Hashmi v Government of the United States of America

The appellant (Syed Hashmi) appeals against the decision of District Judge Nicholas Evans sitting in the City of Westminster Magistrates Court on 5 October 2006 sending his case to the Secretary of State for his decision whether to extradite him to the United States of America. The Secretary of State ordered the appellant’s extradition and so informed him by letter under s 100 of the Extradition Act 2003 (“the Act”). The present appeal is against the district judge’s decision under s 103 of the Act.

The case is governed by the provisions of Part 2 of the Act, the Extradition Act 2003 (Commencement and Savings) Order 2003 (SI 2003 No 3103), the Extradition Act 2003 (Designation of Part 2 Territories) Order 2003 (SI 2003 No 3334) and the Extradition Act (Multiple Offences) Order 2003 (SI 2003 3150) (“The Multiple Offences Order”). The USA is a designated Part 2 territory pursuant to s 69 of the Act.

The appellant is accused before the District Court for the Southern District of New York of allegations of terrorism committed within the United Kingdom. He was born in Pakistan and moved to the United States at a young age. He is a naturalised United States citizen. He was resident in New York until December 2003. Whilst there he was a member of a United Kingdom based extremist pro-Islamic organisation called Al-Muhajiroun (“ALM”). ALM was designated a ‘foreign terrorist organisation’ in the United States. Its goal was the overthrow of Western society. Although it no longer exists as such, there are several derivative groups that adhere to its ideology. In 2000 the appellant recruited Mohammed Junaid Babar to ALM. He is referred to by the US authorities as “the co-operating witness.”

In December 2003 the appellant moved to London. The allegations in the US indictment date from January 2004. They are that in early 2004 Babar was engaged in supplying material support to Hadi al-Iraqi (“Hadi”). Hadi is said to be the third highest member of Al Qaeda, and leader of its military activities in Afghanistan. The nature of the material was boots, sleeping bags, ponchos, clothing, cleaning supplies, solar panels to charge batteries and money. Babar has pleaded guilty in the US to terrorism offences and has entered into a co-operation agreement with the FBI. The appellant is alleged to have spoken to Babar about martyrdom and made it clear that he followed the Sufi teachings. He believed there was no distinction between military and civil targets.

During January 2004 Babar stayed with the appellant at his apartment in London. Babar told the appellant he had provided “money and gear” to Hadi and that he intended to provide more.

In the appellant’s presence Babar and a man called Ali discussed (i) Ali’s plans to travel to Afghanistan to fight with Hadi, (ii) Ali’s plan to provide Babar with additional materials for Jihad and (iii) Babar’s intention to forward those materials to Hadi in Afghanistan.

Babar then obtained a second batch of materials (including ponchos, waterproof socks, and raincoats) from Ali.

The allegation against the appellant is that in or about February 2004 he:

“(i)

knowingly permitted Babar to store that second batch of materials in his London apartment and,

(ii)

knowingly permitted Babar to use his mobile telephone in London to contact Ali and other Al Qaeda supporters (including Omar Khyam) who had conspired with Babar to bomb targets in the United Kingdom.”

In February 2004 Babar took the second batch of materials to Hadi in Afghanistan. After Babar’s departure the appellant made calls with his mobile telephone to contact Ali and Khyam. E-mail messages confirm that Babar communicated with the appellant before and after his trips to Afghanistan but it is not said what the communication was about.

On 14 March 2005 Babar signed a lengthy witness statement in the United Kingdom prosecution of R v Khyam and others (“the Fertiliser Bomb Prosecution”) arising out of operation Crevice. In March and April 2006 Babar gave evidence for the Crown at the Central Criminal court in that case.

On 24 May 2006 an indictment was returned against the appellant by the grand jury of the District Court for the Southern District of New York alleging:

“Count 1: Conspiracy to provide material support or resources to a foreign terrorist organisation.

Count 2: Providing, and attempting to provide, material support or resources to a foreign terrorist organisation.

Count 3: Conspiracy to make or receive a contribution of funds, goods or services to, and for the benefit of, Al Qaeda.

