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Cite as: [2008] EWHC 2048 (Admin)

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Neutral Citation Number: [2008] EWHC 2048 (Admin)
Case No: CO/4241/2008

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

Royal Courts of Justice Strand.
London, WC2A 2LL
21/08/2008

B e f o r e :

LORD JUSTICE THOMAS
and
MR JUSTICE LLOYD JONES

____________________

Between:
The Queen on the Application of Binyan Mohamed
Claimant
- and -

Secretary of State for Foreign and Commonwealth Affairs
Defendant

____________________

Dinah Rose QC, Philippe Sands QC and Ben Jaffey (instructed by Leigh Day)
for the Claimant

Thomas de la Mare and Martin Goudie (instructed by The Treasury Solicitor's Special Advocates Support Office)
as Special Advocates for the Claimant

Pushpinder Saini QC, Vaughan Lowe QC, Karen Steyn and Tim Eicke
(instructed by The Treasury Solicitor) for the Respondent

Michael Birnbaum QC as Amicus Curiae

Mr Duncan Penny
(instructed by Kingsley Napley) was present for Witness B

Hearing dates: 28, 29. 30 and 31 July and 1 and 18 August 2008

____________________

HTML VERSION OF JUDGMENT
____________________

Crown Copyright ©

    INDEX

      Paragraph
    I INTRODUCTION 1
    II THE FACTS, THE ALLEGATIONS OF BM AND THE COURSE OF THE PROCEEDINGS 5
      (1) The facts and the allegations made by BM 5
        (a) BM's period in the United Kingdom 7
        (b) The UK Security Services and their position after 11 September 2001 9
        (c) BM's arrest in Pakistan and the provision of information to the United Kingdom 10
        (d) The interview of BM by the Security Service 16
        (e) The lawfulness of BM's detention in Pakistan 23
        (f) BM's allegations as to his treatment when held in Pakistan 26
        (g) Information available to the SIS and SyS derived from other matters 28
        (h) The requests by the SyS to the United States authorities to interview BM again: May to September 2002 29
        (i) The provision by the SyS of further information and questions to the United States authorities 30
        (j) The total absence of information as to BM's whereabouts between May 2002 and May 2004 31
        (k) BM's allegations as to his rendition to Morocco and his torture there 35
        (l) BM's allegations of rendition from Morocco to Afghanistan 36
        (m)The statements made by him at Bagram and Guantanamo Bay between May and "November 2004 and the use made of them by the United States 38
      (2) The attempts made by the United Kingdom Government to assist BM 42
      (3) The commencement of proceedings 45
      (4) The events after the commencement of these proceedings in May 2008 47
      (5) The urgency of the matter 48
      (6) The course of the proceedings 50
      (7) The position of the Convening Authority 54
    III THE CLAIM TO THE DOCUMENTS UNDER THE PRINCIPLES IN NORWICH PHARMACAL 61
      (1) Was there wrongdoing? 65
      (2) Was the UK Government involved, however innocently, in the arguable wrongdoing? 69
        (a) The relevant legal principles 69
        (b) The application of the principles in relation to the involvement in the alleged wrongdoing and our findings of fact 74
          (i) The case made by BM 74
          (ii) The cross-examination of Witness B: the invocation of the right against self-incrimination 76
          (iii) Our findings in relation to involvement and facilitation 86
      (3) Was the information necessary? 92
        (a) The legal principles 93
        (b) Application of principles to the facts 98
          (i) The necessity of the provision of the information to BM's lawyers 102
          (ii) Whether the information will be provided to and considered by the Convening Authority if not produced by the Foreign Secretary 109
          (iii) Whether the information will be provided to BM's lawyers by order of the Military Judge during the course of hearings before the Military Commission 115
          (iv) Our conclusions on the procedures in the United States 123
      (4) Was the information sought within the scope of the available relief? 127
        (a) The legal principles 128
        (b) The application of the principles to the facts 135
      (5) Should the court exercise its discretion in favour of making disclosure? 139
        (a) Our approach 139
        (b) The consequences to BM 141
        (c) The importance of the state prohibition on torture and cruel, inhuman and degrading treatment 142
        (d) Time, cost and convenience 145
      Our conclusion on the Norwich Pharmacal application 146
      Public Interest Immunity 148
    IV QUASHING THE DECISION NOT TO MAKE VOLUNTARY DISCLOSURE 150
    V THE CLAIM FOR DISCLOSURE UNDER THE ALLEGED DUTY UNDER PUBLIC INTERNATIONAL LAW 161
      (1) Article 15 of the Torture Convention and customary international law 163
      (2) Consequences of the prohibition of torture as a rule of jus cogens 170
      (3) Customary international law and the common law 184

    Lord Justice Thomas:

    I INTRODUCTION

  1. This is the judgment of the Court.
  2. The issue

  3. The issue in this case is whether the defendant, the Secretary of State for Foreign and Commonwealth Affairs (the Foreign Secretary), must make available certain information and documents in confidence to lawyers acting for Binyan Mohamed (BM), who is not a British national, though he was resident in the United Kingdom. He was arrested in Pakistan on 10 April 2002 and has been held by the United States at Guantanamo Bay since September 2004. On 28 May 2008 he was charged with offences which may carry the death penalty. He faces an imminent decision on the reference of those charges for trial before a Military Commission established under the United States Military Commissions Act of 2006. He contends that the only evidence against him is confessions made by him at the United States base at Bagram in Afghanistan between May and September 2004 and further confessions prior to November 2004 which were made shortly after his transfer to Guantanamo Bay in September 2004. He claims that these were made after a two year period of incommunicado detention after his arrest in Pakistan, during which he was subject to cruel, inhuman or degrading treatment and torture at the hands of Pakistani and Moroccan authorities with the connivance of the United States Government and to similar treatment by the United States Government.
  4. It is accepted by the Foreign Secretary, as is set out at paragraph 47.ii) below, that it is possible that documents which the United Kingdom Government has recently found could be considered exculpatory or might otherwise be relevant in the context of proceedings before the Military Commissions. BM's lawyers contend that the importance of the documents or the information contained in them is that they may provide essential support to BM's account of what happened to him. The information or the documents should therefore be disclosed to them in confidence, as the United States Government has refused to provide any information whatsoever in relation to his detention between April 2002 and May 2004, not even his location during that period. The Foreign Secretary contends that he is under no duty to disclose the documents or the information contained in them and to do so would in any event cause significant damage to national security of the United Kingdom. He contends that there is no disadvantage to BM, as the documents will be made available during the proceedings under the United States Military Commissions Act of 2006. That forum will therefore provide the proper remedy for BM consistent with the interests of the United Kingdom's national security. The efficacy of that process is challenged on behalf of BM.
  5. The hearing before the court took place in open and closed sessions. In the closed sessions the interests of BM were represented by Special Advocates. Wherever possible without endangering interests of national security we heard argument in open session. The nature of the material placed before us has required us to produce open and closed judgments. Once again, wherever possible without endangering interests of national security we have set out in the Open Judgment our reasoning and conclusions and the evidence on which they are based. We have redacted for the time being, at the request of the Foreign Secretary, from this open judgment certain passages summarising part of our findings in the closed judgment. We did so despite submissions from the Special Advocate to the contrary, pending consideration at the further hearing to which we refer at paragraph 149. At that hearing we will decide whether to add a further summary of part of what is contained in the closed judgment and make it available as part of the open judgment. That hearing has been presently fixed for Wednesday 27 August 2008
  6. II THE FACTS, THE ALLEGATIONS OF BM AND THE COURSE OF THE PROCEEDINGS

    (1) The facts and the allegations made by BM

  7. It is necessary first to provide an outline of the facts that emerged from the open part of the hearing. In doing so, we will also provide a summary of the material allegations made by BM as to what he contends happened to him during the two year period he was held by or on behalf of the United States Government in the period from 10 April 2002 to May 2004.
  8. As we shall explain in more detail at paragraph 51, witness statements by Witness A and Witness B were provided on behalf of the United Kingdom Security Service (the SyS) for the hearing; annexed to those statements were redacted versions of contemporaneous documents. We made an order prohibiting the reporting of the contents of those documents during the course of the hearing for the reasons set out in paragraph 53, but in order to explain as much of the matter as is possible in the open judgment, we shall refer to the documents in their redacted form.
  9. (a) BM's period in the Untied Kingdom

  10. BM is an Ethiopian national and not a British national. He was born in Ethiopia on 24 July 1978. He came to the United Kingdom on 9 March 1994 after a short period in the United States and sought asylum on the basis of his family's opposition to the then government of Ethiopia. Although the application was rejected, in May 2000 he was given exceptional leave to remain in the United Kingdom for 4 years. During that period he lived in London. He worked and studied. His studies included vocational studies for electrical and electronics engineering. Other members of his family sought asylum in the United States; this was granted and some are now United States citizens and reside in the United States. He was converted to Islam. In 2001 he left the United Kingdom to travel to Pakistan. He went on to Afghanistan in June 2001. His account is that he wanted to try and "kick" a drug habit by moving away from the places he frequented in London and to see the Taliban with his own eyes to see if it was a good Islamic country or not. He then returned to Pakistan.
  11. It is alleged in the charges brought against him in May 2008 (see paragraph 47.i) below) {hat whilst in Afghanistan he trained in A)-Qaida camps and was brought to the front line to participate in combat operations between the Taliban and the Northern Alliance. That he was thereafter chosen by Al-Qaida, because of his refugee status in the United Kingdom, to train for and participate in terrorist actions; he was then trained in the building of remote controlled devices to be used to attack United States forces in Afghanistan. That when he went to Pakistan he worked with others on the construction of an improvised radioactive bomb to be detonated in the United States and other matters to which we refer at paragraph 47.i).
  12. (b) The UK Security Services and their position after 11 September 2001

