Hashmi v Government of the United States of America

Under Part 2 of the Extradition Act 2003, an arrest warrant need not reproduce every offence in the indictment where the warrant and indictment, read together, adequately identify the proceedings and alleged conduct. Extradition procedures must be observed, but a purely technical objection without practical prejudice is insufficient.

Exorbitant jurisdiction is not a separate bar to extradition. It is ordinarily relevant only through the human-rights and proportionality analysis. The possibility that the requested person could be tried domestically does not ordinarily make extradition disproportionate, particularly where there are substantial links with the requesting state. The court will not conduct a trial of the evidence or assess evidential sufficiency at the extradition stage.

Syed Hashmi appealed under section 103 of the Extradition Act 2003 against a District Judge’s decision sending his case to the Secretary of State for a decision on extradition. The Secretary of State ordered extradition under section 100.

The United States sought extradition in relation to four terrorism-related charges. The appellant argued that the arrest warrant did not cover the substantive offences, that the United States was asserting exorbitant jurisdiction, that extradition would breach article 8 of the Convention, and that the description of the alleged conduct was unfair and inaccurate.

1. Arrest warrant. The appeal was dismissed. Section 78(2)(d) of the Extradition Act 2003 required the court to have a warrant for the appellant’s arrest, but did not require every offence in the indictment to be separately reproduced in the warrant. The warrant was issued on the basis of the indictment, and the documents could be read together. The objection was wholly technical and disclosed no lack of particularity or practical prejudice. The conclusion was reinforced by section 95(4), under which a person extradited for an offence may be tried for another extradition offence disclosed by the same facts.
2. Exorbitant jurisdiction. The concept of exorbitant jurisdiction has been largely subsumed within human-rights considerations under the 2003 Act. It is not a separate bar. It may remain relevant to proportionality, including under article 8. The statutory requirements for extra-territorial conduct under section 137 were satisfied. There were substantial links with the United States, including the appellant’s citizenship, his recruitment of the principal witness while in New York, and the alleged targeting of United States military interests.
3. Article 8. Extradition interfered with private and family life, was in accordance with law, and pursued the legitimate aim of preventing crime. The issue was proportionality. The possibility of a domestic prosecution could in an exceptional case affect the balance, but this was not such a case. The existence of related domestic proceedings and a common witness did not make extradition disproportionate. Any disparity between possible sentences was irrelevant absent a risk of the death penalty, and no evidence established the sentence the appellant might receive.
4. Description of conduct and evidence. The court was not required to weigh the evidence of the prosecution witness. There was a fundamental assumption that the requesting state acted in good faith, capable of displacement by evidence. The sworn evidence, indictment, corroborative telephone and email records, and the absence of any indication of bad faith were sufficient to reject the challenge.
5. The grounds failed individually and collectively. The appeal was dismissed.

The judgment states that the appellant appealed under section 103 of the Extradition Act 2003 against the District Judge’s decision of 5 October 2006. The appeal was dismissed by the Divisional Court.