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||Neutral Citation Number:  EWHC 1728 (Admin)
||Case No: CO/4878/2016
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
||Royal Courts of Justice
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE GROSS
SIR KENNETH PARKER
(SITTING AS A JUDGE OF THE HIGH COURT)
|| The Queen on the application of Gilbert Deya
||- and -
||The Secretary of State for the Home Department
Mr Edward Fitzgerald QC (instructed by Birnberg Peirce and Partners) for the Claimant
Mr Ben Watson (instructed by The Government Legal Service) for the Defendant
Hearing date: 9th June 2017
HTML VERSION OF JUDGMENT APPROVED
Crown Copyright ©
Sir Kenneth Parker (sitting as a Judge of the High Court) :
- This is a renewed application for permission to apply for judicial review to challenge the decision of the Secretary of State for the Home Department ("the SSHD") dated 8th September 2016 by which she decided that the extradition of the Claimant, Mr Gilbert Deya, to Kenya would not be incompatible with his rights under the European Convention of Human Rights ("the ECHR").
- The Claimant was arrested in the United Kingdom on 28th December 2006 pursuant to an international arrest warrant issued by the Chief Magistrates' Court in Nairobi on 13th September 2005.
- The Kenyan request for the Claimant's extradition sought his return for five offences of 'child stealing', contrary to section 174(1)(b) of the Kenyan Penal Code. The Claimant resisted his extradition on the grounds, among others, that his extradition would be incompatible with the ECHR. On 7th November 2007, District Judge Tubbs rejected that contention and the other objections raised on his behalf (including abuse of process), and sent the Claimant's case to the SSHD for her decision whether to order extradition.
- Representations were made to the SSHD on the Claimant's behalf that extradition was barred by reason of specialty, and that there was a risk that the death sentence would be imposed on his surrender. The SSHD rejected those contentions, and ordered extradition on 18th December 2007.
- The Claimant then exercised his statutory right of appeal against both the decision of the District Judge and the SSHD's order.
- On 31st October 2008, the High Court (Dyson LJ, Wyn Williams J) rejected the Claimant's appeal (Deya v Government of Kenya  EWHC 2914 (Admin)). The High Court summarised the points taken as follows:
"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."
- As to Article 3 of the ECHR, the High Court concluded that the Claimant would most likely be detained in Kamiti maximum security prison ("Kamiti Prison"). The Court observed that, "the Kamiti prison buildings are widely considered to provide some of the best prison facilities in Kenya" (para 25). The High Court therefore concluded that the Claimant had "not made out" his case under Article 3 (para 46). The Court then rejected the other heads of appeal raised by the Claimant, and dismissed his appeal (paras 47-52).
- In November 2008, therefore, the statutory extradition proceedings under the Extradition Act 2003 ("the 2003 Act") had concluded, subject only to the Claimant's physical transfer to Kenyan custody.
- On 2nd December 2008 the Claimant's representatives informed the SSHD that there had been an incident at Kamiti Prison on 18th November 2008 which called into question the High Court's decision in the Claimant's case, and reference was made to there being video footage purporting to show naked prisoners being beaten by prison officers.
- In response, the SSHD invited the Claimant's representatives to make full representations in light of the events of 18th November 2008. On 17th December 2008, the SSHD received those representations. The representations focused exclusively on the prison conditions in Kenya.
- Between December 2008 and August 2009, the SSHD gave consideration to the matters raised and, in particular, to the issues surrounding the events of 18th November 2008. In doing so, the SSHD reverted to the Kenyan authorities on a number of matters.
- The SSHD concluded that the Claimant's extradition would not be incompatible with Article 3, or any other provision of the ECHR. She declined the proposal made on the Claimant's behalf to instruct an expert to visit Kenya and to provide a report on prison conditions there. The decision was communicated by letter dated 28th August 2009. It enclosed the Home Office's request to the Government of Kenya, dated 2nd February 2009, and statements (and attachments) received in response from the Commissioner for Prisons in Kenya, Isaiah Osugo, and Dr Chweya, Permanent Secretary in the Office of the Vice President and Ministry of Home Affairs, whose statement included the following: "The evidence provided on behalf of the [Government] in support of the request for the extradition of Gilbert Deya has been provided in good faith and care has been taken to ensure that the evidence is candid and does not mislead the United Kingdom authorities in any way".
