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England and Wales Court of Appeal (Civil Division) Decisions
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Cite as:  EWCA Civ 222,  Imm AR 624,  INLR 586
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COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ASYLUM AND IMMIGRATION TRIBUNAL
Strand, London, WC2A 2LL
B e f o r e :
LADY JUSTICE ARDEN
LORD JUSTICE LONGMORE
| YASSER AL-SIRRI
|- and -
|SECRETARY OF STATE FOR THE HOME DEPARTMENT
- and -
UNITED NATIONS HIGH COMMISSIONER FOR REFUGEES
WordWave International Limited
A Merrill Communications Company
190 Fleet Street, London EC4A 2AG
Tel No: 020 7404 1400, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Mr Tim Eicke and Mr Iain Quirk (instructed by Treasury Solicitors) for the Respondent
Ms Samantha Knights (instructed by Messrs Baker & McKenzie) for the Intervener
Hearing dates: Thursday 27 and Friday 28 November 2008
Crown Copyright ©
Lord Justice Sedley :
F. The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that:
(a) he has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes;
(b) he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee;
(c) he has been guilty of acts contrary to the purposes and principles of the United Nations.
The Egyptian convictions
The Old Bailey indictment
(1) Conspiracy to murder General Masoud.
(2) Inviting support for a proscribed organisation, Al-Gamm'a al-Islamiya [the Islamic Group, or IG].
(3) Soliciting funds for terrorist purposes.
(4) Arranging to make property available for terrorist purposes.
(5) Publishing material likely to stir up racial hatred.
The US indictment
The asylum claim
Refugee Convention: construction
(1) In the construction and application of Article 1(F)(c) of the Refugee Convention the reference to acts contrary to the purposes and principles of the United Nations shall be taken as including, in particular—
(a) acts of committing, preparing or instigating terrorism (whether or not the acts amount to an actual or inchoate offence), and
(b) acts of encouraging or inducing others to commit, prepare or instigate terrorism (whether or not the acts amount to an actual or inchoate offence).
(2) In this section—
"the Refugee Convention" means the Convention relating to the Status of Refugees done at Geneva on 28th July 1951, and
"terrorism" has the meaning given by section 1 of the Terrorism Act 2000 (c. 11).
(1) In this Act "terrorism" means the use or threat of action where—
(a) the action falls within subsection (2),
(b) the use or threat is designed to influence the government [or an international governmental organisation] or to intimidate the public or a section of the public, and
(c) the use or threat is made for the purpose of advancing a political, religious, [racial] or ideological cause.
(2) Action falls within this subsection if it—
(a) involves serious violence against a person,
(b) involves serious damage to property,
(c) endangers a person's life, other than that of the person committing the action,
(d) creates a serious risk to the health or safety of the public or a section of the public, or
(e) is designed seriously to interfere with or seriously to disrupt an electronic system.
(3) The use or threat of action falling within subsection (2) which involves the use of firearms or explosives is terrorism whether or not subsection (1)(b) is satisfied.
(4) In this section—
(a) "action" includes action outside the United Kingdom,
(b) a reference to any person or to property is a reference to any person, or to property, wherever situated,
(c) a reference to the public includes a reference to the public of a country other than the United Kingdom, and
(d) "the government" means the government of the United Kingdom, of a Part of the United Kingdom or of a country other than the United Kingdom.
(5) In this Act a reference to action taken for the purposes of terrorism includes a reference to action taken for the benefit of a proscribed organisation.
2. A third country national or stateless person is excluded from being a refugee where there are serious reasons for considering that:
(a) he or she has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes;
(b) he or she has committed a serious non-political crime outside the country of refuge prior to his or her admission as a refugee; which means the time of issuing a residence permit based on the granting of refugee status; particularly cruel actions, even if committed with an allegedly political objective, may be classified as serious non-political crimes;
(c) he or she has been guilty of acts contrary to the purpose and principles of the United Nations as set out in the Preamble and Articles 1 and 2 of the Charter of the United Nations.
3. Paragraph 2 applies to persons who instigate or otherwise participate in the commission of the crimes or acts mentioned therein.
"To maintain international peace and security, and to that end to take effective collective measures … for the suppression of acts of aggression or other breaches of the peace …"
By art. 25 the Members agree to accept and carry out the decisions of the Security Council.
"acts, methods and practices of terrorism are contrary to the purposes and principles of the United Nations…"
It called upon all states to prohibit and prevent incitement to commit terrorist acts and to
"deny safe haven to any persons with respect to whom there is credible and relevant information giving serious reasons for considering that they have been guilty of such conduct."
