CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 6 juillet 2010

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The first application was lodged on 10 June 2007 by two British nationals, Mr Babar Ahmad (“the first applicant”) and Mr Haroon Rashid Aswat (“the second applicant”). They were both born in 1974. The second application was lodged on 5 March 2008 by Mr Syed Tahla Ahsan (“the third applicant”), who is also a British national. He was born in 1979. The third application was lodged on 1 August 2008 by Mr Mustafa Kamal Mustafa, known more commonly as Abu Hamza (“the fourth applicant”). He was born in 1958. His nationality is in dispute. He contends that he was deprived of his Egyptian nationality in the 1980s; the United Kingdom Government maintain that he still has Egyptian nationality. The   Government have decided to deprive him of his British citizenship and he is currently appealing against that decision. The Government anticipate that a full hearing of that appeal will take place at the end of 2010. 2. The first, second and third applicants are represented by Ms G. Peirce, a lawyer practising in London with Birnberg Pierce and Partners, Solicitors, assisted by Mr E. Fitzgerald Q.C. and Mr B. Cooper, counsel. The fourth applicant is represented by Ms M. Arani, a lawyer practising in Middlesex. The Government are represented by their Agent, Mr D. Walton of the Foreign and Commonwealth Office. 3. The first and third applicants are currently detained at HMP Long Lartin. The second applicant is currently detained at Broadmoor Hospital and the fourth is currently detained at HMP Belmarsh. A. The circumstances of the case The facts of the case, as submitted by the parties, may be summarised as follows. 1. The United States' indictments 4. The applicants have been indicted on various charges of terrorism in the United States of America. They are the subject of two separate sets of criminal proceedings. The first set concerns the first applicant, Mr Ahmad, and the third applicant, Mr Ahsan, who were indicted by Federal Grand Juries sitting in Connecticut. The second set of proceedings concerns the second applicant, Mr Aswat, and the fourth applicant, Abu Hamza, who were indicted by Federal Grand Juries sitting in the Southern District of New York. The details of each indictment are set out below. On the basis of each indictment, the United States Government requested each applicant's extradition from the United Kingdom. Each applicant then contested his proposed extradition in separate proceedings in the English courts. a. The indictment concerning the first and third applicants 5. The indictment against the first applicant was returned on 6   October   2004. It alleges 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. On 28 June 2006, a similar indictment was returned against the third applicant, save that the charge of money laundering was not included. For both indictments, the material support is alleged to have been provided through a series of websites whose servers were based in Connecticut. The   charge of conspiracy to kill, kidnap, maim or injure persons or damage property in a foreign country is based on an allegation that the first and third applicants were in possession of classified US Navy plans relating to a US naval battle group operating in the Straits of Hormuz in the Persian Gulf and discussed its vulnerability to terrorist attack. b. The indictment concerning the second and fourth applicants 6.     The indictment against the fourth applicant was returned on 19   April   2004. It charges him with eleven different counts of criminal conduct. These cover three sets of facts. 7.     The first group of charges relate to the taking of sixteen hostages in Yemen in December 1998, four of whom died during a rescue mission conducted by Yemeni forces. The indictment charges the fourth applicant with conspiracy to take hostages and hostage taking and relates principally to his contact with the leader of the hostage takers, Abu Al-Hassan, before and during the events in question. Several of the hostage-takers were tried and convicted in Yemen in May 1999. Abu Al-Hassan and two others were sentenced to death and a fourth to twenty years' imprisonment. The   execution of Abu Al-Hassan took place on 17 October 1999. In 1999 investigations also took place simultaneously in the United Kingdom and the United States. In the course of the British investigation, the fourth applicant was arrested and interviewed between 15 and 18 March 1999. Officers from the Metropolitan Police flew to Yemen to conduct inquiries. One of the hostages, Mary Quinn, was also interviewed by the Federal Bureau of Investigations and detectives from Scotland Yard. The British investigation then concluded that, while links between the applicant and the hostage takers were established, evidentially the links proved inconclusive and relied heavily on information gathered from Yemeni sources which would not ordinarily be admissible during a British trial. It also appears that no further action was taken in the American investigation at this time. Then   on 22 October 2000, Ms Quinn recorded an interview with the applicant in London and, when this became available to the FBI in 2003, the American investigation recommenced, leading to the applicant's indictment. 8.     