England and Wales High Court (Administrative Court) Decisions

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URL: http://www.bailii.org/ew/cases/EWHC/Admin/1999/624.html
Cite as: (1999) 116 ILR 607, [1999] EWHC Admin 624, [1999] Imm AR 341, 116 ILR 607

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SECRETARY OF STATE FOR FOREIGN AFFAIRS EX PARTE FERHUT BUTT, R v. [1999] EWHC Admin 624 (1st July, 1999)

IN THE HIGH COURT OF JUSTICE CO/2613/99

QUEEN'S BENCH DIVISION

(CROWN OFFICE LIST )

Royal Courts of Justice

The Strand

Thursday 1st July 1999

B e f o r e:

MR JUSTICE LIGHTMAN

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R E G I N A

-v-

THE SECRETARY OF STATE FOR FOREIGN AFFAIRS

EX PARTE FERHUT BUTT

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Handed-down judgment of Smith Bernal Reporting Limited

180 Fleet Street, London EC4A 2HD

Tel: 0171 831 3183

Official Shorthand Writers to the Court)

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MR RAMBY de MELLO (Instructed by Tyndallwoods, Birmingham) appeared on behalf of the Applicant.

MR ROBIN TAM (Instructed by Treasury Solicitor) appeared on behalf of the Respondent.

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J U D G M E N T

(As approved by the Court)

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Crown Copyright

INTRODUCTION

1. This is an application by Ms Ferhut Butt (“the Applicant”) for leave to apply for judicial review of a decision of the Foreign and Commonwealth Office (“the FCO”) communicated to the Applicant by letter dated the 16th June 1999 (“the Letter”). In a word the Applicant seeks an order that the FCO make representations to the President of Yemen that a flawed criminal trial in progress in Yemen should be halted and a retrial should be ordered before the verdict is given. Mr de Mello has appeared for the Applicant and Mr Tam for the FCO.

2. The application relates to the Applicant’s brother Shahid Butt (“the Brother”), a citizen of the United Kingdom who is currently detained in a prison in Yemen. In 1998 the Brother visited Yemen and on the 24th December 1998 was arrested with four other United Kingdom citizens. Subsequently on the 27th January 1999 four further United Kingdom citizens were arrested. I shall refer to all nine as “the detainees”. The detainees were later charged in Aden under article 133 of the Yemen Penal Code with being members of an armed gang involved in terrorist activities which planned to carry out killings and cause explosions in Yemen. They face, if found guilty, sentences of up to ten years in prison. The trial before a judge commenced on the 27th January 1999, concluded on the 22nd June 1999 and the verdict is due to be given on the 25th July 1999.

3. The evidence before me is to the effect that the detainees have all been subjected to torture and inhuman and degrading treatment; that their arrest, search, detention and ill-treatment were all contrary to the Constitution of the Republic of Yemen; that confessions (since retracted) were forced out of them by torture; that they have been denied proper access to their lawyers and their lawyers have not been given the necessary time and facilities to prepare their defence; that when the trial commenced the President of Yemen made a public announcement that the detainees were guilty; that the Yemeni newspapers at the same time published the confessions (though since withdrawn); that the trial has been conducted in a grossly irregular and unfair manner and without due process; and that the detainees have repeatedly requested a retrial, but the judge on each occasion has refused this request. It is not for me to examine the truth of these allegations. I shall assume for the purpose of this application that the allegations are true. On this assumption, it is clear that there has been the most serious interference with the fundamental human rights of the detainees, and most particularly their rights not to be subjected to torture or cruel or inhuman treatment and their rights to a fair trial.