The Claimant's response to the 28th August 2009 decision
- On receipt of that decision, the Claimant initially asked for an extension of time in which to decide whether to pursue an application for judicial review. In the event, however, on 12th October 2009 his representatives wrote to the SSHD enclosing two anonymous statements purporting to have been made by prison wardens at Kamiti Prison. At that stage, the documents were anonymous and unsigned (they having been 'personally taken over the telephone' by the Claimant's solicitor). The letter noted that "this makes it difficult for you to check the veracity of them. Nonetheless they do raise matters that directly contradict the accounts of Kamiti Prison given by the Kenyan authorities and we believe that the only way that this can be resolved is by an independent inspection of Kamiti Prison".
- Having received this further material, on 14th October 2009 the SSHD asked for all further evidence upon which the Claimant intended to rely to be served, along with any further representations to be made.
- The Claimant then made further representations on 21st October 2009, which led the SSHD to make further enquiries with the Kenyan authorities. On 4th May 2010 the Attorney General of Kenya replied, giving an assurance that if the Claimant were detained in custody (either on remand or following conviction) it would be at Kamiti Prison where he would be allocated his own (single occupancy) cell, outside Block G, which had been the centre of the events of 18th November 2009.
- Following further correspondence, the Claimant's representatives made further representations on 7th March 2011, enclosing four affidavits alleged to be from prison wardens at Kamiti Prison, to the effect the "the [prison] wardens are forced to torture, strip prisoners naked and instil fear in them". Following further enquiries by the SSHD, the Government of Kenya responded on 29th June 2011, stating in essence that the four affidavits were forgeries, that the modern facility at Kamiti Prison was more than satisfactory, and that three foreign prisoners were held there without complaints having been made about the conditions. On 13th September 2011 the SSHD informed the Claimant that she was upholding the extradition order. In particular, the SSHD was satisfied that the opening of the modern section at Kamiti Prison, with an understanding that the Claimant would be detained there at all times, had reinforced the conclusion of the High Court in October 2008 that extradition would not infringe Article 3. The SSHD also explained why she could attach no weight to the four affidavits mentioned above.
- Further representations were received from the Claimant's representatives, on 26th September 2011, 7th and 17th October 2011 and 24th November 2011, which led to further enquiries to the Government of Kenya and a response on 21st August 2012 from Mr Njoga of the Kenya Prisons Service who maintained that the evidence from the prison wardens was not genuine.
- In the light of the continuing controversy the SSHD instructed, by letters of 13th January 2013 and 20th August 2013, Lord Ramsbotham, a former HM's Chief Inspector of Prisons, as an independent expert to assess prison facilities in Kenya. As part of his investigation Lord Ramsbotham visited the "special category compound" at Kamiti Prison and stated:
"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."
- Lord Ramsbotham concluded (at para 81):
"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."
- On 30th January 2015 the Claimant's representatives made further representations, leading to further enquiries of the Government of Kenya, and on 14th October 2015 the SSHD informed the Government of Kenya that she was minded to order the Claimant's extradition "on the basis that, if detained, he is held at all times in a single cell within the Special Unit at Kamiti Maximum Security Prison".
- On 25th May 2016 the Government of Kenya replied, giving a further and final assurance by the Cabinet Secretary, Hon. Major General (rtd) Joseph Nkaissery NGS CBS, as follows:
"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 SSHD then made the challenged decision.
The current judicial review proceedings in Kenya
- In the light of the latest submissions on behalf of the Claimant it is necessary to describe the relevant proceedings in some detail.
