Extradition order – Application for stay of extradition
R (on the application of Fawaz) v Secretary of State for Home Department; R (on the application of Bary) v Secretary of State for Home Department; R (on the application of Mustafa Kamel Mustafa (otherwise Abu Hamza)) v Secretary of State for Home Department; R (on the application of Ahmad) v Secretary of State for Home Department; R (on the application of Ahsan) v Director of Public Prosecutions and another: Queen's Bench Division, Administrative Court (London): 5 October 2012
The instant applications concerned extradition proceedings in respect of five individuals suspected of terrorism offences. In each case, the secretary of state had acceded to the extradition of the claimants to the requesting state, the United States of America, to face trial for alleged offences of terrorism. Each of the claimants had challenged the secretary of state's decisions, which had been upheld on numerous occasions, and each had exhausted their rights to challenge or appeal the secretary of atate's decisions. The European Court on Human Rights (ECHR) had determined that the extradition of the claimants to the United States would not be a breach of their rights under the European Convention of Human Rights.
By the instant applications, the claimants sought to re-open their cases or judicially review decisions of the secretary of state refusing to re-open their cases, or for a stay of extradition. Four of the claimants (KF, AB, BA and TA) applied to re-open their challenges against the secretary of state's decision to extradite them on the grounds that the ECHR had failed to properly address the evidence in regard to whether conditions in prisons in the United States would amount to a breach of their rights under article 3 of the Convention. KF and AB also claimed that the secretary of state had been wrong to have refused to re-open their cases on the basis of fresh evidence that had the effect that there were no longer prima facie cases against them to support a decision to extradite them.
It was claimed by BA and TA that the decision to extradite them should be stayed pending a challenge by them against a recent decision by the Director of Public Prosecutions (DPP) that a private prosecution being sought against them should not be allowed to proceed. Finally, the remaining claimant (AH) sought a stay of his extradition on the ground that his mental health had deteriorated. AH contended that it needed to be investigated whether the deterioration of his mental health had been the result of sleep deprivation due to being imprisoned in the United Kingdom, or due to neurological problems, but that, in any event, his health condition had the result that he had not been fit to plead and accordingly his extradition should not continue.
The issues for determination were, first, whether the ECHR had properly addressed the issue of whether the conditions in prison in the United States would breach the art 3 Convention rights of KF, AB, BA and TA. Second, in the case of KF and AB, whether there was sufficient new evidence to justify re-opening their cases. Third, whether a challenge against the refusal of the DPP to allow a private prosecution to proceed against BA and TA had the effect that their extradition should be stayed. Fourth, whether AH's extradition should be stayed on the ground of health issues. The applications would be refused.
(1) In the cases of KF, AB, BA and TA, it had been clear that the ECHR had set out the evidence that had been before it in regard to prison conditions in the United States. The ECHR had clearly distinguished between the different categories of prisoner. It had made clear and careful evaluations of the facts based upon all the evidence and issues before it on the issue of whether the conditions in the United States would have amounted to a breach of the claimants' rights under article 3 of the Convention. Accordingly, the ECHR had made no error in its approach.
(2) In order to succeed in convincing the court to reopen a case in which all avenues of challenge against an extradition order had been exhausted the claimants had to show that the fresh evidence upon which they had relied did more that merely shift the existing evidence or reformulate it. It had to be of sufficiency to cast doubt upon whether there was a prima facie case against the claimants by the requesting state. In the case of KF and AB, there had been no sufficient fresh or new evidence to justify the re-opening of their cases on the basis that the new or fresh evidence had dispelled the prima facie cases against them.
(3) The information upon which the private prosecutions against BA and TA had been based had been available many years ago. It had been far too late for them to have been brought and for them to have been relied upon as a reason for defeating the extradition of BA and TA. It had been difficult to understand the private prosecution as anything other than an attempt to frustrate the extradition proceedings and they had clearly been an abuse of process. The applications of KF, AB, BA and TA would be refused.
(4) It was an accepted general rule that it was for the state where an individual was to be tried to determine whether that individual was fit to plead. In any event, if AH's health problems had been caused by sleep deprivation caused by being in prison in the UK then the cause of his problems would be alleviated by his removal from that prison and extradition. Further, if his health problems had been as a result of a medical condition to his brain, it was better that he was tried in the United States as soon as possible. Accordingly, AH's extradition would not be stayed.
Edward Fitzgerald QC and Malcolm Hawkes (instructed by Quist Solicitors) for KF; Hugh Southey QC for AB; Alun Jones QC and Ben Brandon (instructed by Hodge Jones & Allen Solicitors) for AH; Phillippa Kaufmann QC and Ben Cooper (instructed by Birnberg Peirce & Partners) for BA and TA; James Eadie QC, Ben Watson and Heather Oliver (instructed by the Treasury Solicitor) for the secretary of state; James Lewis QC for the requesting state in the matter of KF, AB; Clair Dobbin for the requesting state in the matter of AH, BA; Patrick O'Connor QC and K Watkins for the interested parties in the matter of TA; John McGuinness QC for the DPP; Jeremy Johnson QC for the Commissioner of Police.