Bary & Anor, R (on the application of) v Secretary of State for the Home Department, Court of Appeal - Administrative Court, August 07, 2009, [2009] EWHC 2068 (Admin)

Extract

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Bary & Anor, R (on the application of) v Secretary of State for the Home Department, Court of Appeal - Administrative Court, August 07, 2009, [2009] EWHC 2068 (Admin)

Neutral Citation Number: [2009] EWHC 2068 (Admin)

Case No: CO/5577/2008 and C0/5511/2008

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

DIVISIONAL COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 07/08/2009

Before:

LORD JUSTICE SCOTT BAKER

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MR JUSTICE DAVID CLARKE

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Between:

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(Transcript of the Handed Down Judgment of

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Richard Drabble Q.C and Ben Cooper (instructed by Birnberg Pierce and Partners) for Bary

Edward Fitzgerald Q.C. and John Jones (instructed by Quist Solicitors) for Al Fawwaz

David Perry Q.C and Adam Robb (instructed by the Treasury Solicitor) for the Defendant

Hearing dates: 12, 13 February and 20 July 2009

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Judgment

Lord Justice Scott Baker:

Introduction

1. The two claimants, Adel Abdul Bary and Khalid Al Fawwaz, are accused by the Government of the United States of America of participation in a conspiracy to murder United States citizens, United States diplomats and other internationally protected persons. It is alleged that a key figure in the conspiracy was Osama Bin Laden and that two of the overt acts of the conspiracy were the synchronised bombings of the United States embassies in Nairobi and Dar Es Salaam on 7 August 1998. As a result of the explosion in Nairobi 213 people died and some 4,500 were injured. 11 people died as a result of the Dar Es Salaam explosion.

2. Following an investigation into the bombings, the United States government sought the extradition of the two claimants and a third man, Eiderous. Extradition proceedings followed under the Extradition Act 1989 (``the 1989 Act''). On 8 September 1999 a metropolitan magistrate sitting at Bow Street magistrates' court committed Al Fawwaz to await the defendant's decision as to his return to the Untied States. A similar order was made in respect of Bary and Eiderous on 25 April 2000. A challenge to the magistrate's decision in the case of Al Fawwaz was dismissed by the Divisional Court on 30 November 2000 and a similar challenge by Bary and Eiderous was dismissed by the Divisional Court on 2 May 2001. Appeals to the House of Lords were dismissed in each case on 17 December 2001 (Re Al Fawwaz and others [2001] UK HL 69; [2002] AC 556).

3. There followed detailed representations on behalf of all three men arguing against their surrender to the United States and the United States government provided substantial representations in reply. On 13 March 2006 the Secretary of State decided not to surrender Eiderous to the United States because of his serious ill health; he died in July 2008.

4. By letters of 12 March 2008 Bary and Al Fawwaz were informed that the Secretary of State had issued warrants authorising their return to the United States. In June 2008 they commenced proceedings for judicial review of the defendant's decision to extradite them. The present hearing is a rolled up hearing of their applications for permission to apply for judicial review with the substantive hearing to follow if leave is granted.

5. The cases of both Bary and Al Fawwaz predate the Extradition Act 2003 and their extradition from the United Kingdom is governed by the 1989 Act. Section 1(3) of that Act applies Schedule 1 where there is in force in relation to a foreign state an Order in Council giving effect to the terms of a relevant treaty. There was in force at the material time, the United States of America (Extradition) Order 1976 (SI 1976/2144) as amended by the United States of America (Extradition) (Amendment) Order (SI 1986/2020). Accordingly, Schedule 1 applies to this case. Under Schedule 1 the Secretary of State issues an order to proceed to the magistrate specifying the offence or offences which it appears to the Secretary of State are constituted by conduct equivalent to the conduct specified in the extradition request had it occurred in the United Kingdom. The magistrate then conducts an inquiry into the offence or offences to establish whether the evidence before him would make a case ``requiring an answer by the prisoner if the proceedings were for trial in England.'' If the evidence establishes a prima facie case, the magistrate commits the defendant to await the decision of the Secretary of State. Under paragraph 8(2) of the Schedule, the Secretary of State may by warrant ``order the fugitive criminal......to be surrendered to such person as in his opinion be duly authorised to receive the fugitive criminal by the foreign state from which the requisition for the surrender proceeded......''

6. It is the Secretary of State's decisions at that point that are now challenged. Section 12(2) of the 1989 Act, so far as material, provides:

``W...

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