Ahsan, R (on the application of) v Government of the United States of America & Anor

Syed Talha Ahsan is the subject of an extradition request by the Government of the United States of America. On 19 March 2007 District Judge Nicholas Evans made an order under s.87(3) of the Extradition Act 2003 (“the 2003 Act”) sending his case to the Secretary of State; and on 14 June 2007 the Secretary of State made an order under s.93(4) of the 2003 Act for his extradition. Ahsan appealed under s.103 of the 2003 Act against both orders. He also brought a claim for judicial review of what was said to be a decision of the Director of Public Prosecutions (“the Director”) not to discuss and consider with the prosecuting authorities in the United States whether he should be tried in the United Kingdom for the crimes in respect of which his extradition is sought.

Nosratollah Tajik is the subject of an unrelated extradition request by the Government of the United States of America. On 19 April 2007 District Judge Tubbs made an order sending his case to the Secretary of State; and on 14 June 2007 the Secretary of State made an order for his extradition. Tajik appealed against both orders.

There is no factual connection between Ahsan’s case and Tajik’s case, but they have certain issues of law in common. For that reason they were listed for hearing together and it is appropriate to deal with them in a single judgment.

Ahsan’s extradition is sought for the purpose of his standing trial for terrorist offences. The indictment against him alleges that between 1997 and 2004 he, together with Babar Ahmad (“Ahmad”) and other persons known and unknown, (i) conspired to provide material support to terrorists, knowing or intending that such support was to be used in furtherance of a conspiracy to kill, kidnap, maim or injure persons or damage property in a foreign country and/or to murder and attempt to murder US nationals abroad; (ii) provided and aided and abetted others to provide material support to terrorists, knowing or intending that such support would be used in furtherance of a conspiracy to kill, kidnap, maim or injure persons or damage property in a foreign country and/or to murder and attempt to murder US nationals abroad; and (iii) conspired to kill, kidnap, maim or injure persons or damage property in a foreign country.

In particular, it is alleged that one of the means used by the co-conspirators to further the alleged criminal acts was an entity known as Azzam Publications, through which they operated a series of pro-jihad websites based in the United States that were specifically designed to incite readers to violent jihad and to provide material support to terrorist related entities including the Taliban, the Chechen Mujahideen and Al Qaeda.

Ahmad was arrested in the United Kingdom on the authority of a provisional warrant, and extradition proceedings were commenced in respect of him, in 2004. A district judge sent the case to the Secretary of State in May 2005, and the Secretary of State ordered Ahmad’s extradition in November 2005. An appeal was dismissed by the Divisional Court in November 2006, in a wide-ranging judgment which, as will appear, is important for many of the issues raised in the cases before us: see Ahmad and Aswat v Government of the United States of America [2006] EWHC 2927 (Admin). An application for leave to appeal to the House of Lords was subsequently refused.

Ahmad then applied to the European Court of Human Rights in Strasbourg, contending that his extradition to the United States would give rise to a breach of his rights under articles 2, 3, 5 and 6 of the European Convention on Human Rights. On 12 June 2007 the Strasbourg court indicated to the Government of the United Kingdom, under rule 39 of the Rules of the Court, that Ahmad should not be extradited until the court had given due consideration to the matter. On 26 June 2007 a statement of facts was served on the parties, followed by a series of questions to the parties concerning possible violations of the Convention. Lengthy written submissions on the admissibility and merits of the application were lodged on behalf of Ahmad and, in October 2007, on behalf of the Government of the United Kingdom. A decision of the Strasbourg court is still awaited.

In the meantime, in searches of various premises associated with Ahsan, items were found which are said to have revealed his association with Ahmad and his support for, and his personal participation in, violent jihad. The process included a search of Ahsan’s home address in London in January 2006, under the authority of a warrant issued under s.16 of the Crime (International Co-operation) Act 2003 and s.8 of the Police and Criminal Evidence Act 1984. In July 2006 Ahsan was arrested in the United Kingdom under a provisional warrant and extradition proceedings were commenced in respect of him.

At a hearing on 20 November 2006 the district judge determined that Ahsan was accused of extradition offences within the meaning of s.137 of the 2003 Act. The case was adjourned for evidence and argument as to whether there were any bars to surrender within the meaning of s.79 or any human rights defence within s.87. The adjourned hearing took place on 19 March 2007. At that time a further adjournment was sought on behalf of Ahsan in order to allow him to bring the judicial review proceedings against the Director of Public Prosecutions which are now before us. Those proceedings relate to the interpretation and application of guidance agreed in January 2006 by Her Majesty’s Attorney General and the Attorney General of the United States of America for handling criminal cases with concurrent jurisdiction between the United Kingdom and the United States. The substantive issues raised in the proceedings are considered separately below. For present purposes it suffices to note that the district judge refused a further adjournment, the hearing proceeded and he made an order sending the case to the Secretary of State.

On 14 June 2007 the Secretary of State ordered Ahsan’s extradition. An appeal to the High Court was lodged and, pursuant to directions given by Collins J, was listed to be heard on 19 February 2008 together with the other matters before us. The issues raised in the appeal were, in summary, (1) whether the district judge was right to hold that Ahsan was accused of extradition offences within the meaning of s.137; (2) whether he was right to send the case to the Secretary of State without assurances of the kind given to the court by the US Government in Ahmad’s case (the assurances in Ahsan’s case having been given after, rather than before, the case was sent to the Secretary of State); (3) whether the assurances subsequently given provided adequate protection of Ahsan’s human rights; and (4) whether the Secretary of State had given proper consideration to Ahsan’s personal circumstances in deciding to order extradition.

Less than two weeks before the hearing of the appeal an application was made for the appeal to be adjourned. I refused that application on the papers but directed that it could be renewed orally at the beginning of the hearing. In renewing the application before us, Mr Alun Jones QC made clear that it was based entirely on the proceedings pending before the Strasbourg court on the application of Ahmad. Mr Jones accepted that on existing domestic authority, especially the judgment of the Divisional Court in Ahmad and Aswat v Government of the United States of America, Ahsan’s appeal to this court must fail. But the proceedings in Strasbourg involved the same issues, and if the Strasbourg court were to rule against the British Government in those proceedings it would provide a basis for arguing on behalf of Ahsan that existing domestic authority should not be followed. If, on the other hand, Ahsan’s appeal had already been dismissed, it would be necessary for him to make a separate application to the Strasbourg court and to seek a stay against the British Government under rule 39 of the Rules of Court. In all the circumstances, submitted Mr Jones, it was appropriate to adjourn the hearing of the appeal until after the Strasbourg court’s decision was known. The delay in applying for the adjournment was explained by the fact that it had been thought until relatively recently that there was a strong possibility that the Strasbourg court’s decision would be available before the hearing of Ahsan’s appeal.

We refused the application for an adjournment, indicating that our reasons would be given in this judgment. Our principal reason for the refusal was that an adjournment would cause undesirable delay without any clear-cut countervailing advantages. The 2003 Act was intended to reduce complexity and delay in extradition procedures. If the appeal were adjourned, it was not possible to say how long it would be necessary to wait until the Strasbourg court issued its decision in the Ahmad case and Ahsan’s appeal could then be relisted before this court; and even if the Strasbourg court found in favour of Ahmad, it would not necessarily make any difference to Ahsan’s appeal, since that would depend on the precise basis of the decision. Moreover, if the Strasbourg court found against Ahmad, and if Ahsan’s appeal to this court were then dismissed, Ahsan might still pursue an application of his own to Strasbourg, seeking to distinguish Ahmad’s case; whereas, if he were in a position to make an early application to Strasbourg, there was a chance of his case being determined alongside that of Ahmad or being determined speedily thereafter. In all the circumstances we took the view that it was better for the appeal to be decided as promptly as possible, thereby exhausting the domestic procedures and leaving Ahsan to pursue an early application to Strasbourg if so advised. This was the course calculated to produce the earliest overall resolution of the issues raised by the extradition request.

Having announced our decision refusing the application to adjourn the appeal, we proceeded formally to dismiss the appeal in the light of Mr Jones’s concessions that it could not succeed on the basis of existing domestic authority and that it was not affected by Ahsan’s separate application for judicial review. Accordingly, I need say nothing further about the substance of Ahsan’s appeal.

Ahsan’s application for judicial review, which is brought with permission granted by Collins J, is directed towards consideration being given to his prosecution in this jurisdiction rather than in the United States. It is said that the Director failed to take into account a relevant consideration, namely the guidance agreed by the Attorneys General of the two countries, in deciding not to take action against Ahsan in this jurisdiction, and that the matter should now be considered in the light of that guidance.

A document entitled “Guidance for handling criminal cases with concurrent jurisdiction between the United Kingdom and the United States of America” was signed on 18 January 2007 by Her Majesty’s Attorney General and the Attorney General of the United States of America (and also, for its application to Scotland, by the Lord Advocate). The purpose of the document is apparent from its opening paragraphs:

“1.

Investigation and prosecution agencies in the United Kingdom and the United States of America are committed to working together to combat crime. It is appreciated that there is a need to enhance the exchange of information in criminal cases involving concurrent jurisdiction. Early contact between prosecutors, after discussing the cases with investigators, is intended to enable them to agree on strategies for the handling of criminal investigations and proceedings in particular cases. Such liaison will help to avoid potential difficulties later in the case. In particular, early contact will be valuable in cases which are already the subject of proceedings in the other jurisdiction.

2.

This document provides guidance for addressing the most serious, sensitive or complex criminal cases where it is apparent to prosecutors that there are issues to be decided that arise from concurrent jurisdiction. In deciding whether contact should be made with the other country regarding such a case, the prosecutor should apply the following test: does it appear that there is a real possibility that a prosecutor in the other country may have an interest in prosecuting the case? Such a case would usually have significant links with the other country.

3.

As a matter of fundamental principle any decision on issues arising from concurrent jurisdiction should be and be seen to be fair and objective. Each case is unique and should be considered on its own facts and merits.

4.

This guidance follows a step-by-step approach to determining issues arising in cases with concurrent jurisdiction. Firstly, there should be early sharing of information between prosecutors in the jurisdictions with an interest in the case. Second, prosecutors should consult on cases and the issues arising from concurrent jurisdiction. Third, where prosecutors in the jurisdictions with an interest in the case have been unable to reach agreement on issues arising from concurrent jurisdiction, the offices of their Attorneys General or Lord Advocate, as appropriate, should take the lead with the aim of resolving those issues.”

The next section deals more fully with the sharing of information. It states, for example, that in the most serious, sensitive or complex cases where issues of concurrent jurisdiction arise, investigators and prosecutors in the two countries “should consult closely together from the outset of investigations, consistent with the procedures established by their agencies” (para 5); and that discussions between prosecutors in the two countries should take place “with the aim of developing a case strategy on issues arising from concurrent jurisdiction” and that the information shared should include “the facts of the case, key evidence, representations on jurisdictional issues, and, as appropriate, any other consideration which will enable the prosecutors to develop a case strategy and resolve issues arising from concurrent jurisdiction” (para 10).

That is followed by a section on consultation, in which it is stated first that the procedure set out in the guidance is intended to preserve and strengthen existing channels of communication between prosecutors in the two countries (para 12). I should quote the next two paragraphs since particular reliance was placed on them in the course of argument:

“13.

This guidance does not create any rights on the part of a third party to object to or otherwise seek review of a decision by UK or US authorities regarding the investigation or prosecution of a case or issues related thereto.

14.

The aim of consultation, having shared the information set out in paragraph 10, will be to enable each country’s prosecutors to decide on the issues arising from concurrent jurisdiction through bilateral discussion, including, but not limited to:

a.

where and how investigations may be most effectively pursued;

b.

where and how prosecutions should be initiated, continued or discontinued; or

c whether and how aspects of the case should be pursued in different jurisdictions.

It is of course for the prosecuting authority, having applied the guidance, to decide that a case should properly be prosecuted in its country, where that is in accordance with the law and the public interest.”

The remainder of the document deals with the role of the offices of the Attorneys General and Lord Advocate and notes finally that they intend to review the implementation of the guidance on an annual basis.

