England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
DIVISIONAL COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		27 June 2002

Lord Justice Sedley:

This is the judgment of the court.

These proceedings

1. 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.
2. 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.
3. 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.
4. 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.
5. 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

6. 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.

7. 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).
8. 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.
9. 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 state to conduct a sufficiently thorough investigation to explain injuries received in police custody: Aksoy v Turkey (1996) 23 EHRR 553, paras. 61, 97-9.
10. It is not, however, to be readily assumed or inferred that another state, particularly a fellow member of the Council of Europe represented on the European Court of Human Rights, will deny an accused person a fair trial. In the case of an extant conviction it is necessary to establish that it was the result of a flagrant denial of justice: Drozd v France and Spain (1992) 14 EHRR 745, 793. In the case of anticipated proceedings, it is seems that what is to be established is a real risk of a flagrant denial of justice: see Soering v United Kingdom (1989) 11 EHRR 439, para. 113, where, however, the point did not have to be decided. We will have to return to the practical problems this poses for the Home Secretary and the court. It is clear, however, that the Home Secretary is not called upon to judge other legal systems by our own: R (Abdullah) v Home Secretary [2001] EWHC Admin 263, per Kennedy LJ, paras. 42-3. But the agreement recorded there by Kennedy LJ that admissibility of evidence is always a matter for the requesting state has to be read subject to the requirements of the Convention which, as described by Lord Hoffmann in Montgomery, may supervene.

