England and Wales High Court (Administrative Court) Decisions

which course of conduct would necessarily involve the commission of the offence of murder within the jurisdiction of the United States of America."

Scheme of the Act

3. Extradition from the United Kingdom to the United States is governed by the Extradition Act 1989. Section 1(3) of that Act causes schedule I of the Act to apply where there is in force in relation to a foreign state an Order in Council giving effect to the terms of a relevant treaty. That is the position with the United States. The result is that when the Secretary of State orders the magistrate to proceed the order specifies the offence or offences which it appears to the Secretary of State are constituted by equivalent conduct had it occurred in the United Kingdom. The magistrate then conducts an enquiry into the offence or offences which the Secretary of State has specified to establish whether the evidence before him would make a case requiring an answer by the prisoner if the proceedings were for the trial in England and Wales of an information for that crime or those crimes (see paragraph 7(1) of schedule I to the 1989 Act). If that proves to be the case the magistrate commits the prisoner or prisoners as happened in the present case.

Issues

4. Before us Mr Mansfield QC for Eidarous and Mr Emmerson QC and Mr Knowles for Abdelbary have developed submissions as to -

"(1) Whether the magistrate was right to accept and admit as part of the government's case a statement from a witness whose identity was at that stage not revealed. He was simply referred to as CS/1.

(2) Whether the evidence before the magistrate was sufficient to meet the statutory test, properly applied.

(3) Whether the matter under consideration was sufficiently connected with the United States to found jurisdiction.

(4) Whether the magistrate's reasons, especially in relation to the issues of sufficiency, were adequate."

Admissibility of CS/1

5. CS/1 was an important source of background information. His statement reveals that from about 1989 to 1996 he was a member of Al Qaeda, an organisation founded by Bin Laden and that, like other members, he took an oath of allegiance or bayat pledging his loyalty to Bin Laden and Al Qaeda. he explained that at the relevant time -

"The primary goal of Al Qaeda was to oppose through violence those governments that did not follow the group's view of Islam, including most notably the United States. To further this goal, Bin Laden would make use of front companies and organisations which he would use to conceal the activities of the group."

6. He also explained the command structure of Al Qaeda which included a Fatwah committee issuing Islamic law rulings, known as Fatwahs as to whether particular conduct was permitted or required under Islamic law. A source of concern to Bin Laden and Al Qaeda was the United States military presence in Saudi Arabia and the Horn of Africa, including Somalia, and some Fatwahs called for a Jihad, or holy war, against Americans in those regions.

7. According to CS/1, Bin Laden and Al Qaeda did not only exhort. Al Qaeda used Port Sudan to import weapons and explosives, many of them under cover of Bin Laden's companies, and there were also attempts to obtain components for nuclear and chemical weapons.

8. Also, according to CS/1, Bin Laden on behalf of Al Qaeda formed a close operational relationship with other groups, one of which was Egyptian Islamic Jihad (EIJ) led by Ayman Al Zawahiri, and there was talk of attacking US forces in Saudi Arabia, Yemen and the Horn of Africa.

9. CS/1 had personal knowledge of the fact that Al Fawwaz made bayat to Al Qaeda and Bin Laden, and was a prominent figure in the organisation. Bin Laden put Al Fawwaz in charge of the body he created in London called the Advice and Reformation Committee, and faxes were then sent to him in London so that he could pass on orders and messages on behalf of Bin laden, including Fatwahs, one of which declared a Jihad based on Bin Laden's belief that for religious reasons it was unacceptable for US forces to be occupying the same land as the two Muslim holy places in Saudi Arabia. It thus became the obligation of faithful recipients of the Fatwah to remove the Americans by death or other means.

10. A different affidavit from CS/1 was tendered by the United States government in support of the application for the extradition of Al Fawwaz, and it was said then that it was necessary to omit the real name and place of residence of CS/1 in order to protect his/her identity and preserve his/her safety and that of his /her family because Al Qaeda may seek to cause harm to him/her for co-operating with the United States government. The magistrate admitted the affidavit in its anonymised form.

