Friday, 5 October 2012

Extradition to the USA ~ Five lose in the High Court

Update 9th October:  The full judgment

A few days ago, at his annual Press Conference, the Lord Chief Justice expressed "fury" at "any case that takes eight years through a whole series of judicial processes to come to a conclusion -- "  The cases of Al Fawaz and Abdel Bary have been oscillating around the legal system for 14 years and the extradition cases of Abu Hamza, Babar Ahmad and Talha Ahsan for 8 years.  In those 8 years, Abu Hamza served a sentence of imprisonment which accounts for some of the delay in his case.   (Earlier post on the Press Conference). 

These cases were back in the High Court Queen's Bench Division (Sir John Thomas President and Ouseley J) this week but the court has robustly rejected their new attempts to prevent extraditions to the USA.  The court's reasons are set out in a 14 page summary available via the Judiciary website.  The written judgment is to be published next week.

In the summary, the court makes six general observations.

1.   There can be no doubt that the men have either taken or had the opportunity to take every conceivable point to prevent extradition to the United States.

2.   There is an overwhelming public interest in the proper functioning of the extradition arrangements and the honouring of extradition treaties.  Trials should take place as quickly as possible consistent with the interests of justice.

3.   Finality in litigation is important.  Delays have disfigured the extradition process in the past.

4.   Finality in litigation requires that all parts of a case should be raised on the first occasion on which they properly can be raised; where subsequent events or significant evidence are said to give rise to a need for
further consideration, they must be deployed as soon as possible and not withheld until any preceding action has concluded.

5.   As these applications were all in criminal causes or matters, there is no appeal from the decision and the Home Secretary will be free to make arrangements for the extradition of each of the claimants. That position was not contested.  At para. 24 the summary states:

As was made clear by Mr Eadie QC on behalf of the Home Secretary at the conclusion of the second day of the hearing, if we refuse permission or refuse the stays, as these applications are all in criminal causes or matters, there is no appeal from our decision and the Home Secretary will be free to make arrangements for the extradition of each of the claimants. That position was not contested.

6.   The court delivered its long judgment orally so that the claimants and the Home Secretary could know the precise situation.  Paragraph 25 of the summary states:

Sixth, we have carefully considered all of the arguments and the full judgment which we will give is necessarily long as it has had to examine all the points made. We considered that we should deliver that judgment orally as soon as we had reached our decision as the claimants and the Home Secretary are entitled to know whether these proceedings come to an end and extraditions can take place or, whether, in the case of each applicant there is a matter which justice requires is further considered and the extradition halted.

Perhaps a seventh point was an observation about the Abu Hamza case.  The court indicated that there may well be a need to reconsider the inter-relationship of the statutory appeal scheme, the ability to re-open appeals and the role of judicial review. As has happened elsewhere, there may be real dangers in the structure of a scheme which not only has a statutory appeal procedure but which has become complicated by judicial review proceedings which can be used to reopen or raise again issues that have already been decided.  Quite how this will be reconsidered remains to be seen.

The summary concludes:

We have therefore concluded that each of the claimants’ applications for permission to apply for judicial review or for a re-opening of the statutory appeals be dismissed. It follows that their extradition to the United States of America may proceed immediately.

Previous post 25th September 2012 - Abu Hamza ~ Judgment of the European Court of Human Rights becomes final

Of all these cases, because of adverse media coverage, Abu Hamza's has been the one with the highest profile but, if the seriousness of the allegations is looked at. the cases of Al Fawaz and Abdel Bary are the most serious involving conspiracy to murder which, it is alleged, manifested itself in the bombings of two USA Embassies and the deaths of over 200 people.

Whilst these cases raise serious questions about the handling of such high profile extradition requests, it is not possible to argue against the view of the court that these men have had every opportunity to take every conceivable point to prevent their extradition to the United States.  Nevertheless, deeper, more fundamental,  concerns about the general fairness of the extradition process remain and, in particular, the arrangements with the USA.  Some of these concerns are highlighted by Babar Ahmad's case - discussed below.

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The Babar Ahmad situation ~

My unjust extradition, after 8 years in detention without charge - Babar Ahmad The Guardian 4th October.  For his case see paras. 9 and 10 of the court's summary.

Babar Ahmad was arrested in London on 5 August 2004. The case against him is that through websites operated from the UK and a mirror website in the US and by extensive e-mail correspondence, he solicited funds for terrorism for the Taliban and other Mujahideen. A material part of that effort was directed at the United States. The most serious allegation is communication with an enlistee in the US Navy when on patrol, his encouragement of that person and the possession of details of the vulnerability of a US battle formation in the Straits of Hormuz; the allegation is to the effect that the enlistee was encouraged to betray his fellow crew members and his country.   The CPS ruled that there was insufficient evidence to charge him.  However, he was subsequently charged in the USA.  On 17 May 2005 the Senior District Judge ruled that his extradition could proceed. On 15 November 2005 Babar Ahmad’s extradition was ordered. Babar Ahmad’s appeal to the High Court was rejected on 30 November 2006. On 6 June 2007 the House of Lords refused permission to appeal.

LIBERTY put forward concerns regarding the present lack of a "forum provision" in the extradition arrangements so that, where the facts of a case arise substantially in the UK, any trial should be in the UK.  Parliament legislated for a "forum bar" in the Police and Justice Act 2006 s.42 and Schedule 13.  However, it has not been brought into force on the recommendation of the Baker Review of Extradition arrangements - (Page 230 of the Review report refers).  See Liberty's comments (November 2011) about this.  It seems rather strange that, effectively, the will of Parliament to have a forum bar has been overruled as a result of this review.

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