Chowdhury Mueen-Uddin v Secretary of State for the Home Department

Hearing dates: 21 st and 22 nd October 2021

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 is the hearing of an application by the Defendant to strike out the claim or for summary judgment in her favour of the claim brought by the Claimant in libel and Data Protection.

The nature of the claim in summary

Within the Home Office there is the Commission for Countering Extremism (‘the Commission’). The Commission is a non-statutory body expert committee of the Home Office. It was chaired by Sara Khan, who was the Lead Commissioner. In October 2019 the Commission published a report entitled ‘Challenging Hateful Extremism’ (‘the Report’). The Report was published in hard copy and was also available on-line. It was 144 pages long. Two passages in the Report give rise to the present proceedings.

The first was on p.54 of the Report which said,

‘We also heard about violence towards secular people from those of a similar faith background. Muslim bloggers described being physically attacked during a protest in East London. The protest was to show support for the conviction of a senior Jamaat-e-Islami leader for war crimes committed during the 1971 War of Independence [footnote 158]. Some of those we spoke to are in hiding […]

The second passage in the Commission's Report which gives rise to these proceedings was footnote 158 which said,

‘Links between those responsible for the violence in 1971 and JI [i.e. Jamaat-e-Islami] in the UK including community leadership in East London are well established. Chowdhury Mueen Uddin, former vice chair of the East London Mosque and who helped found the Muslim Council of Great Britain was found guilty of crimes against humanity following a trial in absentia: See: Channel 4. 2013. ‘British Muslim leader sentenced to death for war crimes 3 November 2013 (accessed 4 September 2019) https;//www.channel4.com/news/Chowdhury-mueen-uddin-warcrimes-london-mulsim.’

The Defendant is the Secretary of State for the Home Department. It may be that the proper Defendant is actually the Home Office (see Crown Proceedings Act 1947 s.18 and CPR Practice Direction to Part 66), but this procedural nicety forms no part of the strike out application or application for summary judgment. The claim is attacked whether it is the Secretary of State who is sued or the Home Office.

Factual Background

The Claimant was born in what was then East Pakistan and is now Bangladesh. He became a journalist and was employed as a reporter for the ‘Daily Purbadesh’.

As a student in 1965 the Claimant had joined an organisation called ‘Islami Chatra Sangha’ (‘ICS’) which the Claimant describes as an Islamic student organisation, the mission of which was to share Islamic values and teachings with other students in order to gain the pleasure of Allah. In 1970 he became publication and publicity secretary of ICS. He says that he ceased to be Publication and Publicity Secretary of ICS in 1969 (this is the information that the Claimant gives in paragraph 13 of his 1 ^st witness statement although the date is before he says he was appointed to that post (see paragraph 12 of the same statement) and he resigned as a member of ICS in 1971. He says that ICS was perceived by many to be the student wing of Jaamat-e-Islami, (‘JEI’), a Bangladesh political party. He says that on occasions, he himself has referred to it as such, but he says, they are separate organisations and there was no organisational link between the two.

Bangladesh achieved independence from Pakistan in 1971. It was a turbulent and violent process. One particular incident took place in 1971 when 18 or so intellectuals were murdered. The Claimant says that he was opposed to Bangladesh separating from Pakistan, but he did not take part in any violence. In particular, he denies any involvement in the murder of the 18 intellectuals.

Bangladesh achieved its independence from Pakistan in 1971. It has, of course, since then been an independent country.

The Claimant left Bangladesh in 1971. He travelled via India and Nepal. He arrived in the UK in 1973. He has made the UK his home since then. In 1996 Channel 4 broadcast a documentary in the Dispatches series which accused the Claimant of taking part in war crimes during the Bangladesh war of independence (see War Crimes Files). The Claimant says that he brought libel proceedings against the broadcaster ‘but I did not have the financial resources at the time to pursue the case to trial which therefore ended without either side paying the other's costs.’ The Claimant did travel to Bangladesh on a number of occasions, including after Channel 4 Dispatches programme was broadcast.

In 1973 Bangladesh passed the International Crimes (Tribunals) Act 1973 which established the International Crimes Tribunal (‘ICT’). The Act conferred the power on the Tribunal to pass the death penalty (see s.20(2) of the 1973 Act). As the Tribunal itself has made clear, despite its name, it is not an international criminal court but a creature of Bangladesh's domestic legal system.

I understand that the ICT was essentially dormant until about 2008 when the Awami League was elected to government in Bangladesh on a platform that the ICT would start to take cases.

In 1984 the Claimant was naturalised as a British Citizen.

One of those investigated for offences during Bangladesh's war of independence was the Claimant. He was prosecuted before the ICT for 11 charges contrary to the International Crimes (Tribunals) Act 1973 (as amended). The charges were of a most serious kind and included crimes against humanity. Essentially, they arose out of the murder of the 18 intellectuals in 1971.

So far as the Claimant has been able to establish, his extradition was never sought for the trial. Since the Tribunal had the power to pass the death penalty, the Claimant could not, in any event, have been extradited absent an assurance that the death penalty would not have been passed, or, if passed, would not have been carried out in his case (see Extradition Act 2003 s.94). The Claimant did not attend his trial voluntarily. The trial took place between 15 ^th July 2013 and 30 ^th November 2013. Some 23 lay witnesses gave evidence. The trial took place in the absence of the Claimant and his co-accused. State defence counsel was appointed to represent each of them. The Claimant says that his counsel never made contact with him.

Judgment was delivered by the Tribunal on 3 ^rd November 2013. The Claimant was convicted and sentenced to death. It does not appear that the Claimant sought to challenge his conviction or sentence by way of appeal. Inevitably, the trial attracted a great deal of publicity, as did the Claimant's conviction and sentence, including within the U.K. Thus, for instance, the Claimant's entry on Wikipedia introduces him as ‘convicted war criminal for the killing of Bengali intellectuals in collusion with Pakistan army at the time of Bangladesh liberation war.’

In 2017 Interpol issued a ‘red notice’ (asking national police forces to arrest the Claimant), but, on the Claimant's application, this was withdrawn on 13 ^th November 2018 (see decision CF/R 676.17).

As I have said, the Report of the Commission was published in October 2019. 4,982 copies of the report were downloaded, but, Mr Hudson submitted, that did not mean that all of those who downloaded the report read the words complained of. 80 hard copies were distributed.

Procedural background

The Claim Form was issued on 19 ^th June 2020. It was served with Particulars of Claim on the same date.

The claim relied on libel in respect of the two passages which I have mentioned. It also alleged that the Report had infringed the Claimant's rights under the General Data Protection Regulation (‘GDPR’) and specifically Article 5 (on the grounds that the Report was inaccurate, because the Claimant had not committed war crimes and had never been a senior leader of Jaamat-e-Islami); Article 6 of the GDPR (on the grounds that none of the permitted circumstances applied) and Article 10 of the GDPR (since none of the exceptions permitting publication of criminal convictions applied).

In consequence of pre-action correspondence between the parties, the on-line version of the Report was amended on 20 ^th March 2020 to delete the reference to the Claimant in footnote 158 and to delete the sentence which referred to the footnote [‘the amended on-line report’]. The claim only relates to the original hard copy and the original on-line report (i.e. before its amendment).

By a consent order of Master Brown of 30 ^th September 2020, it was ordered that there should be a trial of a preliminary issue, namely the natural and ordinary meaning of the words complained of, and whether the words complained of conveyed the information alleged in the Particulars of Claim for the purposes of the GDPR.

By consent the preliminary issues also extended to whether the words complained of were defamatory of the Claimant at common law.

The preliminary issue trial was conducted by Tipples J. who gave her judgment on 16 ^th February 2021 – see [2021] EWHC 269 (QB).

She found that there was no difference between the meaning of the hard...