Khan v Government of the United States of America

On 1 April 1999 a grand jury in Baltimore, Maryland, United States of America returned an indictment charging the appellant and his co-accused, Sarfarz Patel with offences of conspiracy to export cocaine to the United Kingdom, an attempt to export cocaine to the United Kingdom, conspiracy to distribute and to possess with intent to distribute cocaine in the United Kingdom, an attempt to distribute and to possess with intent cocaine in the United Kingdom and money laundering. The Government of the United States of America requested his extradition, a request governed by the provision of Part 2 of the Extradition Act 2003 (“the Act”) and he was arrested on 6 May 2009 pursuant to a provisional arrest warrant issued by the City of Westminster Magistrates’ Court. The extradition hearing took place on 5 and 6 October 2009 at the City of Westminster Magistrates’ Court before District Judge Caroline Tubbs.

At the extradition hearing, no issues were raised in respect of the requirements of Section 78 (2) and (4) (a) (b) & (c) of the Act. The issues raised on behalf of the appellant were:

In her Ruling, handed down on 2 November 2009, the District Judge rejected each submission. She said the judgment in Symeou emphasised that the abuse of process jurisdiction does not extend to considering the misconduct or bad faith of the police of the requesting state, that it is a residual jurisdiction in extradition proceedings and so its principles are engaged only when the issues raised cannot be dealt with by the statutory protections contained in the Act (in this case, in section 87 of the Act); she considered the submissions on entrapment on their merits, concluding that there was abundant evidence that the appellant was deeply implicated in the conspiracy to obtain, buy and transport illicit drugs from the United States of America to the United Kingdom and concluded, on the evidence, that the conduct of Baltimore police officers, if established, was not capable of amounting to an abuse of process; she concluded that the entrapment defence is available to the defendant in the courts of Maryland, that the issue of entrapment would be properly and comprehensively catered for in the trial court in Maryland. and so his Article 6 rights would not be denied him; that there was no evidence that the Government of the United States of America was acting in anything but good faith or that it had failed in its duty of candour and good faith in the disclosure of the material.

The District Judge ordered the appellant to await the decision of the Secretary of State concerning his extradition to the United States of America. By a decision letter dated 23 December 2009, the Secretary of State ordered the appellant’s extradition. The appellant then appealed against the decision of the District Judge; there were delays in the fixing of the date, but an order was made it be heard no later than 31 March 2010, as I explain at paragraph 36.

Mr Edward Fitzgerald QC submitted :-

Abuse of Process

The Abuse of Process jurisdiction

It is necessary to consider in some detail the jurisdiction at an extradition hearing. The Act created a new extradition regime – Part 1, which has its genesis in the Council Framework Decision of 2002 on the European Arrest Warrant, contains provisions dealing with extradition from the United Kingdom to Category 1 territories, in effect countries of the European Union which operate the European Arrest Warrant and Part 2 deals with Category 2 territories of which the United States of America is one. Each part makes very similar provisions for the judges’ powers at an extradition hearing in England and Wales.

In Part 2 extradition proceedings, the District Judge “has the same powers (as nearly as maybe) as a Magistrates’ Court would have if the proceedings were the summary trial of an information against the person whose extradition is requested” (section 77(1)). The District Judge must first be satisfied that the person arrested and alleged to be the person whose extradition is requested is the person before the court and that the documents sent to the District Judge by the Secretary of State consist of or include those identified in section 78(2) of the Act - there is no issue in the present case as to the arrest and identity of the appellant or that the requirements of section 78 (2) were satisfied. The District Judge has then to consider whether that person’s extradition is barred by reason of the rule against double jeopardy, extraneous considerations, the passage of time and hostage-taking considerations (sections 79-83). If there is no such bar, he must then decide “whether there is evidence which would be sufficient to make a case requiring an answer by the person if the proceedings were the summary trial of an information against him” (section 84(1)) and if so whether the person’s extradition would be compatible with the requested person’s Convention rights within the meaning of the Human Rights Act 1998 (section 87(1)) and whether the physical or mental condition of the person is such that it would be unjust or oppressive to extradite him (section 91(2)). If there are no grounds for refusing the application, the judge must send the case to the Secretary of State for his decision whether the person is to be extradited (section 92(1)).

In R (Bermingham & Ors) v. Director of the Serious Fraud Office [2006] EWHC 200 (Admin) at paragraph 97 Laws LJ said: -

“I should not leave the point without considering the nature of the juridical exercise involved in concluding, as I would, the judge conducting an extradition hearing under the 2003 Act possesses a jurisdiction to hold the prosecutor is abusing the process of the Court … Now it is plain that the judge’s functions under the 2003 Act, and those of the Magistrate under the predecessor legislation, are and were wholly statutory. He therefore possesses no inherent powers. But that is not to say that he may not enjoy an implied power. The implication arises from the express provisions of the statutory regime which it is his responsibility to administer. It is justified by the imperative that the regime’s integrity must not be usurped”.

In R (Government of the United States of America) v. Bow Street Magistrates Court (Tollman & Tollman) [2006] EWHC 2256 (Admin) at paragraph 82, Lord Phillips CJ endorsed that conclusion and continued at paragraph 83:

“The 2003 Act places a duty on the judge to decide a large number of matters before acceding to a request for extradition. To these should be added the duty to decide whether the process is being abused, if put on the enquiry as to the possibility of this. The judge would usually, though not inevitably, be put on enquiry as to the possibility of abuse of process by the allegations made by the person whose extradition is sought”.

The implication of a residual abuse of process jurisdiction in extradition proceedings is therefore clear but what of the scope of that jurisdiction? In Symeou (above) at paragraphs 33 and 34, Ouseley J said: -

“The focus of this implied jurisdiction is the abuse of the requested states’ duty to extradite those who are properly requested and who are unable to raise any of the statutory bars to extradition. The residual abuse jurisdiction identified in Bermingham and Tollman concerns abuse of the extradition process by the prosecuting authority. We emphasize those latter two words. That is the language of those cases. It is the good faith of the requesting authorities which is at issue because it is their request coupled with the perverted intent and purpose which constitutes the abuse. If the authorities of the requesting state seek the extradition of someone for a collateral purpose or when they know that the trial cannot succeed, they abuse the extradition processes of the requested state. 34. The above jurisdiction of the requested state does not extend to considering misconduct or bad faith by the police of the requesting state in the investigation of the case or the preparation of evidence for trial”.

The availability of the defence of entrapment in the United States

I can consider Mr Fitzgerald’s submissions as to abuse of process briefly. First it is necessary to consider whether the appellant risks a flagrant denial of a fair trial in the courts of Maryland applying the test set out in R (Ullah) –v- Special Adjudicator [2004] UKHL 26 at paragraph 24 per Lord Bingham of Cornhill. In a supplemental and unchallenged affidavit, Mr Christopher Romano, an Assistant United States Attorney for the District of Maryland said that both the United States Supreme Court and the Fourth Circuit Court of Appeals have held that entrapment is an affirmative defence that has “two related elements: Government Inducement of the crime and a lack of predisposition on the part of the defendant to engage in the criminal conduct”. The initial burden of raising an entrapment defence is on the defendant who must adduce some evidence, “more than a scintilla” that the government or its agents induced him to commit the offence and that the burden then shifts to the government to prove beyond a reasonable doubt that the defendant was predisposed to commit the crime. Evidence that government agents provided only the opportunity to commit a crime and that a defendant availed himself of that opportunity does not constitute a defence. It follows that the appellant’s Article 6 rights will not be breached because he would have the opportunity in the courts of Maryland to raise a defence of entrapment which the prosecution will have to rebut.

Authority is clear – the abuse of process jurisdiction is residual in nature; it applies only when the issues raised cannot be addressed by the statutory protections (see above). It follows there are no grounds for distinguishing Symeou.It matters not that the misconduct alleged took place in this jurisdiction rather than the United States. The submission that the protection afforded by section 87 is on the basis of a prospective flagrant denial of justice at trial in the requesting state and has no application to the misuse of power by the Baltimore police officers in entrapping the defendant is, if I may say so, somewhat artificial. The defence of entrapment will be available to the appellant in the courts of Maryland where it can be properly investigated as part of the fair trial process catered for by section 87. It is a relevant consideration that the right to a fair trial is guaranteed by the Constitution of the United States of America.

The law of entrapment in England and Wales

Even so, as there is an implied abuse of process jurisdiction under the Act, like the District Judge, I have considered the allegations of entrapment. In Looseley [2001] UK HL 53 the House of Lords considered the defence of Entrapment. In his opinion, Lord Nichols of Birkenhead said: -

“[23]... On this a useful guide is to consider whether the police did no more than present the defendant with an unexceptional opportunity to commit a crime. I emphasise the word “unexceptional”. The yardstick for the purpose of this test is, in general, whether the police conduct preceding the commission of the offence was no more than might have been expected from others in the circumstances. Police conduct of this nature is not to be regarded as inciting or instigating crime or luring a person into committing a crime…

[25] Ultimately the overall consideration is always 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 following comments may be made on some circumstances which are of particular relevance.

[26] The nature of the offence. The use of pro-active techniques is more needed and hence more appropriate in some circumstances than others. The secrecy and difficulty of detection and the manner in which the particular criminal activities carried on are relevant consideration.

[27] The Reasons for the particular police operation. It goes without saying that the police must act in good faith and not, for example, as part of a malicious vendetta against an individual group of individuals. Having reasonable grounds for suspicion is one way good faith may be established but having grounds for suspicion of a particular individual is not always essential. Sometimes suspicion may be centred on a particular place such as a particular public house. Sometimes random testing may be the only practical way of policing a particular trading activity.

[28] The nature and extent of police participation in the crime. The greater the inducement held out by the police and the more forceful or persistent the police overtures, the more readily may a court conclude that the police overstepped the boundary; their conduct might well have brought about commission of a crime by a person who would normally avoid a crime of that kind. In assessing the weight to be attached to police inducement, regard is to be had to the defendant’s circumstances, including his vulnerability. This is not because the standards of acceptable behaviour are variable. Rather this is a recognition that what may be a significant inducement to one person may not be so to another. For the police to behave as would an ordinary customer of a trade whether lawful or unlawful, being carried on by the defendant would not normally be regarded as objectionable.

[29] The defendant’s criminal record. The defendant’s criminal record is unlikely to be relevant unless it can be linked to other factors grounding reasonable suspicion that the defendant is currently engaged in criminal activity… .”

