The King (on the application of Kanu) v The Secretary of State for Foreign, Commonwealth and Development Affairs
| Jurisdiction | England & Wales |
| Judge | Lord Justice Bean,Lord Justice Coulson,Lord Justice William Davis |
| Judgment Date | 07 July 2023 |
| Neutral Citation | [2023] EWCA Civ 796 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: CA-2023-000726 |
[2023] EWCA Civ 796
Lord Justice Bean
Lord Justice Coulson
and
Lord Justice William Davis
Case No: CA-2023-000726
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
THE HONOURABLE MR JUSTICE SWIFT
[2023] EWHC 652 (Admin)
Royal Courts of Justice
Strand, London, WC2A 2LL
Charlotte Kilroy KC, Tatyana Eatwell and Isabel Buchanan (instructed by Bindmans LLP) for the Appellant
Sir James Eadie KC, Malcolm Birdling and Jagoda Klimowicz (instructed by GLD) for the Respondent
Hearing date: 22 June 2023
Approved Judgment
This judgment was handed down remotely at 10.00am on 7 July 2023 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
This appeal from a decision of Swift J (“the judge”) raises important issues concerning the scope of the obligation on the Foreign Secretary in relation to requests for consular assistance in respect of British nationals detained abroad and the proper interpretation and application of the decision of the Court of Appeal in R (Abbasi) v Secretary of State for the Foreign and Commonwealth Office (2003) UKHRR 76. I gratefully adopt the judge's narrative of the essential facts.
The Appellant is the brother of Nnamdi Kanu (“Mr Kanu”). Mr Kanu is the leader of a group called the Indigenous People of Biafra (“IPOB”). IPOB was founded in 2012 and is a separatist group that aims at the restoration of a Biafran Republic. Mr Kanu holds both Nigerian and British nationality.
What has happened to Mr Kanu.
Since 27 June 2021, Mr Kanu has been detained in Nigeria pending trial on criminal charges. Mr Kanu's case is a matter of significant public controversy in Nigeria. He was first arrested, charged and detained in October 2015. The lawyer representing him in the criminal proceedings, Aloy Ejimakor, has made a statement in these proceedings explaining that the criminal charges all arise from Mr Kanu's activities as leader of IPOB.
On 28 April 2017, Mr Kanu was granted bail, and from that time lived with his parents in Abia State. On 10 September 2017, his parents' home was subject to what was later described by the High Court of Abia State as a “military invasion”. In those proceedings, in a judgment given on 19 January 2022, the High Court concluded that the Nigerian state had attempted to kill Mr Kanu. Sometime after 10 September 2017, Mr Kanu fled Nigeria. In March 2018 an amended indictment was prepared in the criminal proceedings outstanding in Nigeria. Mr Kanu remained outside Nigeria, first in Israel, then in the United Kingdom. By May 2021, Mr Kanu was in Kenya.
What happened then has been the subject of proceedings in Nigeria: civil proceedings determined by the Umuahia Judicial Division of the Federal High Court, in a judgment given on 26 October 2022; and criminal proceedings decided by the Abuja Judicial Division of the Federal Court of Appeal of Nigeria on 13 October 2022. The findings reached in those proceedings (taken together) are that on 19 June 2021 at Nairobi International Airport, Mr Kanu was abducted by agents of the Nigerian state. The kidnappers held Mr Kanu in Kenya for some eight days. During that time, he was subject to inhuman and degrading treatment. On 27 June 2021, he was illegally moved from Kenya to Nigeria and detained in Nigeria.
On 29 June 2021 Mr Kanu was taken to court and remanded. Thereafter, the indictment against him was amended on three further occasions: first on 13 October 2021 and 20 October 2021 when it expanded from 4 charges to 7 charges; and then on 17 January 2022 when it expanded again to cover 15 charges. Mr Kanu has pleaded not guilty to all charges.
In its judgment of 13 October 2022, the Court of Appeal ruled on preliminary objections raised by Mr Kanu. The court unanimously concluded that he had been illegally removed from Kenya. In his judgment Oludotun Adefope-Okojie JCA said:
“It is clear … that the Respondent, having removed [Mr Kanu] from another country without complying with the processes for his removal, was in flagrant breach of these laws and the fundamental human rights of [Mr Kanu].
It was incumbent on the Respondent, who was the arresting authority, to prove the legality of [Mr Kanu's] arrest, abduction in this case … This has however not been done by the Respondent.
…
The consequence of [section 15 of the Nigerian law on extradition], I hold, is that [Mr Kanu] is prohibited from being detained, tried or otherwise dealt with in Nigeria for or in respect of any offence allegedly committed by him for his extraordinary rendition to Nigeria. The lower court thus has no jurisdiction, I further hold, to try [Mr Kanu] on Counts 1, 2, 3, 4, 5, 8 and 15 which were retained by it, being charges allegedly committed by [Mr Kanu] prior to his extraordinary rendition.
In addition, by the forcible abduction and the extraordinary rendition of Mr Kanu from Kenya to this country on the 27th day of June 2021, in violation of international laws and state laws, the lower Court or indeed any Court in this country is divested of jurisdiction to entertain charges against [Mr Kanu] and I so hold.”
The other judges of the court gave concurring judgments.
On its own terms, the decision of the Court of Appeal brought the criminal proceedings against Mr Kanu to an end. However, on 18 October 2022, the prosecutor filed an appeal with the Nigerian Supreme Court against the decision of the Court of Appeal. On 28 October 2022, the Court of Appeal granted the prosecutor's application to stay the effect of its judgment pending that appeal. The appeal has not yet been heard.
Mr Kanu remains in detention. He is held in solitary confinement in Abuja. Mr Ejimakor explains that Mr Kanu is being held in “dire” conditions which are affecting his physical and mental health. Mr Ejimakor says that Mr Kanu appears increasingly frail; that the heart condition that has affected him for a number of years has got worse; and that he has been denied access to specialist medical treatment.
Mr Kanu's detention is the subject of attention by the UN Working Group on Arbitrary Detention (“UNWGAD”), part of the Office of the UN High Commissioner for Human Rights. On 4 April 2022 the Working Group adopted Opinion 25/2022 which concerns Mr Kanu's treatment in both Kenya and Nigeria. The Working Group had previously, on 30 December 2021, raised concerns about Mr Kanu's treatment, in particular his removal from Kenya, with the government of the Republic of Nigeria. The Opinion concluded, among other matters, that Mr Kanu was being arbitrarily detained and should be released.
In two sets of civil proceedings, Mr Kanu was awarded substantial damages: by the High Court of Abia State in respect of the events of 10 September 2017; and by the Federal High Court for what happened in Kenya in June 2021.
The decisions challenged
The decisions under challenge are contained in letters from the Secretary of State dated 14 April 2022 and 9 June 2022. The Appellant's solicitors have been in correspondence with the Secretary of State since shortly after Mr Kanu's rendition. The initial focus of the correspondence was whether officials from the British High Commission could obtain permission to visit Mr Kanu. The British High Commission requested permission by a note verbale sent on 1 July 2021 but, for a significant period, the Nigerian authorities provided no response. On 22 July 2021, the Appellant's solicitors sent a letter before action to the Secretary of State contending that the failure to provide consular assistance, and in particular the failure to take steps to do so beyond simply asking the Nigerian authorities, was unlawful.
In a letter dated 24 September 2021, the Government Legal Department, for the Secretary of State, summarised the steps taken with the Nigerian authorities in respect of Mr Kanu's case.
“Our client would like to reassure you that Mr Kanu's case is regularly being raised with the Nigerian Authorities. The steps which have been taken since we last updated you on this in our letter of 26 July include:
a. On 28 July 2021, Mr Kanu's case was raised during a meeting between Minister Duddridge and Nigerian Foreign Minister Onyeama.
b. On 29 July 2021, the Prime Minister raised Mr Kanu's case with President Buhari during a bilateral meeting.
c. On 6 August 2021, Minister Duddridge raised Mr Kanu's case in a letter to Nigerian Foreign Minister Onyeama.
d. On 12 August 2021, British High Commission officials met with the Nigerian Ministry of Foreign Affairs Consular Director and raised Mr Kanu's case.
e. On 19 August 2021, the Acting High Commissioner met Nigerian Foreign Minister Onyeama.
f. On 27 August 2021, British High Commission officials met with the Nigerian Ministry of Foreign Affairs Consular Director and raised Mr Kanu's case.
g. On 13 September 2021, the British High Commissioner raised Mr Kanu's case during a meeting with Nigerian Foreign Minister Onyeama.
h. On 17 September 2021, the Deputy National Security Advisor spoke with Nigerian Chief of Staff Gambari and raised Mr Kanu's case.
i. On 23 September 2021, a note verbale raising concerns about Mr Kanu's solitary confinement was issued to the Nigerian Ministry of Foreign Affairs.”
On 19 November 2021, with permission of the Nigerian authorities, representatives from the British High Commission visited Mr Kanu.
On 8 December 2021, the Appellant's solicitors wrote asking the Secretary of State to consider a range of further steps: to consider whether those responsible for Mr Kanu's mistreatment met the requirements for imposition of sanctions under the Global Human Rights Sanctions Regulations 2020; to obtain regular consular access to Mr Kanu; to...
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