The issues

11. The full text of the decision letter forms an appendix to this judgment. The submissions which are now made in relation to it are in essence that it is vitiated by a series of demonstrable errors of fact. It is not disputed by Mr Eadie for the Home Secretary that an error of fact may found a quashing order if it can be shown to undermine the conclusion. Mr Emmerson submits that it is possible to demonstrate five such critical errors of fact in the decision letter. They all occur in the segment dealing with the treatment of Bensaid, paragraphs 29 to 32, and they are critical, it is submitted, because unless the Home Secretary could be satisfied that Bensaid’s evidence had not been obtained by means of torture or inhuman or degrading treatment he was obliged on the principles which we have set out to refuse extradition. He goes on to submit that insofar as the Home Secretary’s review of the decision addresses these issues, it both fails to address them properly and objectionably deploys new material which the claimant has never had an opportunity to see and comment on.
12. At the heart of the procedural issues is a limited number of known facts. They come chiefly from the affidavit of Marc Moinard, a senior official at the French Department of Justice responsible for international assistance in criminal matters, sworn for use in the first habeas corpus application and relied on by the Home Secretary in reaching the present decision; and the contents of Bensaid’s dossier as now known to the claimant’s lawyers. Bensaid’s interrogation began immediately after his arrest in the evening of 1 November 1995. He was examined just after midnight and again during the following evening by police doctors, each of whom certified him fit to be detained. At some stage on 2 November, and again on 3 November, he was put before a court which extended his period of custody. Late in the evening of 3 November, a little after the conclusion of another interview, he was again seen by a doctor, Dr Becour, who this time noted substantial areas of bruising and other marks compatible with the application of force within the previous 24 hours at three places on Bensaid’s face, one place behind his left ear and one place on the back of the head. The record of Bensaid’s interrogations shows that it was in the next interview, on 4 November, that he began making the admissions which decisively inculpated both him and the claimant, albeit he had earlier identified ‘Ilias’ as a source of funds. The interviews continued through 4 and 5 November. On 6 November Bensaid’s lawyer Valerie Dubois lodged a formal statement drawing the examining magistrate’s attention to what she herself had observed that day: “numerous signs of haematomas, especially under the eyes and on the nose”. There is no record in the dossier of any response to or investigation of this complaint; nor, for that matter, of any action on Dr Becour’s report, which was also duly filed.
13. The affidavit of Marc Moinard asserts (paragraph 57) that Bensaid was on three occasions certified by a doctor fit to be interviewed, and that he at no time complained about unfair police treatment. It makes no reference either to the complaint of the lawyer Valerie Dubois or to Dr Becour’s report of injuries, both of which are in the dossier. In January 2001 an application to the Paris tribunal de grande instance to seek the confirmation of the first two doctors who saw Bensaid that he was uninjured when they examined him was rejected by the senior examining magistrate on the ground that the application sought to reopen a matter which was res judicata. The Paris Court of Appeal in February 2001 upheld the decision, partly on the ground that Bensaid had never, either during his detention or before the examining magistrate, claimed to have been struck or ill-treated before or during his examination. The judgment continued: “If it is asserted that he displayed bruising, it has to be said that Boualem Bensaid in the course of his detention for questioning [interpellation] attempted to escape and offered violent resistance, compelling the police interrogators to restrain him by the use of such force as was strictly necessary…, which adequately explains the bruises recorded on and after 3 November 1995”. (Using the French original, we have modified the translation included in our papers.)
14. The Home Secretary in paragraph 27 acknowledges the seriousness of these allegations. He first points out, correctly, that the applicant if returned will not be interviewed by the French police. He then, again correctly, considers the separate impact of Bensaid’s alleged treatment by the police on the evidence against the applicant. He notes that French law gives suspects a series of rights designed to guard against ill-treatment or oppression, including a right to lodge a complaint and to seek the exclusion of any evidence obtained by ill-treatment. An examining magistrate has power to investigate such a complaint.
15. His first error, it is argued, lies in his assertion in paragraph 29: “If the Investigating Magistrate decides for some reason not to investigate such an allegation, the reasons for that decision would be recorded and the decision could be appealed to the chambre d’instruction.” This is compounded, says Mr Emmerson, by the passages in paragraphs 31 and 32 asserting that any such complaint will be investigated by all French judicial bodies including the Cour d’Appel. It is also contended that the Home Secretary has been misled in paragraph 30 by M Moinard’s partial evidence into thinking that no complaint of any material injury was ever made, and in paragraph 31 into thinking that no appeal has been attempted in relation to it.
16. Mr Emmerson points out that the dossier shows no response at all on the part of the juge d’instruction to the formal complaint of Bensaid’s lawyer that Bensaid had been assaulted under questioning. Mr Eadie relies in response upon the evidence of Robert James Wood, head of the extradition section of the judicial co-operation unit at the Home Office, explaining the unchanged outcome of the Home Secretary’s reconsideration of his decision. Mr Wood asserts: “The lawyer acting for Mr Bensaid did lodge a note raising the bruising with Investigating Magistrate Bruguière in November 1995. It is inaccurate to state that no investigation was made of the note [of Dr Becour]. Investigating Magistrate Bruguière carried out an investigation and concluded that the origin of the bruising was likely to have been the struggle at the time of arrest of Mr Bensaid. He informed the lawyer of this fact and no further investigations were undertaken or requested.” Mr Wood goes on to say that it was not until five years later that Bensaid raised the allegations again. “The allegations have been considered by the Assize Court in Paris at hearings on 15 November 2000 and 18 October 2001.” He notes that the courts heard evidence from police and medical witnesses, including Dr Becour. Judgments of these courts in translation are now before us. As to these, Bensaid’s present lawyer, in a letter placed before us, comments that the police evidence came from the officer in charge of the investigation, not from the officers involved in what on any view was a violent episode. Mr Emmerson contends that the central point remains unanswered: how did Bensaid come to have injuries to his face and head if he was being restrained from escaping, and how is it that they occurred not at the time of arrest but some two days into his detention? If there is no intelligible explanation, Mr Emmerson submits that the Home Secretary would be justified in inferring – in fact might be driven to infer - that Bensaid had been beaten up, and at a time so closely prior to the admissions which form a crucial part of the case against both himself and the claimant as to taint them irredeemably with oppression. If so, and if the evidence is not going to be excluded at the claimant’s trial, extradition would – as Mr Eadie accepts – be impermissible.
