QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
MR JUSTICE GRIFFITH WILLIAMS
| Mehtab Khan
|- and -
|Government of the United States of America
Melanie Cumberland (instructed by Crown Prosecution Service ) for the Respondent
Hearing date: 31 March 2010
Crown Copyright ©
Mr Justice Griffith Williams :
i) that "the entire drugs deal of which (the appellant) stood accused was the creation of the US Government", was an unlawful entrapment by officers of the Baltimore police and so the application to extradite him was an abuse of process;
ii) that the decision of this court in Symeou, v. Public Prosecutor's Office at the Court of Appeals Patras, Greece  EWHC 897 (Admin) that the abuse jurisdiction of the requested state does not extend to considering misconduct or bad faith by the police of the requesting state in the investigation of the case or the preparation of evidence for trial is distinguishable;
iii) that the Government of the United States of America failed to disclose evidence that damaged or severely weakened their case and so had failed in their duty of candour and good faith, a separate abuse of process.
iv) That the defence of entrapment in the courts of Maryland provides a lower level of protection for the appellant and so the appellant's Article 6 rights would be denied him if he were to be extradited to stand trial in those courts.
Grounds of Appeal
i) that the UK courts should stay an extradition that is predicated on the misconduct of foreign police officers acting in the UK, a situation not considered in Symeou (above), which ought not to have been followed by the District Judge because the misconduct breached the defendant's Article 6 Convention rights:
ii) that the District Judge was wrong to conclude that the alleged abuse of process gave rise to a jurisdiction which is residual in nature and which was engaged only when the issue raised could not be dealt with by the statutory protections contained in the Act. This was because the protection afforded by section 87 is on the basis of a prospective flagrant denial of justice at trial in the requesting state, but the abuse of process alleged was the misuse of power by the Baltimore police officers in entrapping the defendant;
iii) that the District Judge failed to address the appellant's detailed submissions on the evidence adequately and was wrong to find that there was no conduct capable of amounting to an abuse of process; he additionally sought leave to rely on further evidence;
iv) that the District Judge failed to require more open disclosure from the respondent.
Mr Fitzgerald applied to raise two further matters, neither raised before the District Judge:
v) that the extradition of the appellant would expose him to trial in an inappropriate forum (the Forum Conveniens issue);
vi) that the likely sentence in the event of conviction would breach the appellant's Article 3 Convention rights.
1. Abuse of Process
(i) The Abuse of Process jurisdiction
"I should not leave the point without considering the nature of the juridical exercise involved in concluding, as I would, the judge conducting an extradition hearing under the 2003 Act possesses a jurisdiction to hold the prosecutor is abusing the process of the Court … Now it is plain that the judge's functions under the 2003 Act, and those of the Magistrate under the predecessor legislation, are and were wholly statutory. He therefore possesses no inherent powers. But that is not to say that he may not enjoy an implied power. The implication arises from the express provisions of the statutory regime which it is his responsibility to administer. It is justified by the imperative that the regime's integrity must not be usurped".
In R (Government of the United States of America) v. Bow Street Magistrates Court (Tollman & Tollman)  EWHC 2256 (Admin) at paragraph 82, Lord Phillips CJ endorsed that conclusion and continued at paragraph 83:
"The 2003 Act places a duty on the judge to decide a large number of matters before acceding to a request for extradition. To these should be added the duty to decide whether the process is being abused, if put on the enquiry as to the possibility of this. The judge would usually, though not inevitably, be put on enquiry as to the possibility of abuse of process by the allegations made by the person whose extradition is sought".
"The focus of this implied jurisdiction is the abuse of the requested states' duty to extradite those who are properly requested and who are unable to raise any of the statutory bars to extradition. The residual abuse jurisdiction identified in Bermingham and Tollman concerns abuse of the extradition process by the prosecuting authority. We emphasize those latter two words. That is the language of those cases. It is the good faith of the requesting authorities which is at issue because it is their request coupled with the perverted intent and purpose which constitutes the abuse. If the authorities of the requesting state seek the extradition of someone for a collateral purpose or when they know that the trial cannot succeed, they abuse the extradition processes of the requested state. 34. The above jurisdiction of the requested state does not extend to considering misconduct or bad faith by the police of the requesting state in the investigation of the case or the preparation of evidence for trial".
(ii) The availability of the defence of entrapment in the United States
(iii) The law of entrapment in England and Wales
"... On this a useful guide is to consider whether the police did no more than present the defendant with an unexceptional opportunity to commit a crime. I emphasise the word "unexceptional". The yardstick for the purpose of this test is, in general, whether the police conduct preceding the commission of the offence was no more than might have been expected from others in the circumstances. Police conduct of this nature is not to be regarded as inciting or instigating crime or luring a person into committing a crime…
 Ultimately the overall consideration is always whether the conduct of the police or other law enforcement agency was so seriously improper as to bring the administration of justice into disrepute… The following comments may be made on some circumstances which are of particular relevance.
 The nature of the offence. The use of pro-active techniques is more needed and hence more appropriate in some circumstances than others. The secrecy and difficulty of detection and the manner in which the particular criminal activities carried on are relevant consideration.
 The Reasons for the particular police operation. It goes without saying that the police must act in good faith and not, for example, as part of a malicious vendetta against an individual group of individuals. Having reasonable grounds for suspicion is one way good faith may be established but having grounds for suspicion of a particular individual is not always essential. Sometimes suspicion may be centred on a particular place such as a particular public house. Sometimes random testing may be the only practical way of policing a particular trading activity.
 The nature and extent of police participation in the crime. The greater the inducement held out by the police and the more forceful or persistent the police overtures, the more readily may a court conclude that the police overstepped the boundary; their conduct might well have brought about commission of a crime by a person who would normally avoid a crime of that kind. In assessing the weight to be attached to police inducement, regard is to be had to the defendant's circumstances, including his vulnerability. This is not because the standards of acceptable behaviour are variable. Rather this is a recognition that what may be a significant inducement to one person may not be so to another. For the police to behave as would an ordinary customer of a trade whether lawful or unlawful, being carried on by the defendant would not normally be regarded as objectionable.
 The defendant's criminal record. The defendant's criminal record is unlikely to be relevant unless it can be linked to other factors grounding reasonable suspicion that the defendant is currently engaged in criminal activity… ."
Lord Hoffman, in his opinion at paragraph 71 said: -
"In summary, therefore the principles of English law upon which a stay of proceedings may be granted on the grounds of Entrapment involve a consideration of a number of aspects of the behaviour of the Law Enforcement Authorities, some of which I have examined in detail, and deciding whether the involvement of the Court in the conviction of a defendant who had been subjected to such behaviour would compromise the integration of the judicial system".
In Tollman & Tollman above at paragraph 84, Lord Phillips said: -
"The judge should be alert to the possibility of allegations of abuse of process being made by way of delaying tactics. No steps should be taken to investigate an alleged abuse of process unless the judge is satisfied that there is reason to believe that an abuse may have taken place. Where an allegation of an abuse of process is made, the first step must be to insist on the conduct alleged to constitute the abuse being identified with particularity. The judge must then consider whether the conduct, if established, is capable of amounting to an abuse of process. If it is, he must next consider whether there are reasonable grounds for believing that such conduct may have occurred. If there are, then the judge should not accede to the request for extradition unless he has satisfied himself that such abuse has not occurred".
(iv) The Evidence in relation to entrapment
"I have considered all the evidence put before me. There is clear evidence that this Defendant introduced himself into the ongoing drug trafficking conspiracy in December 2008 and thereafter willingly and actively acted in furtherance of the conspiracy and played a major organising and directorial role in the conspiracy. I do not find that the conduct of the law enforcement officers, if it is established, is capable of amounting to entrapment as defined in English Law nor is it capable of amounting to an abuse of process on that ground."
(v) Disclosure in relation to the activities of the US authorities in the UK
"It is common ground that the Government is not required to include in a request for extradition evidence to support a prima facie case or all the evidential material in their possession. In fact the government in this case provided a great deal of material and has responded promptly and in detail to matters raised by the defendant in his defence statement. I reject the submission that the Government has wilfully failed to engage with the defendant's case. All disclosure in these extradition proceedings will be partial and, therefore, there will be an element of selection in the disclosure that is made. This is not the case where the prosecutor knew that it did not have a real case but was pressing the extradition request for some collateral motive and accordingly tailored the choice of documents accompanying the request (see Bermingham (above) Laws LJ. at para 100).
There is no evidence that destroys or severely undermines the government case… Here there is no evidence at all, let alone possessing special force, that the government is acting in anything but good faith. I do not find that the disclosure of material by the government in this case fails in their duty of candour and good faith and I do not find that it is capable of amounting to an abuse of process."
1. Were authorisations under the RIPA obtained to record telephone conversations of the appellant?
2. Was the appellant under surveillance and if so for how long and when and whether authorisations were given for such surveillance?
3. The identities of police officers involved in that surveillance and the police stations where they were based, and
4. Whether a man by the name of "Jay" had been arrested or charged either in the US or in the UK?
By letter dated 4 February 2010, the Crown Prosecution Service, on behalf of the Government of United States of America, replied:
"Items 1 to 4 of your list of requested disclosure appeared to bear no relevance to the issues you raise in your grounds of appeal. In addition, as you are aware, the Government has a duty of candour in extradition proceedings and must disclose any information capable of severely undermining or destroying its case. On behalf of the Government, I am in possession of no such information. Accordingly, I decline to accede to your request or to make further inquiries in relation to the matters referred to at Items 1-4 of your list".
By a letter dated 3 March 2010, those acting for the appellant wrote that it is imperative that they receive the information as to whether or not the appropriate RIPA authorisations were obtained for the various telephone conversations and in particular the meetings between the undercover police officers and the appellant at the hotel. By letter dated 4 March 2010, the Crown Prosecution Service referred to their earlier letter of 4 February in which they had explained in full why they could not accede to the requests.
"85. Both our civil our and criminal procedures have complex rules in relation to disclosure of documents. In each of the cases before us the person whose extradition is being sought has persuaded the judge that he should make an order for disclosure. We do not consider that this was the appropriate course to take. Neither the rules governing disclosure in a civil action nor those governing disclosure in a criminal trial can be applied to an extradition hearing. Furthermore those rules form part of an adversarial process which differs from extradition proceedings. Where an order for disclosure is made, it requires one party to disclose documents to the other, not to the court. But where extradition is sought, the court is under a duty to satisfy itself that all the requirements for making the order are satisfied and that none of the bars to making the order exist.
86. There is a further objection to ordering disclosure. The order will be made either against a judicial authority within the European Union or against a foreign sovereign state that is requesting the Secretary of State to comply with treaty obligations. In neither case would it be appropriate to order discovery".
Ms Melanie Cumberland submitted, correctly, that the requesting state is not required to include in a request for extradition all the material in its possession but is required to disclose material which destroys or undermines its case: see Wellington –v- The Governor of Her Majesty's Prison Belmarsh and the Government of the United States of America  EWHC 418 (Admin) at paragraph 26. In Bermingham (above) Laws LJ. said: -
"98… Subject to an important qualification which I will explain, no finding of abuse can be justified (in a case like the present where the category 2 territory has been designated for the purpose of section 84) by the prosecutor's refusal or failure to disclose evidential material beyond what was contained in the extradition request. The reason is straightforward. In such an instance, as I have shown, the prosecutor does not have to establish a case to answer. Evidence going to whether there is in fact a case to answer is therefore not irrelevant to the court's task…
100. I refer to an important qualification. It applies to… the prosecutor's failure to give more disclosure… The prosecutor must act in good faith. Thus if he knew he had no real case but was pressing the extradition request for some collateral motive and accordingly tailored the choice of documents accompanying the request, there might be a good submission of abuse of process".
