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England and Wales High Court (Administrative Court) Decisions
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Cite as:  EWHC 666 (Admin)
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
MRS JUSTICE SWIFT DBE
| Case No: CO/4771/2007
|The Queen (on the application of
Syed Talha Ahsan)
|- and -
|Director of Public Prosecutions
Government of the United States of America
Case No: CO/5359/2007
|Syed Talha Ahsan
|- and -
|Government of the United States of America
Secretary of State for the Home Department
Case No: CO/5417/2007
|- and -
|Government of the United States of America
Secretary of State for the Home Department
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
Crown Copyright ©
Lord Justice Richards :
Ahsan's statutory appeal
Ahsan's application for judicial review
"1. Investigation and prosecution agencies in the United Kingdom and the United States of America are committed to working together to combat crime. It is appreciated that there is a need to enhance the exchange of information in criminal cases involving concurrent jurisdiction. Early contact between prosecutors, after discussing the cases with investigators, is intended to enable them to agree on strategies for the handling of criminal investigations and proceedings in particular cases. Such liaison will help to avoid potential difficulties later in the case. In particular, early contact will be valuable in cases which are already the subject of proceedings in the other jurisdiction.
2. This document provides guidance for addressing the most serious, sensitive or complex criminal cases where it is apparent to prosecutors that there are issues to be decided that arise from concurrent jurisdiction. In deciding whether contact should be made with the other country regarding such a case, the prosecutor should apply the following test: does it appear that there is a real possibility that a prosecutor in the other country may have an interest in prosecuting the case? Such a case would usually have significant links with the other country.
3. As a matter of fundamental principle any decision on issues arising from concurrent jurisdiction should be and be seen to be fair and objective. Each case is unique and should be considered on its own facts and merits.
4. This guidance follows a step-by-step approach to determining issues arising in cases with concurrent jurisdiction. Firstly, there should be early sharing of information between prosecutors in the jurisdictions with an interest in the case. Second, prosecutors should consult on cases and the issues arising from concurrent jurisdiction. Third, where prosecutors in the jurisdictions with an interest in the case have been unable to reach agreement on issues arising from concurrent jurisdiction, the offices of their Attorneys General or Lord Advocate, as appropriate, should take the lead with the aim of resolving those issues."
"13. This guidance does not create any rights on the part of a third party to object to or otherwise seek review of a decision by UK or US authorities regarding the investigation or prosecution of a case or issues related thereto.
14. The aim of consultation, having shared the information set out in paragraph 10, will be to enable each country's prosecutors to decide on the issues arising from concurrent jurisdiction through bilateral discussion, including, but not limited to:
a. where and how investigations may be most effectively pursued;
b. where and how prosecutions should be initiated, continued or discontinued; or
c whether and how aspects of the case should be pursued in different jurisdictions.
It is of course for the prosecuting authority, having applied the guidance, to decide that a case should properly be prosecuted in its country, where that is in accordance with the law and the public interest."
The background to the guidance
"I believe the guidance will improve communication by facilitating the early sharing of case information and consultation between prosecutors in those jurisdictions. International cooperation in fighting transnational crime is essential. Further, this guidance should assist prosecutors to have the earliest notice of cases that could be of interest to them for possible investigation and prosecution in the UK. The guidance retains the UK prosecutor's powers to decide that a case should be tried in the UK when this is possible and in accordance with the law and public interest."
Correspondence concerning the guidance
"The Attorney General's Guidance for handling criminal cases affecting both England and Wales and the United States dated 18th January 2007 has no application in Ahsan's case. The position is that he is being prosecuted in the United States and that the request was received on or about the 15th September 2006.
The extradition proceedings are underway and currently stand part heard. There is no domestic prosecution. Babar Ahmad's statutory appeal has failed and the only issues which remain to be determined are those relating to bars to extradition."
The case advanced on behalf of Ahsan
Tajik's statutory appeals
(1) Conspiracy to knowingly and wilfully export defence articles, namely night vision equipment, from the USA to Iran, without first obtaining the required licence or written approval from the US Department of State, Directorate of Defense Trade Controls, in violation of 22 U.S.C. § 2778 and 22 C.F.R. §127.1(a)(3) and (d) and 18 U.S.C. § 2; and
(2) Knowingly and wilfully attempting to export from the USA and re-export and re-transfer from one foreign destination to another foreign destination, namely from the UK to Iran, night vision equipment, US origin defence articles, without first obtaining the required licence or written approval from the US Department of State, Directorate of Defense Trade Controls, in violation of 22 U.S.C. § 2778 and 22 C.F.R. § 127.1(a)(3) and (d) and 18 U.S.C. § 2.
