Schmidt v Secretary of State for the Home Department

The issues before this Court arise out of the following chronology:

Before this Court the Applicant renewed his application, developing his skeleton argument by way of oral submissions. There was a corresponding response by Mr. Keith on behalf of the Home Secretary. Before identifying the issues, it is necessary and helpful now to record the following. First, it is important to note that there is a provision of French Law (Article 489) the effect of which is to allow a person sentenced in absentia, as was this applicant, to have a retrial. In anticipation of reliance on this provision, the French authorities did not seek the Applicant’s extradition on the basis of his conviction or his absconding but rather on the basis of an allegation of two offences that are ‘extradition crimes’: the wilful ill-treatment of Stephane Antoine between 1^st January 1986 and 10^th February 1993 and the wilful ill-treatment of Jonathan Antoine between the same dates. In other words, the application for extradition is put on an “accusation” basis rather than on “conviction” basis. Second, it appears that the French authorities have made available material serving to show the nature and alleged weight of the allegations. This material was not put before us but there was no dispute but that we could and should be guided for present purposes by the assessment made in the judgment of the earlier Divisional Court who did see this material:

“….. The charges in respect of which extradition is sought relate to a period between 1^st January 1986 and 10^th February 1993. The allegation is that in that period he was responsible for two young children, Jonathan and Stephane, born in 1980 and 1982, and he wilfully ill-treated them in a manner likely to cause unnecessary suffering to those two children and injury to their health.

The nature of the ill-treatment is briefly summarised thus. There were beatings and assaults; the children were whipped, especially with belts; there was ill-treatment in relation to food; they were locked up in places such as boiler rooms, and the general behaviour towards the children was such as to inspire terror and intimidation. They were deprived of contact with the world outside. It is clear from the papers which are before the court that these were in no sense trivial allegations, and nothing which has been said to us this morning has so suggested”

Third, whereas the Applicant was represented by Counsel for the earlier Divisional Court hearing, before us he was unrepresented. In my judgment, he suffered no detriment as a result. The Applicant is articulate and his English is excellent. His submissions were polite, succinct and forceful and as a forensic exercise they earned my admiration. Fourth and finally, Mr. Keith readily confirmed to us that the Applicant was appropriately seeking permission from this Court notwithstanding that he is a resident of Northern Ireland – there was no point to be taken with respect to jurisdiction.

Passage Of Time. The primary submission of the Applicant was to the effect that the Home Secretary had arguably erred in failing to acknowledge that the ‘passage of time’ (see S. 12(2)(a)(ii)) was such as to make his return oppressive. He drew attention to an affidavit of Professor Noble that had been made in January 2003 (that is, after the earlier Divisional Court hearing) from which it was apparent that as early as March 1995 the French authorities through the French Ambassador had notice that he, the Applicant, was in Northern Ireland. In such circumstances a delay in requesting extradition until August 2000 was unjustifiable and, given the inevitable change in the Applicant’s circumstances during the intervening period, made it oppressive in and after August 2000 to order his return. He acknowledges that this point was taken before the earlier Divisional Court and rejected but submits that at that stage it did not have the evidential support of Professor Noble’s affidavit.

In response Mr. Keith submits that it is apparent from the letter of the 22^nd July 2004 that the Home Secretary did give consideration to this submission before deciding to order return: “The Secretary of State notes that the matter of the passage of time was unsuccessfully raised both in Mr. Schmidt’s application for a writ of habeas corpus and in his subsequent petition for leave to appeal to the House of Lords. Furthermore, the Secretary of State has received assurances from the French authorities that they only became aware of Mr. Schmidt’s location in the U.K. when his partner, Delwyn Jones, was arrested in July 2000.” Mr. Keith further submits that the foregoing exercise of judgment was properly open to the Home Secretary and cannot be impugned. As to this:

It is helpful at this point again to cite directly from the judgment of the earlier Divisional Court:

“….. On the evidence before us there is, as it seems to me, a clear assertion in the statement filed on behalf of the government of France that until 2000 they had no clear indication of where this applicant was to be found. I, for my part, cannot cast into the balance in his favour any inactivity on the part of the government of France during the period from 1995 to 2000. It seems to me the government was entitled to take the stance that it did, which was basically that it had no clear indication of where he was, and ultimately to act in the way it did, namely on 20^th August 2000 making a request to the United Kingdom government for his extradition which resulted in the execution of a provisional warrant on 5^th September of that year and authority being given to proceed on 9^th October 2000.

That said, I am still prepared to look at what has happened in the interval. It seems to me that, from what was said to us, so far as the domestic situation of the applicant is concerned, nothing of any relevance took place until March 2001, other than this family having the obvious difficulties which it did have arising from its domestic history, that is to say the stresses upon the wife and the stresses upon the children arising out of the fleeing from France and the setting up of home in Northern Ireland.”

