England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT

		Royal Courts of Justice Strand London WC2A 2LL
		28 November 2007

1. MR JUSTICE GROSS: This is an adjourned application for permission to apply for judicial review. The applicant - a British national - seeks permission to challenge the refusal by the Secretary of State for the Home Department on 24 August 2007 to suspend extradition to the United States of America pending the outcome of his civil proceedings against the Metropolitan Police for assault.
2. The applicant claims that his human rights under Articles 3 and 6 of the European Convention on Human Rights (ECHR) will be breached by extradition because he will be unable, amongst other things, to give oral evidence in person in civil proceedings. I say "amongst other things" because the case has moved on somewhat and I shall elaborate on the more precise nature of those complaints in due course. Further the Secretary of State for the Home Department will be acting contrary to his duty under Section 6 of the Human Rights Act 1998. The applicant underlines that Article 3 imposes a procedural obligation to investigate the circumstances of the incident potentially engaging the responsibility of the state.
3. Article 3 of the ECHR provides, so far as material, as follows:

"3 No one shall be subjected to torture or to inhuman or degrading treatment or punishment."

Article 6 provides that -

"In the determination of his civil rights ..... everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law."

4. The applicant has another outstanding judicial review claim in relation to his extradition proceedings - the 2006 claim. That claim is stayed pursuant to an order of this court dated 11 May 2006 (the 11 May order) pending only the outcome in the Norris proceedings in the House of Lords. Originally the 11 May order stayed the 2006 claim pending the outcome of an earlier appeal of the applicant against his extradition but that appeal (the first appeal) has been dismissed by this court on 30 November 2006 (the 30 November 2006 judgment) and leave to appeal to the House of Lords was refused.
5. The applicant and another, his co-appellant in the first appeal, have also lodged applications to the European Court of Human Rights which has requested the government not to extradite them pending that court's determination of the applications made to it. In the first appeal various points were taken concerning the provisions for extradition to the United States of America and those points do not arise again on this application. Today the only point arising relates, as already foreshadowed, to the applicant's case that his extradition in the absence of appropriate guarantees will infringe his human rights insofar as it impedes his ability to conduct his civil action against the Metropolitan Police. Pulling some other threads together, whatever our decision today, even if adverse to the applicant, he will not be extradited until (1) the outcome of the Norris appeal is known and then depending on the precise nature of that outcome, and (2) determination by the European Court of Human Rights of the application made to it.
6. We know from material given to us today that on no view will the European Court of Human Rights be in a position to rule prior to 7 January 2008 as the applicant has himself until that date to put in reply submissions. We are told, and have no reason to doubt, that there is no realistic possibility whatever of that court ruling prior to 31 January 2008. It may be, of course, that a considerably longer period of time elapses before there is any ruling from that court.
7. The question today is whether the additional and sole point raised in this application provides an arguable ground for judicial review with the effect, whatever its intention, of delaying extradition while the point is disputed and then resolved.
8. The applicant's extradition to the United States of America is sought pursuant to the provisions of the Extradition Act 2003 (the 2003 Act). In broad terms, the applicant's extradition is sought in relation to charges of terrorism.
9. The applicant's civil proceedings - through no fault, we underline, of his current solicitors Bhatt Murphy - have a somewhat protracted history. The chronology is that the applicant alleges that he was assaulted by the police in December 2003. His extradition was requested in 2004. In March 2006 he first instructed Bhatt Murphy, having instructed other solicitors hitherto. The civil proceedings were not commenced until July 2007.
10. A complaint developed by Miss Kaufman before us today proceeded along the following lines. Realistically, if I may say so, she accepted that the mere fact that the applicant was abroad did not in principle infringe his human rights for the obvious reason that this court is perfectly able to conduct civil trials through the use of video evidence, and that is the obvious course to take should the applicant find himself in the United States at the time his civil trial is due for hearing.
11. So, refining her grounds of complaint, Miss Kaufman focussed instead on the submission that the Secretary of State for the Home Department had not obtained sufficient guarantees from the United States to safeguard the applicant's human rights. She said that there was an arguable case that there were substantial grounds for believing that there is a real risk that his rights under Article 3 and Article 6 would be infringed. In this regard, she took us, first of all, to a schedule of steps that needed to be undertaken in the civil proceedings, provided by Bhatt Murphy, the applicant's solicitors. When one looks at the outstanding steps, in a sense, all involve instructions and the giving of evidence. But, as far as I can see, with the exception that there is, or may be, the need for an MRI scan of the applicant's feet and there may be some question of expert witnesses, apart from that, it is all a question of instructions or the applicant's evidence.
12. The next point that is made is as to whether such guarantees as are so far available are sufficiently specific to cover concerns as to the preservation of lawyer/client or litigation privilege. These are matters which Miss Kaufman has sought to address. She says the Secretary of State cannot be sure that lawyer/client privilege for foreign lawyers will be protected should the applicant find himself in custody and detained pursuant to what are called Special Administrative Measures in the United States.
13. Thirdly Miss Kaufman is concerned as to the ability to transmit instructions and communications free of interference with sufficient speed for the civil proceedings.
14. Fourthly she raised a question as to public funding - legal aid funding - for this case given the concerns thus far expressed by the Legal Services Commission about funding of travel expenses for counsel, solicitors and experts to the United States.
15. In answer to this, Mr Eadie, for the Secretary of State, said that there was nothing in this application. There was no realistic risk of any infringement of the applicant's human rights, that the guarantees thus far obtained by the Secretary of State were ample. He drew our attention specifically both to the letter from the Treasury Solicitor of 24 August 2007 and, more particularly, the letter from the US Department of Justice dated August 15, 2007 in which the US Department of Justice said:

