B e f o r e :
THE HONOURABLE MR JUSTICE POPPLEWELL
|| (1) ABDUL HAKIM BELHAJ
(2) FATIMA BOUDCHAR
||- and -
||(1) RT HON JACK STRAW
(2) SIR MARK ALLEN CMG
(3) THE SECRET INTELLIGENCE SERVICE
(4) THE SECURITY SERVICE
(5) THE ATTORNEY GENERAL
(6) THE FOREIGN AND COMMONWEALTH OFFICE
(7) THE HOME OFFICE
Richard Hermer QC, Ben Jaffey QC, and Edward Craven
(instructed by Leigh Day) for the Claimants
Rory Phillips QC, Karen Steyn QC and Richard O'Brien
(instructed by Government Legal Dept.) for the Defendants
Jeremy Johnson QC (instructed by Special Advocates' Support Office) for the Special Advocates
Hearing dates: 10-11 July 2017
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Mr Justice Popplewell :
- The Defendants apply for a declaration that these are proceedings in which a closed material application may be made pursuant to section 6 of the Justice and Security Act 2013 ("the Act").
- The Claimants claim that the Defendants were complicit in their extraordinary rendition from Malaysia via Thailand to Libya in March 2004, during and following which they were tortured and Mr Belhaj was summarily sentenced to death. The Amended Particulars of Claim refer repeatedly to "rendition" and define rendition as "a euphemism commonly used since about 2001 to describe covert unlawful abduction organised and carried out by state agents, across international borders, for the purpose of unlawful detention, interrogation and/or torture". A report of the Intelligence and Security Committee dated 28 June 2007 noted that the term "rendition" was used to mean different things by different people and encompassed numerous variations of extrajudicial transfer. The report defined the term to encompass any extrajudicial transfer of persons from one jurisdiction or state to another. It defined "extraordinary rendition" as "the extra-judicial transfer of persons from one jurisdiction or state to another, for the purposes of detention and interrogation outside the normal legal system, where there is a real risk of torture or cruel, inhuman or degrading treatment (CIDT)." This is the sense in which the Claimants use the word rendition, which I shall refer to as extraordinary rendition in this judgment.
- The First Defendant, the Rt. Hon. Jack Straw, was at the time Her Majesty's Secretary of State for Foreign and Commonwealth Affairs. The Second Defendant, Sir Mark Allen CMG, is alleged to have been the director of counter terrorism at the material time for the Third Defendant ("SIS"). SIS, commonly referred to as MI6, and the Fourth Defendant ("SS"), commonly referred to as MI5, are two of the three United Kingdom security and intelligence agencies, together with GCHQ. The Sixth and Seventh Defendants, the Foreign Office and the Home Office, have been sued as the departments responsible for the acts of their servants or agents. The Fifth Defendant has been joined for procedural reasons pursuant to section 17(3) of the Crown Proceedings Act 1947.
- The Claimants' claim in a little more detail can be summarised as follows. After the 09/11 terrorist attacks, the UK security services, and in particular Mr Mark Allen, as he then was, cooperated with Moussa Koussa, his Libyan counterpart as head of the Libyan External Security Organisation ("ESO"), to obtain intelligence about LIFG, targeting sources including Mr Belhaj; the targeting of dissidents such as Mr Belhaj was part of a collaborative deal with Colonel Gaddafi in return for the latter's dismantling of his chemical and nuclear weapons programme. In February 2004 Mr Belhaj and Ms Boudchar were detained by Chinese authorities in Beijing and deported to Malaysia where they were detained at an immigration detention centre in Kuala Lumpur for about two weeks. SS and SIS learned of their detention in Kuala Lumpur, and entered into a scheme pursuant to the collaborative deal with Colonel Gaddafi's regime and approved by Jack Straw, for their extra-judicial abduction and transfer to Libya by US security personnel. In fulfilment of the scheme, the Claimants were first transferred from Kuala Lumpur to Bangkok, where they were detained and subjected to torture and interrogation by US intelligence officers at a US CIA-run "black site". They were then transferred from Bangkok to Tripoli on a plane leased by the US authorities, on which they were again interrogated and tortured by US intelligence officers. On arrival in Tripoli, the Claimants were arrested and detained by the ESO. Ms Boudchar was imprisoned for about three and a half months; Mr Belhaj was imprisoned for about six years. They were tortured throughout their detention in Libya and Mr Belhaj was summarily sentenced to death. The extraordinary rendition was based on British intelligence which was provided in the knowledge of the likelihood or risk that the Claimants would be tortured by US and Libyan officials. The Defendants were not only complicit in the Claimants' extraordinary rendition but supplied questions for the interrogation of Mr Belhaj in Libya, and were themselves involved in such interrogation; the complicity of the Defendants is evidenced by a number of documents discovered by Mr Peter Bouckaert, Emergencies Director of Human Rights Watch, in Tripoli on 3 September 2011, following the fall of the Gaddafi regime ("the Tripoli documents"). Those documents included in particular a letter of 18 March 2004 from Mark Allen to Moussa Koussa confirming that the UK had arranged the Claimants' abduction and that the intelligence which had enabled the operation to take place had been British intelligence.
- As Lord Sumption noted in the Supreme Court appeal in this case, Belhaj v Straw  2 WLR 456 at , the pleaded allegations in this case involve a "combination of violation of peremptory norms of international law and inconsistency with principles of the administration of justice in England which have been regarded as fundamental since the 17th century".
- Proceedings were commenced on 28 June 2012. The claim was framed in the English law torts of false imprisonment, trespass to the person, conspiracy to injure (by lawful means and by unlawful means), misfeasance in public office, and negligence.
- Defences were served on 21 December 2012. The defences averred that save in very limited respects the Defendants were unable to plead a positive case or respond to the detailed narrative or core allegations in the Particulars of Claim because to do so in open proceedings would involve referring to material which was harmful to the public interest. In addition Jack Straw and Sir Mark Allen pleaded that they were inhibited from advancing their defence by their obligations under the Official Secrets Act 1989. The defences also averred immunity or non-justiciability on the basis of the doctrine of state immunity or foreign act of state; and that the claims were governed by foreign law.
- Simon J (as he then was) ordered that the state immunity/act of state and applicability of foreign law issues be tried as preliminary issues. He determined that the causes of action were governed by Malaysian, Thai, US and Libyan law respectively. His decision in that respect was upheld by the Court of Appeal and no appeal was made on that issue to the Supreme Court. The state immunity/act of state issues were the subject of appeal to the Supreme Court who, in a judgment handed down on 17 January 2017, determined that the Defendants could not rely on those doctrines to escape liability or justiciability.
- On 2 May 2017 the Claimants served Amended Particulars of Claim setting out their case on the relevant provisions of Malaysian, Thai, US and Libyan law; and expanding the narrative of the allegations in relation to the course of relations between the UK and Libyan authorities between 11 September 2001 and February 2004, which were alleged to form the relevant background to the Defendants' complicity in the alleged extraordinary rendition. The relevant parts of Malaysian law were said to reflect English common law and the claims in respect of detention and mistreatment in Malaysia were based on the torts of false imprisonment, conspiracy to injure by lawful and unlawful means, misfeasance in public office and negligence.
- Following a CMC on 28 April 2017 and in accordance with a timetable then laid down, on 8 June 2017 the Defendants issued this s.6 application. It was supported by an open statement of reasons signed by the Secretary of State for Foreign and Commonwealth Affairs. It was further supported by closed material comprising a closed statement of reasons signed by the Secretary of State ("the Closed Statement of Reasons"), to which was attached a sensitive schedule containing the sensitive material which it was alleged would require disclosure and a lengthy explanation why such disclosure would be contrary to the interests of national security ("the Sensitive Schedule"). The Sensitive Schedule included and attached a number of documents ("the s.6 material"). Following discussion with the Special Advocates, a version of the Closed Statement of Reasons was put into open ("the Open Closed Statement of Reasons"). It did not include any part of the Sensitive Schedule.
- On 19 June 2017 the Defendants served amended defences. In those defences they plead to the terms and applicability of the foreign laws, and advance a positive case that any detention of the Claimants by the foreign authorities would have been lawful under Malaysian, Thai, US and Libyan law respectively. They make a denial in general terms that they acted unlawfully. They maintain the position previously advanced that save to a very limited extent they are unable to plead a positive case in relation to the detailed narrative or core allegations which form the basis for the Claimants' case, on the grounds that it would be harmful to the public interest; and in the case of Jack Straw and Sir Mark Allen, that they are inhibited from doing so by their obligations under the Official Secrets Act. Those averments of an inability to plead a positive case are supported by the Secretary of State in the Open Closed Statement of Reasons.
- The Claimants have served two witness statements in opposition to the application from Ms Malik, their solicitor, which refer to and exhibit a large number of documents relied on by the Claimants as supporting their claim and as already being in the public domain or in the possession and/or control of the Claimants.
- I heard submissions in the usual way from Mr Phillips QC on behalf of the Defendants and Mr Hermer QC on behalf of the Claimants in open court, before hearing further submissions on the Sensitive Schedule in private from Mr Phillips and Mr Johnson QC on behalf of the Special Advocates. They ensured that as much of the material as could properly be dealt with in an open hearing without damage to the interests of national security was provided to the Claimants, and that the hearing was conducted in open to the greatest extent possible.
- Although my decision is based to a significant extent on the Sensitive Schedule, the Closed Statement of Reasons and submissions made orally and in writing in closed procedure, I feel able to express my reasoning in an open judgment. A separate closed judgment is to be avoided if possible because it cannot be read by the Claimants or the public: R v Secretary of State for Foreign and Commonwealth Affairs ex parte Sarkandi  EWCA Civ 687 at paragraph 26.
Closed material proceedings: the statutory framework
- Under the Act, which came into force on 25 June 2013, in civil proceedings the court may operate a closed material procedure under which the court receives sensitive material in private and without disclosure to the other party or parties, whose interests are to some extent protected by special advocates appointed on their behalf to whom disclosure is also made. Sensitive material means material disclosure of which would be damaging to the interests of national security: s. 6(11). This is a narrower category of material than that which may be withheld under the principles of public interest immunity ("PII"). It follows that where a closed material procedure is permitted, PII applications on other grounds of public interest, including the grounds that disclosure would be damaging to international relations, may be made in parallel with the closed procedure.
- The background to the Act is set out in paragraph 16 and 17 of the Explanatory Notes and paragraphs 16 to 18 of the judgment of Irwin J, as he then was, in F v Security Service  1 WLR 1699, which I need not set out. The Act recognises that in some cases which would potentially involve disclosure of material damaging to the interests of national security, exclusionary PII procedures may prevent any fair trial taking place at all; and seeks to remedy that deficiency by the availability of a closed material procedure.
- The relevant parts of s.6 of the Act are as follows:
"6.— Declaration permitting closed material applications in proceedings
(1) The court seised of relevant civil proceedings may make a declaration that the proceedings are proceedings in which a closed material application may be made to the court.
(2) The court may make such a declaration—
(a) on the application of—
(i) the Secretary of State (whether or not the Secretary of State is a party to the proceedings), or
(ii) any party to the proceedings, or
(iii) of its own motion.
(3) The court may make such a declaration if it considers that the following two conditions are met.
(4) The first condition is that—
(a) a party to the proceedings would be required to disclose sensitive material in the course of the proceedings to another person (whether or not another party to the proceedings), or
(b) a party to the proceedings would be required to make such a disclosure were it not for one or more of the following—
(i) the possibility of a claim for public interest immunity in relation to the material,
(ii) the fact that there would be no requirement to disclose if the party chose not to rely on the material,
(iii) section 17(1) of the Regulation of Investigatory Powers Act 2000 (exclusion for intercept material),
(iv) any other enactment that would prevent the party from disclosing the material but would not do so if the proceedings were proceedings in relation to which there was a declaration under this section.
(5) The second condition is that it is in the interests of the fair and effective administration of justice in the proceedings to make a declaration.
(6) The two conditions are met if the court considers that they are met in relation to any material that would be required to be disclosed in the course of the proceedings (and an application under subsection (2)(a) need not be based on all of the material that might meet the conditions or on material that the applicant would be required to disclose).
(7) The court must not consider an application by the Secretary of State under subsection (2)(a) unless it is satisfied that the Secretary of State has, before making the application, considered whether to make, or advise another person to make, a claim for public interest immunity in relation to the material on which the application is based.
