Pham v The United States of America [2014] EWHC 4167 (Admin)

Case No CO/387/2014

[2014] EWHC 4167 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date Friday 12 th December 2014

Before

LORD JUSTICE AIKENS

MR JUSTICE SIMON

Between

Minh Quang PhamAppellant

The United States of AmericaRespondent

(Transcript of the Handed Down Judgment of

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Hugh Southey QC & Malcolm Hawkes (instructed by JD Spicer ZEB) for Appellant

Peter Caldwell & Myles Grandison (instructed by the Crown Prosecution Service) for Respondent

Hearing Hearing dates: 15-16/07/2014

Further written submissions 17/11/14, 24/11/14 and 1/12/14

Judgment

Lord Justice Aikens :

[1]This is the judgment of the court to which both of us have contributed. I. The story so far.

[2]The United States government seeks the extradition of Minh Quang Pham, a British resident, Whether the appellant is a British citizen is in dispute. The Court of Appeal has held that the Home Secretary was entitled to deprive the appellant of his British citizenship because of his “terrorist activities”: see B2 v SSHD

[2013] EWCA Civ 616

. Mr Pham argued that this decision would make him stateless; his appeal to the Supreme Court was heard on 18-19 November 2014. It was said by the appellant that if the appeal succeeds it may have a significant effect on the application of his

Article 6 Convention

rights in the context of extradition proceedings. For the reasons we give below we disagree. whom we shall refer to as the appellant, so that he can face five charges in the US District Court for the Southern District of New York. All the charges allege extra-territorial terrorist offences. They are:(1) conspiracy to provide material support for a terrorist organisation;

(2) providing and attempting to provide material support for a terrorist organisation;

(3) conspiracy to receive military-type training from a foreign terrorist organisation;

(4) receipt of military-type training from a foreign terrorist organisation; and

(5) possessing, carrying and using a firearm.

[3]In outline it is alleged that on 1 December 2010 the appellant left his wife, who was then heavily pregnant with their first child, travelled from the UK to the Yemen and stayed there for seven months. It is said that, whilst there, the appellant met Ahmed Abdulkadir Warsame, who has since become a “co-operating witness” of the US prosecuting authorities and who will be the principal witness for the prosecution in any trial of the appellant in the USA. It will be Mr Warsame’s evidence that he and the appellant met at several safe-houses of al Qa’ida in the Arab Penninsula (“AQAP”) over the course of several weeks in March and April 2011. At a number of those meetings the appellant was (according to Mr Warsame) carrying a Kalashnikov assault rifle. Mr Warsame states that the appellant told him that he had travelled to the Yemen in order to join AQAP so as to wage jihad on behalf of AQAP and to martyr himself for AQAP’s cause. Mr Warsame will say that the appellant stated that he had been trained in the use of the Kalashnikov by AQAP in the Yemen and that he had sworn an oath of loyalty (bayat) in the presence of an AQAP commander. Mr Warsame will say that he observed the appellant with two prominent AQAP members, who were US citizens, probably Samir Khan and Anwar al-Awlaki, who are now dead. Mr Warsame will also state that the appellant told him that he had worked with Samir Khan, who was responsible for editing and publishing an English on-line publication called Inspire magazine. This publication is used by AQAP to distribute propaganda and to recruit individuals from Western cultures to join or support AQAP. The appellant has computer skills and it is alleged that he assisted in the production and editing of Inspire.

[4]The USA has been designated a “category 2” territory for the purposes of the Extradition Act 2003, (“the EA”), so that Part 2 of that Act applies to requests for extradition to that country. On 24 August 2012, the Secretary of State for the Home Department (“SSHD”) certified that the request of the USA for the extradition of the appellant was valid and had been made in the approved way for the purposes of section 70 of the EA. The appellant opposed his case being sent to the SSHD for her decision on whether he was to be extradited. There was therefore a hearing before District Judge Nicholas Evans over several dates during July and October 2013, in which the appellant challenged the request for extradition on a large number of grounds, to which we will refer as necessary below. The judge had before him much written evidence and he also heard oral evidence from various expert witnesses. The parties submitted voluminous written submissions, which were excessive in length. In a judgment handed down on 26 November 2013, the District Judge rejected all the grounds of challenge advanced by the appellant. Therefore, pursuant to section 87(3), the District Judge sent the case to the SSHD for her decision on whether the appellant should be extradited. The SSHD made her decision to order the extradition of the appellant on 22 January 2014.

[5]The appellant has appealed to this court pursuant to section 103(1) of the EA. Under section 103(4) the appellant is entitled to raise both questions of fact and law in an appeal against the decision of the District Judge to send the extradition request to the SSHD. In summary, the appellant’s case on appeal is that the District Judge (“DJ”) erred on the following eight respects.(1) The principal evidence against the appellant is that of Mr Warsame and the DJ erred in concluding that there was not a “real risk”, or that it was not “likely”, that the evidence of Mr Warsame against the appellant was obtained through torture or inhuman or degrading treatment whilst Mr Warsame was questioned on board USS Boxer where he was held “incommunicado” for 8 weeks. The DJ should have concluded, as a matter of the common law, that this evidence could not found the extradition of the appellant. If the DJ had not so erred, he would have been bound to order the discharge of the appellant.

(2) The DJ erred in concluding that there was not a real risk of Mr Warsame’s evidence being admitted at a trial of the appellant in the US. Further or alternatively, there was a “real risk” that the prosecution would introduce expert evidence (through a “case agent”) in order to provide background to the operations of AQAP, such evidence could include material obtained through torture and the admission of that evidence could not be effectively challenged in the US trial procedure. The DJ should have concluded that either one of these risks would result in a “flagrant breach” of the appellant’s under

Article 6 of the European Convention on Human Rights

(“ECHR”) to a fair trial. This would make the appellant’s extradition incompatible with his ECHR rights, so the DJ should have discharged the appellant, pursuant to section 87(2) of the EA.

(3) If the appellant were to be extradited, he would be held on remand subject to Special Administrative Measures (“SAMs”), including his being the subject of a warrant to eavesdrop on him, which would be granted pursuant to 28 USC (a “Title III” warrant) or the Foreign Intelligence Surveillance Act (“FISA”). The consequence of these measures together would be that he would be unable to prepare for his trial, which would therefore be so unfair as to amount to a “flagrant breach” of the appellant’s Article 6(1) rights. The DJ erred in not reaching that conclusion.

(4) If the appellant were to be extradited, tried and convicted he would be subject to such stringent prison conditions at the US Penitentiary Administrative Maximum Facility, Florence, Colorado (“AMX”); this would amount to an infringement of his right under

Article 3 of the ECHR

not to be subjected to inhuman or degrading treatment or punishment. The DJ erred in not reaching that conclusion.

(5) The DJ erred in failing to conclude that the length of the sentence that the appellant faced was likely to be 50 or 60 years, which would be (a) totally disproportionate and, (b) in any event, would be “irreducible”. In either case, the sentence would be such that extradition would amount to a breach of his Article 3 rights.

(6) The DJ erred in rejecting the evidence of Dr Thomas concerning the mental health of the appellant. That evidence had a material effect on the issue of whether detention in the AMX, subject to SAMs, and the length and nature of any potential sentence would mean that his extradition would be in breach of the appellant’s Article 3 rights.

(7) The DJ erred in rejecting the argument that the appellant’s extradition would be a disproportionate breach of his Article 8 rights to family life, particularly as he could be prosecuted in the UK for substantially the same offences for which his extradition is sought.

(8) Finally, the DJ erred in rejecting the argument that the extradition of the appellant is prohibited by the “forum bar”, which has been introduced into the EA at section 83A by virtue of the amendments made to the EA pursuant to Schedule 20 of the Crime and Courts Act 2013.

[6]Mr Southey also raised a further point concerning the conduct of District Judge Evans during the extradition hearing. It is said that he had prepared his written judgment, including a section on the “forum bar” issue, before he had heard oral argument on the point on 25 November 2013. As a result it is said that in his Ruling of 25 November 2013 he failed to deal with key arguments that Mr Southey wished to raise. It is said that this is evidence of bias by the judge and it taints his other findings of fact and law.

[7]Lastly, we must deal with the argument that if the appellant were to succeed in his case in the Supreme Court on the issue of his citizenship, it would provide him with a further argument based on his Article 6 rights.

[8]We heard oral argument on 15 and 16 July 2014 on all these topics save for (5)(b) above. The issue of the extent to which the extradition of a person who faced the prospect of an “irreducible” sentence which was either very long or for life would be contrary to the person’s Article 3 rights had been argued extensively before a differently constituted Divisional Court on 18 – 19 June 2014, in Harkins v USA, (“Harkins 2”), It is referred to as “Harkins 2” because the case had already been before the Divisional Court in 2011:

[2011] EWHC 920 (Admin)

. in which the argument centred on the effect of the decision of the Grand Chamber of the European Court of Human Rights (“ECtHR”) in Vinter v United Kingdom (“Vinter”). [2013] ECHRR 19. Judgment in Harkins had been reserved. It was agreed with counsel in this case that when that judgment was handed down, the parties would be invited to consider it and submit in writing further arguments needed to be made on that point. Judgment in Harkins was due to be handed down in early September, but it was delayed because, on 4 September, the ECtHR handed down its judgment in Trabelsi v Belgium [2014] ECHRR 893 , three days before a draft of the judgment in Harkins was given to counsel in that case. Counsel in that case requested permission to make further written and oral submissions. Judgment in Harkins 2 was handed down on 7 November 2014.

