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Cite as: [2013] EWHC 3068 (Admin)

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Neutral Citation Number: [2013] EWHC 3068 (Admin)
Case No: CO/11949/2008

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT

Royal Courts of Justice
Strand, London, WC2A 2LL
16/10/2013

B e f o r e :

LORD JUSTICE RICHARDS
and
MR JUSTICE MITTING

____________________

Between:
The Queen (on the application of Maya Evans)
Claimant
- and -

Secretary of State for Defence
- and -
Associated Newspapers Limited
Defendant

Intervener/
Applicant

____________________

Dinah Rose QC and Ben Jaffey (instructed by Leigh Day & Co) for the Applicant
Tom Hickman (instructed by Public Interest Lawyers) for the Claimant
James Eadie QC and Melanie Cumberland (instructed by The Treasury Solicitor) for the Defendant
Khawar Qureshi QC and Martin Chamberlain (instructed by The Special Advocates Support Office) as Special Advocates

Hearing dates: 1-2 July 2013

____________________

HTML VERSION OF JUDGMENT
____________________

Crown Copyright ©

    Lord Justice Richards :

  1. The issues in this case relate to the opening up of a previously closed judgment, and the relaxation of undertakings previously given as to non-disclosure of closed material, in the light of changes in circumstances since the date of the judgment and of the undertakings.
  2. On 25 June 2010 a Divisional Court constituted by myself and Cranston J handed down an open judgment in a judicial review claim brought by Maya Evans against the Secretary of State for Defence (see [2010] EWHC 1445 (Admin)). I will refer to the case as "Evans (No.1)" to distinguish it from a later challenge by Ms Evans to the removal of legal aid for such claims (R (Evans) v Lord Chancellor and Secretary of State for Justice [2011] EWHC 1146 (Admin), [2012] 1 WLR 838). The claim in Evans (No.1) concerned UK policy and practice in relation to the transfer to the Afghan authorities of suspected insurgents detained by UK armed forces in the course of operations in Afghanistan. The Secretary of State's policy was that detainees were not to be transferred where there was a real risk that they would suffer torture or serious mistreatment. The court concluded on the evidence before it that UK transfers to NDS Kandahar and NDS Lashkar Gah could proceed without breach of that policy, but that it would be a breach of the policy and therefore unlawful for transfers to be made to NDS Kabul.
  3. Much of the hearing that preceded the judgment was in open court. In addition, however, a closed material procedure was adopted by agreement between the parties and with the commendable objective of enabling the court to take all relevant material into account in reaching its decision. As was explained in the open judgment:
  4. "8. Moreover, procedures were put in place to ensure that material covered by public interest immunity or by statutory restrictions on disclosure could be taken fully into account by the court. This was achieved in part by disclosure to the claimant's legal representatives on the basis of appropriate undertakings, and in part by the appointment of special advocates to deal with material that could not be disclosed to the claimant's representatives. The claimant's legal representatives co-operated with the process in a highly responsible fashion. The process meant that the court had to split the hearing into three categories: open sessions, semi-closed sessions (in which the public were excluded but the claimant's counsel and counsel for the Secretary of State addressed the court, with the special advocates also present), and closed sessions (in which the public and the claimant's team were excluded but the special advocates and counsel for the Secretary of State addressed the court)."

    (It would have been better to refer to "in private" hearings rather than to "semi-closed" sessions, but I shall adhere in this judgment to the language used at the time.)

  5. The undertakings referred to were contained in a formal consent order to the effect that specified documents were disclosed by the Secretary of State to the claimant and her legal representatives on the undertaking that they would not disclose the documents or any part of their contents to anyone, and would keep the documents securely locked at all times when not under review, with liberty to apply for variance or discharge of the order and the undertaking.
  6. It appears from the decision of the Supreme Court in Al Rawi & Others v Security Service [2011] UKSC 34, as further considered in AHK & Others v Secretary of State for the Home Department [2012] EWHC 1117 (Admin), that there was no jurisdiction to adopt a closed procedure even by consent. That issue does not, however, need to be resolved for present purposes. The adoption of a closed procedure in this case is a matter of history which cannot be undone, and the fact is that sensitive material was considered and decisions were made by all concerned on the basis that it was legally permissible.
  7. The procedure that was followed led to the handing down of a closed judgment in addition to the open judgment. The open judgment was lengthy and included a detailed analysis of relevant factual and legal issues, and extensive reasons for the conclusions reached. It contained the following references to the closed judgment:
  8. "12. This is the open judgment of the court, in which we deal with material that can properly be disclosed in a judgment open to the public and we set out the conclusions that we draw from that material. We also indicate the effect on those conclusions of the evidence considered in semi-closed and closed sessions. The details of the evidence covered in those semi-closed and closed sessions are, however, covered in a separate, closed judgment.
    13. We were asked by counsel for the claimant and by the special advocates to consider putting some of the closed evidence into the public domain by means of this judgment. We have decided against that course. There are legitimate reasons of public interest for protecting the closed evidence from publication. Through the procedures adopted in this case, it has been possible for all of it to be taken properly into account by the court. It is consistent with the conclusions we have reached in any event by reference to the open material. It contains nothing of such concern as to call for public disclosure in the interests of justice. In those circumstances the balance comes down in favour of its continued protection from publication.
    326. The conclusion we have reached in this open judgment is in our view consistent with the contents of the closed judgment."
  9. There was no application for permission to appeal against the Divisional Court's decision.
  10. There the matter rested until the disclosure by the Secretary of State, in later proceedings brought by Mr Serdar Mohammed, a detainee transferred to the Afghan authorities shortly after the judgment in Evans (No.1), of a witness statement of Mr Barry Burton, a senior official in the Ministry of Defence, which had formed part of the evidence before the Divisional Court in Evans (No.1). Mr Burton's statement had been disclosed to the claimant and her legal representatives in Evans (No.1) in heavily redacted form and subject to the confidentiality undertakings given by them. What was disclosed in Mr Mohammed's case (R (Serdar Mohammed) v Secretary of State for Defence, CO/3009/2012) was a version with substantially fewer redactions. It included allegations, redacted from the version disclosed to the claimant and her legal representatives in Evans (No.1), that a prisoner transferred to NDS Kabul had been subjected to serious mistreatment following the transfer. It was disclosed in the Serdar Mohammed proceedings without any claim to public interest immunity and was read out in open court in the course of a public hearing on 29 November 2012.
  11. In response to questions as to why the version of Mr Burton's statement disclosed in the Serdar Mohammed proceedings had been withheld from the public and from the claimant and her legal representatives in Evans (No.1), a Cabinet Office spokesman was reported in The Guardian newspaper on 10 January 2013 as saying that "[t]hese lawyers have utterly failed to take into account the fact that the sensitivity of material can change over time".
  12. Those events led to the two applications that are now before this court.
  13. By the first application Associated Newspapers Limited, which was given permission to intervene in the proceedings for this purpose, applies for all or part of the closed judgment in Evans (No.1) to be made public and for guidance to be given on the proper procedure to be followed in future cases.
  14. By the second application the claimant seeks the discharge or variation of the confidentiality undertakings given by her and her legal representatives in Evans (No.1), and contends that, if the court orders parts of the closed judgment to be opened up, it should also order disclosure of the witness statement evidence (including exhibits) relating to those parts of the judgment.
  15. The Secretary of State's response has been, "in the exceptional circumstances of this case", to review the closed judgment to ascertain the extent to which it may be opened up, without prejudice to the broader arguments as to the appropriateness of such a course in other cases.
  16. The results of that review are set out in a public interest immunity ("PII") certificate made by the Foreign Secretary. The certificate, though not the sensitive schedule or annexes to it, has been served as an open document on the other parties. It describes as follows the contents of the closed judgment and the position taken towards it in the light of the review:
  17. "11. As the parties and the Court will be aware, there were three types of 'closed' material before the Court, from which the closed judgment was drawn, namely:
    a. Confidential (or 'semi-closed') material. This information was addressed in 'Part II' of the closed judgment which, together with 'Part I', was provided to the Claimant and her representatives, as well as to the Special Advocates and the Defendant. This category comprised:
    i. Information relating to certain detainees which had been provided by them on a confidential basis. In circumstances where they had refused, or not given, consent to disclosure, I understand that the parties and the Court agreed that this material ought to be considered in camera ('confidential class A').
    ii. A small amount of information in respect of which it was intended to claim PII, but which was inadvertently provided to the Claimant ('confidential class B').
    b. PII material. This was information in respect of which a claim for PII was made and upheld by the Court. It is addressed in 'Part III' of the closed judgment, which was provided to the Special Advocates and the Defendant.
    c. 'Material admitted through a statutory gateway'. This was information which was considered in closed, by the Court and the Special Advocates, following determinations by the relevant heads of the security and intelligence agencies that there was a statutory gateway in the Intelligence Services Act 1994 or the Security Service Act 1989 permitting disclosure into the closed material procedure, but a statutory prohibition on disclosure into open.
    12. A copy of the closed judgment is annexed to the Sensitive Schedule to this certificate. Confidential class A material is underlined; material in respect of which I claim PII is highlighted in blue.
    13. No claim for PII is made or ever has been made in respect of confidential class A material. Nevertheless, given the reasons the parties and the Court considered that it should be addressed in camera, the Court will no doubt wish to consider for itself whether this information, insofar as it appears in the closed judgment, should now be put into the public domain.
    14. It is strictly unnecessary to claim PII in respect of material which was determined to be subject to a statutory prohibition on disclosure other than into the closed material procedure (especially in circumstances where those determinations were, I am informed, accepted by the Claimant and the Court, and the time for lodging any challenge has long since passed). Nevertheless, as I am of the clear view that it would, in any event, be contrary to the public interest to disclose this material, it may be of assistance to the Court to understand my reasons, applying the PII test."
  18. In order to give effect to that assessment, two digests of the closed judgment were produced by the Secretary of State:
  19. i) Digest A contains those parts of the closed judgment for which the Foreign Secretary does not claim PII, excluding material described in the PII certificate as "confidential class A" (i.e. information relating to certain detainees which had been provided by them on a confidential basis). With the permission of the court, a copy of Digest A was provided to the other parties prior to the hearing of the present applications.

