COURT OF APPEAL (CIVIL DIVISION)
Strand, London, WC2A 2LL
B e f o r e :
LADY JUSTICE SMITH DBE
LORD JUSTICE HOOPER
| The Queen on the application of Lotfi Raissi
|- and -
|Secretary of State for the Home Department
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Mr Khawar Qureshi QC (instructed by The Treasury Solicitors) for the Respondent
Hearing date: 5 December 2007
Crown Copyright ©
LORD JUSTICE HOOPER:
This is the judgment of the court to which all members of the court have contributed.
|The Ex Gratia Scheme||4|
|The Claim in Summary||5|
|The Home Secretary's Decision||12|
|Judicial Review Proceedings||13|
|The Factual Background- Arrest and Detention by the Police||18|
|The Commencement of the Extradition Proceedings||31|
|Court Appearance - 28 September 2001||47||The Law relating to Remand in Custody and Bail Applications within Extradition Proceedings||55|
|Court Appearance – 5 October 2001||58|
|Court Appearances – 26 October and 27 November||61|
|Application for Bail to High Court Judge||66|
|Further Magistrates' Court Hearings||92|
|The Extradition Hearing||97|
|The Application for Compensation under the ex Gratia Scheme||100|
|The Appeal to this Court||106|
|Scope of the Scheme – Interpretation||107|
|An additional matter||155|
"Your client appeared before me on a number of occasions when allegations of terrorism were made - the court has received no evidence at all to support that allegation."
The Ex Gratia Scheme
"There is no statutory provision for the payment of compensation from public funds to persons charged with offences who are acquitted at trial or whose convictions are quashed on appeal, or to those granted free pardons by the exercise of the royal prerogative of mercy. Persons who have grounds for an action for unlawful arrest or malicious prosecution have a remedy in the civil courts against the person or authority responsible. For many years, however, it has been the practice for the Home Secretary, in exceptional circumstances, to authorise on application ex gratia payments from public funds to persons who have been detained in custody as a result of a wrongful conviction."
[The next passage of the Home Secretary's answer referred to his preparedness to pay compensation as required by the government's international obligations. The wording of the quoted article 14.6 of the International Covenant on Civil and Political Rights was to be very closely followed in subsequent legislation – that is section 133 of the Criminal Justice Act 1988.]
"I remain prepared to pay compensation to people who do not fall within the terms of the preceding paragraph but who have spent a period in custody following a wrongful conviction or charge, where I am satisfied that it has resulted from serious default on the part of a member of a police force or of some other public authority.
There may be exceptional circumstances that justify compensation in cases outside these categories. In particular, facts that may emerge at trial, or on appeal within time, that completely exonerate the accused person. I am prepared, in principle, to pay compensation to people who have spent a period in custody or have been imprisoned in cases such as this. I will not, however, be prepared to pay compensation simply because at the trial or on appeal the prosecution was unable to sustain the burden of proof beyond a reasonable doubt in relation to the specific charge that was brought."
We will refer to the last two paragraphs as the first and second paragraphs of the scheme.
The Claim in Summary
"We put him in the category of maybe or maybe not, leaning towards probably not. Our goal is to get him back here and talk to him to find out more".
The appellant's solicitor was told by the Washington Post that the statement was made on condition of anonymity.
The Home Secretary's Decision
Judicial Review Proceedings
"... it seemed to me that he sought to re-open his application to proceed on the serious default ground".
Auld LJ, with whom Wilkie J agreed, went on to say that he, like Ouseley J, saw no merit in the serious default allegation.
The Factual Background- Arrest and Detention by the Police
The Commencement of the Extradition Proceedings
"On September 25 2001, I received all the pilot records for Lotfi Raissi from Special Agent Don McMullen, Federal Aviation Administration (FAA), Civil Aviation Security Division, Los Angeles, CA. A review of these records indicate that on April 5 2000, Raissi signed and completed a medical certificate application (FAA Form 8500-8) in which he advised he had knee surgery performed on December 7, 1999. On June 19, 2001, Raissi signed and completed a subsequent medical certificate application ... in which he did not disclose his previous knee surgery nor that he had been to a health professional in the last three years to have that knee surgery. This medical certificate application (FAA Form 8500-8) was then submitted to Dr John E McCarville, 4426 E. Osborn Road, Phoenix, Arizona for his flight physical.
"On September 27 2001, I telephonically contacted the receptionist at the office of Dr Bowman, 8618N, 35th Avenue, Phoenix, Arizona. She advised that Dr Bowman had first seen Raissi on November 16 1999 for a consultation. Dr Bowman then performed knee surgery on Raissi's right knee on December 7 1999. Raissi then came into Dr Bowman's office for two post-op follow-up visits in 2000."
Court Appearance - 28 September 2001
"The prosecution stated that there was telephone evidence linking the Claimant to all of the hijackers. Reference also to video evidence linking Mr Raissi to Mr Hanjour (one of the 9/11 pilots). Various newspapers quote Ms Sambir (CPS lawyer) stating that Mr Raissi's job was to ensure that the pilots were capable and trained. A Guardian Unlimited article quoted her as saying:
"It is no secret that we are looking at charges of conspiracy to murder, what we say is that Mr Raissi was in fact an instructor for four of the pilots responsible for the hijackings and the one we are particularly concerned about is the one that crashed into the Pentagon, Hani Hanjour."
