Neutral Citation Number: [2009] EWHC 2959 (QB)
Case No: HQ08X01180
HQ08X01413
HQ08X01416
HQ08X03220
HQ08X01686
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
18 November 2009
Before :
MR JUSTICE SILBER
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Between :
(1) BISHER AL RAWI(2) JAMIL EL BANNA
(3) RICHARD BELMAR
(4) OMAR DEGHAYES
(5) MOAZZAM BEGG
(6) BINYAM MOHAMED
MARTIN MUBANGA / Claimants
- and -
(1) THE SECURITY SERVICE
(2) THE SECRET INTELLIGENCE SERVICE
(3) THE ATTORNEY-GENERAL
(4) THE FOREIGN AND COMMONWEALTH OFFICE
(5) THE HOME OFFICE
JUSTICE and LIBERTY / Defendants
Interveners
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Timothy Otty QC, Richard Hermer QC and Tom Hickman (instructed by Birnberg Peirce &Co) for the First, Second and Fourth Claimants
Michael Fordham QC and Naina Patel (i) (instructed by Birnberg Peirce & Co) for the Third and Fifth Claimants (ii) (instructed by Leigh Day& Co) for the Sixth Claimant and (iii) (instructed by Christian Khan) for the Seventh Claimant
Jonathan Crow QC, Karen Steyn, Daniel Beard and Andrew O’Connor (instructed by the Treasury Solicitor) for the Defendants
Liberty and Justice, the Interveners, made joint written submissions prepared by Nigel Pleming QC, Eric Metcalfe and Corinna Ferguson
Hearing dates: 27 and 28 October 2009
Further written submissions from counsel for the claimants and the defendants submitted on 3 November 2009
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Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
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MR JUSTICE SILBER
Approved Judgment / Al Rawi and Others v The Security Service and OthersMR JUSTICE SILBER:
I Introduction
1. The issue in this case is whether it could be proper and lawful for a court to order that a “closed material” procedure be adopted in a civil claim for damages. It arises in the present claim, which has been brought against organs of the State by seven former detainees, who have been held by foreign states at various locations including in each case the United States’ detention facility at Guantanamo Bay.
2. The precise preliminary issue, which was ordered on 24 September 2009 for this court’s determination and which was amended by agreement during the course of the hearing, is :-
“Could it be lawful and proper for a court to order that a “closed material procedure” (as defined below) be adopted in a civil claim for damages?
Definition of “closed material procedure”
A “closed material procedure” means a procedure in which:-
(a) a party is permitted to
(i) comply with his obligations for disclosure of documents, and
(ii) rely on pleadings and/or written evidence and/or oral evidence without disclosing such material to other parties if and to the extent that disclosure to them would be contrary to the public interest (such withheld material being known as “closed material”), and
(b) disclosure of such closed material is made to Special Advocates and, where appropriate, the court; and
(c) the court must ensure that such closed material is not disclosed to any other parties or to any other person, save where it is satisfied that such disclosure would not be contrary to the public interest.
For the purposes of this definition, disclosure is contrary to the public interest if it is made contrary to the interests of national security, the international relations of the United Kingdom, the detection and prevention of crime, or in any other circumstances where disclosure is likely to harm the public interest”.
In its original form, the preliminary issue contained the words “if satisfied that such a procedure is necessary for the just disposal of the case” after the word “damage” in the third line, but as I have mentioned, those words were deleted by agreement as their meaning was not clear and they did not appear to add anything to the preceding words.
3. The claimants with the support of Justice and Liberty, who are Interveners, contend that the preliminary issue has to be answered in the negative because their submission is that “it can never be lawful and proper for a court to impose a “closed material procedure” on a party from whom material is sought to be withheld”. They contend that any problems relating to the disclosure of matters relating to national security could be and must be resolved by using the well-known principles for dealing with claims for Public Interest Immunity (“PII”). The defendants disagree and they contend that the preliminary issue should be answered in the affirmative as a closed material procedure is a lawful and proper course for a court to impose in a civil claim for damages.
4. There are important differences between the PII procedure and the closed material procedure which uses a special advocate. The salient aspects of the PII procedure are that “documents otherwise relevant and liable to production must not be produced if the public interest requires that they should be withheld” (per Viscount Simon LC in Duncan v Cammell Laird Co [1942] AC 624, 636). The application of the PII test means that with the benefit of submissions from counsel for the State, the court has to weigh the public interest in not disclosing material against the importance of the material to the parties and to the administration of justice. The closed material procedure is different and Sir Anthony Clarke MR described the roles of the special advocate, who is an integral part of this procedure and who represents the party who is not allowed to see the closed material, when he said in AHK v Secretary of State for Home Department [2009] 1 WLR 2049 that: -
“38… (4) They are well understood and include taking instructions from the claimant, but only before the special advocate sees any of the closed material, considering whether further documents are required and whether gisting is required, discussing the problems with counsel for the Secretary of State, making appropriate submissions to the court and testing and probing the evidence as the special advocate thinks fit”.
