England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand, London, WC2A 2LL
		10/04/2014

Mr Justice Burton :

1. The Claimant, a British citizen, makes a renewed application, after refusal by Collins J, for permission to apply for Judicial Review of the refusal by the Defendant, the Secretary of State for the Home Department, to state whether the United Kingdom has received a request for the Claimant's extradition to the United States of America. At present the Claimant is in Iran, and wishes to know whether there has been an extradition request, because, if so, he will not return to the United Kingdom. In this regard this is similar, in an extradition context, to a case in which a United Kingdom citizen abroad wishes to know whether if he returns to the United Kingdom he will be arrested for a criminal offence, and if so he would remain abroad.
2. From 1977 until 2005 the Claimant lived in the United Kingdom, where he operated a registered export business. In February 2005 he travelled to Poland on a short business trip. On the final day of his visit he was arrested at Warsaw Airport pursuant to a United States extradition request. For the next 22 months he was detained in a high security prison while the United States sought his extradition from Poland to stand trial for breaching the United States' embargo on trade with Iran through export transactions, which on his case took place exclusively outside the United States and were lawful and licensed under both United Kingdom and European Union law.
3. Among the documents presented by the Claimant on this application are statements made during his detention in Poland by British diplomats referring to the "unwarranted 'extraterritoriality' of US legal action" and a letter from the Head of the Directorate General for Trade at the European Commission describing the impugned transactions as having been "in conformity with the relevant EU regulations". The Claimant's case was raised on several occasions in the House of Lords.
4. On 10 December 2008 the District Court in Warsaw held that it would be unlawful to extradite the Claimant, on the basis that the United States' request failed the test of dual criminality, since the exporting of an aircraft from the United Kingdom to Iran with a licence from the British authorities, notwithstanding any restrictions of American law, did not fulfil the prerequisite for amounting to an infringement of Polish law.
5. Notwithstanding the outcome of those extradition proceedings, certain enquiries made of his family or friends in the United Kingdom have caused him to believe that the United States now intends to make a further attempt to obtain his extradition, from the UK, in respect of activities of an identical nature to the conduct that formed the basis of the Polish proceedings. The Claimant is now in Iran, and as a result of his fear of the onset of further such extradition proceedings, exacerbated by his post-traumatic stress disorder caused by his experiences in Poland, he does not now wish to return to the United Kingdom without obtaining confirmation whether the United States is actively seeking his extradition, and if so he would not return.
6. The Claimant's solicitors wrote to the Defendant by letter 2 May 2013, in which it was emphasised that:-

"Extradition was sought from Poland in spite of the above transaction taking place in conformity with relevant domestic and EU regulations (a fact later confirmed by the European Commission during the subsequent extradition proceedings). [The Claimant] was held in detention in Poland until December 2006, when it was determined that the extradition request would not be acted upon and that he would not be surrendered to the American authorities.

In spite of the Polish authorities ultimately determining that it was not appropriate to extradite [the Claimant] to the United States (and bearing in mind the European Commission's intervention in this case indicating that he had acted lawfully according to EU law) [the Claimant] has since received an indication that his arrest is still being pursued by the American authorities and, indeed, that the British authorities are active in securing [the Claimant's] arrest on the US' behalf."

They also notified the Defendant that nearly all of his immediate family resided in the UK, including his 82 year old father, who was receiving treatment for a serious illness, and his only son, his partner and his sister and her family.

7. The Defendant replied by letter dated 21 May 2013 that:-

"We are unable to comment on the points raised. As a matter of long-standing policy and practice the UK will neither confirm nor deny whether an extradition request has been received prior to the arrest of the person concerned pursuant to that request.

I am sorry that I cannot be more helpful in this instance"

The Claimant's solicitors sent a pre-action protocol letter dated 29 July 2013, to which the Defendant made a detailed response by letter dated 20 August 2013.

8. The points which the Claimant has emphasised, both in his letter before action and more fully in these proceedings, are:-

(1) The United States has already failed in one extradition application in Poland, itself exorbitant, and would now be harassing the Claimant by bringing another.

(2) The failed extradition proceedings in Poland had a significant impact on the Claimant's physical well-being, including his total loss of liberty for almost two years and resultant post-traumatic stress disorder.

(3) Further extradition proceedings in respect of the same lawful conduct would violate the principle of dual criminality and the principle of double jeopardy and would amount to an abuse of the United Kingdom's extradition process.

(4) The conduct complained of was covered by a UK licence and sanctioned by the EU Commission.

(5) The United States' conduct has had the effect of a material interference with the Claimant's Article 8 rights, which continues as long as he is inhibited from returning to the UK to be with his family, and further has infringed his "freedom to conduct a business in accordance with Community law and National laws and practices", contrary to Article 16 of the Charter of Fundamental Rights of the European Union.

9. The Defendant's response in paragraph 25 of the letter of 20 August 2013 is that "even if it were necessary for the [Defendant] to consider whether there are exceptional circumstances that would justify departing from the Policy, the [Defendant] is of the view that nothing in your letter amounts to such circumstances … The [Defendant's] duties under the [Extradition Act] 2003 are set out in the Act itself. It is for a judge at any extradition hearing to consider whether an extradition offence has been established and to apply the principle of double criminality."
10. The Defendant relies heavily upon the blanket policy, which is set out in Hansard in the text of a Parliamentary answer by the Minister of State at the Home Office, Lord Henley, on 1 May 2012, but which is said to have been in place for at least ten years, namely:-

"As a matter of longstanding policy and practice, we will neither confirm nor deny whether an extradition request has been made or received until such time as a person is arrested in relation to the request, so that people do not have the opportunity to escape justice by leaving the country before they are arrested."

It is plain that the UK Government is entitled, in the exercise of prerogative or common law powers, to have a blanket policy (see R (Sandiford) v Secretary of State for Foreign and Commonwealth Affairs [2013] 1WLR 2938), and the justification for the policy is summarised in the Parliamentary Answer. If an affirmative answer is given to such a question, then the opportunity is being given to a person whose extradition has been requested by a friendly state, to evade and frustrate that extradition request, in breach of the UK Government's international obligations. Unless the same answer – neither confirm nor deny (NCND) - is given in every case then an inference will inevitably be drawn by the questioner in a given case from a refusal to answer.

11. Mr Joel Bennathan QC who, together with Mr Edward Craven, has eloquently argued the case on behalf of the Claimant, effectively did not pursue, rightly, an argument that such a policy was legally challengeable. His submission was that in fact by addressing the Claimant's arguments, and considering them, as the Defendant says she did, the Defendant was thereby derogating from the existence of a blanket policy, and turning it into effectively a policy which could be ousted in exceptional circumstances; in which case he submitted that in rejecting the circumstances put forward by the Claimant, which he submits are plainly exceptional, the Defendant was acting irrationally in failing to take account of all the matters put forward.
12. Mr Bennathan referred to paragraph 63 of the Defendant's summary grounds of defence, which states as follows:-

"The Secretary of State has nevertheless considered whether the factors identified by the Claimant are so exceptional as to justify departing from the terms of the Policy. The Secretary of State is of course aware of the fact that the Claimant is a British citizen, that he has family members resident in the UK, that the Claimant has been previously involved in extradition proceedings in Poland (and the outcome of those proceedings), and that he was provided with consular assistance in Poland."

Whereafter it was asserted that the Defendant had carefully considered the factors put forward by the Claimant.

13. He submits that this means that:

(i) the Defendant had only considered the matters set out in that paragraph and in paragraph 25 of the letter of 20 August 2013, to which reference is there made, and thus not all the points set out in paragraph 8 above.

(ii) the Defendant was conceding that there was not a blanket policy.

14. I am entirely satisfied that neither proposition is correct. First, it is clear that the Defendant has taken into account all the circumstances put forward by the Claimant, and not simply those emphasised in paragraph 63, and in particular has substantially taken account of the five matters set out in paragraph 8 above. Further I am satisfied, as Miss Joanne Clement for the Defendant submitted, that the Defendant was in no way jettisoning or abrogating the blanket policy, justified and justifiable as above described. Paragraph 25 of the letter of 20 August 2013 makes it clear that the stance of the Defendant was that there was no need to resile from the blanket policy, and that nothing in the Claimant's argument caused her to do so. This is also clear from Miss Clement's answer to the suggestion that the Defendant had in some way derogated from her stance (or offended against a combination of Articles 8 and 14 of the ECHR) by the UK Government's approach to the entry into the UK of two Israeli army officers in 2005 and 2013 in the light of the issue of arrest warrants against them: namely that this had no relevance to the blanket policy relied upon.
15. It is quite clear that the Claimant's right to protection from exorbitant extradition proceedings, from alleged harassment by other Governments, friendly or otherwise, from interference with his Article 8 rights and from abuse of the concepts either of double jeopardy or dual criminality are fully addressed by the independence and fairness of the English court system and the provisions of the Extradition Act 2003. The rule against double jeopardy is expressly enshrined in sections 79 and 80 of the Act, dual criminality inter alia by section 71(3), the Claimant's convention rights are protected by section 87, and, overridingly, "the district judge also has jurisdiction to consider whether the extradition proceedings constitute an abuse of process so as to protect the integrity of the statutory regime" (McKinnon v Government of the United States of America [2008] 1WLR 1739 at para 8 per Lord Brown). It is noteworthy that in R (Government of the United States of America) v Bow Street Magistrates Court (DC) [2007] 1 WLR 1157, it was concluded (per Lord Phillips CJ at para 80) that such an issue should be addressed within the extradition hearing, rather than outside the statutory scheme. Unlike the apparent position in Poland, particularly in the circumstances of this case, the right to bail would be in the forefront of the Court's mind, particularly if the Claimant had returned voluntarily to the UK. In my judgment, there is no such "independent, anterior duty" of the Defendant prior to the Court's consideration of an extradition application, as is suggested in paragraph 62(a) of the Claimant's skeleton argument, any more than there is a role for a civil court to consider the lawfulness or unlawfulness of an alleged criminal offence prior to a criminal prosecution as discussed in Imperial Tobacco Limited v Attorney General [1981] AC 718.
16. Collins J in refusing permission to the Claimant on the papers said as follows:-

"I am afraid that I am entirely satisfied that for the reasons fully set out in the Acknowledgement of Service this claim is unarguable. If the position is indeed as the Claimant alleges and the activities in which he has engaged were covered by licences granted by the UK authorities, it is difficult to see how any claim by the US could succeed and the Polish decision does suggest that any such claim would be an abuse. But there are protections here in the statutory regime and it is difficult to see how bail could reasonably be refused if any claim is entertained. The policy under attack is not unlawful and there are good reasons to justify it. I am satisfied that consideration has been given to a possible exception but I agree that none is required. The claimant's human rights are protected by the extradition law here. He should trust the system in place in the UK."

I entirely agree, and but for my respect for the careful arguments of Mr Bennathan QC, I would have wished to have been as succinct as Collins J in refusing permission again.

Mr Justice Bean :

17. For the reasons given by Burton J, with which I entirely agree, I too would refuse the renewed application for permission for judicial review.