PRINCIPLES APPLICABLE FOR ISSUING SEARCH WARRANTS AT THE REQUEST OF A FOREIGN JURISDICTION: Al Hajjeh v. Westminster Magistrates' Court.
| Author | Patel, Sinead Esler |
INTRODUCTION
This case concerns the judicial review of a warrant pursuant to which the Metropolitan Police seized a valuable antique Qur'an.
The Qur'an in question was allegedly stolen in Turkey in early 2015. It then disappeared, before resurfacing two years later for sale at Christie's auction house in London. Responding to a request from the Turkish judicial authority, the Metropolitan Police obtained a warrant pursuant to section 16 of the Crime (International Co- operation) Act 2003 and section 8 of the Police and Criminal Evidence Act 1984 ('PACE'), which enabled them to seize it.
The person claiming to be the current owner of the Qur'an (the 'Claimant') applied for judicial review of the warrant, alleging that the District Judge had been materially misled in the information provided to him, and also that the Qur'an had been obtained for a purpose other than that provided for in the 2003 Act and PACE. He argued that, had all relevant information been provided, the warrant might not have been issued.
In assessing the application for judicial review, and ultimately dismissing it, the High Court considered the principles relevant to an application for a warrant pursuant to Section 8 of PACE and the 2003 Act. It also considered the extent to which the ulterior motives of Turkey and the Claimant impacted the position.
FACTUAL BACKGROUND
The Theft in 2015
The events in this case began on 24 February 2015 in Istanbul, Turkey, when armed thieves broke into the offices of Mr Mehmet Cir. They stole a valuable Qur'an dating from the sixteenth century and signed by Mustafa Dede, a celebrated Turkish calligrapher of the time.
The Turkish authorities commenced an investigation into the robbery. In 2017, they also began investigating whether the Qur'an had been smuggled out of Turkey, potentially constituting the further offence of exporting cultural property.
Appearance in London in 2017
In 2017, Christie's auction house in London was approached by Mr Zaher Al Hajjeh, apparently based in Lebanon, who was looking to sell a Qur'an. He provided the following provenance documentation:
(1) On 11 August 2017, a handwritten and signed declaration by Mr Al Hajjeh stating:
I bought this item in UK from UK Company and the Saler (sic) confirm that he bough (sic) it among of 8 items from auction room in Sydney Australia and it was part of item belong (sic) to a collector. The Saler (sic) confirm the entry date to the UK 11.5.17. (2) In September 2017, a letter from a Mr Al Akhoann of The Oriental Rug Gallery Ltd in Haslemere, Surrey, stating:
This is to confirm and certify that Mr Zaher Mohammed El Hajje has purchased an antique Quran by the writer Mostafa Dada over 100 years old ... he paid in full for this item as it's shown in TORG invoice 2652 dated 02-06-2017. This is to confirm that we have purchased this from Australia 2nd April 2017 among 8 items and all have entered UK on 1105-2017. (3) A further document from Mr Al Akhoann appearing to show that he had imported 8 Qur'ans on 11 May 2017.
Christie's agreed to offer the Qur'an in their 26 October 2017 auction. They also published photographs of it in their auction catalogue.
The Qur'an itself was delivered to Christie's by a contact of Mr Al Hajjeh's named Kassem.
Turkey Reaches Out
On 23 October 2017, three days before the auction was due to take place, two things happened:
(1) The Turkish Embassy in London contacted Christie's asking them to stop the sale and deliver the Qur'an to Turkey immediately. They stated that the Qur'an had belonged to Turkey and its removal from Turkey was a criminal offence.
(2) Interpol Ankara contacted Interpol Manchester requesting that the sale be stopped.
Christie's withdrew the Qur'an from auction but retained possession of it. They informed Mr Al Hajjeh and told him to contact the police.
First ILOR is Issued
In January 2018, the Public Prosecutor in Istanbul issued an International Letter of Request ('ILOR') stating that the Qur'an offered for sale by Christie's had been positively identified as that stolen in 2015, and seeking information about how it had come to be offered for sale by Christie's.
The ILOR also referred to an investigation being underway in relation to the 2015 armed robbery and into the illegal export of the Qur'an as cultural property.
Arrests and Convictions in Turkey in 2018
Also in January 2018, and five days before the ILOR was issued, a Mr Gok was arrested in Turkey for the 2015 theft. Two others were subsequently arrested, and the three men were tried and convicted for robbery. On 20 November 2018, all three were sentenced to lengthy prison sentences. However, a fourth suspect remained unidentified.
The Metropolitan Police Investigation
Following receipt of the ILOR in January 2018, the Metropolitan Police's Art and Antiques squad commenced an investigation. This was led by a DC Hayes who reviewed the provenance that had been provided to Christie's and met with Mr Al Akhoann. She discovered that:
(1) The Qur'an sold by Mr Al Akhoann to Mr Al Hajjeh was not the same Qur'an consigned by Mr Al Hajjeh to Christie's for sale.
(2) After buying the Qur'an from Mr Al Alkhoann, Mr Al Hajjeh had told Mr A1 Akhoann that it was by 'Mostafa Dada', which did not mean anything to Mr Akhoann.
(3) Mr Al Akhoann had written the 19 September 2017 letter at Mr Al Hajjeh's request.
DC Hayes contacted Mr Al Hajjeh's solicitors on multiple occasions asking Mr Al Hajjeh to attend an interview under caution, but she received no proper engagement with her requests until 12 November 2018, when Mr Al Hajjeh's solicitors wrote stating that they had asked Mr Al Hajjeh for his availability for an interview. They also stated that he was "preparing several documents that prove his ownership of the Qur'an in question".
On 4 December 2018, Mr Al Hajjeh's solicitors sent DC Hayes a statement dated 28 November 2018 by a woman named Derya Unal, which had apparently been signed in Istanbul, and was witnessed by a lawyer named Mr Guney.
The statement reported that:
(1) Ms Unal's father had bought a Qur'an signed by Mustafa Dede in 1993 for 12,000 Deutsche Mark.
(2) In 2014, Ms Unal's father gifted the Qur'an to Ms Unal.
(3) In 2015, Ms Unal commissioned Mr Simsek to sell the Qur'an.
(4) Mr Simsek sold the Qur'an to Mr Al Hajjeh for $100,000.
(5) Ms Unal hand-delivered the Qur'an to Kassem Mohammed in London.
(6) The $100,000 was paid to Mr Simsek in Istanbul, and one month later transferred to Ms Unal, less Mr Simsek's commission.
On 9 January 2019, DC Hayes informed Mr Al Hajjeh's solicitors that she no longer wished to interview him.
Mr Al Hajjeh Demands Delivery Up of the Qur'an
In January 2019, Mr Al Hajjeh's solicitors wrote to Christie's demanding delivery up of the Qur'an, failing which they would seek injunctive...
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