    ii) Digest B contains the material in Digest A plus the "confidential class A" material.

  20. The hearing of the applications took place before us mainly in open session, during which we heard the parties' submissions on the main issues, before we moved to a short "in private" hearing and a closed hearing to deal respectively with the "confidential class A" material and PII issues.
  21. The principle of open justice

  22. There is no dispute about the fundamental importance of open justice. Ms Rose QC, opening the case for Associated Newspapers Ltd, advanced four broad reasons why closed judgments should be restricted to the minimum necessary and why, where a closed judgment is necessary, the open judgment should indicate the extent to which the decision has been influenced by what is in the closed judgment. First, the parties need to know the reasons for the decision, partly to decide whether to pursue an appeal and partly to avoid a sense of grievance. Secondly, the public must be able to see that justice is being done: there is a need for public scrutiny, carried out in practice by the media on behalf of the body of citizens. Thirdly, in litigation involving the executive, the principle of open justice represents an element of democratic accountability. Fourthly, closed judgments may contain findings of fact and decisions on questions of law which provide legal and factual precedents but are not generally known or accessible.
  23. That fourth point is of limited weight. Where a point of law is in issue, it should generally be possible to indicate in an open judgment what the point is and how it has been decided, and I am not aware of any case where a decision on a significant point of law has been confined to a closed judgment. As to findings of fact, only in limited circumstances are they likely to be important for a future case, and in those circumstances the combination of the special advocate procedure and the disclosure obligations of the Secretary of State should ensure that they are brought to the attention of the court in that future case (albeit, as Ms Rose pointed out, the information may not be available to a claimant at the time of an application for interim relief).
  24. The points made by Ms Rose otherwise derive strong support from authorities such as R (Mohamed) v Secretary of State for Foreign and Commonwealth Affairs [2010] EWCA Civ 65 & [2010] EWCA Civ 158, [2011] QB 218 ("Binyam Mohamed"), and Bank Mellat v Her Majesty's Treasury [2013] UKSC 38 ("Bank Mellat").
  25. Binyam Mohammed was an application for disclosure of information by the Secretary of State on Norwich Pharmacal principles. It has subsequently been held that the court did not have jurisdiction to entertain the application (see R (Omar) v Secretary of State for Foreign and Commonwealth Affairs [2013] EWCA Civ 118), and such applications have also been the subject of specific legislative intervention (see s.17 of the Justice and Security Act 2013); but none of that affects what was said in Binyam Mohammed on the subject of open justice. The issue in the Court of Appeal was whether the Divisional Court had been correct to order that seven short sub-paragraphs be included in the open version of a judgment notwithstanding that the Foreign Secretary had stated in PII certificates that such publication would lead to a real risk of serious harm to the national security of the United Kingdom. That was the context within which the principle of open justice was examined at considerable length. It suffices to cite a few passages to which Ms Rose drew particular attention. At [41] Lord Judge CJ said this:
  26. "Although expressed in wide and general terms and perhaps inevitably so expressed in my judgment the principles of freedom of expression, democratic accountability and the rule of law are integral to the principle of open justice and are beyond question . [The courts] function to enable justice to be done between the parties. However, where litigation has taken place and judgment given, any disapplication of the principle of open justice must be rigidly contained, and even within the small number of permissible exceptions, it should be rare indeed for the court to order that any part of the reasoning in the judgment which has led it to its conclusion should be redacted. As a matter of principle it is an order to be made only in extreme circumstances."
  27. At [129] to [135] Lord Neuberger MR discussed the roles of the court and the executive. He said that it would require cogent reasons for a judge to differ from an assessment of national security made by the Foreign Secretary. None the less, the ultimate decision whether to include the redacted paragraphs into the open version of the judgment was a matter for judicial, not executive determination.
  28. At [270] to [273] Sir Anthony May P considered and rejected a submission on behalf of the Secretary of State that the Divisional Court had been wrong to observe a wider public interest in publication than that which was a proper by-product of justice between the parties. He expressed agreement with a counter-submission by Ms Rose that there is a very strong public interest in the publication of a judgment even after the matters in issue have been resolved, which is even stronger where it is a public authority seeking to suppress material in the judgment. He continued:
  29. " The main issue in the appeal is not a Norwich Pharmacal issue, but one where it is contended that open justice should be curtailed in the interests of national security. There is a clear public interest in open justice in part comprising the requirement for courts to give publicly the full reasons for their decisions. This public interest can go beyond the confined domestic needs and requirements of the parties. The present case is not that one or more of the parties wish to stop the court giving any judgment. The Divisional Court has given its judgment. It is that one party wishes to have removed a part of the judgment which that party has seen and the other party has not seen."
  30. In Bank Mellat the Supreme Court considered, at the request of counsel for the Treasury, the first instance closed judgment but found the exercise unhelpful. At [67] to [74] Lord Neuberger, giving the judgment of the majority, drew a number of conclusions from the experience. They were directed at minimising the need for an appellate court to look at closed material, and included the following:
  31. "First, where a judge gives an open judgment and a closed judgment, it is highly desirable that, in the open judgment, the judge (i) identifies every conclusion in that judgment which has been reached in whole or in part in the light of points made or evidence referred to in the closed judgment, and (ii) that the judge says that this is what he or she has done .
    Secondly, a judge who has relied on closed material in a closed judgment, should say in the open judgment as much as can properly be said about the closed material which he has relied on. Any party who has been excluded from the closed hearing should know as much as possible about the court's reasoning, and the evidence and arguments it received. Further, the more the judge can say about the closed material in the open judgment, the less likely it is that a closed hearing will be asked for or accorded on an appeal. In cases where judges have to give a closed judgment, they should say in their open judgment, as far as they properly can, what the closed material has contributed to the overall assessment they have reached in their open judgment.
    Fifthly, if [on an appeal] the court decides that a closed material procedure appears to be necessary, the parties should try and agree a way of avoiding, or minimising the extent of, a closed hearing. This would also involve the legal representatives to the parties to any such appeal advising their clients accordingly, and, if a closed hearing is needed, doing their best to agree a gist of any relevant closed document (including any closed judgment below)."
  32. Ms Rose relied on what was said there about the possibility of gisting a closed judgment for the purposes of an appeal hearing, and also on the history of the Binyam Mohammed proceedings, as showing that material originally and correctly included in a closed judgment may become less sensitive by reason of subsequent developments or the passage of time. She pointed to the greater degree of disclosure of Mr Burton's witness statement in the Serdar Mohammed proceedings, compared with the more heavily redacted version disclosed to the claimant in Evans (No.1), as showing the change in sensitivity of material included in the closed judgment in Evans (No.1) and as calling for a review of the extent to which that judgment should remain closed.
  33. With none of these issues of principle did Mr Eadie QC take issue on behalf of the Secretary of State. He accepted that the reasons for a court's decision should be disclosed as far as possible at the point of judgment, both to enable appeal rights to be considered at that point and for the public to understand the decision reached. He pointed out, however, that the relevant principles were applied at the time of the original judgment in Evans (No.1) and that, whilst the Secretary of State had agreed to undertake a fresh sensitivity review, the present context is an unusual one. But for the fact that the parties agreed to a closed material procedure in Evans (No.1), the material in question (which was the subject of valid PII claims at the time) would not have been before the court at all and there would have been no need for a closed judgment. If the sensitivity of the material had not been accepted by the court at the time, the Secretary of State would have had a choice whether or not to disclose it, with whatever implications a decision not to disclose might have had for his defence of the claim. It is intensely problematic to seek to open up now, at a time when the Secretary of State has lost that choice, material over which sensitivity continues to be asserted. Mr Eadie submitted in the light of these considerations that it would be wrong in principle for the court to decide to publish information from a historic closed judgment in the face of an assessment by the Secretary of State that such information remains sensitive; alternatively, that the considerations should feed in as a matter of considerable weight into the PII balancing exercise. He submitted that on either basis the claim for PII made in the new certificate should be upheld.
  34. Opening-up of the closed judgment

