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

Extradition under the Extradition Act 2003 is incompatible with Article 6 where there is a real risk of a flagrant denial of justice in the requesting state. A real risk is substantial and not fanciful; it does not require proof on the balance of probabilities. The assessment must consider the trial process in its practical and political context. Serious difficulties in securing defence witnesses, combined with evidence that the proposed tribunal may lack independence and impartiality, can satisfy the test. Written legal safeguards are insufficient where there is little evidence that they operate in practice. The court may determine the issue afresh on an appeal under section 103. Extradition appeals were allowed, and the judicial review claim was dismissed.

Four appellants faced extradition to Rwanda to stand trial for genocide-related offences. The Secretary of State made extradition orders under section 93(4) of the Extradition Act 2003, following the decision of District Judge Evans to send the cases to her under section 87(3).

The appellants appealed against both decisions and, in the case of CU, sought judicial review of the Secretary of State’s order. The principal issue was whether extradition would expose them to a real risk of a flagrant denial of a fair trial, particularly because of difficulties in presenting defence evidence and alleged political influence over the Rwandan High Court.

1. Appeals allowed. The court allowed all four appeals under sections 103 and 108 of the Extradition Act 2003. The appellants were entitled to be discharged. CU’s application for judicial review was dismissed.
2. Under Article 6, the governing question was whether extradition created a real risk of a flagrant denial of justice. “Real risk” meant a substantial, not fanciful, risk. It did not require proof on the balance of probabilities. The court was required to determine the issue for itself on the statutory appeal.
3. The evidence showed a substantial risk that potential defence witnesses in Rwanda and abroad would be unwilling to testify because of fear of intimidation, arrest, prosecution, detention or violence. The availability of video-link evidence was uncertain, particularly in extradition cases not transferred from the ICTR. There was no satisfactory evidence that the safeguards in the Organic Law would operate effectively in practice.
4. The witness problem could not be viewed in isolation from the independence and impartiality of the proposed tribunal. The political character of the Rwandan state, restrictions on dissent and press freedom, evidence of interference with judicial proceedings, and the treatment of the Bizimungu case supported a real risk that the High Court would not act as an independent and impartial tribunal.
5. The court accorded considerable weight to recent ICTR decisions refusing transfer to Rwanda because of difficulties concerning defence witnesses. Improvements in Rwanda’s legal system did not justify extradition as a means of encouraging further reform. The court had to apply the legal test objectively.
6. The challenge based on the Memoranda of Understanding failed. The Secretary of State’s statutory duty under section 93(4) could not be overridden by legitimate expectation, and the MoUs did not impose a lower fair-trial threshold. The arguments concerning passage of time, the section 84 case-to-answer requirement and the individual disclosure complaints also failed.
7. Because executive interference with the judiciary created a real risk that Rwanda would not honour speciality arrangements, the appeals against the Secretary of State’s orders succeeded under section 108.

• City of Westminster Magistrates’ Court: District Judge Evans found that the statutory requirements were met and sent the cases to the Secretary of State under section 87(3) of the Extradition Act 2003.
• Secretary of State: Extradition orders were made on 1 August 2008 under section 93(4).
• High Court (Administrative Court): The appeals against both the magistrates’ court decision and the extradition orders were allowed. CU’s judicial review application was dismissed.