THE LORD ADVOCATE AGAINST JOHAR JAVED MIRZA ALSO KNOWN AS JACOB MIRZA
SHERIFFDOM OF LOTHIAN AND BORDERS AT EDINBURGH
[2016] SC EDIN 4
E83/11
JUDGMENT OF SHERIFF T WELSH QC
Under the Extradition Act 2003
In the cause
THE LORD ADVOCATE
(for the Government of the United States of America), Crown Office, Edinburgh, EH7 4AU
Applicant;
Against
JOHAR JAVED MIRZA
also known as Jacob Mirza (dob 11/11/80), Prisoner, Edinburgh
Respondent:
Act: Dickson; Crown Office, Edinburgh
Alt: Lunny, Advocate; Goode & Stewart, Solicitors, Edinburgh
Edinburgh, 12 January 2016
The Issue
[1] The respondent is a citizen of Pakistan. He is wanted by the US Government for prosecution on 9 serious fraud charges, all allegedly committed, in the state of Virginia, between 2005 and 2008, resulting in total defalcations of $2.7 million. The validity of the US extradition petition is not challenged. No statutory bar to extradition in terms of s79 of Part 2 of the Extradition Act 2003 [the 2003 Act] was argued. Nor was it contested, under s84 of the 2003 Act, that a case to answer exists against the respondent, in the US federal courts. The sole ground of opposition to the application was whether extradition is compatible with the respondent’s Convention rights, within the meaning of the Human Rights Act 1998, with regard to alleged contraventions of the ECHR, Article 2 (right to life), Article 3 (freedom from torture), Article 5 (right to liberty) and Article 6 (right to a fair trial).
The Applicant
[2] The applicant is the Lord Advocate acting on behalf of the Government of The United States of America. The USA is a federal republic composed of 50 states, a federal district, five major territories and various possessions, founded in 1776. For the purposes of Part 2 of the 2003 Act the USA is designated a category 2 territory by the Extradition Act 2003 (Designation of Part 2 Territories) Order 2003/3334.
The Respondent
[3] The respondent is Johar Javed Mirza also known as Jacob Mirza (dob 11/11/1980). He is a Pakistani national. He was brought up and educated in the USA and Pakistan. He worked as a realtor, mortgage broker and financial advisor in the USA. He migrated to the UK from the USA via Pakistan, in February 2010. He lived for a time in Manchester with his wife and then settled in Glasgow. On 4 November 2014 in Glasgow Sheriff Court he was convicted of an assault with attempt to rape that occurred on 13 July 2010. He was sentenced to 3 years custody. His earliest date of release is in May 2016. He was born into a Muslim family and now claims conversion to Judaism. This conversion claim and its consequences, should he be extradited, constitutes a central feature of his opposition to extradition, to the USA.
The Procedure
[4] On 2nd August 2011 the US Government made a formal request, to the UK Government, for extradition of the respondent, who was believed to be residing in Glasgow. Following normal protocol the request was passed to the Scottish Ministers for validation. The Cabinet Secretary for Justice in Scotland certified the case on 19th November 2011 and sent it to the Extradition Court for due process. A warrant for the arrest of the respondent was issued from this court, on 24th November 2011. The respondent first appeared in the Extradition Court on 25th November 2011. Bail was granted and continued on this matter, until 17th December 2015, when he was formally remanded in custody for extradition in terms of s92(4) of the 2003 Act. He continues to serve his prison sentence for assault with attempt to rape.
[5] There have been many callings of the case. The respondent has instructed and dismissed at least 5 firms of solicitors and has had 4 counsel represent him at various hearings. Full extradition hearings scheduled for 1 June 2015 and 29/30 October 2015 were discharged because the respondent needed more time to prepare his case. On 1 and 2 December 2015, I heard his opposition to the application for extradition against him. He was represented by counsel.
The Extradition Hearing
[6] Mr Lunny, advocate, for the respondent opened the respondent’s case and moved me to adjourn the hearing to allow more time for preparation. He indicated senior counsel Ms McCall QC was unavailable because a criminal trial had overrun in Glasgow High Court. Further, he said certain information had emerged from an affidavit, produced late by the Lord Advocate, that indicated the US Government did not operate a policy of mandatory return of criminal aliens to their country of origin, following due process in the US courts. This was significantly different from the respondent’s understanding of the factual position and could materially affect the respondent’s position. The motion was opposed. I adjourned for the morning session and allowed counsel some time to make inquiries into this issue, by telephone, from a US attorney but I was not prepared to further adjourn the full hearing. The respondent had no legal expert witnesses to call, to refute the suggestion there is no policy of mandatory return to country of origin, operated by the US Government. The respondent has no private funds with which to instruct and pay for the services of such experts and legal aid had been refused repeatedly for this purpose. I refused the motion to adjourn because it seemed to me the Legal Aid Board had made its position clear. There was no real prospect of foreign experts giving evidence in this case at any future hearing. The case has been twice adjourned to enable the appellant to arrange for expert witnesses to give evidence as to what would likely happen to him, in respect of his immigration status, should he be extradited to the USA and either convicted (and serve a term of imprisonment) or, alternatively, if he is acquitted. I decided there was nothing to be gained by further delay of the full hearing on the merits.
[7] In presenting the respondent’s opposition to extradition, Mr Lunny then indicated there was no formal challenge to the validity of the US Petition for extradition. He conceded there was no statutory bar to extradition relied upon and that on the basis of the information contained in the Petition and Affidavits lodged by the Lord Advocate there was a case to answer in the USA. Accordingly, the sole ground of opposition was based on s87 of the 2003 Act. Both parties lodged documents late at the bar of the court, without mutual objection. The Lord Advocate lodged productions AP10 to 15 and the respondent lodged productions RP12 to 15.
[8] Mr Dickson, for the applicant, stated that he had no oral testimony to offer but relied on the evidence contained in:
i. The US Petition sealed 20 July 2011 narrating the legal framework and factual background to the application.
ii. An affidavit given by Paul J Nathanson, Assistant US Attorney, dated 13 July 2015 setting out sentencing options, if the respondent is extradited and convicted. I considered him qualified to express opinions on these matters.
iii. A letter of comfort from Mary D Rodriguez, Acting Director of the Criminal Division of the US Department of Justice, dated 14 September 2015 confirming that the principle of specialty shall apply to this case.
iv. Affidavits by James T Dehn, a specialist attorney advisor from the US Department of Homeland Security (DHS) and Immigration and Customs Enforcement Office (ICE) dated 15 July 2015 and 30 November 2015. These affidavits explain the rules, procedure and US law relating to the arrival, classification, processing and removal of criminal aliens extradited to the USA. Mr Dehn is responsible for providing specialised legal advice to the Director of ICE and he represents the DHS in all exclusion, deportation and removal proceedings before the Executive Office for Immigration Review (EOIR). As such I considered him to be a competent expert able to express an opinion on the likely way the respondent would be treated by the requesting state should extradition occur.
[9] Mr Lunny indicated he had one witness to call, the respondent, Johar Mirza.
The Evidence of Johar Javid Mirza (This note is not intended to be comprehensive)
[10] Mr Mirza indicated he was 35 years old. He is a serving prisoner in a Scottish prison, with an appeal to the UK Supreme Court in his criminal case outstanding. When at liberty he resides at his sister’s house in Glasgow. He was born in Pakistan. He left there for the USA when he was 4 years old. He was educated between the US and Pakistan. As a child, he was enrolled in a Mosque in Lahore for his religious education. While in Pakistan, he stayed with his extended family. He was born into a Muslim family but has now converted to Judaism. His conversion began when he was a teenager. It has been a long process. It started as soon as he was a teenager and able to think for himself. In the US he was educated in Northern Virginia City College, Virginia Technical College and Strayer University, Washington DC. His conversion to Judaism was influenced by a number of factors. One of these was that while a young boy he was repeatedly sexually abused by the Imam, at a Mosque in Lahore, where he attended for religious teaching. He gave graphic evidence about the nature of the abuse, its frequency and the effect it had upon him psychologically and emotionally. He was unable to complain because he was too young. His behaviour was affected by the abuse. He became problematic. Eventually his family moved from Lahore and he left the Mosque. The abuse stopped although he still has serious flashbacks. He was last in Pakistan in 2010 before his father died. In his early teens he was educated in catholic schools in Pakistan and the USA. However, he felt drawn from Islam and Christianity towards Judaism. He also had bouts of being atheist and agnostic. He spent time reading about different world religions and philosophies. In 2005 he met a girlfriend of Jewish descent, Anya Shifrina. She was a liberal reformed Jewess. He went to Jewish festivals with Anya and felt drawn to the community life surrounding the synagogue. He dated Anya for 2 years but his family never accepted her, for religious reasons. He and Anya remain good friends and met in London and the Dominican Republic in 2011. However by February 2010 he had migrated to the UK and married a Muslim woman. He first met Sasha Umarr, his wife, in 2007. They married in December 2008. They originally lived in Manchester in February 2010 then moved to Glasgow. Mr Mirza said he felt pressurised into the marriage that was celebrated in Lahore. When he settled in the UK he moved to Scotland and acquired a portfolio of properties. He stayed with his sister in Glasgow. His wife joined him there. By late 2010 problems were developing in the relationship. He had joined a number of Jewish websites. His family were unhappy with this development. His sister and parents were profoundly religious. His family knew he attended the synagogue but thought this was a phase he was going through. Mr Mirza’s brother in the USA has married into the Jewish faith and converted.
[11] By 2011 Mr Mirza’s marriage was breaking down. He had developed symptoms of depression and his wife now returned to live in Manchester. He is now estranged from his wife. About this time he read extensively about Judaism and wanted to convert. He attended a synagogue in Giffnock, Glasgow and sought advice about conversion. He was told the community there did not have a rabbi but only a cantor and religious instruction for conversion was not possible without a rabbi. By the end of 2011 he was determined to convert to Judaism. There was no reformed rabbi in Scotland who could guide his conversion. His inquires disclosed the closest Reformed Jewish synagogue, which might help, was based in Manchester. Mr Mirza’s sister discovered he had been attending the synagogue in Giffnock, Glasgow at this time. For this, he was abused and threatened with being expelled from the family. He was followed and found to be attending services at the synagogue. There were huge family arguments because it was thought the family would be ostracised from the Muslim community, if word of this got out. Mr Mirza then went online, to find help to convert. He found Rabbi Yitzi (Yitzhak Miller) who is based in California and North Carolina but has an extensive online presence. Mr Mirza made contact with the Rabbi in 2012. Over the next three years he completed a conversion course. He paid the rabbi £70-80 per hour and the whole process cost nigh on £3000 to complete. Mr Mirza had close on 50 sessions on line with the rabbi and was engaged in intense study of the Jewish faith, history and traditions. Mr Mirza explained, briefly, some of the religious concepts he studied. He had no dealings with other Rabbis. He formed a deep connection with Rabbi Yitzi and referred to (RP9) his Certificate of Conversion dated 29 July 2015 that is signed by Rabbi Yitzhak Miller on behalf of the Jewish Community of Greensboro, North Carolina. Mr Mirza then recounted how he could not, as a Jewish convert, feel safe in Pakistan, if he were to be sent there after any proceedings in the USA, consequent upon extradition. He said he would be at mortal risk in Pakistan. He indicated he had been taught as a child that Jews and Christians were ‘the enemy’. His conversion to Judaism is widely known on his father’s side of the family and he would be at real risk of death from relations and others, if he returned to Pakistan. After his father’s funeral he received death threats from family members because of his conversion. During phone calls to Pakistan, he was told he had disgraced the family name, he was verbally abused and his life threatened. He said he had real fear that if extradited to the USA and then subsequently deported to Pakistan, his life would be in danger. He referred to RP10 which is an unsworn and undated statement from John Kenneth Zwerling, Attorney, 114 North Alfred Street, Virginia, that he was in danger of being deported to Pakistan, if extradited to the USA. Mr Mirza also explained he feared indefinite detention in the US, even if acquitted there. This fear related to his conviction for sexual assault in Scotland. Because of that he could not, he said, be returned from the USA to the UK after any sentence he served or if he was acquitted. Counsel then asked Mr Mirza about his interview during a ‘Proceeds of Crime’ case raised against him but now abandoned by the Scottish Ministers. Specific reference was made to RP11 which is the transcript of an interview given by Mr Mirza, on 31 January 2013 in Crown Office, Chambers Street, Edinburgh. On pages 48 and 49, Mr Mirza makes reference to certain dollar transactions which he indicated he was concerned might be used against him, during any US prosecution for fraud, he had to face, as a result of extradition to the USA.
Mr Dickson for the Lord Advocate, cross-examined the respondent
[12] Mr Dickson indicated he wished to clarify some facts with the witness but it was clear, as the cross examination proceeded, that it was largely directed at undermining the credibility of the witness.
[13] Mr Mirza indicated his father died in February 2013. Mr Mirza’s Pakistani passport, AP1, expired on 10 October 2015. Mr Mirza confirmed his brother, Gohar Mirza, had already pled guilty to the frauds relevant to this extradition and was sentenced to 5 years imprisonment. Mr Mirza married in Pakistan in 2008 according to Muslim tradition. On 22 May 2008 Mr Mirza agreed he applied for a 5-year multi entry visa, from Pakistan to the UK. The application was refused. However, on 10 December 2008, after his marriage, Mr Mirza applied again to enter the UK as the spouse of a UK national. That too was refused but successfully appealed and a visa granted in December 2009. It was put to Mr Mirza that he fabricated information to obtain a UK visa. This was denied. It was put to Mr Mirza that he lived in Manchester for 3 months then came to Scotland to live with his sister in 2010. Mr Mirza agreed. He stated he separated from his wife in 2012. It was suggested the marriage was a sham device to secure entry to the UK. This was denied.
[14] It was then put to Mr Mirza he was warned by the Police for kerb crawling on 8 July 2010 and he was charged with sexual assault on 20 July 2010. This was true. It was suggested his conversion to Judaism is bogus. This was denied. A number of documents were then put to Mr Mirza designed to undermine his credibility. These included AP11 that is a job application by the respondent to Harper Macleod, a firm of solicitors in Glasgow. In this document Mr Mirza describes himself as ‘an outstanding communicator’. AP12 was also put to Mr Mirza. This is a series of e-mails from 5 to 15 June 2014 which suggest the respondent lied to his then employer Harper Macleod, by telling them he had to give up his summer placement with them because, unexpectedly, he had to go abroad, as his mother was seriously ill. It was suggested to Mr Mirza, by Mr Dickson, that the truth about his sudden departure from Harper Macleod that summer, is more accurately contained in AP14 which contains the court Minutes from proceedings in Glasgow Sheriff Court spanning the period 9 June 2014 to 26 June 2014, during which time, rather than being abroad, as is indicated by the e-mails, AP12, the respondent was, in fact, on trial for sexual assault with attempt to rape in Glasgow Sheriff Court. It was put to the pursuer he lied to his then employers about that and invented the story about having to go abroad. This was denied. It was further suggested that production AP15 for the applicant shows that the respondent may have improperly accessed some business files concerning a relative of his while working at Harper Macleod. Mr Mirza stated he had accessed the files but they were old files. Finally it was put to Mr Mirza by Mr Dickson that Rabbi Yitzi was dismissed for misconduct from his synagogue in 2008 and is no longer a practicing rabbi. Mr Mirza was unaware of this suggestion.
[15] In summary, Mr Dickson put it to the respondent that his evidence was a ‘tissue of lies’ and suggested his pretended conversion to Judaism was a complete fabrication, invented for no other reason than to dupe the court and avoid lawful extradition to answer charges of fraud brought against him in the US Federal Court. This was denied.
The admissibility objection and motion for recusal
[16] During the course of Mr Mirza’s cross-examination, his counsel objected to Mr Dickson using the late productions AP10-15, which I allowed without objection. Both sides had produced late productions. However, counsel indicated he had not appreciated the full significance of the Lord Advocate’s documents, in particular AP15, until the respondent was cross-examined on it. It relates to the unauthorised access to client files by Mr Mirza on 10 June 2014 while working, on a summer placement, at Harper Macleod. Counsel stated to allow this would be unfair, as this document disclosed an apparent previous act of dishonesty on the part of Mr Mirza. Counsel then suggested I should recuse myself from hearing the case that was largely directed at determining an issue of credibility, namely, whether Mr Mirza’s conversion to Judaism, was genuine, because I had seen and read this document. Mr Dickson opposed the objection and the recusal motion. He indicated the documents lodged late AP10-15, all came from the Court of Session process against Mr Mirza which had been brought by the Scottish Ministers under the Proceeds of Crime Act 2002 [the 2002 Act] and now abandoned. These documents were disclosed to Mr Mirza in that action and their content should come as no surprise to him.
[17] I decided it was too late to object to the documents AP10-15. They had been disclosed to the respondent as part of the proceeds of crime case that was brought against him and subsequently abandoned by the Scottish Ministers. The contents were not unknown to the respondent. They were admitted late without objection and I ruled Mr Dickson was free to use them for the purposes of cross-examination.
Recusal
[18] No specific authority was cited in support of the motion that I must recuse myself in deciding a live issue of credibility in respect of a party on the basis that a prior inappropriate or alleged dishonest act is revealed against him which goes adversely to his credibility. Counsel referred in passing to O'Neill v HM Advocate (No.2) [2013] UKSC 36 as authority for his argument.
[19] Lord Hope sets out the law in relation to recusal in circumstances of apparent judicial bias in O’Neil. At para 47 he said:
“[47] The test for apparent bias which was laid down in Porter v Magill was designed to express in clear and simple language a test which was in harmony with the objective test which had been applied by the Strasbourg court. It is set out in [2002] 2 A.C., p.494, para.103 of the judgment in that case in these terms: “The question is whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased.” In Lawal v Northern Spirit Ltd, [2004] 1 All E.R., pp192-193; [2003] I.C.R., p.861 , para.14 Lord Steyn said that the purpose and effect of the modification which it made to the common law were to bring the common law rule into line with the Strasbourg jurisprudence. Lord Bingham of Cornhill made the same observation in R v Abdroikov, [2007] 1 W.L.R., p.2687 , para.14 when he said that there is now no difference between the common law test of bias and the requirement under art.6 of an independent and impartial tribunal. In Szypusz v United Kingdom , para.39 the Strasbourg court
acknowledged that its jurisprudence had been taken into account in Porter v Magill, and set out that test. It also acknowledged, in para.40, the further guidance in Helow v Secretary of State for the Home Department with regard to the attributes of the fair minded observer as background to the issue that it had to decide.
[48] The court is invited in this case to examine the allegation of apparent bias after the proceedings that are said to have been affected by it have taken place. But the principles to be applied are the same as those which determine the question whether, because of things he has said or done previously, the judge should recuse himself. So it may be helpful to look at cases in which it was the judge's decision not to recuse himself that was in issue.
[49] In President of the Republic of South Africa v South African Rugby Football Union, 1999 (4) S.A.,p.177 , the Constitutional Court of South Africa made these comments on the position of judges (in that case, members of the Constitutional Court itself) who, it was said, ought to have recused themselves: “The question is whether a reasonable, objective and informed person would on the correct facts reasonably apprehend that the judge has not or will not bring an impartial mind to bear on the adjudication of the case, that is a mind open to persuasion by the evidence and the submissions of counsel. The reasonableness of the apprehension must be assessed in the light of the oath of office taken by the judges to administer justice without fear or favour; and their ability to carry out that oath by reason of their training and experience. It must be assumed that they can disabuse their minds of any irrelevant personal beliefs or predispositions. They must take into account the fact that they have a duty to sit in any case in which they are not obliged to recuse themselves. At the same time, it must never be forgotten that an impartial judge is a fundamental prerequisite for a fair trial and a judicial officer should not hesitate to recuse herself or himself if there are reasonable grounds on the part of a litigant for apprehending that the judicial officer, for whatever reasons, was not or will not be impartial.”
[50] That passage was quoted with approval by the Court of Appeal in Locabail (UK) Ltd v Bayfield Properties Ltd, [2000] Q.B., p.479, para.21. It referred also in pp.479-480, paras 22-24 to three extracts from Australian authorities about the duty of the judge to hear and determine the cases allocated to him which it found to be persuasive: Re JRL Ex p CJL, (1986) 161 C.L.R., p.352; Re Ebner, (1999) 161 A.L.R., p.568, para 37; Clenae Pty Ltd v Australia and New Zealand Banking Group Ltd. In p.480, para.25 of Locabail there is an extensive discussion of the grounds on which objection to a judge could or could not reasonably be taken. While it was emphasised that every application for recusal must be decided on the facts and circumstances of the individual case, the court noted that a real danger of bias might well be thought to arise “if, in a case where the credibility
of any individual were an issue to be decided by the judge, he had in a previous case rejected the evidence of that person in such outspoken terms as to throw doubt on his ability to approach such person's evidence with an open mind on any later occasion”.
[51] In JSC BTA Bank v Ablyazov, the question was whether a judge had been right not to recuse himself as the nominated judge of trial, in circumstances where he had had to hear, prior to trial, an application to commit one of the parties for contempt of court and had found a number of contempts proven, by reason of the doctrine of apparent bias in Porter v Magill. Rix LJ, delivering a judgment with which Toulson and Maurice Kay LJJ agreed, pointed out in para.65 that, although the principles of apparent bias are now well established and were not in dispute in that case, the application of them is wholly fact sensitive. In para.70 he said that it seemed to him that the critical consideration is that
what the first judge does, he does as part and parcel of his judicial assessment of the litigation before him: “He is judging the matter before him, as he is required by his office to do. If he does so fairly and judicially, I do not see that the fair-minded and informed observer would consider that there was any possibility of bias.” That was a case of civil litigation, but I do not think that there is any difference in principle between the position of a judge in a case of that type and the situation where it is said that there is apparent bias on the part of a judge in a criminal trial.
[52] In Helow v Secretary of State for the Home Department, the question was whether there was a real possibility that Lady Cosgrove was biased by reason of her membership of an association and her receipt of its quarterly publication which contained some articles which were fervently pro-Israeli and antipathetic to the PLO, of which the appellant was a member. Among the reasons that were given for holding that there was not any real possibility of bias in her case were that the context is crucially important: 2009 S.C. (H.L.), p.3; 2008 S.L.T., p.968; [2008] 1 W.L.R., p.2418, para.4, by myself; that Lady Cosgrove was a professional judge with years of relevant training and experience: p.7 (pp.970-971) (pp.2422-2423) para 23, per Lord Rodger of Earlsferry; and the taking of the judicial oath, albeit as more of a symbol than of itself a guarantee of the impartiality which any professional
judge is by training and experience expected to practise and display: pp.18-19 (pp.977-978) (p.2435) para.57, per Lord Mance.”
[20] In reading the terms of AP10-15, I considered I was merely exercising a necessary judicial function to decide if productions tendered late, without objection, should be received for proof. I required so to do, in the exercise of a judicial function to determine the case (see Sinclair v HM Advocate (No.1) [2014] HCJAC 130, 2015 S.C.L. 79). By virtue of judicial training and oath/affirmation, I considered myself able to attach such weight to the content of AP10-15 as was necessary and appropriate to determine the credibility aspect of the case, should circumstances arise which required me so to do (see Alan Reid v Procurator Fiscal, Kilmarnock [2014] HCJAC 16). I did not consider any of the documents produced late, in particular AP15, precluded me from reaching a fair and balanced view about the credibility of Mr Mirza, if I had to. Nor did I consider that a fair minded and informed observer looking at the facts of this case would conclude that there exists any real possibility of judicial bias against the respondent just because the sheriff had seen the content of AP10-15 and heard the respondent questioned about them. Accordingly, I refused the motion that I recuse myself.
The facts established from the evidence produced
[21] Having heard the proof and considered the affidavits and other documents produced I held the following facts established:
i. The USA is a category 2 territory for the purposes of the Extradition Act 2003.
ii. The respondent is Johar Javed Mirza also known as Jacob Mirza (dob 11/11/80), the person named in the US Petition for extradition sealed 20 July 2011. He is presently serving a prison sentence of 3 years in custody for assault with attempt to rape in Glasgow. His earliest date of release is in May 2016. He does not consent to extradition.
iii. The US petition for extradition is in regular form and ex facie valid.
iv. No statutory bar to extradition in terms of s79 of the 2003 Act exists.
v. In terms of s84(1) of the 2003 Act, there is sufficient evidence to make a case requiring an answer, narrated in the US Petition, against the respondent. The case takes the following form. The US prosecutor will establish that the respondent along with co-conspirators (including his brother and other indicted co-defendants), entered into an agreement to defraud lending institutions by knowingly submitting false and fraudulent applications for mortgage loans. The evidence will disclose that the conspirators used interstate wires, the US mails and private commercial carriers to acquire mortgage loan proceeds. The prosecutor will rely on numerous ‘straw buyers’ (who are persons in whose names fraudulent mortgage applications were submitted to bona fide lenders) and co-conspirators who worked for the respondent. This witness testimony will be corroborated by electronic mail (“e-mail”) communications between the respondent and his co-conspirators, lender and settlement files and other financial and documentary evidence. There are nine fraudulent property transactions amounting to total losses to legitimate lenders in excess of $2,700,000. The respondent established at least five fictitious businesses to further the aims of the conspiracy and frauds. The proceeds of the fraud were used to pay off previous mortgage loans owed by the respondent and his associates, as well as to distribute the profits and fees earned in the sale of various properties, to himself and other conspirators and family members.
vi. By letter of comfort dated 14 September 2015, signed by the Acting Director of the Criminal Division of the US Department of Justice, the US Government confirms it will adhere to the principle of specialty in relation to the extradition of the respondent.
vii. In respect of immigration matters, the US Government does not operate a policy of mandatory removal of unwanted/illegal aliens, within its territory, to their country of origin or nationality. Rather an immigration system characterised by due process operates before independent immigration judges. The alien has a right to legal representation.
viii. If extradited to the US, the respondent will be admitted into the country, on parole, for prosecution. At the conclusion of criminal proceedings and punishment, if any, the US Department of Homeland Security (DHS) will terminate his parole. The respondent will then be treated as an arriving alien applying for admission. Removal from the US is not automatic in these circumstances. The respondent is entitled to a reasonable opportunity to depart voluntarily, at his own expense. If he does not leave voluntarily and does not withdraw his deemed application for admission and depart the US at his own expense, he will likely become liable to removal proceedings, at the instance of the DHS. He will be entitled to legal representation throughout this process. He will likely be detained pending expedited removal proceedings against him. If he is ordered, to be removed, he cannot be detained, indefinitely, pending removal. If the respondent actually positively applied for admission to the US, the DHS also has discretion to initiate civil immigration proceedings against him.
ix. The respondent is entitled under US law to seek asylum or protection under the Convention against Torture (CAT). The US ratified CAT in October 1994, and the Convention entered into force for the United States on 20 November 1994. Article 3 of CAT provides:
“No State Party shall expel, return ("refouler") or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture. For the purpose of determining whether there are such grounds, the competent authorities shall take into account all relevant considerations including, where applicable, the existence in the State concerned of a consistent pattern of gross, flagrant or mass violations of human rights.
x. In the US the respondent is entitled to claim relief against removal under CAT to any state where he can establish it is likely he will be subject to torture, as it is defined by Article 1 which includes: “….discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.”
xi. If an Article 3 CAT claim is successful, removal is deferred and the DHS cannot remove the alien to the country where fear of torture is established. However, the respondent cannot then be detained indefinitely in the USA awaiting removal. Prolonged detention pending removal is only possible in special circumstances e.g. for terrorists or especially dangerous individuals. Given the respondent’s US immigration status and his UK criminal history none of the special circumstances justifying prolonged detention by US standards are present in his case. The DHS lacks authority to detain non-US citizens indefinitely following grant of a removal order. After a removal order is granted the DHS has 180 days to enforce it.
xii. The respondent has no right of abode in the US. The respondent’s UK and US criminal history will have no impact on any immigration charges brought against him or any relief against removal he is entitled to seek under US law. The respondent is entitled to seek a CAT deferral to any country willing to authorise his admission. If he makes a CAT claim and it succeeds he cannot be removed to the country where fear of torture is established. He cannot be detained indefinitely in the US pending removal. If the DHS cannot succeed in removing the respondent to another country either because he is granted CAT relief to stay in the US or because no other country will accept him, then the DHS would likely release him on an order of supervision, with a periodic reporting requirement to an immigration officer.
xiii. If extradited to the USA for prosecution, the respondent will not be removed automatically to Pakistan at the end of any criminal proceedings. Nor will he be liable to be detained indefinitely within the US. If he applies to remain, he will be subject to US immigration law and procedure which inter alia provides for non-refoulement (return) protection under CAT for deportable aliens, guaranteed legal representation, adjudication of his claim before an independent tribunal with a right of appeal and free passage, voluntarily, should he choose to leave.
xiv. In addition to departing on his own volition, or facing immigration proceedings, the respondent may influence the conditions of his removal, including designating the country of removal, on a plea bargain according to US criminal procedure. This will require the agreement of the Federal prosecutor, concurrence by the DHS as well as the approval of the district court judge hearing his case, if extradited.
xv. In Scotland, the respondent was investigated under the Proceeds of Crime Act 2002 [the 2002 Act]. He gave interviews to the Civil Recovery Unit (CRU) on 18 September 2012 and 31 January 2013 following disclosure orders granted by the Court of Session, under s391 of the 2002 Act, on 23 March 2012. Civil recovery proceedings, raised in the Court of Session against the respondent, by the Scottish Ministers were abandoned by them on 29 April 2015.
xvi. No expert evidence was led to demonstrate that as a matter of fact the respondent cannot receive a fair trial in the US following extradition or that he would be subjected to a flagrant denial of justice should extradition follow.
xvii. No evidence was led to demonstrate that authorities in Pakistan acquiesce in or tolerate treatment that could be described as torture as defined in CAT, against Muslims who have converted to Judaism, in Pakistan.
Submissions
Respondent
[22] Mr Lunny adopted the case and answer written by senior counsel and lodged in this court on 4 November 2015. Essentially, the case against extradition, according to counsel, fell into two parts.
Part 1
The argument in this part is directed at the proposition that, as the US Government operates a mandatory immigration policy to return illegal aliens to their country of origin then the respondent’s life will be in danger, in contravention of his article 2 and article 3 rights, if he is returned to Pakistan after extradition to the USA. If not returned to Pakistan he will have to be indefinitely detained in the USA in contravention of his article 5 rights. Counsel cast the issue in the form of three questions. If the court answered the following 3 questions in the affirmative then a breach of the respondent’s Article 2 (right to life), Article 3 (freedom from torture) and Article 5 (right to liberty) rights, necessarily followed and extradition could not be compatible with the respondent’s Convention rights within the meaning of the Human Rights Act 1998. Accordingly, in those circumstances, he must be discharged in terms of s87(2) of the 2003 Act. The questions are:
1. Has the respondent genuinely converted to Judaism from Islam?
2. Does the USA operate a mandatory policy of return of unwanted/illegal aliens to their state of origin?
3. Has a real risk of death or torture of the respondent because of his religion been established, should he be deported to Pakistan from the USA, following extradition from the UK?
Part 2
Mr Lunny further submitted that there exists, in this case, substantial grounds for believing that the respondent will be exposed to a real risk of a flagrant denial of justice in the USA should he be extradited to stand trial there, because information from the CRU, in particular the answers he gave in the interviews he was lawfully obliged to give, under the 2002 Act, may be used in evidence against him during any US fraud trial. Under the procedure invoked to interview him in Scotland, he was not entitled to exercise his right to silence and his answers were capable of incriminating him in the commission of the extradition offences. These answers, if admitted in evidence in the US trial, would constitute a breach of the respondent’s Article 6 (right to a fair trial) rights.
[23] In developing these submissions, counsel asserted that my assessment of the credibility of the respondent was central to the task I had to perform. He invited me to accept the evidence that the respondent gave that he was a genuine convert. I was also invited to accept the content of the ‘Zwerling document’ RP10 to the effect that the US Government operates a mandatory policy of return of illegal aliens to their country of origin. Also, I was invited to accept the content of RP15 which is a public domain document created and issued by the UK Home Office (February 2015) which details information and guidance given by the department to claims handlers who require to assess claims for asylum, humanitarian protection or discretionary leave by nationals/residents of Pakistan seeking refuge in the UK.
Applicant
[24] Mr Dickson for the Lord Advocate invited me to reject the evidence of the respondent as untrue, with regard to the conversion claim. He relied on the various attacks made during cross-examination indicating, he asserted, that the respondent was a convincing liar who was well versed in verbal trickery. In particular he had lied convincingly about his mother’s illness and his need to leave the country in e-mails to Harper Macleod when the truth was, he was standing trial in Glasgow Sheriff Court for sexual assault. With regard to the way the respondent will be processed in the USA if extradition is ordered, Mr Dickson invited me to accept the contents of the affidavits lodged from US officials. He asserted that there is no mandatory policy of return of unwanted aliens to their country of origin that operates in the USA. The true position is that set out in the affidavit of Mr Dehn. The respondent will be subject to due process if extradited. Mr Dickson stated the onus of proof was entirely on the respondent to establish his convention rights will be breached if returned to the USA. There was no evidence to support that contention. Mr Dickson relied on the terms of Kapri v HMA [2014] HCJAC 33 which he said regulates the necessary evidential nature and standard required to prove any breach of right claimed. No such evidence had been produced. Further the issue about possible future torture in Pakistan if extradition followed was too remote for this court to consider. If there was a future case to be made under CAT it will be for the US courts to decide. I was invited to hold the process to date had been regular, no statutory bar to extradition established and conclude on the material before me that extradition would not be in breach of the respondent’s Convention rights because the conversion claim was bogus, no mandatory return to country of origin policy operated in the USA and any future CAT claim was too remote to be decided in Scotland, before extradition had occurred. I was invited to hold that the extradition request was sound, subject to no statutory bar, Convention compliant and send the case to the Scottish Ministers for further process.
Discussion
The Issue for determination
[25] In this case the respondent does not challenge the validity of the process. No objection is taken to the grounds contained in or the form of, the extradition request. Also the respondent points to no statutory bar to extradition in terms of s79 of the 2003 Act. The only issue advanced is that it is said extradition here would be incompatible with the respondent’s Convention rights. Articles 2,3,5 and 6 are said to be engaged and at real risk of breach.
[26] Counsel cast the first part of the issue for determination in the form of three questions each one of which I required to answer in the affirmative before I could hold extradition Convention non-compliant and discharge the respondent from the extradition request. The first question requires that I determine whether the respondent is genuinely a convert from Islam, his religion of birth, to Judaism, his religion of choice. It was said in evidence by the respondent that he had a deep seated psychological aversion to Islam and an equally deep felt philosophical attraction to Judaism. To some extent, no doubt ad abundantiorem cautelam, Mr Dickson engaged with this approach and invited me to answer question one in the negative and hold the conversion claim is bogus. I was encouraged to conclude that the conversion was more prudential than real.
[27] I regret, however, that I must disagree with both counsel and Mr Dickson in their analysis as to how I should approach the case. In terms of the 2003 Act I am obliged to follow a strict statutory code which requires me to answer specific questions in a logical order to reach lawful conclusions determined by Parliament before I could discharge the respondent from the process or send the issue to the Scottish Ministers for further procedure. I am not presiding over a medieval auto-da-fé. For reasons I express in para [30] to para [32] below, I do not consider, in the circumstances of this case, that the religion of the respondent is either relevant or material. Whether the respondent is Muslim or Jew he can only be extradited if extradition would be compatible with his Convention rights within the meaning of the Human Rights Act 1998, in terms of s87 of the 2003 Act.
The Test
[28] I require firstly to identify the appropriate test which must be satisfied before I can lawfully hold, in an extradition matter, that an individual’s Convention rights are likely to be breached and his extradition can be blocked. It is not easy to resist extradition on the basis of Articles 2,3,5 and 6. The law is settled. The bar that must be overcome, before extradition can lawfully be resisted, in the face of compelling UK international treaty obligations, is set at a very high level. There is a very strong public interest in the UK Government honouring its international obligations to return wanted persons to stand trial for extraditable offences, in states that enjoy extradition treaties with the UK. In the well known and binding cases of Regina (Ullah) v Special Adjudicator; Do v Immigration Appeal Tribunal [2004] 2 A.C. 323; [2004] 3 W.L.R. 23, in delivering the leading speech Lord Bingham of Cornhill articulated the test:
“24. While the Strasbourg jurisprudence does not preclude reliance on articles other than article 3 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: Soering, para 91; Cruz Varas, para 69; Vilvarajah, para 103. In Dehwari, para 61 (see para 15 above) the Commission doubted whether a real risk was enough to resist removal under article 2, suggesting that the loss of life must be shown to be a "near-certainty". 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: Soering, para 113 (see para 10 above); Drodz, para 110; Einhorn, para 32; Razaghi v Sweden; Tomic v United Kingdom. Successful reliance on article 5 would have to meet no less exacting a test. The lack of success of applicants relying on articles 2, 5 and 6 before the Strasbourg court highlights the difficulty of meeting the stringent test which that court imposes.”
Accordingly, I consider that to succeed in demonstrating that he is in real danger of being automatically returned to Pakistan if extradited from the UK or detained indefinitely in custody, if extradited to the US, or likely to be subjected to torture or to inhuman or degrading treatment or punishment, if returned to Pakistan and separately that there exists a real risk that he will be the victim of a flagrant denial of justice in the federal courts of the USA if put to trial there, the respondent will require to produce in this court cogent, persuasive and powerful evidence, to that effect, before I can hold any Convention rights breach claimed, duly established.
The Proof – Evidential Rules
[29] How does a claimant go about persuading an extradition court that a Convention right will be breached? I require to say something about the kind of evidence which is essential in a case of this sort. Bald assertion by a respondent will inevitably be inadequate. Reliance on public domain documents will rarely suffice. Expert testimony specifically directed at the actual circumstances of persons such as the respondent, addressed to the real likelihood of what will happen to them should extradition follow, is in my judgment the minimum standard required, barring exceptional circumstances. To establish any breach, what is required is admissible evidence to support the suggestion that there will likely be a breach of Convention right or a real risk of such should the respondent be extradited according to law. The law is clear that the normal rules of criminal evidence apply:
“[125] It appears, from the terms of the 2003 Act, that extradition proceedings at first instance are governed by the rules of summary criminal procedure (see sec 77(2)(a)) and that, subject to any statutory exceptions, the rules of evidence must be those applicable to criminal cases (see, eg secs 77(2)(b), 206(1), (2))…… There is, after all, no hybrid code of evidence applicable to extradition cases or to those many criminal processes in which a human rights point is raised. If a fact, including a substantial ground, requires to be established, the normal rules must apply.” Kapri v HMA [2014] HCJAC 33 at 125.
The Decision
Articles 2,3 and 5 – the Part 1 argument
[30] In reaching my decision, I accepted the evidence contained in the affidavit given by Paul J Nathanson, Assistant US Attorney, dated 13 July 2015 setting out sentencing options if the respondent were to be extradited and convicted. I also accepted the affidavits of James T Dehn, a specialist attorney advisor from the US Department of Homeland Security (DHS) and Immigration and Customs Enforcement Office (ICE) dated 15 July 2015 and 30 November 2015. These affidavits explained the rules, procedure and US law relating to the arrival, classification, processing and removal of criminal aliens extradited to the USA. I accepted that both these witnesses are experts in their field and entitled to express the opinions they did about what, in the context of this case, would likely happen to the respondent, were he to be extradited to the USA. From these affidavits and the extradition Petition and supporting documents I concluded that the US Government does not operate a mandatory policy of refoulement (return) of criminal aliens to their country of origin after due process, following extradition. The reality is more complex. This evidence enabled me to make the factual findings contained in Para [21] vii – xiv, above. I consider those facts to be determinative of the issue raised by the respondent in relation to articles 2,3 and 5 and his Convention rights argument under s 87 of the 2002 Act. Based on the established facts, I am satisfied that the US Government does not operate a mandatory refoulement (return) policy but rather the US Government has in place a Convention compliant legal system with refoulement (return) protection under CAT for deportable aliens and personae non gratae, such as the respondent, with guaranteed legal representation, adjudication of claims before an independent tribunal, with an orthodox right of appeal and free passage, voluntarily, should a claimant choose to leave instead. On that basis I do not consider the respondent will automatically be sent to Pakistan after his extradition, should that take place. Further, I do not consider there is any basis for holding breach of Convention right under articles 2,3 and 5 arising from removal to Pakistan, whatever the conditions there may be, as no evidence was led to establish what those conditions would be for the respondent, as a matter of fact. Nor do I consider there is any real possibility that the respondent will be detained indefinitely in custody, following due process for trial or otherwise, if he is extradited to the USA, given the opinion expressed, to the contrary, by Mr Dehn in his affidavit.
[31] That in my judgment is determinative of the Part 1 case, as the questions have been cast by counsel. Inquiry into questions one and three are rendered otiose and nugatory by the answer to question two, namely, that the US Government operates no mandatory policy of return, of illegal aliens, to their country of origin. Having reached that conclusion, I do not consider the religion of the respondent to be either relevant or material to his extradition should that be authorised. In my opinion question one, as cast, is no more than a pseudo-issue that logically evaporates following the resolution to question two. I am also of the opinion that, as a subsidiary issue, the religion of the respondent, in so far as it relates to any future post-extradition ejection of the respondent from the requesting state, should that situation arise, lacks any legal traction before this extradition court because it is too remote from the issue which must be decided here. If, following any lawful extradition from the UK, a future article 3 CAT claim were made before a US tribunal/court, then and only then, the tempus inspiciendum for determination of the religion of the respondent, the level of danger he might be exposed to, if deported to Pakistan and consideration and adjudication of any CAT issues that arise, would, in my judgment, logically have to be, the point at which the relevant CAT claim is made in future before the relevant US tribunal. In his life, the respondent has been Muslim, agnostic, atheist and Jew. For aught yet seen, his outlook may change again. Thus, for that reason as well question three, as cast, is in addition to being irrelevant to the issue I have to decided here, also premature.
[32] I turn briefly to consider the evidence of the respondent and the arguments proffered by counsel. Apart from telling me a great deal about his life story, family troubles, psychological attitude to Islam and philosophical attraction to Judaism, the respondent and his counsel offered not the smell of a petrol rag of evidence, that his article 2,3 and 5 Convention rights will be breached if he is extradited to the requesting state. I attached no weight to the Home Office document RP15, which is a public domain document of no relevance to this case as it deals with Christians and Christian converts in Pakistan. Counsel suggested it provided ‘some back-up’ for the respondent’s claim as to how, he, as a convert from Islam to Judaism, would be treated, if he were to be sent to Pakistan. I disagree. No expert evidence has been led, by the respondent, in relation to the fate of Muslim apostates in Pakistan who convert to Judaism. That evidential failure in my judgment is fatal to that part of the opposition to extradition. At most, the respondent’s case is that he harbours serious reservations about how he will be treated in the future, if extradited to the USA and his criminal trial process is exhausted. That, in my opinion, falls far short of satisfying the onerous burden placed on those who assert their Convention rights will be breached if extradited according to the law authoritatively set down in Ullah. The undated and unsigned ‘Zwerling document’ RP10, was, in my opinion, of no evidential value with regard to the claim the respondent may be subject to indefinite detention in the US and I cannot lawfully take its contents into account, following the decision in Kapri. Thus for the foregoing reasons I did not consider the Part 1 argument, advanced by counsel on behalf of the respondent, to be either sufficient, cogent or persuasive enough to block extradition.
Article 6 – the Part 2 argument
[33] As I understand this argument it takes the following form. The CRU of the Scottish Ministers investigated the respondent after extradition proceedings had been commenced. The respondent was made the subject of a disclosure order, on 23 March 2012, in terms of s391 of the 2002 Act. On 31 January 2013, the respondent was interviewed, by Ronnie McGill and Anna Reid, from the CRU in Crown Office, Edinburgh, in the presence of his then solicitor, Victoria Crawford, Beltrami & Co, Glasgow. The transcript of the interview is produced RP11. For reasons I am not privy to, the Scottish Ministers abandoned their case against the respondent on 29 April 2015. During evidence-in-chief, the respondent was taken by counsel to page 49 of the transcript and he confirmed that between lines 14 and 18 he told CRU officers that he had completed certain documents (not produced) in a way that indicated he had at one time (unspecified) US dollar funds amounting to $437,000, $180,000, $260,000 and $8,000. No other context or background is evidentially established. The respondent in evidence indicated he was concerned this information could be used to incriminate him of fraud in any future US trial.
[34] Counsel relied on the case and answer lodged in support of this ground. The case and answer suggests that the respondent was obliged under pain of imprisonment to answer the questions put to him during interview. It is further suggested that in terms of s394(1) of the 2002 Act “A statement made by a person in response to a requirement imposed on him under a disclosure order may not be used in evidence against him in criminal proceedings.” This immunity is said to apply only within the UK and that if the statements complained of are passed to the US authorities and used in his trial this would breach the respondent’s right to silence and privilege against self-incrimination. Mr Dickson stated that the respondent if extradited would have the right to counsel and US constitutional rights protections, including the right to silence and the right to a fair trial. The question of admissibility of this material, if in possession of the US authorities, was a matter for the US courts. Further he stated the doctrine of specialty applied.
Analysis
[35] The function of the extradition court is to determine whether it is lawful to extradite the respondent according to the scheme laid down in the 2003 Act. The UK and the USA have enjoyed an extradition treaty since the eighteenth century. It is not for me to adjudicate on what amounts to a fair trial in the US federal court system. I can only refuse to extradite the respondent on article 6 s87 grounds if I am satisfied that there is a real possibility that his extradition would result in a flagrant denial of justice and that he cannot get a fair trial in the requesting country, as is set out in the case of Ullah.
[36] According to Mr Dickson the respondent, if extradited, will have guaranteed legal representation and the protection of US constitutional rights including the right to silence, the right against self-incrimination and the right to a fair trial before an independent judge with a right of appeal, possibly to the US Supreme Court. In my judgment the evidence about the transcript, limited as it is, avails of the following legal consequences:
i. The fact that the respondent made possible incriminating remarks during an investigative interview in Scotland, in respect of which he is given statutory immunity from prosecution in the UK, does not, in my judgment, ipso facto mean that he cannot receive a fair trial in the USA, for extraditable crimes, or that it is obvious he will be the victim of a flagrant denial of justice in that jurisdiction, should extradition be ordered in his case.
ii. There is no evidence led before me that the US prosecutor is aware of the transcript or, more importantly, that there is a real possibility he intends to use it. That evidential absence is fatal to the opposition to extradition.
iii. Even if the US prosecutor did intend to use the content of the transcript spoken to before me, the respondent in any US trial would have the right to challenge its admissibility through counsel and according to US law. In my judgment, it cannot be said participation in such a process amounts to a flagrant denial of justice. On the contrary, it bears the hallmarks of justice.
iv. The doctrine of specialty means that the respondent cannot be prosecuted for offences other than those he is extradited to face. Thus the statements complained of cannot found new charges against him in the USA without further recourse to the UK Government. Whether and to what extent the remarks made are relevant to the US charges the respondent faces is not a matter for me. In the USA, the fairness of the admissibility of evidence, which enjoys foreign privilege, is a matter for the US courts to decide, applying US law. If extradited, the respondent will have the opportunity to object to the admissibility of the evidence, if used, and if admitted according to law there, he will be free to explain the significance of the remarks in his defence, should he choose to do so although not obliged to, if he goes to trial. He will enjoy the presumption of innocence throughout his trial. I could not, myself, describe that legal process as a flagrant denial of justice, against the background of the prima facie case directed against the respondent, by the US authorities (see Para [21] v above].
[37] Thus, I am not persuaded that the exacting test in Ullah has been satisfied in respect of the article 6 Part 2 argument advanced by counsel and the respondent. I am, accordingly, satisfied I can answer the question posed in s87(3) of the 2003 Act in the affirmative and that the case can safely be sent to the Scottish Ministers for their final decision on whether the respondent is to be extradited.
Compatibility Minute
[38] I gave my decision orally, in open court, on 17 December 2015 subject to issuing this written judgment with full reasons. After I announced my decision, Mr Stewart for the respondent, moved a Devolution/Compatibility Minute that was in the process. No reason was given for moving the Minute in this way. The motion was opposed. I took the view that having reached my decision and granted the Lord Advocate’s application on behalf of the requesting state, it was not now competent for me to review the Lord Advocate’s actings under the Scotland Act 1998, as amended, afresh at a continued hearing. If the Minute was to be insisted upon it ought to have been argued at the full extradition hearing on 1 and 2 December 2015. Even if it were competent so to do, no reasons were advanced which would have entitled me to exercise a judicial discretion to receive the Minute late. Accordingly I refused Mr Stewart’s motion.
Sheriff T Welsh QC
Edinburgh Sheriff Court
12 January 2016