Government of the United States of America v Brian Dempsey
| Jurisdiction | England & Wales |
| Judge | Mr Justice William Davis |
| Judgment Date | 06 July 2018 |
| Neutral Citation | [2018] EWHC 1724 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/5167/2017 |
| Date | 06 July 2018 |
[2018] EWHC 1724 (Admin)
Lord Justice Gross
and
Mr Justice William Davis
Case No: CO/5167/2017
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Admin
David Perry QC & Richard Evans (instructed by the Crown Prosecution Service) for the Applicant
Simon Farrell QC & Ben Cooper (instructed by JFH Law) for the Respondent
Hearing dates: 7 June 2018
Judgment Approved
Introduction
This is the judgment of the Court to which we have each contributed.
Brian Dempsey (“the Respondent”) is a citizen of the United States. On 23 June 2016 a grand jury sitting in the Eastern District of California returned an indictment charging the Respondent with a single offence, namely making a false statement involving international terrorism contrary to Title 18, United States Code, Section 1001. Based on that indictment the U.S. District Court for the Eastern District of California issued a warrant for his arrest. The Government of the United States of America (“the Appellant”) on 27 September 2016 requested the extradition of the Respondent from the United Kingdom, the Respondent having come to England in September 2014.
The Respondent was arrested pursuant to the Appellant's extradition request on 17 January 2017. He contested the extradition request. A substantive hearing in respect of the request was conducted on 14 and 29 September 2017 in the Westminster Magistrates' Court before District Judge (Magistrates' Court) Kenneth Grant. The Respondent argued that the alleged conduct, if committed in the United Kingdom, would not amount to a criminal offence such that the offence was not an extradition offence. In the alternative he argued that the request was politically motivated so as to offend Section 81 of the Extradition Act 2003 (“the Act”) and/or was an abuse of the process of the court.
The District Judge rejected the argument that the request for extradition was politically motivated. He also rejected the proposition that the request amounted to an abuse of process. However, the District Judge concluded that the alleged conduct did not amount to an extradition offence. Having so concluded, he discharged the Respondent.
The Appellant now appeals with leave of the single judge against the decision of the District Judge to discharge the Respondent. In addition to resisting that appeal the Respondent applies for permission to appeal against the rejection by the District Judge of his arguments in respect of the request being politically motivated and/or amounting to an abuse of process.
Factual and procedural background
On or about 5 August 2013 the U.S. Federal Bureau of Investigation (“FBI”) opened an investigation into the Respondent travelling to Syria, the indication being that he had travelled to Syria in order to fight in that country. Later in that month the FBI became aware that the Respondent was to land at Fiumicino Airport in Rome. On 22 August 2013 an agent of the FBI interviewed the Respondent at the airport. In the course of the interview the Respondent said the following:
• He and another person had decided some months before to travel to Syria to help refugees.
• He had no intention to fight in Syria.
• He had asked his brother to enquire of the U.S. Department of State whether it was legal for him to enter Syria.
• He had generally resided in Azaz when he had been in Syria. He had encountered no members of any terrorist organisation or of the Free Syrian Army whilst he had been there.
• There was no-one in Azaz who was involved in fighting those supporting the incumbent government of Bashar al-Assad.
At the conclusion of the interview the Respondent asked the agent of the FBI whether “if I did actually fight in Syria would I be arrested?”
Upon completion of this interview the Respondent returned to Syria. At that point he was subject to a “no fly” restriction in respect of the United States. In January 2014 he returned to Rome where he was questioned again by an agent of the FBI. He then gave a different account of events. He admitted that he had travelled to Syria with the intention of fighting. This admission was corroborated by what the Respondent told a witness in the United States prior to travelling to Syria as to his intention once in Syria. He said that he had joined a group called Ahrar al-Sham in Azaz and, with that group, had engaged in fighting on at least two occasions. This assertion was supported by material retrieved from the Respondent's computer which showed on-line searches for Ahrar al-Sham prior to his departure for Syria. He stated that he understood that his brother intended to call the U.S. Department of State but that this was with a view to stopping the Respondent from travelling to Syria. He acknowledged that Azaz was largely populated by fighters aligned against the government of Bashar al-Assad.
