Trinity
Term
[2016] UKSC 37
On appeal from: [2013] EWHC 663 (Admin)
JUDGMENT
R (on the application of Ismail) (Respondent) v
Secretary of State for the Home Department (Appellant)
before
Lady Hale, Deputy
President
Lord Kerr
Lord Sumption
Lord Hughes
Lord Toulson
JUDGMENT GIVEN ON
6 July 2016
Heard on 26 and 27 January
2016
|
Appellant
David Perry QC
Clair Dobbin
(Instructed by The
Government Legal Department)
|
|
Respondent
Clare Montgomery QC
Ben Watson
(Instructed by
Peters & Peters Solicitors LLP)
|
LORD KERR: (with whom Lady
Hale, Lord Sumption, Lord Hughes and Lord Toulson agree)
Introduction
1.
This appeal concerns the operation of section 1 of the Crime
(International Co-operation) Act 2003. That section gives the Secretary of
State for the Home Department (who is the appellant in these proceedings) power
to serve on a person in the United Kingdom any process or other document at the
request of a foreign government or its authorities.
2.
Mr Mamdouh Ismail, the respondent, is an Egyptian national. He was
chairman of the board of management of the El-Salam Maritime Transportation
Company which was based in Egypt. Mr Ismail’s son, Amr, was an executive
director and vice-chairman. The company operated a ferry. On 3 February 2006 it
sank in the Red Sea and more than 1,000 people lost their lives. Mr Ismail and
his son were charged with manslaughter. A trial took place before the first
instance Safaga Court of Summary Justice. Neither Mr Ismail nor his son was
present but they were legally represented. Both were acquitted on 27 July 2008.
3.
The prosecution appealed. The respondent and his son were again not
present at the appeal hearing but lawyers appeared on their behalf. The respondent’s
son’s acquittal was affirmed but on 11 March 2009 Mr Ismail was found guilty.
During the hearing before the Appeal Court a lawyer for the prosecution argued
that submissions made on behalf of the respondent and his son should not be
taken into account because neither was present. It appears that this argument
was based on a rule of Egyptian law which requires a defendant to be present in
court during a trial of a misdemeanour punishable by imprisonment. The argument
was accepted. The respondent was sentenced to the maximum term of imprisonment:
seven years, with hard labour.
4.
The respondent and his son had entered the United Kingdom on 26 April
2006. They have remained in this country since then. On 11 October 2010 the
Egyptian authorities requested the Secretary of State to serve the judgment of
the Appeal Court on Mr Ismail. In July 2011 they confirmed that request. On 3
August 2011 the Secretary of State informed the respondent that she intended to
serve the judgment. In a letter before claim dated 18 August 2011, Mr Ismail’s
solicitors submitted to the appellant that she would be acting unlawfully if
she acceded to the request to serve the judgment. Various reasons were given.
5.
Further representations were made on Mr Ismail’s behalf between August
2011 and January 2012. These prompted an inquiry by the Secretary of State of
the Egyptian authorities as to the effect that service of the judgment would
have on the respondent. She was informed that the judgment of the Appeal Court,
having been given in the respondent’s absence, could be appealed by means of an
objection and this could be done by a lawyer acting on the respondent’s behalf;
time for the lodging of objection (ten days) would begin to run when the
judgment was served; if the respondent failed to appeal, the judgment would
become final but, in that event, it could be appealed to the Court of
Cassation; and if the respondent lodged an objection, he would have to attend
the hearing of the appeal in person.
6.
On 23 May 2012 the Secretary of State informed Mr Ismail’s solicitors
that she intended to serve the judgment on him. On 20 June 2012 a claim for
permission to apply for judicial review of that decision was made. Permission
was refused on the papers by Haddon-Cave J on 10 October 2012. A renewed application
was made and the matter was listed for a rolled-up hearing before Goldring LJ
and Wyn Williams J on 12 February 2013. Permission to apply for judicial review
was given during the hearing and on 26 March 2013 the High Court delivered its
reserved judgment, allowing the respondent’s claim for judicial review. On the
Secretary of State’s application, the High Court certified two points of law of
general public importance:
“1. What is the extent of
the Secretary of State’s discretion when serving a foreign judgment under
section 1 of the Crime (International Co-operation) Act 2003?
2. May a person’s article
6 rights be engaged on service by the Secretary of State of a foreign judgment
under section 1 of the Crime (International Co-operation) Act 2003?”
The judgment of the High Court
7.
The High Court considered three grounds advanced on behalf of Mr Ismail.
The first of these was that the Secretary of State had been wrong in her
analysis of the extent of the obligations imposed on her by article 6 of the
European Convention on Human Rights and Fundamental Freedoms (ECHR). The second
ground was that the Secretary of State adopted an irrational and unlawful
approach in exercising her discretion as to whether or not to accede to the
request to serve the judgment on Mr Ismail. Finally, it was argued that the
Secretary of State, in her consideration of articles 2, 3 and 8 of ECHR, had
failed to take into account all relevant circumstances.
8.
Goldring LJ (who delivered the judgment of the court) dealt first with the
second of these arguments. He held (in para 63) that, in exercising her
discretion under section 1 of the 2003 Act, the Secretary of State could not
ignore evidence of obvious illegality or bad faith in the proceedings which had
led to the request to enforce a foreign judgment. Nor could she fail to have
regard to evidence in relation to the manner in which the judgment had been
obtained. She was also obliged to take into account the consequences for the
person on whom the judgment was to be served.
9.
The consequences which the court considered would ensue for the
respondent by service of the judgment were summarised in paras 67 and 68:
“67. Service of the judgment
would have serious implications for the claimant both in Egypt and the United
Kingdom. It would set time running for finalising the judgment. He would have
two options: return to Egypt and begin to serve the prison sentence of seven
years with hard labour and appeal or remain in the United Kingdom and suffer
the consequences of a final judgment.
68. Remaining in the United
Kingdom would have significant consequences for the claimant once the judgment
is served. Although there is presently no extradition arrangement between the
United Kingdom and Egypt, on any request for extradition, the claimant could
not dispute the facts. Egypt would then be seeking the extradition of a man
guilty of manslaughter. Of course, the claimant would have the protection
rights under Part 2 of the Extradition Act 2003. Further, a final judgment in
the United Kingdom might well lead to an Interpol ‘red notice’. He could not
then leave the United Kingdom for fear of being arrested.”
10.
On the question of whether the proceedings before the court of appeal in
Egypt were tainted by illegality or bad faith, Goldring LJ (in para 72)
referred to four factors which, he said, constituted “sufficient evidence for
the Secretary of State to have considered whether this was a judgment obviously
obtained in flagrant disregard of justice; in other words, in bad faith” (para
73). Those factors were: (i) the background of public pressure after the
respondent’s acquittal for him to be convicted; (ii) the fact that two of the
three judges due to hear the appeal were replaced shortly after their
appointment by two men who had worked in the prosecutor's office at the time of
the investigation; (iii) in the course of the appeal hearing, the respondent’s
legal representation was effectively withdrawn; and (iv) there were grounds to
question whether the judgment could be sustained on a proper analysis of the
facts.
11.
On the first ground advanced on Mr Ismail’s behalf (that the Secretary
of State had been wrong in her understanding of the duties imposed on her by
article 6 of ECHR), Goldring LJ said (in para 100) that it was “very difficult as
a matter of principle to distinguish between enforcing a judgment and directly
assisting in the enforcement of it” in circumstances such as arose in Mr
Ismail’s case. He considered, therefore, that there was sufficient evidence for
the Secretary of State to consider whether article 6 was engaged. He made the
following observation at para 102, however:
“For article 6 to be engaged the
disregard of a person’s article 6 rights must be flagrant. The test is a very
high one. Some indication of that can be gauged from the fact that over the
past 20 years article 6 has not been successfully invoked in an extradition
context. Even in a case where defence counsel was appointed by the public
prosecutor, the applicants were held incommunicado until trial, the hearing was
not public and closed to the defence lawyers and self-incriminating statements
were obtained in highly doubtful circumstances, extradition was permitted (see
Lord Brown’s speech in RB (Algeria) v Secretary of State for the Home
Department [2010] 2 AC 110). That underlines how very exceptional must be
the circumstances to result in the application of article 6 in a case such as
the present.”
12.
In light of the court’s findings on the first two grounds, Goldring LJ
said that it was unnecessary to consider the final ground “to any degree”. He
reflected that, since the service of the judgment would have an impact on the
respondent’s family life, the extent and proportionality of any interference
with it would have to be assessed. He made an incidental comment on medical
evidence that had been submitted on behalf of Mr Ismail. This consisted of
three reports from a Professor Kopelman, the last of which suggested that the
respondent’s poor mental condition would worsen if the judgment was served on
him. Goldring LJ said (at para 103) that the Secretary of State’s concerns
about this - she had said that the claims made about Mr Ismail’s health were
“unrealistic” - may have been “entirely justifiable”.
The appeal before this court
13.
For the Secretary of State, Mr Perry QC described the principal question
on the appeal as being whether the service of a foreign judgment was capable of
engaging the article 6 rights of the individual who is served with the
judgment. He submitted that service of such a judgment could not engage article
6 for two reasons: first, service of a foreign judgment does not have the
direct consequence of exposing the individual on whom it is served to a breach
of any fair trial guarantee; secondly, the consequences of service are not of a
type or nature to warrant the engagement of article 6 rights.
14.
Mr Perry claimed that it was beyond dispute that service of the judgment
on the respondent would have had no direct effect on his rights in this
jurisdiction. The only practical effect of service would have been to start the
timetable for further appellate proceedings in Egypt. This would in turn
require the respondent to decide whether or not to attend those appeal
proceedings. Service of the judgment would make no difference to his ability to
remain in the United Kingdom, nor would it have any effect on the conditions in
which he lived here. By recognising the possible engagement of article 6, the
High Court’s judgment had impermissibly extended the reach of ECHR to a
category of cases to which it had not previously been applied.
15.
On the second issue on which a question had been certified (the extent
of the Secretary of State’s discretion when serving a foreign judgment under
section 1 of the 2003 Act), Mr Perry submitted that it was not incumbent on the
Secretary of State to investigate the fairness of proceedings in a foreign
state where she is asked to serve or facilitate the service of a foreign
judgment. To impose such a duty would run counter to the purpose of the 2003
Act in that such an obligation would impede the ability of the Secretary of
State to offer speedy and effective procedural assistance to the competent
authorities in other sovereign states.
16.
The High Court was wrong, Mr Perry argued, to treat mere service of
process as giving rise to similar duties to those which might attend
recognition and enforcement of such process. The two were conceptually and, as
a matter of practicality, fundamentally different. The recognition and
enforcement of a foreign judgment could have the consequence of directly
exposing an individual to a possible breach of his article 6 rights, as in the
case of extradition. Mere service of process, carrying no such risk (at present
there is no extradition treaty between the UK and Egypt) was of a completely
different order. The possibility that at some time in the future an extradition
treaty might be made between the two countries was remote, Mr Perry said, and,
in any event, a person whose extradition was sought would then have the
protections provided for in Part 2 of the Extradition Act 2003. These include
the prohibition of extradition where that would be incompatible with ECHR
rights.
17.
Mr Perry also argued that the High Court was wrong to suggest that the
issue of a red notice was contingent on the service of the judgment. Article 82
of INTERPOL’s Rules on the Processing of Data explains the purpose of red
notices. It stipulates that such notices are published at the request of a
National Central Bureau or an international entity with powers of investigation
and prosecution in criminal matters in order to seek the location of a wanted
person and his or her detention, arrest or restriction of movement for the
purpose of extradition, surrender, or similar lawful action. It did not depend
on a final judgment having been passed on the person who was the subject of the
notice. In fact, as emerged during the hearing of the appeal before this court,
a red notice had been issued in respect of Mr Ismail.
18.
For the respondent, Ms Montgomery QC suggested that section 1 of the
2003 Act clearly conferred a discretion on the Secretary of State. The
essential question was what the extent of that discretion was and what
considerations the Secretary of State had to take into account in deciding
whether to accede to a request to serve the foreign judgment. In this case
there was a properly arguable case that the Egyptian appeal proceedings were
manifestly unfair. They should be characterised in article 6 terms as amounting
to a “flagrant denial of justice” - Othman v UK (2012) 55 EHRR 1, para 259.