The conduct alleged
(1) whether the offences are extradition offences within the meaning of s.137(2) of the 2003 Act;
(2) whether Tajik's physical or mental condition is such that it would be unjust or oppressive to extradite him, within s.91 of the 2003 Act;
(3) whether the extradition proceedings are an abuse of process;
(4) whether the extradition is barred by extraneous considerations within ss.79(1)(b) and 81(b) of the 2003 Act;
(5) whether the extradition should have been refused under s.95 of the 2003 Act for risk of infringement of the specialty rule;
(6) whether extradition would be compatible with Tajik's Convention rights, within s.87 of the 2003 Act.
Issue 1: extradition offence
"(1) This section applies in relation to conduct of a person if –
(a) he is accused in a category 2 territory of the commission of an offence constituted by the conduct …
(2) The conduct constitutes an extradition offence in relation to the category 2 territory if these conditions are satisfied –
(a) the conduct occurs in the category 2 territory;
(b) the conduct would constitute an offence under the law of the relevant part of the United Kingdom ….
(4) The conduct also constitutes an extradition offence in relation to the category 2 territory if these conditions are satisfied –
(a) the conduct occurs outside the category 2 territory and no part of it occurs in the United Kingdom …."
"35. … But the test of whether conduct occurs in the category 1 territory is satisfied for the purposes of section 65(3) so long as its effects were intentionally felt there, irrespective of where the person was when he did the acts which constituted such conduct.
40. … The conduct must occur 'in' the category 1 territory if the condition which is set out in these paragraphs is to be satisfied. But a purposive meaning must be given to the word 'conduct' in this context. It would impose a wholly artificial restriction on the extradition process if it were to be taken as meaning that all the conduct which resulted in the offence must have taken place exclusively within the category 1 territory. Actings elsewhere will be sufficient to constitute conduct in that territory so long as their intended effect was to bring about harm within that territory …."
"Some of the alleged conduct, e.g. the sending of emails by Mr Tajik to, and received in, the USA on 5.6.06 and 8.8.06, can be directly described as having occurred 'in' the USA. Unlike the case of Bermingham … in this case the intended effect of the alleged actions by the conspirators was to bring about harm within the US, namely to achieve the export of night vision equipment, US origin defence articles, from the US directly or indirectly to Iran, in knowing contravention of the US law controlling and prohibiting such exports. Nearly all the communications to achieve that plan, including emails, phone messages and faxes were directed by Tajik and Gharekhani to the prosecution witnesses in the US. The meeting with Mr Tajik in London on 17 August 2006 followed Mr Tajik's statement, in the course of communicating with a prosecution witness on 1 August 2006, that he (Mr Tajik) would be ready to take possession of night vision equipment in London on 17 August 2006. Although there were discussions about exports from the Netherlands it is clear from the contents of the request that Tajik and his conspirators intended to effect the export of goods from the US. The conduct falls squarely within Lord Hope's purposive meaning to be given to the word 'conduct' …."
"65. … It is possible to define the crimes for which extradition is to be sought and ordered (extradition crimes) in terms either of conduct or of the elements of the foreign offence. That is the fundamental choice. The court can be required to make the comparison and to look for the necessary correspondence either between the offence abroad (for which the accused's extradition is sought) and an offence here, or between the conduct alleged against the accused abroad and an offence here. For convenience these may conveniently be called respectively the offence test and the conduct test. It need hardly be pointed out that if the offence test is adopted the requested state will invariably have to examine the legal ingredients of the foreign offence to ensure that there is no mismatch between it and the supposedly corresponding domestic offence. If, however, the conduct test is adopted, it will be necessary to decide, as a subsidiary question, where, within the documents emanating from the requesting state, the description of the relevant conduct is to be found."
"93. The committee has reached the conclusion that the wider construction should prevail. In short, the conduct test should be applied consistently throughout the 2003 Act, the conduct relevant under Part 2 of the Act being that described in the documents constituting the request (the equivalent of the arrest warrant under Part 1), ignoring in both cases mere narrative background but taking account of such allegations as are relevant to the description of the corresponding United Kingdom offence. Had Mr Norris's appeal failed on the first issue the extradition order on count 1 would have stood."
Issue 2: physical and mental condition
"… I accept the unchallenged evidence of Dr Cave that Mr Tajik suffers from coronary heart disease for which he has had, and is receiving, medical treatment. He may continue to experience exertional angina but he is not at especially high cardiac risk in the medium term. There is no doubt that facing extradition proceedings is stressful. Facing trial in the United States and, if convicted, the consequences of sentence and possible imprisonment will also be stressful. The level of stress and the consequences that may result are unascertainable at this stage. Whilst accepting the possibility of deterioration in Mr Tajik's health as a consequence of his circumstances if his extradition is ordered, his physical and mental condition in my judgment falls far short of him being in such a condition that it would be unjust or oppressive to extradite him."