A separate document of the same date, entitled “Attorney General’s domestic guidance for handling criminal cases affecting both England, Wales or Northern Ireland and the United States of America”, gives effect on the domestic plane to the guidance agreed at the international level by the Attorneys General and the Lord Advocate. It was common ground in the argument before us that the substantive content of the two documents is materially the same.

Mr Jones invited the court to view the guidance against the background of the unimplemented s.83A of the 2003 Act, which was inserted by the Police and Justice Act 2006. That section, if implemented, would provide for a person’s extradition to a category 2 territory to be barred by reason of forum if a significant part of the conduct alleged to constitute the extradition offence was conduct in the United Kingdom and, in view of that and all the other circumstances, it would not be in the interests of justice for the person to be tried for the offence in the requesting territory. Mr Jones took the court to various Hansard passages from which it appears that there was some Parliamentary pressure for a provision as to forum to be included in the Bill, but this was resisted as being inconsistent with the extradition treaty between the United Kingdom and the United States; and the matter was resolved pragmatically by including a provision in the Bill on a basis that ensured it would not in practice be brought into force. At the same time, however, Parliament was reassured that an attempt would be made to agree guidance on procedures for consultation between prosecutors in transnational cases where it appeared to a prosecutor in one country that a prosecutor in the other country might have an interest in prosecuting.

Agreement of the guidance followed within a matter of months. In a written Parliamentary statement on 25 January 2007, the Solicitor-General informed members of the agreement and said:

“I believe the guidance will improve communication by facilitating the early sharing of case information and consultation between prosecutors in those jurisdictions. International cooperation in fighting transnational crime is essential. Further, this guidance should assist prosecutors to have the earliest notice of cases that could be of interest to them for possible investigation and prosecution in the UK. The guidance retains the UK prosecutor’s powers to decide that a case should be tried in the UK when this is possible and in accordance with the law and public interest.”

In a letter dated 9 March 2007 Ahsan’s solicitors, Birnberg Peirce & Partners, wrote to Mr Brian Gibbins at the CPS (he was the person named as the relevant liaison lawyer in Annex A to the international guidance) requesting information as to the discussions, if any, which had taken place between prosecuting or investigating agencies in the United Kingdom and authorities in the United States in relation to Ahsan’s case. The letter drew attention to the guidance and submitted that the case was much more suitable for trial in the United Kingdom than the United States and that the circumstances of the case should have been considered under the guidance. It stated that, in the absence of consideration as required to the question of appropriate forum, the district judge would be invited to adjourn the extradition hearing due to take place on 19 March.

A reply dated 14 March 2007 was sent by Anne-Marie Kundert, a Senior Crown Prosecutor in the Special Crime Division of the CPS. Ms Kundert herself handles extradition proceedings, but it is stated in evidence on behalf of the Director that she consulted widely on the response and that her letter expressed the collective view of the CPS. The letter stated:

“The Attorney General’s Guidance for handling criminal cases affecting both England and Wales and the United States dated 18^th January 2007 has no application in Ahsan’s case. The position is that he is being prosecuted in the United States and that the request was received on or about the 15^th September 2006.

The extradition proceedings are underway and currently stand part heard. There is no domestic prosecution. Babar Ahmad’s statutory appeal has failed and the only issues which remain to be determined are those relating to bars to extradition.”

In the event, the district judge declined to adjourn the extradition hearing on 19 March 2007 and, as already indicated, made an order on that day sending the case to the Secretary of State.

The view of the CPS that the guidance had no application to Ahsan’s case was supported by the Attorney General’s Office in a letter of 3 April 2007 to Ahsan’s solicitors, asserting that the guidance came into effect on 18 January 2007 and “does not have retrospective effect”.

Mr Jones submits that, contrary to the position adopted in the letters from the CPS and the Attorney General’s Office, the guidance does apply to Ahsan’s case and that the failure of the Director to consider the case in accordance with the guidance amounts to a failure to take into account a relevant consideration and is unlawful. R v Director of Public Prosecutions, ex parte C [1995] 1 Cr App R 136 shows that judicial review can lie where the Director has failed to act in accordance with his own settled policy (as set out in that case in the Code for Crown Prosecutors). The principle should operate the more strongly in relation to a failure to follow international guidance which introduces a forum test.

There is nothing in the guidance, submits Mr Jones, to restrict its application to cases in which charges are brought or proceedings are commenced or an extradition request is made only after 18 January 2007. It applies as much to existing cases as to future cases. It does not set out new principles but, as shown by para 12 of the international guidance, provides a more formalised procedure for work of co-operation that had already developed in the past. Its application to existing cases is entirely consistent with para 14 of the guidance, which envisages, for example, that circumstances may arise where existing prosecutions may be discontinued so as to be replaced by extradition proceedings. The stage that extradition proceedings have reached, or that proceedings relating to a co-accused have reached, are relevant factors for the Director to take into account in considering an individual case under the guidance, but they do not render the guidance inapplicable.

Mr Jones submits that the effect of the guidance is that if no previous consideration has been given to the prosecution of a person in the United Kingdom, then such consideration should be given on receipt of an extradition request. As the tailpiece to para 14 makes clear, it is for the prosecuting authority in this country, having applied the guidance, to decide whether it is in accordance with the law and the public interest for the case to be prosecuted in this country. If there is a disagreement between the prosecuting authorities in the two countries, para 4 provides a mechanism for its resolution.

The guidance does not list the factors to be considered in deciding whether a prosecution should be brought in this country. But it is said that there are obvious factors relevant to the question of forum. By way of illustration, Eurojust guidelines for deciding in which jurisdiction within the European Union a prosecution should be brought contain a presumption that a prosecution should take place where the majority of the criminality occurred or where the majority of the loss was sustained, and they list factors such as the location of the accused and of witnesses, delay, the interests of victims, evidential issues and sentencing powers. In addition, it is submitted that in reaching a decision the prosecutor is obliged to consider the accused’s rights under article 8 of the European Convention on Human Rights, paying due attention to proportionality and the facts of the individual case.

Mr Jones also relies on the Parliamentary background to the agreement of the guidance in support of the contention that application of the guidance requires consideration to be given to prosecution of a requested person in this country, having regard to the factors relevant to forum.

The case was advanced by Mr Jones primarily by reference to the international guidance and on the basis that the domestic guidance giving effect to it provided no additional legal ground of complaint. Mr Coppel, for the Director, submitted that the exercise of a discretionary power is not generally open to challenge on the ground of failure to give effect to unincorporated treaty obligations (see R (Hurst) v London Northern District Coroner [2007] 2 AC 189, paras 53-58) and that the same principle should operate to defeat Ahsan’s reliance on the international guidance. There is force in that submission, but it does not provide an answer to the claim, since Mr Coppel rightly conceded that the claimant’s case could equally be advanced by reference to the domestic guidance, it being common ground that the substantive content of the two documents is the same. In the circumstances I have thought it sufficient to follow Mr Jones’s submissions in referring to the international guidance, without setting out the equivalent provisions of the domestic guidance or recasting the argument in terms of that guidance.

Mr Coppel put forward two main reasons why the guidance is inapplicable to Ahsan’s case. The first is the temporal reason relied on in the letters from the CPS and the Attorney General’s Office. It is said that the guidance applied only to cases giving rise to concurrent investigations after the date when it came into force and in which early contact between prosecutors would assist in co-ordinating action in deciding forum questions: it did not require the prosecuting authorities of the two countries immediately to reconsider cases which were already well beyond that early stage and to hold discussions regarding them. Mr Coppel referred to various provisions of the guidance in support of the submission. They included para 6 of the domestic guidance, which provides that in circumstances where a prosecutor in England, Wales or Northern Ireland becomes aware of a case raising concurrent jurisdictional issues he should, within 7 days, inform the liaison officer at headquarters. Mr Coppel’s point was that it cannot have been intended that all existing cases be reviewed within 7 days of the date when the guidance came into force.

For my part, whilst I would readily accept that the introduction of the guidance did not require the prosecuting authorities to reconsider existing cases or take any backward step, I am unpersuaded that the guidance applied only to future cases and not to those where extradition procedures had already been commenced. It seems to me that the guidance was intended to build on existing co-operation and to lay down procedures that, so far as relevant, could be applied thereafter to existing cases as well as to future cases. The guidance is not retrospective in the sense of requiring past cases to be re-opened or otherwise affecting what has happened in the past, but it does not apply only to future cases. Thus, the fact that the extradition request in respect of Ahsan was received before the guidance came into force does not of itself render the guidance inapplicable. Nor does the fact that the case of a co-accused has already gone through the system.

Mr Coppel’s second main reason why the guidance is inapplicable – a reason supported by Mr Perry in his submissions on behalf of the US Government – has altogether more weight to it. It is that the guidance only applies where the prosecutor is seized of a case as prosecutor, and that the Director has at no time been seized of Ahsan’s case in that way. The guidance is concerned with cases that are the subject of separate investigations in the United Kingdom and the United States, in relation to which early contact between the authorities of the two countries would be beneficial. The provisions about consultation from the outset of investigations and about the sharing of information are all directed to situations where a case is being developed in each country. They relate to prosecutors who are involved in the handling of such a case. The mere fact of receipt of an extradition request does not engage them.

I agree that the guidance is to be read and understood in that way. It is directed at issues arising out of concurrent investigations. It does not require consideration to be given to the prosecution of a requested person in this country in circumstances where there has been no investigation of his case in this country and the Director has not been seized of the case as prosecutor.

Certain facts relevant to Ahsan’s case were set out in Mr Coppel’s skeleton argument but have subsequently been confirmed in a witness statement by Mr John Davis of the Treasury Solicitor, based on information received from the CPS. Mr Davis confirms that (1) the involvement of the Metropolitan Police Counter Terrorism Command in relation to the allegations made against Ahsan by the US authorities has been restricted to providing information to the US authorities, and the Command has not conducted its own investigation of him for those matters; (2) no police investigation of Ahsan has been referred to or considered by the CPS; and (3) so far as the CPS is aware, no police investigation of Ahsan is in contemplation. It is therefore clear, in my view, that nothing has been done in relation to him in this jurisdiction that could sensibly engage the guidance. There has been no relevant police investigation and no file has been passed to the CPS. Police assistance to the US authorities by way of obtaining a warrant to search his house did not amount to a relevant investigation; and the work done by the CPS in pursuance of the extradition request received from the US authorities has been done in its role as agent for the US authorities, not as domestic prosecuting authority. Equally, the letter of 9 March 2007 from Ahsan’s solicitors to the CPS, drawing attention to the guidance, did not have the effect of engaging its operation.

That is a sufficient reason for rejecting the case advanced by Mr Jones. Both Mr Coppel and Mr Perry, however, raised other cogent objections to his argument. Since they are not needed for my decision, I will deal with them only briefly.

First, the way in which Mr Jones has sought to deploy the guidance has close parallels to the arguments he advanced unsuccessfully in R (Bermingham) v Director of the Serious Fraud Office [2007] 2 WLR 635, in that case challenging the decision of the Director of the Serious Fraud Office not to open, pursuant to the power of investigation conferred on him by s.1(3) of the Criminal Justice Act 1987, an investigation as to whether or not a prosecution should be brought in the United Kingdom. The court held inter alia that the request to investigate in effect invited the Director of the Serious Fraud Office to constitute himself the judge of the proper forum for the defendants’ trial and to decide the issue in favour of trial in this country and not in the United States, and thereby to pre-empt the statutory extradition process (para 65); and that protection of a defendant’s Convention rights was to be found in the material provisions of the 2003 Act rather than in any power of investigation by the Director (paras 70-71). It seems to me that Mr Jones’s reliance on the guidance in the present case as a means of securing a decision on forum by the Director of Public Prosecutions is a similarly impermissible attempt to circumvent the statutory extradition process.

