Article 6 rights of man served with foreign judgment not engaged

Mamdouh Ismail was the chairman of the board of a company whose ferry sank in the Red Sea in February 2006, resulting in more than 1,000 deaths. Mr Ismail was ultimately found guilty of manslaughter and was sentenced to seven years imprisonment and hard labour.

He entered the UK on 26 April 2006, and has remained here ever since. On 11 October 2010, the Egyptian authorities requested that the Secretary of State serve the judgment of the Appeal Court on Mr Ismail. On 3 August 2011, the Secretary of State informed Mr Ismail that she intended to do so. In a letter before claim dated 18 August 2011, Mr Ismail’s solicitors submitted that the Secretary of State would be acting unlawfully if she served the judgment.

Mr Ismail sought judicial review and by a judgment of 26 March 2013 the High Court granted Mr Ismail’s application. It certified two points of law of general public importance, which were pursued in this appeal:

“1. What is the extent of the Secretary of State’s discretion when serving a foreign judgment under section 1 of the Crime (International Cooperation) Act 2003?

2. May a person’s ECHR article 6 rights be engaged on service by the Secretary of State of a foreign judgment under section 1 of the Crime (International Co-operation) Act 2003?”

The Supreme Court, comprising Lady Hale, Lord Kerr, Lord Sumption,Lord Hughes and Lord Toulson unanimously allowed the Secretary of State’s appeal and dismissed the application for judicial review of the Secretary of State’s decision. Lord Kerr gave the only judgment.

The Secretary of State contended that service of a foreign judgment could not engage article 6 because (1) it does not have the direct consequence of exposing the individual to a breach of any fair trial guarantee and (2) the consequences of service are not of a type or nature to warrant the engagement of article 6 rights.

Further, the Secretary of State submitted that it was not incumbent on her to investigate the fairness of proceedings in a foreign state when she was asked to serve a judgment: that would run counter to the purpose of the 2003 Act which was to provide speedy and effective procedural assistance to other sovereign states.

For Mr Ismail, it was submitted that there is a clear discretion in the 2003 Act; that the Secretary of State is required to carefully assess the respondent’s representations on article 6 when plausible evidence of unfairness in the Egyptian trial was provided to her; and that service is more than a merely administrative act.

From a purely textual perspective, the wording of the statute suggests an administrative procedure that does not routinely require examination of the proceedings which prompted the request for service. On the other hand, the Act provides a power and not an obligation to effect service of foreign process and it was therefore contemplated that there would be circumstances in which service would not be appropriate.

It is well settled that a person physically present in a country which has acceded to the ECHR is entitled to its protection, even in circumstances where the actions of a member state would expose them to consequences in a non-contracting foreign state which would amount to a violation of Convention rights. That, however, is not the context of this case because the decision of the Secretary of State to serve the judgment on Mr Ismail did not expose him to a risk of violation of his Convention rights.

Service of the judgment would have undoubtedly placed Mr Ismail in a dilemma – whether to return to Egypt to appeal the judgment, or suffer the consequences of the judgment becoming final – but having to face that dilemma does not amount to a possible violation of his article 6 rights. Service of the Egyptian judgment does not have a direct consequence of exposing Mr Ismail to “proscribed ill-treatment”. It reduces his options but does not carry the inevitable outcome of exposure to a violation of his rights. He could avoid that exposure by remaining in the UK.

Service of a judgment is not the same as enforcement of it because it does not give legal force to the judgment or ratify it. Service does not, therefore, alter the legal position of the person on whom it is served. It may narrow the legal options available to him but his essential legal position remains unchanged. Service of the judgment would not involve an exercise of the UK’s sovereignty nor would it engage Mr Ismail’s fundamental rights. Indeed, in the particular circumstances of this case, it would have no material impact on Mr Ismail at all.The Secretary of State was under no obligation to investigate further the consequences that would accrue to Mr Ismail on service of the judgment.

That being said, there may be cases in which service of a judgment would engage article 6 or would call for further investigation of the basis on which the judgment had been obtained. That might occur, for instance, where service would lead more directly to enforcement or have other material consequences on the individual. In certain cases service of a foreign judgment might engage article 6. This is not such a case.