The AIT decision
"….. Whilst acknowledging that the appellant was discharged from the conspiracy to the murder count in relation to General Masoud we have noted the reason for this and consider that the evidence does point to the appellant as having played a role in facilitating the access of the suicide bombers to General Masoud. We have noted the production of a book authored by one of the leading members of IG and the manuscript written by Ayman Al-Zawahiri a leader of a proscribed organisation. We do consider there are serious grounds for believing that the appellant is guilty of providing support and assistance both financial and logistical to terrorists and terrorist organisations in particular IG."
The presumption of innocence
"Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law."
41. The question remains whether there were such links between the criminal proceedings and the ensuing compensation proceedings as to justify extending the scope of Article 6 §2 to cover the latter.
The court reiterates that the outcome of the criminal proceedings was not decisive for the issue of compensation. In this particular case, the situation was reversed: despite the applicant's acquittal it was legally feasible to award compensation. Regardless of the conclusion reached in the criminal proceedings against the applicant, the compensation case was thus not a direct sequel to the former. In this respect, the present case is clearly distinguishable from those referred to above, where the Court found that the proceedings concerned were a consequence and the concomitant of the criminal proceedings, and that Article 6 §2 was applicable to the former.
"The purposes and principles of the United Nations"
"acts … committed with the purpose to provoke a state of terror in the general public or in a group of persons or particular persons, intimidate a population or compel a government or an international organisation to do or abstain from doing any act".
"serious reasons for considering"
"has been guilty"
What persons are capable of committing acts covered by Article 1F(c)?
20. Because the United Nations is an organisation of States, there is a considerable amount of older opinion indicating that only those responsible (whether de facto or de jure) for the government or control of States could commit acts which were contrary to the purposes and principles of the United Nations. Owing at least partly to the growth of terrorist activity, it is now accepted by almost everybody that the meaning of Article 1F(c) is not so confined. As a result, this issue was not argued before us. For our part, we are perfectly content to hold that a private individual may be guilty of an act contrary to the purposes and principles of the United Nations, and we see no difficulty in reading the words in this way. Indeed, in the light of other materials before us, we think we should have had some difficulty in confining Article 1F(c) to individuals who control States.
68. …. Although it may be more difficult for a non-state actor to perpetrate human rights violations on a scale amounting to persecution without state thereby implicitly adopting those acts, the possibility should not be excluded a priori. As mentioned earlier, the court must also take into consideration that some crimes that have specifically been declared to contravene the purpose and principles of the UN are not restricted to state actors.
The case against the appellant
The Egyptian convictions
"… evidence of a suspect or witness which had been obtained by torture had long been regarded as inherently unreliable, unfair, offensive to ordinary standards of humanity and decency and incompatible with the principles on which courts should administer justice … [I]n consequence, such evidence might not lawfully be admitted against a party to proceedings in a United Kingdom court, irrespective of where, by whom or on whose authority the torture had been inflicted…."
The Old Bailey indictment
"One: I am satisfied that there is a sufficiency of evidence from which the jury could find proved, as a primary fact, that General Masoud was murdered by persons then named as Touzani, and Bakkali (hereafter referred to as "T" and "B") by means of an explosion caused by the detonation of a bomb carried into the presence of General Masoud, on 9th September 2001, by the said T and B, posing as a journalist and a cameraman, respectively, having, as such, been granted an interview with the General.
Second: I am further satisfied that there is sufficiency of evidence, from which the jury could find proved, that the letter of introduction from the Islamic Observation Centre (hereafter IOC) purportedly signed by the applicant, informing anyone reading them that T and B are journalists of Arab News International, itself a TV media subsidiary of IOC, and giving various contact details of IOC, including telephone, fax, e-mail and internet, did play a part in securing the interview at which the assassination of General Masoud took place.
I reach that conclusion having regard to the inferences, in my judgment, readily available from the details and sophistication of the means of gaining access to General Masoud, in which the IOC was the central theme.
I dwell on that because although it is undoubtedly correct that the persons pretending to be journalist and cameraman respectively, had with them other letters of introduction, and the interview was secured by means in which third parties played a part, principally, as Mr Emmerson submits, one Sayef, there is, in my judgment, a clear thread tying three of the four letters of introduction, to the role ascribed to T and B, as journalists, provided for them by the IOC and supported by the follow up props, like the cards found in the room occupied by the journalists T and B, at the government centre from which they were taken to interview General Masoud, all hanging together to the role ascribed for them in the letters of introduction provided by the applicant.