The Evidence in relation to entrapment

Mr Christopher Romano summarised the prosecution’s evidence in the case in an affidavit. That evidence was not challenged by the appellant who did not give evidence. In September 2007, an informer told US Law Enforcement Officers that Sarfarz Patel had inquired of the informer whether he had a source for narcotics in the United States. The informer in due course introduced Patel to an undercover Baltimore City Police Department Officer (“UC1”). On 8 December 2008, Patel (who was in the United Kingdom) telephoned UC1 in Maryland to say that he had a friend (the appellant) who was interested in purchasing 100 kilograms of cocaine and who wanted to meet UC1. Five days later, Patel telephoned UC1 in Maryland and put the appellant on the line. The appellant proposed a meeting with UC1. On 11 January 2009, Patel and UC1 had another telephone conversation during which Patel said the appellant wanted to purchase 100 kg of cocaine but first wanted to meet UC1. The following day, Patel informed UC1 that he was on his way to meet the appellant and UC1 told Patel that he could deliver 100 kg of cocaine but Patel and the appellant would have to provide 20% of the purchase price up front. Patel said that this would not be a problem but that UC1 would have to travel to the United Kingdom so that the appellant could meet him in person. Later that day, Patel called UC1 and put the appellant on the telephone; during the telephone conversation that followed, the appellant said that he was willing to purchase 100 kg of cocaine at £32,000 per kg but did not want to discuss the details on the phone and wanted to meet UC1 in person. On 22 January 2009, Patel told UC1 that the appellant had asked him to travel to the United States. On 31 January 2009, Patel met UC1 in Maryland. UC1 told him that he was willing to sell 100 kg of cocaine at a price of £31,000 per kg and Patel said that they were prepared to pay £32,000 per kg if UC1 would arrange for the transport of the cocaine from Baltimore to London. Patel said the appellant would pay “£500,000” up front with the balance in 3 days but that it was important for UC1 to meet the appellant personally. UC1 told Patel that his travel expenses would have to be paid before he would travel to the United Kingdom.

On 2 February 2009, UC1 provided Patel with his bank account details and told Patel to transfer the money for his travel expenses to his bank in Maryland. On 13 February 2009, Patel transferred or caused another to transfer $10,000 from Patel’s account in England. On 2 March 2009, UC1 and another undercover officer (“UC2”) travelled to the United Kingdom . On 3 March 2009 UC1 in a recorded telephone call, told Patel that he (UC1) had to return to the United States and that UC2, whom Patel had met previously in the United States would be available to meet with him and the appellant.

On 4 March 2009 UC2 met with Patel and the appellant at the Isis bar in London. The meeting was recorded. Patel and UC2 met initially alone at the bar; during their conversation, Patel informed UC2 among other things that the money wired for UC1’s travel expenses was actually the appellant’s money. Upon the appellant’s arrival, UC2 told him that it was his understanding that they (Patel and the appellant) wanted UC1 and UC2 to sell them 100 kg of cocaine and that the drugs would come directly from Baltimore to London. The appellant said that he wanted UC1 and UC2 to provide some of the drugs up front and UC2 said that they would do that as long as 20% of the purchase price was paid upfront. UC2 and the appellant then discussed different US locations where the money could be picked up and the appellant asked about the price. UC2 indicated that the price would be £32,000 per kg and the appellant said that was acceptable. At that point UC2 telephoned UC1 who spoke to the appellant and the appellant explained that he would send someone to pick up one or two pieces of the drug and he would then come for the remainder.

On 5 March 2009, Patel telephoned UC1 and told him the appellant wanted to work together and that he would take all the drugs UC1 had in the United Kingdom and that he would pay for 10 or 15 kg of cocaine. The following day, UC1 told Patel that he had 22 kg of cocaine in the United Kingdom and Patel said that he would send $50,000 or $60,000 for the 22 kg and that UC1 would have the remainder of the money later. UC1 agreed with this and Patel said that the funds would be transferred by Tuesday 10 March. On 8 March 2009, the appellant spoke to UC1 on the telephone and told him that everything was good and that he wanted to get together soon. The appellant explained that UC1 would have full payment after the appellant took possession of the 22 kg UC1 claimed he had in England. There were further conversations about payment and delivery and on 10 March 2009 Patel transferred $36,000 from his English bank account to UC1’s Maryland bank account. On 18 March 2009 Patel transferred another $18,000, for two payments constituting “upfront payments” towards the payment of 22 kg of cocaine which the appellant and Patel believed they were purchasing from UC1.

The appellant directed Patel to travel to the United States to meet UC1 and on 6 May 2009 Patel travelled to Maryland where he was arrested by US Law Enforcement Officers. Patel when interviewed admitted that he intended to travel to London with UC1 after the cocaine had been delivered to the appellant, that the appellant intended to pay UC1 the balance of the money owing for the cocaine after delivery and planned to sell the vast majority of the cocaine in London and elsewhere and that the appellant had agreed to pay him (Patel) £3,000 per kg for arranging the deal. Patel has since pleaded guilty.

In the meantime, UC2 had made arrangements to meet Khan in London to facilitate the arranged delivery of 22 kg of cocaine. At that meeting on 6 May 2009, the appellant was arrested by UK Law Enforcement officers.

The appellant did not give evidence in the Magistrates’ Court. In her judgment, the District Judge concluded:

“I have considered all the evidence put before me. There is clear evidence that this Defendant introduced himself into the ongoing drug trafficking conspiracy in December 2008 and thereafter willingly and actively acted in furtherance of the conspiracy and played a major organising and directorial role in the conspiracy. I do not find that the conduct of the law enforcement officers, if it is established, is capable of amounting to entrapment as defined in English Law nor is it capable of amounting to an abuse of process on that ground.”