The Law relating to Remand in Custody and Bail Applications within Extradition Proceedings
"Ex parte Lee  Cr App R 304 recognises an ongoing duty of disclosure from the time of arrest. The Court of Appeal emphasised that at the stage before committal, there are continuing obligations on the prosecutor to make such disclosure as justice and fairness may require in the particular circumstances of the case, that is, where it could reasonably be expected to assist the defence when applying for bail. This will ensure that the defendant enjoys "equality of arms" with the prosecution."
Court Appearance – 5 October 2001
"Unsuccessful bail application on the ground that Mr Raissi would fail to surrender. Allegations on the arrest warrant still described as "holding charges" and that he would shortly be charged with conspiracy to murder. The "lead instructor" claims were reduced to asserting that Mr Raissi had flown together with Hanjour between 1997 and 2000 on three unspecified occasions.
4. In relation to telephone contact, the allegation was reduced to the assertion that Mr Raissi and Mr Hanjour were in regular 'telephone' contact between 1997 and 2001. Reference again to video evidence linking the Claimant to Mr Hanjour."
Court Appearances – 26 October and 27 November
"Papers have not yet been served on the defence. The defendant's treatment at hands of United States Government is nothing short of outrageous. The United States Government originally opposed bail on the grounds that these were holding charges only. Bail was opposed for post September 11 considerations. Prospect of fuller charges was held out. Now that the request has been received [23 November], we know the truth. Failure to disclose a knee injury and theft in another jurisdiction. D disclosed the knee injury to other United States departments including the Department of Justice.
The United States Government seeks to rely on an unspecified connection with Doha. Still no details of the persons with whom he trained. The flying log has not been received. There must be a connection between the grounds of bail and matter alleged. Cannot allege on-going investigation. The on-going investigation is not linked to charges D faces.
The United States Government has had sixty days to produce evidence. Grand Juries meet in secret. The defendant did not know of the immigration allegations until today. Last time we were told Raissi and the other person (Heszler?)(we think this must mean Hanjour) were seen on a video image. This is no longer asserted. No charge on the flying school allegation has been made. Cannot therefore use it as an objection to bail. The defendant has strong community ties; he has never failed to surrender. £10,000 security offered. Passport will be surrendered. Condition of residence. If the defendant simply charged with two counts of perjury, he could not be? There has been a grotesque abuse of this court. No further evidence has been forthcoming. (Underlining added)
"It is alleged a terrorist connection with those concerned in the atrocity on 11 September. Although (?tenuous) I think it may deter the Defendant from attending".
Application for Bail to High Court Judge
"Raissi is the subject of an on-going investigation into the September 11, 2001 terrorist attack … in violation of several Federal statutes, including, but not limited to providing material support to terrorists…; acts of terrorism transcending national boundaries…; the destruction of, and conspiracy to destroy, aircraft…; bombing and bombing conspiracy…; murder and conspiracy to murder officials and employees of the United States…; and air piracy".
The affidavit went on to say that the FBI had interviewed one Ahmed Ressam, an Algerian national arrested in December 1999 in the United States. After his conviction for terrorist offences, Ressam had agreed to co-operate with the Government. He had stated that he became acquainted with an individual known as Abu Doha, who was understood by Ressam to be heavily involved in the terrorist activities of an Algerian cell linked with al-Qaeda. It was said that Abu Doha had been indicted and was in custody in the United Kingdom pending his extradition.
"Although it has not yet been determined whether Raissi and Hanjour actually trained together at [this second school] records do indicate that they each used the AST-300 simulator".
Also, it was said that a member of Raissi's simulator club at this second school reported that he knew Hanjour and that, in about 1999, he had attended a party at which he saw Raissi together with Hanjour.
"In or about January 2001 Raissi attended an aviation school in the United Kingdom and one of the individuals familiar with him has reported that Raissi asked fellow students 'if a plane were to fly into something would it be the pilot or aircraft that did it'. Another person said that Raissi expressed bitterness towards the United States and the United Kingdom and stated that 'America's time is coming' or words to that effect. An associate of Raissi in Phoenix, Arizona had reported to the FBI that Raissi had been outspoken in his opposition to US foreign policies, particularly those towards Israel and the Palestinians. A second associate in Phoenix had reported that he was outspoken and angry concerning US foreign policy and the presence of United States troops in Saudi Arabia".
"The investigation of Raissi and his activities that may have been in furtherance of or ... facilitating Hanjour and his confederates is continuing. Given the secretive nature of the activities of the al Qaeda terrorist network, this investigation is complex and time-consuming. (Underlining added)
"5.8 In December 2001 it was noted by a fellow agent that some errors existed in Special Agent Plunkett's affidavit. Raissi did not enrol at Arizona Aviation until the November, and the school did not have a simulator, although they both took flight training there. It was also stated that the records at Sawyer's were unclear and it was an error to indicate that the records held there indicated that Hanjour and Raissi each used the simulator at that school. Hassan had however indicated to the FBI that both Hanjour and Raissi had both used the simulator.
