Ismail v Secretary of State for Home Department

This is a judgment to which both members of the court have contributed.

The fundamental issues in this case are, first, the extent of the Secretary of State’s discretion and, second, the extent to which she is obliged 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 suggests 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 suggests she would be performing 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. Her discretion in such circumstances is limited. The United Kingdom’s responsibilities under Article 6 are not engaged.

There is a further issue. There is no dispute but that service of the judgment might be capable of engaging the Claimant’s Article 2, 3 and 8 Convention rights if service might itself engage any of those rights. The Claimant submits the Secretary of State considered the issues in too narrow a way. The Secretary of State’s case is that the evidence submitted by the Claimant did not come close to demonstrating that the Claimant’s rights were engaged.

Mr Justice Haddon Cave refused the Claimant’s application for judicial review on paper. In this rolled up hearing we are asked both to grant permission and the application. We grant permission.

On 3 February 2006 the El Salam 98 Ferry (the Boccacio), sank in the Red Sea in Egypt. There had been a fire on board. Weather conditions were exceptional. Over one thousand people died. The ferry was operated by the El-Salam Maritime Transportation Company (hereinafter referred to as “the Company”). The company was part of a larger group of companies, the El-Salam group. The Claimant, who is now 69, and an Egyptian national, was the non-executive chairman of that group and said by the Egyptian authorities to have been head of the emergency team. He was also the chairman of the board of management of the company and said by the prosecution to be head of the emergency team. His son, Amr Ismail, was an executive director and a vice-chairman of the board of management.

In about March 2006 the Claimant and his son came to the United Kingdom. The Claimant entered as a visitor. On 14 February 2007 he was permitted to change his status to that of investor. That followed detailed representations regarding what was said to be the political motivation behind criminal charges brought against him following the accident. The Secretary of State accepted it would be “unduly harsh” for him to have to return to Egypt in order to obtain entry clearance. Neither father nor son has ever returned to Egypt.

There was an investigation into the accident. It is suggested in the Claimant’s Grounds that there was no issue with the vessel’s seaworthiness or life saving equipment. The ship’s Master failed to send a Mayday signal. When such a signal was ultimately sent (at 02.43 hours) by the ship’s automatic distress signal transmitter, the Egyptian Search and Rescue authority failed to take any active steps to organise or co-ordinate an immediate rescue effort. The ferry sank at about 03.00 hours. The Egyptian military operated the Search and Rescue authority. The ferry operators were only informed about the sinking at 06.55 hours. In short, according to the grounds, the Master and the military were to blame for the loss of life.

There followed a public outcry. The Claimant, his son and three other people connected with the company were indicted for ‘wrongful killing and wrongful injury.’ They were respectively another vice-chairman of the board of management, the manager of the fleet and the manager of the company’s branch in Safaga. As well as a general allegation of causing death “by negligence and by not observing the laws and regulations,” there was a specific charge against the Claimant ( as well as the vice-chairman of the board who was not his son and the fleet manager) that they:

“were negligent in that they actually had the power and authority to put into action the rescue procedures to save those of the ship’s passengers who were trying to survive after the ship had sunk, but in fact none of them- immediately they heard of the accident- notified the competent search and rescue authorities and other external bodies asking them to assist, nor did they dispatch the two speed-boats…belonging to their company- even though they were ready to put to sea and were able to participate in the rescue, which resulted in a delay in the start of the operations by a number of hours.”

The trial took place before the Safaga Court of Summary Justice for Misdemeanours in the absence of the Claimant and his son and at least some of the other persons charged. Each of the Defendants who were not present was represented by a lawyer. The translation of the judgment of the court shows that other persons participated in the hearing. The many people making a civil claim for damages were represented by a lawyer or lawyers; a person described in the translation as “the person responsible for civil rights” appeared by a lawyer and, of course, the prosecution was represented. On 27 July 2008 all the Defendants connected to the company were acquitted of the criminal charges brought against them. In a reasoned judgment the court held that “Doubt [was] cast on the correctness of [the] evidence.” It directed that the civil proceedings should be transferred to a “competent civil court”.

Following the acquittals there was, according to the Grounds, a further outcry. The prosecution appealed against the acquittals of the five Defendants connected to the company. The appeal hearing took place before the Appeal Court, Red Sea Province and spanned a number of sessions on different dates.

The Grounds suggest the appeal was a farce. Among other things, it is said that two of the three judges were replaced shortly after their appointment by two men who had worked in the prosecutor’s office at the time of the investigation. At the conclusion of the hearing the court indicated it was not concerned with considering any defence evidence or submissions in the absence of the defendants being in court. The court focussed on the Claimant, who was the non-executive chairman and played no part in what happened, unlike his son. The decision was framed in emotional and what is described as extraordinary language.

Both Miss Montgomery on behalf of the Claimant and Miss Dobbins on behalf of the Secretary of State drew our attention to different parts of the translated transcript of the judgment.

The five Defendants who had been acquitted did not appear in person. Each was represented by lawyers. The prosecution was represented, as was the person asserting a breach of civil rights and the “person responsible for civil rights.”

The parties’ representatives made detailed submissions to the court. So too did the lawyer acting for the “person responsible for civil rights.” Those submissions ran to thirty “arguments.” They covered both law and fact. They substantially supported the stance taken by the lawyers acting on behalf of the defendants.

During the course of the hearing the lawyer for the prosecution argued that the submissions of the lawyers acting for the defendants who had been acquitted should be ignored because the defendants themselves were not present. That argument was accepted by the court. The decision was said to be based upon Egyptian law which required that:

“…the defendant must himself be present in Court in respect of misdemeanours which are punishable by imprisonment which the law requires is to be enforced immediately after judgment has been passed.”

Thus, it appears that although the lawyers were permitted to advance arguments on behalf of the Defendants ultimately those arguments were ignored.

As to the legal submissions of the lawyer acting for the “person responsible for civil rights”, the court considered them point by point in its judgment, rejecting them for reasons it set out. As to the submissions on fact, the court summarised and categorised them as “relating to the subject matter”, stating that “such assessment is the task of the Court when dealing with the subject matter”. The extent to which the Court took the submissions on fact into account is not clear.

The Appeal Court overturned the Claimant’s acquittal. He was sentenced to the maximum possible; 7 years’ imprisonment with hard labour. The court allowed prosecution appeals in respect of the acquittals of two other persons connected to the company but it upheld the other two acquittals, which included the acquittal of the Claimant’s son.

The Court rejected the Claimant’s account as previously given. It found that his failings were causative of some passengers’ deaths. It found that as chairman of the board of management and a member of the emergency team, he failed to follow the correct procedure following the sinking, he failed to send out two fast boats which the company owned and which could have helped rescue those in the water, he sent a misleading fax as to the location of the sunk vessel and by all these actions he contributed to the deaths of those who were still in the water awaiting rescue. Miss Montgomery has made a number of cogent criticisms of both the findings of fact and the reasoning of the Court.

