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URL: http://www.bailii.org/ew/cases/EWHC/Admin/2012/3347.html
Cite as: [2013] 1 WLR 2283, [2013] 2 All ER 602, [2012] EWHC 3347 (Admin), [2012] WLR(D) 361, [2013] WLR 2283

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Neutral Citation Number: [2012] EWHC 3347 (Admin)
Case Nos: CO/5417/2007, CO/11565/2011, CO/4206/2012

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

Royal Courts of Justice
Strand, London, WC2A 2LL
27/11/2012

B e f o r e :

LORD JUSTICE MOSES
MR JUSTICE SWEENEY

____________________

Between:
The Queen on the Application of Tajik
Claimant
- and -

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

____________________

Mr Alun Jones QC and Mr Anwar Ramzan (instructed by Kaim Todner Solicitors) for Mr Tajik
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

____________________

HTML VERSION OF JUDGMENT
____________________

Crown Copyright ©

    Lord Justice Moses:

  1. From time to time the most senior judges reiterate the need to avoid delay in extradition proceedings. They have stressed that one of the objects of the Extradition Act 2003 was to ensure expedition (see, e.g., Lord Phillips CJ in R (Government of the United States of America) v Bow Street Magistrates Court [2007] 1 WLR 1157, [2006] EWHC 2256 (Admin), paragraphs 73, 79 and 80). In Abu Hamza and Others v Secretary of State for the Home Department [2012] EWHC 2736 (Admin), the Secretary of State complained vehemently about the long delay, a complaint echoed by the President of the Queen's Bench Division. He urged that those accused of serious crimes should be tried as quickly as is possible, and remarked that it was unacceptable that extradition proceedings should take more than a relatively short time. Frequently, the inordinate delays are due to increasingly desperate attempts by requested persons to avoid facing trial. This case is different.
  2. Mr Tajik, the claimant, is a former Iranian ambassador to Jordan. The history of his extradition, starting with the issue of a warrant in Illinois for his arrest on charges relating to the export of defence articles, in particular night-vision equipment, on 30 August 2006, is detailed in the decision of the Divisional Court in his statutory appeals, culminating in their rejection of those appeals on 10 April 2008 ([2008] EWHC 666, paragraphs 43-79). In that appeal, the court rejected Mr Tajik's appeal under s.91 of the 2003 Act based on his medical condition. Mr Tajik suffered from coronary artery disease, causing recurrent angina and symptoms of anxiety and depression. But neither the District Judge, nor the Divisional Court on appeal, regarded the condition to be so serious as to lead to the conclusion that it would be oppressive to extradite him. Mr Tajik applied for a certificate of a point of law of general public importance; this was refused on 14 May 2008. He had also applied for interim measures under Rule 39 to the European Court of Human Rights. This too was refused on 26 May 2008. The statutory extradition proceedings had concluded but he had not yet been surrendered to United States custody. Rather, on 3 June 2008 solicitors on behalf of Mr Tajik informed the then Secretary of State that he had been admitted as an in-patient in hospital on 27 May for chest pains, apparently related to his heart condition. The further medical report from his consultant cardiologist was enclosed. Although Mr Tajik's statutory remedies under the 2003 Act had been exhausted, the Secretary of State acknowledged that she should consider what appeared to be new medical information. She accepted that, as a public authority, she was obliged, pursuant to s.6 of the Human Rights Act 1998, to act compatibly with Mr Tajik's Convention rights, even though the statutory appeal process had concluded. It is necessary to record the exchange of correspondence which ensued following the Secretary of State's acceptance of her obligation under s.6 of the 1998 Act.
  3. Events between June 2008 and 7 November 2011

  4. Whilst Mr Tajik was applying for points of general public importance to be certified, the Secretary of State had agreed that he would not be surrendered on his undertaking that he would not apply for statutory discharge pursuant to s.118 of the 2003 Act. On 3 June 2008 the Secretary of State confirmed that she would not seek to surrender Mr Tajik before 11 June 2008 so that he might obtain a further report for her consideration. Mr Tajik's undertaking not to apply for statutory discharge was continued. Further short extensions were given until Mr Tajik submitted various medical reports on 24 July 2008. On 28 July 2008 Mr Tajik's lawyers suggested that they would apply for habeas corpus so that the court could consider the latest medical evidence without the intervention of the Secretary of State. On 30 July 2008 the Secretary of State agreed not to extradite Mr Tajik before 15 August 2008. She asserted her right to make a decision in the light of post-appeal medical developments:-
  5. "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.