The noted errors appear important. We do not know if or when this material was disclosed to the appellant or the court.
"At the same time, certain matters upon which the US Government continues to rely differ in the way in which they are now put. On 5 October 2001, during the bail application, it was said that Mr Raissi had flown together with Mr Hanjour on three occasions; on 27 November 2001 it was suggested that they had trained together on one occasion. Now it is said that both men took 'flight simulator training on the same days at Arizona Aviation' on five occasions. Although it is said that 'efforts are being made to determine whether it was coincidence', no evidence to demonstrate whether they did train together or, if they did, whether it was an innocent association has been produced despite the fact that it is now two months since this straightforward allegation was first raised on his arrest. I am particularly concerned as it is my belief that there is no flight simulator at Arizona Aviation at all.
I note that W Ryan Plunkett asserts in paragraph 2 that Mr Raissi 'is the subject of an on-going investigation into the September 11 2001 terrorist attacks…' and gives, in paragraphs 3 to 11, an account of al Qaeda's alleged terrorist activities. However it is absolutely plain that the United States Government simply do not, and cannot, seek Mr Raissi's return in relation to any alleged terrorist activity whatsoever. The implied reference to the possibility that there may, in the future, be evidence linking Mr Raissi to those events is, in my opinion, an attempt simply to prejudice his chances of bail in relation to those relatively minor matters for which his return is actually being sought".
"This is a disingenuous interpretation of events. Documents now disclosed by the FBI (as a result of a request made by me on Friday 30 November 2001) establish that although Mr Raissi's log book erroneously gives 8 March 1999 as the date upon which he flew in the relevant plane (the one in which Hanjour and Hassan flew, according to their own log books, on 8 March 1999), he in fact flew in that plane on 9 March 1999:
Mr Hanjour's log book shows that he flew for 1½ hours on 8 March 1999, the same amount of time demonstrated on the plane's rental agreement which Mr Hanjour signed. For his part, Mr Hassan's log book confirms that he similarly was in the plane for 1½ hours that day. Indeed he has notated his logbook to show that he was flying with Mr Hanjour that day and accordingly also countersigned Mr Hanjour's log book for that day. Neither on the rental agreement or on the log books of either man is there any mention of Mr Raissi. Nor is his log book counter-signed by Mr Hassan.
An examination of a second rental agreement dated 9 March 1999 shows, however, that the plane was rented the next day by Mr Samir Hariri who was Mr Raissi's student. In addition, an entry in the rental agreement shows that the plane was flown for 1.7 hours. Mr Raissi's log book also correctly shows that he flew for 1.7 hours. However, the date of that flight is erroneously given as 8 March 1999 and not 9 March 1999. Subsequent entries in the log book have not been disclosed by the FBI. There is now produced and shown to me as Exhibit RWE/3 a copy of the above records.
In addition, the flight movements and manoeuvres revealed by the log book entries for 8 March 1999, in respect of both Mr Hanjour and Mr Hassan, reveal a completely different RWC destination and pattern of flying from that entered in Mr Raissi's log book for that day, thus supporting the conclusion that Mr Raissi did not in fact fly on 8 March 1999 with the other two men".
"I telephoned Mr Hassan on 2 December 2001. He told me that he had in fact been interviewed twice by the FBI and had fully co-operated with their enquiries. He confirmed to me that he had never flown a plane with both Mr Raissi and Mr Hanjour, and indeed did not know whether they even knew each other. He told me he had told this to the FBI."
"The revelation, for the first time, that Mr Raissi is said to have expressed bitterness towards the United States is one such example. These specious allegations appear to have only the weakest foundations and are clearly inconsistent with the amount of time that Mr Raissi spent in the United States (including his honeymoon). It is said that 'given the secretive nature of the activities of the al Qaeda terrorist network, this investigation is complex and time consuming'. Yet the United States Government is not seeking Mr Raissi's return on charges relating to terrorist activity. The most that is alleged is that he may have attended flight training at the same time as Mr Hanjour. So, no doubt, did many others."
"Lastly, I have been informed of the true nature of the eleven further charges upon which Mr Raissi was charged by a grand jury on 27 November 2001. Although no indictment has been disclosed to me by the United States Government (despite the fact that reliance is placed in this bail application upon the fact of those charges), I have obtained a copy from America. It reveals that four charges (1, 2, 9, 11) concern the alleged submission by Mr Raissi and Mr Dahmani of a false asylum application on behalf of Redoune Dahmani (not Mr Raissi), while the majority of the remainder (4, 5, 6, 7, 8) simply repeat the allegation contained in one of the charges before this court, namely that he failed to disclose to the FAA the fact of his 1993 UK conviction. Charges 3 and 10 similarly allege failure to disclose the conviction on his visa application. None of the charges are relatively serious and none relate to alleged terrorist activity."