Lack Of Good Faith. The Applicant invokes S. 12(2)(a)(iii) and contends with the aid of citations from various statements that the allegations against him are fundamentally flawed so that continued reliance upon them by the French authorities raises an inference of bad faith.

In response Mr. Keith points out that the fact that these allegations are, as it were, still current reflects the Applicant’s anticipated reliance on Article 489. The allegations as originally advanced were substantial and weighty – see the evaluation of the earlier Divisional Court as already cited – and if they have declined in weight over the intervening period that is something that foreshadows issues for the retrial without connoting bad faith on part of the French authorities.

Limitation. The Applicant says that by reason of the application of Article 8 of the French Code of Criminal Procedure the allegations are respectively time barred.

In response Mr. Keith concedes that the Home Secretary did not properly address this point in the letter of the 22^nd July 2004. However, as he submits, had the Home Secretary given consideration to the point it could not properly have affected his judgment. As to this, it is to be observed, first, that either the point was never taken in the course of the trial of February 1995 – or if it was taken then it was presumably rejected. Again, the point was not taken before the earlier Divisional Court. Further and finally, if good then presumably the point will serve to forestall a re-trial or to cause it to conclude in the Applicant’s favour.

Rupture Of Family Life. The Applicant points to the undoubted severe impact upon his private and family life that would be occasioned by extradition in 2005 and contends that the Home Secretary’s decision can be challenged by reference to the Human Rights Act 1998. As to this he invokes S. 6(1): “It is unlawful for a public authority to act in a way which is incompatible with a convention right.” This in its turn leads to consideration as a convention right of Article 8:

“(1)

Everyone has the right to respect for his private and family life, his home and his correspondence.

(2)

There shall be no inference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

He emphasises that for present purposes he is not to be categorised as a convicted person but as an accused person and submits that given the overall history and the now speculative (as he contends) weight of the alleged extradition crimes a decision now to extradite is not necessary and amounts to a disproportionate response.

On behalf of the Home Secretary, Mr. Keith accepts that proposed extradition can engage consideration of Article 8 as a convention right. That said, he points to the guidance given by the House of Lords in R (Ullah) v. Special Adjudicator (2004) 3 W.L.R. 23 namely that it requires a strong case (‘a high threshold’, his words) before a potential breach of the convention right can be identified in the context of extradition. Thus, per Lord Steyn at 51: “Enough has been said to demonstrate that on principles repeatedly, affirmed by the European Court Article 8 may be engaged in cases of a real risk of a flagrant violation of an individual’s Article 8 rights”. Submits Mr. Keith, it would be surprising if an extradition did not serve to interfere with an individual’s private and family life. Given the demands made by international comity for extradition, it can only be in extreme cases that the impact upon the individual’s private and family life is such as to make an extradition disproportionate. He further submits that the terms in which the Home Secretary dealt with this point do not invite judicial review but reflect a lawful exercise of discretion:

“It is claimed that Mr Schmidt’s return to France would breach Mr Schmidt’s rights under Art 8 ECHR (right to respect for private and family life). Mr Schmidt and his partner live with their two daughters, Victoria (14) and Elvira (9). A third child tragically died at only five days old in October 2003. Return would destroy the stability which the family has achieved after many years of enforced separation.

The Secretary of State has noted with care all of the representations concerning Mr Schmidt’s family circumstances. In the context of the case as a whole, however, including the nature of the offences upon which Mr Schmidt has been convicted, he is not satisfied that Mr Schmidt’s personal circumstances as described, are such that it would be wrong, unjust or oppressive to order his return to France or, if engaged, to breach his rights under Art 8 ECHR. Art 8 is not an absolute right. Interference is permitted by Art 8(2) when it is in accordance with the law and is necessary in a democratic society for prevention of crime. Extradition, by its very nature, often involves the removal of an individual from their family and other personal ties/responsibilities. In the Secretary of State’s considered opinion the arguments put forward do not amount to sufficient reason not to issue a surrender warrant.”

Prejudice At Trial. It is the Applicant’s case that he was and remains the victim of religious prejudice – at all material times he has been a member of an evangelical, Protestant group. He submits that a French re-trial might not be conducted by “an independent and impartial tribunal” (see Article 6) but by one that has a bias against him on religious grounds.

