Minh Quang Pham v The United States of America
| Jurisdiction | England & Wales |
| Judge | Lord Justice Aikens |
| Judgment Date | 12 December 2014 |
| Neutral Citation | [2014] EWHC 4167 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/387/2014 |
| Date | 12 December 2014 |
[2014] EWHC 4167 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Aikens
Mr Justice Simon
Case No: CO/387/2014
Hugh Southey QC & Malcolm Hawkes (instructed by JD Spicer ZEB) for the Appellant
Peter Caldwell & Myles Grandison (instructed by the Crown Prosecution Service) for the Respondent
Hearing dates: 15–16/07/2014
Further written submissions 17/11/14, 24/11/14 and 1/12/14
This is the judgment of the court to which both of us have contributed.
I. The story so far.
The United States government seeks the extradition of Minh Quang Pham, a British resident, 1 whom we shall refer to as the appellant, so that he can face five charges in the US District Court for the Southern District of New York. All the charges allege extra-territorial terrorist offences. They are: (1) conspiracy to provide material support for a terrorist organisation; (2) providing and attempting to provide material support for a terrorist organisation; (3) conspiracy to receive military-type training from a foreign terrorist organisation; (4) receipt of military-type training from a foreign terrorist organisation; and (5) possessing, carrying and using a firearm.
In outline it is alleged that on 1 December 2010 the appellant left his wife, who was then heavily pregnant with their first child, travelled from the UK to the Yemen and stayed there for seven months. It is said that, whilst there, the appellant met Ahmed Abdulkadir Warsame, who has since become a "co-operating witness" of the US prosecuting authorities and who will be the principal witness for the prosecution in any trial of the appellant in the USA. It will be Mr Warsame's evidence that he and the appellant met at several safe-houses of al Qa'ida in the Arab Penninsula ("AQAP") over the course of several weeks in March and April 2011. At a number of those meetings the appellant was (according to Mr Warsame) carrying a Kalashnikov assault rifle. Mr Warsame states that the appellant told him that he had travelled to the Yemen in order to join AQAP so as to wage jihad on behalf of AQAP and to martyr himself for AQAP's cause. Mr Warsame will say that the appellant stated that he had been trained in the use of the Kalashnikov by AQAP in the Yemen and that he had sworn an oath of loyalty ( bayat) in the presence of an AQAP commander. Mr Warsame will say that he observed the appellant with two prominent AQAP members, who were US citizens, probably Samir Khan and Anwar al-Awlaki, who are now dead. Mr Warsame will also state that the appellant told him that he had worked with Samir Khan, who was responsible for editing and publishing an English on-line publication called Inspire magazine. This publication is used by AQAP to distribute propaganda and to recruit individuals from Western cultures to join or support AQAP. The appellant has computer skills and it is alleged that he assisted in the production and editing of Inspire.
The USA has been designated a "category 2" territory for the purposes of the Extradition Act 2003, ("the EA"), so that Part 2 of that Act applies to requests for extradition to that country. On 24 August 2012, the Secretary of State for the Home Department ("SSHD") certified that the request of the USA for the extradition of the appellant was valid and had been made in the approved way for the purposes of section 70 of the EA. The appellant opposed his case being sent to the SSHD for her decision on whether he was to be extradited. There was therefore a hearing before
District Judge Nicholas Evans over several dates during July and October 2013, in which the appellant challenged the request for extradition on a large number of grounds, to which we will refer as necessary below. The judge had before him much written evidence and he also heard oral evidence from various expert witnesses. The parties submitted voluminous written submissions, which were excessive in length. In a judgment handed down on 26 November 2013, the District Judge rejected all the grounds of challenge advanced by the appellant. Therefore, pursuant to section 87(3), the District Judge sent the case to the SSHD for her decision on whether the appellant should be extradited. The SSHD made her decision to order the extradition of the appellant on 22 January 2014.The appellant has appealed to this court pursuant to section 103(1) of the EA. Under section 103(4) the appellant is entitled to raise both questions of fact and law in an appeal against the decision of the District Judge to send the extradition request to the SSHD. In summary, the appellant's case on appeal is that the District Judge ("DJ") erred on the