England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT

		Royal Courts of Justice Strand London WC2A 2LL
		8 April 2009

RULING ON CERTIFICATION
1. LORD JUSTICE LAWS: In these appeals in which the court's judgment has been handed down today, Mr Keith QC for the Government of Rwanda applies for the court to certify two questions for their Lordships' House, which he says raise issues of general public importance. We will not repeat any narrative of the facts of the case, which are lengthy. They are to be found in the judgment handed down. Mr Keith's first question is expressed thus:

"Whether a relativist approach to questions of fact relating to the assessment of fair trial rights is justified in an extradition case for genocide so as to render the absence of specific protections such as the opportunity to call defence witnesses a flagrant denial of justice only where there is a real risk that the right will be absent as opposed to being merely compromised."

2. That question goes to our conclusions on the appellant's appeals against the decision of the District Judge to the effect that they would obtain a fair trial, or at any rate there would be no flagrant violation of Article 6 of the European Convention on Human Rights, if, as sought by the Government of Rwanda, they will return to face trial by the Rwandan High Court.
3. The second question which Mr Keith asks us to certify goes to the appeals against the Secretary of State's decision to make the extradition order, and the question is in these terms:

"Is the High Court, upon an appeal under section 108 of the Extradition Act 2003, entitled to determine under section 109 that there are no speciality arrangements with a category 2 territory on the sole ground that there is a risk of executive interference with the judiciary in that category 2 territory?"

4. There are two short points to be noted about this second question. First, it is plain from section 114 of the Extradition Act 2003 that the Secretary of State herself has no right of appeal against this court's decision on a section 108 appeal, but the requesting state, here the Government of Rwanda, may seek to appeal a section 108 decision.
5. The second point to be noted is that, as everyone accepts, this second question is wholly parasitic upon the first, and if we decline to certify the first question, the second will not effectively arise at all. I turn then to the first question.
6. Although, as I have ventured to describe it in the course of the short submissions we have heard this morning, Mr Keith's draft is somewhat delphic, it became plain, when he addressed his helpful submissions to us, that substantially his case for a question to be put to their Lordships is based on the recent decision of their Lordships' House in RB (Algeria) (FC) and another v Secretary of State; OO (Jordan) v Secretary of State, opinions handed down on Wednesday, 18 February 2009. I mention the date because, as it happened, that was after the argument was concluded in our case, but of course before our judgment was handed down. In that case, whose facts, save for one matter to which I will come in a moment, I will not rehearse, the House of Lords was concerned with the test to be applied when it was submitting that there would be a violation of Article 6 of the European Convention on Human Rights in a foreign non-Convention state upon the appellant or applicant being sent there by the United Kingdom or other Convention state. Such expressions as "a real risk of a total denial of the right to a fair trial" have been used; "flagrant breach of Article 6" is a familiar expression from earlier jurisprudence. Addressing a test expressed in words of that sort, Lord Phillips said this at paragraph 136 of his opinion:

"This is neither an easy nor an adequate test of whether article 6 should bar the deportation of an alien. In the first place it is not easy to postulate what amounts to "a complete denial or nullification of the right to a fair trial" That phrase cannot require that every aspect of the trial process should be unfair. A trial that is fair in part may be no more acceptable than the curate's egg. What is required is that the deficiency or deficiencies in the trial process should be such as fundamentally to destroy the fairness of the prospective trial.

137. In the second place, the fact that the deportee may find himself subject in the receiving country to a legal process that is blatantly unfair cannot, of itself, justify placing an embargo on his deportation. The focus must be not simply on the unfairness of the trial process but on its potential consequences. An unfair trial is likely to lead to the violation of substantive human rights and the extent of that prospective violation must plainly be an important factor in deciding whether deportation is precluded."

7. Then in paragraph 138, in the middle of the paragraph:

"If an alien is to avoid deportation because he faces unfair legal process in the receiving state he must show that there are substantial grounds for believing that there is a real risk not merely that he will suffer a flagrant breach of his article 6 rights, but that the consequence will be a serious violation of a substantive right or rights."

8. It is of some importance that Mr Keith accepted this morning that the penalty which these appellants would be likely to suffer by way of sentence if they were convicted of the offences which the Government seeks to have them indicted for in the High Court of Rwanda, namely a life sentence of imprisonment (though perhaps this is not entirely clear, with some rights of parole), those sentences would amount to a serious violation of substantive right or rights if they followed an unfair trial. So the second aspect of Lord Phillips' reasoning in paragraphs 136 to 138 is, it would seem, satisfied here. One concentrates therefore on the first.
9. Lord Phillips proceeded to describe the nature of the court which in that case would try the appellants if they were returned to the country in question. It would be in essence a Military Court. Its nature had been examined closely by the Special Immigration Appeals Commission and the Court of Appeal below in the same litigation. Lord Phillips said this at paragraph 144:

"The judges would have no security of tenure and would be subject to being replaced by executive decision. They would be subject to the influence of the executive. While not independent there was no reason to suspect them of partiality. Convictions were not a foregone conclusion before the SSCt. There had in the past been a number of acquittals and successful appeals to the Court of Cassation. That was a civil court with jurisdiction to review the decisions of the SSCt on both law and fact."