Secondly, although it is well established that judicial review of a prosecutorial decision is available in principle, it is a highly exceptional remedy: see Sharma v Brown-Antoine [2006] UKPC 57, [2007] 1 WLR 780, para 14(5), where the Privy Council referred to the uniform approach shown by the language of the decided cases. Of course, the challenge in this case relates not to a decision whether or not to prosecute, but to an alleged failure to embark upon the decision-making process in the first place by considering the guidance. In my view, however, a similar degree of restraint is appropriate in that situation, especially given the wider extradition context and the importance of speed in the extradition process. Again there is a parallel with the Bermingham case, where Laws LJ observed at para 64 that “it will take a wholly exceptional case on its legal merits to justify a judicial review of a discretionary decision by the Director [of the Serious Fraud Office] to investigate or not”. Although, in line with R v Director of Public Prosecutions, ex parte C, I would not exclude the availability in principle of judicial review based on a failure to apply the guidance, only in a wholly exceptional case is it likely to be appropriate to entertain such a challenge in practice.

Mr Coppel’s submissions sought to go even further, relying on the statement in para 13 of the international guidance that it “does not create any rights on the part of a third party to object to or otherwise seek review of a decision” by the relevant authorities. But that statement does not seem to me to advance matters in the present context. As Mr Jones submitted, if there has been an unlawful failure to consider the guidance, a person with a sufficient interest may in principle bring judicial review proceedings in respect of the failure without having to assert any “right” in the matter; and the statement that the guidance does not create any rights cannot prevent a sufficient interest from arising for the purposes of judicial review.

Nevertheless, for the reasons given and in particular because I accept the submission that, on the facts, the guidance simply had no application to Ahsan’s case, I would reject his claim for judicial review against the Director.

As a footnote, I should mention that Mr Jones raised concerns about a conflict of interest within the CPS by reason of the fact that the question whether or not to prosecute a requested person in this jurisdiction is considered by the same body as represents the requesting government in extradition proceedings here. The point does not arise as a live issue on the facts of this case, since the question whether or not to prosecute Ahsan in this jurisdiction has not arisen for decision by the Director. But in any event I am not impressed by the point as a matter of general principle. The Director’s duties in respect of the conduct of domestic prosecutions and of extradition proceedings are vested in him by statute (see s.3(2) of the Prosecution of Offenders Act 1985). Arrangements are in place for extradition proceedings to be handled by a different division of the CPS (the Special Crime Division) from those responsible for prosecutorial decisions. It was confusing and perhaps inappropriate that the CPS’s response of 14 March 2007 to the letter from Ahsan’s solicitors came from the Special Crime Division, but the response represented the collective view of the CPS and related to a matter in respect of which there was no actual conflict of interest within the CPS. Overall, I see nothing in the circumstances of the case to give substance to the concerns expressed by Mr Jones.

Tajik is an Iranian national and former diplomat, whose service has included a period as Iranian ambassador to Jordan. At the time of the extradition request, he was in the course of completing a PhD thesis at the University of Westminster. Since December 2005 he has been teaching Farsi at the University of Durham. He lives in Durham with his wife (Mahboubeh Sadeghi-Nia) and his younger son (Abbas, aged 14). The wife is a PhD student and the son is at a local school. Another son (Mohammad, aged 21) is a student at Manchester University. Tajik himself is in poor physical and mental health.

On 30 August 2006 a warrant was issued in the Northern District of Illinois for Tajik’s arrest on two charges:

This led to an extradition request, in support of which the US authorities also submitted (a) a criminal complaint by Special Agent Mark Knoblock, of the US Department of Homeland Security, (b) an affidavit sworn by Mr Knoblock in support of the criminal complaint, and (c) an affidavit of Daniel Rubinstein, an assistant US Attorney for the Northern District of Illinois.

Tajik was arrested pursuant to a full order arrest warrant issued on 17 October 2006. On 26 October 2006 his personal computer was seized, together with documents and a pocket computer, and he was remanded in custody.

On 11 December 2006 the extradition hearing commenced before District Judge Tubbs with oral argument on the questions whether (1) the conduct specified in the request constituted an extradition offence within s.137 of the 2003 Act, and (2) whether the CPS and US Government should be requested to provide disclosure in respect of an argument as to abuse of process. On 28 December the district judge announced that she would rule on all issues at the end of the extradition hearing, but that she would not request any disclosure on the abuse of process issue. At a further hearing on 30 January 2007 she heard evidence on behalf of the defence, consisting of (a) a report on Tajik’s medical condition by Dr Cave, a consultant physician and cardiologist; (b) the report and oral evidence of Mr Bruce Zagaris, an experienced US lawyer, on the relevant legal process within the United States and the treatment Tajik would be liable to receive if he were extradited; and (c) the oral evidence of Tajik’s wife as to her husband’s medical and personal situation. The case was then adjourned to 20 March for closing submissions, and was further adjourned on that date to 19 April. On 18 April Dr Cave provided a further medical report. On 19 April the district judge delivered a written judgment, rejecting the various arguments advanced on Tajik’s behalf and ordering that his case be sent to the Secretary of State.

On 14 June the Secretary of State signed an order for Tajik’s extradition to the United States. A letter setting out the Secretary of State’s reasons for rejecting the representations made on Tajik’s behalf was sent on 15 June.

The conduct relied on in support of the extradition request is conveniently summarised in the US Government’s Opening Note for the hearing before the district judge. I have drawn upon that Note for what follows. There was no suggestion before us that the Note fails accurately to represent the effect of the evidence before the court.

It is alleged that, beginning on a date unknown and until August 2006, Tajik, a man called Esmail Gharekhani and other persons unknown were concerned in the illegal export and re-export of goods from the United States to Iran. The allegation came to light following an investigation carried out by the US Immigration and Customs Enforcement (“ICE”), which is part of the US Department of Homeland Security.

On 21 October 2005, US law enforcement agencies became aware of an email sent to a US email address from the email address “gharekhani@iag-co.com”. The email listed various items of night vision equipment (that is, weapon sights) and similar products. It stated “I think we may have 3,000,000 USD order, so I wanna to be your exclusive agent in iran, please reply to me as soon as possible”, and ended “Best regards, Gharekhani”. It gave various contact details, including a reference to the website of the Industrial Automation Group which is located in Tehran.

On 24 October a reply was sent to the Gharekhani email address stating that the export of products to Iran from the United States was restricted but that he (Gharekhani) could contact a local representative who might be able to assist.

On 28 October an ICE undercover agent (UCA-1) called the cell phone number given on the email. A man who identified himself as Gharekhani answered the call. During the course of conversation, Gharekhani was reminded of the US sanctions against Iran and the difficulties of exporting to Iran. He said it was not a problem and that goods could be sent to his office in Turkey where he could receive them. He also stated that his client wished to purchase at least $3 million worth of night vision equipment and other products.

Between October and November Gharekhani communicated with ICE undercover agents, including one referred to as UCA-2, through an ICE undercover email account. The emails included discussions about printed catalogues and whether or not products could be sold to Gharekhani in Iran or to his office in Turkey. On 14 November he was informed that it was not legal to sell anything in Iran without a government licence and that it was not possible to get a licence to sell night vision items in Iran and that it remained illegal even if the goods were sent to his office in Turkey.

In December 2005 and January 2006 Gharekhani continued to communicate via the ICE account regarding the purchase of night vision equipment. In January 2006 he indicated via email that his client wanted samples of the goods. He stated that before ordering the samples he needed “an agreement between me and you, and we need to review the process, where you can send these products, method of the payment and etc. I am awaiting your suggestion”.

On 23 January 2006 Gharekhani ordered a number of items of night vision equipment and later received a quotation from the ICE account for $55,170. On 6 February he sent an email to the ICE account indicating different ways in which packages could be sent to him, including sending them to the office of one of his partners in Turkey. On 7 February he stated that his partner in Turkey told him to send three of the items (holographic weapon sights) to Turkey but to “write on the package it’s a gift with no value …”. On 10 February Gharekhani sent a purchase order for those items and provided a shipping address in Turkey. He requested a pro forma invoice and stated that he wished to use the Turkey address for all products of that kind.

Gharekhani later indicated in an email that his customer wished to purchase certain other night vision products but that the Turkish government did not allow the import or export of such goods so they would have to be sent directly to Dubai. On 12 April he sent a purchase order for goods to be shipped to Dubai. He requested a pro forma invoice. On 2 May he sent a further purchase order, via fax to the undercover account, for the additional items to be shipped to Dubai.

In April and May pro forma invoices were sent in pursuance of the two purchase orders. The invoices stated that the products would be sold for $64,985. The pro forma invoices included a notice about export restrictions which made it clear that the export of night vision, thermal imaging and optical equipment is prohibited without a valid export licence issued by the US Department of State and that the sale, transfer or shipment of any goods from the United States to embargoed destinations, including Iran, is prohibited and is a federal crime. They also stated that it is the buyer’s responsibility to obtain all licences for the use and/or export of subject items.

On 6 May 2006 Gharekhani stated, via email to the ICE account, that Tajik was his partner in the United Kingdom. He stated that Tajik would be in contact with the ICE undercover agent from then on and that the goods could be shipped to Tajik’s company in the United Kingdom as in Gharekhani’s view it was better to conduct business with a British company. He added that Tajik would call and finalise the arrangements.

Tajik is a director of the company Islamic Direct Business Limited, based in Harrow, Middlesex.

On 8 May ICE heard from Tajik for the first time when he called an ICE undercover telephone number. He identified himself as Tajik and said he was calling on behalf of Gharekhani. He stated that he was in Iran, although he was supposed to be in the United Kingdom. He provided a telephone number on which he could be reached.

On the same day Gharekhani sent, via fax, a request for a quotation for a thermal imaging product. He stated that Tajik would make payment for the goods through his British company and that the goods could be shipped to that company in the United Kingdom.

Gharekhani stated that he had known Tajik for a long time and that he was one of his best friends. He also stated that he told Tajik everything about his business. He also provided Tajik’s email address.

On 11 May Tajik phoned UCA-1 and explained that Gharekhani had informed him about the business deal involving night vision equipment and that Gharekhani had asked him to continue with the transaction. In a further conversation on 16 May Tajik stated that he knew the nature of the goods being shipped. UCA-1 told him that it was illegal to ship the goods from the United States without a licence and that he (UCA-1) was unable to get a licence. Tajik’s response was that he could ship the goods from the United Kingdom to Iran or that UCA-1 could send the items to Iran via Dubai. He explained that he had a colleague in Dubai through whom he could send the items to Iran from Dubai. He stated that he preferred to deal through the United Kingdom. He added that the previous year he had shipped night vision and other equipment that he had received from the United States to Iran and had not encountered any problems. He explained that when items were shipped to the United Kingdom he changed the shipping labels for shipment to Iran.

Tajik stated that Gharekhani had agreed to open a letter of credit for payment to UCA-1 upon shipment of the goods to the United Kingdom. He later requested account details for the letter of credit. UCA-2 later told him that it was not legal to ship the military goods without a licence and it was a big risk to open a letter of credit. Tajik responded by saying that he was not authorised to give any money to UCA-2 and that if a letter of credit was not opened UCA-2 could bring the goods to London where he would also receive payment.

On 5 June, in an email to the ICE account, Tajik announced that he was back in the United Kingdom and was ready to pay for and receive the first order. He indicated that the place of delivery could be either London or Newcastle. He later returned the pro forma invoice which had earlier been sent to Gharekhani. He also asked UCA-1 if he could prepare the order for that Thursday as there was a shipment facility to Iran on Friday. He stated that he did not have an agent in the United States so UCA-1 should deliver the goods himself to Tajik in the United Kingdom.

In an email dated 7 June Gharekhani stated that he would send cash to Tajik who would finalise everything.

On the same day another ICE agent, UCA-3, telephoned Tajik in the United Kingdom. During the conversation, Tajik stated that one of his relatives who was in the United Kingdom was travelling to Iran on Saturday 10 June and could take the night vision equipment with him. Tajik agreed to meet UCA-3 in London and stated that when they met they could discuss “other business”. He informed UCA-3 that he should bring all the equipment to London where he would be paid in cash or by way of a bank draft.

Further discussions took place between Tajik and the undercover agents and Gharekhani regarding delivery and payment.

