R Tajik v The City of Westminster Magistrates' Court (1st Defendant) The Secretary of State for the Home Department (2nd Defendant) The Government of the United States of America (3rd Defendant)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Moses,Mr Justice Sweeney |
| Judgment Date | 27 November 2012 |
| Neutral Citation | [2012] EWHC 3347 (Admin) |
| Date | 27 November 2012 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/5417/2007,Case Nos: CO/5417/2007, CO/11565/2011, CO/4206/2012 |
[2012] EWHC 3347 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Moses
Mr Justice Sweeney
Case Nos: CO/5417/2007, CO/11565/2011, CO/4206/2012
Mr Alun Jones QC and Mr Anwar Ramzan (instructed by Kaim Todner Solicitors) for Mr Tajik
Mr Hugo Keith QC and Mr Ben Watson (instructed by The Treasury Solicitors) for the 2 nd Defendant and Mr Aaron Watkins (instructed by Crown Prosecution Service) for the 3rd Defendant
Hearing dates 30 th— 31 st October 2012
From time to time the most senior judges reiterate the need to avoid delay in extradition proceedings. They have stressed that one of the objects of the Extradition Act 2003 was to ensure expedition (see, e.g., Lord Phillips CJ in R (Government of the United States of America) v Bow Street Magistrates Court [2007] 1 WLR 1157, [2006] EWHC 2256 (Admin), paragraphs 73, 79 and 80). In Abu Hamza and Others v Secretary of State for the Home Department [2012] EWHC 2736 (Admin), the Secretary of State complained vehemently about the long delay, a complaint echoed by the President of the Queen's Bench Division. He urged that those accused of serious crimes should be tried as quickly as is possible, and remarked that it was unacceptable that extradition proceedings should take more than a relatively short time. Frequently, the inordinate delays are due to increasingly desperate attempts by requested persons to avoid facing trial. This case is different.
Mr Tajik, the claimant, is a former Iranian ambassador to Jordan. The history of his extradition, starting with the issue of a warrant in Illinois for his arrest on charges relating to the export of defence articles, in particular night-vision equipment, on 30 August 2006, is detailed in the decision of the Divisional Court in his statutory appeals, culminating in their rejection of those appeals on 10 April 2008 ([2008] EWHC 666, paragraphs 43–79). In that appeal, the court rejected Mr Tajik's appeal under s.91 of the 2003 Act based on his medical condition. Mr Tajik suffered from coronary artery disease, causing recurrent angina and symptoms of anxiety and depression. But neither the District Judge, nor the Divisional Court on appeal, regarded the condition to be so serious as to lead to the conclusion that it would be oppressive to extradite him. Mr Tajik applied for a certificate of a point of law of general public importance; this was refused on 14 May 2008. He had also applied for interim measures under Rule 39 to the European Court of Human Rights. This too was refused on 26 May 2008. The statutory extradition proceedings had concluded but he had not yet been surrendered to United States custody. Rather, on 3 June 2008 solicitors on behalf of Mr Tajik informed the then Secretary of State that he had been admitted as an in-patient in hospital on 27 May for chest pains, apparently related to his heart condition. The further medical report from his consultant cardiologist was enclosed. Although Mr Tajik's statutory remedies under the 2003 Act had been exhausted, the Secretary of State acknowledged that she should consider what appeared to be new medical information. She accepted that, as a public authority, she was obliged, pursuant to s.6 of the Human Rights Act 1998, to act compatibly with Mr Tajik's Convention rights, even though the statutory appeal process had concluded. It is necessary to record the exchange of correspondence which ensued following the Secretary of State's acceptance of her obligation under s.6 of the 1998 Act.