"What makes this a particularly difficult case is not the offences themselves but, first of all, the part that those offences in part are said to play or to demonstrate was played by Mr Raissi in relation to the terrorist attack in New York and Washington on 11th September, but, more particularly, Mr Gibbins says that there is an ongoing investigation which is a very complex drawing together of threads, a web of circumstantial evidence, which he contends will lead to a serious terrorist related charge, probably one of conspiracy to murder. It is that which gives the court concern."
"Of course if there is a real prospect that charges of that nature will be brought then the inevitable conclusion is that it is very likely that the applicant will not attend the relevant proceedings and a court would have substantial grounds for believing that he would abscond. The very seriousness of the offences would lead to that."
"It is inevitable that a certain amount of leeway is given to somebody who is seeking to investigate a crime of that nature, both because of the nature of the crime and because of the complexity of the investigation. (Miss Malcolm) submits that Mr Raissi has been in custody long enough for there to be rather more produced than in fact has been, and she endeavours to meet the grouping of points raised by Mr Gibbins by pointing out a number of features of those which are not as strong as might be thought."
She obviously faces the problem that a number of points which she said initially were dropped then came back, for example, the assertion that there were telephone communications between Mr Raissi and Mr Hanjour; a fresh allegation was made today that Mr Raissi had introduced Mr Hanjour, the pilot of the plane that crashed into the Pentagon, into the apartment where Mr Raissi was staying. There is very little that she can do to deal with an assertion of that sort, an assertion which is not backed up by explicit affidavit evidence but I am sure that as a key point would be."
Further Magistrates' Court Hearings
"I am concerned that I have not been given as much information as I would have expected at this stage. You are not in a position to tell me whether the US is to proceed on serious charges?"
To that, the CPS replied: "I have no instructions to this effect". DJ Workman then said that the request to know what charges the appellant faced "seems a reasonable request" and continued:
"If the Government are unable to give an assurance for the court, I will proceed [on the basis] that no information will be forthcoming, and deal with bail accordingly."
"Matters in bail (sic) need not be relevant to the charge. The investigation into him as a suspect weighs for more than previous convictions or FTA. The fact that he is a suspect is a compelling reason that he will not appear on the charges. It is an irresistible conclusion that given his background as a suspect, he will fail to attend."
We will return later to consider the correctness of that submission. DJ Workman granted the appellant bail notwithstanding the objections of the CPS.
The Extradition Hearing
"Your client appeared before me on a number of occasions when allegations of terrorism made- the court has received no evidence at all to support that allegation. (Underlining added)"
In response to that, Mr Lewis said that it was perfectly right that there was no evidence of terrorism before the judge but the instructions of the US Government were that the appellant was the subject of on-going investigations into the 9/11 attacks.
The Application for Compensation under the ex Gratia Scheme
i) In court on 28 September 2001 the CPS described Raissi as a 'lead instructor' of the five 9/11 pilots. Records available to the CPS at that time showed that in fact Raissi had flown separately from Hanjour and that Hanjour was taught by other instructors. This was confirmed by interviews of Raissi conducted by DC Stevenson. The CPS' description of Raissi was therefore not only unsupported by the available evidence, but was in fact contradicted by it;
ii) However, the CPS lawyer, Ms Arvinda Sambir, went further outside court and said that Raissi's job was to ensure that the pilots were capable and trained. Again, she had no evidence to support this statement;
iii) At the next hearing on 5 October 2001, the CPS modified the allegation, saying simply that Raissi had flown together with Hanjour between 1997 and 2000 on three unspecified occasions. This was also misleading. The flight records showed simply that Raissi and Hanjour may have flown on the same day, and even used the same aircraft, but not at the same time, and therefore not 'together';
iv) The statement of Ryan Plunkett asserted that Hanjour, Raissi and Mr Hassan trained together in a plane on the 8 March 2001. However, Richard Egan's statement explained that the 8 March 2001 entry in Raissi's log book was a mistake and that he in fact flew on 9 March 2001. He also observed that the log book showed that the flights undertaken by Hanjour and Raissi were for different durations and involved different manoeuvres;
v) At the hearing on 27 November 2001, the CPS asserted that Raissi trained Hanjour at least once. However, they admitted 'there were no flight records to support the allegation';
vi) Mr Plunkett said that Raissi trained Hanjour on a flight simulator, and that they had taken flight simulator training at Arizona Aviation on the same day on five occasions.