11. Neither affidavit from CS/1 referred to either of the present applicants by name, and by the time that the magistrate was considering the admissibility of the affidavit of CS/1 in these proceedings the United States government had been able to decide and confirm that the identity of CS/1 would be disclosed at the trial in the United States. It was clear from his affidavit that he had pleaded guilty to terrorism charges, and the magistrate concluded that "there must be a real risk of danger to CS/1 and any members of CS/1's family". The magistrate did not consider that there was any real risk of prejudice to the defence in proceedings before him in not knowing the true identity of CS/1 and that information would be available at trial in the event of extradition.

12. In R v Taylor (Gary) 17th August 1994 Times Law Reports the Court of Appeal Criminal Division set out 5 factors it considered relevant to the exercise of a judge's discretion to deny a defendant the right to see and know the identity of his accusers. Those factors were -

"(1) There must be real grounds for fear of the consequences if the evidence were given and the identity of the witness revealed.

(2) The evidence must be sufficiently relevant and important to make it unfair to make the Crown proceed without it.

(3) The Crown must satisfy the court that the credit worthiness of the witness had been fully investigated and disclosed.

(4) The court must be satisfied that there would be no undue prejudice to the accused, although some prejudice was inevitable, even if it was only the qualification placed on the right to confront a witness as accuser.

(5) The court could balance the need for protection of the witness, including the extent of that protection, against unfairness or the appearance of unfairness."

13. In the present case the magistrate referred to those principles, applying them so far as possible to the field of extradition. As he said, "they are not ideally suited for an extradition committal hearing at which there can be no cross-examination of a foreign witness whose evidence is by affidavit." The magistrate also referred to authorities pointing out the importance of magistrates in committal proceedings and extradition proceedings not, in the interest of fairness, attempting to shut out evidence which, if it is to be excluded at all, should be excluded at a later stage by a trial judge. The magistrate then ruled the evidence of CS/1 to be admissible. He had made a similar ruling in the case of Al Fawwaz, and that was challenged unsuccessfully in this court. As Mr Emmerson points out, the challenge in that case was on the basis that the second Taylor criterion was mandatory, and the conclusions of the magistrate were irrational. In the present case Mr Emmerson submits that at least the first Taylor criterion must be mandatory - the person whose identity is being concealed must be shown to be at risk, and in this case it is now apparent that at all material times CS/1 had the benefit of the United States Witness Protection Scheme. That, Mr Emmerson contends, is something that should have been revealed, together with information as to the extent of the risk and the extent of the protection provided.

14. In my judgment it is unnecessary to enter into the question of what needs to be disclosed in extradition proceedings because, as Mr Hardy for the government submits, on the facts it would have been remarkable if CS/1 had not been afforded witness protection, and it is common knowledge that even that form of protection cannot guarantee security. If anything the information now relied upon tends to support rather than undermine the magistrate's decision. As Buxton LJ said in this court in Al Fawwaz (paragraph 55) -

"In extradition proceedings it would not avail Mr Al Fawwaz simply to produce evidence that casts doubt on CS/1's credit worthiness. Investigation of that question is a matter for the trial, and for cross-examination there. The only material that could assist Mr Al Fawwaz before the magistrate is material that showed that, because of previous contradictory statements or behaviour by (CS/1) his evidence was worthless.... It will be noted that that is a much more demanding test than the test of whether, there is material that casts doubts on the witness's creditability."