[2014] EWHC 3609 (Admin)

. We then invited counsel in the present case to make further written submissions on the effect of Vinter, Harkins 2 and Trabelsi. In the meantime, the ECtHR handed down another judgment on whole-life sentences in Affaire Bodein v France, Requête No 40014/10. which the court drew to the attention of counsel. We received all the further written submissions by 1 December 2014 and we decided that we could finalise our judgment without the need for further oral submissions.

[9]We will summarise the relevant factual background, the arguments of the parties and then the reasons for our conclusion on each of the eight grounds in turn. II. Ground 1: Is it “likely” or is there a “real risk” that the evidence of Mr Warsame was obtained through torture or inhuman or degrading treatment so that the appellant’s extradition must be barred as a matter of common law?

[10]There is no dispute that Mr Warsame was captured at sea by US forces on 17 April 2011, where he was taken from a vessel in the Gulf of Aden and put on board USS Boxer, a US Navy helicopter attack ship. The capture was apparently made under the “Authorisation for Use of Military Force”, or “AUMF”, which was a joint resolution of both Houses of Congress made in the immediate aftermath of the al Qua’ida attacks on the USA on 11 September 2001. This resolution authorised the President of the USA to use US armed forces against “those responsible for the recent attacks launched against the United States”. There is also no dispute that Mr Warsame remained in USS Boxer for a period of about two months, during which time the warship remained in the area of the Gulf of Aden. He was “incommunicado” during that time in the sense that he did not have access to the outside world or to lawyers. Whilst on board Mr Warsame was interviewed by “non law-enforcement personnel”. The phrase is used in the letter of the Department of Justice to the CPS Extradition Unit dated 13 May 2013 which was before the DJ. Before us, this phrase was taken to mean that the interviewing personnel were not employed by the Federal Bureau of Investigation. There was no directevidence before the DJ of who the interrogators were, but we are prepared to infer that they must have been military and/or non-FBI civilian personnel. There was no directevidence before the DJ of the conditions in which Mr Warsame was detained in the ship, nor the circumstances, duration and manner of his interrogation. It is, however, common ground that any interrogation of Mr Warsame during this period would, by US law, have to have been in accordance with the US Army Field Manual (the “AFM”).

[11]Paragraph 5-74 of the AFM stipulates that all captured or detained personnel, regardless of status, shall be treated humanely and that “no person in the custody or under the control of the Department of Defense, regardless of nationality or physical location, shall be subject to torture, or cruel, inhuman or degrading treatment or punishment in accordance with and as defined in US law”. The AFM has a section, enclosed in a box for emphasis, which is headed “Cruel, inhuman or degrading treatment prohibited” in which there is a further definition. Paragraph 5-75 stipulates some of the actions that are prohibited during intelligence interrogations, although the prohibited actions are not limited to those identified.

[12]Appendix M of the AFM is headed “restricted interrogation technique – separation”. Paragraph M-1 states that “Human Intelligence collectors” may be authorised, in accordance with that appendix, to “employ the separation interrogation technique, by exception, to meet unique and critical operational requirements”. There are detailed provisions as to when this technique can be used and precisely how it is to be used. Paragraph M-26 emphasises that the technique “does not constitute sensory deprivation, (as defined), which is prohibited.” The separation interrogation technique, if used, is to be limited to 30 days “of initial duration”, although extensions can be approved. The use of the technique must not preclude the detainee from “getting four hours of continuous sleep every 24 hours”.

[13]It is accepted by counsel for the appellant that there was a four day break after the interrogation by “non-law enforcement personnel”, during which time the Red Cross may have visited Mr Warsame on board USS Boxer. It is not in dispute that, thereafter, the FBI interviewed him, having advised him of his right to remain silent and to appoint a lawyer. The FBI interviews took place both on board USS Boxer and after Mr Warsame was flown to New York. During the latter period he was represented by counsel.

[14]Materials were put before the DJ in support of the contention that it was likely, or that there was a “real risk”, that Mr Warsame was detained and interrogated in conditions that would amount to torture or inhuman or degrading treatment for the purposes of

Article 3 of the ECHR

. The materials were adduced through the written and oral evidence of Mr Nicholas Fielding, a British journalist who has specialised for 15 years in writing about various Islamist movements about the world. He provided a witness statement which commented, first, on the identity of the people the appellant is alleged to have met in the Yemen. He commented, secondly, on the conditions of detention and the methods of interrogation of Mr Warsame which, in his opinion, would have been used on board USS Boxer. At paragraph 19 of the statement, Mr Fielding says that there is no evidence that Mr Warsame was permitted to contact family members during his detention or precisely when the Red Cross were aware of his case. He says that there is no information about the conditions under which he was held. The fact that he was interrogated (at least initially) under the terms of the MFM, would not “rule out the possibility of his having received ill-treatment”, because some interrogations permitted, such as sleep deprivation, threats of force or sensual deprivation, “are capable of being construed as ill-treatment”. In cross-examination before the DJ Mr Fielding accepted that whether such techniques were used in the interrogation of Mr Warsame was speculation.

[15]The US Department of Justice’s letter to the CPS dated 28 May 2013 states as follows in relation to Mr Warsame’s detention on board USS Boxer:

“With regard to Warsame’s detention on board a United States Navy vessel prior to his landing in the Southern District of New York, the defense’s claims of torture are entirely without factual basis. Warsame was not tortured, abused, or in any way mistreated. Warsame was captured lawfully by the United States, pursuant to the [AUMF]….Warsame’s capture was not the result of any torture or information derived from torture. Warsame was first held and questioned aboard a United States Navy vessel. During first approximately two months aboard the referenced United States Navy vessel, Warsame was interviewed by non law-enforcement personnel. During the final week or so aboard the referenced United States Navy vessel, law-enforcement agents interviewed Warsame. The law-enforcement interviews were wholly separate from the prior non law-enforcement interviews…”

The letter also states that at the appellant’s trial, Mr Warsame would give evidence in the same way as any other witness in a US criminal prosecution; he would testify under his own name and in public before the appellant and the jury and he could be cross-examined by counsel for the appellant.

[16]Mr Hugh Southey QC, on behalf of the appellant, advanced the following propositions of law concerning evidence alleged to have been obtained by means that were in breach of

Article 3 of the Convention

rights of the potential witness:(1) by the common law any evidence obtained by torture, irrespective of where, by whom and on whose authority that torture was inflicted, will be excluded from proceedings in a British court against a party. What amounts to “torture” is not immutable. A v Home Secretary (No 2)

[2006] 2 AC 221

at [51]-[53] per Lord Bingham of Cornhill. He was in the majority on this issue. He was in the minority on the issue of the burden of proof.

(2) The same rule should apply to evidence that had been obtained from Mr Warsame by inhuman or degrading treatment such as would be contrary to

Article 3 of the ECHR

, irrespective of whether that treatment amounted to torture, because his evidence would be decisive to the outcome of proceedings against the appellant in the US court. El Haski v Belgium

(2013) 56 EHRR 31

at [85].

(3) If there are reasonable grounds to suspect that evidence has been obtained in circumstances which amount to a breach of the witness’ Article 3 rights, then that issue must be diligently investigated by the relevant court. Under English law there may not be a conventional burden of proof on the person asserting “torture” or equivalent. In any event the standard of proof is a balance of probabilities. A v Home Secretary (No 2) (supra) at [116] – [118] per Lord Hope of Craighead, who spoke for the majority on this issue. In the Strasbourg jurisprudence, by analogy with extradition cases concerning possible breaches of Article 3, the test is whether it is established that there is a “real risk” that the evidence was obtained in a way that breached the person’s Article 3 rights. El-Masri v Former Yugoslav Republic of Macedonia

(2013) 57 EHRR 25

at [201]-[214].

(4) If the basis of extradition was evidence that was obtained from a witness by treatment that was contrary to his Article 3 rights then extradition would be barred as an abuse of process, as a matter of common law.

[17]For present purposes we are prepared to accept these propositions of law as being well founded.

[18]On the facts, Mr Southey submitted that the DJ should have drawn various inferences from the evidence that was before him. He should also have drawn adverse inferences from the fact that US Department of Justice did not elaborate on the statement made in the letter of 28 May 2013, which, he submitted, constituted a bald and unconvincing narrative, which lacked any corroborative detail to give it verisimilitude of any description. He submitted:(1) the DJ was prepared to accept that Mr Warsame was detained “incommunicado” on board USS Boxer for some 2 months. If so, that in itself would be in breach of Article 3.

(2) Mr Fielding’s evidence was that he thought Mr Warsame would be likely to have been held in the ship’s “brig”, or prison quarters, which would have been very small, for the whole of that time. This amounted to a “separation interrogation technique”, which should have been for a maximum of 30 days under the MFM rules and could only have been allowed if specifically authorised.

(3) The MFM rules contemplated the use of techniques by interrogators which techniques would be contrary to Article 3, even if they were regarded as acceptable according to US law.(4) It was likely that whilst Mr Warsame was interrogated by “non law-enforcement agents” on board USS Boxer, he was subjected to sleep deprivation and either force or the threat of the use of force, all of which would be contrary to his Article 3 rights. (5) Before the DJ, the evidence of Mr Joshua Dratel, a New York attorney specialising in criminal defence work, was that the MFM would not necessarily apply if the CIA had been involved in the interrogation of Mr Warsame. Mr Fielding’s evidence was that there was a dispute between the CIA and the FBI as to what treatment in interrogation was acceptable. That meant there was a possibility of even more extreme techniques being used. (6) Mr Warsame had no access to a lawyer during the period of his interrogation by “non law-enforcement agents” on board USS Boxer. That undermined the reliance that could be placed on any material obtained during his incommunicado detention. (7) The evidence before the DJ, particularly that of Mr Dratel and Mr Fielding, was sufficient reasonably to raise the issue of the evidence of Mr Warsame having been obtained either by torture or by inhuman or degrading treatment. The DJ failed to conduct diligent enquiries to determine whether it had been established, on a balance of probabilities, that the evidence of Mr Warsame had been so obtained.

[19]In the further written submissions made on behalf of the appellant following the ECtHR’s decision in Trabelsi, Mr Southey also advanced arguments on this ground of appeal, even though we had not asked for them. The arguments were based on the ECtHR’s very recent decision in Al-Nashiri v Poland, Application No 2876/11. Decision given on 24 July 2014. to the effect that evidence advanced in that case demonstrated that various techniques were used by the CIA during the interrogation of terror suspects at locations outside the USA, which included Article 3 non-compliant treatments such as stress positions, threats of force, sensual deprivation and sleep manipulation. It was submitted that the material referred to in Al-Nashiri helped to prove that Mr Warsame was “highly likely” to have been held in solitary confinement, without the ability to exercise for the entirety of his detention on board USS Boxer and the aim of the treatment was likely to have been to obtain particular information, and so constituted “torture” for Article 3 purposes.

[20]We have concluded that there is insufficient evidence on which to hold that there are reasonable grounds to suspect that the evidence that Mr Warsame would give in the US proceedings against the appellant has been obtained by means which would amount to either torture or a breach of his Article 3 rights. The first and most important point is that the evidence of Mr Warsame that would be used in the US court will not consist of any material that was elicited from him during any interrogation by non law-enforcement agents during the two month period in USS Boxer before the FBI were involved. The evidence will be based on the statements taken by the FBI after Mr Warsame had been advised of his right to silence and (at the least) which were not completed before he had access to a lawyer. Secondly, there is simply no evidence whatsoever about the conditions in which Mr Warsame was kept during the time of his interrogation in the ship, nor who interrogated him, nor under what conditions. The fact that there have been other circumstances where various US government agents have been involved in gross violations of the human rights of persons from whom intelligence was sought Cf. the facts of the case of El-Masri v Former Yugoslav Republic of Macedonia

(2013) 57 EHRR 25

as well as those in Al-Nashiri. is of no assistance in demonstrating that there are reasonable grounds for suspecting torture or inhuman or degrading treatment occurred in this case. As Mr Fielding frankly admitted to the DJ in cross-examination, he was speculating whether techniques, whether those permitted by the MFM or others, were used in the case of Mr Warsame. Nor is there any evidence that any material obtained from interrogation of Mr Warsame by the non law-enforcement agents formed a part of the evidence taken by the FBI agents that would be used at the appellant’s trial. It is, in our view, of prime importance that when Mr Warsame confirmed the content of the statements taken by the FBI agents, he was both on USA territory and was represented by counsel.

[21]As for Mr Southey’s further submissions based on Al-Nashirir v Poland, it is vital to note that the applicant in that case, Mr Al-Nashiri, had made positive allegations as to what had occurred to him when in CIA detention. The ECtHR considered that whatever the test or initial burden of proof that had to be passed by a person raising an allegation of torture, it was satisfied in that case. The court then examined much material and took evidence from a number of witnesses, including three expert witnesses on the alleged use of secret detention facilities in Europe by the CIA and the treatment of detainees/those interrogated at those facilities. On the basis of all the material the ECtHR found the allegations of Mr Al-Nashirir well-founded. In this case there is not even an assertion by Mr Warsame that he was subjected to ill-treatment or torture. There is no factual allegation by him on which to test anything. We reject the proposition that background material in another case, whose circumstances are far-removed from the present one, can provide either sufficient evidence or even a presumption of a risk that there had been ill-treatment of Mr Warsame that was contrary to Article 3.

[22]Accordingly, we reject the submission that the extradition of the appellant should be barred because based on the evidence of Mr Warsame. We are not satisfied that there is a real risk that the evidence that Mr Warsame would give was obtained by torture or inhuman or degrading treatment. So we dismiss this ground. III. Ground 2: Is there a real risk that the evidence of Mr Warsame will be admitted at the trial of the appellant in the USA, such that there would be a “flagrant breach” of the appellant’s Article 6 rights to a fair trial.

[23]We consider first the legal framework. The position in English common law is clear and is stated by Lord Bingham of Cornhill in the House of Lords’ decision in A v Home Secretary (No 2).

[2006] 2 AC 221

. On this point the committee of seven was unanimous. Lord Bingham said: “The principles of the common law, standing alone, in my opinion compel the exclusion of third party torture evidence as unreliable, unfair, offensive to ordinary standards of humanity and decency and incompatible with the principles that should animate a tribunal seeking to administer justice”. [52]. Lord Bingham said that special rules had always been thought to apply to torture and they must continue to do so. However, “it would be wrong to regard as immutable the standard of what amounts to torture”. [53].

[24]On the other hand, evidence that had been obtained by ill-treatment falling short of torture would not always necessarily be excluded. In the context of English criminal procedure, if the prosecution attempted to adduce such evidence, then it might be excluded under section 78 of the Police and Criminal Evidence Act 1984 as adversely affecting the fairness of the proceedings. [53]

[25]The House of Lords was split on the question of the burden and standard of proof to be employed when a court had to decide whether or not evidence had been obtained by torture or, possibly, other ill-treatment. The circumstances of that case were particular. It concerned persons who had been detained as suspected international terrorists, whose deportation was sought by the Home Secretary, but who asserted that they could not be deported because they risked being tried in the receiving country on the basis of evidence that had been obtained by torture. The suspects were not aware of the provenance of the material against them on which the Home Secretary had concluded that they were international terrorists who should be deported. The opinion of the majority Lord Hope of Craighead, Lord Rodger of Earlsferry, Lord Carswell and Lord Brown of Eaton-under-Heywood. of the House was that in those circumstances the conventional approach to the burden of proof was inappropriate, because of the very limited access that a detainee would have to information that is to be used against him. Therefore, all he had to do was to “point to the fact that the information to be used against him may have come from one of the many countries around the world that are alleged to practice torture…”. Once that was done, then it became the task of the tribunal concerned, (in that case the Special Immigration Appeals Commission – SIAC), to investigate and decide whether there were “reasonable grounds to suspect that torture has been used in the individual case under scrutiny”. If it had such a suspicion it had to investigate it. Ultimately, however, the tribunal had to be satisfied on a balance of probabilities that the evidence had been obtained by torture. [116] – [118] of the speech of Lord Hope.

[26]The leading decision of the ECtHR in this area of the law is Othman v United Kingdom.

(2012) 55 EHRR 1

The UK wished to deport Mr Othman to Jordan on the ground that he was a threat to national security. He challenged the deportation order on the ground (amongst others) that he would face a retrial of offences of which he had been convicted in his absence and that evidence would be adduced against him that had been obtained by torture. The House of Lords found for the UK government, holding that it was entitled to rely upon the statements given by the Jordanian government providing assurances of compliance with human rights standards.

[27]In the course of its judgment the ECtHR therefore had to consider the Convention principles to be applied when a Contracting State wished to deport a person to a country where he might then face a trial in which the evidence against him had been, or may have been, obtained by torture. We can summarise the ECtHR’s conclusions as follows:(1) A legitimate ground for resisting the deportation or extradition of a person from a Contracting State is that he would risk suffering a “flagrant denial of justice” in the state to which he was sent. In the context of a potential criminal trial of the person sought to be deported or extradited, the risk of a “flagrant denial of justice” would constitute a breach of that person’s Article 6 rights. [259]

(2) There will only be a “flagrant denial of justice” such as might result in a breach of Article 6 rights of the person whose expulsion from the Contracting State is sought if the breach of the principles of a fair trial would be so fundamental as to amount to a nullification or destruction of the very essence of that principle. [260].

(3) It is for the applicant to adduce evidence capable of proving that there are substantial grounds for believing that if he is removed from the Contracting State, he would be exposed to a “real risk of being subjected to a flagrant denial of justice”. Where such evidence is produced, it is then for the government (of the Contracting State) to dispel any doubts about it. [261].

(4) If any evidence which had been obtained by torture were to be admitted in a criminal trial against a person, that would constitute a “flagrant denial of justice”. [263]-[267].

(5) Similar considerations might apply to evidence obtained by other forms of ill-treatment that fell short of torture, but that issue did not arise on the facts of that case. [267].

(6) It is for the applicant to demonstrate that there is a “real risk” that the evidence that would be adduced against him in a criminal trial in the country to which he was to be deported/extradited had been obtained by torture. Any higher burden of proof suggested by the majority of the House of Lords in A v Secretary of State for the Home Department (No 2),

[2006] 1 AC 221

. was not accepted. [273]-[274] of the ECtHR’s judgment. However, where the trial will take place in a criminal justice system which is independent of the executive and where allegations of torture are conscientiously investigated, it is conceivable that a higher standard than “real risk” would have to be met by a person alleging that evidence obtained by torture would be admissible against him. [276].

[28]Subsequently, in the case of Gäfgen v Germany,

(2011) 52 EHRR 1

. which concerned the fairness of the trial of an individual in a Contracting State, Germany, the Grand Chamber of the ECtHR appears to have adopted the view that if evidence that had been obtained as a result of any violation of Article 3 was adduced in a criminal trial and such evidence had “an impact on [the] conviction or sentence” of the defendant, then that could impugn the fairness of the trial under Article 6. This point was taken up in ECtHR’s decision in El Haski v Belgium,

(2013) 56 EHRR 31

. which concerned the effect on the fairness of a criminal trial in a Contracting State of the admission of evidence said to have been obtained in a third state in breach of Article 3. The Court drew a distinction between the use of statements and “material evidence” in a trial. In the case of statements, the Court held that the use of such evidence in criminal proceedings, “irrespective of the classification of [the] treatment as torture, inhuman or degrading treatment”, made the proceedings as a whole “automatically unfair and in breach of Article 6.” The court made it clear that “statements” meant either the statement or confession of a defendant in the trial or that of some other person. [85]

[29]The ECtHR did not indicate what it meant by “material evidence”. It must mean the evidence of a person, because the Court was concerned with the issue of whether this evidence was obtained in breach of Article 3 rights, which can be enjoyed only by a person. But, in relation to “material evidence”, whatever that constitutes, the Court distinguished between evidence obtained “directly as a result of torture” and that which was obtained in breach of other Article 3 rights that fell short of torture. In the first case the use of such evidence automatically made the criminal proceedings unfair and in breach of Article 6. In the second case the use of such “material evidence” would not be contrary to Article 6 “unless it is shown that the breach of Article 3 had a bearing on the outcome of the proceedings, that is, had an impact on the conviction or the sentence”. [85]

[30]How does this legal framework apply to the facts of this case? For the purposes of this appeal from the decision of DJ Evans, we are prepared to proceed on the basis of the case law in the ECtHR and the standards that it has set. On that footing, the evidence of Mr Warsame would constitute “material evidence” in the proposed trial of the appellant. Mr Warsame’s evidence would have a “bearing” on the outcome of those proceedings. Plainly that evidence, if admitted and believed by the jury, would have a major impact on whether the appellant were convicted or not. We are also prepared to adopt the tests on the burden and standard of proof set out by the ECtHR in Othman, and apply them to evidence obtained either by torture or other means that would be contrary to the Article 3 rights of the person who provided the evidence. On those bases the key question is: has the applicant adduced evidence capable of proving that there are substantial grounds for believing that if he were removed from the Contracting State, he would be exposed to a “real risk of being subjected to a flagrant denial of justice” because the evidence of Mr Warsame was obtained by torture or other means contrary to his Article 3 rights? If such evidence is produced, then it would be for the US government to demonstrate that any doubts about how that evidence was obtained can be dispelled.

[31]In our view there are two insuperable difficulties for the appellant on the first part of this ground of appeal. First, the lack of any convincing evidence that the testimony that Mr Warsame would give at the appellant’s trial had, in fact, been obtained by torture or by means contrary to Mr Warsame’s Article 3 rights. We refer to what we have said in this regard in Section II above. Secondly, even if it had been, there is no convincing evidence that such testimony would be admissible as evidence in the trial in the USA. The trial will be one in a normal criminal court before a jury and Mr Warsame will give evidence in person in front of the jury in the normal way. Mr Pham’s counsel will be able to cross-examine him. If there is a challenge to the admissibility of Mr Warsame’s evidence, it appears from the decision of the US District Court for the Southern District of New York in USA v Ahmed Khalfan Ghailani (2010) 743 F. Supp 2d 261 that the principle is that statements made under “government coercion” will not be admitted, unless it is proved that the connection between “the illegal government action and the evidence offered at trial…[is] so attenuated as to dissipate the taint”. See page 275 of the report. The court in Ghailani held that this followed the principles laid down in the US Supreme Court decision of United States v Cecolini. 435 US 268, 98 S Ct 1054 It is clear from the Ghailani case that the practice of the court is to test the witness whose evidence is challenged in a voir dire, even when the witness whose evidence is challenged asserts that he had voluntarily co-operated with the law enforcement agencies.

[32]In the Affirmation of Mr Dratel he states that, under US law, when there is a challenge to a witnesses’ evidence on the ground that it was not obtained voluntarily, the burden is on the government to demonstrate “by a preponderance of the evidence” that the allegedly coerced statement was made voluntarily. This means that the point has to be proved on the balance of probabilities, not to the criminal standard. We will assume that is correct. We accept that this demonstrates a difference between US and English procedural law on the standard of proof if a question like this arises. But the ultimate question is whether there would be “real risk” of a “flagrant breach” of the Article 6 rights of the appellant to a fair trial in the US. Given the integrity of the US judicial system and the paucity of credible material to suggest that Mr Warsame’s evidence was obtained by means that infringed his Article 3 rights, we have to agree with District Judge Evans at [26] of his judgment that there is no “real risk” of any tainted evidence from Mr Warsame being given in any trial of the appellant.

[33]There is a further point about evidence that might be given by a “case agent” to explain the way in which AQAP works. This point was made in the evidence to the District Judge of Mr Clive Stafford Smith. He said that a “case agent” would give “an overview” of the evidence that purported to prove the conspiracy. This evidence is essentially of a background nature, including matters such as the organisation of AQAP and the material will be derived from “intelligence”. Mr Stafford Smith asserted in evidence that much of this “intelligence” evidence will itself have been extracted under torture from people such as Khalid Sheikh Mohammed “who”, he said, “very certainly was waterboarded”. He said that much or all of such “background” evidence will be hearsay and difficult to challenge.

[34]We agree with the District Judge’s assessment of this evidence of Mr Stafford Smith. It is very generalised, vague and speculative. Any evidence from a “case agent” of the type Mr Stafford Smith identified will be open to challenge in the US trial. Nor should we assume that a US jury will be gullible in respect of “case agent” evidence or indifferent to challenges to this kind of evidence.

[35]Mr Southey also challenged the District Judge’s rejection of the argument that the appellant would be put at a material disadvantage by not having full access to classified material either from the US government or from closed sessions of SIAC in the UK proceedings on the appellant’s nationality status. Even assuming that this could, arguably, amount to a breach of the appellant’s Article 6 rights, we agree with the District Judge that both these points are very speculative. Doubtless the US judge will deal with all such evidential points in a robust way. In our judgment there is no risk that this would amount to a “flagrant denial” or “flagrant breach” of those rights so as to deny him justice.

[36]We reject the appellant’s arguments on this ground. IV. Ground 3. Is the fact that the appellant would be held on remand subject to SAMs and the subject of a FISA warrant amount to a “flagrant breach” of his Article 6 rights?

[37]Special Administrative Measures, or “SAMs” can be applied to a prisoner either whilst on remand awaiting trial or when imprisoned after conviction. They are measures designed specifically for a particular prisoner. The measures are imposed by the US Attorney General but are executed by the Federal Bureau of Prisons or “BOP”. They are applied when “there is a substantial risk that a prisoner’s communications or contacts with persons could result in death or serious bodily injury to persons or substantial damage to property that would entail the risk of death or serious bodily injury to persons”. The DJ accepted that the profile of the appellant was such that he “might well be subject to SAMs”. [39] of his reasons. That conclusion was not challenged by the Respondent before us.

