England and Wales High Court (Administrative Court) Decisions

Khalid Al-Fawwaz v. The Governor of Brixton Prison [2000] EWHC Admin 424 (30th November, 2000)

Case No: CO/3833/99

IN THE SUPREME COURT OF JUDICATURE

QUEENS BENCH DIVISION

ADMINISTRATIVE COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Thursday 30 November 2000

Lord Justice Buxton:

1. This the judgment of the court, to which both members have made substantial contributions.

The basic facts and the issues

2. The applicant Mr Al-Fawwaz is accused in proceedings before the United States District Court for the Southern District of New York of conspiring with Usama bin Laden and others between 1 January 1993 and 27 September 1998 by agreeing that:

a) citizens of the the USA would be murdered in the the USA and elsewhere;

b) bombs would be planted and exploded at American embassies and other American installations;

c) American officials would be killed in the Middle East and Africa;

d) American soliders deployed in the United Nations peacekeeping missions would be murdered;

e) American Diplomats and other internationally protected persons would be murdered.

3. The category referred to of Internationally Protected Persons [IPP] is recognised by the [United Kingdom] Internationally Protected Persons Act 1978. That provides that any murder of an IPP outside the United Kingdom is justiciable within the United Kingdom, even if the accused is not a United Kingdom citizen.

4. The USA government's case alleges as follows. Bin Laden was the moving force in an Islamic terrorist organisation called Al-Qaida, devoted to violent opposition to, in particular, the USA. The organisation issued various Fatwahs or rulings, which members were obliged to obey, including rulings requiring the pursuit of jihad (holy war) against the USA. Since 1993 al Qaida had operated a cell in Kenya. In 1994 it created an organisation in London called the Advice and Reform Committee [ARC], which purported to be devoted to peaceful activities against breaches of human rights in Arab countries, but which was in fact the London organisation of the conspiracy. Amongst the alleged fruits of this conspiracy was the bombing on 7 August 1998 of the Embassies of the USA in Nairobi and Dar es Salaam. Many persons were killed, including American diplomats who were IPPs.

5. So far as Mr Fawwaz is concerned, it is alleged against him that he was a particpant in the cell in Kenya. He lived in London from 1994, at a house at 94 Dewsbury Road. It is further alleged that he had clear links during that period with the premises in London at which ARC was operated, at 1a Beethoven Street, and with a man called Adel Barry who is another alleged conspirator, and that Mr Fawwaz was the head of or strongly involved in ARC. Claims of responsibility for the bombings in Nairobi and Dar es Salam, allegedly originating from before the time of the bombings and thus demonstrating knowledge of what was planned, were said to be traceable or attributable to him.

6. Mr Al-Fawwaz was arrested and is currently detained in England. The USA seeks his extradition. An order to proceed was issued on 9 December 1998 in terms that Mr Al-Fawwaz

"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."

7. At a hearing in 1999 Mr Evans, Metropolitan Stipendary Magistrate, found 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 now moves an application for habeas corpus before this court.

8. The application as it now stands gives rise to three issues:

I. Do the governing provisions of English law require the crime in respect of which extradition is sought to have been committed within the territory of the USA, or is it sufficient that conduct alleged is governed by the extra-territorial jurisdiction of the USA and would in similar circumstances be governed by the extra-territorial jurisdiction of the United Kingdom?

II. Did the magistrate err in law in admitting the evidence of two anonymous witnesses, "CS/1" and "CS/2"?

III. Was the magistrate correct in finding that there was a prima facie case against Mr Al-Fawwaz?

Jurisdiction: summary

9. Extradition, affecting as it does the liberty of the subject, can only take place by statutory authority. The present statute, the Extradition Act 1989 [the 1989 Act] contains two separate regimes. The first, "Part III extradition", relates to extradition to countries in respect of which the procedures under Part III of the 1989 Act are available. The latter countries consist mainly of designated Commonwealth countries and countries that are signatory to the European Convention on Extradition. They do not include the USA. The second category, "Schedule 1 cases", are referred to in section 1(3) of the 1989 Act:

"Where an Order in Council under section 2 of the Extradition Act 1870 [the 1870 Act] 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.

10. The relevant Order in Council in respect of the USA is the United States of America (Extradition) Order 1976, SI 1976/2144. By paragraph 1 of Schedule 1 to the 1989 Act, "fugitive criminals" are liable to be surrendered. By paragraph 20 of that Schedule fugitive criminals are persons "accused or convicted of an extradition crime committed within the jurisdiction of" the relevant foreign state. The concept of an "extradition crime" is to be construed according to the terms of the Order in Council as it had effect at the date of coming into force of the 1989 Act. By Article III of the schedule to SI 1976/2144 extradition was available for an offence of [as in the case of Mr Al-Fawwaz, conspiracy to murder] if it were one for which extradition might be granted under the laws of both parties; and by the 1870 Act extradition could take place of fugitive criminals who had committed crimes that, by section 26 of the 1870 Act, "if committed in England or within English jurisdiction" would be one of a specific list of crimes, including conspiracy to murder.