- On 27th July 2005 the wife of the Claimant, Mrs Mary Juma Deya, was also charged with stealing 5 children (the same children that the Claimant is alleged to have stolen) contrary to section 274(1) of the Kenyan Penal Code. On 4th November 2011 the Senior Resident Magistrate, Chief Magistrates' Court at Nairobi, considered the prosecution evidence against Mrs Deya. He held that even if the evidence were to show that Mrs Deya was not the biological mother of the 5 children in question, there was no prima facie case that she had committed the offence of child stealing. The prosecution evidence was entirely "circumstantial", and although it might be tempting "to place [Mrs Deya] on her defence simply so that she can explain how she came to be in possession of the children" (judgment, page 15), in the opinion of the judge such a temptation should be resisted, because it was "tantamount to asking [Mrs Deya] to fill the gaps in the prosecution's case", and it would be "like asking [Mrs Deya] to prove her innocence". The case against her on the charge of child stealing was consequently dismissed. She was later acquitted at trial on a second charge of obtaining birth registrations by false pretences. It does not appear that Kenyan criminal procedure contains a provision equivalent to section 34(3) of the Criminal Justice and Public Order Act 1994 that permits a court to draw appropriate inferences from the silence of an accused person in determining whether there is a sufficient case to answer.
- It does not appear that the prosecution sought to challenge the ruling of the Senior Resident Magistrate. It may be that no such challenge was open under the criminal procedure of Kenya, in contrast to the position in this jurisdiction where, in respect of summary proceedings, the prosecution could request a case to be stated for the High Court, or could seek permission to apply for judicial review, or in the case of a trial on indictment, invite the High Court to prefer a voluntary bill of indictment. However, it also appears that at no time since 4th November 2011 did the Claimant seek to make any application to the Chief Magistrates' Court at Nairobi that, in the light of the above ruling, the criminal proceedings against him also should be terminated. Again it is unclear whether such an application was open to the Claimant in Kenya, as it would be here, either at a preliminary hearing to determine whether the prosecution evidence, taken at its highest, could properly sustain a conviction, or on an application that continuation of the criminal proceedings on those grounds would constitute an abuse of process. On this whole matter there was simply a deafening silence from the Claimant, until the events now described.
- On 26th September 2016, close to 5 years after Mrs Deya's case had been dismissed, the Claimant, through Rachier & Amollo Advocates, sought permission in the High Court of Kenya at Nairobi to apply for judicial review. He did so by a "Certificate of Urgency", a "Chamber Summons", a "Statutory Statement" and a "verifying affidavit" (from the Claimant himself). He sought judicial review to quash the relevant warrants of arrest, the decision to institute the relevant criminal proceedings, and the five specific counts of child stealing. He asked for an order of prohibition to prevent the four named respondents from proceeding with the relevant criminal case pending "the hearing and determination" of the application for permission, and for an order that the grant of leave should operate as a stay of the warrants of arrest "pending the hearing and determination" of the matter in question.
- The grounds upon which relief was sought included abuse of power, irrationality and unreasonableness, but the thrust of the claim was that, in the light of the dismissal of Mrs Deya's case, the criminal proceedings against the Claimant could not lawfully continue.
- Although it cannot be said from the above documents that the matter is entirely free of obscurity, it does appear that the Claimant, through his Advocates, was not asking for the court to grant permission and interim relief ex parte without allowing the respondents an opportunity to oppose such grant and/or relief. The "Chamber Summons" appeared to contemplate an inter partes hearing on these substantive elements, and the "ex parte" element appeared limited to the request for expedition. That would hardly be surprising. Certainly in this jurisdiction it is barely conceivable that the Administrative Court would grant permission to apply for judicial review of long standing criminal proceedings, and make an interim order suspending their continuation, without allowing the prosecution a fair opportunity to oppose the applications. The barely conceivable becomes almost fantastic in circumstances such as these here, where the alleged grounds of challenge arose many years before, and where the obvious remedy would have been a timely application to the criminal court which had the conduct of the case (see paragraph 25 above). It is notable in that context that the Chief Magistrates' Court was made the fourth respondent to the proceedings for judicial review, not having been previously alerted to any challenge to the criminal proceedings.
- However, notwithstanding the foregoing, there was produced to this Court, on behalf of the Claimant, what purported to be a certified true copy of what purported to be a genuine order dated 27th September 2016 of the High Court of Kenya, granted ex parte, in the following terms:
"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]."
- The purported order was not signed by a High Court Judge, and certainly the name of the leading judge, Lady Justice Aburili, does not appear on the face of the purported "order".