[38]The submission of Mr Southey, based on the evidence of Professor Laura Rovner and Mr Dratel, is that an order made to impose SAMs on the appellant would restrict considerably all his non-legal contacts, both by telephone and directly, with family, friends and others. The evidence of Mr Dratel before the DJ was that detainees subject to SAMs can become fixated with the terms of their SAMs to the detriment of their defence at the forthcoming trial, thus leading to a breach of Article 6 rights. He goes so far as to suggest that the prospect of the imposition of SAMs on a detainee is a part of a “coercive process” which is either designed to or simply does have the effect of eliciting a guilty plea.

[39]Once again, we regard this argument as speculative. It cannot be known to what SAMs the appellant will be subjected. We think it is fanciful to suggest that any resulting effect of the SAMs could amount to a “flagrant breach” of the appellant’s Article 6 rights with regard to his trial in the USA. Similar arguments were raised on behalf of the applicants in the admissibility case before the ECtHR of Babar Ahmad and others v United Kingdom. (2007) app No 24027/07. The ECtHR found, first, that there was no evidence that SAMs were coercive. Secondly, it recognised that Article 6 and the Eighth Amendment to the US Constitution were “strikingly similar” and that there was every reason to believe that a trial judge would respect a defendant’s rights under the Eighth Amendment. Thirdly, the Court found that even if being subject to SAMs would have an adverse effect on the well-being of a defendant, it was not such as to impair their Article 6 rights such as to amount to a “flagrant breach”. See [133] of the ECtHR’s judgment.

[40]The next submission, also based on the evidence of Mr Dratel before the DJ, is that, whilst in pre-trial detention, the appellant would be made the subject of an “eavesdropping warrant” either under ordinary provisions applicable in criminal investigations Pursuant to 28 USC para 2510. or the Foreign Intelligence Surveillance Act, or FISA. The result would be that the telephone calls, letters, emails, faxes and conversations between the appellant and his lawyers will be both overtly and covertly monitored whilst he is in custody, both before and after his trial. Moreover, if a FISA warrant is obtained, then the authorities need give no prior notice to the attorney or client that eavesdropping is to take place. The FISA warrant would authorise the interception of all communications, whether the subject of legal professional privilege or not. Any material intercepted need not be disclosed unless it is considered relevant discovery in a criminal prosecution. The effect of the possibility of a FISA warrant being obtained has been that lawyers have been less willing to defend those who may be subject to them and defendants have been less willing to provide full instructions to their lawyers.

[41]Mr Southey submitted that the DJ erred in his conclusion at [45] that there was “no factual basis” for finding that an order for a FISA warrant would be made in the case of the appellant. He submitted that Mr Dratel’s oral evidence demonstrated that FISA warrants were commonly granted and particularly so if it is alleged that “foreign intelligence information” could be intercepted. Mr Southey argued that the court must assume that a FISA warrant would be granted and that any information obtained as a result could be passed to the prosecution, or at least that it would not be disclosed to the defence. Mr Southey submitted that the consequence of all this is that there would be a “flagrant breach” of the appellant’s Article 6 rights: he would be unable effectively to prepare his defence and he would be put at a significant disadvantage to the prosecution.

[42]We are prepared to assume, for the purposes of this appeal, that it is likely that the appellant would be subject to a FISA warrant and that there could therefore be monitoring of lawyer-client conversations. However, as the ECtHR pointed out in the Babar Ahmad (Admissibility) case, if material subject to legal professional privilege is intercepted under a FISA warrant, there are mechanisms in place to ensure it will not get to the prosecution. See [133]. Moreover, any such material could not be used to bring further charges against the appellant in US courts because of the Speciality Rule. Like the DJ, we are not satisfied that if the appellant were subject to interception of lawyer-client material under a FISA warrant, this would point to a “flagrant breach” of his Article 6 rights. V. Ground 4. Would the fact that the appellant would be detained (after trial) in the ADX, Colorado, amount to an infringement of his Article 3 rights such that he should not be extradited.

[43]We accept the proposition of law that if we are satisfied that there is a “real risk” that the appellant would be subjected to inhuman or degrading treatment by virtue of the prison conditions in the ADX, Colorado, such as would be a breach of his Article 3 rights, then that would be a bar to his extradition. Whether the conditions of detention of the appellant in the ADX would be such as to reach the necessary minimum level of severity as to be in breach of Article 3 is a question of fact in each case.

[44]The conditions of detention in the ADX, Colorado and whether they breached Article 3 were considered in detail in the judgment of the ECtHR in Ahmad v United Kingdom.

[2013] 56 EHRR 1

. That case concerned 6 applicants, all of whom the USA wished to extradite from the UK to face terrorist charges. Five of the applicants specifically raised the issue of detention conditions in the ADX and argued that they could resist extradition because detention there would constitute a breach of their Article 3 rights. Their arguments were rejected by the ECtHR. Subsequently, four out of five of the six applicants before the ECtHR attempted to bring judicial review proceedings in the English Court in a last ditch attempt to prevent extradition. The Divisional Court (consisting of Sir John Thomas, then President of the Queen’s Bench Division, and Ouseley J), rejected the applications. Abu Hamza and others v Secretary of State for the Home Department

[2012] EWHC 2736 (Admin)

. The Divisional Court held that the judgment of the ECtHR contained “a careful and clear elucidation of the facts which correctly reflected the evidence before it”. At [58].

[45]The DJ made detailed findings of fact about the ADX and the conditions likely to be encountered there if the appellant were to be convicted. The DJ found that if the appellant were to be subjected to SAMs after conviction, then there was a “strong likelihood” that he would be housed at the ADX. At [49]. The following is a summary of the DJ’s findings: the ADX is a high security prison built in the 1990s. It contains a “Special Security Unit” or “H-unit” where the appellant would be likely to be housed. All prisoners have their own cell with shower and lavatory, have “ready access to books”, and a television with access to 50 TV networks. This compared very favourably with prison conditions in some Council of Europe states. [49]-[51].

[46]The DJ referred to the decisions of the ECtHR and the Divisional Court in the Ahmad and Abu Hamza cases. He said:

“I see no value in my now reviewing all the evidence (which is voluminous) when this court knows that it has been reviewed at the highest level by judges in Europe and more recently here in the Divisional Court. None of the evidence put before this court is such that this court should reach a different conclusion than that reached in the two above cited cases”

. The DJ went on to conclude that, leaving aside the particular individual circumstances of the appellant, “..even if [the appellant] is convicted and held in ADX with SAMs then such a prospect would not violate

Article 3 of the Convention

”. [61].

[47]The argument of Mr Southey on this topic was that there was a real risk that the appellant would be permanently subject to SAMs in the ADX upon conviction. He submitted that it was established in Rezaq v Nalley, 677 F.3d 1001 (2012) a decision of the US Court of Appeals, Tenth Circuit, that there were no “due process” rights regarding decisions to place someone in the ADX and keep him there. That decision was not before either the ECtHR or the Divisional Court. The decision of the court below, ie. the Federal District Court, had been before the ECtHR: see [223]. Further, before the DJ, Professor Rovner had given additional statistical evidence on the likelihood of a prisoner in the ADX who is also subject to SAMs not being able to take part in the “step – down” programme which enables prisoners gradually to be subject to less restrictive detention and eventually to be transferred to a regular prison. Mr Southey submitted that the position had changed since the previous decisions and the DJ was wrong to conclude that it had not. The combination of the long period of time during which the appellant would be in the ADX and subject to SAMs and the fact that this could not be judicially challenged meant that there was a real risk of a breach of his Article 3 rights. Mr Southey said that this possibility was recognised by the ECtHR at [223] of its decision in the Ahmad case.

[48]In Rezaq, the applicants were all prisoners who had been transferred to the ADX. All had been convicted of terrorist offences. The applicants complained that they had been refused permission to take part in the “step-down” programme. They argued that by being confined to the ADX regime, they had been and were being deprived of their liberty without due process of law, contrary to the Fifth Amendment of the US Constitution and that they had a “liberty interest” which had to be protected by the court’s due process. The US Court of Appeals, Tenth Circuit, concluded:(1) the conditions in the ADX did not, in themselves, give rise to a “liberty interest”;

(2) there was no evidence that placement in the ADX lengthened a prisoner’s sentence, so that also did not give rise to a “liberty interest”;

(3) there existed a periodic review process at the ADX, which included opportunities for prisoners subject to that regime to make representations. “While plaintiffs were housed at the ADX for many years they were given regular revaluations of their placement in the form of twice yearly program reviews…[which] included procedural protections, including the chance to appeal decisions through an administrative process”. The existence of the periodic reviews suggested that the confinement in the ADX was not indefinite;

(4) the combination of all these factors indicated that “the inmates did not have a liberty interest in avoiding confinement at [the] ADX”. Therefore, the court did not “reach the question of whether the inmates received adequate process to justify their transfer to [the] ADX”.

[49]The effect of the Federal Appeal Court’s decision in Rezaq is that a placement in the ADX is not indeterminate. It is subject to periodic reviews which can be challenged administratively. Therefore the situation set out in [223] of the ECtHR’s decision in Ahmad, viz. that if an applicant were at real risk of being detained “indefinitely” in the ADX, it would be possible for the minimum levels of severity to be reached to found a breach of Article 3, is not made out.

[50]The DJ was very doubtful that Professor Rovner had given any new evidence before him that was not considered either by the ECtHR or the Divisional Court. Having considered the material, we agree. The position has not materially changed and we conclude that, overall, the evidence does not found a case that the level of severity has reached the Article 3 threshold level.

[51]We therefore reject this ground. However, as noted above, we consider separately the submission that the appellant’s health raises a distinct issue under either Article 3 or Article 8. VI. Ground 5. Would the sentence imposed on the appellant be(a) “grossly disproportionate”; or

(b) “irreducible” so that, (in either case) to extradite the appellant would be in breach of his Article 3 rights.

[52]The judge did not deal with this in his original Ruling, which was promulgated on 25 November 2013. He promulgated a further Ruling on 18 December 2013. In his second Ruling the judge considered the evidence of Ms Mary Ellen Warlow, a Director of the US Department of Justice, who had written a letter dated 4 September 2013 to deal with the issues of what sentences might be imposed on the appellant were he to be convicted of the five offences of which he is charged. Her evidence was that because counts 1 to 4 are all based on the same course of conduct, they would constitute a group of “Closely Related Counts” and the sentences imposed in respect of them would not be consecutive but would be concurrent. Thus count 5 (the firearms charge) was the only count that had to be “stacked” – ie. made consecutive to the sentences imposed on the other counts. The minimum sentence on that count is one of 30 years. Mr Dratel had dealt with the likely sentence and parole in his evidence. He concluded that the appellant faced a sentence of 50-60 years without parole.

[53]The DJ concluded that a “more realistic estimate of the likely length of the final aggregate sentence is in the range of 30 to 45 years”: see [100] of the Ruling. On the assumption, which the judge regarded as “unrealistic”, that there would be no parole or remission for good behaviour, then the appellant, who was 30 at the time of the Ruling, would be imprisoned until the age of 60 to 75. The judge did not regard that as being “disproportionate”. [100] of the Ruling.

[54]The DJ then referred to and summarised the decision of the Grand Chamber of the ECtHR in Vinter. He concluded: “[The appellant] is not facing life imprisonment, just the real possibility of a very lengthy sentence. I do not accept that such a lengthy sentence is akin to or a de facto life sentence which would breach

Article 3 of the ECHR

. Nor do I accept that a lengthy sentence in conditions of ADX imprisonment breaches Article 3”. [103] of the Ruling.

[55]Mr Southey’s first attack is on the judge’s finding that the likely length of the sentence overall would be between 30 to 45 years. He submitted that this finding was not open to him on the evidence. Mr Southey referred to the evidence of Mr Dratel on length of sentence and what he called Mr Dratel’s unchallenged evidence that there is no parole arising from Federal Court sentences and that any possibility of early release is “vanishingly small”. In Mr Southey’s submission, the evidence is that the appellant faces a sentence of between 50 to 60 years without parole, so that, if he were to live that long, he would be between 80 and 90 upon release. Such a long sentence is, he submitted, a de facto life sentence. In his further written submissions dated 14 November 2014, Mr Southey maintained this argument. He submitted that such a sentence would be grossly disproportionate, particularly if it is compared with the likely length of sentence that would be imposed by the English courts for a similar type of offence. He noted that Imran Mahmood and Richard Dart received extended sentences of 9 years 9 months and 6 years respectively for offences of receiving terrorist training in Pakistan with the potential of carrying out acts of terrorism in the UK. He also submitted that since there was a “real risk” that the appellant would be subject to a sentence of 50-60 years, which was, de facto, a life sentence without parole, that meant that Article 3 was engaged. Such a determinate sentence would be “irreducible” because there is no real possibility of parole or early release. In practice, the sentence would be served in the ADX, Colorado. Accordingly, to extradite the appellant would be to be a breach of his Article 3 rights.

[56]In his further written submissions Mr Southey appeared to accept that this court was bound by its decision in Harkins 2 to conclude that the principles in Vinter concerning whole life sentences without parole could not be lifted wholesale into the extradition context. Therefore, as we understand it, Mr Southey had to accept that, at least before this court, the principal issue was whether the sentence that it is likely to be imposed on the appellant would be “grossly disproportionate”. On that point, Mr Southey submitted that there was no evidence to suggest that the appellant’s sentence would be reduced by 15% for good behaviour and, even if it did, it would not affect the de facto “whole life” nature of the sentence by reducing one of 50-60 years to 43-52 years. In any event, the application of principles stated by the Grand Chamber in Vinter in the subsequent ECtHR decision of Trabelsi which concerned extradition, meant, (in the extradition context), that there were two key requirements in respect of a de facto life sentence to ensure that extradition would not breach Article 3. First, that an offender would know, at the outset of his sentence, what he must do to be considered for release before the end of his whole-life sentence. Secondly, that it was clear under what conditions and when there would be a “dedicated review mechanism” to consider his sentence. Mr Southey particularly relied on [122] of Vinter. Mr Southey submitted that non-judicial measures, such as a Presidential pardon or a commutation of sentence had never been applied to terrorist offenders in the USA and, in any event, such a mechanism did not make a de facto life sentence compatible with Article 3.

[57]Mr Caldwell, for the respondent, pointed out that it had only been at the extradition hearing itself that the issue of whether the length of the sentence would give rise to an Article 3 issue was raised. He disputed the assertion that the evidence of Mr Dratel on sentence length went unchallenged and he relied on the letter of Ms Warlow dated 4 September 2013. He submitted that a likely sentence of between 30 to 45 years could not be regarded as “grossly disproportionate”, given the allegations made against the appellant.

[58]Mr Caldwell stated that the issue of “reducibility” of the sentence had not been a point taken before the extradition hearing and so was not dealt with in the parties’ written submissions. Given the number of other issues that the judge had to deal with, the appellant was unduly critical of the DJ concerning the omission to deal with this point in the original Ruling.

[59]On the substance of the issue of “reducibility”, Mr Caldwell emphasised that a life sentence as such would not be imposed on the appellant. Therefore, in accordance with the evidence of the US Department of Justice, which had been accepted by the ECtHR in the admissibility case of Babar Ahmad v UK,

[2010] 51 EHRR SE6

. there were four ways that a sentence imposed by a US Federal Court could be reduced, in addition to a right of appeal against sentence. The four methods are detailed at [72] of the ECtHR’s judgment.

[60]In his further written submissions, Mr Caldwell submitted that if the appellant were to be sentenced to a determinate sentence, which itself was not “grossly disproportionate” then it could not be a breach of Article 3 to extradite the appellant. He relied on statements of Gross LJ and Davis J in Inzunza and others v Government of the USA.

[2011] EWHC 920 (Admin)

in particular in the judgment of Gross LJ at [41] and of Davis J at [84]. The court also considered Mr Harkins’ case first time round in this judgment. Therefore, in his submission, the issues on whole life sentences without parole that were dealt with in the recent ECtHR decisions of Vinter and Trabelsi did not arise for consideration in this case.

[61]We agree with Mr Caldwell that the Article 3 issues raised by the ECtHR concerning sentences of “whole life without parole” and persons who may face such sentences if extradited do not arise on the facts in this case. We cannot forecast what sentence the appellant will face if he were to be convicted on all five counts in the US court. However, like the DJ, we would accept the evidence of Ms Warlow that the US court would be likely to follow the Sentencing Guidelines in this case. It is likely that the US court would regard all five counts as arising out of the same conduct (as an English court almost certainly would) and so be regarded as “Closely Related Counts”. Accordingly, the sentences imposed for the four counts other than count 5 (the firearms charge) would be likely to be served concurrently one with the other. We accept that the sentence on the fifth count would have to be consecutive to the sentences imposed on the other counts. We note that there is a statutory minimum for the firearms offence of 30 years and that the maximum sentence for that offence is life imprisonment. We also note that the US court has a discretion to order that the sentences for counts 1-4 could be treated as “time served” so that the total sentence would, effectively, be that imposed in respect of count 5.

[62]On the facts of this case, we, like the DJ, have concluded that there is not a “real risk” that the appellant would face a total sentence of “life imprisonment” or a sentence of “whole life without parole”. We agree with the DJ that the fact that the total determinate sentence may be very long, eg between 30 and 45 years, does not make it a sentence of “life imprisonment without parole” and so introduce the issue of “irreducibility”. We agree with the statements of Gross LJ and Davis J in the Inzunza case Paras [41] and [84]. that a lengthy determinate sentence does not become a de facto life sentence just because it is long so that, in practice, there is a risk that the offender may die before the sentence is completed. Mr Southey’s proposed ground for distinguishing that case, viz. that the offences had been committed in the USA so there was a very strong public interest in extradition, is not relevant. This is because, as in Harkins 2, we would be prepared to accept that the “relativist” approach to Article 3 and whole life sentences in the extradition context, as had been advanced by the majority of the House of Lords in R (Wellington) v Secretary of State for the Home Department,

[2009] 1 AC 335

. should not now be followed in the light of subsequent ECtHR decisions. Gross LJ and Davis J were simply making the point that a long determinate sentence is not equivalent to a whole life sentence without parole.

[63]The fact that both Vinter and Trabelsi have been decided since Inzunza (in which this court also dealt with Mr Harkins’ case first time round) is also not persuasive. Both those cases concerned sentences of whole life without parole, not determinate sentences. Neither of the later decisions applied what the ECtHR said about “irreducible” whole life sentences to determinate sentences. Moreover, the application of those principles wholesale to determinate sentences could bring bizarre results. If an offender were relatively old when sentenced (say) to a minimum term of 25 years imprisonment, then on the logic of Mr Southey’s argument, the lack of a review mechanism before that time would make the sentence “irreducible” and so incompatible with Article 3, even if it were not otherwise a “grossly disproportionate” sentence.

[64]Taking all these matters together, we have concluded that the point raised at Ground 5(b) above does not arise in this case. The only issue is that raised by Ground 5(a), viz. whether there is a real risk that, if extradited, the appellant would face a sentence that would be “grossly disproportionate”.

[65]On the issue of “grossly disproportionate” sentences and extradition, the Strasbourg law has not changed since the decision in Harkins and Edwards v United Kingdom. In Harkins 2, this court summarised the ECtHR’s views in that topic in the following terms: “… “gross disproportionality” is a strict test and only on “rare and unique occasions” will that test be met. Due regard must be paid to legitimate and reasonable differences between states on sentencing for the same offence. Therefore only in “very exceptional cases” will an applicant be able to show that the sentence faced in a non-Contracting State would be “grossly disproportionate” and so contrary to Article 3: (see [133]-[134] of the ECtHR’s judgment in Harkins and Edwards v UK)”. [44] of Harkins 2.

[66]In Vinter, the Grand Chamber re-emphasised that it is not the role of the ECtHR to decide on the appropriate length of detention for particular offences and states must be accorded a degree of flexibility as to what is appropriate. See [105]. The ECtHR was re-stating that principle in the context of a Contracting State. It must be underlined even more strongly in the case of extradition to a non-Contracting state such as the USA. The argument that the sentence that might be imposed for the firearms offence is much longer than would be the case if the appellant were tried in the UK is not pertinent, given the introduction of the “forum bar” provisions: either those apply or they do not. Therefore, the court of the requested state has to decide, using the principles enunciated by the ECtHR and looking at the facts of the alleged offence and taking account of legitimate differences in sentencing policy, whether the sentence would be “grossly disproportionate”. In our view, the sentences that might be imposed on the appellant could be very long and much longer than those that might be imposed by an English court; however, this is not one of those “rare and unique” occasions when it can be said that they would be “grossly disproportionate”.

[67]We therefore reject this ground. VII. Ground 6. Does the evidence concerning the mental health of the appellant, detention in the ADX have any effect on the appellant’s arguments concerning Article 3?

[68]The DJ noted that, prior to his return from Yemen in July 2011, the appellant had never had any relevant physical or mental condition and that, since then, (apart from a brief period) he had been held in highly secure conditions. The judge recognised that the prospect of extradition and of being convicted and sentenced would be likely to have an impact on his mental condition. However the appellant’s case went further. He had been seen by a clinical psychologist, Dr Rachel Thomas and also by a psychiatrist, Dr Timothy Brow. Dr Thomas had prepared two reports dated 18 May 2012 and 4 March 2013. In her first report she had “diagnosed” the appellant as suffering from a severe episode of Bipolar Affective Disorder.

[69]Dr Brow was also asked to express a view on the appellant’s mental condition, which he did in a report dated 8 November 2012. His conclusion (at §224) was that the appellant had: “…a ‘subsyndromal’ mental disorder, cyclothymia (ICD 10; F34.0) of the hyperthymic variety with a tendency to creative mood swings, which may or may not have been precipitated by substance as suffering from substance misuse in the past. I noted that cyclothymia has been associated with hyper-religiosity. Patients with cyclothymia can be disinhibited and exhibit poor judgement, enough to suffer substantial interpersonal, professional, financial, or legal adverse consequences from a period of even mildly elevated mood. I believe he also suffered a moderate anxiety-depressive reaction to being detained, from which he had recovered by the time I assessed him”.

[70]ICD-10:f.34.0 describes cyclothermia as “…a persistent instability of mood, involving numerous periods of mild depression and mild elation…”. In summary Dr Brow assessed the appellant as having a condition which exhibited itself in mood swings and moderate reaction to his detention.

[71]In their joint report dated 8 February 2013 Dr Thomas and Dr Brow reached the following summary conclusions. “The two experts differ in their diagnoses and views at examination ... Dr Thomas however concurs with Dr Brow that her conclusions of a ‘severe manic episode’ may have been overstated and takes on board his comments in certain areas, such as the absence of certain symptoms indicative of a manic episode of Bipolar Affective Disorder, such as current grandiosity, flight of ideas, pressurised speech and poor sleep. Dr Thomas however disagrees that Mr Pham was not suffering from psychiatric disorder at the time of her initial examination and maintains that in her view a diagnosis of Bipolar Affective Disorder is a likely probable diagnosis in this case”.

[72]That Joint Report was not disclosed prior to the hearing before the DJ. Dr Thomas then prepared a further report dated 25 February 2013. Her stated opinion, on re-examination of the Appellant, was that her initial ‘diagnosis’ was correct, although she remained more cautious as to the precise nature of the presenting diagnosis. She did not refer to the views of Dr Brow on the matter. In fact, it appears that it was not until she gave live evidence before the DJ that Dr Thomas acknowledged that she was aware of Dr Brow’s views.

[73]We have set out the history of the appellant’s evidence on this aspect of the case because it highlights what are, in our view, two important issues. First, we regard it as very surprising indeed that Dr Brow’s report was not disclosed prior to the original hearing before the DJ. The judge was critical of a deliberate decision which could have resulted in the Court being misled. We agree with that criticism, even if, we are told, Dr Brow’s report was eventually disclosed and the section 91 point not pursued before the DJ. Secondly, whatever the position of the respondent, we do not accept that Dr Thomas was qualified to give any expert diagnosis. She was not qualified as a doctor; and the passage in the Joint Report in which she adhered to her original ‘diagnosis’ and disagreed with the views of a medically qualified psychiatrist highlights the anomalous feature of what had occurred. However, although we are critical of the appellant’s representatives and of Dr Thomas who had plainly failed to give ‘details of any matter which might affect the validity of her report’, the criticism does not extend to the appellant himself: he is not to blame for what was done on his behalf.

[74]In our view the position is as stated by the DJ: the appellant is not suffering from a mental condition of such severity that it would have made it oppressive to extradite him under section 91 Section 91(1) to (3) effectively provide that if it appears to the judge in the extradition hearing that the “physical or mental condition” of the requested person is such that it would be unjust or oppressive to extradite him then he must either discharge the person or adjourn the extradition hearing until it appears to the judge that it would no longer be unjust or oppressive to do so. of the EA. Further, he is not suffering from any mental health problems such as to have any significant impact on any of the issues arising under Article 3. VIII. Ground 7. Would the extradition of the appellant be a disproportionate interference with his Article 8 rights?

[75]It is common ground that the extradition amounts to an interference with the Article 8 rights of the appellant and his family. Mr Southey submitted that, applying the approach of the Supreme Court in H(H) v. Deputy Prosecutor of the Italian Republic, Genoa,

[2013] 1 AC 338

a Court should examine the interference with a person’s rights under Article 8 to determine whether the protected rights were outweighed by the public interest. While bearing in mind the constant and weighty interest in extradition, because of the importance of offenders being brought to trial and the United Kingdom honouring its treaty obligations, this exercise should involve an assessment of whether the interference with the relevant Article 8 rights is proportionate. In carrying out this assessment the Court should recognise the particular public interest in children being brought up properly, which requires a consideration of whether the public interest can be served without extradition: see especially the judgment of Baroness Hale JSC.

[76]Mr Southey submitted that there were a number of matters which weighed the balance in favour of refusing extradition in the present case: the harm caused to the appellant’s mental health (see above) and the particular interests of the young children not being separated from their father.

[77]He noted that the Judge had recognized what was ‘likely to be sad and tragic consequences’ for the appellant’s wife and their children in not being able to see each other for long periods of time if at all; but he found that the consequences of extradition were not exceptionally severe so as to be sufficient to prevent extradition (see [85]). Mr Southey submitted that the DJ applied the wrong test, and failed to take into account that the Respondent had not adduced any evidence to show that these consequences could not be avoided by prosecuting the appellant in the United Kingdom. In all the circumstances, which included the circumstances relevant to the Article 3 issues, Mr Southey submitted that the public interest did not require the appellant’s extradition.

[78]The DJ recognised that the Article 8 rights of the Appellant and his family had an impact on his decision. He expressed this in [80] of his Ruling. “In all extradition cases it is necessary for the Court to strike a balance between the primary consideration of the welfare and wellbeing of [the appellant’s] wife and particularly his two small children, who are to be regarded as ‘victims,’ and his own right to family life on the one hand and the public interest in [the appellant] facing trial in the requesting state in respect of criminal allegations of the most serious kind on the other. It is a question of whether the interference with the family life is outweighed by the public interest in extradition”.

[79]It is clear that the DJ recognised that there was no test of “exceptionality”, because he referred to the decision of Moses LJ in A & B v. Central District Court of Pest, Hungary and V (a child, through KP her litigation friend)

[2013] EWHC 3132 (Admin)

at [13] , which referred in turn to [8] (7) of the speech of Lady Hale in the H(H)case. Lady Hale was not proposing to go back on her eschewal of the test of exceptionality, but merely making a prediction. What Lady Hale says underlines the proposition that, unless the consequences are ‘exceptionally severe,’ then an attempt to avoid extradition on the ground of detriment to family life will not succeed. The use of the adjective ‘exceptionally’ does not impose a test; it merely underlines the obvious proposition that in all these cases where family life has existed in the requested state, there will inevitably be sad and sometimes tragic consequences.

[80]It was in this context that the DJ used the phrase ‘sad and tragic’ consequences for the appellant’s wife and their children in [85] of his Ruling. As he noted, the appellant’s wife is and always had been the sole carer of their children, albeit supported by other members of her family. As the respondent has observed, the appellant was absent from the birth of both of his children; and the appellant had accepted that he was in Yemen for about 7 months at the time of the elder child’s birth, having lied to his wife and the rest of his family about his destination and motives.

[81]Prior to the introduction of the statutory forum bar, the position was clear: unless the Judge concluded that the scales between ordering extradition and refusing to order extradition were ‘finely balanced,’ the Court should not enter into an enquiry as to the possibility of prosecution in this country: see Norris v. The Government of the United States of America (No 2).

[2010] 2 AC 487

per Lord Phillips at [67]. In the present case it cannot reasonably be said that on an assessment of proportionality the factors are evenly of finely balanced. In our view the strong public interest in favour of extradition remains and it substantially outweighs the interference in the appellant’s Article 8 rights and those of his family.

[82]Accordingly, we reject this ground. IX. Ground 8. Is section 83A of the EA (as amended) applicable in this case so as to bar the extradition of the appellant to the USA, being a Category 2 territory?

[83]Section 83A of the EA provides:(1) The extradition of a person (“D”) to a category 2 territory is barred by reason of forum if the extradition would not be in the interests of justice.

(2) For the purposes of this section, the extradition would not be in the interests of justice if the judge – (a) decides that a substantial measure of D’s relevant activity was performed in the United Kingdom; and (b) decides, having regard to the specified matters relating to the interests of justice (and only those matters), that the extradition should not take place.

(3) These are the specified matters relating to the interests of justice – (a) the place where most of the loss or harm resulting from the extradition offence occurred or was intended to occur; (b) the interests of any victim of the extradition offence; (c) any belief by the prosecutor that the United Kingdom, or a particular part of the United Kingdom, is not the most appropriate jurisdiction in which to prosecute D in respect of the conduct constituting the extradition offence; (d) were D to be prosecuted in a part of the United Kingdom for an offence that corresponds to the extradition offence, whether evidence necessary to prove the offence is or could be made available in the United Kingdom; (e) any delay that might result from proceeding in one jurisdiction rather than another; (f) the desirability and practicability of all prosecutions relating to the extradition offence taking place in one jurisdiction, having regard (in particular) to – (i) the jurisdictions in which witnesses, co-defendants and other suspects are located, and (ii) the practicability of the evidence of such persons being given in the United Kingdom or in jurisdictions outside the United Kingdom; (g) D’s connections with the United Kingdom.

(4) In deciding whether the extradition would not be in the interests of justice, the judge must have regard to the desirability of not requiring the disclosure of material which is the subject to restrictions on disclosure in the category 2 territory concerned.

(5) If, on an application by a prosecutor, it appears to the judge that the prosecutor has considered the offence for which D could be prosecuted in the United Kingdom, or a part of the United Kingdom, in respect of conduct constituting the extradition offence, the judge must make that prosecutor a party to the proceedings on the question of whether D’s extradition is barred by reason of forum.

(6) In this section “D’s relevant activity” means activity which is material to the commission of the extradition offence and is alleged to have been performed by D.”

[84]Mr Southey argued that the underlying intent of the new “forum bar” in section 83A is to ensure that people who could be prosecuted in the UK would not be extradited to a Category 2 territory, including the USA. The new section was intended to prevent prosecutors from “forum shopping” for what they regarded as the best venue from their point of view. The “interests of justice” test set out in section 83A(1) is therefore paramount. The words “relevant activity” in section 83A(2), as further defined in section 89A(6), cover the activity of the applicant in planning to leave the UK and travelling from the UK. It also covers his activity in his work to create material for the website “Inspire” which is available in the UK. Taken overall, the “interests of justice” factors in section 83A(3) are in the appellant’s favour.

[85]We agree with the DJ’s view, at [89] of his Ruling, that the “forum bar” in section 83A cannot operate unless both the conditions in section 83A(2) are satisfied. Thus, the first matter the judge had to decide was whether “a substantial measure” of the appellant’s “relevant activity” was performed in the United Kingdom. Section 83A(6) makes it clear that the “relevant activity” of the requested person is the activity that is “material to the commission of the extradition offence and is alleged to have been performed by [the requested person]”.

[86]It is therefore necessary to examine what the extradition offences consist of and see whether the activity that is material to them which the appellant is alleged to have performed was, to a substantial measure, performed in the UK. The DJ held, (at [90] of his Ruling), that none of the appellant’s “relevant activity” was performed in the UK “and that was the end of the matter”. He regarded this point as unarguable.

[87]We agree. The extradition offences all relate to activity outside the UK, in particular in the Yemen. It would be perverse to say that a “substantial measure” of the appellant’s activity that is material to the extradition offences was performed in the UK.

[88]The argument that the DJ decided the “forum bar” issue before he had heard oral argument, so that his decision on it is somehow invalidated, is equally rejected. As the judge said, the “forum bar” point was unarguable and, frankly, should not have been raised at all on the facts of this case.

[89]We therefore cannot accept Mr Southey’s submission that the judge’s conclusions on fact and law are, somehow, “tainted”.

[90]In Mr Southey’s original written submissions, which ran to an excessive 58 pages, the DJ is also criticised in other respects concerning his approach to the evidence put before him, particularly on Grounds 1 and 2. We reject those criticisms also. The parties submerged the judge in materials and written submissions instead of being selective and focused in the presentation of their cases and arguments. Given the volume of materials that the judge had to cope with we think that his Ruling is admirably concise and, in our judgment, correct. Simply because he did not give the weight to oral evidence that the appellant’s counsel say he should have done is not proof of either bias or error. X. Would it make any difference to the appellant’s Article 6 rights if the Supreme Court decides that the Home Secretary is entitled to deprive him of his British citizenship?

[91]In our view whether the appellant is a British citizen or not makes no difference to his relevant Article 6 rights. Our reasons are as follows: the ECtHR has stated many times that a decision of a national court on extradition or expulsion of an alien of that state does not constitute a “determination” of either a “civil right” or a “criminal charge” for the purposes of

Article 6(1) of the ECHR

. The leading ECtHR cases are referred to at [27]-[31] of the judgment of Lord Mance JSC in Pomiechowski v District Court of Legnica, Poland; Halligen v SSHD

[2012] 1 WLR 1604

, hereafter “Halligen”. However, in Halligen, the Supreme Court held that a British citizen enjoyed a “civil right” to enter, remain in and leave the UK as he wished, subject to any parliamentary control by legislation. Thus, any proceedings in a UK court in which the extradition of a British citizen was sought was one which would “determine” that “civil right”. Accordingly, that process had to be consistent with Article 6. In contrast to Halligen, the present case is not concerned with the appellant’s Article 6 rights in relation to any court proceedings in the UK; it is concerned with whether his extradition would lead to a breach of his Article 6 rights in any trial that would take place in the USA. The test, ie. whether there would be a “flagrant breach” of those rights in relation to the US trial proceedings, is the same whether the appellant is a British citizen or not. He would have no better rights if he were declared to be a British citizen. Moreover, the appellant’s ability to rely on his other Convention rights, in particular those under Article 3, as a means of resisting extradition, is evidently the same whether or not he is a British citizen. XI. Conclusion and disposal.

[92]For the reasons we have given, we reject each of the grounds of appeal. The appeal is therefore dismissed.

Pham v The United States of America [2014] EWHC 4167 (Admin)

Cited in 3 later judgments