Government of Ghana v Gambrah
| Jurisdiction | England & Wales |
| Judge | Lord Justice Moses,Mr Justice Silber |
| Judgment Date | 16 May 2014 |
| Neutral Citation | [2014] EWHC 1569 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 16 May 2014 |
| Docket Number | Case No: CO/15525/2013 |
[2014] EWHC 1569 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Moses
Mr Justice Silber
Case No: CO/15525/2013
and
Mr James Lewis QC and Mr Daniel Sternberg (instructed by The Crown Prosecution Service) for the Appellant
Mr Julian B Knowles QC and Ms Rachel Barnes and Ms Heather Oliver (instructed by Faradays Solicitors) for the Respondent
Mr Joseph Middleton (instructed by The Death Penalty Project) for the Intervener by way of written submissions only
Hearing dates: 19th-20th February, 2014
The Government of Ghana appeals under s.105 of the Extradition Act 2003, against the decision of Deputy Senior District Judge Arbuthnot, relating to its request for the extradition of the respondent, Frank Gambrah, so that he should stand trial for murder on 12 October 2007. On 9 October 2013 the District Judge ordered the discharge of Frank Gambrah, pursuant to s.87(2) of the 2003 Act. Under Ghanaian law a trial judge, if the respondent is found guilty, would be obliged to sentence him to death. The District Judge accepted Ghana's assurance that the death penalty would not be carried out in Frank Gambrah's case. But, despite accepting the assurance, she ruled that the respondent's extradition would not be compatible with his rights enshrined in Article 3 of the European Convention on Human Rights. Ghana appeals, essentially, on the ground that once the District Judge had accepted that assurance, there was no basis for concluding that the requested person's extradition would be incompatible with his rights under Article 3. The mere imposition of the death sentence, coupled with an acceptable assurance that it would not be carried out, precludes such a conclusion.
In addition to seeking to uphold the judge's conclusion, the respondent cross-appeals. At this stage it is necessary only to draw attention to one of the grounds of the cross-appeal relating to the respondent's mental condition. It is contended that the District Judge should have found that the respondent's mental health was such as to render his extradition unjust or oppressive and she should have discharged him pursuant to s.91(3)(a) of the 2003 Act. I refer to the issue of the requested person's mental health because it is relevant to consideration of the consequence to the respondent if a judge in Ghana pronounces a sentence of death, even in circumstances where this respondent will not be executed.
Sentence of Death: Assurance
By s.94 of the 2003 Act:-
"(1) The Secretary of State must not order a person's extradition to a category 2 territory if he could be, will be or has been sentenced to death for the offence concerned in the category 2 territory.
(2) Subsection (1) does not apply if the Secretary of State receives a written assurance which he considers adequate that a sentence of death —
(a) will not be imposed, or
(b) will not be carried out (if imposed)."
Although Ghana contended, in its written argument, that the question of the acceptability of the assurance was for the Secretary of State, it did not resist the issue being raised both before the District Judge and before this court, where the respondent contended that the assurances given could not be relied upon.
The first question must be, therefore, whether the District Judge was correct in concluding that there was no real risk that the mandatory sentence would be carried out (paragraph 76b of her judgment). She did later, however, refer to what she described as "the vagueness of the assurance" and "the unease about the personal commitment of the Ghanaian minister to the assurance" (77c). But that reference relates to the circumstances in which the requested person will be detained after the passing of the sentence, circumstances to which I shall have to return later.
It is, therefore, necessary to consider what the court has been told by way of assurance. The background to the assurance is of importance. There have been no executions in Ghana since 1990 but sentence of death remains mandatory, under Ghanaian law. No steps have been taken towards its abolition and, according to Professor Attafuah, an expert called on behalf of the respondent, the death penalty is likely to remain in Ghana for the foreseeable future; there is no political appetite for giving the appearance of softening towards those convicted of serious crimes, despite the fact that the Constitution Review Commission, in a report submitted to the President of Ghana in March 2011, recommended the repeal of the death penalty law. In Johnson v The Republic [2011] 2 SC GLR 601, the majority of the court (the Presiding Justice of the Supreme Court dissenting on this point) upheld the constitutionality of the mandatory death penalty. The background, accordingly, to any consideration of the binding nature of the assurance is that the death penalty is lawful in Ghana.
On 16 August 2010 a letter was sent from the Attorney General's department, signed by the Chief State Attorney on behalf of the Attorney General, to the British High Commission, saying:-
"Please find enclosed the Assurance on the Death Penalty duly signed on behalf of the Minister for Justice and Attorney General for onward transmission to the addressee below:" (a member of the Extradition Section in London).
Enclosed with the letter was a document from the Attorney General's department dated 16 August 2010 and headed "Government of Ghana Assurance on the Death Penalty". It concludes:-
"NOW THEREFORE, the Ministry of Justice and Attorney General on behalf of the Government of Ghana gives an assurance to the Government of the United Kingdom of Great Britain and Northern Ireland that the death penalty will not be carried out on Frank Kwame Gambrah even if it is imposed."
It is signed on behalf of the Minister for Justice and Attorney General.
Mr Knowles QC, on behalf of the respondent, contends that no weight should be attached to this assurance. In Armah v Government of Ghana Lord Reid suggested, obiter, that an undertaking given by Ghana as to the form of trial to which the requested person would be exposed might create misunderstanding and "perhaps acute difficulties in the event of a change of circumstances" [1968] AC 192 at 236B. Lord Upjohn expressed the hope that such undertakings would never be accepted again in the light of the danger of a change of government, which might not feel bound by the acts of its predecessor, or a genuine difference of opinion as to the proper interpretation of the undertakings (page 263 C-D).
There is, as the Intervener, the Death Penalty Project, points out, an inherent unpredictability and unreliability in moratoria. A death penalty moratorium, it rightly points out, is often a pragmatic compromise between public opinion and the political leadership. But the views of the political leadership and the shift in balance between the personal conviction of political leaders and the strength of public pressure may change. In Taiwan a de facto moratorium between 2005 and 2010 came to an end as a result of political pressures. The Death Penalty Project describes the situation in some commonwealth Caribbean countries as precarious. Despite a moratorium for 27 years, nine prisoners were executed in The Gambia in August 2012. There had been but one execution since it had attained independence in 1965. In 2006 Japan resumed executions after a short de facto moratorium and again, in 2012, after a twenty-month break.
But I do not think it is open to this court, any more than it was open to the District Judge, to reject the specific assurance given in relation to this requested person. There is no basis for rejecting that assurance; there is no history, material or evidence to suggest that previous governments have gone behind specific assurances which have been given, nor any material or evidence to suggest that there is a risk they will do so in the future. I derive support from the acceptance of the Divisional Court that Ghana should "properly be regarded" as a country which has a "history of respect" for democracy, human rights and the rule of law. ( Richards v the Government of Ghana [2013] EWHC (Admin) 1254 [49]). I do not think that any government of Ghana would feel free to go behind the specific assurance which has been given.
Nor do I believe it to be significant that it is not possible to identify the person who has signed on behalf of the Attorney General, bearing in mind that both the documents to which I have referred make it clear that the undertaking is given on behalf of the Minister of Justice and the Attorney General, even though a different assurance in relation to speciality has been signed directly by the Minister. In those circumstances, it seems to me that this case must proceed, as it proceeded before the District Judge, on the basis that this requested person will not be executed.
It is fundamental to keep in mind that the requirement imposed by s.87 to examine whether a person's extradition would be compatible with his Convention rights (s.87(1) of the 2003 Act) does not impose obligations on a non-convention state. The Convention does not purport to be a means of requiring the contracting states to impose Convention standards on other states (see Harkins and Edwards v United Kingdom [2012] 55 E.H.RR 19 at paragraph 129). By this proposition, the Strasbourg court expressed its agreement with the...
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