To suggest, as did the appellant, that, acceding to the Egyptian government’s
request to serve the judgment of the appeal court on the respondent would have
involved the discharge of a ‘mere administrative function’ akin to the service
of a claim form in a civil/commercial dispute, was unreal. Where material had
been placed before the Secretary of State which plausibly suggested that there
was inherent and blatant unfairness in the Egyptian trial process, a careful
assessment of the respondent’s representations was needed.
19.
Ms Montgomery accepted that in many cases where service of process was
sought, this would have limited or ancillary consequences in foreign
proceedings. She suggested, however, that this would not invariably be the case
and was not the case here. In this instance, service would have had immediate,
profound, and irreversible consequences for the respondent. It was the single
step necessary to trigger the start of a short period before Mr Ismail’s
conviction and the sentence imposed on him became final. Service of the
judgment dramatically reduced the options available to him. He would either
have to become a fugitive from justice (having declined to return to Egypt, and
having lost forever the opportunity to challenge the allegations), or to have
surrendered to Egyptian custody and begun serving the custodial sentence while
pursuing an appeal before the Egyptian courts.
20.
Contrary to the appellant’s contention, Ms Montgomery submitted that the
service of foreign process was not a purely administrative act; it was, as a
matter of principle, an exercise of sovereignty - Dicey, Morris and Collins
on The Conflict of Laws (15th ed) at 8-049.
21.
It was also wrong, Ms Montgomery argued, to suggest that the effects of
service would only have been felt abroad. Service would have had foreseeable
effects on Mr Ismail in the UK as well. In this jurisdiction the fact that he
had become a fugitive from justice would necessarily have had serious
implications for him: it would have potentially affected his immigration status
and his ability to travel. Most significantly, Mr Ismail would have lost
forever his ability to contest the merits of the criminal case against him and
the effects of that would be experienced by him in this jurisdiction. (As it
happens, Mr Ismail’s immigration status has not been affected. He was granted
indefinite leave to remain on 21 August 2015, following the Egyptian
authorities’ acceptance that the underlying criminal proceedings against him
were time barred, and their withdrawal of their request for service of the
judgment.)
22.
As to the engagement of article 6 of ECHR, Ms Montgomery contended that
this case fell within the existing categories of exception to the ordinary
territoriality principle under article 1 of the Convention. Relying on Soering
v United Kingdom (1989) 11 EHRR 439; Drozd and Janousek v France and
Spain (1992) 14 EHRR 745; Bankovic v United Kingdom (2007) 44 EHRR SE5; and Al-Skeini v United Kingdom (2011) 53 EHRR 18, she claimed that
enforcement of a foreign judgment arising from a flagrantly unfair trial, which
would lead to the imposition of punishment in the form of a fine or detention
in the UK was capable of engaging the appellant’s responsibility under article
6 of ECHR. Although the request for assistance in this instance did not seek
the imposition of a fine or detention on the respondent, it involved the
appellant directly in the process of enforcing the Egyptian judgment. On a
proper analysis, in this case the appellant had been asked to participate in
and to facilitate a critical step in criminal proceedings in a foreign state.
This was not assistance in relation to a collateral feature of an Egyptian
criminal process, or engagement with an ancillary part of it. It was
participation in a key act with substantive consequences: it would have
converted an arguably flagrantly unfair criminal trial process into a final
conviction, accompanied by a lengthy sentence of imprisonment.
23.
By way of alternative argument, Ms Montgomery suggested that, if it was
considered that the case did not come within the already recognised categories
of exception to the territoriality principle, an extension of the existing
categories of extraterritorial application of ECHR to cover the respondent’s
position would be both limited and justified.
The 2003 Act and guidance as to its application
24.
The material parts of section 1 of the 2003 Act are these:
“1. Service of overseas
process
(1) The power conferred by
subsection (3) is exercisable where the Secretary of State receives any process
or other document to which this section applies from the government of, or
other authority in, a country outside the United Kingdom, together with a
request for the process or document to be served on a person in the United
Kingdom.