  6. On 11 August 2008, in response to the Secretary of State's assurance to consider the most recent medical developments, Mr Tajik's solicitor advanced formal representations asking for a full review of the case in the light of articles 2, 3 and 8 of the European Convention on Human Rights.
  7. The Home Office sought further information from the United States authorities as to the availability of suitable health care facilities for Mr Tajik. The United States Department of Justice replied by letter dated 10 September 2008 (see the witness statement of Mr Hepple, Director of Civil Liberties and Public Protection at the Home Office). He states that between October and December 2008, a period of four months, the Secretary of State was considering Mr Tajik's case. Further extensions were given during that period until, on 14 October 2008, an indefinite extension was given until the Secretary of State's decision was made. Solicitors on behalf of Mr Tajik responded on 13 and 14 October 2008 expressing the hope that the Secretary of State would recognise that Mr Tajik's physical and mental health had substantially deteriorated whilst awaiting the decision of the Secretary of State. They asked that the Secretary of State's decision should be made within a fixed period of time "so that our client has certainty as to when a decision will be made".
  8. From that time, in October 2008, until after these proceedings had begun, Mr Tajik and his legal advisers laboured under the illusion that the Secretary of State's delay in reaching a conclusion was wholly attributable to consideration of his medical condition. They were disabused when they received Mr Hepple's statement dated 6 September 2012, after these proceedings were launched. As it now turns out, the Secretary of State was in a position to reach a conclusion, in fulfilment of her obligation under the Human Rights Act, at the beginning of 2009. She had considered the reports and reached what Mr Hepple describes (at paragraph 31 of his statement) as the "provisional" conclusion that Mr Tajik's condition was not such as to render his extradition unlawful under s.6 of the 1998 Act. But she declined to make a decision expressing that conclusion or to announce that decision. The reason why she, as she would have it, deferred making a decision is explained in a letter she wrote to the Secretary of State for Foreign and Commonwealth Affairs on 5 January 2009. It is necessary to recall the terms in which she wrote:-
  9. "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.

  10. The Foreign Secretary replied, by letter dated 2 February 2009, that he would wish the Home Secretary to defer his decision in order to allow for discussion with the United States. On 16 February 2009 the Home Secretary told the Foreign Secretary that:-
  11. "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)
  12. There is a dispute as to the inferences to be drawn from that exchange of correspondence. It is of particular relevance to the arguments relating to s.118 of the Extradition Act 2003. At this stage it is necessary only to observe that the Home Secretary, at least, believed that she was deferring her decision and had not yet made any decision. But she acknowledged that any such decision could only be deferred for a short period. She expected the matter to be resolved urgently.
  13. But it was not. The Secretary of State's recognition that the matter should be resolved urgently was mirrored in supplementary submissions advanced on behalf of Mr Tajik on 20 February 2009. The Secretary of State was urged that she should decide the matter "as one of great urgency". Mr Tajik was described as frail and unbalanced. Everyone was deeply concerned about him. The Secretary of State was told that his mental and physical condition had significantly worsened since the Divisional Court's review of the case in April 2008. She was told that:-
  14. "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.

  15. The Home Office was, as Mr Hepple has now revealed, intent upon approaching the United States through the Foreign and Commonwealth Office asking them to consider whether they wished to maintain their request for Mr Tajik's extradition. They received no response. Mr Hepple has described what was happening:-
  16. "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."
  17. Mr Hepple notes that the only option available to the Secretary of State, absent US withdrawal of the request, was, as a matter of United Kingdom law, to uphold the extant order (paragraph 38). He asserts:-
  18. "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)
  19. He tells the court that for another ten months between October 2010 and August 2011 Mr Tajik's case was raised by the FCO with US officials "on a number of occasions". In the light of this information from the FCO, Mr Hepple says the Secretary of State considered it "appropriate" to wait for the US State Department's final decision before reaching a decision on NT's case. In late September 2011, she was informed that the United States did not intend to withdraw the extant request. She therefore, as she puts it, made her decision, recorded in an 18-page letter dated 7 November 2011 which focussed only on the question of whether Mr Tajik's physical and mental conditions were such that extradition would breach his rights enshrined in the Convention. In that letter she acknowledged what she described as "regrettable delay" but gave no explanation for that delay. She reached the conclusion that Mr Tajik's medical condition was not so serious or acute as to warrant a refusal to extradite. She concluded, after substantial consideration of the medical reports, that she had no lawful option "now but to make arrangements with the US authorities for Mr Tajik's surrender".
  20. Three Sets of Proceedings

  21. This decision, dated 7 November 2011, was met by the launch of three sets of proceedings. They are all before this court. First, Mr Tajik challenges, by way of judicial review, the decision of the Secretary of State announced on 7 November 2011. Second, he seeks to re-open the appeal of Mr Tajik determined by the Divisional Court on 10 April 2008 pursuant to CPR 52.17. Third, on 26 March 2012 he sought his discharge from the extradition proceedings pursuant to s.118(7) of the Extradition Act 2003. This was refused by District Judge Evans on 26 March 2012. He seeks by way of judicial review to challenge that decision of the District Judge. It is convenient to consider that challenge first.
  22. Section 118 of the Extradition Act 2003

  23. It is important to place s.118 within its proper statutory context. In Part 2 cases, once the District Judge has decided that extradition would be compatible with the requested person's Convention rights he must send the case to the Secretary of State for her decision whether the person is to be extradited (s.87(1)(3)). The scope of the Secretary of State's decision is limited. The Secretary of State is required to decide whether she is prohibited from ordering the person's extradition on one or more of the four specific grounds identified in s.93(2). Those grounds are specified (death penalty, speciality, earlier extradition to the UK and earlier transfer to the UK by the ICC). There is no general discretion conferred on the Secretary of State, analogous to sections 12 and 13 of the Extradition Act 1989. If none of the grounds specified in sections 94-96A of the 2003 Act apply, the Secretary of State is required to order the person to be extradited unless the request is withdrawn, there are competing requests, or the person is discharged for reasons of national security under s.208 (s.93(4)). It should be noted that any representations in relation to the grounds under s.93(2) must be made within the limited period of four weeks (see s.93(5)(6)). If the Secretary of State does not make an order within two months then, on the application of the requested person, the District Judge must order his discharge (see s.99). Accordingly, time is limited even during the extradition process.
  24. Section 99 does not apply if, as in this case, the requested person brings an appeal to the High Court under s.118. Section 118 deals with the consequence of the conclusion of the appeal process. It provides:-
  25. "(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."
  26. S.118 makes provision for a summary process by which a person whose extradition has been ordered and upheld following appeal may apply to be discharged in the event that he has not surrendered before the end of a "required period". Similar provision is made in s.117, where there is no appeal, and, under Part 1, where, again, the time for surrender is limited (ten days under s.36).
  27. It is plain from the strict statutory control of the process of implementation that Part 2 of the Act is designed to achieve the speedy surrender of a requested person once he has exhausted the appeal processes. The circumstances in which he will not be surrendered are strictly controlled by statutory provision.
  28. The essential feature which the Secretary of State emphasises is that s.118 is concerned only with implementation after the conclusion of the extradition process. It has, so Mr Keith QC submits on her behalf, no application during the course of the extradition process. He submits that the extradition process had not been completed; Mr Tajik had sought from the Secretary of State an extra-statutory decision as to his medical condition after the close of the statutory procedures and dismissal of his appeal and, accordingly, the extradition process was still continuing. Until the Secretary of State had made a decision, the operation of s.118 had not been triggered and the 28 day period for surrender had not started to run. She did not make a decision until 7 November 2011. It was then and only then that the period of 28 days started. Thereafter, the only reason why Mr Tajik was not surrendered was attributable to this litigation.
  29. Hines v Secretary of State for the Home Department [2010] EWHC Civ 69 (Admin) demonstrates the distinction between the process of extradition and implementation after the conclusion of that process. The applicant sought discharge under section 16 of the 1989 Act. He complained of delay after the conclusion of a period of domestic imprisonment during a period before the Secretary of State had made a decision under section 13(4) of the Extradition Act 1989. The Secretary of State was required by that provision to consider any representations by a requested person before ordering his return under s.13. The court drew a distinction between the case of Hines and cases in which:-
  30. "…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.