The offence with which the Respondent has been indicted in the United States requires proof of four elements:
• The Respondent made a false statement in a matter within the jurisdiction of the Executive Branch of the Government of the United States.
• The Respondent acted wilfully i.e. deliberately and with knowledge (a) that the statement was untrue and (b) that his conduct was unlawful.
• The statement was material to an investigation i.e. if believed it had a natural tendency to influence or was capable of influencing the FBI's decisions or activities.
• The offence involved international or domestic terrorism.
The District Judge received evidence from Jean Hobler, an Assistant United States Attorney for the Eastern District of California, and Michael J Dittoe, a federal prosecutor with the Counter Terrorism Section of the U.S. Department of Justice. Jean Hobler's evidence established that the Respondent had been employed as a peace officer (or law enforcement officer) within the penal system in California from 2001. As such he would have been aware of unlawfulness of making untrue statements to the FBI. Mr Dittoe's evidence dealt with the evidence of Eric Lewis, an attorney practising in Washington DC, adduced on behalf of the Respondent in the proceedings before the District Judge. Mr Lewis stated that the facts taken at their highest could not involve any criminal offence because the Respondent was entitled to combatant immunity. Mr Dittoe explained why this proposition was untenable.
The judgment of the District Judge
The District Judge established that all of the preliminary procedural requirements had been satisfied. He identified that the principal issue was whether the offence set out in the request was an extradition offence. Before addressing that point, he reviewed the evidence of Eric Lewis, in particular what Mr Lewis said when cross-examined. The effect of that evidence taken as a whole was that, whilst the defence suggested by Mr Lewis technically might be available, in practical terms it would not succeed.
In relation to the question of whether the request had been made in relation to an extradition offence, the District Judge noted that the conduct set out in the request was said to amount to the offence of perverting the course of public justice. He cited the relevant passages in the main criminal textbooks: Blackstone's Criminal Practice at 14.35; Archbold at 28–4/5. He described the case law on the point in issue as “thin”. He referred to two decisions of the Court of Appeal Criminal Division: Sookoo [2002] EWCA Crim 800; Hamshaw [2003] EWCA Crim 2435. Both cases were instances of an arrested person giving false details on arrest. The Court of Appeal was concerned in each case with the sentence imposed though observations were made about the prosecutorial propriety of charging a defendant with the offence of perverting the course of public justice in such circumstances.
Having conducted this brief review of English authority, the District Judge said:
“ Whilst both cases (i.e.SookooandHamshaw) are of a completely different order to that of the (Respondent's) case there is remarkably little case law to assist. The (Appellant) is unable to refer to any case law which assists the contention that “making a false statement with no prior indication of the unlawfulness of doing so constitutes the common law criminal offence of perverting the course of public justice…..” Moreover, the (Appellant) has not shown that (the Respondent's) alleged conduct was intended to pervert the course of public justice.
I am also not satisfied that the consequences of the (Respondent's) action are such that UK law would provide for extraterritorial jurisdiction under similar circumstances…
…The (Appellant's) assertion that the intended effect (or actual effect) of the false statements was to prejudice (or potentially prejudice) the criminal investigation in the United States could hold water only if (the Respondent) were aware of the criminal investigation in question. However, the (Appellant's) submissions to date suggest only that (the Respondent) was aware he was being interviewed by an FBI agent not that he was aware that the interview was being conducted pursuant to particular criminal or judicial proceedings.”
The District Judge then concluded that the Appellant had not demonstrated that the conduct alleged on the part of the Respondent would amount to the offence of perverting the course of public justice. In relation to extra-territoriality he said that he was not satisfied that the consequences of the Respondent's conduct were such that UK law would provide for jurisdiction in those circumstances.
The District Judge dealt succinctly with the proposition that the Respondent's extradition should be barred because his extradition or any subsequent trial...
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