Mr Fitzgerald submitted there is some uncertainty as to the evidence relied upon by the appellant in the Magistrates’ Court, but the evidence was identified both in the Skeleton Argument relied upon in the Magistrates’ Court and in the judgment of the District Judge. That evidence consisted of the affidavit and supplementary affidavit of Mr Romano, the FBI records of interviews of Patel, the appellant’s undated witness statement, the defence witness statements of James Saunders and of Sebastian Saville without ruling as to his status as an “expert”, the admissibility of his statement or the relevance or weight to be given to it. It was submitted, both in the Magistrates’ Court and in this Court that the evidence established entrapment and that the appellant lacked any skills, contacts, experience or knowledge as a drug trafficker such as might suggest he would have imported large amounts of cocaine in to the UK without being drawn in to the USA plot, instigated by an informer who had interests of his own to serve.

I have considered all this material. The interviews with Patel were clearly self-serving, although he did not raise the issue of entrapment; it seems from the statement of James Saunders (the appellant’s then solicitor) that Patel’s assertion that the appellant had substantial funds in Dubai was relied upon by the US Government when it opposed a bail application; in my judgement, the evidence of these interviews should be ignored for present purposes. In his witness statement, the defendant recounted conversations with the undercover officers; he was told a previous attempt to deal in drugs with a man called “Jay” had come to nothing; when he told them he had no means of getting the drugs from the USA to the UK, the undercover officer said he could arrange it; on 6 May, Patel had phoned him at least three times to encourage him to go to the meeting with UC2 at which he was arrested. It was submitted this evidence supported the allegation of entrapment – I observe that this evidence, even if reliable, does not raise any issue of entrapment; it is, in any event, of little weight because the appellant decided he would not give evidence about it .

Sebastian Saville, an executive director of Release, has worked in the drugs field since 1991. I am prepared, as was the District Judge, for present purposes to treat him as an expert witness. His evidence was that there were a number of features of the transactions between the appellant, Patel and the undercover officers which gave him concern; he said “only imaginary drugs” were involved and there is no evidence of the money required for their purchase; he said the transactions transgressed “a number of the golden rules” such as using telephones systems susceptible to interception; he said the price to be paid for the cocaine was well over twice what cocaine would have cost in London at that time and the “whole affair suggests amateurs who have perhaps watched too much TV”.

There is a fundamental presumption that a requesting state is acting in good faith and the burden of showing an abuse of process rests upon the person asserting such an abuse with the standard of proof on the balance of probabilities. In my judgement the evidence relied upon by the appellant and summarised above, taken at its highest, does not raise a suspicion of entrapment. The recorded conversations of the appellant with Patel and the undercover police officers provide evidence of his willing and active participation in the conspiracy. There was, as the District Judge concluded, “abundant evidence that the defendant was deeply implicated in the conspiracy”, more than sufficient to rebut the concerns of Mr Saville. Significant conversations, which were covertly recorded, demonstrate that the appellant was well aware he was dealing with large scale drug trafficking. On the material adduced in the Magistrates’ Court, I am satisfied the appellant failed to make out a case of entrapment.

Mr Fitzgerald applied for leave to rely on further evidence – the witness statement of Zainab Khan and evidence of the appellant’s assets within the jurisdiction (which were the subject of a restraining order dated 16 November 2009). For reasons to be given later in this judgment at paragraphs 49 and 50, I would refuse leave, but even if the evidence was admitted in this court the evidence does not establish or serve to establish the appellant’s allegation of entrapment. Zainab Khan was the girlfriend of Patel but no allegation of entrapment was made by Patel, who has pleaded guilty; she stated that she saw Patel meet up with the appellant twice, in March 2009 and two weeks later but she did not know what they were discussing. In her statement, she detailed the history of her relationship with Patel, his visits to the US, his limited means and her conversation with him when she visited him in prison in the US. The evidence of the appellant’s assets amounted to this – he has one identified bank account in this jurisdiction with a credit balance of £1,633.92 and has interests in but is not the registered keeper of a Porsche 911 and a BMW 535D, together valued at £44,000. I am unclear as to the relevance of the evidence of Ms Khan – Mr Fitzgerald made no submissions in that regard in his skeleton argument or in the course of his submissions – but it was submitted that the evidence of the appellant’s assets establishes he did not have the means to pay for the cocaine he was said to have agreed to buy and so provides further evidence of the alleged entrapment. I cannot accept that reasoning – the recorded conversations and the transfers of monies to the US provide evidence not only of some means but also of a determination to traffic in cocaine and so it does not follow that he did not have access to other funds.

Disclosure in relation to the activities of the US authorities in the UK

The criticism of the United States Government in the Magistrates’ Court, a criticism repeated in this Court, was that it had refused to answer a request for disclosure pursuant to the provisions of Part II of Regulation of Investigatory Powers Act 2000 [RIPA] of the authorisation to the Baltimore City Police Department officers to carry out an investigation within this jurisdiction and to confirm that the appropriate authorisations for telephone tapping and other surveillance methods from the authorities in this country had been obtained.

In her judgment, the District Judge said: -

“It is common ground that the Government is not required to include in a request for extradition evidence to support a prima facie case or all the evidential material in their possession. In fact the government in this case provided a great deal of material and has responded promptly and in detail to matters raised by the defendant in his defence statement. I reject the submission that the Government has wilfully failed to engage with the defendant’s case. All disclosure in these extradition proceedings will be partial and, therefore, there will be an element of selection in the disclosure that is made. This is not the case where the prosecutor knew that it did not have a real case but was pressing the extradition request for some collateral motive and accordingly tailored the choice of documents accompanying the request (see Bermingham (above) Laws LJ. at para 100).

There is no evidence that destroys or severely undermines the government case… Here there is no evidence at all, let alone possessing special force, that the government is acting in anything but good faith. I do not find that the disclosure of material by the government in this case fails in their duty of candour and good faith and I do not find that it is capable of amounting to an abuse of process.”