15. If one substitutes "these applicants" for the references to Mr Al Fawwaz that passage, in my judgment, clearly represents the position in this case. The magistrate was fully entitled, on the evidence before him, to take the view that the statement of CS/1 was not shown to be worthless, and that is still the position even though, as Mr Knowles pointed out in reply, it is now clear from what has apparently been said by CS/1 when giving evidence in the United States, that not only does he enjoy witness protection but also he has made a plea bargain, has received a loan to restart his life, and has an added reason for requiring witness protection in that he took a significant amount of money from Bin Laden which he has not repaid. He may have also have had difficulty recognising Bin Laden's military commander in a photograph. Those are no doubt all useful points for cross-examination, but they do not even start to cross the threshold to which Buxton LJ referred. It was also suggested in this case, as it was in the case of Al Fawwaz that the admissions of the evidence of CS/1 contravened the provisions of articles 5 and 6 of the European Convention on Human Rights. As to that I am content simply to adopt what was said by Buxton LJ in paragraphs 58 to 62 of his judgment. Accordingly, in my judgment, the attack upon the magistrate's decision to admit the statement of CS/1 fails.

Sufficiency of evidence

16. I can now turn to the question of sufficiency of evidence on the basis that the statement of CS/1 was part of the evidence which the magistrate was entitled to consider. In his decision in Al Fawwaz the magistrate identified two questions in relation to sufficiency of evidence and that approach (which is referred to in the judgment of the Divisional Court) although not precisely reflected in the decision by the magistrate in the present case, is useful. He asked himself first whether the evidence established a case to answer that there was an agreement between Bin Laden and others to pursue the course of conduct alleged in the charge. In the case of Al Fawwaz the answer to that first question was not really in issue. In the present case Mr Mansfield did make some submissions in relation to it, inviting us to have regard to the shifting nature of dissident Arab alliances, and as to a certain readiness to make statements containing threats which were never carried out, but in reality the statement of CS/1, supported as it is by the evidence of the American investigators and by documentary evidence, is quite sufficient to provide proof to the requisite standard of the existence of the conspiracy alleged. The requisite standard is that as set out by the magistrate in paragraph 14 and 15 of his ruling, namely whether a jury properly directed could reach that conclusion, and although there was initially a suggestion that the magistrate applied the wrong test, that was not pursued. So the vital question in relation to sufficiency of evidence in the present case, as in the case of Al Fawwaz, was what was there identified as the second question, namely whether the evidence established a case to answer that each applicant was a party to the agreement. As was said in ex parte Osman [1990] 1 WLR 277 at 299H it was the magistrate's duty to consider the evidence as a whole, and to reject any evidence he considered worthless -

"In that sense it was his duty to weigh up the evidence. But it was not his duty to weigh the evidence. He was neither entitled nor obliged to determine the amount of weight to be attached to any evidence, or to compare one witness with another. That would be for the jury at the trial. It follows that the magistrate was not concerned with the inconsistencies or contradictions in (a given witness's) evidence, unless they were such as to justify rejecting or eliminating his evidence altogether."

That passage was cited by Buxton LJ in Al Fawwaz, but it bears repetition.

17. The resolution to establish the London office of Al Qaeda - the Advice and Reform Committee - with Al Fawwaz as director, was signed by Bin Laden in 1994. That is apparent from one of the many documents recovered at the time when the present applicants were originally arrested, and most of the information to which I will now refer comes from the same general source. Sometimes the precise origin of the document is significant and where that is the case I will say so.

18. On 25th May 1996 Al Zawahiri of EIJ put Abdelbary in charge of the London Cell and on 23rd August 1996 Bin Laden issued a bellicose Jihad requiring the faithful to expel Americans from the Arabian peninsular. At the time of the arrests copies of that Jihad were found at Abdelbary's house and at the office at 1A Beethoven Street, which both applicants used, together with Al Fawwaz, who with Abdelbary signed the lease. As Mr Mansfield points out, that Jihad was published, but what the applicants had was not simply the published material.

