Ismail, Regina (on The Application of) v Secretary of State for The Home Department: SC 6 Jul 2016

The claimant ha been involved in the management of a company operating a ferry in Egypt. The claimant had been acquitted in Egypt of criminal liability, but then convicted in his absence on appeal, after submissions made on his behalf were discounted because of his absence. After sentence to imprisonment, the Egyptian court requested the SSHD to serve its notice of conviction on him in the UK, which the SSHD acceded to. The claimant sought to challenge that decision saying that the SSHD had a discretion whether or not to serve the notice, and having felt obliged to serve it, had not exercised that discretion properly. The Court was now asked as to the existence and extent of any such discretion under the 2003 Act, and if necessary were the claimant’s article 6 human rights engaged.
Held: The SS’s appeal succeeded. Generally, though not always, the service alone of a judgment would not engage article 8.
The decision of the Secretary of State to serve the judgment on Mr Ismail did not expose him to a risk of violation of his Convention rights. Service of the judgment would have placed Mr Ismail in a dilemma – whether to return to Egypt to appeal the judgment, or suffer the consequences of the judgment becoming final – but having to face that dilemma did not amount to a possible violation of his article 6 rights. Service of the Egyptian judgment did not have a direct consequence of exposing Mr Ismail to ‘proscribed ill treatment’. It reduced his options but did not carry the inevitable outcome of exposure to a violation of his rights. He could avoid that exposure by remaining in the UK.

Lady Hale, Deputy President, Lord Kerr, Lord Sumption, Lord Hughes, Lord Toulson
[2016] UKSC 37, [2016] WLR(D) 363, [2016] 1 WLR 2814, UKSC 2013/0160
Bailii, Bailii Summary, WLRD, SC, SC Summary
Crime (International Co-operation) Act 2003 1, Human Rights Act 1998, European Convention on Human Rights 6
England and Wales
At AdmnIsmail v Secretary of State for Home Department Admn 26-Mar-2013
The court was asked as to the extent of the Secretary of State’s discretion and obligation to consider a person’s Article 6 rights when requested personally to serve a judgment of an overseas court pursuant to a request for mutual legal assistance . .
CitedOmar Othman (Abu Qatada) v The United Kingdom ECHR 17-Jan-2012
The applicant resisted his proposed deportation to Jordan to face charges of terrorism. He complained was that his retrial in Jordan would amount to a flagrant denial of justice because of a number of factors including a very real risk that . .
CitedSoering v The United Kingdom ECHR 7-Jul-1989
(Plenary Court) The applicant was held in prison in the UK, pending extradition to the US to face allegations of murder, for which he faced the risk of the death sentence, which would be unlawful in the UK. If extradited, a representation would be . .
CitedAl-Skeini and Others v The United Kingdom ECHR 7-Jul-2011
(Grand Chamber) The exercise of jurisdiction, which is a threshold condition, is a necessary condition for a contracting state to be able to be held responsible for acts or omissions imputable to it which give rise to an allegation of the . .
CitedDrozd and Janousek v France and Spain ECHR 26-Jun-1992
The applicants complained of the unfairness of their trial in Andorra (which the Court held it had no jurisdiction to investigate) and of their detention in France, which was not found to violate article 5.
Held: Member states are obliged to . .

Lists of cited by and citing cases may be incomplete.

International, Criminal Practice, Human Rights

Updated: 18 January 2022; Ref: scu.566484