QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
MR JUSTICE OUSELEY
| Abu Hamza, Khalid Al Fawaz, Abdel Bary, Babar Ahmad, Talha Ahsan
|- and -
|Secretary of State for the Home Department
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Official Shorthand Writers to the Court)
Mr Edward Fitzgerald QC and Mr Malcolm Hawkes (instructed by Quist Solicitors) for the Claimant Al Fawaz
Ms Phillippa Kaufmann QC and Mr Ben Cooper (instructed by Birnberg Peirce & Partners) for the Claimant Babar Ahmad
Mr Hugh Southey QC and Mr Ben Cooper (instructed by Birnberg Peirce & Partners) for the Claimant Abdel Bary
Mr James Eadie QC, Mr Ben Watson and Ms Heather Oliver (instructed by Treasury Solicitor) for the Secretary of State for the Home Department
Ms Clair Dobbin (instructed by Crown Prosecution Service) for The Government of the USA (Abu Hamza)
Mr James Lewis QC (instructed by Crown Prosecution Service) for The Government of the USA (Al Fawaz & Abdel Bary)
Mr Patrick O'Connor QC (instructed by Ward Hadaway) for Mr Karl Watkin, Interested Party
Mr Jeremy Johnson QC (instructed by Metropolitan Police Solicitor) for Commissioner of the Metropolitan Police
Mr John McGuinness QC (instructed by Crown Prosecution Service) for Director of Public Prosecutions
Hearing dates: 2, 3 & 4 October 2012
Crown Copyright ©
The President of the Queen's Bench Division:
This is the judgment of the court.
Al Fawaz and Abdel Bary
The claimants' ECtHR Appeals
Nature of the challenges in this court
i) Al Fawaz seeks to challenge the order that exists for his surrender. He submits that new evidence casts doubt on the existence of a prima facie case against him and on the US Government's good faith in continuing to seek his extradition. Proof of a prima facie case was required under the 1989 Act.
ii) Abdel Bary also submits that new evidence has arisen to cast doubt as to whether there is a prima facie case against him. In addition he contends that because of a deterioration in his psychiatric condition, extradition would be a breach of Article 3.
iii) Abu Hamza seeks an injunction to give him time to seek to re-open the statutory appeal under Rule 52.17 of the Civil Procedure Rules 1998 that was determined against him on 20 June 2008. He submits that new evidence has arisen which shows he is unfit to plead, and that this issue should be resolved before his surrender to the US authorities.
iv) Babar Ahmad and Talha Ahsan have each made submissions arguing that their extradition cannot take place as there exists the possibility of a domestic prosecution in the United Kingdom, and of the possibility of a private prosecution under the Terrorism Act 2000. The decisions of the DPP on the question of prosecution, and of the DPP very recently in refusing consent to a private prosecution are said to be unlawful; they too are challenged. Each of these possibilities they submit means that they should not be extradited, and instead that UK based legal action should take precedence. Mr Karl Watkin, a private individual, has sought to prosecute Babar Ahmad and Talha Ahsan in the UK for terrorist offences for which the consent of the DPP is required. It has very recently been refused. He is an interested party to the claimants' challenge to that refusal of consent.
v) Mr O'Connor QC, on Mr Watkin's behalf, disavowed any intent to challenge the decision of the Senior District Judge given on Thursday morning (4 October 2012) to refuse to issue summonses for a private prosecution by Mr Watkin of Babar Ahmad and Talha Ahsan for solicitation to murder, an offence the private prosecution of which does not require the consent of the DPP. The Senior District Judge doubted whether the evidence provided was sufficient for that particular offence but also held that the application for the summonses was an abuse of the process of the court as an attempt to intermeddle with the extradition process.
i) Prison conditions
ii) Khalid Al Fawaz
iii) Abdel Bary
iv) Abu Hamza and
v) Babar Ahmad and Talha Ahsan
I PRISON CONDITIONS: DETENTION IN CIRCUMSTANCES OF MAXIMUM SECURITY AT ADX, FLORENCE, COLORADO
i) The Fourth Section of the ECtHR in its judgment of 10 April 2012 misunderstood the evidence provided to it about conditions at ADX Florence, Colorado. In particular it made an error as to the length of time that those who would be subject to SAMs could serve in solitary confinement in the Special Security Unit.
ii) The ECtHR should have accepted the evidence which the claimants had submitted on that issue.
iii) The ECtHR should not have refused to admit the evidence submitted by the claimants in response to evidence submitted by the UK Government; in effect the ECtHR acted unfairly and breached Article 6 ECHR.
