of these applicants.  What we need therefore to ask ourselves is whether the fresh evidence goes significantly beyond these facts already reflected in the Divisional Court’s decision, and in particular whether it undermines that court’s reliance on the Framework Decision context.   
37.	The thrust of the applicants’ case is that the three documents referred to earlier show that the deportation of Mr Ben Khemais to Tunisia cannot be seen as an isolated incident, as the Divisional Court regarded it, but was in fact consistent with an attitude on the part of the Italian government which is prepared to deport suspected terrorists irrespective of Article 3 risks, especially if it has received undertakings from the Tunisian authorities that Article 3 treatment will not occur.  Mr Gordon submits that this evidence now shows a serious possibility of more cases like that of Mr Ben Khemais.  It demonstrates a willingness to rely on Tunisian assurances, which the Strasbourg jurisprudence has established is not a reliable basis for rejecting the risk of Article 3 treatment.  Miss Dobbin adopts the same arguments, emphasising that at the time of the Divisional Court hearing it was not known that Italy would try to justify the deportation of Mr Ben Khemais on the basis of diplomatic assurances.
38.	Taking the three documents in a little more detail, it is argued that the letter and enclosure of 11 June 2008 confirms the fact that Mr Ben Khemais was expelled because he was seen as a threat to the security of the Italian State.  The enclosed letter from the Interior Ministry refers to him being judged “to be a threat to state security” and says in effect that that was why he was expelled.
39.	That is true.  But that does not amount to anything significantly different from what the Divisional Court knew in this case.  It referred in its judgment to the report of a Ministry of Justice representative saying that authorities had to assess “whether there are higher State needs that should prevail” (paragraph 23).  That patently was a reference, given the circumstances, to state security, Mr Ben Khemais having already been convicted of terrorism-related offences.  This piece of new evidence adds nothing to the case.
40.	The second document is the record of the meeting of Italian and Tunisian officials on 24 July 2008.  That begins as follows:
“A technical meeting was held at the Tunisian Justice and Human Rights Ministry yesterday, 24 July, to consider and agree on the assurances that Italy can provide to the Strasbourg Court of Justice (sic) on the well-known case of Essid Sami Ben Khemais.”
One of the Tunisian officials spoke of his country’s willingness to co-operate with Italy on the case of Mr Ben Khemais as well as on other cases likely to arise in the future.  There follows a discussion about the treatment of Mr Ben Khemais in Tunisia, though Tunisia was unwilling to give specific guarantees about his case or to take part in the proceedings before the Strasbourg Court.  The meeting ended with the Italian delegations promising to provide a list of requests about the Ben Khemais case and the Tunisians agreeing to reply as quickly as possible, “not only on this case but also on future similar cases”. 
41.	Mr Gordon stresses that and the earlier reference to the possibility of future cases.  Moreover, this document shows, it is said, that a subsequent statement by the Italian government that Mr Ben Khemais had only been expelled to Tunisia because that country had given effective guarantees was wrong.  That statement does indeed appear in the third document, the Italian Government’s Observations of 3 September 2008 to the Strasbourg Court, to which it is convenient to turn before considering the applicants’ submissions.
42.	Those Observations sought to answer questions put by the Strasbourg Court about the Ben Khemais case.  The Observations seek to justify Italy’s action in deporting him despite the Rule 39 interim measures.  Apart from the statement already referred to, this document argues that there was a need for clarification as to the interrelationship of the ECHR with other international conventions when one is dealing with a suspected terrorist.  Thus the Refugee Convention does not allow for refugee status if the applicant represents a danger to the security of the host State or has committed serious crimes.  After referring to the diplomatic assurances in the Ben Khemais case, it goes on to draw attention to the fact (as it asserts) that that individual had, according to his lawyer, not been mistreated after his arrival and detention in Tunisia.
43.	The applicants submit that this document shows that the Italian government believes that it can safely deport people like Mr Ben Khemais to Tunisia if they receive assurances from that country.  If so, why should not the same approach apply in the case of the applicants?  This evidence about the Italian government’s attitude was not known at the time of the Divisional Court’s decision.
44.	I do not find these arguments persuasive for four reasons.  First, the Observations of 3 September need to be read in context.  As both Mr Gordon and Miss Dobbin accept and indeed assert, those Observations were an attempt by Italy to mount a post-facto justification of its action in deporting Mr Ben Khemais.  It is hardly surprising, when it has breached interim measures of the Strasbourg Court, that it seeks to rely on an alleged need for clarification in the law and on alleged diplomatic assurances.  As the applicants have been at pains to emphasise, it is at the least unclear whether there had been any such assurances in the Ben Khemais case.  I do not accept that those Observations provide any reliable guide to Italy’s future conduct.  More significant would be evidence about its actual conduct, apart from the Ben Khemais case about which the Divisional Court knew.  As for the discussions with the Tunisian authorities, it should not cause either surprise or great concern that Italy should be engaged in them.  Principally they were directed at the Ben Khemais case, but insofar as they touched more generally on the problem of how to deal with suspected terrorists who might be at risk of Article 3 treatment if returned to their own country, they were recognising a problem which is known to concern a number of European governments, including our own.