Third: the question remains -- and it is determinative of the application -- is there evidence of the writing of the letters of introduction by the applicant. Strictly speaking, the creation of them by means initiated by him. That is to say, are the letters subsequently found at his home, sufficient to permit the inference to be drawn, so that the jury is sure, that in doing so he was a knowing party to the murder of General Masoud? That is to say, at the time of writing them, or as indicated, causing them to be written, he knew that they were intended for use in securing an interview with the General, at which it was intended that the General should be killed. As part of that process can inferences consistent with innocence be safely excluded?
I am persuaded, for the reasons advanced by Mr Emmerson on the applicant's behalf, that the evidence is insufficient for this purpose. In outline; beginning with the two letters in fact carried by T and B, and adding into the equation the agreed chronology of the provisions of the drafts, as they have been referred to me under the rubric "To whom it may concern", and standing alongside that the agreed chronology, albeit largely false, provided by what the entries in T and B's passports indicate, the two letters in fact carried by the assassins are proved to be, as Mr Emmerson characterised them, careful and elaborate forgeries of the letters that the applicant created.
"Elaborate", because they included the use of the forged rubber stamps. That is to say, different to the stamps in the defendant's possession, but similar to those on the IOC letter heading. "Careful", because they involved -- the forgery that is -- backdating what was created, in order to fit into a forged trail that had been created for T and B in their passports, supported by the visas within them.
Since, in my judgment, it is -- and since the crucial fact is that it is – common ground that the defendant cannot have created his letters before, at the earliest, 28th July, and more likely the 29th, it is in my judgment as consistent with T and B using the letters created by the applicant as the template for the documentation that they were to forge, thus using the applicant as an innocent fall guy and furthermore one who could, if necessary, provide verisimilitude to the cover that was created for the assassins, as it is with the irresistible inference that at the time he provided his letters, by inference he, the applicant, knew that they were intended to be used for the purpose of killing General Masoud by the persons or through the medium of the persons for whom he was providing those letters by way of introduction."
43. The appellant provided and has accepted that he provided documents intended to be used as credentials of the Islamic Observation Centre and its television project Arab News International. The evidence shows clearly that letters in English composed by a friend of the appellant were written to a colleague of General Masoud known to the appellant in Afghanistan introducing the two deceased bombers. Copies of these documents were found at a search of the appellant's house.
44. The appellant has accepted that a contact of his had telephoned him from Afghanistan and suggested that the Islamic Observation Centre be involved in a profitable project to interview on film a number of leading persons in Afghanistan and Chechnya. The two journalists were to conduct the interviews. On being sent the names of the two journalists the appellant sent letters of introduction from the IOC. He claims then to have received telephone calls from the journalists saying they had begun the interviews in question. It appears to be the case that on 23 July 2001 the appellant described Arabic News International as a subsidiary of his Islamic Observation Centre and as a TV news agency. It also appears that he claimed to have made film on Bosnia Herzgovina. However it appears that Arabic News International did not exist and never has existed. According to the appellant's evidence to the police the name of this news agency was suggested by his contact Osman.
45. It is however the appellant's case that the actual letters of introduction used by the suicide bombers who killed General Masoud were fabricated on notepaper using his organisation's details from his original letter of introduction. It is the case that the surviving letter of introduction is not in exactly the same form as those found on the search of the appellant's premises.
"It is, however, always the case that in a criminal trial, for evidence to be sufficient for a jury to convict it must be evidence of which they are sure. That is not the same test as … whether there are serious reasons for considering that this appellant has been guilty of acts contrary to the purposes and principles of the United Nations."
46. …..We consider the evidence as summarised above seriously points to some knowing involvement of the appellant in the events which lead to the death of General Masoud. The killing was designed to destabilise the political structure in Afghanistan of which the General was a key part and/or to intimidate the public in the area controlled by the Northern Alliance.
47. Nor for the reasons given above do we regard it as necessary that the killing of General Masoud should have an international aspect. But even if we are wrong about that we consider the killing itself to be an act of terrorism likely to have significant international repercussions, as indeed it appears to have done.
