Abu Hamza, Khalid Al Fawaz, Abdel Bary, Babar Ahmad, Talha Ahsan v Secretary of State for the Home Department

JurisdictionEngland & Wales
CourtQueen's Bench Division (Administrative Court)
JudgeMr Justice Ouseley,Ouseley J,Sir John Thomas P
Judgment Date05 October 2012
Neutral Citation[2012] EWHC 2736 (Admin)
Date05 October 2012
Docket NumberCase Nos: CO/10214/2012, CO/10190/2012, CO/10416/2012, CO/10393/2012, CO/10556/2012,CO/10214/2012, CO/10190/2012, CO/10416/2012, CO/10393/2012, CO/10556/2012

[2012] EWHC 2736 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

DIVISIONAL COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Before :

President of the Queen's Bench Division

and

Mr Justice Ouseley

Case Nos: CO/10214/2012, CO/10190/2012, CO/10416/2012, CO/10393/2012, CO/10556/2012

Between:
Abu Hamza, Khalid Al Fawaz, Abdel Bary, Babar Ahmad, Talha Ahsan
Claimants
and
Secretary of State for the Home Department
Defendant

Mr Alun Jones QC and Mr Ben Brandon (instructed by Sonn Macmillan Walker) for the Claimant Abu Hamza

Mr Edward Fitzgerald QC and Mr Malcolm Hawkes (instructed by Quist Solicitors) for the Claimant Al Fawaz

Ms Phillippa Kaufmann QC and Mr Ben Cooper (instructed by Birnberg Peirce & Partners) for the Claimant Babar Ahmad

Mr Hugh Southey QC and Mr Ben Cooper (instructed by Birnberg Peirce & Partners) for the Claimant Abdel Bary

Mr James Eadie QC, Mr Ben WatsonandMs Heather Oliver (instructed by Treasury Solicitor) for the Secretary of State for the Home Department

Ms Clair Dobbin (instructed by Crown Prosecution Service) for The Government of the USA (Abu Hamza)

Mr James Lewis QC (instructed by Crown Prosecution Service) for The Government of the USA (Al Fawaz & Abdel Bary)

Mr Patrick O'Connor QC (instructed by Ward Hadaway) for Mr Karl Watkin, Interested Party

Mr Jeremy Johnson QC (instructed by Metropolitan Police Solicitor) for Commissioner of the Metropolitan Police

Mr John McGuinness QC (instructed by Crown Prosecution Service) for Director of Public Prosecutions

Hearing dates: 2, 3 & 4 October 2012

The President of the Queen's Bench Division:

This is the judgment of the court.

INTRODUCTION

1

Each of the five claimants is the subject of an extradition request issued by the Government of the United States of America in order that each of them may stand trial in that country for terrorism related offences. Each has brought separate claims for judicial review and for stays of their extradition, raising different issues in each case, except for an issue common to four of them relating to the prison conditions they would experience at ADX Florence, Colorado.

2

These proceedings are the latest and, if we refuse permission, the last, in a lengthy process of appeals and applications that has continued for some 8 years in the case of two and 6, 13 and 14 years in the case of three. The background procedural facts of each individual may briefly be summarised as follows.

Al Fawaz and Abdel Bary

3

Al Fawaz's extradition was requested in September 1998, some 14 years ago. The District Judge ruled on 8 September 1999 that his extradition could proceed. His appeal to the High Court by way of an application for a writ of habeas corpus was rejected on 30 November 2000.

4

Abdel Bary's extradition was requested in July 1999. The District Judge ruled on 25 April 2000 that his extradition could proceed. His appeal to the High Court was dismissed on 2 May 2000.

5

Both of those proceedings are governed by the old law applicable under the Extradition Act 1989.

6

Both Al Fawaz and Abdel Bary appealed to the House of Lords where their appeal was dismissed on 17 December 2001, with the court finding that the claimants were liable to extradition to the United States on the existence of a prima facie case of conspiracy to murder, of which the most terrible manifestation was the bombing of two US Embassies in East Africa, in which over 200 people were killed and 4,500 injured. After several representations to the Secretary of State between November 2001 and December 2005, the Secretary of State rejected both claimants' representations on 12 March 2008, finding that the United States' assurances could be relied on and that the claimants were not at risk of the death penalty.

7

Al Fawaz and Abdel Bary subsequently applied for judicial review of the Secretary of State's decision. On 7 August 2009 Scott Baker LJ found that there was effective judicial oversight of 'supermax' prisons and considered that neither of the claimants' cases crossed the Article 3 threshold. Although a point was certified for the Supreme Court in relation to the compatibility of ADX prison conditions with Article 3, on 16 December 2009, the Supreme Court refused permission to appeal.

Abu Hamza

8

Abu Hamza's extradition was requested by the United States on 21 May 2004, now over eight years ago. The case against him is that he conspired to take hostages in the Yemen, to set up a terrorist training camp in Oregon and to give other support to terrorists. He was arrested in London on 5 August 2004. Abu Hamza served seven years' imprisonment after being convicted of offences in the United Kingdom. Thereafter extradition proceedings were resumed, with the Senior District Judge ruling on 15 November 2007 that his extradition could take place. The Secretary of State ordered his extradition on 7 February 2008. The High Court rejected Abu Hamza's appeal on 20 June 2008 and also refused on 23 July 2008 to certify a point of law that would permit an appeal to the House of Lords.

Babar Ahmad

9

Babar Ahmad was arrested in London on 5 August 2004. The case against Babar Ahmad is that through websites operated from the UK and a mirror website in the US and by extensive e-mail correspondence, he solicited funds for terrorism for the Taliban and other Mujahideen. A material part of that effort was directed at the United States. The most serious allegation is communication with an enlistee in the US Navy when on patrol, his encouragement of that person and the possession of details of the vulnerability of a US battle formation in the Straits of Hormuz; the allegation is to the effect that the enlistee was encouraged to betray his fellow crew members and his country.

10

The CPS declined in 2004 to prosecute on the basis that there was insufficient evidence in the UK for a successful prosecution. He was charged in the United States. On 17 May 2005 the Senior District Judge ruled that his extradition could proceed. On 15 November 2005 Babar Ahmad's extradition was ordered. Babar Ahmad's appeal to the High Court was rejected on 30 November 2006. On 6 June 2007 the House of Lords refused leave to appeal.

Talha Ahsan

11

Talha Ahsan's extradition was requested on 15 September 2006. The case against him is similar to that against Babar Ahmad. The Senior District Judge ruled on 19 March 2007 that his extradition could proceed. The Secretary of State then ordered his extradition on 14 June 2007. His appeal was refused by the High Court on 14 April 2008, and a month later that court refused to certify a point of law that would permit an appeal to the House of Lords.

The claimants' ECtHR Appeals

12

Each of the claimants, after the decision of the UK courts permitting extradition, applied to the ECtHR.

13

On 6 July 2010 the European Court of Human Rights declared admissible the five claimants' complaints concerning detention at ADX Florence "supermax" prison and the imposition of Special Administrative Measures (SAMs) if convicted. Under Rule 39 of the Rules of that Court, the court indicated to the UK Government that it would be desirable in the interests of justice not to extradite the claimants until further notice.

14

The following issues were declared inadmissible by the Court. Abu Hamza's complaint in respect of ADX Florence was deemed inadmissible, with the court finding that as a result of his medical conditions there was no real risk of his spending more than a short period in ADX Florence. The court further declared inadmissible each of the claimants' complaints based on Articles 6 and 8 in respect of detention at ADX Florence.

15

Following the court's admissibility decision the Government of the United Kingdom and the claimants filed observations with the court. The court also received third-party comments from various non-governmental organisations. On 10 April 2012 five judges of the Fourth Section of the Court dismissed each of the five claimants' cases. On 24 September 2012 the petition for the claimants' case to be referred to the Grand Chamber was refused.

16

As a result of that decision, and with the bar to extradition and the Rule 39 order now being removed, each of the five claimants has brought proceedings before this court to challenge the refusal of the SSHD to delay or prevent their surrender to the United States.

Nature of the challenges in this court

17

The four claimants other than Abu Hamza have sought to argue before us that the prison conditions they would face at ADX Florence 'super max' prison in Colorado would be incompatible with Article 3 of the European Convention on Human Rights. Abu Hamza does not face a real risk of more than a very short term of detention there.

18

The individual challenges are as follows:

i) Al Fawaz seeks to challenge the order that exists for his surrender. He submits that new evidence casts doubt on the existence of a prima facie case against him and on the US Government's good faith in continuing to seek his extradition. Proof of a prima facie case was required under the 1989 Act.

ii) Abdel Bary also submits that new evidence has arisen to cast doubt as to whether there is a prima facie case against him. In addition he contends that because of a deterioration in his psychiatric condition, extradition would be a breach of Article 3.

iii) Abu Hamza seeks an injunction to give him time to seek to re-open the statutory appeal under Rule 52.17 of the Civil Procedure Rules 1998 that was determined against him on 20 June 2008. He submits that new evidence has arisen which shows he is unfit to plead, and that this issue should be...

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