Brown (aka Vincent Bajinja) & Ors v Government of Rwanda

A certification application will be refused where the proposed question does not arise on the material facts found by the court. A later authority on Article 6 must be applied with regard to the factual circumstances of the receiving state and the prospective consequences of an unfair trial. Material differences, including the practical ability to present a defence and the risk of executive interference with the judiciary, may mean that the authority does not support a different result.

The Government of Rwanda applied for certification of two questions for an appeal to the House of Lords following the court’s judgment in the appellants’ extradition appeals. The proposed questions concerned the Article 6 test for a flagrant denial of justice in a foreign trial and the court’s jurisdiction under sections 108 and 109 of the Extradition Act 2003 concerning speciality arrangements.

The application relied principally on RB (Algeria) (FC) and another v Secretary of State; OO (Jordan) v Secretary of State. The court considered whether that decision raised a point of law capable of affecting its conclusions on the evidence.

1. The application to certify the first question was refused. The court held that the proposed question did not arise from RB (Algeria) (FC) and another v Secretary of State; OO (Jordan) v Secretary of State in a way that could promote a different result.

2. The court distinguished the factual circumstances considered in that authority. There, the relevant tribunal lacked independence, but the evidence did not establish that convictions were foregone conclusions or that the court would act arbitrarily. In the present appeals, by contrast, the court had found substantial difficulties in obtaining supporting witnesses, a real risk of executive interference with the judiciary, and a real risk of a flagrant denial of justice.

3. The court noted that the likely life sentences, if imposed after an unfair trial, would amount to a serious violation of substantive rights. That consequence, together with the identified defects in the trial process, meant that the reasoning relied upon by the Government did not justify certification.

4. The second proposed question concerning sections 108 and 109 of the Extradition Act 2003 was parasitic upon the first. It was therefore unnecessary to consider it. The appeals remained successful, and the extradition orders were discharged and quashed. Detailed assessment was ordered for the purposes of the Legal Services Commission.

• High Court (Administrative Court): allowed the appellants’ appeals against the District Judge’s decision to send the cases to the Secretary of State and against the extradition orders. On the present ruling, certification of two proposed questions was refused.