"124 … Even on the assumption that authorisation was required and that it was not obtained, I am not satisfied that what occurred was capable of constituting an abuse of process. It may affect the admissibility of the relevant evidence but that is a very different issue which will fall for determination by the US courts if Tajik's extradition is ordered. It cannot in my view provide a valid ground for refusing to extradite him.
125 Since there is no reason to believe that an abuse of process may have occurred, the District Judge was clearly right not to call upon the US Government to provide further information or evidence. She was entitled to proceed on the basis of the evidence before her and to reach the conclusions she did on that evidence".
"101 … There are two factors which constitute important and justified, obstacles to the appellant's claims. The first is the starting-point: Kennedy LJ's observations in Serbeh that "there is (still) a fundamental assumption that the requesting state is acting in good faith". This is a premise of effective relations between sovereign States. As I have said the assumption may be contradicted by evidence; and it is the court's plain duty to consider such evidence (where it is presented) on a statutory appeal under the 2003 Act. But where the requesting State is one in which the United Kingdom has for many years reposed the confidence not only of general good relations, but also of successive bilateral treaties consistently honoured, the evidence required to displace good faith must possess special force. The second obstacle is linked to the first. It is a general rule of the common law that the graver the allegation, the stronger must be the evidence to prove it"
2. Additional Grounds of Appeal
(i) The application to raise a further issue: forum non conveniens
(ii) The principles on which a new issue can be raised on the appeal and fresh evidence adduced
103 Appeal where case sent to the Secretary of State
"(1)If the judge sends a case to the Secretary of State under this part for his decision whether a person is to be extradited, the person may appeal to the High Court against the relevant decision.
(3)The relevant decision is the decision that resulted in the case being sent to the Secretary of State.
(4)An appeal under this section may be brought on a question of law or fact."
104 Court's powers on appeal under section 103
"(2) The Court may allow the appeal only if the conditions in sub-section. (3) or the conditions in sub-section (4) are satisfied.
(3)The conditions are that –
(a) The judge ought to have decided a question before him at the extradition hearing differently.
(b) If he had decided the question in the way he ought to have done he would have been required to have ordered the person's discharge.
(4)The conditions are that –
(a) An issue is raised that was not raised at the extradition hearing or evidence is available that was not available at the extradition hearing;
(b) The issue or evidence would have resulted in the judge deciding a question before him at the extradition hearing differently.
(c) If he had decided the question in that way, he would have been required to order the person's discharge".
"2.In Barrow v Bankside Agency Limited  1WLR 257, Sir Thomas Bingham MR said this at page 260:
"The rule in Henderson v Henderson(1843) 3 Hare 100 is very well known. It requires the parties, when a matter becomes the subject of litigation between them in a court of competent jurisdiction to bring their whole case before the court so that all aspects of it may be finally decided (subject, of course, to any appeal) once and for all. In the absence of special circumstances, the parties cannot return to the court to advance arguments, claims or defences which they could have put forward for decision on the first occasion but failed to raise. The rule is not based on the doctrine of res judicata in a narrow sense, nor even on any strict doctrine of issue or cause of action estoppel. It is a rule of public policy based on the desirability, in the general interest as well as that of the parties themselves, that litigation should not drag on for ever and that a defendant should not be oppressed by successive suits when one would do. That is the abuse at which the rule is directed".
This passage concerns a rule in civil litigation which at first blush is somewhat removed from the central subject of this appeal. But the policy behind the rule in Henderson v Henderson has close affinity with the policy which lies behind authorities and statutes which regulate the admission on an appeal of evidence which one or other of the parties did not adduce at first instance.
