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You are here: BAILII >> Databases >> British Indian Ocean Territory Judgments >> The Commissioner for the British Indian Ocean Territory v VT & Ors, R (On the Application Of) (No. 3) [2024] BIOT CA (Civ) 3 (20 August 2024) URL: https://www.bailii.org/io/cases/BIOT/2024/CA3.html Cite as: [2024] BIOT CA (Civ) 3 |
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MARGARET OBI, SITTING AS AN ACTING JUDGE
BIOT SC/15/2023 AND BIOT SC/16/2023
United Kingdom |
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B e f o r e :
THE HON. MR JUSTICE NIGEL BIRD, JA
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| THE COMMISSIONER FOR THE BRITISH INDIAN OCEAN TERRITORY |
Appellant |
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| - and - |
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| THE KING (ON THE APPLICATION OF VT & ORS) |
Respondents |
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The 1st respondent was neither present nor represented
Mr. Jack Boswell (instructed by Messrs Duncan Lewis) for the 2nd-5th and 13th – 19th Respondents
Ms. Zoe McCallum (instructed by Messrs Duncan Lewis) for the 6th Respondent
Mr. Ben Jaffey K.C. and Ms. Natasha Simonsen (instructed by Messrs Leigh Day) for the 7th-12th and 20th – 41st Respondents
Mr. Ben Jaffey K.C. (instructed by Messrs Wilsons Solicitors LLP) for the 42nd – 48th Respondents
Hearing date: 9 August 2024
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Crown Copyright ©
This judgment was handed down remotely at 10:00am UK time on 20 August 2024 by circulation to the parties or their representatives by e-mail.
THE PRESIDENT, LANE AND BIRD JJA:
Introduction
Background
in this judgment, but adopt it as a convenient and widely understood shorthand description of the effect of various interim orders made by the Supreme Court.
(i) Save for two individuals who are accommodated elsewhere, the Respondents live in tents in Thunder Cove (the 'Camp'). Except as permitted by court order or by consent of the Commissioner, they must remain in the Camp.
(ii) As a result of an order made by consent on 21 December 2023 in the Proceedings, they have access to a nearby beach. Initially, access was more restricted but can now be exercised every day.
(iii) By consent, there is access to a building outside the Camp to allow consultation with lawyers, when required, and to an area 'downtown' for medical appointments. Respondents who have required medical treatment which cannot be provided on Diego Garcia have been treated in Kigali, Rwanda.
(iv) By consent, the children of the Respondents attend school in a building which is not within the Camp.
The May 2024 Order
(i) The Respondents may walk along a road known as Highway DG1 (hereafter 'DG1');
(ii) The Respondents may visit any beach which can be accessed safely from DG1;
(iii) The Respondents' access to, and egress from, DG1 must be by a route specified by the Commissioner;
(iv) The Commissioner may limit access to DG1 to 4 hours per day;
(v) Any child exercising these rights must be supervised by an adult and the Commissioner may (but is not required to) arrange for those exercising bail rights to be escorted;
(vi) The Commissioner may suspend the exercise of bail provided any limitation or curtailment of bail is reasonable and necessary to cater for military operational requirements.
The application for extended bail: 16 July 2024
a. to extend the May 2024 Order to all Respondents;
b. to allow the Respondents to access a Nature Trail (a 1.5 km track accessed through woodland close to the Camp), Turtle Cove and The Brit Club, a social club operated by Royal Navy personnel;
c. to permit the use of scooters and bicycles when exercising bail; and
d. to retain the Commissioner's power to suspend bail for operational reasons but subject to a requirement to give reasonable notice to the Respondents of any suspension of bail.
Events immediately preceding the July 2024 Order
"In principle…. the UK would consider that any order for bail that fails properly to consider and reflect either the United States' responsibility for security of the NSF, its assessment of security concerns, which should be afford a high degree of deference, or its discretion in making available the use of any of its facilities, to be contrary to the UK's agreements with the United States concerning the BIOT. For present purposes, that is likely to be the case in respect of any order for enlargement of bail that is contrary to the position taken in the US response as regards either the security of the NSF or the provision of logistical support by the United States. I can only reiterate the serious consequences to the UK's interests were the Court to take such a course."
The July 2024 Order
"I recognise, of course, that Diego Garcia is a military facility and that none of the Claimants have been subject to the usual vetting procedures and security checks. Such checks cannot be carried out because the personal details of the Claimants cannot currently be shared with their country of origin. Any US/UK sensitivity in respect of this issue is to be respected not least because the Commissioner is in the best position to assess and determine whether wider access to a sensitive military facility should be granted."
"I accept the submission made on behalf of the Claimants that accessing the Nature Trail is not a significant security risk. Furthermore, in terms of health and safety, I am not persuaded that accessing the Nature Trail is any more hazardous than the beach adjacent to the Camp or any of the other beaches along DG1. The Bailed Claimants have been permitted to access these beaches since the grant of conditional bail in April 2024 and revised bail conditions in May 2024."
The Legal Framework
"In the case of BIOT, the British Indian Ocean Territories (Constitution) Order 1984 establishes the office of Commissioner, who is appointed by Her Majesty by instructions given through a Secretary of State. The Commissioner has both executive and legislative power. When exercising these powers, he is an officer of the Crown in right of the Government of BIOT ("CBIOT").
As the Quark case shows [Quark Fishing Ltd v Secretary of State for Foreign and Commonwealth Affairs (No. 2) [2005] UKHL 57, [2006] 1 AC 529, there are some cases where the King does some legal act through or on the advice of the Foreign Secretary, but the act is nonetheless done under the system of government of an overseas territory. The act will still be attributable to the Crown in right of the government of the territory. Usually, however, the Foreign and Defence Secretaries act as representatives of the Crown in right of the Government of the UK ("CUK"). It is common ground that the Foreign Secretary represents CUK when acting on the international plane to conclude agreements and arrangements with other States, even when the agreements and arrangements concern an overseas territory."
"Subject to and so far as it is not inconsistent with any specific law for the time being in force in the Territory, and subject to subsections (3) and (4) of this section and to section 4, the law to be applied as part of the law of the Territory shall be the law of England as from time to time in force in England and the rules of equity as from time to time applied in England: Provided that the said law of England shall apply in the Territory only so far as it is applicable and suitable to local circumstances, and shall be construed with such modifications, adaptations, qualifications and exceptions as local circumstances render necessary."
The parties have not argued that any specific law in force in the BIOT or any local circumstance should prevent this court applying the principles of law set out below.
"It is not enough that [the judge's] decision on those facts may seem harsh to people who have not heard and read the evidence and arguments which they have heard and read. [The judge's] decisions should be respected unless it is quite clear that they have misdirected themselves in law. Appellate courts should not rush to find such misdirections simply because they might have reached a different conclusion on the facts or expressed themselves differently."
The same principles were restated recently in the leading Court of Appeal judgement of Volpi v Volpi [2022] EWCA Civ 464 per Lewison LJ at [2]:
"(i) An appeal court should not interfere with the trial judge's conclusions on primary facts unless it is satisfied that he was plainly wrong.
(ii) The adverb "plainly" does not refer to the degree of confidence felt by the appeal court that it would not have reached the same conclusion as the trial judge. It does not matter, with whatever degree of certainty, that the appeal court considers that it would have reached a different conclusion. What matters is whether the decision under appeal is one that no reasonable judge could have reached.
(iii) An appeal court is bound, unless there is compelling reason to the contrary, to assume that the trial judge has taken the whole of the evidence into his consideration. The mere fact that a judge does not mention a specific piece of evidence does not mean that he overlooked it.
(iv) The validity of the findings of fact made by a trial judge is not aptly tested by considering whether the judgment presents a balanced account of the evidence. The trial judge must of course consider all the material evidence (although it need not all be discussed in his judgment). The weight which he gives to it is however pre- eminently a matter for him.
(v) An appeal court can therefore set aside a judgment on the basis that the judge failed to give the evidence a balanced consideration only if the judge's conclusion was rationally insupportable.
(vi) Reasons for judgment will always be capable of having been better expressed. An appeal court should not subject a judgment to narrow textual analysis. Nor should it be picked over or construed as though it was a piece of legislation or a contract."
"15. Section 6 of the BIOT Courts Ordinance 1983 provides that the Supreme Court of BIOT has the powers of the High Court of England and Wales, and it is well established that the High Court has an inherent jurisdiction to grant bail in civil proceedings including judicial review and habeas corpus.
16. As I stated in my original bail judgment, dated 22 April 2024, there are four well- established principles when considering bail:
- First, there is a presumption in favour of bail and cogent reasons are required to justify any refusal to grant bail.
- Secondly, it is for the relevant authority (in this case the Commissioner) to demonstrate why concerns cannot be addressed through conditions.
- Thirdly, bail applications have to be determined on a case-by-case basis and not on the basis of general hypothetical risks.
- Fourthly, a breach of any bail conditions is liable to lead to a withdrawal of bail.
…
22. In considering the applications for bail I draw, by analogy, on the factors relevant to bail under s61 of the Immigration Act 2016 and paragraph 3(2) of Schedule 10 to that Act. These factors (with some adaptation for present purposes) are as follows:
- The likelihood of the Claimants failing to comply with a bail condition;
- Whether the Claimants have been convicted of an offence;
- The likelihood of the Claimants committing an offence whilst on bail;
- The likelihood of the Claimant's presence causing a danger to public health or being a threat to the maintenance of public order;
- Whether detention is necessary in the Claimant's interests or for the protection of others;
- Whether the Claimants have failed without reasonable excuse to cooperate with any process;
- Such other matters as the court considers relevant."
Discussion
Ground 1: The Judge's decision to consider the Respondents' application for bail on 23 July 2024 was procedurally unfair.
Ground 2: The Judge's Decision involved an unreasonable exercise of her discretion because she failed properly to consider and/or place adequate weight upon the impact of a grant of expanded bail on US/UK relations
"21. I recognise, of course, that Diego Garcia is a military facility and that none of the Claimants have been subject to the usual vetting procedures and security checks. Such checks cannot be carried out because the personal details of the Claimants cannot currently be shared with their country of origin. Any US/UK sensitivity in respect of this issue is to be respected not least because the Commissioner is in the best position to assess and determine whether wider access to a sensitive military facility should be granted. However, the Commissioner has not put forward any specific reasons for denying bail to the New Claimants or reasons why they should be made subject to particular bail conditions. He solely relies on the security concerns as expressed by the US authorities. In my judgment these concerns are generic and unduly rigid. I fully understand that from a diplomatic relations perspective this places the UK authorities in an extremely difficult position and has knock-on consequences for the Commissioner. However, this is a court of law, and I am required to exercise my powers independently and judicially, in order to safeguard the rule of law."
"57. The Courts must be particularly slow to intervene in matters concerning foreign relations. In, for example, R (Abbasi) v Secretary of State for Foreign and Commonwealth Affairs [2002] EWCA Civ 1598 where an application for judicial review was made in respect of the Foreign Office's failure to make representations on behalf of a British national detained at Guantanamo Bay. The Court of Appeal held at §107(ii) that it would not be "appropriate to order the Secretary of State to make any specific representations to the United States, even in the face of what appears to be a clear breach of a fundamental human rights, as it is obvious that this would have an impact on the conduct of foreign policy…".
58. Where – as here – a Court has been provided with evidence that a proposed order for interim relief had the potential to have a profound impact on international relations between the UK and its most important security partner, the limitations on Courts taking steps which interfere with foreign relations apply with full force."
Ground 3: The Judge's Decision involved an unreasonable exercise of her discretion because she failed to place any or any adequate weight on the US authorities' evaluation of their own security concerns
"The Court was obliged to have proper regard to US security concerns; to afford them significant weight in any assessment of whether or not to grant bail; and to avoid taking a step which would interfere with national security. Instead, the Court dismissed the US security concerns as being generic and proceeded to take the decision without affording those concerns any or any significant weight. That approach was not rationally open to the Judge."
The Grounds here conflate several different principles. As with its treatment of foreign relations, the suggestion is that the judge went beyond weighing the US's assessment of its own national security interests and took "a step which would interfere with national security." We do not find that she did anything of the sort. The judge did not question whether the US was right to take the view that the presence of the Respondents close to its base was not 'in the interests of' US national security. She accepted the US's evaluation and then weighed it against other factors in reaching her decision. As with Ground 2, the implication in Ground 3 is that, notwithstanding that all parties (i) accepted that the assessment of national security and the conduct of foreign policy were solely matters for the executive (ii) which required the most careful consideration and evaluation by the judge and (iii) whilst very important, were not of paramount, overriding effect in the court's analysis, the judge had nonetheless no choice but to defer the opinions of the Commissioner and the US. That is not a correct representation of the function of the court.
Ground 4: The Judge's Decision was an unreasonable exercise of her discretion as it necessarily impacts upon the Commissioner's resource allocation decisions
The Suspension Clause
"Access to the Bail Areas may be subject to such limits as are reasonably necessary by reason of the operational requirements of the military facility (such as particular equipment being moved or exercises, events or operations being undertaken that would render such access unsafe). Any such limits shall be notified to the Claimants and their solicitors as soon as reasonably practicable and before coming into effect."
Conclusion