Events between June 2008 and 7 November 2011
Whilst Mr Tajik was applying for points of general public importance to be certified, the Secretary of State had agreed that he would not be surrendered on his undertaking that he would not apply for statutory discharge pursuant to s.118 of the 2003 Act. On 3 June 2008 the Secretary of State confirmed that she would not seek to surrender Mr Tajik before 11 June 2008 so that he might obtain a further report for her consideration. Mr Tajik's undertaking not to apply for statutory discharge was continued. Further short extensions were given until Mr Tajik submitted various medical reports on 24 July 2008. On 28 July 2008 Mr Tajik's lawyers suggested that they would apply for habeas corpus so that the court could consider the latest medical evidence without the intervention of the Secretary of State. On 30 July 2008 the Secretary of State agreed not to extradite Mr Tajik before 15 August 2008. She asserted her right to make a decision in the light of post-appeal medical developments:—
"You have made medical representations to the person who decides whether to extradite in Part 2 cases (i.e., the Secretary of State) as to why your client should not now be extradited. In the circumstances of this case and only in such circumstances (i.e., after the appeal process has been completed), it is for the Secretary of State to decide whether, in the light of post-appeal medical developments, it would contravene your client's ECHR rights to confirm his extradition to the USA."
She said that such a decision would be challengeable by way of judicial review.
On 11 August 2008, in response to the Secretary of State's assurance to consider the most recent medical developments, Mr Tajik's solicitor advanced formal representations asking for a full review of the case in the light of articles 2, 3 and 8 of the European Convention on Human Rights.
The Home Office sought further information from the United States authorities as to the availability of suitable health care facilities for Mr Tajik. The United States Department of Justice replied by letter dated 10 September 2008 (see the witness statement of Mr Hepple, Director of Civil Liberties and Public Protection at the Home Office). He states that between October and December 2008, a period of four months, the Secretary of State was considering Mr Tajik's case. Further extensions were given during that period until, on 14 October 2008, an indefinite extension was given until the Secretary of State's decision was made. Solicitors on behalf of Mr Tajik responded on 13 and 14 October 2008 expressing the hope that the Secretary of State would recognise that Mr Tajik's physical and mental health had substantially deteriorated whilst awaiting the decision of the Secretary of State. They asked that the Secretary of State's decision should be made within a fixed period of time "so that our client has certainty as to when a decision will be made".
From that time, in October 2008, until after these proceedings had begun, Mr Tajik and his legal advisers laboured under the illusion that the Secretary of State's delay in reaching a conclusion was wholly attributable to consideration of his medical condition. They were disabused when they received Mr Hepple's statement dated 6 September 2012, after these proceedings were launched. As it now turns out, the Secretary of State was in a position to reach a conclusion, in fulfilment of her obligation under the Human Rights Act, at the beginning of 2009. She had considered the reports and reached what Mr Hepple describes (at paragraph 31 of his statement) as the "provisional" conclusion that Mr Tajik's condition was not such as to render his extradition unlawful under s.6 of the 1998 Act. But she declined to make a decision expressing that conclusion or to announce that decision. The reason why she, as she would have it, deferred making a decision is explained in a letter she wrote to the Secretary of State for Foreign and Commonwealth Affairs on 5 January 2009. It is necessary to recall the terms in which she wrote:—
"I am writing about the extradition request from the United States for Nosratollah Tajik. This case has potentially serious consequences for the UK's relations with Iran; I know that it has been the subject of correspondence between yourself and the Iranian Minister for Foreign Affairs. I thought I should formally notify you of the case before taking a decision on proceeding with extradition.
I should make clear at the outset that the Extradition Act 2003 gives me as Home Secretary very limited grounds on which to refuse an extradition request; and there is no general discretion in such cases. This position has been confirmed to me in advice from the Law Officers, a copy of which I enclose." (The Court does not have a copy of that advice and legal professional privilege was not waived.)
"…His surrender has been delayed pending receipt and consideration of reports on his health. As indicated previously, I have no general discretion in deciding whether extradition should proceed. I would only be able to refuse extradition on health grounds if I had evidence that extradition would be in breach of his Convention rights. Having considered these reports, my advice is that Tajik's health does not give me grounds on which to refuse extradition.
Iran takes this case extremely seriously. Your officials have provided advice as to the negative impact on bilateral relations between the UK and Iran if Tajik is extradited. I understand that this could include expulsion of our Ambassador and even attacks on our Embassy, with consequent danger to its staff. I have considered whether I have any discretion not to order Tajik's extradition on the grounds of national security, but the clear advice from...
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