Ahmad & Anor v United States of America

On a statutory extradition appeal, a court starts from the fundamental assumption that the requesting state acts in good faith. Where that state has consistently honoured a long-standing extradition relationship, especially strong evidence is required to prove that it may breach formal diplomatic assurances or treaty obligations.

A diplomatic note may reliably exclude treatment which would otherwise infringe Convention rights when it records a state-to-state assurance, is binding in international law and promises application of the requesting state’s ordinary law. Extradition is not barred by speculative risks of torture evidence, extraordinary rendition, discriminatory confinement measures or a flagrant denial of justice.

The United States sought the appellants’ extradition under Part II of the Extradition Act 2003 to face federal terrorism-related charges. The district judge held that designation under Military Order No 1 would violate their Convention rights, but accepted formal Diplomatic Notes assuring that they would be tried only in federal civilian courts and would not be designated as enemy combatants.

The appellants appealed under section 103. They alleged risks of military detention or trial, extraordinary rendition, Special Administrative Measures, and the use of evidence obtained through torture or ill-treatment. One appellant also disputed whether part of the alleged conduct constituted an extradition offence; the other challenged the prospective evidence of a co-operating witness. Appeals against the Secretary of State’s orders were withdrawn.

1. The appeals were dismissed. The district judge was entitled to rely on the Diplomatic Notes. A note issued by an embassy is a recognised means of recording a state-to-state engagement and is binding on the issuing state in international law. Military Order No 1 gave the President a discretion rather than imposing a duty to designate eligible persons, so the assurances were consistent with United States law (paras 56–58, 80, 101–103).
2. Armah v Government of Ghana [1968] AC 192 did not prevent reliance on the Notes. Unlike the undertaking by counsel in that case, the Notes possessed formal international status and promised application of the ordinary civilian law, rather than suspension of the requesting state’s ordinary law. State-to-state assurances are also familiar in extradition practice (paras 59–63).
3. The Notes, read with the specialty obligation in Article XII of the 1972 UK–USA Extradition Treaty, excluded the suggested later use of military detention or trial. In the absence of bad faith, the United States was presumed loyal to its treaty obligations. Its long and uninterrupted extradition relationship with the United Kingdom, and the absence of any dishonoured assurance, supported that conclusion (paras 64–80).
4. The evidence about rendition in cases unconnected with extradition did not establish a substantial risk that these appellants would be extraordinarily rendered. Such treatment would constitute a grave breach of treaty obligations and interstate trust. No evidence showed that anyone extradited to the United States had subsequently been rendered elsewhere (paras 81–90).
5. The possible use of Special Administrative Measures did not establish inhuman or degrading treatment, prejudice at trial, a flagrant denial of justice or religious discrimination. Solitary confinement is not inherently contrary to Article 3; its circumstances, stringency, duration, purpose and effects must be assessed. Federal judicial scrutiny and safeguards for legal professional privilege remained available (paras 91–100).
6. The speculative possibility that unspecified evidence had been obtained by torture or ill-treatment did not establish a flagrant denial of justice. Torture remains distinct from lesser ill-treatment for evidential purposes. Nor did the disputed material show that the prospective witness against the second appellant had been subjected to prohibited treatment (paras 32–44).
7. The first appellant’s indictment alleged conduct capable on its face of satisfying section 137 of the Extradition Act 2003. Any special defence arising from support allegedly given to de facto governing forces was for the trial court; the extradition appeal could not determine the merits (paras 45–50).

• High Court (Administrative Court): The statutory appeals under section 103 of the Extradition Act 2003 were dismissed. Appeals against the Secretary of State’s extradition orders under section 108 were withdrawn.
• Bow Street Magistrates’ Court: Senior District Judge Workman found no statutory or Convention bar, held that the alleged conduct disclosed extradition offences, and sent each case to the Secretary of State.
• Secretary of State: Extradition was ordered on 15 November 2005 in the first appellant’s case and on 1 March 2006 in the second appellant’s case.