R (Raissi) v Secretary of State for the Home Department

JurisdictionEngland & Wales
Judgment Date14 February 2008
Neutral Citation[2008] EWCA Civ 72
Docket NumberCase No: C1/2007/0694/QBACF
Date14 February 2008
CourtCourt of Appeal (Civil Division)
The Queen on the Application of Lotfi Raissi
Secretary of State for the Home Department

[2008] EWCA Civ 72


Master of the Rolls

Lady Justice Smith DBE and

Lord Justice Hooper

Case No: C1/2007/0694/QBACF



Royal Courts of Justice

Strand, London, WC2A 2LL

Mr Edward Fitzgerald QC and Mr Stephen Cragg (instructed by Tuckers Solicitors) for the Appellant

Mr Khawar Qureshi QC (instructed by The Treasury Solicitors) for the Respondent

Hearing date: 5 December 2007


This is the judgment of the court to which all members of the court have contributed.


Introduction 1

The Ex Gratia Scheme 4

The Claim in Summary 5

The Home Secretary's Decision 12

Judicial Review Proceedings 13

The Factual Background—Arrest and Detention by the Police 18

The Commencement of the Extradition Proceedings 31

Court Appearance —28 September 2001 47

The Law relating to Remand in Custody and Bail Applications within

Extradition Proceedings 55

Court Appearance – 5 October 2001 58

Court Appearances – 26 October and 27 November 61

Application for Bail to High Court Judge 66

Further Magistrates' Court Hearings 92

The Extradition Hearing 97

The Appeal to this Court 106

Scope of the Scheme – Interpretation 107

Serious Default 128

Exceptional Circumstances 148

An additional matter 155

Conclusion 156



This is an appeal in judicial review proceedings. From 28 September 2001 until 12 February 2002, the appellant, Mr Lotfi Raissi, was detained in custody pursuant to extradition proceedings initiated by the United States of America. Extradition was eventually refused. On 3 March 2004, the appellant sought compensation under an ex gratia scheme operated by the respondent, the Secretary of State for the Home Department, for the benefit of persons who have lost their liberty as the result of a miscarriage of justice. The respondent rejected the application and the appellant sought judicial review of that decision. His application failed before the Divisional Court and he now appeals to this Court.


On 21 September 2001, the appellant, who was then 27 years old, was arrested at his home under the Terrorism Act 2000 on suspicion of having been concerned with the World Trade Centre atrocity (“9/11”) ten days earlier. Following questioning, he was 'de-arrested' seven days later and was immediately re-arrested under a provisional extradition warrant issued at the request of the United States. The warrant related to what can only be described as minor charges, for which the appellant would normally have been entitled to bail. He was remanded in custody because it was said that he was a terrorist, involved in the 9/11 atrocities and that the charges were only “holding charges”. He remained in custody until 12 February 2002, a period of some 4.5 months. On that date he was granted bail contrary to the objections of the Crown Prosecution Service (the “CPS”) representing the United States. He was granted bail because the CPS was unable to say whether or when he would be charged with terrorist offences. On 24 April 2002, Senior District Judge Workman (“DJ Workman”) discharged the appellant in relation to all the extradition charges. According to the clerk's notes, on that occasion, the district judge said:

“Your client appeared before me on a number of occasions when allegations of terrorism were made —the court has received no evidence at all to support that allegation.”


The public labelling of the appellant as a terrorist by the authorities in this country, and particularly by the CPS, over a period of many months has had and continues to have, so it is said, a devastating effect on his life and on his health. He considers that, unless he receives a public acknowledgment that he is not a terrorist, he will be unable to get his “life back together again”. For that reason, he has sought compensation from the respondent. As May LJ said in The Queen on the application of Niazi and others v. SSHD [2007] EWHC 1495 (Admin), payments under the ex gratia scheme, which had its historical origins in the 19 th century, were offered in recognition of the hardship caused by a wrongful conviction or charge notwithstanding that the circumstances might give no grounds for a claim for civil damages. This appellant is unable to sue the US Government in the United States because, under the relevant legislation, that Government is not liable for any claims arising in a foreign country. The appellant has sued the Metropolitan Police in connection with his original arrest and 7 days detention and also for misfeasance in relation to an alleged failure to investigate a matter concerning a Mr Kermani (to whom reference will be made later). Those claims have been stayed pending the outcome of an investigation by the Independent Police Complaints Commission. Neither claim could result in compensation for loss of liberty between 28 September 2001 and 12 February 2002.