On 3 July UCA-2 faxed an invoice to Tajik for delivery of 11 of the 14 items particularised on the April and May purchase orders. UCA-2 also sent, via email, scanned images of the covers of the product manuals for some of the items. All of the items on the invoice are defence articles listed on the US Munitions List. It was later confirmed between UCA-2 and Gharekhani that the goods would be delivered to Tajik in the United Kingdom.

On 1 August UCA-1 telephoned Tajik at his office in the United Kingdom to arrange a meeting between Tajik and UCA-1 and UCA-3. Arrangements were made to meet in London on 17 August. Tajik stated that he would be ready to take possession of the night vision equipment on that date. He added that he was just waiting for Gharekhani to send him the money.

Before the agreed meeting on 17 August Tajik instructed UCA-1 to prepare all of the documents with Gharekhani and to bring them to him (Tajik). He also instructed UCA-1 to bring “some white paper of your company”, stationery, stamps and diskette of all the printed materials. On 8 August he sent an email explaining that the stationery was to be used to issue a letter that he might need to re-export and for Customs purposes.

Also on 8 August, Gharekhani sent an email to the ICE account stating that “we are waiting to your package in the 17^th in the UK and in 30^th in Iran”. UCA-1 and UCA-3 explained to Tajik that the meeting on 17 August was just to discuss business and not to complete the sale.

On 9 August, Gharekhani sent an email to the ICE account stating “Attached is a copy of remittance form … so please bring this items to Mr Tajik on 17^th”. The attachment was what appeared to be a copy of a bank electronic transfer request for the remittance of $51,150 from a bank located in Iran to HSBC. Tajik was named as the beneficiary.

The meeting in London took place as planned on 17 August, when UCA-1 and UCA-3 met with Tajik. Tajik explained that he wanted the equipment to be delivered to him in Durham and that he had arranged for it to be re-exported from the United Kingdom by the end of August. During the meeting he gave detailed instructions to provide two invoices for the night vision equipment. One invoice was to contain a true and accurate description of the products and their value. The second was to contain a false description and value for the equipment. (Two invoices were found at Tajik’s address on his arrest. Both named Tajik as the buyer and gave Chicago, Illinois as the port of lading. One gave correct descriptions and prices for the goods and gave Iran as the final destination. The other gave false descriptions and prices and gave Dubai as the final destination.)

During the meeting on 17 August Tajik made a separate enquiry about a 35 mm naval gun system. He was also shown three of the items on the April and May purchase orders. He was reminded that there was currently an embargo against exporting the items to Iran. He stated that he wished to purchase the items on the 3 July invoice and that he would arrange payment through Gharekhani. He also stated that he wished to conduct further business with the undercover officers.

On 23 August Gharekhani sent an email to the ICE account explaining that he estimated “more than $1 million in orders over the next 6 months” from his customer but that everything depended on the samples. In an email dated 30 August to the ICE account, Tajik stated “Money is ready. Would you please tell me when you will be ready to come to Durham?” A copy of the email was also sent to Gharekhani.

The goods that Gharekhani and Tajik sought to obtain are classified military equipment that require a licence before they can lawfully be exported from the United States. There have been no licence applications or licences issued for the export or re-export of any goods, technology or services by or on behalf of Gharekhani, Tajik or any of their associated business entities.

On 30 August 2006, Special Agent Knoblock filed the criminal complaint formally charging Tajik with criminal offences against the laws of the United States. On the same day a warrant for Tajik’s arrest was issued. I have already set out the charges that Tajik faces. He is charged together with Gharekhani.

The issues raised before this court are as follows:

One of the first questions that the district judge has to decide, under s.78(4)(b) of the 2003 Act, is whether the offence specified in the request is an extradition offence. If it is not an extradition offence, the person’s discharge must be ordered pursuant to s.78(6). The relevant definitions are contained in s.137, which provides in material part:

“(1)

This section applies in relation to conduct of a person if –

(a)

he is accused in a category 2 territory of the commission of an offence constituted by the conduct …

(2)

The conduct constitutes an extradition offence in relation to the category 2 territory if these conditions are satisfied –

(a)

the conduct occurs in the category 2 territory;

(b)

the conduct would constitute an offence under the law of the relevant part of the United Kingdom ….

…

(4)

The conduct also constitutes an extradition offence in relation to the category 2 territory if these conditions are satisfied –

(a)

the conduct occurs outside the category 2 territory and no part of it occurs in the United Kingdom ….”

Mr Jones’s primary submission is that the conduct alleged in this case occurred outside the United States, so that s.137(2)(a) does not apply, but that part of it occurred in the United Kingdom, so that s.137(4)(a) does not apply; and since no other provision is potentially applicable, the offences specified in the request are not extradition offences.

The starting point for consideration of that submission is the decision of the House of Lords in Office of the King’s Prosecutor, Brussels v Cando Armas [2006] 2 AC 1. Although that was a case under Part 1 of the 2003 Act, and in particular in relation to the definition of “extradition offence” in s.65, the reasoning applies equally to the relevant provisions of Part 2 and in particular to s.137. There are three points of particular relevance, which emerge notably from paras 16-17 of the speech of Lord Bingham of Cornhill and paras 34-40 of the speech of Lord Hope of Craighead. First, “the conduct” in s.65 (and therefore also in s.137) means the conduct complained of or relied on in the warrant. Secondly, it is not necessary for all the conduct to have occurred in the category 1 territory for the case to fall within s.65(3) (and, therefore, it is not necessary for all the conduct to have occurred in the category 2 territory for the case to fall within s.137(2)). Thirdly, conduct can “occur” in a territory not just if the actor is located in the territory but also if the conduct is aimed at that territory. As Lord Hope expressed it:

“35.

… But the test of whether conduct occurs in the category 1 territory is satisfied for the purposes of section 65(3) so long as its effects were intentionally felt there, irrespective of where the person was when he did the acts which constituted such conduct.

…

40.

… The conduct must occur ‘in’ the category 1 territory if the condition which is set out in these paragraphs is to be satisfied. But a purposive meaning must be given to the word ‘conduct’ in this context. It would impose a wholly artificial restriction on the extradition process if it were to be taken as meaning that all the conduct which resulted in the offence must have taken place exclusively within the category 1 territory. Actings elsewhere will be sufficient to constitute conduct in that territory so long as their intended effect was to bring about harm within that territory ….”

In R (Bermingham) v Director of the Serious Fraud Office [2007] QB 727, in a passage at paras 81-86 dismissing another of Mr Jones’s submissions in relation to extradition offence under s.137, Laws LJ observed that Lord Hope’s reference to “intended effect” looks to the particular case where the defendant’s acts, having in fact taken place outside the category 1 or category 2 territory, can only qualify as amounting to conduct within the category 1 or category 2 territory on the footing that that was the place where their malign effects were felt. There was no need to resort to such a purposive approach where the defendant’s acts took place in the category 1 or category 2 territory as well as elsewhere.

In the present case it is submitted by Mr Jones that no acts forming part of the conspiracy took place in the United States and that the conspiracy was not aimed at the United States, so that on neither basis can the conduct be said to have occurred in the United States for the purposes of s.137(2)(a). The communications by email and telephone with undercover agents in the United States do not count, since the US agents, whilst inciting the conspiracy (as it is submitted), are not said to have been party to the conspiracy; and no other relevant conduct is alleged to have taken place in the United States. Nor can the conspiracy be said to have been aimed at that country.

The district judge rejected that submission, stating:

“Some of the alleged conduct, e.g. the sending of emails by Mr Tajik to, and received in, the USA on 5.6.06 and 8.8.06, can be directly described as having occurred ‘in’ the USA. Unlike the case of Bermingham … in this case the intended effect of the alleged actions by the conspirators was to bring about harm within the US, namely to achieve the export of night vision equipment, US origin defence articles, from the US directly or indirectly to Iran, in knowing contravention of the US law controlling and prohibiting such exports. Nearly all the communications to achieve that plan, including emails, phone messages and faxes were directed by Tajik and Gharekhani to the prosecution witnesses in the US. The meeting with Mr Tajik in London on 17 August 2006 followed Mr Tajik’s statement, in the course of communicating with a prosecution witness on 1 August 2006, that he (Mr Tajik) would be ready to take possession of night vision equipment in London on 17 August 2006. Although there were discussions about exports from the Netherlands it is clear from the contents of the request that Tajik and his conspirators intended to effect the export of goods from the US. The conduct falls squarely within Lord Hope’s purposive meaning to be given to the word ‘conduct’ ….”

I agree with the district judge’s finding that the conduct relied on was aimed at the United States, in the sense that its intended effect was to bring about harm in that country. The intention was to deceive the US authorities as to the nature and destination of the goods so as to evade the restrictions on their export from the United States. On that basis it is plain that the conduct occurred in the United States for the purposes of s.137(2)(a), and it is unnecessary to consider whether the district judge was also right to hold that certain of the email communications occurred “directly” in the United States.

A secondary submission by Mr Jones was that the condition in s.137(2)(b) is not met, in that the conduct relied on would not constitute an offence under the law of England and Wales, so that the requirement of double criminality is not met. The case as ultimately formulated by the US Government for the proceedings before the district judge was that the conduct of which Tajik is accused would have constituted the offence of conspiracy to defraud if it had occurred in this jurisdiction: the charge would have been that between 1 January 2005 and 31 August 2006 he “conspired with Esmail Gharekhani and other persons unknown to defraud Her Majesty’s Revenue and Customs by dishonestly exporting certain prohibited or restricted goods directly or indirectly to Iran”. There is no dispute, as I understand it, that a conspiracy in equivalent circumstances to deceive customs officials in the United Kingdom would be capable of amounting to a conspiracy to defraud at common law (a proposition for which Mr Perry cited Welham v Director of Public Prosecutions [1961] AC 103 and Wai Y-Tsang v The Queen [1992] 1 AC 269, and also, as regards justiciability in the United Kingdom in respect of acts taking place outside the United Kingdom, R v Smith (Duncan Wallace) [2004] QB 418). Mr Jones’s submission was narrower and more specific, namely that dishonesty is an essential ingredient of the English offence but does not form part of the accusation against Tajik in the United States.

Mr Jones acknowledged in reply that the decision of the Divisional Court in Norris v Government of the United States of America [2007] 1 WLR 1730 was against that submission, but he wished to keep the matter open pending the judgment of the House of Lords on an appeal in Norris. The relevant US charge, count 1, faced by the defendant in Norris was a strict liability offence of price fixing. The equivalent English offence was said to be one of conspiracy to defraud “by dishonestly entering into an agreement to fix, maintain and co-ordinate the price” for the products in question. The Divisional Court held that price fixing could constitute such an offence under English law and that the conduct alleged against the defendant would constitute such an offence even though dishonesty did not form part of count 1 as charged under US law.

Since the hearing before us in the present case, the House of Lords has handed down its judgment in the appeal in Norris: [2008] UKHL 16. The judgment holds that mere price-fixing (that is, the making and implementation of a price-fixing agreement without aggravating features) was not an offence in the United Kingdom at any relevant time. Mr Norris’s appeal on count 1 therefore succeeded on that basis. Nevertheless the House went on to decide the issue of double criminality. The central point was described in these terms:

“65.

… It is possible to define the crimes for which extradition is to be sought and ordered (extradition crimes) in terms either of conduct or of the elements of the foreign offence. That is the fundamental choice. The court can be required to make the comparison and to look for the necessary correspondence either between the offence abroad (for which the accused’s extradition is sought) and an offence here, or between the conduct alleged against the accused abroad and an offence here. For convenience these may conveniently be called respectively the offence test and the conduct test. It need hardly be pointed out that if the offence test is adopted the requested state will invariably have to examine the legal ingredients of the foreign offence to ensure that there is no mismatch between it and the supposedly corresponding domestic offence. If, however, the conduct test is adopted, it will be necessary to decide, as a subsidiary question, where, within the documents emanating from the requesting state, the description of the relevant conduct is to be found.”

After an analysis of the authorities and of the relevant provisions of the 2003 Act, the House concluded that the conduct test was to be preferred:

“93.