10. Lord Hope of Craighead at 247 referred to SIAC's examination of the issues about the court's independence, and said this:

"It [SIAC] took account of the lack of independence of the court and noted that the fact that the prosecutor and the majority of judges were part of the same military hierarchy did not add to the appearance of justice or independence [reference given]. As against that, it found that it could not conclude that, for all the deficiencies of independence, the courts would not endeavour to apply the law conscientiously or would reach decisions which were manifestly unreasonable or arbitrary."

11. I return in a moment to the significance of those factual matters. Continuing with Lord Phillips' reasoning at paragraph 145:

"Such a court would not have satisfied the article 6 requirement of an "independent and impartial tribunal".

12. And then going forward to paragraph 146:

"While in a domestic case the composition of the SSCt would violate article 6, it does not follow that this would, of itself, constitute a flagrant breach of article 6 sufficient to prevent deportation in a foreign case. The Court of Appeal considered this question at paragraphs 33 to 42 of its judgment and, in agreement with SIAC, concluded that it would not. I have reached the same conclusion and would endorse the reasoning on this point of the Court of Appeal."

13. It seems to me that it is of the first importance to bear in mind that in this present case before us the court was faced with an entirely different factual scenario from that pertaining to the Tribunal discussed by their Lordships in the case of OO. We held, for extended reasons that are set out in the judgment, first at paragraph 66:

"In the result we conclude that if they were extradited to face trial in the High Court of Rwanda, the appellants would suffer a real risk of a flagrant denial of justice by reason of their likely inability to adduce the evidence of supporting witnesses."

14. Without extending into the details set out in the judgment, it was plain that there was a very great deal of substantial evidence that the difficulties faced by defendants in relation to the possibility of calling supporting witnesses might be very great indeed.
15. Then at paragraph 121:

"We stated earlier (paragraph 68) that the question whether a court is independent and impartial cannot be answered without considering the qualities of the political frame in which it is located. We have had no day-by-day details from the GoR of the conduct of the Rwandan High Court's business. No details of trials; of defences run, successfully or unsuccessfully; no details of any of the myriad events that show a court is working justly. We have reached a firm conclusion as to the gravity of the problems that would face these appellants as regards witnesses if they were returned for trial in Rwanda. Those very problems do not promise well for the judiciary's impartiality and independence. The general evidence as to the nature of the Rwandan polity offers no better promise. When one adds all the particular evidence we have described touching the justice system, we are driven to conclude that if these appellants were returned there would be a real risk that they would suffer a flagrant denial of justice. It follows that the appeals of all four appellants under s.103 of the 2003 Act, against the decision of the judge to send the case to the Secretary of State must be allowed."

16. Lastly, at paragraph 145, in which the court was dealing with the appeal against the Secretary of State, we said this:

"The likelihood of the GoR upholding the rule of speciality cannot be considered in isolation from the fair trial issues (above). If we had concluded that there was no real risk of executive interference with the judiciary we would also have been satisfied that the GoR would uphold the rule of speciality. Since we do consider that there is such a risk we are unable to share the Secretary of State's confidence that the GoR would uphold the rule of speciality. The rule of speciality is but one aspect of the rule of law and there can be no rule of law unless there is an independent judiciary free from executive interference ..."

17. So, we were dealing with a situation in which, on our findings, there would be very substantial difficulties in the way of these defendants presenting their cases, and a real risk that the court in question would be interfered with in the manner described. That seems to me to amount to a state of affairs in which, on any view, there was a risk of a flagrant denial of justice. The situation is factually entirely different, as I have said, from that, with respect, being described and contemplated by their Lordships in the OO case. Again, as I have said, Mr Keith accepts that there would be a consequence of standard breach of human rights by way of the penalty imposed if these appellants were convicted after an unfair trial.
18. In those circumstances, for my part I do not consider that a point of law arises from their Lordships' judgments in the OO case that might promote a different result here. In those circumstances, I would decline to certify Mr Keith's question 1, and if my Lord agrees, it would be unnecessary to consider question 2.
19. MR JUSTICE SULLIVAN: I do agree.
20. MR KEITH: I am grateful to my Lords for entertaining the application, and as my Lords observed, what now must follow is the order for the discharge and quashing of the extradition orders.
21. LORD JUSTICE LAWS: Yes, we make those orders.
22. MR JONES: Could your Lordships make an order for legal aid taxation?
23. LORD JUSTICE LAWS: Detailed assessment for the purposes of the Legal Services Commission, yes. Do all the appellants need that? I imagine they do.
24. LORD GIFFORD: Yes, my Lord.
25. LORD JUSTICE LAWS: We will make those orders.
26. Mr Keith, I rather think this may be the first time we have seen you wearing your silk gown. If so, we are very glad to see you garbed in it.
27. MR KEITH: Thank you very much, my Lords.
28. LORD JUSTICE LAWS: It only remains for me to thank all counsel for their assistance in this important and anxious case. We are sorry it took a long time to get the judgment out, but as will be apparent, there was quite a lot of work to do. Thank you.