United Kingdom of Great Britain and Northern Ireland
Practice Relating to Rule 161. International Cooperation in Criminal Proceedings
The UK LOAC Manual (2004) states:
Ensuring respect for the law of armed conflict is a universal responsibility. International co-operation is encouraged by Additional Protocol I, which provides for:
c. mutual assistance in criminal proceedings brought in respect of grave breaches of the conventions or protocol, including assistance with evidence and extradition.
In 2006, in the Ahmad and Aswat case, the England and Wales High Court of Justice held:
Introductory: Background Facts
1. This is another case about extradition to the United States of America pursuant to provisions contained in the Extradition Act 2003 (“the 2003 Act”) …
2. … On 6 October 2004 a federal grand jury sitting in Bridgeport, Connecticut, returned an indictment against Mr Ahmad alleging the commission of four felonies between 1997 and August 2004: conspiracy to provide material support to terrorists; providing material support to terrorists; conspiracy to kill, kidnap, maim or injure persons or damage property in a foreign country; and money laundering …
4. Mr Aswat is wanted to stand trial in the United States District Court for the Southern District of New York … The essence of the allegations is that he became involved in a conspiracy with Abu Hamza and others to establish a jihad training camp in Bly, Oregon …
The 2003 Act
5. In order to understand the nature of the extradition process, its application on the facts of this case, and the basis of the appeals, it is convenient first to introduce the relevant provisions of the 2003 Act.
7. Part II deals with “category 2” territories. These are also designated by order of the Secretary of State [and include countries to which the framework decision of the Council of the European Union on the European arrest warrant (2003) does not apply]. A principal category 2 territory is the United States … S.70 requires the Secretary of State to issue a certificate “if he receives a valid request for the extradition to a category 2 territory of a person who is in the United Kingdom”. In this case there is no dispute as to the statutory validity of the request that was made in respect of either claimant. Upon the certificate’s issue the Secretary of State must (s.70(9)) send the documents to the appropriate judge … The judge may then (s.71(2)) “issue a warrant for the arrest of the person whose extradition is requested” if certain conditions are fulfilled …
8. As for the extradition hearing itself … the judge must next proceed under s.79 which is cross-headed “Bars to extradition”. There are four such bars, of which the second (s.79(1)(b)) is “extraneous considerations” and is engaged by one of Mr Fitzgerald’s [appearing as counsel for the appellants] submissions. “Extraneous considerations” are dealt with in s.81, which provides in part:
“A person’s extradition to a category 2 territory is barred by reason of extraneous considerations if (and only if) it appears that –
(b) if extradited he might be prejudiced at his trial or punished, detained or restricted in his personal liberty by reason of his race, religion, nationality, gender, sexual orientation or political opinions.”
9. … S.87 provides:
“(1) If the judge is required to proceed under this section (by virtue of section 84 …) he must decide whether the person’s extradition would be compatible with the Convention rights within the meaning of the Human Rights Act 1998.
(2) If the judge decides the question in subsection (1) in the negative he must order the person’s discharge.
(3) If the judge decides that question in the affirmative he must send the case to the Secretary of State for his decision whether the person is to be extradited.”
Military Order No 1
20. On 13 November 2001, thus almost exactly two months after the atrocities of 11 September 2001, the President of the United States issued Military Order No 1 on the “Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism” …
Sec. 2. Definition and Policy.
(a) The term “individual subject to this order” shall mean any individual who is not a United States citizen with respect to whom I determine from time to time in writing that:
(1) there is reason to believe that such individual, at the relevant times,
(ii) has engaged in, aided or abetted, or conspired to commit, acts of international terrorism, or acts in preparation therefor, that have caused, threaten to cause, or have as their aim to cause, injury to or adverse effects on the United States, its citizens, national security, foreign policy, or economy …
Sec. 3. Detention Authority of the Secretary of Defense. Any individual subject to this order shall be –
(a) detained at an appropriate location designated by the Secretary of Defense outside or within the United States;
Sec. 4. Authority of the Secretary of Defense Regarding Trials of Individuals Subject to this Order.
(a) Any individual subject to this order shall, when tried, be tried by military commission for any and all offenses triable by military commission that such individual is alleged to have committed, and may be punished in accordance with the penalties provided under applicable law, including life imprisonment or death.
21. The reference in Section 3(a) to “an appropriate location” for the detention of persons subject to the order includes, in the events which have happened, the detention facility at Guantanamo Bay. A major theme of these appeals consists in the appellants’ contention that if they are extradited there is a real prospect that they will be made subject to Military Order No 1 by a determination of the President under Section 2(a) and thereafter detained indefinitely, it may be at Guantanamo Bay, pursuant to Section 3, and/or put on trial before a military commission pursuant to Section 4. Were that to happen they would suffer violations of their rights under Article 5 of the European Convention on Human Rights (“ECHR”) (no detention save on strict conditions) and Article 6 (the right to a fair trial before an impartial and independent tribunal).
22. The district judge found that given the allegations against the appellants it would be open to the President of the United States to designate them as “enemy combatants”, which in this context is a shorthand for the application of the criterion set out in Section 2(a)(1)(ii) of Military Order No 1. The judge also found that their exposure to Military Order No 1, if that were to happen, would involve violations of their Convention rights …
23. None of these conclusions is challenged before us by the US government, nor, as I understand it, were they controversial in the court below … Each appeal accordingly proceeds on the premise that if subjected to Military Order No 1 following his extradition, the appellant would suffer violations of his Convention rights, notably those guaranteed by Articles 5 (no detention without trial) and 6 (fair trial), and it may be Article 3 (prohibition of inhuman and degrading treatment and torture).
24. Yet in each case the judge found that the appellant’s ECHR rights would not in fact be violated upon his extradition. He did so principally (there were other points, as I shall show) because of the effect, as he found it to be, of Diplomatic Notes issued out of the United States’ Embassy in London.
The Diplomatic Notes
25. In Mr Ahmad’s case Diplomatic Note No 25 was issued on 23 March 2005 … In Mr Aswat’s case Diplomatic Note No 114 was issued on 20 December 2005. In both cases the Notes were before the district judge and considered by him. The terms of Diplomatic Note No 25, which was the first in time, are as follows:
“The Embassy of the United States of America at London, England, presents its compliments to Her Majesty’s Principal Secretary of State for Foreign and Commonwealth Affairs and has the honor to refer to Note No. 100 dated November 15, 2004, requesting the extradition of Babar Ahmad to the United States of America…
Pursuant to Article IV of the Extradition Treaty Between the Government of the United States and the Government of the United Kingdom of Great Britain and Northern Ireland, the Government of the United States hereby assures the Government of the United Kingdom that the United States will neither seek the death penalty against, nor will the death penalty be carried out, against Babar Ahmad upon his extradition to the United States.
The Government of the United States further assures the Government of the United Kingdom that upon extradition to the United States, Babar Ahmad will be prosecuted before a Federal Court in accordance with the full panoply of rights and protections that would otherwise be provided to a defendant facing similar charges.
Pursuant to his extradition, Babar Ahmad will not be prosecuted before a military commission, as specified in the President’s Military Order of November 13, 2001; nor will he be criminally prosecuted in any tribunal or court other than a United States Federal Court; nor will he be treated or designated as an enemy combatant …”
The Note in Mr Aswat’s case did not refer to the death penalty. The offences for which extradition was sought are not so punishable.
26. In his decision of 17 May 2005 in Mr Ahmad’s case the district judge said this:
“I have had to consider the status of that Diplomatic Note. I am satisfied whilst it does not provide any personal protection to this defendant; the Diplomatic Note does bind the American Government, which includes the President of the United States. As such I am satisfied that the risk of an order being made under Military Order No. 1 is almost entirely removed. Although I have received evidence of extraordinary rendition to another State, the Government denies that such action takes place. If such steps do take place I am satisfied that in this case, in the light of the Undertaking not to invoke Military Order No. 1, the risk of extraordinary rendition is negligible.”
The judge’s conclusions in Mr Aswat’s case were to the same effect.
The Course of these Proceedings: The Appeal Points Outlined
28. There are four points common to both appeals, which I may describe in barest outline as follows, but must of course explain more fully:
1) There is a substantial risk that if extradited each appellant would face detention and/or trial by military commission under Military Order No 1, and thus suffer violations of his Convention rights.
2) There is a like risk that each appellant would be subjected to what is called “extraordinary rendition”, and thus, again, suffer violations of his Convention rights.
3) There is a like risk that each appellant, even if he were remanded for trial by the ordinary federal civilian courts, would be subjected to what are called “special administrative measures” (“SAMs”) which would also involve violations of his Convention rights. In addition there would on this ground be a bar to extradition by force of s.81(b) of the 2003 Act.
4) Any trial, albeit in the ordinary federal civilian courts, would involve evidence obtained by torture in violation of the appellants’ rights under ECHR Article 6.
30. I have also foreshadowed the remaining point in Mr Aswat’s case, which concerns the potential witness Ujaama. The argument is that the terms and circumstances of Ujaama’s plea agreement mean that his evidence, if given at any trial of Mr Aswat, would be coerced: tainted, in effect, by a threat of torture or at least of inhuman and degrading treatment in violation of the standard set by ECHR Article 3. Accordingly it is submitted that the use of his evidence would constitute a flagrant denial of justice and in those circumstances Mr Aswat’s extradition would violate his right to a fair trial under ECHR Article 6. The arguments here overlap with those arising on point (4) above, which I will deal with directly.
Use of Evidence Obtained by Torture at any Trial in the Federal Civilian Courts (Point (4) above)
32. The argument is that at any trial in the United States, it is “inevitable” (Mr Ahmad, skeleton argument paragraph 1.11) that evidence obtained by torture and/or inhuman treatment will be deployed against the appellants. Mr Fitzgerald relies on an affidavit sworn on 5 July 2006 by Mr Clive Stafford Smith, a United States qualified attorney with long and distinguished experience of representing indigent defendants facing the death penalty in the United States, and also persons alleged to be terrorists … He says … that at trials involving alleged Al-Qaida conspirators, such as the appellants, an FBI witness is routinely and inevitably called at the start to outline the history of Al-Qaida and of the defendant’s part in the conspiracy. This material, says Mr Stafford Smith, will in part be based on evidence obtained by torture and other improper means from detainees at Guantanamo Bay, Baghram and other places of secret detention that are not subject to the rule of law. It is contended that to return either appellant to a trial at which evidence obtained in that manner will be deployed against him would be to perpetrate a flagrant denial of justice in violation of ECHR Article 6. Mr Fitzgerald places much reliance on the decision of their Lordships’ House in
A v Secretary of State for the Home Department (No 2)  2 AC 221,  UKHL 71, in which Lord Bingham roundly stated (paragraph 52):
“The principles of the common law, standing alone, in my opinion compel the exclusion of third party torture evidence as unreliable, unfair, offensive to ordinary standards of humanity and decency and incompatible with the principles which should animate a tribunal seeking to administer justice. But the principles of the common law do not stand alone. Effect must be given to the European Convention, which itself takes account of the all but universal consensus embodied in the Torture Convention.”
33. Mr Hugo Keith, who appeared with Miss Clair Dobbin for the United States government on Mr Aswat’s appeal, submitted first that this ground of appeal lacked an evidential foundation and second that relevant courts in the United States could be relied on to respect relevant guarantees …
34. The first submission concerns evidential foundation. Mr Stafford Smith’s evidence on this aspect of the case is of necessity general in nature, although he seeks to draw inferences as to the subject-matter of the testimony that would be given at the appellants’ trials … This is no criticism of Mr Stafford Smith, but it means that this court cannot know precisely what the evidence would be. Thus it cannot know to what extent such evidence might be controversial, or in what particular circumstances it might have been obtained. In A (No 2) Lord Bingham continued (paragraph 53):
“The appellants broaden their argument to contend that all the principles on which they rely apply to inhuman and degrading treatment, if inflicted by an official with the requisite intention and effect, as to torture within the Torture Convention definition. It is, of course, true that article 3 of the European Convention (and the comparable articles of other human rights instruments) lump torture and inhuman or degrading treatment together, drawing no distinction between them. The European Court did, however, draw a distinction between them in Ireland v United Kingdom (1978) 2 EHRR 25, holding that the conduct complained of was inhuman or degrading but fell short of torture, and article 16 of the Torture Convention draws this distinction very expressly:
Ill-treatment falling short of torture may invite exclusion of evidence as adversely affecting the fairness of a proceeding under section 78 of the 1984 Act, where that section applies. But I do not think the authorities on the Torture Convention justify the assimilation of these two kinds of abusive conduct. Special rules have always been thought to apply to torture, and for the present at least must continue to do so. It would, on the other hand, be wrong to regard as immutable the standard of what amounts to torture …”
It is to be noted that Article 16(1) does not apply the exclusionary rule of evidence contained in Article 15 (which I have already set out) to “other forms [short of torture] of cruel, inhuman or degrading treatment or punishment”.
35. The distinction between torture and other forms of inhuman or degrading treatment is of some importance given the limits of Mr Stafford Smith’s testimony. Mr Fitzgerald accepted in reply that the appellants could not be specific. In the absence, unavoidable as it is, of information as to the precise circumstances in which any evidence to be given in US courts against these appellants would or might have been obtained I am not prepared to hold that it would be distinctly obtained by torture, so that process against the appellants would be tainted by violation of ECHR Article …
36. Mr Keith’s second submission concerned respect given by United States courts to relevant guarantees. Two points arise on this part of the case. The first is that while, as I understand it, it is common ground that the law of evidence in federal criminal cases in the United States does not generally contemplate the exclusion of testimony on the basis that it has a tainted source, we may reasonably suppose that the court would arrive at a proper decision upon any submission made to it that particular evidence should be excluded by force of Article 15 of the Torture Convention. The second is that the court would no doubt be amenable to argument that the weight to be accorded to any particular evidence was greatly lessened, perhaps extinguished, by virtue of its having been obtained by other forms of ill-treatment. I venture to cite some words of my own in the Court of Appeal in A (No 2) – with great diffidence, given the House of Lords’ very firm overruling in that case of the majority conclusion (to which I was party) in the Court of Appeal on the issue of admissibility of evidence obtained by torture. However not least having regard to the distinction accepted by Lord Bingham between torture and other forms of inhuman or degrading treatment, I think Mr Keith was justified in submitting that this passage (so far as it relates to non-torture cases) was not disapproved in their Lordships’ House:
[I expressed reservations about the decision of this court in Ramda  EWHC Admin 1278] “… as regards the impact on the fairness of a prospective trial of the fact that the trial court may be asked to consider evidence against the accused (not consisting in a statement made by himself) which was or may have been obtained by oppressive conduct. If we are looking, as article 6 in terms enjoins us, at fairness, why is fairness not satisfied by the availability of robust argument going to the weight of the tainted evidence?”
37. I conclude that the case on point (4) set out above is not made out and the appellants are not entitled on account of it to be discharged pursuant to s.87 of the 2003 Act.
Mr Aswat’s Case: The Witness Ujaama
38. It is convenient to deal with this argument next, because of its affinity with point (4) which I have just addressed. I have already summarised the submission. In barest outline it is that the terms and circumstances of Ujaama’s plea agreement mean that his evidence, if given at any trial of Mr Aswat, would be tainted by threat of torture or at least of inhuman and degrading treatment, and in those circumstances its use would constitute a flagrant denial of justice in violation of Mr Aswat’s right to a fair trial under ECHR Article 6.
39. There is a good deal of evidence before the court about Mr Ujaama …
43. In any case Mr Keith was I think right to submit that even if Mr Ujaama was threatened with SAMs and with indefinite detention, this falls short of a finding that he was in fact subjected to cruel, inhuman or degrading treatment. Article 15 of the Torture Convention has, I think, no application on Mr Aswat’s own case; and A (No 2) (not least given paragraph 53, which I have read) does not indicate that Mr Ujaama’s being called to the witness-box would be repugnant either to any principle of the common law or to ECHR Article 6. I recognise that this court has held (Ramda  EWHC (Admin) 1278, paragraph 22) that trial on evidence obtained in breach of ECHR Article 3 can amount to a flagrant denial of justice contrary to Article 6, but in my judgment the material before us cannot be said to support such an outcome in the event that Mr Ujaama were to give evidence against Mr Aswat. The reliability of any such evidence would, no doubt, be well tested by vigorous cross-examination.
44. For all these reasons there is in my judgment no force in Mr Fitzgerald’s argument on behalf of Mr Aswat concerning the potential witness Mr Ujaama.
Subjection to Military Order No 1 (Point (1) above)
51. On this part of the case the court is invited to hold that the United States would not honour the Diplomatic Notes given in each case, or at least that there is a substantial risk that they would not.
54. The appellants’ case has been put in various ways but may fairly be summarised in three propositions:
i) The Diplomatic Notes do not bind the President (and would not bind any future President) and are “ultra vires”, or are legally unacceptable undertakings not to apply the general law of the requesting state.
ii) The Diplomatic Notes are drafted in such a way that it would be possible for the United States authorities to apply Military Order No 1 to the appellants after their return, and yet claim that there was no breach of the undertakings in the Notes.
iii) As a matter of fact, the Notes are not to be relied on.
(i) Legal Status of the Diplomatic Notes
55. A good deal of evidence has been deployed by the appellants to support this part of their case … Now, there is plainly a difference between the question whether the Notes are in some sense legally binding on the United States authorities including the President, and the question whether in fact they would be honoured. The first of these questions, being one of law, cannot depend upon any evidence unless the issue is whether the Notes are binding by force of the domestic law of the United States; in which case evidence about that law’s effect would be admissible, because of the common law rule that foreign law is a matter of fact. Evidence is, of course, also receivable as to the conditions of international practice in relation to the giving of assurances such as are contained in the Notes.
56. However as I understand it there is no issue of domestic American law. The United States government does not rely on any rule of domestic law giving binding or enforceable effect to the assurances set out in the Notes. The real question is whether in all the circumstances, against the background of relevant international law and practice, this court should accept the Notes as being in fact effective to refute, for the purposes of the 2003 Act, the claims of potential violation of Convention rights and associated bars to extradition.
57. There is, however, more to say at this stage about the law. First, the proposition that the Notes are in some sense ultra vires is in my judgment misplaced. There is no suggestion that they were issued in defiance of some binding rule of United States law with whose application they are inconsistent. That might have been the case if Military Order No 1 (which, I accept, is part of the corpus of United States law) required the President to designate any foreign national to whom the Section 2(a) criteria applied. But it does not; the President has a discretion so to designate. There is therefore no inconsistency between the terms of the Notes and the terms of the Order. The force of the point is illustrated by an observation made by my Lord Walker J in the course of the argument concerning Mr Ujaama: on Mr Fitzgerald’s own case the fact, demonstrated by the plea agreement, that the Americans were prepared to forego the subjection of Mr Ujaama to military custody (in his case, as he is a United States national, at the North Carolina brig) shows that they do not regard such a course of action as mandatory or inevitable in every case where it might, on the facts, be put into effect.
58. Nor is it, I think, suggested that this ultra vires argument is supported by any notion that the Notes were in some sense unauthorised by the President or the United States government. Nor could it be. The Notes, as I have said, were issued by the United States Embassy in London. The Ambassador “is the mouthpiece of the Head of his home State and its Foreign Minister, for communications to be made to the State to which he is accredited” (Oppenheim’s International Law, Ninth Edition, Vol 1, paragraph 483). Mr Keith in his skeleton argument in Mr Aswat’s case at paragraph 2.18, citing authority of the International Court of Justice (Advisory Opinion as to the Customs Arrangements between Germany and Austria, 5 September 1931: Series A/B 41, p.47), correctly submits that international law recognises the use of Diplomatic Notes as a means of recording binding engagements between States. In the eye of international law such a Note is regarded as binding on the State that issues it. This, and this only, is the sense in which the Notes are indeed “binding”.
59. Next, Mr Fitzgerald would have us disregard the Notes, or at least treat them with considerable circumspection, because of what he says is the effect of the decision of their Lordships’ House in Armah v Government of Ghana and Anor  AC 192 …
60. Mr Fitzgerald principally relies on what was said by Lord Upjohn, but I may first note these observations of Lord Reid at 235G–236B:
“[I]n general it appears to me to be very undesirable that a foreign government should be encouraged to offer not to apply the ordinary law of its country to one of its own subjects if he is returned to that country. There may not be the same objection to the foreign government stating that it does not intend to take certain executive action with regard to the accused person and it might be proper to accept an undertaking on the lines of section 3(2) of the Extradition Act, 1870. But any undertaking or statement of intention is liable to create misunderstanding and perhaps acute difficulties in the event of a change of circumstances.”
The material passage from Lord Upjohn’s speech is at 262G–263E:
“[T]he Divisional Court accepted the undertakings of the Government of Ghana (1) that if tried and acquitted the appellant would not be taken into protective custody and would be free to leave Ghana; (2) that the appellant would be tried under the Criminal Procedure Code and not under the Corrupt Practices (Prevention) Act, 1964. The bona fides of the Government of Ghana and of its Attorney-General are not for one moment in doubt, but I think it is wrong in principle to permit such undertakings to be given or to take them into account. The appellant can surely come to the superior court (where alone, of course, section 10 arises) and say:
‘My liberty is at stake, I am a British subject, judge of the laws of the country to which my return is sought as they stand. It is most unjust to me that to attain their ends the Government should unilaterally be permitted to say that I alone of all the inhabitants am to be freed from those laws which I submit would make it oppressive and unjust to return me.’
So I think that the matter should be judged upon the laws as they stand and it then becomes a matter for the exercise of the discretion of the court under section 10 to consider the relevance of any laws to which the applicant may draw attention and their weight in the balance against other considerations such as the seriousness of the alleged offence, the strength or thinness of the case against the fugitive and all other relevant circumstances. In addition, it was readily conceded that the word ‘undertaking’ is a misnomer; it is no more than an expression of intention. Speaking generally, and not with any special reference to the Government of Ghana, there may be a change of government who may not feel bound by the acts of their predecessor. There may be a genuine difference of opinion as to the proper interpretation of the undertakings. Finally, it might in some circumstances be the duty of a government to depart from its expressed intention in the discharge of its duty in the good governance of the country and its inhabitants as a whole.”
61. In light of this authority Mr Fitzgerald submits that it would be wrong in principle for the court to rely on the Diplomatic Notes as a basis for concluding that Military Order No 1 would not be applied to the appellants. I do not think this is right. First, it is in my view significant that the “undertaking” in Armah was given by counsel in court. No doubt it was given on instructions, but it cannot have carried the weight or authority of a formal Diplomatic Note issued out of the State’s Embassy. As I have shown, State to State assurances, taking the form of such Notes, possess a recognised status in public international law. State to State assurances are commonly given in extradition matters, for example to demonstrate the requesting State’s loyalty to the specialty rule. Moreover such assurances are specifically contemplated on the face of Article IV of the 1972 UK-USA Extradition Treaty (which I have set out) in relation to the death penalty. The Note in Mr Ahmad’s case contained, in terms, Article IV assurances.
62. Secondly, an important theme of the reasoning in Armah consists in their Lordships’ concern that a foreign State might in effect offer to suspend its ordinary law as the price of obtaining a fugitive’s return. No such concern can arise in this case. On the contrary, the Diplomatic Notes contain assurances that the ordinary law – prosecution before the civilian Federal Court “with the full panoply of rights and protections” – will be applied. The position might well be different if the President were obliged by the terms of Military Order No 1 to designate any persons falling within the Section 2(a) criteria. But as I have already said the President has a discretion to designate; and where he does so, he must determine (Section 2(a)(2)) that “it is in the interest of the United States that such individual be subject to this order”. On any view these are special or exceptional measures. The argument which Lord Upjohn puts in the mouth of an appellant to the English court has no place here on the facts. Armah was distinguished both in Launder (No 2)  QB 998 (see per Simon Brown LJ as he then was at 1006G) and in Lodhi (No 1)  EWHC Admin 178 (see per Brooke LJ giving the judgment of the court at paragraph 88) on the ground that in contrast to Armah there was no question of the relevant undertaking being to do other than apply the ordinary law of the requesting State.
(ii) Scope of the Diplomatic Notes
64. This part of the argument depends on the words “[p]ursuant to his extradition” in each of the diplomatic notes. The point is crisply articulated in Mr Fitzgerald’s skeleton argument for Mr Ahmad as follows:
“[T]he Note only provides that ‘pursuant to extradition’ the Appellant would be [not] treated as an enemy combatant. No doubt this wording was carefully chosen. It would be open to the US prosecuting authorities to discontinue the criminal proceedings against the Appellant and then to designate him as an enemy combatant. In these circumstances it would be open to the US to claim that the detention was not ‘pursuant to extradition’ because that process had come to an end with the discontinuance of the criminal proceedings alleged in the request.”
65. The implicit suggestion appears to be (“No doubt this wording was carefully chosen”) that the possibility of such action being taken was in the minds of the American authorities at the time when the Diplomatic Notes were drafted and issued. If so, it is a very serious allegation of bad faith. It amounts to an accusation that the Notes are nothing but a smoke screen to conceal the United States’ true intentions. It is little wonder that Mr Fitzgerald did not pursue the suggestion explicitly. I shall have more to say about the Notes’ reliability under the next head – (iii) – but I should make it clear at once that there is not a sliver of justification, in any of the evidence we have seen, for so grave a charge.
66. I should however acknowledge this assertion made in Mr Fitzgerald’s skeleton argument in Mr Aswat’s case (paragraph 54):
“It is important to recognise that the Appellant’s primary case does not require the Court to determine that the US Government would or might act in bad faith by knowingly disregarding an undertaking binding as a matter of international law. His case is that the US may decide to designate him as an enemy combatant, and try him in a military commission, whilst maintaining the position that such treatment falls outside the terms of Diplomatic Note 114, which is not legally binding in any event.”
67. In argument Mr Fitzgerald submitted that the risk of such a decision would continue even if Military Order No 1 were amended or replaced. In so far as the case sought to be made is not one of bad faith, but merely a suggestion that if the appellants are extradited they may hereafter encounter the fate described because new information becomes available, then as it seems to me it is contradicted by Article XII of the 1972 Treaty which I have set out. It was submitted that Article XII, on its plain terms, governs only detention in the “territory of the requested party” and therefore does not cover detention in Guantanamo or elsewhere in the world. In order to send the detainee to such a destination, however, it would be necessary first to detain the person in question within the territory of the United States. Another submission was that information presented to the President after the extradition as to the risk posed by the Appellants in the view of the FBI or CIA would necessitate the President’s consideration of the application of Military Order No 1 to the Appellants. However by Article XII further action can be taken only in relation to crimes or “matters arising” after the extradition. Absent an accusation of bad faith it is plainly to be presumed that the United States will be loyal to their Treaty obligations. It is to be noted that a Treaty entered into by the United States becomes part of its domestic law upon its coming into effect, without more: see Article VI of the US Constitution. If of course either appellant were accused of an entirely fresh crime or other matter said to have been committed after the extradition, different considerations might arise (see Article XII(2)); but such a contingency cannot form the genesis of any complaint in these proceedings.
(iii) The Diplomatic Notes’ Reliability
68. But Mr Fitzgerald does not merely submit that the United States authorities might expose the appellants to the rigours of Military Order No 1 while asserting, by reference to the language of the Diplomatic Notes, that the assurances there given are not violated. He submits that the United States might simply breach the assurances in any event. The appellants’ evidence (principally the affidavits of Mr Loflin and Mr Stafford Smith) is presented in such a way as to intertwine this argument with (i) above (relating to the Notes’ legal status). But in my judgment we must address fair and square the submission of fact that the Notes would not be honoured. The issue is closely allied to that which arises on Mr Fitzgerald’s second principal contention, namely that both appellants face a substantial risk of being subjected to what is called “extraordinary rendition”, not least given the district judge’s finding that “in the light of the Undertaking not to invoke Military Order No. 1, the risk of extraordinary rendition is negligible”. However it is convenient to deal with that separately because of the structure of the arguments as they were presented before us.
72. … it is asserted that given his past approach to the duties of his office the President would feel free to disregard the assurances in the Notes, “particularly in the light of any new information or evidence that was provided to him by the FBI or the security services as to the alleged risk posed by [either] Appellant” (Mr Ahmad skeleton, paragraph 3.17).
73. It is also said (but it is really part of the same point) that the President has demonstrated his commitment to the use of military commissions …
74. In short we are asked, as I have already said, to hold that the United States would not honour the Diplomatic Notes given in each case, or at least that there is a substantial risk that they would not. How is this court to provide a conscientious response to such an argument? The starting point, I think, is the statement of Kennedy LJ in Serbeh v Governor of HM Prison Brixton (31 October 2002, CO/2853/2002) at paragraph 40:
“[T]here is (still) a fundamental assumption that the requesting state is acting in good faith.”
The assumption, of course, may be displaced by evidence. We must consider whether it is displaced here.
75. I have already referred to Mr Keith’s submission that the assurances in the Notes were given by a mature democracy. So much goes without saying. But the United States is also a State with which the United Kingdom has entered into five substantial treaties on extradition over a period of more than 150 years. Over this continued and uninterrupted history of extradition relations there is no instance of any assurance given by the United States, as the requesting State in an extradition case, having been dishonoured. In Bermingham & ors  EWHC 200,  3 AER.239 and Welsh and Thrasher  EWHC 156,  3 AER.204, decided in this court, Ouseley J and I were much concerned with a similar issue – or perhaps a particular application of the same issue – being called on in effect to decide whether the United States authorities could be relied on to abide by the specialty rule in relation to the prospective extradition of the appellants in those cases. Undertakings had been given on the point. In Thrasher Ouseley J said (paragraph 35):
“First, if there had been a routine disregard of the specialty rule, I would have expected that over the decades of extradition to the US from the UK, and in particular from those countries with which the US enjoys a land frontier, the UK Courts and the Courts of other sending states would have refused extradition in decisions which would be available to us. The 1972 and 2003 Treaties would not have been agreed in the terms on which they were agreed.”
In Bermingham I said (paragraph 142):
“In the present case I consider that the undertaking confirms the position which the United States courts would anyway adopt. They will be satisfied, not least by the terms of this court’s judgment, that the defendants’ extradition is ordered on the precise basis that the accusation they will face at trial will be limited to, and travel no wider than, the case which is essentially formulated in paragraphs 10 and 23 of the Texas indictment and reflected in the charge drafted for the proceedings at Bow Street. And the American courts will be loyal to this expectation: not merely because in general they respect the specialty rule, but because by their own express jurisprudence … it is “essential to determine … whether the surrendering state would regard the prosecution as a breach” … This test is meticulously applied. It means, in short, that the American courts will give effect to the views of the Secretary of State and of this court (as to which there will be no room for doubt) of the requirements of s.95 of the 2003 Act.”
76. I see no reason to doubt that the American authorities would likewise give effect to the views of this court as to the critical importance of the integrity of the Diplomatic Notes. Indeed the case may perhaps be said to be a fortiori: the Notes have the special status of having been issued out of the Embassy. The American authorities will appreciate, not least from the terms of the judgments in this case, that their request for the appellants’ extradition to the United States has been acceded to expressly on the faith of the Notes, read and interpreted as this court reads and interprets them. Acts of the US executive such as have attracted the kind of criticisms described and levelled by Mr Stafford Smith and Mr Loflin, being, however, acts touching only the internal affairs of the United States, cannot in my judgment begin to constitute a premise from which this court should conclude that the Diplomatic Notes will not be fully honoured.
77. This view is lent some support by the circumstances of a case to which both Mr Keith and Mr Hardy referred. Mr Al-Moayad, a Yemeni national, was arrested in Frankfurt on 10 January 2003, a warrant having been issued on 5 January 2003 by the United States District Court for the Eastern District of New York. Mr Al-Moayad was wanted for having, among other things, supplied money and equipment to terrorist groups including Al-Qaida. The United States requested his extradition and there were extradition proceedings before the Higher Regional Court at Frankfurt. What was referred to as a “verbal note” was issued by the American Embassy providing an assurance that if he were returned Mr Al-Moayad would not be prosecuted before a military tribunal pursuant to Military Order No 1. The Frankfurt court allowed the extradition (I use this expression since, unsurprisingly of course, there is no exact fit between the procedural terminology here and in the German courts). Mr Al-Moayad brought a constitutional complaint before the Federal Constitutional Court. We have an English language text of the judgment downloaded from the internet, bearing the serial number 2 BvR 1506/03. Various points were taken with which we need not be concerned. The relevant finding is at paragraph 76:
“… [D]ecisive consideration must be given to the fact that the United States precluded the possible application of the Presidential Military Order of 13 November 2001 by their assurance of 22 May 2003. Thus, the United States have entered into the obligation, which is binding under international law, neither to bring the complainant before an extraordinary court after his extradition nor to apply the procedural law that is provided in the Order of 13 November 2001 nor to take the complainant to an internment camp. There are no indications to suggest that the United States would, upon the complainant’s extradition, not comply with the assurance given.”
78. So Mr Al-Moayad was extradited to the United States. There is a postscript. We have a copy of a piece in the New York Times for 29 July 2005. It shows that Mr Al-Moayad was, indeed, not subjected to Military Order No 1. He was tried before a federal court in Brooklyn. After a five week trial he was convicted of conspiracy to support Al-Qaida and other offences and sentenced to the maximum penalty of 75 years imprisonment. Condign punishment: but no subjection to Military Order No 1.
80. On this part of the case I conclude for all the reasons I have given that the district judge was right to place confidence in the Diplomatic Notes.
Extraordinary Rendition (Point (2) above)
81. Mr Fitzgerald has supplied us with a document entitled “Rendition Appendix”. It collates primary materials to be found elsewhere in the papers before us. One meaning (but not the only meaning) of the practice, or alleged practice, of extraordinary rendition consists in the transfer of a person, by the agency or with the complicity of the United States, to a foreign State in circumstances where there is a substantial risk that the individual in question will be subjected to torture or cruel, inhuman or degrading treatment.
82. Both appellants assert that if returned they will be at risk of being subjected to this practice …
86. The position of the United States is that while it does carry out renditions, it does not practise extraordinary rendition. However the premise of this position is a particular understanding of what extraordinary rendition involves. Mr Appleton, who is a federal prosecutor in the United States Attorney’s Office for the District of Connecticut, says this (affidavit of 24 February 2005, paragraph 13):
“… I am advised by the Office of the Legal Adviser and the Office of International Affairs that the United States is committed to complying with its international law obligations under the [Torture Convention]. Consistent with that treaty, the United States does not expel, return, or extradite individuals to countries where the United States believes it is more likely than not that they will be tortured.”
This “more likely than not” is of some importance. As Mr Fitzgerald submits it is a palpably different test of the prospect of being tortured than that of substantial risk, which is applied in the Strasbourg jurisprudence on ECHR Article 3 (see Ullah, to which I have referred above). Thus it is said that the American approach as Mr Appleton describes it is perfectly consistent with the use by the United States authorities of rendition to States where there is a substantial risk, though not a probability (“more likely than not”) of torture – and thus, in effect, extraordinary rendition.
87. The appellants’ case, then, is that they may be subjected to extraordinary rendition with at least a substantial risk of torture in a third State, particularly if they are acquitted in the federal civilian court; and the Diplomatic Notes provide no assurance against such an eventuality.
88. If either appellant, having been acquitted in the federal court, were then removed from the United States to a third country where he faced a substantial risk of torture (never mind “more likely than not”), that would in my view be a plain violation at least of the spirit, and I would have thought the letter, of Article XII of the 1972 Treaty and (whatever one makes of the precise terms of the Diplomatic Notes) a gross breach of the trust subsisting between the United States and the United Kingdom.
89. The United States has submitted to the United Nations Committee Against Torture that
“The obligation under Article 3 of the Convention Against Torture requires a country not to return, expel or refouler an individual. For more than a decade, the position of the US Government, and our courts, has been that all of those terms refer to returns from, or transfers out from the United States.”
So the view taken is that the Article 3 obligation does not apply to the position of persons seized outside the United States and their alleged treatment in centres in third countries, but applies strictly in relation to those within United States territory. As for the construction of Article 3(1), I have already set out its terms. It has the words “… where there are substantial grounds for believing that he would be in danger of being subjected to torture”. That language is plainly close to the postulate of a substantial risk. Thus rendition of either appellant to a third country where he would face a substantial risk of torture would constitute a violation of Article 3 on at least one, perfectly viable, interpretation of the Article.
90. There is in fact no evidence whatever that any person extradited to the United States, from the United Kingdom or anywhere else, has been subsequently subjected to rendition, extraordinary or otherwise. All the evidence concerning the appellants themselves is that they are sought for the purposes of being tried in the federal civilian courts, and not for any collateral purpose. If convicted they may face the prospect of lengthy sentences. I have indicated that the issue on extraordinary rendition (point (2)) is closely allied to that relating to Military Order No 1 (point (1)) with which I have dealt at greater length, and so it is. I would reject Mr Fitzgerald’s case on point (2) for reasons much the same as I have given for rejecting his case on point (1). I regard the material before us which relates to the Americans’ treatment of instances where no question of extradition is involved as a wholly insufficient basis for concluding that the United States in these present cases would perpetrate so great a breach of trust (and I think of their legal obligations) as would be involved in their subjecting these appellants to extraordinary rendition.
“SAMs” (Point (3) above)
91. Mr Loflin (second affidavit, 24 January 2005, paragraph 4) describes Special Administrative Measures (“SAMs”) as
“special confinement measures that can be imposed on prisoners when there is a ‘substantial risk that a prisoner’s communications or contacts with persons could result in death or serious bodily injury to persons, or substantial damage to property that would entail the risk of death or serious bodily injury to persons.’ [the quotation is from the United States Code of Federal Regulations] These measures may include, but are not limited to, housing the defendant in administrative detention, and/or limiting the defendant’s correspondence, visiting rights, contacts with the media, or telephone use.”
… Mr Fitzgerald submits that if they were applied to either appellant they would significantly impair his ability properly to prepare his defence and would amount to inhuman and degrading treatment. Mr Loflin’s evidence is to the effect that he knows of no case in which a non-Muslim defendant has been subjected to SAMs …
92. There are thus, on analysis, three points relating to SAMs. (1) By the imposition of SAMs each appellant would be “punished, detained or restricted in his personal liberty by reason of his … religion” and so there would be a bar to extradition under s.81(b) of the 2003 Act. (2) They would also be prejudiced in the preparation and/or conduct of their defence, principally by inhibitions placed upon communication with their legal advisers, and so there would be violations of ECHR Article 6 quite apart from s.81(b). (3) And there would be violations of ECHR Article 3 given that SAMs involve or may involve solitary confinement.
93. It is convenient to deal first with ECHR Article 3. I did not understand Mr Fitzgerald to press this aspect as part of the forefront of his case. It is clear from the jurisprudence of the European Court of Human Rights that solitary confinement does not in itself constitute inhuman or degrading treatment. Regard must be had to the surrounding circumstances including the particular conditions, the stringency of the measures, its duration, the objective pursued and its effects: McFeeley v UK 3 EHRR 161, paras 49–50. Applying this approach, the evidence before us does not begin to establish a concrete case under Article 3. The argument on SAMs is really about the other two points.
95. I turn next to the point on ECHR Article 6. As is well known the United States Constitution vouchsafes a guarantee of fair trial whose terms, as I observed in Bermingham (paragraph 110), are strikingly similar to those of ECHR Article 6. The Sixth Amendment provides:
“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defence.”
This does not expressly protect lawyer/client privilege, but it must be inherent in the measure. In any event recent authority of the Supreme Court cited by Mr Loflin himself … affirms its importance: Swidler & Berlin v United States 524 US 399, 403. And the imposition of SAMs is open to judicial scrutiny: US v Reid 369 F. 3d 619 (1st Circuit 2004); US v Ali; E.D. Va Oct 24, 2005; US v El-Hage 213 F. 3d 74 (2nd Circuit 2000).
96. The United States has provided express evidence that the appellants’ Sixth Amendment rights and attorney/client privilege will be honoured and protected … While Mr Fitzgerald submits that the district judge “erred in his assessment of the effect of SAMs on the trial process” … there is as I understand it no challenge to his specific finding that “there is judicial control to see that communication passing between the defendant and his lawyers, although monitored, does not reach the eyes and ears of those prosecuting”…
97. In my judgment the evidence does not begin to show that the imposition of SAMs, were that to occur (as it may), would mean that either appellant would be “prejudiced at his trial” (s.81(b) of the 2003 Act), or that it would violate the appellants’ rights under ECHR Article 6, not least given that a flagrant denial of justice has to be shown. Nor, for good measure, does it show (what Mr Fitzgerald must I think establish) that the United States authorities would knowingly perpetrate a violation of the Sixth Amendment to the American Constitution.
98. There remains the submission that the appellants would be subjected to SAMs on a discriminatory basis. The appellants’ case to that effect depends upon Mr Loflin’s evidence that he knows of no instance, and none has been identified, in which SAMs have been imposed upon a non-Muslim defendant. Ms Killion denies that SAMs are imposed only on Muslims …
99. … like the district judge I am quite unable to infer from Mr Loflin’s statement that SAMs are applied only to Muslims that the United States authorities deliberately flout the Regulations so as to punish Muslim defendants for their religion.
100. I would reject this part of Mr Fitzgerald’s argument, like the others.
101. For all the reasons I have given I would dismiss these appeals. Taking stock of the whole case, I would make these final observations. There are I think two factors which constitute important, and justified, obstacles to the appellants’ claims. They are obstacles which might arise in other cases. The first is the starting-point: Kennedy LJ’s observation in Serbeh that “there is (still) a fundamental assumption that the requesting state is acting in good faith”. This is a premise of effective relations between sovereign States. As I have said the assumption may be contradicted by evidence; and it is the court’s plain duty to consider such evidence (where it is presented) on a statutory appeal under the 2003 Act. But where the requesting State is one in which the United Kingdom has for many years reposed the confidence not only of general good relations, but also of successive bilateral treaties consistently honoured, the evidence required to displace good faith must possess special force. The second obstacle is linked to the first. It is a general rule of the common law that the graver the allegation, the stronger must be the evidence to prove it. In this case it has been submitted that the United States will violate, at least may violate, its undertakings given to the United Kingdom. That would require proof of a quality entirely lacking here.
102. This court acts on the faith that the United States will be true to the spirit and the letter of the Diplomatic Notes and the obligations of the 1972 Treaty. It goes without saying that they will be true to the US Constitution. The terms of this judgment express the legal expectations and understanding of the United Kingdom court. I apprehend that these will be well fulfilled and honoured when the appellants are extradited.
[emphasis in original]
In 2003, in the Zakaev case
, the UK Bow Magistrates’ Court considered the case of a Russian national whose extradition was sought by the Russian Federation in order to prosecute him for war crimes allegedly committed in Chechnya. The Court considered “that the events in Chechnya in 1995 and 1996 amounted in law to an internal armed conflict.”
The Court held:
[T]here has been a delay in bringing these proceedings of some 7 years. In view of the gravity of the allegations … that delay in itself is [not] sufficient to warrant a finding of abuse of process. However, there are other factors to be added to that delay. In particular, there is the delay in the proper investigation of these alleged offences and the fact that Government officials and others were led to believe that there were no charges pending against the defendant. The initial request to Denmark included allegations in relation to the Moscow theatre siege and to the murder of Father Philip, on which it is now conceded there was no evidence whatsoever. When those factors are added together the inevitable conclusion is that it would now be unjust and oppressive to return Mr Zakaev to stand his trial in Russia.
… [I]t is more likely than not that the motivation of the Government of the Russian Federation was and is to exclude Mr Zakaev from continuing to take part in the peace process and to discredit him as a moderate.
… [T]here is a substantial risk that Mr Zakaev would himself be subject to torture. … [S]uch punishment and detention would be by reason of his nationality and political opinions. [Therefore,] Mr Zakaev … should not be returned to face trial in the Russian Federation.
In 2009, in the Brown case, the England and Wales High Court of Justice (Divisional Court) was called upon to decide an appeal by four Rwandese nationals whose extradition from the United Kingdom had been requested by the Government of Rwanda in order to try them for genocide before a Rwandan domestic court. Lord Justice Laws, who gave the judgment to which both members of the court had contributed, summarized the main issue before the court as follows:
[T]he principal focus of this judgment is the appellants’ claim that they would not receive a fair trial in Rwanda. The GoR [Government of Rwanda] proposes that they be tried for genocide in the High Court of Rwanda, a court of criminal jurisdiction established in 2004. It is to be contrasted with the local gacaca
courts, and also, of course, with the ICTR. The appellants submit that if they are returned to Rwanda for trial before the High Court, they will not receive a fair trial.
The appeal was allowed and the Secretary of State’s order for extradition was quashed. Lord Justice Laws set out the relevant law, namely Article 6 of the 1950 European Convention on Human Rights (ECHR) and the 2003 UK Extradition Act. He stated:
21. The 2003 [UK Extradition] Act contains two provisions which in effect impose fair trial requirements in the courts of the requesting State (being a category 2 territory) in extradition cases. [Category 2 territories are designated by order of the Secretary of State and include countries to which the framework decision of the Council of the European Union on the European arrest warrant (2003) does not apply.] We repeat them for convenience. First, s.81:
81 A person’s extradition to a category 2 territory is barred by reason of extraneous considerations if (and only if) it appears that—
(b) if extradited he might be prejudiced at his trial or punished, detained or restricted in his personal liberty by reason of his race, religion, nationality, gender, sexual orientation or political opinions.
87(1) … [The judge] … must decide whether the person’s extradition would be compatible with the Convention [i.e. ECHR] rights within the meaning of the Human Rights Act 1998.
(2) If the judge decides the question in subsection (1) in the negative he must order the person’s discharge.
23. Clearly the kind of bias contemplated by s.81(b), at least so far as it affects the trial process, might readily also constitute a denial of the right to “a fair and public hearing within a reasonable time by an independent and impartial tribunal” pursuant to Article 6 [ECHR]; and to that extent there is a potential overlap between the provisions. We find it convenient to concentrate on Article 6.
Fair Trial – the Law: the Test for Article 6
24. Under Article 6, the question for the court is whether, if they are returned to Rwanda for trial before the High Court, the appellants would suffer a real risk of a flagrant denial of justice – “flagrant” because in such a case the ECHR rights apply exceptionally and by extension, to protect the individual from being consigned by a State Party to the ECHR to another territory where he might suffer ill-treatment in violation of the Convention standards. In R v Special Adjudicator ex parte Ullah  2 AC 323 Lord Bingham said at paragraph 24:
While the Strasbourg jurisprudence does not preclude reliance on articles other than article 3 [ECHR] as a ground for resisting extradition or expulsion, it makes it quite clear that successful reliance demands presentation of a very strong case. In relation to article 3, it is necessary to show strong grounds for believing that the person, if returned, faces a real risk of being subjected to torture or to inhuman or degrading treatment or punishment … Where reliance is placed on article 6 it must be shown that a person has suffered or risks suffering a flagrant denial of a fair trial in the receiving state …
We should also cite the cross-reference at paragraph 10 of Lord Bingham’s opinion (and, for the context, we will set out paragraph 9):
9. Domestic cases as I have defined them are to be distinguished from cases in which it is not claimed that the state complained of has violated or will violate the applicant’s Convention [ie ECHR] rights within its own territory but in which it is claimed that the conduct of the state in removing a person from its territory (whether by expulsion or extradition) to another territory will lead to a violation of the person’s Convention rights in that other territory. I call these “foreign cases”, acknowledging that the description is imperfect, since even a foreign case assumes an exercise of power by the state affecting a person physically present within its territory. The question was bound to arise whether the Convention could be relied on to resist expulsion or extradition in a foreign case. It is a question of obvious relevance to these appeals, since the appellants do not complain of any actual or apprehended interference with their article 9 [ECHR] rights in the United Kingdom.
10. A clear, although partial, answer to this question was given in Soering v United Kingdom (1989) 11 EHRR [European Human Rights Reports] 439, a case in which the applicant resisted extradition to the United States to stand trial in Virginia, contending that trial there would infringe his right to a fair trial under article 6 of the European Convention and that his detention on death row, if convicted and sentenced to death, would infringe his rights under article 3 [ECHR]. Neither the conduct of the trial nor the conditions of detention would, of course, be within the control or responsibility of the United Kingdom. The [European] Court [of Human Rights] did not reject the applicant’s complaint under article 6 as ill-founded in principle, but dismissed it on the facts in paragraph 113 of its judgment:
“113. The right to a fair trial in criminal proceedings, as embodied in Article 6, holds a prominent place in a democratic society. The Court does not exclude that an issue might exceptionally be raised under Article 6 by an extradition decision in circumstances where the fugitive has suffered or risks suffering a flagrant denial of a fair trial in the requesting country. However, the facts of the present case do not disclose such a risk.”
Lord Justice Laws examined whether the judge at the lower court had applied the correct test. Lord Justice Laws stated:
Fair Trial – the Law: Did the Judge Apply the Wrong Test?
33. As we have stated, the legal test by which the fair trial issue has to be judged is whether the appellants would suffer a real risk of a flagrant denial of justice if they were extradited for trial in Rwanda. It is contended on their behalf that the judge misunderstood or misapplied the test. …
34. We should … record our concern at certain passages in the judge’s judgment. At paragraphs 369–372 the judge cited Ullah at some length. Accordingly one would ordinarily suppose that he had the correct test well in mind. However at paragraph 373 this appears: “It is clear, therefore, from these judgements that the test is a very high one and that the burden of proof lies on the defence on a balance of probabilities.”
And at paragraph 536:
The burden is on the defence to satisfy the court that there is a real risk of a flagrant denial of justice or fair trial. On the evidence produced they have failed to satisfy on a balance of probabilities the high test which has been set. Reliance was placed on the amicus brief of HRW [Human Rights Watch], but the conclusions reached do not justify the reliance placed on it when seeking to cross the high hurdle which the defence have to. In its conclusions, when dealing with the question of fair trial the brief states on seven occasions that the matters in question … may lead to a violation. It is put no higher than that and does not come near the higher Article 6 [ECHR] test.
The test is correctly stated in the opening sentence of paragraph 536. Notwithstanding that, the judge appears to have directed himself that the appellants carried the burden of proving on the balance of probabilities that there would be a flagrant denial of justice if they were extradited. But “real risk” does not mean proof on the balance of probabilities. It means a risk which is substantial and not merely fanciful; and it may be established by something less than proof of a 51% probability. The approach is the same as that taken in refugee cases, where the asylum seeker has to show a real risk that if he is returned to his home State he will be persecuted on any of the grounds set out in the 1951 United Nations Refugee Convention (see Sivakumaran
 1 AC 958). We think that despite his citation of the correct test the judge fell into error here. He may have been distracted by the second part of the test – “flagrant denial”: so much is suggested by his repeated references to the “high” or “very high” test.
Lord Justice Laws examined whether the applicants’ right to a fair trial would be violated because witnesses who could give important evidence for the defence will be too afraid of possible reprisals to testify. Having reviewed evidence on this matter, Lord Justice Laws concluded that “if they were extradited to face trial in the High Court of Rwanda, the appellants would suffer a real risk of a flagrant denial of justice by reason of their likely inability to adduce the evidence of supporting witnesses.”
Lord Justice Laws then considered the independence and impartiality of the Rwandan judiciary. He held:
[T]he question whether a court is independent and impartial cannot be answered without considering the qualities of the political frame in which it is located. We have had no day-by-day details from the GoR [Government of Rwanda] of the conduct of the Rwandan High Court’s business. No details of trials; of defences run, successfully or unsuccessfully; no details of any of the myriad events that show a court is working justly. We have reached a firm conclusion as to the gravity of the problems that would face these appellants as regards witnesses if they were returned for trial in Rwanda. Those very problems do not promise well for the judiciary’s impartiality and independence. The general evidence as to the nature of the Rwandan polity offers no better promise. When one adds all the particular evidence we have described touching the justice system, we are driven to conclude that if these appellants were returned there would be a real risk that they would suffer a flagrant denial of justice. It follows that the appeals of all four appellants under s.103 of the 2003 [Extradition] Act, against the decision of the judge to send the case to the Secretary of State must be allowed. They are accordingly entitled to be discharged, and the Secretary of State’s order for extradition must automatically fall.
In 2003, in a written ministerial statement in the House of Commons, the UK Secretary of State for the Home Office stated regarding a new bilateral extradition treaty between the United Kingdom of Great Britain and Northern Ireland and the United States of America:
The current UK-USA extradition treaty was agreed in 1972 and ratified in 1976 with supplementary provisions from 1986. It is outdated and can be significantly improved.
The new treaty reflects best modern practice in extradition. In particular, it provides that any crime attracting a maximum sentence of 12 months’ imprisonment or more in both the requesting and the requested state is extraditable rather than containing a list of offences which are extraditable, as the present treaty does. The advantage of that is that it encompasses offences, such as computer related crime, which did not exist when the 1972 treaty was drawn up.
The new treaty brings the evidential rules for requests from the United States into line with those for European countries and simplifies the procedures for the authentication of documents.
As with the existing treaty, the new treaty provides that in death penalty cases, extradition may be refused unless an assurance has been received that no death sentence will be carried out.
The new treaty also maintains the present position that political motivation cannot be used to block extradition in the case of terrorist or other violent crimes. The treaty stipulates that neither nationality nor statutes of limitations will be a bar to extradition.
The treaty also provides the standard speciality protection against onward extradition or surrender, and we have confirmed our understanding that this covers surrender to the International Criminal Court.
The United States is one of our key extradition partners and there is a significant volume of extradition business between the two countries. It is therefore important that our bilateral extradition treaty should be as effective as possible. I am pleased that it has been possible to reach agreement on the new treaty and that I have the opportunity in person to affirm our commitment to the closest possible co-operation in the fight against terrorism and other serious crime.