R (Syed Talha Ahsan) and Others v Government of the United States of America and Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Richards,Mrs Justice Swift DBE |
| Judgment Date | 10 April 2008 |
| Neutral Citation | [2008] EWHC 666 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 10 April 2008 |
| Docket Number | Case No: CO/4771/2007 |
[2008] EWHC 666 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Richards and
Mrs Justice Swift DBE
Case No: CO/4771/2007
Case No: CO/5359/2007
Case No: CO/5417/2007
Alun Jones QC and Ben Cooper (instructed by Birnberg Peirce & Partners) for Ahsan
Alun Jones QC and Hodge Malek QC (instructed by Russell Jones and Walker) for Tajik
David Perry QC and Melanie Cumberland (instructed by the Crown Prosecution Service) for the Government of the United States of America
Hugo Keith (instructed by the Treasury Solicitor) for the Secretary of State
Jason Coppel (instructed by the Treasury Solicitor) for the Director of Public Prosecutions
Hearing dates: 19, 20 and 21 February 2008
Approved Judgment
Syed Talha Ahsan is the subject of an extradition request by the Government of the United States of America. On 19 March 2007 District Judge Nicholas Evans made an order under s.87(3) of the Extradition Act 2003 (“the 2003 Act”) sending his case to the Secretary of State; and on 14 June 2007 the Secretary of State made an order under s.93(4) of the 2003 Act for his extradition. Ahsan appealed under s.103 of the 2003 Act against both orders. He also brought a claim for judicial review of what was said to be a decision of the Director of Public Prosecutions (“the Director”) not to discuss and consider with the prosecuting authorities in the United States whether he should be tried in the United Kingdom for the crimes in respect of which his extradition is sought.
Nosratollah Tajik is the subject of an unrelated extradition request by the Government of the United States of America. On 19 April 2007 District Judge Tubbs made an order sending his case to the Secretary of State; and on 14 June 2007 the Secretary of State made an order for his extradition. Tajik appealed against both orders.
There is no factual connection between Ahsan's case and Tajik's case, but they have certain issues of law in common. For that reason they were listed for hearing together and it is appropriate to deal with them in a single judgment.
Ahsan's statutory appeal
Ahsan's extradition is sought for the purpose of his standing trial for terrorist offences. The indictment against him alleges that between 1997 and 2004 he, together with Babar Ahmad (“Ahmad”) and other persons known and unknown, (i) conspired to provide material support to terrorists, knowing or intending that such support was to be used in furtherance of a conspiracy to kill, kidnap, maim or injure persons or damage property in a foreign country and/or to murder and attempt to murder US nationals abroad; (ii) provided and aided and abetted others to provide material support to terrorists, knowing or intending that such support would be used in furtherance of a conspiracy to kill, kidnap, maim or injure persons or damage property in a foreign country and/or to murder and attempt to murder US nationals abroad; and (iii) conspired to kill, kidnap, maim or injure persons or damage property in a foreign country.
In particular, it is alleged that one of the means used by the co-conspirators to further the alleged criminal acts was an entity known as Azzam Publications, through which they operated a series of pro-jihad websites based in the United States that were specifically designed to incite readers to violent jihad and to provide material support to terrorist related entities including the Taliban, the Chechen Mujahideen and Al Qaeda.
Ahmad was arrested in the United Kingdom on the authority of a provisional warrant, and extradition proceedings were commenced in respect of him, in 2004. A district judge sent the case to the Secretary of State in May 2005, and the Secretary of State ordered Ahmad's extradition in November 2005. An appeal was dismissed by the Divisional Court in November 2006, in a wide-ranging judgment which, as will appear, is important for many of the issues raised in the cases before us: see Ahmad and Aswat v Government of the United States of America [2006] EWHC 2927(Admin). An application for leave to appeal to the House of Lords was subsequently refused.
