Supreme Court

Regina (Ismail) v Secretary of State for the Home Department

[2016] UKSC 37; [2016] WLR (D) 363

2016 Jan 26, 27; July 6

Baroness Hale of Richmond DPSC, Lord Kerr of Tonaghmore, Lord Sumption, Lord Hughes, Lord Toulson JJSC

Human rights — Fair hearing — Letters of request — Request for service of foreign criminal judgment upon person in United Kingdom — Extent of Home Secretary’s discretion in relation to serving foreign judgment — Whether right to fair hearing engaged — Human Rights Act 1998 (c 42), Sch 1, Pt I, art 6 — Crime (International Co-operation) Act 2003 (c 32), s 1

Facts

The claimant, an Egyptian national, was chairman of a transportation company based in Egypt. In 2006 a ferry operated by the company sank in the Red Sea and more than 1,000 people lost their lives. Shortly thereafter, the claimant entered the United Kingdom, where he remained. The claimant was charged with manslaughter in Egypt. A trial took place in his absence, although he was legally represented, and he was acquitted. The prosecution appealed. The claimant was again legally represented, although the Appeal Court ruled that submissions made on his behalf should not be taken into account as he was not present. The claimant was found guilty and sentenced to seven years’ imprisonment with hard labour. The Egyptian authorities requested the Home Secretary to serve the judgment of the Appeal Court on the claimant. The Home Secretary informed the claimant that she intended to serve the judgment pursuant to section 1 of the Crime (International Co-operation) Act 2003. The claimant contended that the judgment was irrational, politically motivated, and vitiated by proceedings which had been flagrantly unfair and that the Home Secretary would be acting in breach of his rights under article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms if she served it on him. In response, the Home Secretary made inquiries with the Egyptian authorities as to the effect which service of the judgment would have on the claimant. She was informed that the judgment could be appealed by a lawyer acting on the claimant’s behalf within ten days of service and that, otherwise, the judgment would become final but that it could still be appealed to the Court of Cassation if the claimant appeared in person. The Home Secretary then confirmed her intention to serve the judgment. The claimant sought judicial review of that decision. The Divisional Court of the Queen’s Bench Division allowed the claim.

On the Home Secretary’s appeal—

Held

Held, appeal allowed. The wording of section 1 of the 2003 Act suggested an administrative procedure which did not routinely require an examination of the proceedings which prompted the request for service of the judgment in order to investigate whether they were infected by obvious illegality or bad faith. On the other hand, the fact that the Home Secretary was invested with a power, as opposed to an obligation, to effect service of the foreign process indicated that there would be circumstances in which it would be appropriate not to authorise service. A person who was physically present in a country which had acceded to the Convention was entitled to its protections, even where the actions of the member state would expose him to consequences in a non-contracting foreign state which would amount to a violation of Convention rights. However, the decision of the Home Secretary to serve the judgment on the claimant did not have a direct consequence of exposing him to the risk of violation of his Convention rights since he could simply decide not to return to Egypt. There was a clear distinction between serving a judgment and taking steps to ensure that it was enforced since enforcement necessarily altered the legal position of the person against whom the judgment had been obtained, whereas, although the claimant’s legal options might have been narrowed by service, his essential legal position would remain unchanged. Serving a foreign judgment on a person within the United Kingdom did not involve any significant compromise on the sovereignty of the United Kingdom. The prospect of a future extradition agreement between Egypt and the United Kingdom, or some other request by Egypt for the claimant’s extradition, did not engage article 6 of the Convention at the present stage. Accordingly, in the circumstances, the claim for judicial review should be dismissed (paras 25–26, 31–38, 42–43, 47–48, 51–54).

Soering v United Kingdom (1989) 11 EHRR 439 distinguished.

Per curiam

Per curiam. There could be circumstances in which the service of a foreign judgment would engage article 6 of the Convention or call for further investigation of the basis on which the judgment had been obtained. It is conceivable that service of a judgment might lead more directly to its enforcement or other material consequences, or that obvious illegality or bad faith, which would affect the person on whom service was made in a way which does not arise for the claimant, would warrant a more probing inquiry (para 53).

Appellate History

Decision of the Divisional Court of the Queen’s Bench Division [2013] EWHC 663 (Admin) reversed.

Appearances

David Perry QC and Clair Dobbin (instructed by Treasury Solicitor) for the Home Secretary.

Clare Montgomery QC and Ben Watson (instructed by Peters & Peters Solicitors LLP) for the claimant.

Reported by: Jill Sutherland, Barrister

© 2016. The Incorporated Council of Law Reporting for England and Wales.