Since the extradition hearing, a request was made by letter dated 18 January 2010 for answers to the following questions:

A request was made to Thomas LJ that the United States be asked to provide the information prior to the hearing. Thomas LJ declined to make the order sought, but ordered, (1) that the application could be renewed at the oral hearing and (2) the United States should have the information available at the hearing in the event the court ordered its provision, so that there would be no need for an adjournment. The application was renewed at the hearing.

Mr Fitzgerald submitted that an undercover officer falls within the definition of “a covert human intelligence source” (section 26(8)), that authority may only be granted if necessary and proportionate (sections 28, 29 & 32) and absent such authority, the evidence would be inadmissible under UK law and excluded under the provisions of Police and Criminal Evidence Act 1984. He submitted that the information requested would lend weight to the appellant’s core submissions that his case should be tried in the UK.

In Tollman & Tollman (above) at para 85 and 86, Lord Phillips CJ said: -

“85.

Both our civil our and criminal procedures have complex rules in relation to disclosure of documents. In each of the cases before us the person whose extradition is being sought has persuaded the judge that he should make an order for disclosure. We do not consider that this was the appropriate course to take. Neither the rules governing disclosure in a civil action nor those governing disclosure in a criminal trial can be applied to an extradition hearing. Furthermore those rules form part of an adversarial process which differs from extradition proceedings. Where an order for disclosure is made, it requires one party to disclose documents to the other, not to the court. But where extradition is sought, the court is under a duty to satisfy itself that all the requirements for making the order are satisfied and that none of the bars to making the order exist.

86.

There is a further objection to ordering disclosure. The order will be made either against a judicial authority within the European Union or against a foreign sovereign state that is requesting the Secretary of State to comply with treaty obligations. In neither case would it be appropriate to order discovery”.

Ms Melanie Cumberland submitted, correctly, that the requesting state is not required to include in a request for extradition all the material in its possession but is required to disclose material which destroys or undermines its case: see Wellington –v- The Governor of Her Majesty’s Prison Belmarsh and the Government of the United States of America [2004] EWHC 418 (Admin) at paragraph 26. In Bermingham (above) Laws LJ. said: -

“98… Subject to an important qualification which I will explain, no finding of abuse can be justified (in a case like the present where the category 2 territory has been designated for the purpose of section 84) by the prosecutor’s refusal or failure to disclose evidential material beyond what was contained in the extradition request. The reason is straightforward. In such an instance, as I have shown, the prosecutor does not have to establish a case to answer. Evidence going to whether there is in fact a case to answer is therefore not irrelevant to the court’s task…

100.

I refer to an important qualification. It applies to… the prosecutor’s failure to give more disclosure… The prosecutor must act in good faith. Thus if he knew he had no real case but was pressing the extradition request for some collateral motive and accordingly tailored the choice of documents accompanying the request, there might be a good submission of abuse of process”.

In R (on the application of Syed Talha Ahsan) –v- the Director of Public Prosecutions and Government of the United States of America; Syed Talha Ahsan –v- Government of the United States of America and Secretary of State for the Home Department [2008] EWCA 666 (Admin), abuse of process was alleged on the ground of entrapment which involved a covert operation in London by US agents, which amounted to the conduct and use of covert human intelligence sources for which authorisation is required pursuant to section 26-29 of RIPA and the UK authorities declined, in response to requests by the defendant’s solicitors, to disclose whether the covert operation had taken place with their authorisation or approval. In his judgment, Richards LJ said:

“124 … 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. 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.

125 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”.

In Ahmad and Aswat –v-The Government of the United States of America [2007] HRLR 8, Laws LJ said:

“101 … There are two factors which constitute important and justified, obstacles to the appellant’s claims. The first is the starting-point: Kennedy LJ’s observations in Serbeh (Footnote: ¹) that “there is (still) a fundamental assumption that the requesting state is acting in good faith”. This is a premise of effective relations between sovereign States. As I have said the assumption may be contradicted by evidence; and it is the court’s plain duty to consider such evidence (where it is presented) on a statutory appeal under the 2003 Act. 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. The second obstacle is linked to the first. It is a general rule of the common law that the graver the allegation, the stronger must be the evidence to prove it”

There is no evidence whatsoever to suggest, let alone prove, that the respondent is acting or has acted otherwise than in good faith or not complied with its duty of candour. The issue of RIPA authorisation (which may be relevant to the admissibility of the evidence) is otherwise irrelevant for the purposes of the extradition proceedings. There is no substance in any of the submissions of Mr Fitzgerald; the decision of the District Judge was correct and I would not require the respondent to make the disclosure requested.

This Court, while in no way critical of the respondent’s decision to not provide answer to the questions posed in the letter of 18 January 2010 (above) invited the respondent whether it would consider informing the Court whether there was the appropriate authority. The US Department of Justice confirmed that the equipment used by the undercover officers was furnished by the City of London Police after proper authorisation had been obtained. The issue therefore falls away on the facts.

Additional Grounds of Appeal

The application to raise a further issue: forum non conveniens

Mr Fitzgerald applied for leave to raise the issue of forum conveniens to submit that the offences should be tried in the courts of England & Wales and that the extradition of the appellant to the United States of America would violate his Article 6 rights because the exposure of a requested person to a trial in a inappropriate forum is itself arbitrary and exposes him to a flagrant denial of justice and violates his Article 8 rights to a private and family life.