vii) At the High Court Bail application on 10th December 2001, the CPS conceded there was no flight simulator at Arizona Aviation. However, they stated that there was one at Sawyer Aviation and that Hanjour and Raissi may have undertaken simulator training together, although the records were unclear;
viii) In fact, the flight training schools records, which had been available to the CPS from the beginning of the extradition proceedings, not only did not support their case that Raissi trained Hanjour, but contradicted it by revealing Hanjour's other flight instructors. In saying the records were unclear, rather than accepting that the allegation was unsubstantiated, the CPS misled the court;
ix) Mr Pontin of SO13 misled Mr Egan in telling him that the FBI had not spoken to Mr Hassan, Mr. Hanjour's instructor. In fact, as Mr. Hassan informed Mr Egan shortly after his conversation with Mr Pontin, the FBI had interviewed him twice, and he had told them he had never flown a plane with Raissi and Hanjour. He had also said he did not even know if they knew each other;
x) The CPS never conceded that Hanjour and Raissi did not fly or train together. On 12 February 2002 they asserted that only one matter had changed in their reasons for opposing bail and that was the alleged link between Raissi and Mr Abu Doha. It was implicit in this that one of their grounds of opposition – that Raissi flew with or trained Hanjour – was maintained, despite there being no supporting evidence;
xi) The CPS also stated in unqualified terms (on 28 September and 5 October 2001) that there was video evidence of Raissi and Hanjour together. However, it was clear from only a cursory examination of the material that the man photographed with Raissi was not Hanjour. The CPS had produced no evidence of anyone saying that the other man was Hanjour. Mr Egan explained in his statement of 28 November 2001 that the man was Raissi's cousin. Nonetheless, the CPS continued to maintain at the High Court bail application that it was Hanjour.
xii) It is plain that the CPS neither produced nor possessed any evidence of any kind that showed that Raissi had trained Hanjour or any of the other hijackers.
xiii) The broader allegation made by the CPS on 28 September 2001 of a general link between Raissi and the hijackers was also unsupported by the evidence. On 5 and 26 October 2001, and at the High Court bail hearings, they said simply that Raissi regularly telephoned Hanjour and that they travelled together. In fact Raissi's telephone bills, which the CPS had in its possession, indicated no contact at all with Mr Hanjour. No other evidence was provided to support any of these assertions;
xiv) As for the alleged link between Raissi and Abu Doha, this was based on the misleading impression given by Mr Plunkett that an address book was found at a property in London belonging to Abu Doha, and contained a telephone number of a flatmate of Raissi. There was an implication in Mr. Plunkett's statement that the book belonged to Abu Doha. In fact, the tenant of the property in question was Mr Abdelaziz Kermani, who subsequently gave evidence that the address book was his, and that that would have been apparent to anyone recovering it. Among other things, it had his Home Office reference number on the front of it, was in a locked brief case in his bedroom, and was with his British and Algerian driving licences, his Algerian ID card and correspondence addressed to him;
xv) The Metropolitan Police and the CPS were aware of the evidence strongly suggesting the address book belonged to Kermani, not Abu Doha. The misrepresentation of the book as providing a link between Raissi and Abu Doha must have arisen from the actions of either or both of those authorities;
i) It was not plausible for the CPS and the Metropolitan Police to assert that before interviewing Kermani they had inferred that the address book belonged to Abu Doha. The fact that the book had Kermani's Home Office reference number on the front, as well as the other circumstances in which it was found, pointed strongly to it belonging to Kermani. If, despite these indicators, there was any doubt about Kermani's ownership, it was surprising that he was not questioned at an earlier stage (the book had been discovered between February 2000 and February 2001);
ii) The CPS' contention that the book had been found at the premises of Abu Doha, who was suspected of links to the Al-Qaeda network, and was awaiting extradition to the US on terrorism charges, became a main plank of their objections to bail. In the absence of disclosure, the best the Defence could do about the allegation was to argue that it was irrelevant;
iii) The possibility of a link with Abu Doha (otherwise known as Makalouf) was one of the two factors stated by District Judge Workman as supporting his decision to reject bail on 27 November 2001 (the other factor being "Hezler", or Hanjour). Ouseley J's reasons for rejecting bail on 10th December 2001 were similar. However, Mr James Lewis QC admitted to Mr Egan subsequently that Mr Plunkett's affidavit was wrong in that the address book was not found at Abu Doha's address, but at a house used by him. The Defence made a further bail application on 14 December 2001 on the basis that this admission gave rise to a change of circumstances. The application failed;
iv) On 25 January 2002, in the course of attempting to gain inspection of the book, Mr Egan was informed by DC Stevenson that the police knew of Kermani's ownership of the book from the immigration number on the front of the book. The gist of the conversation was that this had been known before Kermani was traced and interviewed. DC Stevenson subsequently informed Mr Egan that Kermani had admitted the book was his and that he had known Mr. Dhamani (whose contact details were found in the book) for some years;
v) Despite the fact that in those circumstances the ownership of the book could not be in any doubt, the CPS stated at court on 12 February 2002 that although they could not say it was Abu Doha's, they did not concede it was not his;
vi) The document concludes that the CPS initially presented the address book to the Courts as a substantial piece of evidence linking Raissi to Abu Doha in circumstances where this was not warranted on the available material. Either the CPS were misled by the Metropolitan Police and/or CPS representatives must have consciously exaggerated the state of the evidence. Further, if and in so far as the CPS were initially misled by the Metropolitan Police, by the end of January 2002 at the very latest, the true ownership of the book had been established beyond doubt and yet the CPS were still wrongly suggesting to the Court that the evidential position was unclear and that the book could belong to Doha. They must have known that this was inaccurate.