The committee has reached the conclusion that the wider construction should prevail. In short, the conduct test should be applied consistently throughout the 2003 Act, the conduct relevant under Part 2 of the Act being that described in the documents constituting the request (the equivalent of the arrest warrant under Part 1), ignoring in both cases mere narrative background but taking account of such allegations as are relevant to the description of the corresponding United Kingdom offence. Had Mr Norris’s appeal failed on the first issue the extradition order on count 1 would have stood.”

In the present case the district judge held that the conduct alleged against Tajik included dishonesty, in that “[a]n agreement to engage in such prohibited criminal conduct and to conceal such criminal conduct from the requesting territory’s responsible authorities involves an intent to defraud and is dishonest”. In my view that conclusion is clearly correct. There does not need to be an express averment of dishonesty. It is to be inferred from the allegations against Tajik taken as a whole. Thus, applying the conduct test approved by the House of Lords in Norris, I am satisfied that the condition in s.137(2)(b) of the 2003 Act is met.

I have dealt with the two points actively pursued by Mr Jones at the hearing before us in relation to the extradition issue. A further point touched on in his written skeleton argument was the question whether the items of equipment described in the request were subject to a statutory export restriction under English law. That question, which engages the provisions of the Export Control Act 2002, the Export of Goods, Transfer of Technology and Provision of Technical Assistance (Control) Order 2003 and the Trade in Controlled Goods (Embargoed Destinations) Order 2004, was decided in favour of the US Government by the district judge and was addressed at length in Mr Perry’s skeleton argument for the US Government in the appeal before us. I have no reason to doubt the correctness of the district judge’s decision on the point but, since the point was not pursued in Mr Jones’s oral submissions, I think it unnecessary to go into the detail of the matter.

I have placed this issue second because that is where it featured in the case presented on behalf of Tajik at the hearing before us. Submissions on it were made by Mr Malek QC rather than by Mr Jones.

A requested person’s discharge must be ordered under s.91 if the court is satisfied that “the physical or mental condition of the person is such that it would be unjust or oppressive to extradite him”. It is submitted that the district judge should have ordered Tajik’s discharge under that section; and that in any event, having regard to the material that was before the district judge and additional medical evidence that has been placed before this court, his discharge should be ordered by us.

The first report of Dr Cave was dated 24 January 2007. It referred to Tajik’s history of coronary artery disease and to the carrying out of bypass graft surgery in June 2005. It concluded that he had recurrent angina due to ischaemia in the right coronary artery and that “[h]e may therefore continue to experience exertional angina, though in general terms he is not at especially high cardiac risk in the medium term”. It went on to state that in a patient with coronary artery “any emotional stress can be detrimental to the patient’s health” and that in all patients with coronary artery disease medical advice was to minimise emotional stress as far as possible. It was very clear that the extradition process was causing Tajik considerable stress which was greatly affecting his quality of life in general and “could have both acute and chronic detrimental consequences related to his ischaemic heart disease”. Dr Cave said that he had had sight of Mr Zagaris’s report outlining the conditions Tajik might experience should extradition take place, and that “[t]here is no doubt that physical and emotional trauma of this nature and scale would be very likely to cause deterioration in Mr Tajik’s health, both mental and physical”, with a significant risk of an acute coronary event.

Dr Cave’s findings were not challenged at the hearing before the district judge on 30 January 2007. At the hearing, oral evidence was also given by Tajik’s wife, explaining his medical condition and its deterioration as a result of the pressure of the extradition proceedings. She said that both his daughter and his father had died as a result of heart problems.

In a further report dated 18 April 2007 and provided to the district judge before she handed down her judgment on 19 April, Dr Cave stated that Tajik continued to experience typical exertional angina but that in normal circumstances he would not be at high risk of an acute coronary event. However, Dr Cave also referred to symptoms of weight loss, night sweats, poor sleeping and early morning wakening which were not uncommon in patients suffering from anxiety or depression. He said that “[a]s a physician (not a psychiatrist) it is my view that his mental health has deteriorated very significantly since his extradition procedure began” and that it would be very useful for Tajik to undergo full psychiatric evaluation.

In her written judgment, the district judge summarised Dr Cave’s first report and the evidence given by Tajik’s wife. Having then referred to the relevant case-law, she concluded:

“… I accept the unchallenged evidence of Dr Cave that Mr Tajik suffers from coronary heart disease for which he has had, and is receiving, medical treatment. He may continue to experience exertional angina but he is not at especially high cardiac risk in the medium term. There is no doubt that facing extradition proceedings is stressful. Facing trial in the United States and, if convicted, the consequences of sentence and possible imprisonment will also be stressful. The level of stress and the consequences that may result are unascertainable at this stage. Whilst accepting the possibility of deterioration in Mr Tajik’s health as a consequence of his circumstances if his extradition is ordered, his physical and mental condition in my judgment falls far short of him being in such a condition that it would be unjust or oppressive to extradite him.”

Mr Malek submitted that the district judge erred in her treatment of the medical evidence, citing out of context what Dr Cave had said about Tajik not being at especially high cardiac risk in the medium term (a remark that was not addressed to the effect of the extradition proceedings) and failing to appreciate the seriousness of Tajik’s poor health. I disagree. It seems to me that she clearly understood and took properly into account the contents of Dr Cave’s first report, as well as the evidence given by Tajik’s wife. It is understandable that she did not mention Dr Cave’s further report, which was provided to her just before her judgment was handed down and which contained nothing that materially affected the conclusion expressed in the judgment. Further, on the basis of the evidence then available, I have no doubt that the district judge was correct to reach the conclusion she did.

The real question for us, however, is whether that remains a valid conclusion in the light of the further medical evidence now available. There was no objection to our taking the additional evidence into account.

The psychiatric evaluation suggested in Dr Cave’s further report was carried out by Dr Wilkins, a consultant psychiatrist in adult and forensic psychiatry, whose report is dated 2 May 2007. His conclusions are as follows:

“1.

In my opinion, Nosratollah Tajik currently suffers from depression of moderate severity … or major depression … and panic disorder …. These are of sufficient severity to warrant treatment by his GP ….

2.

Mr Tajik also satisfies the criteria for post-traumatic stress disorder …. The symptoms are primarily related to his experiences of torture in the 1970s, but appear to have been exacerbated by events of the last six months. Nonetheless, he appears to have had persistent symptoms of PTSD, something that he had not shared with his solicitor at the time of the instructions.

3.

Mr Tajik suffers from ischemic heart disease, resulting in at least one heart attack, coronary artery bypass surgery and continuing medication and symptoms. The symptoms of panic disorder that he experiences are very similar to those of angina. However, judging by Dr Cave’s report, Mr Tajik’s condition is susceptible to anxiety and stress and his symptoms of ischemic heart disease are likely to be precipitated by excessive amounts of anxiety and stress.

4.

It follows, therefore, that Mr Tajik’s health is jeopardised by these current proceedings both in terms of his mental health and his physical health. The effect of the proceedings themselves appears to have exacerbated his symptoms of PTSD and precipitated a depressive episode with anxiety features. It is likely that were the extradition proceedings to continue, Mr Tajik would be at risk of developing further symptoms of psychiatric disorder and there is therefore the possibility that these symptoms would themselves lead to further problems with his heart disease.

5.

If the extradition proceedings themselves are likely to precipitate deteriorations in both Mr Tajik’s physical and mental health, it is likely that detention in the USA and the trial process there would exacerbate his conditions even more. It is possible that Mr Tajik’s life would be in danger because of his physical danger in particular. I think it unlikely that Mr Tajik would consider suicide because of his religious beliefs. However, I would expect Mr Tajik’s symptoms of PTSD to be exacerbated even more by a prolonged period of incarceration. This would be redolent of his experiences under the Iranian pre-1979 regime (without the torture, but he would perceive himself as a political prisoner) and I would be concerned that there would be a significant risk of his mental state deteriorating under such pressures to the point where he would become severely ill with depression and anxiety which in turn would have a deleterious impact upon his physical health as described by Dr Cave in his report.”

In a supplemental report dated 28 January 2008, Dr Cave confirms that Tajik remains under his care on an out patient basis for monitoring of his cardiac condition. He states that his previous two reports still stand as a factual account of Tajik’s cardiac problem, and “I remain concerned that the physical and mental stress of extradition proceedings significantly increases his risk of further cardiac events”. He also states that, having read Dr Wilkins’s report, it comes as no surprise to him that expert psychiatric opinion confirms that Tajik’s current situation is having a significant deleterious effect on his mental health, which would undoubtedly deteriorate further should his extradition proceed.

Mr Malek submits that on the undisputed medical evidence there will be a serious risk to Tajik’s mental and physical health and to his life if he is extradited. His mental health problems are potentially as dangerous as his physical health and are liable to have a direct impact upon his physical condition. In addition to the extreme stress of the extradition and trial process, imprisonment would be particularly dangerous for him, given the diagnosis of PTSD and the likely exacerbation of that condition as a result of incarceration. He has a history of heart problems and has lost close members of his family through heart attacks. Any further coronary incident is likely to be fatal. The existence of medical facilities in the United States does not negate the risk to him. That risk is sufficiently high to render it unjust or oppressive to extradite him.

We were referred to three cases which are illustrative of the court’s approach to the issues arising under s.91. In R (Warren) v Secretary of State for the Home Department [2003] EWHC 1177 (Admin), a case under the Extradition Act 1989, there was conflicting evidence about the claimant’s fitness to stand trial in the United States and as to the extent to which his mental health would be liable to deteriorate if he were extradited. The Secretary of State’s decision that it would not be wrong, unjust or oppressive to order his return was challenged, without success. The court’s analysis was bound up with the issue under article 8 ECHR. Moses J observed at para 38 that the Secretary of State’s obligation was to strike the balance fairly. The effect on the claimant and his family was plainly serious, and any further pursuit of extradition was likely to cause deterioration in his condition, but that consideration fell to be judged in the context of the fact that there was a genuine issue as to the degree of gravity of his symptoms and the prospect of alleviation of those symptoms on treatment. Hale LJ, agreeing, placed emphasis at para 40 on the public interest in giving effect to reciprocal treaty obligations in extradition cases.

In Boudhiba v Central Examining Court No.5 of the National Court of Justice, Madrid, Spain [2006] EWHC 167 (Admin) there was psychiatric evidence that the appellant was suffering from clinical depression with psychotic features, complicated by post-traumatic symptoms. He was said to be suicidal. One of the psychiatrists expressed the view that extradition would probably lead to further deterioration and an increased risk of suicide. By the date of the district judge’s decision, however, there was no evidence of such deterioration; nor was there any suggestion that the appellant was unfit to plead or stand trial. As to the possibility that he might be or might become so, there was evidence that following extradition he would be psychiatrically examined and that there were facilities in Spain for the psychiatric treatment of prisoners. The Divisional Court had some additional evidence before it but declined to adjourn to allow yet further evidence to be obtained. The matter was approached on the basis that there was “a real possibility that, on exhaustive investigation, it might emerge that the appellant is unfit to stand trial” but that there was no evidence that he was currently in need of psychiatric treatment (para 64). Smith LJ, with whom Newman J agreed, concluded by emphasising that the statutory question was whether by reason of the appellant’s mental condition it would be unjust or oppressive to extradite him, and continued (at para 65):

“Spain is a civilised country. The evidence shows that, if extradited, proper examination will be made to ascertain whether the appellant is fit to stand trial. Such examination will also establish whether the appellant is a suicide risk and whether he is in need of psychiatric treatment. So, I would conclude that, even though it may turn out that the appellant is of low intelligence and might be unfit to stand trial, it is not unjust or oppressive to extradite him to Spain.”

In Government of the United States of America v Tollman [2008] EWHC 184 (Admin) the Divisional Court upheld a decision of the district judge refusing to order the extradition of one of the requested persons, Mrs Tollman, because of her mental condition. The district judge found that she was suffering from moderately severe to severe clinical depression and cognitive impairments of a moderate severity, in particular impairments of intelligence and reasoning which gave rise to a medical diagnosis of pseudo dementia. He concluded that in her present state of health she was unable to instruct lawyers in the extradition proceedings and was not in a fit state to give evidence. He said that “[a]s she is unable to effectively participate in these extradition proceedings, in the procedures of a trial in the United States of America, or to give evidence, I conclude that it would be unjust to extradite her at this stage” (para 126). He declined to adjourn the hearing because, although pseudo dementia was reversible, “it was clear from all the medical evidence before me that the continuation of the proceedings would have a devastating effect upon the defendant’s health”: there was evidence that she might never recover and that her mental condition was deteriorating increasingly fast. He thought it unlikely that that she would recover her physical and mental health within the near future (para 127). He therefore ordered her discharge. The Divisional Court held that the district judge had been entitled on the evidence to reach that decision. The way in which the courts of the requesting state would consider the defendant’s fitness to plead and health matters was said to be relevant to, but not determinative of, how the UK courts should judge the issues arising under s.91.

