All Party Parliamentary Group on Extraordinary Rendition GIA 2230 2012

JurisdictionUK Non-devolved
JudgeThree-Judge Panel / Tribunal of Commissioners
Judgment Date11 November 2013
Neutral Citation2013 UKUT 560 AAC
Subject MatterInformation rights
RespondentInformation Commissioner and Foreign and Commonwealth Office
CourtUpper Tribunal (Administrative Appeals Chamber)
Docket NumberGIA 2230 2012
AppellantAll Party Parliamentary Group on Extraordinary Rendition

IN THE UPPER TRIBUNAL Case No.: GIA/2230/2012

ADMINISTRATIVE APPEALS CHAMBER

Before: Mr Justice Charles CP

Mr Justice Burnett

Upper Tribunal Judge Wikeley

Attendances:

For the Appellant: Mr Timothy Pitt-Payne QC and Miss Joanne Clement, instructed by Hogan Lovells International LLP

For the First Respondent: Mr Robin Hopkins, instructed by the Solicitor to the Information Commissioner

For the Second Respondent: Ms Karen Steyn and Mr Julian Blake, instructed by the Treasury Solicitor

INTERIM DECISION

The INTERIM DECISION of the Upper Tribunal is to allow the appeal in part.

The decision of the First-tier Tribunal (General Regulatory Chamber) (Information Rights) dated 03 May 2012, in relation to the Appellant’s appeals against the Information Commissioner’s Decision Notices FS50262409, FS50279042 and FS50296953, involves an error on a point of law (in relation to Ground 4 of the grounds of appeal). The appeal is therefore allowed in part.

This decision is given under section 12(2)(a) and 12(2)(b)(ii) of the Tribunals, Courts and Enforcement Act 2007.


REASONS

Introduction

  1. This is an appeal by the All Party Parliamentary Group on Extraordinary Rendition (“APPGER”) against the decision of the First-tier Tribunal (“the FTT”), which for the most part dismissed APPGER’s original appeals against three Decision Notices issued by the Information Commissioner (“the IC”). The IC, in turn and again for the most part, had upheld the reliance by the Foreign and Commonwealth Office (“the FCO”) on various exemptions under the Freedom of Information Act 2000 (“FOIA”) in response to three batches of requests for information made by APPGER

  1. This is an interim decision. APPGER has five grounds of appeal against the FTT’s decision in respect of its three appeals. The first two grounds of appeal raise matters which are likely to be affected by the forthcoming decision of the Supreme Court on the appeal from the Court of Appeal’s decision in Kennedy v IC [2012] EWCA Civ 317; [2012] 1 WLR 3524. Those two grounds have accordingly been stayed. This interim decision, therefore, deals only with grounds 3, 4 and 5

The background to the APPGER requests

The role of APPGER

  1. APPGER is a cross-party association of MPs, established in 2005 by Mr Andrew Tyrie MP in response to allegations that the UK Government had been involved in the US extraordinary rendition programme. Extraordinary rendition is a euphemism for an extraordinary practice, namely the extra-judicial transfer of detainees, typically individuals “of interest to the security services”, and usually across state boundaries or between different authorities within them, for the purposes of interrogation, often in circumstances where those individuals face a real risk of torture

  1. APPGER’s investigations into this practice have included making several FOIA requests to Government departments and, where disclosure of information has not been forthcoming, pursuing complaints to the IC and appeals to the FTT. An earlier such appeal to the FTT was heard by way of a discretionary transfer in the Upper Tribunal (APPGER v Ministry of Defence [2011] UKUT 153 (AAC)). There is a comprehensive review of the background to the present appeal in the FTT’s decision (EA/2011/0049-0051). Much of the context of this appeal is also in the public domain by way of judgments in the Divisional Court and the Court of Appeal. We do not doubt the importance and gravity of the underlying issues, but this extensive prior judicial treatment means that we can summarise the context of this case rather more shortly than would otherwise be appropriate.

The context to the APPGER requests

  1. The APPGER requests in issue in this appeal related to the cases of three individuals, each of whom was subject to extraordinary rendition: Mr Bisher al-Rawi, Mr Jamil el-Banna and Mr Binyam Mohamed.