In response Mr. Keith draws attention to that part of the letter of the 22^nd July 2004 in which the Home Secretary dealt with this point, contending that no error inviting judicial review can conceivably be discerned:

“At the heart of the representations advanced on Mr Schmidt’s behalf is the strongly held belief that the French prosecution was motivated by religious prejudice (because of his Protestant faith) and that his trial was fundamentally unfair. It is doubted whether he will face a fair re-trial in France and that he may face prejudice because of his religious beliefs. It is maintained that the allegations of cruelty are untrue and are known by the French authorities to be untrue. It is claimed that both the alleged victims of the assaults, (who are now both adults) and their parents have denied that they were ever ill-treated and that their evidence is corroborated by contemporaneous doctors’ reports which demonstrate that the boys were never harmed. It is claimed that any allegations which the boys did make were procured by the authorities in manner which has so often been seen in the UK in child abuse enquiries (ie Cleveland). At any re-trial, the two boys will deny their mistreatment by Mr Schmidt. Accordingly the request is made in bad faith and return would breach section 12(2)(a)(iii), section 6(1)(c) and section 6(1)(d) of the 1989 Act and Art 6 ECHR.

The Secretary of State acknowledges the strength with which this belief is held. He observes from the court judgments that the concerns of bad faith and religious prejudice do not appear to have been issues either at the committal or in Mr Schmidt’s application for a writ of habeas corpus. The determination of evidence is properly a matter for the French courts and not for the Secretary of State. However, he does note that the representations contain no denial from the alleged victims themselves of Mr Schmidt’s mistreatment. It is the Secretary of State’s view that there is no material contained in the representations to substantiate the contentions of bad faith and prejudice at trial or otherwise. France is a modern Western secular society and the separation of Church and State is enshrined in French law. Furthermore, France is signatory to the European Convention on Human Rights (ECHR) and, as such, guarantees to uphold these rights. In the event that Mr Schmidt believes to have been subject to prejudice at his re-trial, it would be open to him to appeal to the European Court of Human Rights. The Secretary of State, in a supplementary bundle of the extradition request, has been given an assurance by the French authorities that their request is based on the criminal offences Mr Schmidt is said to have committed and not for the intention of persecuting him for his religious beliefs. Accordingly, he is satisfied that the extradition request was not made in bad faith and that Mr Schmidt will receive a fair trial and not be subject to prejudice because of his religious faith.”

Taking his foregoing submissions individually and compendiously has the Applicant established a basis for judicial review proceedings in relation to the Home Secretary’s Order as explained in the letter of the 2^nd July 2004? In my judgment the answer has to be ‘no’. Looking at the matter in the round, it would be surprising if any grounds for the grant of permission were to be apparent. The issues were fully ventilated before the earlier Divisional Court and its decision by reference to S. 11(3) effectively covers the same territory as is encompassed by the exercise of S. 12(2)(a) discretion. I say ‘fully’: the information since added by Professor Noble and not before that Court, namely that it was Dr. Paisley who spoke to the French Ambassador in March 1995, adds nothing material to that which it considered, such including case papers (not before us) sufficient to enable it to form a view as to the nature and weight of the alleged extradition crimes. Further, and in any event, the letter of the 22^nd July 2004 reveals a full and careful appraisal of the issues so that it would be surprising if it could be impugned for error of law. True, as conceded, it does not advert to the Applicant’s limitation point but, as to this, I accept Mr. Keith’s submission that such had no significant weight for present purposes.

Turning from this preface to the specific issues, I would hold that the ‘passage of time’ point was effectively dealt with in 2002 as was ‘lack of good faith’. The mere fact that, as may well be the case, proof of the extradition crimes may now be more difficult to achieve, having regard to the passage of time, cannot serve to impugn an application for extradition made in 2000 as made in bad faith. I do not think there is anything material to the present concern in ‘limitation’ and the Home Secretary’s evaluation of the ‘prejudice’ point is admirably full and fair and plainly beyond any criticism by way of judicial review. This leaves the Article 8 point. This inevitably and properly concerned me but in the end I cannot discern in the Home Secretary’s evaluation of the point any arguable error that could conceivably call for judicial review.

I would refuse this application.

Post Script. Whilst my judgment was in preparation the Claimant made available a translation of a recently obtained Opinion of an Avocat au Barreau de Paris, M. Gilbert Claret. This offers material that is potentially supportive of the Claimant’s contention that all or most of the allegations advanced against him as extradition crimes are time barred. I have given consideration to this material, but I cannot find anything to raise a basis for granting the application for permission to move for judicial review. It is not for the Home Secretary to form a view preparatory to deciding on extradition as to the likely impact of the relevant provisions of the Code de Procẽdure Penale upon the allegations to be advanced at re-trial. As the opinion demonstrates, this impact is not so clear cut as to impugn the good faith of the French authorities and in any event the fact that limitation had no impact upon the first trial cannot be overlooked. Whether or no there is now weight in this limitation point is plainly a matter for the French court and not for the Home Secretary.