Ramda v Secretary of State for the Home Department & Anor

In extradition proceedings, the Secretary of State must consider whether surrender would expose the requested person to a real risk of a flagrant denial of justice or treatment contrary to Convention rights. The assessment concerns the prospective trial viewed in the round. Questions about admissibility and weight of evidence ordinarily belong to the requesting state’s trial court, unless admission would inevitably make the trial unfair, such as where evidence was obtained by torture.

A finding that the requesting state acted in bad faith requires strong evidence, particularly where friendly-state comity applies. The Secretary of State may rely on an explanation that inaccurate information resulted from administrative oversight. He need not conduct a rehearsal of the foreign trial, and may assess risk on the available evidence without making definitive findings where the evidence is incomplete.

The claimant sought judicial review of the Secretary of State’s decision of 6 April 2005 ordering his extradition to France under section 12 of the Extradition Act 1989. France sought his return for trial concerning terrorist bombings and alleged participation in a terrorist criminal association.

The challenge concerned alleged bad faith by the French authorities, the fairness of a prospective French trial in light of statements allegedly obtained from Boualem Bensaid by ill-treatment, and the risks of ill-treatment in France or later removal to Algeria. The Secretary of State had reconsidered the matter after an earlier decision of the Divisional Court had quashed an extradition decision. The central questions were whether the Secretary of State had sufficient information, applied the correct legal tests and reached rational conclusions.

1. Outcome. The application for judicial review was dismissed. The Secretary of State had sufficient information to exercise his statutory and general discretionary powers, and his conclusions were not irrational or ultra vires.
2. Legal framework. Under section 12 of the Extradition Act 1989, the Secretary of State must consider whether return would be unjust or oppressive, including because an accusation was not made in good faith in the interests of justice. The general discretion also required consideration of whether surrender would be wrong, unjust or oppressive: Atkinson v United States of America Government [1971] AC 197. Section 6(1) of the Human Rights Act 1998 prohibited action incompatible with Convention rights.
3. Fair trial. The relevant test was whether there was a real risk of a flagrant denial of justice, applying Soering v United Kingdom [1989] 11 EHRR 439. Article 6 generally requires assessment of the prospective trial as a whole. The admissibility of evidence is normally for the requesting state’s courts: R (Abdullah) v Secretary of State for the Home Department [2001] EWHC Admin 263. An exception may arise where admission would inevitably make the trial unfair, including evidence obtained by torture, as recognised in Montgomery v Lord Advocate [2003] 1 AC 641.
4. The court distinguished A and others v Secretary of State for the Home Department [2004] EWCA Civ 1123, because that decision concerned statutory proceedings under sections 21 to 23 of the Anti-Terrorism Crime and Security Act 2001, rather than a criminal trial.
5. The Secretary of State was entitled to prefer the expert evidence that the claimant could raise the alleged ill-treatment at his own French trial and that the French courts could investigate it and take appropriate steps. Article 6 formed part of French domestic law and had superior force. There was no evidence that the French courts would fail to apply it.
6. Bad faith and risk. Strong evidence was required before finding that an extradition request was made in bad faith, reflecting comity between friendly states: Re Arton [1896] 1 QB 108. The Secretary of State could reasonably conclude that inaccuracies in an affidavit resulted from administrative oversight rather than deliberate deception. He could also proceed on the basis that there was evidence that Bensaid might have been assaulted, without deciding definitively what had occurred.
7. The Secretary of State rationally concluded that the claimant was not at real risk of ill-treatment in France because he would not be interviewed by French police, considerable time had passed, and legal protections existed. A possible future removal to Algeria was too speculative, particularly given the likely lengthy sentence, and there was no evidence of a real risk of Article 3 ill-treatment.
8. The Secretary of State was not required to conduct an elaborate rehearsal of the foreign trial, following ex parte McQuire [1996] ALR 534.

The judgment records that an earlier Divisional Court decision in June 2002 quashed the Secretary of State’s previous extradition decision and remitted the matter for reconsideration. The present Divisional Court reviewed the Secretary of State’s subsequent decision of 6 April 2005 and dismissed the claim.