Count 4: Making or receiving a contribution of funds, goods or services to, and for the benefit of, Al Qaeda.”

On the same date an arrest warrant was issued out of the District Court for the Southern District of New York by Magistrate Judge Freeman and on 6 June 2006 the appellant was arrested in the United Kingdom pursuant to a provisional arrest warrant under s 73 of the Act.

There were four issues before the District Judge as there have been grounds of appeal before us. The first ground is that the contents of the request do not satisfy s 78(2)(d) of the Act. The material parts of s 78 of the Act, as modified by the Multiple Offences Order, provide that:

“(2)

The judge must decide whether the documents sent to him by the Secretary of State consist of (or include) in relation to each offence

…..

(d)

in the case of a person accused of an offence, a warrant for his arrest issued in the category 2 territory.

(3)

If the judge decides the question in subsection (2) in the negative he must order the person’s discharge in relation to the relevant offence only.”

It will be appreciated that the four offences were in two pairs; one of each pair alleged the conspiracy and the other the substantive offence. Mr Summers, who has appeared on behalf of the appellant, draws the court’s attention to the arrest warrant which, in the section headed “description of charges” refers to each of the conspiracies but does not refer to the substantive offences. Accordingly, he submits, there is no arrest warrant in respect of the substantive offences and s 78(3) therefore required the district judge to discharge the appellant in respect of those offences.

The district judge ruled that the warrant related to the conduct alleged. The warrant alleging conspiracy was, he concluded, sufficient because the substantive offence falls within the ambit of the conspiracy although they are separate and distinct offences. He accepted the respondent’s argument that if the court was minded to rule that the warrant was deficient as regards the substantive charges it would not avail the appellant because there would be no breach of speciality if those charges were included in the indictment he subsequently faced.

It is to be observed that the indictment was returned by the grand jury on 24 May 2006, the same day as the warrant was issued. The indictment contained four charges and the warrant stated on its face that it was issued on the basis of the indictment. It is also to be noted that the warrant refers to the offence-creating provisions in the legislation and those provisions do not draw any distinction between the substantive offence and a conspiracy to commit it e.g. 18 USC para 2339B:

“Whosoever knowingly provides material support or resources to a foreign terrorist organisation, or attempts or conspires to do so shall be…..etc.”

In the present case the conspiracy is only demonstrated through the commission of the overt acts.

Mr Summers, who has appeared for the appellant, argues that there must be a valid warrant for each offence and not merely for the conduct that constitutes the offence. So, he argues, if the warrants are inadequate and charges 2 and 4 (the substantive charges) fall, the appellant would be extradited on charges 1 and 3 (the conspiracy charges) only. Mr Perry Q.C., who has appeared for the government of the United States of America, points out that supposing this to be correct (albeit there is no apparent reason why it should be) it would give no benefit to the appellant because s 95(4) of the Act provides that he can be tried without breach of the speciality rule for “an extradition offence disclosed by the same facts as that offence.” Thus, if extradited on the conspiracy offences, he could also be tried for the substantive offences. Mr Summers’ response is that if the claim for extradition on charges 1 and 3 were to fail for other reasons then there could well be a breach of the speciality rule if the appellant were prosecuted for counts 2 and 4 in the U.S.A. However, that is not this case.

Mr Perry referred us to Welsh and Thrasher v The Secretary of State for the Home Departmentand theGovernment of The United States of America [2006] 3 ALL ER 204. In that case the appellant’s extradition was sought by the United States in relation to charges arising out of a complex advanced fee fraud. The appellants were charged on an indictment containing 63 counts. The appellants raised six issues as to form or procedure. None of them was “complex or sound.” The court rejected each of the submissions. The appellants submitted, among other things, that the request did not comply with s 78(2)(d) of the Act. It was submitted that the warrants included in the request were invalid and not warrants for the purposes of s 78 because they did not comply with the Federal Rules of Criminal Procedure which require a warrant to “describe the offence charged in the indictment”. In that case, the warrant under the heading “brief description of the offence” said “conspiracy to commit mail fraud and wire fraud, et al.” The description of the statutory provision said to have been offended against also finished with the words “et al.” It was submitted on behalf of the appellants that the government’s contention that only one offence had to be shown on the warrant was wrong. At paragraph 18 Ouseley J, in a judgment with which Laws LJ agreed, said:

“This is a wholly technical contention because it is not suggested that there is any lack of particularity about the request in general; the indictments and the warrants were served on the appellants at the same time and they can never have been in doubt as to the scope of the words “et al” in this case. The difference between the service of a document with the list of counts attached by a staple, since there is no room for them all on the face of the warrant form, and the service of a warrant together with the indictment is not one to engage a requirement for rigour but rather distaste for meritless technicality. The two can be read together just as readily and be seen as part of each other. The purpose of the inclusion of the offences in the warrant is satisfied by the procedure adopted in this case. Mr Summers rightly did not press these two arguments.”

We were reminded by Mr Summers, as Ouseley J was in Welsh and Thrasher, of the observations of Lord Hope of Craighead in R v Guisto [2004] 1AC 101 at para 41 and Sedley LJ in Bentley v The Government of The United States [2005] EWHC 1078 (Admin) at para 17 to the effect that extradition procedures must be strictly observed and that the need for rigour was far more than merely technical. Like Ouseley J I have no difficulty in accepting these propositions, but they must be taken in context. What needs to be proved cannot be assumed. The need for the court to have sight of the warrant as required by s 78(2)(d) is in order to ensure that there are proceedings on foot abroad that have led to the warrant.

In my judgment the district judge was correct. The warrant in this case satisfies the requirements of s 78(2)(d) of the Act. The present case is very similar to Welsh and Thrasher. The complaint is wholly technical and without substance. Neither in that case nor in the present case does the appellant complain that there is any lack of particularity about the request in general.

S 78(2)(d) as modified by the Multiple Offences Order does not require the inclusion of every offence alleged in an indictment to be included in the warrant. There is no good reason for such a requirement. Further, such a requirement would offer no benefit to the appellant, because, if extradited for the conspiracy allegations only he could still be tried for any extradition offence disclosed by the same facts (see s 95(4)). This would include the substantive offences currently alleged in the indictment.

The appellant’s second ground of appeal is that the respondent has claimed exorbitant jurisdiction. The appellant’s argument is that his conduct with which this case is concerned occurred wholly within the United Kingdom and had nothing to do with America. Essentially what he has said to have done is to have allowed his flat in London to be used by someone to store various items of clothing etc., pending their despatch by that person to Al Qaeda in Afghanistan. The extra-territorial jurisdiction the United States Government seeks to assert is, in the circumstances, exorbitant.

The judge having decided he had the necessary documents under s 78(2) had then to go on to consider whether the offences specified in the request were extradition offences. S 137, so far as material, provides that:

(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…..

(3)

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;

(b)

the conduct is punishable under the law of the category 2 territory with imprisonment or another form of detention for a term of 12 months or a greater punishment (however it is described in that law);

(c)

in corresponding circumstances equivalent conduct would constitute an extra-territorial offence under the law of the relevant part of the United Kingdom punishable with imprisonment or another form of detention for a term of 12 months or a greater punishment.

There is no doubt that the requirements of s 137 were satisfied in this case but, submits Mr Summers, that is not the end of it because the United Kingdom courts possess a residual jurisdiction to refuse an extradition request as amounting to the exercise of an exorbitant jurisdiction. He relies on Boudhiba v Central Examining Court No. 5 of the National Court of Justice, Madrid [2006] 3 ALL ER 574 in which Smith LJ said at para 43:

“Under the 1989 Act, an allegation that the requesting state was seeking to exercise an exorbitant jurisdiction was a matter for the Secretary of State’s discretion when reaching a final decision (see Al-Fawwaz, Re Eiderous [2001] UKHL 69, [2002] 1 ALL ER 545, [2002] 1 AC 556). Now that the Secretary of State no longer has discretion to take such matters into account, questions such as this must be considered by the courts under s 21 of the 2003 Act on the basis that the exercise of such a wide jurisdiction would be incompatible with the appellant’s human rights.”