Mr al-Rawi and Mr el-Banna

  1. Mr al-Rawi is an Iraqi citizen but a longstanding British resident. Mr el-Banna is a Jordanian national but with refugee status to remain in Britain. In November 2002 Mr al-Rawi and Mr el-Banna were both detained at Gatwick Airport under the Terrorism Act 2000 before boarding a flight to The Gambia. Shortly afterwards, they were both released and allowed to continue their journey. On arrival in The Gambia, however, both men were arrested on suspicion of having links with al-Qaeda. In December 2002 they were moved to Afghanistan and in March 2003 transferred to Guantanamo Bay. Mr al-Rawi was not released from Guantanamo Bay until March 2007, with Mr el-Banna following in November 2007.

  1. These events have led to a total of seven court judgments, culminating in Al Rawi and Others v Security Service and Others [2011] UKSC 34; [2012] 1 AC 531. The Supreme Court held unanimously that there is no power at common law to replace public interest immunity (“PII”) – under which a judge decides whether in the public interest certain material should be excluded from a hearing – with a closed material procedure. A majority of the Supreme Court further held that there is no power at common law to introduce a closed material procedure following the conclusion of the normal PII process.

Mr Mohamed

  1. Mr Binyam Mohamed is an Ethiopian national who was given leave to remain in the UK (for four years) in 2001. In April 2002 the Pakistani authorities seized him at Karachi airport. Shortly afterwards, the US authorities informed the UK’s security services that they were holding Mr Mohamed and sought information about him. There is now no dispute that (i) Mr Mohamed was subject to serious mistreatment and torture while being “interrogated” in Pakistan; (ii) the UK authorities were sent a report by their US counterparts about Mr Mohamed’s treatment; and (iii) an officer of the UK security services also interviewed Mr Mohamed whilst he was being held in Pakistan. Mr Mohamed was subsequently moved to Morocco in July 2002, to Afghanistan in January 2004, being subject to further mistreatment in both countries, and then to Guantanamo Bay in September 2004. He was detained for a further four years before being charged with terrorism offences under the US Military Commissions Act. However, in November 2009 the District Court for the District of Columbia accepted Mr Mohamed’s account, describing his treatment as torture, and ruled that his confessions could not be used to detain him (Farhi Saeed Bin Mohamed v Obama, Civil Action No. 05.1347).

  1. These events have led to an even greater body of litigation in the UK courts (“the BM litigation”), resulting in seven Divisional Court and two Court of Appeal judgments. The first three Divisional Court judgments concerned Mr Mohamed’s application (in proceedings commenced in May 2008) that the UK Government should disclose certain documents on a confidential basis to his US lawyers. In August 2008 the Foreign Secretary provided the High Court with a PII certificate to the effect that it was in the public interest that the documents should not be so provided. However, in October 2008 Mr Mohamed’s US lawyers gained access to the relevant documents through habeas corpus proceedings in that jurisdiction.

  1. Thereafter, the only live issue in the BM litigation was whether the Divisional Court should restore seven short paragraphs to its first judgment (at [2008] EWHC 2048 (Admin)). This passage contained the gist of reports from the US authorities to the UK authorities as to Mr Mohamed’s detention and treatment between 2002 and 2004. The Foreign Secretary issued two further PII certificates in August and September 2008, asserting that the position of the US Government was that, if the paragraphs were published, then it would re-evaluate its intelligence sharing relationship with the UK Government, which would itself seriously prejudice UK national security. The Divisional Court in effect accepted those certificates in its fourth judgment, delivered on 4 February 2009 (R (on the application of Mohamed) v Secretary of State for Foreign & Commonwealth Affairs (No 2) [2009] EWHC 152 (Admin); [2009] 1 WLR 2653), concluding (at paragraph [107]) that:

“… In short, whatever views may be held as to the continuing threat made by the US Government to prevent a short summary of the treatment of BM being put into the public domain by this court, it would not, in all the circumstances we have set out and in the light of the action taken, be in the public interest to expose the United Kingdom to what the Foreign Secretary still considers to be the real risk of the loss of intelligence so vital to the safety of our day-to-day life. If the information in the redacted paragraphs which we consider so important to the rule of law, free...

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