Whilst a judgment has to be made in every case by reference to the particular facts, it is clear from those authorities that in practice a high threshold has to be reached in order to satisfy the court that a requested person’s physical or mental condition is such that it would be unjust or oppressive to extradite him. In the present case, Tajik’s medical condition is undoubtedly a cause for concern and calls for careful consideration, given the risk that extradition and imprisonment will have such an adverse effect upon his mental and physical state as to give rise to an acute coronary event. In my judgment, however, the additional evidence available to this court does not warrant a different conclusion from that reached by the district judge. It does not seem to me that Tajik’s condition is such that it would be unjust or oppressive to extradite him. The circumstances are of course very different from those in Tollman, and the particular factors that led to the order for discharge in Tollman (including unfitness to plead or to take part in a trial) are illustrative rather than exhaustive of the circumstances in which such an order may be appropriate. Overall, however, I regard the circumstances of this case as substantially less serious than those in Tollman. It is not in dispute that appropriate facilities are available in the United States for the treatment of Tajik’s psychiatric and physical condition, or that medical care would be provided to him there. Those are relevant and important factors. Mr Malek made the point that, however good such facilities or care may be, they may not be able to prevent an incapacitating or fatal heart attack That is true, but in my view the availability of such facilities and care must reduce the risk; and in any event, taking due account of the extent and nature of the risk, I do not think that the evidence concerning Tajik’s mental and physical condition is sufficient to render his extradition unjust or oppressive.

It was held in R (Government of the United States of America) v Tollman [2006] EWHC 2256 (Admin), [2007] 1 WLR 1157, that the judge considering an extradition request has the power and duty to decide whether the process is being abused. The approach of the court should be as follows:

“84.

The judge should be alert to the possibility of allegations of abuse of process being made by way of delaying tactics. No steps should be taken to investigate an alleged abuse of process unless the judge is satisfied that there is reason to believe that an abuse may have taken place. Where an allegation of abuse of process is made, the first step must be to insist on the conduct alleged to constitute the abuse being identified with particularity. The judge must then consider whether the conduct, if established, is capable of amounting to an abuse of process. If it is, he must next consider whether there are reasonable grounds for believing that such conduct may have occurred. If there are, then the judge should not accede to the request for extradition unless he has satisfied himself that such abuse has not occurred ….

…

89.

The appropriate course for the judge to take if he has reason to believe that an abuse of process may have occurred is to call upon the judicial authority that has issued the warrant, or the State seeking extradition in a Part 2 case, for whatever information or evidence the judge requires in order to determine whether an abuse of process has occurred or not.”

The primary basis on which an allegation of abuse of process is made in the present case is that of entrapment. The relevant principles concerning entrapment were examined in Jenkins and Benbow v Government of the United States of America [2005] EWHC 1051 (Admin). Sedley LJ, giving the judgment of the court, pointed out at paras 15-16 that entrapment is recognised as a substantive defence in US federal law; whereas in the law of England and Wales it is not a defence but, if established, is a ground for staying or dismissing proceedings as an abuse of the court’s process. For the relevant test in the law of England and Wales, he cited the decision of the House of Lords in R v Looseley [2001] UKHL 53, reproducing the headnote at [2002] 1 Cr App R 360:

“Police conduct which brought about State-created crime was unacceptable and improper and the role of the courts was to stand between the State and its citizens to make sure this did not happen. But, if a person freely took advantage of an opportunity to break the law, given to him by a police officer, the police officer was not to be regarded as inciting or instigating the crime in the context of the prohibition of entrapment.

In considering whether the conduct of the police or other law enforcement agency was so seriously improper as to bring the administration of justice into disrepute the court had to have regard to all the circumstances of the case and in exercising its inherent jurisdiction to stay the proceedings as an abuse of process had particularly to consider: (1) the nature of the offence – the use of pro-active techniques was more needed and, hence, more appropriate in some circumstances than in others and the secrecy and difficulty of detection, and the manner in which the particular criminal activity was carried on, were relevant considerations; (2) the reason for the particular police operation – having reasonable grounds for suspicion was one way good faith might be established but having grounds for suspicion of a particular individual was not always essential; (3) the nature and extent of police participation in the crime – the greater the inducement held out by police, and the more forceful or persistent the police overtures, the more readily might a court conclude that the police had overstepped the boundary; (4) the defendant’s criminal record – this was unlikely to be relevant unless it could be linked to other factors grounding reasonable suspicion that the defendant was currently engaged in criminal activity.

In a case involving the commission of an offence by an accused at the instigation of undercover police officers there was no appreciable difference between the requirements of Article 6 of the European Convention of Human Rights, or the Strasbourg jurisprudence on Article 6, and English law as it has been developed in recent years.”

Sedley LJ stated that the corresponding jurisprudence of the Strasbourg court was to be found at its strongest from a defendant’s point of view in the case of Teixera de Castro v Portugal (1998) 28 EHHR 101, in which the applicant had been approached by undercover officers at the suggestion of a petty drug dealer and asked by them to supply heroin for which they tendered cash. He went and obtained it and was arrested when he returned with it. The court found that he had been denied a fair trial in violation of article 6 because he had been incited by agents of the state to commit the offence of which he was convicted. The court drew a distinction between an agent provocateur and an undercover agent, recognising the legitimacy of the latter. Since the particular applicant had attracted no suspicion, had no record and had no drugs in his possession or control when approached, there was nothing to suggest any predisposition to offend. His offending was therefore the product entirely of incitement. The court concluded that the police officers “did not confine themselves to investigating [his] criminal activity in an essentially passive manner, but exercised an influence such as to incite the commission of the offence”. Sedley LJ stated, however, that this was not to be read as meaning that only passive investigation was legitimate: between that and active incitement many degrees of passivity and activity were possible.

On the particular facts of Jenkins and Benbow the court held that the district judge had been entitled to find that there was no entrapment.

Mr Jones submits that, on the available evidence in the present case, the crime with which Tajik is charged was solicited, encouraged and incited by US agents, so as to amount to entrapment in line with the principles laid down in the authorities mentioned above. It is submitted that the US Government is deeply hostile towards the Iranian Government and is targeting Iranians. From the point of view of the US Government, Tajik, as a former Iranian ambassador, is an ideal target in the pursuit of its policy of confrontation with Iran. He was entrapped by US agents, as the history of communications set out above shows; and repeated attempts were made to fix Gharekhani and Tajik with guilty knowledge of the restrictions on exports from the United States.

It is submitted that the entrapment not only involved calls and emails from US agents, but also a covert operation in London when the agents recorded the meeting on 17 August 2006. What occurred amounted to the conduct and use of covert human intelligence sources for which authorisation is required pursuant to ss.26-29 of the Regulation of Investigatory Powers Act 2000; yet the UK authorities have declined to disclose, in response to requests from Tajik’s representatives and the Iranian Embassy, whether it took place with their authorisation or approval. The agents’ conduct in soliciting and encouraging an offence in this country is also said to be an aggravating factor and even to amount in itself to a criminal offence, indictable in England and Wales, of conspiracy to defraud.

It is further submitted that there has been only limited and selective disclosure and that in the absence of fuller disclosure the court should draw the natural inference that this was a “sting” operation organised by the US Government from the very beginning. In particular, it has not been disclosed how the story started: it is not known whether the email from the Gharekhani address which forms the first item in the disclosed material was itself a response to an entrapment. Nor has there been full disclosure of later communications (including disclosure of actual emails, as opposed to extracts, and of transcripts of conversations). Moreover, emails stored on Tajik’s computer seized on his arrest provide a very different emphasis, indicating that the intended source of the equipment might be in the Netherlands. This reinforces the concern about selective disclosure. The lack of full and frank disclosure is relied on as a separate aspect of the allegation of abuse of process.

That leads into the application to the district judge for further disclosure to be made. It is submitted that there was enough evidence to show that the US Government may have been engaged in an abuse of process to justify the district judge requiring disclosure of all the relevant emails and communications; transcripts of telephone calls and of recordings of meetings; material as to targeting or a wider operation; and material as to whether the UK authorities had authorised the US agents to operate in the United Kingdom, record the meeting in London or bring in the equipment to that meeting. The district judge’s decision not to require further material to be disclosed was erroneous and meant in effect that she was bound to find that there had been no abuse of process.

In his response on behalf of the US Government, Mr Perry reminded the court of a passage in Ahmad and Aswat v Government of the United States of America (see above) in which Laws LJ referred to the fundamental assumption that the requesting state is acting in good faith. The assumption may be contradicted by evidence, but “where the requesting State is one in which the United Kingdom has for many years reposed the confidence not only of general good relations, but also of successive bilateral treaties consistently honoured, the evidence required to displace good faith must possess special force” (para 101). Mr Perry also made clear that the US Government is conscious of its duty of candour (Wellington v Governor of HMP Belmarsh [2004] EWHC 418 (Admin)) and considers that it has discharged that duty in this case.

Mr Perry relied on a number of factors as demonstrating that the issue of entrapment does not arise. First, the conduct described in the request shows that the investigation began when an email was sent by Gherakhani to a US email account referring to an order for goods to be exported to Iran. Following a series of email and other communications, Gharekhani introduced Tajik as the person who would made contact with the US undercover agents. Tajik himself then contacted them, stating that he was calling on behalf of Gharekhani. He made a number of calls to the undercover agents and made clear that he was aware of the nature of the goods to be shipped. He was informed by one of the undercover agents that it was illegal to ship items from the United States without a licence and that the agent was unable to get one (which was not incitement but a reminder of illegality). His response was that he could ship the items from the United Kingdom or the agent could ship them to Iran via Dubai, and that he had shipped night vision and other equipment that he had received from the United States to Iran the previous month and did not encounter any problems. He volunteered that the US company he had shipped them from did not know he was going to ship them to Iran, and that when items were shipped to the United Kingdom he changed the shipping labels for shipment to Iran. He sent an email to the undercover email account requesting details in order to open a letter of credit. He was sent an email reminding him that it was not legal to send the military items without a licence. His reply was that he was not authorised to provide any money in advance and that if a letter of credit was not opened for the transaction, the undercover agent could bring the goods to London to receive the payment. He sent a number of emails to the undercover email account in an effort to progress the transaction. He appeared to be keen to receive the goods. The same was true of the meeting in London on 17 August 2006.

In short, it is submitted that both Tajik and Gharekhani were enthusiastic purchasers of prohibited equipment, intending to send it to a prohibited destination; and that whilst this was indeed a sting operation, there was no entrapment.

Mr Perry further submitted that the recording of the meeting on 17 August 2006 was essential to this type of operation, for which an unassailable record is needed, but that it raises no argument of abuse of process. If there were material that ought to be disclosed, it would have been disclosed.

If there is no basis for the suggestion of entrapment or other abuse of process, then Mr Perry submits that no question can arise of additional disclosure and that the district judge was right to decline to order such disclosure.

In her written judgment, the district judge directed herself by reference to Tollman as to the general approach she should adopt towards the issue of abuse of process. She held that the conduct of the undercover agents, if established, was not capable of amounting to entrapment or abuse. In relation to the recording of the meeting of 17 August 2006, she said that it was not of itself sufficient to support a finding of abuse of process. The fact that there might be legal argument as to its admissibility in an English court did not make its existence as potential evidence in the United States an abuse of the court’s process. As to the extent of disclosure, she held that there was no proper basis to suggest that matters which fundamentally undermined the US Government’s case had deliberately been withheld. Although there were discussions about exports from the Netherlands, it was clear from the contents of the request that Tajik and his co-conspirator intended the goods to be exported from the United States. The US Government was not required to include in a request for extradition all material in its possession. There was a duty of candour and there was nothing to suggest that the Government was unaware of its duty or had not been candid. In view of her findings on those and other matters relied on as constituting an abuse of process, she held that there was no requirement to consider whether there were reasonable grounds for believing that such conduct might have occurred nor to call upon the requesting state to provide any further information or evidence.

