Ramda, R v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Sedley |
| Judgment Date | 27 June 2002 |
| Neutral Citation | [2002] EWHC 1278 (Admin) |
| Date | 27 June 2002 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/4894/2001 |
[2002] EWHC 1278 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
DIVISIONAL COURT
Lord Justice Sedley and
Mr Justice Poole
Case No: CO/4894/2001
Ben Emmerson QC and Julian Knowles (instructed by Birnberg Peirce & Partners) for the Claimant
James Eadie (instructed by Treasury Solicitor) for the Defendant
This is the judgment of the court.
These proceedings
The applicant, Rachid Ramda, an Algerian national, is wanted by the French government for trial in connection with a series of terrorist bombings in France between July and October 1995 which resulted in much destruction and injury. The Home Secretary has ordered his extradition to France under s.12 of the Extradition Act 1989. Mr Ramda seeks permission to apply for judicial review of this decision. Scott Baker J has directed that his application should come before this court with the full hearing to follow if permission is granted. Subject to the reservation mentioned in paragraph 5 below, we grant permission. What follows is our decision on the substantive application for judicial review.
Among the first arrests made in France after the bombings was that of Boualem Bensaid. Bensaid was interrogated by the French police on about twenty occasions over a period of four days, starting immediately after his arrest on 1 November. In these interviews—and we shall have to return to what may have happened in the course of them—Bensaid made statements which, if true, implicated the applicant as a London-based paymaster in the terrorist network. The French government relies on Bensaid's identification of his paymaster as a man known as Ilias. Another witness has identified the applicant from a photograph as Ilias. When the applicant was arrested on 8 November 1995 in London, in the house was the account for a telephone line of which Bensaid had the number when arrested. Thus Bensaid's confession, which is admissible in French law against other accused persons, is a crucial element in the case against the applicant.
On 20 June 1996 the applicant was committed by the Bow Street magistrate to await the Home Secretary's decision as to his extradition. He applied for habeas corpus. So did a co-accused, Mustapha Boutarfa. On 25 June 1997 a divisional court (Pill LJ and Astill J) dismissed both applications. Boutarfa was extradited, and in June 1999 he and Bensaid, with others, were convicted by a tribunal correctionnel and sentenced each to 30 years' imprisonment. The convictions and sentences were upheld on appeal. But they still face a further trial together with the applicant if the latter is extradited.
The reason why the applicant is, however, still here is this. He first sought permission to appeal to the House of Lords against the refusal of habeas corpus. This petition was dismissed at the end of March 1998. A few days later a fresh application for habeas corpus was lodged. After delays a hearing date was set for 19 May 1999. With six days to go, the applicant on the advice of newly instructed leading counsel decided to withdraw the application and instead to apply to the Home Secretary to exercise his statutory powers against extradition to France. Representations running to over 40 closely-typed pages were submitted to the Home Office in August 1999. It was not until 8 October 2001 that the Home Secretary gave his written and reasoned decision, which was that he would order the applicant's return. Not quite three months later the present application was lodged. Scott Baker J gave his direction for accelerating the procedure on 17 January 2002, and the case was listed for hearing on 25 March. The Home Secretary then decided to "revisit" the case in the light of the new material produced by the applicant's solicitors. Having done so, he concluded that his decision stood. But because both sides now needed time to assimilate the new material to their cases the hearing date was moved back to 10 and 11 May. With the help of both counsel we were able to complete the hearing in that time, subject to the submission of part of the applicant's reply and the Home Secretary's rejoinder in writing. These we now have.
This history is needed in part at least to explain how some of the present issues have arisen. They concern not only the intrinsic defensibility of the Home Secretary's decision but the possible impact on it of extrinsic evidential material. We have, in the result, to consider the following issues:
"(a) Is the Home Secretary's initial decision of 8 October 2001 vitiated by errors of fact or deficiencies of inquiry?
(b) If so, are these cured by his subsequent reconsideration of the decision?
(c) In particular, was the Home Secretary required by law to disclose to the claimant the further material he obtained and relied on?"
We do not, with all respect to Mr Emmerson QC and those instructing him, propose to take time on a further argument that because the terrorist organisation responsible for these attacks, the GIA, is allegedly known to be an Algerian government front designed to discredit Islamic fundamentalism, the extradition request is not made in good faith. Even if all the premises were true, the conclusion would not follow, and we refuse permission to seek judicial review under this head.
The law
The legal principles governing our consideration of these issues are barely if at all in dispute. So far as concerns extradition between England and Wales and foreign states, section 12 of the Extradition Act 1989 provides:
(1) Where a person is committed under section 9 above and is not discharged by order of the High Court or the High Court of Judiciary, the Secretary of State …. may by warrant order him to be returned unless his return is prohibited, or prohibited for the time being, by this Act, or the Secretary of State decides …. under this section to make no such order in his case.
(2) Without prejudice to his general discretion as to the making of an order for the return of a person to a foreign state …. –
(a) The Secretary of State …. shall not make an order in the case of any person if it appears to the Secretary of State …. in relation to the offence, or each of the offences, in respect of which his return is sought, that –
(i) by reason of its trivial nature; or
(ii) by reason of the passage of time since he is alleged to have committed it or to have become unlawfully at large, as the case maybe; or
(iii) because the accusation against him is not made in good faith in the interests of justice,
it would, having regard to all the circumstances, be unjust or oppressive to return him; and
(b) the Secretary of State …. may decide to make no order for the return of a person accused or convicted of an offence not punishable with death in Great Britain if that person could be or has been sentenced to death for that offence in the country by which the request for his return is made.
Section 13 provides:
(1) The Secretary of State …. shall give the person to whom an order under section 12(1) above for the return to a foreign state …. would relate notice in writing that he is contemplating making such an order.
(2) The person to whom such an order would relate shall have a right to make representations, at any time before the expiration of the period of 15 days commencing with the date on which the notice is given, as to why he should not be returned to the foreign state, and unless he waives that right, no such order shall be made in relation to him before the end of that period.
The effect of s.13(1) and (2) for present purposes is summarised by Latham J in R v Home Secretary, ex parte Kingdom of Belgium (DC, 15 February 2000): "…if representations resulting from such consultation are capable of producing material which might have a significant effect on the exercise of his statutory function, then, in relation to a person who in fairness he should consult, he is under an obligation to do so effectively" (p.22).
So far as concerns the standard of due process to be expected in the requesting state, the Home Secretary is not entitled without more to assume that they will be sufficient to ensure a fair trial. "He cannot ignore representations … on the ground that it must be assumed that a foreign government with which this country has diplomatic relations will adhere to its treaty obligations. If issues of that kind are raised in a responsible manner, by reference to evidence and supported by reasoned argument, he must consider them. The greater the perceived risk to life or liberty, the more important it will be to give them detailed and careful scrutiny": per Lord Hope, R v Home Secretary, ex parte Launder [1997] 1 WLR 839, 855.
Among the issues for the Home Secretary to determine may be whether the trial to be faced by the wanted person will be a fair trial. This may involve the voluntariness of extra-judicial confessions relied on as evidence against him. "If the reception of the evidence makes the trial unfair, it is the court which is responsible. Of course, events before the trial may create the conditions for an unfair determination of the charge. For example, an accused who is convicted on evidence obtained from him by torture has not had a fair trial. But the breach of article 6.1 lies not in the use of torture (which is, separately, a breach of article 3) but in the reception of the evidence by the court for the purposes of determining the charge": per Lord Hoffmann, Montgomery v HM Advocate [2001] 2 WLR 779, 785 (PC). Both article 3 and article 6.1 require the...
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