Ahmad then applied to the European Court of Human Rights in Strasbourg, contending that his extradition to the United States would give rise to a breach of his rights under articles 2, 3, 5 and 6 of the European Convention on Human Rights. On 12 June 2007 the Strasbourg court indicated to the Government of the United Kingdom, under rule 39 of the Rules of the Court, that Ahmad should not be extradited until the court had given due consideration to the matter. On 26 June 2007 a statement of facts was served on the parties, followed by a series of questions to the parties concerning possible violations of the Convention. Lengthy written submissions on the admissibility and merits of the application were lodged on behalf of Ahmad and, in October 2007, on behalf of the Government of the United Kingdom. A decision of the Strasbourg court is still awaited.
In the meantime, in searches of various premises associated with Ahsan, items were found which are said to have revealed his association with Ahmad and his support for, and his personal participation in, violent jihad. The process included a search of Ahsan's home address in London in January 2006, under the authority of a warrant issued under s.16 of the Crime (International Co-operation) Act 2003 and s.8 of the Police and Criminal Evidence Act 1984. In July 2006 Ahsan was arrested in the United Kingdom under a provisional warrant and extradition proceedings were commenced in respect of him.
At a hearing on 20 November 2006 the district judge determined that Ahsan was accused of extradition offences within the meaning of s.137 of the 2003 Act. The case was adjourned for evidence and argument as to whether there were any bars to surrender within the meaning of s.79 or any human rights defence within s.87. The adjourned hearing took place on 19 March 2007. At that time a further adjournment was sought on behalf of Ahsan in order to allow him to bring the judicial review proceedings against the Director of Public Prosecutions which are now before us. Those proceedings relate to the interpretation and application of guidance agreed in January 2006 by Her Majesty's Attorney General and the Attorney General of the United States of America for handling criminal cases with concurrent jurisdiction between the United Kingdom and the United States. The substantive issues raised in the proceedings are considered separately below. For present purposes it suffices to note that the district judge refused a further adjournment, the hearing proceeded and he made an order sending the case to the Secretary of State.
On 14 June 2007 the Secretary of State ordered Ahsan's extradition. An appeal to the High Court was lodged and, pursuant to directions given by Collins J, was listed to be heard on 19 February 2008 together with the other matters before us. The issues raised in the appeal were, in summary, (1) whether the district judge was right to hold that Ahsan was accused of extradition offences within the meaning of s.137; (2) whether he was right to send the case to the Secretary of State without assurances of the kind given to the court by the US Government in Ahmad's case (the assurances in Ahsan's case having been given after, rather than before, the case was sent to the Secretary of State); (3) whether the assurances subsequently given provided adequate protection of Ahsan's human rights; and (4) whether the Secretary of State had given proper consideration to Ahsan's personal circumstances in deciding to order extradition.
Less than two weeks before the hearing of the appeal an application was made for the appeal to be adjourned. I refused that application on the papers but directed that it could be renewed orally at the beginning of the hearing. In renewing the application before us, Mr Alun Jones QC made clear that it was based entirely on the proceedings pending before the Strasbourg court on the application of Ahmad. Mr Jones accepted that on existing domestic authority, especially the judgment of the Divisional Court in Ahmad and Aswat v Government of the United States of America, Ahsan's appeal to this court must fail. But the proceedings in Strasbourg involved the same issues, and if the Strasbourg court were to rule against the British Government in those proceedings it would provide a basis for arguing on behalf of Ahsan that existing domestic authority should not be followed. If, on the other hand, Ahsan's appeal had already been dismissed, it would be necessary for him to make a separate application to the Strasbourg court and to seek a stay against the British Government under rule 39 of the Rules of Court. In all the circumstances, submitted Mr Jones, it was appropriate to adjourn the hearing of the appeal until after the Strasbourg court's decision was known. The delay in applying for the adjournment was explained by the fact that it had been thought until relatively recently that there was a strong possibility that the Strasbourg court's decision would be available before the hearing of Ahsan's appeal.
We refused the application for an adjournment, indicating that our reasons would be given in this judgment. Our...
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