4. The FCO has since the arrest of the detainees given the closest attention to the plight of the detainees. It has maintained repeated high level contacts with the Government of Yemen. The FCO has accepted responsibility to ensure continuing consular access to the detainees in the face of difficulties placed in the way of such access by the Yemen’s authorities, and generally speaking its efforts in this direction have been successful. The FCO has likewise accepted responsibility to afford protection and redress in respect of the allegations of torture and mistreatment, to secure legal advice and assistance and to secure reasonable conditions of detention. The allegations of torture by the detainees are of critical importance as they go to the circumstances in which the confessions were obtained, for if they were extracted by torture, they must be inadmissible. The concern of the FCO has been expressed ( inter alia ) (1) by the British Consul in Aden making a number of requests directly to the judge, e.g. for access by the detainees to a doctor, for unimpeded access by the detainees to defence lawyers and for the judge to investigate as a matter of urgency serious allegations of maltreatment; and (2) by the British Prime Minister writing to the Prime Minister of Yemen asking that in order to investigate the allegations of torture the detainees should been seen by an independent doctor in the company of an experienced human rights lawyer. In response to this last application, on the 15th April 1999 the judge ordered that an independent medical examination of the detainees take place to ascertain whether the detainees were tortured as they claimed and that for this purpose a medical committee be formed consisting of two Yemeni doctors and a third doctor from a neutral country. The examination took place on the 25th April 1999 but (as far as the defence lawyers were concerned) the examination did not take the form they were led to expect and was totally unsatisfactory. No human rights lawyer attended; the expertise of the doctors is in question; and the examination has been castigated as cursory. The position in this regard has been aggravated by the judge’s decision not to allow any cross-examination of the members of the committee nor to admit any further medical evidence. The FCO, whilst again accepting a responsibility to do what it can to secure a fair trial, has taken the position that it is quite inappropriate for the FCO to interfere in the conduct of the trial: any action taken by the FCO in respect of the fairness of the trial must await the outcome of the trial and the exhaustion of all avenues of appeal.

5. The Applicant on account of her natural and laudable concern for her Brother has consistently pressed the FCO to do more to assist the detainees. The FCO explained its position in a letter to her solicitor dated the 7th April 1999:

“I do understand the anxiety of the relatives of the men who are detained. This is a worrying time for them. I also understand how much they would like the British Government to secure the men’s release. I wish we could bring an early end to their difficulties. The reality, though, is that we cannot: we cannot tell the Government of Yemen how to conduct justice in its own country, and we cannot ask for special treatment for these men just because they are British.

There are two things we can do. Through our Embassy in Sanaa and out Consulate General in Aden we can continue to give the detainees consular support; and through government-to-government contacts, we can maintain pressure on the Yemeni authorities to honour their own legal obligations with regard to the judicial process.

From the very first days, when we had to press hard to gain consular access, we have given the detainees every possible consular support. They have received numerous consular visits - 14 at the last count. Exceptionally, consular staff have attended every session of the court hearing. Consular staff have made many representations to the police, prison authorities and prosecution on questions of health, welfare and access. Through their efforts, conditions for the men, though still uncomfortable, have improved greatly. In order to achieve this, our small Embassy at Sanaa has had to station a member of staff continuously at Aden, where we have no resident British staff.

I told you when we met on 9 March that we were seriously worried about the allegations that the men were tortured. We have asked the Yemenis to allow a medical examination by an independent doctor in the presence of an experienced human rights lawyer. The Prime Minister wrote again with this request to Dr Iriyani on 24 March. When our Ambassador delivered the letter, Dr Iriyani agreed the Prime Minister’s request and said that he would instruct the Attorney General to make arrangements with the Embassy and the defence lawyers.

...

When our Ambassador delivered the Prime Minister’s letter, he also spoke to Dr Iriyani in support of Sheikh Tariq’s application for a Commission of Inquiry into the conduct of the trial. This was the subject of your letter of 30 March.

signed

Baroness Symons”

6. In view of growing concerns on the part of the Applicant, on the 8th June 1999 the Applicant’s solicitors wrote once again to the FCO:

“The serious obstacles being placed in the way of the defence team therefore continue. The Judge has not made any ruling concerning the ‘confessions’ despite the fact that the allegations of torture have not been independently investigated, and they have been read out in court as ‘evidence’ even though they should have been rules inadmissible. The defence team still have not had access to the prosecution file and have not been give [sic] copies of the ‘confessions’. Their access to the detainees remains limited.

...

In these circumstances the only course of action which may make any difference is direct communication from Tony Blair and Robin Cook to the President of Yemen and the Foreign Secretary respectively. It is clear from the result of the letter from Tony Blair to Prime Minister Iriyani that it is not sufficient in Yemen to approach the Prime Minister. He was in effect not able to do anything to ensure that an independent medical examination took place. The President is the head of the judiciary and unless he is personally informed of the breaches that have taken place in order that he may put pressure to bear on the trial judge to properly up-hold the rule of law and declare a mis-trial on the basis that the procedural flaws cannot be rectified it is a forgone conclusion that the men will not receive justice. We therefore repeat our request that this now be done urgently, before an unsafe verdict is reached and it becomes too late. This is (sic) would come within the ambit of government to government contacts as described by Baroness Symons.