11. We would not pretend that these provisions are pellucidly clear in their meaning. However, their effect is that before an offence can be a relevantly extraditable offence in a Schedule 1 case it must be recognised as extraditable by the relevant laws both of the requesting state (in this case, the USA) and of England. The law of England is applied on the hypothesised basis that the acts that took place in the requesting state, but no other acts, took place in England: see R v Governor of Pentonville Prison ex p Osman [1990] 1 WLR 277 at p 290H. Mr Lewis, counsel for the Government of the USA, accepted for present purposes that that decision bound us; though he wished to reserve for another day the possibility that what is transposed to England is not merely the acts done in the requesting state, but all the acts whereever done that constituted the offence charged. And because of the provisions set out in paragraph 12 above that crime, with elements of it transposed to England, has to be one that, so transposed, would have been committed within the "jurisdiction" of the English court. This latter was the crucial issue, because we were told that it was common ground that the offence was within the jurisdiction of the USA.

12. Mr Al-Fawwaz has never been in the USA, and it is disputed whether any of the acts in pursuit of the conspiracy have taken place there. We shall have to return to that factual matter. The immediate importance of the general facts of the case is that, by the combined terms of Schedule 1 to the 1989 Act and the Order in Council, the question of the English court's "jurisdiction" has to be determined according to the law as it stood immediately before the coming into force of the 1989 Act: that is, as provided by the law under the 1870 Act.

13. These considerations give rise to the issue posed in question I above. The two competing contentions were as follows. Mr Fitzgerald QC, for Mr Al-Fawwaz, contended that (save where extended by specific statutory provisions) the relevant jurisdiction was "territorial": that is, that the transposed offence had to be committed within the territorial jurisdiction of England & Wales. Mr Lewis contended the only question was whether the offence would be indictable in England & Wales, even if on an extra-territorial basis. Mr Lewis further contended that, even if jurisdiction was to be judged on a territorial basis, this case fulfilled that requirement, since overt acts in furtherance of the alleged conspiracy had taken place in the USA. We deal with that contention at the end of this part of the judgment. First, we address a series of issues to which the principal question in the case gives rise.

Authority

14. It is surprising that, as we were told, what appears to be a fundamental and long-standing question is not concluded by authority. It seemed to us, however, that such authority as there was, and in particular two decisions of the House of Lords, pointed in the direction of territorial jurisdiction.

15. In In re Rees [1986] 1 AC 937 the issue was whether evidence from other than the requesting state was admissible in extradition proceedings under section 14 of the 1870 Act. The possibility appears to have been raised in argument that the construction of the words "depositions...taken in a foreign state" in section 14 might be illuminated by the reach of other provisions in the 1870 Act that spoke of foreign states, including the definition of "fugitive criminal" in section 26 of the 1870 Act, which is continued in paragraph 20 of Schedule 1 to the 1989 Act. In that connexion, Lord Bridge of Harwich during argument, at p946G, raised in terms a question plainly highly relevant to that facing us:

"Does `jurisdiction of any foreign state' in the definition of `fugitive criminal' in section 26 of the Act of 1870 mean its territorial jurisdiction or its jurisdiction, if any, over the crime whereever committed?"

16. The question does not appear to have received a clear answer. However, in the leading speech, concurred in by the whole House, Lord Mackay of Clashfern returned to the subject, at p 955F:

"When the Act of 1870 was passed it dealt only with crimes committed within the territorial jurisdiction of a state with whom an extradition arrangement had been made: see, for example, R v Governor of Brixton Prison ex parte Schtraks [1964] AC 556, per Lord Reid at p 579. Although the Taking of Hostages Act 1982 has now enlarged that jurisdiction, it has done so, in section 3(4), by deeming an offence committed under the Act of 1982, which is also an offence against the law of any state in the case of which the Act of 1870 is applied by an order in council, to be an offence committed within the jurisdiction of that state. In any event when the Act of 1870 was passed it was dealing only with crimes committed within the territorial jurisdiction of the states that are parties to an extradition agreement."

17. Lord Mackay did not then use these observations directly to decide the issue in the case, and they cannot therefore be said to form part of the House's ratio. They were, however, considered observations on an issue that had been squarely raised before the House, and as such demand, at the very least, serious attention.

18. Some assistance can also be gained from the further House of Lords case referred to by Lord Mackay, Ex parte Schtraks [1964] AC 556. The accused contended that he could not be extradited to Israel for offences committed in Jerusalem, over which Israel had de facto control but not sovereignty. That contention was rejected by the whole House, Lord Reid saying, at p579, that

"In my judgment neither the Extradition Act 1970 nor the [Israel (Extradition) Order 1960]...is concerned with sovereignty; they are concerned with the territory in which territorial jurisdiction is exercised."

19. Mr Lewis said, rightly, that this observation was in strict terms obiter; and also that the House had approved a passage in the judgment of Lord Parker CJ in the Divisional Court, [1963] 1 QB at p 75, which had taken a wider view of the concept of jurisdiction. It is true that in that passage Lord Parker relied on his conclusion in R v Governor of Brixton Prison [1959] 1 QB 155 to the effect that, in the Anglo-Norwegian Extradition Treaty, "territory" meant "jurisdiction" (and not vice versa). But that case concerned a murder on board a Norwegian ship, a situation that has always been regarded as a legitimate extension of the territorial jurisdiction of the state of the ship's flag. Had Lord Parker indeed sought to apply the theory of jurisdiction urged by Mr Lewis, he would have expressed himself differently and in much wider terms.

20. That latter point is also relevant in relation to section 25 of the 1870 Act, which provides that:

"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."

