Judgments - 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.

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    36. It is to be noted also in the treaty that the request must be accompanied by a statement of the facts of the offence and of the law defining the offence and where the request is made to the United Kingdom a statement that the offence constitutes a felony "under the law of the United States of America" (article VII). There must also be a warrant of arrest duly authenticated. There is no express requirement that any of these documents should state, let alone establish, that the offence alleged was committed in the territory of the United States. Nor is it to be implied that the procedure requires the magistrate, when the matter comes before him, to have evidence to show that the crime was committed in the territory of the United States.

    37. When the 1870 Act was passed crimes were no doubt largely committed in the territory of the state trying the alleged criminal but that fact does not, and should not, mean that the reference to the jurisdiction is to be so limited. It does not as a matter of the ordinary meaning of the words used. It should not because in present conditions it would make it impossible to extradite for some of the most serious crimes now committed globally or at any rate across frontiers. Drug smuggling, money laundering, the abduction of children, acts of terrorism, would to a considerable extent be excluded from the extradition process. It is essential that that process should be available to them. To ignore modern methods of communication and travel as aids to criminal activities is unreal. It is no less unreal to ignore the fact that there are now many crimes where states assert extraterritorial jurisdiction, often as a result of international conventions. Buxton LJ recognised the difficulties of the approach he felt bound to adopt when he commented [2001] 1 WLR 1234, 1243, para 32 "[w]hether this is a sensible rule in a world of major international crime and of the regular passage of persons involved in such crime between different jurisdictions is no doubt not for us to say".

    38. There is, moreover, one express provision of the 1870 Act which as was emphasised during the argument indicates that the jurisdiction of the requesting state is not limited to territorial jurisdiction. Even though most of the crimes listed in the first Schedule can be committed in England or on English vessels which are to be treated as English territory it is clear that "Piracy by law of nations" not only may but has to be committed on the high seas, i.e. although within the jurisdiction it is not committed in the territory of the state.

    39. Mr Fitzgerald QC stressed that if the test is one of jurisdiction unqualified by territoriality people may be extradited under what the United Kingdom would regard as an exorbitant jurisdiction. That however is in my view taken care of, even if the treaty is in general terms not excluding such exorbitant jurisdiction, by the discretion of the Secretary of State either in not requiring the magistrate to arrest the person concerned or by refusing to extradite him at the end of the process. I find helpful two passages from previous speeches in your Lordships' House. The first is that of Lord Bridge of Harwich in R v Governor of Ashford Remand Centre, Ex p Postlethwaite [1988] AC 924, 947:

    "I also take the judgment in that case [In re Arton (No 2) [1896] 1 QB 509, 517] as good authority for the proposition that in the application of the principle the court should not, unless constrained by the language used, interpret any extradition treaty in a way which would 'hinder the working and narrow the operation of most salutary international arrangements.' The second principle is that an extradition treaty is a contract between two sovereign states and has to be construed as such a contract. It would be a mistake to think that it had to be construed as though it were a domestic statute: R v Governor of Ashford Remand Centre, Ex p Beese [1973] 1 WLR 969, 973, per Lord Widgery CJ. In applying this second principle, closely related as it is to the first, it must be remembered that the reciprocal rights and obligations which the high contracting parties confer and accept are intended to serve the purpose of bringing to justice those who are guilty of grave crimes committed in either of the contracting states. To apply to extradition treaties the strict canons appropriate to the construction of domestic legislation would often tend to defeat rather than to serve this purpose."

    40. The second is that of Lord Griffiths in Liangsiriprasert v Government of the United States of America [1991] 1 AC 225, 251:

    "Unfortunately in this century crime has ceased to be largely local in origin and effect. Crime is now established on an international scale and the common law must face this new reality. Their Lordships can find nothing in precedent, comity or good sense that should inhibit the common law from regarding as justiciable in England inchoate crimes committed abroad which are intended to result in the commission of criminal offences in England. Accordingly a conspiracy entered into in Thailand with the intention of committing the criminal offence of trafficking in drugs in Hong Kong is justiciable in Hong Kong even if no overt act pursuant to the conspiracy has yet occurred in Hong Kong. This then is a sufficient reason to justify the magistrate's order…"

    41. Finally I agree with what is said in Jones on Extradition (1995), p 88, para:

    "Although the point was not argued, Liangsiriprasert is to be taken as clear authority for the proposition that the word 'jurisdiction' in the definition of the words 'extradition crime' in section 26 of the 1870 Act and paragraph 20 of Schedule 1 to the 1989 Act is not limited to 'territory'. Neither the Secretary of State in issuing his order to proceed, nor the magistrate exercising his duties under section 10 (paragraph 7 (1)), is required to consider whether there is evidence of criminal conduct committed within the territory of the requesting state. It is sufficient if, were the crime charged in England, he would be entitled to commit."