The United Kingdom insurers of the ferry and the Panamanian Ministry of Transport (where the ship was registered) carried out investigations. They concluded that the ferry operators bore no responsibility for its loss. A report prepared for the Claimant’s solicitors by Vice-Admiral Sir Jeremy Blackham equally exonerated the operators and the Claimant. After analysing the available evidence, Sir Jeremy stated that:

“I am able to say categorically that there is no available evidence to suggest that the actions of Mr. Ismail (whether by things done or omitted to have been done) have caused failures in relation to the search and rescue operations which followed the sinking…It is quite impossible to characterise any such actions as negligent with respect to search and rescue operations. Rather it is my professional opinion that the responsibility for the failure to mount appropriate search and rescue operations lies equally with the Master of the Boccacio…and with the RCC [the national Rescue Co-ordination Centre].”

Although I am not sure of the date, the Egyptian authorities sought the assistance of the United Kingdom Central Authority to serve a copy of the Court of Appeal Judgment on the Claimant. On 21 July 2011 they confirmed that request in a note verbale. On 8 November 2010 and 2 December 2010 the Claimant’s solicitors, who apparently believed from reports in the Egyptian press that a letter of request would be or had been sent, wrote to the Home Office. What were further medical reports were enclosed. They referred to the Claimant’s depression and the effect service of any judgment would have. It was suggested that service of the judgment would breach the Claimant’s article 2 and article 8 rights.

On 12 May 2011 the Secretary of State stated that:

“The power to serve the judgment is discretionary under section 1(3) of the Crime (International Cooperation) Act 2003. The reasons for this exercise of discretion include the following:

1.

That service of this judgment which is not endorsed by the United Kingdom and not enforceable in the United Kingdom, does not breach any of Mr. Ismail’s human rights.

2.

Whether or not service…makes the decision final is a matter for Egyptian law and does not mean it should not be served.

3.

Extradition proceedings are an entirely separate matter. In the event an extradition request was made…[it] would be considered under the Extradition Act 2003. You have made separate representations on the question of extradition direct to the Extradition Section here at the Home Office and may continue to do so…

The Secretary of State has noted what you say about Mr. Ismail’s medical condition and has decided as a matter of discretion under section 1(3) of the Crime (International Co-operation Act that it would be desirable for personal service to take place at your office by prior appointment…

I would like…the Judgment to be served by 10 June 2011 and would be obliged if you would contact [a detective constable] of the Metropolitan Police…to arrange a mutually convenient appointment.”

On 27 May 2011 the Claimants’ solicitors made representations as to why the Secretary of State should refuse the request for mutual legal assistance. They enclosed information on, as they put it, the current situation in Egypt. They stated:

“(1)…We maintain that…it is incumbent on the Secretary of State to establish with the new regime [in Egypt] whether this request is to be pursued and, if it is, then to reconsider the request in the round in light of the recent transfer of power to the Military Council…

(3)

The service of the judgment would flow from the unlawful and improper proceedings in Egypt and the service of it will form an important aspect in any future extradition request for Mr. Ismail. The service of this document cannot be divorced from the improper proceedings resulting in Mr. Ismail’s conviction and the potential extradition proceedings and/or the detention of Mr. Ismail that may follow service of the Judgment are not an entirely separate matter as you suggest...

(4)

Service…would breach a number of his human rights…

(6)

The criminal proceedings were…and a request for service is politically motivated and it follows that any detention…would be arbitrary…

(7)

Mr. Ismail did not have a fair trial in Egypt. The effect, under Egyptian law, of service would be effectively to impose an obligation to return as if he failed to do this within 90 (sic) days of service then he would be precluded from appealing. The fact that…service has no direct impact under UK law does not entitle the Secretary of State to ignore the impact of service under Egyptian law. If Mr. Ismail considered he was obliged to return after service of the Judgment…he would have no hope of a fair process in any appeal proceedings. Again, consideration must be given to the current position in Egypt post-revolution.

(8)

If Mr. Ismail is extradited to Egypt, there are strong grounds for believing that he would be subjected to inhuman or degrading treatment and, given the public pressure for revenge, it is likely there will be a serious threat to his life. The same must be true if he is put in the invidious position of having to return in order to appeal…”

In a letter of 3 August 2011, the Secretary of State maintained her position. On 18 August 2011, in a pre-action letter, the Claimant’s solicitors submitted that “in the particular and exceptional circumstances of this MLA request the Secretary of State would be acting unlawfully if she were to accede to it.” The reasons included:

On 23 May 2012 the Secretary of State responded maintaining her view. She wrote that:

“I wish to make clear at the outset of this letter that this decision is only concerned with the very narrow question of whether or not the Secretary of State is precluded from giving effect to the Egyptian request that the Judgment be served upon Mr. Ismail…

The effect of service on the Judgment upon Mr. Ismail

The Secretary of State sought clarification from the Egyptian authorities about the proceedings which had taken place in Egypt and what effect the service of the Judgment would have on any future proceedings. The Egyptian authorities provided the following information…:

I shall take the Grounds in the order in which Miss Montgomery argued them. By Ground 2 it is suggested that the Secretary of State adopted an irrational and unlawful approach in exercising her discretion as to whether or not to accede to the request. She irrationally fettered her discretion. She asked herself the wrong question, ignored the published Guidance and declined to address the Claimant’s representations about the unfairness of the proceedings underlying the Egyptian judgment. She failed to review the request ‘in the round.’ By Ground 1 it is suggested the Secretary of State was wrong in her analysis of the extent of the obligations imposed upon her by Article 6. By the third Ground it is suggested that in her consideration of Articles 2, 3 and 8, she failed to take into account all the relevant circumstances.

The preamble to the Act states that its purpose is to make provision for furthering co-operation with other countries in respect of criminal proceedings and investigations. Section 1 is headed “Service of overseas process in the UK”. By section 1:

“(1)

The power conferred by subsection (3) is exercisable where the Secretary of State receives any process or other document to which this section applies from the government of, or any authority in, a country outside the United Kingdom, together with a request for the process or document to be served on a person in the United Kingdom.

(2)

This section applies-

(a)

to any process issued or made in that country for the purpose of criminal proceedings…

(3)

The Secretary of State may cause the process or document to be served by post or, if the request is for personal service, direct the chief officer of police for the area in which that person appears to be to cause it to be served personally on him.”

Section 51(3) defines process very broadly (and plainly includes this judgment).

Section 2 provides that:

“(1)

Subsections (2) and (3) apply to any process served in a part of the United Kingdom by virtue of section 1 requiring a person to appear as a party or attend as a witness.

(2)

No obligation under the law of that part [of the United Kingdom] to comply with the process is imposed by virtue of its service.

(3)

The process must be accompanied by a notice–

(a)

stating the effect of subsection (2),

(b)

indicating that the person on whom it is served may wish to seek advice as to the possible consequences of his failing to comply with the process under the law of the country where it was issued or made, and

(c)

indicating that under that law he may not be accorded the same rights and privileges as a party or as a witness as would be accorded to him in proceedings in the part of the United Kingdom in which the process is served…”

Section 2 contemplates that as a result of the service of a court process there may be consequences in the foreign country.

