West Law Report

MUSTAFA (AKA ABU HAMZA) v UNITED STATES & ANR

Posted in Westlaw Reports by mrkooenglish on July 16, 2008

Last Updated: 3:12PM BST 09/07/2008
Divisional Court

Sir Igor Judge P, Sullivan J

June 20, 2008

Assurances – Delay – Extradition requests – Inhuman or degrading treatment or punishment – Right to respect for private and family life – Torture – Evidence allegedly tainted by torture – Risk of inhuman or degrading treatment – Interference with right to respect for family life – Art. 3 European Convention on Human Rights 1950 – CPR PD 54 (Judicial Review) 2000 – Art. 8 European Convention on Human Rights 1950 – s. 103 Extradition Act 2003

FACTS

The appellant (M) appealed against an order of a district judge sending his case to the second respondent secretary of state for her decision whether he should be extradited, and against the secretary of state’s decision ordering his extradition to the first respondent requesting state, the United States. M, who had physical disabilities and was in a state of ill-health, had been indicted in the United States on a number of terrorism-related charges, including conspiracy charges, relating to taking of hostages in Yemen that resulted in deaths and serious injuries of several hostages, making arrangements for an alleged terrorist training camp in the United States, and violent jihad in Afghanistan.

The US requested extradition but those proceedings were adjourned when M was charged with offences contrary to domestic law in the United Kingdom. The proceedings were resumed approximately three years later. M submitted that (1) contrary to the European Convention on Human Rights 1950 art. 3, the request for extradition was based on evidence obtained directly or indirectly by torture or ill-treatment of certain individuals and, therefore, the request for extradition was tainted; (2) there was a real risk that, if extradited, he would be subjected to torture or ill-treatment, and it would be inappropriate to rely on diplomatic assurances tendered by the US; (3) there would be a disproportionate interference with his rights under art. 8 of the Convention as he would be deprived of the family visit he was enjoying in the UK; (4) due to the passage of time since the alleged offences had been committed, it would be unjust and oppressive to extradite him.

ISSUES

(i) Whether the request for extradition was tainted.

(ii) Whether there was a real risk that, if extradited, M would be subjected to torture or ill-treatment, and it would be inappropriate to rely on diplomatic assurances tendered by the US.

(iii) Whether there would be a disproportionate interference with M’s rights under art. 8 of the Convention as he would be deprived of the family visit he was enjoying in the UK.

(iv) Whether due to the passage of time since the alleged offences had been committed, it would be unjust and oppressive to extradite M.

HELD (appeals dismissed)

(1) When the possible use of direct “torture” was addressed, it emerged that none of the victims of alleged torture provided evidence against M. Evidence obtained indirectly by torture was, in principle, admissible under domestic law and in that respect there was no fundamental difference between the approach to such evidence either in the UK or the US. The allegation that the evidence against M was “tainted by torture” was made in the most general terms, was unsupported by evidence and failed to distinguish between evidence that was the indirect result of torture and that which was indirectly obtained as a result of ill-treatment falling short of torture. The underlying contention that the approach in the US to evidence tainted by torture was “deficient”, because evidence that a witness had been tortured would go to weight rather than admissibility (a) did not address the fact that the case against M did not rely on evidence from any witness who was said to have been tortured, or from the torture of M himself; (b) drew a legal distinction between admissibility and weight which was, on the facts of the instant case, a distinction without any practical difference; and (c) was in conflict with authorities in the US and with the understanding of the House of Lords and the European Court of Human Rights about the approach of courts in the US to such evidence, A v Secretary of State for the Home Department [2005] UKHL 71, [2006] 2 AC 221 and Jalloh v Germany (54810/00) [2007] 44 EHRR 32 considered. None of the material relied on by the US carried anything of the smell of the torture chamber sufficient to require its exclusion in a trial in the UK.

(2) In view of the history of unswerving compliance by the US with diplomatic assurances, the diplomatic assurance given in respect of M would be honoured. If convicted M would be sentenced to very lengthy terms of imprisonment and, in all likelihood, a whole life tariff would be imposed. Of itself that would not constitute a breach of art. 3. Further M’s detention for a short period in a US “supermax” prison would not be incompatible art. 3. His ill-health and physical disabilities would be considered.

(3) The more serious the offence, the longer the likely sentence and the greater the interference with the extraditee’s art. 8 rights, but the common approach to terrorism throughout the civilised world would be derailed if an extradition process that might culminate in amply-justified sentences of huge length, to be served in prisons abroad, could, save in the most exceptional circumstances, constitute a breach of art. 8.

(4) The delay in the proceedings was consequent upon the legitimate purpose of bringing M’s additional criminal activity in the UK to justice. It would not be “unjust” or “oppressive” for M to be extradited to the US to face charges.

(5) The order made by the district judge had been properly made, and the subsequent decision of the secretary of state was unassailable.

(6) (Obiter) Until further guidance was issued, CPR PD 54 para. 15 should be adopted for the purposes of appeals under the Extradition Act 2003 s. 103.

Alun Jones QC, Ben Brandon (instructed by Arani & Co, Southall) for the appellant. Hugo Keith and Clair Dobbin (instructed by Crown Prosecution Service) for the first respondent. James Eadie QC (instructed by Treasury Solicitor) for the second respondent.

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