21. Mr Fitzgerald submits that unless the concept of jurisdiction were territorial, it would not be necessary to extend jurisdiction by extending what appeared to be the (notional) territorial extent of the state. We see some force in that argument; but it should be noted that the extending provision "deems" the vessel, etc, to be within the jurisdiction of the state. That would seem to suggest that, first, these cases are not seen as true examples of the concept of jurisdiction, it would seem because the latter is territorial in nature; and second that events on the vessel, etc, are brought under the Act by that vessel, and not in terms the events that take place on it, being deemed to be within the state's "jurisdiction". That indicates that the latter concept when employed elsewhere in the 1870 Act (for instance, in the definition of fugitive criminal referred to in paragraph 20 above) is indeed based on territoriality.

22. None of these authorities are conclusive, but in our view they demonstrate an underlying assumption that jurisdiction for the purposes of the 1870 Act was indeed territorial in nature.

Special cases

23. In a number of cases special rules have been introduce to give the courts of England & Wales jurisdiction over crimes of an international nature: usually, in implementation of an international treaty or convention. Reference was made in the speech of Lord Mackay of Clashfern in In re Rees, cited in paragraph 19 above, to section 3(4) of the Taking of Hostages Act 1982. Our attention was also drawn, with particular relevance to the present case, to the Internationally Protected Persons Act 1978. Section 1(3) of that Act makes it an offence under the domestic law of all parts of the United Kingdom for any person anywhere in the world to do one of a series of prohibited acts in relation to an IPP. Paragraph 15 of schedule 1 to the 1989 Act, under the general heading of "Deemed extension of jurisdiction of foreign states", provides, in relation to that and a long series of other United Kingdom offences of a broadly international character, that such offence, if also an offence against the law of a Schedule 1 state,

"shall be deemed to be an offence committed within the jurisdiction of that state."

24. We understood Mr Fitzgerald to say that that provision was not relevant to our present problem. We do not agree. Just as Lord Mackay pointed out in Rees that the extra territorial provisions of the Taking of Hostages Act had only been extended to the jurisdiction of foreign states by a deeming provision, so in this case also the acts are deemed to be, not are provided for the avoidance of doubt to be, committed within the "jurisdiction" of that foreign state. That provision also seems to point in the direction of jurisdiction being regarded as a territorial concept.

Comparison with Part III extradition

25. Section 2 of the 1989 Act extensively defines "extradition crime" for the purposes of Part III cases. That definition specifically includes reference to "extra-territorial" offences under the laws of foreign states, provided that what is described as "equivalent conduct" would constitute an extra-territorial offence against the law of the United Kingdom.

26. We were not specifically addressed on this provision, and the specific exclusion that it makes, at the beginning of section 2(1) of the 1989 Act, of extra-territorial crime from the regime under Schedule 1. We mention it here, first because it is of some relevance to arguments to which we are about to come; and second because the perceived need to make specific provision in respect of extra-territoriality in the new and different regime under Part III of the 1989 Act is a further pointer to the limited nature of "jurisdiction" as it was understood under the 1870 Act.

The speech of Lord Hope in Pinochet (No3) [1999] 2 WLR 827.

27. The offence with which Mr Al-Fawwaz is charged is conspiracy to murder. The courts of England & Wales have jurisdiction to try a charge of conspiracy where the conspiracy was entered into abroad, if the conspiracy was to do something in England & Wales or that might be done there, even if no overt act pursuant to the conspiracy was done in England & Wales: Naini [1999] 2 Cr App R 398. In Pinochet(No 3), Lord Hope accepted, at p 876, that that rule extended to conspiracies to commit offences that were offences under the law of England & Wales by reason of special provisions as to extraterritoriality: that is, where under the relevant substantive offence nothing was to or need occur in England & Wales, but our courts take jurisdiction nonetheless. Lord Hope then applied that principle to the (alleged) facts of Pinochet:

"Accordingly, the courts of this country could try Senator Pinochet for acts of torture in Chile and elsewhere...because they are extraterritorial offences under section 134 of the [Criminal Justice Act 1988]. They could also try him here for conspiring in Chile or elsewhere...to commit torture, wherever the torture was to be committed, because torture...is an extraterritorial offence and the courts in England have jurisdiction over such a conspiracy at common law."

28. In our case, the English courts would have jurisdiction over some or all of the acts in relation to which Mr Al-Fawwaz was alleged to have conspired, had those acts actually taken place, by reason of a different extra-territorial provision, section 1(3) of the Internationally Protected Persons Act 1978. In relation to a conspiracy to commit those acts it was therefore argued that, following the same approach as in Pinochet, the English court would have jurisdiction over the conspiracy alleged to murder IPPs, even though no part of that conspiracy had occurred or was intended to occur in England. This argument however begs the question of the extradition regime that was in issue in Pinochet. Lord Hope's exposition of the position in English law, and his emphasis on the date at which torture became an extraterritorial crime, was relevant only because, Spain being a "Part III" country, there had to be applied the definition of "extradition crime" in section 2 of the 1989 Act: see, per Lord Hope, [1999] 2 WLR at pp 869-870, and the very clear summary in paragraph (1) of the headnote, [1999] 2 WLR p 828. But, as we have seen, Schedule 1 cases are specifically excluded from the section 2 definition, and in particular from its express reference to extra-territorial offences. Pinochet therefore in our view takes the present enquiry no further.

