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Summary

In late January, the Supreme Court heard a case which considered the extent of the Home Secretary’s discretion when deciding whether to serve foreign judgments on individuals within the UK. Was she obliged to consider what effect such Jack_Kennedy_phservice might have on the individual? And, despite the potential diplomatic and political consequences of doing so, did she have to consider whether the proceedings that gave rise to the judgment were themselves unfair?

Background

This case has its origins in the sinking of the Egyptian El-Salam 98 Ferry (The Boccaccio). The passenger ferry sank in the Red Sea on 3 February 2006 killing over 1000 of its 1400 passengers. The disaster caused a national outcry in Egypt, with calls for the ferry company’s non-executive chairman, Mamdouh Ismail, and his son, Amr Ismail, to be put on trial.

In the furore, Ismail and his son came to the UK. They have not returned to Egypt since. They have, nonetheless, been parties in absentia for two trials in Egypt. The first came in 2008 when they and other co-defendants were acquitted of criminal charges of “wrongful killing and wrongful injury”. Following a further outcry, however, an appeal was lodged.

The appeal hearing took place before three judges, two of whom worked in the prosecutor’s office at the time of the sinking of the ferry. Relying on a provision of Egyptian Law, the court refused to hear submissions on behalf, or evidence in support, of the defendants as they were not in the courtroom. The result, somewhat unsurprisingly, was a judgment “framed in emotional and…extraordinary language” that Mr Ismail’s acquittal should be overturned. He received the maximum sentence of seven years with hard labour.

 

Service of the judgment

Having secured a sentence against Mr Ismail, the next stage was to make sure that he served it. To that end, the Egyptian authorities requested the help of the UK Central Authority to serve a copy of the judgment on Mr Ismail. On learning of this, Mr Ismail appealed to the Home Secretary not to comply with the request for mutual legal assistance citing, inter alia, his depression, the unlawful and improper proceedings that resulted in his conviction, the question of whether the new Egyptian regime would even enforce the judgment, and the strong possibility that he would be subjected to inhumane treatment in Egypt.

The Home Secretary nonetheless concluded that personal service could be effected and that this was an appropriate exercise of her discretion under the Crime (International Cooperation) Act 2003, s.1(3) . Indeed, the most recent guidance on the application of the 2003 Act, the Mutual Legal Assistance Guidelines, appeared to contemplate only one scenario in which service of process or procedural documents would be improper, namely when to do so “could place a person’s safety at risk”. As this was not the case here, the Home Secretary reasoned, service was appropriate.

The claimant disagreed and brought proceedings to the High Court on the following grounds: (1) that the Home Secretary unlawfully and irrationally fettered her discretion; (2) that she erred in her analysis of her obligations under ECHR, art 6; and (3) in light of (1) and (2) she had failed to take into account “all the relevant circumstances”.

 

High Court

The High Court accepted the claimant’s submissions that the Home Secretary took too limited a view as to the scope of her discretion. Service of the judgment was not, as the defendant had argued, a “mere administrative act”. In fact, Goulding LJ suggested that it could amount to “playing a role in enforcing what are on their face, illegal criminal proceedings or criminal proceedings brought in bad faith with significant consequences for the person served”. Those consequences, it was argued, included the issuing of a “red notice” by Interpol and a suggestion that the claimant would be that much more vulnerable to extradition. In such circumstances, Goulding LJ held that the Home Secretary ought to have turned her mind to whether the judgment was “obviously obtained in flagrant disregard of justice; in other words, in bad faith”.

As regards ECHR, art 6, Goulding LJ considered whether its scope extends beyond the territory of contracting states so that it captures potentially unfair trials in non-contracting countries. There is, as the court recognised, considerable jurisprudence addressing the extraterritoriality of Article 6, but largely in the context of extradition. In such cases, the principle has been accepted that an English court might be obliged to refuse to co-operate with a non-contracting state if to do so would be a “flagrant breach of Article 6”. The threshold, therefore, is high. Indeed, even in the context of extradition, Article 6 has not been successfully invoked for over 20 years. However, that is not to say that the Secretary of State should not have considered the consequences of service in light of ECHR, art 6. Again, the court held that service was more than a mere administrative act and, although there was no question of the claimant being extradited, service would still come with significant consequences. As such, consideration of ECHR, art 6 ought to have formed part of the Secretary of State’s decision-making process.

 

Supreme Court

In a leapfrog appeal, the Supreme Court, comprising Lady Hale and Lords Kerr, Sumption, Hughes and Toulson, heard submissions on 26 and 27 January 2016. The case, it is suggested, will be a delicate one for the court. Whilst its principal concern will be the proper delineation of the nature and scope of the Home Secretary’s discretion (including the relevance, if any, of ECHR, art 6), it will be difficult not to bear in mind the potential political and diplomatic consequences of any decision it reaches. That does not mean, of course, that politically considerations should take preference over the law. But, they may well feature, either implicitly or explicitly, in the court’s judgment. And if it is so held that the law requires the Secretary of State to make a determination about the fairness of the Egyptian proceedings, that will undoubtedly make for some uncomfortable discussions at the Home Office.