Mamdouh Ismail v Secretary of State for Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Goldring,Mr. Justice Wyn Williams |
| Judgment Date | 26 March 2013 |
| Neutral Citation | [2013] EWHC 663 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/6473/2012 |
| Date | 26 March 2013 |
[2013] EWHC 663 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Goldring
Mr Justice Wyn Williams
Case No: CO/6473/2012
Clare Montgomery QC and Ben Watson (instructed by Peters and Peters) for the Applicant
Clair Dobbin (instructed by Treasury Solicitors) for the Defendant
Hearing dates: 12 February 2013
Introduction
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.
The Facts
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".
The Court of Appeal hearing
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'...
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