She continued a little later:

“[44] ……

In this case, I have already said that I am satisfied that the request satisfied the requirements of ss 10 and 64 of the 2003 Act. That in itself goes a long way to demonstrate that the present request does not seek to exercise exorbitant jurisdiction. However, I would accept that it is possible that a request might range so widely and have so tenuous a connection with the requesting state as to amount to the exercise of exorbitant jurisdiction. It might then be appropriate for the court to consider that situation under the rubric of s 21. However, in my view, this case comes nowhere near meeting those criteria. The respondent’s case is that the group of people (of which the appellant was one) accused of this conduct was based in Spain. True, their activities range quite widely into other countries but that is the nature of modern terrorism. If a state could not prosecute an alleged terrorist because some of his activities took place outside the boundaries of that state, the law would be powerless to deal with serious and important crimes. In the present case, I am satisfied that there is a strong connection between the alleged conduct and the state of Spain and that there is nothing exorbitant about the proposed exercise of jurisdiction.”

Boudhiba was a case concerning a category 1 territory and consequently Part 1 of the Act. The present case involves a request by a category 2 territory and consequently Part 2 of the Act. However, I do not see that any difference in principle is involved on this question. The mirror sections dealing with human rights are ss 21 and 87. The only difference between those sections is that if the judge decides the person’s extradition would be human rights compliant under section 21 he orders the extradition himself whereas under s 87 he sends the case to the Secretary of State for his decision.

The concept of exorbitant jurisdiction, as Smith LJ pointed out, goes back to Al-Fawwaz. Al-Fawwaz was a case that involved the Extradition Act 1989. Under the 2003 Act there are express provisions requiring human rights considerations to be taken into account. The concept of exorbitant jurisdiction is one which, so it seems to me, has been largely if not wholly subsumed within human rights considerations. I agree with the submission of Mr Perry that the only place where it is now likely to have any relevance is on an issue of proportionality for the purposes of art 8. Exorbitant jurisdiction is not a separate bar.

As to the facts of the case against the appellant, the wording of the third and fourth charges are worthy of note. They include agreeing with others to provide military gear to Al Qaeda (count 3) and attempting to and providing it (count 4). The material included ponchos and socks. The allegation is that the material was being provided to fight against the United States forces. It is also in my judgment relevant that the appellant is a United States citizen and allegedly recruited Babar while in New York. Further, Babar has been proceeded against in the United States.

Mr Summers argues strongly that the appellant should have been proceeded against in England. There are already proceedings arising out of operation Crevice in this country involving seven other defendants. On any sensible view, so he submits, the appellant should be the eighth defendant; his conduct is linked to the conduct being tried. The main evidence against the appellant is that of Babar who is a witness in the proceedings in this country.

It seems to me, however, that the trial in this country is concerned with very different circumstances from those alleged against the appellant. The case being tried here involves a conspiracy to cause explosions; the targets were public places within the United Kingdom.

Babar’s statement in the United Kingdom proceedings specifically mentions in the concluding paragraph that he does not include all of the information he has provided to the United States law enforcement authorities. He has, as I have said, been proceeded against in America.

The same point was taken unsuccessfully in R (on the application of Bermingham and others) v The Director of the Serious Fraud Office [2006] 3 ALL ER 239. In that case Laws LJ, with whom Ouseley J agreed, said at para 126:

“I would respectfully wish to underline the observations of the Lord Ordinary in Wright v Scottish Ministers [2004] SLT 823, which was decided in the Court of Session after Ullah’s and Razgar’s cases,and took into account their Lordships’ opinions on those cases. The petitioner had claimed that it was not proportionate to extradite him to Estonia to face trial on criminal charges which could have been tried in Scotland. The Lord Ordinary said (at [28]):

‘Extradition does not and should not depend upon the ability or otherwise of the requested state to undertake its own investigations with a view of prosecuting the case within its own jurisdiction. Such an approach would involve unnecessary duplication of effort, would result in additional delays in the prosecution of suspected criminals and would have an adverse effect upon international relations and international co-operation in the prosecution of serious crime. In most, if not all, extradition cases the requested state would depend upon co-operation from the requesting state if the requested state were to embark upon its own investigation and ultimate prosecution of the case.’”