Sufficiency of evidence
48. The respondent also relied in the letter of refusal on a lengthy statement by Detective Constable (Acting Detective Inspector) Dingemans of the Counter-Terrorism Command at Scotland Yard. It includes reference to a book printed under the auspices of the Islamic Observation Centre entitled "Bringing to light some of the most important judgements of Islam". Substantial copies of the book were found in the appellant's home. The author of the book is one of the leaders of IG the proscribed terrorist organisation who is said to be close to Osama Bin Laden and a signatory to Bin Laden's Fatwa which preceded the 1998 US Embassy bombings in Tanzania and Kenya. The foreword to the book is the work of the Islamic Observation Centre and is attributed by the police officer to the appellant. The book is dedicated to Dr Rahman the leader of IG currently serving a prison sentence in the United States having been convicted for his part in the 1993 World Trade Centre bombing. Searches of the appellant's property produced as well as the documentation relating to the killers of General Masoud, numerous documents containing details of worldwide contacts and associates as well as books and videos relating to Osama Bin Laden and Al-Qa'ida. The appellant was, it appears, accustomed to move substantial sums around the world despite the fact that he was in receipt of state benefits here
49. Also said to have been found at the appellant's address was a manuscript written by Ayman Al-Zawahiri entitled "Expectation of the Jihad Movement in Egypt". Mr Al-Zawahiri is the leader of a proscribed organisation and is alleged to have helped fund and organised the massacre of 68 tourists and 4 Egyptians in Luxor during November 1997. During the course of being interviewed over the proposed criminal proceedings against him the appellant made a formal statement through his solicitors and answered some questions but at many of the early stages of the interview process exercised his right of silence on the basis that he did not know what the allegations were that he was facing. It is the appellant's case that no reliance can be placed on the statement of ADI Dingemans. Much of it is hearsay. Others are summaries of detailed interviews.
"The searches recovered substantial amounts of documents, paperwork and other exhibits. Below is a summary of items of interest:
PS/222 – a letter of introduction in the name of Kareem BAKKALI
PS/223 – a letter of introduction in the name of Karim TOUZANI
PS/248 – a fax in the name of TOUZANI and BAKKALI
There were numerous documents that contain the details of worldwide contacts and associates, as well as books and videos relating to Usama BIN LADEN and Al Qaida.
Amongst the documentation relating to worldwide dealings were many that relate to shipping orders, banking and money transfers. A substantial financial investigation was undertaken and in the early stages, it was clear that significant cash movements of funds was taking place. Several large debits – one for £5000.00 (five thousand pounds) had been identified and been electronically transferred to various accounts in the Middle East (by way of example, Palestine; Egypt; and, Dubai). Al-Sirri was in receipt of state benefits and allowances and his involvement in these financial transactions far exceeded his legitimate income.
During interviews conducted on 29th October 2001 (29/10/2001), Al-Sirri put forward explanations when questioned about specific cheque transactions relating to AL HEDAYA, although they are dubious to say the least. Satisfactory explanations were not given regarding the origins of cash transactions involving monies sent abroad and not shown within the known financial structure [of] his business."
The US indictment
40. …..The appellant says that because there is no evidence to support the allegations they cannot be regarded as serious grounds for considering that the appellant might be guilty of them.
41. We do not agree. We were not given any details in relation to the extradition proceedings. However it is clear from a full reading of the indictment that a good deal of the evidence relied on by the Grand Jury will have been obtained by telephone intercepts. Such evidence is highly unlikely to be admissible in a UK Court. None of that however detracts from the fact that a US Grand Jury was satisfied that there was probable cause that this appellant had committed a criminal offence under the US law in relation to his involvement with and association with IG which is itself a terrorist organisation. As an example the appellant is said to have "solicited, commanded, induced and otherwise endeavoured to persuade other persons to engage in violent, terrorist operations worldwide to achieve IG's objectives". We regard this indictment as serious grounds for believing that the appellant has been guilty of acts contrary to the purposes and principles of the United Nations.
Lady Justice Arden:
"serious reasons for considering"
Lord Justice Longmore:
i) ran the Islamic Observation centre ("IOC") from his flat at 102 Edinburgh House in Maida Vale;
ii) rented 99A Bell Street, Paddington where he ran a bookshop and a company called Al-Hedaya;
iii) published a book called (in translation) "Bringing to light some of the most important judgments in Islam", the author of which was Taha Musa, who was (i) leader of al-Gamma al-Islamiyya ("IG"), a proscribed terrorist organisation under the Terrorism Act 2000 and (ii) a signatory to the "fatwa" of Osama Bin Laden which preceded the 1998 bombings of United States embassies in Tanzania and Egypt;
iv) had in his possession (a) letters of introduction in the name of the two journalists who murdered Mr Masoud, (b) books and videos relating to Osama Bin Laden and Al Qaeda, (c) documentation relating to shipping orders and bank and money transfers which showed significant cash movements had taken place including sums paid to recipients in Palestine, Egypt and Dubai;
v) had given explanations of those cash movements which appeared to be no part of the financial structure of his legitimate business explanations which Mr Dingemans considered were "dubious";
vi) had, furthermore, in his possession a letter of 17th August 2001 from an Osman Al Said who had a contact address in Sana'a, Yemen. This letter enclosed a photocopy of a passport in the name of Hussain Yassein Taya Osman and asked Mr Al-Sirri to "take care of the matter". It referred to previous correspondence and said "please get rid of all the letters which I have sent you previously as you are aware of the circumstances".