England and Wales High Court (Administrative Court) Decisions

IN THE SUPREME COURT OF JUDICATURE
HIGH COURT OF JUSTICE
ADMINISTRATIVE COURT
DIVISIONAL COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		29 July 2005

Lord Justice Brooke: This is the judgment of the court.

1. This is an application by Rabah Kadre for a writ of habeas corpus following his committal by District Judge Workman on 24th June 2004 (to await the decision of the Secretary of State) on a request for his extradition by the Government of France. Mr Kadre's extradition is sought pursuant to an allegation that he was a member of an association of Islamic terrorists, some of whom operated from Frankfurt, who planned an attack on the French city of Strasbourg.
2. These issues are raised on this application:

i) Whether the description of conduct in the extradition request(s) is sufficient to establish all the essential elements of the conspiracies set out in the suggested charges as defined in English law;

ii) Whether the applicant should be discharged on the basis that the extradition request was made in bad faith;

iii) Whether the applicant should be discharged on the basis that the conduct alleged was not properly described in the request.

3. The second and third of these issues arise out of the findings of a court sitting in Frankfurt, Germany, which convicted four men of being involved in a conspiracy to cause explosions at the Strasbourg Christmas market in December 2000, after a trial at which it was not suggested that the applicant was part of the relevant conspiracy. Complaint is made about the failure of the Government of France to make any reference to key parts of these findings.
4. The applicant has been charged in France in his absence with an offence contrary to Article 421.2.1 of the Penal Code which provides that:

"the participation in any group formed or association established with a view to the preparation, marked by one or more material actions, of any of the acts of terrorism provided for under the previous articles shall in addition to be an act of terrorism."

5. The acts of terrorism provided for under the previous articles include wilful attacks on life and the production and keeping of explosives, where such acts are committed for the purpose of disturbing public order through intimidation and terror. The offence under Article 421.2.1 is punishable by up to ten years' imprisonment.
6. The legislative scheme created by the Extradition Act 1989 ("the 1989 Act") and the European Convention on Extradition Order 1990 was described by Lord Templeman in Re Evans [1994] 1 WLR 1006, 1010-11, in these terms:

"There are thus six steps in the extradition of a suspect from the United Kingdom. First, the foreign court must consider that a charge of serious crime has been properly laid against the suspect on the basis of information which justifies the issue of a warrant for his arrest. Secondly the administration of the foreign country must consider that the charge, the law of the foreign country and the circumstances justify a request for extradition in accordance with the provisions of the Convention. Thirdly, the foreign state must identify the suspect, authenticate the foreign warrant for his arrest, give particulars of the alleged conduct which constitutes the offence and produce a translation of the relevant foreign law which establishes the offence and makes it punishable by 12 months' imprisonment or more. Fourthly, the Secretary of State must satisfy himself that the request is in order. The Secretary of State must then satisfy himself that the equivalent conduct in the United Kingdom would constitute an offence under the law of the United Kingdom punishable by 12 months' imprisonment or more. The Secretary of State may then issue an authority to proceed and must identify and specify the relevant law of the United Kingdom. Fifthly, the metropolitan magistrate sitting as a court of committal must be satisfied, after he has heard representations, that the alleged conduct would constitute a serious offence in the foreign state and in the United Kingdom. In other words the magistrate must be satisfied that a charge of serious crime offensive in the foreign country and offensive in the United Kingdom has been properly laid against the accused. The suspect can then be committed and the magistrate must certify the offence against the law of the United Kingdom which would be constituted by his conduct. Sixthly, subject to any habeas corpus proceedings, the Secretary of State may enforce extradition."

7. Section 9(8) of the 1989 Act provided that:

"Where an authority to proceed has been issued in respect of the person arrested and the court of committal is satisfied .... that the offence to which the authority relates is an extradition crime .... the court .... shall commit him to custody ...."

8. By section 2(1) of the Act "extradition crime" meant

"(a) conduct in the territory of a foreign state .... which, if it occurred in the United Kingdom, would constitute an offence punishable with imprisonment for a term of 12 months, or any greater punishment, and which, however described in the law of the foreign state, ... is so punishable under that law;

(b) an extra-territorial offence against the law of a foreign state .... which is punishable under that law with imprisonment for a term of 12 months, or any greater punishment, and which satisfies –

(1) the condition specified in subsection (2) below;"

....