  13. Before setting out the circumstances in which BM was arrested, it is necessary to refer to the conditions prevailing at the time in the light of the events of 11 September 2001.
  14. i) The United Kingdom Armed Forces are trained in the laws of armed conflict set out in the Geneva Conventions. The Joint Services Intelligence Organisations' training documentation states that the following techniques are expressly and explicitly forbidden: (a) physical punishment of any sort; (b) the use of stress positions; (c) intentional sleep deprivation; (d) withdrawal of food, water or medical treatment and three other specified techniques.
    ii) The United Kingdom Government has a very strong record in advocating the case against torture and urging other States not to use torture. There is, as the Intelligence and Security Committee (the ISC) established by the Intelligence Services Act 1994, concluded in its report of 1 March 2005 on the handling of detainees in Afghanistan, Guantanamo Bay and Iraq (Cm 6469), a debate as to whether intelligence which may have been obtained by torture or cruel, inhumane or degrading treatment should be rejected as a matter of principle or whether the Government should use such intelligence to protect the safety of its citizens. It is most certainly not urging States to use torture and pass that information to the United Kingdom (see paragraph 32 of the Report). Although the ISC did not attempt to answer those difficult questions on which it is clear opinions were divided, the ISC drew attention to the evidence of the then Foreign Secretary given on 11 November 2004 that there were circumstances in which intelligence was obtained from a liaison State where the Government knew that their practices were well below the line; however the Government never got intelligence which stated "Here is the intelligence and, by the way, we conducted this under torture". What was important was to consider whether the intelligence is credible. In A v The Secretary of State for the Home Department (No. 2) [2005] UKHL 71, [2006] 2 AC 221 Lord Bingham made clear his view at paragraph 34:
    "There is reason to regard it as a duty of states, save perhaps in limited and exceptional circumstances, as where immediately necessary to protect a person from unlawful violence or property from destruction, to reject the fruits of torture inflicted in breach of international law. As McNally JA put it in S v Nkomo 1989 (3) ZLR 117, 131: 'It does not seem to me that one can condemn torture while making use of the mute confession resulting from torture, because the effect is to encourage torture.'"
    iii) As regards rendition, it is clear from the decision of the Court of Appeal Criminal Division in R v Mullen [2000] QB 520, that the Court of Appeal considered the facilitation of the rendition by the United Kingdom Secret Intelligence Service (the SIS) of Mr Mullen from Zimbabwe to the United Kingdom (in order for him to stand trial on charges related to Irish Republican terrorism) was a serious failure to adhere to the rule of law and was a clear abuse of process. It is clear from paragraph 11 of the ISC report dated 28 June 2007 on the practice of rendition published in July 2007 (Cm7171) in its redacted form that the SyS and the SIS thereafter no longer operated the process of rendition. They must have appreciated that it was contrary to the rule of law.
    iv) It is also clear from the ISC report of 1 March 2005 that the position of the SIS and SyS was that they operated in a culture that respected human rights and that coercive interrogation techniques were alien to the Services' general ethics, methodology and training (see paragraph 39 of the Report).
    v) The events of 11 September 2001 were unprecedented and represented a step change in attitudes to the global terrorist threat. On 7 October 2001, the United States led coalition military action against Afghanistan. The Foreign Secretary had on 28 September 2001 approved the deployment of SIS officers to Afghanistan to support the United Slates military action and to take covert action. Shortly thereafter some of those fighting the coalition were captured by United States authorities and detained by them. The SIS deployed officers to Afghanistan who then began to interview detainees held by the Northern Alliance, which was part of the coalition of anti-Taliban fighters. They also explored, with United States military authorities, the possibility of gaining access to United States-held detainees. (See paragraph 37 of the ISC report of 1 March 2005). The ISC report of 1 March 2005 noted at paragraph 38 that, although the observance of human rights was an important part of the SIS's and SyS's general training, prior to deployment to Afghanistan, SIS officers were not given specific training on the rights of detainees and the Geneva Conventions, nor were they aware of the 1972 announcement banning certain interrogation techniques. The SIS regarded the normal level of training, which emphasised the requirements of the Human Rights Act 1998, as sufficient given the general ethos of the Service.
    vi) On 13 November 2001 President Bush announced by Presidential Military Order a change in United States policy towards terrorism. The change in policy aimed to
    "identify terrorists and those who support them, to disrupt their activities and to eliminate their ability to conduct or support [terrorist attacks] and for suspects to be detained and, when tried, tried by Military Tribunals". (See ISC Report of 28 June 2007 at paragraph 53 quoting a White House press release).
    vii) The Presidential Military Order authorised the detention of suspects at any designated location worldwide with no guarantee of trial. It prescribed that suspects, if tried, would be tried by a Military Commission. The SIS learnt in November 2001 that the United States intended to use Military Tribunals set up under the Presidential Military Order to try terrorist suspects captured outside Afghanistan (see paragraph 4 of the report of 28 June 2007).
    viii) In December 2001 it was agreed that SyS personnel should interview detainees in Afghanistan if the United States authorities permitted it. The first SyS staff arrived in Bagram on 9 January 2002 and began to interview the detainees over the course of the next few days (see paragraphs 42 and 43 of the ISC report of 1 March 2005).
    ix) As appears from paragraph 46 of the ISC report of 1 March 2005, an SIS officer had access to United States-held detainees and conducted an interview of a detainee on 10 January 2002. Although the ISC report concludes that the officer was satisfied there was nothing during his interview which could have been a breach of the Geneva Conventions, he reported back to London his observations on the circumstances of the handling of the detainee by United States military before the beginning of the interview. The detail of his report has been redacted from the version of the ISC report provided to us.
    x) As a consequence, on 11 January 2002, instructions were sent to the SIS officer concerned and copied to all SIS and SyS officers in Afghanistan as follows:
    "With regard to the status of the 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 that 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 United States 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." (See paragraph 47 of the ISC report of 1 March 2005).
    xi) It is clear from the ISC report of 1 March 2005 that the SIS regarded (his as an isolated incident. Nonetheless from January 2002 the SyS, according to paragraph 49 of that ISC report, ensured that all officers involved in interviews of detainees were briefed individually by a senior manager prior to their deployment.
    xii) Although as we have already set out, the United Kingdom regarded all the detainees as subject to the provisions of the Geneva Conventions, on 7 February 2002 President Bush stated that United States policy was that the Geneva Conventions did not apply to the conflict with Al Qaida. He stated that although the Conventions did apply to the conflict with Afghanistan, the Taliban were unlawful combatants and, therefore, did not qualify for prisoner of war status. The President, however, ordered that the detainees were to be treated "humanely and, to the extent appropriate and consistent with military necessity, in a manner consistent with the principles of Geneva". (See paragraph 51 of the ISC report of 1 March 2005)
    xiii) In March 2002 there was a further isolated incident reported back from an SIS officer in Afghanistan. We were provided with no details of this as we have only seen the redacted version of the report of 1 March 2005.
    xiv) In April 2002, an SIS officer was present at an interview conducted by the United States military of a detainee in Afghanistan who complained of time in isolation and who had previously had a nervous breakdown. The redacted report of the ISC dated 1 March 2005 makes clear that the SIS officer asked the United States officer in charge of the interview "for better treatment", but he was unable to follow up the situation.
    xv) It is apparent from paragraph 54 of the ISC report dated 1 March 2005, that in June 2002 the SyS discussed with Foreign and Commonwealth Office officials a United States report that referred to the hooding, withholding of blankets and sleep deprivation of a detainee in Afghanistan. It appears that the matter was raised promptly with United States authorities.
    xvi) It also appears from paragraph 55 of the same ISC report that in July 2002 an SyS officer reported to senior management that, whilst in Afghanistan, a United States official had referred to "getting a detainee ready", which appeared to involve sleep deprivation, hooding and the use of stress positions. The officer reported they had commented to the United States official that this was inappropriate, but the SyS's senior management took no further action. The ISC were told that this was primarily because the report was based on secondhand information and the SyS had raised the general point the previous month. The detainee, when interviewed later that night, had provided a list of grievances, which included the use of constant bright lights. The SyS officer raised the complaints with the United States officer in charge of the facility at the time, but no further follow-up action was taken. The report also stated that neither the SyS nor the SIS had interviewed detainees in Afghanistan after July 2002 (see paragraph 56).
    xvii) It also appears from the report (paragraph 74) that United Kingdom military personnel in Afghanistan conducted no joint interrogations with either the SIS or SyS personnel, nor did they attend United States interviews as observers. The Ministry of Defence told the ISC that although conditions in Bagram were noted as austere, there were no records of adverse comments being formally reported by the United Kingdom military personnel in Afghanistan.
    xviii) It is clear from paragraph 57 of the ISC report of 1 March 2005 and paragraph 57 of the ISC report of 28 June 2007 that on 12 January 2002 the United States authorities moved the first group of detainees to Guantanamo Bay from Afghanistan in a publicly-reported operation. They were designated by the United States as unlawful combatants. On 16 January 2002 the SyS was granted access to certain of the detainees and, in March 2002, the Foreign Secretary, with the agreement of the then Home Secretary, approved an SIS/SyS joint submission recommending that intelligence personnel should interview detainees at Guantanamo Bay. Prior to that on 31 January 2002 at a meeting of Permanent Secretaries it was reported that there were anecdotal reports, sometimes second or third hand, of "undue exuberance" by American personnel at Guantanamo Bay. The United Kingdom Government indicated at the time of the first transfer its sense of unhappiness at the process and sought assurances that detainees transferred to Guantanamo Bay would be treated appropriately. (see paragraphs 57 and 58 of the ISC report of 1 March 2005)
    xix) It is apparent from paragraph 59 of the ISC report of 28 June 2007 that signs began to emerge in 2002 that the United States rendition programme was not limited to the conflict in Afghanistan. We have only been provided with the redacted version of that part of the report. We, therefore, do not know when this occurred or the name of the country to which the person concerned was transferred, but it is clear from the report that the person was not transferred into United Slates military custody or to his home country. The report makes clear that the SIS questioned the appropriateness of the transfer with the United States authorities, but regarded it as an isolated incident.

