Ahmad and Aswat v Government of the US
| Jurisdiction | England & Wales |
| Judge | LAWS LJ:,Mr Justice Walker: |
| Judgment Date | 30 November 2006 |
| Neutral Citation | [2006] EWHC 2927 (Admin) |
| Docket Number | Case No: CO/9789/2005 & CO/2290/2006 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 30 November 2006 |
[2006] EWHC 2927 (Admin)
Lord Justice Laws
Mr Justice Walker
Case No: CO/9789/2005 & CO/2290/2006
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Edward Fitzgerald QC and Mr Julian Knowles (instructed by Birnberg Peirce) for the 1 st Appellant
Mr Edward Fitzgerald QC and Mr Paul Hynes (instructed by Birnberg Peirce) for the 2 nd Appellant
Mr John Hardy, Mr Hugo Keith and Miss Dobbin (instructed by CPS) for the Government of the United States of America
Mr Philip Sales and Ms Deok Joo Rhee for the Secretary of State for the Home Department
INTRODUCTORY: BACKGROUND FACTS
This is another case about extradition to the United States of America pursuant to provisions contained in the Extradition Act 2003 ("the 2003 Act"). The proceedings are by way of statutory appeals brought under the 2003 Act. I shall introduce the relevant provisions in due course.
On 28 July 2004 the United States District Court for the District of Connecticut issued a criminal complaint against Mr Ahmad and a warrant for his arrest. The offences specified on the warrant were described thus: "material support of terrorism, prohibited support of the Taliban, conspiracy to kill persons in a foreign country, money laundering, solicitation and conspiracy". On 6 October 2004 a federal grand jury sitting in Bridgeport, Connecticut, returned an indictment against Mr Ahmad alleging the commission of four felonies between 1997 and August 2004: conspiracy to provide material support to terrorists; providing material support to terrorists; conspiracy to kill, kidnap, maim or injure persons or damage property in a foreign country; and money laundering. In light of one of the submissions advanced on Mr Ahmad's behalf by Mr Fitzgerald QC I should notice that among the particulars given of the conspiracy there are allegations that in the years 1997–2000 Mr Ahmad furnished support for the Mujahideen in Chechnya and for the Taliban in Afghanistan. The Mujahideen and the Taliban constituted or formed part of the de facto governments of those territories at the material time. Mr Fitzgerald says that to the extent that these allegations are relied on, the charge against Mr Ahmad is not one of an "extradition offence" within the meaning of s.137 of the 2003 Act. I will explain in due course how the argument is put.
On 7 October 2004 the District Court issued a new arrest warrant against Mr Ahmad, superseding the July version, so as to reflect the offences alleged in the indictment returned by the grand jury the day before.
Mr Aswat is wanted to stand trial in the United States District Court for the Southern District of New York. In his case there is a federal grand jury indictment containing eleven counts. He is jointly indicted with a man called Abu Hamza. Mr Aswat is charged only on counts 3–6. The essence of the allegations is that he became involved in a conspiracy with Abu Hamza and others to establish a jihad training camp in Bly, Oregon. In light of one of Mr Fitzgerald's arguments in Mr Aswat's case I should indicate that a principal witness on whose testimony the prosecutor proposes to rely is a man called Ujaama, who is said to have proposed that the camp be established so as to provide various types of military training including weapons and firearms training for men who would then go and fight in Afghanistan. Mr Ujaama was himself charged but entered into a plea agreement. Mr Fitzgerald says that Mr Ujaama was coerced into providing evidence against Mr Aswat by the threat that if he did not he would be sent to the United States' detention facility at what is called the North Carolina brig (not Guantanamo Bay in Cuba, because Mr Ujaama is a United States citizen). It is said that the threat is implicit in a promise contained within the plea agreement to the effect that if he kept his bargain he would not be detained as an enemy combatant and hence not be sent to the detention facility.
In order to understand the nature of the extradition process, its application on the facts of this case, and the basis of the appeals, it is convenient first to introduce the relevant provisions of the 2003 Act.
The 2003 Act created a new extradition regime. Part I has its genesis in the Council Framework Decision of 2002 on the European arrest warrant, and contains provisions dealing with extradition from the United Kingdom to what are called "category 1" territories, that is to say territories designated as such by order of the Secretary of State. These are in effect (to date at least) the European Union countries which operate the European arrest warrant. I need not describe the Part I procedures, save to note that they are largely replicated in Part II, with which we are directly concerned.
Part II deals with "category 2" territories. These also are designated by order of the Secretary of State. A principal category 2 territory is the United States. So it is the provisions of Part II that are engaged in this case. S.73 (which was deployed in these cases) provides for the issue out of a magistrates court of a provisional warrant of arrest if certain conditions are satisfied. S.70 requires the Secretary of State to issue a certificate "if he receives a valid request for the extradition to a category 2 territory of a person who is in the United Kingdom". In this case there is no dispute as to the statutory validity of the request that was made in respect of either claimant. Upon the certificate's issue the Secretary of State must (s.70(9)) send the documents to the appropriate judge (here, the Bow Street district judge, who is designated for the purpose). The judge may then (s.71(2)) "issue a warrant for the arrest of the person whose extradition is requested" if certain conditions are fulfilled. The first condition is that "the offence in respect of which extradition is requested is an extradition offence".
As for the extradition hearing itself, under s.78(2) the judge must decide whether he has the documents which the Act requires. In this case there is no contest about that. By s.78(4) the judge must then proceed to decide further questions, one of which is whether "(b) the offence specified in the request is an extradition offence". If this hurdle is overcome the judge must next proceed under s.79 which is cross-headed "Bars to extradition". There are four such bars, of which the second (s.79(1)(b)) is "extraneous considerations" and is engaged by one of Mr Fitzgerald's submissions. "Extraneous considerations" are dealt with in s.81, which provides in part:
"A person's extradition to a category 2 territory is barred by reason of extraneous considerations if (and only if) it appears that –
…
(b) if extradited he might be prejudiced at his trial or punished, detained or restricted in his personal liberty by reason of his race, religion, nationality, gender, sexual orientation or political opinions."
If there are no bars to extradition, the judge is required by s.79(4) to proceed under s.84. By s.84(1) he must decide whether there is evidence to demonstrate a prima facie case, unless s.84(7) applies. That provides:
"If the judge is required to proceed under this section and the category 2 territory to which extradition is requested is designated for the purposes of this section by order made by the Secretary of State –
(a) the judge must not decide under subsection (1), and
(b) he must proceed under section 87."
The United States is so designated, by the Extradition Act 2003 (Designation of Part 2 Territories) Order 2003. So no prima facie case has to be shown in relation to a prospective extraditee to that country. S.87 provides:
"(1) If the judge is required to proceed under this section (by virtue of section 84…) he must decide whether the person's extradition would be compatible with the Convention rights within the meaning of the Human Rights Act 1998.
(2) If the judge decides the question in subsection (1) in the negative he must order the person's discharge.
(3) If the judge decides that question in the affirmative he must send the case to the Secretary of State for his decision whether the person is to be extradited."
The Secretary of State's functions are conferred by ss.93 ff. I need not however describe them because the appeals against the Secretary of State's decisions in this case have been withdrawn, in circumstances I will explain.
I may turn now to the appeal provisions. There are separate rights of appeal against decisions of the judge, and against an order for extradition made by the Secretary of State. As for the first, s.103 provides so far as material:
"(1) If the judge sends a case to the Secretary of State under this Part for his decision whether a person is to be extradited, the person may appeal to the High Court against the relevant decision.
…
(3) The relevant decision is the decision that resulted in the case being sent to the Secretary of State.
(4) An appeal under this section may be brought on a question of law or fact.
(5) If an appeal is brought under this section before the Secretary of State has decided whether the person is to be extradited the appeal must not be heard until after the Secretary of State has made his decision.
…"
S.104:
"(1) On an appeal under section 103 the High Court may –
(a) allow the appeal;
(b) direct the judge to decide again a question (or questions) which he decided at the extradition hearing;
(c) dismiss the appeal.
(2) The court may allow...
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