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