On 24 February 2010, following a request from the parties, Laws LJ directed that the hearing of this matter be moved to 31 March 2010 with no further adjournment. Prior authority for the grant of legal aid to obtain evidence from a US lawyer was refused by Collins J on 18 March 2010, who was made aware that the appellant’s solicitors had requested that the 31 March 2010 hearing be treated as a directions hearing. At the hearing on 31 March 2010, Mr Fitzgerald informed the Court that evidence in support of the appellant’s case that the sentence following conviction was likely to be life imprisonment without parole and so in breach of his Article 3 rights, had not been obtained and that although a US attorney, Mr Bruce Malloy had been contacted, no report had been provided. He accepted that the then understanding was that a life sentence was a real possibility and not a likelihood. The Court refused an application for an adjournment, but allowed the appellant a further opportunity to obtain such evidence and to make further submissions in writing. In the event, we were informed on 5 May 2010 that the appellant would not be adducing evidence in relation to the sentence he might receive in the United States. Mr Fitzgerald also applied for leave to adduce further evidence as to the issue of entrapment – see paragraph 24 ante.

The principles on which a new issue can be raised on the appeal and fresh evidence adduced

The relevant provisions in the Act are:

The principles which apply when application is made to rely on fresh evidence which was not available at the extradition hearing, are to be found in the judgment of the President of the Queen’s Bench Division in Szombathely City Court/The Sopron City Court, The Municipal Court of Szombathely (Three Hungarian Judicial Authorities)v. Fenyvesi and Fenyvesi [2009] EWHC 231 (Admin), an appeal which turned on fresh evidence and a consideration of the provisions of section 29 (4) of the Act which is in identical terms to the provisions of section 104 (4) (see above). Giving the judgment of the Court, he said: -

“2.In Barrow v Bankside Agency Limited [1996] 1WLR 257, Sir Thomas Bingham MR said this at page 260:

“The rule in Henderson v Henderson(1843) 3 Hare 100 is very well known. It requires the parties, when a matter becomes the subject of litigation between them in a court of competent jurisdiction to bring their whole case before the court so that all aspects of it may be finally decided (subject, of course, to any appeal) once and for all. In the absence of special circumstances, the parties cannot return to the court to advance arguments, claims or defences which they could have put forward for decision on the first occasion but failed to raise. The rule is not based on the doctrine of res judicata in a narrow sense, nor even on any strict doctrine of issue or cause of action estoppel. It is a rule of public policy based on the desirability, in the general interest as well as that of the parties themselves, that litigation should not drag on for ever and that a defendant should not be oppressed by successive suits when one would do. That is the abuse at which the rule is directed”.

This passage concerns a rule in civil litigation which at first blush is somewhat removed from the central subject of this appeal. But the policy behind the rule in Henderson v Henderson has close affinity with the policy which lies behind authorities and statutes which regulate the admission on an appeal of evidence which one or other of the parties did not adduce at first instance.

3.

It is normally incumbent on litigants in first instance courts or tribunals in which evidence is adduced to advance their whole case at first instance and to adduce all the evidence on which they want or need to rely. In most cases, the purpose and function of an appeal is to review the decision of the lower court upon the evidence which was adduced before the lower court. An appeal court is not generally there to enable a litigant who has lost in the lower court to advance their case upon new and enlarged evidence which they failed to adduce in the lower court. Litigation should normally be conducted and adjudicated on once only. It is generally neither fair nor just that the expense and worry of litigation should be prolonged into an appeal because a party failed to adduce all the evidence they needed at first instance. …

4.The policy that evidence should normally be received once only and at first instance is not unyielding and a variety of rules has developed to guide the usual discretionary circumstances in which an appeal court will receive fresh evidence. The underlying policy often is that fresh evidence may be received when it is just to do so; or perhaps when it would be unjust not to do so. Thus section 23(1) of the Criminal Appeal Act 1968 enables the Criminal Division of the Court of Appeal to receive any evidence which was not adduced in the proceedings from which the appeal lies “if they think it necessary or expedient in the interests of justice”. This reflects a necessary perception of criminal justice that a conviction which is in truth unsafe should not be upheld for want of fresh evidence which may establish that it is indeed unsafe.

5.By contrast rule 51.11(2) of the Civil Procedure Rules provides that the appeal court will not receive evidence which was not before the lower court unless it orders otherwise. This rule, taken alone, is unvarnished, but a civil appeal court’s starting point will always be the overriding objective that the rules are a procedural code to enable the court to deal with cases justly.

6.The discretion to admit fresh evidence afforded by statute and rule in criminal and civil appeals respectively, although it remains a discretion, is not unregulated. Intrinsically, the principles of justice would expect the court to ask why the evidence was not adduced at first instance, and whether there is a good reason or excuse for not doing so – for the policy is that litigants should normally adduce their whole case and evidence at first instance. The court would also be expected to ask what part the fresh evidence would play, if it were adduced; and in particular whether it is credible and whether it would or might lead to a different outcome of the case …

…

32.In our judgment, evidence which was “not available at the extradition hearing” means evidence which either did not exist at the time of the extradition hearing or which was not at the disposal of the party wishing to adduce it and which he could not with reasonable diligence have obtained. If it was at the party’s disposal or could have been so obtained, it was available ”.

The decision has been applied in a number of further cases in this court.

As it is a precondition for the admission of fresh evidence that it either did not exist at the time of the extradition hearing or was not at the disposal of the party wishing to adduce it and could not with reasonable diligence have been obtained, it follows that the party seeking to rely upon it must satisfy the court that there is a good reason or excuse for not calling that evidence at the extradition hearing: see Miklis v The Deputy Prosecutor General of Lithuania [2006] EWHC 1032 (Admin) at paragraph 3 per Latham LJ.

