QUEEN'S BENCH DIVSION
Strand, London, WC2A 2LL
B e f o r e :
MR JUSTICE DAVID CLARKE
| SYED HASHMI
|- and -
|THE GOVERNMENT OF THE UNITED STATES OF AMERICA
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David Perry Q.C. and Adina Ezekiel (instructed by The Crown Prosecution Service) for the Respondent
Hearing date: 16 January 2007
Crown Copyright ©
Lord Justice Scott Baker:
"(i) knowingly permitted Babar to store that second batch of materials in his London apartment and,
(ii) knowingly permitted Babar to use his mobile telephone in London to contact Ali and other Al Qaeda supporters (including Omar Khyam) who had conspired with Babar to bomb targets in the United Kingdom."
"Count 1: Conspiracy to provide material support or resources to a foreign terrorist organisation.
Count 2: Providing, and attempting to provide, material support or resources to a foreign terrorist organisation.
Count 3: Conspiracy to make or receive a contribution of funds, goods or services to, and for the benefit of, Al Qaeda.
Count 4: Making or receiving a contribution of funds, goods or services to, and for the benefit of, Al Qaeda."
Grounds of Appeal.
"(2) The judge must decide whether the documents sent to him by the Secretary of State consist of (or include) in relation to each offence
(d) in the case of a person accused of an offence, a warrant for his arrest issued in the category 2 territory.
(3) If the judge decides the question in subsection (2) in the negative he must order the person's discharge in relation to the relevant offence only."
"Whosoever knowingly provides material support or resources to a foreign terrorist organisation, or attempts or conspires to do so shall be…..etc."
In the present case the conspiracy is only demonstrated through the commission of the overt acts.
"This is a wholly technical contention because it is not suggested that there is any lack of particularity about the request in general; the indictments and the warrants were served on the appellants at the same time and they can never have been in doubt as to the scope of the words "et al" in this case. The difference between the service of a document with the list of counts attached by a staple, since there is no room for them all on the face of the warrant form, and the service of a warrant together with the indictment is not one to engage a requirement for rigour but rather distaste for meritless technicality. The two can be read together just as readily and be seen as part of each other. The purpose of the inclusion of the offences in the warrant is satisfied by the procedure adopted in this case. Mr Summers rightly did not press these two arguments."
(1) "This section applies in relation to conduct of a person if –
(a) he is accused in a category 2 territory of the commission of an offence constituted by the conduct…..
(3) The conduct also constitutes an extradition offence in relation to the category 2 territory if these conditions are satisfied:
(a) the conduct occurs outside the category 2 territory;
(b) the conduct is punishable under the law of the category 2 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.
"Under the 1989 Act, an allegation that the requesting state was seeking to exercise an exorbitant jurisdiction was a matter for the Secretary of State's discretion when reaching a final decision (see Al-Fawwaz, Re Eiderous  UKHL 69,  1 ALL ER 545,  1 AC 556). Now that the Secretary of State no longer has discretion to take such matters into account, questions such as this must be considered by the courts under s 21 of the 2003 Act on the basis that the exercise of such a wide jurisdiction would be incompatible with the appellant's human rights."
She continued a little later:
In this case, I have already said that I am satisfied that the request satisfied the requirements of ss 10 and 64 of the 2003 Act. That in itself goes a long way to demonstrate that the present request does not seek to exercise exorbitant jurisdiction. However, I would accept that it is possible that a request might range so widely and have so tenuous a connection with the requesting state as to amount to the exercise of exorbitant jurisdiction. It might then be appropriate for the court to consider that situation under the rubric of s 21. However, in my view, this case comes nowhere near meeting those criteria. The respondent's case is that the group of people (of which the appellant was one) accused of this conduct was based in Spain. True, their activities range quite widely into other countries but that is the nature of modern terrorism. If a state could not prosecute an alleged terrorist because some of his activities took place outside the boundaries of that state, the law would be powerless to deal with serious and important crimes. In the present case, I am satisfied that there is a strong connection between the alleged conduct and the state of Spain and that there is nothing exorbitant about the proposed exercise of jurisdiction."
"I would respectfully wish to underline the observations of the Lord Ordinary in Wright v Scottish Ministers  SLT 823, which was decided in the Court of Session after Ullah's and Razgar's cases, and took into account their Lordships' opinions on those cases. The petitioner had claimed that it was not proportionate to extradite him to Estonia to face trial on criminal charges which could have been tried in Scotland. The Lord Ordinary said (at ):
'Extradition does not and should not depend upon the ability or otherwise of the requested state to undertake its own investigations with a view of prosecuting the case within its own jurisdiction. Such an approach would involve unnecessary duplication of effort, would result in additional delays in the prosecution of suspected criminals and would have an adverse effect upon international relations and international co-operation in the prosecution of serious crime. In most, if not all, extradition cases the requested state would depend upon co-operation from the requesting state if the requested state were to embark upon its own investigation and ultimate prosecution of the case.'"
"(1) Everyone has the right to respect for his private and family life, his home and his correspondence.
(2) There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."
"It is only in exceptional circumstances that the extradition of a person to face trial on charges of serious offences committed in the requesting state would be held to be an unjustified or disproportionate interference with the right to respect for family life."
Laws LJ then continued:
" In short, in this case no less than in any other, the court must feel the weight of what Lord Bingham called 'the great desirability of honouring extradition treaties made with other states'. And given the cross-border nature of the accusation here, these observations of Hale LJ as she then was in R (on the application of Warren) v Secretary of State for The Home Department  EWHC 1177 (Admin) at  are especially in point:
'….The object of extradition is to return a person who is properly accused or has been convicted of an extradition crime in a foreign country to face trial or to serve his sentence there….The extradition process is only available for return to friendly foreign states with whom this country has entered into either a multi or a bilateral treaty obligation involving mutually agreed and reciprocal commitments….There is a strong public interest in our respecting such treaty obligations. Such international co-operation is all the more important in modern times, when cross-border problems are becoming ever more common, and the need to provide international solutions for them is ever clearer.'
 I consider also that the approach of the European Commission of Human Rights in Launder v UK (1998) 25 EHRR CD 67, requiring exceptional circumstances to demonstrate a want of proportionality in an extradition upon charges of serious offences committed in the requesting state, is fully applicable not withstanding the fact that some Acts going to constitute the fraud took place in the sending state, the United Kingdom."
"…..given the fact there is no inquiry into evidential sufficiency, it is of the utmost importance that the description of the conduct alleged is framed with the greatest care, it is an essential protection to the person whose extradition is sought. It is to be expected that the description will be framed with very considerable care and expressed in terms in which it can be easily understood by the court in the state to which the request is addressed."
A little earlier at para 25 Thomas LJ had said:
"….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."
"There is (still) a fundamental assumption that the requesting state is acting in good faith."
That assumption can, of course, be displaced by evidence.