    (c) BM's arrest in Pakistan and the provision of information to the United Kingdom

  15. On 10 April 2002 BM was arrested at Karachi Airport by the Pakistani authorities when he was attempting to leave Pakistan to fly to London. This was his second attempt to leave Pakistan using the British passport of a British national.
  16. On 22 April 2002 the SyS and the SIS were notified by the United States authorities that an individual, subsequently identified as BM, had been detained in Pakistan using a fake British passport; that this was the second time he had sought to leave Pakistan using that same passport. The passport was in fact genuine, but BM's photograph had been substituted for the real holder, Fouad Zouaoui.
  17. On 26 April 2002, the SyS and the SIS were notified by the United States authorities that the person arrested, after initially claiming to have been born in Nigeria, claimed he was BM and that he was an Ethiopian citizen with refugee status in the United Kingdom: that he had been an engineering student and gave a United Kingdom address. The United States authorities asked the SyS to assist in his identification and verify the information. The SIS and SyS were told that BM was being interviewed by the United States authorities in Pakistan and reports of those interviews during April 2002 were passed to the SIS and SyS. It is clear from those reports (which, as is apparent from the telegrams, included information that BM was planning to construct and detonate a dirty bomb) that BM was a person whose activities would be of importance to the SyS in protecting the vital interests of the national security of the United Kingdom.
  18. Preliminary enquiries by the SyS resulted in information being provided to the United States authorities on 29 April 2002 that the person arrested had lived at the address he had claimed in London and that he was who he claimed to be.
  19. Given the information provided by the United States authorities, the SyS were concerned that he might fit the profiles of persons who, although they seemed innocuous whilst in the United Kingdom, might have graduated to serious terrorist activity in Afghanistan. In order to protect the vital interests of the national security of the United Kingdom and in accordance with their usual procedures in a telegram of 1 May 2002 they asked that BM be carefully questioned about his time in the United Kingdom (as appeared in the open evidence), before setting out the detailed questions to be asked in relation to BM's activities and activities in Afghanistan and Pakistan and his plans and intentions on his return to the United Kingdom. The telegram included the following passage:
  20. "We would also like to explore the possibility of Security Service officers conducting a debrief of *** regarding his time spent in the UK. As has been the case with other UK nationals/residents detained in Pakistan and Afghanistan, we believe that our knowledge of the UK scene may provide contextual background useful during any continuing interview process. This may enable individual officers to identify any inconsistencies during discussions. This will place the detainee under more direct pressure and would seem to be the most effective way of obtaining intelligence on BM's activities/plans concerning the UK. Grateful for your views"

    In a further telegram of 8 May 2002 further questions were sent to be asked of BM by the United States authorities; the telegram made clear that answers would assist the SyS greatly. An update on the plans of the United States authorities for BM was also sought.

  21. Reports of the interviews of BM by the United States authorities during May 2002 were passed to the SyS. The SyS provided BM's Home Office file to the United States authorities on 15 May 2002. Such exchanges are a normal and vital part of protecting the United Kingdom and its residents.
  22. (d) The interview of BM by the Security Service

  23. On 10 May 2002 the United States authorities indicated that the SyS would be permitted access to BM and arrangements were made for a SyS officer to travel to Pakistan to interview BM as part of a programme of interviewing others.
  24. On 17 May 2002 an officer of the SyS, who gave evidence before us as Witness B, travelled to Pakistan and interviewed BM at an interviewing facility in Karachi. Before going he reviewed information about BM. There was a dispute as to what information he saw in the course of that review.
  25. It is important to emphasise that the purpose of that interview was to obtain intelligence about serious threats to United Kingdom national security, including intelligence about BM's background and contacts in the United Kingdom, his activities and contacts in Afghanistan and Pakistan and about his plans and intentions on his return to the United Kingdom.
  26. The officer made notes during the interview which he put into a long report which he sent to his more senior officers by telegram on 17 May 2002. That report records BM telling Witness B about his time in the United Kingdom, how he obtained his United Kingdom passport from a criminal and the mosques he attended in London. He was recruited to travel to Afghanistan. He was trained in Afghanistan on weapons and explosives and thereafter, after the collapse of the Taliban, on remote devices, including landmines to be used against United States forces. Witness B did not cover BM's time in Pakistan because this had been covered in depth in previous interviews, but questioned him about his meeting with Abu Zubeida, a person alleged to be a close associate of Osama Bin Laden. The report records that BM had been asked to return to the United Kingdom to help in the provision of passports. BM said the report of a dirty bomb was "the FBI perception". The real story was that he bad seen a file on a computer in Lahore and decided it was a joke - part of the instructions included adding bleach to uranium 238 in a bucket and rotating it around one's head for 45 minutes. He thought another major attack would happen - this was his assessment, but he did not know although the FBI thought he did.
  27. Under the heading, closing remarks, the report then stated:
  28. "I told [BM] that he had an opportunity to help us and help himself. The US authorities will be deciding what to do with him and this would depend to a very large degree on his degree of cooperation. I said that if he could persuade me he was telling the complete truth I would seek to use my influence to help him. He asked how, and said he didn't expect ever to get out of the situation he was in. I said it must be obvious to him that he would get more lenient treatment if he cooperated. I said that I could not and would not negotiate up front, but if he persuaded me he was cooperating fully then (and only then) .1 would explore what could be done for him with my US colleagues. It was, however, clear that, while he appeared happy to answer any questions, he was holding back a great deal of information on who and what he knew in the UK and in Afghanistan. I said I wanted to come back and see him again, in the meantime, he should reflect on what I had told him and, if he wanted my help, he would need to be completely forthcoming. [BM] did not argue and appeared to accept what I said. We closed the interview on an amicable note."

  29. Witness B concluded that BM was lying and holding back. The report concluded:
  30. "[BM] is intelligent and patient. If he chooses not to cooperate he has the personal qualities and I believe strength of will to maintain his story indefinitely. He showed no signs of being anxious about his position, I suspect that he will only begin to provide information of genuine value if he comes to believe that it is genuinely in his interests to do so. I don't think he has yet reached this point."

  31. In his open evidence to us, Witness B stated that what he meant was that no members of the United States authorities would have taken any interest in what he, Witness B, had to say unless he could persuade them that BM was being fully cooperative; if BM was prepared to be completely forthcoming and honest, then he would do what he could to help him, but if he was not, he would be unable to. He denied the suggestion put to him by Ms Rose QC, counsel for BM, that he was threatening BM or putting any pressure on him.
  32. (e) The lawfulness of BM's detention in Pakistan

  33. During the period from 10 April 2002 until May 2004, it is common ground that BM was held incommunicado and was denied access to a lawyer. During the period in which it is known he was in Pakistan (and it is common ground that on all the evidence, both closed and open, it is only known he was in Pakistan until 17 May 2002), his detention was not reviewed by any court or tribunal in Pakistan.
  34. On the evidence of Pakistani law given by Mr Afzal H Mufti of Cornelius, Lane and Mufti, an experienced advocate of considerable standing before the Supreme Court of Pakistan, it is clear that the detention was unlawful under the laws of Pakistan. The suspension of the constitution of Pakistan by General Musharraf and the issuing of a Provisional Constitution Order in October 1999, did not affect the position under the law of Pakistan that fundamental rights remained in full force. It was therefore unlawful in Pakistan to hold BM incommunicado, without access to legal representation, and to hand him over to United States agents without due judicial process. That was the only evidence of Pakistani law before us and we accept it.
  35. It was the open evidence of Witness B that the question of interviewing detainees had been discussed at length by his management, with legal advisers and the Government; his task was to interview BM in accordance with what had been approved by his management. He accepted that he was aware in some circles that it was believed that the Pakistani authorities had demonstrated a poor human rights record.
  36. (f) BM's allegations as to his treatment when held in Pakistan

  37. In the evidence before us, there is an account given by BM of what he says he did and what happened to him after 17 May 2002. During his period of unlawful and incommunicado detention in Pakistan which he contends lasted from 10 April 2002 to 22 July 2002, he alleges:
  38. i) After an initial period of custody by the Pakistani police, he was taken to the interrogation centre of the Pakistan Security Services where he was interrogated, not by the Pakistani Security Services but by United States agents whom he believed to be the FBI. They believed he was a top Al-Qaida person and involved in the creation of a dirty bomb and would be sent to the United States to commit terrorist attacks. As we have set out above and as is set out at paragraph 47.i) below, these are amongst the matters with which he was charged on 28 May 2008.

    ii) He told the United States agents that he would not talk until he was given access to a Sawyer. He was told by the United States agents that the law had been changed and there were no lawyers. He was hung by a leather strap around his wrists so he could only just stand, he was allowed to go to the toilet only twice a day and was given food only once every second day. He was told by them that he must co-operate with them the hard or the easy way. If he did not do so he would be taken to Jordan. "We can't do what we want here, the Pakistanis can't do exactly what we want them to do. The Arabs will deal with you."

    iii) In consequence of this threat he made admissions as to his identity and his address. That was checked out with the United Kingdom authorities and he was told it was true. He then admitted that he had been to Afghanistan.
    iv) He was then beaten by the Pakistani authorities and threatened with a gun.
    v) When the British agent visited him, the torture stopped. The agent introduced himself as "John". BM provided a description of him. He was interviewed in the presence of a United States agent who had previously been part of the team that interrogated him:

    "They gave me a cup of tea with a lot of sugar in it. I initially only took one. 'No, you need a lot more. Where you are going you need a lot of sugar' I didn't know exactly what he meant by this, but I figured he meant some poor country in Arabia. One of them did tell me I was going to get tortured by the Arabs."