For my part, I would have considered that a similar precondition should apply when an issue is raised that was not raised at the extradition hearing but in Hoholm v The Government of Norway [2009] EWHC 1513 (Admin), Stanley Burnton LJ said:

“19.Section 104 does not in terms compel the Court to allow an Appellant to raise an issue that was not raised at the extradition hearing; its provision is negative, precluding the Court from allowing an appeal if the applicable statutory conditions are not satisfied. However, it seems to me to be significant that section 104 distinguishes between a new issue and new evidence. I would therefore hold that where an issue was available to be raised by an appellant on the evidence adduced at the extradition hearing, she is in general, if not always, entitled to raise that issue on appeal to this Court, even though the issue was not raised at that hearing. In any event, I see no good reason why the Appellant should not be permitted to argue the issue before this Court. Extradition is an infringement of liberty and while the Court is concerned to ensure that those who are the subject of conforming requests for extradition are lawfully extradited, the legal requirements for extradition are safeguards that must be observed”

For reasons to be given at paragraphs 42, 43 and 44 below, with respect to Stanley Burnton LJ, I find the distinction he seeks to draw difficult to follow, though in the result this makes no difference to the decision I have reached for the reasons I give at paragraph 45.

The reasons why the issue was not raised before the District Judge

In a Note, provided at the request of the Court, Mr Joel Bennathan QC, who appeared for the appellant in the Magistrates’ Court, said he made no submissions to the District Judge under Article 8 or on forum conveniens because he is very familiar with “this line of argument, having litigated it in the High Court” and took the view the argument would not succeed. However, Mr Fitzgerald submitted the decision not to advance that argument is not a reason for them not being developed on appeal; he submitted the decision was not made for tactical reasons and that there is a duty to consider any possible breach of a defendant’s human rights until he is put on the plane. That, in my judgement, is not an acceptable reason for raising the issue for the first time at the hearing of the appeal.

Section 104 provides the conditions which must be satisfied before an appeal may be allowed; it provides powers to allow an appeal, inter alia on the ground of material which was not available at the extradition hearing; as a matter of construction, I consider that an issue “raised that was not raised at the extradition hearing” and evidence “that was not available at the extradition hearing” mean new issues or new evidence and so an issue “not raised at the extradition hearing” means an issue which, for whatever reason could not then be raised. I see no reason for restricting the calling of fresh evidence to evidence that was not available at the extradition hearing while allowing a party to raise any issue which could have been raised but which for good or bad reason was not raised. The Court is concerned with the correctness of the decision of the District Judge on the material before her; it should be only in special circumstances that the Court is invited to overrule a decision on the grounds of either fresh evidence or an issue which could have been raised in the Magistrates’ Court but was not.

This is entirely consistent with the principles identified in Fenyvesi above; there is nothing in the wording of section 104(4) which requires any departure from the requirement save in special circumstances. The parties cannot return to court to advance arguments they could have put forward at first instance but chose not to do so. As Ms Cumberland submitted, the approach is also consistent with the need for extradition cases, governed by the Act to be conducted expeditiously and within tight time limits.

This was a matter which could have been raised in the Magistrates’ Court and was not because experienced leading counsel decided, in my judgement properly, that it was unarguable; there has been no change in the appellant’s circumstances or in any other matter relevant to an issue of forum conveniens and so I would refuse permission for it to be raised.

The merits of the new issue of forum non conveniens

Even so, I shall consider the merits of the proposed ground of appeal. Mr Fitzgerald submitted there is a full list of the relevant factors as to the determination of the appropriate forum for the trial of a criminal matter where there are two competing jurisdictions set out in the judgment of La Forest J in US –v- Cotroni (1989) 48 CCC (3d) 193; these include where the impact of the offence was likely to have been felt, whether the evidence is mobile, in what jurisdiction were most of the acts in furtherance of the crime committed, the nationality and residence of the accused and the severity of the sentence the accused is likely to receive in each jurisdiction. He cited Laws LJ in Bermingham (above) at paragraph 121:

“I do not accept [the USA government’s] submission that the possibility of a trial in the United Kingdom is legally irrelevant in a case like this. There might be an instance in which such a possibility could tip the balance of judgment in favour of a conclusion that the defendant’s extradition would amount to a disproportionate interference with his Article 8 rights. That, I think, has to be accepted if section 87 is the constitute effective judicial protection of the Convention guarantees”

But it is important to note that Laws LJ continued:

“What it would take to make such a case is a very different matter”

Had this issue been raised at the extradition hearing, it is in inconceivable that the District Judge would have ruled in favour of it. In Norris v. Government of the United States of America (No.2) [2010] UK SC9 at paragraph 67, the President of the Supreme Court, Lord Phillips said :-

“Extradition proceedings should not become the occasion for a debate about the most convenient forum for criminal proceedings. Rarely if ever, on an issue of proportionality could the possibility of bringing criminal proceedings in this jurisdiction be capable of tipping the scales against extradition in accordance with the countries treaty obligations. Unless the judge reached the conclusion that the scales are finely balanced he should not enter into an enquiry as to the possibility of prosecution in this country”.

