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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Mohamed, R (on the application of) v Secretary of State for Foreign & Commonwealth Affairs [2008] EWHC 2048 (Admin) (21 August 2008) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2008/2048.html Cite as: [2008] EWHC 2048 (Admin) |
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QUEEN'S BENCH DIVISION
DIVISIONAL COURT
London, WC2A 2LL |
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B e f o r e :
and
MR JUSTICE LLOYD JONES
____________________
| The Queen on the Application of Binyan Mohamed |
Claimant |
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| - and - |
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| Secretary of State for Foreign and Commonwealth Affairs |
Defendant |
____________________
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
____________________
Crown Copyright ©
| 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
The issue
II THE FACTS, THE ALLEGATIONS OF BM AND THE COURSE OF THE PROCEEDINGS
(1) The facts and the allegations made by BM
(a) BM's period in the Untied Kingdom
(b) The UK Security Services and their position after 11 September 2001
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
"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.
(d) The interview of BM by the Security Service
"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."
"[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."
(e) The lawfulness of BM's detention in Pakistan
(f) BM's allegations as to his treatment when held in Pakistan
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.
(g) Information available to the SIS and SyS derived from other matters
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
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
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
(k) BM's allegations as to his rendition to Morocco and his torture there
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
(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
"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.'"
(2) The attempts made by the United Kingdom Government to assist BM
(3) The commencement of these proceedings
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.
(4) The events after the commencement of these proceedings in May 2008
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
(6) The course of the proceedings
(7) The position of the Convening Authority
III. THE CLAIM TO THE DOCUMENTS UNDER THE PRINCIPLES IN NORWICH PHARMACAL
"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."
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?
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".
(2) Was the United Kingdom Government involved, however innocently, in the arguable wrongdoing?
(a) The relevant legal principles
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.
(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
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
(ii) The cross-examination of Witness B: the invocation of the right against self incrimination
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.
''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;"
(iii) Our findings in relation to involvement and facilitation
(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