following eight respects. (1) The principal evidence against the appellant is that of Mr Warsame and the DJ erred in concluding that there was not a "real risk", or that it was not "likely", that the evidence of Mr Warsame against the appellant was obtained through torture or inhuman or degrading treatment whilst Mr Warsame was questioned on board USS Boxer where he was held "incommunicado" for 8 weeks. The DJ should have concluded, as a matter of the common law, that this evidence could not found the extradition of the appellant. If the DJ had not so erred, he would have been bound to order the discharge of the appellant. (2) The DJ erred in concluding that there was not a real risk of Mr Warsame's evidence being admitted at a trial of the appellant in the US. Further or alternatively, there was a "real risk" that the prosecution would introduce expert evidence (through a "case agent") in order to provide background to the operations of AQAP, such evidence could include material obtained through torture and the admission of that evidence could not be effectively challenged in the US trial procedure. The DJ should have concluded that either one of these risks would result in a "flagrant breach" of the appellant's under Article 6 of the European Convention on Human Rights ("ECHR") to a fair trial. This would make the appellant's extradition incompatible with his ECHR rights, so the DJ should have discharged the appellant, pursuant to section 87(2) of the EA. (3) If the appellant were to be extradited, he would be held on remand subject to Special Administrative Measures ("SAMs"), including his being the subject of a warrant to eavesdrop on him, which would be granted pursuant to 28 USC (a "Title III" warrant) or the Foreign Intelligence Surveillance Act ("FISA"). The consequence of these measures together would be that he would be unable to prepare for his trial, which would therefore be so unfair as to amount to a "flagrant breach" of the appellant's Article 6(1) rights. The DJ erred in not reaching that conclusion. (4) If the appellant were to be extradited, tried and convicted he would be subject to such stringent prison conditions at the US Penitentiary Administrative Maximum Facility, Florence, Colorado ("AMX"); this would amount to an infringement of his right under Article 3 of the ECHR not to be subjected to inhuman or degrading treatment or punishment. The DJ erred in not reaching that conclusion. (5) The DJ erred in failing to conclude that the length of the sentence that the appellant faced was likely to be 50 or 60 years, which would be (a) totally disproportionate and, (b) in any event, would be "irreducible". In either case, the sentence would be such that extradition would amount to a breach of his Article 3 rights. (6) The DJ erred in rejecting the evidence of Dr Thomas concerning the mental health of the appellant. That evidence had a material effect on the issue of whether detention in the AMX, subject to SAMs, and the length and nature of any potential sentence would mean that his extradition would be in breach of the appellant's Article 3 rights. (7) The DJ erred in rejecting the argument that the appellant's extradition would be a disproportionate breach of his Article 8 rights to family life, particularly as he could be prosecuted in the UK for substantially the same offences for which his extradition is sought. (8) Finally, the DJ erred in rejecting the argument that the extradition of the appellant is prohibited by the "forum bar", which has been introduced into the EA at section 83A by virtue of the amendments made to the EA pursuant to Schedule 20 of the Crime and Courts Act 2013.
Mr Southey also raised a further point concerning the conduct of District Judge Evans during the extradition hearing. It is said that he had prepared his written judgment, including a section on the "forum bar" issue, before he had heard oral argument on the point on 25 November 2013. As a result it is said that in his Ruling of 25 November 2013 he failed to deal with key arguments that Mr Southey wished to raise. It is said that this is evidence of bias by the judge and it taints his other findings of fact and law.
Lastly, we must deal with the argument that if the appellant were to succeed in his case in the Supreme Court on the issue of his citizenship, it would provide him with a further argument based on his Article 6 rights.
We heard oral argument on 15 and 16 July 2014 on all these topics save for (5)(b) above. The issue of the extent to which the extradition of a person who faced the prospect of an "irreducible" sentence which was either very long or for life would be contrary to the person's Article 3 rights had been argued extensively before a differently constituted Divisional Court on 18 – 19 June 2014, in Harkins v USA,(" Harkins 2"), 2 in...
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