17. But Mr Eadie contests each step in Mr Emmerson’s reasoning. Bensaid’s confession evidence, he points out, is far from the only evidence against the claimant. The Home Secretary is not a court of law, much less a tribunal equipped to sit in judgment on another legal system. The voluntariness of confessions and other issues of admissibility are for the courts of the requesting state. As was said by this court in R v Home Secretary, ex parte McQuire (1998) 10 Admin LR 534: “What fairness requires in this situation is a proper balance between the basic requirements of justice on the one hand and the manifest intent of the statute on the other that there should not be a lengthy and elaborate trial before the fugitive should be surrendered for trial… The question is whether the fugitive should be sent for trial somewhere else. There should not be a trial here in the process of answering that question.” Here, Mr Eadie submits, France’s adherence to the Convention is a powerful piece of evidence pointing away from any risk of unfairness and requiring the most potent evidence to overcome it: see R (Abdullah) v Home Secretary [2001] EWHC Admin 263, para. 43. The key distinction is that described by Rose LJ in R v Home Secretary, ex parte Elliot [2001] EWHC Admin 559, para.11: “…issues affecting fairness of trial are, usually, best decided at the trial itself. In our judgment that principle generally applies also in an extradition context, unless there are special circumstances, such as a real risk of denial of a fair trial at the hands of the requesting state.” Moreover, Mr Eadie argues, the Convention having the status of superior law in France’s monist system, the claimant will have not only recourse to Strasbourg if France denies him a fair trial but a right to return to the Cour de Cassation for enforcement of Strasbourg’s judgment.
18. In any event, Mr Eadie submits, the Home Secretary has justifiably concluded (see paragraph 32 of the decision letter) that the claimant will not be precluded from advancing in his own defence at first instance the facts which he contends vitiate Bensaid’s evidence against him. At the time of his decision letter the Home Secretary, Mr Eadie confirms, did not know of the medical report or of Bensaid’s later complaint. Moreover, in maintaining his conclusion following his voluntary review of the decision, the Home Secretary has relied, Mr Eadie accepts (indeed asserts), on new material unseen by the claimant’s lawyers. The sources of Mr Wood’s new evidence, summarised above, concerning the appellate decisions of January and February 2001 are simply copies of the written decisions of those courts. But the Home Secretary has also now concluded, according to Mr Wood’s evidence, that “It is inaccurate to state that no investigation was made of the note [lodged by Bensaid’s lawyer in November 1995]. Investigating Magistrate Bruguière carried out an investigation and concluded that the origin of the bruising was likely to have been the struggle at the time of arrest of Mr Bensaid. He informed the lawyer of this fact and no further investigations were undertaken or requested.” The source of this information, Mr Eadie confirms, is not the dossier. It is the French government. Mr Wood’s opening statement that his evidence, so far as it concerns matters relating to French procedure and law, is based on information supplied to him by the French government was intended to convey this. In any case, Mr Eadie submits, what is clear is that M^e Dubois could have appealed against M. Bruguière’s inaction but did not do so, and that at his trial in 1999 Bensaid’s lawyers took no point on his earlier treatment.
19. Mr Eadie accepts that this was a case in which the decision letter was challenged on grounds of sufficient cogency to require reconsideration. In the end, however, it is the Home Secretary’s case that nothing that has been produced from any quarter has undermined his original decision that if Bensaid had complained of being assaulted the complaint would have been properly dealt with by the French judicial authorities, and that such complaint as was finally made was properly adjudicated on.
20. Mr Emmerson’s response is that, on the contrary, the situation is more unjust now than when the decision letter was written. Further evidence has proved the decision letter to have been heavily over-sanguine, first about the absence of any complaint, secondly – and inconsistently – about the due determination of any complaint. Mr Wood’s use of the verb “revisit”, he contends, does not necessarily betoken a true reconsideration. But more significantly, Mr Emmerson submits, the claimant has been denied an opportunity to deal with potentially crucial new material obtained by the Home Secretary. Having now seen at least some of it, he contends that even more questions require an answer than before. Some relate to the voids in the dossier: if M^e Dubois’ complaint was investigated, why is there no record of it; and in the absence of a record, how can the Home Secretary have concluded that there was such an investigation? Some relate to the information now provided by the French government: why were the materials recently provided to the Home Secretary not provided during the two years when he was considering this matter, and is it truly open to an accused in the claimant’s position to reopen the voluntariness of Bensaid’s admissions when Bensaid himself turns out to have been prevented by judicial decision from doing so? Lastly, is M Moinard’s affidavit, on which the Home Secretary placed much reliance, so deficient as to call the good faith of the French government in question?
21. There remains, separately from the foregoing, a body of material supplied to the Home Secretary in support of the claimant’s submission that as an Algerian suspected of terrorist offences he faces a risk of inhuman or degrading treatment in France real enough to make it impermissible on this score alone to extradite him. The Home Secretary had material going both ways on this issue but, probably through inadvertence, his decision letter does not address it in terms. It may well be that he has implicitly rejected the claim, but in view of the conclusion we have come to on the questions discussed above, it is something we do not need to decide.

