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|Session 2001- 02
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In Re Al-Fawwaz (Appellant) (Application for a Writ of Habeas Corpus) (on Appeal from a Divisional Court of The Queen's Bench Division) etc.
HOUSE OF LORDS
Lord Slynn of Hadley Lord Hutton Lord Millett Lord Scott of Foscote Lord Rodger of Earlsferry
OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT
IN THE CAUSE
IN RE AL-FAWWAZ (APPELLANT) (APPLICATION FOR A WRIT OF HABEAS CORPUS) (ON APPEAL FROM A DIVISIONAL COURT OF THE QUEEN'S BENCH DIVISION)IN RE ABDEL BARY (APPELLANT) (APPLICATION FOR A WRIT OF HABEAS CORPUS) (ON APPEAL FROM A DIVISIONAL COURT OF THE QUEEN'S BENCH DIVISION) IN RE EIDAROUS (APPELLANT) (APPLICATION FOR A WRIT OF HABEAS CORPUS) (ON APPEAL FROM A DIVISIONAL COURT OF THE QUEEN'S BENCH DIVISION)
ON 17 DECEMBER 2001
 UKHL 69
LORD SLYNN OF HADLEY
1. Your Lordships have heard three appeals together.
2. In the first the appellant Al-Fawwaz is accused in the United States District Court for the Southern District of New York of conspiring with Osama Bin Laden and others between 1 January 1993 and 27 September 1998. It is alleged that they agreed that United States citizens would be murdered in the United States and elsewhere and that American officials in the Middle East and Africa and soldiers deployed in the United Nations Peacekeeping Forces, American diplomats and other internationally protected persons would be killed and bombs planted at United States embassies and other American installations. It is alleged that in furtherance of the alleged conspiracy members of a terrorist group, Al Qaeda which was founded and led by Osama Bin Laden and was committed to violent opposition to the United States of America, bombed the United States embassies in Nairobi, Kenya and in Dar es Salam, Tanzania. A large number of people were killed.
3. The appellant was arrested in the United Kingdom on 27 September 1998 and a request made by the United States government for his extradition. On 9 December 1998 an order to proceed with the extradition was made by the Secretary of State on the basis that the appellant
After a hearing the metropolitan stipendiary magistrate ruled that it was not necessary to allege that the offence had been committed in the territory of the United States of America. He found that there was a prima facie case against the appellant and committed him to await the decision of the Secretary of State. The appellant applied for habeas corpus but the application was dismissed by the Divisional Court on 30 November 2000 and it is from that order that the appellant comes before your Lordships.
4. The Divisional Court held that it was necessary to show that the crime, in respect of which extradition was sought, was alleged to be committed within the actual territory of the United States and that it was not sufficient to allege that a crime was committed within the jurisdiction extraterritorially of the United States which would in similar circumstances be governed by the extraterritorial jurisdiction of the United Kingdom. The Divisional Court was, however, satisfied that three overt acts alleged by the United States of America could be relied on to found territorial jurisdiction in the United States, namely (a) the setting up and operating of a secure telephone line in the United States by the appellant through an organisation called MCI; (b) the purchase by the appellant of a satellite phone system in the United States and (c) the issuing in pursuance of the conspiracy, of fatwahs and jihads, allegedly prepared with the concurrence of the appellant in the United States and elsewhere.
5. The second appellant, Ibrahim Eidarous, and the third appellant, Abdel Bary, Egyptian nationals who were granted asylum in the United Kingdom, are likewise charged before the United States District Court for the Southern District of New York with what in the United Kingdom would have been a conspiracy to murder. On an application for extradition the same charge of conspiracy to murder, bomb and kill and the same bombing of two embassies relied on was alleged as that against Al-Fawwaz. Provisional warrants for arrest were executed in July 1999 and the order to proceed with the examination was issued by the Secretary of State on 21 September 1999. On 25 April 2000 the appellants were committed to await the Secretary of State's decision on the basis that it was not necessary to allege that the acts were committed within the territory of the United States. As in Al-Fawwaz, the Divisional Court held, on 2 May 2001, that there were in any event, overt acts within the territorial jurisdiction of the United States and on 2 May 2001 the Divisional Court dismissed the appeal. The overt acts alleged in the United States were challenged by the second and third appellants. There was not sufficient to justify a finding that the satellite phone had been used to plan the explosions and that what happened was consistent with these two men being part of a dissident group who had been persecuted in their own country.
6. There were thus some issues common to the appeals, others where the principle is the same but the factual material differs.
7. It is convenient to consider first the question of principle and whether the extradition crime ruled on must be alleged to have been committed in the United States or whether it is sufficient that it is within the United States' jurisdiction in the sense that it is triable in the United States.
8. The statutory provisions are not entirely simple and it is useful to set them out as far as relevant.
9. Section 1 of the Extradition Act 1989 (which consolidated with amendments, provisions relating to extradition in the Criminal Justice Act 1988, the Fugitive Offenders Act 1967 and the Extradition Acts 1870 to 1935) provides that where an extradition procedure under Part III of the Act is available as between the United Kingdom and a foreign State, a person in the United Kingdom who
may be arrested and returned to that state in accordance with those procedures.
10. "Extradition crime" except in Schedule 1 is defined in section 2(1) as meaning
so punishable which satisfies the conditions in sub-sections 2 and 3 of section 2.
11. However section 1(3) provides that
12. Schedule 1 paragraph 20 provides two important definitions:
13. The United States of America (Extradition) Order 1976 (SI 1976/2144) as amended by the United States of America (Extradition) (Amendment) Order 1986 (SI 1986/2020) was in force at all material times so that Schedule 1 of the 1989 Act applied and the definitions there are to be followed.
14. If a requisition is duly made for the surrender of a fugitive criminal of any foreign state under paragraph 4(1) of the Schedule, the Secretary of State may require a metropolitan magistrate to issue a warrant for the arrest of the fugitive criminal.
By paragraph 6, as amended by section 158 of the Criminal Justice and Public Order Act 1994:
By paragraph 7 of the Schedule as amended by section 158 of the 1994 Act:
By paragraph 15 of the Schedule under the heading "Deemed extension of jurisdiction of foreign states":
15. The 1976 Order cites the treaty between the Government of the United Kingdom and the Government of the United States of America "for the reciprocal extradition of offenders". It provides in article 3 that:
16. The Schedule which sets out the Treaty provides as follows:
By Article IX
17. The Schedule to the Order lists the offences referred to in article III of the Order. Those offences include "murder" and "attempt to murder". By virtue of Article III (2) Conspiracy to commit such an offence is also a crime for which extradition can be granted as it was under Schedule 1 to the 1870 Act.
18. The Divisional Court in Al-Fawwaz concluded that the extradition proceedings covered only crimes committed in the territory of the United States. The acts done were transposed to the United Kingdom for the purpose of deciding whether under section 26 of the 1870 Act the crimes committed in the United States of America "if committed in England or within English jurisdiction would be one of the crimes described in the first Schedule to this Act". Those crimes include "Murder, and attempt and conspiracy to murder". The Divisional Court considered that there were a number of pointers that jurisdiction in the 1870 Act was limited to territorial jurisdiction. They relied in particular on (a) the speech of Lord Mackay of Clashfern In re Rees  937 and the speech of Lord Reid in R v Governor of Brixton Prison, Ex p Schtraks  AC 556; (b) the fact that the provision in section 25 of the 1870 Act that "every vessel of that state, shall . . . be deemed to be within the jurisdiction of and to be part of such foreign state"; (c) paragraph 15 of Schedule 1 to the 1989 Act which provided that certain offences of an international character (and in particular the Internationally Protected Persons Act 1978) "shall be deemed to be an offence committed within the jurisdiction of that state"; (d) the fact that the provisions of section 2 of the 1989 Act which included reference to extraterritorial offences was specifically excluded from Schedule 1 offences by section 2(1) of the 1989 Act. They concluded at  1 WLR 1234, 1243, para 32, that:
19. In the case of Mr Eidarous and Mr Abdel Bary the Divisional Court (Kennedy LJ and Garland J declined to reconsider the opinion of Buxton LJ and Elias J in Al-Fawwaz on this issue since they were satisfied that there were sufficient overt acts to confer jurisdiction.