(2) …
(3) The Secretary of State
may cause the process or document to be served by post or, if the request is
for personal service, direct the chief officer of police for the area in which
that person appears to be to cause it to be personally served on him.”
25.
The tenor of the provision, looked at from a purely textual perspective,
suggests an administrative procedure. It is contemplated that transmission of
the document will be made by post unless personal service has been requested.
This is not indicative of a requirement that there should routinely be an
examination of the proceedings which prompted the request for service of the
judgment in order to investigate whether they were infected by obvious
illegality or bad faith. On the contrary, at first blush, the Secretary of
State’s role might be regarded as that of a cipher, on account of her obviously
occupying the position in the executive through which such requests should
pass. Such a role might be considered to chime well with the preamble to the
2003 Act which states that the purpose of the legislation is, among other
things, to make provision for “furthering co-operation with other countries in
respect of criminal proceedings and investigations”. It might also be
considered to properly reflect the circumstance that there are no express
statutory preconditions on the exercise of the Secretary of State’s power.
26.
As against such considerations, however, is the fact that the Secretary
of State is invested with a power, as opposed to an obligation, to effect
service of the foreign process. And, clearly, it was contemplated that there
would be circumstances in which it would be appropriate not to authorise
service.
27.
Mutual Legal Assistance Guidelines are issued by the Secretary of State
to inform those who wish to make a request under the 2003 Act. The relevant
edition of these guidelines, so far as concerns the present case, is the ninth.
In the seventh edition, however, in passages omitted from the ninth, it was
stated that the central authority (which administered such requests on behalf
of the Secretary of State) should ensure that requests for legal assistance
conformed with the requirements of law in the relevant part of the UK and the
UK’s international obligations and that the execution of particular requests
was not inappropriate on public policy grounds. The ninth edition of the
guidelines presented a different emphasis. It stated:
“The UK reserves the right not to
serve process or procedural documents where to do so could place a person’s
safety at risk. (For example: if the procedural documents reveal the address of
a key witness in a murder trial). Requesting Authorities should therefore
always consider if it is necessary to include details relating to witnesses or
victims in such documents.”
28.
It should be noted that the passages in the seventh edition of the
guidelines which required the central authority to ensure that requests for
legal assistance conformed with the law of the UK and this country’s
international obligations and that the execution of the request was not
inappropriate on public policy grounds applied to both requests for service of
process and legal assistance generally. The appellant has suggested that these
sections were directed to the more intrusive forms of assistance which might be
provided within the United Kingdom such as the execution of search warrants.
29.
The respondent has sought to counter this argument by referring to the
fact that when the Bill which became the 2003 Act was passing through the House
of Lords, the Parliamentary Under-Secretary of State at the Home Office, Lord
Filkin said:
“… Clause 1(3) [section 1(3) of
the enacted legislation] is not an obligatory provision. It contains the word
‘may’. It always remains open to the Secretary of State to decline to comply
with a request. Clearly, there is a burden of responsibility on him when making
an appropriate response to any such request. …”
30.
Evidence of this answer was given to the High Court without objection by
counsel for the Secretary of State. It is doubtful that it would satisfy the
test for admissibility set out in Pepper v Hart [1993] AC 593. In any
event, I do not consider that the statement made by Lord Filkin advances the
respondent’s case. It was an answer given to an inquiry as to what might happen
if a request for service of process came from countries such as Iraq, North
Korea or Zimbabwe. Lord Filkin’s statement did no more than point out that
clause 1(3) was a permissive provision. That is not in dispute. The answer did
not deal with the question at issue here, namely, what steps the Secretary of
State must take to ensure that there is a lawful exercise of her power under
section 1(3).
31.
It appears to me, therefore, that neither Lord Filkin’s answer nor the
quoted passages from the seventh edition of the guidelines betoken an intention
that the Secretary of State should be, in every instance where service of a
foreign judgment is requested, obliged to examine the underlying proceedings
which prompted the request for their consistency with the UK’s standards of
fairness in a criminal trial.
The extraterritorial reach of ECHR
32.
It is well settled (and not in dispute in the present case) that a
person who is physically present in a country which has acceded to ECHR is
entitled to the protections enshrined in the Convention. Moreover, such a
person may invoke his or her rights where the actions of the member state would
expose them to consequences in a non-contracting foreign state which would
amount to a violation of Convention rights.
33.
Thus in Soering v United Kingdom (1989) 11 EHRR 439 the European
Court of Human Rights (ECtHR) held that the extradition of the applicant to the
United States of America would violate his article 3 rights because he would
there be exposed to the risk of the imposition of the death penalty. The violation
arose because, as Goldring LJ put it in para 75 of the High Court’s judgment,
“as a direct consequence of the action of a contracting state an individual
will be subject to proscribed ill-treatment in a foreign state …”
34.
ECtHR was careful to explain, however, the limited nature of this
apparent exception to the territorial reach of the Convention. In para 86 the
court described the limits of that reach in these terms:
“Article 1 of the Convention,
which provides that ‘the High Contracting Parties shall secure to everyone
within their jurisdiction the rights and freedoms defined in Section I,’ sets a
limit, notably territorial, on the reach of the Convention. In particular, the
engagement undertaken by a Contracting State is confined to ‘securing’ (‘reconnaitre’
in the French text) the listed rights and freedoms to persons within its
own ‘jurisdiction’. Further, the Convention does not govern the actions of states
not Parties to it, nor does it purport to be a means of requiring the
Contracting States to impose Convention standards on other states. Article 1 cannot
be read as justifying a general principle to the effect that, notwithstanding
its extradition obligations, a Contracting State may not surrender an
individual unless satisfied that the conditions awaiting him in the country of
destination are in full accord with each of the safeguards of the Convention.”
35.
It was because the actions of the UK authorities, in extraditing the
applicant to a country where he faced the possibility of suffering the death
penalty, facilitated that outcome that a violation of article 3 was held to be
present. In effect, the UK would have been directly instrumental in exposing
Soering to the risk of being executed. Properly understood, therefore, this was
not an instance of extending the territorial reach of ECHR. It was the decision
to extradite, taken within this jurisdiction, that constituted
the breach of article 3. It is, of course, true that the actual transgression
of article 3 would take place outside the espace juridique of the
Council of Europe but the decision of UK authorities which, it was held, would
expose the applicant to the risk of execution was taken within this
jurisdiction.
36.
Thus understood, Soering provides an obvious contrast with Mr
Ismail’s case. The decision of the Secretary of State to serve the judgment on
him did not expose him to the risk of violation of his Convention rights. It is
undoubtedly true that service of the judgment would have placed Mr Ismail in
something of a dilemma. But it is no part of the Secretary of State’s function
to take steps to relieve him of the need to confront that dilemma. Avoidance of
the consequences of the judgment becoming final lay in Mr Ismail’s hands. He
could - as he did - simply decide not to return to Egypt. That may not have
been a pleasant prospect but it is a very far cry from saying that his having
to face it amounted to a possible violation of his article 6 rights.
37.
It is important to recognise that ECtHR in Soering found that the
liability of the UK for a breach of article 3 arose as a direct consequence of
the actions of UK authorities. At para 91, the court said:
“In so far as any liability under
the Convention is or may be incurred, it is liability incurred by the
extraditing Contracting State by reason of its having taken action which has
as a direct consequence the exposure of an individual to proscribed
ill-treatment.” (emphasis supplied)
38.
Again the contrast with the respondent’s position is clear. Service of
the Egyptian court’s judgment does not have the direct consequence of his
becoming exposed to “proscribed ill-treatment”. Even if one assumes that his
return to Egypt would involve his being vulnerable to treatment that would, if
it occurred within one of the contracting states, amount to a violation of a
Convention right, this can on no account be said to be the “direct consequence”
of the Secretary of State having served the judgment on him. Service of the
judgment did not require him to return to Egypt. It may be said to have reduced
his options but this is quite different from its carrying as an inevitable
outcome his exposure to violation of his rights. As I have observed, avoidance
of that consequence clearly lay within Mr Ismail’s control. He may have been
faced with an unpalatable choice by the service of the judgment on him but that
is quite a different matter from the Secretary of State having taken action
which had as a direct consequence the respondent’s exposure to a violation of
his Convention rights.