The advice of the Privy Council in Liangsiriprasert v USA [1991] 1 AC 225

29. Lord Hope in Pinochet (No3) adopted the view of the law of extra-territorial conspiracy that was taken in Liangsiriprasert. Mr Lewis said that the latter was his best, indeed a conclusive, case. If the applicant in the present case were right, then Liangsiriprasert was wrongly decided. It was sought to extradite L from Hong Kong to the USA on a charge of conspiring in Thailand to import drugs into the USA. No overt acts had been done in the USA, and thus in the offence transposed to Hong Kong it was to be assumed that no overt acts were done in Hong Kong. The Privy Council applied the then English law, assumed to be governed by the 1870 Act. The only question debated in this part of the case was whether the transposed conspiracy was justiciable in Hong Kong. The Privy Council, in the advice delivered by Lord Griffiths, held, at p 251D, that

"a conspiracy entered into in Thailand with the intention of committing a criminal offence 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 [to commit the applicant to await extradition]."

30. This, Mr Lewis argues, makes it clear that the concept of "jurisdiction" in section 26 of the 1870 Act, and by the same token in paragraph 20 of schedule 1 to the 1989 Act, cannot mean "territory". If it had that meaning, the Privy Council could not have decided the matter as it did. That would be a very powerful argument, albeit raising questions as to its relationship to In Re Rees, had the point been in issue in Liansiriprasert. It is, however, clear that it was not in issue. Leading counsel agreed that in relation to the extradition issue the only question was whether the accused's conduct would constitute a crime under the law of Hong Kong: see per Mr Martin Thomas QC at p 229A-B, and per Mr Alun Jones QC at p 231H. The Board adopted this agreement, saying, at p241G,

"it is common ground that [the alleged] crimes are all extradition crimes and that the task of the magistrate was to apply Hong Kong law and to consider whether the evidence disclosed a prima facie case against the appellant upon the assumption that the drugs were to be imported into Hong Kong rather than into the United States: see section 10 of the Extradition Act 1870 and In re Nielsen [1984] AC 406."

31. It is plain from this statement of its task that the Board simply assumed, rather than decided, the issue of jurisdiction. The advice cannot, therefore, have the import for which Mr Lewis contends. Nor is the position improved by the reliance placed on Liangsiriprasert by Lord Hope in Pinochet(No 3) since, as we have seen, that was a Part III case, to which the approach of the Privy Council in Liansiriprasert was entirely appropriate.

Conclusion as to the jurisdiction of the English court

32. We conclude that in cases governed by schedule 1 to the 1989 Act the extradition crime has to be committed within the territory of the requesting state so that it would, as transposed, be committed within the territory of England & Wales. It is not enough that the latter crime would, as in Part III cases as recognised in Pinochet (No 3), be indictable under the extra-territorial jurisdiction of the United Kingdom. We also think that the concept of jurisdiction in article 1 of the treaty annexed to SI 1976/2144 is subject to the same limitation. Whether 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.

Did overt acts take place in the territory of the USA?

33. As we have seen, Mr Lewis argued that even if the basis of the English court's jurisdiction was limited to territoriality, nonetheless there was a prima facie case that overt acts relevant to the conspiracy had occurred in the USA. This argument involves, first, looking at the criteria for determining what events are relevant to the territorial commission of the crime of conspiracy; and second, at whether such events are manifested in this case.

34. First, however, we dispose of a separate argument advanced by Mr Lewis which we do not accept. He said that since by paragraph 15 of schedule 1 to the 1989 Act, set out in paragraph 27 above, offences under the Internationally Protected Persons Act were "deemed" to be offences committed within the jurisdiction of the requesting state, so it was to be assumed, without further argument, that overt acts constituting those offences had taken place within the USA. That was an ingenious attempt to circumvent the territoriality rule, but in plainly fails. Paragraph 15 is indeed what it says it is, a deeming provision. That locution is the very reverse of a provision establishing as a matter of fact that anything actually did occur in the requesting state.

35. We therefore turn to the two live issues under this part of the case.

Overt acts in conspiracy

36. We assume that this question is to be determined according to English domestic law, since the issue as to what occurred in the USA is relevant to the transposition of the offence to this jurisdiction. That law provides that, although conspiracy is complete as a crime as soon as the forbidden agreement is made, the crime continues to be committed so long as there are two or more parties to the agreement intending to carry out the design. And it is continued in a particular jurisdiction if acts in pursuit of the conspiracy are carried out in that jurisdiction. That was decided by the House of Lords in DPP v Doot [1973] AC 807. It is necessary only to cite a short passage from the speech of Lord Pearson, at p 827E:

"a conspiracy to commit in England an offence against English law ought to be triable in England if it has been wholly or partly performed in England. In such a case the conspiracy has been carried on in England with the consent and authority of all the conspirators. It is not necessary that they should all be present in England. One of them, acting on his own behalf and as agent for the others, has been performing their agreement, with their consent and authority, in England. In such a case the conspiracy has been committed by all of them in England."

37. The Government of the USA submits that such acts did take place within the USA, and indeed were committed by Mr Al-Fawwaz himself. We now examine that claim.

Overt acts in the USA

38. We are concerned with whether there is a prima facie case of there having been such acts, and if so whether there is a prima facie case that they were conspiratorial in nature. Mr Fitzgerald contends that there is no prima facie case of conspiracy at all. We consider that contention in the next part of this judgment. If it were right, then of course the present issue does not arise. However, we assume for present purposes that the claim of conspiracy is made out on a prima facie basis.