(i) The position in law as to solitary confinement as determined by the judgment of the ECtHR
"209. Whilst prolonged removal from association with others is undesirable, whether such a measure falls within the ambit of Article 3 of the Convention depends on the particular conditions, the stringency of the measure, its duration, the objective pursued and its effect on the person concerned.
210. In applying these criteria, the court has never laid down precise rules governing the operation of solitary confinement. For example it has never specified a period of time beyond which solitary confinement will attain the minimum level of severity required for Article 3 … The court has however emphasised that solitary confinement, even in cases entailing relative isolation cannot be imposed on a prisoner indefinitely.
211. Equally, although it is not for the court to specify which security measures may apply to prisoners, it has been particularly attentive to restrictions which apply to prisoners who are not dangerous or disorderly; to restrictions which cannot reasonably be related to the purported object of isolation; and to restrictions which remain in place after the applicant has been assessed as no longer posing a security risk …
212. Finally in order to avoid any risk of arbitrariness resulting from a decision to place a prisoner in solitary confinement, the decision must be accompanied by procedural safeguards guaranteeing the prisoner's welfare and the proportionality of the measure."
"In particular, the assessment of whether the particular conditions of detention are incompatible with the standards of Article 3 has, in the case of mentally ill persons, to take into consideration their vulnerability and their inability, in some cases, to complain coherently or at all about how they are being affected by any particular treatment… There are three particular elements to be considered in relation to the compatibility of an applicant's health with his stay in detention: (a) the medical condition of the prisoner, (b) the adequacy of the medical assistance and care provided in detention, and (c) the advisability of maintaining the detention measure in view of the state of health of an applicant."
The argument before us proceeded on the basis that no challenge was made to the general legal principles.
(ii) The evidence submitted by the UK Government
i) The General Population which was housed in four units. As is set out in Ms Rangel's evidence and recorded at paragraph 88 of the court's judgment one of the features of those in the General Population Unit was that meals were delivered and eaten in the cells.
ii) The Intermediate Unit which was part of what was known as the "Step Down Programme" where inmates were subject to a less stringent regime. As an example, set out in her statement and recorded in the judgment of the court, meals were provided to inmates by groups meaning that each group was allowed out of their cells one at a time to collect meals but they had to return to their cells to eat.
iii) The Transitional Unit. This was again a less stringent regime where inmates were unrestrained when out of their cells and permitted to eat their meals with other inmates assigned to the group.
iv) The Pre Transfer Unit where more association was permitted.
It is quite clear from the evidence, as fully recorded in the judgment of the ECtHR, that the Special Security Unit regime and the General Population Regime were different but each permitted progress from a more stringent regime at the outset to a somewhat less stringent regime at the end, such lack of stringency being reflected in a greater degree of association and therefore a lessening in the degree of isolation and solitary confinement.
(iii) The evidence submitted by the claimants
(iv) The further evidence submitted by the UK Government and questions asked by the ECtHR
"Generally, inmates with SAMs are housed in the Special Security Unit and do not have access to the ADX Florence General Population and Step-Down Programme. The inmates housed in the Special Security Unit are provided a programme similar to the ADX Florence General Population and Step- Down Programme which was detailed in [Mr Milusnic's statement].
Please note three things. First, not every inmate with a SAM is required to be housed at ADX Florence. Currently seven inmates with SAMs are housed at other BoP institutions.