The second group of charges relates to the conduct of violent jihad in Afghanistan in 2001. The indictment alleges that the fourth applicant provided material and financial assistance to his followers and arranged for them to meet Taliban commanders in Afghanistan. In this respect, four counts of the indictment charge him with providing and concealing material support and resources to terrorists and a foreign terrorist organisation and conspiracy thereto. A further count charges him with conspiracy to supply goods and services to the Taliban. 9.     The third group of charges relates to a conspiracy to establish a jihad training camp in Bly, Oregon between June 2000 and December 2001. Two   counts charge the fourth applicant with providing and concealing material support and resources to terrorists and providing material support and resources to a foreign terrorist organisation (Al Qaeda); a further two counts charge him with conspiracy to the main two counts.     On   12   September 2005, a superseding indictment was returned which named and indicted the second applicant as the fourth applicant's alleged co-conspirator in respect of the Bly, Oregon charges. On   6   February   2006 a second superseding indictment was returned, which indicted a third man, Oussama Abdullah Kassir, as a co-conspirator in respect of the Bly, Oregon charges. 10.     A principal prosecution witness in relation to the Bly, Oregon and Afghanistan charges is Mr James Ujaama, a United States national, who was originally indicted as a co-conspirator in respect of those charges. It is alleged by the United States Government that the fourth applicant arranged for Mr Ujaama to travel to Afghanistan with another original co-conspirator, Feroz Abassi, and to meet a Taliban commander with the purpose of participating in violent jihad . Mr Abassi was captured in Afghanistan, detained there and then transferred to the United States' naval base at Guantánamo Bay, Cuba. He was later returned to the United Kingdom. Mr   Ujaama subsequently entered into a plea agreement. It is alleged by the second and fourth applicants that Mr Ujaama was coerced into providing evidence by the threat of being sent to the United States' detention facility at North Carolina brig. In addition, it appears that, subject to the plea agreement, the United States Government agreed to lift the “special administrative measures” (or SAMs) to which Mr Ujaama had been subjected. These are additional security measures which can be imposed on persons detained in federal prisons. The measures include, but are not limited to, housing the defendant in administrative detention and restricting the defendant's correspondence, visiting rights, contacts with the media, or telephone use. Although reviewable annually they can be continued indefinitely. It further appears that in the plea agreement, the United States agreed to forego any right it has to detain Mr Ujaama as an enemy combatant. Mr Ujaama was previously sentenced to two years' imprisonment. He later left the United States in violation of his parole terms and was re-arrested. According to information provided by the United States Government, he is due to be resentenced in spring 2010 11 .     Mr Kassir, a Swedish national, was extradited to the United States from the Czech Republic in September 2007. His trial began in the Federal District Court for the Southern District of New York on 13 April 2009. In   an affidavit of 22 October 2009, the Assistant United States Attorney responsible for the case, Mr Eric Bruce, stated that, before the commencement of the trial, one week had been spent on jury selection to ensure each juror would be fair and impartial. During the trial, Mr Ujaama gave evidence and, according to Mr Bruce, had been cross-examined vigorously by defence counsel but not a single question had been asked regarding ill-treatment or coercion by the United States Government. On   12   May 2009, Mr Kassir was convicted on five counts relating to the Bly, Oregon jihad camp conspiracy. He was also convicted of a further six counts relating to the operation of terrorist websites. On 15 September 2009, after submissions from Mr Kassir and his defence counsel, the trial judge sentenced Mr Kassir to the maximum permissible sentence on each count. Mr Bruce further stated that, because a life sentence was the maximum permissible sentence on two of the counts, Mr Kassir had effectively been sentenced to a term of life imprisonment. 12 .     In the course of the fourth applicant's extradition proceedings in the United Kingdom, one of the fourth applicant's original co-conspirators in respect of the Afghanistan charges was identified as Ibn Al-Shaykh Al-Libi. It is alleged by the fourth applicant that Mr Al-Libi had been arrested in Afghanistan sometime after 11 September 2001 and also transferred to Guantánamo Bay whence he was subjected to extraordinary rendition to Libya and Egypt. According to various newspaper reports, Mr Al-Libi was later sentenced to life imprisonment in Libya; on 10 May 2009, the Libyan media reported that he had committed suicide in prison. 2. The applicants' extradition proceedings in the United Kingdom a. Extradition proceedings against the first applicant 13. The first applicant was arrested in London on 5 August 2004 on the basis of an arrest warrant issued under section 73 of the Extradition Act 2003 (see paragraph 54 below). 14. On 23 March 2005, the United States Embassy in London issued Diplomatic Note No. 25. Where relevant, the note provides: “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...” 