Section 13 deals with “Requests for assistance from overseas authorities.” That is the section of the Act which has attracted a good deal of litigation (unlike section 1 which so far has attracted none as far as Miss Montgomery is aware). The assistance which may be sought could involve arranging for evidence to be obtained or directing that a search warrant be applied for.

The Secretary of State has issued guidance for those who wish to make a request to the United Kingdom under the 2003 Act. The applicable Guidance is the “Mutual Legal Assistance Guidelines for the United Kingdom, 9th Edition”. Page 13 states:

“Direct Transmission of Procedural Documents:

UK domestic law permits procedural documents to be sent directly by the Requesting State to the persons in the UK to whom they are addressed. The UK strongly encourages direct transmission of procedural documents to persons by post, unless this is not legally possible under the domestic law of the Requesting State…

…A request may be made to the UK Central Authority and the Crown Office for the service of procedural documents (e.g. a summons or judgement) issued by a court or authority in that state in relation to criminal proceedings. HMRC is not a Central Authority for the purposes of the service of documents”.

The Guidance further states that:

“The UK reserves the right not to serve process or procedural documents where to do so could place a person’s safety at risk. (For example: if the procedural documents reveal the address of a key witness in a murder trial). Requesting Authorities should therefore always consider if it is necessary to include details relating to witnesses or victims in such documents.

A previous (7th Edition) of the Guidance stated:

“Chapter 3: Execution of requests in the UK

What is the role of the Central Authorities

The Central Authorities’ responsibilities include:

•

Ensuring that requests for legal assistance conform with the requirements of law in the relevant part of the UK and the UK’s international obligations.

•

Ensuring that the execution of particular requests is not inappropriate on public policy grounds (for example requests involving double jeopardy will not be executed; there are also issues surrounding requests where the death penalty is an issue or the request is in relation to a trivial offence)”.

A fundamental aspect of Miss Montgomery’s case is, as she submitted, the profound consequences for the Claimant that service of the judgment would have. He would be faced with a stark choice; to return to Egypt, begin to serve his seven year sentence and argue an appeal or to remain in the United Kingdom with a final judgment against him. He could not in reality return. He would be entitled not to submit himself to the judgment of the same judges who had been so unfair. There are real and justifiable concerns about the judicial process in Egypt. There would be pressure from the public for him to be convicted. There would be grave risks to his health. He could not survive the trial process in Egypt. Indeed, in the context of his immigration status, the Secretary of State had previously accepted it would be “unduly harsh” for him to return to Egypt. There could well be a request for extradition. If so, a final judgment would mean he could not contest the facts of his conviction. A final judgment in the United Kingdom would be likely to lead to an Interpol ‘red notice.’ He could not then leave the United Kingdom for fear of being arrested.

Miss Montgomery submitted that the Secretary of State unlawfully blinkered the scope of her assessment. Service would be more than a mere administrative act. It would amount to a significant exercise of state or sovereign power. There are circumstances when the Secretary of State has to recognise that a request for service must be scrutinised, both with respect to its judicial character (whether the order sought to be served comes with mandated judicial standards) and the consequences that service will have. Here, the Secretary of State was told how unfair the proceedings were; that they were politically motivated, evidentially unfounded and vitiated by obvious procedural and substantive unfairness. The judgment was based on ‘a flagrant denial of justice such as to deprive it of legal validity.’ Given what she was told and what she knew, the Secretary of State had to consider the request with great care. She failed to do so.

In support of her submission that the service of the judgment would amount to a significant act of sovereignty Miss Montgomery referred us to the 15^th Edition of Dicey, Morris and Collins on the Conflict of Laws. Paragraphs 8-048 and 8-049 deal with service of process. They state:

“…the service of originating process is not a mere administrative step…the Court has jurisdiction over a defendant if and only if he is served with process in England or abroad in the circumstances authorised by, and in the manner prescribed by statute or statutory order. Where the Brussels 1 Regulation or the Lugano Convention applies, service does not found jurisdiction, but nevertheless a failure to effect service…may preclude enforcement of a subsequent default judgment…

The jurisdictional implications of service of process. Service of process also seeks to subject the defendant to the power of the court as an organ of the State. As such it is the exercise of sovereignty. Thus, in Cookney v Anderson, Lord Westbury observed:

“The right of administering justice is the attribute of sovereignty, and all persons within the dominions of a sovereign are within his allegiance and under his protection. If, therefore, one sovereign causes process to be served in the territory of another, and summons a foreign subject to his court of justice, it is in fact an invasion of sovereignty, and would be unjustifiable, unless done with consent.””

Here submitted Miss Montgomery, the Executive in the form of the Secretary of State was agreeing to afford a foreign sovereign power the privilege of serving its judgment. In agreeing to do that, the Secretary of State had to take some responsibility for the proceedings in which by serving the judgment she was playing a part. In exercising her discretion to afford the sovereign power that privilege it was incumbent on the Secretary of State to be satisfied at least that she was not participating in a process which was so unfair as to deprive it of legal validity. She had too to have regard to the consequences of her participation in that process.

Miss Montgomery relied on a number of cases in which the court’s discretion under section 13 of the Crime (International Co-Operation) Act 2003 (or its predecessor under the Criminal Justice (International Co-operation) Act 1990) was considered. As she submitted, when requested to provide assistance by an overseas authority under section 13, there were some matters the Secretary of State had to consider in deciding whether or not to comply with the request. Although she accepted there was a difference between service of a judgment and a request for a search warrant, for example, Miss Montgomery submitted that there could be no question of simply ‘rubber stamping’ in either case.

In R v Central Criminal Court ex parte Propend [1996] 2 Cr. App. R. 26, the Australian Government requested the Secretary of State that premises be searched and documents seized. It was agreed that the warrants made pursuant to the request should be quashed. Only the question of costs needed to be resolved. However, as Laws J (as he then was), with whom Lady Justice Butler-Sloss agreed, indicated that required the resolution of an issue of principle. It concerned the correct construction of section 7(4) of the 1990 Act. Laws J said that:

“It is accepted on all hands (correctly) that the Secretary of State possesses a discretion whether or not he will make a direction at all. He must of course decide whether either of the conditions specified in (a) or (b) of the subsection are fulfilled, but even where they are it clearly does not follow that he is bound to issue a direction. In rare cases there may be reasons of state, perhaps touching on national security, why he would not choose to do so. But these cases aside, he must still make a judgment as to whether to offer assistance to the requesting state…So he must carry out some sort of assessment of the merits of the application made to him. In our view, such an exercise is inextricably linked to the making of a judgment as to what form of application is appropriate.”

