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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Aamer v Secretary of State for Foreign and Commonwealth Affairs [2009] EWHC 3316 (Admin) (15 December 2009) URL: https://www.bailii.org/ew/cases/EWHC/Admin/2009/3316.html Cite as: [2009] EWHC 3316 (Admin) |
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QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Strand, London, WC2A 2LL |
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B e f o r e :
THE HON. MR. JUSTICE LLOYD JONES
____________________
Shaker Aamer |
Claimant |
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- and - |
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The Secretary of State for Foreign and Commonwealth Affairs |
Defendant |
____________________
Mr. Angus McCullough and Mr. Martin Goudie (instructed by the Treasury Solicitor, Special Advocates Support Office) as Special Advocates for the Claimant.
Mr. James Eadie QC, Mr. Alan Payne and Ms. Carys Owen (instructed by the Treasury Solicitor) for the Defendant
Hearing dates: 8th December 2009
____________________
Crown Copyright ©
Lord Justice Sullivan:
The Claimant's account of his treatment.
The Guantanamo Review Task Force.
Proceedings in the United Kingdom
a) All evidence held by the UK Government concerning the Claimant's initial detention and transfer to Bagram and his subsequent transfer to Kandahar Air Force Base and Guantanamo;
b) The identity of the US and UK agents involved in his interrogation, detention and torture;
c) Records and documents relating to the interrogation of the Claimant, including those interrogations attended by UK officers at Bagram and Kandahar;
d) Any information held by HM Government that would tend to indicate that the Claimant had been subjected to torture or inhuman and degrading treatment;
e) Evidence indicating that the Claimant was not an unlawful enemy combatant and had not committed any criminal offences under UK or US law.
"In respect of the Claimant's proceedings before the Review Panel, the information available to the Secretary of State establishes that the Claimant is not considered to be a priority case for review. In addition the Claimant has not provided any information as to the likely time frame for the review process despite having US legal representation involved in the review process. In these circumstances, given the clear evidence that the Claimant is not considered to be a priority case and given the absence of any evidence suggesting imminent consideration of the Claimant's case by the Review Panel, it is submitted that the Claimant has failed to establish the need for urgent consideration and the ordinary time scale for filing and serving an Acknowledgement of Service should apply." (original emphasis)
"The Secretary of State intends, when the search and review process is completed:
(i) To disclose to the Claimant such responsive documents and information as he considers can be disclosed voluntarily having regard to any legal restraints on disclosure and to the public interest;
(ii) To indicate as fully as is possible whether there are other responsive documents and information which cannot be disclosed and, if so, the nature of those documents;
(iii) To provide the documents referred to in subparagraphs (i) and (ii) or the substance of the information within them to the United States authorities (subject only to any legal restraint in doing so, the public interest and satisfactory security handling arrangements of the kind that exist in the United States)."
"As is required for the purposes of our litigation, HMG is in the process of carrying out extensive search and review of documents held with reference to the categories of information sought by Mr. Aamer. Following an initial consideration of material, it is clear that HMG has or may have information in its possession that may be relevant to the decision of the review in Mr. Aamer's case. HMG will disclose to Mr. Aamer such documents and information which fall within the scope of his disclosure request as we consider can be disclosed voluntarily having regard to any legal restraints on disclosure and the public interest, including as regards national security and international relations. We will further indicate as fully as possible whether there are other documents and information in our possession which come within the scope of Mr. Aamer's application which cannot be disclosed and, if so, the nature of those documents and the reason for non-disclosure in broad terms.
Separately, we intend, on appropriate channels, to provide the US with copies of all the documents (or the substance thereof) that we hold which are within the scope of Mr. Aamer's application (subject only to legal restraints on doing so, the public interest and satisfactory security handling arrangements) to ensure that, in so far as is possible, the Review has available to it all potentially relevant information."
"The Secretary of State was informed yesterday by the United States authorities that the Review Panel established pursuant to Executive Order 13493 may be nearing a final decision on Shaker Aamer's disposition. It has been confirmed by the US authorities that the Review Panel (i) will not take a decision to prosecute Shaker Aamer or continue his detention in US custody without considering any potentially relevant material as may be in the possession of HMG; but (ii) may take a decision to transfer Mr. Aamer to another country without considering such material."
The letter stated that the Secretary of State was continuing his search for any relevant documents. That exercise was taking longer than expected because of the volume of material. The Secretary of State was urgently reviewing the documentation for purposes of assessing what, if any, material could be provided to the Claimant and to the United States.
"Subject to Category 38 (b) (the identity of US and UK agents), and with considerable reservations as to even the potential relevance to the US review of Category 38 (a), the Secretary of State proceeds on the basis that the collated documents are at least potentially relevant to the US Review."
The revised summary grounds also stated (at paragraph 24):
"At this permission stage, without prejudice to the Secretary of State's position on other aspects of the Norwich Pharmacal test, the Secretary of State resists any order for disclosure to the Claimant on the basis of conditions 3 (Necessity) and / or 5 (Discretion)."
"In paragraph 21 of the Revised Summary Grounds the Secretary of State proposed that the collated documents that may be relevant to the work of the Guantanamo Detainee Review Task Force would be provided to the US Government. I can now confirm that a bundle of potentially relevant documents was provided to Mathew Olsen, the Executive Director of the Guantanamo Detainee Review Task Force on 8 October 2009. The purpose of providing these documents is to ensure that, as far as possible, the Task Force has access to all potentially relevant information in possession of HM Government ("HMG"). These documents were supplied in confidence and on the basis that they would not be disclosed any further without the agreement of HMG, and specifically that they should not be disclosed to Mr. Aamer or his representatives. This is because the material is protectively marked".
This was the first indication by the Defendant that he would oppose the disclosure to the Claimant or his legal representatives of the documents sought and was a considerable departure from his previous position. The letter also stated:
"It is our understanding that Mr. Aamer's case is under active consideration under the review process and that all options are open. We have no current indication of likely time scales."
In referring to the Claimant's solicitor's letter dated 9th October 2009, the Treasury Solicitor informed the Administrative Court:
"As set out in paragraph 24 of the Revised Summary Grounds, at the permission stage, the Secretary of State resists the Claimant's application on the basis that there is plainly no necessity for an order and/or that plainly no such order should be made as a matter of discretion given the position taken by the Secretary of State and the other matters set out in the Revised Summary Grounds.
The Claimant's representatives suggest at point 4 of their letter that the Secretary of State appears to have no objection to the Claimant and his lawyers receiving the material being disclosed to the US Government. This misunderstands the position. As stated above, the UK Government has disclosed the material on a confidential basis, and specifically on the basis that it will not be disclosed to the Claimant or his representatives.
The Secretary of State submits that permission should be refused."
The Norwich Pharmacal jurisdiction
"[I]f through no fault of his own a person gets mixed in the tortious acts of others so as to facilitate their wrongdoing he may incur no personal liability but he comes under a duty to assist the person who has been wronged by giving him full information and disclosing the identity of the wrongdoers. I do not think that it matters whether he became so mixed up by voluntary action on his part or because it was his duty to do what he did. It may be that if this causes him expense the person seeking the information ought to reimburse him. But justice requires that he should co-operate in righting the wrong if he unwittingly facilitated its perpetration." (at p. 175).
(1) Was there wrongdoing?
(2) Was the UK Government, however innocently, involved in the wrongdoing?
(3) Is the disclosure of the information necessary?
(4) Is the information sought within the scope of the available relief?
(5) Should the court exercise its discretion in favour of granting relief?
Wrongdoing
Facilitation
Necessity: the purpose of disclosure.
(1) to enable the Claimant's lawyers to make submissions to the Task Force and thereby to assist in securing his release from detention without trial;
(2) to bring civil actions for damages against individual wrongdoers in the United Kingdom and the United States;
(3) to identify and secure the prosecution of individual wrongdoers in the United Kingdom and the United States.
Necessity: the legal test.
"The Norwich Pharmacal jurisdiction is an exceptional one and one which is only exercised by the courts when they are satisfied that it is necessary that it should be exercised. New situations are inevitably going to arise when it will be appropriate for the jurisdiction to be exercised where it has not been exercised previously. The limits which apply to its use in its infancy should not be allowed to stultify its use now that it has become a valuable and mature remedy."
"It seems to us that the observations of Lightman J in Mitsui & Co Limited case and Langley J in Nikitin's case put an undue constraint on what is intended to be an exceptional though flexible remedy. The intrusion into the business of others which the exercise of the Norwich Pharmacal jurisdiction obviously entails means that a court should not, as Lord Woolfe CJ in the Ashworth Hospital Authority made clear, require such information to be provided unless it is necessary. But in our view there is nothing in any authority which justifies a more stringent requirement than necessity by elevating the test to the information being a missing piece of a jigsaw or to it being a remedy of last resort… Moreover it would be inconsistent with the flexible nature of this remedy to erect artificial barriers of this kind."
"It is true that in some of the cases the word "necessary" has been used, echoing or employing the language of Order 24, Rule 13 of the Rules of the Supreme Court. But as Templeman LJ observed in British Steel Corporation v Granada Television Limited [1981] AC 1096, 1132, "the remedy of discovery is intended in the final analysis to enable justice to be done". Norwich Pharmacal relief exists to assist those who have been wronged but do not know by whom. If they have straightforward and available means of finding out, it will not be reasonable to achieve that end by overriding a duty of confidentiality such as that owed by banker to customer. If on the other hand they have no straightforward or available, or any, means of finding out, Norwich Pharmacal relief is in principle available if the other conditions of obtaining relief are met. Whether it is said that it must be just and convenient in the interests of justice to grant relief, or that relief should only be granted if it is necessary in the interests of justice to grant it, makes little or no difference of substance. In the present case the appellants were concerned to identify those who had financed the abortive coup in March 2004. It is not suggested that there was any legal means of doing so open to the appellant other than that which they chose." (at para. 16).
Necessity: The Defendant's objections
(1) The documents have been supplied to the Task Force and accordingly it is not necessary for lawyers acting on behalf of the Claimant to see them or to make submissions on them.
(2) The closing date for submissions to the Task Force has long passed.
(3) It is possible for the Claimant to apply to the Task Force for the disclosure of the information contained in the documents.
(4) It is possible for the Claimant to apply to the US courts in his stayed habeas corpus proceedings for the disclosure of the information contained in the documents.
The documents have already been supplied to the Task Force.
(1) The short, and in our judgement complete, answer to these arguments on behalf of the Secretary of State is that the provision of the information to the Task Force without permitting the Claimant's lawyers to make submissions on them would deny the Claimant the opportunity to put forward his case. There is a world of difference between supplying to the Task Force a body of documentation which may be capable of supporting the Claimant's case and permitting his lawyers to make reasoned submissions on his behalf as to the significance of the information they contain. The interests at stake in the determination of the Task Force are so high and the potential consequences to the Claimant so grave that, in our view, nothing less than the opportunity to make such reasoned submissions can be considered sufficient.
(2) It may well be that the significance of certain information contained in the documents will not be appreciated without an intimate knowledge of the Claimant's case. The evidence lodged on behalf of the Claimant on the application before us includes that of Mr. Clive Stafford Smith, one of the lawyers representing the Claimant in the United States. He gives evidence of another case in which he acted in which the Task Force appeared not to understand the significance of certain material in that client's case. Mr. Stafford Smith was able to draw certain classified issues to the attention of the Task Force. He states that while they might theoretically have had access to all the classified information concerned, they certainly had not reviewed it in the coherent way in which an advocate would present it. Following these submissions it was concluded that the prisoner should not continue to be held. Further examples of such situations are provided by the litigation concerning Binyam Mohamed. At paragraph 104 of its judgment in Binyam Mohamed 1 the Divisional Court drew attention to specific ways in which items of information, not immediately identifiable as exculpatory, were claimed by his defence team to have proved essential in the presentation of his case. Moreover Mr. Stafford Smith, who also acted for Binyam Mohamed, explains in his evidence in the present case that when Mr. Mohamed's US lawyers finally obtained the materials sought they were able to make submissions which persuaded the US Government to agree to his release. All this seems to us to accord with common sense.
(3) Moreover, we note that the proceedings before the Task Force are not transparent. There appears to be no provision for the publication of its decisions or the reasons for its decisions. It has been in operation for only a few months and has made few decisions. It has no established track record. The Claimant, while not seeking to challenge the good faith of the Task Force, is entitled to point to the lack of due process protections in its procedures as heightening the importance of the ability to make representations on the basis of the information sought.
(4) Our concerns in this regard are considerably increased by the statement by the US authorities on 17th June 2009 (confirmed by the Treasury Solicitor in his letter to the Administrative Court date 18th June 2009) that while the Review Panel will not take a decision to prosecute Mr. Aamer or continue his detention in US custody without considering any potentially relevant material as may be in the possession of the UK Government, it may make a decision to transfer the Claimant to another country without considering such material. Thereafter, the material was supplied to the US Government on 8th October 2009. There is, however, no evidence before us to indicate that following receipt of the documents the Review Team or any agency of the US Government has confirmed that the documents will be taken into account in considering the Claimant's case.
The deadline for submissions has passed.
Possible application to the Task Force for disclosure
"Making information available that the Task Force has gathered could be highly problematic for the additional reason that much of it is classified at very high levels, meaning that it is not readily accessible by persons outside the Task Force, even by most of the Justice Department counsel involved in the Guantanamo habeas litigation. The Task Force itself has only a limited number of staff responsible for collecting and reviewing detainee information, many of whom are not attorneys, who are generally unfamiliar with the scope of outstanding discovery orders and obligations in particular cases, and whose time and attention cannot be diverted to discovery searches pertaining to more than 200 habeas petitioners without running the risk of seriously compromising the progress of the review the President has ordered. Moreover, in as much as the classified information that the Task Force possesses originates from other agencies, the Task Force cannot authorise its release to persons outside the Government, including detainees' counsel, without obtaining required clearances from these agencies."
"16. Moreover the classified information accessible to the Task Force originates from a variety of intelligence agencies. As a result, the Task Force cannot authorize its release to persons outside the Government, such as counsel for habeas petitioners; rather, clearance would have to be obtained from the originating agencies in order to allow for such release. Indeed, some classified information accessible to the Task Force is subject to strict controls and cannot even be removed from the secure facility where the Task Force is housed – even for purely intra-governmental purposes – without the originating agency's approval.
17. Finally, it would not be feasible or appropriate for the Task Force itself to become involved in conducting searches for information related to the Guantanamo habeas litigation. The Task Force has a limited number of staff responsible for collecting and reviewing detainee information, many of whom are not attorneys. They are generally unfamiliar with the litigation aspects of the habeas proceedings and the scope of outstanding discovery orders and obligations in particular cases. Most importantly, diverting their time and attention to discovery searches in the habeas litigation would seriously compromise the progress of the review ordered by the President, which is the sole purpose for which the Task Force has been constituted."
Possible application for disclosure in habeas corpus proceedings in the United States.
The categories of documents.
Discretion.
Conclusion