45.	Secondly, it is not in dispute that there has been no other instance of Italy deporting someone in breach of interim measures or of Article 3 of the ECHR since the Saadi decision.  The Ben Khemais case remains the sole post-Saadi incident.  Thirdly, none of this new evidence has any impact upon the reliance placed by the Divisional Court on how Italy can be expected to behave in respect of someone who has been extradited to that country under the Framework Decision and a European Arrest Warrant.  There is still no evidence of any willingness on the part of Italy to deport such an extradited person to Tunisia or any other country where his Article 3 rights would be at a real risk of being broken.  It follows that the Divisional Court’s reliance on that fact and on the trust and confidence between states which underlies the Framework Decision remains intact and unaffected by the new material.  As I have indicated earlier, that was a powerful element in the Divisional Court’s reasoning.  It adds an extra dimension to the Article 3 issue.
46.	Fourthly, nothing in the new evidence undermines the point made by the Divisional Court that it was agreed that the applicants were genuinely wanted for trial in Italy and that (in the court’s view) there was no risk of deportation while criminal proceedings and any resulting custodial sentence were extant, so that any risk was “to that extent remote from the current situation” (paragraph 51).  As Miss Dobbin confirmed to us, it was known that Mr Ben Khemais had both been convicted in the past and faced further criminal charges and the Divisional Court also had evidence about the general length of custodial sentences in such cases.  Nothing on those aspects has changed since that court’s decision.
47.	Consequently, I cannot accept that the fresh evidence meets either the test required for a re-opening of the Divisional Court’s appeal decision under the Taylor v. Lawrence jurisdiction or that applicable on habeas corpus proceedings if the Divisional Court’s approach in Hilali were to be followed.  The fresh evidence does not show that the appeal decision was reached on some fundamentally erroneous basis of fact.  This is not in any sense an exceptional case.
(iv) The asylum issue:
48.	I can be very brief on this.  Mr Gordon recognised in argument that the asylum claim of Ignaoua and the refugee status of Khemiri really adds nothing of significance to the main arguments.  If the Divisional Court’s appeal decision stands, as I find it must, it follows that there is not a real risk of these applicants being re-fouled by Italy to Tunisia, which is where the risk of persecution is acknowledged to exist.  Consequently their extradition to Italy could not interfere with any of their rights under the Refugee Convention.  No procedural bar is said to exist to their extradition on asylum grounds.  This is a makeweight to the applicants’ case, nothing more.
Conclusion:
49.	For the reasons I have set out, I for my part would refuse the applications for habeas corpus, both on the basis that this court has no jurisdiction in the matter and alternatively on the basis that, if there was jurisdiction, the applications should be refused on their merits.  For the same reason, I would refuse to re-open the appeal to the Divisional Court which was determined on 28 July 2008. 
Mr Justice Owen:
50.	I agree.

Post Judgment Discussion
1.    LORD JUSTICE KEENE:  Yes. Are there any applications?  The injunction, I think, Mr Gordon, automatically falls, does it not?  

1.1.	MR GORDON:  Yes, it does, my Lord. My Lord, I think first of all probably the first application would be one of relating to costs.  I should simply tell the court that the claimants whom we represent, and I believe that Miss Dobbin represents are all legally aided.  So I ask for the usual legal aid taxation but no further order. My Lords certainly some issues do arise in relation to my next application.
1.2.	LORD JUSTICE KEENE:  Shall we take these applications seriatim.  Costs?  
1.3.	MR SWIFT:  I have no application to make on behalf of the Secretary of State. 
1.4.	MR THOMPSON:  Nor do I.  
1.5.	LORD JUSTICE KEENE:  In that case, we will make no order as to costs save as to legal aid taxation in respect of your own position.  
1.6.	MR GORDON:  What next arises before any application for permission to appeal, or certification of any points, is the question of when such applications, if made, must be made.  I say that because your Lordships have given, as I understand it, permission under 52.17, permission to re‑open the appeal.  Your Lordships have therefore re‑opened the appeal.  Had your Lordships not granted permission, of course, we would have had no appeal under 52.17.7.  I can take your Lordship to that provision.  But the effect, as I understand it, in granting permission, is that the appeal is re‑opened albeit your Lordships have reached the same decision as the Divisional Court reached and one interfered with the decision. 
1.7.	What that leads to, in our submission, is consideration of the provisions of the Extradition Act.  Could I invite your Lordships either to look at it in the White Book or in tab 5 ‑‑ tab 1 I should say of the first authorities bundle.
1.8.	If one goes to section 32, we see that an appeal to the House of Lords ‑‑ I am sorry an appeal 32.1, an appeal lies to the House of Lords.  That appeal, subsection (3), lies only with the leave of the High Court or the House of Lords and then 4, the point about the need for a certificate.  Then, if one turns ‑‑ if your Lordships turn to section 36 of the Act, this section applies if there is an appeal to the High Court under section 26.  That, we submit, to be the result of permission to re‑open the appeal.  The effect of the decision of the relevant court on the appeal is the person is to be extradited there.  The person must be extradited to the category 1 territory before the end of the required period and then the required period is 10 days starting ‑‑ this is subsection (3) ‑‑ with the day on which the decision of the relevant court becomes final.  That is the material part.
