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||Neutral Citation Number:  EWHC 2526 (Admin)
||Case No: CO/4513/2005
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
||Royal Courts of Justice
Strand, London, WC2A 2LL
||17th November 2005
B e f o r e :
LORD JUSTICE KEENE
MR JUSTICE POOLE
|| Rachid RAMDA
||- and -
||The Secretary of State for the Home Department
The Government of France
(Transcript of the Handed Down Judgment of
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Edward Fitzgerald QC and Julian Knowles (instructed by Birnberg Peirce London NW1 7HJ) for the Claimant
James Eadie (instructed by Treasury Solicitors) for the Defendant
James Lewis QC and Hugo Keith (instructed by the Crown Prosecution Service) for the Interested Party
HTML VERSION OF JUDGMENT
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Lord Justice Keene: :
- This is the judgment of the court. This is an application for judicial review of a decision of the Secretary of State dated 6 April 2005, whereby he ordered the extradition of the claimant, Rachid Ramda, to France under section 12 of the Extradition Act, 1989 ("the 1989 Act"). The claimant, who is an Algerian national, is wanted by the French authorities for trial in connection with a series of terrorist bombings in France between July and October 1995 which resulted in a number of deaths and injuries. The French government made three requests in 1995 and 1996 for the claimant's extradition, two arising from attacks in October 1995 on the Paris metro and the Paris R.E.R. system and the third alleging participation in a criminal association with the aim of committing acts of terrorism. There was then a further request, described as a supplementary request, in October 2001 referring to the attack in July 1995 at the Saint Michel R.E.R. station in Paris.
- As the dates already referred to suggest, there is an extensive history to the attempt to extradite the claimant to France. Summarising it briefly, the claimant was committed in June 1996 by the Bow Street magistrate under section 9 of the 1989 Act to await the Secretary of State's decision as to his extradition. An application by him for habeas corpus was dismissed by this court in June 1997 and a petition for leave to appeal to the House of Lords was dismissed in March 1998. A fresh application for habeas corpus was made but was eventually withdrawn in May 1999. Instead, representations running to over 40 closely-typed pages were submitted to the Home Office in August 1999, seeking to persuade the Secretary of State not to order the return of the claimant to France.
- The Secretary of State took some time in considering these representations. It was only on 8 October 2001 that he gave a written and reasoned decision, that decision being that he was ordering the claimant's return to France. There was then an application by the claimant for permission to seek judicial review, which was heard in May 2002 along with a substantive application. On 27 June 2002, this court, consisting of Sedley LJ and Poole J., handed down a written judgment quashing the Secretary of State's decision, so that the matter went back to the Secretary of State for reconsideration. It will be necessary to deal later in this judgment with the reasons for this court's decision of 27 June 2002, but part of the reasoning concerned certain information which had not been supplied to the Secretary of State, with the result that there were unanswered questions considered by the court to be relevant.
- Consequently the Secretary of State wrote to the French authorities on 23 July 2002 seeking further information. It was a letter of some length, ten pages in all, and it asked a number of questions. It took some time for the French authorities to reply, their response being dated 20 March 2003. Moreover, one of the matters raised by the Home Office had been the obtaining of independent expert advice on French criminal law and procedure. The French government's response was that it was not possible for it to appoint such an expert, and as a result the Secretary of State sought expert advice from Monsieur Francois Serres. His first report is dated 21 November 2003. There were then two reports on French law and procedure by Monsieur Jean-Louis Malterre submitted on behalf of the claimant to the Secretary of State and dated 16 March 2004 and 7 April 2004.
- Thirty typed pages of representations on behalf of the claimant were submitted on 8 April 2004. A supplementary report dated 26 July 2004 from Monsieur Serres was then obtained by the Home Office. In the meantime, the claimant had been committed on 4 April 2003 at Bow Street Magistrates Court in respect of offences covered by the supplementary request of October 2001. The Secretary of State's decision of 6 April 2005, now under challenge, concerned that request as well as the earlier ones.
- We have set out this procedural chronology because, at the outset of this hearing, we had to consider an application by the claimant for an adjournment. We deal with this, and with our reasons for refusing that application, later in this judgment. But the context in which it had to be considered was the substantial and regrettable passage of time since the first requests by the French government. Indeed, originally, one of the grounds of challenge to the Secretary of State's order of 6 April 2005 advanced by the claimant was that the delay since the central events had happened was so great as to prevent a fair trial taking place. This ground was abandoned very early on in the hearing before us, but its presence originally as a ground of challenge illustrates the amount of time which these extradition proceedings have taken. It needs to be emphasised that this has happened under the procedures set out in the 1989 Act, widely recognised as being cumbersome and time-consuming. Extradition requests made after 31 December 2003 are now dealt with under the new Extradition Act, 2003 which amongst other things provides for a fast-track arrangement with Member States of the European Union through use of the European Arrest Warrant. It is to be hoped that the scale of delay which has occurred in the present case will be avoided under those new procedures.