Mr Perry submits that the district judge was absolutely correct in her analysis. I accept that submission, together with the detailed submissions summarised above which underlie it. In my view the conduct of the undercover agents as disclosed by the available evidence fell well short of entrapment amounting to an abuse of process, as explained in Jenkins and Benbow by reference in particular to R v Looseley and Teixera de Castro v Portugal. Their conduct was neither improper nor did it amount to the incitement or instigation of crime. It cannot be said in this case that the offending was the product entirely of incitement. On the contrary, the undercover officers responded to, and provided opportunities for, unlawful activity initiated by Gharekhani and Tajik themselves.

As to the London meeting, Mr Jones’s submission that what occurred required authorisation pursuant to ss.26-29 of the Regulation of Investigatory Powers of Act 2000 gives rise to difficulties which I think it unnecessary to try to resolve. Even on the assumption that authorisation was required and that it was not obtained, I am not satisfied that what occurred was capable of constituting an abuse of process or of reinforcing an argument as to abuse of process. It may affect the admissibility of the relevant evidence, but that is a very different issue which will fall for determination by the US courts if Tajik’s extradition is ordered. It cannot in my view provide a valid ground for refusing to extradite him.

Since there is no reason to believe that an abuse of process may have occurred, the district judge was clearly right not to call upon the US Government to provide further information or evidence. She was entitled to proceed on the basis of the evidence before her and to reach the conclusions she did on that evidence.

For those reasons I reject Mr Jones’s primary submission concerning abuse of process.

I can deal very briefly with a secondary point in relation to abuse of process, which was covered at length in Mr Jones’s skeleton argument but only lightly in his oral submissions. It relates to the guidance agreed between Her Majesty’s Attorney General and the Attorney General of the United States of America for handling criminal cases with concurrent jurisdiction. I have dealt fully with the guidance in the context of Ahsan’s application for judicial review. In relation to Tajik, too, it is contended that there was a failure by the UK authorities to consider the guidance. In his case, however, the argument is advanced not in the discrete context of judicial review but in the context of his extradition appeal, where it is said that the extradition proceedings constitute an abuse of process by virtue of the failure to consider the guidance. In order to try to give substance to the argument, Mr Jones has had to contend before this court (contrary, it would seem, to the position taken before the district judge) that the matters alleged against Tajik could have founded a prosecution in this country.

In relation to Tajik, as in relation to Ahsan, I am satisfied that the guidance is inapplicable because there has been no investigation of his case in this country and the Director of Public Prosecutions has at no time been seized of the case as prosecutor. Even if the guidance had applied and there had been a failure to consider it, the failure would not be capable of rendering the extradition proceedings an abuse of process. The district judge made no finding on the former point but dismissed Mr Jones’s argument on the latter, stating that “[n]o basis has been established for a finding that the non-consideration of the Guidelines in this case at this stage is capable of being a deliberate manipulation and abuse of the process of this court”. In my judgment she was correct so to find, but her decision can be upheld on the additional ground that, as I have indicated, the guidance did not apply to this case at all. It is unnecessary in the circumstances to decide whether the matters alleged against Tajik could have founded a prosecution in this country.

By s.79(1)(b) and (3), a judge must order the discharge of a requested person if his extradition to the category 2 territory is barred by “extraneous considerations”. These are defined by s.81:

“A person’s extradition to a category 2 territory is barred by reason of extraneous considerations if (and only if) it appears that –

(a)

the request for his extradition (though purporting to be made on account of the extradition offence) is in fact made for the purpose of prosecuting or punishing him on account of his race, religion, nationality, gender, sexual orientation or political opinion, or

(b)

if extradited he might be prejudiced at his trial or punished, detained or restricted in his personal liberty by reason of his race, religion, nationality, gender, sexual orientation or political opinion.”

It was argued on Tajik’s behalf before the district judge that both paragraph (a) and paragraph (b) of s.81 were satisfied. The district judge rejected both limbs of the argument. In the appeal before us, Mr Jones did not seek to pursue paragraph (a) but limited his submissions to paragraph (b).

The burden is on an appellant to show that a bar is made out. For that purpose he must show a “reasonable chance” or “serious possibility” of prejudice: Fernandez v Government of Singapore [1971] 1 WLR 987, 994.

Mr Jones points to the fact that Tajik is an Iranian national and a Muslim with a long career of service for the Iranian Government, including his time as ambassador in Jordan. The United States and Iran have no direct diplomatic relations. It is said that the United States regards itself as at war with Iran, as part of its “war on terror”. After the terrorist attacks of September 2001, President Bush designated Iran as part of an “axis of evil”. Statements from the President downwards show that the United States regards Iran as a terrorist state and is very hostile to anyone connected with the Iranian state. The United States is pursuing a policy of targeting those within the Iranian Government and its supporters.

In support of those submissions, Mr Jones referred to the evidence of Mr Zagaris as given in his written report and in his oral evidence at the hearing before the district judge. In his oral evidence Mr Zagaris said that the 1979 hostage crisis had coloured, very negatively, the perception of Iran in the United States and that over the last few years “there has been hysteria precipitated by almost daily news from the highest political leaders in the US”. Mr Jones took us to various press cuttings (forming part of a large bundle of such material) to illustrate the point.

It is submitted that there is a very real risk that Tajik will be treated as a terrorist, if not a threat to national security, because of his status as an Iranian, Muslim and former Iranian government official; and a significant risk that that he will face discriminatory treatment. He will be prejudiced when it comes to bail, which will be refused since he is charged with crimes against US security, he has no ties with the local community and he holds an Iranian passport. His status also has the potential of jeopardising his right to a fair trial, even if he is not designated as a terrorist and removed from the normal criminal justice system. Mr Zagaris’s report refers to many cases in which people of Middle Eastern descent have been subjected to special discriminatory treatment within the US criminal justice system. Tajik’s status puts him at risk of special administrative measures which adversely affect his freedom of communication with his lawyers (attorney/client privilege); a fortiori, if he is treated as a terrorist. There is a risk that a jury will be prejudiced against him. The US Government will assert that he should not have access to classified material relevant to his defence of entrapment. Because of the lack of diplomatic relations between the United States and Iran, he will be unable to obtain evidence from Iran under letters rogatory: such evidence would likewise go to the defence of entrapment. If he is convicted, the US Government will seek, in view of his status, to have imposed as harsh a sentence as possible, and he will probably be confined in a high security institution, which will be particularly harsh for him. Further, because of his status and likely treatment, he will be under considerable pressure to plead guilty and to provide “co-operation” to the US Government.

The district judge did not find that there was evidence sufficient to establish a reasonable chance or serious possibility of discriminatory prosecution or prejudice within the meaning of s.81. She reached that conclusion without the benefit of any diplomatic assurances from the US Government, which adopted the position that such assurances were unnecessary in the case. Subsequently, as a result of representations to the Secretary of State contrasting the position in Tajik’s case with the giving of assurances in other cases, such assurances have been provided. A diplomatic note dated 13 September 2007 from the US Embassy in London reads:

“The Embassy of the United States of America at London, England, presents its compliments to Her Majesty’s Principal Secretary of State for Foreign and Commonwealth Affairs and has the honor to refer to Note No.058 dated September 8, 2006, requesting the extradition of Nosratollah Tajik to the United States of America to stand trial on terrorist related charges.

The Government of the United States assures the Government of the United Kingdom that upon extradition to the United States, Nosratollah Tajik, will be prosecuted before a Federal Court in accordance with the full panoply of rights and protections that would otherwise be provided to a defendant facing similar charges. Pursuant to his extradition, Nosratollah Tajik will not be prosecuted before a military commission, as enabled by the Military Commissions Act of 2006; nor will he be criminally prosecuted in any tribunal or court other than a United States Federal Court; nor will he be treated as an enemy combatant.”

The reference to Tajik standing trial “on terrorist related charges” was at odds with the case presented by the US Government before the district judge and was corrected in a further diplomatic note, dated 30 November 2007, which referred to the earlier note and stated:

“In that note, the Embassy inadvertently referred to the charges for which Tajik’s extradition was sought as ‘terrorist related charges’. The Embassy wishes to clarify that the only charges for which Tajik’s extradition is sought are those referenced in Note No.58, dated September 8, 2006, which requested the extradition of Tajik and noted that he is wanted to stand trial in the US District Court for the Northern District of Illinois … for two offenses ….”

Mr Jones seeks to attach significance to the original reference to “terrorist related charges” and to the fact that the clarification, whilst saying that the reference was inadvertent, does not state that the charges are not terrorist related. He submits that the assurances contained in the diplomatic note are in any event very limited and provide no protection against what will happen to Tajik in practice. They are therefore of no value in assessing the factual question posed by s.81(b).

For the US Government, Mr Perry points to the rejection by the court in Ahmad and Aswat v Government of the United States of America of the appellants’ contentions that they would be subject to treatment contrary to s.81(b) if they were extradited to the United States. In particular, it was held that the imposition of special administrative measures, were it to occur, would not result in the appellants being prejudiced in their trial. In the course of his judgment Laws LJ referred to the right to a fair trial which is vouchsafed by the US Constitution (para 95) and to the appellants’ rights and attorney/client privilege under the Sixth Amendment (para 96). He also stressed the weight to be placed on the US Government’s diplomatic notes and treaty obligations. At para 75 he said that there was no instance of any assurance given by the United States, as the requesting state in an extradition case, having been dishonoured.

As to the various matters of potential prejudice raised by Mr Jones by reference to Mr Zagaris’s report, Mr Perry’s detailed responses include the following. It is apparent from Mr Zagaris’s report that the court will take into account all the relevant considerations when deciding whether or not to grant bail; and there is no evidence that the procedures will be applied in a discriminatory way. Mr Zagaris accepted in his oral evidence that the US Constitution guarantees a right to a fair trial and that there is nothing in the request to suggest that this is not a bona fide prosecution. Mr Zagaris also referred to various mechanisms which exist to protect the defendant against prejudice during the trial. The concerns about attorney/client privilege are premised on the application of special administrative measures, which is itself speculative; but it is from Ahmad and Aswat that no prejudice within s.81(b) would be caused even if special administrative measures were imposed. As to the suggestion that the absence of a procedure for letters rogatory would deprive Tajik of relevant evidence, the fact is that Tajik has not said what his defence is (other than the broad allegation of entrapment) or what evidence he would be prevented from obtaining in Iran; Gharekhani has been described as an old friend and there is nothing to show that Gharekhani’s evidence is beyond Tajik’s reach; and the suggestion that evidence would be unavailable is entirely speculative. As to the alleged severity of any sentence imposed following conviction, Mr Zagaris accepted in his oral evidence that the same sentencing guidelines would apply to Tajik as to any other person, including a US national. It is not known where Tajik would be detained but there is no evidence that conditions at any facility would be inappropriate. The media reports relied on by Mr Jones are of a very general nature and do not show a risk to Tajik: political rhetoric does not translate into discriminatory treatment of individuals before the courts or while in detention.

As to the assurances given in the diplomatic note, Mr Perry points out that the wording is identical to that contained in the relevant part of the diplomatic note issued in respect of Ahmad, as set out at para 25 of the judgment in Ahmad and Aswat. He submits that the contention advanced by Mr Jones in relation to the inadvertent inclusion of reference to “terrorist related charges” in the first note seeks illegitimately to impugn the good faith of the US Government. A similar contention in Ahmad and Aswat that the wording of the diplomatic note in Ahmad’s case was “carefully chosen” so as to conceal the true intentions of the US Government was described as a very serious allegation of bad faith and was roundly rejected (para 65). Mr Perry submits that in this case there is no reason to treat the original reference to “terrorist related charges” as anything other than an inadvertent error and, more generally, that there is no reason to believe that the assurances were given otherwise than in good faith or that the United States will not abide by them.

