Ismail v Secretary of State for Home Department

The Secretary of State’s power under section 1(3) of the Crime (International Co-operation) Act 2003 to serve an overseas criminal judgment is discretionary and must be exercised lawfully. Although mutual legal assistance and comity will ordinarily be decisive, the discretion cannot disregard compelling evidence that the judgment was obtained in obvious illegality or bad faith, nor the significant consequences of service in the United Kingdom. In exceptional cases, greater scrutiny is required. Service may engage Article 6 where it directly assists enforcement of a foreign conviction obtained through a flagrant denial of justice. The decision was quashed and remitted for reconsideration.

The applicant, an Egyptian national resident in the United Kingdom, challenged the Secretary of State’s decision to comply with Egypt’s request for personal service of an Egyptian appellate criminal judgment convicting him and imposing seven years’ imprisonment. He contended that the underlying proceedings involved a flagrant denial of justice and that service would have serious consequences in Egypt and the United Kingdom.

Mr Justice Haddon-Cave had refused permission for judicial review on paper. At the rolled-up hearing, the Administrative Court granted permission and considered whether the Secretary of State had lawfully exercised her discretion under section 1(3) of the Crime (International Co-operation) Act 2003, and whether Article 6, Articles 2, 3 and 8 of the Convention were engaged.

1. Disposition. Permission was granted. The Secretary of State’s decision was quashed and the matter remitted for reconsideration.
2. Service under section 1(3) of the Crime (International Co-operation) Act 2003 is an exercise of state power. The discretion is shaped by the Act’s purpose of promoting international criminal co-operation, comity and the United Kingdom’s interests in mutual assistance, but it is not unlimited.
3. The distinction between section 1 service and section 13 assistance is material. Service will usually be administrative and have little domestic effect. Its practical effect varies by case. The Secretary of State must consider the consequences of service and cannot ignore evidence of obvious illegality or bad faith. Such matters may be compelling reasons not to comply with a request, although refusal will remain rare and exceptional.
4. On the evidence, there were substantial concerns about public pressure following the applicant’s acquittal, the replacement of judges, the effective withdrawal of the applicant’s legal representation and the factual basis of the appellate judgment. The Secretary of State therefore had to consider whether the judgment had been obtained in flagrant disregard of justice and had a wider discretion than she recognised.
5. Article 6 is principally territorial, subject to exceptional situations recognised in Soering v United Kingdom, Drozd and Janousek v France and Spain and Government of The United States of America v Montgomery. Service ordinarily falls short of enforcement. In this case, however, its significant consequences meant that it would directly assist enforcement of the conviction. It was therefore capable of engaging Article 6 if the conviction resulted from a flagrant denial of justice. The threshold is exceptionally high.
6. Service would plainly affect the applicant’s family life, so the extent and proportionality of any interference under Article 8, including the relevance of the conviction, also required consideration. It was unnecessary to determine the remaining Article 2, 3 and 8 issues.

Mr Justice Haddon-Cave refused permission for judicial review on paper. Following a rolled-up hearing, the Administrative Court granted permission, quashed the Secretary of State’s decision and remitted the matter for reconsideration.