- In a letter dated 26th January 2017 from Keriako Tobiko CBS, SC, Director of Public Prosecutions, Kenya, to the UK Central Authority, Mr Tobiko stated that no such ex parte "order" was made by the High Court. On the contrary, the application for leave and interim relief was placed before the duty judge who directed that the application should be served on all the parties "for inter parte [sic] hearing on 23 November 2016" (that appears to be a chronological slip for the inter partes hearing was actually held on 14th November 2016).
- Furthermore, there was produced to this Court, on behalf of the Claimant, a purported copy of a purported "Notice of Appeal" dated 11th October 2016 of the Director of Public Prosecutions, stating that he intended to lodge an appeal against the "whole of the Ruling and Orders of the Honourable Lady Justice Aburili delivered on the 27 of September 2016". That could only be a reference to the purported "order" described above.
- Again, the DPP in Kenya states that no such "Notice of Appeal" was ever filed and served, and that the document is not genuine.
- There is no evidence that any prohibition order of 27th September 2016 was ever served, by the court or the Claimant, on any of the four respondents to the claim for judicial review. There is no contemporary correspondence from the lawyers acting on behalf of the Claimant to any of the respondents, drawing attention to the alleged interim "order" of prohibition, and, as might be expected, seeking assurance that they would abide by the "order", eliciting their views on the next steps in the proceedings, and perhaps even flagging any potential impact on the extradition proceedings in the UK which had reached a critical point. It may be significant that the so called "order" of prohibition contained no express provision granting the respondents liberty to apply to seek to set aside or vary the "order", such as would ordinarily be provided in a genuine order in this jurisdiction.
- In any event, the Claimant's applications (for leave and interim relief) did come inter partes before Lady Justice Aburili for directions on 14th November 2016, and directions were given by the judge on 23rd November 2016, including a direction that the respondents should file and serve their responses to the Claimant's application. That direction would have made little, if any, sense, if orders granting leave and interim relief had in fact been made, and if the DPP had in fact filed and served a notice of appeal against such putative orders. Certainly there is no indication whatsoever in the directions hearing of an ex parte "order" of 27th September 2016.
- The Attorney General, on behalf of the Chief Magistrates' Court, did on 18th January 2017 file and serve grounds of opposition to the Claimant's applications.
- The resumed hearing for directions was held inter partes on 19th January 2017, and Lady Justice Aburili ordered that all the respondents had to file responses within 5 days, and the learned judge set down the applications for oral hearing to be held on 15th February 2017. Again there is no indication of any ex parte "order" of 27th September 2016.
- On 19th January 2017, the DPP filed a "Replying Affidavit" in which, for the reasons stated, he invited the court to dismiss the Claimant's applications. No mention is made in that affidavit of an ex parte "order" of prohibition or of any "Notice of Appeal".
- On 31st January 2017, Mr William Ongoro, of Rachier & Amollo Advocates, acting for the Claimant, wrote to the DPP asking for a list of witnesses and any other documents upon which the DPP intended to rely at the next hearing, fixed for 15th February 2017. Again there is no mention of any ex parte "order" of prohibition or "Notice of Appeal" in that letter. That letter was followed by a further letter of 2nd February 2017 from Mr Ongoro, seeking further information and clarification. No mention again is made of any ex parte "order" of prohibition. The matter did come before the court inter partes on 15th February 2017, but was adjourned until 29th March 2017, again with no indication of any ex parte "order" of prohibition of 27th September 2016.
- At the inter partes hearing on 29th March 2017, Mr Edwin Okello, Senior Assistant Director of Public Prosecutions, did bring to the attention of the High Court in Kenya the purported court "order" of prohibition dated 27th September 2016, of which he had by then become aware. In a letter dated 21st April 2017 to the British High Commission, Mr Okello stated that Lady Justice Aburili expressed surprise, observing that, contrary to normal practice, the purported "order" did not bear the name of the judge who was supposed to have issued the "order". She also made clear that the application for leave had not yet been heard and so "no orders would issue"; and directed that there should be a police investigation to discover "those behind the fake order".
- The next day, 30th March 2017, the Nairobi "Star" reported these events under the heading "Deya in trouble for issuing UK court with a "fake" order", adding in its report a remark by the learned judge that "we are discouraging this kind of monkey business".