19. Still in 1996, on 31st October someone calling themselves Khaleel purchased a satellite telephone in the United States, and the government was able to show how over the next two years both applicants and Al Fawwaz were linked to the International use of that telephone from Afghanistan, where Al Qaeda were based. In 1996 CS/1 ceased to be member of Al Qaeda but the organisation seems to have continued in the same vein. From the home of Abdelbary there was recovered a fax dated 29th July 1997 addressed to Abdelbary from one of Bin Laden's assistants in Afghanistan which referred to a financial statement sent by Abdelbary to Al Zawahiri and to the operation of the media office. It questions whether that office ran according to a policy agreed upon by Al Zawahiri, and asked what are the office security precautions. The question is raised of whether another individual is suspected of working for the Americans. Many questions are asked and the recipient of the fax is told to write down the answers and he will be told a fax number to which he can transmit the answers. The document is, to say the least, consistent with the existence with a conspiracy to which the recipient is a party.

20. One of the documents found in the boot Eidarous' car was a fax from Al Zawahiri in Kandahar dated 18th January 1998. It is addressed to more than one recipient, and refers to having "arrived at a good draft agreement with our friend here". The government submits that the friend was Bin Laden and the draft agreement was the Fatwah, which came into existence soon afterwards. A copy of that Fatwah signed by Bin Laden and Al Zawahiri and others was found in Eidarous' car. That copy is dated 31st January 1998 and the government submits that it was another draft. The document contends that the activities of the "Jewish Christian Alliance" and in particular the United States, constitute a declaration of war on God and His messenger and the Muslims. It states -

"Killing the Americans and their allies civilians or military men is a personal duty on every Muslim. This is possible to him in every country in which this can be done, and this till the grand mosque of Jerusalem (Al Aqsa) is liberated and so the holy mosques of Mecca (Al Kaba) are liberated....."

21. The government contends that the reference to the two mosques is significant, and can be linked with what happened later in Nairobi and Dar es Salam. A later part of the document reads -

"We in the name of God call every Muslim who believes in God and who desires His rewards to abide by the order of God in killing the Americans and looting their wealth in every where he finds them at every time that he can do that. We also call the Muslims learned men and their eternal leaders and their youths and their believing soldiers to launch a raid...."

22. A copy of that Fatwah dated 12th February 1998 was found at 1A Beethoven Street and another copy was found at the home of Abdelbary. In due course on 23rd February 1998 the Fatwah was published in the Arab publication Al Quds. Another item found in the possession of Eidarous was a fax dated 4th May 1998, addressed to him, which enclosed "the Lufthansa Shipping receipt for the satellite telephone" The author continues "it should reach you in two days. Mr Yousif was listed as the recipient." The government did not in the end contend that what was being transmitted was the satellite phone to which I have already referred. However, satellite phone movement by air is evidenced by another weigh bill, found in Eidarous' car, from Afghan Airlines dated 23rd July 1998 describing the goods to which it relates as "said to contain telephone". It relates to carriage from Sharjah to Kandahar in Afghanistan.

23. On 28th June 1998 Al Zawahiri by fax confirmed that Eidarous "is the one in charge in London" and required Abdelbary to mend his ways. That fax was recovered from Eidarous' car, with a copy of Abdelbary's reply giving the necessary assurances.

24. Another item found in Eidarous' car was a copy of an interview given by Al Zawahiri to an Egyptian newspaper published on 9th July 1998 making the point that the threat to American interests was serious. Also found in the boot of Eidarous' car was a document which, amongst other things, gave warning of the ability of the United States and other western nations to spy on cell telephones and communications systems worked by satellite.

25. On 4th August 1998 the public office of EIJ issued a declaration relating to the capture of three of "our brothers" who had allegedly been participating in Jihad. Part of the declaration reads -

"It is important for us to inform the Americans in brief that their letter was received, and the reply is being prepared, which we hope they will read very carefully, because by God's will, we are writing it in the language that they understand."

26. The government contend that in the light of subsequent events that can be seen to be a clear threat of retaliation and the fax containing that threat was found at 1A Beethoven Street where both appellants worked and where it had been copied.

