Muhammed Asif Hafeez v Government of the United States of America
| Jurisdiction | England & Wales |
| Judge | Mr Justice William Davis |
| Judgment Date | 31 January 2020 |
| Neutral Citation | [2020] EWHC 155 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/1097/2019 |
| Date | 31 January 2020 |
and
[2020] EWHC 155 (Admin)
Lord Justice Hamblen
Mr Justice William Davis
Case No: CO/1097/2019
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Edward Fitzgerald QC & Ben Cooper (instructed by BDP Pitmans LLP) for the Applicant
Rosemary Davidson (instructed by CPS) for the Respondent
Hearing dates: 5 th December 2019
Approved Judgment
This is the judgment of the court.
Introduction
On 11 January 2019 District Judge (Magistrates' Court) Zani (“the District Judge”) sent the case of Muhammad Asif Hafeez to the Secretary of State for the Home Department for a decision as to whether Mr Hafeez was to be extradited to the United States of America. On 5 March 2019 the Secretary of State ordered his extradition to the United States.
Mr Hafeez applied for permission to appeal against the decision of the District Judge. Sir Wyn Williams on 27 September 2019 ordered a rolled-up hearing of the application for permission and, if permission were to be granted, the substantive appeal.
The charges in respect of which the Government of the United States (“the US Government”) sought the extradition of Mr Hafeez were:
(i) Conspiracy to import heroin into the United States of America.
(ii) Conspiracy to import methamphetamines and hashish into the United States of America.
(iii) Aiding and abetting the manufacture/distribution of heroin, knowing and intending that it would be imported into the United States of America.
Before the District Judge Mr Hafeez argued that his extradition to the United States would violate his rights pursuant to Article 3 of the European Convention on Human Rights (“the Convention”) in two respects. First, if convicted, he would be likely to be sentenced to life imprisonment without parole without any or any sufficient mechanism of review for his continued detention under that sentence. Second, he would be detained both pre-conviction and post-conviction in conditions which were likely to be inhuman. Associated with these arguments was the submission that Mr Hafeez's physical and mental health was such that it would be oppressive to order his extradition i.e. the bar under Section 91 of the Extradition Act 2003 (“the Act”). Mr Hafeez further argued that the US Government based its case on evidence from men alleged to be accomplices of Hafeez when those men had been unlawfully rendered by the Kenyan authorities to the US Government. As such the application for extradition was an abuse of process and any trial in the United States would amount to a breach of Article 6 of the Convention. The District Judge resolved all of those issues against Mr Hafeez. He submits that the District Judge was wrong to do so.
The alleged offences
The US Drug Enforcement Agency (“DEA”) between 2014 and 2017 conducted an investigation into proposed importation of drugs into the United States, the geographical centre of the investigation being Kenya. In the course of that investigation the DEA co-operating sources were used by the DEA to contact a man named Baktash Akasha. The sources posed as Columbian drug traffickers wishing to obtain heroin for importation into the United States. They had various discussions with Akasha during the autumn of 2014 during which he apparently agreed that he could obtain heroin. He told the sources that his supplier was from Pakistan and went by various pseudonyms, one of which was the Sultan. Akasha was part of a criminal group which included his brother, Ibrahim, Vijay Goswami and Ghulam Hussein. In October 2014 98 kilos of heroin were delivered to the sources, the delivery said to have been organised by those four men in conjunction with the Sultan. In November 2014 the four men were arrested. The US Government's case is that the Sultan thereafter was identified as Muhammad Hafeez.
The four men arrested in November 2014 were later released on bail in Kenya. The US Government's case is that one of the men bailed, Vijay Goswami, then agreed with Mr Hafeez to set up a factory to manufacture methamphetamine. The proposal was for the factory to be in Mozambique. A precursor chemical element in the manufacture of methamphetamine is ephedrine. In 2016 authorities in India seized a very large quantity of ephedrine from a factory in Solapur in India, this said to have been intended for use in the factory in Mozambique. The intended destination of the methamphetamine, once produced, was said to be the United States.