"The stress of the proceedings and my life in prison caused deterioration in my health. I lost weight and suffered physical and mental health problems. There were 10 court hearings. At them, in front of the world's media, allegations were made about how terrorist charges would follow relating to mass murder. I was not released on bail until 12 February 2002, almost 5 months after my initial arrest. The extradition proceedings against me did not conclude until 24 April 2002. The case was discharged by District Judge Workman on the basis that there was no case for me to answer. The district judge went on to say that throughout the proceedings no evidence had been put forward at all to support the allegation of terrorism. Despite this the prosecution barrister said that I continued to be the subject of their investigations which again made it look like I was guilty.
My personal and professional life has been ruined by the ordeal I was put through. It is unlikely that I will now ever be able to work as a commercial airline pilot; a dream that my family invested in when they paid for my training. My mental health and relationship with my family and wife also suffered because of what I went through. In many people's minds I am still seen as a terrorist linked to 9/11. I cannot travel abroad except to Algeria and even when I have done this, I have been stopped and questioned because of who I am at British airports. It is important that I am formally cleared of the allegations made about me and I receive restitution to enable me to get my life back together again.
The Appeal to this Court
Scope of the Scheme – Interpretation
24. It is agreed that the appropriate test (for interpretation) is to be found in a passage in the judgment of Lawton LJ in R v Criminal Injuries Compensation Board, Ex parte Webb  QB, 74, 78 (approved by Dyson J in R v Criminal Injuries Compensation Board, Ex parte K and Another  1 WLR 1458 at 1462:
"The government has made funds available for the payment of compensation without being under a statutory duty to do so. It follows, in my judgment, that the court should not construe this scheme as if it were a statute but as a public announcement of what the government was willing to do. This entails the court deciding what would be a reasonable and literate man's understanding of the circumstances in which he could under the scheme be paid compensation for personal injury caused by a crime of violence."
34. In the Court of Appeal (17th May 1994) [R v SSHD ex parte Bateman and Howse] Sir Thomas Bingham MR appears to have approached the issue by asking himself whether the interpretation adopted by the Secretary of State was one that he was reasonably entitled to reach. Mr Keith for the defendant does not seek to uphold today that method of determining the meaning of the 1985 statement.
McFarland  1 WLR 1289. It was and is submitted that it is for the minister to decide to what his policy applies and what his policy means and provided that his interpretation is one which a reasonable minister could reach then that interpretation will be upheld by the courts. The adoption of the suggested test is not based on what could be described as a quibble with the 'ordinary person' test. It is a completely different test.
28. … A court should only intervene on an issue as to the reach and meaning of a policy where a minister, in his application and/or interpretation of it, strays outside the reasonable range of meaning, or where there is an ambiguity, in which considerations of law may or may not point in one direction rather than another, as Brooke LJ suggested in Woods, at 968.
"27. … McFarland is important because it focuses on the intention of the minister at the time of articulating his policy rather than on how his words would or might have been interpreted at a later date in the light of developments in the law. Their Lordships held by a majority (Lord Steyn dissenting on this issue) that a magistrate was not a member of a public authority within the meaning of the scheme since, at the date of the Home Secretary's statement of it in 1985, judges and magistrates would not have been so regarded. Three of their Lordships in the majority, Lord Bingham of Cornhill, Lord Rodger of Earlsferry and Lord Walker of Gestingthorpe, appear to have looked at the question as a matter of the intention of Mr Douglas Hurd when enunciating the scheme in 1985 (see paragraphs 13, 15, 44 and 45).
15. … It is in my opinion plain that when Mr Jenkins (that is Mr Roy Jenkins, then Home Secretary) referred in 1976 to "any action, or failure to act, by the police or other public authority" he was not meaning to refer to judges and magistrates. The same is true of Mr Hurd's reference to "serious default on the part of a member of a police force or of some other public authority". The contrary argument is, to my mind, wholly unpersuasive.
24. Lord Bingham has observed that the Home Secretaries responsible for policy statements did not intend to include a court within the meaning of the concept of a "public authority": para 15. That I understand to be a reference to the personal views of the Home Secretaries. In my view, however, in respect of the many kinds of "soft laws" with which we are now familiar, one must bear in mind that citizens are led to believe that the carefully drafted and considered statements truly represent government policy which will be observed in decision-making unless there is good reason to depart from it. It is an integral part of the working of a mature process of public administration. Such policy statements are an important source of individual rights and corresponding duties. In a fair and effective public law system such policy statements must be interpreted objectively in accordance with the language employed by the Minister. The citizen is entitled to rely on the language of the statement, seen as always in its proper context. The very reason for making the statement is to give guidance to the public. The decision-maker, here a minister, may depart from the policy but until he has done so, the citizen is entitled to ask in a court of law whether he fairly comes within the language of the publicly announced policy. That question, like all questions of interpretation, is one of law. And on such a question of law it necessarily follows that the court does not defer to the Minister: the court is bound to decide such a question for itself, paying, of course, close attention to the reasons advanced for the competing interpretations. This is not to say that policy statements must be construed like primary or subordinate legislation. It seems sensible that a broader and wholly untechnical approach should prevail. But what is involved is still an interpretative process conducted by a court which must necessarily be approached objectively and without speculation about what a particular Minister may have had in mind.
