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England and Wales High Court (Queen's Bench Division) Decisions |
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You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> Al Rawi & Ors v the Security Service & Ors (includes Order) [2010] EWHC 1496 (QB) (21 June 2010) URL: http://www.bailii.org/ew/cases/EWHC/QB/2010/1496.html Cite as: [2010] EWHC 1496 (QB) |
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HQ08X01413 HQ08X01416 HQ08X03220 HQ08X01686 |
QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL |
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B e f o r e :
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(1)BISHER AL RAWI (2)JAMIL EL BANNA (3)RICHARD BELMAR (4)OMAR DEGHAYES (5)BINYAM MOHAMED (6)MARTIN MUBANGA |
Claimants |
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- and - |
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(1)THE SECURITY SERVICE (2)THE SECRET INTELLIGENCE SERVICE (3)THE ATTORNEY-GENERAL (4)THE FOREIGN AND COMMONWEALTH OFFICE (5)THE HOME OFFICE |
Defendants |
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(i) instructed by Birnberg Peirce &Co for the First to Fourth Claimants;
(ii) instructed by Leigh Day for the Fifth Claimant and
(iii) instructed by Christian Khan for the Sixth Claimant.
Rory Phillips QC, Peter Skelton and Louise Jones (instructed by the Treasury Solicitor) for the Defendants.
Hearing dates: 22 and 23 April 2010
Further written submissions served between 6 and 17 May 2010
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Crown Copyright ©
Mr. Justice Silber:
I. The Issue
II. The Facts
(a) the defendants should disclose and permit inspection of (i) the Guidance document(s) for the interrogation and treatment of detainees dated 11 January 2002 ("the 2002 Guidance") referred to in paragraph 47 of the Intelligence and Security Committee ("ISC") report of 2005 and (ii) the subsequent Guidance relating to 2004 onwards ("the 2004 Guidance") referred to in paragraph 82 and footnote 65 to the ISC report of 2007;
(b) if inspection of the 2002 Guidance and/or 2004 Guidance is opposed on grounds of PII, then this issue should be determined at a hearing to be fixed as soon as possible after discovery and a PII certificate should be served no later than 21 days thereafter; and
(c) in the event that inspection is opposed, the court should also request the Attorney General to appoint senior and junior Special Advocates to assist the court in the determination of the issue of whether inspection should be ordered.
III. The Guidance Documents
"45….we believe that the Secretaries of State accountable for the agencies ought to have been consulted prior to the interviewing of detainees in Afghanistan. We recommend that, in any future cases in which the UK is involved in armed conflict with another state or terrorist organisations, Ministers are consulted before staff are deployed to interview detainees held by another country…".
"These comments raise concerns about the US treatment of detainees and the following day - 11 January 2002 instructions were sent to the SIS officer and copied to all SIS and Security Service officers in Afghanistan, as follows:
"With regard to the status of prisoners, under the various Geneva Conventions and protocols, all prisoners, however they are described, are entitled to the same levels of protection. You have commented on their treatment. It appears from your description that they may not be being treated in accordance with the appropriate standards. Given they are not within our custody or control, the law does not require you to intervene to prevent this. That said, HMG's stated commitment to human rights makes it important that the Americans understand that we cannot be party to such ill treatment nor can we be seen to condone it. In no case should they be coerced during or in conjunction with an SIS interview of them. If circumstances allow, you should consider drawing this to the attention of a suitably senior US official locally.
It is important that you do not engage in any activity yourself that involves inhumane or degrading treatment of prisoners. As a representative of a UK public authority, you are obliged to act in accordance with the Human Rights Act 2000 which prohibits torture, or inhumane or degrading treatment. Also as a Crown Servant, you are bound by Section 31 of the Criminal Justice Act 1948, which makes acts carried out overseas in the course of your official duties subject to UK criminal law. In other words, your actions incur criminal liability in the same way as if you were carrying out those acts in the UK".
"From 2004 it became clear to SIS and the security service that their existing Guidance to staff on dealing with foreign liaison services was insufficiently detailed given the increasing requirement to cooperate with foreign services in counter-terrorism operations. They therefore began to expand their Guidance, and as elements were finalised they were formally issued to staff".
"Advice on participation in detention operations and interviews was formally issued to SIS and security staff in 2005. In 2006, all three agencies formally issued updated Guidance to staff on the exchange of intelligence with foreign liaison services (in GCHQ's case it was issued to operational staff only) this expanded Guidance better equipped staff to understand their responsibilities and, for operational staff at what point in any given operation to involve Agency legal advisors, policy departments or ministers.
IV. The Defendants' Objections
(a) they relate to a narrow range of material and if the claimants' application is successful, this would lead to disclosure being provided in an incomplete and in an illogical manner with disproportionate and misleading importance being attributed to the 2002 and the 2004 Guidance. Thus, if there were an order for the disclosure now sought by the claimants, this would have the consequence that those documents would not be seen by the claimants and the court in their full and proper context but instead they would be presented in the words of the letter from the Treasury Solicitor of 6 May 2010 "in artificial isolation";
(b) the defendants are now in the process of giving disclosure and they have a procedure in place for doing this but if the court acceded to the claimants' application for disclosure and inspection, this would in the words of Mr. Phillips be very difficult for the defendant's disclosure team which was like a "very, very, big ship" being required to "undertake quick turns". In any event, the defendants would give priority in the next disclosure protocol to the Guidance material;
(c) the application of the Wiley test on PII is best undertaken at the end of the disclosure exercise;
(d) the court should not order a PII hearing in relation to these or any other disclosed documents until the final determination of a preliminary issue which had been ordered in September 2009 and which was whether it is permissible to have a closed material procedure hearing in claims for damages for tort and breach of statutory duty. By a judgment handed down on 4 May 2010 [2010] EWCA Civ 482, the Court of Appeal held unanimously that closed material procedures could not be applied in common law claims for damages such as the present one and that the appropriate procedure to be adopted on disclosure and inspection was the conventional PII regime. The Court of Appeal has refused to grant permission to the defendants to appeal to the Supreme Court but I will assume that the defendants will petition the Supreme Court for leave.
V. Should Disclosure be Ordered?
"will take us later in this decade. I think it's 2013 or something of that kind. What is said is that does not take account of the Wiley balance" (page 111)
"This disclosure exercise is unprecedented in its combinations of scale and complexity. Apart from the very large number of documents involved now over 250,000 documents identified as potentially relevant, each document often comprising many pages, they cover a period of several years, and are held by several different Government Departments and agencies. There are furthermore a high proportion of very sensitive material that requires particularly careful review."
VI. The PII Certificate and the Special Advocate
VII. Conclusion
(a) the defendant should disclose and permit inspection of the 2002 Guidance and the 2004 Guidance by 10am on 9 July 2010;
(b) if inspection of the 2002 Guidance and/or 2004 Guidance is opposed on grounds of PII, then the matter should be determined at a hearing to be fixed as soon as possible after discovery and a PII certificate should be served by 10am on 9 July 2010; and that
(c) in the event that inspection is opposed the court should request the Attorney General to appoint a Special Advocate preferably a Queen's Counsel to assist the court in the determination of the issue of whether inspection should be ordered.