Of course, once the closed material is served on the special advocate, his or her ability to communicate with the appellant or his representative is severely curtailed. The closed material procedure in theory prevents one party from knowing the case against him, giving instructions on it, challenging it or knowing the full reasons for a court’s decision. In practice, however, the courts have ensured that the rights of claimants under article 6 of the European Convention on Human Rights (“ECHR”) are preserved which means that in practice the closed material procedure is modified. I have not heard submissions on how this could, should or would be done in this case but as is well-known in Home Secretary v AF (No 3) [ 2009] 3 WLR 98, Lord Phillips of Worth Matravers said of a recent decision of the Strasbourg Court that it:-
“59…establishes that the controlee must be given sufficient information about the allegations against him to enable him to give effective instructions in relation to those allegations. Provided that this requirement is satisfied there can be a fair trial notwithstanding that the controlee is not provided with the detail or the sources of the evidence forming the basis of the allegations”.
5. It is appropriate to mention now three matters relating to the preliminary issue. First, it must be stressed that the fact that a closed material procedure is used does not mean that the claimants will not see any of the material because the special advocate would be required to consider if any of the closed documents should not be withheld from open disclosure to the claimants in the light of the rights of the claimants under the ECHR and at common law and then to make submissions. If a closed material procedure was adopted in a private law claim, it would mean that the court would have to consider how the procedure would have to be modified to ensure that article 6 rights were respected either by following the procedure set out in AF (supra) or otherwise. After all any court adopting the closed material procedure in a private law claim for damages would have an obligation to ensure that the rights of litigants as set out in the ECHR are respected which is after all what the House of Lords did in AF (supra). The admirable submissions of counsel for the claimants did not appear to appreciate this point.
6. Second, it is unfortunate that the preliminary issue did not include consideration of first whether the closed material procedure should be used in the present case or second the precise workings of the anticipated closed material procedure. Third, this is very complicated litigation with the defendants’ solicitor stating in a witness statement dated 28 October 2009 that the results of the defendant’s work to date are that “now over 250,000 documents identified as potentially relevant, each document often comprising many pages” (5th witness statement of David Mackie made on 28 October 2009, paragraph 3). As I will explain, there are said to be many sensitive documents which may or will raise PII issues.
II The Issues
7. As the issue in this case is a stark question of law, an understanding of the detailed background to these claims is unnecessary but as is well known, each of the claimants has been the subject of detention by foreign states at various locations including at the notorious United States detention facility at Guantanamo Bay. Each of the claimants now seeks damages in relation to the alleged acts or omissions of the Security Service, the Secret Intelligence Service, the Foreign & Commonwealth Office and the Home Office with the Attorney-General being sued only in a representative capacity.
8. The thrust of the claims is that each of the defendants is alleged to have caused or contributed to the detention of each claimant and his alleged ill-treatment by foreign authorities. The case for each claimant is that he was subjected to unlawful extraordinary rendition, to torture and to inhuman and degrading treatment during the course of his detention. It is said by the claimants that none of them has ever been involved in terrorism. The defendants deny each of these allegations.
9. The causes of action are not identical in each case but for the purpose of this judgment, they can be summarised as including claims for false imprisonment, for trespass to the person, for conspiracy to use unlawful means, for conspiracy to injure, for torture, for breach of contract, for negligence, for misfeasance in public office and for breach of the Human Rights Act 1998. There are also allegations that the Security and Intelligence Services, who are the first and second defendants, are joint tortfeasors with the foreign states, who are alleged to have unlawfully detained and mistreated the claimants.
10. The parties are agreed on the importance of open justice and it is common ground that:
(a) As Lord Shaw of Dunfermline in Scott v Scott [1913] AC 417 said (i) at 477-478 that “there is no greater danger of usurpation than that which proceeds little by little, under cover of rules of procedure and at the instance of Judges themselves” and later (ii) at page 485 that “the policy of widening the area of secrecy is always a serious one; but this is for Parliament, and those to whom the subject has been consigned by parliament, to consider”;
(b) “the principle of open justice, whether in the Court of Appeal, or the Court of Trial, is so fundamental that supporting citation of authority is not required” per Sir Igor Judge P (as he then was) in R v Crown Court at the Central Criminal Court ex parte A [2004] EWCA Crim 4 [32];
(c) “[t]he best way of producing a fair trial is to ensure that a party to it has the fullest information of both the allegations that are made against him and the evidence relied on in support of those allegations” (Secretary of State for the Home Department v AF and Others [2009] 3 WLR [24] per Lord Phillips of Worth Maltravers); and that
(d) One of the overriding objectives of the Civil Procedure Rules (“CPR”) is that of “ensuring that the parties are on an equal footing” (CPR 1.1 (2)).
11. The case for the claimants is that a closed material procedure should not be adopted because (a) it is inconsistent with principle and authority; (b) it is inconsistent with the well-established law of PII; (c) it is inconsistent with certain provisions of the CPR and the Crown Proceedings Act 1947 (“CPA”); and (d) the court would be acting unconstitutionally if it adopted a closed material procedure as it would be acting as a legislator and a rule-maker by devising a new legal framework instead of and in place of the well-established principles for the trial of civil damages claims as set out in the CPR.
12. The case for the defendants is first that the use in cases such as the present one of the closed material procedure with a Special Advocate is supported by authority and second that it is not inconsistent with the CPR or the established principles of PII. A claim of PII means that such documents are immune from production and use by either party when the public interest in disclosure is outweighed by the risk of harm to the public interest if the documents were disclosed. The consequence is that the documents covered by PII cannot be used by either party and this contrasts with the proposed closed material procedure by which the court would be able to see and rely on such relevant material with the assistance of special advocates, who would have to take account of the rights of the claimants under the ECHR and at common law.