  31. The Secretary of State's submission that s.118 had not been triggered starts with the formidable difficulty that the section itself identifies the period from which the 28 days is to run. It states in terms that the 28 days is to start with the day on which the decision of the relevant court on the appeal becomes final (s.118(2)(a)). The relevant court was the High Court (s.118(3)(a)). This decision became final on the day when the High Court refused leave to appeal, there being no application to the Supreme Court for leave to appeal (s.118(4)(b)). The section does not contemplate any extra-statutory decision necessary to fulfil the Secretary of State's obligations under s.6 of the Human Rights Act 1998. It operates on the basis that the extradition process ends and the "relevant period" starts at the time it identifies.
  32. In that respect there is a striking contrast with its predecessor, the Extradition Act 1989. The contrast is between s.118 and its predecessor in s.16 of the 1989 Act. This provided that if a person committed under s.9 was still in the United Kingdom after the expiration of "the relevant period" he could apply to the High Court for discharge and the court was required to order his discharge "unless sufficient cause" was shown (s.16(5)). The relevant period was identified in s.16(2) but it was subject to an important qualification:-
  33. "(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)
  34. The Secretary of State now submits that there is to be read into s.118 words which have the same effect as the words which I have emphasised, "unless he has instituted proceedings for judicial review". Just as the operation of s.16 did not start pending the determination of proceedings for judicial review, so, it is now submitted, the operation of s.118 does not start whilst the Secretary of State is exercising her extra-statutory function in fulfilment of her obligation under s.6 of the 1998 Act.
  35. I am unable to accept that submission. There is no warrant in the wording or in the statutory scheme of the Act for reading into s.118 words which would delay its operation. It is true that the 2003 Act did not contemplate any further decision on the part of the Secretary of State once the statutory process was concluded. That itself provides no reason for reading words into the statute. On the contrary, the statute carefully controls the procedures and identifies the circumstances in which a person is or is not to be extradited. Gone are the days when the Secretary of State had a wide discretion as to whether to order extradition or not. The statutory scheme underlies the removal of any such general discretion. Moreover, it is astute to set time limits at every stage, both during the process and after it is concluded. In my judgement, time started to run when the statute says it started to run, namely, on 14 May 2008 when the High Court refused to certify a point of general public importance.
  36. There was much controversy as to whether the Secretary of State had, in fact, reached her decision back on 9 January 2009, at the time she wrote to the FCO indicating that she was in a position to reach a decision but was seeking advice as to whether she should defer it. That was the time she had arrived at what Mr Hepple describes as a provisional conclusion. Mr Jones QC, on behalf of Mr Tajik, says that the reality was that she did reach a decision on that day and was merely postponing its implementation. Mr Keith QC counters that she deliberately deferred making a decision for the very reason that were she to do so, she would trigger the operation of s.118.
  37. For the reasons I have given, I do not think it necessary to resolve that dispute. Whether or not she made a decision on 9 January 2009, does not affect the date when s.118 starts to operate and the 28 days start to run. There is, as I have sought to emphasise, nothing in s.118 which delays its operation pending the Secretary of State's extra-statutory consideration of the medical evidence after the conclusion of the statutory extradition process.
  38. That is, however, by no means the end of the matter. It does not mean that there is no room for extra-statutory consideration by the Secretary of State. But it does mean that such extra-statutory consideration is subject to the court's judgment as to whether reasonable cause has been shown for delay following the conclusion of the appeal process (or following the Secretary of State's order, if there is no appeal (s.117)).
  39. This case illustrates the way the courts monitor delay. Mr Tajik applied to the appropriate judge, District Judge Evans (see s.139). That judge was bound to order his discharge "unless reasonable cause is shown for the delay" (s.118(7)).
  40. The principles to be applied are apparent from earlier decisions relating to the predecessors of s.118, even though its earliest ancestor, s.7 of the Fugitive Offenders Act 1881, and its successors, referred to sufficient cause and not reasonable cause. In Re Oskar (unreported) CO/190/88 this court acknowledged that the burden was on the Secretary of State to show that there was sufficient cause and that the court must take into account reasonableness in all the circumstances (see page 3). Other cases demonstrate the type of justification which the courts have accepted as good reason for delay. In Re Shuter [1961] QB 142 the authorities delayed for a day or two following the cancellation of a flight. The reason for the delay was the difficulty of obtaining the services of an officer of the Kenyan police without curtailing the leave they apparently deserved (page 146). In R v Governor of Brixton Prison ex-parte Enahoro [1963] 1 WLR 1260 the Home Secretary was about to order the applicant's return when it became clear that Parliament wished to debate his decision. Whilst not bound by Parliament, the decision being for him, the Home Secretary wished to wait so that he could consider views of Parliament and representations from the supporters of the fugitive and his advisers. The delay could be seen therefore to be designed to assist the requested person (page 466 and the summary given by Edmund Davies J at 468). Maurice Kay LJ in Hinds thought that this was a case of pre-decision activity, like Hinds itself [12].
  41. Accordingly, this court is required to look at all the circumstances in order to decide whether there was reasonable cause for the delay in surrendering this claimant to the United States.
  42. Once Mr Tajik had sought to invoke the extra-statutory decision of the Home Secretary on the grounds of his medical condition, after the decision of the Divisional Court, on 10 April 2008, it is plain that during the period reasonably necessary for consideration of that medical evidence there was reasonable cause for the delay. It was powerfully in Mr Tajik's interest for the Secretary of State to consider the material. Some criticism was advanced for the delay after 10 October 2008 up to 5 January 2009. But it seems to me that the Home Secretary was sufficiently engaged, during that period, in considering the medical condition of Mr Tajik as to justify the delay in surrender.
  43. But by 5 January 2009 it is apparent from her letter to the Secretary of State for the FCO that she was in a position to reach her decision as to Mr Tajik's health. Thereafter, the reason for the delay was no longer attributable to the need to consider his representations as to his medical condition but rather the decision to ask the United States whether it was willing to withdraw its extradition request. That was a process which was expected to take a short period.
  44. The decision to ask the United States to withdraw its extradition request was in Mr Tajik's interest. It seems clear that had that decision not been reached, the only alternative was that Mr Tajik would be surrendered and sent to the United States for trial. But the fact that such a request to the United States might have a beneficial consequence for Mr Tajik is not dispositive of the question of reasonable cause. The decision to make that request to the United States was not made for Mr Tajik's benefit. The decision was made for reasons of state, in the public interest, as both the Home Secretary and the Foreign Secretary perceived it to be. The court must also consider all the reasons given for the full period of delay, taking into account the possibility of an outcome beneficial to Mr Tajik.
  45. Mr Tajik seeks to impugn the motives of the Home Secretary and the Foreign Office, partly by reference to documents revealed by the "WikiLeaks" disclosures. I do not think it necessary to consider those disclosures. The reasons why the United Kingdom asked the United States to withdraw its request are sufficiently clear from the statement of Mr Hepple. The case was sensitive. Mr Tajik is a former senior Iranian diplomat whose postings included a period as Iranian Ambassador to Jordan. His case is described, by Mr Hepple, as a "prominent feature of the UK's bilateral relationship with Iran since his arrest in October 2006 and has the potential to cause significant disruption to that relationship".
  46. Mr Hepple explains that the United Kingdom sought to impress upon Iranian officials the judicial nature of the extradition process and the limited grounds upon which the United Kingdom Government could decline to accede to a request for extradition (see paragraphs 16 and 17). The United Kingdom was concerned as to the security of the British Embassy in Tehran and the safety of the staff who worked there in the light of fears as to the reaction in Tehran should Mr Tajik be extradited to the United States.
  47. Mr Keith QC pointed out that Mr Tajik could have applied under s.118, or to judicially review the Secretary of State in respect of her delay in an attempt to obtain a mandatory order to make a decision, particularly in the light of his anxiety and the effect on his health. But he was unlikely to take proceedings whilst he still believed that the Secretary of State was considering his medical condition. Mr Tajik was unaware of the reason for the delay. For all he knew, the Secretary of State was considering his representations.
  48. The Home Secretary had expected there to be only a short delay and had acknowledged that there was urgency (see her letter dated 16 February 2009). But the delay of months became a delay of years. The reason is explained by Mr Hepple:-
  49. "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)
  50. Thereafter, until August 2011, the FCO continued to raise Mr Tajik's case with US officials on a number of occasions. It was only in late September 2011 that the Secretary of State was informed that the United States did not intend to withdraw the extant request for Mr Tajik's extradition (see Hepple paragraphs 38-41).
  51. No explanation has ever been given for the United States' failure to answer repeated requests. It is true that Mr Hepple's does not in terms say that the FCO passed on repeated requests from the Home Office to the United States. But it is a reasonable inference to draw that the FCO did so. If it did not then the court should have been told so. But the position is that there is no explanation before this court as to why the United States, the requesting state, never answered the enquiry from the United Kingdom until over two years had elapsed.
  52. Mr Tajik's legal advisers were not content with reliance upon the silence of the United States. They sought information in relation to its position following a Court Order that relevant material be withheld on the United Kingdom's application for public interest immunity (Laws LJ and Silber J on 3 October 2012). The Treasury Solicitor, in resisting that request, reminded them that Laws LJ had observed that the absence of any further explanation arguably assisted their case (letter 29 October 2012). So it does.
  53. The United States is represented, as is usual, by the Crown Prosecution Service. The skeleton argument on its behalf supports the arguments of the Home Secretary. They were supported orally, but no addition was made to them by counsel for the CPS. The skeleton argument reads:-
  54. "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…"
  55. This approach was adopted in oral argument despite Mr Tajik's reliance upon the absence of any evidence to account for what is described as the United States Government's repeated failure to respond to the United Kingdom's request. This court cannot and should not speculate why the United States took so long to respond. It might be thought that it did not insist on extradition in recognition of the United Kingdom's fears as to disruption of the United Kingdom's bilateral relationship with Iran. But that is not what the court has been told. Nor does it make any sense. The United Kingdom acknowledged that the decision, one way or the other, as to whether the request should be withdrawn or not had to be reached in a short period and was urgent. It was never suggested that the public interest could or should lead to a period before surrender of anything like the delay of over two and a half years which in fact occurred. On the contrary, the reason for that delay is attributed by Mr Hepple to the failure of the United States to respond to the requests. The United States has never sought to rebut that attribution.
  56. Thus, the inference is inescapable that the United States did not wish to make a decision during the period between 2009 until August 2011 but chose to commit itself at a time it regarded as convenient. I take the view that the United Kingdom's request to the FCO to ask the United States to withdraw its request was justified and was reasonable cause for some further delay following 5 January 2009. But thereafter, no explanation, other than the United States' failure to respond, has been offered to the court.
  57. The statutory scheme for extradition under Part 2 of the 2003 Act is designed to set out the circumstances in which the United Kingdom may or may not extradite to a Part 2 country. One thing is clear. It is not open, either to the United Kingdom, or to the requesting Part 2 country, to extradite at a time of their own choosing without offering, for the judgment of the court, its justification for the delay in surrender. Extradition must take place according to the terms of the statute. If it does not and either the requesting state or the United Kingdom seek to delay surrender then they must justify that delay to the court. This the United Kingdom has done.
  58. But the United States has chosen not to do so. It has advanced no justification for choosing to reply to the United Kingdom's request in August 2011 and not much earlier, in 2009 or 2010. The only inference the court can draw is that it has arrogated to itself the time for choosing when Mr Tajik should be extradited and face trial without advancing any justification for its decision. This is a stance which the provisions of the 2003 Act do not permit.
  59. I bear in mind that during the period when the United States Government failed to reply to the United Kingdom's request Mr Tajik was able to remain in the United Kingdom, in the belief that the Secretary of State was still not in the position to reach a conclusion as to his medical condition. Even if he had been told that the United Kingdom was attempting to persuade the United States to withdraw its request, it is difficult to see why he would have protested. Thus while the possibility remained that the United States might withdraw its request, any delay was to his advantage. If he could bear the strain no further, he could have applied to the court either for a mandatory order or under s.118.
  60. But to my mind the determinative factor is the structure of the statute. It does not seem to me open to the court to refuse to discharge Mr Tajik on the basis of reasonable cause without any explanation from the requesting state as to why it chose not to act sooner. It does not seem to me consistent with the structure of the 2003 Act to find reasonable cause when the requesting state has puts forward no explanation for not seeking a speedy surrender but on the contrary, without explanation, the state has sought surrender at a time of its own choosing and convenience. To allow that approach seems to me to undermine the statutory structure of Part 2 of the 2003 Act.
  61. It is apparent from his written ruling dated 26 March 2012 that the District Judge believed that once Mr Tajik had requested the Secretary of State to consider further representations on the basis of the medical evidence he submitted he had obtained "what he wanted that is a stay of his removal pending such further review and consideration by the Secretary of State" (paragraph 7). District Judge Evans took the view that it "would be wholly inappropriate" for him to read the medical and other evidence (including the WikiLeaks material) to reach a view as to whether the Secretary of State was justified in taking so long in reaching her decision (paragraph 10).
  62. He concluded that section 118 had no application and that there could be "but one answer" to the question of reasonable cause because it would have been unreasonable, if not outrageous, for the Secretary of State to have removed the applicant before completing her review (paragraph 11).
  63. It is not clear to me how much the District Judge had been told about the reasons for delay. He seems to have been left with the impression that the only explanation was the time taken to complete a review of the medical evidence. I need not resolve the issue as to how much the District Judge had been told. I respectfully disagree with him as to his conclusion in relation to the application of s.118 and his conclusion as to reasonable cause, now that this court has been furnished with all that the requesting and requested states wish to offer for consideration of the justification for the delay.
  64. For those reasons, I conclude that no reasonable cause has been shown for the delay and accordingly I would quash the decision of the District Judge and make a mandatory order requiring him to order Mr Tajik's discharge.
  65. Application to Re-open the Statutory Appeal