Conclusions

22. The distinction we have to draw with great care is the one delineated by Rose LJ in Elliot: see paragraph 17 above. Questions of admissibility within the requesting state’s criminal process are ordinarily for the courts of the requesting state to decide, especially where admissibility turns upon disputed issues of fact. It is only where it can be demonstrated that the approach taken by the requesting state’s courts to admissibility will itself be such as to create a real risk of a fundamentally unfair trial that the principle of mutual respect stressed in McQuire and other decisions may have to yield. In a case such as the present this requires the Home Secretary to be satisfied of at least two things: that Bensaid’s incriminating admissions may well have been the direct result of brutality, and that the French courts will not entertain, except to reject it in limine, any argument in the claimant’s defence based upon this contention. If the Home Secretary concludes that these elements are established, he will be effectively bound to refuse extradition.
23. It is almost inevitable that a decision letter will be disputed and may attract the submission of further material. The Home Secretary will in most cases be entirely justified in declining to enter into further debate. But it is accepted, rightly in our judgment, that the further questions and materials put before the Home Secretary in response to this decision letter were such as to call for its reconsideration; and we accept that this was sought to be done by – in Mr Wood’s word – revisiting it. The unusual amount of material deployed in the present case may help to explain the length of time taken by the Home Secretary in reaching his initial decision. But what we find ourselves unable to accept is that the totality of the exercise has in the event adequately or fairly addressed the issues requiring decision.
24. As to the adequacy of the total inquiry, there remain at least two questions to which, on the face of the materials eventually before him, the Home Secretary has yet to give a properly reasoned response. One is whether there was any investigation at all of the original complaint of ill-treatment of Bensaid; the other is whether the French courts, given the record now available of their later decisions in relation to Bensaid, will now entertain any request by the claimant to exclude Bensaid’s confessions. From the Home Secretary’s conclusions about these matters may flow other questions. For example, if the answer to the second question posed above is yes, it will be necessary to consider whether the French courts will investigate the facts. (In passing, it seems to us surprising that a satisfactory answer to these questions cannot be provided by an expert in French law.) Again, if some of the Home Secretary’s conclusions are as bleak as Mr Emmerson argues they should be, the question of bad faith may arise in relation to M Moinard’s affidavit.
25. As to the fairness of the process, two principles come into potential conflict. One is that there has to be finality in decision-making as much as in litigation: the Home Secretary is not required to be drawn into a never-ending dialogue whenever his decision proves unacceptable to a wanted person. The other is that he must not rely on potentially influential material which is withheld from the individual affected. This is a simple corollary of Lord Loreburn’s axiom that the duty to listen fairly to both sides lies upon everyone who decides anything (Board of Education v Rice [1911] AC 179) and of Lord Denning’s dictum that if the right to be heard is to be worth anything it must carry a right in the accused man to know the case against him (Kanda v Government of Malaya [1962] AC 322). An individual facing a sentence of thirty years if he is extradited and convicted can be entitled to no less consideration. Once it is accepted, as very fairly it is, that the decision letter threw up genuine issues requiring reconsideration, the principle of finality is not breached; but once it is seen that the Home Secretary made use, in reconsidering the case, of materials which were and in at least one critical respect still are unknown to the claimant, in our judgment the principle of fairness is breached.
26. In these circumstances there is in our judgment no option but to quash the decision recorded in the Home Secretary’s letter of 8 October 2001. Insofar as it has an independent existence, the confirmatory decision recorded in Mr Wood’s witness statement will fall with it. Since a wholly fresh consideration of the issues, with proper disclosure, must follow, we would expect it to include express consideration of the question of the claimant’s own safety in the hands of the French authorities.
27. There is, however, one issue of law on which it may be helpful to express our view now. This concerns Mr Eadie’s reliance on recourse to the European Court of Human Rights to correct any eventual failure on the part of France to accord the claimant a fair trial. The European Court of Human Rights is not a court of appeal, and there is no recourse to it as of right (see article 28). As articles 13 and 35 of the Convention make clear, and as the Court itself has gone out of its way to stress (Kudla v Poland (2001) 10 BHRC 269), it is on national authorities that the primary duty both of compliance and of affording redress for non-compliance rests. We do not consider that the Home Secretary would be justified, in spite of France’s monist system of law, in treating the Strasbourg court as part of the French legal system.
Appendix Decision letter from the Home Office dated 8 October 2001