15. At the extradition hearing before the Senior District Judge, the first applicant argued, inter alia , that the risk of the death penalty being imposed remained since he could be tried on a superseding indictment. He further argued that he remained at risk of being designated as an “enemy   combatant” pursuant to United States Military Order No. 1 (see   paragraph   67 below) and that he remained at risk of extraordinary rendition to a third country. He also argued that there was a substantial risk that he would be subjected to special administrative measures whilst in pre ‑ trial detention in a federal prison. He argued that these measures could involve solitary confinement and restrictions on communication with his legal representatives in violation of Articles 3 and 6 of the Convention. 16. In a decision given on 17 May 2005, the Senior District Judge ruled that the extradition could proceed and that, inter alia , the first applicant's extradition would not be incompatible with his rights under the Convention. In respect of the first applicant's argument concerning the risk of the death penalty being imposed, the Senior District Judge held as follows: “As far as the Civilian Courts are concerned, I have the assurance of the Prosecutor that there is no intention to prefer a superseding indictment or amend the charges to include matters which would render the defendant liable to the death penalty. I have also been provided with Diplomatic Note 25 which gives a categorical assurance that the death penalty will not be carried out. I have reached the conclusion that the risk of this being imposed by a Civilian Court is negligible and the court is entitled to rely on the Prosecutor's undertaking and the Diplomatic Note.” 17 . As to the first applicant's arguments in respect of the risk of designation as an enemy combatant and the risk of extraordinary rendition, the Senior District Judge held: “I am satisfied that the defendant meets the criteria which would permit the President of the United States of America to personally make an order designating the defendant as an enemy combatant who could then be detained and tried by a military tribunal. If such an order were made there is a substantial risk that the defendant would be detained at Guantanamo Bay or subjected to rendition to another country...I   have had to consider the status of [the] 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 [United States] Government denies that such action takes place. If such steps do take place I am satisfied that in this case, in light of the undertaking not to invoke Military Order No. 1, the risk of extraordinary rendition is negligible.” 18. In considering the first applicant's arguments relating to the risk of special administrative measures, the Senior District Judge noted that the United States Government had not attempted to deny that special administrative measures could be applied but had argued that there was judicial control to see that communication passing between the defendant and his lawyers, although monitored, did not reach the prosecution. The   Senior District Judge found the application of special administrative measures to be the greatest ground for concern but concluded that a trial could still be properly and fairly conducted without a violation of Article 6. 19. The Senior District Judge concluded as follows: “This is a difficult and troubling case. The [first applicant] is a British subject who is alleged to have committed offences which, if the evidence were available, could have been prosecuted in this country. Nevertheless the Government of the United States are entitled to seek his extradition under the terms of the Treaty and I am satisfied that none of the statutory bars [to extradition] apply.” Accordingly, he sent the case to the Secretary of State for his decision as to whether the first applicant should be extradited. 20. On 15 November 2005, the Secretary of State (Mr Clarke) ordered the first applicant's extradition. The first applicant appealed to the High Court (see paragraphs 25 et seq. below). b. Extradition proceedings against the second applicant 21. On 7 August 2005 the second applicant was arrested in the United Kingdom, also on the basis of an arrest warrant issued under section 73 of the Extradition Act 2003, following a request for his provisional arrest by the United States. 22. On 20 December 2005, in the course of the second applicant's extradition hearing, the United States Embassy issued Diplomatic Note No.   114 which provided identical assurances to those provided in respect of the first applicant, save that no assurance was provided in respect of the death penalty. 