Regina v Secretary of State for the Home Department and others, ex parte Fininvest SpA and Others [1997] 1 WLR 743 concerned the Secretary of State’s decision to refer to the Serious Fraud Office for execution an Italian request (under the 1990 Act) for assistance in obtaining documents said to be relevant to a fraud investigation. Article 2 of the European Convention on Mutual Assistance in Criminal Matters 1959 provides that assistance may be refused where the requested party considers the offence to be political. That was the suggestion being made. The Secretary of State, it was said, was therefore entitled to refuse assistance. He would have done had he correctly directed himself on the law and been properly informed about the facts. The Secretary of State argued that he was not in law required to have regard to Article 2. Brown LJ (as he then was), with whom Gage J agreed, rejected that argument:

“It seems to me quite impossible to contend that in exercising this general discretionary power the Secretary of State is entitled to ignore the express discretion arising under article 2. The Secretary of State would…plainly be overlooking a material consideration if, for example, he simply forgot the existence of [the] article…”

The Secretary of State is therefore bound, submitted Miss Montgomery, to consider her obligations under international agreements and conventions when deciding whether to comply with a request.

Zardari v Secretary of State for the Home Department CO/3659/2000 concerned a request by the Government of Pakistan to transmit evidence received by Bow Street Magistrates Court to the Attorney-General of Pakistan under the 1990 Act. An issue was whether the proceedings in Pakistan were brought in good faith. Garland J, with whom Kennedy LJ agreed, said:

“…If it can now be shown that the proceedings are not brought in good faith and that the Certificate [signed by the Attorney-General] is, or may be, false, these are matters which the Secretary of State can take into account when deciding whether or not to transmit. His discretion is not defined by statute, nor is he under any statutory obligation to receive representations, although fairness may require that he should do so.”

The question of costs in Zadari was later considered by Lord Bingham. I shall come to his observations when considering R v Secretary of State for the Home Department, ex parte Abacha [2001] EWHC Admin 787. That was another case under the 1990 Act. I need not summarise the facts. In dealing with the suggestion that there had been procedural unfairness, Tuckey LJ (with whom Silber J agreed) said [7]:

“We bear in mind also two general points. First, as Lord Bingham [in Zadari (unreported 11/3/98)] said the section 4 process [equivalent to section 13] is not a trial. It leads only to the transmission of evidence to the requesting state where, if it is to be used, one can assume that the criminal defendant will have the opportunity of answering it. Secondly, such requests are made by friendly, foreign countries with whom we have treaty or similar obligations of mutual co-operation. The expectation must therefore be that we will comply with the request unless there are compelling reasons for not doing so and that we will do so as quickly as possible…

…Each of the allegations made does or is likely to raise issues of foreign law or procedure which the Secretary of State cannot possibly be expected to resolve. If there is anything in these allegations they should be raised with and considered by the courts or authorities in the countries concerned.”

In the present case there is no relevant treaty.

JP Morgan Chase Bank National Association and Ors. v The Director of the Serious Fraud Office; The Secretary of State for the Home Department [2012] EWHC 1674 (Admin) involved a request under the 2003 Act by the Italian prosecuting authority to provide assistance in gathering evidence. There was expert evidence that the request by the prosecutor was not in accordance with Italian law. The court concluded it was obviously unlawful. Gross LJ, with whom Gloster J agreed, set out the position in the following way [52]:

“It follows that, in the overwhelming majority of cases, both as a matter of policy in fighting crime and the United Kingdom's international obligations, it can be expected that requests for mutual assistance under CICA 2003 will be acted upon – and as quickly as possible. The SSHD is not required to conduct a criminal trial on paper or decide disputed questions of foreign law…Accordingly, as Tuckey LJ observed (Abacha at [17]), the expectation must be that requests for assistance will be acted upon “unless there are compelling reasons for not doing so”.

53.

What then might those “compelling reasons” encompass? Here, as elsewhere, the discretionary powers are to be exercised having regard to the facts of the individual case…the existence of cases where the SSHD may or should exercise her discretion to refuse to accede to a request underlines that her role is not that of a “rubber stamp.” Mutual assistance should not be equated to a blank cheque. Secondly, cases of refusal to accede…must be rare or exceptional, for reasons already canvassed and if international mutual assistance is to function. Thirdly, I do not think that the SSHD’s discretion to refuse…is confined to those instances enumerated in the [European Convention on Mutual Assistance in Criminal Matters 1959]…Fourthly and confining myself to the context of this case, I see much force in the approach adopted by Mr. Giffin [counsel for the Secretary of State]: namely, that it would (at least generally) be wrong for the SSHD to exercise her discretion in favour of answering a request when it was obviously unlawful- thus where it was undisputed or incapable of being properly disputed that the request was made unlawfully. For my part, I do not think it necessary to demonstrate that the requesting authority was acting in bad faith and, indeed, a debate of such a nature might well be invidious; if however, it was obvious that a requesting authority was acting in bad faith there would plainly be a most powerful case for the SSHD refusing to exercise her discretion.”

Miss Montgomery submitted that the Secretary of State should take a similar approach to a request under section 1 as has to be taken under section 13 (and its predecessor). Nothing in the language of each section suggests a difference in approach. There is no rational basis for a distinction. Service of a foreign criminal judgment may have more immediate and profound implications for the person served. The authorities make it clear a number of aspects must be considered by the Secretary of State. There must be some sort of merits review. It cannot simply be a paper exercise. The Convention must be considered. Legality must be considered. In the present case there is uncertainty regarding a possible time bar which has yet to be resolved. Evidence of bad faith must be considered.

Miss Montgomery accepts that the desirability of mutual legal assistance must also be considered. She submits however, that there is a countervailing aspect illustrated in a different context by the recent case of Yukos Capital Sarl v OJSC Rosneft Oil Co (No 2) [2012] EWCA Civ 855.

That case concerned the enforceability in the United Kingdom of an arbitration award which had been set aside in Russia. The Claimant’s case was that in setting aside of the award the Russian court had been partial and dependent, as had been found by a Dutch court on appeal. The defendant submitted that the allegations of bias by the claimant raised issues about the executive or administrative acts of a foreign sovereign within its own territory upon which the English courts could not adjudicate. State doctrine and/or the doctrine of non-justiciability were relied on. That argument failed. Giving the judgment of the Court of Appeal, Rix LJ said [86]:

“In our judgment the time has come, in accordance with the rationalisation and highly authoritative guidance of Lord Collins and the Privy Council in…AK Investment CJSC v Kyrgyz Mobil Tel Ltd [2012] 1 WLR 1804] to hold that state doctrine does not prevent an investigation or adjudication upon the conduct of the judiciary of a foreign state, whether that conduct lies in the past, or the in the future, and whether or not its conduct in the past is relied upon as the foundation for an assessment of the risk as to its conduct in the future…such a distinction is without principle…

[90]…the act of state doctrine does not apply to allegations of impropriety against foreign court decisions, whether in the case of particular decisions or…systemic dependency on the dictates or interference of the domestic government. Nor is there an absence of justiciable standards by which to adjudicate such allegations. The courts have long been familiar with the standards by which to judge bias and other breaches of due process…”

As I understand Miss Montgomery’s argument, it is to the following effect. State doctrine does not prevent a court considering the nature of the proceedings which lie behind a request to enforce a foreign judgment or assessing how the judgment was obtained. If it was obtained improperly the court will not enforce it. The Secretary of State in exercising her discretion when requested to serve a judgment with the sort of consequences which obtain here, is similarly bound to consider the manner in which it was obtained once plain evidence of misconduct is set before her. Against the desirability for mutual assistance in serving the judgment in this case should be put the obvious and gross unfairness in the way it was obtained.