9. Section 2(2) provided that:

"(2) The condition mentioned in subsection 1(b)(i) above is that in corresponding circumstances equivalent conduct would constitute an extra-territorial offence against the law of the United Kingdom punishable with imprisonment for a term of 12 months or any greater punishment."

10. This statutory scheme gives rise to two questions in the present case:

i) What are the offences contrary to the law of the United Kingdom which the conduct described in the extradition request would constitute?

ii) Given that the seat of the alleged conspiracy was in Germany and the conspirators' target was in France, would this conduct constitute an extra-territorial offence against the law of this country if the conspirators' target was in England?

11. So far as the first of these questions is concerned, although the offence created by Article 421.2.1 of the French Penal Code is couched in rather different terms from the equivalent offence under English law, the requesting state has suggested four relevant English charges: conspiracy to cause bodily injury by explosives, conspiracy to use explosives with intent to cause grievous bodily harm, conspiracy to place explosives near buildings with intent to do grievous bodily harm, and conspiracy to cause an explosion.
12. In each case the conspiracy is said to have been operative between a date unknown and 31st December 2000 and the co-conspirators are said to be "Abu Doha, Aeurobi Beandali alias Djilali and others". The first three offences are offences contrary to ss 28-30 of the Offences Against the Person Act 1861 and the fourth an offence contrary to s 3 of the Explosive Substances Act 1883. All these offences are subject to terms of imprisonment in excess of 12 months, so that in that respect the requirements of s 2 of the 1989 Act are satisfied.
13. So far as the second question is concerned, if conspirators in Germany are involved in a conspiracy to commit offences in this country, the courts of this country will assume jurisdiction even if nothing was actually done in this country in furtherance of the conspiracy (see R v Metropolitan Stipendiary Magistrate ex p Pinochet (No 3) [2000] 1 AC 147 per Lord Hope of Craighead at p 233; and R v Governor of Pentonville Prison ex p Tarling (1980) 70 Cr App R 77, 136). It is therefore common ground that the first issue on this application gives rise to the question whether the conduct attributed to the applicant in Germany (and elsewhere) for the purpose of causing explosions in France would, transposing this country for France, amount to the identified conspiracies under the law of this country.
14. It will be remembered that in Re Evans Lord Templeman described the fifth stage of the extradition process as requiring the metropolitan magistrate to be satisfied that the alleged conduct would constitute a serious offence in the foreign state and in this country. S 7(2)(b) of the 1989 Act prescribes that the extradition request must contain "particulars of the offence of which he is accused". In other words the magistrate need only examine particulars of the offence contained in the request and nothing else. In Re Evans Lord Templeman said at p 1013:

"The Magistrate is not concerned with proof of the facts, the possibilities of other relevant facts, or the emergence of any defence; these are matters for trial."

15. In Castillo v Kingdom of Spain & Anr [2004] EWHC 1672 (Admin) this court was concerned with a complaint that the description of the conduct alleged in the request was not a fair description of that conduct. Two of the offences charged on that occasion were of an attempt to cause really serious bodily injury to a police officer by the explosion of an explosive substance and the alleged murder of that police officer. Thomas LJ was satisfied that the description of the alleged conduct that was set out in the request was not proper, accurate or fair, in that it did not make clear that the policeman was in his house at the time and not near the car under which an explosive was being placed, or that the device was not a timed device but one which required a fuse to be lit. The application for habeas corpus therefore succeeded in relation to those two charges. Thomas LJ said at para 25:

"....[I]t is in my view very important that a state requesting extradition from the UK fairly and properly describes the conduct alleged, as the accuracy and fairness of the description plays such an important role in the decisions that have to be made by the Secretary of State and the Court in the UK. Scrutiny of the description of the conduct alleged to constitute the offence alleged, where as here a question is raised about its accuracy, is not an enquiry into evidential sufficiency; the court is not concerned to assess the quality or sufficiency of the evidence in support of the conduct alleged, but it is concerned, if materials are put before it which call into question the accuracy and fairness of the description, to see if the description of the conduct alleged is fair and accurate."

16. The French request summarised Mr Kadre's conduct in these terms:

"Kadre had integrated the European Islamist network, and notably the Frankfurt group of Islamist activists, with whom he had planned a terrorist attack, using explosives, in France, and for that reason he had benefited from a clandestine safe house located at 136 Roderbergweg [in Frankfurt]."

17. The request states that Mr Kadre was a core member of a terrorist group centred around a man named Abou Doha, who was based in London. It says that he was a pivotal figure in an overall network of Islamic terrorists in his role as Abou Doha's assistant. It asserts that there was a wide network of terrorists involved in the plan to attack the Strasbourg market, and that the four men who were arrested in Frankfurt and later charged and convicted in Germany were part of the Abou Doha group. They had trained with him in Afghanistan, attended his meetings in London, were closely associated with other members of the group in Afghanistan, France, Germany and the United Kingdom, and received financial and logistical support from him. Mr Kadre played a central role in the group not only because of his relationship with Abou Doha, but also because of his recognised role in forging passport documentation.
18. The French request refers to three points in particular to back its assertion that Mr Kadre was linked with the Frankfurt group in the overall conspiracy to attach the Strasbourg market. The first is that his fingerprints were on a box of cartridges found by the German police at the home of one of the Frankfurt conspirators, a man named Aeurobui Beandali, when they raided it on 26th December 2000. The second lies in the evidence from telephone intercepts and depositions. The third arises out of telephone data which reveal his contact details in the memory of the cell phone of a man concerned with supplying forged French passports to members of the Frankfurt group. The papers attached to the French request also contain an assertion by a man called Aknouche to the effect that Mr Kadre had been highly critical of France when he met him in Afghanistan in 1997 and that he had advocated the use of violence in western countries.
19. Furthermore all the men arrested in Frankfurt were in London at various times between August and November 2000, and the request asserts that Mr Kadre was in direct contact with them at the very regular meetings that took place in London during that period, before those men went to Frankfurt in early November.
20. So far as the events in Frankfurt were concerned, on 25th December 2000 police raided an address in Sigmund Freud Strasse, where they uncovered firearms, hand grenades, bomb-making equipment and documentation. A videotape recovered at the scene, which was dated 23rd December 2000, showed that some of the conspirators had been on a reconnaissance trip from Frankfurt to Strasbourg very recently. Three men called Sabour, El Haddad (otherwise known as Boukhari) and Maroni were arrested at that address.
21. On the following day police raided an address in Roderbergweg, Frankfurt, where they recovered more firearms and a box of cartridges. A man called Djillali Benali (also known as Beandali) was arrested there. Mr Kadre's fingerprints were found on the box of cartridges. There were also some forged identification documents there which bore the photographs of other people including Aknouche.
22. Other members of the network who were party to the conspiracy to attack Strasbourg were not apprehended by the German authorities on these two raids. These included Aknouche and a man called Djoumakh, who were both arrested in France and made party to the same proceedings, and the papers refer to three other men who were arrested in France (or arrested in Spain and extradited to France). One of them was said to be an important figure in financing the network through the use of cloned bank cards.
23. In a commendably brief judgment the district judge directed himself correctly that because France was a party to the European Convention on Extradition it was unnecessary for the French Government to provide sufficient evidence to establish a prima facie case. He summarised the effect of the evidence against the four men arrested and tried in Germany, and accepted that at their trial there was no mention of Mr Kadre and no suggestion that he had taken any part in the conspiracy. He recorded the fact that one of Mr Kadre's fingerprints had been found on the box of cartridges, and said that he was satisfied that this created a link between Mr Kadre and Mr Beandali and the address in Roderbergweg, and that there was also a link between that address and the address at which the other convicted conspirators were arrested. The conduct revealed in the French request clearly revealed a conspiracy to cause explosions, and the link between Mr Kadre and the convicted conspirators was established.
24. The district judge continued:

"The issue is whether the Government can establish that the conduct alleged involves an agreement to cause explosions. There is a clear link between the address where Mr Kadre's fingerprint was found on a box of cartridges and the address at which the explosive material was found. It is necessary for the Government to allege that the conduct amounted to an agreement and that agreement was to cause explosions. It is not necessary for the Government to demonstrate that each conspirator knew the full extent of the conspiracy but I am satisfied on the conduct alleged by the Government that there was a conspiracy to cause explosions and that Mr Kadre is alleged to have played a part in that conspiracy. I am not required to decide whether there is sufficient evidence to support a conviction but I am satisfied that his conduct could in law, if proved, amount to such a conspiracy."