1.9.	LORD JUSTICE KEENE:  Yes.  
1.10.	MR GORDON:  If one goes to subsection (4), the relevant court is the High Court.  The House of Lords, if there is an appeal and then we have in subsection (5), the date of finality of the High Court order, the decision of the High Court on the appeal becomes final (a) when the period permitted for applying to the High Court for leave to appeal ends, if there is no such application and so on.  What this comes to in effect is a mechanism laid down by statute for (a) the making of applications for leave to appeal, which is 14 days into the Act, the making of an application for certification of points of law and thereafter a statutory scheme, if points are certified if permission is given to appeal or, finality, if no point of law is certified or if permission to appeal is refused.
1.11.	My Lord, although the Act itself does not make 100 per cent clear that extradition is precluded, if an appeal is pending, because all it says is "extradition shall take place within a particular period after the court's decision becomes final." There is authority from the House of Lords as to what the Act means.  May I just hand that to your Lordships  (Same handed) The case of Pilecki v Circuit Court of Legnica Poland.  In this rather unfortunate case what happened was there was certification and there was permission to appeal in an extradition case.  If your Lordships turn to paragraph 12 in the speech of Lord Hope, it is Lord Hope again in fact, we see this, at page 329E:  
"The appellant lodged his petition for leave to appeal to your Lordships on 4 September 2007 while he was being held on remand at Feltham Young Offenders Institution. His petition had been served on the Crown on 3 September 2007. On 12 September 2007 his solicitor was informed that the appellant had been removed to Poland. It is plain that this should not have happened. The appellant’s petition for leave was still pending. So the decision of the High Court had not yet become final for the purposes of section 36(5) of the 2003 Act. The Serious Organised Crime Agency was informed that that a point of law of general public importance had been certified and that the appellant had 14 days within which to lodge his petition."  
Then at paragraph 13, it appears that in that case it did not matter as much because only declaratory relief was being sought but at H, Lord Hope says this:  
"I would nevertheless wish to make it clear that, where a point of law of general public importance has been certified under section 32(4) of the 2003 Act with the result that an application for leave to appeal to this House becomes competent, the proper procedure is for inquiries to be made with the Judicial Office as to what progress, if any, has been made with the application before it is concluded that a decision of the High Court has become final." 
What we submit, with great respect, is that this does not matter so much perhaps so much in the case of it now, but it is going to have a crucial effect on the case of Khemiri and Chehidi.  
1.12.	What we submit is, and I am instructed to take this point before the court for clarification.  In relation to the conclusions in your Lordship's judgments, in relation to the effect of those conclusions and in relation to the statutory regime as to time, simply to clarify that we do have the usual period provided by statutes to request leave to appeal and to request certification of points of law.  Obviously we need to think carefully about what your Lordships' judgment says any way in relation to how we formulate those points.  But obviously if we do have that time, linked with the decision that I have read to your Lordships in the case Pilecki, it would have a direct and obvious impact on what is said to be the urgency of this case.  
1.13.	Before leaving the point, may I also indicate to your Lordships that we are very concerned about the evidence of  asserted urgency.  Your Lordships will have seen, hopefully, the two different witness statements of Mr Mulder.  Having now been present at all these hearings, that is to say the 10th October one as well, what was said to the court on 10th October was that if these claimants were not returned by ‑‑ I think it was the 15th October ‑‑ then everything would fall apart.  We simply did not have, and still do not have the evidence to contradict that.  It is now said, far from being 15th October, although that was correct on the 8th October, of course the hearing was on 10th October, we now know that the claimants, on any view, fall into two distinct parts and that the urgency in relation to Mr Ignaoua is far less.  
1.14.	My Lord, also I feel before leaving all these points, I should give the court the full picture in terms of  procedure.  As we understand it, the House of Lords has been alerted to this case and knows about it, and I can certainly say it would be ‑‑ there is the possibility that the House of Lords would be available to consider at least a petition if it was lodged before 5th November.  But I mention all these factors so your Lordships know what the factual position is, what we say about it and what the courts might be able to do.  But the first question, before I make any application for injunction, for permission to appeal and points to certify is whether we have to do anything today at all in view of the conclusions that your Lordships have reached on the judgment.
1.15.	LORD JUSTICE KEENE:  Let me clear up one thing.  We have not re‑opened the appeal.  We gave you permission to apply to re‑open, permission being required under 52.17.4.  
1.16.	MR GORDON:  Is it the view of the court ‑‑ I simply need to clarify this ‑‑ that none of the time limits in the Extradition Act apply because it would have been our submission, although your Lordships have not in fact altered the decision of the Divisional Court, your Lordships have reopened the extent of considering evidence, but have not interfered with the original court decision.
1.17.	LORD JUSTICE KEENE:  Refused to re‑open.  We allow you to make the application.  
1.18.	MR GORDON:  That is what I wanted to clarify.  Your Lordship sees why it could be very important.
1.19.	LORD JUSTICE KEENE:  What you have to bear in mind, Mr Gordon, is that our dismissal of your applications both the habeas and the one you made under 52.17 is operative as of today unless we make an order staying that decision of ours.  The House of Lords have no power to stay.  
1.20.	MR GORDON:  Of course not. That is the point.  What I wanted to clarify, before making any application, was whether your Lordships having regard to the terms of the Act have considered that your Lordship's decision was not final until those time limits kicked in. I think what your Lordships have said by reference to....
1.21.	LORD JUSTICE KEENE:  That only arises because of the statutory limit on the period which have to get your petition in.  Is that what you are talking about? 