"1. In my opinion, Nosratollah Tajik currently suffers from depression of moderate severity … or major depression … and panic disorder …. These are of sufficient severity to warrant treatment by his GP ….
2. Mr Tajik also satisfies the criteria for post-traumatic stress disorder …. The symptoms are primarily related to his experiences of torture in the 1970s, but appear to have been exacerbated by events of the last six months. Nonetheless, he appears to have had persistent symptoms of PTSD, something that he had not shared with his solicitor at the time of the instructions.
3. Mr Tajik suffers from ischemic heart disease, resulting in at least one heart attack, coronary artery bypass surgery and continuing medication and symptoms. The symptoms of panic disorder that he experiences are very similar to those of angina. However, judging by Dr Cave's report, Mr Tajik's condition is susceptible to anxiety and stress and his symptoms of ischemic heart disease are likely to be precipitated by excessive amounts of anxiety and stress.
4. It follows, therefore, that Mr Tajik's health is jeopardised by these current proceedings both in terms of his mental health and his physical health. The effect of the proceedings themselves appears to have exacerbated his symptoms of PTSD and precipitated a depressive episode with anxiety features. It is likely that were the extradition proceedings to continue, Mr Tajik would be at risk of developing further symptoms of psychiatric disorder and there is therefore the possibility that these symptoms would themselves lead to further problems with his heart disease.
5. If the extradition proceedings themselves are likely to precipitate deteriorations in both Mr Tajik's physical and mental health, it is likely that detention in the USA and the trial process there would exacerbate his conditions even more. It is possible that Mr Tajik's life would be in danger because of his physical danger in particular. I think it unlikely that Mr Tajik would consider suicide because of his religious beliefs. However, I would expect Mr Tajik's symptoms of PTSD to be exacerbated even more by a prolonged period of incarceration. This would be redolent of his experiences under the Iranian pre-1979 regime (without the torture, but he would perceive himself as a political prisoner) and I would be concerned that there would be a significant risk of his mental state deteriorating under such pressures to the point where he would become severely ill with depression and anxiety which in turn would have a deleterious impact upon his physical health as described by Dr Cave in his report."
"Spain is a civilised country. The evidence shows that, if extradited, proper examination will be made to ascertain whether the appellant is fit to stand trial. Such examination will also establish whether the appellant is a suicide risk and whether he is in need of psychiatric treatment. So, I would conclude that, even though it may turn out that the appellant is of low intelligence and might be unfit to stand trial, it is not unjust or oppressive to extradite him to Spain."
Issue 3: abuse of process
"84. The judge should be alert to the possibility of allegations of abuse of process being made by way of delaying tactics. No steps should be taken to investigate an alleged abuse of process unless the judge is satisfied that there is reason to believe that an abuse may have taken place. Where an allegation of abuse of process is made, the first step must be to insist on the conduct alleged to constitute the abuse being identified with particularity. The judge must then consider whether the conduct, if established, is capable of amounting to an abuse of process. If it is, he must next consider whether there are reasonable grounds for believing that such conduct may have occurred. If there are, then the judge should not accede to the request for extradition unless he has satisfied himself that such abuse has not occurred ….
89. The appropriate course for the judge to take if he has reason to believe that an abuse of process may have occurred is to call upon the judicial authority that has issued the warrant, or the State seeking extradition in a Part 2 case, for whatever information or evidence the judge requires in order to determine whether an abuse of process has occurred or not."
"Police conduct which brought about State-created crime was unacceptable and improper and the role of the courts was to stand between the State and its citizens to make sure this did not happen. But, if a person freely took advantage of an opportunity to break the law, given to him by a police officer, the police officer was not to be regarded as inciting or instigating the crime in the context of the prohibition of entrapment.
In considering whether the conduct of the police or other law enforcement agency was so seriously improper as to bring the administration of justice into disrepute the court had to have regard to all the circumstances of the case and in exercising its inherent jurisdiction to stay the proceedings as an abuse of process had particularly to consider: (1) the nature of the offence – the use of pro-active techniques was more needed and, hence, more appropriate in some circumstances than in others and the secrecy and difficulty of detection, and the manner in which the particular criminal activity was carried on, were relevant considerations; (2) the reason for the particular police operation – having reasonable grounds for suspicion was one way good faith might be established but having grounds for suspicion of a particular individual was not always essential; (3) the nature and extent of police participation in the crime – the greater the inducement held out by police, and the more forceful or persistent the police overtures, the more readily might a court conclude that the police had overstepped the boundary; (4) the defendant's criminal record – this was unlikely to be relevant unless it could be linked to other factors grounding reasonable suspicion that the defendant was currently engaged in criminal activity.
In a case involving the commission of an offence by an accused at the instigation of undercover police officers there was no appreciable difference between the requirements of Article 6 of the European Convention of Human Rights, or the Strasbourg jurisprudence on Article 6, and English law as it has been developed in recent years."