In my judgment, the district judge was right to reject Tajik’s case under s.81(b) on the evidence before her; and the additional material now available in the form of the diplomatic note supports the decision she made. It is true that there is, on the evidence, a general climate of political hostility towards Iran in the United States. But the evidence does not show that this would be carried through to the court process so as to create a serious possibility that Tajik “might be prejudiced at his trial or punished, detained or restricted in his personal liberty by reason of his race, religion, nationality … or political opinion” within s.81(b). The diplomatic note is relevant as confirming that he will be prosecuted before a Federal Court rather than a military commission or other tribunal or court, and that the prosecution will be “in accordance with the full panoply of rights and protections that would otherwise be provided to a defendant facing similar charges”. Moreover, the note is backed up by the safeguards afforded by the US Constitution. There is nothing to support the contention that Tajik will be treated as a terrorist. The charges he faces are not terrorist-related and I attach no significance to the reference to “terrorist related charges” in the original diplomatic note: on a fair reading of the later note, and in a context where the good faith of the US Government is to be assumed, I have no difficulty in treating the original wording as an inadvertent error. I accept the various detailed points made by Mr Perry in relation to the evidence of Mr Zagaris and the case advanced by Mr Jones. I do not consider that Mr Zagaris’s evidence is sufficient to establish a case of prejudice under s.81(b).

This part of the case relates to the decision of the Secretary of State rather than the district judge. One of the matters that the Secretary of State must consider, pursuant to s.93(2)(b) of the 2003 Act, is the issue of specialty. It is provided in s.95 that:

“(1)

The Secretary of State must not order a person’s extradition to a category 2 territory if there are no specialty arrangements with the category 2 territory.

…

(3)

There are specialty arrangements with a category 2 territory if (and only if) under the law of that territory or arrangements made between it and the United Kingdom a person who is extradited to the territory from the United Kingdom may be dealt with in the territory for an offence committed before his extradition only if –

(a)

the offence is one falling within subsection (4), or

(b)

he is first given an opportunity to leave the territory.

(4)

The offences are –

(a)

the offence in respect of which the person is extradited;

(b)

an extradition offence disclosed by the same facts as that offence, other than one in respect of which a death penalty could be imposed;

(c)

an extradition offence in respect of which the Secretary of State consents to the person being dealt with;

(d)

an offence in respect of which the person waives the right that he would have (but for this paragraph) not to be dealt with for the offence.”

In written representations to the Secretary of State, it was contended on Tajik’s behalf that no sufficient specialty arrangements were in place. Reliance was placed on part of the report of Mr Zagaris which was said to deal with the risk that Tajik would be dealt with in circumstances that breached the speciality rule if he were extradited.

In the relevant part of the report (paras 47-75, though an erroneous reference was given in the representations), Mr Zagaris said that the maximum sentence for the two counts faced by Tajik under the extradition request would be 20 years’ imprisonment and a $2 million fine. He added, however, that “it often happens that there may be a superseding indictment notwithstanding the principle of specialty” and that if the superseding indictment expanded the charges, then Tajik would potentially face a longer sentence. On several occasions the US Government has issued a superseding indictment charging an extradited person with new offences of the same type as the offences for which he was extradited, or with additional offences closely related to the offences for which extradition was granted. In general, in the Federal Courts of Appeal, two lines of cases have developed in response to these situations. In the first, the courts have attempted to place themselves in the position of the countries that extradited the defendants and have endeavoured to ascertain whether those countries would have considered the offence actually tried as “separate” from the offence for which the defendant was extradited. In the second, the US Government, either on its own or at the discretion of the trial court, has solicited the extraditing country for clarification of the extradition warrants or orders, or for consent to prosecute to the extradited person for additional offences. Mr Zagaris referred to a number of cases showing the various approaches that have been taken by the US courts in practice.

Later in the same part of his report, Mr Zagaris referred to the way in which sentence would be calculated, concluding at para 75 that for Tajik to receive a sentence of more than 20 years would require a superseding indictment and additional charges.

The letter of 15 June 2007 in response to Tajik’s representations stated that the Secretary of State was “satisfied that there are adequate arrangements in place to safeguard Mr Tajik’s rights, because Article 18 of the 2003 US-UK Extradition Treaty, which came into force on 26 April 2007, applies to Mr Tajik’s extradition. The US authorities consider themselves bound by the speciality provision contained in Article 18 of that Treaty (just as they considered themselves bound by the speciality provision contained in Article XII of the predecessor 1972 Treaty)”. The letter went on to refer to Mr Zagaris’s affidavit and to the decision of the Divisional Court in Welsh and Thrasher v Secretary of State for the Home Department and Government of the United States of America [2006] EWHC 156 (Admin) in which a challenge to the specialty arrangements was rejected. It concluded that there was no support for the conclusion that Tajik would be dealt with in breach of the specialty rule if he were extradited.

In Welsh and Thrasher the essential contentions of the appellants were that the United States would act in breach of the specialty rule by seeking and obtaining an indictment which superseded the one on which the extradition request was based, and in various other ways. Underlying the submissions was a general theme to the effect that the United States habitually violated the spirit and purpose of the specialty rule. Ouseley J, giving the leading judgment with which Laws LJ agreed, said that he did not regard that general submission as remotely justified (para 35). He proceeded to analyse a series of decisions of the US courts, including all those referred to by Mr Zagaris. His conclusions in relation to them included the following:

“82.

Overall, I consider that these decisions are consistent. They focus on the question of consent to extradition ….

…

84.

The US courts do not infer consent merely because there is silence. They do not turn a blind eye to what are obvious problems in the sending state’s known attitude, whether from past extradition requests or from the particular case or Treaty involved. Rather, it seems clear to me, they adopt a realistic assessment of the sending state’s attitude, in recognition of the specialty doctrine as a principle of international comity and out of respect for a foreign state’s sovereignty ….

85.

There is nothing in the cases which would justify the conclusion that the US Government or Courts would not respect the express limits in the UK-US Treaty or in the 2003 Act or in any judgment of this Court, even if they might conclude that for other states there would be no objection in parallel circumstances. There is nothing in the cases which suggests that, if a country requires affirmative consent in circumstances in which for other countries the US Courts would infer consent, the US Courts would ignore that requirement. There have been no cases cited to us in which a trial has taken place on the basis of inferred consent in a UK case, let alone one in which there was arguably any doubt as to the position of the UK or as to the scope of the extradition order.

86.

The application of the specialty rule in the US Courts is thus affected by the known views of the sending state. If a superseding indictment alleged offences which were not covered by the terms of the 2003 Act, the US authorities would not prosecute in breach of those provisions. The provisions of s.95 are satisfied in relation to prosecutions.

87.

Where the consent of the Home Secretary is required under s.95(4)(c) for prosecutions which fall outside the scope of s.95(4)(a), (b) and (d), that consent is not to be inferred. It must be expressly given on the proper construction of s.95. The absence of such consent to a prosecution for which it is necessary would mean that the trial would be in breach of the specialty rule. But I do not see any basis for supposing that that requirement would be ignored by the US authorities. Instead I see a conscientious respect for what the sending state and its Courts say ….”

That decision was followed in R (Bermingham) v Director of the Serious Fraud Office (see above), in which again it was held that the deployment of superseding indictments in the United States for the trial of extradited defendants did not amount to a breach of the specialty rule (see in particular paras 139-144). That the US authorities would adhere to its Treaty obligations and would not violate the specialty rule was re-affirmed in Ahmad and Aswat v Government of the United States of America, in particular at paras 79and 101-102.

Despite the weight of those authorities, Mr Jones ventures to submit that there is a real risk of the specialty rule being infringed in Tajik’s case by the bringing of a superseding indictment. He says that the Secretary of State’s letter failed to have proper regard to the evidence of Mr Zagaris as to the existence of such a risk.

In my view Mr Keith, for the Secretary of State, was correct to describe that submission as factually and legally unsustainable. Mr Zagaris did not assert in his report that a superseding indictment would or might have the effect of breaching the specialty rule; and the cases to which he referred, as shown by the analysis in Welsh and Thrasher, would not support any such suggestion. The focus of the relevant part of his report was not on breach of the specialty rule but on the length of sentence that might be imposed on Tajik if he were convicted. Moreover, Mr Zagaris conceded in his oral evidence before the district judge that superseding indictments were “a speculative matter”. In any event, there is nothing in Mr Zagaris’s evidence that is capable of undermining the consistent line of authority in this court to the effect that the US authorities and courts will respect the specialty rule and that the specialty arrangements with the United States meet the requirements of s.95.

There was a suggestion in Mr Jones’s skeleton argument, not pursued in his oral submissions, that the specialty rule was also at risk of being breached by reason of Tajik being declared an enemy combatant. That particular argument is disposed of by the terms of the diplomatic note of 13 September 2007, which provides an express assurance that Tajik will not be treated as an enemy combatant, as well as by the general considerations set out above.

The final issue is whether the district judge ought to have ordered Tajik’s discharge under s.87 of the 2003 Act on the ground that his extradition would not be compatible with his Convention rights, in particular his article 8 right to respect for his private and family life. Reliance is placed on his personal and family circumstances, his poor health, the further risk to his mental and physical condition and even to his life if he were extradited, the risk that he would be subject to special administrative measures in detention, and the fact that he would be remote from his family and that it would be difficult for them to visit him. His wife gave evidence that there had been attacks upon his home and his car by persons responding to publicity given to his case in Durham. It is said that those attacks and the social consequences to the family in the area where they live must inevitably have had a serious impact on his health, and that separation from his family will be even more oppressive. Such interference with his article 8 rights cannot be necessary, in circumstances where he could be prosecuted in the United Kingdom in respect of the conduct alleged against him. Mr Jones asks the rhetorical question: if article 8 does not apply to these facts, to what case could it apply?

The district judge found that there was nothing exceptional about his circumstances to make extradition disproportionate under article 8(2), and that the possibility that he could be prosecuted in the United Kingdom did not amount to an exceptional circumstance.

The district judge approached the matter in accordance with the test of exceptionality laid down in the case-law as it stood at the time of her decision. That test has since been modified in the light of the decision of the House of Lords in Huang v Secretary of State for the Home Department [2007] UKHL 11, [2007] 2 WLR 581. The approach now to be adopted in an extradition case was expressed as follows in Jaso, Lopez and Hernandez v Central Criminal Court No.2, Madrid [2007] EWHC 2983 (Admin), at para 57:

“What is required is that the court should decide whether the interference with a person’s right to respect for his private or (as the case may be) family life which would result from his or her extradition is proportionate to the legitimate aim of honouring extradition treaties made with other states. Thus, although it is wrong to apply an exceptionality test, in an extradition case there will have to be striking and unusual facts to lead to the conclusion that it is disproportionate to interfere with an extraditee’s article 8 rights.”

Mr Jones accepted that, although the district judge applied what has since been shown to be the wrong test, there is not a major difference between the test she applied and that in Jaso.

For my part, I am satisfied not only that the district judge would have reached the same conclusion had she applied the test in Jaso, but also that she would have been right to do so. I have reached the same conclusion, applying the test in Jaso to the facts of the case. It is true that the interference with Tajik’s article 8 rights will be substantial, but in my view it is proportionate to the legitimate aim of honouring the United Kingdom’s extradition treaty with the United States. Even if Tajik could be prosecuted in the United Kingdom, the existence of that possibility would not render extradition disproportionate. What is said in Jaso about the need for “striking and unusual facts” to lead to the conclusion that extradition would be disproportionate does not constitute a separate legal test but recognises the practical reality that article 8 will rarely provide a ground for refusing extradition. I do not accept, however, that the facts of this case are sufficiently striking and unusual, or that Mr Jones is justified in suggesting by his rhetorical question that article 8 must provide a ground for refusing extradition in this case if it is ever to do so. I therefore reject the submissions made by Mr Jones under s.87 of the 2003 Act.

For the reasons set out above, I would dismiss Tajik’s appeals against the decisions of the district judge and the Secretary of State.

I agree.