1.22.	MR GORDON:  It is not just that, it would also have the effect, that if we have 14 days to certification, in now October, if we had thereafter a time to put the petition, it would follow from the case that I handed up, that the claimants shall not be extradited.
1.23.	LORD JUSTICE KEENE:  Those are time limits, those periods you refer to.  They are not ones which in making any order for a stay this court will necessarily grant you.  We may take the view, you should act rather more quickly in the circumstances of this case.  We may grant a stay which limits the time in effect for you getting a petition if we refuse leave to appeal, assuming you have a right of appeal with leave, to something shorter than the full period.  
1.24.	MR GORDON:  There were two different points. I appreciate that if the statutory time limits and the Extradition Act do not kick in at all, as a result of your Lordship's judgment, I need to make an application for a stay, and not just a stay but also a pretty urgent application.  
1.25.	LORD JUSTICE KEENE:  You do that, you need that any way, do you not?  
1.26.	MR GORDON:  I was simply querying that. If the effect of your Lordships' judgment ‑‑ which I have not read, I have heard ‑‑ if the effect of your Lordships' judgment is that the appeal, and I think this is what your Lordship has said, the appeal, although permission has been granted, the appeal has not been reopened, then it may well be that the automatic right to say pending appeal, which we say is to be derived from the Extradition Act, falls away.   
1.27.	LORD JUSTICE KEENE:  That is the position.  I am sorry it was not clear. I think in the written text ‑‑ my Lord is just confirming to me his view, which is the same as mine. We granted permission to apply to re‑open, we refused the application to re‑open.  
1.28.	MR GORDON:  On that basis I am then driven to make my next application.  
1.29.	The first is, that I suppose a stay immediately because without that, as your Lordships have indicated, the injunction has lapsed.
1.30.	LORD JUSTICE KEENE:  Your clients can be removed today.
1.31.	MR GORDON:  Exactly.  My Lord, we submit that there should be a stay as of now for the following:  a very urgent consideration of questions of law to invite your Lords to certify.  That would obviously be done very quickly, but we obviously have to read the judgment, take it in and formulate some questions and hopefully agree them with the other side.  Normally we would have I think 14 days.
1.32.	LORD JUSTICE KEENE:  Mr Gordon, the criminal Bar manages to formulate its question when judgment is given.  I cannot see any reason why those who do not come from the criminal Bar should be in any more difficult position.  
1.33.	MR GORDON:  It is not that.  We do not need very long.  We do need to have your Lordships' judgment in front of us.  I would anticipate something in the region of an hour to get those questions formulated.  That is all I am really thinking of.  But the second application will be for permission to appeal.
1.34.	My Lord, if the reality of this that your Lordships will certify the points of law, I appreciate your Lordships do not know what they are, your Lordships can anticipate that it is going to relate to particularly the jurisdiction issue and the correct test to be applied, whichever process is involved.  If your Lordships were minded to certify, but not to grant permission to appeal, I appreciate that decision has not been made yet, as I have already indicated, their Lordships' House are likely to be able to consider this matter very quickly.  It would be my intention to draft a petition today and to lodge it with the House of Lords at close of play today.  In those circumstances, we would now, slightly moving forward in time, but we would invite your Lordships to grant a stay of your Lordships' judgment to allow for urgent consideration by their Lordships' House.
1.35.	LORD JUSTICE KEENE:  I am wondering, Mr Gordon, it occurs to me, you do need a certificate, do you?  I simply raise that issue because, in so far as you have dealt with your application under 52.17, why you have no right of appeal at all in refusal of permission‑‑
1.36.	MR GORDON:  Your Lordship had granted permission.  
1.37.	LORD JUSTICE KEENE:  Yes, I know, that is what I am saying.  There is no right of appeal from the decision on the application for permission.  You do not need that because we have granted it, but I think without a certificate you may still be entitled to appeal under that Practice Direction without a certificate if we grant leave?
1.38.	MR GORDON:  I had not appreciated that, my Lord.  All we are concerned with is obviously getting the matter‑‑ 
1.39.	LORD JUSTICE KEENE:  I do not know, I am just pondering.  The decision of course. It clearly was a criminal causal matter and did require a certificate.  If we are refusing to re‑opening, that amounts to probably the same thing. 
1.40.	MR GORDON:  I wondered if we did not need a certificate for that reason. 
1.41.	LORD JUSTICE KEENE:  Sorry to think aloud.  On the other aspect, where we have made a ruling that we do not have jurisdiction in respect of the habeas corpus applications, do you need a certificate? 
1.42.	MR GORDON:  No.  If in fact your Lordships had a jurisdiction, we would not have needed the certificate for an appeal to their Lordships' House.  Does the position change however if your Lordships hold that you do not have jurisdiction.  It did seem to us that the difficulty, the one difficulty might be that without jurisdiction we do not get over the particular hurdle.  
1.43.	LORD JUSTICE KEENE:  We have no jurisdiction to grant leave. 
1.44.	MR GORDON:  But it would be extremely unfortunate if that very important question, which affects the whole procedure were not certified for the avoidance of doubt in any event.  My Lord, the practical basis of what I am submitting to the court is a space of time to enable this matter to be considered by their Lordships' House because of the importance.  It obviously is important because it raises a whole range of different issues about the kind of situation we are in.  My Lord, that is really what I am getting at. I do not want to take any technical points.