The Ex Gratia Scheme


The ex gratia compensation scheme was introduced and explained by Mr Douglas Hurd, as Home Secretary, in a statement to Parliament on 29 th November 1985. Mr Hurd said:

“There is no statutory provision for the payment of compensation from public funds to persons charged with offences who are acquitted at trial or whose convictions are quashed on appeal, or to those granted free pardons by the exercise of the royal prerogative of mercy. Persons who have grounds for an action for unlawful arrest or malicious prosecution have a remedy in the civil courts against the person or authority responsible. For many years, however, it has been the practice for the Home Secretary, in exceptional circumstances, to authorise on application ex gratia payments from public funds to persons who have been detained in custody as a result of a wrongful conviction.”

[The next passage of the Home Secretary's answer referred to his preparedness to pay compensation as required by the government's international obligations. The wording of the quoted article 14.6 of the International Covenant on Civil and Political Rights was to be very closely followed in subsequent legislation – that is section 133 of the Criminal Justice Act 1988.]

“I remain prepared to pay compensation to people who do not fall within the terms of the preceding paragraph but who have spent a period in custody following a wrongful conviction or charge, where I am satisfied that it has resulted from serious default on the part of a member of a police force or of some other public authority.

There may be exceptional circumstances that justify compensation in cases outside these categories. In particular, facts that may emerge at trial, or on appeal within time, that completely exonerate the accused person. I am prepared, in principle, to pay compensation to people who have spent a period in custody or have been imprisoned in cases such as this. I will not, however, be prepared to pay compensation simply because at the trial or on appeal the prosecution was unable to sustain the burden of proof beyond a reasonable doubt in relation to the specific charge that was brought.”

We will refer to the last two paragraphs as the first and second paragraphs of the scheme.

The Claim in Summary


The appellant's contention is that the extradition charges which he faced were a device to enable him to be detained in custody whilst the United States authorities investigated whether he was involved in 9/11. They were trivial and, of themselves, would never have warranted extradition proceedings or detention in custody. The allegation was that these minor charges were associated with his involvement with the 9/11 atrocity which was the real charge he faced and the real reason for his loss of liberty. This was an unfounded or wrongful charge. The way in which the proceedings were advanced against him amounted to a serious default by the Crown Prosecution Service (CPS) and/or officers of the Metropolitan Police.


Further, the appellant contended that his 4.5 months' detention on trivial extradition charges was a breach of Article 5 of the ECHR and a device to get round the law of this country which prevented him from being held without charge as a suspect for terrorism offences for more than 7 days (as the law then stood). As such, it was an abuse of the process of the court.


The extradition proceedings were also a device, so it is submitted, to enable the United States authorities to bring the appellant back to the United States for intelligence-gathering purposes about his role and that of others in the United States. As an example of the material relied on in support of his allegation that the aim of the US authorities was to secure his presence in the US for the purposes of questioning about terrorism, the appellant relied on a report in the Washington Post for 18 December 2001 reporting an official of the Federal Bureau of Investigation (FBI) as saying, of the appellant's involvement in terrorism:

“We put him in the category of maybe or maybe not, leaning towards probably not. Our goal is to get him back here and talk to him to find out more”.

The appellant's solicitor was told by the Washington Post that the statement was made on condition of anonymity.


The kernel of the appellant's case on 'serious default' is that, in order to ensure that he remained in custody, the CPS made out to the courts and to the public at large that he was definitely involved in 9/11, knowing that the material available to them did not support such an allegation and/or being reckless as to its accuracy.



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