  35. The context of the present applications is certainly unusual, as Mr Eadie submitted. A judgment was made in Evans (No.1) as to the material that should properly be included in a closed judgment. It was made with the benefit of submissions of counsel for the claimant (in relation to material considered in semi-closed hearings), the special advocates and counsel for the Secretary of State. The court made appropriate reference in its open judgment to the closed judgment and the bearing that its contents had on the conclusions reached by the court (see [6] above). There was no appeal. The present exercise is not to be treated as a late appeal against, or review of, the balance struck at that time or as an opportunity to supplement the reasons given at the time. The exercise now is a fresh one, on the basis of the Secretary of State's acceptance that he should undertake a fresh sensitivity review. It is necessary to determine, in the light of the new PII certificate and any other up-to-date information available to the court, to what extent there is a continuing public interest in non-disclosure of the contents of the closed judgment and whether it is outweighed by the public interest in disclosure.
  36. There is no issue over the material in Digest A (see [15] above). That material includes the introduction to the closed judgment (Part I) and passages from the semi-closed sections (Part II) and fully closed sections (Part III) of the closed judgment. A substantial part of the material is drawn from the witness statement of Mr Burton, both in the redacted form in which it was made available to the claimant and her legal representatives (the Part II material) and in its unredacted form in which it was made available to the special advocates (the Part III material). The introduction in Part I of the closed judgment included this:
  37. "We have already indicated in the open judgment that we do not consider there to be sufficiently weighty reasons to override the public interest against public disclosure of the material dealt with in this judgment. It will be seen that the material tends to reinforce the concerns we have expressed in the open judgment about the conduct of the NDS, but it does not evidence any wrongdoing by UK personnel or cast a fundamentally different light on the matters considered in the open judgment. If it did, we might have been led to a very different view on whether it should be put in the public domain."
  38. Since the Foreign Secretary now raises no objection to disclosure of the material in Digest A, and a substantially unredacted version of Mr Burton's witness statement has already been put in the public domain in the Serdar Mohammed proceedings, the balance has plainly changed in respect of that material and there is no continuing justification for it to remain closed. For that reason the court directed that it be disclosed to the parties prior to the hearing, and in my view it should now be made public. Annexed to this judgment is an opened-up version of the closed judgment which includes the Digest A material.
  39. The "confidential class A" material, as it is termed in the PII certificate, concerns information relating to certain detainees which had been provided by them on a confidential basis. The claimant and her legal representatives agreed to that material being dealt with in semi-closed sessions because of the potential risk of reprisals to the detainees. For the same reason the material was dealt with in Part II of the closed judgment. The Foreign Secretary makes no PII claim in respect of the material and has adopted a neutral stance in relation to it, leaving it to the court to assess whether the material should now be disclosed: together with the Digest A material, it was included in Digest B in order to facilitate disclosure if the court so ordered. We made no such order prior to the hearing because we were concerned that we had insufficient information on which to reach any conclusion that the previously accepted risks no longer existed. At the hearing Mr Eadie was unable to provide us with any further information about the individuals concerned but, with the encouragement of the court, produced a proposed gist of the relevant passages. Mr Hickman, for the claimant, argued that the gist was insufficiently detailed and submitted that the proper way to approach the matter was to redact (and to redact as little as possible) the text of the relevant passages in the closed judgment.
  40. In my judgment it would be wrong to open up the confidential class A material in full. The court cannot be confident that it would no longer give rise to risk to the individuals concerned, and the factors telling in favour of disclosure are not sufficiently strong to justify creating that risk. Nor do I think that Mr Hickman's proposed redactions would obviate the risk. I accept, however, that a gist of the material can be put into the public domain without risk, and I would adopt the gist put forward by Mr Eadie, subject to minor amendments discussed in the course of argument. The relevant gist appears in the opened-up version of the closed judgment (as annexed to this judgment), in Part II, under the sub-headings "Specific allegations by UK transferees" and "Threats of reprisals for making allegations against the NDS".
  41. The remainder of the closed judgment is subject to the Foreign Secretary's PII claim. The PII certificate states in general terms the reasons why the material is considered to attract PII. Full details are given in the sensitive schedule to the certificate. The Foreign Secretary states in the certificate that he is satisfied that disclosure of material referred to in the sensitive schedule would cause a real risk of serious harm as it includes information of one or more of the following kinds: (a) diplomatic reports on the political and human rights situation in Afghanistan; (b) material received in confidence regarding the political and human rights situation in Afghanistan by diplomats from their counterparts representing other states in Afghanistan; (c) materials received from the International Committee of the Red Cross; (d) personal material about public figures and other individuals in other states whose disclosure would damage relations with that state; (e) material reflecting the views of other states during negotiations or other meetings held in confidence in Afghanistan; (f) information relating to methods, techniques, equipment of intelligence gathering or military operations; (g) information relating to persons providing information or assistance in confidence to the security and intelligence agencies or UK Armed Forces; (h) information relating to the operations and capabilities of the security and intelligence agencies or UK Armed Forces; (i) information relating to the identity, appearance, deployment or training of current and former members of the security and intelligence agencies or UK Armed Forces; (j) information received in confidence by the security and intelligence agencies or UK Armed Forces from foreign liaison sources; (k) information likely to be of use to those of interest to the security and intelligence agencies or UK Armed Forces in pursuit of their functions, including terrorists or other criminals; and (l) information about the relationship between the Armed Forces of the UK and those of other states, and material received in confidence from the latter.
  42. The PII certificate also sets out the balancing exercise undertaken by the Foreign Secretary. It refers inter alia to the following considerations:
