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England and Wales High Court (Administrative Court) Decisions |
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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Omar & Ors, R (on the application of) v Secretary of State for Foreign & Commonwealth Affairs [2012] EWHC 1737 (Admin) (26 June 2012) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2012/1737.html Cite as: [2013] 1 All ER 161, [2012] EWHC 1737 (Admin), [2012] WLR(D) 185 |
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QUEEN S BENCH DIVISION
ADMINISTRATIVE COURT
Strand, London, WC2A 2LL Claimant Defendant |
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B e f o r e :
and
MR JUSTICE BURNETT
____________________
The Queen on the Application of |
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Omar Awadh Omar Habib Sulieman Njoroge Yahya Suleiman Mbuthia |
Claimant |
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- and - |
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The Secretary of State for Foreign and Commonwealth Affairs |
Defendant |
____________________
Philippa Kaufmann QC and Ben Cooper (instructed by Bhatt Murphy) for the Claimants (Njoroge and Mbuthia)
James Eadie QC, Jonathan Hall and Karen Steyn (instructed by Treasury Solicitor) for the Defendant
Angus McCullough QC and Ben Watson (instructed by the Special Advocates Support Office) - Special Advocates
Hearing dates: 25,26 and 27 April and 16 and 17 May 2012
____________________
Crown Copyright ©
President of the Queen's Bench Division :
This is the judgment of the court.
INTRODUCTION
THE FACTUAL AND PROCEDURAL BACKGROUND
(i) The bombing in Kampala on 11 July 2010
(ii) The transfer of some suspects from Kenya to Uganda
(iii) The allegations of rendition and ill treatment
(iv) The proceedings in the Constitutional Court of Uganda
(v) The commencement of Norwich Pharmacal proceedings in the Administrative Court
(v) The conduct of the proceedings
Closed Material Procedure of the breadth agreed in this case is necessarily consistent with the decision in either case.
THE ISSUES ON THE ALLEGED RENDITION
The provision of material in the course of the conduct of Norwich Pharmacal
proceedings
The main issues on rendition
(1) Can the court order the provision of evidence for proceedings in overseas courts other than through the statutory regime?
(2) Should the court grant relief when the claimants have decided not to seek relief in Uganda?
(3) Is the requirement of necessity satisfied?
(4) Was there alleged wrong doing?
(5) Were those for whom the Foreign Secretary is responsible mixed up in it?
(6) How should the discretion be exercised?
(1) Can the court order the provision of evidence for proceedings in overseas courts other than through the statutory regime?
(1) What is being sought in these proceedings?
(2) Could Mr Omar and Mr Njoroge have availed themselves of the statutory scheme?
(3) Does the existence of the statutory regime exclude the use of Norwich Pharmacal proceedings to obtain what the claimants seek for use in the proceedings in Uganda?
(4) Are the requirements and exceptions set out in the statutory regime matters that have to be taken into account under Norwich Pharmacal proceedings, on the assumption that such proceedings can be brought?
(a) The statutory regime
(1) Criminal proceedings are governed by the Crime (International Co-operation) Act 2003 (the 2003 Act).
(2) Civil proceedings are governed by the Evidence (Proceedings in Other Jurisdictions) Act 1975 (the 1975 Act) save in relation to Member States where provision is made by EC 1206/2001. The 1975 Act was passed for several purposes including giving effect to the Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters 1970. Until the enactment of a separate statutory regime for criminal proceedings, the 1975 Act also covered criminal proceedings.
These statutory provisions are underpinned, outside the European Union, by treaties or diplomatic arrangements between the United Kingdom and overseas states.
(5) and (6) provide important exemptions:
"(4) A person cannot be compelled to give any evidence if his doing so would be prejudicial to the security of the United Kingdom.
(5) A certificate signed by or on behalf of the Secretary of State or, where the court is in Scotland, the Lord Advocate to the effect that it would be so prejudicial for that person to do so is conclusive evidence of that fact."
(6) A person cannot be compelled to give any evidence in his capacity as an officer or servant of the Crown."
"(a) to the extent that it appears to the Central Authority of that country that compliance would be contrary to the Constitution of that country, or would prejudice the security, international relations or other essential public interests of that country; ...."
"The 1975 Act and these Rules should be read and applied in close conjunction, for together they provide a comprehensive, self-contained code for obtaining evidence in England for use in proceedings in foreign courts."
