The Lord Advocate Against Johar Javed Mirza Also Known As Jacob Mirza
| Jurisdiction | Scotland |
| Judge | Sheriff T Welsh QC |
| Neutral Citation | [2016] SC EDIN 4 |
| Court | Sheriff Court |
| Date | 12 January 2016 |
| Docket Number | E83/11 |
| Published date | 14 January 2016 |
SHERIFFDOM OF LOTHIAN AND BORDERS AT EDINBURGH
[2016] SC EDIN 4
E83/11
JUDGMENT OF SHERIFF T WELSH QC
Under the Extradition Act 2003
In the cause
THE LORD ADVOCATE
(for the Government of the United States of America), Crown Office, Edinburgh, EH7 4AU
Applicant;
Against
JOHAR JAVED MIRZA
also known as Jacob Mirza (dob 11/11/80), Prisoner, Edinburgh
Respondent:
Act: Dickson; Crown Office, Edinburgh
Alt: Lunny, Advocate; Goode & Stewart, Solicitors, Edinburgh
Edinburgh, 12 January 2016
The Issue
[1] The respondent is a citizen of Pakistan. He is wanted by the US Government for prosecution on 9 serious fraud charges, all allegedly committed, in the state of Virginia, between 2005 and 2008, resulting in total defalcations of $2.7 million. The validity of the US extradition petition is not challenged. No statutory bar to extradition in terms of s79 of Part 2 of the Extradition Act 2003 [the 2003 Act] was argued. Nor was it contested, under s84 of the 2003 Act, that a case to answer exists against the respondent, in the US federal courts. The sole ground of opposition to the application was whether extradition is compatible with the respondent’s Convention rights, within the meaning of the Human Rights Act 1998, with regard to alleged contraventions of the ECHR, Article 2 (right to life), Article 3 (freedom from torture), Article 5 (right to liberty) and Article 6 (right to a fair trial).
The Applicant
[2] The applicant is the Lord Advocate acting on behalf of the Government of The United States of America. The USA is a federal republic composed of 50 states, a federal district, five major territories and various possessions, founded in 1776. For the purposes of Part 2 of the 2003 Act the USA is designated a category 2 territory by the Extradition Act 2003 (Designation of Part 2 Territories) Order 2003/3334.
The Respondent
[3] The respondent is Johar Javed Mirza also known as Jacob Mirza (dob 11/11/1980). He is a Pakistani national. He was brought up and educated in the USA and Pakistan. He worked as a realtor, mortgage broker and financial advisor in the USA. He migrated to the UK from the USA via Pakistan, in February 2010. He lived for a time in Manchester with his wife and then settled in Glasgow. On 4 November 2014 in Glasgow Sheriff Court he was convicted of an assault with attempt to rape that occurred on 13 July 2010. He was sentenced to 3 years custody. His earliest date of release is in May 2016. He was born into a Muslim family and now claims conversion to Judaism. This conversion claim and its consequences, should he be extradited, constitutes a central feature of his opposition to extradition, to the USA.
The Procedure
[4] On 2nd August 2011 the US Government made a formal request, to the UK Government, for extradition of the respondent, who was believed to be residing in Glasgow. Following normal protocol the request was passed to the Scottish Ministers for validation. The Cabinet Secretary for Justice in Scotland certified the case on 19th November 2011 and sent it to the Extradition Court for due process. A warrant for the arrest of the respondent was issued from this court, on 24th November 2011. The respondent first appeared in the Extradition Court on 25th November 2011. Bail was granted and continued on this matter, until 17th December 2015, when he was formally remanded in custody for extradition in terms of s92(4) of the 2003 Act. He continues to serve his prison sentence for assault with attempt to rape.
[5] There have been many callings of the case. The respondent has instructed and dismissed at least 5 firms of solicitors and has had 4 counsel represent him at various hearings. Full extradition hearings scheduled for 1 June 2015 and 29/30 October 2015 were discharged because the respondent needed more time to prepare his case. On 1 and 2 December 2015, I heard his opposition to the application for extradition against him. He was represented by counsel.
