Mustapha Labsi, R (on the application of) v Secretary of State for Home Department

On a renewed application for permission to challenge extradition, the court held that concerns about the fairness of a foreign trial may properly be left to the foreign courts where applicable Convention safeguards form part of their domestic law. A possible future removal from the receiving state will not make extradition unlawful merely because removal is conceivable. The relevant question is whether there is a real risk of treatment contrary to Article 3 ECHR, assessed on the evidence and having regard to the receiving state’s legal obligations. The possibility that time already spent in custody may equal or exceed a likely sentence does not, without more, make extradition unjust, oppressive or wrong where the allegations concern terrorism and the custody will be credited.

This was a renewed application for permission to seek judicial review of the Secretary of State’s decision to order the claimant’s extradition to France under section 12(1) of the Extradition Act 1989. The claimant challenged the decision on three grounds: the fairness of the French judicial process, including his medical condition; the effect of his time already spent in custody in the United Kingdom; and the possibility that France might later remove him to Algeria in breach of Article 3 ECHR.

Permission had previously been refused on the papers. The court received further submissions after the decision in Ramda [2005] EWHC 2526 (Admin). The central issue was whether any proposed ground was arguable on judicial review.

1. Permission refused. The proposed challenge was unarguable. The court considered that conclusion even stronger following Ramda [2005] EWHC 2526 (Admin).
2. The Secretary of State was entitled to rely on the incorporation and superior status of Article 6 ECHR in French law. The fairness of the claimant’s trial could safely be left to the French courts, which were bound by the Convention and provided procedural safeguards. The reasoning in Ramda supported that conclusion.
3. The fact that time spent in custody in the United Kingdom might equal or exceed a likely French sentence did not make extradition unfair, oppressive or wrong. The custody would be taken into account in France. The public interest in securing convictions for alleged offences connected with terrorism remained significant, independently of sentencing consequences.
4. The possibility of later removal from France to Algeria did not establish an arguable Article 3 claim. The Secretary of State had adopted a rational approach and was entitled to conclude that there was no real risk of removal in breach of Article 3. Article 3 formed part of French law and operated as superior law. The absence of evidence that France deported Algerians where a real risk of Article 3 ill-treatment was shown was material. The reasoning in Ramda was directly applicable; the different length of the possible sentence in that case did not weaken its primary reasoning.

This was a renewed application for permission to apply for judicial review after permission had been refused on the papers by Mr Justice Stanley Burnton. The Divisional Court refused permission.