27. The explosions at Nairobi and Dar es Salam occurred at about 10.30 am local time, 7.30 am GMT and from 1A Beethoven Street were recovered two faxes headed Aug 07 0445 am. They are both headed "The Islamic Army for the Liberation of the Holy Places" and are in identical terms, save that one headed "Operation Blessed Kaaba" claims responsibility for the Nairobi bombing, and the other headed "Operation Aqsa Mosque" claims responsibility for the Tanzania bombing. The names of the two operations are the names of the two Mosques referred to in the Fatwah of February 1998. If the faxes claiming responsibility were sent before the explosions occurred it would be surprising if they were sent to 1A Beethoven Street even via the shop known as the Grapevine unless those at Beethoven Street were parties to the conspiracy, but, as Mr Mansfield points out, the sender's time may not have been GMT. Even if the faxes were sent after the explosions the question remains as to why they were sent to that address, why they were collected from the Grapevine and taken to 1A Beethoven Street and why the fingerprints of both applicants appear upon them. As Mr Lewis points out, the contents of the faxes suggest familiarity with what went on in Africa, and the reasons for it. And if they were really no more than unsolicited mail why did those at 1A Beethoven Street react as they did?

28. On 8th August 1998 faxes were sent from Formosa Street post office, near to Beethoven Street, to Radio France and others. The numbers to which the faxes were sent were in an Eidarous diary, and a claim of responsibility fax was later recovered in France. Mr Mansfield takes the point that there is no admissible evidence that it was recovered from Radio France.

29. I have referred to a number of documents recovered when the applicants were arrested, but there were many more. There was evidence to show that Eidarous was on the founding council of EIJ and diary evidence to show that he had the telephone numbers of the other members of that council. Abdelbary also had an address book showing founding council members, and there was evidence of the involvement of Eidarous in the forging of passports. And of course both of these applicants were in close contact with, and worked with Al Fawwaz, who was arrested at the same time. There was evidence from telephone records of close contacts between all three men and Al Zawahiri, and there was also evidence of the use by those at Beethoven Street of cloned credit cards to make anonymous telephone calls.

30. After the arrest of these applicants, on 22^nd September 1998 Bin Laden signed a minute directing the closure of the London office partly, it would seem, because of the threat presented by new anti-terrorist legislation.

31. As the magistrate said this is a complex matter, and the outline which I have given is no more than an outline. There is a wealth of material which was before the magistrate, and the amount is substantial even when reduced for the purposes of this court. The magistrate referred to some of the material, including the defence points about the time of the faxes claiming responsibility, and then said -

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

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

32. Mr Mansfield and Mr Emmerson are critical of that conclusion. Mr Mansfield points out that those who carried out the bombings in Nairobi and Dar es Salam have never been identified. He suggests that if the applicants were conspirators they would not have used the Grapevine to receive incoming faxes. He points out that the Fatwahs were not secret, they were intended to be published, and that the declaration of Jihad emanated from Egypt. It was not signed by Bin Laden or Al Qaeda nor do they feature on the faxes claiming responsibility for events for which they might be expected to claim "credit". As already noted, Mr Mansfield draws a distinction between exhortation and action. There were, he points out, no recorded telephone calls to Tanzania or Kenya for six and a half months prior to the bombings, and he submits that the detail in the faxes claiming responsibility was not such as to show that the author had personal knowledge of what had occurred. It is not, he says, unknown for dissident groups to claim responsibility for atrocities. He points out that there is no evidence to show that either applicant collected faxes from the Grapevine, or sent faxes from Formosa Street post office. Or that Eidarous was anything other than a genuine businessman. In reply Mr Mansfield submitted that there must be basic facts proved from which inferences can be drawn, and here, he submitted, the whole case is based on assertions, innuendo and inadmissible material. Mr Emmerson and Mr Knowles made submissions to the same effect.