The Extradition Hearing
[6] Mr Lunny, advocate, for the respondent opened the respondent’s case and moved me to adjourn the hearing to allow more time for preparation. He indicated senior counsel Ms McCall QC was unavailable because a criminal trial had overrun in Glasgow High Court. Further, he said certain information had emerged from an affidavit, produced late by the Lord Advocate, that indicated the US Government did not operate a policy of mandatory return of criminal aliens to their country of origin, following due process in the US courts. This was significantly different from the respondent’s understanding of the factual position and could materially affect the respondent’s position. The motion was opposed. I adjourned for the morning session and allowed counsel some time to make inquiries into this issue, by telephone, from a US attorney but I was not prepared to further adjourn the full hearing. The respondent had no legal expert witnesses to call, to refute the suggestion there is no policy of mandatory return to country of origin, operated by the US Government. The respondent has no private funds with which to instruct and pay for the services of such experts and legal aid had been refused repeatedly for this purpose. I refused the motion to adjourn because it seemed to me the Legal Aid Board had made its position clear. There was no real prospect of foreign experts giving evidence in this case at any future hearing. The case has been twice adjourned to enable the appellant to arrange for expert witnesses to give evidence as to what would likely happen to him, in respect of his immigration status, should he be extradited to the USA and either convicted (and serve a term of imprisonment) or, alternatively, if he is acquitted. I decided there was nothing to be gained by further delay of the full hearing on the merits.
[7] In presenting the respondent’s opposition to extradition, Mr Lunny then indicated there was no formal challenge to the validity of the US Petition for extradition. He conceded there was no statutory bar to extradition relied upon and that on the basis of the information contained in the Petition and Affidavits lodged by the Lord Advocate there was a case to answer in the USA. Accordingly, the sole ground of opposition was based on s87 of the 2003 Act. Both parties lodged documents late at the bar of the court, without mutual objection. The Lord Advocate lodged productions AP10 to 15 and the respondent lodged productions RP12 to 15.
[8] Mr Dickson, for the applicant, stated that he had no oral testimony to offer but relied on the evidence contained in:
i. The US Petition sealed 20 July 2011 narrating the legal framework and factual background to the application.
ii. An affidavit given by Paul J Nathanson, Assistant US Attorney, dated 13 July 2015 setting out sentencing options, if the respondent is extradited and convicted. I considered him qualified to express opinions on these matters.
iii. A letter of comfort from Mary D Rodriguez, Acting Director of the Criminal Division of the US Department of Justice, dated 14 September 2015 confirming that the principle of specialty shall apply to this case.
iv. Affidavits by James T Dehn, a specialist attorney advisor from the US Department of Homeland Security (DHS) and Immigration and Customs Enforcement Office (ICE) dated 15 July 2015 and 30 November 2015. These affidavits explain the rules, procedure and US law relating to the arrival, classification, processing and removal of criminal aliens extradited to the USA. Mr Dehn is responsible for providing specialised legal advice to the Director of ICE and he represents the DHS in all exclusion, deportation and removal proceedings before the Executive Office for Immigration Review (EOIR). As such I considered him to be a competent expert able to express an opinion on the likely way the respondent would be treated by the requesting state should extradition occur.
[9] Mr Lunny indicated he had one witness to call, the respondent, Johar Mirza.
The Evidence of Johar Javid Mirza (This note is not intended to be comprehensive)
[10] Mr Mirza indicated he was 35 years old. He is a serving prisoner in a Scottish prison, with an appeal to the UK Supreme Court in his criminal case outstanding. When at liberty he resides at his sister’s house in Glasgow. He was born in Pakistan. He left there for the USA when he was 4 years old. He was educated between the US and Pakistan. As a child, he was enrolled in a Mosque in Lahore for his religious education. While in Pakistan, he stayed with his extended family. He was born into a Muslim family but has now converted to Judaism. His conversion began when he was a teenager. It has been a long process. It started as soon as he was a teenager and able to think for himself. In the US he was educated in Northern Virginia City College, Virginia Technical College and Strayer University, Washington DC. His conversion to Judaism was influenced by a number of factors. One of these was that while a young boy he was repeatedly sexually abused by the Imam, at a Mosque in Lahore, where he attended for religious teaching. He gave graphic evidence about the nature of the abuse, its frequency and the effect it had upon him psychologically and emotionally. He was unable to complain because he was too young. His behaviour was affected by the abuse. He became problematic. Eventually his family moved from Lahore and he left the Mosque. The abuse stopped although he still has serious flashbacks. He was last in Pakistan in 2010 before his father died. In his early teens he was educated in catholic schools in Pakistan and the USA. However, he felt drawn from Islam and Christianity towards Judaism. He also had bouts of being atheist and agnostic. He spent time reading about different world religions and philosophies. In 2005 he met a girlfriend of Jewish descent, Anya Shifrina. She was a liberal reformed Jewess. He went to Jewish festivals with Anya and felt...
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