1.45.	LORD JUSTICE KEENE:  If we were to refuse you leave but grant you a certificate, if one is required, you have talked about lodging a petition by the close of play today.  If you had a stay which stayed any extradition of your client for 24 hours, let us say for you to get that petition lodged and thereafter until that petition had been determined and any appeal had been determined, that would meet your requirements?  
1.46.	MR GORDON:  That would, absolutely.  That is what we are seeking.  
1.47.	LORD JUSTICE KEENE:  Do you want to say anything for the moment.  
1.48.	MR SWIFT:  On the question of the need for a certificate, at least in relation to the refusal of the writ, I would suggest that Mr Gordon does not need a certificate by reason of the provision of section 50 of the 1960 Act.
1.49.	LORD JUSTICE KEENE:  He clearly does not if we are refusing the habeas corpus application on its merits.  The legislation is perfectly clear on that.  There is no need for a certificate.  His problem, as he rightly identifies, is that we have ruled that we do not have jurisdiction to deal with the application.  I myself would have thought that you would not need to certify in respect of that either.   
1.50.	MR SWIFT:  I would suggest that the substantive outcome that Mr Gordan is appealing against is the refusal of the writ.  There are obviously (inaudible) for that refusal one appeals the order of the court rather than the reasons for it.  In those circumstances, I would suggest, at least in so far as the habeas application is concerned, this is a situation falling within section 15 of the 1960 Act.  So certification is not required.
1.51.	LORD JUSTICE KEENE:  Would you have any problem if out of an abundance of caution we were to certify, assuming we can be persuaded by Mr Gordon that he has an appropriate point of public importance?  
1.52.	MR SWIFT:  Can I have a moment?
1.53.	LORD JUSTICE KEENE:  The decision we have made on the jurisdiction side is actually also of general importance.  
1.54.	MR SWIFT:  Can I say for now, in so to the extent that Mr Gordon does make an application for any formal stay effectively an application prolonging the injunction granted by King J, that would be a matter that would be resisted by the Secretary of State.
1.55.	LORD JUSTICE KEENE:  Bear in mind what we are suggesting is a short stay.  He talks about getting a petition in by the end of today but if we gave him 24 hours and then thereafter for the petition to be determined, bear in mind the House of Lords is able to deal with petitions very quickly.
1.56.	MR SWIFT:  I do have those circumstances well in mind.  
1.57.	LORD JUSTICE KEENE:  As Mr Gordon has said, they have been alerted to the possibility of the need to act quickly.  
1.58.	MR SWIFT:  I do have those circumstances well in mind and perhaps an appropriate time I can explain briefly the basis on which the opposition is raised.
1.59.	LORD JUSTICE KEENE:  I can see that if he does lodge a petition it might require you or those instructing you to get their act together pretty fast to. 
1.60.	MR SWIFT:  That is not the reason that the application to maintain the injunction would be opposed.  
1.61.	In substance the position is this.  Mr Gordon may well raise a very interesting point of law as to the availability or not of habeas corpus, but you should bear in mind that the premiss on which the injunction was based was that there was or perhaps might be new evidence that suggested that if these gentlemen were extradited, they would be at risk of onward deportation and therefore Article 3 risk.  That is the basis on which the injunction was granted and I would suggest that is the only basis on which the injunction is to be continued.  However, given this court's clear conclusions that there is no reason to reopen the substance of the appeal, that there are in fact no substantial grounds for believing these gentlemen will be at risk of deportation from Italy, I would say, shortly, that there is no basis on which the injunction should be continued.  The interesting point of law is a matter entirely separate from whether or not an injunction should be granted that actually prohibits and prevents these gentlemen's removal from the United Kingdom.  That is the short basis.  We have two tracks here. The important one is:  what is the risk to these people?  What is the Article 3 risk?  In fact there is no basis now for maintaining King J's injunction.
1.62.	LORD JUSTICE KEENE:  If we are wrong on the jurisdiction point and we have to face the possibility that we are not infallible, then there is no requirement for a certificate, in order to go to the Lords. One does need leave, but even if we refuse leave their Lordships can grant it.  Should they be deprived of that possibility which is what you are effectively saying? 
1.63.	MR SWIFT:  My Lord, I am not saying that they should be deprived of that possibility because clearly they can move quickly to seek permission from the Lords and, if necessary, seek some form of indication from the Lords as to what should happen on the extradition order.  My Lord my concern is this, that given that the Article 3 point has, I would suggest been now dealt with definitively, that there should be no possibility that an injunction be maintained simply because there was once an Article 3 issue in this case.  My Lord, my concern is simply this.  If this matter then moves to a new court, effectively the House of Lords that court will not have the particular vision of the Article 3 merits that this court has had following the hearing and the risk is that one simply gets the injunction being maintained out of an abundance of caution, without recognition that the Article 3 point is now dead.
1.64.	LORD JUSTICE KEENE:  I think you have to trust their Lordships' House.
1.65.	MR SWIFT:  My Lord, I would suggest that this court is very well placed to take a view on whether an injunction should be maintained.  Otherwise the only basis for maintaining the injunction would now be to permit Mr Gordon so see if he could get permission, wants to pursue this perhaps interesting point of law but that is neither here nor there when it comes to the position of his client, the factual position of his clients which after all have been the very basis of everything.
1.66.	LORD JUSTICE KEENE:  If a petition gets to the House of Lords on that assumption, they may well take the same view that we have taken about the ultimate merits in which case they will almost certainly refuse leave.