In Bermingham (above) at paragraph 118, Laws LJ said:

“If a person’s proposed extradition for a serious offence will separate him from his family, article 8 (1) is likely to be engaged on the ground that his family life will be interfered with. The question then will be whether the extradition is nevertheless justified pursuant to article 8 (2). Assuming compliance with all the relevant requirements of domestic law the issue is likely to be one of proportionality: is the interference with family life proportionate to the legitimate aim of the proposed extradition? Now, there is a strong public interest in “honouring extradition treaties made with other states” (the Ullah case [2004] 2Ac 323, para 24). It rests in the value of international co-operation pursuant to formal agreed arrangements entered into between sovereign states for the promotion of the administration of criminal justice. Where a proposed extradition is properly constituted according to the domestic law of the sending state and the relevant bilateral treaty, and its execution is resisted on article 8 grounds a wholly exceptional case would in my judgement have to be shown to justify a finding that the extradition would on the particular facts be disproportionate to its particular aim.” (emphasis added)

Contrary to the submissions of Mr Fitzgerald there are no Article 8 considerations; the appellant gave no evidence and such evidence as there is in the affidavit of his solicitor in support of his application for bail, amounts to no more than this; he is of dual British and Pakistani nationality, he has lived in this country since he was a child; his parents and other members of his family live in Slough. As to the sentence which the defendant would be likely to receive if convicted, that would be a relevant factor only if the sentence was likely, on the facts of the case, to be clearly disproportionate: see R (Wellington) –v- Secretary of State for the Home Department [2008] UKHL 72 at paragraph 35 per Lord Hoffmann. It would not be (see post). There is no merit in any of the arguments advanced.

The new issue under Article 3

While I accept readily the submission of Mr Fitzgerald that this is not a case of a point being held back for tactical reasons, there is again no satisfactory explanation for the omission to raise this issue before the District Judge who was required to consider whether the appellant’s extradition would be compatible with his Convention Rights. Mr Bennathan QC, in his Note said he had considered possible arguments under Articles 3 and 6 but felt they would not succeed; he added he did not understand the position to be that the appellant would actually receive a whole-life sentence although he was aware he might serve a far longer sentence than he might expect to serve were he convicted of similar offences in the UK. That, of course, would not amount to a breach of the appellant’s Article 3 rights because the likely sentence in the courts of Maryland (see below) is not arguably “obviously disproportionate for the crime of which this appellant is accused”: see Wellington above at paragraph 36.

In a witness statement dated 17 April 2010, the appellant’s present solicitor, Ms Karen Todner stated that the appellant transferred instructions to her firm following the proceedings in the Magistrates’ Court and that during the course of the preparation of the High Court proceedings, it was decided the assistance of an American expert was required to deal with issues of sentence, entrapment and Article 6. Ms Todner set out the history of telephone and email contact between 2 and 12 April with Mr Malloy who “was confident that he would be able to obtain information from the US Federal Court file regarding firstly the evidence in the case against Mr Khan and secondly the position in relation to Mr Patel”. In the event, Mr Malloy provided no report but recommended a Defence Attorney, Mr Andrew White, in his place. Mr White reported a conversation he had with Mr Romano and informed Ms Todner that until the appellant is formally arraigned in the US, the nature of the evidence against him will not be known. It follows that no evidence has been provided on behalf of the appellant which relates to sentence and there is no evidence to support Mr Fitzgerald’s submission that there is a real risk the appellant will receive a sentence of life imprisonment without parole and so his Article 3 rights may be infringed. The only evidence on the point is in a letter dated 30 March 2010, written by Mr Romano to the Crown Prosecution Service in which he said that the maximum penalty if the defendant is convicted in the courts of Maryland is life imprisonment but that is not a mandatory sentence. There is a minimum mandatory sentence of 10 years which must be imposed and there is no parole in the federal system in the United States of America. I would refuse leave to rely on this ground of appeal.

Fresh Evidence

The evidence of Zanaib Khan (paragraph 24 above) was not new evidence; it was available at the extradition hearing. There are no special circumstances which I consider justify its admission under section 104(4)(a). In any event, Mr Bennathan QC stated in his Note to the High Court that it was decided not to rely on it because, to the best of his recollection, “it added little and had some disadvantages”.

The witness statement of Paul Crome, a Crown Advocate within the Central Confiscation Unit of the Organised Crime Division, dated 13 November 2009 and prepared for the purposes of an application for a Restraint Order, contains the evidence about the appellant’s assets (paragraph 24 above). Mr Fitzgerald submitted that as the appellant is not guilty of withholding the evidence or of “keeping his powder dry”, it should be admitted. He relied upon what he described as the Court’s generous approach to new evidence, citing The District Court of Slupsk v Piotrowski [2007] EWHC 933 (Admin); Bogdani v Albanian Government [2008] EWHC 2065 (Admin), Miklis aboveand McKinnon v The Government of the United States of America [2007] EWHC 762 (Admin). He relied also upon the approach of the Court of Appeal Criminal Division in appeals under section 23 of the Criminal Appeal Act 1968. It is unnecessary to consider these submissions because while the statement of Mr Crome was clearly not available at the time of the extradition proceedings, the evidence itself existed; it was within the knowledge of the appellant and was obtainable by him or by those acting on his behalf: see Fenyvesi (paragraph 36 above). It is accordingly not new evidence and for that reason alone should not be admitted. I would however observe that while the President, in paragraph 4 of his judgment in Fenyvesi recognised that the policy that evidence should normally be received once only and at first instance is not unyielding, the decisions above all pre-dated Fenyvesi.

For the reasons I have set out, I would dismiss this appeal.

I agree. It is important that all the issues are raised and all the evidence called before the District Judge at the extradition hearing. It was the intention of Parliament that the process be expeditious; such expedition cannot be achieved without all the evidence being called as well as all the issues being raised at that hearing.