What is critical is whether at any time during the extradition hearing the judge is informed that the person is charged with an offence in the United Kingdom. If he is, the judge must adjourn the extradition proceedings until the charge is disposed of or withdrawn or the proceedings in respect of it are discontinued (see s 88). Otherwise, once there has been a request, the requested state must proceed on the basis that there is to be no domestic prosecution.

In my judgment the only real connection between the appellant and the domestic proceedings is that the witness against him was also a witness in the United Kingdom proceedings.

The district judge said that cases in which one might find exorbitant jurisdiction are likely to be few and far between. He said that in the present case there exist sufficient links to the United States to justify the United State’s prosecution. Part of the conspiracy was, he said, to pursue armed conflict in Afghanistan where the targets would be the US Military. The appellant is in effect alleged to be a quartermaster who has assisted in the supply of military equipment that he knew was to be used for such purposes. In my judgment the jurisdiction claimed is not exorbitant and there is no substance in this ground of appeal.

The appellant’s third ground of appeal alleges that to extradite him would breach his art 8 rights. The judge was required by s 87 of the Act to decide whether the appellant’s extradition would be compatible with his Convention rights. Article 8 of the ECHR provides:

“(1)

Everyone has the right to respect for his private and family life, his home and his correspondence.

(2)

There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

The district judge rejected the appellant’s submission that his extradition would not be compatible with his art 8 rights and he did so on the same basis that he rejected the contention that the jurisdiction claimed was exorbitant.

In Bermingham Laws LJ dealt in some detail with the issue of art 8 in paragraphs 112 – 130 of his judgment. He pointed out that there was no doubt that the proposed extradition would constitute an interference with the defendant’s rights under art 8, but that equally there was no doubt the extradition was ‘in accordance with the law’ and was sought in pursuit of a legitimate aim namely ‘the prevention of…..crime’. The only issue was whether it would be a proportionate interference. The same can be said of the present case.

Laws LJ referred to Launder v UK (1998) 25 EHRR CD 67 in which the applicant claimed that his extradition to Hong Kong would interfere with his family life in violation of art 8 of the Convention and would be disproportionate to the proposed extradition’s legitimate aim. On the issue of proportionality the European Commission of Human Rights said (at 74 (para 3)):

“It is only in exceptional circumstances that the extradition of a person to face trial on charges of serious offences committed in the requesting state would be held to be an unjustified or disproportionate interference with the right to respect for family life.”

Laws LJ then continued:

“[127] In short, in this case no less than in any other, the court must feel the weight of what Lord Bingham called ‘the great desirability of honouring extradition treaties made with other states’. And given the cross-border nature of the accusation here, these observations of Hale LJ as she then was in R (on the application of Warren) v Secretary of State for The Home Department [2003] EWHC 1177 (Admin) at [40] are especially in point:

‘….The object of extradition is to return a person who is properly accused or has been convicted of an extradition crime in a foreign country to face trial or to serve his sentence there….The extradition process is only available for return to friendly foreign states with whom this country has entered into either a multi or a bilateral treaty obligation involving mutually agreed and reciprocal commitments….There is a strong public interest in our respecting such treaty obligations. Such international co-operation is all the more important in modern times, when cross-border problems are becoming ever more common, and the need to provide international solutions for them is ever clearer.’

[128] I consider also that the approach of the European Commission of Human Rights in Launder v UK (1998) 25 EHRR CD 67, requiring exceptional circumstances to demonstrate a want of proportionality in an extradition upon charges of serious offences committed in the requesting state, is fully applicable not withstanding the fact that some Acts going to constitute the fraud took place in the sending state, the United Kingdom.”

It is true that at para 121 Laws LJ said he did not accept the submission that the possibility of trial in the United Kingdom was legally irrelevant. He said there might be an instance in which such a possibility could tip the balance of judgment in favour of a conclusion that the defendant’s extradition would amount to a disproportionate interference with his art 8 rights. That, he said, had to be accepted if s 87 is to constitute effective judicial protection of the Convention guarantees. But, he added, what it would take to make such a case is a very different question.