1.67.	MR SWIFT:  The interesting point of law is the availability of habeas.  The continued presence of these gentlemen in this country is neither here nor there to the determination of that point.  What was here or there for the purposes of their presence was the Article 3 point.  That is now, I would suggest, dead.  So Mr Gordan can pursue his interesting point of law if he wants to; he does not need his clients in this country to do it.  But all he has left is an interesting point of law.  That is the thing to focus on.
1.68.	LORD JUSTICE KEENE:  Okay.
1.69.	MR THOMPSON:  Can I address the court very briefly on the issue of urgency?  My Lord have a copy of Mr Mulner's second witness statement.  
1.70.	LORD JUSTICE KEENE:  Remind me of the easiest place to find it.  
1.71.	MR THOMPSON:  I have lent my copy to my learned friend, tab 8 at the small‑‑ 
1.72.	LORD JUSTICE KEENE:  Yes.  
1.73.	MR THOMPSON:  The position so far as urgency is concerned has not changed at all during the course of these hearings. The position as a matter of Italian law, as we understand it, is as follows.  The custody time limits in respect of the two of the claimants expired on 5th November and in respect of the third, on about the 22nd, I think. What this court was told, and our instructions were on 10th October, and this came from the Italian prosecutors with the conduct of prosecution, which I should say is a multi handed case and these are but three of a number of other defendants who in respect of him the trial is sought at the beginning of next year, that unless they were returned by 15th October, which date now has obviously passed, it would cause significant difficulties in committing these three for trial.  We have recently taken instructions from the Italian authorities in light of the listing of this hearing and the position is as now follows as set out at the second page of Mr Mulner's witness statement paragraph 4 (ii).  The key point is this, unless in respect of two of the claimants, Chehidi and Khemiri, they are returned to Italy by 3rd November, which is next Monday, that causes insurmountable difficulties in terms of committal. My understanding is that although the custody time limits expire on the 5th, as a matter of Italian court administration there are only fixed dates for committal hearings and the latest committal hearing is Monday 3rd November.  So, my Lord, putting it bluntly, the Italians will be unable to commit two of these claimants for trial unless they are returned to Italy by the 3rd. My Lord, I simply set this out so that the court is aware of the position.  The other I ought to mention‑‑ 
1.74.	LORD JUSTICE KEENE:  I cannot imagine that the Italian courts cannot move rapidly in a serious case as they regard as serious.  
1.75.	MR THOMPSON:  Those are my instructions, so I cannot go any further than that.  The other point I should make is this.  I am told this weekend is some form of public holiday.  My Lord will appreciate the transfer of three individuals such as these, who are accused of serious terrorism related offences, is not a matter that can take place simply at the click of fingers.  A number of different agencies and organisations play a part in transfer from the domestic prison here to a secure location to transfer to a certain type of aircraft and so on. These arrangements are made, can be made on a provisional basis.  This has already happened once before, prior to the last hearing on 7th October, when the ex parte application was made to King J.  Those arrangements can be in place, but they need to take place within the next at the latest 36 hours.  I simply set it out so the court is aware.  For what is worth, I entirely endorse the submissions of my learned friend, Mr Swift, in saying that the key issue in terms of the facts of this case has been resolved by my Lords in this court, so far as the Article 3 point is concerned.  If there is a point to pursued as a matter of general public importance, that can be pursued in the court above if the claimants wish to make the application.  I would endorse the view that no stay should be granted by this court, so a surrender can be effective in relation to all three of these defendants within the next day or so.
1.76.	LORD JUSTICE KEENE:  Thank you.  
1.77.	Mr Gordon, we do not need to trouble on this but we are anxious that you should move rapidly if you are going to try to formulate a point of law of general public importance. 
1.78.	MR GORDON:  I wondered if I could suggest a formulation to the court, and do it now, if at all possible.
1.79.	LORD JUSTICE KEENE:  Yes. That is what I was encouraging you to do.  
1.80.	MR GORDON:  But please forgive inelegance: 
"Does the Divisional Court have jurisdiction to entertain an application for habeas corpus after the conclusion of an appeal under section 26 of the Extradition Act 2003 on the basis of evidence not available to the Divisional Court that determined the section 26 appeal.  If there is jurisdiction, what is the test in deciding whether to grant or to refuse the writ of habeas corpus in a case where Article 3 claims are advanced?" 
That is a formulation, my Lord.  I do not know if it meets  the rigour of syntax, but that is the guts of it.  
1.81.	LORD JUSTICE KEENE:  We will rise for 5 minutes, to give you a chance to think about that and indeed have a word with those opposing counsel and then we will return and give some rulings.  Have you got copies of our judgments?  They are available somewhere in the court, I believe.
1.82.	MR GORDON:  May I throw one further thought because I know that my instructing solicitors is very concerned, he is concerned about the copies that have to be made.  When I mentioned the end of the day, I meant of course drafting the petition.  I will be able to draft it today, but it still has to be lodged with the judicial office.  One certainly has recollection of protocol and copies and all sorts of procedure that has to be adopted.  I just wanted to make sure your Lordships were giving 24 hours to lodge it.  
1.83.	LORD JUSTICE KEENE:  I mean, what my Lord has been suggesting to me, and it seems to give you 10.30 until tomorrow morning to get the petition.  That should mean if you get a draft by the close of play tonight, then you would be able to get the formalities done and printing lodged with the Committee's office in good time by then.  