23. The Senior District Judge gave his decision on 5 January 2006. Referring to his findings in the case of the first applicant, he found that the risk of an order being made under Military Order No. 1 was removed by the Diplomatic Note. He also found that, despite the risk of special administrative measures, the second applicant's trial could be properly and fairly conducted without a breach of his Article 6 rights. As to the second applicant's submission that the use of evidence from Mr Ujaama would breach his right to a fair trial, the District Judge concluded: “In the absence of evidence from Mr Ujaama himself as to his state of mind when he entered this plea agreement it is impossible to say whether his continuing cooperation was obtained by threat of either Special Administrative Measures or indefinite detention as an enemy combatant. There is, however, clearly an issue which would have to be resolved at any trial in the United States as to whether the evidence was admissible or whether it should be excluded on the basis of duress. That must be the responsibility of the trial court. It may be that this evidence would not be admitted but the evidence which goes before a jury in the United States must be an issue for the trial court and not for this court. I am satisfied that the evidence of Mr Ujaama would not in itself violate Mr Aswat's rights under Article 6 of the European Convention.” Having concluded that none of the bars to extradition applied, the Senior District Judge sent the case to the Secretary of State for his decision as to whether the second applicant should be extradited. 24. On 1 March 2006, the Secretary of State ordered his extradition. The second applicant appealed to the High Court. c. The first and second applicants' appeals to the High Court 25 . The first and second applicants' appeals were heard together. In its judgment of 30 November 2006, the High Court rejected their appeals. 26. They had argued that it was inevitable that evidence obtained by torture or inhuman treatment would be used against them in the course of any trial in the United States. For example, it was common in conspiracy trials for FBI agents to give evidence of the general nature of the conspiracy. This evidence could have been obtained by torture of detainees at Guantánamo Bay and other detention sites. The High Court found that it could not know what precisely the evidence would be and thus it could not know in what particular circumstances it might have been obtained. In the absence of such information it was not prepared to hold that it would be distinctly obtained by torture, so that the process against the applicants would be tainted in violation of Article 6 of the Convention. The High Court also distinguished between torture and other forms of ill-treatment and concluded as follows: “[While] 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 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.” In respect of the second applicant's submission regarding the possible use of evidence from Mr Ujaama, the High Court held that, even if Mr   Ujaama had been threatened with special administrative measures and indefinite detention, this fell short of a finding that he had in fact been subjected to cruel, inhuman or degrading treatment. 27. On the alleged risk that the applicants would be designated as enemy combatants under Military Order No. 1, the High Court held the Diplomatic Notes bound the United States Government and could be relied upon. The   first and second applicants had relied on the fact that two men, Jose Padilla and Ali al-Marri, who were to be tried in the United States Federal Courts, had, on the eve of proceedings, been designated as enemy combatants and moved to military custody. The High Court distinguished these cases on the ground that neither man had been extradited and there had been no undertakings “given on the international plane to another sovereign State”. On the alleged risk of extraordinary rendition, the High Court found no evidence that any person extradited to the United States from the United Kingdom or anywhere else had been subsequently subjected to extraordinary rendition. 28. As to the scope of the notes, the High Court found that the specialty rule, by which an extradited person could only be tried in the requesting state for the crime or crimes for which he had been extradited, provided adequate safeguards against such a designation. This was contained in Article XII of the 1972 UK – USA Extradition Treaty (see paragraph 53 below) and it was to be presumed that the United States would be loyal to its treaty obligations. 29 . Further evidence was also before the High Court on the extent of special administrative measures. The evidence included an affidavit from Ms Maureen Killion, of the Office of Enforcement Operations within the United States Department of Justice. That office was responsible for reviewing the imposition of such measures by the Federal Bureau of Prisons. In the affidavit, Ms Killion stated that, initially, all applications for the imposition of special administrative measures had to be approved by the Attorney-General. In rare cases, persons held under special administrative measures might be subjected to monitoring of their attorney-client conversations but only where the Attorney-General had made a specific determination that it was likely that attorney-client communications would be used to convey improper messages and that the information might reasonably lead to acts of violence or terrorism. The relevant regulations required the Government to employ specific safeguards to protect attorney ‑ client privilege and to ensure the Government's investigation was not compromised by exposure to privileged material. There had only been one instance of monitoring of attorney-client communications and only then after specific evidence of the misuse of the attorney-client privilege had been obtained. Ms Killion also denied that only Muslims had been subjected to special administrative measures; they applied also to non-Muslims in national security and terrorism cases and non-Muslims who had made non ‑ terrorist threats of violence. 30 . The High Court found that, according to the case-law of this Court, solitary confinement did not in itself constitute inhuman or degrading treatment. Applying that approach, the evidence did not “begin to establish a concrete case under Article 3”. On the conformity of the measures with Article 6 of the Convention, it found that the imposition of such measures was subject to judicial scrutiny and that the rights of the accused guaranteed by the Sixth Amendment to the Constitution of the United States provided sufficient safeguards to protect lawyer-client privilege. The Sixth Amendment was “strikingly similar” to Article 6. The High Court criticised the United States Government for failing to comply with repeated requests from the first and second applicants' representatives to provide statistics on the number of non-Muslims who were subject to special administrative measures. However, on the basis of Ms Killion's affidavit, it concluded that there was no evidence that special administrative measures were applied only to Muslims or that the United States authorities deliberately flouted the relevant regulations so as to punish Muslim defendants for their religion. 31. The first and second applicants applied for permission to appeal to the House of Lords. This was refused by the House of Lords on 6   June   2007. d. Extradition proceedings against the third applicant 32. The United States formally requested the extradition of the third applicant on 15 September 2006. The extradition hearing started on 20   November 2006 at which date the Senior District Judge determined that the third applicant was accused of offences for which he could be extradited. The case was then adjourned for evidence and argument, inter   alia as to whether the third applicant's extradition would be compatible with his Convention rights. The hearing resumed on 19   March   2007. By now bound by the High Court's judgment in respect of the first and second applicants, the Senior District Judge found that the third applicant's extradition would be compatible with the Convention. He   accordingly sent the case to the Secretary of State for his decision as to whether the third applicant should be extradited. 33. On 15 May 2007, while the Secretary of State was considering the case, the United States Embassy in London issued Diplomatic Note No.   020, which was substantially the same as that provided in respect of the first applicant. 34. On 14 June 2007, the Secretary of State (Dr Reid) ordered that the extradition could proceed. The third applicant appealed against this decision to the High Court and also sought judicial review of the alleged failure of the Director of Public Prosecutions for England and Wales (“the DPP”) to consider whether he should instead be tried in the United Kingdom. He   relied on guidance agreed between the Attorney General of the United States and his United Kingdom counterparts for handling criminal cases with concurrent jurisdiction between the United Kingdom and the United States (see relevant domestic and international law, paragraph 63 below). 35. On 10 April 2008 the High Court dismissed the third applicant's human rights appeal, relying on its ruling in respect of the first and second applicants. In the same judgment, it also dismissed his application for judicial review, finding that the guidance had no application to the third applicant's case. The guidance only applied to cases where there had been an investigation of the case in the United Kingdom and the DPP had been seized of the case as prosecutor. 36. On 14 May 2008 the High Court refused to certify a point of law of general public importance which ought to be considered by the House of Lords and also refused leave to appeal to the House of Lords. d. Extradition proceedings against the fourth applicant 37.     The United States requested the fourth applicant's extradition on 21   May 2004. He was arrested in London on 5 August 2004.     On 20   July   2004, the United States Embassy in London issued Diplomatic Note No. 57, which assured the United Kingdom Government that the United States would neither seek the death penalty against, nor would the death penalty be carried out against, the fourth applicant. 38.     The extradition proceedings were adjourned when he was convicted of offences in the United Kingdom and sentenced to seven years' imprisonment; they resumed when the criminal appeals process was concluded. The United States Embassy then issued a further diplomatic note (no. 017) dated 9 May 2007. This gave assurances, in terms similar to those given in respect of the first three applicants, that the fourth applicant would be prosecuted before a federal court rather than a military commission and that he would not be treated as an enemy combatant. i. The District Court proceedings 39.     When the case came before the Senior District Judge for his decision as to whether the extradition could proceed, the fourth applicant requested that further enquiries be made of the Government of the United States, submitting that the extradition request was based on evidence directly or indirectly obtained through torture. He advanced three grounds for the request. First, in respect of the Yemen charges, he maintained that several of the hostage-takers who had been arrested and tried in Yemen might have been subjected to torture or ill-treatment. Second, the fourth applicant relied on the fact that Mr Abassi had been detained in Afghanistan and taken to Guantanamo Bay, Cuba, where, it was alleged, he had been tortured and ill ‑ treated. He produced an affidavit from Mr Abassi dated 11 May 2007 in which Mr Abassi set out these allegations. Third, in respect of the Afghanistan charges, the fourth applicant relied on the fact that the prosecution's case centred on the allegations that the fourth applicant had arranged for Mr Abassi and Mr Ujaama to meet Mr Al-Libi in Afghanistan and carry out violent jihad there. He relied on the allegations, set out at paragraph 12 above, that Mr Al-Libi had been subjected to extraordinary rendition. 40.     In an affidavit sworn on 4 May 2007, Mr Bruce addressed, among other matters, the treatment of Mr Abassi. Mr Bruce stated: “34. Ferroz Abbasi [sic] was initially apprehended in Afghanistan in December 2001, fighting with al Qaeda and the Taliban. After he was apprehended, Abbasi was interviewed by two FBI agents while still in Afghanistan. Abbasi was properly read his Miranda rights by the FBI Agents, waived those rights in writing, and agreed to be interviewed by the FBI agents on two occasions in Afghanistan. A small amount of information obtained during those two consensual interviews in Afghanistan was relied upon in the original extradition request by the U.S., dated May 12, 2004, in this matter. 35. After Abbasi was initially detained in Afghanistan, he was later transferred to Guantanamo Bay, Cuba. None of the information obtained from Abbasi while detained in Guantanamo Bay was utilized in the original extradition request by the United States. Thus, ABU HAMZA's unsubstantiated allegations concerning the treatment of prisoners in Guantanamo Bay, Cuba, are wholly irrelevant to these proceedings. 36. Moreover, solely in order to simplify and expedite the proceedings in this matter, I am identifying the small amount of information from Abbasi's consensual interviews with the FBI in Afghanistan, after being read and waiving his Miranda rights, that was relied upon in the original extradition request in this matter. Because this information is not necessary to the extradition request, I ask that this information be considered withdrawn from the original extradition package. In addition, assuming a trial solely of defendant ABU HAMZA, the United States Government would not seek to introduce as evidence any prior statements or confessions of Abbasi. Indeed, in a trial against only ABU HAMZA, such statements of Abbasi would be inadmissible as hearsay (footnotes omitted).” The affidavit then set out the information attributable to Mr Abassi and stated that it provided details of events in Afghanistan from the time Mr   Ujaama parted company with Mr Abassi to the time of Mr Abassi's capture. Mr Bruce then stated that, even without the withdrawn information, there remained ample evidence that the fourth applicant had arranged for and facilitated jihad training and fighting in Afghanistan for his followers, including the testimony of Mr Ujaama and others. 41.     In his preliminary ruling on the application for disclosure of 29   October 2007, the Senior District Judge found that there was no conduct alleged within the extradition proceedings which was founded upon or was tainted by evidence obtained by torture. For the Yemen charges, the Senior District Judge found no evidence or information contained in the United States' extradition request which could have come solely from those tried in Yemen. The material upon which the request was based was made up of admissions by the applicant, evidence given by the hostages, and real and documentary evidence of the provision of a satellite telephone by the fourth applicant to the hostage takers. There was no reason to think that any of that evidence had been obtained by torture or tainted by it. For Mr Abassi, the fact that he was detained in Afghanistan and taken to Guantanamo Bay may well have been sufficient to raise concerns but the United States Government had expressly informed the court that all references to evidence and information given by Mr Abassi had been removed from the request. For Mr Al-Libi, the matter of his rendition would justify investigation if the extradition proceedings were based on evidence provided by him or information derived from him could have been the result of torture, but the United States Government regarded him as a co-conspirator not a witness and there was nothing in the extradition request which could plausibly be information or evidence obtained from him either directly or indirectly through torture. 42.     At the full extradition hearing before the Senior District Judge the fourth applicant argued, inter alia , that his extradition should not proceed due to the delay in seeking it and the fact that certain defence witnesses were no longer available, such as Abu Al-Hassan, the defendant in the Yemeni proceedings who had been executed. He also argued that his extradition would be a disproportionate interference with his private and family life guaranteed by Article 8 of the Convention. He further argued that extradition would give rise to a real risk of a violation of Article 3 of the Convention since he would be likely to be detained in a “supermax” detention facility such as the United States Penitentiary, Administrative Maximum, Florence, Colorado (“ADX Florence”). In this connection, he also relied on his poor health, specifically his type-two diabetes, his high blood pressure, the loss of sight in his right eye and poor vision in his left and the amputation of both his forearms. A violation of Article 3, he claimed, would also result from the imposition of special administrative measures. Finally in respect of Article 3, he argued that he was at risk of re ‑ extradition or deportation to a third country where he would be subject to ill-treatment contrary to that Article. 43.     The Senior District Judge, in his ruling of 15 November 2007, rejected all these submissions. There had been no obvious or culpable delay by the United States and the unavailability of certain witnesses and evidence for the defence would not render any trial unjust. In respect of detention at ADX Florence the Senior District Judge found that the fourth applicant's poor health and disabilities would be considered and, at worst, he would only be detained there for a relatively short period of time. The Senior District Judge was also not satisfied that special administrative measures would be applied to the fourth applicant but even if they were, he was bound by the ruling of the High Court in respect of the first and second applicants. For Article 8, the gravity and seriousness of the allegations outweighed the inevitable interference with the applicant's family life. Finally, there was no real risk of re-extradition. Having concluded that none of the bars to extradition applied, the Senior District Judge sent the case to the Secretary of State (Ms Smith) for her decision as to whether the fourth applicant should be extradited. She ordered his extradition on 7   February   2008. The fourth applicant appealed to the High Court against the Secretary of State's decision and against the decision of the Senior District Judge. ii. The High Court proceedings 44.     Before the High Court, the fourth applicant advanced three main arguments against his extradition. First, he again argued that it would be an abuse of process to extradite him to the United States since the case against him was founded in whole or in part on evidence obtained directly or indirectly by torture or ill-treatment. Second, he argued that the extradition would be incompatible with Articles 3, 6 and 8 of the Convention and third, he argued that the passage of time since the alleged offences meant that the extradition would be unjust and oppressive. 45.     The High Court gave its judgment on 20 June 2008 in which it dismissed the fourth applicant's appeal. In respect of the contention that the evidence against the fourth applicant was tainted by torture or ill-treatment, the High Court found that the terms of Mr Ujaama's plea bargain constituted pressure on him to give evidence but did not remotely come within the realms of ill-treatment or torture. For Mr Abassi, it found that while there were reasonable grounds to suspect that he might have been tortured, it was unnecessary to carry out further investigations in order to ascertain whether he had been. His evidence was no longer relied upon and would constitute inadmissible hearsay in the United States. For Mr Al-Libi, it also found that, whatever the truth of the allegations as to his rendition and torture, his involvement in the proceedings would be as a co-conspirator and not as a witness against the applicant. On the basis of these findings, the High Court concluded that: “[T]he stark reality is that when the possible use of direct 'torture' is addressed, it emerges that none of the victims of alleged torture provide evidence against the appellant. None of those allegedly ill-treated by the authorities anywhere in the world provide or will provide evidence against him either in relation to the extradition request or to any trial which may take place in the United States.” 46.     The High Court then turned to the fourth applicant's argument that there were substantial grounds for believing that the extradition request and the evidence at any subsequent trial were founded at least in part on evidence obtained indirectly by torture (“the fruits of the poisoned tree”). The fourth applicant had argued that there were three possible ways in which such evidence tainted the extradition request and the future trial: expert evidence from the co-lead investigator of the allegations, FBI Special Agent Butsch, whose expertise on Al-Qaeda and its training camps in Afghanistan, it was alleged, was derived from interrogations where torture had been used; the evidence of Mr Ujaama, which could have been founded on material which became available after Mr Abassi's capture; and the affidavit in support of the extradition request sworn by Mr Bruce who had referred to the complexity of the case and the fact that extensive additional evidence had been gathered from all over the world. The fourth applicant also argued that in the United States, evidence obtained by torture was admissible and the fact that torture was involved went merely to the weight to be attached to that evidence. The High Court rejected these contentions. The claims made in relation to Mr Butsch and Mr Bruce were general and unparticularised. There was nothing to suggest that Mr Ujaama's allegations in relation to Bly Oregon and Afghanistan derived from anything said by Mr Abassi under torture. Any allegations of improper coercion could be explored in cross-examination of Mr Ujaama. There was no material difference between the rules of evidence in the United States and the United Kingdom in respect of evidence obtained indirectly by torture. Moreover,   this Court's judgments in Jalloh v. Germany [GC], no.   54810/00, ECHR 2006 ‑ ... and Harutyunyan v. Armenia , no.   36549/03, ECHR 2007 ‑ ... did not assist the fourth applicant. A distinction had to be drawn between evidence obtained by torture and evidence obtained by ill-treatment falling short of torture, a distinction which was supported by the different wording in Articles 15 and 16 of the United Nations Convention Against Torture (see paragraph 75 below). Jalloh had left open the general question whether the use of evidence obtained by ill-treatment in breach of Article 3 falling short of torture automatically rendered a trial unfair for the purposes of Article 6. In considering Harutyunyan the High Court stated that: “...the court concluded, at paragraph 63, that: 'Incriminating evidence – whether in the form of a confession or real evidence – obtained as a result of acts of violent [sic] or brutality or other forms of treatment which can be characterised as torture should never be relied on as proof of the victim's guilt, irrespective of its probative value'. Although the court did not have to decide whether the treatment inflicted on the appellant and two witnesses amounted to torture within Article 3, it clearly had regard to the findings of the domestic court as to the severity of the ill-treatment which had 'the attributes of torture' when reaching its conclusion that there had been a violation of the right to a fair hearing under Article 6. This decision does not assist the appellant in the present case. There is no suggestion here that evidence obtained by violence or brutality will be used as proof of the guilt of the victim of such violence or brutality.” 47.     In respect of the fourth applicant's arguments against extradition which were based on Article 3 of the Convention, the High Court first considered the validity of the assurance provided by the United States through the Diplomatic Notes. It considered an Amnesty International Report of 10 March 2008 entitled “United States of America: to be taken on trust?” (see paragraph 78 below) which questioned the strength of such assurances but found the report to be based on very little evidence. The   High Court concluded: “In our judgment, if we need to look for a guarantee that the USA will honour its diplomatic assurances, the history of unswerving compliance with them provides a sure guide. We are satisfied that these diplomatic assurances will be honoured.” 48 .     In relation to the conditions of detention the fourth applicant would face in the United States, the High Court found that, if convicted, the fourth applicant would be sentenced to very lengthy terms of imprisonment and that, in all likelihood, a whole life tariff would be imposed. It found that, of itself, this would not constitute a breach of Article 3. On the question of the compatibility of detention at ADX Florence with Article 3, the High Court relied in particular on the understanding of the prison warden, Mr Robert Wiley, to the effect that if, after a full medical evaluation, it was determined that the fourth applicant could not manage his activities of daily living, it would be highly unlikely that he would be placed at ADX Florence rather than at a medical centre. The High Court concluded: “First, the constitution of the United States of America guarantees not only 'due process', but it also prohibits 'cruel and unusual punishment'. As part of the judicial process prisoners, including those incarcerated in Supermax prisons, are entitled to challenge the conditions in which they are confined, and these challenges have, on occasions, met with success. Second, although Mr Wiley's evidence does not constitute the kind of assurance provided by a Diplomatic Note, we shall proceed on the basis that, if the issue of confinement in ADX Florence arose for consideration, a full and objective medical evaluation of the appellant's condition, and the effect of his disabilities on ordinary daily living and his limited ability to cope with conditions at ADX Florence would indeed be carried out. This would take place as soon as practicable after the issue arises for consideration, so that the long delay which appears to have applied to another high profile convicted international terrorist, who is now kept at an FOB [Federal Bureau of Prisons] medical centre because of his ailments would be avoided.” 49.     Finally in respect of the Convention, the High Court rejected the applicant's argument that the extradition would be a disproportionate interference with his rights under Article 8 of the Convention. 50.     In respect of the passage of time argument against extradition, the High Court accepted that the United States was the proper forum for any trial and that the prosecution's case had not been viable until the evidence of Ms Quinn and Mr Ujaama became available in 2003. For all three groups of charges, the fourth applicant had been unable to identify any witnesses who would have been available and who would have assisted his defence had the prosecution been brought sooner. The High Court was also not persuaded that it was more appropriate for the fourth applicant to be tried in