25. Because Mr Wood QC, who appeared for Mr Kadre, relied so heavily on the findings of the German court, it is convenient to consider his submissions on Issues (i) and (iii) at the same time.
26. According to those findings, Benali was in London for about a month in September before going to Frankfurt. He had been taught in a training camp in Afghanistan to be an explosives expert, and he learned how to carry out bomb attacks in which the explosive charges were exploded in pressure cookers made from aluminium.
27. Sabour, who had met Benali and Boukhari in Afghanistan, was in London during the months leading up to the end of October 2000, when he went to Frankfurt.
28. Boukhari, who had spent a lot of time in England from 1992 onwards and twice married women who were British nationals, was trained by terrorists in Afghanistan in 1999-2000, and returned to London on 16th September 2000. He first went to Frankfurt in early November 2000.
29. Maroni, who also received paramilitary training in Afghanistan, returned to London on an unspecified date, and travelled from London to Frankfurt with Boukhari on 5th December 2000.
30. The German court's findings (at para 2.1) described how Boukhari, Benali and Maroni were all in Frankfurt together in November 2000. They then continued in these terms:

"Boukhari made a telephone call to a member of a London Group of Islamists centred around a certain Abu Doha – possibly to the aforementioned Noureddine or to Abu Doha himself – in which the latter gave him the idea to plan and carry out a bomb attack which was to be committed in France.

During their meeting in November 2000 the accused Benali, Boukhari and Sabour already discussed the possibility of carrying out a bomb attack in France.

The accused Boukhari consequently returned to London, where the group around Abu Doha gave him two credit cards for financing the preparations for the attack, each issued to the name 'C. Aman' – an American Express card and a Visa card – as well as cash worth the equivalent of 20,000.00 DM.

After this the accused Boukhari flew from London to Frankfurt am Main on 05th December 2000 together with his friend Maroni who, like Boukhari, belonged to the group around Abu Doha. Their joint return flight to London was booked for the 04th January 2001. In Frankfurt the two stayed with the accused Sabour in the flat at Sigmund-Freud-Straße 55.

The accused Boukhari brought two transceivers from London – manufactured by the Yaesu or by Icom – as well as an electronic circuit on a circuit board and a strip of paper with the label '38795 Code' covered with a transparent adhesive tape together with the blue notebook already mentioned and a ring binder. This contained, amongst other things, handwritten entries in the form of a shopping list in which chemicals and other materials required to produce the (initial) explosive triacetone triperoxide (TATP) were listed."

31. The findings also described how Benali ordered a cooking pot on 25th December from a member of the Abou Doha group in London, who arranged to bring one to Frankfurt the following day, and it also described how the four men also wished to support Islamic fundamentalists in Algeria, and this was the reason why the weapons and cartridges were found on the police raids.
32. The links between the four men in Frankfurt and the Abou Doha group in London were further illustrated by the request Boukhari made to Abou Doha for money on 24th December 2000 (the day before he was arrested). The German court said that it was perfectly possible that Abou Doha himself could have instigated Boukhari in November 2000 to carry out the bomb attack in France.
33. The main thrust of Mr Wood's submissions was that the conspiracy which the German court found proved began in Frankfurt in November 2000, that the cartridge box on which Mr Kadre's fingerprints were found had nothing to do with the conspiracy to cause explosions in Strasbourg, and that a careful analysis of the findings of the German court and of the evidence attached to the French request shows that the weapons (and, presumably, the cartridge box) were originally in a flat in Berlin where Mr Kadre used to go, and that Mr Aknouche brought them from Berlin to Frankfurt prior to his being arrested there on 6th September 2000. Mr Wood therefore argued that the fingerprint evidence was wholly irrelevant to the explosives conspiracy, which was initiated two months after the weapons etc had arrived in Frankfurt. He also referred to minor inaccuracies in the description of the weapons that were found.
34. Mr Wood reminded us of the mens rea requirement of the English offence of conspiracy:

"[B]eyond the mere fact of agreement, the necessary mens rea of the crime is, in my opinion, established if, and only if, it is shown that the accused, when he entered into the agreement, intended to play some part in the agreed course of conduct in furtherance of the criminal purpose which the agreed course of conduct was intended to achieve. Nothing less will suffice; nothing more is required." (per Lord Bridge, R v Anderson [1986] 2 AC 27, 39E)

35. He emphasised that in addition to identifying the agreement alleged to have been entered into, English law requires conduct to be identified from which Mr Kadre's intention to play a part in the agreement can properly be inferred. He said that the material attached to the French request, while material to an offence under Article 421.2.1 of the French Code, did not support the English criminal offences which had been identified.
36. In our judgment, Mr Wood's valiant efforts on his client's behalf did not overcome the difficulty that on an extradition request from France the English court "is not concerned with proof of the facts" or "the possibilities of other relevant facts" (see para 14 above). Thomas LJ's judgment in Castillo, where the request simply misdescribed the conduct alleged in a very basic way, is far too slender a support for the edifice Mr Wood sought to construct on top of it. We accept the submission of Mr Keith, who appeared for the respondents, which was expressed in these terms:

"The function of the Court below was not to ascertain whether there was a case to answer but to determine the issue of whether the conduct described in the Request would, had it taken place in the United Kingdom, have amounted to the extradition offences as described in the charges. The Request states in terms that the applicant was a party to the planned attack in France; it states that the French authorities have evidence in the form of telephone intercepts and witness statements to support this; the Request points to the Applicant's clear central role within Europe in the Abou Doha group; it has shown that those arrested in Frankfurt were part of the same group; and it can point with certainty to the Applicant's direct contact with munitions discovered at one of two flats used by those arrested in Frankfurt. It is thus submitted that the Applicant's contention that the French Request does not disclose sufficient conduct to support the charges is unsustainable."

37. We turn finally to Mr Wood's submission that the French request was not made in good faith in the interests of justice. This submission was founded on s 11(3) of the 1989 Act, which provided that:

"Without prejudice to any jurisdiction of the High Court apart from this section, the court shall order the applicant's discharge if it appears to the court in relation to the offence, or each of the offences, in respect of which the applicant's return is sought, that –

...

(c) because the accusation against him is not made in good faith in the interests of justice, it would, having regard to all the circumstances, be unjust or oppressive to return him."

38. Mr Wood submitted that the findings of the German court revealed a conspiracy between the four men in Frankfurt which was initiated by a suggestion from London that they might attack a target in Strasbourg, but was otherwise driven forward by Mr Boukhari in Frankfurt, albeit he obtained financial resources from London and eventually a cooking pot was sought from London. Furthermore the German court made a clear distinction between the Strasbourg conspiracy and the plan to send weapons to Algeria, and made no mention of Mr Kadre's role in the conspiracy. Mr Wood argued that the failure of the French authorities to take account of the German court's findings should be regarded as a manipulation of the English extradition proceedings in order to secure Mr Kadre's return to France for conduct which would not amount to a criminal office in England.
39. The district judge dismissed this allegation quite summarily. In our judgment he was right to do so. In Mr Kadre's case, no date is given for the beginning of the conspiracy with which he stands charged, and the named co-conspirators are Abou Doha himself and Benali. There is plenty of material in the French request to show a much greater London involvement in the plan than was allowed for in Mr Wood's submissions, and the German judgment did not need to focus on this wider conspiracy at all, other than to make casual references to London involvement. The German judgment was concerned with the narrow issue of the guilt of the four men arrested in Frankfurt, in contrast to the much wider picture painted by the French authorities, on the basis of much further investigations, in their request.
40. Paragraphs 38-42 of the judgment of Thomas LJ in Castillo provide useful guidance as to what is meant by the concepts contained in s 11(3)(c). In our judgment Mr Wood's contentions go nowhere near substantiating his case that in making their accusation against Mr Kadre the French authorities were not acting in good faith in the interests of justice. In a matter of this complexity it is likely that the prosecutors may make mistakes on matters of immaterial detail or may place more emphasis on certain matters and may omit other matters in a way that may lead them to be open to criticism in due course, but that is a long way from saying that they are not acting in good faith.
41. For all these reasons this application is dismissed.