1.84.	MR GORDON:  May I just take brief instructions. (Pause) My Lord, I am very grateful.
1.85.	MR SWIFT:  If it helps Miss Clement has had the advantage of having been a judicial assistant to the Lords in previous occasion.  She tells me there is no need for an application such as this to be bound, it simply needs to be printed on a sheet of A4 paper and faxed to the office.  I am told they are open until 5.00 today.
1.86.	LORD JUSTICE KEENE:  I have no doubt that an urgent case in the House of Lords can move as rapidly as any other of our courts despite the normal finalities that are required.  But we would still be minded, if we are inclined to view the favour of what Mr Gordon is pressing upon us, in effect extending the injunction until 10.30 tomorrow morning. 
1.87.	MR SWIFT:  I am hoping to save Mr Gordon some stitching time.   
(Short Adjournment) 
1.88.	LORD JUSTICE KEENE:  We have given you slightly more than 5 minutes, I hope that has been useful. 
1.89.	MR GORDON:  Subject to the infelicities of drafting I would have been happy to stick to my question.  My learned friend, Mr Swift, is saying that in relation to the second part of it, which is:  what is the test?  Because there was not any issue below as to between us as to what the test was, ie serious possibility of breach of Article 3, therefore, we do not need the second part.  But with respect, I know what his position was more articulately than I have, we do submit that there needs to be a second part to the question so my Lords can address the threshold phase.  Your Lordship recall Miss Dobbin put a further point which was rejected by the court but who knows how the House of Lords would approach it.  We tend to think that the question at the moment does not need amplification.  Indeed to try to amplify it gets you into more syntactical difficulties.  I would therefore prefer to stay where we were. Miss Dobbin is drafting a further draft in case your Lordships need it or wanted it.
1.90.	LORD JUSTICE KEENE:  In a fair hand you mean?  
1.91.	MR GORDON:  A fair hand, much better that mine would be. I can give your Lordships the formulation if it is necessary.
1.92.	LORD JUSTICE KEENE:  Has it changed from the wording you had given us before? 
1.93.	MR GORDON:  Only in the sense that my learned friend, Miss Dobbin, has been expanding the question to deal with what Mr Swift says needs expansion in the second part.  He says there is no issue about the test.
1.94.	MR SWIFT:  Would it help if I explain?  
1.95.	LORD JUSTICE KEENE:  Yes, it would. 
1.96.	MR SWIFT:  The second part of the question, as I noted it down, is that if there is jurisdiction, "what is the test for deciding whether to grant or refuse the writ of habeas corpus in a case where Article 3 claims are advanced".  I presume what that is focusing on:  what are you looking for if you have already had a section 26 appeal and then there is habeas application?  On that point there was no difference between Mr Gordon's submission and mine.  Mr Gordon agreed with the point I made at paragraph 39 of my skeleton argument which is to the extent that, if there was room for a habeas corpus application, the starting point for consideration would be the conclusions of the Divisional Court and the question would be whether there was anything that had materially undermined any of those key conclusions of that court.
On the basis of the position as between me and Mr Gordon, I say this second part of his question simply does not arise as an issue in this appeal.  If the point is put by Miss Dobbin argued that you do not need something fundamental, you just need something.  I would say that is not a point of general public importance.
1.97.	LORD JUSTICE KEENE:  You are saying, as I understand it, Mr Gordon's submission is that the Divisional Court tests if there is jurisdiction is the appropriate one. 
1.98.	MR SWIFT:  As I understand it there was not really a difference between Mr Gordon and me on that and certainly when my Lord was putting the point to Mr Gordon in submissions as to whether it is exceptional, it is important, Mr Gordon was accepting that.  Miss Dobbin clearly did not, but I say that the fact that she did not does not actually identify this matter as a point of general public importance.  
1.99.	MR GORDON:  May I just come back on that.  We are agreed, I think, that certainly my learned friend Mr Swift and I are agreed that the test cannot ignore what happened on the appeal.  What the formulation of Mr Swift in paragraph 39 misses out is the burden of proof dimension which I mentioned yesterday, in other words what the Divisional Court in Hilali was not encompassing because it was not a comprehensive formulation, was what I have submitted to the court, which was:  does the new evidence show a serious possibility of a breach of Article 3, sufficient to require the respondent to dispel the doubts thereby created?  That is consistent with the Divisional Court's formulation because the Divisional Court's formulation says it has to go to the root of the case etcetera.  What I think Miss Dobbin was submitting was something rather different.  There has got to be some new evidence.  Now, I would prefer, therefore, to leave the question as it is.  Miss Dobbin can put in her petition, her rather more extreme point, by I stick to my formulation but I am not sure that Mr Swift ever really addressed the burden of  proof.  I certainly would not want it to be thought that we were not saying anything that did not amplify what the Divisional Court had said in Hilali.
1.100.	LORD JUSTICE KEENE:  Miss Dobbin, do you want to say anything?  
1.101.	MISS DOBBIN:  My Lord, as regards whether or not it is an important point, you will recollect that higher court in Hilali recognised there was not any authority as to what the test should be, and my point was what was critical whether or not there was evidence located a breach in Article 3 where there had not been previously, and that should not rest on test of exceptionality.  My Lord, I have drafted the question on that basis, using the test in the High Court in Hilali and whether or not that is correct.  