    BM asked for a lawyer. The British agent also asked what he could do to help. BM said he did not know. The agent told BM he would see what he could do with the Americans, promising to tell BM what would happen to him, but he did not see him again.
    vi) He thereafter refused to talk until he was given an access to a lawyer.

  39. Witness B had observed in his report that BM looked thinner than in his photograph and that had given him sufficient concern to be noticed. In his open evidence to us, Witness B made clear that he considered that BM was in a fit state to be interviewed and that BM made no complaints about his treatment, though he gave him the opportunity of doing so. Witness B strongly denied that there was any conversation to the effect we have set out in paragraph 26v); as obviously we had no oral evidence from BM, it would not be appropriate for us to express any view on this allegation made by BM.
  40. (g) Information available to the SIS and SyS derived from other matters

  41. It is necessary before referring to requests made to interview BM again to set out what was known to the SIS and SyS as appears from the reports of the ISC
  42. i) The ISC also reported at paragraphs 77 and 78 of the Report of 28 June 2007 in relation to "ghost prisoners". The ISC asked whether the United Kingdom Agencies had knowledge of the individuals whom the United States authorities were holding at undisclosed locations under unknown conditions and to whom the International Committee of the Red Cross did not have access. The answer of the SyS was in the following terms, as recorded at paragraph 78:
    "Clearly the US is holding some Al Qaida members in detention, other than at Guantanamo, but we do not know the locations or terms of their detention and do not have access to them. The US authorities are under no obligation to disclose to us details of all their detainees and there would be no reason for them to do so unless there is a clear link to the UK. We have however received intelligence of the highest value from detainees, to whom we have not had access and whose location is unknown to us, some of which has led to the frustration of terrorist attacks in the UK or against UK interests."
    ii) The ISC report of 28 June 2007 refers at paragraph 62 to the SIS being informed that an unnamed individual had been captured with the assistance of a third country. The S]S was not involved in the rendition and was informed of the transfer after it had occurred. After referring to the case of BM, paragraph 64 of the report refers to another case in mid-2002 which appeared inconsistent with what the SIS and SyS believed to be United States policy on Al Qaida detainees, including that laid out in the Presidential Military Order of November 2001.
    iii) The ISC report then states at paragraph 65 that a step change, crucial to the Agencies' growing knowledge of United States actions came in November 2002 when the authorities conducted the rendition to detention of Bisher Al-Rawi and Jamil el-Banna from The Gambia to Afghanistan and subsequently to Guantanamo Bay. The ISC concluded that this case showed that the United States rendition programme had now extended its boundaries beyond individuals connected to the conflict in Afghanistan. At paragraph 67 the report refers to the fact that the SIS and SyS became aware of another case involving the transfer of an individual to a third country. The SyS and the SIS were made aware because the individual was thought to be planning attacks in the United Kingdom. The SyS was allowed to put questions to the detainee, but the ISC concluded that it was not clear whether any assurances to prevent torture or cruel, inhuman or degrading treatment were sought. The ISC then reported at paragraph 68 that they had been told that from 2003 onwards, the SIS were involved in a number of joint operational discussions which developed to the point where they began to become concerned about the legality of their assisting what foreign liaison services, including the United States, were proposing. The ISC reported at paragraph 71 that the Agencies first suspected the possible existence of these secret CIA detention facilities in March 2003, with the arrest of Khalid Sheikh Mohammed. As appears from paragraph 71 of the report, the Chief of the SIS told the ISC that they realised at that point in time that intelligence was coming from a detention facility which was outside and away from Guantanamo. The ISC reported that despite the suspicions about the existence of "black facilities", the Agencies did not fully appreciate at the time that this might mean an increased risk of torture or cruel, inhuman or degrading treatment. As the ISC reported at paragraph 74, the United States authorities would not divulge details of the secret facilities to the SIS or SyS when asked and, as a result, greater use was made of assurances from the United States. As the Chief of the SIS told the ISC:
    "As time went on ... we began to get more aware of black facilities and ... so we became more aware of the conditions [in which detainees might be held or interrogated]. At that point we began to consider [that] we need assurances that when we go back to the Americans with a follow-up question to [unsolicited intelligence] that they may have given us. that ... [torture or CIDT] are not going to be used to seek and get answers to our questions." (quotation from the report)

    (h) The requests by the SyS to the United Stales authorities to interview BM again: May to September 2002

  43. After the interview on 17 May 2002, the SyS determined mat, as a result of what BM had said in the interviews as well as in the reports of interviews conducted by the United States authorities, BM might have further relevant information to provide and that it was necessary in the interests of the national security of the United Kingdom to seek his responses to further questions, ideally through a further interview conducted by the SyS:
  44. i) Witness A of the SyS stated in his open witness statement that the United States authorities suggested that BM might be transferred to Afghanistan at that time; that in the circumstances prevalent at the time, the transfer of detainees by the United States authorities to detention facilities in Afghanistan was not unusual or regarded as unlawful or improper. In a further statement witness A said that it was widely known that there were other transfers of detainees from Pakistan to Afghanistan at the time. He was not aware that the United Kingdom Government objected and did not know if anyone had given specific consideration to its lawfulness at the time. The issue of the United Kingdom's position on rendition by the United States was considered by the ISC in its report of 28 June 2007 on the practice of rendition to which we have referred at paragraph 28.
    ii) On 11 June 2002 the SyS sought information as to his whereabouts in Pakistan or Afghanistan and asked to interview BM. The United States authorities noted that efforts were underway to have him moved to Afghanistan and suggested that a further interview be deferred until after the transfer had taken place. Logistically this was more convenient to the SyS and, as the SyS informed the United States authorities, it made more sense to wait until his transfer. The United States authorities indicated that they would keep the SyS informed about his transfer.
    iii) In the event this did not happen. On 7 July 2002 the SyS recorded in a telegram that, frustratingly, they had no information of the whereabouts of BM who was described as one of their highest priorities. Urgent clarification of his whereabouts was sought and whether they were likely to see him at Bagram in the near future.
    iv) On 15 July 2002 the United States authorities told the SyS in a briefing on an unrelated matter that BM was to be moved to Afghanistan, when a further interview could be facilitated. The SyS sought information on 31 July 2002 as to whether BM was in Pakistan or Afghanistan and for an indication as to when the interview could take place. No response was received. Witness A stated that, although this would not have been regarded as particularly unusual or suspicious, no further information was received as to whether the transfer had taken place.
    v) On 12 August 2002 the SyS sought information from the SIS. They asked if on their routine visits to Bagram the SIS could check whether three individuals, including BM were at Bagram; the telegram stated "*** appear to have no information on his current whereabouts exclam". On 28 August 2002 the SIS told the SyS that there was no record of BM having arrived there.
    vi) On 22 August 2002 the SyS again sought access to BM; no response was received. On 28 August 2002 the SIS informed the SyS that BM had not arrived at Bagram.
    vii) In late September 2002 the SyS received a report from the United States authorities of an interview with BM.
    viii) On 30 September 2002 the SyS discussed the case of BM with the United States authorities at a meeting at Thames House, the headquarters of the SyS. The SyS asked for direct access to BM. but were told that SyS access could not be facilitated at that time.

    (i) The provision by the SyS of further information and questions to the United States authorities

  45. Faced with this prolonged refusal to allow access, witness A stated that it was regarded as essential in the interests of the national security of the United Kingdom to send further questions to the United States authorities to be put to BM. The SyS had other information which suggested current plans for an attack on the United Kingdom and it was thought that BM might have relevant information
  46. i) On 25 October 2002, the SyS sent a telegram referring to the meeting at Thames House. It included the following passage:
    "We would like to stress that we regard [BM] as a key focus point for our investigations into the activities of UK passport holders in Afghanistan and elsewhere. ... We feel in the light of [BM]'s recent cooperation further debriefs by these same officers **** may have a positive effect on our intelligence gathering operation into this subject area. However we are grateful for the opportunity to provide material to be used in the current debriefing at this stage.'"'
    The telegram then set out further information about BM and the questions to be asked of BM including information relating to Fouad Zouaoui and general questions. The telegram indicated the SyS would provide further information if it discovered further intelligence and asked for updates regarding direct access to BM for the SyS.
    ii) Further questions were raised on 5 November 2002 and a photobook sent. Witness A stated that no reply was ever received by the SyS to these two telegrams despite a chaser on 8 November 2002 which made clear that although the SyS appreciated that this might be "a long winded process", the urgent nature of the enquiries was obvious.
    iii) In February 2003, the SyS received reports from the United States authorities of an interview with BM, though they did not relate directly to the questions put by the SyS. We were told by witness A that these were the last interview reports received.

    (j) The total absence of information as to BM's whereabouts between May 2002 and May 2004

  47. On the totality of the open and closed evidence before the court, it is clear that the United States authorities have never informed either the SyS or any other part of the United Kingdom Government about BM's whereabouts in the period between 17 May 2002 and his transfer to Bagram in May 2004.
  48. That remains the position to this day. It was. however, accepted in evidence Filed on behalf of the Foreign Secretary that although the SyS was not aware of his location when they received the information to which we have referred in sub-paragraphs 29.vii) to 30 it was "apparent that he was in the custody of a third country and not yet in United States custody."
  49. The evidence before us made clear that the United States Government has also, so far, refused to provide BM's lawyers with any information as to where he was or indeed what they contend happened to him in the period of 2 years between May 2002 and May 2004.
  50. We refer to the procedures for disclosure under the Military Commissions Act of 2006 at paragraph 117.
  51. (k) BM's allegations as to his rendition to Morocco and his torture there

  52. In the account of the evidence of BM before us, BM alleges that he was taken to Morocco in July 2002 and was held incommunicado and tortured there until January 2004;
  53. i) He was taken from Karachi to Islamabad and then subjected to extraordinary rendition by United States personnel to Morocco on 22 July 2002. He was handed over to other people in Morocco. His lawyers have obtained evidence which suggests that a Gulfstream V aircraft operated on behalf of the CIA left Islamabad and landed at Rabat on that day.
    ii) After arrival in Morocco he was handed over to other persons and held in various facilities. He was told that the United States wanted a story from him and he was to testify against others in relation to matters such as the dirty bomb. He was then tortured by some persons who were masked. A detailed account of that alleged torture has been given to us in a note provided by his lawyers; it is only necessary to mention, for reasons that are made clear at paragraph 103.ii) below, that he contends that apart from being severely beaten and subjected to sleep deprivation, his penis and private parts were cut with a scalpel. One of those who interrogated him stated she was a Canadian; it is alleged by BM's lawyers that she was an agent of the CIA.
    iii) During the course of his interrogation he was questioned about his links with the United Kingdom, told of personal information about himself (such as details of his education, the name of his kick boxing trainer and friendships in London). He was told that they had been working with the British and had seen photographs of people given to them by MI5.

    (I) BM's allegations of rendition from Morocco to Afghanistan

  54. BM then alleges that on 21 or 22 January 2004, he was transferred back into the custody of the United States at an airport in Morocco. He alleges that he was then subject to extraordinary rendition to what he describes as "The Prison of Darkness" near Kabul in January 2004 where he remained until May 2004. He alleges that before the flight photographs were taken of his penis. BM's lawyers have provided materials that they contend suggest that there was a flight on 22 January 2004 by a Gulfstream V aircraft operated by the CIA from Rabat to Kabul.
  55. He alleges that he was held in a black hole at the "Prison of Darkness" where he was deprived of sleep, blasted with sound, starved and then beaten and hung up. During this period he alleges that he was interrogated by the CIA and threatened with further torture if he did not provide the story that the United States wanted.
  56. (m) The statements made by him at Bagram and Guantanamo Bay between May and November 2004 and the use made of them by the United Slates

  57. BM contends that he was transferred to Bagram in May 2004. There he was subjected to further mistreatment. In the result he signed statements put before him by the United States authorities at Bagram between May and September 2004. These were made as a result of that unlawful detention, torture and cruel inhuman or degrading treatment. He had confessed during the torture and cruel, inhuman or degrading treatment to anything those inflicting that treatment on him wanted him to say. This was also his state when he signed statements at Bagram.
  58. On 20 September 2004 BM was transferred to Guantanamo Bay and for the same reasons made further confessions prior to November 2004.
  59. On the basis of the statements made at Bagram and Guantanamo Bay, BM was originally charged in November 2005 before the Military Commissions established by the United States Government. The procedure for those Commissions was struck down by the United States Supreme Court in June 2006 in Hamdan v Rumsfeld (2006) 548 US 557. A new Military Commissions Act of 2006 was passed. This is now Chapter 47A of Title 10 of the United States Code. The general purpose of such Military Commissions is set out in paragraph 948b:
  60. "This chapter establishes procedures governing the use of military commissions to try alien unlawful combatants engaged in hostilities against the United States for violations of the law of war and other offenses triable by military commission.'"

  61. Steps were then put in hand under the new Military Commissions Act to re-charge BM.
  62. (2) The attempts made by the United Kingdom Government to assist BM

  63. The ISC's report of 28 June 2007 covered the allegations made by BM where he is referred to as Binyam Mohamed Al Habashi (Al Habashi means "the Ethiopian") (see paragraphs 63 and 98-105). Part of the published report has been redacted for reasons of national security. As is clear from the letter to which we refer at paragraph 47.ii) below, the documentation and information the subject of these proceedings had not been found at that time and so was not made available to the ISC.
  64. In August 2007 the United Kingdom Government requested the United States Government to return BM and others to the United Kingdom; the others were returned but BM was not. Efforts on behalf of the United Kingdom Government to have BM returned continue.
  65. It is clear on the evidence we have seen that every effort has been made by the United Kingdom Government to try and secure BM's return and to provide him with assistance, save for disclosing to his lawyers the documents and information the subject of these proceedings. The refusal to disclose is based on concerns of damage to national security that such disclosure might well entail.
  66. (3) The commencement of these proceedings

  67. When it became apparent that the United States Government was going to re-charge BM under the Military Commissions Act of 2006, lawyers acting on behalf of BM, and in particular Mr Clive Stafford Smith and Leigh Day started seeking the information and disclosure of documentation from the United Kingdom Government to which we have referred. When the United Kingdom Government declined to provide to BM's lawyers the information the subject of these proceedings, BM's lawyers commenced these proceedings on his behalf on 6 May 2008, seeking
  68. i) The quashing of the decision refusing to provide information on the basis that it was irrational.
    ii) The provision of information and documents under the principles set out in Norwich Pharmacal v Customs and Excise Commissioners [1974] AC 133.
    iii) The provision of the same materials under a duty said to exist under customary international law.
  69. The Foreign Secretary denies that he is under any obligation either under Norwich Pharmacal principles or under international law to provide the information and documents sought. He contends that the decision made not to provide voluntary disclosure was one made in the interests of the national security of the United Kingdom on the basis that to disclose such information would cause grave damage to the United Kingdom's national security.
  70. (4) The events after the commencement of these proceedings in May 2008

  71. After the proceedings had been commenced, five events of considerable significance occurred:
  72. i) On 28 May 2008 BM was charged, under the Military Commissions Act of 2006, as an alien unlawful enemy combatant with offences that may carry the death penalty. It is not yet clear whether the death penalty will be sought by United States military prosecutors. BM is charged with conspiracy with members of Al-Qaida, including Osama Bin Laden, to murder and to attack civilians and providing support to terrorism. The overt acts relied on include allegations that:
    (1) He had trained with and fought for Al-Qaida and the Taliban in Afghanistan against the Northern Alliance.
    (2) He was then selected for specialised terrorist missions because of his facility in English and his refugee status in the United Kingdom.
    (3) He was then trained in remote controlled detonation devices both in Afghanistan and Pakistan.
    (4) In Lahore, he and Jose Padilla reviewed technical information on the construction of an improvised radioactive bomb (a dirty bomb).
    (5) BM and Padilla plotted attacks against the United States. BM agreed to travel to the United States and carry out a terrorist act. He discussed with Padilla blowing up gas tankers, spraying people with cyanide in night clubs and the targeting of buildings with natural gas and gas stations. BM with others were to rent several apartments in large apartment buildings in the United States, fill the apartments with natural gas and then detonate the natural gas using delayed timing devices. It was alleged that Khalid Sheikh Mohamed had instructed BM and Padilla to buttress support pillars of the apartments with aluminium or steel panels to cause the pillars to absorb the force of the blast, thereby collapsing buildings entirely. BM agreed to do this.
    (6) He tried to leave Karachi with Padilla on 4 April 2002 but was detained for apparent passport irregularities. He then obtained a different forged passport while Padilla continued on to the United States.
    The same or similar acts are relied on for the second charge of providing material support for terrorism
    ii) On 6 June 2008 Daniel Bethlehem QC, the Legal Adviser to the Foreign and Commonwealth Office, wrote to Mr Give Stafford Smith, at the request of the Foreign Secretary. The letter made clear that the United Kingdom Government were continuing to request BM's return and had written to the United States authorities asking them to investigate BM's allegation of mistreatment. The letter made clear that the Foreign Secretary had concerns about a number of aspects of the Military Commissions Act. The letter continued:
    "The Government has previously said to you and to the [ISC] that it had no information to confirm [BM]'s account of his detention following his arrest in Pakistan or his allegations of mistreatment while in detention. In the light of your correspondence and the related judicial review proceedings, all the various branches of the Government have recently undertaken a further review of the material held on their files. In the course of this review, some limited additional material was discovered. While this material may not have a bearing on the charges preferred against [BM], and may not be definitive, it is possible that it could be considered to be exculpatory or might otherwise be relevant under 948r, 949j.(d) or other sections of the MCA and the accompanying provisions of the Manual for Military Commissions (MMC).
    Given its nature, we are not in a position to provide you with this information. However, given the terms of the MCA and the MMC, insofar as the information may be relevant and exculpatory, and [BM] is committed for trial, trial counsel would be required to disclose the information to the defence as soon as practicable. We have raised this issue with U.S. officials and we will engage further with them on this point."
    This letter is of very considerable significance:
    (1) It is in effect an acceptance by the Foreign Secretary that he has in his possession material that is potentially exculpatory or otherwise relevant to the proceedings before the United States Military Commissions,
    (2) The provisions to which Mr Bethlehem QC refers are provisions of the Act which exclude evidence obtained by torture and which relate to the provision of exculpatory evidence. They are set out at paragraph 11 7 below. Although the letter states that United States military prosecutors (referred to in the letter as ''trial counsel") would be required to disclose the material as soon as practicable, as is set out in sub-paragraph 47.v) below, the Foreign Secretary no longer contends that the United States military prosecutors will disclose the material.
    (3) A copy of the letter was provided to United States officials. Following the letter, Mr Bethlehem QC visited the United States on 16 June 2008 and met senior officials of the Department of Defense and the State Department to reiterate the request of the United Kingdom Government for the return of BM. Mr Bethlehem QC gave to the Acting General Counsel to the Department of Defense and to the Legal Adviser to the Slate Department a classified letter which drew detailed attention to the additional material which had been identified as relevant to BM's detention in Pakistan. As was made clear to us, the purpose of that letter was to "draw formally to the attention of the relevant United States authorities the documents in question to enable them to address issues of relevance, exculpation and disclosure".
    (4) The letter was sent, as Sullivan J pointed out at the hearing on 20 June 2008, after summary grounds of resistance had been filed on behalf of the Foreign Secretary which made no allusion to these matters.
    iii) On 20 June 2008, the Treasury Solicitor wrote to BM's solicitors setting out the Foreign Secretary's formal decision not to make voluntary disclosure; we refer to the details of that letter at paragraphs 151 and following below.
    iv) On 22 July 2008 a letter was written on behalf of the Foreign Secretary to Mr Stafford Smith stating that the United States had informed the Foreign Secretary that, ''based on a review of records and consultations" the allegations made by counsel to [BM] that are reflected in his letter were "not credible".
    v) On 25 July 2008 the Treasury Solicitor on behalf of the Foreign Secretary wrote to BM's lawyers to state that the Foreign Secretary would no longer rely upon the fact that the prosecuting authority would necessarily disclose of its own motion the material requested by BM's lawyers when BM was tried before the Military Commissions. The contention was maintained before us, however, that the material would be disclosed in the trial before the Military Commissions as we set out at paragraphs 109 and following.