Second, since 2003 the BoP vacated or did not renew SAMs for 13 inmates. Of those 13 inmates, seven were transferred from ADX Florence to other institutions or released from BoP custody. The inmates who were transferred to other institutions did not go through the Step-Down Programme. Thus Rovner's assertion the Step-Down Programme is the "only way to leave the ADX" is incorrect. The remaining six inmates entered ADX Florence's General Population.
Third it is possible that an inmate with a SAM could be housed at ADX Florence's General Population. In such a case the inmate could have access to the Step Down-Programme. The restrictions contained in the SAMs determine where an inmate with a SAM is housed."
(v) The claimants' response and the court's decision on the response
(vi) The judgment of the Fourth Section
"Moreover as the [DoJ]'s most recent letter showed, the United States authorities have proved themselves willing to revise and to lift the [SAMs] which have been imposed on terrorist inmates thus enabling their transfer out of ADX to other, less restricted, institutions."
"The Court also observes that it is not contested by the Government that conditions at ADX Florence are highly restrictive, particularly in the General Population Unit and in phase one of the Special Security Unit." (Emphasis added.)
The court then continued:
"It is clear from the evidence submitted by both parties that the purpose of the regime in those units is to prevent all physical contact between an inmate and others, and to minimise social interaction between inmates and staff. This does not mean, however, that inmates are kept in complete sensory isolation or total social isolation."
The court found that the inmates were not kept in total sensory isolation or total social isolation for the reasons it set out. It concluded:
"All of these factors mean that the isolation experienced by ADX inmates is partial and relative."
"The Court would also note that, as it emphasised in Ramirez Sanchez, cited above, § 145, solitary confinement, even in cases entailing relative isolation, cannot be imposed indefinitely. If an applicant were at real risk of being detained indefinitely at ADX, then it would be possible for conditions to reach the minimum level of severity required for a violation of Article 3. Indeed, this may well be the case for those inmates who have spent significant periods of time at ADX. However, the figures provided by the United States' authorities, although disputed by the applicants, show that there is a real possibility for the applicants to gain entry to the step down or special security unit programs. First, the Department of Justice's letter of 26 September 2011 shows that while there were 252 inmates in ADX's General Population Unit, 89 inmates were in the step down program. The figures provided in that letter for the special security unit program, when compared with the November 2010 figures given by Mr Milusnic, demonstrated that inmates are progressing through that program too. Second, Ms Rangel's declarations show that inmates with convictions for international terrorism have entered the step down program and, in some cases, have completed it and been transferred to other institutions. Ms Rangel's declaration is confirmed by the Rezaq et al v. Nalley et al judgment of the District Court where the petitioners, all convicted international terrorists, had brought proceedings to obtain entry to the step down program but, by the time the matter came to judgment, had completed the program and been transferred elsewhere." (emphasis added)
In complaining about the passage which we have emphasised in bold, it was contended on behalf of the claimants that the court was wrong when it said that there was a real possibility for the claimants to gain entry to the Step Down or Special Security Unit Programmes. It showed that the Court had thought that entry to the Special Security Unit was earned as a potential route to leave ADX conditions.
(vii) The appeal to the Grand Chamber
(viii) Our conclusion on the alleged error of the ECtHR
(ix) Our conclusion as to whether the court should have accepted the evidence submitted by the claimants
(x) Conclusion on the court's refusal to accept further evidence from the claimants
(xi) Consequences of the decision of the Grand Chamber
"A panel of five judges of the Grand Chamber shall accept requests if the case raises a serious question affecting the interpretation or application of the Convention or the protocols thereto, or a serious issue of general importance."
(xii) The position in this court
II AL FAWAZ
(i) The application made by Al Fawaz
(ii) The statutory framework and the test that now has to be satisfied
(iii) The prima facie case and the course of the proceedings
(iv) The case now advanced
i) There had been a proposal to remove Al Fawaz's name from the UN 1267 Consolidated List of Terrorists established pursuant to a UN Security Council Resolution, a listing which was said to draw on the same essential allegations as relied on in the extradition process.
ii) It was said that a person called Al Faqih had been removed from that same list, thus undermining the prima facie case, though he was alleged by Al Fawaz to be a significant conspirator central to the case against Al Fawaz.
iii) It was said that an MI6 debrief in 2000 of another person, Kherchtou, alleged to have been closely involved with Osama Bin Laden in the 1990s, which had newly come to light, made no mention of Al Fawaz. From this silence, it was said that positive evidence could be inferred that Al Fawaz had no role in the bombings or the conspiracy and that the UK knew it. It was in support of that, that widespread disclosure was sought.
(v) Al Fawaz's name on the Consolidated List
(vi) Al Faqih
(vii) The de-brief of Kherchtou
(viii) The application for disclosure
III: ABDEL BARY
(i) The challenge on the basis of new evidence
(ii) The course of the proceedings
(iii) The new evidence relied on
(iv) The psychiatric condition of Abdel Bary
"The Court notes that those mental health conditions have not prevented their being detained in high-security prisons in the United Kingdom. On the basis of Dr Zohn's declaration, it would not appear that the psychiatric services which are available at ADX would be unable to treat such conditions. The Court accordingly finds that there would not be a violation of Article 3 in respect of these applicants in respect of their possible detention at ADX."
(v) Our conclusion on the significance of his psychiatric condition
IV ABU HAMZA
(i) The allegations
i) In December 1998 Abu Hamza conspired to take hostages in the Yemen and procured Abul Hassan and others to commit the offence of hostage taking in the Yemen.
ii) Between October and December 1999 Abu Hamza provided funds, knowing they would be used for terrorism/jihad in Afghanistan.
iii) Between October 1999 and April 2000 Abu Hamza conspired to set up a training camp in Oregon to train people to fight in Afghanistan.
iv) Between June 2000 and December 2001 Abu Hamza provided funds and other property for persons to go to Afghanistan, knowing that such funds and property would be used in connection with terrorism including training in Al Qaeda camps.
v) Between March and April 2001 he conspired to invite a person to receive training in the use of explosives in Afghanistan.
(ii) The request for extradition
(iii) The trial of Abu Hamza in the United Kingdom
(iv) The extradition proceedings
(v) The application to the European Court of Human Rights
(vi) The application to stay the extradition
(vii) The facts: Abu Hamza's psychiatric history
"The report will show that notwithstanding the findings of the neuropsychological assessment, [Abu Hamza] suffers with short-term memory and concentration difficulties on a day to day basis due to depression and sleep deprivation. The report argues that additionally there may be underlying organic changes to his brain and thus an MRI brain scan should also be performed. The report concludes that currently [Abu Hamza] is unfit to plead but this needs to be reviewed following appropriate treatment and the curtailment of the practice leading to the noted sleep deprivation."
The report set out in detail the methodology used. It also set out the results of what was described as "the test of memory malingering". That test was designed to identify people who were perhaps not applying themselves to the best of their ability during the course of their other assessments and thus demonstrating less than satisfactory engagement or effort. The test appeared difficult but could be performed almost without error even by people with severe brain damage.
"It thus would be pertinent and indeed standard practice to carry out an MRI scan of his brain as part of a good clinical practice regime in suspected cases of early cognitive decline."
He expressed the opinion that Abu Hamza suffered from short-term memory and concentration difficulties on a day to day basis due to the pressure of sleep deprivation. He added that he agreed that Abu Hamza was unfit to plead.
(viii) The Secretary of State's decision
(ix) Is it too late to take the point?
(x) Is there a basis for concluding that extradition at this point in time would be unjust or oppressive?
(xi) Would extradition violate his Convention rights?
