(11) Abdulbaqi Khaled v The Security Service and Others
| Jurisdiction | England & Wales |
| Judge | Mr Justice Irwin |
| Judgment Date | 15 July 2016 |
| Neutral Citation | [2016] EWHC 1727 (QB) |
| Court | Queen's Bench Division |
| Date | 15 July 2016 |
| Docket Number | Case No: HQ13X00363 |
[2016] EWHC 1727 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Irwin
Case No: HQ13X00363
Danny Friedman QC, Dan SquiresQC (instructed by Birnberg Peirce) for the Claimant
Rory Phillips QC, Kate Grange, Rosemary Davidson (instructed by The Government Legal Department) for the Defendants
Angus McCullough QC, Tom Forster, Jenny Carter-Manning (instructed by The Special Advocates' Support Office)
Hearing dates: 5th and 6th July 2016
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.
This case forms part of a group of cases pleaded together, arising from the discovery of documents in Libya following the fall of Colonel Qadhafi, which bear on relations between the Defendants and the Libyan security services. In my judgment of 22 January 2015, Kamoka and Others v The Security Service and Others [2015] EWHC 60 (QB), I rejected the application to strike out this claim on the ground of abuse of process. I indicated that this private law claim should be tried together with the Claimant's outstanding claim for judicial review.
On 11 December 2015, with the consent of the parties, I made a declaration in this Claimant's case pursuant to S.6 of the Justice and Security Act 2013 [" JSA 2013"]. In an order dated 23 July 2015 (which was varied in an order dated 5 February 2016) I gave directions that standard open disclosure should be provided by the Defendants by 29 January 2016, and any application under S.8 of the JSA 2013 and CPR 82.13(2), as well as any application for PII, by 26 February 2016. This is the open judgment in respect of those applications.
A closed judgment will be handed down on the same day as this judgment, the former to be read in the light of the latter. Further closed ruling or rulings are likely to arise.
In addressing the approach to disclosure, the parties presently have a trial in contemplation, rather than any further interlocutory steps. Although directions for the onward carriage of the action will be given next term, I approach disclosure with a trial in mind.
Context: Summary Facts
The Claimant is said to have become involved with the Sanabel Relief Agency ("SRA") in the 1980s. The SRA has expressed aims of providing charitable relief in Muslim countries. The SRA was incorporated in 1999, and the Defendant's case is the Claimant became a director on 6 April that year.
The Claimant's case is that in 2004 the Defendants, or more particularly officers of the First Defendant, sent questions to the Libyan Security Service ("LESO") to be put to persons detained in Libya, concerning the SRA, and the Claimant. The Claimant infers the Defendants received answers; and that the information gained was instrumental in the steps the Defendants subsequently took in relation to him. The Claimant's case is that information gained from Libyan detainees under the Qadhafi regime was "tainted", meaning that it was unreliable and that it was or would have been unlawful to rely upon it, since it was likely to have been obtained by torture or inhuman and degrading treatment. It is claimed that the Defendants knew that, and should not have sought the information in such circumstances or relied on it.
On 17 May 2004, the Claimant resigned, and was removed as a director of the SRA.
On 18 January 2006, the United Kingdom applied to the United Nations Sanctions Committee, known as the "1267 Committee", after the relevant UN Security Council resolution, for sanctions freezing the Claimant's assets, imposing a travel ban and an arms embargo. The application was made on the basis that the Claimant was "associated with" Al Qaida. The Claimant was added to the Consolidated List on 7 February 2006. The decision to propose the Claimant for listing was taken by the relevant Foreign Office minister, Dr Kim Howells, following ministerial submissions. A consequence of the UN listing was that the Claimant was made the subject of domestic sanctions with similar effect.
In November 2008, the Claimant issued judicial review proceedings to challenge his designation.
On 13 October 2009, the Foreign Secretary decided to request that the Claimant should be removed from the UN list. However, due to action from another state, the Claimant remained on the UN list until removal on 24 June 2011.
