In re Al-Fawwaz (Application for a Writ of Habeas Corpus) (On Appeal from a Divisional Court of The Queen's Bench Division) In re Abdel Bary (Application for a Writ of Habeas Corpus) (On Appeal from a Divisional Court of The Queen's Bench Division) In re-Eidarous (Application for a Writ of Habeas Corpus) (On Appeal from a Divisional Court of The Queen's Bench Division

Under the double criminality rule, an offence is within the jurisdiction of a requesting or requested state when that state has power to try it. Jurisdiction includes extraterritorial jurisdiction and is not confined to offences committed within the state's territory.

For extradition under Schedule 1 to the Extradition Act 1989, it is therefore unnecessary to prove an overt act within the requesting state where the alleged offence is triable there and the corresponding conduct would be triable within English jurisdiction. At committal, the evidence must be assessed as a whole to determine whether it makes a case requiring an answer.

The United States requested the appellants' extradition to face allegations of conspiracy to murder arising from an alleged international terrorist campaign. Metropolitan stipendiary magistrates found prima facie cases and committed them to await the Secretary of State's decisions.

The Divisional Courts dismissed applications for habeas corpus. In the first proceedings, reported at [2001] 1 WLR 1234, the court held that territorial conduct in the United States was necessary, but found sufficient alleged overt acts there. A differently constituted court followed that approach in the other proceedings.

The common issues were whether “jurisdiction” under the governing extradition legislation included extraterritorial jurisdiction, whether territorial overt acts were required, and whether the evidence, including an anonymous witness's affidavit, justified committal.

1. The three appeals were dismissed unanimously. Lord Slynn of Hadley, Lord Hutton, Lord Millett, Lord Scott of Foscote and Lord Rodger of Earlsferry agreed that the Divisional Courts had construed “jurisdiction” too narrowly, although their orders dismissing the habeas corpus applications remained correct.

2. Per Lord Slynn, Lord Hutton, Lord Millett and Lord Rodger, “jurisdiction” in paragraph 20 of Schedule 1 to the Extradition Act 1989 and section 26 of the Extradition Act 1870 means the state's power to try the alleged offence. It includes territorial and extraterritorial criminal jurisdiction. The distinction between conduct “in England” and conduct “within English jurisdiction”, the inclusion of piracy by the law of nations, and the purpose of extradition legislation all supported that construction.

3. Per Lord Millett, the double criminality rule performs two functions. The requesting state must have jurisdiction so that extradition can lead to a trial. The requested state must possess corresponding jurisdiction so that the accused is protected against an exorbitant foreign claim. Lord Rodger added that executive discretions at the order-to-proceed and surrender stages provide further protection.

4. The alleged conspiracy was triable in the United States and, on the required hypothesis, within English jurisdiction. No proof of an overt act in United States territory was necessary. Per Lord Millett, transposition requires the substitution of England for every circumstance connected with the requesting state on which jurisdiction is founded, without changing more than necessary. Per Lord Rodger, the extradition-crime inquiry could proceed by supposing that all alleged acts occurred in England; any actual foreign element remained relevant when the magistrate assessed committal.

5. Per Lord Hutton and Lord Rodger, the admission of anonymous evidence depends on a discretionary balance of fairness among the accused, prosecution and witness. The witness's safety, the evidence's importance, its creditworthiness and prejudice to the defence were relevant. The magistrate lawfully admitted CS/1's affidavit despite incomplete investigation of creditworthiness. Article 6 of the Convention did not apply to extradition committal proceedings, and article 5(4) did not import article 6 rights.

6. The paragraph 7(1) test was whether the evidence made a case requiring an answer. Circumstantial items had to be considered together, rather than separately. The evidence met that test for every appellant. The reasons given for committing Eidarous and Abdel Bary, though brief, adequately disclosed the magistrate's approach.

• House of Lords: Dismissed all three appeals unanimously. It held that the Divisional Courts had erred in limiting jurisdiction to territorial jurisdiction, but upheld the committals on the evidence.
• Divisional Court, Queen's Bench Division: Dismissed Al-Fawwaz's habeas corpus application on 30 November 2000, in a decision reported at [2001] 1 WLR 1234. It required territorial conduct but found sufficient alleged overt acts in the United States.
• Divisional Court, Queen's Bench Division: Dismissed the habeas corpus applications of Eidarous and Abdel Bary on 2 May 2001. It followed the earlier territorial-jurisdiction ruling and likewise found sufficient alleged overt acts.
• Metropolitan stipendiary magistrate: Committed the appellants to await the Secretary of State's decisions after finding cases requiring an answer.