Mamdouh Ismail v Secretary of State for Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Kerr,Lady Hale,Lord Sumption,Lord Hughes,Lord Toulson |
| Judgment Date | 06 July 2016 |
| Neutral Citation | [2016] UKSC 37 |
| Date | 06 July 2016 |
| Court | Supreme Court |
[2016] UKSC 37
Lady Hale, Deputy President
Lord Kerr
Lord Sumption
Lord Hughes
Lord Toulson
Appellant
David Perry QC Clair Dobbin (Instructed by The Government Legal Department)
Respondent
Clare Montgomery QC Ben Watson (Instructed by Peters & Peters Solicitors LLP)
Heard on 26 and 27 January 2016
(with whom Lady Hale, Lord Sumption, Lord HughesandLord Toulsonagree)
This appeal concerns the operation of section 1 of the Crime (International Co-operation) Act 2003. That section gives the Secretary of State for the Home Department (who is the appellant in these proceedings) power to serve on a person in the United Kingdom any process or other document at the request of a foreign government or its authorities.
Mr Mamdouh Ismail, the respondent, is an Egyptian national. He was chairman of the board of management of the El-Salam Maritime Transportation Company which was based in Egypt. Mr Ismail's son, Amr, was an executive director and vice-chairman. The company operated a ferry. On 3 February 2006 it sank in the Red Sea and more than 1,000 people lost their lives. Mr Ismail and his son were charged with manslaughter. A trial took place before the first instance Safaga Court of Summary Justice. Neither Mr Ismail nor his son was present but they were legally represented. Both were acquitted on 27 July 2008.
The prosecution appealed. The respondent and his son were again not present at the appeal hearing but lawyers appeared on their behalf. The respondent's son's acquittal was affirmed but on 11 March 2009 Mr Ismail was found guilty. During the hearing before the Appeal Court a lawyer for the prosecution argued that submissions made on behalf of the respondent and his son should not be taken into account because neither was present. It appears that this argument was based on a rule of Egyptian law which requires a defendant to be present in court during a trial of a misdemeanour punishable by imprisonment. The argument was accepted. The respondent was sentenced to the maximum term of imprisonment: seven years, with hard labour.
The respondent and his son had entered the United Kingdom on 26 April 2006. They have remained in this country since then. On 11 October 2010 the Egyptian authorities requested the Secretary of State to serve the judgment of the Appeal Court on Mr Ismail. In July 2011 they confirmed that request. On 3 August 2011 the Secretary of State informed the respondent that she intended to serve the judgment. In a letter before claim dated 18 August 2011, Mr Ismail's solicitors submitted to the appellant that she would be acting unlawfully if she acceded to the request to serve the judgment. Various reasons were given.
Further representations were made on Mr Ismail's behalf between August 2011 and January 2012. These prompted an inquiry by the Secretary of State of the Egyptian authorities as to the effect that service of the judgment would have on the respondent. She was informed that the judgment of the Appeal Court, having been given in the respondent's absence, could be appealed by means of an objection and this could be done by a lawyer acting on the respondent's behalf; time for the lodging of objection (ten days) would begin to run when the judgment was served; if the respondent failed to appeal, the judgment would become final but, in that event, it could be appealed to the Court of Cassation; and if the respondent lodged an objection, he would have to attend the hearing of the appeal in person.
On 23 May 2012 the Secretary of State informed Mr Ismail's solicitors that she intended to serve the judgment on him. On 20 June 2012 a claim for permission to apply for judicial review of that decision was made. Permission was refused on the papers by Haddon-Cave J on 10 October 2012. A renewed application was made and the matter was listed for a rolled-up hearing before Goldring LJ and Wyn Williams J on 12 February 2013. Permission to apply for judicial review was given during the hearing and on 26 March 2013 the High Court delivered its reserved judgment, allowing the respondent's claim for judicial review. On the Secretary of State's application, the High Court certified two points of law of general public importance:
"1. What is the extent of the Secretary of State's discretion when serving a foreign judgment under section 1 of the Crime (International Co-operation) Act 2003?
2. May a person's article 6 rights be engaged on service by the Secretary of State of a foreign judgment under section 1 of the Crime (International Co-operation) Act 2003?"
The High Court considered three grounds advanced on behalf of Mr Ismail. The first of these was that the Secretary of State had been wrong in her analysis of the extent of the obligations imposed on her by article 6 of the European Convention on Human Rights and Fundamental Freedoms (ECHR). The second ground was 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 to serve the judgment on Mr Ismail. Finally, it was argued that the Secretary of State, in her consideration of articles 2, 3 and 8 of ECHR, had failed to take into account all relevant circumstances.
Goldring LJ (who delivered the judgment of the court) dealt first with the second of these arguments. He held (in para 63) that, in exercising her discretion under section 1 of the 2003 Act, the Secretary of State could not ignore evidence of obvious illegality or bad faith in the proceedings which had led to the request to enforce a foreign judgment. Nor could she fail to have regard to evidence in relation to the manner in which the judgment had been obtained. She was also obliged to take into account the consequences for the person on whom the judgment was to be served.
The consequences which the court considered would ensue for the respondent by service of the judgment were summarised in paras 67 and 68:
"67. Service of the judgment would have serious implications for the claimant both in Egypt and the United Kingdom. It would set time running for finalising the judgment. He would have two options: return to Egypt and begin to serve the prison sentence of seven years with hard labour and appeal or remain in the United Kingdom and suffer the consequences of a final judgment.
68. 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."
On the question of whether the proceedings before the court of appeal in Egypt were tainted by illegality or bad faith, Goldring LJ (in para 72) referred to four factors which, he said, constituted "sufficient evidence for the Secretary of State to have considered whether this was a judgment obviously obtained in flagrant disregard of justice; in other words, in bad faith" (para 73). Those factors were: (i) the background of public pressure after the respondent's acquittal for him to be convicted; (ii) the fact that two of the three judges due to hear the appeal were replaced shortly after their appointment by two men who had worked in the prosecutor's office at the time of the investigation; (iii) in the course of the appeal hearing, the respondent's legal representation was effectively withdrawn; and (iv) there were grounds to question whether the judgment could be sustained on a proper analysis of the facts.
On the first ground advanced on Mr Ismail's behalf (that the Secretary of State had been wrong in her understanding of the duties imposed on her by article 6 of ECHR), Goldring LJ said (in para 100) that it was "very difficult as a matter of principle to distinguish between enforcing a judgment and directly assisting in the enforcement of it" in circumstances such as arose in Mr Ismail's case. He considered, therefore, that there was sufficient evidence for the Secretary of State to consider whether article 6 was engaged. He made the following observation at para 102, however:
"For article 6 to be engaged the disregard of a person's article 6 rights must be flagrant. The test is a very high one. Some indication of that can be gauged from the fact that over the past 20 years article 6 has not been successfully invoked in an extradition context. Even in a case where defence counsel was appointed by the public prosecutor, the applicants were held incommunicado until trial, the hearing was not public and closed to the defence lawyers and self-incriminating statements were obtained in highly doubtful circumstances, extradition was permitted (see Lord Brown's speech in RB (Algeria) v Secretary of State for the Home Department [2010] 2 AC 110). That underlines how very exceptional must be the circumstances to result in the application of article 6 in a case such as the present."
In light of the court's findings on the first two grounds, Goldring LJ said that it was unnecessary to consider the final ground "to any degree". He reflected that, since the service of the judgment would have an impact on the respondent's family life, the extent and proportionality of any interference with it would have to be assessed. He made an incidental...
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