33. In Osman (supra) Lloyd J at 301 H cited what he had said in ex parte Blair as to the jurisdiction of this court when considering the decision of a magistrate in extradition proceedings -

"The question for us is not whether there was sufficient evidence to send Mr Blair for trial if these offences had been committed in England. That was a question for the Chief Magistrate not for us. The question for us is whether there was any evidence on which the Chief Magistrate could so find. The discretion in the matter was his not ours. For the same reason, it is not for us to say whether, in our view, the inference is irresistible that there was here reliance. The question for us is whether the Chief Magistrate could lawfully reach that view; whether, in other words, it was within the range of views that a reasonable magistrate, directing himself properly and in accordance with the law, could reach."

34. In my judgment, the magistrate in the present case was clearly entitled to decide as he did. As he said, it was his duty to look at the facts as a whole and when taken as a whole they are capable of enabling a court to come to the conclusion that each defendant is guilty of the proposed charge.

U.S. jurisdiction

35. The two remaining items I can deal with quite briefly. When dealing with Al Fawwaz this court accepted the argument of the applicant that in cases governed by schedule I of the 1989 Act the extradition crime has to be committed within the territory of the requesting state (see paragraph 32 of the judgment). We were invited to reconsider that decision, but I find it unnecessary to do so in this case because, as this court in Al Fawwaz went on to say, there is clear evidence of overt acts committed in the United States in furtherance of the alleged conspiracy, and the conspiracy to which the court was addressing itself in Al Fawwaz is the conspiracy with which we are concerned. Furthermore, the evidence relied upon is the same. The purchase of the satellite telephone system and the issuing of Fatwahs and Jihads are two such overt acts, as explained in paragraph 39 of the judgment in Al Fawwaz.

36. As Mr Lewis points out, the satellite telephone purchased in the United States was much used. Minutes and accessories were also purchased in the United States, and from Afghanistan that telephone made 1080 outgoing calls, 143 of which were to Al Fawwaz, 89 of which were to Eidarous and 7 of which were to Abdelbary. In addition there were four calls to Kenya and 30 incoming calls from London public phones, made, the government submit, by the applicants using cloned cards.

37. Turning to the Fatwahs and Jihads, the government case is that the conspirators wanted them published to further their conspiracy, so the publication in Al Quds, which is published in the United States, constituted a second activity in furtherance of the conspiracy within the relevant jurisdiction, and, as was made clear in DPP v Doot [1973] AC 807, part performance of the conspiracy within the jurisdiction is all that is required for the purposes of establishing jurisdiction (see Lord Pearson at 827 E). In Al Fawwaz there was also reliance on him setting up and operating a secure telephone line in the United States through an organisation called MCI. That evidence was not before the magistrate in the present case and I need say no more about it.

Reasons

38. It is right to say that in this case the magistrate did not rehearse the evidence in any detail when dealing with the submission that there was insufficient evidence to constitute a case to answer. He explained the nature and aims of the alleged conspiracy, and the position taken by each applicant in relation to it. He referred to the bombings in Nairobi and Dar es Salam and to the "threat" and "claims of responsibility" faxes and posed a number of questions. Mr Mansfield makes no complaint of the questions, but he submits that the magistrate failed to answer them. The magistrate then continued -

"As can be seen from the written representations there is no agreement between the parties as to how I should approach my task. There is no direct evidence to prove the alleged conspiracy. The prosecution can prove hundreds of facts by direct evidence e.g. the bombings and the faxes. There are several gaps in the continuity evidence (e.g. dissemination of claims of responsibility to France etc) but for which various events could be proved by direct evidence. From the totality of the facts proved, either directly or by inference, the court is invited to conclude that there is a proper basis on which a jury could infer guilt on the proposed charge."

39. The magistrate then indicated his acceptance of the prosecution approach, referred to the defence submissions in relation to the timing of the faxes, and expressed the conclusion set out earlier in this judgment.