(11) In this section—
"closed material application" means an application of the kind mentioned in section 8(1)(a),
"sensitive material" means material the disclosure of which would be damaging to the interests of national security."
- Section 14(2) of the Act makes the above provisions subject to compliance with Article 6 of the European Convention on Human Rights.
- Accordingly, before a s.6 declaration can be made, the court must be satisfied of four things, namely that:
(1) the Secretary of State has considered whether to make a claim for PII in relation to the material on which the s.6 application is based: s. 6(7) ("the PII precondition");
(2) there is sensitive material, i.e. material whose disclosure would be damaging to the interests of national security, which a party to the proceedings would be required to disclose, or would be required to disclose but for the matters in s.6(4)(b): s.6(4) ("the first condition");
(3) it is in the interests of the fair and effective administration of justice in the proceedings to grant the application: s.6(5) ("the second condition");
(4) the court should in all the circumstances of the case exercise its discretion to grant the application: s.6(3) using the word "may" ("the exercise of discretion").
- There are a number of aspects which merit further exposition in the light of the submissions on the current application.
- First, a section 6 application is only the first stage in a closed material procedure and is regularly described as a gateway: see for example Sarkandi at paragraph 19. The next stage, if a declaration is made, is for closed material applications to be made under s.8 of the Act, by which it is determined document by document whether the material should be disclosed and deployed in open or in the closed procedure. The third stage is that the Court is required by s.7 to keep any s.6 declaration under review and may at any time revoke it if it considers that it is no longer in the interests of the fair and effective administration of justice; and the court must undertake a formal review of the declaration once the pre-trial disclosure exercise in the proceedings has been completed and must revoke the s.6 declaration if the court then considers that it is no longer in the interests of the fair and effective administration of justice.
- The first stage does not require a consideration of all sensitive material which may be relevant in the case: section 6(6). It can be, and often is, based on a sample. It requires the court to be satisfied that a closed material procedure is justifiable by reference to no more than one issue in the case and by reference to no more than some sensitive material. It does not necessarily result in any material ultimately being disclosed or deployed in the closed material procedure at trial, which will depend upon the outcome of the second and third stage. Often where a closed material procedure is invoked the defendant will be unable to plead its defence in full in an open defence and the first step after making a s. 6 declaration will be service of a full closed defence defining the issues in the case with the protection of national security interests which the s. 6 declaration has provided. Thereafter there is the opportunity for further scrutiny of whether and to what extent a closed material procedure is appropriate for any and all of the material which is necessary for a fair and effective resolution of the issues defined by the statements of case.
- Accordingly it does not follow that if the gateway is opened by a s.6 declaration all, or indeed any, of the sensitive material considered on that application will be put into a closed procedure at trial. The question which arises under the second condition at the s.6 stage is not whether it is in the interests of the fair and effective administration of justice in the proceedings for any particular material to be deployed in a closed material procedure at trial; it is whether it is in the interests of the fair and effective administration of justice in the proceedings for a section 6 declaration to be made. It is concerned with whether the fair and effective conduct of the proceedings should enable the gateway to be opened at stage one.
- It cannot be in the interests of the fair and effective administration of justice in the proceedings to make a s.6 declaration and thereby open the gateway to a closed material procedure unless it is necessary to do so, and it will not be necessary to make a declaration if it is clear that there are satisfactory alternatives in respect of the material deployed in the s.6 application: see Sarkandi at paragraph 61. If the sensitive material on which the application is based can obviously be dealt with by an alternative and more satisfactory method, such as gisting, the second condition will not be fulfilled. However the court is not to be drawn into the detailed exercise which would take place on the s.8 applications at stage two, or a PII application, in relation to alternatives to disclosure into a closed material procedure. The disclosure exercise within a closed material procedure is generally a detailed and time-consuming one which requires both the Government department and the Special Advocates to consider exhaustively every aspect of the content of the sensitive material with a view to developing written and oral submissions on areas of dispute. The s.6 application is not therefore primarily concerned with any detailed consideration of whether alternative procedures such as gisting, redactions, in camera hearings or confidentiality rings would be a preferable alternative to a closed material procedure in respect of any particular material. That is usually such as can only be sensibly resolved after consideration of a full closed defence and with the benefit of all the closed material: see McGartland v Secretary of State for the Home Department  EWCA Civ 686 at paragraph 47(i). At the s.6 stage, the court has to take a view on the basis of the sensitive material and in the light of its nature and content, together with its importance as compared with open material, whether the likely result of a PII exercise or the stage two evaluation would put sufficient material in open proceedings to meet the justice of the case. See XH v Secretary of State for the Home Department  EWHC 2932 (Admin) per Burnett LJ at paragraphs 18-19.
- Secondly, a closed material procedure is a serious departure from the fundamental principles of open justice and natural justice: see Al Rawi v Security Service  1 AC 531 per Lord Dyson at paragraph 35; Bank Mellat v HM Treasury (No.2)  AC 700 per Lord Neuberger at paragraphs 2 to 4; McGartland per Richards LJ at paragraph 34. It therefore requires careful scrutiny and caution before it is adopted. Mr Hermer QC on behalf of the Claimants submitted that careful scrutiny and caution is also required because if a s. 6 declaration is made, then at the subsequent stage of considering closed material applications pursuant to s. 8, there is no mechanism for weighing the public interest in disclosure in the balance against the interests of national security, as can be considered when addressing the second condition at the s.6 stage and as would occur on a PII application applying the principles in R v Chief Constable of West Midlands Police ex parte Wiley  1 AC 274; if disclosure would damage the interests of national security the material would automatically go into closed procedure. This is not quite accurate. As Richards LJ explained in Sarkandi at paragraph 59, an important part of the safeguards built into the Act are the provisions in section 8, and the Civil Procedure Rules in Part 82 made pursuant to the Act, which enable the court to require summaries to be provided by a defendant to the claimant and his open representatives, failing which he is not to rely on the material or must make concessions. The public interest in disclosure will inform consideration of those options, as will the necessary compliance with a party's article 6 rights. Nevertheless there is no doubt of the need for rigour and caution in approaching the s.6 exercise.
- However it must also be borne in mind that the incursion into the principles of natural and open justice which is inherent in a closed material procedure is the price which Parliament has determined should be paid in appropriate cases because it falls to be balanced against the competing policy that cases which require disclosure of material which would damage national security should not for that reason be incapable of a trial at all. It is an exceptional procedure and will be used rarely, but there is no reason to give the statutory criteria a narrow construction, subject to any reading down to comply with Article 6 ECHR pursuant to s.14 of the Act. See McGartland per Richards LJ at paragraph 35. A closed material procedure is in Parliament's view one which serves the fair and effective administration of justice, and for that reason consideration of the second condition cannot turn on the aspects of the process which are necessarily part of the incursion into the principles of public and natural justice which are inherent in the closed material procedure itself; consideration must focus on the particular nature of the proceedings and sensitive material in question. See F v Security Service per Irwin J at paragraphs 36 and 41 and Abdulbaqi Mohammed Khaled v Secretary of State for Foreign and Commonwealth Affairs  EWHC 1422 (Admin) per Jay J at paragraph 25.
- Mr Hermer submitted that there were particular features of these proceedings which required a particularly high degree of rigour and exceptionally careful scrutiny and caution. His principal points were that the subject matter of the claims is of the utmost seriousness, involving allegations of involvement in kidnap and torture by senior members of the executive and security services; that there is a strong public interest in such allegations being tried in an open forum with the greatest transparency, whether or not the allegations are true, and without the Claimants suffering the disadvantages of the breaches of natural and public justice involved in a closed material procedure; that a trial taking place in part in secret, and in which the Claimants were hobbled in their ability to pursue their allegations by not having access to the full evidence before the Court, would diminish the public's confidence in the administration of justice in such a serious case, and just as much so if the result were a rejection of the allegations as it would be if they were found proved; that the position of Ms Boudchar, who was four months pregnant at the time and is not alleged in these proceedings to have been involved in LIFG or terrorist activities lends further weight to this consideration; and that this is a truly exceptional case because of the nature and volume of material already available to the Claimants and in the public domain which supports all the core allegations being made.
- The force of these submissions is diminished by two factors. First, they cut both ways. If the Defendants cannot address the issues without resort to material which would damage the interests of national security, and which would be excluded under any PII application, there is a risk that no trial would take place following an application under the Carnduff jurisdiction (Carnduff v Rock  1 WLR 1786). It is this very possibility which it was the purpose of the closed material procedure introduced by the Act to avert. The more serious the case, the greater the imperative to avoid this result, which would be the antithesis of the fair and effective administration of justice. Moreover, if Jack Straw and Sir Mark Allen as individuals are prevented from advancing their defences by the existence of relevant sensitive material or the Official Secrets Act unless there is a closed material procedure, the imperative to ensure a trial in which they can fairly defend themselves by such procedure becomes all the greater, and is further enhanced by the gravity of the allegations made. Secondly Mr Hermer and Mr Johnson QC were concerned to develop arguments that national security concerns could properly be met by one or more alternative procedures, namely PII applications, gisting, disclosure into confidentiality rings which might exclude the Claimants themselves, or sitting in private. However all these involve departures from natural or public justice to some extent: a successful PII application excludes material such that the Court and the parties are deprived of relevant material. That is less satisfactory than a closed material procedure from the point of view of the Court reaching the right conclusion. Gisting necessarily has the effect of excluding the detail which is gisted out. A confidentiality ring which excludes the Claimant is an incursion into the principles of natural justice. If the Court sits in private, the principle of open justice is infringed.
- It is also necessary to keep in mind that a s.6 declaration does not determine the extent to which any allegedly sensitive material will be addressed in a closed procedure at trial, which is a matter for stage two. It does not determine the extent, if any, to which there will be an incursion into public or natural justice in relation to the substantive resolution of the issues in the case.
- I therefore approach the four requirements which s.6 requires to be satisfied with care and rigour, but without any preconception that the nature of the allegations in this case in some way narrows the gateway or raises the bar which they set.
- Thirdly, the first condition can only be met by reference to material which would be disclosable, and disclosure is determined by reference to the relevance of the material to issues in the proceedings. This is a case in which standard disclosure, at least, will be required. Under CPR Part 31.6 standard disclosure requires a party to disclose (1) the documents on which it relies, (2) the documents which adversely affect its own case, (3) documents which adversely affect another party's case, and (4) documents which support another party's case. The relevance of documents for the purposes of standard disclosure in a civil claim is normally tested by reference to the issues identified in the statements of case. In this case the Defendants have declined to plead their case so as fully to identify those issues on the grounds that to do so would be harmful to the public interest and/or contrary to the Official Secrets Act. Nevertheless in order to engage in the exercise required by the first condition in a s.6 application, it is necessary to identify at least an issue in the proceedings to which the material on which the application is based is said to be relevant. Only then can it be determined whether a part of the material is disclosable (or would be disclosable but for the possibility of PII or one of the other matters identified in paragraph 6(4)(b)); and whether disclosure of such part would be damaging to national security. Accordingly, the first condition requires the Secretary of State to:
(1) identify an issue to which any part of the allegedly sensitive material is relevant;
(2) identify which document or part of a document is relevant to such an issue;
(3) establish that that document or part of a document is such that its disclosure would be damaging to the interests of national security.
- Fourthly, although the language of s.6(3), by using the word "may", imports a discretion to refuse to make a declaration even if the PII precondition and the first and second conditions are satisfied, it will be a rare and exceptional case in which that discretion is exercised, given that the second condition requires the court to have concluded that it is in the interests of the fair and effective administration of justice in the proceedings to make the declaration: see XH v Secretary of State for the Home Department per Burnett LJ at paragraph 22.
The issues in the case
- At the heart of the submissions by Mr Hermer and Mr Johnson was a contention that the application was doomed by reason of a failure by the Defendants properly to address the issues which would arise in the proceedings, as distinct from the allegations which the Claimants make. The Open Closed Statement of Reasons states at paragraph 8:
"…[the s.6 material documents] are all centrally relevant to the claim because:
(a) They refer to events concerning the First and/or Second Claimant in the period of the core narrative set out in the Amended Particulars of Claim, at §§ 40 to 77.
(b) They are also relevant to key aspects of the Claimants' narrative:
(i) the allegations of the First Claimant's arrest and detention in China.
(ii) allegations of the Claimants' travel to and detention in Malaysia.
(iii) Claimants' allegations concerning their travel to and detention in Bangkok.
(iv) Claimants' allegations concerning their travel to and detention in Libya."
- Mr Hermer argued that there was overwhelming evidence in the public domain to support what he described as the core allegations being made by the Claimants. He produced at the hearing a table of 20 questions which he said the Defendants should be required to answer, or explain why they could not answer in open, none of which could impinge on issues of national security. I need not set them all out. They include, for example "Do the Defendants dispute the allegation that the Claimants were detained in a site at, or close to Bangkok?" "Do the Defendants advance a positive case that if the Claimants were detained in Bangkok, the detention was lawful?" "Do the Defendants advance a positive case that the Claimants were not mistreated in Bangkok?" "Do the Defendants advance a positive case that the Claimants were not unlawfully rendered from Bangkok to Libya?" "Will the Defendants advance a positive case that they did not provide intelligence about the whereabouts of the Claimants in or around March 2004?" "Will the Defendants advance a positive case that when providing such information they were unaware that it might be utilised to procure the unlawful rendition of the Claimants to Libya against their will and without legal process?" The first step in this s.6 application, Mr Hermer argued, required these questions to be answered in open in order to identify the real issues between the parties on the "core allegations". Mr Johnson supported this approach by arguing that the real issues in the litigation had not been identified sufficiently to enable the application to be fairly and justly determined.
- Mr Hermer, supported by Mr Johnson, went on to submit that in the absence of identification of what would be the real and central issues in the case, the Defendants could not establish that the PII precondition or the first or the second condition were satisfied. As to the PII precondition, he submitted that if the Secretary of State had not properly identified the real and central issues in the case, his statement in the Open Statement of Reasons that he had considered whether to make or advise another person to make a claim for PII in relation to the section 6 material, and that he had concluded that a closed material procedure was clearly more appropriate, could not have been a rationally undertaken exercise or a rational decision. He submitted that the first condition could not be made out without proper identification of the real and central issues because material could only be identified as disclosable if relevant to such issues. He submitted that the court could not be satisfied that the second condition was made out because whether a closed material procedure served the interests of the fair and effective administration of justice required the court to focus on the real and central issues in the case. Mr Johnson submitted that so far as the first condition was concerned, not only did an applicant have to identify a "central" issue in the case but also to show that the passage in a sensitive document is "highly relevant to that material."
- Mr Phillips countered that the wording of s.6 imported no heightened test of relevance, and no categorisation of the issue to which it was relevant. The statutory test set out in the first condition was fulfilled if a sensitive document or part of it was disclosable. He submitted that the Defendants had done all that they could do in open to identify the issues. One of the purposes of the s.6 application was to enable a full closed defence to be pleaded which would refine the issues; but that for the purposes of the present application the issues were defined by reference to the open defence, which apart from identifying specific issues, included a general denial of liability; accordingly the court should proceed on the basis that that which was not admitted was in dispute.
- It is convenient to separate the two strands of Mr Hermer's and Mr Johnson's argument. The first is that the court must decide the application by reference to issues of central relevance or issues on the core allegations and that it must be satisfied that the sensitive material is highly relevant. I can see no justification for this gloss on the wording of the statute. It expressly provides in s. 6(6) that a s.6 declaration may be made on the basis of a sample of material. That material may go only to a single issue in the case. If a sensitive document is relevant to that issue, it is disclosable. That is the statutory test in the first condition in s. 6(4). There is no good reason to impose a different test of relevance for the purposes of s.6 than that which is adopted in the first condition, namely the degree of relevance which would make the document or material disclosable. Equally there is nothing in the statute which suggests that if material is disclosable it must go to a central or core issue. There is nothing in the nature of a closed material procedure which dictates that the issue to which disclosure is relevant should be a central or core issue. If a document is disclosable in relation to one of several alternative ways in which the Claimant seeks to establish liability, it would have to be disclosed in the absence of national security considerations. If the issue were of lesser importance in the context of the case, the incursion which a closed material procedure would make into the principles of natural and public justice would be correspondingly lower. Following the second and third stage, it might be that very little of the process would then be a closed procedure. That is not, however, a reason for closing the gateway at the outset.
- If an issue is so peripheral that it is clear on the s.6 application that disclosure could be dealt with by an alternative method which would serve the interests of the fair and effective disposal of the claim and not involve a risk of damage to the interests of national security, then the second condition would not be fulfilled. But subject to that proviso, the centrality of the issue to which disclosure goes is not a part of the inquiry at the s. 6 stage. All that is required by the wording of the Act and its statutory purpose at that stage, in order to fulfil the first condition, is one sensitive passage in one document which would require disclosure as relevant to one issue.
- Moreover, the section is concerned with "material" which is disclosable, not just documents. It would cover disclosure of information pursuant to CPR Part 18. It extends to disclosure in a statement of case if the party's ability fairly and effectively to conduct its case required such disclosure. The party would be "required" to disclose the material in a statement of case if the fair conduct of its case dictated that it should be permitted to do so. It would create an unjust inequality of arms to confine this to central allegations or highly material averments, thereby imposing a more restrictive threshold than applies to averments of the other party or parties.
- The second aspect to the submissions by Mr Hermer and Mr Johnson is that it is not open to the Defendants in the particular circumstances of this case to treat the core allegations as in issue by way of a general denial in the open defences, given (a) what is said to be the overwhelming evidence adduced by the Claimants and in the public domain; (b) the material in the Sensitive Schedule; (c) the extensive investigation into the events in question which must have been undertaken by the Defendants in the light of the history of the proceedings and a Metropolitan Police investigation and DPP decision on whether to prosecute a suspect in relation to them; and (d) the ability of the Defendants to have identified the real issues and their positive case in closed material in the current application.
- As to (a), the Claimants rely amongst other things on the following. Flight records in the Tripoli documents, corroborated by other records of Eurocontrol and a Tripoli airport log, evidence that a plane, identified as leased by the CIA and used in other renditions, was flown from Thailand to Libya at the time, and evidence the involvement of US and Libyan security service personnel in the transfer. A number of the Tripoli documents, which have been widely publicised and whose authenticity and provenance have not hitherto been challenged, support the allegation that Sir Mark Allen and SIS were involved, together with the US security services, in the transfer of the Claimants to Libya and that the operation was based on British Intelligence. An Intelligence and Security Committee Report of June 2007 found that by mid-2003 the UK security services suspected that the US authorities were operating black sites (which it defined as "an extra-judicial detention and interrogation facility secretly operated by the US Central Intelligence Agency outside the normal legal system"); and appreciated the risk of renditions and possible mistreatment of detainees. The involvement of US security forces in operating a black site in Thailand in 2002 and their use of "enhanced interrogation techniques" was found as a fact by the European Court of Human Rights in Al Nashiri v Poland (2015) 60 EHRR 16, based in part on declassified redacted US intelligence documents.
- As to (c) an investigation was conducted by the Metropolitan Police Service into the events in question, resulting in a decision by the Director of Public Prosecutions not to prosecute, a decision announced in terms which confirmed that there was sufficient evidence to support the contention that the suspect, (who the Claimants say was subsequently identified to them by the police as Sir Mark Allen), had been in communication with individuals from the foreign countries responsible for the detention and transfer of the Claimants, had disclosed aspects of what was happening to others in the UK, and had sought political authority for some of his actions, although it remained unclear what impact or influence his communications and conduct had on the actions of decision makers abroad (the DPP's decision is the subject matter of a pending application for judicial review in which the Secretary of State for Foreign and Commonwealth Affairs has indicated an intention shortly to make a s. 6 application).
- Despite the weight and cogency of that material, it is not part of the function of the court on an application of this nature to review the stance taken by the Defendants and to find, as the Claimants in effect ask me to do, that the general denial and putting of the core allegations in issue is in bad faith or contrary to the Defendants' public duty obligations. I have not seen, just as the Claimants have not seen, the entirety of the evidence available to the Defendants. It is not for this court to assess the weight of the evidence in the public domain before it has been answered. It is no part of the s.6 exercise to evaluate the strength of the claim.
- On any view there are aspects of the Claimants' pleaded case in respect of which this evidence obviously leaves room for real issues which can be seen to arise and to which relevant documentary material would be disclosable. Mr Phillips identified the following specific issues:
(1) whether the Claimants' detention was unlawful under Malaysian, Thai, US and Libyan law respectively;
(2) whether the Defendants' conduct caused the detention to take place or to be prolonged in Malaysia; one of the causes of action advanced in Malaysian law is the tort of false imprisonment, requiring proof that the conduct of the Defendants caused the detention;
(3) what the motives of the Defendants were, and in particular whether the predominant motive of the Defendants was an intention to injure the Claimants, as distinct, for example, from a desire to obtain intelligence from Mr Belhaj for the purposes of preventing or disrupting further terrorist activity, or any other considerations in relation to Ms Boudchar; this is in issue because one of the causes of action pursued in Malaysian law is conspiracy to injure by lawful means;
(4) whether the Defendants acted in bad faith, which is (at least arguably) an ingredient in the cause of action advanced under Malaysian law of misfeasance in public office;
(5) whether the relationship between the Defendants and the Claimants had the necessary degree of proximity and assumption of responsibility to give rise to a duty of care in negligence under Malaysian law;
(6) whether the Claimants suffered the alleged or any injuries or loss, which is put in issue in the Amended Defences;
(7) whether the Defendants' conduct caused the alleged or any injuries or loss to the Claimants, which again is put in issue in the Amended Defences;
(8) whether the Defendants are liable for aggravated or exemplary damages, which depends upon a number of allegations of subsequent dishonest concealment and denial of the events in question, allegations which are again put in issue in the Amended Defences.
- It is no answer to say that false imprisonment, for example, is only one of a number of causes of action advanced in Malaysian law, and it does not touch on other causes of action which would be sufficient for the Claimants to succeed, so as to "plug the gap" as Mr Johnson put it. The Claimants choose which causes of action to advance and the Defendants have to respond to each of them. All are put in the arena by the Claimants and have been put in issue by the Defendants. Unless and until any one is abandoned, or rendered otiose by summary judgment being granted in respect of other causes of action, the issues to which it gives rise remain issues in the case. Those are issues which will require disclosure and if such disclosure would damage the interests of national security, s.6 is engaged. Nor is it an answer, as Mr Hermer submitted, that if the s.6 criteria were only made out in relation to the claim for exemplary damages, there could be a split trial or a declaration that the closed material procedure only applied to that part which did not concern exemplary damages. As to the first aspect, that would be a matter for case management in the light of all the trial considerations when more is known about the shape of the case, but it seems to me unlikely on the basis of the statements of case that the issues on liability could be properly disentangled from those in respect of exemplary damages so as to make a split trial a likely option. As to the suggestion that a s.6 declaration might be made in relation to part of the proceedings, s.6 does not provide for its application to part of proceedings, and I entertain considerable doubts whether it could do so. However assuming that it is a course which is open in principle, it would not be appropriate in this case where it is unlikely that the proceedings would be split in that way. If it were the case that the sensitive material were only disclosable because relevant to this issue, the appropriate course would be to grant the declaration and allow s.8 applications to define the extent of the material which would require to be in closed (which may not be confined to this issue because the s.6 material need only be a sample); and then to make case management decisions in the light of the known position once the closed material has all been identified.
- There are two further reasons why the Court should not seek to go behind the stated position of the Defendants that they are unable to articulate their position further for the purposes of this application. The first is that the obligations on Jack Straw and Sir Mark Allen under s1(1) of the Official Secrets Act 1989 prevent them from disclosing any information or document relating to security or intelligence unless given lawful authorisation to do so pursuant to s.7(3) by official authorisation. Mr Hermer submitted that the Official Secrets Act should form no impediment because s. 7(3) was to be read as if disclosure in one's own defence was always a further ground of lawful authority permitting what would otherwise be a breach of s.1(1). I see no reason to read anything into the statute in such uncompromising terms. There might well come a point at which Article 6 ECHR rights would be engaged to require a reading down of s.7(3), but that point has not been reached in these proceedings. The individuals are not being deprived of the opportunity of a fair trial merely by virtue of the fact that it is considered that there should be a closed material procedure in which their defences can be fully advanced consonantly with the interests of national security. A closed material procedure can be consistent with Article 6 rights. Mr Hermer argued in the alternative that no lawful refusal of official authorisation could be made in the case of a person wishing to defend himself. Again the submission is insufficiently nuanced. There is nothing unlawful in temporarily withholding authorisation for the purposes of enabling it to be given in closed rather than open proceedings so as to protect the interests of national security.
- The second consideration is that the Defendants support their decision not to identify their positive case in open Defences by invoking the policy of "Neither Confirm Nor Deny" ("NCND"). The justification for such a policy, its application, and the scope for exceptions have been extensively considered in the authorities, many of which are referred to and summarised by Pitchford LJ in his ruling on Restriction Orders in the Undercover Policing Inquiry of 3 May 2016 at paragraphs 113-161. It is not a blanket exception to an obligation to disclose information. Nevertheless in the particular circumstances of this case it is readily apparent from the nature and detail of the allegations made by the Claimants that the public interest considerations underlying the NCND policy are engaged, and that admissions or denials would undermine that public interest.
- Mr Hermer relied on a passage in the judgment of Maguire J in the Northern Irish case of In Re Gallagher's application for Judicial Review  NIQB 95 in which the court was considering a s.6 application in respect of the decision of the Secretary of State for Northern Ireland not to hold a public inquiry into the circumstances of the notorious Omagh bombing by the Real IRA in 1998. Maguire J asked himself whether the court was "obliged to view the lines which have been drawn at face value or whether it is necessary for the court to reach a conclusion about the arguability or indeed the strength of the Secretary of State's position as it has been explained" (at ). He considered that it would be inappropriate to reach a conclusion on whether the Secretary of State's case was likely to succeed, but went on to say:
" […] [If] the court, on the other hand, was to adopt the view that the Secretary of State is entitled to draw the lines of defence for the purpose of section 6 just where he or she pleases without any judicial control, this could open the door to a situation where the Secretary of State may obtain a section 6 declaration simply because he or she is willing to introduce sensitive material, even though it might not strictly be needed for the purpose of her defence.
 It therefore appears to the court that it needs to strike a balance and that this should involve it considering whether the Secretary of State's defence is arguable and whether the introduction of sensitive material as part of it is legitimate and necessary, rather than just being convenient."
- Those were judicial review proceedings in which the issues which would fall for decision and require disclosure could not be determined from statements of case. In the current civil proceedings the issues are to be determined by reference to the statements of case, and there is no warrant for any assessment of the merits of the rival contentions for the purposes of determining whether material would be disclosable, just as it would not be a consideration on an application for disclosure under the CPR.
- I have not lost sight of the fact that it would have been possible for the Defendants to submit a draft closed Defence in the closed material in support of this application, or at least a document identifying whether any admissions would be made and what positive case would be run in relation to the core factual narrative. That would have enabled the Court to assess the issues without the need for the Defendants to rely on NCND or to avoid identifying their positive case in relation to the core narrative. There is force in Mr Hermer's submission that the history of this matter means that they should be in a position to do so by now. Mr Phillips indicated that the reason this course had not been adopted was that it was not dictated by the timetable set down at the CMC and is not how s.6 applications are generally conducted. Mr Johnson accepted that such was not required in every case, as indeed is clear from McGartland (see especially paragraphs 32 – 33 and 47(vi)). I have considered whether the particular features of the present case, and in particular the body of evidence already available in support of the Claimants' core narrative to which Mr Hermer referred, together with what is in the Sensitive Schedule, would make it appropriate to adjourn the present application to enable draft closed defences to be considered on this application. I have concluded that that would not be an appropriate course because I am satisfied, as I explain below, that a s.6 declaration is justified by reason of the disclosure which is required in relation to the specific issues identified by Mr Phillips, quite apart from the issues on the core narrative to which the Defendants have yet to plead a positive case. I also bear in mind the procedural context, which is that prior to the production of Mr Hermer's table on the first day of the hearing there was no request for further information of the Defendants' case to be provided either in open or closed. At the CMC Mr Phillips indicated that the amended defences would very likely contain no further substantial pleas in relation to the core factual narrative and that was confirmed by the documents themselves when served. The CMC timetable did not contemplate closed defences until after the hearing of the s.6 application. The Special Advocates did not seek a direction for further information to be provided in closed following the issue of the application and the accompanying closed material. I also observe that in any event an adjournment would not serve the interests of the Claimants: the next step in the proceedings will be closed defences, and pursuant to s.7, the s.6 declaration is always reviewable thereafter. The Claimants and Special Advocates are in the same position as they would be in if I adjourned the hearing for that purpose, and possibly a better position if it should turn out that the closed defences, having removed the central plank of the current opposition to this application by identifying all the issues, reinforce the need for a s.6 declaration.
- Accordingly I address this application on the basis of the current statements of case, including the general denial, such that the core allegations are in issue save to the very limited extent admitted in the open defences.
The PII precondition
- The precondition in s.6(7) is that the Secretary of State should have considered whether to make or advise another to make a PII Claim. It does not require a claim to be made. Nor does it require the Court to consider whether a PII claim would succeed or be preferable to a closed material procedure for the purposes of this precondition. That is clear from the wording of s. 6(7) and CPR 82.22(2) and is the approach consistently applied in the authorities: see F v Security Service per Irwin J at paragraph 37; McGartland at paragraph 47(vii) and (viii); XH at paragraph 12. The Secretary of State's Open Closed Statement of Reasons confirms that he has considered whether to make or advise another person to make a PII application, and explains why he has concluded that such a course is less preferable than a closed material procedure. Mr Hermer's submission that I should treat the decision as irrational because there had been no sufficient identification of the issues is to be rejected. Not only was there a sufficient identification of the issues on the statements of case, for the reasons I have addressed above, but it does not follow from the fact that the Court and the Claimants have only the identification of the issues in the open Defences that that was the limit of the information available to the Secretary of State or which informed the advice to him. In any event, a s. 6 application is not the occasion for a judicial review of the decision of the Secretary of State. All s. 6(7) requires is a consideration of the question, and it is clear that that has taken place. The PII precondition is fulfilled in this case.
The first condition
- I have concluded that the first condition is satisfied for reasons which I can explain in this open judgment. I am confident that those who have had access to the closed material and have been party to the submissions which were made about it will be able to understand the reasons expressed openly without the need for additional reasons in a closed judgment.
- Documents would be required to be disclosed if relevant to the issues I have identified, both in relation to the core narrative, to which the Defendants have pleaded no positive case but a general denial of liability, and the more specific issues identified by Mr Phillips. The material would be required to be disclosed if it would assist or undermine any party's case on those issues.
- Amongst the s.6 material is material which would require disclosure ("s.6 disclosable material") by reason of it falling within one or more of the following descriptions:
(1) material which is relevant as supportive or undermining of parts of the Claimants' core narrative allegations;
(2) material which is relevant to whether the narrative of events renders what was subsequently said dishonestly misleading in the manner pleaded in support of the claim for exemplary or aggravated damages;
(3) material which is relevant to the Claimants' plea in paragraph 78 of the Amended Particulars of Claim that they will rely on the rendition of Mr Saadi and his family as similar fact evidence, which is put in issue by the general denial in the Amended Defences;
(4) material which is relevant to whether one or more Defendants acted with a predominant intention to injure either of the Claimants;
(5) material which is relevant to whether motives of one or more of the Defendants' were those alleged, namely pursuant to a collaborative deal with Colonel Gaddafi's regime as a quid pro quo for dismantling its chemical and nuclear weapons programme;
(6) material which is relevant to whether the involvement of one or more Defendants was in good faith;
(7) material which is relevant to the lawfulness of the detention of the Claimants in Malaysia;
(8) material which is relevant to whether the conduct of one or more of the Defendants was causative of the Claimants' detention in Malaysia;
(9) material which is relevant to how one or more Defendants understood that the Claimants were being and would be treated in Libya; and which is relevant to whether the Claimants suffered the alleged injury or loss.
- In relation to this last category, Mr Johnson argued that for various reasons the material in question lacked sufficient weight to be of any probative value. I disagree. Its weight and probative value will have to be assessed in the context of all the evidence, and can be addressed at the s.8 stage as well as thereafter; but taken on its face it is capable of being important evidence on the issues in question. There was also a dispute which I do not need to resolve about the basis on which the disclosable s.6 material could be withheld from disclosure on other grounds. I do not need to resolve it because it does not matter for the purposes of the first condition whether it is disclosable or would be disclosable but for one of the reasons in s.6(4)(b)(i)-(iv) of the Act. The likely exclusion from evidence of this material (in the absence of a closed material procedure), on one or other basis, informs the consideration of the second condition without it mattering which basis.
- In reaching this conclusion I have borne in mind three important considerations:
(1) Individual sentences or passages may often only properly be understood in the context of other parts of the document, or parts of other documents, and those other parts may be important to an assessment of the meaning and weight to be given to the individual sentence or passages. Redaction of all but an individual sentence or passage may distort the nuances of its meaning, significance or weight by depriving it of context.
(2) Material which spans a period of time may portray a narrative such that any particular passage requires the context of other parts of the material in order for it to be fully understood and its weight properly assessed.
(3) A document may be relevant and important for what it does not say as well as for what it does.
- One or more of these three considerations apply to a substantial proportion of the s.6 material which surrounds the individual passages which fall squarely within the categories of relevance I have identified above.
- I have little hesitation in concluding that disclosure of the disclosable s.6 material would cause significant damage to the interests of national security, substantially for the reasons set out in considerable detail in the Sensitive Schedule. It would be contrary to the policy behind NCND in a way which would damage national security. It would reveal operational details of the activities of the security services in relation to intelligence of importance to national security. Such disclosure is itself damaging to national security irrespective of whether the particular intelligence itself remains sensitive, in the same way as disclosure of intelligence communications received from foreign services can itself damage liaison relationships so as to damage national security, irrespective of the current sensitivity of the intelligence itself. How the security services go about their functions in the way revealed by the disclosable s.6 material is a matter which the interests of national security require should be kept secret both from those involved in the subject matter of this material and, equally importantly, all others whose intentions may be hostile to the security of the country and its nationals. Disclosure of the disclosable s.6 material would also risk identification of security services staff and would involve disclosure of information likely to be of benefit to terrorists and other criminals, both of which would damage national security.
The second condition
- A s.6 declaration is in the interests of the fair and effective administration of justice in these proceedings for the following reasons:
(1) The disclosable s.6 material is relevant to the issues in the case and its disclosure necessary for a fair resolution of the issues in the case.
(2) The disclosable s.6 material could not be disclosed in open proceedings without significant damage to the interests of national security.
(3) A PII application would therefore likely result in the exclusion of a body of relevant evidence which is required for a fair trial of the issues. The material is such that its exclusion would significantly prejudice the parties in the bringing and defending of the claims.
(4) Its exclusion would give rise to a real risk that the exercise of the Carnduff jurisdiction might result in the claim or aspects of it not being tried at all. All the matters urged upon me by Mr Hermer as to the seriousness of the case make this a highly undesirable outcome.
(5) Whilst this is a matter for more detailed consideration at the s.8 stage, it appears to me to be very unlikely that the material could be put into open or made available to the Claimants or their legal representatives in a way which would better promote a fair and effective trial than a closed material procedure. As I have observed, much of the material can only properly be understood and weighed in the context of a substantial part of the material as a whole, such that gisting is unlikely to provide a realistic solution in most instances. Sittings in private and/or the use of confidentiality rings are unlikely to provide a satisfactory solution, both because of the risk of disclosure, even inadvertent, and because of the hobbling effect on the conduct of the Claimants' case if, as is almost inevitable, they were themselves to be excluded from the confidentiality ring. The problems with confidentiality rings where national security is engaged are well known, and have been articulated in a number of cases, including by Irwin J in F v Security Service at paragraph 51, whose remarks apply with equal force to the present case.
(6) These claims are brought not only against the Government, but against two named individuals who both wish to have a real and fair opportunity to defend themselves, but who cannot do so unless there is a closed material procedure.
Exercise of discretion
- There are no other considerations which make it inappropriate to grant a s.6 declaration, which serves the interests of the fair and effective administration of justice in these proceedings.
- I will make a declaration that these are proceedings in which a closed material application may be made to the court.