    (5) The urgency of the matter

  73. In the application to the court Mr Stafford Smith stated in his witness statement made on 1 May 2008 that the application was urgent because it was envisaged that BM would be subject to trial before a Military Commission in the near future.
  74. On 20 June 2008, no doubt in the light of the charges brought against BM on 28 May 2008, Sullivan J ordered that the matter be heard in the week of 28 July 2008. It was contended by BM that under the procedures set out in the United States Military Commissions Act, a decision would be made in the immediate future by the Convening Authority of the Military Commissions, The Honourable Ms Susan Crawford (an official of the Department of Defense appointed by the United States Defense Secretary) as to whether to refer the charges formally brought against BM to a Military Commission. The court was told that it was hoped that the Convening Authority would defer a decision until this court heard the matter, but it would not do so for long. It will be necessary to refer to the procedure before the Convening Authority in greater detail, as we do at paragraphs 109 and following.
  75. (6) The course of the proceedings

  76. Mr Clive Stafford Smith made a number of witness statements in which he set out the account given by BM and information in relation to the processes and procedures before the United States Military Commission. Those statements formed the principal evidence relied on by BM. In response Mr Manley, the Director, Defence and Strategic Threats at the Foreign and Commonwealth Office, made a witness statement setting out the steps taken by the United Kingdom Government to assist BM (to which we have referred) and providing further reasons as to why BM was not entitled to the various remedies sought.
  77. There were also served on behalf of the Foreign Secretary open witness statements from two Security Service witnesses, referred to as Witness A and Witness B. Attached to those witness statements were redacted versions of communications to United States Government agencies and internal reports and memoranda. These statements were relied upon primarily for the purpose of defending the application made under Norwich Pharmacal; it was clear that the statements and documentation had been provided only for the purpose of the proceedings and the documentation could not be used elsewhere.
  78. Closed witness statements were also provided by Witness A and Witness B, together with certain other closed material. The Home Secretary provided a certificate on 11 July 2008 claiming public interest immunity for the documents and the identities of Witness A and Witness B. The reasons for the claim were that there would be serious damage to the national security if the documents were disclosed to BM or his lawyers or in open court. In the light of the provision of this closed material, Special Advocates, Mr Thomas de la Mare and Mr Martin Goudie, were appointed on behalf of BM.
  79. It was submitted by counsel on behalf of BM and by the Special Advocates that the statement of Witness B was neither bona fide nor in some respects credible and on this basis an application was made to cross-examine him. For reasons we set out at paragraph 76.i) below, we granted permission to cross-examine Witness B. That cross-examination was conducted in private by counsel for BM and under stringent conditions to prevent BM or those acting for him before the Military Commission obtaining information through cross-examination which BM's lawyers could not obtain unless his application succeeded; for similar reasons we made an order prohibiting during the continuation of the trial the publication of documents read out in court. In closed session the cross-examination was by the Special Advocate. We did not permit cross-examination of Witness A, but ordered a further statement be made, again for reasons we set out at paragraph 76.ii) below.
  80. (7) The position of the Convening Authority

  81. As we have stated at paragraph 48, the urgency of the hearing was necessitated by the contention that the Convening Authority would make a decision imminently. We were provided with correspondence in which BM's lawyers had asked the Convening Authority to provide a timetable to them so that they could try and ensure that this court would determine the proceedings within that timescale. They considered that the documentation and information which they sought to obtain in these proceedings would support the other material which, they maintained, showed that BM had been tortured. The response of the Deputy Legal Adviser to the Convening Authority in a letter dated 9 June 2008 was that Ms Crawford believed that the issues raised "were best resolved through the formal military commissions process". However, on 9 July 2002 Ms Crawford wrote to Lt Col Yvonne Bradley, defence counsel appointed by the Chief Military Defense Counsel in December 2005 to defend BM, stating that she would conduct a full review of the matters raised. Nonetheless the Convening Authority demanded that BM's submissions be filed immediately.
  82. In the circumstances, the Foreign Secretary allowed BM's lawyers to use for the purpose of the submission to the Convening Authority the redacted documents disclosed solely for the purpose of the present action and to which we have referred at paragraph 51. This was yet a further example of the very real efforts made by the Foreign Secretary to assist BM.
  83. A very long submission was sent to the Convening Authority on 28 July 2008, the first day of the hearing of this matter. We were provided with copies of this on the last day of the hearing.
  84. As it became clear to us when the hearing of the claim began that there would be considerable difficulties in completing the matter in the two days allotted for the case and as we would need some time to consider the extensive and difficult issues which arose, we wrote to the Foreign Secretary on 29 July 2008, the second day of the hearing. We asked him to consider drawing to the attention of the Convening Authority this case and the fact that normally in this jurisdiction; the Executive Branch of Government would not make a decision in advance of the court giving its judgment. Our request was addressed to the Foreign Secretary as the Convening Authority is not part of the judicial branch of the United States Government, but part of the Executive Branch. It was therefore for the Foreign Secretary to consider whether he should lay the matter before her. On the following day, Mr Bethlehem QC, the Legal Adviser, wrote to the Acting General Counsel of the Department of Defense (with a copy to the Legal Adviser to the State Department) enclosing our letter and asking him to draw it to the attention of the Convening Authority if appropriate.
  85. It is a matter of considerable regret that no response was received, despite our reiterating our request in the course of the hearing.
  86. In the circumstances, as BM's lawyers were pressing us for a decision before the Convening Authority made its decision, we were put in the position of having to complete the hearing over five long days (by sitting the equivalent of almost seven court days) and to give our decision as quickly as possible. In the light of the position taken by the Convening Authority, delay might have defeated BM's primary claim to be able to use the documentation and information in its submissions to the Convening Authority. We made this judgment in draft together with the closed judgment available to the Foreign Secretary and the Special Advocates on Wednesday 13 August 2008, so that, in accordance with the Order of Sullivan J of 20 June 2008, (1) the Foreign Secretary could consider, after advice from the SIS and SyS (if necessary), whether there were any matters in the open judgment which he considered would be contrary to the public interest to disclose and (2) the Special Advocates could consider whether there were matters in the closed judgment the disclosure of which would not be contrary to the public interest. We required any submissions on these issues by 1 pm on Monday 18 August 2008. We received a submission from the Foreign Secretary in the late afternoon of Friday 15 April 2008 and a response from the Special Advocates on Monday 18 April 2008. We held a further closed hearing on 18 August 2008 to resolve the issues and made this open judgment available in draft and in confidence to the parties that day.
  87. We turn therefore to the three claims.
  88. III. THE CLAIM TO THE DOCUMENTS UNDER THE PRINCIPLES IN NORWICH PHARMACAL

  89. It is convenient to begin with the claim under the principles established by Norwich Pharmacal as this was the principal basis upon which BM contended that the documentation and information should be made available to his lawyers in confidence. Mr Stafford Smith has security clearance from the United States Government to Secret documents and Lt. Col Bradley to Top Secret documents.
  90. Although the claim under Norwich Pharmacal was included within the Judicial Review claim form, the claim was in essence the trial of an ordinary civil claim which would usually be brought as a claim in the form specified in either Part 7 or Part 8 of the Civil Procedure Rules: see Civil Procedure 2008 at paragraph 31.18.11.
  91. The principle in Norwich Pharmacal is best described is in the speech of Lord Reid (at page 175):
  92. "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 identity of the wrongdoers. I do not think that it matters whether he became so mixed up by voluntary action on his part or because it was his duly to do what he did. It may be that if this causes him expense the person seeking the information ought to reimburse him. But justice requires that he should co-operate in righting the wrong if he unwittingly facilitated its perpetration."

