Al-Fawwaz, Re

The House of Lords held that, for the purposes of the extradition arrangements applicable to requests from the United States, the word "jurisdiction" in the statutory definitions (derived from the Extradition Act 1870 and applied through Schedule 1 to the Extradition Act 1989 and the United States of America (Extradition) Order 1976) is not confined to territorial jurisdiction but includes extra-territorial jurisdiction. The court applied the double criminality rule: the magistrate must be satisfied that the conduct alleged would, if transposed, amount to an offence triable in England (section 26 of the 1870 Act and Schedule 1 to the 1989 Act). The House also affirmed that admission of anonymous witness evidence in committal proceedings is a matter for judicial discretion, to be decided by balancing the interests of the defence, the prosecution and witness safety, and that the magistrate had not acted irrationally in admitting the anonymous witness evidence or in finding there was sufficient evidence to commit the appellants.

The appeals arose from applications for writs of habeas corpus by three men (Al-Fawwaz, Eidarous and Abdel Bary) arrested in the United Kingdom on United States requisitions alleging conspiracy to murder and related terrorist offences connected with the bombings of United States embassies in Nairobi and Dar es Salaam. Each man had been committed by a metropolitan stipendiary magistrate to await the Secretary of State's decision on extradition; their habeas corpus applications to the Divisional Court were dismissed. The Divisional Court had held that, under Schedule 1 to the Extradition Act 1989 as applied to the United States by the 1976 Order, the extradition crime must be alleged to have been committed within the territory of the requesting State, though in each case it concluded there were overt acts in the United States sufficient to found jurisdiction.

The House heard three consolidated appeals. The principal legal issue was whether the statutory and treaty framework requires that an extradition crime be committed within the territory of the requesting State or whether it is sufficient that the offence be within the requesting State's jurisdiction (including extra-territorial jurisdiction) and would, if transposed, be triable in England. Secondary issues were (i) the magistrate's admission of evidence from an anonymous witness (CS/1) and (ii) whether the evidence was sufficient at committal to make a case requiring an answer.

The Lords analysed the definitions in the Extradition Act 1989 (Schedule 1 paragraph 20) and the Extradition Act 1870 (section 26), the United States Order 1976 and the 1972 treaty (notably Articles I, III and IX). They concluded that the term "jurisdiction" in the statutory and treaty provisions is wider than mere territoriality and includes extra-territorial jurisdiction. The House relied on policy and textual considerations (the contradistinction "in England" and "within English jurisdiction", the inclusion of piracy iure gentium in the Schedule, and precedent such as Liangsiriprasert) and explained that executive and judicial safeguards (the Secretary of State's discretion, the committal test and habeas corpus review) protect against abuse of any asserted foreign jurisdiction. On the evidential issues, the House held that the magistrate acted within his discretion in admitting anonymous evidence after balancing fairness and witness protection and that there was sufficient evidence, taken as a whole, to justify committal in each case.

• Nature of the application: habeas corpus challenges to committal orders made in extradition proceedings (seeking review of magistrates' committal decisions).
• Issues framed: whether "jurisdiction" in the extradition definitions is territorial only or includes extraterritorial jurisdiction; admissibility of anonymous witness evidence in committal proceedings; sufficiency of the evidence for committal under paragraph 7(1) of Schedule 1 to the 1989 Act.
• Reasoning: statutory and treaty language and purpose support a wide meaning of "jurisdiction"; safeguards (double criminality/transposition, Secretary of State discretion, committal test and habeas corpus) mitigate risk of extradition based on excessive foreign jurisdiction; admission of anonymous evidence is a discretionary balancing exercise and, here, was not irrational; committal was supported by sufficient circumstantial evidence when assessed in aggregate.

All three appeals were dismissed. The House held that (i) "jurisdiction" in the relevant statutory and treaty provisions includes extra-territorial jurisdiction so that extradition may be sought where the requesting state has jurisdiction to try the offence even if not all acts were committed in its territory; (ii) the magistrate did not err in admitting anonymous witness evidence and acted within his discretion; and (iii) there was sufficient evidence to commit the appellants to await surrender.

The appellants were arrested in the United Kingdom on United States requisitions and committed for extradition by the metropolitan stipendiary magistrate. Applications for habeas corpus were dismissed by the Divisional Court (see Al-Fawwaz: [2001] 1 WLR 1234 and related Divisional Court orders dated 30 November 2000 and 2 May 2001). The appellants appealed to the House of Lords which delivered judgment on 17 December 2001 ([2001] UKHL 69).