1.102.	LORD JUSTICE KEENE:  Yes.
1.103.	MISS DOBBIN:  If the House of Lords is going to consider the issue of whether or not the jurisdiction exists then what the test is fundamental and integral to that.
1.104.	LORD JUSTICE KEENE:  Bear with us a moment. 
(The Bench Conferred) 
1.105.	LORD JUSTICE KEENE:  Mr Swift, do you want to say anything further, I saw you hovering? 
1.106.	MR SWIFT:  I am leaping up and down in spring.  In relation to burden of proof.  The burden of proof point was not a point in this case.  It is clear under Article 3 it is for the person claiming the possibility.
1.107.	LORD JUSTICE KEENE:  I am not sure you mean burden of proof, you mean standard of proof not burden of proof.
1.108.	MR SWIFT:  Standard proof is clear, there has to be substantial grounds for believing that there would be a real risk of exposure to Article 3 ill treatment.  That is the standard that has been constant since Siri(?).  There is no issue in that appeal as to this.  Everything else is simply a matter perhaps of evidential burden rather than legal burden and this is an area, I will suggest, where matters of burden are best left at that level of principle, rather than obfuscating the real issue which is the existence or not of substantial grounds of belief.  My Lord, I would suggest that again that was not an issue in this case.
1.109.	LORD JUSTICE KEENE:  Mr Gordon, how were you seeking to put this second question now?   There is nothing about standard or burden of proof in the formulation you have given.  
1.110.	MR GORDON:  No.  I do not think Miss Dobbin has read her formulation out to your Lordships but I just want to go to.  I would have preferred to have left it: "What is the test in determining whether to grant habeas corpus where Article 3 rights are engaged?" Perhaps one could add to that: "Specifically is the correct test that the new evidence must raise serious doubts as to whether the claimant's Article 3 rights would be violated and is there material before the court to dispel such doubts if they exist."
1.111.	I think, as I say Miss Dobbin has another formulation, and because she has another formulation I think my first thoughts may have been correct, to leave it as it is because one is going to be drafting a petition where these matters would be spelt out in much more detail.
1.112.	LORD JUSTICE KEENE:  Do you want to say anything further? 
1.113.	MISS DOBBIN:  Do you want me to read the question out? 
1.114.	LORD JUSTICE KEENE:  If you have a different formulation you better do so.
1.115.	 MRS JUSTICE DOBBS:  "Is there a jurisdiction to consider an application for habeas corpus in circumstances where there has already been an appeal under section 26 of the Extradition Act 2003 on the same question, is the threshold only passed where there is a development which subverts the basis of the appeal decision?" And that was the test in Hilali which the House of Lords did not consider because of  what is‑‑ 
1.116.	LORD JUSTICE KEENE:  You are trying to go further than Hilali?  
1.117.	MISS DOBBIN:  Yes.
1.118.	LORD JUSTICE KEENE:  All right, bear with us.  
(The Been Conferred) 
1.119.	LORD JUSTICE KEENE:  We will deal then with the various applications before us.  
1.120.	First of all, if and insofar as a certificate of a point of law of general public importance is required in this case, we are prepared to certify but we will only certify the first of the questions as put forward by Mr Gordon.  It does not seem to us that the second of those questions actually calls for consideration by the House of Lords in the light of the decision that has already been made by the Divisional Court in Hilali as the appropriate approach.  Likewise, we are not prepared to certify the formulation put forward by Miss Dobbin.  It does not seem to us to be appropriate that the House of Lords should be troubled with that particular issue which has found no favour heretofore, not even at Divisional Court level.
1.121.	But we would ask Mr Gordon to make sure that the Associate has in writing the wording of the first of the questions which you have formulated.  
1.122.	MR GORDON:  In other words, the question I had formulated before your Lordships retired.
1.123.	LORD JUSTICE KEENE:  That omits the second part of it.  
1.124.	We are prepared to certify to that extent.  We are not prepared to grant leave.  The applicants will have to seek that from their Lordships' House.  We ourselves take the view that we have arrived at a conclusion on the merits of this case which provides a complete answer.
1.125.	In the light of what Mr Gordon has said to us, we are prepared to continue the injunction granted first by King J and continued then by the Divisional Court until 10.30 tomorrow morning.  If by that time no petition for leave to appeal has been lodged with the House of Lords, the injunction will lapse.  If, however, a petition has been lodged with the House of Lords by 10.30 on behalf of all or any of the applicants, then the injunction will continue until the petition and any appeal that might follow has been disposed of.
1.126.	The House of Lords no doubt make its own directions as to how any petition is to be dealt with.
1.127.	MR SWIFT:  I am sorry to rise after you have given your ruling, but might it not be appropriate for the position to be that if the House of Lords ‑‑ if the petition is lodged, whether the injunction should continue after 10.30 tomorrow should be a matter for their Lordships.  Because, my Lord, the point is this.  It would be perfectly possible for their Lordships to conclude that firstly that they wanted to entertain the petition on this point, that nevertheless they were not minded to grant the injunction precisely because the submissions I have made earlier as to Article 3 might find more favour there than here.
1.128.	LORD JUSTICE KEENE:   No, I am afraid we are not persuaded by you on that.  Our order stands in the terms that we have just given.  That I think disposes of everything, does it not?  Thank you all very much.