S.3(3) of the 1975 Act provides that a person cannot be compelled to give evidence, if doing so would be prejudicial to the security of the United Kingdom and that a certificate signed by the Secretary of State that it would be prejudicial is conclusive. S.9 (4) provides that a court cannot make an order that is binding on any person in his capacity as an officer or servant of the Crown. It is important also to note that under s. 2(4) there is very substantial restriction on the power of the court to order disclosure:
"An order under this section shall not require a person -
(a) to state what documents relevant to the proceedings to which the application for the order relates are or have been in his possession, custody or power; or
(b) to produce any documents other than particular documents specified in the order as being documents appearing to the court making the order to be, or to be likely to be, in his possession, custody or power."
(ii) What is being sought in these proceedings ?
"disclosure of evidence that will support [the] claims of gross unlawful treatment by reason of [the claimants'] rendition and ill-treatment in detention."
During the course of oral argument, she made clear that the claimants' purpose was to seek all and any evidence that the Government of the United Kingdom may hold which suggests either that the claimants were removed from Kenya to Uganda without due process or were ill-treated thereafter. As we have set out, it was their intention to introduce such material before the Constitutional Court in support of their Petition. Whilst hoping for chapter and verse about rendition it would be sufficient for the claimants' purpose to adduce a statement made by or on behalf of the Foreign Secretary that Her Majesty's Government is in possession of information which demonstrates that the claimants were rendered from Kenya to Uganda.
(iii) Could Mr Omar and Mr Njoroge have applied to the Constitutional Court in Uganda to obtain what they seek?
(a) An application for disclosure
(1) In the Ugandan Judicial Review proceedings, a senior Commissioner of Police and Deputy Director of the CID has sworn an affidavit dated 1 December 2010 saying he knows that Mr Omar and Mr Njoroge were arrested in Uganda.
(2) In an affidavit sworn by the Acting Director of Civil Litigation of the Attorney-General of Uganda dated 28 November 2011, any wrongdoing on the part of the Uganda police, intelligence and security services is denied.
(3) Further affidavits were sworn by officials of the Government of Uganda on 22 March 2012 in which there were express denials of wrongdoing on the part of officials of the Government of Uganda. The Constitutional Court has, on the application of the Attorney-General, given leave for those affidavits to be withdrawn. No further evidence has yet been filed in their place, though we were told that such evidence would be filed.
(4) Inspectors of the ATPU in Kenya have sworn affidavits in the Kenyan Judicial Review and habeas corpus proceedings brought on behalf of Mr Omar and Mr Njoroge stating that neither Mr Omar nor Mr Njoroge was arrested in Kenya and their allegations are untrue.
(b) Obtaining evidence from the UK
(iii) Does the court have jurisdiction outside the statutory regime or does the existence of the statutory regime preclude the exercise of the Norwich Pharmacal jurisdiction?
(1) by Lord Diplock In Rio Tinto Zinc Corporation v Westinghouse [1978] AC 547 (where the House of Lords was considering the 1975 Act) at page 633:
"The jurisdiction of English courts to order persons within its jurisdiction to provide oral or documentary evidence in aid of proceedings in foreign courts has always been exclusively statutory."
(2) by Lord Donaldson MR in Re Pan American Word Airways Inc and others application [1992] QB 854 at 859.
It is common ground that any power to make the order sought must be found in the [1975] Act, since the English courts have no inherent jurisdiction to act in aid of a foreign court and, as a matter of English domestic law, treaties only take effect as part of that law to the extent they are incorporated by statute, with or without modification."
As therefore there was a statutory regime, the courts should not develop or exercise their own jurisdiction for such a purpose.
"I should be extremely sorry to be the first judge to decide that this court is, in all cases to give its aid in compelling discovery in aid of the prosecution or the defence of an action in a foreign court.
This decision was applied by Kay J in Dreyfus v Peruvian Guano Co (1889) 41 Ch D 151 in holding that an action for discovery in aid of a foreign court could not be entertained. The principle of not assisting inferior courts was applied to arbitrations, unless a reference was ordered by the court: Bray (page 574). Furthermore the Court of Chancery would not grant a bill in aid of a suit which was not purely civil (see Snell's Principles of Equity (3rd edit, 1874 pages 519-520, Bray page 3).
" in modem times it is the policy of states to afford aid to foreign tribunals in the taking of testimony to be used in suits pending therein.. .The jurisdiction which courts of equity exercise as ancillary to that of other courts is not, either onprinciple or authority, confined to other courts of the same state"
(1) The first enactment was the Foreign Tribunals Evidence Act 1856; it appears to have had its origins in the Treaty of Paris and its associated protocols concluded earlier in 1856 (see Kerr LJ in Re State of Norway [1987] 433 at 474). The Act conferred power on the superior courts of common law at Westminster and Dublin, the court of Session and other Supreme Courts in the colonises and Crown possessions to order the examination of witnesses and to produce documents in relation to foreign proceedings in civil or commercial matters. The terms of the Act made it clear that such an order could only be obtained if the foreign court wanted such evidence for the proceedings in its court.
(2) In 1859 the Evidence by Commission Act enabled evidence to be taken in relation to any action, suit or proceedings before courts elsewhere in Her Majesty's dominions; Lord Goff concluded that must have been intended to embrace all kinds of proceedings, whether civil or criminal.
(3) It appears from the very brief debate on the 1859 Act (Parliamentary Debates, Vol. 152 (Feb 3, 1859-Mar 10, 1859): Hansard HC, 22 February 1859, coll.715-6.) that prior to 1856 the way evidence was obtained for use in colonial courts was for a commission to be issued by the superior courts of a colony; all went well if the witness appeared, but the witness could refuse to appear or to refuse to answer questions without giving any reasons. That "evil" had been remedied in respect of a foreign court by giving the superior courts of common law powers under the Foreign Tribunals Evidence Act 1856 to make it obligatory to appear, but in error that Act had only dealt with foreign courts and not included colonial courts.
(4) In 1870 s.24 of the Extradition Act 1870 extended the power under the 1856 Act so that evidence could be taken for criminal proceedings in any court or tribunal in a foreign state. S.5 of the Extradition Act 1873 gave the Secretary of State power to require a magistrate to take evidence for the purpose of any criminal matter pending in any court or tribunal in a foreign state.
(5) Rules of Court were made governing the procedure in 1903. Prior to that time, it is clear from the Annual Practice that proof had to be given that the foreign court wanted the evidence. The Rules made in 1903 specified a form of affidavit which included this requirement.
(iv) The requirements and exceptions in the statutory regime
"only to the extent (a)... or (b) the state considers that its sovereignty or security would be prejudiced thereby".
The wide scope of this provision was considered in Re Pan Am. The scope of the similar exception in the Harare Scheme is set out at paragraph 37 above.
"Noting in the Act ... prevents the Crown from facilitating the giving of evidence by its present or current officers ... but the courts have no power to order anyone to give evidence in circumstances where Section 9(4) applies."
By resisting these Norwich Pharmacal proceedings the Crown has made clear that it would not facilitate the giving of such evidence, even were it established that there was evidence capable of being given. As a matter of principle, the claimants cannot secure such evidence via equitable relief thereby defeating the plain terms of the Statute.
(2) Should the court grant relief when the claimants have decided not to seek relief in Uganda?
(3) Is the requirement of necessity satisfied?
(a) The legal principles
"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 1086, 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 appellants other than that which they chose."
The admissibility in Uganda of information and evidence obtained
(4) Was there alleged wrongdoing?
(5) Were those for whom the Foreign Secretary is responsible mixed up in it?
(a) Legal principles
" "... the principles declared in the few cases where the plaintiff does not know the names of the persons against whom he intends to bring a suit, and brings a bill against persons who stand in some relation to them, or to their property, in order to discover who the persons are against whom he may proceed for relief. "
These words appear to me to provide an apt, and by no means too wide, classification of those against whom discovery may in such circumstances be obtained, though I think the court, perhaps misled by the fact that they had available only the report at 4 ChD 92, may have been wrong in saying that in Orr v Diaper the plaintiffs neither alleged that they had a cause of action nor intended to sue the defendants. But the state of the reports does not make this clear."
"[The speeches in Norwich Pharmacal] make it clear that what is required is involvement or participation in the wrongdoing and that if there is the necessary involvement, it does not matter that the person from whom discovery is sought was innocent and in ignorance of the wrongdoing by the person whose identify it is hoped to establish."
Applying that principle to the facts of the case Lord Woolf concluded at paragraph 34:
"It is sufficient that the source was a wrongdoer and MGN became involved in the wrongdoing which is incontestably the position. Whether the source's wrongdoing was tortious or in breach of contract in my judgment matters not. If there was wrongdoing then there is no further requirement that Mr Jones's and MGN's conduct should also be wrongful. It is sufficient if, in the words of Viscount Dilhome in the Norwich Pharmacal case [1974] AC 133, 188C, that there was "involvement or participation". As MGN published the information which was wrongfully obtained, the answer as to whether there was involvement or participation must be an emphatic Yes."
She submitted that the court had been too restrictive of the nature of involvement in Binyam Mohamed (No. 1); all that was required was "involvement"; to require that involvement to have facilitated the wrongdoing put the test too high. Facilitation was not, in short, a pre-condition.
"They seem to me to point to a very reasonable principle that if through no fault of his own a person gets mixed up 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 identify of the wrongdoers."
(b) The factual case advanced by the claimants
(1) As set out at paragraph 4 above, international police teams, including Scotland Yard, had been involved in the investigation. There was evidence in an answer by Lord Howell of Guildford to a Parliamentary Question and material dated 19 July 2010 on the FBI website which confirmed this involvement.
(2) A Detective Inspector of the Ugandan Police had sworn an affidavit in the proceedings in the Constitutional Court dated 23 March 2012 in which he had stated that there had been a joint investigation with security organs from other states with the USA, Kenya and Tanzania.
(3) A recent Royal United Security Institute report estimated that British citizens made up 25% of foreign fighters in Somalia. These would undoubtedly be of interest to the intelligence agencies of the United Kingdom. There were newspaper reports that three British nationals of Somali descent were suspects.
(4) Mr Omar's evidence was that he had been interrogated by someone he believed to be a United Kingdom official. He had been asked why his wife had obtained a transit visa and had been told that his house had been bugged and the intelligence services knew what he was, where he was going and what he was doing.
(5) In his account to his solicitor, Mr Njoroge had said that he had been interviewed by someone with a British accent.
(6) It could therefore be properly inferred that the British security services were not only involved in surveillance in Kenya and Uganda but also that they had been directly involved with Mr Omar and Mr Njoroge.
(7) The British security services must have been well aware of the risks of the Kenyan authorities rendering suspects, as those authorities had done so before.
(8) As a result of the Consolidated Guidance to Intelligence Officers and Service Personnel on the Detention and Interviewing of Detainees Overseas, and on the Passing and Receipt of Intelligence Relating to Detainees published in July 2010 by Her Majesty's Government, those interviewing detainees in the custody of a foreign liaison service had to consider whether the detainee had been subject to unacceptable standards of detention or treatment.
(9) Her Majesty's Government's officials would therefore have had closely to monitor what was happening in relation to the investigation into the Kampala bombing if they were to continue to receive intelligence from detainees.
(10) It was to be inferred, therefore, that they must have known of the rendition or taken no steps to prevent it.
(11) They were therefore involved in the renditions or, if it was necessary to show this, had facilitated them.
(iii) The case for the Foreign Secretary
(iii) The closed hearing and our conclusion of fact
(4) How should the discretion be exercised?
(a) The principles
(b) The factors to be taken into account
(1) The serious nature of the alleged wrongdoing
(2) The fact that the claimants are at risk of the death penalty
(3) The evidence of Mr Sinclair, senior official at the Foreign Office as to the effect on relations between Her Majesty's Government and Uganda.
"As with any foreign judicial proceedings, whether in Uganda or elsewhere, HMG is also highly conscious that such a prosecution is a matter for the Ugandan government and Ugandan courts, and that any intervention by the UK in those proceedings which had not been requested by the Ugandan authorities, or ordered by the Ugandan courts, would almost certainly be seen as meddling by a foreign government in domestic matters.
Given the grave nature of the Kampala bombings, I have no doubt that were HMG in a position to provide evidence of the type sought by the Claimant for use before the Constitutional Court and were it to be ordered by the court to do so, it would be likely to be seen as a deliberate attempt by the UK to derail the Government of Uganda's efforts to bring terrorist to justice and as grave betrayal by the UK of its promise to stand with Uganda in its fight against terrorism.
In these circumstances, it is my assessment that there would be serious damage to the relations between the UK and Uganda were an order to be made of the type sought by the Claimants."
(4) The matters set out in Appendix C.
We have not, at this stage, taken into account any issues relating to PII; if PII arises, then that will be the subject of a separate decision; the important issues raised by Miss Kaufmann QC as to the way in which the necessary evidence was adduced may then arise for decision.
ISSUE ON ILLTREATMENT
Conclusion