  43. "Ordinarily, the most important factor weighing in favour of disclosure would be the interests of justice, and in particular the public interest in the application of the usual disclosure rules in order to enable the Court to determine the issues fairly. That is not a factor here: disclosure is not sought for the purpose of on-going proceedings.
    Nevertheless, as the Court of Appeal emphasised in [Binyam Mohammed], there is a very important public interest in the publication of court judgments to the fullest extent possible. I recognise that that public interest is particularly weighty in a case such as this where the subject matter of the judgment is of substantial interest to the media and the public."

    The certificate goes on to refer to the length and detail of the open judgment, the fact that the material addressed in the closed judgment was stated to be consistent with the conclusions reached by reference to the open material, and the fact that the closed judgment was said to contain nothing of such concern as to call for public disclosure in the interests of justice. It makes the point, addressed more fully by Mr Eadie in his submissions, that if the court revisits now the assessment previously made and takes the view that the public interest favours disclosure, the Government will have no means of protecting the public interest from the damage that would be done by disclosure. It also points out that the closed material was rigorously tested in the original proceedings by the special advocates, who were also able to apply for any material contained in the closed draft judgment to be moved into the open draft judgment.

  44. Mr Hickman complained about the lack of specificity of the PII certificate as to the grounds on which PII is claimed, but he did not have access to the sensitive schedule where full details are given. He also made a number of submissions, again limited by his lack of access to the sensitive schedule, about the bases for claiming PII, together with general submissions about the weight to be given to the public interest in disclosure when it came to the PII balancing exercise. Ms Rose adopted those submissions and drew attention to various factual features of the case, stressing that the transfer of detainees in UK custody to the Afghan authorities is a matter of continuing public interest and importance. The special advocates, whose submissions we heard in closed sessions, had the benefit of access to the sensitive schedule. I cannot refer to the details of their submissions in this open judgment, but it is possible to say in open that they did not raise a wholesale challenge to the PII claim but did raise a relatively small number of points in relation to the sensitive schedule. The debate on those matters led to an acceptance by Mr Eadie that a few short passages in the closed judgment should be excluded from the scope of the PII claim: those passages are included in the opened-up version of the closed judgment annexed to this open judgment. As to the special advocates' other points, I would reject them for reasons set out in a separate, short closed judgment to be handed down at the same time as this open judgment.
  45. I am satisfied that the PII claim should otherwise be upheld. The Foreign Secretary has made out a valid case that disclosure of other parts of the closed judgment would even now be damaging to the public interest. I do not accept that such an assessment is determinative of the question of disclosure, notwithstanding that the unusual context in which this exercise has been undertaken means that if the court takes a different view on the question the Secretary of State will not have the options that would have been open to him if the court had disagreed with the PII assessment made at the time of the original proceedings. The ultimate decision on whether the contents of a closed judgment should be opened up must remain with the court, just as it does on an appeal, where (as Binyam Mohammed illustrates) the Secretary of State no longer has a choice in the matter. I do accept, however, that the Foreign Secretary's approach to the PII balancing exercise is in principle correct, and I agree with his conclusion that the balance comes down in favour of non-disclosure. The fact that disclosure is not sought for the purpose of on-going proceedings between the parties means that a potentially weighty factor in favour of disclosure is absent. If any PII material in the closed judgment is relevant for other litigation, it or the evidence underlying it can be the subject of a separate PII balancing exercise specific to that litigation. The one factor of public interest in favour of disclosure in the present case is that of open justice. It is a weighty factor but in my judgment it is not sufficient to outweigh the public interest in non-disclosure.
  46. Ms Rose raised a separate issue about the status of material "admitted through a statutory gateway", to which reference is made in paragraph 11(c) of the PII certificate, quoted at [14] above. The certificate describes it as information which was considered in closed "following determinations by the relevant heads of the security and intelligence agencies that there was a statutory gateway in the Intelligence Services Act 1994 or the Security Service Act 1989 permitting disclosure into the closed material procedure, but a statutory prohibition on disclosure into open". Ms Rose submitted that neither of the statutes referred to, on their true construction, prevents the court from disclosing such parts of its closed judgment as it thinks fit. Mr Eadie submitted that the matter was dealt with in this way with the claimant's consent at the original hearing and that it is far too late to challenge it now. It is unnecessary, however, to examine these matters any further since the material in question is covered by the new PII claim, as paragraph 14 of the certificate (also quoted at [14] above) makes clear, and I have already expressed my view that the claim should be upheld.
  47. As already indicated, there is annexed to this judgment an opened-up version of the original closed judgment, containing those parts of the closed judgment in relation to which the court should in my view now permit and direct public disclosure. The disclosure should be made in essentially the form of the Secretary of State's Digest A, with additional material as referred to in this judgment. Mr Hickman, supported by Ms Rose, proposed that the disclosure should be in the form of a complete version of the closed judgment, redacting those passages that remained closed but retaining the structure and paragraph numbers of the original and showing the precise extent of the redactions, so that everyone could see how much remained closed. Mr Eadie resisted that proposal on the basis that the existence of closed material going to a particular issue, and the quantity of such material, may themselves be sensitive matters, which is why it is the general practice in SIAC proceedings to adopt the digest approach rather than the approach proposed by Mr Hickman. Mr Eadie submitted that there is no sufficiently powerful reason for disapplying the SIAC approach here. With a degree of hesitation, I accept that submission. Whilst there is a public interest in knowing the scale of the redactions, I do not think that it is sufficient to outweigh the risk of harm to the public interest created by disclosure otherwise than in digest form, even though that risk is of a general nature and is inherently unquantifiable.
  48. Variation of the undertakings

  49. I turn to consider the question of release of the claimant and her legal representatives from the undertakings on the basis of which specified documents were disclosed to them in the course of the original proceedings. That material was considered in semi-closed sessions and was dealt with in Part II of the closed judgment. The undertakings were set out in an order dated 21 January 2010 and related to documents referred to in a schedule to the order (defined as "the further documents"). The claimant and her legal representatives undertook that "(a) subject to any variation of this Order, they will not disclose the further documents or any part of the contents thereof to anyone; and (b) they will keep the further documents securely locked at all times when not under review". At a directions hearing on 11 April 2013 the court ordered that the claimant and her legal representatives be released from their undertakings in so far as they related to the witness statement of Mr Burton. Mr Hickman submitted that they should now be released from the undertakings in respect of the documents underlying any passages in Part II of the closed judgment that are opened up. I accept that, for the avoidance of doubt, there should be an express release from the undertakings to the extent of any information contained in those passages in Part II of the closed judgment that are opened up. I also accept that, to the extent that any documents covered by the undertakings have already been put into the public domain, as in the case of the version of Mr Burton's witness statement disclosed and read out in open court in the Serdar Mohammed proceedings, there should be a corresponding release from the undertakings. But the opening-up now proposed relates to the closed judgment itself, not to the documents underlying it, and I do not accept that it should lead to release from the undertakings in respect of the underlying documents. The exercise of determining the precise extent to which documents covered by the undertaking corresponded to the opened-up passages in the closed judgment would be a potentially elaborate one, and I see no reason for requiring that process to be undertaken in circumstances where the claimant and her legal representatives have no continuing interest in the release of the documents for the purposes of the proceedings themselves.
  50. Disclosure of evidence underlying the closed judgment

  51. Mr Hickman also made submissions in support of the claimant's application that if the court ordered any parts of the closed judgment to be disclosed, it should at the same time order disclosure of any related witness statement evidence (including exhibits). For the reasons I have just given in relation to the issue of release from the undertakings, I would reject that application. There is no justification for going further than to open up parts of the closed judgment itself.
  52. Because of the issue relating to disclosure of evidence underlying the closed judgment, the Secretary of State was directed to file and serve on the special advocates an indexed bundle containing the closed material which was previously disclosed to the court and the special advocates in these proceedings. In filing bundles in compliance with that direction, the Treasury Solicitor stated in a letter of 24 May 2013:
  53. "The form of these bundles does not precisely match how they appeared three years ago, in particular because one bundle has had to be reconstructed, having been destroyed, but we believe the content is the same."

    In response to concerns raised by the special advocates in the closed hearing about this state of affairs, we were told by Mr Eadie that no formal procedures were in place in 2010 for the recording of material deployed before the court in closed proceedings, but that this has now changed and copies of all material served on the court are scanned electronically and securely saved. The change of practice so described is plainly appropriate and should obviate this particular problem for the future. I should, however, make clear that there is no reason to believe that the imperfect former procedure has resulted in this case in any deficiency in the bundles filed pursuant to the court's direction.

    The invitation to give further directions and guidance

  54. Finally, I should refer to Ms Rose's submission that, to the extent that parts of the closed judgment remain closed, this court should give directions for the regular review of that judgment to ensure that the remainder is published as soon as practicable, and that the court should give general guidance on procedures for the future review of closed judgments for the same purpose. She submitted that the judge who has heard a case is best placed to assess the degree of sensitivity of the closed judgment and the likely future time-frame for that sensitivity to last. The judge should indicate the backstop period of time before review by the Government as to whether there is a continuing public interest in the judgment remaining closed. The Government should then notify the court publicly of its position, so that the media or others can challenge it if necessary. That, submitted Ms Rose, would give effect to the principle that only that which must be secret should be secret, and only for so long as it needs to be secret.
  55. I do not consider it appropriate either to give directions for further review of the closed judgment in the present case or to give general guidance for the handling of other cases. I have referred more than once already to the unusual context of the present case, which has proceeded on the basis of a concession by the Secretary of State that he should carry out a fresh sensitivity review of the material contained in the closed judgment. It has not been necessary to decide whether he could or should have required to carry out that exercise in the absence of such a concession. Nor would it be appropriate to direct a further review within a specified time-frame. It would be even less appropriate to seek to lay down guidance for other cases which, by their very nature, will be exceptional and fact-specific. Further, Mr Eadie drew the attention of the court to the fact that Parliament has had a number of opportunities to legislate on this very issue and has so far declined to do so. A specific amendment to the Justice and Security Bill (now the Justice and Security Act 2013) was tabled at the Lords Committee stage, in terms that closed judgments "must be accompanied by an open statement from the court, which shall include (g) the date at which the closed status of the judgment should be reviewed, which must be no later than five years from the date of the judgment". The amendment was not made. Whilst I do not accept Mr Eadie's submission that the court is being invited by Ms Rose to conduct what is in effect a legislative function, the fact that Parliament has considered but has not enacted a procedure of this kind is a factor militating against its adoption by means of judicial guidance.
  56. Conclusion

  57. For those reasons I would allow the applications to the extent of (i) directing public disclosure of those parts of the original closed judgment contained in the version annexed to this judgment (see [36] above), and (ii) directing that the claimant and her legal representatives be released from their undertakings to the extent set out in [37] above.
  58. Mr Justice Mitting:

  59. I agree.

Case No: CO/11949/2008

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT

Royal Courts of Justice
Strand, London, WC2A 2LL
25/06/2010

B e f o r e :

LORD JUSTICE RICHARDS
and
MR JUSTICE CRANSTON

____________________

Between:
The Queen (on the application of Maya Evans) Claimant
and
Secretary of State for Defence Defendant

____________________

Michael Fordham QC, Tom Hickman and Rachel Logan (instructed by Public Interest Lawyers) for the Claimant
James Eadie QC, Sir Michael Wood, Marina Wheeler and Karen Steyn (instructed by The Treasury Solicitor) for the Defendant
Khawar Qureshi QC and Kieron Beal (instructed by The Special Advocates Support Office of the Treasury Solicitor) as Special Advocates
Hearing dates: 19-23 and 26-29 April 2010

____________________

OPENED SECTIONS OF THE APPROVED CLOSED HTML VERSION OF JUDGMENT HANDED DOWN ON 25 JUNE 2010
____________________

Crown Copyright ©

    (Annexed to Open Judgment dated 16 October 2013, neutral citation number [2013] EWHC 3068 (Admin))

    Lord Justice Richards


    PART I: INTRODUCTION

    This is the closed judgment of the court. It is not a stand-alone document but needs to be read in conjunction with the open judgment in these proceedings (see [2010] EWHC 1445 (Admin)). It deals with various factual matters that are relevant to the decision of the court but are the subject of a public interest immunity (PII) claim or statutory restriction on disclosure.

    The matters in question were considered at the hearing of the judicial review application either in semi-closed sessions (in which the claimant's legal team took part) or in closed sessions (from which the claimant's team were excluded). The need for semi-closed sessions arose out of the fact that certain documents covered by PII were disclosed to the claimant's team by mistake and/or subject to appropriate undertakings, or it was accepted by the claimant's counsel that, notwithstanding the absence of a PII claim, there were legitimate reasons of public interest why information should not be put into the public domain (for example, to avoid the risk of identification of a complainant who had asked not to be identified).

    We have decided to deal in a single closed judgment with the various matters considered at the semi-closed and closed hearings. The claimant's legal team, however, are entitled to know what use the court has made of the material that was the subject of submissions in the semi-closed sessions. Accordingly, we deal with that material in Part II below. Subject to confirmatory vetting, Part II (together with this introductory Part I) can be disclosed to the claimant's team. The material covered only in closed sessions, and not for disclosure otherwise than to the Secretary of State's team and the special advocates' team, is covered in Part III.

    We have already indicated in the open judgment (see [13]) that we do not consider there to be sufficiently weighty reasons to override the public interest against public disclosure of the material dealt with this in this judgment. It will be seen that the material tends to reinforce the concerns we have expressed in the open judgment about the conduct of the NDS, but it does not evidence any wrongdoing by UK personnel or cast a fundamentally different light on the matters considered in the open judgment. If it did, we might have been led to a very different view on whether it should be put in the public domain.

    There are some minor matters in relation to which the special advocates have raised specific issues as to the appropriateness of redactions on grounds of relevance, or as to putting into the public domain certain details in the closed material to which reference has already been made in open session (such as an individual's name or senior position). We have not spent time on these points, none of which seems to us to be of any materiality for the proper resolution of the case or for a proper understanding by the public of the reasons for our conclusions. Given the volume of material involved, it would not be in the least surprising if the closed material included a few passages that could properly be opened up; but we are not aware of anything that really matters and we take the view that a detailed trawl of the material with that purpose in mind would be a disproportionate exercise.

    PART II: SEMI-CLOSED

    The NDS

    Transfer of detainees to the NDS

    At [43] of the open judgment we have explained that ISAF standard operating procedures provide that the NDS should be considered as the preferable reception body for ISAF detainees who are transferred to the Afghan authorities.


    Meeting with Dr Saleh in January 2009

    We have referred in the open judgment, in particular at [122] to [125], to the refusal of access to NDS Kabul in late 2008 and early 2009 and to the discussions that took place with Dr Saleh about this.

    The exception to the moratorium on transfers to NDS Kabul: prisoner 806

    It has been explained in the open judgment that one exception has been made to the moratorium imposed in December 2008 in respect of transfers of UK-captured detainees to NDS Kabul. This exception was the transfer of an individual known as "detainee 806" to NDS Kabul on 15 January 2010. According to the closed witness statement of Mr Burton, the detainee is a senior figure in the insurgency, involved in attacks on UK and coalition forces and Afghan civilians. The assessment made was that to transfer him to NDS Lashkar Gah was not a viable option, since it would not have been possible for him to be prosecuted there. There was also believed to be a far greater prospect of successful prosecution in Kabul, the Afghan centre of counter- terrorism expertise. Release was an option to be avoided as far as possible because the intelligence assessment was that he would return immediately to activity supporting attacks in Helmand.

    Before deciding on an exceptional transfer to Kabul, UK officials sought to assess the risk of the detainee being subjected to torture or serious mistreatment. Although the NDS had requested that the detainee be transferred to the NDS's counter-terrorist detachment, which had not been implicated in any allegations of mistreatment, it was considered very probable that, if their investigation was successful, he would subsequently be transferred to the investigations and pre-trial detentions division (i.e. Department 17). Representations were made, underlining the imperative need to adhere to the provisions of the MoU were the detainee to be transferred. In response, Dr Saleh gave specific reassurances that he would be treated humanely and that UK officials would be given full access to him in accordance with the terms of the MoU. A considered decision was then taken that an exception to the moratorium could be made in this case.


    Following the transfer on 15 January, British Embassy staff made contact with the NDS liaison officer on 20 January requesting permission to visit soon thereafter. An initial delay was thought to be attributable to the chaos caused by various suicide bomb attacks in Kabul on 18 January. Embassy staff, however, then experienced considerable difficulty with gaining access despite repeated attempts to arrange a visit. They contacted the NDS on an almost daily basis. It was not possible to visit the detainee until 14 February, at Department 17, almost a month after he had been transferred by the UK.

    During the period between the initial transfer and the first visit, detainee 806 was held at the NDS's counter-terrorism department for a few days and was then transferred to NDS Department 17. The UK's repeated efforts to secure a visit were blocked by a series of unsatisfactory excuses. It was thought that a key factor in preventing a visit was the fact that Dr Saleh was out of the country for several days and his personal permission was required to gain access to a senior detainee in Kabul; but Mr Fordham's analysis of the documents showed that this was not an entirely credible explanation. It seems that, as Mr Fordham submitted, UK officials were given the runaround until questioning of detainee 806 had been completed, and that this was done despite the specific assurances given prior to his transfer by the UK into NDS custody.

    When detainee 806 was eventually visited on 14 February, NDS officers were not present during the meeting but were sitting directly outside the door, and it was thought possible that they overheard some of the conversation. At a second visit, on 1 March, NDS officers were neither present nor, it was thought, within earshot (though it was noted that there were large gaps at the top and bottom of the door). The position in relation to the third visit, on 16 March, was similar, though the official who reported on the visit noted that the newly built Department 17 facility (to which detainee 806 had been moved by the time of the second visit) had the capability for an eavesdropping device and CCTV and that there was an NDS mobile phone charging in the room throughout the interview. Visits have continued at two-weekly intervals since then.

    Mr Fordham submitted that the circumstances of the interviews have not been such as to provide sufficient reassurance for an individual detainee as to his freedom to speak without risk of reprisal. It appears to us, however, that the interviews have taken place in a sufficient degree of privacy to give the detainee a reasonable degree of confidence that it would be safe for him to make a complaint. On the other hand, the very fact that visits to detainee 806 were prevented for an entire month despite the clear assurances that had been given is itself a strong indictment of the NDS at Kabul and their commitment to the MoU. It adds to the reasons why we have concluded that the moratorium on transfers to NDS Kabul has rightly been kept in place and that further exceptions cannot safely be made (see open judgment at [308]-[309]).

    Specific allegations by UK transferees

    It is necessary to consider allegations made by one UK transferee, prisoner F, in addition to those dealt with in the open judgment. In relation to F, we understood it to be accepted that it was appropriate for him to be dealt with in semi-closed sessions because of the risk of his being identified contrary to his express request.

    Prisoner F was in NDS custody for a period of approximately two months in 2007. In 2009, he alleged that he was beaten severely (including with a strip of rubber cable) while in NDS custody. He claimed to have visible scarring on his body but refused to be examined or to show the area for photographs to be taken. He has never made a formal complaint in respect of his allegation.

    Questions arise in relation to the credibility of prisoner F. While the possibility of collusion or individual fabrication cannot be discounted, we take the view that prisoner F's allegation is not self-evidently ill-founded and that it must be treated in the same way as the complaints dealt with in the open judgment. We are unable to reach any definite conclusion as to its credibility, and the only safe course is to proceed on the assumption that it is true.


    Threats of reprisals for making allegations against the NDS

    The closed material evidences threats of reprisals made by the NDS against those making allegations of ill-treatment at the hands of the NDS. The position in relation to individual detainees is as follows.

    The evidence as to threats of reprisals is limited in scope. Only one prisoner alleged that he had been threatened with violence. In the case of another prisoner, the express threat was simply of being returned to the NDS, but that might be considered threat enough. Nonetheless, it seems to us that these various incidents add force to Mr Fordham's submission that the fear of reprisals is likely to have inhibited the making of complaints against the NDS by detainees visited at NDS facilities and interviewed otherwise than in conditions of assured privacy (see open judgment at [258], a point picked up in our discussion at [306]-[308]).

    Record-keeping and notifications of change

    A further point about the incidents described above is that the detainees were transferred to an NDS facility from Pol-i-Charki, where they were serving their sentences, without any notification to the UK as required by the MoU. It would be wrong to make too much of this: it appears that the transfers were made for the most part to a separate department of the NDS which was investigating the detainees' allegations against the NDS. It does, however, provide further evidence of a lack of commitment by the NDS towards meeting the requirements of the MoU (albeit these transfers took place before the assurances given in Dr Saleh's letter of 25 March 2010).

    Out of an abundance of caution we deal here with a part of the story concerning the difficulty of tracking prisoner B. It was the subject of submissions in semi-closed session, and the dividing line between closed and open material relevant to it is not altogether clear. As explained at [200] and [201] of the open judgment, prisoner B made an allegation of mistreatment by the NDS when he was visited at Pol-i-Charki on 9 April 2009; but on subsequent visits to Pol-i-Charki he was not located and he has not in fact been seen since.

    On 7 October the NDS informed UK officials that B had been released on 25 June. On 17 October the NDS informed the British Embassy that he had been transferred back to Department 17 prior to release. In response to a request for further details, the information was given that he had been transferred back to Department 17 because he was appearing in court, and that the court saw him on 25 May and ordered his release on 11 July. The Attorney General's office subsequently confirmed that an individual whose details had a good match with those of B had been released on 11 July: the father's name was the same as that given by B on arrest; the date of arrest was listed as 4 December 2008, whilst B had in fact been captured by UK forces on 3 December 2008 and handed over to the NDS on 4 December; and the same reason for capture was recorded.

    Despite that confirmation, the British Embassy in Kabul wrote as recently as 22 April 2010 to the ICRC to seek its help in clarifying whether B had been released from prison.

    This history provides a further example of deficiencies in the operation of the monitoring system; but there is no positive reason to believe that prisoner B was not released as stated; nor do we consider that any sinister inference concerning possible mistreatment should be drawn from the fact that the system lost track of him.

    Concluding observations on the Part II matters

    Mr Fordham did not make a separate set of overall submissions in relation to the material considered in semi-closed sessions. The points were sufficiently covered, without the need for express reference to the semi-closed sessions, in the general submissions he made in open sessions. The same applies to the case presented by Mr Eadie on behalf of the Secretary of State. In the circumstances we think it unnecessary to make any further observations of a general nature on the matters considered in Part II. It suffices to repeat that in our view the conclusions reached in the open judgment are consistent with those matters.


    PART III: CLOSED

    We confine our attention in this part of the closed judgment to the main points in the closed material to which Mr Qureshi QC (acting with Mr Beal as special advocate) drew our attention during the closed sessions. In the course of his submissions Mr Qureshi also touched upon a number of matters that had already been covered in open or semi-closed sessions by Mr Fordham for the claimant. We have taken account of Mr Qureshi's points when dealing with such matters in the open judgment or in Part II above. In addition, the closed material provides a number of glosses on the open material to which we think it unnecessary to make any specific reference.

    The NDS

    It should also be noted that the information suggesting that monitoring by ISAF states led to better treatment of NDS detainees is relied on by Mr Eadie for the Secretary of State as supporting the view that, notwithstanding that detainees are treated together by for NDS record-keeping purposes, the NDS recognises a practical distinction between those transferred by ISAF states and other detainees.

    Adverse information about NDS senior officials

    The closed material provides further information of concern about a number of senior NDS officials.


    The decision to transfer UK detainees to the NDS

    We have not thought it necessary to deal in detail in the open judgment with the reasons for the decision to make transfers of UK detainees to the NDS rather than to other Afghan authorities (but see [43] of the open judgment and [6] above). It does not seem to us that the point made here by Mr Qureshi has any significant impact on the validity of those reasons. The wider issue of the weight to be placed on monitoring by the ICRC has been examined in the open judgment.

    Access by the AIHRC and ICRC

    The closed material includes further evidence that monitoring of detainees by the AIHRC and ICRC cannot be regarded as an adequate substitute for effective monitoring visits by UK personnel.

    Specific allegations by UK transferees

    Detainee 806

    We have referred in Part II to the problems of gaining access to detainee 806 following his transfer by the UK into NDS custody in January 2010. The closed material gives additional reason for serious concern about that refusal of access. Relevant matters are dealt with in the closed witness statement of Mr Burton and further disclosed documents.

    A document examining options in advance of the decision to transfer detainee 806 into NDS custody indicated that the preferred option was to transfer him to NDS Department 90 (the counter-terrorism department in Kabul). The moratorium was considered to apply "in reality" specifically to Department 17, but it was acknowledged that the NDS would probably pass him on to NDS Department 17 after their initial interrogation and that an exception to the moratorium was therefore required. A further document, reporting on a meeting with the head of Department 90 two days before the proposed transfer, stated that "[w]e are not aware of any allegations of abuse or questionable legal practices" by Department 90. There is no reason to doubt that that was the state of knowledge at the time. As appears below, however, detainee 806 alleged serious ill-treatment by Department 90 as well as by Department 17 following his transfer to them.

    When the first UK visit to detainee 806 eventually took place, on 14 February 2010, he stated that while detained for 8 nights at NDS Department 90 he had been beaten with steel rods to the area of his legs and feet, causing bruising and bleeding to his toes (he claimed he could not walk or stand after the beating); he had been punched on his face; and his testicles had been punched, grabbed and rubbed. He alleged that since his transfer to NDS Department 17 he had been subjected to sleep deprivation and had been made to stand up for five consecutive nights. He stated that NDS officers in both departments had told him that if he reported any abuse to "the foreigners" he would be beaten or killed. He declined permission for the allegations to be reported to the NDS or other Afghan authorities. He gave permission for the ICRC and the AIHRC to be notified of the general details but not of his name, and in any event only in three months' time, owing to the fear of repercussions.

    The immediate assessment of his physical condition was that there was a visible scratch to the left leg; both index toes were bruised and one was blackened; but no other evidence of mistreatment was seen. Photographs were taken, on an assurance that they would not be shared with the NDS: they are included in the material before the court. The view expressed in an official report of the visit was that the allegations "are clearly very serious irrespective of the fact that they are not substantiated by visible injuries".

    Dr Saleh commented in the course of a dinner on 15 February that detainee 806 "had been very forthcoming, without any pressure from the NDS".

    It was planned to take a male RMP officer with the UK team for the second visit, in case the detainee claimed to have visible injuries on private parts of his body (the RMP officer on the first visit had been female); but the point was made that any overt medical examination might arouse NDS suspicions.

    At the second visit, on 1 March, detainee 806 stated that two days after the previous visit he had been taken by three NDS investigators to an interview room where he was held overnight and had been slapped, punched and struck on the upper arms, back, thighs and buttocks with what he described as electrical wiring about 24 inches long. In addition, he claimed that he was forced to stand and was not allowed to sleep for the duration. He did not know the names of the NDS investigators but would be able to recognise them. However, he was not willing to identify them. He claimed to have bruising on his upper thigh and pelvic and buttock areas, but was not willing for "cultural" reasons to show the alleged marks to the visiting team. He was quick to show a bruise about the size of a fifty pence piece, dark red in the centre surrounded by yellow disclosing, on his left upper arm. Members of the visiting team were "not convinced" by him. Again he refused consent for the allegations to be raised with the NDS or other Afghan authorities. He said he was only reporting the incident to demonstrate that the NDS were "bad people". He has also revoked permission for the allegations to be raised with the ICRC and the AIHRC.

    No further allegations of mistreatment were made by him during the third visit, on 16 March, or, it would seem, during subsequent visits.

    Mr Eadie sought to cast doubts on the credibility of detainee 806's allegations of ill-treatment, largely by reference to inconsistencies between the serious abuse alleged and the limited physical marks evident when he was seen by UK personnel and photographs were taken. He also submitted that the detainee would have been aware of other reports of torture and would also have been aware that allegations of ill-treatment had the potential to help in court proceedings. Considerable caution was therefore needed in assessing the allegations.

    We accept the need for caution, but we do not think that the allegations made by detainee 806 can be dismissed out of hand. As in the case of the other specific allegations we have considered, we find it impossible to reach any conclusion on the issue of credibility, and we consider that the only safe way to proceed is on the assumption that the allegations are true.

    Mr Qureshi submitted that the material relating to detainee 806's allegations of ill-treatment by the NDS should be disclosed to the claimant's legal team (but not, as we understand it, to the public at large). We do not consider there to be a sufficiently strong case for such disclosure. The special advocates have been able to deal fully with the material. It is not suggested that the claimant's team could provide some unique or special input in relation to it. The material certainly adds to our concerns about NDS Kabul as expressed in the open judgment, but it does not cast a fundamentally different light on the position at the facility or on the reasoning in the open judgment. The public interest considerations in favour of non-disclosure ought in our view to prevail.


    The NDS's report of 3 April 2010

    We mention here, because it may not be apparent from what we have said in the open judgment, that the NDS's report of 3 April 2010 on its investigation into allegations made by UK transferees relates to prisoners A, C and E but not to prisoner D, a report on whom is still awaited.

    Canada

    The closed material contains a detailed report on a Canadian mission to Afghanistan in January 2008, when the Canadian moratorium on transfers to NDS Kandahar was in force because of the allegations of ill-treatment of detainees in 2007. The mission spent time at Kabul and Kandahar, looking closely at the NDS detention regime. It came up with detailed recommendations, including several in relation to training. The report is relied on by the Secretary of State as showing the extent of review conducted by Canada before it took the decision in March 2008 to resume transfers. In our view it provides only limited assistance in that respect: as Mr Quereshi submitted, it is a needs and capabilities assessment rather than a specific audit in respect of ill-treatment or the risk of ill-treatment.


    Concluding observations on the Part III closed material

    Mr Qureshi submitted that the closed material strongly supports the view that the MoU has not functioned effectively in practice. It provides further instances of the failure to provide full access to NDS facilities as required by the MoU. It contains further specific and well-founded allegations of ill-treatment of transferees by the NDS and other evidence of abuse of NDS detainees. It shows that Dr Saleh is not committed to the MoU and emphasises the importance of looking at actions, not words. The ICRC and AIHRC do not provide an effective monitoring mechanism. In short, there is clear evidence of a real risk of torture or serious mistreatment, a risk that is not ameliorated by the practical operation of the MoU.

    Mr Eadie submitted that the closed material provides support for the themes developed by him in the open sessions. He acknowledged that there had been some problems at NDS Kabul and that there were some reasons for caution with regard to Dr Saleh, but submitted that none of the material should lead to an inference that all transfers carry a real risk of torture or serious mistreatment. NDS Kabul is subject in any event to a moratorium, and the information concerning the one exception, detainee 806, will be taken into account when deciding whether any further exception can be made. As to NDS Lashkar Gah and NDS Kabul, there is nothing to show a consistent pattern of systematic abuse there. In so far as the closed material adds to the picture concerning Lashkar Gah, it is old. There have not even been any allegations of abuse there during the last two years. Further, there has been good access for a long time to Lashkar Gah and to NDS Kandahar, subject to the very recent problems at Lashkar Gah (where active and successful steps were taken to re-establish access). In addition to UK monitoring (and Canadian monitoring at Kandahar), the ICRC and the AIHRC have been increasingly engaged in monitoring, in particular at Lashkar Gah, and have been engaged in the investigation of allegations, thereby providing additional reassurance.

    It is unnecessary for us to set out detailed conclusions in respect of those submissions. In summary, we accept that the material considered in closed sessions provides additional cause for concern about the NDS, especially about NDS Kabul, and about the operation of the transfer arrangements in general and the effectiveness of monitoring in particular. Nonetheless we accept the broad thrust of Mr Eadie's submissions that a distinction can be drawn between NDS Kabul on the one hand and NDS Kandahar and NDS Lashkar Gah on the other hand and that the material considered in closed sessions does not seriously undermine the Secretary of State's case in relation to the latter. In our judgment, the material supports our conclusion that UK detainees transferred to NDS Kabul would be at real risk of torture or serious mistreatment, but at the same time is consistent with our conclusion that the transfer of UK detainees to NDS Kandahar or to NDS Lashkar Gah on the basis set out in the open judgment would not give rise to a real risk of torture or serious mistreatment.


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