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England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> S v Secretary of State for the Home Department  EWHC 2638 (Admin) (05 October 2012)
Cite as:  EWHC 2638 (Admin)
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
|- and -
|Secretary of State for the Home Department
Mr Jonathan Swift, Q.C. & Mr Alan Payne (instructed by The Treasury Solicitor) for the Defendant
Hearing dates: 11-13 September 2012
Crown Copyright ©
Mr Justice COLLINS :
"We will continue to follow the human rights situation in Sri Lanka and our High Commission in Colombo maintains oversight of the returns process. For the recent charter flight operations, UK Government officials were present at the airport and provided contact details of our High Commission in Colombo."
"After assuring him that information shared with the BHC would under no circumstances be passed to the Sri Lankan authorities, we obtained his consent to share his details with you."
His name and details were then given and real concern because of his distressed state and scarring was expressed. It was said that FFT had evidence that some Tamil returnees had been detained and tortured following their entry into Sri Lanka.
"I should have instructed that the attached letter should not be disclosed to third parties, only the immediate and duty judges, as it contains individual and personal information."
That was wholly insufficient to avoid the possible disclosure of the details in the course of any hearing.
"There has been a well-organised effort by pro-LTTE elements in the UK to prevent UKBA from carrying out deportation of Sri Lankans who have failed to qualify for asylum. This allegation was made to prevent the return of 100 deportees to Sri Lanka who were dispatched from UK yesterday."
An identically worded report was carried in two pro-government newspapers, one on 29 February and the second on 1 March. The Sri Lankan Ministry of Defence published on its website the following:-
"Britain facilitated deportation of another group of bogus asylum seekers to Sri Lanka yesterday (Feb 28). The latest move came amidst constant spin doctoring and misinformation campaigns carried out by pro-terrorist front groups and sympathetic dollar dwellers of the Human Rights Industry.
Human Rights Watch and a proxy terror front group Freedom from Torture clamoured that the flights should be suspended because some 'ethnic' Tamils were subjected to cruel treatment in the island nation."
The 24 February letter had made it clear that the claimant was supported by FFT.
"I took the opportunity to raise the recent torture allegation following a scheduled flight. [The CID member] looked surprised and offered to investigate. I made clear that following a medical examination, we were of the opinion that it had been a false allegation. Nonetheless the doctor had found some bruising to the man's shin and I thought I needed to raise this with him given the political sensitivities. I said that some returnees had a vested interest in exaggerating their stories, so the safest thing was for his officers to stay well beyond reproach."
Mr Lewis says the offer to investigate was declined, but it suggests that the CID member was then unaware of the allegation and had in any event not made any link with the claimant. That may well be so, but the matter had very recently been picked up by the Sri Lankan authorities so that it is not particularly surprising that that CID member was then unaware of it. In any event, even if the BHC official turned down the offer, such investigation may well have taken place once the authorities were aware of the full details and of the involvement of FFT.
"UK authorities deported them amidst efforts by pro-LTTE elements in the UK to prevent British authorities from carrying out deportation of Sri Lankans who have failed to qualify for asylum … Related article: False torture claims of failed UK asylum seekers."
This, Miss Rose submits, shows that the claimant is likely still to be a suspect and so, if found, to be detained. There is obvious force in that submission.
"When, in the course of performing its public duties, a public body (such as a police force) comes into possession of information relating to a member of the public, being information not generally available and potentially damaging to a member of the public if disclosed, the body ought not to disclose such information save for the purpose of and to the extent necessary for the performance of its public duty or enabling some other public body to perform its public duty … This principle does not in my view rest on the existence of a duty of confidence owed by the public body to the member of the public, although it might well be that such a duty of confidence might in certain circumstances arise. The principle, as I think, rests on a fundamental rule of good public administration, which the law must recognise and if necessary enforce."
The facts of a particular case will be crucial and if, in the exercise of a careful and bona fide judgment it is decided that the public interest requires disclosure, it is proper to make such "limited disclose as is judged necessary to achieve" the purpose for which disclosure is required (see p410F-G). The only gloss put upon this approach by the Court of Appeal was that before deciding on disclosure information should be sought from the person concerned. In this case that should have been from those representing him since he could hardly be asked.