Essentially Mr Summers’ argument is that this is a truly exceptional case. I do not accept that it is. Whilst at first sight the fact that the conduct alleged against the appellant occurred in this country might suggest it would be convenient for him to be tried here rather than in the United States of America, the reality is that there are strong links with the United States. Mr Summers submits that the case is distinguishable from Launder and indeed Bermingham because the acts constituting the offences took place in this country. But I do not accept there is any difference in principle.

The thrust of the appellant’s art 8 point seems to me to come back to this. He could and should be tried in this country rather than in the United States and that trial in the United Stats will place him at an unacceptably enhanced risk of an increased sentence. I have already covered the question of place of trial, and any disparity of the maximum penalty available to the requesting state is an irrelevant consideration for the purpose of extradition, absent the risk of a sentence of death. In any event there is no evidence what sentence the appellant might receive in the United States.

In my judgment there is nothing in this case that comes remotely near making extradition of this appellant disproportionate in art 8 terms.

The appellant’s fourth and final ground is based on the decision of the Divisional Court in R (Castillo) v Kingdom of Spain and another [2005] 1 WLR 1041. Thomas LJ, in a judgment with Silber J agreed, said at para 43:

“…..given the fact there is no inquiry into evidential sufficiency, it is of the utmost importance that the description of the conduct alleged is framed with the greatest care, it is an essential protection to the person whose extradition is sought. It is to be expected that the description will be framed with very considerable care and expressed in terms in which it can be easily understood by the court in the state to which the request is addressed.”

A little earlier at para 25 Thomas LJ had said:

“….the court is not concerned to assess the quality or sufficiency of the evidence in support of the conduct alleged, but it is concerned, if materials are put before it which call into question the accuracy and fairness of the description to see if the description of the conduct alleged is fair and accurate.”

Mr Summers’ argument runs thus. The case against the appellant is founded on the proposed testimony of Babar whom the FBI and the United States Attorney’s Office for the Southern District of New York claims to be credible. But, he submits, Babar’s statement in the English proceedings do not mention the allegations in the extradition proceedings and there are inconsistencies in Babar’s evidence. Accordingly, so it is said, the description in the request of the conduct that it is alleged constitutes the offences is not a proper, accurate or fair description.

The district judge said he found no reason to doubt the bona fides of the request.

In my judgment this ground of appeal does not get to first base. It is not for the court to weigh the evidence provided by the witness relied on by the respondent. As Laws LJ pointed out in AhmedandAswat v The Government of the United States of America[2006] EWHC 2927 (Admin) at para 74, the starting point is the statement of Kennedy LJ in Serbeh v Governor of H.M. Prison Brixton (31 October 2002, C0/2853/2002) at para 40:

“There is (still) a fundamental assumption that the requesting state is acting in good faith.”

That assumption can, of course, be displaced by evidence.

Mr Perry relies in particular on four points. First there is the sworn evidence of Brendan McGuire, the United States prosecutor. Second the grand jury found cause to issue the indictment. Third, as stated by Mr McGuire in his sworn evidence, Babar’s evidence is corroborated. His contacts and involvement with the appellant are confirmed by e-mail and telephone records. Fourth Babar’s statement in the English proceedings makes plain why it was being provided. He was dealing essentially with the conspiracy to cause explosions. There is nothing in the statement to suggest bad faith either on his part or on the part of the authorities.

In AhmedandAswat at para 95 Laws LJ returned to the sixth amendment of the United States Constitution which vouchsafes a guarantee of fair trial in terms strikingly similar to those of art 6 of the ECHR.

Any inconsistencies in, or difficulties with, Babar’s evidence can be explored at the appellant’s trial. There is nothing in the material before us that in my judgment remotely suggests bad faith on the part of the requesting state. In my view there is nothing in the appellant’s fourth ground of appeal.

I have come to the conclusion that there is no substance in the grounds of appeal either individually or collectively and that this appeal should fail and be dismissed.

Mr Justice David Clarke:

I agree.