25. … It is now settled that legislation, primary or secondary, must be accorded an always speaking construction unless the language and structure of statute reveals an intention to impress on the statute a historic meaning.
"Lord Scott of Foscote, the fourth member of the majority, while agreeing with them, went further:
"40. In making ex gratia payments the Home Secretary is disbursing public money. But he is not doing so pursuant to any statutory duty or statutory power. There is no statute to be construed. He is exercising a Crown prerogative…
41. …the scope of the courts' powers of intervention are, in my opinion, limited by the nature of the prerogative power in question. The Secretary of State for the time being is not bound by the statement of policy made by his predecessor. He is not bound to make an ex gratia payment to a person whose case falls within the current statement of policy and he is not bound to refuse a payment to a person whose case falls outside it. Provided the Secretary of State avoids irrationality in his decisions about who is and who is not to receive ex gratia payments, and provided the procedure he adopts for the decision-making process is not unfair, I find it difficult to visualise circumstances in which his decision could be held on judicial review to be an unlawful one.
42. .… The policy, bar irrationality, is for the Secretary of State.""
"… the Court cannot … in case of dispute, abdicate its responsibility to give the document its proper meaning. It means what it means. Not what anyone would like it to mean."
"16. ... the interpretation of policy is not a matter for the Secretary of State. What a policy means is what it says. Except in the occasional case where a policy has been ambiguously or unclearly expressed (see R v Derbyshire CC, ex p. Woods  JPL 958), so that its maker has to amplify rather than interpret it, ministers are not entitled to thwart legitimate expectations by putting a strained or unconventional meaning on it. But what ministers do have both the power and the obligation to do - and Miss Lieven (for the Minister) readily acknowledged that this is her real point - is to apply their policy from case to case, keeping in balance the countervailing principles (a) that a policy is not a rule but a guide and (b) that like cases ought to be treated alike."
"… on the facts as they were put to the Home Secretary, I can see no basis on which he could have taken the view that the CPS abused the process of the court in conducting the proceedings on the extradition "charges" and in opposing bail in reliance on instructions about the terrorism allegation. As Ouseley J said in paragraph 17 of his ruling refusing permission to proceed on this aspect, it is unarguable on the facts placed before the Secretary of State that he should have found that the conduct of the United States Government or CPS had surmounted the very high threshold serious default required by the scheme, or such as to amount to abuse of process."
"I agree [with Miss Clare Montgomery], too, that the position of the Director in extradition proceedings is quite unlike her position in criminal proceedings in England and Wales. She is not to be regarded as the prosecutor, but as a lawyer acting on behalf of a foreign client."
"48. Extradition, though the subject of domestic legislation governing its procedures, is essentially a vehicle for the extraditing state to give effect to treaty arrangements with the requesting state. As Glidewell LJ, with whom Curtis J agreed, held in R v DPP, ex p Thom (1994) 21 December, DC, at pp 9E – 11B of the transcript, the Court could not judicially review a decision of the Director of Public Prosecutions not to discontinue extradition proceedings because, when acting in such proceedings on behalf of the requesting state, the Director does not act as a prosecutor, but as a lawyer on behalf of a foreign client whose instructions it is generally bound to follow. In my view, and notwithstanding Mr Fitzgerald's submission to the contrary, that proposition is of wide application and not limited to the facts in Thom on discontinuance."
Auld LJ recognised, however, that the CPS may have a wider responsibility. Later in the same paragraph, he said:
"There may no doubt be circumstances in which the CPS's role, not only as advocate but also in its public capacity, is engaged, say, where the liberty of the subject on an issue of bail arises. In such an instance, in the event of conflict between its instructions from the requesting state and its duty to the court on such matters, it may be that, notwithstanding the principle of comity between states to give effect to extradition treaties, the CPS in a particular case should not act unquestioningly on its instructions. If and when that occurs, it seems to me that it would be a matter for consideration by the CPS whether to withdraw rather than defy or ignore those instructions.
"34. Some doubt has arisen concerning a requesting state's duty of disclosure in extradition cases. Giving the judgment of the Divisional Court in R v Governor of Pentonville Prison, Ex p Lee  1 WLR 1294, 1300, Ognall J distinguished between extradition proceedings and domestic criminal proceedings, observing that "fairness is not a criterion relevant to the function of the committing court". It was suggested in R v Governor of HMP Brixton, Ex p Kashamu (Divisional Court, 6 October 2000, unreported) that this observation could not stand in the light of articles 5 and 6 of the European Convention, but in Lodhi v Governor of HMP Brixton  EWHC Admin 178, paras 108-115, Ognall J's judgment was held by another Divisional Court to remain good law. This was because it had been held by the European Commission in Kirkwood v United Kingdom (1984) 6 EHRR CD 373 that article 6 has no application to extradition proceedings.