The evidence supporting the US Government's case as rehearsed in the extradition request comes from recordings made by the co-operating sources coupled with material obtained from various electronic devices seized from the four men first arrested in November 2014.
The DEA previously had investigated Mr Hafeez. In 2004 another co-operating source used by the DEA made direct contact with Mr Hafeez. Mr Hafeez is said to have sought the assistance of the source in concealing drugs in container shipments so that the drugs could be sent to the United States. In December 2004 acting on information supplied by the source Greek authorities seized approximately 6.5 tonnes of hashish from a container. The DEA directed the source to inform Mr Hafeez that the container was being held at a warehouse in Piraeus. Thereafter, an individual arrived at the warehouse to inspect the container though he could not be linked conclusively to Mr Hafeez.
Proceedings in Kenya
After the Akasha brothers, Goswami and Hussein were arrested in Kenya, the US Government made an extradition request in relation to all four men, the alleged offence being conspiracy to import heroin into the United States. The prosecution of those extradition proceedings was delayed by applications being filed in the course of the proceedings. The precise nature of the applications is not apparent because a number of court files has been lost, misplaced or archived. There was a petition of some kind directed at the constitutional propriety of the proceedings. Associated with this petition in early 2016 was an application for a stay of the extradition proceedings.
By early December 2016 some progress had been made in the proceedings. The US Government had presented its case. This had not involved the calling of any witness from the United States. Rather, the US Government relied on the sworn affidavits of US witnesses. However, the subjects of the extradition request applied for those witnesses to attend for cross-examination. The court directed that the US witnesses should attend for that purpose.
The US Government objected to this direction and applied to the High Court in Kenya for a review of the lower court's order. What order (if any) was made by the High Court is not apparent from the available evidence. The resumed extradition hearing was due to take place on 30 January 2017. There is a suggestion that the High Court made an order which operated as a stay on the extradition proceedings. Whatever the position in terms of applications and court orders, no hearing did take place on 30 January. On that date the subjects of the extradition request no longer were in Kenya.
This was because the Kenyan authorities had arrested the four men on different dates on and after 23 January 2017. For whatever reason the Kenyan authorities had decided to expel the men. Those authorities handed the men over to US Government DEA agents. On 30 January 2017 all four were before a court in New York.
At around the same time those representing the men in Kenya obtained orders from the High Court in Kenya directing the Kenyan authorities to produce the men and restraining the authorities from removing the men from the jurisdiction. These orders were of no practical effect because by the time they were made the men had left Kenya.
US Proceedings
Since their arrival in the United States, a fresh indictment (known as a superseding indictment) has been returned by the grand jury in relation to the Akasha brothers and Hussein. It charges them inter alia with a conspiracy to pay bribes to officials in Kenya to avoid extradition to the United States. Following the handing down of this indictment the Akasha brothers applied for disclosure by the US Government of documents relating to their “extradition and/or expulsion from Kenya”. In their application they stated that their defence was that they had been forcibly kidnapped by US Government agents. As victims of such kidnapping the US court had no jurisdiction to try them.
The application was refused by the court in a ruling dated 2 July 2018. The US District Judge acknowledged that a US court would decline jurisdiction to try a defendant first detained in another country where the transfer of the defendant from that country to the United States violated the relevant extradition treaty or where the US Government had engaged in gross misconduct to obtain the presence of the defendant before the US court. The judge concluded that there had been no violation of the extradition treaty between the United States and Kenya because the treaty did not purport to provide the sole mechanism by which a person could be transferred from Kenya to the United States for the purposes of criminal prosecution. In any event the Akasha brothers had no standing to challenge their prosecution on the basis of any supposed violation of the extradition treaty. The treaty did not create privately enforceable rights. The Kenyan government had the standing to object to the prosecution by reference to a violation of the treaty but it had not done so. The judge went on to consider the argument that the US Government had engaged in gross...
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