"Even with the implementation of a SAM the attorney/client privilege remains preserved and intact. Typically, the only attorney/client related protections in a prisoner's cell are there to ensure the prisoner does not utilise his attorney/client relationship in furtherance of violence or terrorism."

16. It goes on to specify certain requirements which an attorney may need to fulfil to satisfy those concerns. It continues:

"The SAM places no volume on restraints and/or review requirements of attorney/client privileged documents and correspondence related to the prisoner's defence."

The letter goes on to say that the SAM may be tailored to meet the needs of an individual prisoner who has additional attorney/client relationships. It also adds - significantly, in my judgment - that even if special administrative measures were imposed in Mr Ahmad's case the United States Attorney's Office would not object to any "carve out from these measures that would allow him to communicate privately with his lawyers regarding this civil case".

17. Finally the letter deals with the availability of videolinks and makes the point that working with whatever security precautions are appropriate, the US Attorney's Office have stated that they could and would take any and all reasonable steps to accommodate any requests for video facilities from Mr Ahmad to allow him every opportunity to participate meaningfully in his civil trial.
18. Mr Eadie further takes the point that these complaints about Mr Ahmad's human rights could and should have been raised in the course of the first appeal and that it is too late for them to be raised now. We indicated in the course of argument that it was unnecessary to deal with those arguments today unless at least Miss Kaufman had satisfied the first hurdle of persuading the court today on the merits that she should get permission to pursue this challenge further. Clearly that last point raises considerations of some importance. I shall say something very provisionally about it at the end of this judgment.
19. I turn to consider the merits of the application, bearing in mind it is an application for permission. In my judgment, I am amply satisfied that there is no arguable case whatever of substantial grounds for believing that there is a real risk that his rights under Article 3 and Article 6 will be infringed. It is commonplace, as my Lord observed in argument, that trials are conducted with the use of videolink evidence in this country. There is nothing particularly unusual about that. It is, of course, true that in this case the applicant may find himself in a prison in the United States.
20. I accept that that does give rise to different or separate considerations. But that said, the guarantees which are contained in the US Department of Justice letter, to which I have referred, are clearly of a far-reaching nature. The letter was clearly written with regard to civil proceedings in this country. In my judgment, it makes it plain that attorney/client privilege would extend to English lawyers. But if there was any doubt about that, then of course any such difficulty can readily be met by engaging a US lawyer to deal with the matter.
21. The videolink facilities are clearly intended to be available. Any judge in this country will adapt the rules of civil procedure or the timetable involved to ensure that the trial can proceed fairly in the light of any hiccups that there might be with timing or otherwise so as to make Mr Ahmad's evidence available. Similarly there is no reason whatever to doubt that the US Department of Justice means what it says when it makes it clear that there will be no restrictions on attorney/client communications.
22. So far as concerns the Legal Services Commission, as I suggested to Miss Kaufman in argument, when one looks at the letter and reads it fairly, the Legal Services Commission was addressing the point of whether all concerned would be travelling to the United States - rather than whether the case would proceed with contact via experts and others over videolink or otherwise from this country to the United States.
23. There remains only one point which is the question of the MRI scan. In that regard, Miss Kaufman told us that a request has already been made on 14 November but no answer has yet been received. In my judgment certainly there is no reason to suppose that such a scan cannot be arranged and dealt with well in advance of 31 January. I strongly urge the Secretary of State for the Home Department, through Mr Eadie, to deal with this point directly with the Secretary of State for Justice, if need be, to ensure that there is no problem in this regard.
24. In my judgment, the more one analyses this matter the less there is in it, with respect to Miss Kaufman. There are guarantees in place. It is, as my Lord observed in argument, an important principle in the area of extradition that there is a public interest in getting on with it, at least so long as it is consistent with doing justice in the individual case. To hold up extradition now because of this challenge - which would be the effect of it succeeding - is a most unattractive submission and one without merit for the reasons I have sought to give.
25. Finally, on the point of whether these arguments should have been taken in the course of the appeal against extradition, we have not heard full argument on it and any view I would express would be provisional only. But my strong inclination is that any point such as those raised today would have been better raised in the course of that appeal. As I say, we have not heard argument on that point.
26. LORD JUSTICE THOMAS: I agree.
27. Do you want any orders?
28. MR EADIE: Taxation.
29. MISS KAUFMAN: An order for a detailed assessment.
30. LORD JUSTICE THOMAS: Of course.
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