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England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Akarcay, R (on the application of) v West Yorkshire Police & Ors  EWHC 159 (Admin) (03 February 2017)
Cite as:  EWHC 159 (Admin)
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
MRS JUSTICE THIRLWALL
| The Queen (on the application of Hasan Akarcay)
|- and -
|Chief Constable of the West Yorkshire Police
- and -
Secretary of State for the Home Department
- and -
National Crime Agency
Matthew Holdcroft (instructed by Alison Walker, West Yorkshire Police) for the Defendant
Hugo Keith QC and Dr Christopher Staker (instructed by Government Legal Department) for the First Interested Party
Clair Dobbin (instructed by the National Crime Agency) for the Second Interested Party
Hearing dates: 1st & 2nd November 2016
Crown Copyright ©
Lord Justice Burnett:
(i) That the provision of the material amounted to an act of recognition by the United Kingdom of Northern Cyprus in breach of international and domestic law;
(ii) That the only lawful mechanism for providing information to the law enforcement agencies of Northern Cyprus would be by using the provisions of the Crime International Co-operation Act 2003 ("the 2003 Act").
The skeleton argument filed on behalf of the claimant for the hearing of the judicial review claim raised a fresh issue under the Human Rights Act 1998:
(iii) That the provision of material in aid of a prosecution in Northern Cyprus would give rise to violations of the claimant's rights under articles 3 and 6 of the European Convention on Human Rights ("ECHR"). The first because, if convicted, he would be imprisoned in conditions which would give rise to a serious possibility of a violation of article 3 standards. The second, relying on the judgment of the Second Section of the Strasbourg Court in Amer v Turkey of 13 January 2009 (App. No. 25720/02,  ECHR 62) because any trial is likely to be delayed and the standard of interpretation poor.
"The UK does not recognise the self-declared "Turkish Republic of Northern Cyprus" and has no relations with it at state level. It is not possible for the UK to conclude international agreements with the "TRNC" on any issue. However, the UK maintains a dialogue with the political leadership of the Turkish Cypriot community and co-operates with Turkish Cypriot authorities on many issues of immediate concern. Such co-operation does nothing to undermine the non-recognition of the "TRNC".
The Foreign and Commonwealth Office has no objection to UK law enforcement authorities passing relevant information or evidence to law enforcement authorities in northern Cyprus. Similarly the FCO has no objection to "TRNC" law enforcement officers travelling unofficially to the UK in the execution of their duty where this does not contravene UK domestic legislation. Due to the political sensitivities that exist, all contacts with Turkish Cypriot law enforcement authorities should, in the first instance, be made through SOCA and their resident Liaison Office in Cyprus.
In 2004, UN Secretary General Kofi Annan called for the international community to lift the isolation of the Turkish Cypriot Community. In response, EU foreign ministers determined to lift the isolation of the Turkish Cypriots in recognition of their commitment to a UN settlement on the island and its accession to the EU. Doing so will bring the Turkish Cypriots closer to the EU and promote re-unification. Working with Turkish Cypriot authorities is an integral element of these objectives …
The transfer of material relating to criminal matters from UK to Turkish Cypriot law enforcement authorities and vice versa is entirely consistent with these objectives. Where UK law enforcement authorities are aware that individuals wanted in connection with criminal matters in the UK are residing in northern Cyprus, the Foreign and Commonwealth Office has no objection to them sharing that information with the Turkish Cypriot law enforcement authorities through the SOCA Liaison Office in Nicosia."
"All NCA/law enforcement activity is supported by the FCO Mission, and legal advice previously obtained to support the level of co-operation that can be accomplished without giving "recognition" to the north Cyprus "law enforcement authorities". No formal international agreements can be ratified with north Cyprus, but in line with the UN objective to unify Cyprus again, and as a Guarantee Power, the UK is keen to find areas of collaboration, so that should agreements be reached, there can be seamless transition into the unified state. Law enforcement activity is a fundamental area for this."
A section of the assessment dealt with the question whether co-operation would lead to human rights violations. The answer given was 'No'. The document recognised the sensitivities of dealing with the law enforcement authorities of Northern Cyprus. Finally, it dealt with the question of whether there were any reputational or political risks attaching to the NCA activity:
"Yes. The majority of other countries, and some agencies in the UK, refuse to engage with the north Cypriot authorities for fear of breaching policy or being viewed as recognising "TRNC". The NCA takes a contrary view which is fully supported by NCA strategy and partnerships, the [High Commission] and the FCO. Bespoke legal advice has previously been provided on the subject. Notwithstanding, the NCA stance could still attract criticism of HMG from either [Cyprus] or other third party stakeholders but whilst the objective of the co-operation remains to address [organised crime] and deal with suspects the position is entirely defensible. The tactic of pursuing in country TCP prosecutions against TC fugitives from UK justice who have absconded to north Cyprus is under scrutiny. Op Zygos target Hasan AKARCAY is currently on conditional bail awaiting trial in north Cyprus for serious drug trafficking offences committed in the UK. AKARCAY has challenged the legality of this process and was recently granted permission by a British judge to apply for judicial review. … The JR outcome will either validate or disqualify the whole concept of local prosecution as a tactic. This tactic has been led by the NCA and an adverse decision is likely to have a negative and detrimental effect on NCA/HMG standing and reputation by both the authorities in [Cyprus] and also in north Cyprus who have invested heavily in their local investigations."