  93. BM's claim to be entitled to such relief was one that sought to apply this principle to novel circumstances. It gave rise to five issues:
  94. i) Was there wrongdoing?
    ii) Was the United Kingdom Government, however innocently, involved in the arguable wrongdoing?
    iii) Was the information necessary?
    iv) Was the information sought within the scope of the available relief?
    v) Should the court exercise its discretion in favour of granting relief?

    (1) Was there wrongdoing?

  95. The wrongdoing alleged by BM was, as is evident from the description of the facts and allegations set out, (i) being held by the United States incommunicado and without access to a lawyer or a court or tribunal in Pakistan and his similar detention by the United States elsewhere until his arrival in Guantanamo Bay; (ii) cruel, inhuman or degrading treatment by or on behalf of the United States during such detention and (iii) torture during such detention by or on behalf of the United States.
  96. As we have set out at paragraphs 23-24, it was common ground that BM was detained unlawfully and incommunicado in Pakistan, he was denied access to a lawyer and his detention was not reviewed by a court or tribunal.
  97. It was accepted on behalf of the Foreign Secretary that BM had established an arguable case that:
  98. i) After being subject to torture and cruel, inhuman or degrading treatment in Pakistan, he was unlawfully rendered from Pakistan to Morocco by the United States authorities,
    ii) Whilst in Morocco he was subject to unlawful incommunicado detention and torture during his interrogation there by or on behalf of the United States authorities.
    iii) He was unlawfully rendered by the United States authorities from Morocco to Afghanistan on 21 or 22 January 2004
    iv) He was detained unlawfully and incommunicado at the "Dark Prison" near Kabul and thereafter at the United States Air Force base at Bagram.
    v) He was tortured or subject to cruel, inhuman or degrading treatment by or on behalf of the United States authorities in the "Dark Prison".

  99. In the light of the concession that there was an arguable case of wrongdoing and in the light of the further concession that it was sufficient for the purposes of obtaining Norwich Pharmacal relief if an arguable case of wrongdoing was advanced, it was not necessary for us to determine whether there was in fact any wrongdoing by or on behalf of the United States Government. It is important to emphasise that we therefore do not do so.
  100. (2) Was the United Kingdom Government involved, however innocently, in the arguable wrongdoing?

    (a) The relevant legal principles

  101. There was initially a dispute as to the applicable legal principles in relation to what had to be shown to establish that the Foreign Secretary was through the SyS or the SIS mixed up in the wrongdoing of others. On behalf of the Foreign Secretary it was contended that BM had to establish that those for whom the Foreign Secretary was responsible had facilitated the wrongdoing, so that, however innocently, the actions had been causative of the occurrence of the wrongdoing. On behalf of BM it was contended that this put the test too high; it was sufficient that a person had become involved in the wrongdoing by facilitating its occurrence or taking part, however innocently, in the wrongdoing.
  102. In the closing submissions made on behalf of the Foreign Secretary, it was accepted that it was not necessary for BM to establish that the actions of the Foreign Secretary were causative of the wrongdoing. We consider that that acceptance was plainly correct for the reasons we shall set out. It is sufficient that the SyS or SIS became involved in the wrongdoing (even if innocently) by facilitating that wrongdoing. Our reasons are as follows:
  103. a. In Norwich Pharmacal itself the distinction that was drawn was between the mere bystander or witness to wrongdoing whom all the Law Lords were clear could not be placed under an obligation to provide information and those who were involved or who participated in wrongdoing in such a way as to place them under an obligation. We have already referred to the test of Lord Reid being mixed up so as to facilitate (p.175 B-C); Lord Morris of Borth-y-Gest referred to someone becoming ''actually involved (or actively concerned) in some transactions or arrangements as a result of which he has acquired the information" (p. 178 H); Viscount Dilhorne spoke of a person being involved in the transaction or involvement or participation in the wrongdoing (p. 188 A-C); Lord Cross spoke of unwitting facilitation arising through a relationship of the person against whom relief was sought and the person alleged to have committed (he wrong (p. 197 B-G); Lord Kilbrandon (p.203D-204D) spoke of the right to relief of the person seeking disclosure depending on the relationship of the wrongdoer to those against whom relief was sought. None of the speeches speak of causation; it is clear that facilitation is not the same as causation.
    b. In Ashworlh Hospital v MGN [2002] UKHL 29 ([2002] 1 WLR 2033) at paragraph 30 Lord Woolf referred to the speeches in Norwich Pharmacal in these terms:
    'They 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 identity it is hoped to establish."

    At paragraph 35, he added:

    "Although this requirement of involvement or participation on the part of the party from whom discovery is sought is not a stringent requirement, it is still a significant requirement. It distinguishes that party from a mere onlooker or witness. The need for involvement, the reference to participation can be dispensed with because it adds nothing to the requirement of involvement, is a significant requirement because it ensures that the mere onlooker cannot be subjected to the requirement to give disclosure. Such a requirement is an intrusion upon a third party to the wrongdoing and the need for involvement provides justification for this intrusion."

    Lord Slynn of Hadley whose speech was the only other speech to refer to this element spoke only of ''participation" and "involvement" in the wrongdoing. Again there is nothing that requires the involvement be causative of the wrongdoing.
    c. We were referred to other decisions and observations including Axa Equity & Life Assurance (1998) CLC 1177 (where Morritt LJ spoke of involvement in terms of "causing or facilitating"), the observations of Sedley LJ in InterBrew SA v Financial Times and Ors [2002] EWCA Civ 274 ([2002] 2 Lloyd Rep 229) (where he spoke of facilitation), and Campaign Against Arms Trade v BAE Systems plc [2007] EWHC 330. In the last case King J said at paragraph 12:
    "The third party has to have some connection with the circumstances of the wrong which enables the purpose of the wrongdoing to be furthered."
    d. We are not sure that it was necessary to go so far as King J went in that case. That is because as Sir Anthony Clarke, MR said in Koo Golden East Mongolia v Bank of Nova Scotia and Ors [2007] EWCA Civ 1443 at paragraph 37 it is necessary to consider all the circumstances in the light of the fact that Norwich Pharmacal relief is a flexible remedy.

  104. It seems to us, therefore, that we ought to approach this issue not by asking the question,. "Did the actions by or on behalf of the United Kingdom Government cause the alleged wrongdoing" (as they plainly did not do so) but by asking the question, "Did the United Kingdom Government through the SyS or SIS and its agents become involved in or participate in the alleged wrongdoing through facilitating it?" The issue can be further analysed by examining the relationship of the SyS and the SIS in connection with BM to the United States authorities who are alleged to be the wrongdoers.
  105. As all the decisions make clear it is not necessary for BM to establish anything more than innocent participation and certainly not knowledge of the alleged wrongdoing. However if a degree of knowledge were to be established, then the involvement or participation is the clearer.
  106. It was also submitted on behalf of BM that if the Foreign Secretary through his agents ought to have known of the alleged wrongdoing (or shut their eyes to it or actually knew) then by failing to act to prevent it he had also become mixed up or involved in the alleged wrongdoing. We shall consider this submission after we have set out the facts.
  107. (b) The application of the principles in relation to the involvement in the alleged wrongdoing and our findings of fact

    (i) The case made by BM

  108. BM's case was in summary that the Foreign Secretary had, through the SyS and SIS become involved in the alleged wrongdoing in the following ways:
  109. i) The supply of information about BM after his arrest in Karachi on 10 April 2002.
    ii) The interview by Witness B when BM was held incommunicado and unlawfully at Karachi, his observation of BM on his arrival and his threat to BM during interview that the United Kingdom would not help him unless he co-operated with the United States authorities.
    iii) The failure to object to the intended transfer of BM to Afghanistan and the failure to obtain assurances as to BM's treatment by or on behalf of the United States authorities.
    iv) Supplying further information and receiving results of the interrogation with a continued failure to seek assurances of proper treatment in the knowledge from the end of July 2002 that BM had not been transferred to Afghanistan but remained held in custody by or on behalf of the United States and that United Kingdom representatives had been refused access to him despite their requests,
    v) There was an arguable case that the information supplied by the United Kingdom had been used in the interrogation of BM.
    vi) Failing to make objections and protests to the United States Government about the incommunicado detention and treatment of BM during such detention

  110. In addition to that case made in the open hearing, a further case was made by the Special Advocates on the closed documents in the closed hearing.
  111. (ii) The cross-examination of Witness B: the invocation of the right against self incrimination

  112. As we have set out at paragraph 53 above, we permitted cross-examination of Witness B, but not witness A. Our reasons were:
  113. i) Both counsel for BM and the Special Advocates told us that they challenged the bona fides and candour of Witness B's witness statement and in some respects its credibility. This alone was a powerful reason to allow cross-examination as this was the trial of the action for disclosure. Furthermore he had specific knowledge about BM, as the interviewer of BM. The questions directed to him would not be generalised but relate to specific matters. The question of the knowledge of the SyS went not only to the issue of involvement and facilitation but also to the exercise of the court's discretion. The question of knowledge was also arguably relevant to the challenge to the decision of the Foreign Secretary on voluntary disclosure, as it was said on behalf of BM that, if the discretion were exercised on a wrong basis, then it would be open to the court to quash it. The open cross-examination conducted by Ms Rose QC was limited to specific topics. For the reasons we have given at paragraph 53 it was conducted in private.

    ii) Witness A's position could be dealt with by his being asked to make a further statement in relation to the topics canvassed because there was no attack on his bona fides or candour and because the enquiries sought to be made of Witness A went to general matters concerning the documents and practices of the SyS and not to specific knowledge in relation to BM.

