R v Secretary of State for the Home Department

The service of foreign criminal process under section 1 of the Crime (International Co-operation) Act 2003 is ordinarily a formal, administrative act. The Secretary of State need not routinely investigate the fairness of the underlying foreign proceedings.

Service must be distinguished from enforcement. Article 6 is not engaged unless service itself has a sufficiently direct connection with enforcement or other material consequences capable of exposing the recipient to a flagrant denial of justice. A narrowed or unattractive choice, where the recipient remains free to avoid the feared treatment, is insufficient.

Exceptional circumstances may nevertheless require further inquiry. These may include service leading more directly to enforcement, materially affecting the recipient, or involving obvious illegality or bad faith with relevant consequences.

The Egyptian authorities asked the Secretary of State to serve an Egyptian appellate judgment on the respondent under section 1 of the Crime (International Co-operation) Act 2003. The judgment convicted him of manslaughter and imposed seven years’ imprisonment with hard labour. Service would start a ten-day period for objecting to the conviction.

The respondent sought judicial review, alleging serious unfairness in the Egyptian proceedings and adverse consequences from service. The High Court allowed his claim in [2013] EWHC 663 (Admin). It held that the Secretary of State had to consider whether the foreign judgment had been obtained through obvious illegality or bad faith and whether article 6 was engaged.

The central issues were the scope of the Secretary of State’s discretion under section 1 and whether service of a foreign judgment could engage article 6.

1. The appeal was allowed unanimously and the judicial review claim was dismissed. Lord Kerr gave the judgment, with which Lady Hale, Lord Sumption, Lord Hughes and Lord Toulson agreed.

2. Section 1 of the Crime (International Co-operation) Act 2003 creates a power rather than a duty to serve foreign process. Its language, statutory purpose and provision for postal service show that the procedure is predominantly formal and administrative. Neither the earlier guidance nor the ministerial statement relied upon required the Secretary of State routinely to investigate whether the underlying foreign proceedings complied with domestic standards of criminal fairness.

3. A clear distinction exists between service and enforcement. Enforcement alters the legal position of the person concerned and may involve coercion. Service did not give the Egyptian judgment legal force in the United Kingdom, affect the respondent’s assets or residence, or compel his return to Egypt. Section 2(2) expressly provided that service created no obligation under domestic law to comply with the process.

4. The principle in Soering v United Kingdom (1989) 11 EHRR 439 depended upon action of a contracting state having the direct consequence of exposing a person to prohibited treatment abroad. Service did not have that consequence. It left the respondent free to remain in the United Kingdom. The fact that it reduced his options or presented an unattractive choice did not engage article 6.

5. The possible future enforcement of the judgment, including through extradition, did not engage article 6 at the service stage. If extradition were later sought, the respondent could invoke the protections of Part 2 of the Extradition Act 2003, including Convention rights. A red notice was not dependent upon prior service and had already been issued.

6. The Secretary of State therefore had no obligation on these facts to investigate further either the fairness of the Egyptian proceedings or the consequences of service. Article 6 was not engaged.

7. The court did not establish an absolute rule. Service could conceivably engage article 6 or require further inquiry where it led more directly to enforcement or other material consequences. Obvious illegality or bad faith might also justify a more probing inquiry where it affected the recipient in a materially different way.

1. United Kingdom Supreme Court: In [2016] UKSC 37, unanimously allowed the Secretary of State’s appeal and dismissed the application for judicial review.

2. High Court, Administrative Court: In [2013] EWHC 663 (Admin), allowed the respondent’s judicial review claim. It certified questions concerning the Secretary of State’s discretion under section 1 of the Crime (International Co-operation) Act 2003 and the possible engagement of article 6.