"As extradition is "a formal procedure involving the executive and judiciary of two states," it cannot exist as a formal matter between the Republic of Cyprus and the separatist authorities in Northern Cyprus. When practical issues of police co-operation arise, the two sides make informal arrangements, facilitated by the [UNFICYP]."
That was further explained in a memorandum produced by Dr Aristotle Constantinides for the International Law Association:
"For instance, in 2012, UNFICYP facilitated the transfer, from the north to the south, of four persons arrested on criminal charges, three of whom were wanted on European arrest warrants. A joint communications room (JCR), launched by the UN-backed bi-communal Technical Committee on Crime and Criminal Matters became operational in May 2009. The JCR is a round-the-clock-operation run by Greek Cypriot and Turkish Cypriot law enforcement experts, along with UNFICYP police officers, aiming to support information exchange between the police forces in both communities on criminal matters which have inter-communal elements and are related, inter alia, to thefts, murders, drug offences and human trafficking."
The Non-Recognition Issue
"…the Defendant and [Cyprus] are correct when they assert that the United Kingdom would be in breach of its obligation to respect and uphold the rights conferred upon [Cyprus] by virtue of its status as a contracting state to the Convention if the Defendant had granted the Claimants the permits which they seek."
"It flows from the fact that the United Kingdom in accordance with its obligations under international law, has not recognised the TRNC as a state. It is said to follow as a matter of domestic law that decisions may not be made on the basis of, or by reference to, the purported laws and acts of the TRNC (save for those falling within a limited exception); and that to have granted the applications, thus approving international air services to and from airports in northern Cyprus, would inevitably have infringed this prohibition."
Richards LJ observed that Wyn Williams J had dealt obiter with this aspect of the case. It is on those aspects of the judgment in the High Court that the claimant relies in support of his contention that, as a matter of domestic law, no arm of the state (including the Police) may do any act which impliedly recognises Northern Cyprus as a State; and to provide information and evidence in aid of a prosecution there amounts to such implied recognition.
"The upshot is, of course, that the United Kingdom Government is under a legal duty not to recognise the TRNC. I have found that the grant of the permits sought by the Claimants would constitute acts of recognition. It follows that the grant of the permits sought would render the United Kingdom in breach of its duty not to recognise the TRNC."
"Losing the construction argument, the appellants put forward alternative submissions which are unsustainable. Those submissions if accepted, would involve a breach of the British constitution and an invasion of the judiciary into the functions of the Government and of Parliament. The Government may negotiate, conclude, construe, observe, breach, repudiate or terminate a treaty. Parliament may alter the laws of the United Kingdom. The courts enforce those laws; judges have no power to grant specific performance of a treaty ... or to invent laws or misconstrue legislation in order to enforce a treaty.
A treaty is a contract between the governments of two or more sovereign states. International law regulates the relations between sovereign states and determines the validity, the interpretation and the enforcement of treaties. A treaty to which Her Majesty's Government is a party does not alter the laws of the United Kingdom. A treaty may be incorporated into and alter the laws of the United Kingdom by means of legislation. Except to the extent that a treaty becomes incorporated into the laws of the United Kingdom by statute, the courts of the United Kingdom have no power to enforce treaty rights and obligations at the behest of a sovereign government or at the behest of a private individual."
The Mutual Legal Assistance Issue
"… it would be unlawful for the Chief Constable to have supplied material to the TRNC outside the scheme of the 2003 Act."
" … it would be unlawful for the Chief Constable to have supplied material to the TRNC because it is inconsistent with the common law principles of confidentiality underlying the statutory principles of mutual legal assistance set out in the scheme of the 2003 Act."
"Essentially, Mr Wadsworth's submission was and is that when the plaintiff answered questions when interviewed by the police she did so in the reasonable belief that what she said would go no further unless it was used by the police for purposes of criminal proceedings. The caution administered to her so indicated, and in order to safeguard the free flow of information to the police it is essential that those who give information should be able to have confidence that what they say will not be used for some collateral purpose.
However, in my judgment, where a regulatory body such as UKCC operating in the field of public health and safety, seeks access to confidential material in the possession of the police, being material which the police are reasonably persuaded is of some relevance to the subject matter of the inquiry by the regulatory body, then a countervailing public interest is shown to exist which, as in this case, entitles the police to release the material to the regulatory body on the basis that, save in so far as it may be used by the regulatory body for the purposes of its own inquiry, the confidentiality which already attaches to the material will be maintained.
… Even if there is no request from the regulatory body, it seems to me that if the police come into possession of confidential information which in their reasonable view, in the interest of public health or safety, should be considered by a professional or regulatory body, then the police are free to pass that information to the relevant regulatory body."
The Human Rights Issue
Mrs Justice Thirlwall