(xii) Our conclusion
V BABAR AHMAD AND TALHA AHSAN
(A) The course of the proceedings
(i) The allegations
i) operating websites from premises in the UK including the Azzam website and a mirror website in the USA from 1997 to 2004 through internet service providers (ISP) in Las Vegas, Nevada and Trumbull, Connecticut and an Alabama company. The websites were used to solicit funds and other property to assist the Taliban and other Mujahideen in terrorism and murder, to remit those funds and to publicise the works of Osama Bin Laden.
ii) The evidence relied on against them indicates that a material part of their activity was directed at those in the United States; one example was the provision of a standard form letter for US citizens to use to disguise the transmission of funds. Another is an allegation that specific individuals in the United States worked with Babar Ahmad to make contributions to the Mujahideen.
iii) An address book recovered through search warrants issued in the United States revealed successful solicitation of donations sent from a residence in Connecticut for transmission to the Chechnya Mujahideen which is alleged to have been responsible for many notorious terrorist attacks in which many were killed.
i) A computer file was found in premises used by Babar Ahmad in the UK which contained a document discussing a US naval battle group, each of its member ships including the USS Benfold, the battle group's planned movements and a drawing of the group's formation when it was to pass through the Straits of Hormuz in 2001. The document noted that the battle group was tasked with enforcing sanctions against Iraq and conducting operations against Afghanistan and Al Qaeda. The document stated that the battle group was scheduled to pass through the Straits of Hormuz on 29 April 2001 and explicitly described the group's vulnerability to terrorist attack including, for example, that the group had nothing to stop a small craft with RPG, except their Seals stinger missiles.
ii) The e-mail accounts operated through the ISP, Yahoo, included e-mail exchanges with an individual who described himself as an enlistee in the US Navy on active duty in the Middle East. The e-mail header indicated the individual was communicating from the USS Benfold at the time. One of the e-mails sent in July 2001 described the reaction of officers and other enlistees to a briefing given on the ship to help personnel protect against terrorist attacks similar to the March 2001 attack on the USS Cole. The e-mail praises those who attacked the USS Cole and the men who had brought honour by fighting jihad in Afghanistan and elsewhere. The response from the Azzam publications e-mail account praised the enlistee's comments and encouraged the enlistee to keep up the missionary work for Islam and psychological warfare. The enlisted person was found guilty on 5 March 2008 in a US Federal Court of disclosing national defence information to persons not entitled to receive it on the basis of this betrayal of his shipmates and country. He was sentenced to the statutory maximum of 10 years and his appeals have been dismissed. Although the jury found him guilty of providing material support for terrorists, the judge found that on the version of the statute then in force he was not technically guilty.
(ii) The investigation in the United Kingdom
(iii) The commencement of the extradition proceedings
(iv) The review by the CPS of the police papers in relation to Babar Ahmad for the purposes of extradition.
(v) The extradition proceedings
(vi) September 2006: The decision to prosecute Babar Ahmad was again questioned
(vii) The extradition proceedings in respect of Talha Ahsan
(viii) Representations on behalf of Talha Ahsan to the CPS in 2007
(ix) The extradition hearing and appeals in the case of Talha Ahsan
(x) The issue of prosecution raised again in 2010
(xi) The action of Birnberg Peirce in and after November 2011
(xii) The launch of a private prosecution by Mr Karl Watkin
(xiii) The decision of the DPP on the request by Birnberg Peirce and the private prosecution
(xiv) The decision of the District Court on the summons under s.4
"In this case I am satisfied that the purpose of these proposed proceedings is to stop or delay extradition of two named proposed defendants to the USA. The application is made many years after the events complained of. It appears to have the co-operation and support of the proposed defendants themselves. It comes as almost all other ways of resisting extradition have been exhausted. The application is an abuse of the process of the court."
B. The argument and our conclusions
(i) The submissions on behalf of Babar Ahmad and Talha Ahsan
(ii) The submission on behalf of the Secretary of State and the US Government
(iii) Our conclusion on the application of Babar Ahmad and Talha Ahsan
(v) Our conclusion on the private prosecution
(vi) The failure to raise the point at an earlier stage
(vii) The merits of the decision of the DPP
POST SCRIPT: THE POSITION OF MR KARL WATKIN