    42. There is no doubt that conspiracy to murder is a crime within the jurisdiction of the United States and that if the acts were done here it would constitute the crime of conspiracy to murder under English law. In my opinion it was not necessary to show that the acts relied on for the conspiracy were all done in the United States of America, or that enough of them were done to ground jurisdiction.

    43. In these circumstances it is not necessary to prove overt acts in the territory of the United States. It is, however, still necessary to consider whether such evidence was produced as

    "would according to the law of England and Wales, make a case requiring an answer by the prisoner if the proceedings were for the trial in England".

    44. The first criticism made here of the magistrate's decision on the evidence was that he should not have taken account of the affidavit of an anonymous witness CS/1. It is obvious that at trial and also on an inquiry like the present the court should be cautious about admitting anonymous statements or affidavits. But that there is jurisdiction to admit them is clear. On the basis of what was said in R v Taylor (Gary) The Times, 17 August 1994, and by the European Court of Human Rights in Doorson v Netherlands (1996) 32 EHRR 330, both for the purposes of the Convention and the purposes of considering whether the legal proceedings have been fairly conducted at common law, there may have to be a balance of the interests of the defence and of the protection of witnesses. It seems to me that the magistrate and the Divisional Court considered this matter carefully and were satisfied that the protection of the witness CS/1 made it necessary in all the circumstances to preserve his anonymity and that the interests of society in prosecuting required that the evidence be taken into account on the application for extradition. It would be a matter for the trial judge as to whether the statement should be admitted. The parties in Al-Fawwaz agree that if the evidence of CS/1 is admitted there is sufficient to satisfy the requirement of paragraph 7 of the Schedule. That seems to me to be right. I consider that the decision of the Divisional Court in this case, that the magistrate's admission of the evidence, even if anonymous, was fully justified in all the circumstances to which the Divisional Court refer, was correct.

    45. A more detailed argument was made in the cases of Eidarous and Abdel Bary to the effect that the matters relied on were insufficient for the purposes of paragraph 7 of Schedule 1. The Divisional Court on a detailed consideration rejected the submission that the purchase of the satellite telephone and the fact that the text of the Fatwahs were found in their possession were capable of an explanation which had nothing to do with the alleged conspiracy. I refer to, without repeating, their reasons but it is quite plain that the Divisional Court thought that the magistrate had, after consideration of all the material, taken the view that there was sufficient to justify a committal. I agree with that conclusion. I also agree with the Divisional Court's view that even if the reasons given by the magistrate were not detailed they were sufficient to indicate to both the appellants and the court the basis of his decision so as to enable it to be challenged and reviewed on judicial review or appeal.

    46. In my opinion these three appeals should be dismissed.

LORD HUTTON

My Lords,

    47. The three appellants are accused in proceedings before 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 by agreeing:

    "(i)  that citizens of the United States of America would be murdered in the United States of America and elsewhere;

    (ii)  that bombs would be planted and exploded at American embassies and other American installations;

    (iii)  that American officials would be killed in the Middle East and Africa;

    (iv) that American diplomats and other internationally protected persons would be murdered;

    which course of conduct would necessarily involve the commission of the offence of murder."

The three appellants were arrested in London and the United States of America seeks their extradition. An order to proceed with the extradition of Mr Al-Fawwaz was issued on 9 December 1998 in terms that he:

    "is accused of offences which, had they occurred in the United Kingdom, would have constituted the offence of conspiracy to murder, within the jurisdiction of the United States of America".

    48. At a hearing on 8 September 1999, Mr Evans, a metropolitan stipendiary magistrate, held that there was a prima facie case against Mr Al-Fawwaz and committed him to await the decision of the Secretary of State. Mr Al-Fawwaz moved an application of habeas corpus before the Administrative Court of the Queen's Bench Division, which was dismissed on 30 November 2000.

    49. An order to proceed with the extradition of Mr Eidarous and Mr Abdel Bary was issued in similar terms on 21 September 1999. On 25 April 2000 Mr Evans found that there was a prima facie case against both Mr Eidarous and Mr Abdel Bary and committed them to await the decision of the Secretary of State. The two appellants moved an application of habeas corpus before the Administrative Court of the Queen's Bench Division which was dismissed on 2 May 2001.

    50. The principal question which arises on these three appeals is whether the extradition arrangements between the United States of America and the United Kingdom set out in the relevant legislation require the extradition crime to be committed within the territory of the United States of America, or whether it is sufficient that the offence for which extradition is sought is triable in the United States of America and would be triable in England if the accused had been charged there.

    51. The magistrate ruled that it is sufficient that the alleged crime is triable in the United States of America. The Administrative Court in the case of Mr Al-Fawwaz ruled to the contrary and held, accepting the appellant's submission, that where extradition is sought by the United States of America from England there is only jurisdiction to extradite where the crime had been committed within the territory of the United States of America so that it would, as transposed, be committed in England. In making its ruling the court observed that it was not for it to say whether this was a sensible rule in a world of major international crime and of the regular passage of persons involved in such crime between jurisdictions. However the court also held that there was jurisdiction to extradite because there was prima facie evidence that overt acts in furtherance of the conspiracy had taken place within the territory of the United States of America. On the applications for habeas corpus by Mr Eidarous and Mr Abdel Bary a differently constituted Administrative Court followed the ruling of the earlier Administrative Court on the issue whether territorial jurisdiction was required but, as in the case of Mr Al-Fawwaz, ruled that there was jurisdiction because of the evidence of overt acts in furtherance of the conspiracy having taken place in the United States of America.

    52. My Lords, in considering the question whether on an application for extradition to the United States of America the alleged crime must have been committed within the territory of that state and before turning to consider the statutory provisions it is relevant to observe that the general rule is that the courts of a state do not exercise criminal jurisdiction over offences committed outside the territory of that state. In MacLeod v Attorney General for New South Wales [1891] AC 455, 458 Lord Halsbury LC stated: "All crime is local. The jurisdiction over the crime belongs to the country where the crime is committed . . . ". Therefore, in practice, most extradition requests relate to offences committed within the territory of the requesting state. But, increasingly, in modern times in order to combat international crime and terrorism, it has been recognised by democratic states that extra-territorial jurisdiction should be taken by individual states over certain crimes. Thus in 1982 in pursuance of an international convention the United Kingdom took extra-territorial jurisdiction over the offence of taking a hostage (see section 1 of the Taking of Hostages Act 1982) and in 1988 in pursuance of an international convention extra-territorial jurisdiction was taken over the offence of torture by a public official or a person acting in an official capacity (see section 134 of the Criminal Justice Act 1988).

    53. In 1973 the United Nations General Assembly adopted the Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons. Under the Internationally Protected Persons Act 1978 "a protected person" includes a person who is a representative or an official of a state or an official or agent of an international organisation of an inter-governmental character and who is entitled under international law to special protection from attack on his person: section 1(5). Section 1(1) of the 1978 Act provides:

    "If a person, whether a citizen of the United Kingdom and Colonies or not, does outside the United Kingdom—

    (a) any act to or in relation to a protected person which, if he had done it in any part of the United Kingdom, would have made him guilty of the offence of murder [and other offences against the person]; . . .

    he shall in any part of the United Kingdom be guilty of the offences aforesaid of which the act would have made him guilty if he had done it there".

It is common ground that internationally protected persons were to be the victims of the conspiracy of which the appellants are accused.

    54. Section 1(3) of the Extradition Act 1989 provides:

    "Where an Order in Council under section 2 of the Extradition Act 1870 is in force in relation to a foreign state, Schedule 1 to this Act (the provisions of which derive from that Act and certain associated enactments) shall have effect in relation to that state, but subject to the limitations, restrictions, conditions, exceptions and qualifications, if any, contained in the Order."

On the date on which the 1989 Act came into force an Order in Council (United States of America (Extradition) Order 1976), setting out in a schedule the Extradition Treaty between the United Kingdom and the United States of America, was in force. Therefore the extradition of an offender to the United States of America is governed by Schedule 1 to the 1989 Act.

    55. Paragraph 20 of Schedule 1 defines an "extradition crime" as follows:

    "'extradition crime', in relation to any foreign state, is to be construed by reference to the Order in Council under section 2 of the Extradition Act 1870 applying to that state as it had effect immediately before the coming into force of this Act and to any amendments thereafter made to that Order;"

The Order in Council (the United States of America (Extradition) Order 1976) provides in paragraph 3:

    "The Extradition Acts 1870 to 1935, as amended or extended by any subsequent enactment, shall apply in the case of the United States of America in accordance with the said treaty of 8 June 1972."

Article III of the treaty provides:

    "Extradition shall be granted for an act or omission the facts of which disclose an offence within any of the descriptions listed in the Schedule annexed to this treaty, which is an integral part of the treaty, or any other offence, if: . . .

    (b)  the offence is extraditable under the relevant law, being the law of the United Kingdom or other territory to which this treaty applies by virtue of sub-paragraph (1)(a) of article II; …"

Therefore to determine the meaning of the term an "extradition crime" at the present time when a request for extradition is made by the United States of America it is necessary to read section 26 of the Extradition Act 1870 which provides:

    "The term '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 this Act:"

    56. Paragraph 20 of Schedule 1 to the 1989 Act defines a "fugitive criminal" as follows:

    "'fugitive criminal' means any person accused or convicted of an extradition crime committed within the jurisdiction of any foreign state who is in or is suspected of being in some part of Her Majesty's dominions;"

Therefore two questions arise (i) Were the appellants "fugitive criminals" as defined in paragraph 20 of Schedule 1 to the 1989 Act? and (ii) Was the crime alleged against the appellants an "extradition crime" as defined by section 26 of the 1870 Act?

(i)  Were the appellants "fugitive criminals"?

    57. The answer depends on whether the crime alleged was "committed within the jurisdiction of [the] foreign state"— in this case the United States of America. An ordinary meaning of the term "the jurisdiction of the state", is the power of that state to try an offence and includes extra-territorial jurisdiction. Thus it is clear that under the Internationally Protected Persons Act 1978 a United Kingdom court has jurisdiction to try a charge of murder of a protected person when the murder is committed outside the United Kingdom. It is not in dispute that the court in the United States of America has extra-territorial jurisdiction under United States law to try the charge of conspiracy against the appellants notwithstanding that the conspiracy to murder was entered into outside the United States of America and that no overt acts by the appellants in pursuance of conspiracy may have been committed within the territory of the United States of America. Accordingly it would appear prima facie that the alleged conspiracy was committed "within the jurisdiction" of the United States.

    58. However, Mr Fitzgerald QC for Mr Al-Fawwaz submitted, and his submission was adopted by counsel for the other two appellants, that in the 1870 Act and the treaty with the United States of America the term "jurisdiction" must be confined to "territorial jurisdiction", though including vessels at sea and colonies, and must be so confined today because the 1989 Act provides in respect of extradition requested by the United States of America that, in effect, extradition under Schedule 1 to that Act is to be governed by the provisions of the 1870 Act and the Order in Council made under it.

    59. Counsel submitted that in 1870 the common understanding of jurisdiction in relation to extradition was that it meant the territorial jurisdiction of the state and that an extradition crime was a crime committed within the territory of the requesting state. He relied on the judgments of the majority of the Divisional Court in In re Tivnan (1864) 5 B&S 645 where an act of piracy was committed on an American ship. The United States of America sought the extradition of persons charged with piracy from England and the terms of the 1842 treaty and the Extradition Act 1843 provided for the delivery of any person charged with certain crimes, among them piracy, committed "within the jurisdiction" of the United States of America. The majority accepted the argument on behalf of the prisoners that "jurisdiction" in the Act and the treaty meant the exclusive and peculiar jurisdiction of the United States of America and that as piracy iure gentium was triable by all states, the charge against the prisoners was not within the exclusive jurisdiction of the United States of America and therefore the prisoner should be discharged.

    60. Counsel cited Clarke, The Law of Extradition 4th ed (1903), p 235 which stated in respect of the provisions of the 1870 Act:

    "To justify a magistrate in committing there must be some evidence that the accused committed the crime within the jurisdiction, ie the territory of the country seeking his extradition."

Counsel also pointed to section 25 of the 1870 Act which provided:

    "For the purposes of this Act, every colony, dependency, and constituent part of a foreign state, and every vessel of that state, shall (except where expressly mentioned as distinct in this Act) be deemed to be within the jurisdiction of and to be part of such foreign state."