36. The Board would hesitate to adopt the full breadth of Ognall J's observation. There are many respects in which extradition proceedings must, to be lawful, be fairly conducted. But a requesting state is not under any general duty of disclosure similar to that imposed on a prosecutor in English criminal proceedings. It does, however, owe the court of the requested state a duty of candour and good faith. While it is for the requesting state to decide what evidence it will rely on to seek a committal, it must in pursuance of that duty disclose evidence which destroys or very severely undermines the evidence on which it relies. It is for the party seeking to resist an order to establish a breach of duty by the requesting state. The Board would endorse the general approach laid down by Mitting J (sitting with Lord Woolf CJ in the Divisional Court) in Wellington v Governor of HMP Belmarsh  EWHC 418 (Admin), para 26. In the present case the appellant has failed to discharge the burden lying on him." (Underlining added)
"The appropriate course for the judge to take if he has reason to believe that an abuse of process may have occurred is to call upon the judicial authority that has issued the [foreign] arrest warrant, or the State seeking extradition in a Part 2 case, for whatever information or evidence the judge requires in order to determine whether an abuse of process has occurred or not."
At paragraph 92, the court said:
"If the judge concludes that fairness requires that the material be disclosed, but the requesting authority or State is not prepared to agree to this, then the appropriate course will be for the judge to hold that fair process is impossible, that to grant the application for extradition in the circumstances would involve an abuse of process, and to discharge the person whose extradition is sought."
"As you know, the ex gratia scheme covers wrongful conviction or charge. I would reiterate that the Home Secretary's view is that it relates only to charges brought in this jurisdiction, Notwithstanding that, your client was not charged with any offences directly related to alleged terrorist activity, and the Home Secretary regards it as reasonable to consider an application only on the basis of the charges that were actually laid. It would not be right for public funds to be expended on the compensation in respect of charges which were never actually brought."
29. Mr Edward Fitzgerald QC, on behalf of Mr Raissi, submitted that "exceptional circumstances, where referred to in the ex gratia scheme, are a free-standing alternative to detention whether or not it follows a wrongful conviction or charge. Thus, he maintained, even if extradition proceedings, such as those here, did not involve a "charge" or could not lead to conviction in our domestic criminal justice system, nevertheless, paragraph 2 of the scheme allowed for a discretionary payment to Mr Raissi because of "exceptional circumstances". The exceptional circumstances which he suggested arise for consideration were Mr Raissi's "complete exoneration" of any culpability in the extradition proceedings and/or because those proceedings were based on comparatively trivial holding charges as a cover for detaining him on an uncharged and never evidenced allegations of terrorism. He suggested that "exceptional circumstances" in the scheme were intended to form a broad residual category for cases falling outside the need for a "charge" and "serious default on the part of a member of a … public authority" in paragraph 1 of the scheme.
30. There are two difficulties in that argument.
31. The first is that the whole of the ex gratia scheme is based on the Home Secretary's acceptance in any individual case that there are exceptional circumstances, of which those mentioned in paragraphs 1 and 2 of it are examples, as this Court held in R v SSHD, ex p Garner & Ors (1999) 11 Admin LR 595. There is clearly scope for others. For example, in Garner the Court held that misconduct of judge, though he is not a public authority within paragraph 2 of the scheme, could nevertheless amount to an exceptional circumstance justifying the payment of compensation.
32. The second difficulty in Mr Fitzgerald's argument is that the ex gratia scheme, on its plain intention and terms - and as explained in the April 2003 ministerial guidance set out in paragraph 6 above - applies only to detention in custody following a wrongful conviction or charge. There is thus only one "limb" to the scheme. As Mr Khawar Qureshi QC, for the Home Secretary, rhetorically asked in argument, why else does it refer when instancing complete exonerations as a an exceptional circumstance in paragraph 2, to "facts [that] may emerge at trial, or on appeal within time", and why does it distinguish it from inability "at the trial or on appeal [of] the prosecution to sustain the burden of proof beyond reasonable doubt in relation to the specific charge brought"?
33. In short, as Lord Bingham observed at paragraph 4 of his speech in Mullen:
"It is apparent from their statements that Mr Jenkins and Mr Hurd were addressing the subject of wrongful conviction and charges. … The common factor in …[wrongful conviction] cases is that something has gone seriously wrong in the investigation of the offence or the conduct of the trial, resulting in the conviction of someone who should not have been convicted."
34. For those reasons, I have no doubt that the ex gratia scheme applies only to exceptional circumstances arising out of a wrongful conviction or charge.
"58. .. [The] loss of individual liberty – four and half months of it – on comparatively trivial and, in the event, unestablished extradition "charges" and a wholly unsupported allegation of terrorism, would, it seems to me to be worthy of consideration by the Home Secretary as an exceptional circumstance under the scheme, whether or not there was fault on the part of the part of the CPS or the United States Government – but only in the event, which I would reject, of his claim falling within the scheme as detention following a wrongful charge."
59. It follows that, if, contrary to my view, the Secretary of State should or could have approached the matter by exercising his discretion one way or another on the basis of an exceptional circumstance as a free-standing consideration, it may be that there is something in Mr Fitzgerald's suggestion that he could and should have considered Mr Raissi's detention for so long to so little purpose as in itself an exceptional circumstance justifying a payment under the scheme.
An additional matter