The Supreme Court held that the Home Secretary’s proposed service of an Egyptian criminal judgment on Mr Ismail under the Crime (International Co-operation) Act 2003 did not engage his article 6 rights. Service was a formal administrative step, distinct from enforcement, and did not directly expose him to a breach of fair-trial guarantees, even though it would start time running for the conviction to become final unless he returned to Egypt.
Mr Mamdouh Ismail, an Egyptian national, was chairman of the El-Salam Maritime Transportation Company, which operated a ferry. The ferry sank in the Red Sea on 3 February 2006 and more than 1,000 people died. Mr Ismail and his son were charged with manslaughter. Neither attended the trial, though they were legally represented, and both were acquitted on 27 July 2008. The prosecution appealed. Lawyers again appeared, but the appeal court accepted an argument, based on Egyptian law requiring a defendant’s presence, that submissions made on their behalf should not be considered. The son’s acquittal was affirmed. On 11 March 2009 Mr Ismail was convicted and sentenced to seven years’ imprisonment with hard labour.
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Mr Ismail and his son had entered the United Kingdom on 26 April 2006 and remained here. In October 2010, confirmed in July 2011, the Egyptian authorities asked the Secretary of State to serve the appeal judgment under section 1 of the Crime (International Co-operation) Act 2003. That section gives her a power, not a duty, to cause process or another document received from a foreign authority to be served on a person in the United Kingdom, by post or, if requested, personally. Inquiries established that service would start a ten-day period for an objection, which a lawyer could lodge; if an objection was lodged Mr Ismail would have to attend the hearing in person, and if none was lodged the judgment would become final, although a further appeal to the Court of Cassation might remain possible. On 23 May 2012 the Secretary of State decided to serve the judgment.
The High Court
Mr Ismail sought judicial review. Goldring LJ, giving the judgment of the High Court, held that the Secretary of State could not ignore evidence of obvious illegality or bad faith, the manner in which the judgment had been obtained, or the consequences of service. Those consequences were said to include starting time for the judgment to become final and leaving Mr Ismail either to return to Egypt, begin the sentence and appeal, or remain in the United Kingdom with a final conviction. The court also thought there was sufficient evidence for her to consider whether article 6 was engaged, while stressing that only a flagrant denial of justice would suffice and that the test was very high. It certified questions on the extent of the section 1 discretion and on whether article 6 could be engaged by service.
Service and article 6
Lord Kerr, with whom Lady Hale, Lord Sumption, Lord Hughes and Lord Toulson agreed, held that the statutory language and the mutual-assistance scheme point to an essentially administrative procedure. The Secretary of State is not required, whenever service is requested, to examine the foreign proceedings for consistency with United Kingdom standards of fairness. There will be cases in which the discretion should be exercised against service, but this was not one of them.
Article 6 was not engaged. In Soering v United Kingdom, extradition would have had the direct consequence of exposing the applicant to a real risk of treatment contrary to the Convention. Service here had no such consequence. It created a dilemma, but Mr Ismail could avoid the judgment becoming final by choosing not to return to Egypt. Service did not require his return, affect assets in the United Kingdom, or involve coercion. Section 2 of the 2003 Act provides that service creates no obligation under United Kingdom law to comply with the process and requires a notice saying so.
The High Court had found it difficult to distinguish service from enforcement or direct assistance in enforcement. Lord Kerr rejected that equivalence. Enforcement changes a person’s legal position; service, although apparently a prerequisite to enforcement in Egypt, does not give the judgment force in the United Kingdom or commit the Secretary of State to enforcing it. A later extradition request would attract the protections of the Extradition Act 2003, including Convention rights. Neither the prospect of a future extradition arrangement nor an Interpol red notice engaged article 6 at the service stage. A red notice had already been issued, and the applicable rules did not make service a precondition.
Service involved at most a minimal interference with sovereignty and, on these facts, had no material impact capable of engaging article 6. The Secretary of State was not obliged to investigate further. Lord Kerr accepted, however, that different circumstances might make service engage article 6 or justify closer inquiry, for example where it led more directly to enforcement or where obvious illegality or bad faith affected the recipient in a way that did not arise here.
Verdict: The Court unanimously allowed the Home Secretary’s appeal and dismissed the judicial review. Serving this judgment did not engage article 6 or require further inquiry. The Court left open whether service could have a different legal effect in another case.
Source: R (Ismail) v Secretary of State for the Home Department [2016] UKSC 37
