Mustapha Labsi, R (on the application of) v Secretary of State for Home Department [2005] EWHC 2931 (Admin)

[2005] EWHC 2931 (Admin)Case No CO/5177/2005
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 16 December 2005
Before
LORD JUSTICE MAURICE KAYMR JUSTICE PENRY-DAVEY
Between
THE QUEEN ON THE APPLICATION OF MUSTAPHA LABSIClaimantTHE SECRETARY OF STATE FOR THE HOME DEPARTMENTDefendantTHE GOVERNMENT OF FRANCEInterested Party
Mr Hugh Southey (instructed by Birnberg Peirce & Partners) for ClaimantMr James Eadie (instructed by Treasury Solicitors) for DefendantMr Hugo Keith (instructed by CPS London) for Interested party:Hearing Hearing date : 11 November 2005
JudgmentLord Justice Maurice Kay :
[1]This is a renewed application for permission to apply for judicial review, permission having been refused on the papers by Mr Justice Stanley Burnton. We heard oral submissions on 11 November 2005 but were persuaded to delay judgment until after another constitution of this Court had handed down its judgment in the case of Ramda. The decision of the Divisional Court (Lord Justice Keene and Mr Justice Poole) in Ramda was handed down on 17 November 2005 [2005] EWHC 2526 (Admin). Thereafter the parties to the present renewed application made written submissions on the implications of Ramda.[2]The claimant is an Algerian national. He seeks permission to challenge the decision of the Secretary of State on 26 April 2005 to order his extradition to France under section 12(1) of the Extradition Act 1989. The extradition offences in question are conspiracy to supply forged documentation involving the offence of using a false instrument and conspiracy to have forged passports for a purpose connected with the commission, preparation or instigation of acts of terrorism. The claimant was arrested on an extradition warrant on 16 May 2001. He was committed to await the decision of the Secretary of State on 12 April 2002. The decision of the Secretary of State to order extradition is evidenced by a letter dated 26 April 2005. The letter records that the Secretary of State had noted and carefully considered all the representations made on behalf of the claimant and that he had done so by reference to section 12(2)(a) of the 1989 Act, his general discretion under section 12(1) of that Act and the provisions of the European Convention on Human Rights and Fundamental Freedoms (ECHR). The representations on behalf of the claimant were then considered under three headings. First, under the heading French Judicial Process, the Secretary of State considered representations to the effect that the trial process in France would be unfair and would amount to a flagrant denial of justice. The letter stated:
" … ECHR, including Article 6, is part of domestic French law. Indeed, by virtue of Article 55 of the Constitution, international treaties are of superior force to it (ie take precedence over) any conflicting provision of domestic French law. The Secretary of State regards that as very important in the context of a series of claims that there will be a flagrant denial of justice … The Secretary of State has also taken into account the fact that those within the jurisdiction of France can complain of treatment allegedly in violation of the ECHR to the European Court of Human Rights. … The Secretary of State has concluded that there is no reason to suppose that Mr Labsi's trial would be anything other than fair. He places considerable reliance on [reports of M Serres]. Those reports provide in his view a comprehensive answer to the complaints raised in the representations. They indicate that, contrary to the representations made by Mr Labsi, there are a series of procedural safeguards which are sufficient to ensure the fairness and ECHR compatibility of the criminal proceedings against Mr Labsi."
[3]Secondly, under the heading Removal to Algeria or the USA, the Secretary of State considered the possibility that, once in France, the French authorities might remove the claimant to, in particular, Algeria. The decision letter stated:
"It is not known whether there has been past ill-treatment of Mr Labsi. However, the Secretary of State considers the critical fact in this respect to be that the French courts are bound to apply Article 3 ECHR as superior law. Thus, whatever the past practice, if the evidence that is in fact adduced by Mr Labsi is sufficient to establish the real risk test laid down in the ECHR jurisprudence, the French courts would be bound to act. M Serres does not state or imply that the French had not acted or would not act compatibly with Article 3."
[4]Thirdly, under the heading Health and ability to stand trial, the Secretary of State referred to the medical reports of Dr Taylor dated 30 July 2003 and 9 June 2004. He also referred to reports of Dr Cumming dated 29 June 2003 and 2 September 2004. The letter stated:
"Dr Cumming, in direct disagreement with Dr Taylor, concluded that Mr Labsi is currently fit to plead and stand trial. … It appears that there has been some improvement in Mr Labsi's condition. In any event, however, issues of fitness to stand trial are matters for the trial court and are appropriately to be resolved by the trial court … It has not been suggested that such issues could not be raised before the French courts or would not be properly or fairly dealt with."
[5]Having considered the representations under those three headings the Secretary of State concluded that it would not be wrong, unjust or oppressive or a violation of his ECHR rights, for Mr Labsi to be extradited to face trial in France.[6]What now has to be considered is whether there is any arguable basis on which the decision of the Secretary of State might be successfully challenged on judicial review. The proposed grounds of challenge themselves fall under three broad headings. First, reference is made to the fairness of the French judicial system, particularly in the context of the claimant's medical condition and his fitness to stand trial. In my judgment what the Secretary of State said about the incorporation and status of Article 6 of the ECHR in French law is a complete answer to this proposed ground of challenge. The Secretary of State was entitled to conclude that this is a matter which can be safely left to the French courts. This conclusion is supported by Ramda (para 53).[7]The second proposed ground of challenge is to the effect that it would be unjust and oppressive to return the claimant to France because he has already spent such a time in custody in this country that his deprivation of liberty to date is in excess of any likely sentence which would be imposed in France. It is common ground that time spent in custody in this country would be taken into account in France. I am wholly unpersuaded that it is arguable that, because the claimant might have served all or almost all of any likely sentence prior to conviction, it would be unfair, oppressive or wrong to extradite him. It is important to keep in mind that the allegations are of offences connected to terrorism. In these circumstances, if the allegations are true, there is an important public interest in obtaining convictions, quite apart from the sentencing implications.[8]The third proposed ground of challenge relates to the possible eventual removal from France to Algeria. The submission on behalf of the claimant is essentially the same as was made on behalf of the claimant in Ramda. The approach of the Secretary of State in the present case is similar to that in Ramda. There, the court said (at paragraph 59):
"This court regards the Secretary of State's approach to this issue as being a rational one and his conclusion of no real risk of deportation of the claimant to Algeria in breach of Article 3 as one properly open to him. There is no evidence that France does deport Algerians to Algeria where it is shown that there is a real risk of Article 3 ill-treatment resulting."
[9]It is of course pertinent that Article 3 is incorporated into the law of France and operates as superior law. On behalf of the claimant, Mr Southey attempts to distinguish Ramda on the grounds that there the claimant is facing a much longer sentence in France and that the Article 3 argument was less sustainable because it involved speculation about "some unknown date well into the future". Whilst it is correct that that was a point taken into account by the Divisional Court, it was a separate and additional point. Its absence from the present case does nothing to dilute the primary point which was contained in the passage I have just quoted.[10]In my judgment, this was always an unpromising application on behalf of the claimant. I do not consider that it was arguable before Ramda. It certainly is not in the light of Ramda. I would therefore refuse permission. Mr

Justice Penry-Davey:

[11]I agree.