This case is naturally of great importance to the detainees and their families but is also important to the wider Muslim community and various non-Muslim human rights groups and trade unions, who have consistently supported the men’s Campaign for justice and are looking to the government to do absolutely everything possible to protect the men’s rights....”

7. The Letter was the FCO’s response, and (so far as material reads as follows:

“... We have been giving very careful thought from the outset about the means available to us to safeguard the rights of the British nationals on trial in Aden. Ministers have remained closely involved. We have the benefit of a sound knowledge of Yemen, its social and political culture, and its key personalities most of whom are well known to the Foreign and Commonwealth Office. We also have a depth of consular experience about British nationals on trial in many other parts of the world.

You are aware that the Prime Minister and the Foreign Secretary have had a number of contacts with Prime Minister Iryani in the interest of the British detainees. Baroness Symons has had contact also with the Ambassador of Yemen. The British Ambassador in Sanaa, on instructions, has been in regular contact with the Prime Minister and other members of the government of Yemen. Our concerns, focused on the allegations of torture and ill-treatment, have been clearly and repeatedly registered at the highest political levels.

You are also familiar with the intensity of effort put in by our Embassy staff at the operational level both in Sanaa and, more importantly, in Aden.

As we agreed during our last telephone conversation, there is an important distinction between discussions at the political level regarding the welfare and treatment of British nationals on the one hand, and intervention in the on-going judicial process on the other hand. This principle was acknowledged when Baroness Symons saw McColgan [an independent human rights lawyer], Dr Alam and Mr Milroy on 11 February after their return from Yemen . Mr McColgan’s own view, as a lawyer, was that the law should be allowed to run its course. What this means in practice is that if the court hands down a guilty verdict the men would have recourse to the Aden Court of Appeal, which can quash or vary sentences and, if necessary, order a re-trial. If the appeal is unsuccessful or unsatisfactory an appeal can be made to the Supreme Court in Sanaa, where a panel of five judges would consider the case in private.

All locally available legal or administrative remedies must be exhausted before HMG will normally consider making formal representations, on the basis of prima facie evidence that there has been a miscarriage or denial of justice.

The next session of the court is now scheduled for 22 June. This may be the last before the court is adjourned for the judgment. It is hard to see what practical benefit there might be to the detainees to seek a halt to the trial at the eleventh hour. I should also draw attention, for the record, to the fact that the defence team operating in Aden has at no time suggested to our Ambassador or his officials that HMG should make representations for a re-trial. Both Shaikh Tareq and Badr Basunaid are experienced and highly respected lawyers, evidently acknowledged as such also by the trial judge, and in the last resort we must be guided by their local expertise and views on the strategic approach.”

8. As I have already said, the 22nd June 1999 saw the end of the trial and the verdict is due to be rendered on the 25th July 1999.

THE APPLICATION

9. On this application the Applicant seeks leave to apply for an order of certiorari quashing the decision of the FCO in the Letter not to make further representation on behalf of the Brother regarding the criminal trial and that all locally available remedies should be exhausted before the FCO made representations on the basis of prima facie evidence that there had been a miscarriage or denial of justice; and for declarations that the decision was unreasonable and that the FCO had failed to make timely and appropriate representations in connection with the Brother’s trial.

ISSUE

10. The Applicant accepts that the FCO has fulfilled its responsibilities in respect of making representations to the Yemeni authorities regarding the ill-treatment and torture of the detainees: her complaint is that the FCO has failed to make proper representations regarding the lack of a fair trial and to the effect that the trial was fatally flawed; and that the FCO should present such a complaint to the President of Yemen. The Applicant contends that the Brother has a fundamental human right to a fair trial and that it is the responsibility of the FCO to protect that fundamental right of a national when it is infringed in criminal proceedings abroad; that (in the circumstances of this case) the responsibility to protect that right requires the FCO to do so by making the complaint to the President; and that the duty can and should be enforced in these judicial review proceedings. The answer of the FCO is twofold. First, whilst (for the purpose of this application) the FCO accepts that it has a responsibility to do all it can to protect the fundamental rights of its nationals abroad and so in this case to ensure (so far as possible) that due process is followed in Yemen, there is the constraint that the FCO should not interfere in the ongoing legal proceedings in Yemen. This constraint is an aspect of the duty not to interfere in the internal affairs of another state recognised e.g. in Article 41 of the Vienna Convention on Diplomatic Relations. Only if and when the legal proceedings result in a miscarriage of justice and all rights of appeal have been exhausted can it be appropriate to intervene. Secondly the FCO submits that only in the most exceptional cases (if ever) can it be appropriate for the Court in judicial review proceedings to exercise a supervisory jurisdiction over the conduct of relations between this country and another sovereign state, and that this is not such an exceptional case. I turn to consider each of these submissions in turn.

