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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Deya, R (On the Application Of) v The Secretary of State for the Home Department [2017] EWHC 1728 (Admin) (12 July 2017) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2017/1728.html Cite as: [2017] EWHC 1728 (Admin) |
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QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Strand, London, WC2A 2LL |
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B e f o r e :
SIR KENNETH PARKER
(SITTING AS A JUDGE OF THE HIGH COURT)
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The Queen on the application of Gilbert Deya |
Claimant |
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- and - |
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The Secretary of State for the Home Department |
Defendant |
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Mr Ben Watson (instructed by The Government Legal Service) for the Defendant
Hearing date: 9th June 2017
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Crown Copyright ©
Sir Kenneth Parker (sitting as a Judge of the High Court) :
Background
"9. The appeal against the decision of the district judge contains a number of elaborate grounds. In summary the points that have been raised, are (i) that extradition would give rise to a risk of a breach of Articles 2, 3, 5, 6, 8 and 13 of the Convention, and (ii) if extradited the appellant would be punished for his political opinions, that is to say, his extradition is barred by reason of extraneous considerations within the meaning of section 81 of Act.
10. The principal ground of appeal is that extradition of the appellant would be incompatible with the appellant's Convention rights. […] It is submitted that, if extradited to Kenya, there are strong grounds for believing that the appellant would face a real risk of being subjected to inhuman and degrading treatment by reason of the prison conditions in which he would be detained whilst on remand and, if convicted, after sentence."
The Claimant's response to the 28th August 2009 decision
"The atmosphere in this compound was very relaxed, and, amongst others, I spoke with an elderly American Bishop, who had been imprisoned there for a year and was still awaiting trial. He told me that he had no complaints, was able to see his lawyer, received visits from the American embassy, and felt safe and secure. I was told that this was the compound in which The Hon. Tom Cholmondeley recently spent three years, both on remand and after conviction for manslaughter, allegedly without complaint.
If Mr Deya were to be held in this compound, his only complaint could be lack of access to work, because of regulations about mixing with other prisoners. However, he would have access to education, on request to the teacher in charge."
"On the evidence of what I saw during my inspection of the three prisons to which [the Claimant] might be sent, I can see no reason why Mr Deya should not be extradited, as soon as possible, to stand trial."
"I confirm on behalf of the Government of Kenya that the Government maintains its request for extradition of Mr. Gilbert Deya following the ruling of the Senior Resident Magistrate, dated 4 November, 2011 in the proceedings brought against his wife, Mrs Deya.
The Government of Kenya also gives the following assurances to the United Kingdom in respect of Mr Gilbert Deya in the event of his extradition to Kenya:
1. If remanded in custody while awaiting trial, Mr. Deya will be housed in the Special Unit at Kamiti Maximum Prison. He will be there in a single cell where he will occupy alone.
2. If convicted and sentenced to serve a term of imprisonment, Mr. Deya will be housed in the Special Unit at Kamiti Maximum Prison. He will be held there in a single cell, which he will occupy alone.
These assurances replace all assurances given in this matter."
The current judicial review proceedings in Kenya
"1. THAT leave be and hereby granted to applicant to apply for Judicial Review and an order of prohibition directed to all the Respondents jointly and severally prohibiting any of them from reopening or purporting to re-open, bringing, investigating, instituting, carrying out and/or proceeding with any criminal proceedings or charges in connection with Nairobi Chief Magistrates' Criminal Case Number 2008 of 2005.
2. THAT leave is granted aforesaid to [sic] do operate as a stay of the warrants of arrest in [the same criminal proceedings]."
"1. THAT it is hereby directed that the Director of Public Prosecutions to use their available legal machinery to carry out investigations to determine the authenticity of the alleged "order" and take appropriate legal action against the person found culpable of generating the "order" which this court did not issue" [emphasis added]
The jurisdiction on this court in the present proceedings
"1.33 We think The Secretary of State's involvement should be further limited by removing human rights matters from her consideration as we believe they are more appropriately the concern of the judiciary.
1.34 We accordingly recommend that human rights issues arising at the end of the extradition process under Part 2 of the 2003 Act should be dealt with by the courts rather than the Secretary of State"
In the light of that recommendation the 2003 Act was amended by the inclusion of two new subsections in section 70, as follows:
"(10) subsection (11) applies at all times after the Secretary of State issues a certificate under this section.
(11) The Secretary of State is not to consider whether extradition would be compatible with the Convention rights within the meaning of the Human Rights Act 1998."
a) There has been a material change of circumstances or relevant new event since the conclusion of the statutory extradition proceedings, and
b) Such change of circumstances or new event would render the extradition of the requested person incompatible with his rights under the ECHR: McKinnon v Government of the USA [2007] EWHC 762 (Admin) at para 61; Nisbet v Secretary of State for the Home Department [2009] EWHC 170 (Admin) at para 3; Taylor v Governor of HMP Wandsworth [2009] EWHC 1020 (Admin) at para 32.
" …. the question for the court is not whether the Secretary of State properly exercised her discretion, or reached a sustainable decision, but whether objectively the evidence before the Secretary of State established a real risk that the claimant's extradition would infringe his convention rights, and in particular his right not to be subjected to treatment that would contravene Article 3. (R (on The application of McKinnon)) v Secretary of State for the Home Department [2009] EWHC 2021 (Admin), by Stanley Burton LJ at para 66.
The Claimant's Submissions
First, he contended that, on the available evidence, this Court could not be satisfied that the "order" of prohibition of 27 September 2016 was not genuine. The right course, therefore, was either to adjourn the present application for permission, to allow further investigation in Kenya, or to grant permission to apply for judicial review, enabling the SSHD to reflect further on all matters raised by recent events, with or without the benefit of further enquiries or investigation in Kenya.
Discussion
"I am satisfied that the conditions in Kamiti are Article 3 compliant: I am further satisfied that Mr Devani will be afforded the same attention as other high-profile inmates and be housed in the special unit (with facilities such as a single cell) and that the incident referred to as the 'You Tube Video' back in 2008 was an isolated incident which may well have acted as a catalyst so as to focus the attention of the Kenyan authorities on improving conditions not only within the general prison estate, but within Kamiti Prison itself. All challenges raised in respect of Article 2 and Article 3 are rejected"
Lord Justice Gross: