Ahsan, R (on the application of) v Government of the United States of America & Anor

Guidance on concurrent criminal jurisdiction applies to existing cases where relevant, but it is engaged only where there are concurrent investigations and the domestic prosecutor is seized of the case as prosecutor. Receipt of an extradition request does not itself engage the guidance.

Judicial review of a prosecutorial failure to apply such guidance is available in principle, but will ordinarily be entertained only in a wholly exceptional case, particularly where it would circumvent the statutory extradition process.

For extradition purposes, conduct may occur in the requesting territory where its intended effects are directed there. The conduct test governs double criminality. A high threshold applies under the physical or mental condition bar, and article 8 will rarely justify refusing extradition.

The Divisional Court heard three linked matters. Ahsan appealed against orders sending his extradition case to the Secretary of State and ordering his extradition to the United States. He also sought judicial review of the Director of Public Prosecutions’ alleged failure to consider whether he should be prosecuted in the United Kingdom under guidance concerning concurrent United Kingdom and United States jurisdiction.

Tajik appealed against orders sending his case to the Secretary of State and ordering his extradition. His grounds concerned extradition offences, physical and mental condition, abuse of process, extraneous considerations, specialty and compatibility with article 8 of the Convention.

The common legal issues included the scope of the concurrent-jurisdiction guidance, the territorial and double-criminality requirements under the Extradition Act 2003, and the circumstances in which extradition may be refused.

1. Ahsan. The statutory appeal was dismissed. The claimant accepted that it could not succeed in light of Ahmad and Aswat v Government of the United States of America [2006] EWHC 2927 (Admin). The court refused an adjournment pending Strasbourg proceedings because delay would undermine the statutory objective of prompt extradition and the eventual Strasbourg decision might not affect the appeal.
2. The concurrent-jurisdiction guidance was not limited to cases arising after its commencement. It could apply to existing cases where relevant. However, it was directed to concurrent investigations and to prosecutors involved in handling the case. It did not require consideration of domestic prosecution where there had been no relevant United Kingdom investigation and the Director had not been seized of the case as domestic prosecutor. The guidance therefore had no application to Ahsan.
3. Judicial review for failure to apply the guidance was available in principle, consistently with R v Director of Public Prosecutions, ex parte C [1995] 1 Cr App R 136. In practice, a similar high degree of restraint applied to judicial review of prosecutorial inaction, particularly where the challenge would circumvent the statutory extradition process.
4. Tajik. The statutory appeals were dismissed. Under s.137 of the Extradition Act 2003, conduct could occur in the United States because its intended effect was to bring about harm there, namely evasion of United States export restrictions. The conduct test approved in Norris v Government of the United States of America [2008] UKHL 16 governed double criminality. Dishonesty could be inferred from the alleged conduct taken as a whole.
5. The s.91 physical or mental condition threshold was high. Tajik’s serious cardiac and psychiatric conditions, and the risk that extradition would worsen them, did not make extradition unjust or oppressive. The availability of appropriate medical treatment in the United States was relevant and important.
6. The alleged undercover operation did not amount to entrapment or abuse of process. The agents responded to unlawful activity initiated by Tajik and his associate and did not create the crime by incitement. Any issue concerning admissibility of evidence obtained in the United Kingdom was for the United States courts. There was no sufficient basis for ordering further disclosure.
7. There was no reasonable chance or serious possibility that Tajik would be prejudiced by reason of nationality, religion or political opinion. The diplomatic assurances and constitutional safeguards supported that conclusion. The specialty arrangements satisfied s.95. Applying the proportionality approach in Jaso, Lopez and Hernandez v Central Criminal Court No.2, Madrid [2007] EWHC 2983 (Admin), extradition was proportionate under article 8 despite the substantial interference with family life.

1. High Court, Administrative Court: the court dismissed Ahsan’s statutory appeal and judicial review claim, and dismissed Tajik’s appeals against the district judge’s decisions and the Secretary of State’s extradition order.
2. District judges: Ahsan’s case was sent to the Secretary of State on 19 March 2007 and his extradition was ordered on 14 June 2007. Tajik’s case was sent to the Secretary of State on 19 April 2007 and his extradition was ordered on 14 June 2007.