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England and Wales High Court (Administrative Court) Decisions |
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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Tajik, R (on the application of) v The City of Westminster Magistrates' Court & Ors [2012] EWHC 3347 (Admin) (27 November 2012) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2012/3347.html Cite as: [2013] 1 WLR 2283, [2013] 2 All ER 602, [2013] WLR 2283, [2012] EWHC 3347 (Admin), [2012] WLR(D) 361 |
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QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Strand, London, WC2A 2LL |
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B e f o r e :
MR JUSTICE SWEENEY
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The Queen on the Application of Tajik |
Claimant |
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- and - |
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The City of Westminster Magistrates' Court The Secretary of State for the Home Department The Government of the United States of America |
1st Defendant 2nd Defendant 3rd Defendant |
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Mr Hugo Keith QC and Mr Ben Watson (instructed by The Treasury Solicitors) for the 2nd Defendant and
Mr Aaron Watkins (instructed by Crown Prosecution Service) for the 3rd Defendant
Hearing dates 30th – 31st October 2012
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Crown Copyright ©
Lord Justice Moses:
Events between June 2008 and 7 November 2011
"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.
"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 the Law Officers is that no such discretion is available. They advise that, as Home Secretary, I am required to extradite Tajik and that any other decision would be unlawful.
The only circumstances in which Tajik's extradition would not now take place would be:
(a) If his health were to deteriorate to the point where extradition would breach his Convention rights; or
(b) If the US were to withdraw its extradition request.
While the effect of the advice from the Law Officers is that I must proceed with Tajik's extradition, in the light of the potentially very serious diplomatic implications of this course of action, I am willing to defer my decision for a short period in order to give you the opportunity to consider whether the diplomatic repercussions are so severe that you would wish to approach the US at a senior diplomatic level in order to ask them to withdraw their extradition request. If the consequences of Tajik's extradition are serious for the UK, then it seems likely that they would also affect US interests. This may have particular significance in the light of the imminent change of administration in the US; and you may wish to confirm with US officials from both administrations that they wish to pursue the request. If they do, I am under statutory duty to proceed with Tajik's extradition.
In view of the potentially very serious diplomatic consequences of a decision to proceed with Tajik's extradition I thought you would also wish to know that any such decision could be judicially reviewed by Tajik on human rights grounds. This would mean that the courts would, in effect, have the final say on whether there is any legal bar to his extradition.
I would be grateful if you would let me know whether you wish me to defer making a decision on extradition in order to allow you time to approach the US. I would be grateful for a reply by the end of January." (my emphasis)
The letter was copied to the Attorney General and the Cabinet Secretary, and signed by the then Home Secretary.
"She will defer her decision on whether to proceed with Tajik's extradition pending the outcome of your discussions with the US. It would be very helpful if these decisions could take place urgently because, as matters stand, the Home Secretary remains under a legal duty to proceed with Tajik's extradition and reasonable cause must be shown for any delay." (my emphasis)
"The longer the process continues the greater the risk that he will suffer a complete mental breakdown, a cardiac event, or death. The prolonged nature of this process has become a torment to Mr Tajik and his family."
There was no response from the Home Office.
"Having been informed that the FCO had sought US views on maintaining the request for NT's extradition, the Home Office made repeated requests to the FCO for confirmation of the US position throughout 2009, through and till October 2010. During this period, the Home Office received a series of responses from the FCO indicating that, up until October 2010, no substantive response had been received from the US authorities to the FCO's enquiry."
"It was therefore considered to be in NT's own interest that the US authorities were permitted a full opportunity to consider their position." (paragraph 38)
Three Sets of Proceedings
Section 118 of the Extradition Act 2003
"(1) This section applies if –
(a) there is an appeal to the High Court under section 103, 108 or 110 against a decision or order relating to a person's extradition to a category 2 territory and
(b) the effect of the decision of the relevant court on the appeal is that the person is to be extradited there.
(2) The person must be extradited to the category 3 territory before the end of the required period, which is 28 days starting with –
(a) the day on which the decision of the relevant court on the appeal becomes final, or
(b) the day on which proceedings on the appeal are discontinued.
(3) The relevant court is –
(a) the High Court, if there is no appeal to the Supreme Court against the decision of the High Court on the appeal;
(b) the Supreme Court, if there is such an appeal.
(4) The decision of the High Court on the appeal becomes final –
(a) when the period permitted for applying to the High Court for leave to appeal to the Supreme Court ends, if there is no such application;
(b) when the period permitted for applying to the Supreme Court for leave to appeal to it ends, if the High Court refuses leave to appeal and there is no application to the Supreme Court for leave to appeal;
(c) when the Supreme Court refuses leave to appeal to it;
(d) at the end of the permitted period, which is 28 days starting with the day on which leave to appeal to the Supreme Court is granted, if no such appeal is brought before the end of that period.
(5) These must be ignored for the purposes of subsection (4) –
(a) any power of a court to extend the period permitted for applying for leave to appeal;
(b) any power of a court to grant leave to take a step out of time.
(6) The decision of the Supreme Court on the appeal becomes final when it is made.
(7) If subsection (2) is not complied with and the person applies to the appropriate judge to be discharged the judge must order his discharge, unless reasonable cause is shown for the delay."
"…there was no remaining substantive decision-making stage prior to return. All that remained was to make the necessary administrative arrangements. By contrast, in the present case, the ultimate decision to return is vested in the Secretary of State who is under a duty to consider representations on behalf of the applicant pursuant to section 13(4) of the Act." [11]-[12].
It is important to recall that Hines was a case under the 1989 Act. The decision which it remained for the Secretary of State to take was a decision which the statute required him to make under s.13, as part of the process leading to the making of the order for extradition. There is no equivalent in the 2003 Act, save the need for the Secretary of State to consider the limited grounds under section 93.
"(2) Unless he has instituted proceedings for judicial review of the Secretary of State's decision to order his return, the relevant period is
(a) the period of two months beginning with the first day of which, having regard to s.11(2) above, he could have been returned;…" (my emphasis)
"The Home Office made repeated requests to the FCO for confirmation of the US position throughout 2009, through until October 2010. During this period, the Home Office received a series of responses from the FCO indicating that, up until October 2010, no substantive response had been received from the US Authorities to the FCO's enquiry." (paragraph 36)
"Any diplomatic communication between the Government of the United States and the Government of the United Kingdom has occurred on a state to state basis. It is not generally, nor has it been in this case, the role of the Crown Prosecution Service to participate in or receive instructions about any government to government communication. Thus, to a limited extent the Government of the United States (here represented by the Crown Prosecution Service) is able to participate in these proceedings, it supports the submissions made by the Secretary of State for the Home Department…"
Application to Re-open the Statutory Appeal
"(1) The Court of Appeal or the High Court will not re-open the final determination of any appeal unless –
(a) it is necessary to do so in order to avoid real injustice;
(b) the circumstances are exceptional and make it appropriate to re-open the appeal."
Mr Tajik's Bodily and Mental Condition
"In his current situation he is at risk of an acute coronary event or even cardiac arrest occurring. The chance of this under his chronic low-level stress at the present moment is relatively low on a day-to-day basis, but is still a significant risk.
If he were put under severe stress, e.g., as a result of extradition, then I believe that there is a very significant risk that he would suffer a fatal cardiac event as a result of this stress. This might be in the form of a major heart attack or, even worse, a cardiac arrest under stress."
Oppression under s.82
The Final Say
Mr Justice Sweeney: