Ismail 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 from the government of the country of that overseas court. The Claimant said that by serving the judgment the Secretary of State would be directly assisting in the enforcement of a foreign conviction obtained in circumstances which included a flagrant denial of justice. The Secretary of State suggested it would be no more that an administrative role in accordance with her responsibility to assist another state. She would be merely giving the Claimant a copy of the judgment, that her discretion in such circumstances was limited, and that responsibilities under Article 6 were not engaged.
Held: In exercising her discretion under section 1 of the 2003 Act, the Secretary of State could not ignore evidence of obvious illegality or bad faith in the proceedings which had led to the request to enforce a foreign judgment. Nor could she fail to have regard to evidence in relation to the manner in which the judgment had been obtained. She was also obliged to take into account the consequences for the person on whom the judgment was to be served.
The consequences which the court considered would ensue for the respondent by service of the judgment were summarised: ‘Service of the judgment would have serious implications for the claimant both in Egypt and the United Kingdom. It would set time running for finalising the judgment. He would have two options: return to Egypt and begin to serve the prison sentence of seven years with hard labour and appeal or remain in the United Kingdom and suffer the consequences of a final judgment.
Remaining in the United Kingdom would have significant consequences for the claimant once the judgment is served. Although there is presently no extradition arrangement between the United Kingdom and Egypt, on any request for extradition, the claimant could not dispute the facts. Egypt would then be seeking the extradition of a man guilty of manslaughter. Of course, the claimant would have the protection rights under Part 2 of the Extradition Act 2003. Further, a final judgment in the United Kingdom might well lead to an Interpol ‘red notice’. He could not then leave the United Kingdom for fear of being arrested.’
Goldring LJ referred to four factors which, he said, constituted ‘sufficient evidence for the Secretary of State to have considered whether this was a judgment obviously obtained in flagrant disregard of justice; in other words, in bad faith’. Those factors were: (i) the background of public pressure after the respondent’s acquittal for him to be convicted; (ii) the fact that two of the three judges due to hear the appeal were replaced shortly after their appointment by two men who had worked in the prosecutor’s office at the time of the investigation; (iii) in the course of the appeal hearing, the respondent’s legal representation was effectively withdrawn; and (iv) there were grounds to question whether the judgment could be sustained on a proper analysis of the facts.
There was sufficient evidence for the Secretary of State to consider whether article 6 was engaged: ‘For article 6 to be engaged the disregard of a person’s article 6 rights must be flagrant. The test is a very high one. Some indication of that can be gauged from the fact that over the past 20 years article 6 has not been successfully invoked in an extradition context. Even in a case where defence counsel was appointed by the public prosecutor, the applicants were held incommunicado until trial, the hearing was not public and closed to the defence lawyers and self-incriminating statements were obtained in highly doubtful circumstances, extradition was permitted (see Lord Brown’s speech in RB (Algeria) v Secretary of State for the Home Department [2010] 2 AC 110). That underlines how very exceptional must be the circumstances to result in the application of article 6 in a case such as the present.’
Goldring LJ, Wyn Williams J
[2013] EWHC 663 (Admin), [2013] WLR(D) 133
Bailii, WLRD
European Convention on Human Rights 6, Human Rights Act 1998
England and Wales
Cited by:
At AdmnIsmail, 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 . .

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Updated: 01 May 2021; Ref: scu.472040