While I understand Miss Montgomery’s argument, it does not seem to me to take matters much further as far as the present case is concerned.

The seventh edition of the Guidelines (paragraph 25 above) suggested some proportionality review. The Guidelines relevant to this case omit that part (paragraph 23 above). The only explicit reference to discretion is the reservation of the right not to serve where a person’s life could be at risk. Miss Montgomery submitted that cannot be the only consideration. Without objection from Miss Dobbin, Miss Montgomery referred us to the Official Report of the Grand Committee which was considering the Crime (International Co-operation) Bill. Lord Filkin, the Parliamentary Under-Secretary of State at the Home Office was asked when the Government envisaged that direct service under the provisions will not be appropriate; whether, it was intended to draw a distinction between different types of country when exercising the discretion under section 1(3). In response, Lord Filkin said that:

“Clause 1(3) is not an obligatory provision. It contains the word “may”. It always remains open to the Secretary of State to decline to comply with a request. Clearly there is a burden of responsibility on him when making an appropriate response to such a request.”

It cannot be the case, submitted Miss Montgomery, that the current Guidelines were intended to or do restrict the discretion previously explicitly referred to. There must be the same burden of responsibility on the Secretary of State when considering a request from a non-treaty country such as Egypt.

Miss Dobbin on behalf of the Secretary of State made the preliminary point that the letter before claim did not suggest that if the five arguments made there were rejected, it would be unlawful to serve the judgment for any other wider reason of fairness or public policy. Neither did the Grounds. The general thrust of the Grounds was that the Secretary of State unlawfully fettered her discretion by not having proper regard to all of the circumstances of the Claimant’s case before deciding to serve the judgment upon him or was irrational in her approach. The most that was said is that the Secretary of State should have considered “all the relevant circumstances.” The Court could not conclude that the Secretary of State acted unlawfully or irrationally in failing to exercise a discretion she was not asked to exercise.

As is clear from the observations of Lord Justice Gross in JP Morgan, the policy and the object of the Act is to further co-operation with other countries in respect of criminal proceedings. As Miss Dobbin put it, the Secretary of State therefore exercises her discretion to promote that aim; her discretion is shaped by vital considerations of comity and the United Kingdom’s interest in mutual co-operation with foreign states. The Court should be slow to circumscribe or restrict the Secretary of State’s ability to exercise her discretion so as to further co-operation in criminal matters.

The authorities relied upon by the Claimant point to the very limited basis upon which the Secretary of State might not accede to a request for assistance. In R v Central Criminal Court Laws J spoke in terms of national security as possible justification not to comply. In JP Morgan Gross LJ contemplated a refusal as exceptional; obvious unlawfulness or bad faith. Moreover, a request to serve a judgment is very different from one made under section 13 which will require action by agents of the state. Section 13 requires individual consideration of the facts and of the nature of the discretion that the Secretary of State has been asked to exercise. A judgment might be served by post, or, as here, handed over by a police officer. The Secretary of State had merely to understand the effects that service would have. After careful consideration she concluded that it would do no more than to start the time frame within which the Claimant had to decide whether he wanted to appeal the judgment or let it become final. It would have little or no impact upon his position in the United Kingdom. He would not be exposed to unfair proceedings.

In any event, an allegation of bad faith could not be sustained, submitted Miss Dobbin. By whom is it said to have been displayed; those in power in Egypt have changed. The suggestion that the Claimant was made a scapegoat cannot be sustained.

Miss Dobbin submitted that the Secretary of State may amend the mutual assistance guidelines. The omission in the current guidelines of reference to “public policy” means that this consideration should no longer be applied by the Secretary of State. There is nothing in section 1(3), nor any provision in the 2011 Guidance, which requires the Secretary of State to apply a general fairness or public policy test. All that the Claimant could legitimately expect was that his case would be examined in the light of whatever policy the Secretary of State saw fit to adopt, provided that the adopted policy was a lawful exercise of the discretion conferred upon her by the 2003 Act.

In the result, submitted Miss Dobbin, the Secretary of State’s residual discretion is not engaged. If the judgment is served, the Claimant will remain unaffected. He can decide whether or not to return to Egypt. If extradition is sought, he will be protected.

I have some sympathy with Miss Dobbin’s complaint that the Secretary of State was never really asked in correspondence to exercise her discretion in the way now advanced by the Claimant. However, that the Secretary of State understood the exercise of her discretion was in issue, is apparent from her letter of 12 May 2011, when in terms she referred to the fact that the power to serve is discretionary. The second ground for judicial review did indicate that the exercise of her general discretion was in issue. In any event, it would have been open to the Secretary of State now to indicate that she would reconsider how she exercised her discretion in the light of the arguments presently being advanced. In the circumstances it seems to me we should consider and rule upon the second ground.

Service of a judgment is, as Miss Montgomery submitted, an exercise of the power of the state. The Secretary of State has a discretion as to whether or not to exercise that power. The discretion is not untrammelled. I agree with Miss Dobbin that the policy and object of the Crime (International Cooperation) Act 2003 is to further co-operation with other countries. The exercise of the Secretary of State’s discretion will be shaped by vital considerations of comity and the United Kingdom’s interest in mutual co-operation.

There are significant differences between providing assistance under section 13 of the Crime (International Cooperation) Act 2003 and serving a criminal judgment under section 1. The extent of that difference will depend on the facts of each case however. Providing assistance normally requires agents of the state to play an active role in assisting in the investigation or prosecution of one or more crimes. The Secretary of State is being requested to facilitate that. Service of a judgment is normally quite different. The role then being played by the state is likely to be purely administrative and without significant consequences for the person served in the United Kingdom. However, and this seems to me important, the effect of service of a judgment will vary from case to case.

As Gross LJ spelled out in Morgan Chase, it is only if there are “compelling reasons” that the Secretary of State will not be exercise her discretion in favour of providing assistance under section 13. Obvious illegality or a request made in obvious bad faith might be such reasons. While there are plainly differences between the power being exercised under section 13 and that being exercised under section 1, it seems to me that in deciding whether or not to serve a judgment under section 1, the Secretary of State similarly cannot ignore evidence of obvious illegality or bad faith. That evidence must be weighed in the balance when exercising her discretion. So too must the consequences of service. For, if the Secretary of State, in the face of obvious evidence of illegality or bad faith, serves a judgment with significant consequences for someone in the United Kingdom, the United Kingdom could be playing a role in enforcing what are on their face, illegal criminal proceedings or criminal proceedings brought in bad faith with significant consequences for the person served. I cannot see that comity could justify that. The Secretary of State cannot, it seems to me, abdicate all responsibility regarding the implications of the judgment she is serving.

