V. Governor of Brixton Prisonn 18/11/16 09:47 Am

R. (Al-Fawwaz) v. Governor of Brixton Prisonn 18/11/16 09:47 am

House of Lords

Regina (Al-Fawwaz) v Governor of Brixton Prison and another Regina (Abdel Bary) v Governor of Brixton Prison and another Regina (Eidarous) v Governor of Brixton Prison and another

[2001] UKHL 69, [2002] 1 A.C. 556

DATES: 2001 Oct 22, 23, 24; Dec 17

COUNSEL: James Lewis, John Hardy and Khawar Qureshi for the respondent. Edward Fitzgerald QC and Keir Starmer for Al-Fawwaz. Ben Emmerson QC and Julian Knowles for Abdel Bary. Michael Mansfield QC and Timothy Maloney for Eidarous.

SOLICITORS: CPS Headquarters; Raja & Partners; Ahmed & Co; Birnberg Peirce & Partners.

JUDGES: Lord Slynn of Hadley, Lord Hutton, Lord Millett, Lord Scott of Foscote and Lord Rodger of Earlsferry

17 December.

LORD SLYNN OF HADLEY

1 My Lords, your Lordships have heard three appeals together.

2 In the first the applicant Al-Fawwaz is accused in the United States District Court for the Southern District of New York of conspiring with Osama bin Laden and others between 1 January 1993 and 27 September 1998. It is alleged that they agreed that United States citizens would be murdered in the United States and elsewhere and that American officials in the Middle East and Africa and soldiers deployed in the United Nations Peacekeeping Forces, American diplomats and other internationally protected persons would be killed and bombs planted at United States embassies and other American installations. It is alleged that in furtherance [*566] of the alleged conspiracy members of a terrorist group, al- Qaeda which was founded and led by Osama bin Laden and was committed to violent opposition to the United States of America, bombed the United States embassies in Nairobi, Kenya and in Dar es Salam, Tanzania. A large number of people were killed.

3 The applicant was arrested in the United Kingdom on 27 September 1998 and a request made by the United States government for his extradition. On 9 December 1998 an order to proceed with the extradition was made by the Secretary of State on the basis that the applicant “is accused of offences which, had they occurred in the United Kingdom, would have constituted the offence of conspiracy to murder, within the jurisdiction of the United States of America”. After a hearing the metropolitan stipendiary magistrate ruled that it was not necessary to allege that the offence had been committed in the territory of the United States of America. He found that there was a prima facie case against the applicant and committed him to await the decision of the Secretary of State. The applicant applied for habeas corpus but the application was dismissed by the Divisional Court on 30 November 2000 and it is from that order that the applicant comes before your Lordships.

4 The Divisional Court held that it was necessary to show that the crime, in respect of which extradition was sought, was alleged to be committed within the actual territory of http://uniset.ca/other/cs5/al-fawwaz.html Page 1 of 42 R. (Al-Fawwaz) v. Governor of Brixton Prisonn 18/11/16 09:47 am

the United States and that it was not sufficient to allege that a crime was committed within the jurisdiction extraterritorially of the United States which would in similar circumstances be governed by the extraterritorial jurisdiction of the United Kingdom. The Divisional Court was, however, satisfied that three overt acts alleged by the United States of America could be relied on to found territorial jurisdiction in the United States, namely (a) the setting up and operating of a secure telephone line in the United States by the applicant through an organisation called MCI, (b) the purchase by the applicant of a satellite phone system in the United States and (c) the issuing in pursuance of the conspiracy, of fatwahs and jihads, allegedly prepared with the concurrence of the applicant in the United States and elsewhere.

5 The second applicant, Ibrahim Eidarous, and the third applicant, Abdel Bary, Egyptian nationals who were granted asylum in the United Kingdom, are likewise charged before the United States District Court for the Southern District of New York with what in the United Kingdom would have been a conspiracy to murder. On an application for extradition the same charge of conspiracy to murder, bomb and kill and the same bombing of two embassies relied on was alleged as that against Al-Fawwaz. Provisional warrants for arrest were executed in July 1999 and the order to proceed with the examination was issued by the Secretary of State on 21 September 1999. On 25 April 2000 the applicants were committed to await the Secretary of State’s decision on the basis that it was not necessary to allege that the acts were committed within the territory of the United States. As in Al- Fawwaz, the Divisional Court held, on 2 May 2001, that there were in any event, overt acts within the territorial jurisdiction of the United States and on 2 May 2001 the Divisional Court dismissed the appeal. The overt acts alleged in the United States were challenged by the second and third applicants. There was not sufficient to justify a finding that the satellite phone had been used to plan the [*567] explosions and that what happened was consistent with these two men being part of a dissident group who had been persecuted in their own country.

6 There were thus some issues common to the appeals, others where the principle is the same but the factual material differs.

7 It is convenient to consider first the question of principle and whether the extradition crime ruled on must be alleged to have been committed in the United States or whether it is sufficient that it is within the United States’ jurisdiction in the sense that it is triable in the United States.

8 The statutory provisions are not entirely simple and it is useful to set them out as far as relevant.

9 Section 1 of the Extradition Act 1989 (which consolidated with amendments, provisions relating to extradition in the Criminal Justice Act 1988, the Fugitive Offenders Act 1967 and the Extradition Acts 1870 to 1935) provides that where an extradition procedure under Part III of the Act is available as between the United Kingdom and a foreign state, a person in the United Kingdom who “(a) is accused in that state of the commission of an extradition crime; or (b) is alleged to be unlawfully at large after conviction of an extradition crime by a court in that state” may be arrested and returned to that state in accordance with those procedures.

10 “Extradition crime” except in Schedule 1 is defined in section 2(1) as meaning

“(a) conduct in the territory of a foreign state … which, if it occurred in the United Kingdom, would constitute an offence punishable with imprisonment for a term of 12 months … and which, however described in the law of the foreign state … is so punishable under that law; (b) an extraterritorial offence against the law of a foreign state …”

http://uniset.ca/other/cs5/al-fawwaz.html Page 2 of 42 R. (Al-Fawwaz) v. Governor of Brixton Prisonn 18/11/16 09:47 am

so punishable which satisfies the conditions in subsections (2) and (3) of section 2.

11 However section 1(3) provides:

“Where an Order in Council under section 2 of the Extradition Act 1870 is in force in relation to a foreign state, Schedule 1 to this Act (the provisions of which derive from that Act and certain associated enactments) shall have effect in relation to that state, but subject to the limitations, restrictions, conditions, exceptions and qualifications, if any, contained in the Order.”

12 Schedule 1, paragraph 20 provides two important definitions:

“‘extradition crime’, in relation to any foreign state, is to be construed by reference to the Order in Council under section 2 of the Extradition Act 1870 applying to that state as it had effect immediately before the coming into force of this Act and to any amendments thereafter made to that Order; ‘fugitive criminal’ means any person accused or convicted of an extradition crime committed within the jurisdiction of any foreign state who is in or is suspected of being in some part of Her Majesty’s dominions.”

13 The United States of America (Extradition) Order 1976 (SI 1976/2144) as amended by the United States of America (Extradition) [*568] (Amendment) Order 1986 (SI 1986/2020) was in force at all material times so that Schedule 1 to the 1989 Act applied and the definitions there are to be followed.

14 If a requisition is duly made for the surrender of a fugitive criminal of any foreign state under paragraph 4(1) of the Schedule, the Secretary of State may require a metropolitan magistrate to issue a warrant for the arrest of the fugitive criminal. By paragraph 6, as amended by section 158 of the Criminal Justice and Public Order Act 1994:

“(1) When a fugitive criminal is brought before the metropolitan magistrate, the metropolitan magistrate shall have the same powers, as near as may be, including power to adjourn the case and meanwhile to remand the prisoner either in custody or on bail, as if the proceedings were the summary trial of an information against him for an offence committed in England and Wales …

“(2) The metropolitan magistrate shall receive any evidence which may be tendered to show that the crime of which the prisoner is accused or alleged to have been convicted is an offence of a political character or is not an extradition crime.”

By paragraph 7 of the Schedule, as amended by section 158 of the 1994 Act:

“(1) In the case of a fugitive criminal accused of an extradition crime, if the foreign warrant authorising the arrest of such criminal is duly authenticated, and such evidence is produced as (subject to the provisions of this Schedule) would, according to the law of England and Wales, make a case requiring an answer by the prisoner if the proceedings were for the trial in England and Wales of an information for the crime, the metropolitan magistrate shall commit him to prison, but otherwise shall order him to be discharged.”

By paragraph 15 of the Schedule under the heading “Deemed extension of jurisdiction of foreign states”:

“For the purposes of this Schedule any act, wherever committed, which is any of the following offences—(a) an offence mentioned in paragraph (a) of subsection (1) of section 1 of the Internationally Protected Persons Act 1978 which is http://uniset.ca/other/cs5/al-fawwaz.html Page 3 of 42 R. (Al-Fawwaz) v. Governor of Brixton Prisonn 18/11/16 09:47 am

committed against a protected person within the meaning of that section … (d) an offence under section 1(3) of the internationally Protected Persons Act 1978”— together with certain offences under the Taking of Hostages Act 1982 and the Nuclear Material (Offences) Act 1983—“and an offence against the law of any state in relation to which this Schedule has effect shall be deemed to be an offence committed within the jurisdiction of that state.”

15 The 1976 Order cites the treaty between the Government of the United Kingdom and the Government of the United States of America “for the reciprocal extradition of offenders”. It provides in article 3 that:

“The Extradition Acts 1870 to 1935, as amended or extended by any subsequent enactment, shall apply in the case of the United States of America in accordance with the said treaty of 8 June 1972.” [*569]

16 The Schedule which sets out the Treaty provides as follows. Article I:

“Each contracting party undertakes to extradite to the other, in the circumstances and subject to the conditions specified in this treaty, any person found in its territory who has been accused or convicted of any offence within article III, committed within the jurisdiction of the other party.”

Article III:

“(1) Extradition shall be granted for an act or omission the facts of which disclose an offence within any of the descriptions listed in the Schedule annexed to this treaty, which is an integral part of the treaty, or any other offence, if: (a) the offence is punishable under the laws of both parties by imprisonment or other form of detention for more than one year or by the death penalty; (b) the offence is extraditable under the relevant law, being the law of the United Kingdom or other territory to which this treaty applies by virtue of sub-paragraph (1)(a) of article II; and (c) the offence constitutes a felony under the law of the United States of America.

“(2) Extradition shall also be granted for any attempt or conspiracy to commit an offence within paragraph (1) of this article if such attempt or conspiracy is one for which extradition may be granted under the laws of both parties …”

By Article IX:

“(1) Extradition shall be granted only if the evidence be found sufficient according to the law of the requested party either to justify the committal for trial of the person sought if the offence of which he is accused had been committed in the territory of the requested party or to prove that he is the identical person convicted by the courts of the requesting party.”

17 The Schedule to the Order lists the offences referred to in article III of the Order. Those offences include “murder” and “attempt to murder”. By virtue of article III(2) conspiracy to commit such an offence is also a crime for which extradition can be granted as it was under Schedule 1 to the 1870 Act.

18 The Divisional Court in Al-Fawwaz concluded that the extradition proceedings covered only crimes committed in the territory of the United States. The acts done were transposed to the United Kingdom for the purpose of deciding whether under section 26 of the 1870 Act the crimes committed in the United States of America “if committed in England or within English jurisdiction, would be one of the crimes described in Schedule I to this Act”. Those crimes include “Murder, and attempt and conspiracy to murder”. The Divisional Court http://uniset.ca/other/cs5/al-fawwaz.html Page 4 of 42 R. (Al-Fawwaz) v. Governor of Brixton Prisonn 18/11/16 09:47 am

considered that there were a number of pointers that jurisdiction in the 1870 Act was limited to territorial jurisdiction. They relied in particular on (a) the speech of Lord Mackay of Clashfern In re Rees [1986] AC 937 and the speech of Lord Reid in R v Governor of Brixton Prison, Ex p Schtraks [1964] AC 556; (b) the fact that the provision in section 25 of the 1870 Act that “every vessel of that state, shall … be deemed to be within the jurisdiction of and to be part of such foreign state”; (c) paragraph 15 of Schedule 1 to the 1989 Act which [*570] provided that certain offences of an international character (and in particular the Internationally Protected Persons Act 1978) “shall be deemed to be an offence committed within the jurisdiction of that state”; (d) the fact that the provisions of section 2 of the 1989 Act which included reference to extraterritorial offences were specifically excluded from Schedule 1 offences by section 2(1) of the 1989 Act. They concluded [2001] 1 WLR 1234, 1243, para 32:

“in cases governed by Schedule 1 to the 1989 Act the extradition crime has to be committed within the territory of the requesting state so that it would, as transposed, be committed within the territory of England and Wales. It is not enough that the latter crime would, as in Part III cases as recognised in Ex p Pinochet (No 3) [2000] 1 AC 147, be indictable under the extraterritorial jurisdiction of the United Kingdom. We also think that the concept of jurisdiction in article I of the treaty annexed to the United States of America (Extradition) Order 1976 is subject to the same limitation. Whether this is a sensible rule in a world of major international crime and of the regular passage of persons involved in such crime between different jurisdictions is no doubt not for us to say.”

19 In the case of Mr Eidarous and Mr Abdel Bary the Divisional Court (Kennedy LJ and Garland J) declined to reconsider the opinion of Buxton LJ and Elias J in Al-Fawwaz on this issue since they were satisfied that there were sufficient overt acts to confer jurisdiction.

20 The matter is however one which your Lordships should now consider.

21 Mr Fitzgerald, with whom Mr Emmerson and Mr Maloney largely agreed, submits that Buxton LJ and Elias J were right to conclude that jurisdiction has to be territorial. They accept that conspiracy to murder is a crime within Schedule 1 to the Extradition Act 1870 and in the 1976 Order but they say that the concept of jurisdiction in section 26 of the 1870 Act was limited to territorial jurisdiction; this is in keeping with the historical notion of jurisdiction as being limited to crimes committed within the requesting state’s territory. This they say is underlined by the fact that (a) in section 25 of the 1870 Act, it was necessary to provide for crimes committed on vessels and in colonies; (b) in the 1989 Act it was necessary to provide for extraterritorial crimes both in section 2 which lays down the definition of extradition crimes (but that is not applicable to Schedule 1) and in section 22 dealing with crimes, the subject matter of international conventions. Moreover paragraph 15 of Schedule 1 to the 1989 Act would not be necessary if extraterritorial crimes were already covered. Reliance is placed on the cases referred to by the Divisional Court. Particular emphasis is placed on the fact that article 1 of the treaty is dealing with offences “committed within the jurisdiction of the other party” which is different from susceptible to the jurisdiction of the requesting party and must be construed as meaning in the territory of the party. It is also said that article IX(1) of the treaty which requires evidence to justify “the committal for trial of the person sought if the offence of which he is accused had been committed in the territory of the requested party” (emphasis added) supports their case.

22 There is no doubt that the applicants can point to a number of cases where it has been said or assumed that the question at issue, depended on the [*571] act having been done in the territory of the state. See eg In re Naghdi [1990] 1 WLR 317, Kossekechatko v Attorney General for Trinidad [1932] AC 78 and R v Governor of Brixton Prison, Ex p Minervini [1959] 1 QB 155. Detailed reference has been made to R v Governor of Brixton Prison, Ex p Schtraks [1964] AC 556. In that case however the question was whether the offence was committed within the territory rather than within the jurisdiction of one party http://uniset.ca/other/cs5/al-fawwaz.html Page 5 of 42 R. (Al-Fawwaz) v. Governor of Brixton Prisonn 18/11/16 09:47 am

to the treaty and in particular whether it was enough that there was de facto occupation and control by Israel rather than sovereignty over the territory. I do not find this directly in point. Closer is the statement in In re Rees [1986] AC 937, 955F where Lord Mackay of Clashfern said: “When the 1870 Act was passed it dealt only with crimes committed within the territorial jurisdiction of a state with whom an extradition arrangement had been made …”

23 But the present question (territorial v extraterritorial) was not raised as an issue nor was it necessary to decide it and that question was not fully argued.

24 At the same time if Lord Mackay’s statement is to be read as referring to what the Act dealt with in fact at the time, and perhaps what it was thought at the time that it was directed to, it seems both to be correct and to be supported by views expressed after the date of the Act: see Clarke, The Law of Extradition, 4th ed (1903), p 235, though the case relied on, R v Lavaudier (1881) 15 CoxCC 329, does not seem to require as a matter of statutory interpretation that jurisdiction equals territory. See also Oppenheim’s International Law, 1st ed (1905), vol 1, pp 196-197 and the argument of counsel for the Government in In re Tivnan (1864) 5 B & S 645, 672 that in Extradition Treaties of 1842 and 1843 “jurisdiction” was used in the sense of the territorial limit within which “the right to deal with particular things or persons” is exercised.

25 It does not seem to me, however, that any of these previous decisions or writings should be taken as concluding the matter conclusively today. The question, it seems for the first time, has to be decided directly; ie whether the treaty permits or requires extradition only in respect of crimes committed and acts done exclusively in the territory of the requesting state, and whether it is only acts done in that state which are transposed to the United Kingdom in order to decide whether the facts would constitute a crime triable in the United Kingdom.

26 The respondents submit that the first chronological, and perhaps crucial, stage is to ask whether the person is a “fugitive criminal” within the meaning of paragraph 20 of Schedule 1 to the 1989 Act (which is the same as the definition in section 26 of the 1870 Act). This provision requires that the person shall be accused or have been convicted of an extradition crime committed within the jurisdiction of a foreign state. There is no reference to “territory” although jurisdiction could be interpreted as meaning territory in the sense that the act done or the crime committed must be done “in” the state. Moreover conversely to take the view that jurisdiction does not mean only territory seems to require that the phrase “crime committed within the jurisdiction” of any foreign state must be read as meaning “a crime committed which is within the jurisdiction” of that state.

27 It seems to me that the respondent’s reading of the definition of fugitive criminal as being one who has committed a crime within the jurisdiction of rather than in the requested state, is consistent with article I of [*572] the treaty which requires the extradition of a person in the requested state of any person convicted of an offence specified in article III which is “committed within the jurisdiction of the other party”.

28 “Extradition crime” for the purposes of Schedule 1 to the 1989 Act is to be construed by reference to the Order in Council under section 2 of the 1870 Act. By article 3 of the 1976 Order the Extradition Acts 1870 to 1935 are to apply in the case of the United States in accordance with the treaty. In the 1870 Act extradition crime means “a crime which, if committed in England or within English jurisdiction, would be one of the crimes described in Schedule 1” to the Act (emphasis added).

29 This is different from the definition of fugitive criminal which refers only to a crime committed within the jurisdiction of the foreign state and does not refer to the territory of the foreign state. It is thus looking at jurisdiction rather then territory.

http://uniset.ca/other/cs5/al-fawwaz.html Page 6 of 42 R. (Al-Fawwaz) v. Governor of Brixton Prisonn 18/11/16 09:47 am

30 It seems to me that the words in the 1870 Act “within English jurisdiction” must have been intended to add something to “committed in England”. There is nothing to indicate that those words are limited to specific statutory provisions deeming or declaring the offence to have been committed in England for the purposes of extradition.

31 Accordingly unless there are other compelling reasons I would interpret “within jurisdiction” as including but being wider than “in the territory” of the foreign state. The question is thus whether the conduct complained of will be triable in the United States and if that conduct were transposed to England, would be triable in England. The question is not whether the acts done in the United States (if any) regardless of other acts necessary to found jurisdiction committed elsewhere, would if transposed to England be triable in England. It is still necessary to decide whether all acts relied on or only those acts done in the United States are transposed to England.

32 In most cases which approach is adopted may not matter. If only the events occurring in the United States are transferred to England and the other events occurring outside the USA are regarded as still occurring outside England, in asking whether the crime would be triable in England, it seems likely that the English courts would have extraterritorial jurisdiction. I tend to the view that this is the right approach but I recognise the force of the argument that all events are transposed to England.

33 The view that jurisdiction is wider than territorial jurisdiction is not in any way inconsistent with other provisions of the Schedule. Thus in paragraph 4(2) of Schedule 1 to the 1989 Act the Secretary of State can only order the issue of a warrant for arrest if the person is accused of an extradition crime committed within the jurisdiction of a foreign state and that person is already suspected of being in Her Majesty’s dominions, ie present in the territory. If it had been intended only to cover acts done in the territory of a foreign state the territorial link would have been stated in both parts of the definition. The same approach is followed through in relation to the magistrate’s power to order arrest, to bring the person before the magistrate (paragraph 5) and to commit the person (paragraphs 7 and 8). Each time the question is expressed as to whether the crime is alleged to have been committed in “the jurisdiction” and not in the territory.

34 It is to be noted that in article I of the 1972 treaty the obligation is to extradite a person found in the territory of the requested state who has been [*573] accused of an offence within article III “committed within the jurisdiction of the other party”. The same applies to the power in paragraph 4(2) of Schedule 1 to the 1989 Act.

35 I accept that where a person is authorised in paragraph 8(3) of the Schedule not only to receive and hold in custody but also to “convey within the jurisdiction of such foreign state” the criminal, that will normally mean taking the person to the territory of the foreign state. I would reserve the question as to whether it means only that but even if it does it seems to me to be a special provision which does not govern the meaning of the other parts of the Schedule and in particular paragraph 20.

36 It is to be noted also in the treaty that the request must be accompanied by a statement of the facts of the offence and of the law defining the offence and where the request is made to the United Kingdom a statement that the offence constitutes a felony “under the law of the United States of America” (article VII). There must also be a warrant of arrest duly authenticated. There is no express requirement that any of these documents should state, let alone establish, that the offence alleged was committed in the territory of the United States. Nor is it to be implied that the procedure requires the magistrate, when the matter comes before him, to have evidence to show that the crime was committed in the territory of the United States.

http://uniset.ca/other/cs5/al-fawwaz.html Page 7 of 42 R. (Al-Fawwaz) v. Governor of Brixton Prisonn 18/11/16 09:47 am

37 When the 1870 Act was passed crimes were no doubt largely committed in the territory of the state trying the alleged criminal but that fact does not, and should not, mean that the reference to the jurisdiction is to be so limited. It does not as a matter of the ordinary meaning of the words used. It should not because in present conditions it would make it impossible to extradite for some of the most serious crimes now committed globally or at any rate across frontiers. Drug smuggling, money laundering, the abduction of children, acts of terrorism, would to a considerable extent be excluded from the extradition process. It is essential that that process should be available to them. To ignore modern methods of communication and travel as aids to criminal activities is unreal. It is no less unreal to ignore the fact that there are now many crimes where states assert extraterritorial jurisdiction, often as a result of international conventions. Buxton LJ recognised the difficulties of the approach he felt bound to adopt when he commented [2001] 1 WLR 1234, 1243, para 32: “Whether this is a sensible rule in a world of major international crime and of the regular passage of persons involved in such crime between different jurisdictions is no doubt not for us to say.”

38 There is, moreover, one express provision of the 1870 Act which, as was emphasised during the argument, indicates that the jurisdiction of the requesting state is not limited to territorial jurisdiction. Even though most of the crimes listed in Schedule 1 can be committed in England or on English vessels which are to be treated as English territory it is clear that “piracy by law of nations” not only may but has to be committed on the high seas, ie although within the jurisdiction it is not committed in the territory of the state.

39 Mr Fitzgerald stressed that if the test is one of jurisdiction unqualified by territoriality people may be extradited under what the United Kingdom would regard as an exorbitant jurisdiction. That however is in my view taken care of, even if the treaty is in general terms not excluding such exorbitant jurisdiction, by the discretion of the Secretary of State either in [*574] not requiring the magistrate to arrest the person concerned or by refusing to extradite him at the end of the process. I find helpful two passages from previous speeches in your Lordships’ House. The first is that of Lord Bridge of Harwich in R v Governor of Ashford Remand Centre, Ex p Postlethwaite [1988] AC 924, 947:

“I also take the judgment in [In re Arton (No 2) [1896] 1 QB 509, 517] as good authority for the proposition that in the application of the principle the court should not, unless constrained by the language used, interpret any extradition treaty in a way which would ‘hinder the working and narrow the operation of most salutary international arrangements’. The second principle is that an extradition treaty is ‘a contract between two sovereign states and has to be construed as such a contract. It would be a mistake to think that it had to be construed as though it were a domestic statute’: R v Governor of Ashford Remand Centre, Ex p Beese [1973] 1 WLR 969, 973, per Lord Widgery CJ. In applying this second principle, closely related as it is to the first, it must be remembered that the reciprocal rights and obligations which the high contracting parties confer and accept are intended to serve the purpose of bringing to justice those who are guilty of grave crimes committed in either of the contracting states. To apply to extradition treaties the strict canons appropriate to the construction of domestic legislation would often tend to defeat rather than to serve this purpose.”

40 The second is that of Lord Griffiths in Liangsiriprasert (Somchai) v Government of the United States of America [1991] 1 AC 225, 251:

“Unfortunately in this century crime has ceased to be largely local in origin and effect. Crime is now established on an international scale and the common law must face this new reality. Their Lordships can find nothing in precedent, comity or good sense that should inhibit the common law from regarding as justiciable in England inchoate crimes committed abroad which are intended to result in the commission of criminal offences in England. Accordingly a conspiracy entered into http://uniset.ca/other/cs5/al-fawwaz.html Page 8 of 42 R. (Al-Fawwaz) v. Governor of Brixton Prisonn 18/11/16 09:47 am

in Thailand with the intention of committing the criminal offence of trafficking in drugs in Hong Kong is justiciable in Hong Kong even if no overt act pursuant to the conspiracy has yet occurred in Hong Kong. This then is a sufficient reason to justify the magistrate’s order …”

41 Finally I agree with what is said in Jones on Extradition (1995), p 88, para 3-023:

“Although the point was not argued, Liangsiriprasert is to be taken as clear authority for the proposition that the word ‘jurisdiction’ in the definition of the words ‘extradition crime’ in section 26 of the 1870 Act and paragraph 20 of Schedule 1 to the 1989 Act is not limited to ‘territory’. Neither the Secretary of State in issuing his order to proceed, nor the magistrate exercising his duties under section 10 (paragraph 7(1)), is required to consider whether there is evidence of criminal conduct committed within the territory of the requesting state. It is sufficient if, were the crime charged in England, he would be entitled to commit.”

42 There is no doubt that conspiracy to murder is a crime within the jurisdiction of the United States and that if the acts were done here it would [*575] constitute the crime of conspiracy to murder under English law. In my opinion it was not necessary to show that the acts relied on for the conspiracy were all done in the United States of America, or that enough of them were done to ground jurisdiction.

43 In these circumstances it is not necessary to prove overt acts in the territory of the United States. It is, however, still necessary to consider whether such evidence was produced as “would according to the law of England and Wales, make a case requiring an answer by the prisoner if the proceedings were for the trial in England”.

44 The first criticism made here of the magistrate’s decision on the evidence was that he should not have taken account of the affidavit of an anonymous witness CS/1. It is obvious that at trial and also on an inquiry like the present the court should be cautious about admitting anonymous statements or affidavits. But that there is jurisdiction to admit them is clear. On the basis of what was said in R v Taylor (Gary) The Times, 17 August 1994, and by the European Court of Human Rights in Doorson v The Netherlands (1996) 22 EHRR 330, both for the purposes of the Convention and the purposes of considering whether the legal proceedings have been fairly conducted at common law, there may have to be a balance of the interests of the defence and of the protection of witnesses. It seems to me that the magistrate and the Divisional Court considered this matter carefully and were satisfied that the protection of the witness CS/1 made it necessary in all the circumstances to preserve his anonymity and that the interests of society in prosecuting required that the evidence be taken into account on the application for extradition. It would be a matter for the trial judge as to whether the statement should be admitted. The parties in Al-Fawwaz agree that if the evidence of CS/1 is admitted there is sufficient to satisfy the requirement of paragraph 7 of the Schedule. That seems to me to be right. I consider that the decision of the Divisional Court in this case, that the magistrate’s admission of the evidence, even if anonymous, was fully justified in all the circumstances to which the Divisional Court refer, was correct.

45 A more detailed argument was made in the cases of Eidarous and Abdel Bary to the effect that the matters relied on were insufficient for the purposes of paragraph 7 of Schedule 1. The Divisional Court on a detailed consideration rejected the submission that the purchase of the satellite telephone and the fact that the text of the fatwahs were found in their possession were capable of an explanation which had nothing to do with the alleged conspiracy. I refer to, without repeating, their reasons but it is quite plain that the Divisional Court thought that the magistrate had, after consideration of all the material, taken the view that there was sufficient to justify a committal. I agree with that conclusion. I also agree with the Divisional Court’s view that even if the reasons given by the http://uniset.ca/other/cs5/al-fawwaz.html Page 9 of 42 R. (Al-Fawwaz) v. Governor of Brixton Prisonn 18/11/16 09:47 am

magistrate were not detailed they were sufficient to indicate to both the applicants and the court the basis of his decision so as to enable it to be challenged and reviewed on judicial review or appeal.

46 In my opinion these three appeals should be dismissed.

LORD HUTTON

47 My Lords, the three applicants are accused in proceedings before the United States District Court for the Southern District of New York of [*576] conspiring with Osama bin Laden and others between 1 January 1993 and 27 September 1998 by agreeing:

“(i) that citizens of the United States of America would be murdered in the United States of America and elsewhere; (ii) that bombs would be planted and exploded at American embassies and other American installations; (iii) that American officials would be killed in the Middle East and Africa; (iv) that American diplomats and other internationally protected persons would be murdered; which course of conduct would necessarily involve the commission of the offence of murder.”

The three applicants were arrested in London and the United States of America seeks their extradition. An order to proceed with the extradition of Mr Al-Fawwaz was issued on 9 December 1998 in terms that he: “is accused of offences which, had they occurred in the United Kingdom, would have constituted the offence of conspiracy to murder, within the jurisdiction of the United States of America.”

48 At a hearing on 8 September 1999, Mr Evans, a metropolitan stipendiary magistrate, held that there was a prima facie case against Mr Al-Fawwaz and committed him to await the decision of the Secretary of State. Mr Al-Fawwaz moved an application of habeas corpus before the Administrative Court of the Queen’s Bench Division, which was dismissed on 30 November 2000.

49 An order to proceed with the extradition of Mr Eidarous and Mr Abdel Bary was issued in similar terms on 21 September 1999. On 25 April 2000 Mr Evans found that there was a prima facie case against both Mr Eidarous and Mr Abdel Bary and committed them to await the decision of the Secretary of State. The two applicants moved an application of habeas corpus before the Administrative Court of the Queen’s Bench Division which was dismissed on 2 May 2001.

50 The principal question which arises on these three appeals is whether the extradition arrangements between the United States of America and the United Kingdom set out in the relevant legislation require the extradition crime to be committed within the territory of the United States of America, or whether it is sufficient that the offence for which extradition is sought is triable in the United States of America and would be triable in England if the accused had been charged there.

51 The magistrate ruled that it is sufficient that the alleged crime is triable in the United States of America. The Administrative Court in the case of Mr Al-Fawwaz ruled to the contrary and held, accepting the applicant’s submission, that where extradition is sought by the United States of America from England there is only jurisdiction to extradite where the crime had been committed within the territory of the United States of America so that it would, as transposed, be committed in England. In making its ruling the court observed that it was not for it to say whether this was a sensible rule in a world of major international crime and of the regular passage of persons involved in such crime between jurisdictions. However the court also held that there was jurisdiction to extradite because there was prima facie evidence that overt acts in furtherance of the conspiracy had taken place within the territory of the United States of America. On the applications for habeas http://uniset.ca/other/cs5/al-fawwaz.html Page 10 of 42 R. (Al-Fawwaz) v. Governor of Brixton Prisonn 18/11/16 09:47 am

corpus by Mr Eidarous and Mr Abdel Bary a differently constituted Administrative Court followed the ruling of the earlier Administrative Court [*577] on the issue whether territorial jurisdiction was required but, as in the case of Mr Al-Fawwaz, ruled that there was jurisdiction because of the evidence of overt acts in furtherance of the conspiracy having taken place in the United States of America.

52 My Lords, in considering the question whether on an application for extradition to the United States of America the alleged crime must have been committed within the territory of that state and before turning to consider the statutory provisions it is relevant to observe that the general rule is that the courts of a state do not exercise criminal jurisdiction over offences committed outside the territory of that state. In Macleod v Attorney General for New South Wales [1891] AC 455, 458 Lord Halsbury LC stated: “All crime is local. The jurisdiction over the crime belongs to the country where the crime is committed …” Therefore, in practice, most extradition requests relate to offences committed within the territory of the requesting state. But, increasingly, in modern times in order to combat international crime and terrorism, it has been recognised by democratic states that extraterritorial jurisdiction should be taken by individual states over certain crimes. Thus in 1982 in pursuance of an international convention the United Kingdom took extraterritorial jurisdiction over the offence of taking a hostage (see section 1 of the Taking of Hostages Act 1982) and in 1988 in pursuance of an international convention extraterritorial jurisdiction was taken over the offence of torture by a public official or a person acting in an official capacity (see section 134 of the Criminal Justice Act 1988).

53 In 1973 the United Nations General Assembly adopted the Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons. Under the Internationally Protected Persons Act 1978 “a protected person” includes a person who is a representative or an official of a state or an official or agent of an international organisation of an inter-governmental character and who is entitled under international law to special protection from attack on his person: section 1(5). Section 1(1) of the 1978 Act provides:

“If a person, whether a citizen of the United Kingdom and colonies or not, does outside the United Kingdom—(a) any act to or in relation to a protected person which, if he had done it in any part of the United Kingdom, would have made him guilty of the offence of murder [and other offences against the person] … he shall in any part of the United Kingdom be guilty of the offences aforesaid of which the act would have made him guilty if he had done it there.”

It is common ground that internationally protected persons were to be the victims of the conspiracy of which the applicants are accused.

54 Section 1(3) of the Extradition Act 1989 provides:

On the date on which the 1989 Act came into force an Order in Council (United States of America (Extradition) Order 1976), setting out in a [*578] Schedule the Extradition Treaty between the United Kingdom and the United States of America, was in force. Therefore the extradition of an offender to the United States of America is governed by Schedule 1 to the 1989 Act.

55 Paragraph 20 of Schedule 1 defines an “extradition crime” as follows:

http://uniset.ca/other/cs5/al-fawwaz.html Page 11 of 42 R. (Al-Fawwaz) v. Governor of Brixton Prisonn 18/11/16 09:47 am

The Order in Council (the United States of America (Extradition) Order 1976) provides in article 3: “The Extradition Acts 1870 to 1935, as amended or extended by any subsequent enactment, shall apply in the case of the United States of America in accordance with the said treaty of 8 June 1972.” Article III of the treaty provides:

Therefore to determine the meaning of the term an “extradition crime” at the present time when a request for extradition is made by the United States of America it is necessary to read section 26 of the Extradition Act 1870, which provides: “The term ‘extradition crime’ means a crime which, if committed in England or within English jurisdiction, would be one of the crimes described in Schedule 1 to this Act.”

56 Paragraph 20 of Schedule 1 to the 1989 Act defines a “fugitive criminal” as follows:

“‘fugitive criminal’ means any person accused or convicted of an extradition crime committed within the jurisdiction of any foreign state who is in or is suspected of being in some part of Her Majesty’s dominions.”

Therefore two questions arise (i) Were the applicants “fugitive criminals” as defined in paragraph 20 of Schedule 1 to the 1989 Act? and (ii) Was the crime alleged against the applicants an “extradition crime” as defined by section 26 of the 1870 Act?

(i) Were the applicants “fugitive criminals”?

57 The answer depends on whether the crime alleged was “committed within the jurisdiction of [the] foreign state”—in this case the United States of America. An ordinary meaning of the term “the jurisdiction of the state”, is the power of that state to try an offence and includes extraterritorial jurisdiction. Thus it is clear that under the Internationally Protected Persons Act 1978 a United Kingdom court has jurisdiction to try a charge of murder of a protected person when the murder is committed outside the United Kingdom. It is not in dispute that the court in the United States of America [*579] has extraterritorial jurisdiction under United States law to try the charge of conspiracy against the applicants notwithstanding that the conspiracy to murder was entered into outside the United States of America and that no overt acts by the applicants in pursuance of conspiracy may have been committed within the territory of the United States of America. Accordingly it would appear prima facie that the alleged conspiracy was committed “within the jurisdiction” of the United States.

58 However, Mr Fitzgerald for Mr Al-Fawwaz submitted, and his submission was adopted by counsel for the other two applicants, that in the 1870 Act and the treaty with the United States of America the term “jurisdiction” must be confined to “territorial jurisdiction”, though including vessels at sea and colonies, and must be so confined today because the 1989 Act provides in respect of extradition requested by the United States of America that, in effect, extradition under Schedule 1 to that Act is to be governed by the provisions of the 1870 Act and the Order in Council made under it.

http://uniset.ca/other/cs5/al-fawwaz.html Page 12 of 42 R. (Al-Fawwaz) v. Governor of Brixton Prisonn 18/11/16 09:47 am

59 Counsel submitted that in 1870 the common understanding of jurisdiction in relation to extradition was that it meant the territorial jurisdiction of the state and that an extradition crime was a crime committed within the territory of the requesting state. He relied on the judgments of the majority of the Court of Queen’s Bench in In re Tivnan (1864) 5 B&S 645 where an act of piracy was committed on an American ship. The United States of America sought the extradition of persons charged with piracy from England and the terms of the 1842 treaty and the Extradition Act 1843 (6 & 7 Vict c 76) provided for the delivery of any person charged with certain crimes, among them piracy, committed “within the jurisdiction” of the United States of America. The majority accepted the argument on behalf of the prisoners that “jurisdiction” in the Act and the treaty meant the exclusive and peculiar jurisdiction of the United States of America and that as piracy jure gentium was triable by all states, the charge against the prisoners was not within the exclusive jurisdiction of the United States of America and therefore the prisoner should be discharged.

60 Counsel cited Clarke, The Law of Extradition 4th ed (1903), p 235 which stated in respect of the provisions of the 1870 Act: “To justify a magistrate in committing there must be some evidence that the accused committed the crime within the jurisdiction, ie the territory, of the country seeking his extradition …” Counsel also pointed to section 25 of the 1870 Act which provided:

“For the purposes of this Act, every colony, dependency, and constituent part of a foreign state, and every vessel of that state, shall (except where expressly mentioned as distinct in this Act) be deemed to be within the jurisdiction of and to be part of such foreign state.”

He submitted that the Act would not have deemed the jurisdiction of a state to extend to a vessel unless otherwise the term “jurisdiction” was intended to apply only to the territory of the state.

61 Section 2(1) of the 1989 Act expressly provides that, except in Schedule 1, “extradition crime” includes an extraterritorial offence against the law of a foreign state provided that equivalent conduct would constitute an offence against the law of the United Kingdom. Counsel submitted that this provision in respect of extraterritorial crime, which expressly did not [*580] apply to Schedule 1, supported his argument that proceedings under the 1870 Act and Schedule 1 were confined to crimes committed within the territory of the requesting state.

62 He made a similar point in respect of paragraph 15 of Schedule 1 to the 1989 Act which provides:

“For the purposes of this Schedule any act, wherever committed, which is any of the following offences—(a) an offence mentioned in paragraph (a) of subsection (1) of section 1 of the Internationally Protected Persons Act 1978 which is committed against a protected person within the meaning of that section; (b) an offence mentioned in paragraph (b) of that subsection which is committed in connection with such an attack as is so mentioned; (c) an attempt to commit an offence mentioned in the preceding paragraphs; (d) an offence under section 1(3) of the Internationally Protected Persons Act 1978; (e) an offence under the Taking of Hostages Act 1982 or an attempt to commit such an offence; (f) an offence mentioned in paragraphs (a) to (d) of subsection (1) of section 1 of the Nuclear Material (Offences) Act 1983 which is committed by doing an act in relation to or by means of nuclear material, as defined in that Act; (g) an offence under section 2 of that Act; (h) an attempt to commit an offence mentioned in paragraph (f) or (g) above; or (i) torture, and an offence against the law of any state in relation to which this Schedule has effect shall be deemed to be an offence committed within the jurisdiction of that state.”

http://uniset.ca/other/cs5/al-fawwaz.html Page 13 of 42 R. (Al-Fawwaz) v. Governor of Brixton Prisonn 18/11/16 09:47 am

Counsel submitted that if the words “within the jurisdiction of any foreign state” in the definition of “fugitive criminal” in paragraph 20 of Schedule 1 (derived from section 26 of the 1870 Act) included extraterritorial jurisdiction, there was no need for the deeming provision of paragraph 15.

63 Counsel advanced an additional argument on the issue of jurisdiction based on article IX of the treaty with the United States of America. Article IX(1) provides:

“Extradition shall be granted only if the evidence be found sufficient according to the law of the requested party either to justify the committal for trial of the person sought if the offence of which he is accused had been committed in the territory of the requested party or to prove that he is the identical person convicted by the courts of the requesting party.”

Counsel submitted that article IX required that before there can be extradition there must be an offence committed within the territory of the requesting state which is the counterpart of the hypothetical offence described in article IX as “committed in the territory of the requested party”. He submitted that there was no point in making the hypothesis that the offence is committed within the territory of the requested state if the offence had not been committed within the territory of the requesting state.

64 My Lords, I consider that the submissions advanced on behalf of the applicants should not be accepted. My principal reason for forming this opinion is that in the modern world of international terrorism and crime proper effect would not be given to the extradition procedures agreed upon between states if a person accused in a requesting state of an offence over which that state had extraterritorial jurisdiction (it also being an offence [*581] over which the requested state would have extraterritorial jurisdiction) could avoid extradition on the ground that the offence was not committed within the territory of the requesting state. In my opinion a court should not construe a statute or a treaty to have such an effect unless the wording compels it to do so. I consider that the argument advanced on behalf of the applicants that “jurisdiction” means territorial jurisdiction was powerfully answered by Cockburn CJ in his judgment in In re Tivnan 5 B&S 645, 678, and although his judgment was a dissenting one the view which he expressed was a prescient one foreshadowing statements made in this House in more recent times by Lord Bridge of Harwich in R v Governor of Ashford Remand Centre, Ex p Postlethwaite [1988] AC 924, 947, and by Lord Griffiths in Liangsiriprasert v Government of the United States of America [1991] 1 AC 225, 251. Cockburn CJ stated:

“It is said, and with truth, that the primary and original mischief, which the statutes of extradition meant to prevent, was that of persons committing crimes in one state, and escaping beyond the reach of the law of that state, and so enjoying impunity; and it is also contended that for that purpose alone were those statutes passed. That that was their primary and principal object I entertain no doubt, but that that was the only one I entertain great doubt; for it is impossible not to see that the mischief which it is the object of all civilized states to prevent is not limited to such cases.”

In Ex p Postlethwaite [1988] AC 924, 947 referring to the judgment of Lord Russell of Killowen CJ in In re Arton (No 2) [1896] 1 QB 509, Lord Bridge of Harwich stated:

“I also take the judgment in that case as good authority for the proposition that in the application of the principle the court should not, unless constrained by the language used, interpret any extradition treaty in a way which would ‘hinder the working and narrow the operation of most salutary international arrangements’. The second principle is that an extradition treaty is Ɵa contract between two sovereign states and has to be construed as such a contract. It would be a mistake to think that it had to be construed as though it were a domestic statute’: R v http://uniset.ca/other/cs5/al-fawwaz.html Page 14 of 42 R. (Al-Fawwaz) v. Governor of Brixton Prisonn 18/11/16 09:47 am

Governor of Ashford Remand Centre, Ex p Beese [1973] 1 WLR 969, 973, per Lord Widgery CJ. In applying this second principle, closely related as it is to the first, it must be remembered that the reciprocal rights and obligations which the high contracting parties confer and accept are intended to serve the purpose of bringing to justice those who are guilty of grave crimes committed in either of the contracting states. To apply to extradition treaties the strict canons appropriate to the construction of domestic legislation would often tend to defeat rather than to serve this purpose.”

I have no doubt that at the end of the penultimate sentence of that passage Lord Bridge would have added “or within the extraterritorial jurisdiction of either of the contracting states” if the House had been considering an extraterritorial crime in that case.

65 I further consider that there are provisions in the 1870 Act which support the argument advanced on behalf of the Government of the United States by Mr Lewis. First, section 26 of the Act defines an “extradition crime” as a crime which “if committed in England or within English [*582] jurisdiction” would be one of the crimes described in Schedule 1 to the Act. The implicit distinction between a crime committed in England and a crime committed within English jurisdiction points to the Act having an extraterritorial effect. Secondly, piracy by law of nations is one of the extradition crimes described in Schedule 1 to the Act and shows that the term “jurisdiction” in the Act is not restricted to territorial jurisdiction. Thirdly, section 6 of the 1870 Act provides:

“Where this Act applies in the case of any foreign state, every fugitive criminal of that state who is in or suspected of being in any part of Her Majesty’s dominions, or that part which is specified in the order applying this Act (as the case may be), shall be liable to be apprehended and surrendered in manner provided by this Act, whether the crime in respect of which the surrender is sought was committed before or after the date of the order, and whether there is or is not any concurrent jurisdiction in any court of Her Majesty’s dominions over that crime.”

The recognition that a number of courts in Her Majesty’s Dominions may have jurisdiction over the same crime suggests an extraterritorial jurisdiction in one of those courts.

66 Moreover article I of the 1972 treaty between the United Kingdom and the United States of America provides:

Again the implied distinction between the “territory” of the requested state and the jurisdiction of the requesting state suggests that the concept of “jurisdiction” is wider than territory.

67 I consider that the fact that section 2 of the 1989 Act includes certain extraterritorial offences in the definition of “extradition crime”, but that section 2 does not extend to Schedule 1, does not advance the applicants’ case, as in my opinion Parliament recognised that the extradition crimes referred to in Schedule 1 (the provisions of which derive from the 1870 Act) already included extraterritorial offences by virtue of the provisions of the 1870 Act.

68 Article IX of the treaty is concerned with the sufficiency of the evidence before the magistrate of the requested state to permit him to make an order leading to the extradition http://uniset.ca/other/cs5/al-fawwaz.html Page 15 of 42 R. (Al-Fawwaz) v. Governor of Brixton Prisonn 18/11/16 09:47 am

of the accused person. In my opinion the reference in article IX to “if the offence of which he is accused had been committed in the territory of the requested party” relates only to the sufficiency of the evidence and is not intended to restrict the jurisdiction of the magistrate to a hypothetical crime committed in the territory of England and Wales.

69 Nor do I think that the provision in paragraph 15 of Schedule 1 to the 1989 Act that certain extraterritorial crimes be deemed to be committed within the jurisdiction of certain states points to the conclusion that without that provision extraterritorial crimes would not be within the scope of the extradition procedures to which Schedule 1 applies. I consider that paragraph 15 is intended to simplify the task of the magistrate and to obviate [*583] the need for him to decide the issue whether, when a person is accused of an offence outside the territory of the requesting state, that state has extraterritorial jurisdiction over that offence. As Lord Ackner stated in R v Governor of Pentonville Prison, Ex p Sinclair [1991] 2 AC 64, 91:

“I cannot accept that the legislature intended that it was to be part of the function of the police magistrate to preside over lengthy proceedings occupying weeks, and on occasions months, of his time hearing heavily contested evidence of foreign law directed to whether there had been due compliance with the many and varied obligations of the relevant treaty.”

70 Whilst there is no case which is decisive on the issue now before your Lordships, I think that the authorities give more support to the submissions of the Government of the United States of America than to the submissions of the applicants. The applicants relied upon passages in the judgments in R v Governor of Brixton Prison, Ex p Schtraks [1964] AC 556 and In re Rees [1986] AC 937. They relied on the statement by Lord Reid in Ex p Schtraks [1964] AC 556, 579:

“In my judgment neither the Extradition Act 1870 nor the Order to which I have referred is concerned with sovereignty; they are concerned with territory in which territorial jurisdiction is exercised.”

However the issue before the House in that case related to the wording of article 1 of the Extradition Treaty between the United Kingdom and Israel and the relevant article did not contain the word “jurisdiction” but rather the word “territory”. Article 1 provided:

“The contracting parties agree to extradite to each other, in the circumstances stated in the present agreement, those persons who, being accused or convicted of any of the offences enumerated in article 3 and committed within the territory of the one party, or on the high seas on board a vessel registered in the territory of that party, shall be found within the territory of the other party.”

One of the offences of which the prisoner was accused was alleged to have been committed in Jerusalem. The United Kingdom did not recognise the Israel Government as having de jure sovereignty in Jerusalem but only de facto authority. Therefore the question before the House was whether Jerusalem was within the “territory” of Israel. I consider that Lord Reid’s observation must be read in that context and was not intended as a definitive statement that the Extradition Act 1870 could not apply to extraterritorial crimes.

71 In In re Rees [1986] AC 937 the requesting state was the Federal Republic of Germany and the crime of which the prisoner was accused was the detention of a hostage (a West German national) in Bolivia. Lord Mackay of Clashfern stated, at p 955:

“When the 1870 Act was passed it dealt only with crimes committed within the territorial jurisdiction of a state with whom an extradition arrangement had been made: see, for example, R v Governor of Brixton Prison, Ex p Schtraks [1964] AC 556, per Lord Reid, at p 579.” http://uniset.ca/other/cs5/al-fawwaz.html Page 16 of 42 R. (Al-Fawwaz) v. Governor of Brixton Prisonn 18/11/16 09:47 am

However it is apparent that Lord Mackay’s statement was based upon Lord Reid’s observation and, with respect, is difficult to reconcile with the fact [*584] that piracy by the law of nations was an extradition crime within the ambit of the 1870 Act.

72 I consider that the judgment of the Privy Council delivered by Lord Griffiths in Liangsiriprasert (Somchai) v Government of the United States of America [1991] 1 AC 225 does give considerable support to the submissions of the Government of the United States of America. In that case the accused conspired in Thailand to import heroin into the United States. He then went to Hong Kong and the United States of America requested his extradition from there. The extradition procedures in Hong Kong were governed by the terms of the Extradition Acts 1870 to 1935: see p 241C. The law of conspiracy in Hong Kong was the same as the common law of conspiracy in England, and the accused argued that a conspiracy entered into abroad is not a common law crime unless either some overt act pursuant to the conspiracy takes place in England, or alternatively at least the impact of the conspiracy is felt in England. This argument was rejected by the Privy Council. Lord Griffiths stated, at p 241G, that the task of the magistrate was to apply Hong Kong law and to consider whether the evidence disclosed a prima facie case against the accused upon the assumption that the drugs were to be imported into Hong Kong rather than into the United States, and he stated, at p 251:

“Unfortunately in this century crime has ceased to be largely local in origin and effect. Crime is now established on an international scale and the common law must face this new reality. Their Lordships can find nothing in precedent, comity or good sense that should inhibit the common law from regarding as justiciable in England inchoate crimes committed abroad which are intended to result in the commission of criminal offences in England. Accordingly a conspiracy entered into in Thailand with the intention of committing the criminal offence of trafficking in drugs in Hong Kong is justiciable in Hong Kong even if no overt act pursuant to the conspiracy has yet occurred in Hong Kong.”

73 Therefore it is clear that the Privy Council proceeded on the basis that “jurisdiction” in the 1870 Act was not confined to the territory of the requesting state and to the territory of the requested state. But it is not entirely clear whether this point was raised for decision by the Board because Mr Martin Thomas QC, counsel for the accused, stated, at p 229A, that the principles related to extradition were not in dispute and Mr Alun Jones QC, for the requesting government, also stated, at p 231G, that there was no issue between the appellant and the respondents about the extradition aspects of the case and, at p 241G, Lord Griffiths stated that it was common ground that the crimes were all extradition crimes.

74 However, even if, as the Administrative Court stated in its judgment, the Privy Council assumed, rather than decided, the point, it is clear that the Privy Council was content to accept that “jurisdiction” in the 1870 Act was not confined to territory, and I consider that the judgment does provide strong support for the argument advanced by the respondent and that the effect of the decision was correctly stated by Jones on Extradition (1995), p 88, para 3-023:

75 Therefore for the reasons which I have stated I would reject the argument on behalf of the applicants that in the 1870 Act, the Order in Council and Schedule 1 to the 1989 Act “jurisdiction” is limited to the territory of the state, and in my opinion the Administrative Courts were in error in so holding.

http://uniset.ca/other/cs5/al-fawwaz.html Page 17 of 42 R. (Al-Fawwaz) v. Governor of Brixton Prisonn 18/11/16 09:47 am

76 In R v Governor of Pentonville Prison, Ex p Osman [1990] 1 WLR 277 the Divisional Court gave consideration to section 7(5) of the Fugitive Offenders Act 1967 (a provision similar to article IX of the treaty with the United States of America) under which the magistrate must consider whether there is sufficient evidence against the accused person to warrant his trial if the offence had been committed “within the jurisdiction” of the magistrate. Lloyd LJ referred to the difficulty in relation to transposition which he described as follows, at p 290:

“However, a difficulty arises when the act or omissions constituting the offence take place in two or more countries. Does one assume that all the acts or omissions constituting the offence took place within the United Kingdom? Or only those which in fact took place within the territorial limits of the requesting country?”

He then stated that in the light of the authorities only the acts or omissions which took place in the requesting state are to be treated as having taken place in England. All else remains as it in fact happened. But I think it is important to note that Lloyd LJ was considering the issue of transposition on the basis that the English magistrate was considering a case where the offence alleged was not an extraterritorial offence and where the English magistrate would only have jurisdiction over the offence if it had been committed within his territorial jurisdiction. Thus in commencing his consideration of the subject Lloyd LJ stated, at p 289:

“But if the defendant is alleged to have committed an offence outside the territorial jurisdiction of the court, then unless the offence is an extraterritorial one, he has committed no offence against English law.”

77 In the present case it is common ground that the United States of America has extraterritorial jurisdiction over the alleged offence and that the United Kingdom also has extraterritorial jurisdiction over the alleged offence. Therefore, in my opinion, no difficulty arises in respect of transposition. The offence is triable within the jurisdiction of the United States of America and, as transposed, is triable, as section 26 of the 1870 Act requires, “within English jurisdictionƢ.

78 Mr Fitzgerald submitted that the magistrate had to be satisfied that the United States of America had jurisdiction to try the alleged offence and that there was also jurisdiction in England to try the alleged offence. In this case where both the United States of America and the United Kingdom have extraterritorial jurisdiction over the alleged offence that requirement is clearly satisfied. And, as I have already stated, I consider that the purpose of paragraph 15 of Schedule 1 to the 1989 Act is to ensure that in respect of the offences specified in it the magistrate will not have to embark on a lengthy hearing to determine whether under the law of the requesting state it had extraterritorial jurisdiction over the alleged offence. [*586]

79 Accordingly for the reasons which I have stated I consider that as both the United States of America and the United Kingdom have extraterritorial jurisdiction to try the alleged conspiracy there was jurisdiction for the magistrate to commit the applicants to prison to await the warrants of the Secretary of State for their surrender to the United States of America. Therefore it is unnecessary to consider the ground on which the Administrative Courts held that the magistrate had jurisdiction, namely that overt action pursuant to the conspiracy had been carried out in the United States of America.

80 The applicants raised other issues before the two Administrative Courts which were also raised before this House.

The admissibility of the evidence of the anonymous witness CS/1

http://uniset.ca/other/cs5/al-fawwaz.html Page 18 of 42 R. (Al-Fawwaz) v. Governor of Brixton Prisonn 18/11/16 09:47 am

81 The evidence of CS/1 was described as follows by Buxton LJ in the judgment of the Administrative Court in Al-Fawwaz [2001] 1 WLR 1234, 1246:

“CS/1 claims to have been directly involved in the conspiracy and to be in mortal fear by reason of his co-operation with the authorities. He needs anonymity at this stage to protect himself, though it is envisaged that he will give evidence revealing his identity at the trial in the United States of America. His evidence is of the first importance, because it directly involves Mr Al-Fawwaz in the conspiracy. Mr Fitzgerald was careful not to concede that CS/1’s evidence, if admitted, concluded the issue of whether there was a prima facie case, since he said that the evidence was open to criticism on grounds of imprecision. In reality, however, it is impossible to conclude that a magistrate who acted on the evidence of CS/1 to commit Mr Al-Fawwaz, as the magistrate acted in this case, would be acting irrationally in Ex p Osman terms.”

82 The three applicants submitted that the magistrate was wrong in law and/or acted irrationally in admitting the evidence of CS/1. They relied on the judgment of the Court of Appeal in R v Taylor (Gary) The Times, 17 August 1994 where at the trial of the appellant, who had been convicted of perverting the course of justice by being involved in the disposal of the body of a murder victim, the judge permitted a witness to give corroborative evidence behind the screen without revealing her name and address. The defendant appealed on the ground that he had a fundamental right to see and hear the identity of the witness called against him save in rare or exceptional circumstances. The Court of Appeal dismissed the appeal. In delivering the judgment of the court Evans LJ stated.

“In so far as counsel for the appellant submitted that it was a fundamental right of a defendant to see and know the identity of his accusers, including witnesses for the Crown, which should only be denied in rare and exceptional circumstances, their Lordships agreed with him. The matter was pre-eminently one for the exercise of the judge’s discretion, and the following factors were relevant to the exercise of that discretion.

“1. There must be real grounds for fear of the consequences if the evidence were given and the identity of the witness revealed. In practical terms it might well be sufficient to draw a parallel with section 23(3)(b) of [*587] the Criminal Justice Act 1988, which concerned the admissibility of statements where the witness did not wish to give oral evidence through fear, but in principle it might not be necessary for the witness himself to be fearful or to be fearful for himself alone. There could be cases where concern was expressed by other persons, or where the witness was concerned for his family rather than for himself.

“2. The evidence must be sufficiently relevant and important to make it unfair to make the Crown proceed without it. A distinction could be drawn between cases where the creditworthiness of the witness was in question rather than his accuracy.

“3. The Crown must satisfy the court that the creditworthiness of the witness had been fully investigated and disclosed.

“4. The court must be satisfied that there would be no undue prejudice to the accused, although some prejudice was inevitable, even if it was only the qualification placed on the right to confront a witness as accuser. There might also be factors pointing the other way, for example as in the present case where the defendants could see the witness on a video screen.

“5. The court could balance the need for protection of the witness, including the extent of that protection, against unfairness or the appearance of unfairness. http://uniset.ca/other/cs5/al-fawwaz.html Page 19 of 42 R. (Al-Fawwaz) v. Governor of Brixton Prisonn 18/11/16 09:47 am

“It seemed to their Lordships that there was no reason in principle why the same considerations should not apply to a witness for the defence.

“The judge’s ruling in the present case was detailed and referred to the factors listed above. The law gave the trial judge the power to make an order that a witness remain anonymous in the exercise of his discretion, and the present case was not one where there were any grounds for supposing that the witness was not impartial or had an axe to grind. In their Lordships’ view the judge was entitled to conclude that the witness be allowed to give her evidence anonymously.”

83 In the course of giving his decision in the case of Mr Al-Fawwaz the magistrate considered the judgment in R v Taylor and said:

“I am satisfied that there are real grounds for fear of the consequences if the identity of the witnesses were revealed. The evidence, particularly that of CS/1, is sufficiently important to make it unfair to make the Government proceed without it … the Government seeks to satisfy this court that the creditworthiness of CS/1 has been fully investigated and disclosed. I am not so satisfied. Perhaps that is because no attempt was made in the preparation of this extradition request to focus on that one issue. The time when it is most important that the court is so satisfied on these issues is at the effective trial. No doubt more information will be put before the trial judge in the event of extradition taking place. I know nothing to the detriment of CS/1’s creditworthiness. What I do know is that the cumulative effect of all the circumstantial evidence is such that CS/1’s evidence can not be described as so inherently incredible that no jury properly directed could convict on it. The remaining evidence is exactly what one would expect to find if all that CS/1 says is true. The facts in [United States v Tomlins (unreported) 18 November 1994] are unusual. It is rare for a defendant to be in a position where he is able to discredit a prosecution witness to the extent that a committal court will conclude that a witness’s evidence is worthless. The fact that one of the [*588] ‘principles’ (R v Taylor The Times, 17 August 1994) to be followed in this situation may not be satisfactorily met does not mean that this court, exercising its functions in extradition proceedings, is automatically bound to rule the evidence inadmissible. These are rare and exceptional circumstances in existence in this case. In all the circumstances, I am satisfied that there would be no undue prejudice to Mr Al-Fawwaz by my admitting the evidence of CS/1 and CS/2. Accordingly I rule that evidence admissible in these committal proceedings.”

It is relevant to note that the United States government has now decided and confirmed that the identity of CS/1 would be disclosed in America.

84 Further guidance as to the approach to be taken by a court hearing a challenge by an accused to the decision of a magistrate or judge to admit the evidence of an anonymous witness is given in the judgments delivered in R v X (1989) 91 CrAppR 36 and R v Watford Magistrates Court, Ex p Lenman [1993] CrimLR 388. In the former case Lord Lane CJ stated, at p 40:

“The learned judge has the duty on this and on all other occasions of endeavouring to see that justice is done. Those are high sounding words. What it really means is, he has got to see that the system operates fairly: fairly not only to the defendants but also to the prosecution and also to the witnesses. Sometimes he has to make decisions as to where the balance of fairness lies. He came to the conclusion that in these circumstances the necessity of trying to ensure that these children would be able to give evidence outweighed any possible prejudice to the defendants by the erection of the screen.”

Although the judgment related to the anonymity of child witnesses the statement is of general application. In the latter case the court constituted by Beldam LJ and Laws J held: http://uniset.ca/other/cs5/al-fawwaz.html Page 20 of 42 R. (Al-Fawwaz) v. Governor of Brixton Prisonn 18/11/16 09:47 am

“If a magistrate was satisfied that there was a real risk to the administration of justice, because a witness on reasonable grounds feared for his safety if his identity were disclosed, it was entirely within the powers of the magistrate to take reasonable steps to protect and reassure the witness so that the witness was not deterred from coming forward to give evidence. If, however, the rights of an accused, particularly his ability to prepare and conduct his defence were thereby prejudiced, justice required the court to balance the prejudice to him and the interests of justice. It might well be that on substantial grounds being shown justice would require the witness’s identity to be disclosed. It was difficult to think of a decision more dependent on the exercise of discretion than the magistrate’s decision in this case. The court would not interfere with such a decision unless it was shown that it was so unreasonable that no magistrate properly considering it and properly directing himself, could have reached that conclusion.”

85 Therefore the authorities emphasise that the decision whether to admit evidence from an anonymous witness is a matter of deciding where the balance of fairness lies between the prosecution and the accused and that it is pre-eminently a matter for the discretion of the magistrate or judge conducting the hearing. I would reject the submission that the magistrate erred in law or acted irrationally in admitting the evidence of CS/1 where he [*589] was not satisfied that the United States government had fully investigated and disclosed the creditworthiness of the witness. This was one of the factors to be put into the balance when the magistrate was deciding how he would exercise his discretion and it is clear that he did take account of this factor. I consider that it cannot be said that his decision was so unreasonable that no magistrate properly considering the matter and properly directing himself could have reached the conclusion that he did. The magistrate was making a decision as to where the balance of fairness lay and he was entitled to find as he did.

86 I would add that there is a degree of inconsistency between the statement of the Court of Appeal in R v Taylor (Gary) The Times, 17 August 1994 that the accused has a fundamental right to see and know the identity of his accusers save in rare and exceptional circumstances and its statement of the factors which the judge should balance in the exercise of his discretion, some of which point to the preservation of the anonymity of a witness. The later judgments in R v X 91 CrAppR 36 and Ex p Lenman [1993] CrimLR 388 lay emphasis on the magistrate or judge having to strike a balance of fairness between the prosecution and the accused, in which process the importance of the accused knowing the identity of his accuser is a factor of great weight, but I think that in some cases the balance of fairness may come down in favour of the prosecution notwithstanding that the circumstances could not be described as rare and exceptional. However in the case of a trial, as opposed to committal proceedings, account must now be taken of the Strasbourg jurisprudence relating to article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms.

87 The applicants also submitted that the admission of the evidence of the anonymous witness CS/1 was in breach of article 6(3)(d) of the European Convention which provides that anyone charged with a criminal offence has the right to examine or have examined witnesses against him. The applicants recognised that they faced the difficulty that there is no provision for cross-examination in committal proceedings on an application for extradition, but they submitted that their inability to cross-examine made it important that the defence should not be deprived of information as to the identity of a witness when knowledge of his identity might enable them to demonstrate that his evidence was unreliable because he was actuated by malice or hostility. In my opinion the two Administrative Courts were right to reject this argument as it is clear from the decision of the European Commission of Human Rights in Kirkwood v United Kingdom (1984) 37 DR 158 that the provisions of article 6 do not apply to a committal hearing on an application for extradition, the Commission stating, at p 191, para 9 of its decision: http://uniset.ca/other/cs5/al-fawwaz.html Page 21 of 42 R. (Al-Fawwaz) v. Governor of Brixton Prisonn 18/11/16 09:47 am

“Nevertheless, the Commission concludes that these proceedings did not in themselves form part of the determination of the applicant’s guilt or innocence, which will be the subject of separate proceedings in the United States which may be expected to conform to standards of fairness equivalent to the requirements of article 6, including the presumption of innocence, notwithstanding the committal proceedings. In these circumstances the Commission concludes that the committal proceedings did not form part of or constitute the determination of a criminal charge within the meaning of article 6 of the Convention.” [*590]

88 The applicants further submitted that even if they could not rely on article 6, they were entitled to claim that the admission of the evidence of witness CS/1 was in breach of their right under article 5(4) of the Convention to take proceedings for a speedy decision of the lawfulness of their detention. In my opinion the Administrative Courts were also right to reject this submission. I consider that at the committal proceedings the applicants were able to challenge the lawfulness of their detention, and as they cannot rely on article 6 in respect of that hearing they cannot claim the rights given by article 6 by relying on article 5(4)

The sufficiency of the evidence

89 The test for the magistrate to apply to the sufficiency of the evidence before him is that set out in paragraph 7(1) of Schedule 1 to the 1989 Act—whether the evidence produced would make a case requiring an answer by the prisoner at a trial. Counsel for Mr Al-Fawwaz accepted that if it was proper for the magistrate to admit the evidence of CS/1 this test was satisfied in his case. However in his evidence CS/l did not refer to either Mr Abdel Bary or Mr Eidarous by name and counsel for these two applicants submitted that the evidence against them was insufficient for the magistrate to commit. This submission was considered in the judgment of the Administrative Court delivered by Kennedy LJ. As he observed, citing the judgment of Lloyd LJ in R v United States Government, Ex p Blair The Times, 21 June 1985, the question for the High Court to decide is not whether the evidence constitutes a case to answer but whether a reasonable magistrate, directing himself properly and in accordance with the law, could take that view. This question was carefully considered by Kennedy LJ who outlined in his judgment, in paragraphs 17 to 30, the various strands of evidence and concluded that the facts as a whole were capable of enabling a court to come to the conclusion that each defendant was guilty of the proposed charge. In my opinion the Administrative Court was fully entitled to come to this decision.

90 The two applicants further submitted that the decision of the magistrate to commit was flawed because he failed to give reasons for his decision and this submission was rejected by the Administrative Court. In Rey v Government of Switzerland [1999] 1 AC 54, 66-67 Lord Steyn, in delivering the judgment of the Privy Council, said:

“Despite a growing practice in England of stipendiary magistrates to give reasons in extradition proceedings it has not been held that magistrates are under a legal duty to do so. And the legal position in England is perhaps justified by the right of the fugitive to apply for habeas corpus to the Divisional Court if the decision of the stipendiary magistrate goes against him: see section 11 of the Extradition Act 1989 … In these circumstances their Lordships are not prepared to hold that there is a general implied duty upon magistrates to give reasons in respect of all disputed issues of fact and law in extradition proceedings. But their Lordships must enter a cautionary note: it is unnecessary in the present case to consider whether in the great diversity of cases which come before magistrates in extradition proceedings the principle of fairness may in particular circumstances require a magistrate to give reasons.” [*591]

91 Counsel for the applicant submitted that in the particular circumstance of this case fairness required the magistrate to give reasons. In fact the magistrate did give some http://uniset.ca/other/cs5/al-fawwaz.html Page 22 of 42 R. (Al-Fawwaz) v. Governor of Brixton Prisonn 18/11/16 09:47 am

reasons. He said in the course of delivering his decision and referring to two faxes claiming responsibility for the Nairobi bombing and the Tanzania bombing:

“Nevertheless, I am satisfied that a jury, properly directed, could conclude, on the totality of the evidence that the claims were sent before the bombings. Similarly a jury couldconclude, regardless of whether they conclude the claims were sent before or after the bombings, that they were genuine. Similarly a jury could conclude that both defendants played a part in the dissemination of the claims to the international media. Further, a jury could conclude that bin Laden was the moving force behind the bombings and played a central part in the conspiracy to cause the explosions.

“I have carefully re-read all the defence written submissions and my notes and considered those matters afresh. It does not seem to me to be either sensible or desirable that I should deal with each point in turn. Any review of my decision would necessitate those conducting the review to come to their own conclusion on whether there is a case to answer, rather than deciding whether or not there are flaws in my approach or reasoning. I am satisfied that the facts taken as a whole are capable of enabling this court (or a jury properly directed) to come to the conclusion that the only reasonable inference to be drawn from them is that each defendant is guilty of the proposed charge. Thus each has a case to answer.”

However counsel submitted that these reasons were inadequate.

92 In a case where there was such a mass of material and where the issue was whether a reasonable jury could draw the inference from that material that the prisoners were parties to the conspiracy alleged, striking a balance between stating his reasons briefly and over elaboration presented the magistrate with a task of some difficulty. Kennedy LJ said, in paragraph 40 of his judgment, that he would have found it helpful if the magistrate had given more detailed reasons, but he rejected the submission that his reasons were inadequate and he stated, at paragraph 41, of his judgment:

“The magistrate did explain his approach, and it can be said that he was being realistic. Even if he had attempted to explain in more detail the case which he decided required an answer it is overwhelmingly likely that we would have still been required to carry out the exercise performed in this court. Accordingly I do not accept that in law his reasons were inadequate, and even if I were able to accept that submission I cannot see that it would afford any basis for relief given that, in reality, in my judgment there were good reasons for the magistrate deciding as he did.”

I consider that Kennedy LJ was right so to hold.

93 Accordingly for the reasons which I have given I would dismiss the three appeals. I would add that the matters referred to by my noble and learned friend Lord Scott of Foscote in paragraph 121 of his speech were not referred to in argument before the House and I express no opinion in relation to them. [*592]

LORD MILLETT

94 My Lords, the double criminality rule lies at the heart of our law of extradition. It is a precondition of extradition that the offence for which extradition may be ordered should be within the criminal jurisdiction of both the requesting and the requested state. The question for decision in the present case is whether this means the territorial jurisdiction of the states concerned or embraces their extraterritorial jurisdiction also.

95 In considering this question it is important to bear the objects of the double criminality http://uniset.ca/other/cs5/al-fawwaz.html Page 23 of 42 R. (Al-Fawwaz) v. Governor of Brixton Prisonn 18/11/16 09:47 am

rule in mind, for its two requirements serve different purposes. The first requirement, that the offence for which extradition is ordered should be within the jurisdiction of the requesting state, serves a purely practical purpose. There is no point in extraditing a person for an offence for which the requesting state cannot try him. The second requirement, that the offence should also be within our own criminal jurisdiction, serves to protect the accused from the exercise of an exorbitant foreign jurisdiction. Views as to what constitutes an exorbitant jurisdiction naturally differ; the test adopted by our own law has been to accord to other countries the jurisdiction which we claim ourselves but no more. As my noble and learned friend Lord Rodger of Earlsferry has observed, this is not the only means of protection given by our system of extradition, for the exercise of an exorbitant foreign jurisdiction may be forestalled by executive action. But it is the only measure of judicial control which the law provides for this purpose.

96 The first requirement is given effect by the definition of “fugitive criminal” in paragraph 20 of Schedule 1 to the Extradition Act 1989; the second by the definition of “extradition crime” (where as in the present case the relevant Order in Council was made before the coming into force of the 1989 Act) in section 26 of the Extradition Act 1870.

97 The magistrate’s power to commit a person to prison to await extradition is contained in paragraph 7 of Schedule 1 to the 1989 Act as amended. This provides:

“(2) In the case of a fugitive criminal alleged to have been convicted of an extradition crime, if such evidence is produced as (subject to the provisions of this Schedule) would, according to the law of England and Wales, prove that the prisoner was convicted of such crime, the metropolitan magistrate shall commit him to prison, but otherwise shall order him to be discharged.”

98 Thus the magistrate must satisfy himself not only that the foreign warrant is duly authenticated but also (1) that the accused is “a fugitive criminal” (2) who is accused or has been convicted of “an extradition crime” and (3) that the evidence would according to our own law make a case requiring an answer if the proceedings were for trial here. [*593]

Fugitive criminal

99 “Fugitive criminal” is defined as follows: “‘fugitive criminal’ means any person accused or convicted of an extradition crime committed within the jurisdiction of any foreign state who is in or is suspected of being in some part of Her Majesty’s dominions.”

100 Two points deserve particular attention. First, in order to found his jurisdiction in an accusation case the magistrate must satisfy himself only that the person brought before him is accused of an extradition crime committed within the jurisdiction of the requesting state; for this limited purpose he is not required to satisfy himself that the accusation is well founded. Accordingly he will ordinarily need to look no further than the allegations in the indictment and the supporting documentation. Secondly, the requirement that the offence in question should constitute an extradition crime committed within the jurisdiction of the requesting state applies equally to both accusation and conviction cases. Accordingly the expression “the jurisdiction of” the requesting state must bear a meaning which is capable of accommodating both kinds of case. http://uniset.ca/other/cs5/al-fawwaz.html Page 24 of 42 R. (Al-Fawwaz) v. Governor of Brixton Prisonn 18/11/16 09:47 am

101 The question for decision is whether these words refer to the territorial jurisdiction of the requesting state over crimes committed within its own territory (expansively defined to include for example its ships or colonies) or whether they also embrace its extraterritorial jurisdiction, however wide this may be.

102 I have no doubt that the latter interpretation is correct. My reasons are as follows.

(1) As I have already explained, it is not the function of this branch of the double criminality rule to protect the accused from the exercise of an exorbitant foreign jurisdiction. That is adequately catered for by the other branch of the rule and by other means.

(2) As a matter of ordinary language, the “jurisdiction of a state” in the criminal context simply means its power to try an offender for an alleged offence, and includes both its territorial and extraterritorial jurisdiction. The meaning of the expression may, of course, be controlled by its context, as when we speak of “leaving the jurisdiction”; but there is no controlling context here.

(3) Although the general rule is that “The jurisdiction over the crime belongs to the country where the crime is committed” (see Macleod v Attorney General for New South Wales [1891] AC 455, 458 per Lord Halsbury LC) most countries exercise some degree of extraterritorial jurisdiction and were doing so well before 1870. The English courts have for centuries claimed jurisdiction to try British subjects for murder committed abroad; most civil law countries exercise a similar jurisdiction based on the nationality of the victim rather than that of the accused.

(4) There is high authority for and sound sense in the proposition that extradition treaties should not be construed in a way which would “hinder the working and narrow the operation of most salutary international arrangements” see R v Governor of Ashford Remand Centre, Ex p Postlethwaite [1988] AC 924, 947 per Lord Bridge of Harwich. This is even more the case in today’s global village where national borders are no impediment to international terrorists and other criminals.

(5) The Extradition Act is an enabling Act. It applies not only to existing treaties but also to future treaties yet to be entered into. These may, of [*594] course, place further restrictions on the powers of the English Courts to order extradition but they may not extend them beyond those conferred by the Act. Such an Act should be given a wide construction in order not to fetter the power of the executive to enter into future treaties in future in whatever terms may be considered appropriate.

(6) The Act would be unworkable in some conviction cases if the magistrate had to be satisfied that the crime had been committed within the territorial jurisdiction of the requesting state. For this purpose, he should look no further than the conviction itself, yet this may not provide an answer.

103 While the other reasons are sufficient in themselves to indicate the correct interpretation of the word “jurisdiction”, I regard this last as conclusive. Take this very case, where the applicants are accused of conspiring to murder American citizens in the United States and abroad. The conspiracy is alleged to have been entered into and all the victims to have been murdered outside the United States. Very few overt acts are alleged to have taken place within the United States, and they may not be proved. The United States does not claim extraterritorial jurisdiction to try cases of murder on the basis of the nationality of the victims, yet it is conceded that the offences of which the applicants are accused are within its extraterritorial jurisdiction. Suppose the applicants had been convicted of the charges by a United States court and had escaped to the United Kingdom, so that it was a conviction and not an accusation case. The magistrate would look at the http://uniset.ca/other/cs5/al-fawwaz.html Page 25 of 42 R. (Al-Fawwaz) v. Governor of Brixton Prisonn 18/11/16 09:47 am

certificate of conviction in order to decide whether the offences of which they had been convicted were “committed within the jurisdiction of the United States”. He would observe that the applicants had been found guilty of the offence of conspiracy and that it was alleged that some of the overt acts had taken place in the United States. But he would also observe from the summing up that the judge had instructed the jury that the offence was one over which the United States had extraterritorial jurisdiction and did not depend on the commission of any overt acts within its territory; so that they could convict even if they were not satisfied that any such acts had in fact taken place. In such a case it would be impossible to discover from the verdict or otherwise whether the jury had or had not been satisfied that overt acts had been committed in the United States as alleged. In these circumstances the magistrate would have no way of telling whether the accused had been convicted of an offence within the territorial jurisdiction of the United States or not.

Extradition crime

104 “Extradition crime” is defined as follows: “The term ‘extradition crime’ means a crime which, if committed in England or within English jurisdiction, would be one of the crimes described in Schedule 1 to this Act.”

105 The same question arises here: whether the words “within English jurisdiction” mean within our territorial jurisdiction or whether they extend to our extraterritorial jurisdiction. I have no doubt that the latter interpretation is correct. My reasons are as follows.

(1) The contradistinction between “in England” and “within English jurisdiction” points strongly in favour of the wider interpretation. It is not in itself conclusive, since the latter expression could be intended merely to [*595] bring in British ships and colonies. But why stop there, when the English criminal jurisdiction has always been wider than this?

(2) The only reason for distinguishing between one kind of jurisdiction and another is the need to protect the accused from the exercise of an exorbitant foreign jurisdiction. But there is no justification for classifying as exorbitant a jurisdiction which, mutatis mutandis, we claim ourselves. The thinking behind this part of the definition is that we should not extradite for an offence which, in the corresponding circumstances, we could not try ourselves.

(3) The policy which underlies the law of extradition is that a criminal should not escape trial and punishment by leaving one country and going to another. If the offence with which he is charged or of which he has been convicted is also an offence triable in the country to which he has fled, he should be returned for trial or punishment to the country from which he came.

(4) In Liangsiriprasert (Somchai) v Government of the United States of America [1991] 1 AC 225 the Privy Council rejected a submission that a conspiracy entered into abroad is not a crime at common law unless some overt act takes place in the territory of the forum, in that case Hong Kong. It was sufficient that the conspiracy was aimed at Hong Kong. Although the point was not argued by counsel, who agreed that the principles of extradition were not in dispute and that the offences in question were extradition crimes, it was clearly assumed that the words “or within English jurisdiction” are not limited to English territorial jurisdiction. The case has, in my view rightly, been taken as clear authority for that proposition in the leading textbook on the subject: see Jones on Extradition(1995), p 88.

(5) The list of extradition crimes contained in the Schedule includes piracy jure gentium. This is an offence which can only be committed on the high seas and (unlike municipal piracy) on a foreign ship. Accordingly it cannot be committed in England or within the territorial jurisdiction of the English courts.

106 I regard this last point as conclusive. http://uniset.ca/other/cs5/al-fawwaz.html Page 26 of 42 R. (Al-Fawwaz) v. Governor of Brixton Prisonn 18/11/16 09:47 am

107 Crimes which are the natural subject of extradition proceedings are almost invariably committed abroad and as such are usually outside the jurisdiction of the English courts, however widely that expression may be construed. So the conduct which constitutes an extradition crime does not consist of acts which actually were committed in England or within English jurisdiction, but rather conduct which would constitute a crime under English law if the acts in question were so committed. The test, therefore, is a hypothetical one, which calls for some degree of transposition.

108 In R v Governor of Pentonville Prison, Ex p Tarling (1978) 70 CrAppR 77 Lord Keith of Kinkel stated, at p 136:

“In considering the jurisdiction aspect it is necessary to suppose that England is substituted for Singapore as regards all the circumstances of the case connected with the latter country, and to examine the question whether upon that hypothesis and upon the evidence adduced the English courts would have jurisdiction to try the offences charged.”

This guidance was followed by the Divisional Court in R v Governor of Pentonville Prison, Ex p Osman [1990] 1 WLR 277. Lloyd LJ explained that only the acts which took place in the requesting state (Hong Kong) were [*596] to be treated as having taken place in England. All else remained as it in fact happened.

109 For my own part, and subject to one point which I will mention in a moment, I think that this is the correct way to effect the transposition. The principle at work is mutatis mutandis. Given that the court is concerned with an extradition case, the crime will not have been committed in England but (normally) in the requesting state. So the test is applied by substituting England for the requesting state wherever the name of the requesting state appears in the indictment. But no more should be changed than is necessary to give effect to the fact that the court is dealing with an extradition case and not a domestic one. The word “mutandis” is an essential element in the concept; the court should not hypothesise more than necessary.

110 The one point to which I would draw attention is that it is not sufficient to substitute England for the territory of the requesting state wherever that is mentioned in the indictment. It is necessary to effect an appropriate substitution for every circumstance connected with the requesting state on which the jurisdiction is founded. In the present case the applicants are accused, not merely of conspiring to murder persons abroad (who happened to be Americans), but of conspiring to murder persons unknown because they were Americans. In political terms, what is alleged is a conspiracy entered into abroad to wage war on the United States by killing its citizens, including its diplomats and other internationally protected persons, at home and abroad. Translating this into legal terms and transposing it for the purpose of seeing whether such conduct would constitute a crime “in England or within English jurisdiction”, the charges must be considered as if they alleged a conspiracy entered into abroad to kill British subjects, including internationally protected persons, at home or abroad. Such a conspiracy would constitute a criminal offence within the extraterritorial jurisdiction of our courts.

111 I should not, however, wish it to be thought that the inclusion of internationally protected persons among the potential victims is necessary to found the jurisdiction. A conspiracy formed outside the jurisdiction to commit a crime in England is triable in England even though no overt act in furtherance of the conspiracy is committed in England: see the Liangsiriprasert case [1991] 1 AC 225, 250 Lord Griffiths pointed out that the inchoate crimes of conspiracy, attempt and incitement developed with the principal object of frustrating the commission of a contemplated crime by arresting and punishing the offenders before they committed the crime, and asked:

http://uniset.ca/other/cs5/al-fawwaz.html Page 27 of 42 R. (Al-Fawwaz) v. Governor of Brixton Prisonn 18/11/16 09:47 am

“If the inchoate crime is aimed at England with the consequent injury to English society why should the English courts not accept jurisdiction to try it if the authorities can lay hands on the offenders, either because they come within the jurisdiction or through extradition procedures? If evidence is obtained that a terrorist cell operating abroad is planning a bombing campaign in London what sense can there be in the authorities holding their hand and not acting until the cell comes to England to plant the bombs, with the risk that the terrorists may slip through the net? Extradition should be sought before they have a chance to put their plan into action and they should be tried for conspiracy or the attempt as the case may be. Furthermore, if one of the conspirators should chance to [*597] come to England, for whatever purpose, he should be liable to arrest and trial for the criminal agreement he has entered into abroad.”

112 When Lord Griffiths referred to a conspiracy “aimed at England” he was clearly thinking of a conspiracy to commit a crime in England. If a conspiracy to plant bombs in England would be triable in England even though it was entirely inchoate and no bombs had yet been planted anywhere, a conspiracy to plant bombs in England and abroad where some bombs had already been planted abroad would be a fortiori. This is sufficient to uphold the jurisdiction in the present case, since a conspiracy to murder British subjects because they were British and for no other reason must be a conspiracy to murder them wherever they might be found, whether in England or elsewhere; and such a conspiracy is (inter alia) a conspiracy to commit a crime in England. Moreover, while the point does not strictly arise for decision in the present case, I do not think that a definition of the offence which requires the prosecution to prove an intent to murder British subjects in England as opposed to elsewhere is either sensible or likely to prove to be stable. In my opinion, a conspiracy to plant bombs in British owned properties abroad and kill British subjects wherever they may be ought not to be the less triable in England because the conspirators do not plan to carry out their murderous campaign in England itself.

Sufficiency of the evidence

113 The final matter which the magistrate is required to consider is whether the evidence is sufficient to make a case requiring an answer if the proceedings were for trial in England or Wales. This involves another hypothesis, but solely for the purpose of testing the sufficiency of the prosecution evidence. The magistrate is to consider this as if the proceedings were a purely domestic case. No transposition of facts and no feats of imagination are called for.

Conclusion

114 Subject to the foregoing and in all other respects I am in full agreement with the speeches of my noble and learned friends, Lord Hutton and Lord Rodger of Earlsferry. Like them, I would dismiss all three appeals.

LORD SCOTT OF FOSCOTE

115 My Lords, I have had the advantage of reading in advance the opinions on these appeals given by my noble and learned friends, Lord Slynn of Hadley, Lord Hutton, Lord Millett and Lord Rodger of Earlsferry. I am in agreement with them and propose simply to add a few comments of my own.

116 The purpose of extradition arrangements made between this country and other states is, in my view, twofold. First there is the desire that malefactors should not be able to escape the criminal justice consequences of their misdeeds by sheltering in a country other than that against whose laws they have offended. The comments of Cockburn CJ in In re Tivnan (1864) 5 B&S 645, 678 and of Lord Bridge of Harwich in R v Governor of Ashford Remand Centre, Ex p Postlethwaite [1988] AC 924, 947, cited by Lord Hutton in his opinion, are very much in point. But alleged malefactors who are present in this country, http://uniset.ca/other/cs5/al-fawwaz.html Page 28 of 42 R. (Al-Fawwaz) v. Governor of Brixton Prisonn 18/11/16 09:47 am

whether as permanent residents, as refugees or [*598] asylum seekers, or as visitors, are entitled, while they are here, to the protection of our laws and our standards of criminal justice. They should not be exported abroad to face trial under a foreign criminal justice system unless, by our standards, there is a case against them that is fit for trial, and unless, by our standards, they will receive a fair trial in accordance with the requirements of article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. The second purpose of extradition arrangements is, or should be, to provide the requisite safeguards.

117 In paragraph 55 of his opinion, Lord Hutton has posed two questions. First, are the applicants “fugitive criminals” and, second, is the crime alleged against them an “extradition crime”? The answer to the questions depends upon the scope to be given to the references to “jurisdiction” in the statutory definitions and other provisions which bear upon the meaning of these expressions. I am in complete agreement with the answers and the reasons for the answers given by my noble and learned friends. If a narrow meaning had to be attributed to “jurisdiction”, the extradition arrangements between this country and the United States, and indeed all extradition arrangements to which Schedule 1 to the 1989 Act applied, would fall short of properly achieving the first of the two purposes to which I have referred.

118 There are several aspects of the extradition arrangements applicable under Schedule 1 to the 1989 Act that are relevant to the second purpose.

119 There is the double criminality rule. No one is to be extradited unless the offence he is alleged to have committed would, if it had been committed in England “or within English jurisdiction”, have been an offence for which he could be tried under English law. It has been accepted in the argument before the House that if “jurisdiction” is given the wide meaning for which the respondents contend and that your Lordships have accepted, there would have been extraterritorial jurisdiction under English law over the alleged offence.

120 A further safeguard for the fugitive criminal against whom extradition is sought is that the evidence relied on in support of the extra-dition request must be sufficient by the standards of English law to justify his committal for trial or to produce a case to answer (paragraph 7(1) of Schedule 1 to the 1989 Act) (article IX of the 1972 Treaty). As to this, I agree with my noble and learned friends that in relation to each of the applicants the test is satisfied.

121 Paragraph 8 of Schedule 1 contains the final safeguard for the fugitive criminal whose extradition is being sought. He will not be extradited unless the Secretary of State decides, as a matter of discretion, to order that the extradition may proceed. It has become the settled practice, as I understand it, for the Secretary of State, in a case where the law of the extraditing state might subject the extradited prisoner on conviction to the death penalty, to require a guarantee that a death sentence will not be imposed: see Soering v United Kingdom (1989) 11 EHRR 439. But there is, in the circumstances of the present cases, a further matter of concern. The media have, over the past few weeks, carried reports of the intention of the President of the United States, acting under emergency executive powers, to establish military tribunals to try non-United States citizens who are accused [*599] of terrorist offences. The offences with which these applicants are charged might well fall within the category of offences proposed to be dealt with by military tribunals. It is reported that the proposed military tribunals will be presided over by military personnel, not judges, will be able to admit evidence that would not ordinarily be admissible before a criminal court of law and will be able to conduct the trial behind closed doors. The charges against the applicants that have led to the extradition requests were laid before the United States District Court for the Southern District of New York. If the applicants are to be extradited I imagine that they will be tried before that court or some other Federal Court and not before a military tribunal that will not need to sit in public and http://uniset.ca/other/cs5/al-fawwaz.html Page 29 of 42 R. (Al-Fawwaz) v. Governor of Brixton Prisonn 18/11/16 09:47 am

that need not observe the rules of evidence.

122 I agree that these appeals should be dismissed.

LORD RODGER OF EARLSFERRY

123 My Lords, I gratefully adopt the summary of the facts and issues given in the speech of my noble and learned friend Lord Slynn of Hadley.

124 The appeals arise out of applications for habeas corpus in relation to requisitions by the United States for the extradition of the applicants. Extradition between the United Kingdom and the United States is regulated by a treaty signed between the two countries in 1972 and given effect in our law by The United States of America (Extradition) Order 1976, an Order in Council made by Her Majesty under section 2 of the Extradition Act 1870. Article 3 of the Order provides that the Extradition Acts 1870 to 1935, as amended or extended by any subsequent enactment, are to apply in the case of the United States in accordance with the 1972 Treaty. This means that our domestic legislation regulating extradition has effect in relation to the United States, but “subject to the limitations, restrictions, conditions, exceptions, and qualifications, if any, contained in the Order” (section 5 of the 1870 Act). In other words the Order may limit but cannot extend the scope of the extradition legislation. When the Order was made, the relevant domestic legislation comprised the Extradition Acts 1870 to 1935, but by virtue of section 1(3) of the Extradition Act 1989 it is now contained in Schedule 1 to that Act. So in the absence of any relevant qualification in the treaty—and none was suggested in argument—the law governing the extradition of the applicants is to be found in Schedule 1 to the 1989 Act.

125 The entire scheme of Schedule 1 is built around the concept of the “fugitive criminal”. He is the key figure. So, for instance, under paragraph 3 every “fugitive criminal” of a relevant state—but no one else—is liable to be apprehended and surrendered. Similarly, under paragraph 4(1) the foreign state presents a requisition for the surrender of a “fugitive criminal” and under paragraph 4(2) the Secretary of State may require the metropolitan magistrate to issue his warrant for the apprehension of the “fugitive criminal”. If, eventually, the process ends in the magistrate making an order for his committal, under paragraph 8(2) the Secretary of State orders the “fugitive criminal” to be surrendered and he is handed over to the representative of the requesting state.

126 Paragraph 20 shows who is to be regarded as a “fugitive criminal” for these purposes:

“‘fugitive criminal’ means any person accused or convicted of an extradition crime committed within the jurisdiction of any foreign state [*600] who is in or is suspected of being in some part of Her Majesty’s dominions; ‘fugitive criminal of a foreign state’ means a fugitive criminal accused or convicted of an extradition crime committed within the jurisdiction of that state.”

These definitions are not free-standing: they cannot be understood unless one first knows what constitutes an “extradition crime”. To discover that, one has to look at another definition in paragraph 20:

This in turn sends the reader back to the Order in Council as it had effect immediately before the 1989 Act came into force on 27 September 1989. For present purposes the relevant Order in Council gives effect to the 1972 treaty between the United Kingdom and the United States, article III(1)(b) of which provides: http://uniset.ca/other/cs5/al-fawwaz.html Page 30 of 42 R. (Al-Fawwaz) v. Governor of Brixton Prisonn 18/11/16 09:47 am

“Extradition shall be granted for an act or omission the facts of which disclose an offence within any of the descriptions listed in the Schedule annexed to this treaty, which is an integral part of the treaty, or any other offence, if … (b) the offence is extraditable under the relevant law, being the law of the United Kingdom or other territory to which this treaty applies by virtue of sub-paragraph (1)(a) of article II …”

In the case of proceedings such as these, involving the United States, the question whether a crime is an extradition crime must therefore be decided by considering whether it would have been an extradition crime under the 1870 Act and under the treaty, as they stood immediately before the 1989 Act came into force. In other words, it depends on whether the crime was an “extradition crime” in terms of section 26 of the 1870 Act. That section provided: “The term ‘extradition crime’ means a crime which, if committed in England or within English jurisdiction, would be one of the crimes described in Schedule 1 to this Act.”

127 At the end of the legislative paper-chase the position is this. The extradition process under Schedule 1 to the 1989 Act applies only to fugitive criminals as defined in paragraph 20 of that Schedule. So defined, they are people who have been accused or convicted (a) of committing an extradition crime, as defined in section 26 of the 1870 Act, and (b) of committing that crime “within the jurisdiction” of the requesting state. Since these appeals concern persons accused rather than convicted of crime, for ease of exposition I shall simply consider the legislation as it applies in such cases. In turning to look at the course of events in extradition proceedings, I do so against the background of the classic account by Lord Diplock in his speeches in R v Governor of Pentonville Prison, Ex p Sotiriadis [1975] AC 1 and In re Nielsen [1984] AC 606.

128 Schedule 1 to the 1989 Act is the source of the Secretary of State’s powers to deal with a requisition for the surrender of an individual. Under paragraph 4(2) he can issue an order for the arrest of the person concerned only if he is satisfied both that the person is accused of an extradition crime and that the crime is alleged to have been committed within the jurisdiction [*601] of the requesting state. If the Secretary of State is not so satisfied, then the process can go no further unless and until he is provided with additional information which does satisfy him on these points. If, on the other hand, the Secretary of State is so satisfied, he may issue an order for the apprehension of the fugitive criminal. On receipt of the order to proceed the magistrate must issue an arrest warrant if he is presented with such evidence as would, in his opinion, justify the issue of such a warrant if the crime specified in the order had been committed in England or Wales.

129 When the arrest warrant is executed and the individual is brought before the magistrate, the magistrate may commit him to prison or order his discharge. Paragraph 7(1), as amended, tells the magistrate what he is to do:

“In the case of a fugitive criminal accused of an extradition crime, if the foreign warrant authorising the arrest of such criminal is duly authenticated, and such evidence is produced as (subject to the provisions of this Schedule) would, according to the law of England and Wales, make a case requiring an answer by the prisoner if the proceedings were for the trial in England and Wales of an information for the crime …”

The functions of the magistrate are simply those set out in paragraph 7(1), except that the magistrate is also to receive any evidence tendered to show that the alleged crime is of a political character (paragraph 6(2)). The magistrate must look to see if the foreign warrant is duly authenticated. In the case of an American extradition, the authentication formalities are to be found in article VII(5) of the treaty. If the magistrate is satisfied on that point, the other matter which he has to consider under paragraph 7(1) is whether such evidence of the extradition crime has been produced as would make a case requiring an answer if http://uniset.ca/other/cs5/al-fawwaz.html Page 31 of 42 R. (Al-Fawwaz) v. Governor of Brixton Prisonn 18/11/16 09:47 am

the proceedings were for trial in England and Wales of an information for the crime specified in the order to proceed. If he is satisfied on this point, the magistrate commits the fugitive criminal to prison; otherwise, he orders his discharge.

130 Given the scheme of the legislation, it is helpful to keep distinct the issues which the Secretary of State must consider and the issues which are for the magistrate. Their roles are different. If need be, however, the proceedings may be reviewed by the Administrative Court in the application for habeas corpus which is specifically envisaged in paragraph 8(1) of the Schedule.

131 Counsel for the applicants argued that the magistrate has to consider whether the individual is “a fugitive criminal accused of an extradition crime” since his jurisdiction under paragraph 7(1) depends on that being the position. The suggestion was that, in a case like the present, this would involve the magistrate in hearing evidence and, on that basis, deciding where the crime had been committed so that he could determine whether it had been committed within the (territorial) jurisdiction of the requesting state. In reality this submission was tied to the applicants’ principal submission that the only relevant jurisdiction of a requesting state is its territorial jurisdiction. At this stage I simply observe that I am satisfied that Parliament did not envisage that the magistrate would need to hear evidence in regard to his jurisdiction. A dispute as to whether the crime specified in the order to proceed is an extradition crime will generally be legal rather than factual. The nature of the jurisdiction upon which the requesting state founds will appear, if not from the arrest warrant issued by [*602] the authorities in the requesting state, at least from the supporting affidavits and other documents. On neither issue is the magistrate likely to need to look beyond these documents.

132 In the present proceedings the contention for the applicants is that the conspiracy alleged against them was not committed “within the jurisdiction” of the United States. In other words, their contention is that they are not “fugitive criminals” in terms of paragraph 20 of Schedule 1 to the 1989 Act. If they are correct in that contention, then none of the provisions in Schedule 1 applies to them and the magistrate’s warrants for their committal will have to be quashed.

133 The applicants’ contention depends in the first place on the construction of the phrase “within the jurisdiction” in the definition of “fugitive criminal” in paragraph 20. Most routine extradition cases will involve offences committed in the territory of the requesting state. In such cases the jurisdiction element in the definition of a fugitive criminal will be uncontentious. Of course, as the applicants accept, in many states, especially nowadays, criminal jurisdiction is not limited to crimes committed within the territory of the state. They contend, however, that those accused of committing crimes outside the territory of the requesting state are not “fugitive criminals” because the crime was not committed “within the (territorial) jurisdiction” of the requesting state. Those accused of such crimes are therefore immune to extradition.

134 On that approach the applicants in these cases who, it appears, have never set foot in the United States, would not count as “fugitive criminals” and so would fall outside the entire extradition scheme in Schedule 1 to the 1989 Act, unless something had been done in pursuit of the conspiracy within the United States. Only in that way would their alleged crime of conspiracy to murder have been committed within the United States and so only in that way would the applicants fall within Schedule 1 as “fugitive criminals”.

135 The contention for the applicants was accepted by the Administrative Court in the case involving Al-Fawwaz [2001] 1 WLR 1234. In the words of Buxton LJ, at p 1243, para 32, to constitute an extradition crime, the offence

“has to be committed within the territory of the requesting state so that it would, as transposed, be committed within the territory of England and Wales. It is not http://uniset.ca/other/cs5/al-fawwaz.html Page 32 of 42 R. (Al-Fawwaz) v. Governor of Brixton Prisonn 18/11/16 09:47 am

enough that the latter crime would, as in Part III cases as recognised in Ex p Pinochet (No 3) [2000] 1 AC 147, be indictable under the extraterritorial jurisdiction of the United Kingdom. We also think that the concept of jurisdiction in article I of the treaty annexed to the United States of America (Extradition) Order 1976 is subject to the same limitation. Whether this is a sensible rule in a world of major international crime and of the regular passage of persons involved in such crime between different jurisdictions is no doubt not for us to say.”

In the proceedings against Eidarous and Abdel Bary the Administrative Court found it unnecessary to reconsider the point. The United States government have taken the opportunity of these appeals to challenge the decision of the Administrative Court on this point.

136 Plainly, Buxton LJ did not regard the rule which he stated as being sensible in today’s world where easy communications mean that schemes [*603] may readily be laid and plots hatched in one country with the aim of committing major crime in another country. Drug trafficking is only the most obvious example. Counsel for the applicants specifically acknowledged that modern circumstances might demand a different system which permitted extradition for crimes committed outside the territorial jurisdiction of the requesting state. The only trouble is, he said, that the system which we have in Schedule 1 to the 1989 Act is an old model, dating back to 1870, and it is not designed to operate in that way.

137 “Jurisdiction” is a word with a history in English stretching back some eight centuries. It can be used in a variety of contexts—not all of them legal—and with different shades of meaning. In this case we are concerned with “jurisdiction” in the definition of “fugitive criminal” in paragraph 20 of Schedule 1 to the 1989 Act where it refers to the jurisdiction of the requesting state, under its internal law, to regulate and punish conduct. Most of the conduct which states choose to regulate and punish is conduct occurring within their territory, including their ships and aircraft. But states may also choose to regulate and punish certain conduct which takes place outside their territory. For instance, the courts of England have for centuries had jurisdiction to try cases of murder allegedly committed by English and, later, British subjects anywhere in the world (R v Page [1954] 1 QB 170). More generally, civil law countries have traditionally exercised a wide jurisdiction to regulate and to punish within their own territory the conduct of their citizens while they are living or travelling abroad. In the past, at least, this extensive jurisdiction meant that such states were often reluctant to extradite their own nationals. During the course of the last century, as a result of various conventions, there was a great increase in the range of offences for which international law specifically permits, or even obliges, states to assert extraterritorial jurisdiction. The present case concerns an alleged conspiracy entered into abroad to murder American citizens in the United States and elsewhere. The applicants accept that, as a matter of the internal law of the United States, the American courts have jurisdiction to try that charge. Moreover, while the exact extent of the right of a state under international law to exercise jurisdiction over the acts of aliens committed abroad may be a matter for debate (Oppenheim’s International Law, vol 1, 9th ed (1992) (ed Jennings & Watts), para 139), no issue of that kind arises in these proceedings. The applicants’ contention is simply that “jurisdiction” in the relevant definition in paragraph 20 is to be interpreted as referring only to the requesting state’s territorial jurisdiction, with the result that our system of extradition applies only to criminals who have offended within the territorial, as opposed to any wider, jurisdiction of the requesting state.

138 Of course, even if “jurisdiction” in paragraph 20 includes all kinds of criminal jurisdiction, in practice most extradition requests will concern crimes committed within the territory of the requesting state and so falling within its territorial jurisdiction. Not surprisingly, therefore, in some extradition treaties the states agreed to surrender people accused of crimes committed within the “territory” of the requesting state. That was the language used, for example, in the first article of the extradition treaty with France of 14 http://uniset.ca/other/cs5/al-fawwaz.html Page 33 of 42 R. (Al-Fawwaz) v. Governor of Brixton Prisonn 18/11/16 09:47 am

August 1876, given effect by an Order in Council of 16 May 1878 under section 2 of the 1870 Act. The same applied in the case of the treaty with Norway which was given effect by a similar Order in Council of [*604]

30 September 1873. In each case, however, the treaty went on to provide for the surrender of those accused of various crimes committed on the high seas. The scope of the term “territory” in the Norwegian treaty came before the Divisional Court for decision in R v Governor of Brixton Prison, Ex p Minervini [1959] 1 QB 155. Because the treaty covered the crimes on the high seas, Lord Parker CJ held, at p 162G-H, that “territory” in the first article was not being used in its strict sense but as an equivalent to “jurisdiction”. Similarly, when considering the term “jurisdiction” in the definition of “fugitive criminal” in paragraph 20, the courts must interpret it in such a way that it is apt to cover all the types of crime for which Parliament intended that a fugitive criminal could be extradited under Schedule 1 to the 1989 Act.

139 Embedded within the definition of “fugitive criminal” in paragraph 20 is another concept, “extradition crime”, which is defined in the same paragraph. The first distinctive characteristic of a “fugitive criminal” is indeed that he is alleged to have committed an extradition crime. So the term “jurisdiction” must be sufficiently broad to cover all the kinds of jurisdiction which would be necessary to allow the criminal to be prosecuted by the requesting state for any of the crimes included in the term “extradition crime”.

140 According to the definition in section 26 of the 1870 Act, an extradition crime is one which, “if committed in England or within English jurisdiction”, would constitute one of the crimes listed in Schedule 1 to the 1870 Act (emphasis added). Here again we encounter the term “jurisdiction”. And here again the context provides the guide to the proper interpretation. It shows clearly that the word is not being used to refer to the territorial jurisdiction of the English courts. If given that narrow interpretation, the words “within English jurisdiction” would add nothing to the immediately preceding words “in England”. It is not difficult, however, to see that they were inserted for a sound practical reason. They were intended to bring within the scope of “extradition crime” conduct which, though it could not be committed in England, could none the less be committed within the jurisdiction of the English courts and would then amount to one of the crimes in Schedule 1 to the 1870 Act. As originally enacted, the Schedule contained 19 items. The crimes in the first 15 items relate to conduct which could be committed in England. The last four items, by contrast, concern conduct which, by its very nature, could not be committed in England —piracy by the law of nations, sinking or destroying a vessel at sea, assaults on board a ship on the high seas and revolt or conspiracy to revolt by two or more persons on board a ship on the high seas. The extended definition in section 26 was obviously designed to ensure that the term “extradition crime” would include conduct of this kind which would constitute an offence triable by the English courts and so would be within English jurisdiction, but which would be committed outside England. There would, of course, have been no point in including such crimes within the definition of “extradition crimes” if, for some other reason, a criminal who committed them could never be a “fugitive criminal” for purposes of extradition under the Act. The definition of fugitive criminal in paragraph 20 must therefore be wide enough to cover those who commit any of these four crimes on the high seas. [*605]

141 The term “jurisdiction” in the definition of a “fugitive criminal” has to be read as including the vessels of the requesting state (paragraph 19). So, in the case of three of the four crimes committed on the high seas, it may be argued that the requesting state’s jurisdiction would be founded on the fact that the crime was committed on, or in respect of, one of its vessels. On that basis the crime would be committed “within the jurisdiction” of the requesting state.

142 It is unnecessary to decide whether that is the proper approach to these items. What matters for present purposes is that the first of this group of extradition crimes is “piracy http://uniset.ca/other/cs5/al-fawwaz.html Page 34 of 42 R. (Al-Fawwaz) v. Governor of Brixton Prisonn 18/11/16 09:47 am

by law of nations”. The nature of the jurisdiction in such cases was described by Viscount Sankey LC when giving the advice of the Privy Council on a special reference in In re Piracy Jure Gentium [1934] AC 586, 589:

“With regard to crimes as defined by international law, that law has no means of trying or punishing them. The recognition of them as constituting crimes, and the trial and punishment of the criminals, are left to the municipal law of each country. But whereas according to international law the criminal jurisdiction of municipal law is ordinarily restricted to crimes committed on its terra firma or territorial waters or its own ships, and to crimes by its own nationals wherever committed, it is also recognised as extending to piracy committed on the high seas by any national on any ship, because a person guilty of such piracy has placed himself beyond the protection of any state. He is no longer a national, but ‘hostis humani generis’ and as such he is justiciable by any state anywhere: Grotius (1583-1645) ‘De Jure Belli ac PacisƠ, vol 2, cap 20, para 40.”

Since the jurisdiction over piracy by the law of nations is of this extensive nature, it follows that the term “jurisdiction” in the definition of “fugitive criminal” is not synonymous with “territorial jurisdiction”. On the contrary, it must be wide enough to cover even the extreme form of extraterritorial jurisdiction which is applied to this kind of piracy. In other words even piracy committed on the high seas must be a crime “committed within the jurisdiction” of the requesting state in terms of paragraph 20 of Schedule 1 to the 1989 Act. The same must have applied to the equivalent provision in the 1870 Act.

143 For this reason, I am respectfully unable to agree with the obiter observation of Lord Mackay of Clashfern in In re Rees [1986] AC 937, 955F-H, to the effect that, when passed, the 1870 Act dealt only with crimes committed within the territorial jurisdiction of the requesting state. Lord Mackay cites some words of Lord Reid in R v Governor of Brixton Prison, Ex p Schtraks [1964] AC 556, 579. That case concerned a request for the extradition of a man who was accused of various offences committed in a part of Jerusalem over which Israel asserted a sovereignty that the United Kingdom did not recognise. One relatively minor question in the appeal was whether in these circumstances the offences had been committed “within the territory” of Israel, as required by the terms of the extradition treaty between the United Kingdom and Israel. Lord Reid dealt with the issue shortly and, in the course of doing so, he observed that neither the 1870 Act nor the Order in Council embodying the extradition treaty with Israel was concerned with sovereignty: “they are concerned with territory in which [*606] territorial jurisdiction is exercised.” Lord Reid’s comment should be read in the context of the issue that he was deciding. He was rejecting the argument that the treaty would apply only where the requesting state exercised sovereignty over the place where the offence had been committed. In his view it was sufficient that the place was one over which the requesting state in fact exercised territorial jurisdiction. It would be wrong to transform this very particular comment into a general statement about the nature of jurisdiction under the 1870 Act. In any event, the observation was obiter, since the decision of the House was based essentiallyon their Lordships’ acceptance of the reasoning of Lord Parker CJ as to the interpretation of the term “territory” in thetreaty when the case was before the Divisional Court [1963] 1 QB 55, 74-75. In these circumstances I find nothing in In re Rees or Ex p Schtraks to displace the clear implication, as to jurisdiction, of the inclusion of piracy by the law of nations among the crimes for which criminals could be surrendered under the 1870 Act.

144 In the course of his submissions Mr Fitzgerald pointed to other paragraphs in Schedule 1 to the 1989 Act in which, he said, the phrase “within the jurisdiction” refers to the territorial, rather than to any wider, jurisdiction of the requesting state. For the sake of the argument I am prepared to assume that in some of the provisions this is a proper inference to draw from the context. But, precisely because the interpretation of a flexible term such as “jurisdiction” depends on the particular context in which it is used, other provisions cannot provide a reliable guide to its interpretation in the context of paragraph 20. That is http://uniset.ca/other/cs5/al-fawwaz.html Page 35 of 42 R. (Al-Fawwaz) v. Governor of Brixton Prisonn 18/11/16 09:47 am

particularly so where the context is utterly different—for example, the delivery of the fugitive criminal to the requesting state in paragraph 8 and the flight of an aircraft in paragraph 14. By contrast, in paragraph 20, for the reasons I have given, the context shows that “jurisdiction” must be given a wide rather than a narrow interpretation.

145 Mr Fitzgerald put particular emphasis on paragraph 15. He argued that any conduct which was made an offence against the criminal law of a state was ipso facto “within the jurisdiction” of that state, in the wider sense of that term. So, he said, the fact that Parliament had seen fit to deem the crimes in this paragraph to have been committed within the requesting state’s jurisdiction showed that “jurisdiction” means “territorial jurisdiction”. A glance at the international conventions lying behind what is now paragraph 15 is sufficient, however, to show that, in this context, making conduct an offence is different from creating jurisdiction over that offence. See, for instance, articles 2 and 3 of the Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents (1974) (Treaty Series No 3 (1980) Cmnd 7765). More particularly, since the term “jurisdiction” in its wider sense includes territorial jurisdiction, in paragraph 15 the United Kingdom could conveniently carry out its obligation under article 8(4) of the Convention—to treat a crime as if it had been committed within a state’s territory—by deeming that it had been “committed within the jurisdiction of that state”. The use of the term “jurisdiction” for that purpose is therefore no indication that the same term means only “territorial jurisdiction” in paragraph 20.

146 The terms of an extradition treaty cannot be used to construe the Act of Parliament under which the treaty is given effect in our domestic law. [*607] It is nevertheless worth noting that the language of article I of the 1972 treaty with the United States does not suggest that the parties were treating “territory” and “jurisdiction” as synonymous. The contracting parties undertake to extradite any person found in their “territory” who has been accused or convicted of any offence within article III of the treaty, “committed within the jurisdiction of the other party”. If the parties had thought that the only offences for which extradition could be sought were those committed within the requesting state’s territorial jurisdiction, a reference to “territory” or “territorial jurisdiction” would have been more consistent with the reference to the requested state’s “territory”. On the other hand, the very fact that the crimes for which extradition can be requested in terms of article III and the Schedule include “Piracy, involving ships or aircraft, according to international law” suggests that in article I the use of the term “jurisdiction” was deliberate—to ensure that all the relevant crimes were covered and to avoid the kind of argument that had caused difficulty in the Norwegian case. Indeed, since the treaty is framed in this way, only the assumption that the term was used in the wide sense in the 1870 Act too justifies what is in effect a conclusive presumption that the arrangement in the treaty complies with Schedule 1 to the 1989 Act: see paragraph 2. These factors have to be kept in mind when, at this late date, your Lordships’ House is asked to put a narrow interpretation on the term “jurisdiction” in paragraph 20 of Schedule 1 to the 1989 Act.

147 At first sight it might seemthat, if “jurisdiction” were given this wide interpretation, extradition could occur even if the requesting state founded its request on an exorbitant assertion of jurisdiction. Mr Fitzgerald argued that, by using the term “jurisdiction” as an equivalent to “territorial jurisdiction” in paragraph 20, Parliament had intended to guard against this eventuality. I consider that this argument ignores both the realities of the system of extradition and the protection afforded by the committal proceedings.

148 In the first place it overlooks the fact that neither the 1870 Act, in its day, nor Schedule 1 to the 1989 Act today has ever of itself provided for extradition between the United Kingdom and any foreign state. Extradition arrangements are made by treaty between Her Majesty, as the executive of the United Kingdom, and the sovereign of the foreign state. What the 1870 and 1989 Acts do is to give the framework within which the extradition arrangements made by the treaties are given effect under our domestic law. The fact that extradition arrangements are based on treaties provides the first line of http://uniset.ca/other/cs5/al-fawwaz.html Page 36 of 42 R. (Al-Fawwaz) v. Governor of Brixton Prisonn 18/11/16 09:47 am

defence against the abuse which Mr Fitzgerald envisaged. In principle, the United Kingdom will have such treaty arrangements only with states adopting what it regards as a proper approach to the prosecution and trial of offenders. Among the relevant factors to be taken into account in negotiating such treaties will, therefore, be the nature of the jurisdiction exercised by the other state. If the jurisdiction is exorbitant, then either the United Kingdom will simply not enter into a treaty with the state concerned or else it will ensure that the provisions of the treaty are so drafted as to provide for extradition only in cases where the state exercises an acceptable jurisdiction. So, in any given case, it is to be assumed that the British Government of the day considered that the matter of the other state’s jurisdiction had been settled acceptably at the time when the treaty was concluded. If, later, the foreign state begins to assert an exorbitant [*608] \jurisdiction not excluded by the terms of the treaty, then in the last resort the United Kingdom can give notice terminating the treaty. The fact that it has not done so should, again in principle, indicate that the Government does not regard the state in question as exercising an exorbitant jurisdiction.

149 The exorbitant, or otherwise unacceptable, nature of a foreign state’s jurisdiction is therefore a matter for the executive to ponder when considering whether to conclude an extradition treaty and whether to remain bound by it. Similarly, when dealing with any particular requisition the Secretary of State can take account of the exorbitant nature of the jurisdiction underlying the request. Whatever the obligations of the United Kingdom under the relevant treaty may be in international law, under paragraph 4(2) of Schedule 1 to the 1989 Act, the Secretary of State has a discretion to issue or to decline to issue an order to proceed. Similarly, under paragraph 8(2) he has a discretion to issue or not to issue a warrant for the surrender of the fugitive criminal. The Secretary of State could therefore decline to take either of those steps if it appeared to him that the jurisdiction claimed by the requesting state was exorbitant. This provides a further safeguard. Yet another safeguard is to be found in the committal proceedings discussed below.

150 Ultimately, issues as to the propriety of the jurisdiction claimed by a foreign state depend on judgments as to comity among states in international law. By their nature such judgments involve factors which must primarily be for the consideration of the executive who have responsibility for our relations with foreign states. Provided that the executive exercise their various powers appropriately, I see no reason to fear that persons will in fact be surrendered to states asserting an exorbitant jurisdiction, if the term “jurisdiction” in paragraph 20 has to be interpreted broadly. It bears repeating that the applicants do not suggest that the jurisdiction which the United States claims in their case is exorbitant. I deal with the judicial safeguards below.

151 I am accordingly satisfied that the term “jurisdiction” in the definition of “fugitive criminal” is broad enough to include the jurisdiction which the United States asserts over a conspiracy formed abroad to murder United States citizens within the United States and elsewhere.

152 For practical reasons, in the hearing before this House the cross-appeal relating to jurisdiction was heard first. I have also begun with the meaning of “jurisdiction” in the definition of a fugitive criminal in paragraph 20. But, as I have already explained, this is only one of two important elements in that definition. The other is that the individual must be accused of an “extradition crime”. It appears to me that this point would, more naturally, come first. In other words, when considering a requisition, the Secretary of State would, usually at least, first decide whether the crime in the requisition was an extradition crime and, only if he was satisfied that it was, would he go on to consider whether it had been committed within the jurisdiction of the requesting state. Such an approach presupposes, however, that it is possible to determine whether a crime is an extradition crime without first considering the form of jurisdiction on which the requesting state founds. The contention for the applicants proceeds on a different basis. They say that the extraterritorial nature of the jurisdiction claimed by the requesting state has a bearing on http://uniset.ca/other/cs5/al-fawwaz.html Page 37 of 42 R. (Al-Fawwaz) v. Governor of Brixton Prisonn 18/11/16 09:47 am

whether the crime is to be regarded as an extradition crime. In particular, they argue that, in making [*609] the transposition required by the definition in section 26 of the 1870 Act, it is necessary to transpose into England those actings that are alleged to have taken place in the requesting state but not those actings that are alleged to have taken place outside the territory of the requesting state. The question then is whether, that qualified transposition having been made, the crime is an extradition crime under section 26. In this case, for instance, the applicants argue that only the overt acts alleged to have taken place in the United States should be supposed to have taken place in England, while all the other alleged actings of the applicants and their fellow conspirators must be supposed to have taken place abroad.

153 The Administrative Court in effect adopted that approach. They held, at p 1238, para 11, that, in deciding whether an offence constituted an extradition crime under section 26:

“The law of England is applied on the hypothesised basis that the acts that took place in the requesting state, but no other acts, took place in England: see R v Governor of Pentonville Prison, Ex p Osman [1990] 1 WLR 277, 290H. Mr Lewis, counsel for the Government of the United States of America, accepted for present purposes that that decision bound us; though he wished to reserve for another day the possibility that what is transposed to England is not merely the acts done in the requesting state, but all the acts wherever done that constituted the offence charged.”

154 I would reject that approach. In doing so, I note that R v Governor of Pentonville Prison, Ex p Osman [1990] 1 WLR 277, 290 and the authorities which Lloyd LJ cites all concern the Fugitive Offenders Act 1967, which differs in certain respects from the Extradition Acts. None the less, I consider that, when properly understood, these authorities and, in particular, the passage from the speech of Lord Keith of Kinkel in R v Governor of Pentonville Prison, Ex p Tarling (1978) 70 CrAppR 77, 136 are consistent with the approach to transposition in the definition of “extradition crime” which I prefer. They really deal with the separate matter of the test to be applied by the magistrate in considering the evidence at the committal hearing.

155 As I explained in paragraph 140 above, the phrase “in England or within English jurisdiction” in the definition of “extradition crime” in section 26 of the 1870 Act must have been framed so as to cover actings which could be supposed to have taken place in England and actings which, by their very nature, could not be supposed to have taken place in England because they occurred on the high seas. On that basis, all the alleged actings in the present case can be supposed, for the purposes of section 26, to have taken place in England. The simple question then is whether, if they had taken place in England, those actings would have constituted the crime of conspiracy to murder in English law. For my part, I see no need for any more complex analysis at this stage since the test which I have outlined is sufficient to ensure that extradition is confined to allegations of crimes according to the law of the requesting state which would also be crimes according to English law and in respect of which Parliament has given the Secretary of State power to surrender accused persons.

156 This interpretation of the relevant provisions is straightforward and the provisions when so interpreted are easy to apply. By contrast the approach advocated by the applicants and adopted by the Administrative [*610] Court leads inevitably to a blurring of two questions. The first is whether the individual concerned is a criminal accused of an “extradition crime”. The second question is whether, even supposing that he is, there is evidence to justify ordering his committal to prison on that charge.

157 When the magistrate is dealing with this second question, he may indeed require to take into account the extraterritorial nature of some of the alleged actings. As the Administrative Court noted in the Al-Fawwaz case [2001] 1 WLR 1234, 1243, paras 30 and http://uniset.ca/other/cs5/al-fawwaz.html Page 38 of 42 R. (Al-Fawwaz) v. Governor of Brixton Prisonn 18/11/16 09:47 am

31, this was the context in which the Privy Council approached the issues relating to the jurisdiction of the courts of the requested state in Liangsiriprasert v Government of the United States of America [1991] 1 AC 225. The case concerned a conspiracy in Thailand to supply heroin for importation into the United States. The appellant went to Hong Kong to collect payment and was arrested. The United States requested his extradition. The parties were agreed that a conspiracy of this kind was an “extradition crime” in terms of section 26 of the 1870 Act and the issue for the Board was whether the evidence disclosed a prima facie case against the appellant, upon the assumption that the drugs were to be imported into Hong Kong rather than into the United States: p 241G-H. It was within this context that the Board went on to decide, at p 25, that:

“a conspiracy entered into in Thailand with the intention of committing the criminal offence of trafficking in drugs in Hong Kong is justiciable in Hong Kong even if no overt act pursuant to the conspiracy has yet occurred in Hong Kong.”

On that basis the Board upheld the magistrate’s decision to commit the appellant on the first charge, a charge of conspiring to traffic in dangerous drugs. In my respectful opinion, although the point was not argued in the Liangsiriprasert case, the approach which Lord Griffiths adopted was correct. I note in passing that counsel for the applicants conceded that, if their contention as to the interpretation of “jurisdiction” in paragraph 20 of Schedule 1 to the 1989 Act was correct, the decision of the Privy Council upholding the committal of the appellant in the Liangsiriprasert case must have been in substance wrong.

158 The approach of the Privy Council was consistent with that of this House, some years earlier, in Ex p Tarling 70 CrAppR 77 where the issues arose out of the evidence led before the magistrate in committal proceedings under the Fugitive Offenders Act. The Government of Singapore sought Mr Tarling’s extradition inter alia on two charges of conspiring in Hong Kong to steal shares in a Hong Kong company, the property of a Singapore Company. On the law as it stood then, Lord Wilberforce held that a conspiracy in Hong Kong to steal shares in a Hong Kong company, the property of a English company, would not be triable in England. He therefore held that the charges were not supported (70 CrAppR 77, 110-111).

159 During the hearing before the House in the present case it was suggested that deciding the “extradition crime” issue under section 26 by supposing that the whole conduct had taken place in England would weaken the safeguards for accused persons. I reject that criticism, precisely because the fact that some of the alleged conduct took place abroad will be taken into account by the magistrate when deciding whether to commit the person [*611] concerned. The point is amply illustrated not only by Ex p Tarling but by the decision in the Liangsiriprasert case [1991] 1 AC 225.

160 The Privy Council first considered whether the evidence justified the appellant’s committal on charge 1. On that matter, they held that a conspiracy to commit a crime in Hong Kong was justiciable in Hong Kong even though there was no evidence of any overt act having been committed there. The magistrate had accordingly been entitled to order that the appellant should be committed on the first charge. Had they decided the issue of principle in favour of the appellant, however, the Board would, of course, have allowed his appeal against his committal on that charge. So the whole issue of the jurisdiction of the court of the requested state could be, and was, duly considered in this context. The Board then went on to examine charges 2 and 4 which were charges of trafficking, and of doing acts preparatory to trafficking, in dangerous drugs contrary to section 4 of the Dangerous Drugs Ordinance (Laws of Hong Kong, 1988 rev, c 134). The evidence on these charges showed that the alleged activities had all taken place in Thailand. The Board allowed the appellant’s appeal against his committal on these charges on the view that section 4 did not have extraterritorial effect. This decision gave the appellant all the protection that he could ever have hoped to derive from the fact that the allegations related to extraterritorial conduct. The Board’s prior assumption that the crimes were “extradition crimes” did not impair that protection. Nor would a prior judicial decision to the same effect impair it. The http://uniset.ca/other/cs5/al-fawwaz.html Page 39 of 42 R. (Al-Fawwaz) v. Governor of Brixton Prisonn 18/11/16 09:47 am

committal proceedings and any habeas corpus application therefore provide a full judicial safeguard against extradition based on a wider jurisdiction than is recognised under English law.

161 For these reasons I would respectfully hold that the decision of the Administrative Court was wrong on this point.

162 The applicants accept that, if the test for an extradition crime is applied as I would apply it—or indeed on the basis of a qualified transposition—the allegations against them in the present cases would amount to allegations of conspiracy to murder in English law. That being so, they are persons accused of an extradition crime. Moreover, they are alleged to have committed the crime within the jurisdiction of the United States. They are, therefore, fugitive criminals in terms of paragraph 20 of Schedule 1 to the 1989 Act.

163 The principal remaining question is whether, applying the test in paragraph 7(1), the magistrate was entitled to find that there was such evidence of conspiracy to murder as would have made a case requiring an answer if the proceedings against the applicants had been for trial in England and Wales of an information for conspiracy to murder.

164 In the case of Al-Fawwaz his counsel accepted that there was indeed sufficient evidence to justify his committal if the metropolitan magistrate had been correct to admit the affidavit of the anonymous witness referred to as “CS/1”. So far as that matter is concerned, I am satisfied that, for the reasons given in the opinion of Buxton LJ, the decision of the Administrative Court on this matter was correct. In particular I agree that, however detailed might be the list of factors to be considered according to R v Taylor (Gary) The Times, 17 August 1994, the decision as to admitting the evidence of an anonymous witness depends on weighing a range of factors and is therefore one for the discretion of the trial judge in all the circumstances. That was [*612] indeed the starting point of the discussion of Evans LJ in Taylor. The same must apply to the magistrate in the committal proceedings in these cases.

165 Counsel for the applicants submitted that the approach adopted by the Divisional Court had contravened their rights under article 5(4) of the European Convention for the Protection of Human Rights and Fundamental Freedoms which required that basic principles of fairness should be applied to extradition proceedings. These basic principles would reinforce the common law. Even assuming that article 5 introduces some new element, it could not be suggested that the requirements of fairness in respect of proceedings for detention for extradition purposescould be higher than those enjoyed by a defendant at his trial under article 6. In this connection it is useful to recall the observations of the European Court of Human Rights in Doorson v The Netherlands (1996) 22 EHRR 330 where the investigating judge had heard two anonymous witnesses in the absence of the applicant’s counsel during the preliminary investigation. The court held that no issue under the Convention arose in that respect but that the subsequent use of their statements by the trial court to found a conviction was capable of raising an issue under the Convention. The court observed, at p 358, para 69, that the use of such statements was not under all circumstances incompatible with the Convention and continued, at para 70:

“It is true that article 6 does not explicitly require the interests of witnesses in general, and those of victims called upon to testify in particular, to be taken into consideration. However, their life, liberty or security of person may be at stake, as may interests coming generally within the ambit of article 8 of the Convention. Such interests of witnesses and victims are in principle protected by other, substantive provisions of the Convention, which imply that contracting states should organise their criminal proceedings in such a way that those interests are not unjustifiably imperilled. Against this background, principles of fair trial also require that in appropriate cases the interests of the defence are balanced against those of witnesses or victims called upon to testify.” http://uniset.ca/other/cs5/al-fawwaz.html Page 40 of 42 R. (Al-Fawwaz) v. Governor of Brixton Prisonn 18/11/16 09:47 am

The court went on to consider the reason why the witnesses’ anonymity had been preserved and concluded that the reason was sufficient: para 71. As Lord Bingham of Cornhill pointed out in Brown v Stott [2001] 2 WLR 817, 827 the European Court of Human Rights have identified their decision in Doorson as a particular example of a situation where there are competing interests which have to be weighed when considering what constitutes a fair trial in criminal proceedings: Fitt v United Kingdom (2000) 30 EHRR 480, 510, paras 44-45.

166 In my view, therefore, even taking account of the applicants’ rights under article 5(4), the Administrative Court were entitled to hold that, since the magistrate accepted that there were real grounds to fear for the safety of CS/1 if his identity were revealed, he had been justified in maintaining the anonymity of CS/1 but nevertheless admitting his evidence in the committal proceedings. On the available information the fear for CS/1’s safety was a sufficient reason for adopting that course at this stage. In reaching that decision the magistrate was entitled to have regard not simply to the interests of the applicants but to the interests of CS/1. Nor can it be said that in all the circumstances, including the other available evidence, it was irrational for the magistrate to take the evidence of CS/1 into account. On the contrary it [*613] was appropriate for the magistrate to do so in the circumstances, even though he was not satisfied that the creditworthiness of CS/1 had been fully investigated. Mr Fitzgerald accepts that, when that evidence is taken into account, there was sufficient evidence to justify the committal of Al- Fawwaz. No point is taken about the adequacy of the reasons given by the magistrate in his case. It follows that his appeal must be dismissed.

167 In the case of Eidarous and Abdel Bary, so far as CS/1 is concerned, the Administrative Court adopted the approach of the court in the case of Al-Fawwaz and considered the circumstances in the light of that approach. On that basis the court came to the conclusion that the magistrate had been fully entitled to take the view that the statement of CS/1 had not been shown to be worthless and to hold it to be admissible. Again I am satisfied that the Administrative Court reached the correct conclusion on this matter. It follows that it was open to the magistrate to consider the issue of the sufficiency of the evidence against these applicants for the purpose of committal on the basis that it included the evidence of CS/1.

168 Counsel for Eidarous and Abdel Bary sought to persuade us, however, that in their case, even taking the evidence of CS/1 into account, there was not a case to answer in terms of paragraph 7(1). The evidence was of acts abroad and acts in pursuit of the conspiracy in the United States. They pointed out that certain of the items in the prosecution evidence were susceptible of an entirely innocent explanation. So, for instance, the purchase of the satellite telephone was said to be consistent with the applicants and the others concerned being involved in opposition to the government of Saudi Arabia. The possession of the faxed texts of the fatwahs was similarly said to be insufficient to point to involvement in a conspiracy to murder, not least because those fatwahs had been published. The explosions in Nairobi occurred at about 7.30 am GMT and the two faxes claiming responsibility, which were recovered from 1A Beethoven Street were timed at 4.45 am. It was argued that the time marked on the faxes would not show that they had been sent before the attack if that time was not GMT. So no sinister inference could be drawn from the apparent time when the applicants had received the faxes.

169 Those submissions make the obvious point that, looked at in isolation, these various circumstances could be regarded as neutral. That is by no means an unusual feature of a circumstantial case such as the present. The Crown can only rarely lead direct evidence of the formation of a conspiracy, which by its very nature is likely to take place in secret. The prosecution case will tend to depend on evidence of various circumstances which, viewed severally and in isolation, could well be capable of an innocent explanation but which, taken together, the prosecution contend, point to a conspiracy. At trial the defence will seek to http://uniset.ca/other/cs5/al-fawwaz.html Page 41 of 42 R. (Al-Fawwaz) v. Governor of Brixton Prisonn 18/11/16 09:47 am

put forward an innocent explanation for these circumstances, whether in cross-examination or by leading evidence or in argument before the jury. The proper test of such a prosecution case at committal is not, however, to look at the various items of evidence separately but, as the jury would ultimately be asked to look at them, in relation to one another. Could the evidence as a whole justify a conviction? The question for the magistrate in this case was therefore whether, so regarded, the evidence of the circumstances on which the United States Government rely was “capable” of making a case which would require an answer in a trial of an information for conspiracy to murder. [*614]

170 In his judgment Kennedy LJ rehearsed in considerable detail the relevant items of evidence and the criticisms made of them. Having done so, his conclusion was that the magistrate, who had looked at the evidence as a whole, had clearly been entitled to decide to order that the applicants be committed to prison. I respectfully agree with both his reasoning and his conclusion.

171 The final point advanced before the House was that in the case of Eidarous and Abdel Bary the magistrate, when giving his decision to commit the applicants, had failed to give adequate reasons. Indeed, at times during his submissions, Mr Emmerson seemed to be contending that the magistrate had not given any reasons at all and so had been in breach of a duty to give reasons. Reference was made to the opinion of Lord Steyn giving the advice of the Privy Council in Rey v Government of Switzerland [1999] 1 AC 54, 66-67 where he indicated that in extradition proceedings the principle of fairness may in particular circumstances require a magistrate to give reasons for committal. It is unnecessary, however, to enter into that issue in this case for the simple reason that the magistrate did in fact give reasons for his decision. The only possible criticism, therefore, was that those reasons had not been adequate. It may well be, as Kennedy LJ observed, that the magistrate could profitably have given more detail, but the issue is whether the reasons were adequate. Having considered what the magistrate said, I am left with no real doubt as to the import of his thinking in deciding as he did, even though he does not, of course, deal with all the points made in argument before him. In these circumstances I am satisfied that the reasons given by the magistrate were adequate. Certainly, the nature of his account of his reasons did nothing whatever to affect the applicants’ ability to argue—as they did— that, on the evidence as a whole, no reasonable magistrate could have ordered that they should be committed to prison. In the event that argument has been rejected.

172 I would accordingly dismiss the appeals of Eidarous and Abdel Bary.

173 I should add one further remark. The entire argument in both appeals was conducted on the basis that the requisitions related to proceedings before the United States District Court for the Southern District of New York. There was no suggestion that the applicants would be tried before any other court of tribunal. In particular, no argument was advanced as to the matter mentioned at the end of the speech of my noble and learned friend Lord Scott of Foscote. I accordingly express no view on it.

Appeals dismissed.

http://uniset.ca/other/cs5/al-fawwaz.html Page 42 of 42