The treatment of Bensaid
- An important part of the French authorities' case against the claimant consists of statements made during interview by a man called Boualem Bensaid. He was arrested in France on 1 November 1995 and then interrogated by the French police over a period of four days. In due course he was tried and convicted of a number of offences arising out of the bombings, as was Mustapha Boutarfa who had been extradited from the United Kingdom. Long prison sentences were imposed. According to Bensaid, the claimant was a London-based paymaster in the terrorist network. This evidence is not the only evidence implicating the claimant. For example, when the claimant was arrested in London in November 1995, an account for a telephone line of which Bensaid had the number was found in his house. A money transfer receipt for the transmission of money was found in the house of a person arrested in November 1995. The receipt allegedly had the claimant's fingerprint on it. Nonetheless the statements made by Bensaid implicating the claimant are clearly important, if they are true.
- There is, however, some evidence which might lead a court to conclude that Bensaid had been beaten by French police during the course of his interrogation. That interrogation began immediately after his arrest on 1 November 1995. He was medically examined just after midnight and again during the following evening. On each occasion he was certified as fit to be detained. On 2 and 3 November he was brought before a court which extended his period of custody. Later in the evening of 3 November, shortly after the conclusion of another interview, he was again seen by a doctor, Dr Becour. He too certified Bensaid as fit to be detained but he also recorded the presence of bruising and reddening to Bensaid's face and head. A diagram attached to the certificate showed the location of the bruising and reddening.
- Bensaid had before this admitted involvement only in a single bombing and denied any other activity. However, in his next interview, on 4 November, he made further admissions and also inculpated the claimant. The interviews continued on 5 November. The following day Bensaid's lawyer, Maitre Valerie Dubois, sent a manuscript note to the examining magistrate ("juge d' instruction"), Juge Bruguiere, in which she referred to having seen "numerous signs of haematomas, especially under the eyes and on the nose." She asked in her note that Bensaid be examined by a medical expert. There is no formal record of any steps taken by the examining magistrate, but the evidence put before the Secretary of State is to the effect that the magistrate conducted an informal investigation. According to the response of the French government to the Secretary of State's questions, posed after the Divisional Court decision of 27 June 2002, the magistrate very quickly communicated his findings to Maitre Dubois, who did not deem it necessary to request that any further action be taken. It seems from earlier evidence in front of the Secretary of State that Juge Bruguiere had concluded that the origin of the bruising was likely to have been the struggle at the time of Bensaid's arrest.
- Bensaid himself does not appear to have sought to raise the issue of ill-treatment at any time during his questioning by the examining magistrate nor did he seek the exclusion or nullification of his statements to the police on such a basis when it came to his trial in 1999. It was only in late 2000 that he first applied for his interview of 7 November 1995 to be treated as a nullity because of his alleged ill-treatment by the police. This application was rejected by the Cour d' Appel in Paris on 27 February 2001 on a number of grounds, one of which was as follows:
"Que s'il est avéré qu'il présentait des ecchymoses, force est de constater que Boualem BENSAID a, lors de son interpellation tenté de s'enfuir et oppesé une violente résistance, de sorte que les policiers interpellateurs ont dû le maîtriser en employand la force strictement nécessaire (D 375), ce qui suffit á expliquer les ecchymoses constatées á compter du 3 novembre 1995"
The attached translation states:
"That if it was true that he did show signs of bruising, it is to be noted that Boualem BENSAID attempted to escape during his arrest and resisted violently, so that the police officers who arrested him had to use the necessary degree of force (D 375) to subdue him, which offers a sufficient explanation for the bruises observed after the 3rd of November 1995."
- One of the matters which concerned this court in its June 2002 decision was how the evidence of bruising and Maitre Dubois' note had been dealt with in an affidavit filed on behalf of the French government in the habeas corpus proceedings. This was sworn by Marc Moinard, Director and Head of Criminal Affairs and Pardons at the Department of Justice. It is to be observed that Monsieur Moinard's affidavit was sworn in 1997. In it, a variety of different matters was dealt with, but at paragraphs 56 and 57 Monsieur Moinard covered the medical examinations of Bensaid and the alleged ill-treatment. Those paragraphs read as follows:
"In the course of the custody he was seen, at his request by a doctor on two occasions namely at 0025 on 2nd November and at 20.45 on the same day. He was seen by a doctor at the request of the examining magistrate at 21.35 on the 3rd November. He had one interview with an attorney on 4th November between 21.40 and 22.10.
The entire procedure was carried out in strict compliance with the Code of Penal procedure. On the three occasions he was seen by a doctor he was certified fit to be interviewed and the custody was properly authorised by a magistrate. At no time did Boualem Bensaid submit a complaint regarding unfair police treatment."
The Divisional Court's decision
- In its decision of 2002, the Divisional Court noted that this affidavit made no reference
"to the complaint of the lawyer Valerie Dubois or to Dr Becour's report of injuries, both of which are in the dossier."
It also observed that the dossier showed no response at all on the part of the examining magistrate to the "formal complaint of Bensaid's lawyer that Bensaid had been assaulted under questioning" (paragraph 10) and identified as a question on which the Home Secretary had yet to give a properly reasoned response
"whether there was any investigation at all of the original complaint of ill-treatment of Bensaid." (paragraph 24)
- The other matter which this court concluded the Secretary of State had not properly addressed was
"whether the French courts, given the record now available of their later decisions in relation to Bensaid, will now entertain any request by the claimant to exclude Bensaid's confessions."
It is clear that the Divisional Court took the view that, if the answer to that question was in the negative, this might create a risk of an unfair trial of the claimant. The judgment also suggested that it was possible that the question of bad faith might arise in relation to Monsieur Moinard's affidavit. (ibid)
The Secretary of State's decision, April 2005
- In his latest decision of 6 April 2005, the Secretary of State refers to the response of the French authorities to his enquiries made after the Divisional Court decision and to the expert evidence now available on French law and procedure. After dealing with the applicable legal tests under the 1989 Act and the European Convention on Human Rights ("ECHR"), he deals with the principal issues arising. As to whether the claimant would receive a fair trial in France, the Secretary of State notes that France is a signatory to the E.C.H.R. and that its judiciary is highly trained, professional and independent. He states, correctly, that the E.C.H.R, including Article 6, is part of domestic French law and takes precedence over any conflicting provision of domestic French law. As to the representation that Bensaid was beaten by police prior to his statements implicating the claimant, the decision letter states:
"7. The Secretary of State cannot make a finding as to whether or not Mr Bensaid was assaulted as alleged. It is not his function to do so. Nor fairly or practically could he do so without live evidence. However, without accepting or concluding that any such assault took place, he proceeds for present purposes on the basis that there is evidence to support the proposition that Mr Bensaid may have been assaulted in French police custody.
8. In that event, the Secretary of State believes the critical issues would be whether the allegation of assault and the legal consequences of any decision on that issue could be raised by Mr Ramda before the French courts; and whether such matters would be dealt with properly and fairly there.
9. Having considered both M Serres' reports (see especially Serres I, Part III (paragraphs 74-146)) and the points made by M Malterre in his 7 April 2004 report, the Secretary of State has concluded as follows:
- The alleged ill-treatment of Mr Bensaid and the legal consequences of any finding of ill-treatment could be raised before the French courts by Mr Ramda (see Serres I/93 for example).
- Mr Ramda would not be precluded from doing so by the fact that Mr Bensaid did not himself properly raise the issue of ill-treatment until too late (see Serres I/98 and 105-112). In this respect, the Secretary of State prefers the analysis of M Serres to the assertion at the end of point 5, page 7, in M Malterre's 7 April 2004 report.
- Mr Ramda could summon and question witnesses, including the doctors who attended Mr Bensaid – see Serres I/99.
The Secretary of State has also concluded that there is no reason to doubt that the French courts would properly and fairly consider the issue and all relevant evidence.
10. The Secretary of State considers that Mr Ramda could invite the French courts to exclude the evidence of Mr Bensaid. The Secretary of State finds compelling in this respect the reply by M Serres to point 6, page 7, of M Malterre's 7 April 2004 report: see II/19 and 21-24. The Secretary of State has concluded the issue would be properly and fairly considered by the French courts which could then be relied upon to take whatever steps they considered necessary to ensure fairness.
On the issue of whether the request for extradition had been made in bad faith by the French authorities, the Secretary of State's letter accepts that M. Moinard's affidavit was not accurate in asserting that no complaint was made by Mr Bensaid about ill-treatment at the time. It also accepts that the description of the medical examinations was not sufficiently full. Both these matters give the Secretary of State concern. However, he does not conclude that they demonstrate bad faith on the part of the French government in requesting the claimant's return. The decision letter states at paragraph 20:
11. The foundation for this part of Mr Ramda's case is that exclusion of such evidence if obtained by ill-treatment would be required by Article 6. The Secretary of State notes that, given the unsettled nature of the case law in this respect, this may not be a straightforward issue in the case of evidence obtained from a one person and then used against another person, even if the state involved is the same. However, even if Mr Ramda is correct about the effect of Article 6, the consequence of that would be that the French courts would be bound to exclude the evidence. The ECHR is part of French domestic law and is of superior force. There is nothing to suggest that the French courts would flout the requirements of the ECHR."
"At a general level, he has concluded that Mr Ramda is wanted by those authorities in order to be tried for his alleged part – organising funding and complicity – in a series of terrorist attacks of the most serious kind. There is nothing to suggest that those charges were trumped up or were unsupported by any evidence. Indeed, quite apart from the evidence of Mr Bensaid, it appears from the judgment of the Tribunal Correctionel, for instance, that there is evidence linking Mr Ramda to those involved in the bombings – for example, evidence concerning contacts between Mr Bensaid, phones available to Mr Ramda, and evidence linking Mr Ramda by his fingerprints to the transfer of £5,000 to the account Mr Bensaid indicated had been used to fund bomb manufacture."
More specifically the Secretary of State accepts that M. Moinard was not aware of the true position and did not set out to mislead the English court. On the basis of the French response to his enquiries, he states:
"The inaccuracies appear to have been caused by incomplete reports or details being provided by an office at one remove from the affidavit, the office of the Paris Attorney General. It also appears that these reports are confidential, as administrative correspondence relating to the exercise of a criminal prosecution, and as such cannot be disclosed. The Secretary of State submits that there is no proper basis for concluding that a person or persons at that office were in some way conspiring to mislead the English courts."
As for the steps taken or not taken by the examining magistrate in response to Maitre Dubois' note, the Secretary of State refers to the evidence that investigations, "not particularly formal", did take place and the results communicated to Maitre Dubois. The letter continues:
"It seems from the opinion of M Serres that the appropriate procedure for making a formal complaint was not followed by those representing Mr Bensaid (see Serres I/4-73, especially 53-54 and Serres II/19). However, it is clear that the Juge had power to take steps to investigate allegations of ill-treatment. The use of an inappropriate procedure seems to the Secretary of State to provide a reasonable explanation for the apparent informality of the investigation and for the absence of a record of it on the dossier. In any event, the matter does not appear to have been pursued by Mr Bensaid or by his lawyers until years later, despite it having been open to them to do so much sooner.
It is not clear to the Secretary of State how this aspect supports an allegation of bad faith. Such an allegation would have to be based on Juge Bruguiére in some way deliberately deciding, for an unspecified and improper reason, not to pursue an investigation. It seems to the Secretary of State that it is inherently improbable that a senior and respected judge would act in that way. In any event, it is difficult to see what such improper inaction would have achieved. Mr Bensaid's lawyers could have pursued the matter and called for formal decisions, which could themselves have been appealed. "
Thus the Secretary of State concludes that the extradition requests are genuinely made and that the French authorities have not acted in bad faith.
Finally, the letter deals with the risk to the claimant of ill-treatment in France at the hands of French police and of removal to Algeria. On the first of those, it notes that the allegations of ill-treatment of Bensaid related to a period a considerable time ago and have been denied by the French government. The Secretary of State says that
"There is no basis for concluding that ill-treatment is systemic."
He goes onto refer to a series of protections in French law against such ill-treatment, including the E.C.H.R, and the fact that the claimant could not as a matter of French procedure be interviewed by French police.
The letter indicates that the Secretary of State has considered the representations that, on completion of any sentence of imprisonment, the claimant would be deported to Algeria, where he would face a real risk of treatment contrary to Article 3 of the E.C.H.R or death. He rejects these arguments, relying on the evidence about French law and the role of Article 3 in it. The letter states:
"if deportation would violate Article 3 on the facts, such deportation would be contrary to domestic French law because the E.C.H.R is part of French law with superior force."
The Secretary of State's overall conclusion is that it would not be wrong, unjust or oppressive, or a violation of his E.C.H.R rights, to return the claimant to face trial in France.
The Legal Framework
The starting point for any consideration of the legal principle applicable is section 12 of the 1989 Act. Insofar as material to the present case, it provides:
"12(1) Where a person is committed under section 9 above and is not discharged by order of the High Court or the High Court of Judiciary, the Secretary of State may by warrant order him to be returned unless his return is prohibited, or prohibited for the time being, by this Act, or the Secretary of State decides under this section to make no such order in his case.
(2) Without prejudice to his general discretion as to the making of an order for the return of a person to a foreign state, Commonwealth country or colony –
(a) the Secretary of State shall not make an order in the case of any person if it appears to the Secretary of State in relation to the offence, or each of the offences, in respect of which his return is sought, that –
(i) by reason of its trivial nature; or
(ii) by reason of the passage of time since he is alleged to have committed it or to have become unlawfully at large, as the case may be; or
(iii) because the accusation against him is not made in good faith in the interests of justice,
There is no doubt that, in the exercise of his general discretion, the Secretary of State is obliged to consider evidence indicating that the person in question may not receive a fair trial if returned. That is not in dispute. It has long been established that the Secretary of State should refuse to surrender a person whenever in his view it would be "wrong, unjust or oppressive" to surrender him: Atkinson v. United States of America Government  A.C. 197, 232 G. In addition, the Human Rights Act, 1998, section 6(1) makes it unlawful for a public authority, such as the Secretary of State, to act in a way which is incompatible with a Convention right, and of course Article 6(1) of the Convention provides for the right to a fair trial. The test appears to be whether the evidence establishes a real risk of a flagrant denial of justice: Soering v. United Kingdom  11 EHRR 439, at paragraph 113.
it would having regard to all the circumstances, be unjust or oppressive to return him …"
Article 6 of the E.C.H.R requires, if one has regard to the Strasbourg jurisprudence, that the prospective trial be fair when viewed in the round, and it does not normally involve consideration of whether certain evidence would be admitted at trial or not. That is generally a matter which the Secretary of State is entitled to leave to the trial court in the requesting state: R. (Abdullah) v. Secretary of State for the Home Department  EWHC Admin 263, at paragraph 43. However, there may be situations where the admission of certain evidence at trial would inevitably render the trial unfair. The instance most readily recognizable is where evidence has been obtained from the prospective defendant by torture: see Montgomery v. Lord Advocate  1 AC 641 at 649E per Lord Hoffman.
The position in respect of evidence allegedly obtained from a third party as a result of torture is less clear. In A and others v. Secretary of State for the Home Department  EWCA Civ 1123, the Court of Appeal by a majority decision held that in the proceedings in question the admission of evidence which might have been obtained by torture in another state did not offend Article 6, its origins affecting its weight rather than its admissibility. But the court there was dealing with the specific processes under sections 21 to 23 of the Anti-Terrorism Crime and Security Act, 2001, not with a criminal trial, an aspect of the case stressed by one of the majority, Pill LJ, and relied on, though to a lesser extent, by the other majority judge, Laws LJ. We understand that an appeal to the House of Lords is in any event pending in that case.