The Claimant sues for misfeasance in public office, on the basis that the "officers and agents of the security services" knew that the information upon which they relied was unreliable and/or illegally obtained; that the failure to disclose mistreatment of Libyan detainees to "the relevant decision-makers in the Foreign Office" was unlawful, and/or that they were "recklessly indifferent to the legality of their actions" and to the damage which would ensue to the Claimant. Alternatively, if the mistreatment of detainees was disclosed to officials of the Foreign Office then the latter were guilty of misfeasance in public office. The claim is also formulated as a conspiracy to injure along with "members of the Libyan and Saudi Arabian security services" to engage in the "arbitrary detention and mistreatment of" detainees, one of the purposes being to injure this Claimant. The means of injury is said to have been to obtain information which could be used to seek his designation, thereby to freeze his assets.
In the course of oral submissions, Mr Friedman QC for the Claimant characterised the case as having three issues. I have refined his formulations only slightly. Firstly, did officers of the First and Second Defendants knowingly or recklessly rely on information obtained by torture or inhuman and degrading treatment? Secondly, if yes, did officials or officers of the security services withhold such means of obtaining the information from ministers? Thirdly, if not, "does it matter?" by which is meant: are the claimed legal consequences made out? It will be evident that the third is a purely legal issue. The context for disclosure arises from the first two issues.
Disclosure
The principal contention of the Claimant is that in this case there is an obligation on the Defendants to disclose the essence of the case, consistent with the formulation in A v United Kingdom [2009] AC 1 EHHR 625, as applied by the Supreme Court in AF (No.3) v Secretary of State for the Home Department [2010] 2 AC 269. We have used the shorthand " AF (No.3)" disclosure. This is a similar submission to that advanced by Claimants 1 to 5 in the action, and addressed by me in Kamoka and Others v Security Service and Others [2015] EWHC 3307 (QB), of October 2015.
Mr Friedman argues that the restrictive orders here represented a very significant intrusion on the Claimant's liberty, and on his rights under Article 8 of the ECHR. Not only were his assets frozen, but his movements were curtailed. Although he was never detained, the effects of these orders were serious. I agree.
Mr Friedman then argues, with some grace, that I was in error in the approach I took to disclosure in relation to Claimants 1 to 5. He took the Court through some of the authorities considered in argument in that hearing and in that judgment. He then addressed a number of cases which have arisen since. I will summarise how he put the matter.
Given that this case involves a significant incursion on liberty, and impact on the Claimant's private life, Mr Friedman argues it stands on a par with cases involving detention. Accepting, as he must, that the claim is not an effort to end a current restriction on liberty, it does represent (as he submitted in relation to Claimants 1 to 5) a claim for "vindication" of liberty. He says that is highly important.
He relies on the facts of AF (No.3) itself to this extent, that at the time of the judgment in the House of Lords, the relevant control orders had expired. To that extent the case was "after the event", and not addressing current restrictions on liberty. Mr Phillips QC for the Defendant countered that by pointing out that the House of Lords was considering the obligations of disclosure which arose when a current control order is being challenged. The end of the control orders in AF (No.3) was not material. On that point I consider Mr Phillips is correct.
Mr Friedman took me to some passages from the judgment of Maurice Kay LJ in Home Secretary v CC [2014] 1 WLR 4240, a case, once more, concerning disclosure in relation to the imposition of control orders under the Prevention of Terrorism Act 2005, and Terrorism Prevention and Investigation Measures ("TPIMs") under the Terrorism Prevention and Investigation Measures Act 2011. Again, I did not find this helpful in determining the disclosure obligations arising in the present case. As Mr Phillips submitted, in paragraph 18 of his judgment Maurice Kay LJ emphasised that the CC case was concerned with a current attempt by the Home Secretary to restrict CC's liberty, not with a claim for compensation.
Mr Friedman took me to the decision of the Court of Appeal in Sarkandi and Others v Secretary of State for Foreign and Commonwealth Affairs [2015] EWCA Civ 687, a case which I considered in the October 2015 judgment. The underlying facts there were that the Foreign Secretary proposed to place the Claimants on a list of persons subject to similar restrictive measures to those imposed on this Claimant, albeit pursuant to EU legislation. The claim was a judicial review challenge to the...
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