39. The acts relied on by the government of the USA are, first, the setting up and operating of a secure telephone line in the USA by Mr Al-Fawwaz through an organisation called MCI; the purchase by Mr Al-Fawwaz of a satellite phone system in the USA; and the issuing of Fatwahs and jihads in pursuit of the conspiracy, allegedly prepared with the concurrence of Mr Al-Fawwaz, in various countries, including the USA. Mr Al-Fawwaz says as to the last of these that he had no involvement in the Fatwahs and jihads. As to the two first events, they are both said to have an innocent explanation. The secure communication link was intended for proper use by Saudi dissidents to communicate with ARC in London. Its routing through the USA was for security reasons, to conceal that the calls were coming from Saudi Arabia. The satellite phone system was not in itself sinister; though the USA government contended that it was intended for use by bin Laden when he removed his operations to Afghanistan.

40. These are plainly matters for argument at the trial. We did not however accept Mr Fitzgerald's submission that since each alleged act taken alone could not be shown to be conspiratorial in nature, therefore they could not be relied on to found jurisdiction. If there is a prima facie case of conspiracy in the terms alleged by the USA government, then the acts set out in paragraph 50 were, on the basis argued by the USA government, done in pursuit of that conspiracy. That in our view is enough to establish territorial jurisdiction, in the terms recognised by the House of Lords in DPP v Doot.

Conclusion on the issue of jurisdiction

41. We conclude that Mr Al-Fawwaz is correct to argue that in Schedule 1 cases jurisdiction has to be established on a territorial basis. We further conclude, however, that provided a prima facie case of conspiracy can be established the acts set out as alleged in paragraph 50 above suffice to establish that territorial jurisdiction. We accordingly need to pass to issues II and III, which involve reviewing the decision of the Magistrate that a prima facie case has been established against Mr Al-Fawwaz.

Prima facie case: preliminary

42. The Magistrate identified two questions. First, whether the evidenced established a case to answer that there was an agreement between bin Laden and others to pursue the course of conduct alleged in the charge as set out in paragraph 3 above. Second, whether the evidence established a case to answer that Mr Al-Fawwaz was a party to that agreement. We did not understand the first issue to be seriously contested. The argument before the Magistrate and before us concentrated on the second issue, the case against Mr Al-Fawwaz.

43. Mr Al-Fawwaz's argument that the requirements of a case to answer had not been meet had two limbs. First, issue II above, the Magistrate had erred as a matter of law in admitting and acting upon the evidence of two anonymous witnesses, called in the case CS/1 and CS/2. Second, (issue III above) if the evidence of the anonymous witnesses had been excluded the Magistrate was not, and could not properly have been, satisfied on the basis of the remaining evidence that there was a case to answer against Mr Al-Fawwaz. To these arguments based upon English domestic law were added further and different arguments based on the European Convention on Human Rights [ECHR].

The role of the Magistrate and of this court

44. It was confirmed by this court in Ex p Gross [1999] QB 538 that despite recent amendments to paragraph 7(1) of schedule 1 to the 1989 Act the task of the Magistrate remains to determine whether sufficient evidence exists as would in a domestic case justify a committal for trial; he does not have to approach the matter as he would approach an actual trial in the magistrates' court. How he should discharge that task was explained by this court in Ex p Osman [1990] 1 WLR at p299H:

"it was the magistrate's duty to consider the evidence as a whole and to reject any evidence which he considered worthless....He was neither entitled or obliged to compare one witness with another. That would be for the jury at the trial. It follows that the magistrate was not concerned with the inconsistencies or contradictions in [a given witness's] evidence, unless they were such as to justify rejecting or eliminating his evidence altogether....As a working guide, we could not do better than adopt the language of the magistrate: [his duty is to consider the evidence to see whether that evidence is such that upon it a reasonable jury properly directed could convict]."

45. Ex p Osman also decided that the task of this court in reviewing the decision of the Magistrate is best defined in "Wednesbury" terms. As it was put at p 301E of the report in that case:

"the court was justified in interfering either because there was no evidence to support the committal, or because no reasonable magistrate would commit on that evidence, or because the magistrate must have been guilty of an error of law."

Anonymous witnesses: the evidence of CS/1

46. Although two anonymous witnesses were relied on by the government of the USA, by far the most significant of them was CS/1, and the argument concentrated on his position. Mr Al-Fawwaz argues that in this case the magistrate has been guilty of an error of law, and not just of an error of judgement, since it was not open to him as a matter of law to admit the evidence of an anonymous witness.

47. CS/1 claims to have been directly involved in the conspiracy and to be in mortal fear by reason of his co-operation with the authorities. He needs anonymity at this stage to protect himself, though it is envisaged that he will give evidence revealing his identity at the trial in the USA. His evidence is of the first importance, because it directly involves Mr Al-Fawwaz in the conspiracy. Mr Fitzgerald was careful not to concede that CS/1's evidence, if admitted, concluded the issue of whether there was a prima facie case, since he said that the evidence was open to criticism on grounds of imprecision. In reality, however, it is impossible to conclude that a magistrate who acted on the evidence of CS/1 to commit Mr Al-Fawwaz, as the Magistrate acted in this case, would be acting irrationally in Osman terms.

Anonymous witnesses: the English law

48. Mr Fitzgerald's argument was based strongly on a decision of the Court of Appeal (Criminal Division) as to the hearing of anonymous witnesses at trial, Taylor, The Times, 22 July 1994. Having said that the matter was pre-eminently one for the trial judge's discretion, the Court then set out various factors that were relevant to the exercise of that discretion. One was that there must be real grounds for fear of the consequences if the identity of the witness was revealed, a factor that was effectively not in issue in our case. The Court then continued to say, inter alia, that:

a) The evidence must be sufficiently relevant and important to make it unfair to make the Crown proceed without it.

b) The Crown must satisfy the court that the creditworthiness of the witness had been fully investigated and disclosed.

c) The court must be satisfied that there would be no undue prejudice to the accused, although some prejudice was inevitable, even if it was only the qualification placed on the right to confront a witness as an accuser.

d) The court could balance the need for protection of the witness, including the extent of that protection, against unfairness or the appearance of unfairness.

49. The same general approach, though without such specific formulation of the considerations to be taken into account, had previously been applied to committal proceedings by this court in R v Watford Justices ex p Lenman [1993] Crim LR 388, Beldam LJ being reported as saying, at p 389:

"It was difficult to think of a decision more dependent on the exercise of discretion that the magistrate's decision in this case. The Court would not interfere with such a decision unless it was shown that it was so unreasonable that no magistrate properly considering it and properly directing himself could have reached that conclusion."

50. Mr Fitzgerald argued that the Taylor criteria, and in particular item (b) in paragraph 64 above, were mandatory. Unless anonymous evidence fulfilled the requirements set out in Taylor it was, as a matter of law, inadmissible. That submission was incorrect on two, related, grounds.

51. First, there are very few categories of evidence in English law in respect of which there are rules of law relating to their admissibility as a category of evidence. After the abolition of the corroboration rules by section 32 of the Criminal Justice and Public Order Act 1994, it is difficult to think of any such case other than that of hearsay evidence. In truth, most or all of the "rules of evidence" are in fact rules of practice, guiding or controlling the discretion of the trial judge in the fair conduct of the trial. There is no reason to think that anonymous witnesses are treated by the law any differently from that. Second, that approach to anonymous witnesses is strongly underlined by the emphasis placed in both the authorities relied on upon the discretion of the trial judge. If the criteria set out in Taylor were indeed rules of law, the trial judge would not have a discretion whether to apply them or not. In particular, it would have been impossible for Beldam LJ to have expressed himself as set out in paragraph 65 above if there were rules of law governing the admissibility of the evidence of an anonymous witness.

52. The apparently mandatory language used in one part of the judgment in Taylor must be read in that context. In respect of that issue, investigation of the creditworthiness of the witness as set out in paragraph 64(b) above, and generally in respect of CS/1, the Magistrate said this:

"the Government seeks to satisfy this court that the creditworthiness of CS/1 has been fully investigated and disclosed. I am not so satisfied. Perhaps that is because no attempt was made in the preparation of this extradition request to focus on that one issue. The time when it is most important that the court is so satisfied on these issues is at the effective trial. No doubt more information will be put before the trial judge in the event of extradition taking place. I know nothing to the detriment of CS/1's creditworthiness. What I do know is that the cumulative effect of all the circumstantial evidence is such that CS/1's evidence cannot be described as so inherently incredible that no jury properly directed could convict on it. The remaining evidence is exactly what one would expect to find if all that CS/1 says is true.....The fact that one of the [Taylor] `principles' to be followed in this situation may not be satisfactorily met does not mean that this court is automatically bound to rule the evidence inadmissible. There are rare and exceptional circumstances in existence in this case. In all the circumstances, I am satisfied that there would be no undue prejudice to Mr Al-Fawwaz by my admitting the evidence of CS/1 and CS/2."

53. Mr Fitzgerald argued that the fact that the Magistrate was not satisfied as to the fulfilment of the Taylor principle relating to the investigation of credibility meant that the evidence was necessarily inadmissible as a matter of law. For the reasons that we have already set out, that submission was misconceived. Mr Fitzgerald however had further objections to the use of CS/1's evidence. They were, first, that even if the issue were one of the Magistrate's discretion and judgement, his decision and the way in which he reached it was so unfair as to be irrational; and second that in any event the process, and in particular the use of an anonymous witness, had involved a breach of the guarantees of the ECHR. We deal with those issues in turn.

Irrationality

54. Once we pass from the argument that the use of the evidence of CS/1 was the breach of a rule of law, we are governed by the rule expounded in Osman: see paragraph 59 above. Mr Fitzgerald argued that the Magistrate's decision was unfair to the point of irrationality for two reasons: first, if the USA authorities had not fully investigated creditworthiness, there might be information that they had not found, or alternatively that they had found but witheld, that would undermine CS/1's credit; second, that if Mr Al-Fawwaz did not know who CS/1 was, he could not himself adduce, or alternatively look for, matter that undermined CS/1's evidence.

