QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
MR JUSTICE WILLIAM DAVIS
| GOVERNMENT OF THE UNITED STATES OF AMERICA
|- and -
Simon Farrell QC & Ben Cooper (instructed by JFH Law) for the Respondent
Hearing dates: 7 June 2018
Crown Copyright ©
Mr Justice William Davis:
Factual and procedural background
- He and another person had decided some months before to travel to Syria to help refugees.
- He had no intention to fight in Syria.
- He had asked his brother to enquire of the U.S. Department of State whether it was legal for him to enter Syria.
- He had generally resided in Azaz when he had been in Syria. He had encountered no members of any terrorist organisation or of the Free Syrian Army whilst he had been there.
- There was no-one in Azaz who was involved in fighting those supporting the incumbent government of Bashar al-Assad.
At the conclusion of the interview the Respondent asked the agent of the FBI whether "if I did actually fight in Syria would I be arrested?"
- The Respondent made a false statement in a matter within the jurisdiction of the Executive Branch of the Government of the United States.
- The Respondent acted wilfully i.e. deliberately and with knowledge (a) that the statement was untrue and (b) that his conduct was unlawful.
- The statement was material to an investigation i.e. if believed it had a natural tendency to influence or was capable of influencing the FBI's decisions or activities.
- The offence involved international or domestic terrorism.
The judgment of the District Judge
"Whilst both cases (i.e. Sookoo and Hamshaw) are of a completely different order to that of the (Respondent's) case there is remarkably little case law to assist. The (Appellant) is unable to refer to any case law which assists the contention that "making a false statement with no prior indication of the unlawfulness of doing so constitutes the common law criminal offence of perverting the course of public justice….." Moreover, the (Appellant) has not shown that (the Respondent's) alleged conduct was intended to pervert the course of public justice.
I am also not satisfied that the consequences of the (Respondent's) action are such that UK law would provide for extraterritorial jurisdiction under similar circumstances…
…The (Appellant's) assertion that the intended effect (or actual effect) of the false statements was to prejudice (or potentially prejudice) the criminal investigation in the United States could hold water only if (the Respondent) were aware of the criminal investigation in question. However, the (Appellant's) submissions to date suggest only that (the Respondent) was aware he was being interviewed by an FBI agent not that he was aware that the interview was being conducted pursuant to particular criminal or judicial proceedings."
The District Judge then concluded that the Appellant had not demonstrated that the conduct alleged on the part of the Respondent would amount to the offence of perverting the course of public justice. In relation to extra-territoriality he said that he was not satisfied that the consequences of the Respondent's conduct were such that UK law would provide for jurisdiction in those circumstances.
The offence of perverting the course of public justice
The competing arguments in relation to the substantive appeal