Moreover, in my view the wording of the current Mutual Assistance Guidelines cannot be intended to exclude any consideration of such issues.

That said, in the vast majority of cases the element of mutual co-operation will be the only and the decisive factor. In those cases only the most limited review will be necessary.

That is the generality. What of this case; does the evidence before the Secretary of State place it in that small and exceptional minority which require greater scrutiny?

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 7 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.

Given the history of these proceedings in Egypt (upon which I shall shortly comment), it would be understandable for him not to return. In reality, as must be plain to the Secretary of State, service of the judgment would have the effect of it being finalised with the consequences I have referred to. No doubt the Secretary of State’s awareness of the reality of the situation as far as return to Egypt was concerned was a reason why (before either hearing) it was accepted it would be unduly harsh for him to return there in 2007.

In those circumstances, to describe service as a mere administrative act without consequence in the United Kingdom seems to me to understate its significance and place a gloss on the reality of the position. By serving this judgment the Secretary of State would be directly assisting in the enforcement of this Egyptian conviction.

In their letter of 27 May 2011, the Claimant’s solicitor suggested that the service of the judgment “would flow from unlawful and improper proceedings.” It stated that the Claimant did not have a fair trial. The essential submission made by Miss Montgomery is that the Secretary of State was being asked to serve a judgment which was based on such a flagrant denial of justice as to deprive it of legal validity.

There are aspects of the appeal hearing which undoubtedly give rise to considerable concern. In saying that I am conscious it is not for me to lay down the appropriate processes for a court in Egypt. First, there is the background of public pressure for there to be a conviction of the Claimant following his acquittal. Second, there is the make-up of the Court. Two of the three judges were replaced shortly after their appointment by two men who had worked in the prosecutor’s office at the time of the investigation. The suggestion appears to be that this was done deliberately to make a successful prosecution appeal more likely. Third, part way through the hearing the Claimant’s legal representation was effectively withdrawn, albeit that was said to have been in accordance with Egyptian law. His lawyers’ submissions were specifically ignored. It is impossible to say from what we presently know what the role of “the person responsible for civil rights” was, particularly as far as the findings of fact are concerned. Fourth, and without going into detail, there are grounds to question whether the judgment can be sustained on proper analysis of the facts.

In the result, it seems to me this is a case where there is 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. That consideration should have played into the exercise of her discretion. Having regard both to the consequences of service for the Claimant and what she was told about the appeal, my view is that exceptionally, and on these particular facts, the Secretary of State did have a wider discretion than she thought; that this case required greater scrutiny before she decided whether or not to serve.

In the circumstances, consideration of Article 6 is academic and unnecessary to the decision. Given that we have heard argument, I shall however deal with it.

Convention rights are essentially territorial in nature: see Article 1. There are exceptions. One is extradition and deportation where as a direct consequence of the action of a contracting state an individual will be subject to proscribed ill-treatment in a foreign state; Soering v United Kingdom (1989) 11 E.H.R.R. 439. A second is that a contracting state may incur responsibility by reason of assisting in the enforcement of a foreign judgment, originating from a non-contracting state, which has been obtained in conditions which constitute a breach of Article 6, whether it is a civil or criminal judgment, and in the latter case whether it imposes a fine, a sentence of imprisonment, or some other form of order such as a confiscation order; Drozd and Janousek v France and Spain (1992) 14 EHRR 745; Government of The United States of America v Montgomery [2004] 1 W.L.R. 2241. A third is where a Convention state exercises true extra-territorial jurisdiction, power, control or authority in another state which produces effects in that state: Bankovic v United Kingdom [2007] 44 EHRR SE5.

Soering considered the application of Article 6 in the context of extradition/deportation:

“86.

Article 1… sets a limit, notably territorial, on the reach of the Convention. In particular, the engagement undertaken by a Contracting State is confined to ‘securing’…the listed rights and freedoms to persons within its own ‘jurisdiction’. Further, the Convention does not govern the actions of States not Parties to it, nor does it purport to be a means of requiring the Contracting States to impose Convention standards on other States…These considerations cannot however absolve the Contracting Parties from responsibility under Article 23 for all and any foreseeable consequences of extradition suffered outside their jurisdiction…

87.

In interpreting the Convention regard must be had to its special character as a treaty for collective enforcement of human rights and fundamental freedoms. Thus, the object and purpose of the Convention as an instrument for the protection of individual human beings require that its provisions be interpreted and applied so as to make its safeguards practical and effective. In addition, any interpretation of the rights and freedoms guaranteed has to be consistent with the general spirit of the Convention, an instrument designed to maintain and promote the ideals and values of a democratic society…

90.

It is not normally for the Convention institutions to pronounce on the existence or otherwise of potential violations of the Convention. However, where an applicant claims that a decision to extradite him would by reason of its foreseeable consequences in the requesting country, a departure from this principle is necessary, in view of the serious and irreparable nature of the alleged suffering risked, in order to ensure the effectiveness of the safeguards provided by [Article 3]…

91… the decision by a Contracting State to extradite a fugitive may give rise to an issue under Article 3, and hence engage the responsibility of that State under the Convention, where substantial grounds have been shown for believing that the person concerned, if extradited, faces a real risk of being subjected to torture or to inhuman or degrading treatment or punishment in the requesting country. The establishment of such responsibility inevitably involves an assessment of conditions in the requesting country against the standards of Article 3 of the Convention. Nonetheless, there is no question of adjudicating on or establishing the responsibility of the receiving country, whether under general international law, under the Convention or otherwise. In so far as any liability under the Convention is or may be incurred, it is liability incurred by the extraditing Contracting State by reason of its having taken action which has as a direct consequence the exposure of an individual to proscribed ill-treatment…

113.

The right to a fair trial in criminal proceedings, as embodied in Article 6, holds a prominent place in a democratic society. The Court does not exclude that an issue might exceptionally be raised under Article 6 by an extradition decision in circumstances where the fugitive has suffered or risks suffering a flagrant denial of a fair trial in the requesting country.”

In Drozd the applicants were serving sentences of imprisonment in France. They had been convicted in Andorra, a non-contracting country. The judges who sat were from France and Spain. The applicants argued:

“…that there had been a violation of their rights under the Convention in that they were serving a sentence of imprisonment in a French penal establishment following a conviction pronounced by an Andorran court, a conviction which in their opinion had been obtained as a result of proceedings contrary to Article 6 of the Convention; consequently, by enforcing that judgment in the form of imprisonment without carrying out any review of its compatibility with the requirements of the Convention, France had been guilty of a violation of the Convention. On this point also they relied on Article 5”.

The court, in its main conclusion, made it clear that the Convention did not require the contracting parties to impose its standards on other states. It stated however that [110]:

“…Contracting States are…obliged to refuse their co-operation if it emerges that the conviction is the result of a flagrant denial of justice.”

In his concurring opinion, Judge Matscher applied the reasoning in Soering ‘in reverse.’ He said that:

“a contracting state may incur responsibility by reason of assisting in the enforcement of a foreign judgment, originating from a contracting or a non-contracting state, which has been obtained in conditions which constitute a breach of Article 6, whether it is a civil or criminal judgment, and in the latter case whether it imposes a fine or a sentence of imprisonment.

This must clearly be a flagrant breach of Article 6 or, to put it differently, Article 6 has in its indirect applicability only a reduced effect, less than that which it would have had if directly applied…

…the seriousness of the conviction and sentence pronounced abroad also plays a part…” [page 37].

The application of Judge Matscher’s opinion in Drozd was considered by the House of Lords in Government of The United States of America v Montgomery. That case concerned the registration and consequential enforcement in the United Kingdom of a confiscation order under section 97 of the Criminal Justice Act 1988. It was suggested that the registration of the confiscation order would give effect to its terms and expose the defendant to the consequences (namely confiscation) of the American proceedings which were conducted in breach of the requirements of Article 6.

In his speech, Lord Carswell, with whom all their Lordships agreed, said that:

“24.

The European Court has affirmed on a number of occasions the existence in principle of the possibility in a suitable case of invoking article 6. The context has generally been that of extradition or expulsion of aliens seeking admission to the country concerned, but in my opinion it is capable of being applied to the enforcement in a Convention state of a judgment obtained in another state, whether or not the latter is an adherent to the Convention. No decision was cited to your Lordships in which the court went so far as to hold that the act of extradition or expulsion amounted to a breach of article 6, and in all the reported cases the European Court has strongly emphasised the exceptional nature of such a jurisdiction and the flagrant nature of the deprivation of an applicant’s rights which would be required to trigger it…

27…In so far as [Judge Matscher’s]…dictum suggests that enforcement of a foreign judgment might in principle give rise to responsibility on the part of a Convention state, I have no difficulty in accepting its correctness. It is to be observed, however, that in the following sentence Judge Matscher went on to say “This must clearly be a flagrant breach of article 6”, so recognising the exceptional nature of the circumstances which could give rise to such responsibility. I therefore do not understand him to have meant to lay down any wider proposition than that which the House has accepted in the Ullah case [2004] 3 WLR 23 and the Razgar case [2004] 3 WLR 58 . [27]”

In Bankovic the European Court said that [65]:

“In keeping with the essentially territorial notion of jurisdiction, the court accepted only in exceptional cases that acts of the contracting states performed, or producing effects, outside their territories can constitute an exercise of jurisdiction by them within the meaning of Article 1 of the Convention.

66 Reference has been made in the Court's case law, as an example of jurisdiction “not restricted to the national territory” of the respondent State…to situations where the extradition or expulsion of a person by a contracting state may give rise to an issue under Arts 2 and/or 3 (or, exceptionally, under Arts 5 and/or 6) and hence engage the responsibility of that State under the Convention (the above-cited Soering case…)

However, the Court notes that liability is incurred in such cases by an action of the respondent State concerning a person while he or she is on its territory, clearly within its jurisdiction, and that such cases do not concern the actual exercise of a state's competence or jurisdiction abroad…

67 In addition, a further example…was the Drozd case where…the Court accepted that the responsibility of Contracting Parties (France and Spain) could, in principle, be engaged because of acts of their authorities (judges) which produced effects or were performed outside their own territory… In that case, the impugned acts could not, in the circumstances, be attributed to the respondent States because the judges in question were not acting in their capacity as French or Spanish judges and as the Andorran courts functioned independently of the respondent States.”

The House of Lords in Al Skeini v Secretary of State for Defence [2008] 1 AC 153 referred to the territorial nature of the Convention as described in Bankovic. Commenting on Drozd Lord Brown said that [109](4)(iii):

“…Drozd…is the only authority specifically referred to in Bankovic as exemplifying this class of exception to the general rule [under Article 1]. Drozd, however, contemplated no more than that, if a French judge exercised jurisdiction extra-territorially in Andorra in his capacity as a French judge, then anyone complaining of a violation of his Convention rights by that judge would be regarded as being within France's jurisdiction.

(iv)

The Soering v United Kingdom (1989) 11 EHRR 439 line of cases, the court pointed out, involves action by the state whilst the person concerned is “on its territory, clearly within its jurisdiction” (para 68) and not, therefore, the exercise of the state's jurisdiction abroad.”

In Al Skeini v United Kingdom (2011) 53 E.H.R.R. 18 the European Court shed light upon on the observation in Drozd to the effect that a “contracting state’s jurisdiction under article 1 may extend to acts of its authorities which produce effects outside its own territory”. As it put it [133]:

“…the Court states merely that the contracting party’s responsibility “can be involved” in these circumstances. It is necessary to examine the Court’s case law to identify the defining principles…

135…the Court has recognised the exercise of extra-territorial jurisdiction by a contracting state when, through the consent, invitation or acquiescence of the government of that territory, it exercises all of some of the public powers normally exercised by the government. Thus where, in accordance with custom, treaty or other agreement, authorities of the contracting state carry out executive or judicial functions on the territory of another state, the contracting state may be responsible for breaches of the Convention thereby incurred, as long as the acts in question are attributable to it rather than the territorial state.”

In RB (Algeria) v Secretary of State for the Home Department [2010] 2 A.C. 110, Lord Brown, observed [258] that Article 6 had not, in the preceding twenty years, ever been successfully invoked in the extradition context:

“In many parts of the world judicial procedures are markedly different (and to our way of thinking much inferior) to those required by article 6 of the Convention and under other similar constitutional guarantees of due process. No one suggests, however, that people coming from such places are immune from expulsion lest they become subject on return to what we would regard as a defective legal process. True it is that ever since Soering...Strasbourg has contemplated that “an issue might exceptionally be raised under article 6 by an extradition decision in circumstances where the fugitive has suffered or risks suffering a flagrant denial of a fair trial in the requesting country”… Not once, however, in the subsequent 20 years has an expulsion or extradition order in fact been held to violate article 6 —not even in the somewhat shocking circumstances which arose in Mamatkulov and Askarov v Turkey 41 EHRR 494 where the dissenting minority noted as features of the applicants' terrorist trial in Uzbekistan that “the applicants were denied the right to be represented by counsel of their own choice, defending counsel being appointed by the public prosecutor; the applicants were held incommunicado until the commencement of their trial in June 1999 [some three months after Turkey had extradited them in the face of a rule 39 order prohibiting such action]; the trial was closed to the general public, to all family members of the applicants and to attorneys hired on behalf of the defence; and the self-incriminating statements used to convict the applicants included those signed during the pre-trial police investigation, while the applicants were in custody and without access to their own lawyers”: para O-III18.”