Two other legal principles of relevance to the present case can be put briefly. In Re Arton  1 QB 108, it was said by the then Lord Chief Justice, Lord Russell of Killowen, that an assertion that a request for extradition was not made in good faith reflected gravely on the motives and actions of the government in question and "ought not to be put forward except upon very strong grounds". It follows that the Secretary of State should be satisfied that there is strong evidence of bad faith on the part of requesting government before he concludes that the request was not made in good faith. That principle reflects the normal requirement in litigation for there to be such evidence for a finding of bad faith, but it is particularly appropriate when dealing with relations between friendly states, where the comity of nations requires the starting point to be that the request is made bona fide. Of course, cases may sometimes arise where this test is met: an example is provided by R. (Saifi) v. Governor of Brixton Prison  1 WLR 1134.
Secondly, the extent to which the Secretary of State is required to investigate allegations and to seek further information must be limited by Parliament's evident intention that he should not be attempting to carry out a rehearsal for any eventual trial overseas. As was said by Staughton LJ in ex parte McQuire  A.L.R. 534 at 537H-538A:
"… a lengthy process of representations and counter-representations is not envisaged by the statute.
What fairness requires in this situation is a proper balance between the basic requirements of justice on the one hand and the manifest intent of the statute on the other that there should not be a lengthy and elaborate trial before the fugitive can be surrendered for trial somewhere else."
Application for an Adjournment
At the outset of the hearing, Mr Fitzgerald, QC, on behalf of the claimant sought an adjournment, which he subsequently suggested should be for one month. We refused that application and now give, as we indicated we would, our reasons for so refusing.
The application was based upon the fact that a witness statement by Anne-Marie Blunden had been served on behalf of the French government on the claimant's solicitors one week before the hearing. In the witness statement, Miss Blunden who is a senior Crown Prosecutor in the Crown Prosecution Service in this country, referred to having made inquires of senior officials in the French Ministry of Justice. Much of what she then went on to deal with had already been covered in the material already before the Secretary of State, either in the French government's responses to his inquiries or in the reports from M. Serres and M. Malterre or in other documentary material.
However, Mr Fitzgerald argued that this witness statement contained important new material in two respects. First, it went beyond the existing material in dealing with how M. Moinard's affidavit came to be drawn up. The French government's response of 20 March 2003 had stated that the text of that affidavit, dealing with any complaint made by Bensaid about injuries, had been drawn up.
"on the basis of reports from the Paris Attorney General."
Miss Blunden's statement referred to the Paris Attorney General ("Procureur General pres la Cour d' Appel de Paris") having obtained information from the Paris State Prosecutor ("le procureur de la Republique de Paris"). Moreover, submitted Mr Fitzgerald, it had previously only been stated that there had been no bad faith on the part of M. Moinard. Now, Miss Blunden's statement was to the effect that there was no bad faith on the part of those who had supplied the information to M. Moinard.
The second new feature concerned Maitre Dubois, Bensaid's lawyer. The French government's 2003 response had dealt with the informal investigation carried out by the examining magistrate into her note, and had stated:
"The investigating judge very quickly communicated the findings to the lawyer who wrote the observation note, who had not at the time deemed it necessary to request that any further action be taken."
Elsewhere the response referred to "the acceptance of the lawyer concerned" of the magistrate's findings.
But, submitted Mr Fitzgerald, Miss Blunden now stated that independent confirmation had been sought of this from Maitre Dubois,
"who recalls that M. Bruguiere did inform her of his conclusion that he had been completely satisfied at the time and that, as a result, no further request for an investigation into the matter was put forward by her." (paragraph 16)
It was argued on behalf of the claimant that he should have the opportunity to comment on both these new matters. It would also be helpful to have the views of a French lawyer on how plausible it was that the officials had simply overlooked Dr Becour's certificate and Maitre Dubois' note.
We found these submissions unpersuasive. Our reasons were these. First, such new material as was contained in Miss Blunden's statement added little of significance to what had already been stated or was clearly to be inferred from the express statements. It must have been obvious to any reasonable observer, and certainly to those advising the claimant, that the Paris Attorney General would have had to seek and obtain information from officials more immediately involved in the Bensaid prosecution before he could supply M. Moinard with information for his affidavit. It was always implicit in the French government's denials of bad faith that there had been no bad faith on the part of any of those officials: see, for example, the French government's 2003 response on points 27 and 28. As for Maitre Dubois' position, it had already been stated that she had accepted the examining magistrate's findings and did not seek to take the matter further. So at most Miss Blunden's witness statement was merely seeking to confirm a point already made. There was nothing of great significance in the new material in her statement.
Secondly, we found it very difficult to see what the claimant and his advisers would be enabled to do if granted an adjournment, at any rate beyond what they could have done in any event. Even if one were refused, his counsel would be able to comment during the hearing on the new material, as indeed happened subsequently. No attempt by his advisers to investigate further the workings of the Paris State Prosecutor's office was likely to prove fruitful, and indeed his case was simply that with an adjournment a French lawyer would be able to make comments. Given that the claimant's solicitors had had Miss Blunden's statement for a week, it had been open to them to have sought such comments already if they thought fit.