He submitted that the Act would not have deemed the jurisdiction of a state to extend to a vessel unless otherwise the term "jurisdiction" was intended to apply only to the territory of the state.

    61. Section 2(1) of the 1989 Act expressly provides that, except in Schedule 1, "extradition crime" includes an extra-territorial offence against the law of a foreign state provided that equivalent conduct would constitute an offence against the law of the United Kingdom. Counsel submitted that this provision in respect of extra-territorial crime, which expressly did not apply to Schedule 1, supported his argument that proceedings under the 1870 Act and Schedule 1 were confined to crimes committed within the territory of the requesting state.

    62. He made a similar point in respect of paragraph 15 of Schedule 1 to the 1989 Act which provides:

    "For the purposes of this Schedule any act, wherever committed, which is any of the following offences—

    (a)  an offence mentioned in paragraph (a) of subsection (1) of section 1 of the Internationally Protected Persons Act 1978 which is committed against a protected person within the meaning of that section;

    (b)  an offence mentioned in paragraph (b) of that subsection which is committed in connection with such an attack as is so mentioned;

    (c)  an attempt to commit an offence mentioned in the preceding paragraphs;

    (d)  an offence under section 1(3) of the Internationally Protected Persons Act 1978;

    (e)  an offence under the Taking of Hostages Act 1982 or an attempt to commit such an offence;

    (f)  an offence mentioned in paragraphs (a) to (d) of subsection (1) of section 1 of the Nuclear Material (Offences) Act 1983 which is committed by doing an act in relation to or by means of nuclear material, as defined in that Act;

    (g)  an offence under section 2 of that Act;

    (h)  an attempt to commit an offence mentioned in paragraph (f) or (g) above; or

    (i)  torture,

    and an offence against the law of any state in relation to which this Schedule has effect shall be deemed to be an offence committed within the jurisdiction of that state."

Counsel submitted that if the words "within the jurisdiction of any foreign State" in the definition of "fugitive criminal" in paragraph 20 of Schedule 1 (derived from section 26 of the 1870 Act) included extra-territorial jurisdiction, there was no need for the deeming provision of paragraph 15.

    63. Counsel advanced an additional argument on the issue of jurisdiction based on Article IX of the treaty with the United States of America. Article IX (1) provides:

    "Extradition shall be granted only if the evidence be found sufficient according to the law of the requested party either 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 or to prove that he is the identical person convicted by the courts of the requesting party".

Counsel submitted that Article IX required that before there can be extradition there must be an offence committed within the territory of the requesting state which is the counterpart of the hypothetical offence described in Article IX as "committed in the territory of the requested party". He submitted that there was no point in making the hypothesis that the offence is committed within the territory of the requested state if the offence had not been committed within the territory of the requesting state.

    64. My Lords, I consider that the submissions advanced on behalf of the appellants should not be accepted. My principal reason for forming this opinion is that in the modern world of international terrorism and crime proper effect would not be given to the extradition procedures agreed upon between states if a person accused in a requesting state of an offence over which that state had extra-territorial jurisdiction (it also being an offence over which the requested state would have extra-territorial jurisdiction) could avoid extradition on the ground that the offence was not committed within the territory of the requesting state. In my opinion a court should not construe a statute or a treaty to have such an effect unless the wording compels it to do so. I consider that the argument advanced on behalf of the appellants that "jurisdiction" means territorial jurisdiction was powerfully answered by Cockburn CJ in his judgment in In re Tivnan 5 B&S 645, 678, and although his judgment was a dissenting one the view which he expressed was a prescient one foreshadowing statements made in this House in more recent times by Lord Bridge of Harwich in R v Governor of Ashford Remand Centre, Ex p Postlethwaite [1988] AC 924, 947, and by Lord Griffiths in Liangsiriprasert v Government of the United States of America [1991] 1 AC 225, 251. Cockburn CJ stated:

    "It is said, and with truth, that the primary and original mischief, which the statutes of extradition meant to prevent, was that of persons committing crimes in one state, and escaping beyond the reach of the law of that state, and so enjoying impunity; and it is also contended that for that purpose alone were those statutes passed. That that was their primary and principal object I entertain no doubt, but that that was the only one I entertain great doubt; for it is impossible not to see that the mischief which it is the object of all civilized states to prevent is not limited to such cases."

 
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