3. It is normally incumbent on litigants in first instance courts or tribunals in which evidence is adduced to advance their whole case at first instance and to adduce all the evidence on which they want or need to rely. In most cases, the purpose and function of an appeal is to review the decision of the lower court upon the evidence which was adduced before the lower court. An appeal court is not generally there to enable a litigant who has lost in the lower court to advance their case upon new and enlarged evidence which they failed to adduce in the lower court. Litigation should normally be conducted and adjudicated on once only. It is generally neither fair nor just that the expense and worry of litigation should be prolonged into an appeal because a party failed to adduce all the evidence they needed at first instance. …
4.The policy that evidence should normally be received once only and at first instance is not unyielding and a variety of rules has developed to guide the usual discretionary circumstances in which an appeal court will receive fresh evidence. The underlying policy often is that fresh evidence may be received when it is just to do so; or perhaps when it would be unjust not to do so. Thus section 23(1) of the Criminal Appeal Act 1968 enables the Criminal Division of the Court of Appeal to receive any evidence which was not adduced in the proceedings from which the appeal lies "if they think it necessary or expedient in the interests of justice". This reflects a necessary perception of criminal justice that a conviction which is in truth unsafe should not be upheld for want of fresh evidence which may establish that it is indeed unsafe.
5.By contrast rule 51.11(2) of the Civil Procedure Rules provides that the appeal court will not receive evidence which was not before the lower court unless it orders otherwise. This rule, taken alone, is unvarnished, but a civil appeal court's starting point will always be the overriding objective that the rules are a procedural code to enable the court to deal with cases justly.
6.The discretion to admit fresh evidence afforded by statute and rule in criminal and civil appeals respectively, although it remains a discretion, is not unregulated. Intrinsically, the principles of justice would expect the court to ask why the evidence was not adduced at first instance, and whether there is a good reason or excuse for not doing so – for the policy is that litigants should normally adduce their whole case and evidence at first instance. The court would also be expected to ask what part the fresh evidence would play, if it were adduced; and in particular whether it is credible and whether it would or might lead to a different outcome of the case …
32.In our judgment, evidence which was "not available at the extradition hearing" means evidence which either did not exist at the time of the extradition hearing or which was not at the disposal of the party wishing to adduce it and which he could not with reasonable diligence have obtained. If it was at the party's disposal or could have been so obtained, it was available ".
The decision has been applied in a number of further cases in this court.
"19.Section 104 does not in terms compel the Court to allow an Appellant to raise an issue that was not raised at the extradition hearing; its provision is negative, precluding the Court from allowing an appeal if the applicable statutory conditions are not satisfied. However, it seems to me to be significant that section 104 distinguishes between a new issue and new evidence. I would therefore hold that where an issue was available to be raised by an appellant on the evidence adduced at the extradition hearing, she is in general, if not always, entitled to raise that issue on appeal to this Court, even though the issue was not raised at that hearing. In any event, I see no good reason why the Appellant should not be permitted to argue the issue before this Court. Extradition is an infringement of liberty and while the Court is concerned to ensure that those who are the subject of conforming requests for extradition are lawfully extradited, the legal requirements for extradition are safeguards that must be observed"
For reasons to be given at paragraphs 42, 43 and 44 below, with respect to Stanley Burnton LJ, I find the distinction he seeks to draw difficult to follow, though in the result this makes no difference to the decision I have reached for the reasons I give at paragraph 45.
(iii) The reasons why the issue was not raised before the District Judge
(iv) The merits of the new issue of forum non conveniens
"I do not accept [the USA government's] submission that the possibility of a trial in the United Kingdom is legally irrelevant in a case like this. There might be an instance in which such a possibility could tip the balance of judgment in favour of a conclusion that the defendant's extradition would amount to a disproportionate interference with his Article 8 rights. That, I think, has to be accepted if section 87 is the constitute effective judicial protection of the Convention guarantees"
But it is important to note that Laws LJ continued:
"What it would take to make such a case is a very different matter"
"Extradition proceedings should not become the occasion for a debate about the most convenient forum for criminal proceedings. Rarely if ever, on an issue of proportionality could the possibility of bringing criminal proceedings in this jurisdiction be capable of tipping the scales against extradition in accordance with the countries treaty obligations. Unless the judge reached the conclusion that the scales are finely balanced he should not enter into an enquiry as to the possibility of prosecution in this country".
"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" (the Ullah case  2Ac 323, para 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 judgement have to be shown to justify a finding that the extradition would on the particular facts be disproportionate to its particular aim." (emphasis added)
(v) The new issue under Article 3
(vi) Fresh Evidence
Lord Justice Thomas: