QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
MR JUSTICE TOULSON
|(1) Azad Hosseini
(2) Omar Ahmed
(3) Besran Zada
|- and -
|Head of the Prosecution Department of the Courts of Higher Instance, Paris, France
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Peter Caldwell and Brian Gibbins (instructed by the Crown Prosecution Service)
for the Respondent
Crown Copyright ©
Lord Justice Richards:
"12.6 In conclusion Mr & Mrs Hosseini sought and were granted asylum in this country as a consequence of their experiences in their home countries. Mr Hosseini is suffering from PTSD and depression as a result of previous traumatic events in Iraq and Iran. These conditions are being exacerbated by his current imprisonment and the prospect of extradition to France. Mrs Hosseini is also suffering from a Major Depressive Disorder which is also being exacerbated by Mr Hosseini's imprisonment and the threat of extradition. This is impairing her ability to experience a normal family life and to provide one for her daughter.
12.7 In the past Mrs Hosseini has been highly dependent on her husband for support and currently she is supported by her mother who will soon have to return to Iraq. When that happens she is likely to deteriorate. Were Mr Hosseini to be extradited it is my opinion that it is highly likely that Mrs Hosseini would deteriorate further bringing with it a serious risk of self harm. Along with this would be a further reduction in her ability to lead a normal family life or provide one for her daughter."
"Certain members of the organisation are based in England, notably in Birmingham. Certain are depositories of sums paid by the clandestine immigration seekers to Great Britain. The clandestine passengers are taken in hand only after a deposit payment and after the passage, the treasurer repays part of the money to the members of the network that intervened. The sums received by the members of the network in France permits them to pay for food, lodging and hence to stay in France without working and to finance the cost of the transportation and passage of the clandestines (ex: purchase of petrol, telephones, etc.).
The investigations and notably the interception of telephone conversations permitted to evidence the following elements:
- In all likelihood, AMJAD is the brother of Amin BARZAN alias Baghet who is, with SIRWAN, one of the organisers in France.
- AMJAD has a double role as treasurer and organiser of the network and he is in relation for the functioning of the clandestine immigration channel, with AMIN Abdurahman, alias RAHMAN, SALAH Allan, alias SIRWAN, AMIN Bayan (his brother) all three at the head of the French part of the network."
"In conversations no. 465 and 473 … Amjad confirms the transfer of money for the client who is in Paris. Baghet is to take care of it the next day with a group of persons. He takes the occasion to thank him. He received the money. Amjad explains that the forwarding was made under the identity of 'Salar Ali'.
Between April and September 2005, Azad HOSSEINII alias AMJAD sent 13 money orders to persons involved in the network …."
i) whether the conduct described in the warrants amounts to an extradition offence for the purposes of the 2003 Act: this point was not taken before the district judge but is a matter of law going to the court's jurisdiction to order extradition, and there is no dispute that it can be taken on appeal despite the failure to raise it below; and
ii) whether the extradition would be in breach of Hosseini's rights under article 8 of the European Convention on Human Rights.
Issue (1): extradition offence
"(1) This section applies in relation to conduct of a person if –
(a) he is accused in a category 1 territory of the commission of an offence constituted by the conduct ….
(2) The conduct constitutes an extradition offence in relation to the category 1 territory if these conditions are satisfied –
(a) the conduct occurs in the category 1 territory and no part of it occurs in the United Kingdom;
(b) a certificate issued by an appropriate authority of the category 1 territory shows that the conduct falls within the European framework list;
(c) the certificate shows that the conduct is punishable under the law of the category 1 territory with imprisonment or another form of detention for a term of 3 years or a greater punishment.
(3) The conduct also constitutes an extradition offence in relation to the category 1 territory if these conditions are satisfied –
(a) the conduct occurs in the category 1 territory;
(b) the conduct would constitute an offence under the law of the relevant part of the United Kingdom if it occurred in that part of the United Kingdom;
(c) the conduct is punishable under the law of the category 1 territory with imprisonment or another form of detention for a term of 12 months or a greater punishment (however it is described in that law).