Indeed, after we had refused the adjournment request, a set of faxed comments by M. Malterre on Miss Blunden's statement was, with the leave of the court, put in on behalf of the claimant. The letter was dated 12 October 2005, two days before our hearing, and was said to have been sent "by letter and fax".
It was said that the claimant's advisers wanted to contact Maitre Dubois to check the veracity of what was now said. We could see no basis for doubting that veracity, and in any event the claimant's advisers could have been in touch with Maitre Dubois long before Miss Blunden's statement saw the light of day.
Thirdly, though we concluded that no prejudice would be caused to the claimant by refusal of an adjournment, any prejudice would have had to be weighed against the long delays which had already occurred and the pressing need for these proceedings to be determined. It seemed to us to be of great importance that this judicial review challenge should be dealt with as soon as possible.
For all these reasons we decided that no adjournment of the hearing should be granted.
The Substantive Issues
We turn, therefore, to the substantive grounds which are advanced in support of the application to quash the Secretary of State's decision. These can be categorized under the headings of bad faith, the prospects of a fair trial in France, and the risks to the claimant of ill-treatment in France or Algeria if extradited to France.
(a) Bad Faith
The claimant's case is that the Secretary of State lacked sufficient information to enable him to be satisfied that there was no bad faith on the part of the French government. Mr Fitzgerald drew attention to a passage from the judgment of Woolf LJ in Re Osman, unreported, 25th February 1992:
"Good faith has to be given a reasonably generous interpretation so that if the proceedings were brought for a collateral purpose or with an improper motive and not for the purposes of achieving the proper administration of justice they would not be regarded as complying with the statutory requirement. Likewise, accusations would not be made in good faith and in the interests of justice if the prosecution deliberately manipulates or misuses the process of the court to deprive the defendant of the protection to which he is entitled by law."
Consequently if there was a deliberate withholding of information by the French government in an attempt to mislead the English courts or the Secretary of State, that would justify an inference of bad faith. Here the Secretary of State accepted that the statement in M. Moinard's affidavit was inaccurate in asserting that no complaint of ill-treatment had been made on Bensaid's behalf and he also accepted that it did not refer to Doctor Becour's comments about bruising and reddening. It was not enough for the Secretary of State to be satisfied on the material available that M. Moinard had acted in good faith. He also had to be satisfied that those supplying the information to M. Moinard had acted in good faith.
While the Secretary of State stated in his decision letter that there was no proper basis for concluding that those who had supplied the information were in some way conspiring to mislead the English courts, it was (submitted Mr Fitzgerald) incredible that Dr Becour's certificate and Maitre Dubois' note were overlooked. At the very least, the Secretary of State should have called for further information.
It was also argued that there had been no reasonable explanation forthcoming for the lack of a proper investigation into Bensaid's complaint of ill-treatment and that the Secretary of State was not entitled to conclude that such an explanation had been provided. There is no formal record of the results of any investigation and in the circumstances the Secretary of State was obliged to conclude that there had been a failure to inquire, contrary to Articles 3 and 6 of the ECHR. Indeed, in his submissions in reply Mr Fitzgerald contended that one could not give credence to the French government's statement that the informal process of investigation had taken place.
We take that last point first. The expert evidence before the Secretary of State from M Serres, who has been a practising attorney in France since 1979, was that there is a formal procedure under Article 85 of the French Code of Criminal Procedure for making complaints of assaults during police detention. A formal complaint has to be filed in a particular way, which was not followed by Maitre Dubois. Other procedures were also available but were not used. It was acknowledged by Mr Fitzgerald in the course of argument that the method which was adopted by Maitre Dubois, that of sending a manuscript note to the examining magistrate, is not governed by any specific Article of the French Code of Criminal Procedure. In those circumstances it seems to this court that the mere absence of any formal document generated by Juge Bruguiere as a result of his investigation did not require the Secretary of State to conclude that there had been no investigation carried out by the magistrate. The French authorities have on several occasions asserted that he carried out an informal investigation, that he passed on his conclusions to Maitre Dubois and that she did not seek to take the matter further. It is not in dispute that, as a matter of fact, Maitre Dubois did not request any further action. The Secretary of State was, in our judgment, entitled to accept the French government's statement that an informal investigation was carried out.
During argument on this issue, it was suggested by Mr Fitzgerald that there was an inconsistency between what the Secretary of State had been told Juge Bruguiere had concluded from his investigation and what the Cour d' Appel in Paris had concluded. The evidence before the Secretary of State in 2002 was that the magistrate had concluded that "the origin of the bruising was likely to have been the struggle at the time of arrest of Mr Bensaid" – see the witness statement of Robert James Wood, paragraph 3(6). It was said on behalf of the claimant that this contrasts with the finding of the Cour d' Appel in Paris, which referred to the injuries having occurred when Bensaid attempted to escape "lors de son interpellation." Mr Fitzgerald argued that this phrase means "during his interrogation".
We note, however, that the English translation attached to the passage from the Cour d' Appel's judgment does use the words "during his arrest": see paragraph 10, ante. There is no expert evidence before us to establish that this is an inappropriate meaning of the word "interpellation" when used in the context of French criminal procedure, and we are not persuaded that the alleged inconsistency between Juge Bruguiere's conclusion and that of the Cour d' Appel exists.