In R (Ullah) v Special Adjudicator [2004] 2 A.C. 323 Lord Bingham commented on the cases of Soering, Drozd and Bankovic. He said [17]:

“There is more Strasbourg authority on the potential applicability of articles 5 and 6 in foreign cases, although it remains somewhat tentative. In Soering the court did not exclude the applicability of article 6… In Bankovic such an exceptional case was recognised as possible… Drozd…involved no removal. The applicants complained of the fairness 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. The case is important, first, for the ruling (in paragraph 110 of the court’s judgment) that member states are obliged to refuse their co-operation with another state if it emerges that a conviction “is the result of a flagrant denial of justice”. Secondly, the case is notable for the concurring opinion of Judge Matscher…”

Lord Bingham concluded [259] that Lord Phillips was right in his judgment in the Court of Appeal (at paragraphs 136–138), in supposing that only where a prospectively unfair trial would be likely to lead to a serious violation of some substantive human right—for example, an unjust conviction involving grave consequences such as capital punishment or a substantial deprivation of liberty—would Article 6 fall for consideration in a foreign case.

Miss Montgomery’s main arguments can be summarised in the following way. The Claimant lives in the United Kingdom. The Secretary of State owes him a duty under the Convention. The judgment was obtained in circumstances which amounted to a flagrant denial of justice. By serving it, the United Kingdom would be assisting in its enforcement or co-operating with the foreign court. Either would engage the Claimant’s Article 6 rights as Drozd suggests. Ultimately, a conviction founded on flagrantly unfair proceedings is no conviction at all. It can have no legal effect. Miss Montgomery too refers to Soering [113] where reference is made to the possibility of Article 6 being engaged where the fugitive “has suffered” a flagrant denial of justice.

While Miss Montgomery accepted that the Convention only applies when a contracting state exercises true extra-territorial jurisdiction in another state which produces effects in that state (Bankovic), she submitted the focus is on the foreseeable effect of the public authority’s decision on the individual protected by the Convention, rather than on an artificial distinction on the basis that the effect will only be felt abroad.

Moreover, the Secretary of State is wrong to assume that Article 6 can only be engaged if co-operation would have a direct and material effect in the United Kingdom, such as to enforce the judgment or lead to the Claimant’s arrest or compel him to leave the United Kingdom. The Claimant would be profoundly affected by the service of the judgment.

In short, the Secretary of State should have asked herself whether the judgment she was asked to serve was obtained in circumstances which amounted to a flagrant denial of justice and whether there is a real risk that the Claimant (through service of the judgment) would be forced to defend himself in proceedings in Egypt which would be flagrantly unfair. The Secretary of State should reconsider the case in accordance with her obligations.

Miss Dobbin submitted that there is no authority which supports the proposition that mere service of a judgment of a foreign state engages the responsibility of a requested state under Article 6. The Claimant’s case does not fall within any of the exceptions to the principle of territoriality. There would be no question of the Claimant being fined or sentenced to prison or subjected to a foreign confiscation order or be required to pay damages. In short, service of the judgment upon the Claimant will have none of the sorts of consequence necessary to engage the United Kingdom’s indirect responsibilities under the Convention.

Further, the rationale for the exception in deportation or extradition cases, namely that the removal of the individual would have the direct consequence of exposing him the proscribed treatment in the non-Convention state, does not apply.

Nor does the Claimant fall within the Drozd/Matschler exception. The responsibility of the Convention state was engaged by assisting in the enforcement (my emphasis) of a foreign judgment obtained in conditions which constitute a flagrant breach of Article 6. There is no authority for the proposition that mere service of a judgment in a Convention state engages this responsibility.

Moreover, it is clear that when the European Court refers to the reasoning in the Court’s Judgment in Drozd (not Judge Matscher’s opinion) that a “contracting state’s jurisdiction under art.1 may extend to acts of its authorities which produce effects outside its own territory”, it means those acts of a Convention state which amount to the true extra-territorial exercise of authority, power or control by a Convention state in another state. Plainly that is not the case here.

While Miss Dobbin accepted that in the future the Egyptian Government might seek to conclude an extradition treaty or an extradition arrangement with the United Kingdom and might seek the extradition of the Claimant, the Claimant would be entitled to avail himself of all of the protections in Part 2 of the Extradition Act 2003. It is through this mechanism that the United Kingdom would ensure that it did not expose the Claimant to a flagrant breach of his Convention rights in Egypt.

No question of the Claimant’s removal arises. Following service of the judgment he can remain in the United Kingdom. There has been no case previously in which Article 6 has been invoked in the context of serving a judgment. In those respects I agree with Miss Dobbin.

As Bankovic points out, cases such as Soering do not concern the exercise of jurisdiction abroad. They concern the exercise of the Court’s jurisdiction in the contracting state. Drozd (as Lord Bingham observed in Ullah) “tentatively” envisages the possible application of Article 6 where co-operation is sought of a member state where the conviction is a result of a flagrant denial of justice. Lord Carswell in Montgomery accepted that Article 6 may be engaged where a contracting state is asked to enforce a judgment obtained in flagrant denial of justice. As I understand it, that is because the individual is within the contracting state and owed a duty in consequence.

What is sought here falls short of enforcement. As I have concluded, however, service in this case would amount to more than a mere administrative act. I have already set out the significant consequences that service will have. It would amount to the Secretary of State directly assisting in the enforcement of the judgment. As I have emphasised, whether in any particular case that is so will depend upon the facts of that case.

It seems to me very difficult as a matter of principle to distinguish between enforcing a judgment and directly assisting in the enforcement of it in such circumstances as the present. The principles underlying what was said in Drozd and Montgomery seem to me to lead to the conclusion that in this case service is capable of engaging Article 6. Contrary to Miss Dobbin’s submissions, such a conclusion does not amount to extending the territoriality exception. It is merely an application of the principles adumbrated in existing European and domestic case law to the facts of this case.

I have already indicated that in my view there is sufficient evidence regarding the appeal hearing for the Secretary of State to have considered the judgment was obtained in flagrant disregard of justice. It seems to me equally there was sufficient evidence for her to consider whether Article 6 was engaged.

I should add this. 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 twenty 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). That underlines how very exceptional must be the circumstances to result in the application of Article 6 in a case such as the present.

Given the above findings, it seems to me unnecessary to consider the final ground to any degree. Suffice to say that because service of the judgment would obviously have an impact on the Claimant’s family life as it has developed in the United Kingdom, the extent and proportionality of any interference with it has to be considered. An element going to the lawfulness of the proposed interference under Article 8(2) would relate to the conviction. It is unnecessary to go further than that. Of course, that is not to say that the Secretary of States’ concerns about the medical evidence submitted may not have been entirely justifiable.

In the result, for the reasons I have set out I would quash the decision of the Secretary of State and remit the case to her for re-consideration in the light of the principles I have set out.