  114. It was clear that a case was being made on behalf of BM by Ms Rose QC and the Special Advocates where questions would touch on the commission of offences under the criminal law given the very wide scope of the International Criminal Courts Act 200). Its material provisions are as follows:
  115. ''S. 5) Genocide, crimes against humanity and war crimes
    (1) It is an offence against the law of England and Wales for a person to commit genocide, a crime against humanity or a war crime
    (2) This section applies to acts committed:
    (a) in England or Wales, or
    (b) outside the United Kingdom by a United Kingdom national, a United Kingdom resident or a person subject to United Kingdom service jurisdiction.
    s.52 Conduct ancillary to genocide, etc committed outside jurisdiction
    (1) It is an offence against the law of England and Wales for a person to engage in conduct ancillary to an act to which this section applies.
    (2) This section applies to an act that if committed in England or Wales would constitute -
    (a) an offence under section 51 (genocide, crime against humanity or war crime), or
    (b) an offence under this section
    but which, being committed (or intended to be committed) outside England and Wales, does not constitute such an offence.
    s. 55 Meaning of ancillary offence'
    (1) References in this Part to an ancillary offence under the law of England and Wales are to:
    (a) aiding, abetting, counselling or procuring the commission of an offence,
    (b) inciting a person to commit an offence
    (c) attempting or conspiring to commit an offence, or
    (d) assisting an offender or concealing the commission of an offence.
    A war crime is defined by s.50(2) to be a war crime as defined by Article 8.2 of the ICC statute as set out in schedule 8 to the Act. In so far as material Article 8.2 provides:

    "For the purpose of this Statute, 'war crimes' means:
    (a) Grave breaches of the Geneva Conventions of 12 August 1949, namely, any of the following acts against persons or property protected under the provisions of the relevant Geneva Conventions:
    (ii) Torture or inhuman treatment, including biological experiments;
    (iii) Wilfully causing great suffering, or serious injury to body or health;
    (vi) Wilfully depriving a prisoner of war or other protected person of the rights of fair and regular trial;
    (vii) Unlawful deportation or transfer or unlawful confinement;"

  116. Witness B had been provided with independent legal advice, including counsel, Mr Duncan Penny, when the potential allegations against Witness B became apparent to those representing the Foreign Secretary. After discussion with all counsel, including counsel present for Witness B, as to the scope of the intended cross-examination, we considered it appropriate before the open cross-examination of Witness B to give him a warning in the usual terms that he need not answer questions that might incriminate himself.
  117. In the course of his cross-examination by Ms Rose QC he answered all the questions asked of him. At the conclusion of that cross-examination, it was not possible to continue that day with his cross-examination by the Special Advocate; we were asked by counsel for Witness B if he could advise him further, but as no good reason was given to us for seeking to advise him further after answering all the questions in cross-examination by Ms Rose QC, we saw no reason for departing from the normal rule that a witness under cross-examination should not discuss his evidence with anyone. We therefore refused the application.
  118. On the following afternoon, when the Special Advocate commenced his cross-examination of Witness B in the closed hearing, Witness B stated that that in the light of the very serious allegations that had been made against him his intention was not to answer any further questions from the Special Advocate. On our direction that further questions be asked, when questions (such as the nature of the group in which he worked) were asked, Witness B declined to answer any of the questions. He explained that, on the basis of the advice he had received, he felt that it was in his best interests not to answer them.
  119. Because it was at first sight difficult to see how the privilege could be invoked, because of the unusual position of there being open and closed cross-examination and because of the potential implications, we asked for an amicus curiae to be appointed. We were able to proceed with other aspects of the hearing during the remainder of the afternoon. On the following morning we heard argument from Mr Birnbaum QC as amicus curiae to whom we are particularly indebted for the very prompt way in which he was able to assist us. We also heard from counsel present for Witness B, the Special Advocate as to the case he was intending to put to Witness B on the closed documents and counsel for the Foreign Secretary. It was the submission of the amicus that, in the light of the authorities, the wide scope of the Internationa) Criminal Courts Act 2001 and the case the Special Advocate was intending to put to Witness B on the closed documents, a point would come in the cross-examination where there would be a strong argument in favour of permitting the privilege to be invoked. We therefore decided, in the light of the decisions in Den Norske Bank v Antonatos [1999] QB 271 and R(CPS) v Bolton Magistrates Court [2003] EWHC 2697 Admin ([2004] 1 WLR 835 that we would ask the Special Advocate to continue with the cross-examination and to put the questions he wished to ask once again. If the privilege was claimed, we would then rule on whether the privilege applied to answers to those questions. We would then consider, as further questions were put, the point at which we should permit the witness to invoke the privilege, if claimed. However, before recommencing the cross-examination, as Witness B had invoked the privilege, we permitted Mr Duncan Penny and his solicitor, to advise Witness B further.
  120. When the special advocate asked similar questions to those asked of Witness B on the previous day, he answered those questions and all other questions asked of him including those that might possibly be considered to touch on s. 55 of the International Criminal Courts Act 2001.
  121. It was submitted to us that in assessing the credibility of Witness B we should take into account his initial invocation of the privilege. He had answered questions in the open cross-examination, but when he knew he would have to answer questions on the documents to be put to him in the closed cross-examination, he had chosen initially to invoke the privilege. It is clear, in our view, that there is a difference in authority as to whether reliance can be placed on a refusal to answer on the grounds of self incrimination: in Sociedade Nacional de Combustatives de Angola v Lunquist [1991] 2QB 310 Leggatt J (with whom Staughton LJ agreed) thought it should not. Templeman LJ in Rank Film Distributors v Video Information Centre [1980] 2 All ER 273 disagreed. Waller LJ in Den Norske Bank expressed the view that, in the light of sections 34 and 35 of the Criminal Justice and Public Order Act 1994, the views of Templeman LJ should be followed. We agree with Waller LJ's view as to the authority to be followed.
  122. However, we have not considered it necessary to draw any inferences from Witness B's initial refusal to answer on the grounds of self incrimination for a number of reasons. First, it was his evidence that his refusal was on the basis of legal advice; that is a relevant consideration. Secondly, given the circumstances in which he was being cross-examined about BM and the position of the SyS in relation to his detention and questioning, he may well have thought the better course was to invoke the privilege in the general interests of all concerned. Thirdly and most importantly, we have reached our view on the credibility of Witness B without the need to consider whether we should have regard to any possible inferences to be drawn from his initial refusal.
  123. As this was a provisional view we had reached, we declined to make public until the publication of this judgment the position in relation to Witness B. It was only fair to him that his initial refusal be seen in context and that undue speculation should not occur. Moreover it is important to stress that in our view no adverse conclusions should be drawn by others as a result of the invocation of the privilege; Witness B's position was unprecedented and (here may well have been an excess of caution on his part.
  124. (iii) Our findings in relation to involvement and facilitation

  125. We discussed with counsel the way in which we should set out our findings of fact in relation to involvement and facilitation and the reasons for those findings. As a significant part of the evidence was heard and the submissions on the evidence and the documents were made in a closed hearing, we made it clear that it was only possible to set out our detailed findings and the reasons why we made them in the closed judgment. We would provide in the open judgment the necessary summary. As our detailed findings and reasons rely on both the closed and open evidence, to provide only that part of the findings and reasons that are based on the open evidence and materials would give an incomplete account. Counsel agreed with our approach. As we have explained, at paragraph 4, part of the summary has been redacted at the request of the Foreign Secretary.
  126. The summary of our findings necessary for this open judgment is as follows:
  127. (i) The SyS and the SIS were interested in BM because of his residence in the United Kingdom, his connections with suspected persons in the United Kingdom, the period of time spent in Pakistan and Afghanistan, those whom he was said to have been with and the gravity of the allegations made against him at the time.
    (ii) We have no doubt that on the basis of that information the SIS and SyS were right to conclude that BM was a person of great potential significance and a serious potential threat to the national security of the United Kingdom. There was therefore every reason to seek to obtain as much intelligence from him as was possible in accordance with the rule of law and to cooperate as fully as possible with the United States authorities to that end.
    (iii) It was clear from reports that BM was held incommunicado from 10 April 2002 whilst a series of interviews was conducted by the United States authorities in April 2002 during which he had asked for a lawyer and had been refused.
    (iv) In May 2002, the SyS and the SIS received reports containing information relating to BM's detention and treatment in Pakistan. The details of the reports are set out in the closed judgment.
    (v) The probability is that Witness B read the reports either before he left for Karachi or before he conducted the interview.
    (vi) If contrary to that finding, Witness B had not read them prior to going to Karachi or after arrival at Karachi and prior to the interview, we have no doubt that other persons within the SyS, including persons more senior to Witness B, must have read the reports and must have appreciated what they said about BM's detention and treatment at Kara