We return to the main thrust of the claimant's case under this heading which relates to M. Moinard's affidavit. It is proper to note at the outset that what section 12(2) directs the Secretary of State to consider is, by paragraph (iii), whether
"the accusation against him [the person whose extradition is sought] is not made in good faith in the interests of justice."
It was therefore clearly relevant to the Secretary of State's decision on bad faith that the crimes in which the claimant was accused of being involved had undoubtedly taken place in France and that there was evidence, quite apart from Bensaid's statements, linking the claimant to those involved in the bombings: see the examples given at paragraph 7 of this judgment. That is not to say that the making of deliberately misleading statements by the requesting state may not, in some circumstances, lead to the finding that the request is not made in good faith: that indeed was this court's conclusion in Saifi (see paragraphs 64 and 65 thereof). But it is a relevant part of the context that the alleged crimes had occurred and that there is other evidence pointing towards the claimant's involvement.
As for the inaccuracies in M. Moinard's affidavit the Secretary of State's conclusion was in effect that these had come about in good faith, as the French government asserted. In other words, they had occurred innocently and not deliberately. It is implicit in his conclusion that he was saying that they could be understood to have occurred through inadvertence. Is that, as Mr Fitzgerald submits, beyond belief?
It is to be borne in mind that there were apparently a number of dossiers relating to Bensaid, because he faced a number of separate trial processes in France. According to M. Malterre's evidence, filed on behalf of the claimant, Maitre Dubois' note was only to be found in one of the dossiers and not on that to which the original custody records relating to Bensaid were attached. The evidence from Miss Blunden is that the dossier which had the note and the medical certificate consisted of a very substantial number of files and many thousands of pages of documents.
There is also one feature of M. Moinard's affidavit when dealing with the medical examination by Dr Becour which suggests some degree of inefficiency or lack of care on the part of the official who examined the documentation. As the passage set out in this judgment at paragraph 11 shows, the official seems to have noted that this third medical examination took place at 21.25 on 3rd November. In fact, Dr Becour's certificate clearly states that it took place at 23.00 hours. That inaccuracy in M. Moinard's affidavit cannot be regarded as one which in any way assisted the French government's case on extradition. It seems to be a simple error. It suggests too hasty a perusal of the documents by the official in question.
The Secretary of State would no doubt have been aware from his own experience that innocent errors and inefficiencies occur in a state's administrative activities. Given the circumstances to which we have referred, it was open to him, without seeking further evidence, to conclude that the inaccuracies in M. Moinard's affidavit could have arisen through administrative oversight and were not the result of a deliberate attempt to deceive the English court. It follows that we reject the claim that the Secretary of State's decision is flawed because of insufficient material on this issue.
(b) The Prospects of a Fair Trial
As set out earlier, the Secretary of State concluded that the alleged ill-treatment of Bensaid and the legal consequences of any finding of ill-treatment could be raised by the claimant before the French courts, and that those courts would fairly consider whether to exclude Bensaid's evidence if that were required in order to achieve a fair trial. In the claimant's written argument before this court, it was contended that he would have no right in French law to raise the issue of Bensaid's treatment in his own trial so as to seek the exclusion of Bensaid's evidence. It was argued that Bensaid's attempts to have his confession excluded in his own trial failed and so it is unrealistic to suppose that the claimant would be able to re-open the issue of the alleged ill-treatment of Bensaid at his own trial. There is a risk, therefore, that the claimant would be tried on the basis of evidence obtained by torture and this would violate his rights under Article 6(1) of the ECHR.
Orally Mr Fitzgerald accepted that it was open to the Secretary of State to prefer the expert evidence of M. Serres on the legal position in French trials to that of M. Malterre. M. Serres has spelt out in terms in his reports that the claimant would be able to raise these allegations at his own trial and that the court of trial could investigate them and take any steps to determine the truth. He explained that Bensaid had not challenged the validity of his interviews at his first trial in 1999 or when he appealed against that conviction. It was only in later proceedings that he first sought to do so. But, according to M. Serres, the French Code of Criminal Procedure would not prevent the claimant from raising this issue, since the principle of res judicata would not apply to him. It operated only against Bensaid.
The claimant's case is that, while this may represent French law, it does not represent what happens in practice. There is a real risk that Bensaid's evidence would be taken into account by the claimant's trial court. Mr Fitzgerald argued that there was insufficient material before the Secretary of State for him to conclude that the French court would actually consider the issue on its merits if raised by the claimant and it is contended that what happened before the examining magistrate when Maitre Dubois sent her note demonstrates what happens in reality.
In our judgment, there is very little, if any, support in the evidence for this line of argument. The strict legal position is sufficiently clear from M. Serres' evidence for the Secretary of State to have been able to properly to accept it, as Mr Fitzgerald accepts. What evidence is there to suggest that the French court trying the claimant's case will not apply the law? The reliance on what happened before the examining magistrate is misplaced: as we have already observed, Bensaid's advocate used an informal method of raising her concerns, not the prescribed procedural method, and the magistrate investigated and reached a conclusion which he communicated to her, as a result of which she took no further steps. None of that supports the argument that the French courts would not properly apply French law.
We can see no evidence that the French courts would act in the way alleged. Moreover, the Secretary of State was entitled to take into account the fact that Article 6 of the ECHR forms part of French domestic law and indeed is superior to any provision contained in domestic law itself. Consequently, if a fair trial were to require the exclusion of Bensaid's evidence, the French courts would be bound to exclude it. Nothing before us demonstrates that French courts do not faithfully seek to implement the terms of Article 6. We are in no position to say, any more than was the Secretary of State, that they would be bound to exclude it: that would depend on what findings of fact they made about the alleged ill-treatment, the effect of any such ill-treatment on what Bensaid said, and whether it is possible under French criminal procedure to admit such evidence but attach little weight to it. Those are matters for the French courts. But for present purposes it is enough that we have concluded that there was material on which the Secretary of State could properly conclude, without further enquiry, that the claimant would get a fair trial in France if extradited.
(c) Risk of Ill-Treatment of Claimant
(i) In France
On behalf of the claimant, it was submitted that the Secretary of State failed to consider whether there was real risk to the claimant of Article 3 ill-treatment in France, were he to be extradited. Mr Fitzgerald argued that the claimant would be in a very similar situation to that of Bensaid. Both are Algerians, accused of very grave terrorist offences. Yet there was evidence of an assault on Bensaid in police custody. The Secretary of State ought to have made a finding as to what happened to Bensaid and addressed the implications of that for the claimant.
We accept that the Secretary of State was required to make a decision as to whether or not there was a real risk to the claimant of Article 3 treatment if extradited. It does not follow that the Secretary of State was required to make a finding of fact as to what took place in respect of Bensaid: given the absence of oral evidence from Bensaid, Dr Becour and the police officers involved at the time, the Secretary of State was, as he said, in no position to make any such finding. What he did do was to proceed on the basis that there was evidence "to support the proposition that Mr Bensaid may have been assaulted in French police custody". That was a proper approach.
As for the risk to the claimant, the Secretary of State was entitled to conclude that a parallel could not properly be drawn between his position and that of Bensaid. If Bensaid was assaulted in police custody on 3rd November 1995, then it may be, as the claimant contended, that the assault was directed towards securing a fuller confession from him. But the evidence before the Secretary of State was that, if the claimant were extradited to France, he would not be interviewed by the French police: see M. Serres' report of November 2003, paragraphs 36 – 37. He would, it is true, be in the custody of French police en route to France, but the Secretary of State rightly emphasised the passage of time between the events of 1995 and the present. There is no reason to believe that any emotions felt by individual French police officers soon after the terrorist bombings remain at the same pitch today. In those circumstances, and bearing in mind the various legal protections for an accused in France described by M. Serres, we have concluded that it was properly open to the Secretary of State to decide that there was no real risk to the claimant of ill-treatment in France amounting to a breach of his Article 3 rights if his extradition were ordered.
(ii) In Algeria
The claimant submitted that the Secretary of State had failed to consider properly the risk of the claimant, if extradited to France, being expelled from there to Algeria and the risk of treatment in breach of Article 3 in Algeria. Reliance was placed on the report of M. Malterre, who refers to suspects being returned to their country of nationality and to the procedures in French law in cases of extreme urgency, under which some Algerians convicted of terrorist acts have been expelled to Algeria, despite the risk of a breach of Article 3.
The Secretary of State dealt in some detail with these arguments. He noted M. Malterre's acceptance that under French law an alien could not be sent to a country where his life or liberty would be threatened or where he could suffer treatment contrary to Article 3. He did not regard the present case as one which would be treated as being of extreme urgency, and he emphasised the claimant's entitlement under French law to take steps to ensure that any challenge by him to removal on Article 3 grounds is heard before removal takes place. The fact that some removals to Algeria had taken place did not show that France did not observe its Article 3 obligations: cases turned on their individual facts.
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. If France did so act, it would itself be in breach of Article 3, as M. Malterre acknowledged.
Moreover, if the claimant were convicted of the grave offences for which his extradition to France is sought, it can be anticipated that he would receive a lengthy custodial sentence. We understand from Miss Blunden's witness statement that Bensaid on conviction received sentences of life imprisonment and 30 years imprisonment. If that is any guide in the claimant's case, and given his alleged role as paymaster it may well be, a conviction would seem likely to mean a considerable time in prison, despite the years he has spent in custody in this country. In those circumstances, any allegation that, on release, he would be deported to Algeria relates to a situation some time in the future. The Secretary of State can scarcely be expected to refuse the claimant's return on the speculative basis that there might be a real risk to his Article 3 rights at some unknown date well into the future. Certainly there was no evidence before the Secretary of State to establish any such real risk.
We can see no flaw in the Secretary of State's decision as to the risk of deportation from France to Algeria, any more than there is in his decision about the risk of ill-treatment in France itself. This third group of arguments is rejected.
It follows that this court is not persuaded that the Secretary of State failed in his decision of 6 April 2005 to exercise properly his powers to order the claimant's return to France. He had sufficient information before him to exercise both his section 12 powers and his general discretionary powers, and the conclusions which he reached were not irrational. His decision was not ultra vires and this application for judicial review is, in consequence, dismissed.
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