- Although there can be little doubt that the purported ex parte "order" of prohibition was drawn to the court's attention on 29th March 2017, and that the learned judge commented in the strong terms indicated above, it does not appear that Mr Ongoro, on behalf of the Claimant, at the hearing gave the court any assistance on this matter, and there is no evidence that he subsequently corresponded with the court to offer such assistance, notwithstanding the gravity of circumstances in which an inauthentic but purportedly important court order had apparently been created and had then been transmitted to the UK on the basis that it was genuine and could properly be relied on by this Court with a view to halting the extradition of Mr Deya.
- In any event the matter then came again for hearing on 15th May 2017, and Lady Justice Aburili made an order, including these terms:
"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]
- On 6th June 2017 Mr Okello wrote again to the British High Commission, re-affirming that the Claimant's application for leave to move for judicial review had not been heard, that the purported court "order" of 27th September 2016 was not genuine, and that any purported "Notice of Appeal" against which such an "order" was also not genuine.
- On 31st May 2017 Mr Nigel Leskin, a solicitor of Birnberg Peirce and Partners, acting on behalf of the Claimant, filed an affidavit in this Court, setting out how he had received the purported "order" of prohibition of 27th September 2016, and the purported "Notice of Appeal" of 11th October 2016 from Mr William Ongoro, the Claimant's lawyer in Kenya at the relevant time. Mr Ongoro denied that he had furnished any false documents, but Mr Leskin stated that Mr Ongoro had not responded to pertinent questions pressed on him by Mr Leskin. Mr Leskin also said that, when the authenticity of the "order" of 27th September 2016 was raised before the court in Kenya on 29th March 2017, the Claimant became "concerned" and appointed a new lawyer, Mr Jack Oronga of Odhiambo Oronga and Co, Advocates, in Nairobi "to work alongside Mr William Ongoro". It is clear, therefore, that Mr Oronga was not involved at all in the judicial review proceedings at the time when the "order" of prohibition of 27th September 2016 and the "Notice of Appeal" of 11th October 2016 emerged, nor at the time when these documents were sent to Mr Leskin in connection with the proceedings before this Court. It is not apparent from the papers that Mr Oronga, though apparently now "working alongside" Mr Ongoro, sought or obtained from Mr Ongoro further and better particulars in respect of the emergence of the "order" of 27th September 2016 and the "Notice of Appeal" of 11th October 2016.
The jurisdiction on this court in the present proceedings
- Sir Scott Baker in his "Review of the United Kingdom's Extradition arrangements" stated:
"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."
- Section 108(5) of the 2003 Act now provides for a statutory procedure by which an individual may exceptionally appeal out of time to the court "on human rights grounds". These important new provisions, intended to streamline and expedite extradition proceedings, do not apply in the present case, by virtue of the application of the transitional provisions in paragraph 4 of schedule 20 to the Crime and Courts Act 2013.
- This case is therefore governed by the previous and well-established jurisprudence, to the effect that the SSHD, as a public authority under the Human Rights Act, continues to be obliged to withdraw an extradition order if:
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  EWHC 762 (Admin) at para 61; Nisbet v Secretary of State for the Home Department  EWHC 170 (Admin) at para 3; Taylor v Governor of HMP Wandsworth  EWHC 1020 (Admin) at para 32.
- If a requested person seeks to challenge the refusal of the SSHD to withdraw the extradition order in accordance with the above jurisprudence, the task of this court has been described as follows:
" …. 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  EWHC 2021 (Admin), by Stanley Burton LJ at para 66.
The Claimant's Submissions
- Mr Fitzgerald QC, who appeared at the hearing of this application for the Claimant, in his characteristically succinct and well focussed submissions, advanced the following points:
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.
- Secondly, even if the court were not minded to grant an adjournment on either of the above grounds, Mr Fitzgerald submitted that permission should nonetheless be granted so that the Claimant could advance a case at a substantive hearing that, in the light of the judicial review proceedings in Kenya, his extradition could not in the meantime lawfully proceed.
- Thirdly, Mr Fitzgerald QC contended that there was sufficient evidence for this Court to conclude that the Government of Kenya was not acting in good faith in continuing to press for the claimant's extradition. In particular, he argued that there was a real risk that the Claimant would face prison conditions in Kenya that would infringe his rights under Article 3 of the ECHR, and that any assurance by the Government of Kenya as to where he would be held in custody, either awaiting trial or on conviction, could not be relied on. In this context he referred to matters that were alleged to have occurred before the conclusion of the statutory proceedings, and to subsequent events, with particular emphasis on the dismissal of the criminal case against Mrs Deya in November 2011.
- I have no hesitation in refusing the application to adjourn, on any of the grounds advanced by the Claimant. In my view, the evidence is compelling that the "order" of prohibition of 27 September 2016 is not genuine.
- First, the Kenyan High Court itself has now recognised on two occasions that the "order" is not authentic: see paragraphs 40, 41 and 43 above. The order of Lady Justice Aburili of 15 May 2017 states in terms that the High Court did not issue the "order" of prohibition. That could hardly be more emphatic, and was an unsurprising statement, given the context and background that I have described.
- Furthermore, the DPP in Kenya and Mr Okello have both confirmed that the "order" of prohibition is not genuine and that at the outset the applications both for leave and for interim relief were scheduled to be determined inter partes (see paragraphs 31, 33, 40 and 44 above).
- Finally, the authenticity of an alleged ex parte order of prohibition was intrinsically improbable (see paragraph 28 above). As explained earlier, the circumstances immediately following the alleged issue of such an "order" are not consistent with the existence of an order of prohibition. There was no mention of such an order in subsequent correspondence (see paragraph 34 above), or in the early inter partes hearings for directions (see paragraphs 35,37, and 39 above). The failure of Mr Ongoro at any point to offer assistance as to how the "order" emerged is also striking.
- As to Mr Fitzgerald's second submission (paragraph 52 above), this faces insuperable difficulties. The issue of a collateral challenge to the criminal proceedings in the requesting state, standing alone, would not ordinarily be sufficient to undermine, or suspend, an order for extradition. No doubt challenges of that nature, either collateral or preliminary, are available in many foreign jurisdictions, and in the past may well have been brought in the context of extradition proceedings, but no authority was cited to support the Claimant's argument, and I see no sound reason of principle or policy to accept it. Mr Watson, who appeared on behalf of the SSHD, and to whose clear and thorough written and oral submissions I was greatly indebted, referred to circumstances in which a requesting state might invite the authorities in the requested state not to proceed with extradition, either temporarily or definitively, in the light of a challenge to the underlying criminal proceedings in the requesting state. That, however, is not the present case: the Government of Kenya has made clear that it is strongly resisting the collateral challenge, that it has every intention of proceeding with the criminal charges against the Claimant, and that it wishes the order of extradition to be given immediate effect.
- Mr Watson also accepted that there might be an extreme case where a collateral challenge might tip the balance to show that a requesting state was not acting in good faith, but he submitted, and I agree, that the present circumstances fell a great deal short of what would be required. Indeed, he contended that the Claimant's failure to bring the judicial review proceedings to the SSHD's attention, when it could be readily inferred that the main, or at least a significant, reason for their institution was to seek to undermine or to delay the extradition process, cast considerable doubt on the Claimant's own bona fides, doubt that was only enhanced by the production of, and reliance on, an "order" of the High Court in Kenya that was clearly not authentic. This, he submitted, was in effect conduct akin to the proverbial thirteenth chime of the cuckoo clock that cast doubt on all that had gone before. For my part, I see considerable force in that submission.
- Lastly, in this context, I do not understand how, on any view, the maintenance of the extradition order, and the Claimant's extradition, would infringe Article 5 or Article 6 of the ECHR, as perforce (given the Court's powers) suggested by Mr Fitzgerald QC. If the Claimant is extradited, and were to succeed in his claim for judicial review in Kenya, there would be no criminal trial, and no question could arise as to whether such a putative trial would be "fair". If his judicial review fails, he will be tried on the charges and there is no ground for believing that his trial would be "unfair". As to Article 5, he may no doubt apply for bail in Kenya, drawing attention to his collateral challenge for that purpose, or apply before the High Court in Kenya for appropriate interim relief in the judicial review proceedings. In either case I see no basis for believing that any such applications would not be fairly considered, or that there would be a real risk of unlawful detention under Article 5.
