Nur v Public Prosecutor [2005] EWHC 1874 (Admin)

Case No CO/5162/2005[2005] EWHC 1874 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Wednesday, 10th August 2005
Strand
London WC2
B E F O R E:
MR JUSTICE RICHARDS
Between
NURClaimant-v-
Between
PUBLIC PROSECUTOR VAN DER VALKDefendant
Computer-Aided Transcript of the Stenograph Notes ofSmith Bernal Wordwave Limited190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
MR Y PATEL (instructed by Constanti Shah) appeared for CLAIMANTMISS A EZEKIEL (instructed by Crown Prosecution Service) appeared for DEFENDANT
J U D G M E N T
[1]MR JUSTICE RICHARDS: This is an appeal against a decision of District Judge Evans, at Bow Street Magistrates' Court on 18th July 2005, to extradite the appellant pursuant to a European Arrest Warrant. The background is that on 13th May 2005, following a lengthy criminal investigation, a European Arrest Warrant was issued in the Netherlands by the public prosecutor, Mr Van Der Valk, for the arrest of a person called Ahmed Kaafi Nur. The personal details of the wanted person as given in the warrant included the name, sex, nationality, date of birth, place of birth, and two specific addresses in London that were said to be the person's residence or known address. According to the warrant, the person concerned was wanted for offences of participation in a criminal organisation, human trafficking and forgery of administrative documents.[2]On 17th May the National Criminal Intelligence Service certified the warrant under section 2 of the Extradition Act 2003 as one falling within Part 1 of the Act. On 4th July the appellant was arrested under section 3 of the Act. By section 4(4) a person so arrested must be brought before the appropriate judge as soon as practicable. The appellant was brought before District Judge Workman at Bow Street Magistrates' Court on 5th July when an initial hearing was held.[3]Sections 7 and 8 of the Act define the powers and duties of the court on such an initial hearing. Section 7 provides:
"(2) The judge must decide whether the person brought before him is the person in respect of whom -- (a) the warrant referred to in subsection (1)(a) was issued [that is the relevant provision here] ... (3) The judge must decide the question in subsection (2) on a balance of probabilities. (4) If the judge decides the question in subsection (2) in the negative he must order the person's discharge. (5) If the judge decides that question in the affirmative he must proceed under section 8."
Section 8 provides for the fixing of a date on which the extradition hearing is to begin and with questions of remand and so forth.[4]At the initial hearing on 5th July the appellant was legally represented and had the benefit of an interpreter. The District Judge had before him, amongst other things, the following details of the person sought as set out in the warrant: first, the full name of the person, namely Ahmed Kaafi Nur; secondly, nationality, namely British passport; thirdly, date of birth, namely 14th February 1966; fourthly, place of birth, namely Mogadishu; fifthly, residence or known address, being two addresses in London; and, sixthly, language, namely Somalian. He also had a statement from the officer who had arrested the appellant in pursuance of the warrant which recorded that the appellant had confirmed that the details of the person sought in the warrant accorded with his own details. So he had agreed, amongst other things, that the name, date of birth and address on the warrant were the same as his own. However, he disagreed with the other factual allegations in the warrant as to involvement in criminal activities and said that he had had nothing to do with the matters there referred to.[5]The District Judge decided in accordance with section 7(5) that the person brought before him, the appellant, was the person in respect of whom the warrant was issued. He, therefore, duly proceeded under section 8 to fix the date on which the extradition hearing was to begin and to deal with other relevant matters.[6]The extradition hearing itself took place on 18th July before District Judge Evans. Sections 9 and following of the Act deal with the court's powers and duties at an extradition hearing. For example, under section 10 the judge must decide whether the offences specified in the warrant are extradition offences. Under section 11 he must decide whether the person's extradition is barred by reason of any of the matters specified in that section, which are then dealt with more fully in sections 12 to 19. Under section 21 he must decide whether the extradition would be compatible with the person's Convention rights within the meaning of the Human Rights Act 1998. The District Judge decided all those matters against the appellant. No issue is taken in relation to them on this appeal.[7]He was also asked, for reasons to which I will come, to reopen the issue of whether the appellant was the person in respect of whom the warrant was issued. He decided that that issue had been resolved at the initial hearing and could not be reopened at the extradition hearing itself. That is the aspect of his decision which is the subject of this appeal.[8]It is submitted by Miss Ezekiel, on behalf of the respondent, that the issue of identity was also advanced on the appellant's behalf at the extradition hearing under section 21, that is by reference to the appellant's Convention rights. There is a dispute as to whether that was indeed the way in which the case was presented. It would certainly seem that the primary basis upon which the matter was put forward was by an application that the issue of identity resolved at the initial hearing should be reopened, and that is the primary aspect of the decision on this appeal.[9]An appeal to the High Court lies under section 26 of the Act. By section 27 the court may allow or dismiss the appeal, but it may allow the appeal only if the conditions in subsections (3) or (4) are satisfied. Those conditions are:
"(3) The conditions are that -- (a) the appropriate judge ought to have decided a question before him at the extradition hearing differently; (b) if he had decided the question in the way he ought to have done, he would have been required to order the person's discharge. (4) The conditions are that -- (a) an issue is raised that was not raised at the extradition hearing or evidence is available that was not available at extradition hearing; (b) the issue or evidence would have resulted in the appropriate judge deciding a question before him at the extradition hearing differently; (c) if he had decided the question in that way, he would have been required to order the person's discharge."
[10]In the present case, as it seems to me, the appellant has to bring himself within section 27(3). What is submitted by Mr Patel on his behalf is that the District Judge ought to have decided the question of identity differently and that had he done so he would have been required to order the appellant's discharge.[11]I, therefore, turn to the question of identity. The issue arises in this way. On 11th July, after the initial hearing but before the extradition hearing, the appellant's legal representatives had a conference with him in prison. At that conference he informed his representatives that efforts had been made in the past to forge his passport and to assume his identity. This led the representatives to contact the Home Office and a firm of solicitors who, as I understand it, had previously acted for the appellant.[12]By a letter of 14th July 2005 the Home Office confirmed that the appellant had been granted British citizenship on 12th May 2004:
"This followed an unsuccessful attempt by an impostor to assume the identity of Mr Ahmed Kaafi Nur and claim naturalisation. Mr Ahmed Kaafi Nur was asked to visit this office and his true identity was subsequently established from his immigration records via signature and photographic evidence."
[13]The former solicitors indicated that several years previously they had been approached in connection with an immigration matter by a Somalian gentleman who said he had been issued papers by the Home Office, which had gone astray, and that he wanted further copies to be obtained for him which were provided. That man then made an application for British nationality, it would seem, in the name of the appellant. Then some time last year another man came along who said that he was Mr Ahmed Nur but had a different description. He explained that he had made an application for nationality, but the Home Office had informed him that someone else had purported to make the same application using his name. He produced his identity documents. His solicitors were satisfied that he was the genuine Mr Ahmed Nur after speaking to a Home Office official. So the man who had approached them more recently was plainly the appellant. They said that the other Mr Nur had not been seen or heard of for nearly two years.[14]It is by reference to that correspondence and the information given in it that Mr Patel advances his submissions in relation to identity. He submits that the correspondence raises a question as to the existence of a person who has all the details of the appellant, but is not the appellant. He says, as is the case, that neither of the letters to which I have referred was considered by the Magistrates' Court at the initial hearing on 5th July when deciding whether the person brought before the court was the same as the person requested by the Dutch authorities in the warrant. He submits that the person that the Dutch authorities were seeking was someone who had been involved in human trafficking and other offences and who claimed to have the identity of the appellant, but was in fact not the appellant.[15]Mr Patel has referred me to Savvas v the Government ofItaly [2004] EWHC 123 (Admin) where a question of identity arose under the previous legislation, the Extradition Act 1989. In that case the District Judge had been satisfied that the person brought before him was the person sought by the Italian authorities. He had based himself on the fact that the name, place of birth (namely Hounslow), home address in Hounslow, and date of birth were all the same as those of the claimant in that case, Mr Savvas. He had also, as a separate matter, relied on information drawn from related papers concerning the identity of a passport number with that of the claimant.[16]Maurice Kay J, in dealing with a challenge to the District Judge's decision, stated in paragraph 8:
"Faced with unusual name (particularly for a British citizen), the date of birth and the residence in the same London Borough, the District Judge was entitled to conclude as he did."