  66. Mr Tajik seeks to re-open the decision of this court dated 10 April 2008, his statutory appeal. He does so for the purpose of arguing that in the light of the circumstances which have changed since that date, the court should now rule in his favour either on the basis that it would be unjust or oppressive to extradite him by reason of the passage of time, since he is alleged to have committed the extradition offence (s.82 of the 2003 Act), or that his physical or mental condition is such that it would be unjust or oppressive to extradite him (s.91 of the 2003 Act).
  67. The CPR 52.17 provides:-
  68. "(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."
  69. In the light of my construction of s.118 it cannot be said that it is necessary to re-open the final determination in order to avoid real injustice. The application of s.118 provides the appropriate means of avoiding real injustice. As I have said, consideration of s.118(7) requires consideration of all the circumstances of the case. Those circumstances will include a consideration of the justice or injustice of extradition in the light of the circumstances which have led to the delay. For that reason, it is difficult to envisage any case where reasonable cause is shown in a case where real injustice or oppression would be caused by surrender following delay. Proper consideration of s. 118(7) should include considerations of oppression or injustice due to delay. Accordingly, there is no room, still less any necessity, for further consideration of those questions.
  70. In Taylor v Governor of HMP Wandsworth [2009] EWHC 1020 (Admin) Richards LJ, following Keene LJ in Ignaoua v Judicial Authority of the Courts of Milan [2008] EWHC 2619 (Admin) accepted the jurisdiction to re-open a final determination of an extradition appeal in relation to Part 2 of the 2003 Act (Ignaoua concerned Part 1). Richard LJ was unable to envisage a situation where a change of circumstances since the date of dismissal of the statutory appeal would justify recourse to the jurisdiction to re-open a final determination. He said it would require a case of a "highly exceptional character" to meet the conditions of the rule. In Taylor, just as in Ignaoua, the appropriate procedure was to make representations to the Secretary of State, whose decision was amenable to judicial review [57]. In both Ignaoua and in Taylor the Secretary of State's consideration in exercise of his obligation under s.6 of the Human Rights Act 1998 provided an effective long-stop protection of Convention rights [33].
  71. Adopting the approach of Richards LJ in Taylor, if the only issue was the physical and mental condition of the applicant after the substantial delay since 19 April 2008, the consideration of the Secretary of State, culminating in her decision on 11 November 2011, affords this claimant an effective remedy. There is no need to rely upon a re-opened statutory appeal relying on s.91. If there were no other relevant consideration arising out of that passage of time, then it would not be possible for Mr Tajik successfully to invoke the jurisdiction under CPR 52.17. That depends on being able to demonstrate that there is no alternative effective remedy (Taylor [34]).
  72. Mr Tajik's Bodily and Mental Condition

  73. There is no justification for re-opening the appeal under s.91 since all issues as to Mr Tajik's bodily and mental condition can be considered under the judicial review of the Secretary of State's decision of 7 November 2011. It was accepted by the Secretary of State that this court should consider the physical and mental condition of Mr Tajik in the light of the most up-do-date reports of Professor Hall dated 25 July 2012 and Dr Wilkins dated 12 September 2012. If the Secretary of State's decision cannot be successfully impugned, there is no basis for re-opening the appeal under s.91 on the application of the principles identified by Richards LJ in Taylor (q.v. Supra).
  74. In the light of my conclusion in relation to s.118, my views are obiter. But I should state that there is a full legal analysis and assessment of the evidence set out in the lengthy decision letter of 17 November 2011. This describes in fair and full terms the medical evidence on which Mr Tajik relied. Without setting out that evidence in full it is worth commenting that the trigger for the Secretary of State's extra-statutory consideration following Mr Tajik's admission to hospital on 27 May 2008 was described by Dr Cave (report dated 29 May 2008) as a prolonged episode of chest pain primarily induced by stress. It did not represent a major deterioration in Mr Tajik's cardiac condition. In July 2008 Professor Hall, a consultant cardiologist, could not say that Mr Tajik was at "very high acute risk" of what he described as "an event should he be put under major stress" (report dated 24 July 2008).
  75. He continued to suffer from severe depressive illness with significant symptoms of anxiety (report from Dr Wilkins dated 19 and 29 June 2008). He was described as actively suicidal.
  76. But the Secretary of State was entitled to bear in mind the confirmation of the United States Department of Justice on 7 April 2011 that, if convicted, the Federal Bureau of Prisons would provide comprehensive medical treatment, care and supervision for depressed and suicidal prisoners.
  77. The up-to-date position shows that Mr Tajik continues to suffer from chest pains due to his advancing coronary heart disease. His angina continues to worsen. Professor Hall concludes:-
  78. "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."
  79. The latest report from Dr Wilkins, the psychiatrist, dated 13 September 2012, shows continuing severe depressive symptoms, described as a severe depressive episode. But he is not at present receiving "active treatment". There is no evidence of cognitive impairment. Dr Wilkins' view is that, despite his religious beliefs, Mr Tajik does contemplate suicide but has made no obvious plans and does not appear to have an intention to kill himself.
  80. In the light of my conclusion it is unnecessary to set out in detail the jurisprudence which identifies the test as to whether the lawful process of extradition might violate the requested person's rights enshrined in Article 2 and Article 3 in a foreign state. Only in those cases where the requested person is critically ill and appears close to death is there any likelihood of successful reliance upon Articles 2 and 3. It is for that reason that only very exceptional circumstances will justify reliance upon the Convention (see, e.g., D v United Kingdom [1997] 24 EHRR 423, Bensaid v United Kingdom [2001] 33 EHRR and R (McKinnon) v SSHD [2009] EWHC 2021 (Admin) 89). In my view, the medical evidence does not reveal a physical or mental condition so severe as to disclose risk of an infringement of either Article 2 or Article 3 rights. Had it been necessary, therefore, to have considered the judicial review of the Secretary of State's decision I would have granted permission but refused the claim.
  81. Oppression under s.82

  82. But if I am wrong in my construction of s.118, there is an issue which cannot be embraced within the scope of the Secretary of State's consideration of the mental and physical condition of Mr Tajik. That is the question whether, by reason of the passage of time, since 10 April 2008 it would be unjust or oppressive to extradite him, even though the effect on his physical or mental health falls short of establishing that necessary to satisfy s.91 or a breach of Convention rights.
  83. If s.118 had no application, then the issue of whether it would be unjust or oppressive to extradite Mr Tajik by reason of the passage of time could only be litigated by re-opening the statutory appeal and considering the ground of appeal under s.82 in the light of the delay.
  84. I should emphasise that my views as to the possibility of re-opening the appeal are, necessarily, obiter. But it does seem to me legitimate to distinguish between the Secretary of State's consideration under s.6 of the 1998 Act and the oppression to which s.82 refers. It is, as the very distinction between s.82 and s.91 acknowledges, possible to conceive of a case where a claimant fails to establish that it would not be unjust or oppressive to extradite a requested person by reason of his physical or mental condition but nevertheless unjust or oppressive to do so by reason of the passage of time. It may, therefore, be possible to invoke the jurisdiction under CPR 52.17 as being the only method by which that issue can be litigated.
  85. Since I have already reached a conclusion on my construction of s.118 I shall deal only briefly with the question of whether, if it was necessary and justifiable to re-open the statutory appeal, Mr Tajik has demonstrated oppression.
  86. Mr Jones QC, on behalf of Mr Tajik, relied upon The Crown v The Governor of Pentonville ex-parte Narang [1978] AC 247 for two principles. First, that the court should approach the question of oppression by a faithful application of the words of the statute and without consideration of whether the case was exceptional or extremely rare (see Lord Morris at 279C and Lord Keith at 294D citing Viscount Radcliffe in Zachariah v Republic of Cyprus [1963] AC 634 at 688). But that is of little impact where Mr Tajik is attempting to re-open an appeal and must show, by virtue of the CPR, that the case is exceptional.
  87. Second, the question as to whether the requesting government is to blame for the passage of time bears upon the issue of oppression (see Lord Edmund Davies at 285A, Lord Fraser at 290C and Lord Keith at 295A). Both Lord Keith and Lord Edmund Davies adopted the proposition that it is relevant to consider the responsibility of the requesting government for any delay in Kakis v Cyprus [1978] 1 WLR 779 at 785 and 786.
  88. However, there is an important contrast between s.118 and s.82. Section 82, like s.91, requires focus upon the impact of the passage of time on the requested person. The court is required to express a view on the injustice or oppression to that particular claimant.
  89. Whilst that is a relevant consideration, because it is part of all the circumstances in s.118(7), the impact of the delay on the requested person is not dispositive. For that reason, the view I have reached that there was no reasonable cause for the delay does not inevitably lead to the conclusion that it would be oppressive to extradite Mr Tajik.
  90. In my view, had the question arisen, it would not have been oppressive to extradite him. If one excludes his physical and mental condition, he was a requested person who had had to wait a long time in the false belief that the Secretary of State was still considering his physical and mental condition. Although that undoubtedly caused him great strain and anxiety, and the quality of his life and that of his family have been severely afflicted, at least he still had a hope that he would not be extradited. He can have been under no illusion that there was a serious likelihood that he would be surrendered. He was not, therefore, suffering under any false hope or false sense of security.
  91. The major cause of oppression by reason of the passage of time will occur in those cases where a claimant has a sense of security induced by the unjustifiable delay of a requesting state. I am by no means saying that is the only case where oppression can be shown but it is the paradigm.
  92. I accept that that the responsibility of the requesting state is relevant. In Gomez v Government of The Republic of Trinidad and Tobago and Goodyer v Government of the Republic of Trinidad and Tobago [2009] 1 WLR 1038, Lord Brown took the view that the fault of the requesting state in causing delay in bringing a requested person to justice was not relevant in cases where a requested person has deliberately flown the jurisdiction [26]. As Lord Brown makes clear, that is distinct from cases where delay has not been brought about by the acts of the accused himself. In such cases, he acknowledged that in borderline cases where the accused himself is not to blame, culpable delay by the requesting state can tip the balance [27].
  93. But, as Lord Diplock recognised in the passage endorsed by the committee in Gomez and described as "Diplock paragraph 2", the essential statutory question is not so much concern with the cause of the delay as its effect (see the citation in Gomez of the well-known passage at pages 782-783 in Kakis v Government of the Republic of Cyprus [1978] 1 WLR 779).
  94. Had it been necessary to decide the question I would have taken the view that it would not be oppressive to extradite Mr Tajik. The passage of time cannot of itself have increased or diminished his sense of security. He knew, on the basis of the facts as he understood them to be, that unless the Secretary of State was persuaded by the medical reports he would be sent to the United States for trial. He cannot have been under any other illusion, by reason of the passage of time. In those circumstances, I would have concluded that it would not be oppressive to extradite him.
  95. I should mention that Mr Tajik has also sought to re-open his appeal on s.81 on the basis of extraneous considerations. This appears to depend upon the report of Mr Tsigaris as to the likely approach of the United States of America should he be returned and convicted and on material disclosed in the WikiLeaks document. The matter was not pursued orally but not abandoned. In the light of the view I have reached in this case, I do not think it appropriate to give any separate consideration to this ground. The submissions depended upon a report of Mr Tsigaris which was before the previous court. In those circumstances, there is no basis whatever for re-opening the appeal under s.81.
  96. The Final Say

  97. These obiter conclusions in relation to re-opening the statutory appeal, and in relation to the judicial review of the Secretary of State's decision, serve to throw in sharp relief the particular basis for my conclusion that Mr Tajik should be discharged. Mr Tajik has escaped extradition despite my view that it would not have been oppressive to extradite him. But that is the consequence of section 118(7) which requires the court to consider whether reasonable cause for the delay has been shown, not whether the delay has caused oppression or injustice. Of course, the impact of the delay on Mr Tajik was relevant to the issue whether the cause was reasonable: the heavier the impact, the more difficult it may be to show that the delay was reasonable. But the focus of section 118(7) is on the cause of the delay, not its impact.
  98. I emphasise that at the heart of the statutory scheme for extradition under Part 2 lies a system of legal controls as to the circumstances in which a requested person must be extradited and as to the circumstances in which he must be discharged. My conclusion follows from a statutory scheme which requires justification in the form of "reasonable cause" if surrender has not taken place within the statutory time limits. By insisting upon reasonable cause being shown for delay, s.118(7) allows a court to have the final say as to whether the delay is justified or not. By that means, the essential purpose of extradition is vindicated. That purpose is to ensure that those accused of crimes in Part 2 countries face trial, provided that the court is satisfied that the statutory conditions have been fulfilled and that extradition has not been delayed unless reasonable cause is shown. Absent such control, as I have attempted to underline, it would be open to either the requested or the requesting state to delay, without justification. That seems to me to be the antithesis of the statutory scheme. It is for that reason that I would grant judicial review of the District Judge's decision and order that the District Judge should discharge Mr Tajik pursuant to s.118(7).
  99. Mr Justice Sweeney:

  100. I agree.


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