39.
Breach of an individual’s rights within a contracting state can arise
from actions taken outside the state by a non-contracting country. As the
judgment in Drozd and Janousek v France and Spain (1992) 14 EHRR 745
illustrates, where a judgment which has been obtained in a non-contracting state
is enforced in a member state, notwithstanding the fact that it was obtained in
circumstances which would have amounted to breach of a Convention right, it may
render its enforcement in a member state a violation of that state’s ECHR
obligations. This can only occur if the circumstances in which the judgment was
obtained amounted to a “flagrant denial of justice” - para 110 and the
concurring opinion of Judge Matscher in Drozd. That argument can be left
aside for the present appeal. The issue is whether the service of a judgment
can be regarded as akin to its enforcement.
40.
Goldring LJ considered that no practical distinction could be drawn
between service of the judgment and its enforcement. At para 70 he said that by
serving the judgment the Secretary of State would be directly assisting in the
enforcement of this Egyptian conviction. He expanded on that thesis in para 100
where he said that it was “very difficult as a matter of principle to
distinguish between enforcing a judgment and directly assisting in the
enforcement of it in such circumstances as the present.”
41.
This finding lies at the heart of the appeal. Is the service of the
judgment part and parcel of its enforcement? Certainly, it is a preliminary
step which, on the available evidence, is at least prerequisite to enforcing
the judgment. But does it give legal force to the judgment or ratify it?
Plainly not. On the contrary section 2(2) of the 2003 Act expressly provides
that no obligation arises under the law of the UK to comply with the process by
virtue of its service. And section 2(3)(a) requires that the process must be
accompanied by a notice drawing to the attention of the person on whom it is
served the provisions of subsection (2).
42.
I consider that a clear distinction can be drawn between serving a
judgment and taking steps to ensure that it is enforced. Enforcement of a
judgment necessarily alters the legal position of the person against whom it
has been obtained. The legal options available to the respondent may have been
narrowed by service but his essential legal position remained unchanged. Mr
Ismail remained free to stay in the United Kingdom. Any assets that he held in
the UK were unaffected. Service of the judgment on him did not involve any
coercive action against him. Moreover, enforcement of the judgment does not
flow inexorably from its having been served. It may have been a stage in the
process but it did not signify that that process would inevitably continue to
its ultimate destination.
43.
Indeed, by serving the judgment, the Secretary of State was in no sense
committed to authorising its enforcement. Very different considerations would
have been in play if she had been asked to take the necessary steps to enforce
it - presumably, by agreeing to extradite the respondent. Then, as Mr Perry has
pointed out, she would be required to observe the obligations imposed on her by
the Extradition Act. These would include the duty to ascertain whether the
respondent’s extradition to Egypt would be incompatible with any of his
Convention rights - precisely the type of exercise contemplated in Soering and
Drozd. In my opinion, there is no reason that this type of consideration
should be required to take place at the anterior and quite separate stage of
deciding whether to serve the judgment. The Secretary of State was quite
plainly aware that service of the judgment alone carried no risk of the
respondent being exposed to breach of his Convention rights.
Sovereignty
44.
Whether a decision to serve the judgment is to be characterised as a
“purely administrative act” or the exercise of sovereignty does not seem to me
to greatly matter in the present appeal. As Mr Perry submitted, states and
international bodies attach increasing importance to their ability to seek
assistance in criminal matters swiftly and through processes which are easily
accessible. In both Drozd and Willcox v UK (2013) 57 EHRR SE16
the need for strengthening international co-operation has been recognised.
45.
The European Convention on Mutual Assistance in Criminal Matters 1959 is
the primary European instrument providing a framework for mutual legal
assistance between EU member states. This is supplemented by the European
Convention on Mutual Assistance in Criminal Matters (Council Act of 29 May
2000). It provides for the sending and service of procedural documents. Article
5(1) contemplates service being effected directly by post. It provides that
each member state shall send procedural documents intended for persons who are
in the territory of another member state to them directly by post. Article 5(2)
provides a series of exceptions whereby service may be made via the competent
authority of the requested state:
“5(2) Procedural documents may
be sent via the competent authorities of the requested member state only if:
(a) the address of the
person for whom the document is intended is unknown or uncertain; or,
(b) the relevant procedural
law of the requesting member state requires proof of service of the document on
the addressee, other than proof that can be obtained by post; or
(c) it has not been
possible to serve the document by post; or
(d) the requesting member state
has justified reasons for considering that dispatch by post will be ineffective
or is inappropriate.”
46.
The fact that within the European Union the essentially formal and administrative
nature of the exercise of serving process has been given such prominence is not
irrelevant to the approach to the interpretation of section 1(3) of the 2003
Act. It would be inconsistent if service of process emanating from an EU
country should be treated differently from that of a country which is outside
the EU but which enjoys conventional diplomatic relations with the UK. Quite
apart from this, the 2003 Act itself and the guidance issued under it clearly
indicate that service of process would normally be achieved directly by post.
In my opinion, this highlights the predominantly administrative element of this
procedure.
47.
If service of a judgment is to be regarded as an essentially formal act
(as I believe it should be) the question of whether it involves an act of
sovereignty recedes in terms of importance. As the appellant has submitted, the
United Kingdom plainly regards the service of foreign process as trespassing
only in the most minimal way on its sovereignty. Serving a foreign judgment on
a person within the UK does not involve any significant compromise on the
sovereignty of this country.
Consequences
48.
Service of the judgment by the Secretary of State would not, therefore,
have involved an exercise of the UK’s sovereignty nor, for the reasons given
above, would it engage Mr Ismail’s fundamental rights. Indeed, in the
particular circumstances of his case, service would have had no material impact
on Mr Ismail at all.
49.
The High Court considered it to be a significant consequence that he would
be exposed to the risk of service of a so-called red notice. This, I am afraid,
was plainly wrong. Not only was it the case that a red notice had already been
issued in respect of him at the request of the Egyptian authorities, INTERPOL
rules do not require service of a judgment on a person before a red notice can
be issued.
50.
The High Court considered that there were other material consequences
for the respondent of the service of the Egyptian court of appeal’s judgment on
him: (i) he would have two options only; either to return to Egypt and begin to
serve the prison sentence which had been imposed on him or to remain in the UK
and suffer the consequences of a final judgment; and (ii) in the event of an
extradition agreement being concluded between UK and Egypt, he would not be
able to dispute the facts on which his conviction of manslaughter was based.
51.
For the reasons that I have earlier given, I do not consider that the
narrowing of the respondent’s options as described in para 50(i) above is
sufficient to engage article 6 of ECHR. Nor does the prospect of a future
extradition agreement between Egypt and UK, or some other request by Egypt for the
respondent’s extradition, engage article 6 at this stage. If such a
circumstance arises, he will then be entitled to rely on the protections
afforded by the Extradition Act, including invoking the entire panoply of his
article 6 rights.
52.
I am also of the view that the Secretary of State was not, in this case,
under any obligation to investigate further the consequences that would accrue
to the respondent. These were clear. He was entitled to remain in the UK.
Service of the judgment could not affect that situation. His assets in the UK
were unaffected by having had the judgment served. There was a distinct difference,
in terms of its effect on the respondent, between service of the judgment and
seeking to have it enforced.
53.
While I have concluded that, in the respondent’s case, article 6 was not
engaged and that the Secretary of State was not under an obligation to investigate
further the respondent’s claim, it does not follow that there would not be
circumstances in which the service of a judgment would not engage article 6 or
call for further investigation of the basis on which the judgment was obtained.
It is conceivable that service of a judgment, in circumstances different from
those arising in the present appeal, might lead more directly to its
enforcement or other material consequences, or that obvious illegality or bad
faith (that would affect the person on whom service was made in a way that does
not arise for Mr Ismail) would warrant a more probing inquiry. On the issue identified
by Mr Perry (para 13, above) I therefore consider that it may well be possible
in certain cases for service of a foreign judgment to engage article 6. This is
not such a case, however.
Conclusion
54.
I would allow the appeal and dismiss the application for judicial review
of the Secretary of State’s decision.