20. The matter is however one which your Lordships should now consider.
21. Mr Fitzgerald QC, with whom Mr Emmerson QC and Mr Maloney largely agreed, submits that Buxton LJ and Elias LJ were right to conclude that jurisdiction has to be territorial. They accept that conspiracy to murder is a crime within Schedule 1 to the 1870 Extradition Act and in the 1976 Order but they say that the concept of jurisdiction in section 26 of the 1870 Act was limited to territorial jurisdiction; this is in keeping with the historical notion of jurisdiction as being limited to crimes committed within the requesting state's territory. This they say is underlined by the fact that (a) in section 25 of the 1870 Act, it was necessary to provide for crimes committed on vessels and in colonies; (b) in the 1989 Act it was necessary to provide for extraterritorial crimes both in section 2 which lays down the definition of extradition crimes (but that is not applicable to Schedule 1) and in section 22 dealing with crimes, the subject matter of international conventions. Moreover paragraph 15 of Schedule 1 of the 1989 Act would not be necessary if extraterritorial crimes were already covered. Reliance is placed on the cases referred to by the Divisional Court. Particular emphasis is placed on the fact that article 1 of the treaty is dealing with offences "committed within the jurisdiction of the other party" which is different from susceptible to the jurisdiction of the requesting party and must be construed as meaning in the territory of the party. It is also said that article IX (1) of the treaty which requires evidence to justify "the committal for trial of the person sought if the offence of which he is accused had been committed in the territory of the requested party" (emphasis added) supports their case.
22. There is no doubt that the appellants can point to a number of cases where it has been said or assumed that the question at issue, depended on the act having been done in the territory of the state. See eg In re Nagdhi  1WLR 317, Kossekechatlco v Attorney General for Trinidad  AC 78, R. v Governor of Brixton Prison, Ex p Minervini  1 QB 155. Detailed reference has been made to R. v Governor of Brixton Prison, Ex p Schtraks  AC 556. In that case however the question was whether the offence was committed within the territory rather than within the jurisdiction of one party to the treaty and in particular whether it was enough that there was de facto occupation and control by Israel rather than sovereignty over the territory. I do not find this directly in point. Closer is the statement R v Secretary of State for the Home Department, Ex p Rees  AC 937, 955F where Lord Mackay of Clashfern said:
23. But the present question (territorial v extraterritorial) was not raised as an issue nor was it necessary to decide it and that question was not fully argued.
24. At the same time if Lord Mackay's statement is to be read as referring to what the Act dealt with in fact at the time, and perhaps what it was thought at the time that it was directed to, it seems both to be correct and to be supported by views expressed after the date of the Act. (See Clarke, The Law of Exradition, 4th ed (1903), though the case relied on R v Lavaudier 1881 does not seem to require as a matter of statutory interpretation that jurisdiction equals territory. See also Oppenheim's International Law, vol 1, (1905), pp 196-197 and the argument of counsel for the Government in In re Tivnan (1864) 5 B&S 645, 672 that in Extradition Treaties of 1842 and 1843 "jurisdiction" was used in the sense of the territorial limit within which "the right to deal with particular things or persons" is exercised.
25. It does not seem to me, however, that any of these previous decisions or writings should be taken as concluding the matter conclusively today. The question, it seems for the first time, has to be decided directly; ie whether the treaty permits or requires extradition only in respect of crimes committed and acts done exclusively in the territory of the requesting state, and whether it is only acts done in that state which are transposed to the United Kingdom in order to decide whether the facts would constitute a crime triable in the United Kingdom.
26. The respondents submit that the first chronological, and perhaps crucial, stage is to ask whether the person is a "fugitive criminal" within the meaning of paragraph 20 of Schedule 1 to the 1989 Act (which is the same as the definition in section 26 of the 1870 Act). This provision requires that the person shall be accused or have been convicted of an extradition crime committed within the jurisdiction of a foreign state. There is no reference to "territory" although jurisdiction could be interpreted as meaning territory in the sense that the act done or the crime committed must be done "in" the state. Moreover conversely to take the view that jurisdiction does not mean only territory seems to require that the phrase "crime committed within the jurisdiction" of any foreign state must be read as meaning "a crime committed which is within the jurisdiction" of that state.
27. It seems to me that the respondent's reading of the definition of fugitive criminal as being one who has committed a crime within the jurisdiction of rather than in the requested state, is consistent with article I of the treaty which requires the extradition of a person in the requested state of any person convicted of an offence specified in article III which is "committed within the jurisdiction of the other party".
28. "Extradition crime" for the purposes of the first Schedule to the 1989 Act is to be construed by reference to the Order in Council under section 2 of the 1870 Act. By article 3 of the 1976 Order the Extradition Acts 1870 to 1935 are to apply in the case of the United States in accordance with the treaty. In the 1870 Act extradition crime means "a crime which, if committed in England or within English jurisdiction, would be one of the crimes described in the first Schedule" to the Act.(emphasis added)
29. This is different from the definition of fugitive criminal which refers only to a crime committed within the jurisdiction of the foreign state and does not refer to the territory of the foreign state. It is thus looking at jurisdiction rather then territory.
30. It seems to me that the words in the 1870 Act "within English jurisdiction" must have been intended to add something to "committed in England". There is nothing to indicate that those words are limited to specific statutory provisions deeming or declaring the offence to have been committed in England for the purposes of extradition.
31. Accordingly unless there are other compelling reasons I would interpret "within jurisdiction" as including but being wider than "in the territory" of the foreign state. The question is thus whether the conduct complained of will be triable in the United States and if that conduct were transposed to England, would be triable in England. The question is not whether the acts done in the United States (if any) regardless of other acts necessary to found jurisdiction committed elsewhere, would if transposed to England be triable in England. It is still necessary to decide whether all acts relied on or only those acts done in the United States are transposed to England.
32. In most cases which approach is adopted may not matter. If only the events occurring in the United States are transferred to England and the other events occurring outside the USA are regarded as still occurring outside England, in asking whether the crime would be triable in England, it seems likely that the English courts would have extraterritorial jurisdiction. I tend to the view that this is the right approach but I recognise the force of the argument that all events are transposed to England.
33. The view that jurisdiction is wider than territorial jurisdiction is not in any way inconsistent with other provisions of the Schedule. Thus in paragraph 4(2) of the first Schedule to the 1989 Act the Secretary of State can only order the issue of a warrant for arrest if the person is accused of an extradition crime committed within the jurisdiction of a foreign state and that person is already suspected of being in Her Majesty's dominions, ie present in the territory. If it had been intended only to cover acts done in the territory of a foreign state the territorial link would have been stated in both parts of the definition. The same approach is followed through in relation to the magistrate's power to order arrest, to bring the person before the magistrate (paragraph 5) and to commit the person (paragraphs 7 and 8). Each time the question is expressed as to whether the crime is alleged to have been committed in "the jurisdiction" and not in the territory.
34. It is to be noted that in article I of the 1972 treaty the obligation is to extradite a person found in the territory of the requested state who has been accused of an offence within article III "committed within the jurisdiction of the other party". The same applies to the power in paragraph 4 (2) of the first Schedule to the 1989 Act.
35. I accept that where a person is authorised in paragraph 8(3) of the Schedule not only to receive and hold in custody but also to "convey within the jurisdiction of such foreign state" the criminal, that will normally mean taking the person to the territory of the foreign state. I would reserve the question as to whether it means only that but even if it does it seems to me to be a special provision which does not govern the meaning of the other parts of the Schedule and in particular paragraph 20.