55. There are substantial difficulties in both of these arguments. In extradition proceedings it would not avail Mr Al-Fawwaz simply to produce evidence that cast doubt on CS/1's creditworthiness. Investigation of that question is a matter for the trial, and for cross-examination there. That only material that could assist Mr Al-Fawwaz before the Magistrate was material that showed that, because of previous contradictory statements or behaviour by Mr Al-Fawwaz, his evidence was worthless, in the terms used in Osman (see paragraph 58 above). It will be noted that that is a much more demanding test than the test of whether there is material that casts doubt on the witness's credibility. We very much doubt whether we should assume that the USA government is in possession of, undisclosed, material so extreme as to make CS\1's evidence plainly worthless. However, looking narrowly at matters as they stood before the Magistrate, we acknowledge that on the evidence before him there was a theoretical possibility that if more were known about CS/1 it might be established that his evidence was indeed worthless. We cannot however agree that the Magistrate acted irrationally in not treating that consideration, in the absence of further evidence about CS/1 from the USA government, as compelling the exclusion of CS/1's evidence.

56. The reasoning of the Magistrate is set out in paragraph 68 above. First, he was justified in placing weight on the fact that he was dealing with committal or extradition proceedings, and not with a trial. That did not mean, as Mr Fitzgerald, argued, that he held that the Taylor principles do not apply to extradition; rather, the Magistrate realistically acknowledged that the effect and application of those principles, and the weight that he should give to different elements within them, varied according to the nature of the issues that the court had to decide. Second, the Magistrate did not take CS/1 at face value. It was relevant for the Magistrate to take into account evidence that he was given that CS/1's statement was corroborated from other sources, and in particular that he had provided evidence that proved to be accurate before it was publicly known or known from other sources. Third, the Magistrate was plainly entitled to test CS/1's evidence against the other evidence in the case. And, as we shall see when we come to review the other evidence, he was plainly right to find that CS/1's account fitted in to that other evidence.

57. The Magistrate did properly consider CS/1's evidence in the context of an extradition proceeding, and did not simply accept it as gospel. He adopted the right approach, and was not irrational in his conclusions.

The ECHR

58. It was however further argued that, whatever might be the position in English domestic law, the extradition process was now governed by the rules of the ECHR. It was a breach of the ECHR to have committed Mr Al-Fawwaz, that is, to have refused him his liberty, on the basis of the process in this case, and in particular when CS/1 remained anonymous.

59. This complaint was originally formulated in terms of a breach of article 6 of the ECHR. Mr Fitzgerald however recognised that it was difficult to sustain that argument in the face of the ruling by the Commission in Kirkwood v UK, Application 10479 of 1983, to the effect that it would be "wholly inappropriate to accord the full panoply of rights contemplated in Art. 6 to an accused in committal proceedings". It will only be very rarely that a national court feels able to rule on the meaning and reach of an article of the ECHR in terms different from those adopted, on the identical question, by one of the Convention organs, and Mr Fitzgerald did not ask us to do so in this case. Rather, he argued that the procedure offended against Article 5(4) of the ECHR, right to take proceedings to question lawfulness of detention: as indeed the Commission had envisaged as as a possibility in Kirkwood.

60. It is therefore the Commission's view that Article 5(4) does potentially apply, but that the process is not subject to the full requirements of Article 6. Mr Fitzgerald submitted that when a court was, in our case, reviewing the legality of a detention under Article 5(4), the basic principle of fairness still applied. We will be forgiven for commenting that it does not require recourse to the ECHR to establish that proposition. The difficulty lies in deciding the content of the duty in any given case. The only authority that we were shown was Lamy v Belgium (1989) 11 EHRR 529, a bail case far removed from our present facts, where there had been serious failure in permitting the detainee to know even the nature of the case that was put against him; and as the argument developed, we increasingly formed the view that Mr Fitzgerald, having disclaimed recourse to the full panoply of rights under Article 6, was nonetheless seeking to reintroduce those rights under the rubric of Article 5(4). That would be plainly contrary to the guidance given by the Commission in Kirkwood.

61. The correct position in our view is as follows. The protection given by Article 5(4) is that detainees should have the assurance of judicial supervision of their detention: see e.g. De Wilde and ors v Belgium (1970) 1 EHRR 373 [76]. That is certainly provided in English extradition procedure by the supervision by the Magistrate. We incline to think that, before such a procedure could be said not to meet the requirements of Article 5(4), it would have to be so defective as not to be characterisable as "judicial" at all. But we need not go so far. The broad question is whether the detention is lawful. Neither in domestic law nor in the jurisprudence of the ECHR does that ential a full trial of the issues at that stage: bearing in mind that a full trial is to follow. The question is rather whether the anonymity of CS/1, and the way in which the Magistrate dealt with that anonymity, made the proceedings so unfair as to render them invalid as a control over Mr Al-Fawwaz's continued detention. For the reasons that we have already set out at length in analysing the Magistrate's ruling, we cannot so find.

62. We are fortified in that conclusion by reference to cases on detention in connnexion with deportation, where the Strasbourg Court has accepted the lawfulness of modified procedures to review detention under Article 5(1)(f), which deals indifferently with detention pending deportation and detention pending extradition: see for instance Sanchez-Reisse v Switzerland (1986) 9 EHRR 71[51]. This particular line of authority was not ventilated before us, and we therefore do not act on it. We are, however, bound to remark that it is in line with the conclusion that we had already reached on other grounds.

Conclusion on the decision of the Magistrate

63. We conclude that the Magistrate did not err either in domestic law or under the law of the ECHR in acting on the evidence of CS/1. That evidence is conclusive in establishing a prima facie case against Mr Al-Fawwaz.

64. If, however, we are wrong about that, we should go on to review the contention of the USA goverrnment that there is a prima facie case against Mr Al-Fawwaz even without relying on CS/1.

The other evidence

65. It is not entirely clear how the Magistrate viewed the force of the other evidence. He of course did not need to enter upon that question in order to reach his decision. In our view, however, irrespective of whether the matter is addressed in the Magistrate's ruling, it is open to this court to conclude on the basis of the other evidence that the Magistrate's actual decision that there was a prima facie case was not irrational in the Wednesbury sense, even if he had been wrong to take the evidence of CS/1 into account.

66. Detailed submissions were made by both parties. In assessing those submissions we have reminded ourselves of two things. First, an atmosphere of suspicion must not be mistaken for proof. Second, however, in a case such as the present a prima facie case may be demonstrated from a series of pieces of evidence, no one of which, taken in isolation, might be conclusive in that regard. The approach of Mr Al-Fawwaz tended to be to take each piece of evidence separately, and say that it was inconclusive. That is not the right approach; but for purposes of exposition only it will be convenient to review in series each of the main pieces of evidence relied on by the prosecution.

67. 1. Documents were discovered in Kenya at premises associated with Al-Qaida and with a man called El Hage, indicted in relation to the bin Laden conspiracy, which included business documents relating to Mr Al-Fawwaz and a "security report" which is alleged to have been prepared on Mr Al-Fawwaz's instructions, and to refer to activities by another cell of Al-Qaida in killing Americans in Somalia. Mobile phone bills in Mr Al-Fawwaz's name were also found. The defence contends in relation to all of these documents that they post-date Mr Al-Fawwaz's removal from Kenya.

68. 2. It appears to be accepted that Mr Al-Fawwaz purchased the satellite phone in the USA, and set up the secure telephone link through the USA. The innocent explanation given by the defence of these acts has been set out in paragraphs 50-51 above. As we there said, these are issues for argument at the trial.

69. 3. In London, Mr Al-Fawwaz was the original signatory of the lease of the premises of ARC at Beethoven Street, and remained such until February 1998. Various documents were discovered in a search of Beethoven Street, of which the most important for present purposes are claims of responsibility for the embassy bombings on 7 August 1998, which the prosecution alleges were in all probability received there before the bombings took place, and then distributed by post by conspirators working from that address. There is no evidence directly demonstrating Mr Al-Fawwaz's performance of those acts, which took place after he had relinquished the lease. However, the prosecution case is that he remained closely involved with events at Beethoven Street, as evidenced by a volume of telephone calls between that address and his residence at Dewsbury Street.

70. 4. When Dewsbury Street was searched a booklet relating to the use of scrambler telephones for secure communications was found, as was, in a concealed place, a copy of one of the documents from Beethoven Street.

71. We have no hesitation in saying that this evidence, taken together, and in the context of the overall evidence about the cell in Kenya and about the nature of ARC, calls for an explanation by Mr Al-Fawwaz. Each item separately may be susceptible of an innocent explanation. The whole taken together may be equally susceptible. But in its present state the evidence points sufficiently strongly to Mr Al-Fawwaz's involvement in the conspiracy to amount to a prima facie case, which will have to be met at the trial.

72. We conclude, therefore, that even if the Magistrate had refused to act on the evidence of CS/1 he would not have acted irrationally in finding a prima facie case to exist against Mr Al-Fawwaz.

Article 3 of the USA Supplementary Treaty

73. It was originally intended to be argued on Mr Al-Fawwaz's part that the requisition was discriminatory on grounds of race, and that no fair trial could be obtained by Mr Al-Fawwaz in the USA: thus engaging the provisions of the treaty referred to above. At the end of the second day of the hearing, but not before that, Mr Fitzgerald applied for that part of the proceedings to be adjourned, so that he could consider and reply to the evidence of the USA government. That evidence had been lately served, but that was because it was in reply to evidence on behalf of Mr Al-Fawwaz that itself had been served very late, in proceedings that had been in hand for some two years. We refused the application for the adjournment, and Mr Fitzgerald then withdrew that part of the habeas corpus application. We therefore say no more about it.

Conclusion

74. The application for habeas corpus is dismissed.

LORD JUSTICE BUXTON: For the reasons set out in the written judgment which has been circulated to the parties, copies of which are distributed to the court, this application is dismissed.

As far as applications for permission to appeal are concerned which have been moved on paper and have been carefully considered by myself in conjunction with Elias J who is not able to be here, all applications for permission to appeal are dismissed. I will state briefly why that is. This court would not be minded to grant permission to appeal on the second point moved by the applicant (the anonymous witness point), nor would it be minded to grant permission to appeal on the first of the applicant's points, that is the matter with regard to the aspect of territorial jurisdiction on which the court has decided the case. We have noted the wish of the respondent to ventilate before the House of Lords in the context of the first appeal the more general issues as to jurisdiction that were ventilated in this court. We do not think that it is appropriate for those issues to be ventilated in what effectively would be a cross-appeal and which would only arise were we to grant permission on the point to the applicant. If that course were to be taken it is our view that it should only be taken by an order of their Lordships' House.

MR FITZGERALD: I do seek legal aid assessment for the applicants.

LORD JUSTICE BUXTON: Yes. I thank everybody for their assistance in this interesting case. I think you appreciate why we take the view we do.

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