[17]Mr Patel submits that that decision is distinguishable, first, because Ahmed Nur is a common Somali name and not an unusual name, as was the case in Savvas, and, secondly, because of the existence of the documents highlighting identity fraud, or attempted identity fraud, in this case. He submits, further, that photographs of an accused person are admissible in extradition proceedings to prove identity: see R v Governor Pentonville Prison ex parte Voets [1986] 1 WLR 470, in particular at 473H. Such evidence, he says, ought to have been forthcoming in this case where identity is disputed. In all the circumstances, he submits that the District Judge was wrong to refuse to reopen the question of identity and he invites this court to find that the identity of the appellant as the person named in the warrant has not been proved.[18]There are a number of problems, as it seems to me, about the case so advanced. It is right to bear in mind at the outset, as Miss Ezekiel submitted, that an appeal under section 27 lies only against findings at the extradition hearing, not against a decision at the initial hearing. That is plain from the language of section 27 itself. Whether in an appropriate case a different remedy would be available in respect of a decision at the initial hearing, for example by way of habeas corpus or judicial review, is not a matter that I need determine. In any event, the focus of this appeal must be the extradition hearing rather than the initial hearing, though I would add that if one were looking at the decision made in respect of identity at the initial hearing, a decision which has to be assessed on the basis of the material before the District Judge at the time, no possible complaint could be made about it.[19]So far as the extradition hearing is concerned, the first question is whether the District Judge was entitled to refuse to reopen at that hearing the question of identity that had been decided at the initial hearing. In my judgment, he was entitled so to refuse. The statutory scheme is clear. The question of identity falls to be determined at the initial hearing, as was done in this case. If it is resolved in the affirmative, as it was in this case, that leads to the fixing of the extradition hearing, where, under the statute, a different series of issues fall to be determined. As regards identity, the statute does not contemplate that there can be a second bite of the cherry at the extradition hearing in respect of the matter dealt with at the initial hearing.[20]Whether the issue can be ventilated indirectly under section 21 by reference to the person's Convention rights, is not something that I need to resolve. I note the submission by Miss Ezekiel that it can be done and was done. I also note the submission by Mr Patel that this is not the way that the case was actually canvassed before the District Judge.[21]But even assuming that the District Judge had power to reopen the issue at the extradition hearing, it seems to me that he was reasonably entitled not to allow it to be reopened. If there was an issue over identity to be taken, the proper place to take it was at the initial hearing. The appellant had the opportunity to take it at that hearing. He was, as I have said, legally represented. He had the benefit of an interpreter. There was no impediment to his advancing an argument in connection with identity had he had chosen to do so. In fact, he does not seem to have taken issue either with his details being the same as those of the person named in the warrant, or with his actually being the person named in the warrant. The information that he subsequently communicated to his legal representatives about an attempt at identity fraud using his details was information known to him at the time of the initial hearing. It seems to me that, in all the circumstances, the District Judge at the extradition hearing acted well within the limits of discretion in declining to allow the matter to be reopened even if there was a power for it to be reopened.[22]Moreover, I am wholly unpersuaded that if he had allowed the question to be reopened, he would have reached any different conclusion from that reached at the initial hearing, or therefore that he would have been required to order the appellant's discharge. On the contrary, I think it inevitable that, applying the test of balance of probabilities, he would have reached the same decision as had been reached at the initial hearing, that the person before him was the person in respect of whom the warrant was issued. The appellant accepts, as I have said, that he is a person with all the same details as those given in the warrant. It seems to me that he is plainly the person in respect of whom the warrant was issued.[23]The possibility that there is someone masquerading as the appellant cannot be wholly dismissed, though I note that the Home Office letter of 14th July 2005 refers to an unsuccessful attempt by an impostor to assume the appellant's identity to claim naturalisation as a British citizen and that the former solicitors' letter adds nothing of substance to that. So there is nothing to show that there is in fact any other person masquerading as the appellant. But let it be assumed that there is, and that that impostor has been engaging in criminal activity in the Netherlands using the appellant's identity and doing so successfully enough to have induced the Dutch authorities into thinking that the person concerned in the relevant criminal activity is the appellant, thereby leading them to seek to arrest the appellant. The fact remains that it is the appellant in respect of whom the warrant was issued. Whether or not the Dutch authorities should be seeking to arrest someone else, the impostor on this hypothesis, they are in fact plainly seeking to arrest and to obtain the return of the appellant.[24]Accordingly, it seems to me that the existence of any supposed impostor really gets the appellant nowhere. I am satisfied that the information that was available before the Magistrates' Court, both at the initial hearing and at the extradition hearing, was more than sufficient for a finding on the balance of probabilities that the person before the court was the person in respect of whom the warrant was issued. It seems to me that the case of Savvas is both consistent with and supportive of that conclusion. The facts of the present case are somewhat stronger than they were even in Savvas, and in this case under the 2003 Act the finding is one that has to be made only on the balance of probabilities and not on the criminal standard, as I understand to have been the case under the legislation operative at the time that Savvas was decided.[25]In conclusion, I am wholly unpersuaded that the conditions of section 27(3) are met. I do not think that the District Judge ought to have decided the question before him, namely whether to reopen the earlier finding of identity, any differently from the way in which he did decide it. Had he reopened it, I am satisfied that the same conclusion would have been reached and he would therefore not have been required to order the appellant's discharge. Section 27(4) is not applicable on the facts of this case. I would add for completeness that if, as Miss Ezekiel submitted, the District Judge was addressed under section 21 on the issue of identity and if he did reach a finding in the context of section 21 adverse to the appellant, for the reasons that I have given that is a finding which was not only open to him, but seems to me to have been the only finding reasonably open to him on the facts.[26]For all of those reasons this appeal is dismissed.

Cited in 3 later judgments