(4) The conduct also constitutes an extradition offence in relation to the category 1 territory if these conditions are satisfied –
(a) the conduct occurs outside the category 1 territory;
(b) the conduct is punishable under the law of the category 1 territory with imprisonment or another form of detention for a term of 12 months or a greater punishment (however it is described in that law);
(c) in corresponding circumstances equivalent conduct would constitute an extra-territorial offence under the law of the relevant part of the United Kingdom punishable with imprisonment or another form of detention for a term of 12 months or a greater punishment.
(5) The conduct also constitutes an extradition offence in relation to the category 1 territory if these conditions are satisfied –
(a) the conduct occurs outside the category 1 territory and no part of it occurs in the United Kingdom ….
(6) The conduct also constitutes an extradition offence in relation to the category 1 territory if these conditions are satisfied –
(a) the conduct occurs outside the category 1 territory and no part of it occurs in the United Kingdom …."
"I cannot, however, accept that subsection (3) is to be read as requiring that all the conduct complained of should have occurred in the category 1 territory. The subsection does not so provide, and the qualification that no part of the conduct should have occurred in the United Kingdom, expressly stipulated in subsections (2)(a), (5)(a) and (6)(a), is not found in (3)(a). It must be inferred that that qualification was not intended. It is enough, under subsection (3)(a), if some of the conduct complained of or relied on occurred in the category 1 territory."
"29. … I respectfully agree with the conclusions that he has reached for the reasons he has given. But I should like to add some comments of my own on the meaning that is to be given to the word 'conduct' in this context. For convenience I shall concentrate on the wording of section 65 bearing in mind that, for present purposes, the wording of the two sections is identical.
34 Common to the first condition about the place of the conduct, irrespective of the subsection under which it has to be satisfied, are two questions: (1) whether the person must be within the territory of the requesting state at the time of the conduct which he is alleged to have committed, and (2) whether the conduct must have occurred exclusively within that territory. In many cases, of course, these will not be live issues as it will be plain that the conduct occurred exclusively in the territory of the requesting state. But many of the offences in the framework list such as trafficking in human beings are commonly committed across borders. The appellant is alleged to have engaged in conduct of that kind, so these questions must be addressed in his case.
35 The answers are to be found in the first place in the language which has been used by the legislature which Lord Bingham has analysed. The context in which that language has been used is, of course, provided by the common law. It is provided in particular by the rules which apply when jurisdiction is claimed on the basis of territoriality. It is now well established that the physical presence of the defendant in the territory is not required so long as the effects of his actions were intentionally felt there. That rule is matched by its corollary which is that, if the effects of those actions were intentionally felt here, criminal jurisdiction can be exercised in respect of their effect irrespective of where the actions took place that gave rise to them. Section 65(2) modifies these rules in the case of framework offences where the test of double criminality is dispensed with, as it requires that no part of the conduct took place in the United Kingdom. But the test of whether conduct occurs in the category 1 territory is satisfied for the purposes of section 65(3) so long as its effects were intentionally felt there, irrespective of where the person was when he did the acts which constituted such conduct."
"This would be the situation if a bomb or a letter sent from abroad were found anywhere within the jurisdiction. Its presence at that spot would be an intended effect of the act of despatching it. In my opinion it is not the present law of England that an offence is committed if no effect of an act done abroad is felt there, even though it was the intention that it should be. Thus if a person on the Scottish bank of the Tweed, where it forms the border between Scotland and England, were to fire a rifle at someone on the English bank, with intent to kill him, and actually did so, he would be guilty of murder under English law. If he fired with similar intent but missed his intended victim, he would be guilty of attempted murder under English law, because the presence of the bullet in England would be an intended effect of his act. But if he pressed the trigger and his weapon misfired, he would be guilty of no offence under the law of England, provided at least that the intended victim was unaware of the attempt, since no effect would have been felt there."
"40. I would construe the word 'conduct' in sections 65(2)(a) and 65(3)(a) of the 2003 Act in the light of these authorities. The conduct must occur 'in' the category 1 territory if the condition which is set out in these paragraphs is to be satisfied. But a purposive meaning must be given to the word 'conduct' in this context. It would impose a wholly artificial restriction on the extradition process if it were to be taken as meaning that all the conduct which resulted in the offence must have taken place exclusively within the category 1 territory. Actings elsewhere will be sufficient to constitute conduct in that territory so long as their intended effect was to bring about harm within that territory. It would be immaterial to a request for extradition to Belgium, for example, that the actings which had a harmful effect were all in France or Germany. The situation would be different, of course, if some part of those actings occurred in the United Kingdom. But that is because of the qualification that section 65(2)(a) has introduced, which prevents cases where some of the conduct occurs in the United Kingdom from being treated as an extradition offence under that subsection. The fact that it was thought necessary to insert this qualification is consistent with the existence of a general rule of the kind that I have described."
"25.(1) A person commits an offence if he –
(a) does an act which facilitates the commission of a breach of immigration law by an individual who is not a citizen of the European Union,
(b) knows or has reasonable cause for believing that the act facilitates the commission of a breach of immigration law by the individual, and
(c) knows or has reasonable cause for believing that the individual is not a citizen of the European Union.
(2) In subsection (1) "immigration law" means a law which has effect in a member State and which controls, in respect of some or all persons who are not nationals of the State, entitlement to –
(a) enter the State,
(b) transit across the State, or
(c) be in the State.
(4) Subsection (1) applies to anything done –
(a) in the United Kingdom,
(b) outside the United Kingdom by an individual to whom subsection (5) applies, or
(c) outside the United Kingdom by a body incorporated under the law of a part of the United Kingdom.
(5) This subsection applies to –
(a) a British citizen,
(b) a British overseas territories citizen,
(c) a British National (Overseas),
(d) a British Overseas citizen,
(e) a person who is a British subject under the British Nationality Act 1981, and
(f) a British protected person within the meaning of that Act …."
Issue (2): Article 8
"Mr Kennedy advises as follows:
- There was a meeting on 7th October 2005 which he attended. This dealt with negotiating and agreeing the co-ordination of the arrests which subsequently took place on 14th December 2005.
- There was no discussion at Eurojust or involvement of Eurojust in deciding in which jurisdiction prosecutions should take place or with regards to which jurisdiction should issue European Arrest Warrants, either at the meeting on 7th October 2005 or subsequently.
- More recently Eurojust has provided information on the progress of surrender proceedings which have followed the arrests."
"… without a system for allocating cases to an appropriate jurisdiction while proceedings are ongoing, ne bis in idem can lead to accidental or even arbitrary results: by giving preference to whichever jurisdiction can first take a final decision, its effects amount to a 'first come first served' principle. The choice of jurisdiction is currently left to chance, and this seems to be the reason why the principle of ne bis in idem is still subject to several exceptions.
An adequate response to the problem of (positive) conflicts of jurisdiction would be to create a mechanism for allocating cases to an appropriate jurisdiction …."
"… If a person's proposed extradition for a serious offence will separate him from his family, Article 8(1) is likely to be engaged on the ground that his family life will be interfered with. The question then will be whether the extradition is nevertheless justified pursuant to Article 8(2). Assuming compliance with all the relevant requirements of domestic law the issue is likely to be one of proportionality: is the interference with family life proportionate to the legitimate aim of the proposed extradition? Now, there is a strong public interest in 'honouring extradition treaties made with other states' (Ullah, paragraph 24). It rests in the value of international co-operation pursuant to formal agreed arrangements entered into between sovereign States for the promotion of the administration of criminal justice. Where a proposed extradition is properly constituted according to the domestic law of the sending State and the relevant bilateral treaty, and its execution is resisted on Article 8 grounds, a wholly exceptional case would in my judgment have to be shown to justify a finding that the extradition would on the particular facts be disproportionate to its legitimate aim."
Mr Justice Toulson: