New Judgment: R (Ismail) v Secretary of State for the Home Department  UKSC 37
06 Wednesday Jul 2016
On appeal from:  EWHC 663 (Admin)
The Supreme Court has unanimously allowed the Secretary of State’s appeal, in a case that considered the extent to which the Secretary of State had discretion under the Crime (International Co-operation) Act 2003, s 1(3) to serve a judgment of an overseas court when requested. The case also required the Supreme Court to consider whether ECHR, art 6 had a role to play in that situation.
The respondent, an Egyptian national, had been a chairman of a company that operated a ferry which sank in Egypt and caused the death of over a thousand people. He came to the United Kingdom shortly after the incident, and was tried in his absence in Egypt for charges of causing death by negligence and not observing laws and regulations. He was legally represented. While he was initially acquitted, this was later overturned, and he was sentenced to seven years’ imprisonment and hard labour. The Egyptian authorities asked the UK to serve a copy of the final judgment on the respondent, and the Secretary of State indicated that she intended to do so. An application to review the decision to serve judgment was made, and permission was granted. The High Court granted the respondent’s application. However, it certified two points of law of general public importance, which were pursued in this appeal.
Lord Kerr gave the only judgment.
The Supreme Court formed the view that the words of the statute in question suggested an administrative procedure that did not routinely require examination of the proceedings that led to the request for service. However, service was framed as a power rather than an obligation, so there would be situations where it was inappropriate.
While the respondent was entitled to ECHR, art 6 rights as a result of his presence in the UK, the mere service of the judgment would not violate this right. It would merely create a dilemma for the respondent as to whether to appeal it in Egypt or risk it becoming final. He could avoid rights violations by remaining in the UK. There was no obligation on the Secretary of State to further examine the consequences on the respondent.
However, there were situations where service would engage art 6. For instance, this may be the case where service leads more directly to enforcement or has more material consequences for the individual.