Case Comment: R (Ismail) v Secretary of State for the Home Department  UKSC 37
31 Monday Oct 2016
The Supreme Court has held that the Secretary of State is free to order service of documents on a person within the jurisdiction and that doing so is an administrative process and not one that attaches to it obligations on the Secretary of State to investigate the nature of the proceedings behind the request.
Mr Ismail was Chairman of a company which operated a ferry. In 2006, that ferry sank and more than 1,000 people died. Mr Ismail was subsequently found guilty of manslaughter in Egypt. The judgment was reached in his absence and submissions made by legal counsel on behalf of Mr Ismail were disregarded on the basis of his non-attendance.
In April 2006 Mr Ismail entered the United Kingdom and he has remained here since.
In 2010 the Egyptian authorities made a request to the Secretary of State for the judgment to be served on Mr Ismail. The Secretary of State advised Mr Ismail that she intended to serve the judgment and an application for permission for judicial review was made by Mr Ismail in response.
The grounds for judicial review were as follows:
(1) That the Secretary of State had been wrong in her analysis of the extent of the obligations imposed on her by Article 6 ECHR.
(2) 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 judgement on Mr Ismail.
(3) That the Secretary of State, in her consideration of Articles 2, 3 and 8 ECHR, had failed to take into account all relevant circumstances.
The relevant provision considered is section 1 of the Crime (International Co-operation) Act 2003. The key parts of that section, as cited by the Supreme Court, are as follows:
(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.
(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
High Court Decision
The High Court considered that the Secretary of State was obliged to consider obvious illegality or bad faith in the proceedings underlying a request for assistance with enforcement. He went on to find that it was “very difficult as a matter of principle to distinguish between enforcing a judgment and directly assisting in the enforcement of it“, suggesting that in serving the judgment, the Secretary of State could, in some way, be held to have been taking steps to assist enforcement.
It was therefore considered that the Secretary of State should have considered whether Article 6 applied. However, Goldring LJ advised that “for article 6 to be engaged the disregard of a person’s article 6 rights must be flagrant“, noting that “the test is a very high one“.
Decision of the Supreme Court
In a ‘leapfrog’ appeal, the Supreme Court considered the wording of section 1 of the 2003 Act and held that “the tenor of the provision, looked at from a purely textual perspective, suggests an administrative procedure”. Lord Kerr noted in particular the procedural arrangements as set out in the Act and the suggestion that service may be postal. As to this he commented:
“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“.
The Court nonetheless considered the nature of the Secretary of State’s power and the extent to which discretions were provided to her in its exercise. It was highlighted that the Mutual Legal Assistance Guidelines (which are issued to those who wish to make a service request) provide that the UK can refuse to serve process where this would put a person’s safety at risk and that the terms of the 2003 Act use the word “may”, rather than “must”.
The Court also examined the application of the ECHR to persons within the jurisdiction. Particular regard was given to the case of Soering v United Kingdom (App. No. 14038/8), where it was held that allowing an extradition of a party to the United States would constitute a violation of that person’s Article 3 rights, as he would be exposed to the risk of the application of the death penalty as a direct consequence of the extradition.
It was concluded 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”.
However, Soering was distinguished from the present case on the basis that “[t]he decision of the Secretary of State to serve judgment on [Mr Ismail] did not expose him to the risk of violation of his Convention rights“. This finding was based upon the proposition that harm to Mr Ismail would not be a direct consequence of service of the judgment. He was not being forced to leave the UK, nor were his assets in the UK being affected. Any harm that could arise to Mr Ismail would be as a consequence of his return to Egypt and there was nothing in the service of the judgment that forced Mr Ismail to make such a return.
The Court therefore concluded that the service of a judgment on a party is a purely procedural and administrative act, and not one that invokes ECHR considerations or obligations. The Secretary of State, in serving the judgment, was not directly causing or facilitating any harm to Mr Ismail and was therefore not in breach of any human rights obligations.
It is important to note that the Court emphasised the distinction between service of process and enforcement, advising that “very different considerations would have been in play” if any enforcement steps had been taken and also that it was “conceivable” that other cases could emerge where mere service of a judgment could lead more directly to enforcement or “other material consequences” and that in such circumstances a “more probing inquiry” may be required.
It can be seen that the Court in this case has taken a very pragmatic approach and sought to distinguish between merely administrative actions which carry with them no direct threats of harm, and more proactive steps which of themselves cause a direct consequence which may be in breach of an individual’s rights.
Continuing in this pragmatism, the Court has been careful not to overstate the position reached and has left it open for more complicated or concerning cases to be dealt with in a different manner.
Parties must therefore, when considering the application of human rights to the service of documents, consider the different consequences of that service and whether (a) these are direct or indirect, (b) whether these necessarily result in harm to the recipient, and (c) whether the recipient has any control over which of the possible consequences will, in fact, apply.