(a) Exhaustion of legal processes in Yemen

11. It is to be noted that this country (and most particularly the courts of this country) would regard as scandalous and as an affront if a foreign state sought to interfere in the conduct of a trial in this country; and the FCO perfectly reasonably and properly adopts the view that the United Kingdom should display like restraint in respect of proceedings abroad. Fully accepting for this purpose the Applicant’s evidence that a conviction is imminent in Yemen and that it will be a conviction obtained at a trial that does not stand any scrutiny, nonetheless there is no evidence nor basis for any submission (and accordingly no submission was made) that a fair hearing will not be obtained on appeal. Occasion for complaint by the FCO of a miscarriage of justice can sensibly await the outcome of such an appeal. If the appellate process should prove deficient, the FCO has made it clear that it will consider at that stage making any necessary and proper representations. Following this course does mean (as the Applicant complains) that, if convicted at the unfair trial, until the appeal is heard and determined the Brother may bear some stigma by reason of conviction, but (in view of the lack of due process) the stigma will be limited in significance as well as duration; and the existence of the stigma is not a sufficient ground for one state to interfere in a trial proceeding before the courts of another state..

(b) Executive functions in the field of foreign affairs

12. The general rule is well established that the courts should not interfere in the conduct of foreign relations by the Executive, most particularly where such interference is likely to have foreign policy repercussions (see R v. Secretary of State for Foreign and Commonwealth Affairs ex parte Everett [1989] 1 QB 811 at 820). This extends to decisions whether or not to seek to persuade a foreign Government to take any action or remind a foreign Government of any international obligation (e.g. to respect human rights) which it has assumed. What (if any) approach should be made to the Yemeni authorities in regard to the conduct of the trial of these terrorist charges must be a matter for delicate diplomacy and the considered and informed judgment of the FCO. In such matters the courts have no supervisory role. I do not see how (as the Applicant suggests) the position is affected by the fact that the Brother’s fundamental human rights have been invaded or are in jeopardy or that the Human Rights Act 1998 has now been passed and will soon be implemented. Mr de Mello prays in aid of the decision of the Divisional Court in R v. Lord Saville (The Times 22 June 1999) which requires anxious scrutiny and a lower than “ Wednesbury” standard of reasonableness when examining a decision which may possibly interfere with fundamental human rights. But that has no application here: there is no question of the decision of the FCO interfering with the fundamental human rights: the decision is concerned with the remedy of such breaches by others. The FCO affords full recognition to the fundamental rights of its nationals and the seriousness of any infringement abroad. The fact that rights of nationals have been infringed or are at risk is a factor which will no doubt be taken into account in deciding the policy to be adopted, but that will not make the policy itself amenable to judicial review. The Court cannot and should not, as requested, dictate to the FCO what it should say, to whom or when on this sensitive matter: that is all a matter for the political judgment of the FCO.

CONCLUSION

13. In the circumstances for the two reasons which I have given, notwithstanding Mr de Mello’s eloquence and the public concern referred to by the Applicant as to the treatment of the detainees and the conduct of their trial in Yemen, the Applicant cannot succeed on the proposed application for judicial review proceedings and I must therefore refuse permission.

*****

MR JUSTICE LIGHTMAN: For reasons set out in the decision which I have handed down, I refuse this application for permission.

MR de MELLO: My Lord, the applicant is legally aided. May I please have the necessary order for taxation?

MR JUSTICE LIGHTMAN: Yes, legal aid taxation.

MR de MELLO: I am most grateful.

MR TAM: My Lord, I have no applications.

MR JUSTICE LIGHTMAN: Thank you both four your help.