Issue 4: extraneous considerations
"A person's extradition to a category 2 territory is barred by reason of extraneous considerations if (and only if) it appears that –
(a) the request for his extradition (though purporting to be made on account of the extradition offence) is in fact made for the purpose of prosecuting or punishing him on account of his race, religion, nationality, gender, sexual orientation or political opinion, or
(b) if extradited he might be prejudiced at his trial or punished, detained or restricted in his personal liberty by reason of his race, religion, nationality, gender, sexual orientation or political opinion."
"The Embassy of the United States of America at London, England, presents its compliments to Her Majesty's Principal Secretary of State for Foreign and Commonwealth Affairs and has the honor to refer to Note No.058 dated September 8, 2006, requesting the extradition of Nosratollah Tajik to the United States of America to stand trial on terrorist related charges.
The Government of the United States assures the Government of the United Kingdom that upon extradition to the United States, Nosratollah Tajik, will be prosecuted before a Federal Court in accordance with the full panoply of rights and protections that would otherwise be provided to a defendant facing similar charges. Pursuant to his extradition, Nosratollah Tajik will not be prosecuted before a military commission, as enabled by the Military Commissions Act of 2006; nor will he be criminally prosecuted in any tribunal or court other than a United States Federal Court; nor will he be treated as an enemy combatant."
"In that note, the Embassy inadvertently referred to the charges for which Tajik's extradition was sought as 'terrorist related charges'. The Embassy wishes to clarify that the only charges for which Tajik's extradition is sought are those referenced in Note No.58, dated September 8, 2006, which requested the extradition of Tajik and noted that he is wanted to stand trial in the US District Court for the Northern District of Illinois … for two offenses …."
Issue 5: specialty
"(1) The Secretary of State must not order a person's extradition to a category 2 territory if there are no specialty arrangements with the category 2 territory.
(3) There are specialty arrangements with a category 2 territory if (and only if) under the law of that territory or arrangements made between it and the United Kingdom a person who is extradited to the territory from the United Kingdom may be dealt with in the territory for an offence committed before his extradition only if –
(a) the offence is one falling within subsection (4), or
(b) he is first given an opportunity to leave the territory.
(4) The offences are –
(a) the offence in respect of which the person is extradited;
(b) an extradition offence disclosed by the same facts as that offence, other than one in respect of which a death penalty could be imposed;
(c) an extradition offence in respect of which the Secretary of State consents to the person being dealt with;
(d) an offence in respect of which the person waives the right that he would have (but for this paragraph) not to be dealt with for the offence."
"82. Overall, I consider that these decisions are consistent. They focus on the question of consent to extradition ….
84. The US courts do not infer consent merely because there is silence. They do not turn a blind eye to what are obvious problems in the sending state's known attitude, whether from past extradition requests or from the particular case or Treaty involved. Rather, it seems clear to me, they adopt a realistic assessment of the sending state's attitude, in recognition of the specialty doctrine as a principle of international comity and out of respect for a foreign state's sovereignty ….
85. There is nothing in the cases which would justify the conclusion that the US Government or Courts would not respect the express limits in the UK-US Treaty or in the 2003 Act or in any judgment of this Court, even if they might conclude that for other states there would be no objection in parallel circumstances. There is nothing in the cases which suggests that, if a country requires affirmative consent in circumstances in which for other countries the US Courts would infer consent, the US Courts would ignore that requirement. There have been no cases cited to us in which a trial has taken place on the basis of inferred consent in a UK case, let alone one in which there was arguably any doubt as to the position of the UK or as to the scope of the extradition order.
86. The application of the specialty rule in the US Courts is thus affected by the known views of the sending state. If a superseding indictment alleged offences which were not covered by the terms of the 2003 Act, the US authorities would not prosecute in breach of those provisions. The provisions of s.95 are satisfied in relation to prosecutions.
87. Where the consent of the Home Secretary is required under s.95(4)(c) for prosecutions which fall outside the scope of s.95(4)(a), (b) and (d), that consent is not to be inferred. It must be expressly given on the proper construction of s.95. The absence of such consent to a prosecution for which it is necessary would mean that the trial would be in breach of the specialty rule. But I do not see any basis for supposing that that requirement would be ignored by the US authorities. Instead I see a conscientious respect for what the sending state and its Courts say …."
Issue 6: Convention rights
"What is required is that the court should decide whether the interference with a person's right to respect for his private or (as the case may be) family life which would result from his or her extradition is proportionate to the legitimate aim of honouring extradition treaties made with other states. Thus, although it is wrong to apply an exceptionality test, in an extradition case there will have to be striking and unusual facts to lead to the conclusion that it is disproportionate to interfere with an extraditee's article 8 rights."
Conclusion on Tajik's appeal
Mrs Justice Swift DBE :