- As to the alleged infringement of Article 3, I do not accept Mr Fitzgerald QC's necessary premise that the Government of Kenya has not been acting in good faith, a premise that can be shown only by evidence possessing "special force" (see Ahmed and Aswat v Government of the USA  EWHC 2927 (Admin), by Laws LJ at 101. Mr Fitzgerald QC relied before us primarily on the Government of Kenya's determination to continue the criminal proceedings against Mr Deya, notwithstanding that the case against Mrs Deya had been dismissed. It is necessary on this aspect to emphasise immediately that within the statutory extradition process District Judge Tubbs cogently concluded that, so far as would be required in domestic summary proceedings, there was "sufficient evidence to make a case requiring an answer on each of the alleged offences on which Mr Deya's extradition is sought". That conclusion was, correctly, not challenged in the statutory appeal in this Court. The fact that the Government of Kenya intends to press on with the charges against Mr Deya after the dismissal of Mrs Deya's case is nowhere near sufficient, in my view, to show that the Government knows that it has no sustainable criminal case against Mr Deya and is accordingly acting in bad faith.
- The prosecution authorities in Kenya are in principle at liberty to argue that the decision to dismiss Mrs Deya's case was a decision on the evidence presented against a separate defendant and did not represent a legally binding precedent for the disposal of Mr Deya's case. Mr Watson also pointed out that, unlike Mrs Deya, Mr Deya had in police interview falsely alleged paternity of the children that were the subject matter of the charges, and there appeared to be nothing to preclude the prosecution from seeking to rely on that falsehood to buttress its submission of a sufficient case for Mr Deya to answer.
- Nor am I satisfied that any of the other matters raised by Mr Fitzgerald (such as Mr Karani's statements, the videos of Mr Amusen and the purported statements of "the four warders") come anywhere near the threshold required to show bad faith on the part of the Government of Kenya. Mr Fitzgerald QC accordingly accepted that, in default of such a finding and in the light of the governing legal principles, his submissions under Article 3 were severely, if not fatally, weakened. The High Court in 2008 had been satisfied that the claimant would be detained in Kamiti prison and that in all the circumstances it was "highly unlikely he would be detained in poor conditions". In September 2014 District Judge Zani in extradition proceedings against another person requested by the Government of Kenya, having heard evidence regarding conditions in Kamiti prison, including the report of Lord Ramsbotham (who gave oral evidence and was cross-examined) concluded:
"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"
- On appeal the High Court found no reason to depart from the conclusions of District Judge Zani (Devani v Republic of Kenya  EWHC (Admin) 3535 at paragraphs 164-170).
- The Cabinet Secretary has now in this case given an express assurance that Mr Deya will be detained at all times only in the Special Unit at Kamiti Maximum Prison, where he will be alone in a single cell. There is no good reason to question the reliability of that assurance, it would be a simple matter to determine whether or not the assurance is honoured, and for good measure a similar assurance has been held to be reliable both by the District Judge and this Court in the case of Devani. On the secure footing that Mr Deya will be so detained on extradition to Kenya, there is compelling evidence that the Special Unit at Kamiti Maximum Prison fully meets the requirements of Article 3 ECHR, and there is no risk that his extradition and confinement in prison, in accordance with the assurance mentioned about, would infringe his rights under that Article.
- For these reasons I conclude that there are no arguable grounds that would justify the grant of permission to apply for judicial review. I have set out the matter in some detail but at the end of the day the matters raised by the Claimant can clearly be seen not to be properly arguable, and it would be wrong to permit this claim to proceed to a substantive hearing. Accordingly, I would dismiss this renewed application.
Lord Justice Gross:
- I entirely agree and add only this. The delay in this matter is truly alarming. The Claimant was initially arrested in December 2006. It is little short of scandalous that the proceedings have taken until now to resolve. It is essential that cases such as this are firmly "gripped" by the SSHD to guard against incremental and massive slippage of this nature; the Court will be more than willing to play its part.
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