Chowdhury Mueen-Uddin v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Phillips,Lord Justice Dingemans |
| Judgment Date | 28 July 2022 |
| Neutral Citation | [2022] EWCA Civ 1073 |
| Docket Number | Case No: CA-2021-003264 |
| Court | Court of Appeal (Civil Division) |
[2022] EWCA Civ 1073
PRESIDENT OF THE QUEEN'S BENCH DIVISION
Lord Justice Dingemans
and
Lord Justice Phillips
Case No: CA-2021-003264
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
MEDIA AND COMMUNICATIONS LIST
Sir Andrew Nicol (sitting as a Judge of the High Court)
Royal Courts of Justice
Strand, London, WC2A 2LL
Jacob Dean (instructed by Carter-Ruck) for the Claimant
Anthony Hudson QC, Ben Silverstone and Robbie Stern (instructed by Government Legal Department) for the Respondent
Hearing dates: 9 and 10 June 2022
Approved Judgment
This judgment was handed down remotely by circulation to the parties' representatives by email and released to The National Archives. The date and time for hand-down is deemed to be 10.45 hrs on 28 July 2022.
Introduction
This is an appeal from the order dated 15 November 2021 of Sir Andrew Nicol, sitting as a Judge of the High Court (“the judge”). The judge had struck out, as an abuse of process, claims for libel and for breach of the General Data Protection Regulation (“GDPR”) and Data Protection Act 2018 (“ DPA 2018”) brought by the appellant and claimant Chowdhury Mueen-Uddin against the respondent and defendant Secretary of State for the Home Department (“the Secretary of State”).
The claims arise in respect of a report by the Commission for Countering Extremism (“the Commission”) entitled “Challenging Hateful Extremism” (“the report”). The report which runs to 144 pages was published both in hard copy and online on 7 October 2019. The Commission is a non-statutory expert committee of the Home Office which was formed to study, report and advise the Government on the threat of extremist behaviour.
The material part of the report which gave rise to the claims in libel and data protection is set out at page 54 of the report. In the text of the report there was reference to violence against Muslim bloggers who were showing support for the fact that a senior Jamaat-e-Islami leader had been convicted of war crimes committed during the war of independence in 1971. It is common ground that this was a reference to the Bangladesh war of independence in 1971. In the 144 page report, at page 54 and footnote 158 it was stated that “links between those responsible for the violence in 1971 and JI 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.” There was a link to Channel 4 coverage of this conviction in 2013 on a webpage headed “British Muslim leader sentenced to death for war crimes”, which webpage itself had a link to further coverage.
It appears that some 80 copies of the report were published in hard copy, and the report was downloaded in pdf form some 4,982 times. At paragraph 10 of the Amended Particulars of Claim it was pleaded that Mr Mueen-Uddin had been contacted by numerous colleagues and associates who had read the report and the allegations about him contained within it. No further details about this were given in Mr Mueen-Uddin's witness statement.
In a judgment dated 16 February 2021 Tipples J. held that the natural and ordinary meaning of the hard copy and online reports was that Mr Mueen-Uddin: “was one of those responsible for war crimes committed during a War of Independence in 1971; and had committed crimes against humanity during a 1971 War of Independence in South Asia”. The claim made under the GDPR and DPA 2018 was that statements made in the report were not accurate and therefore infringed the accuracy principle, and there was a separate claim that the data was not processed for permitted purposes.
Some relevant background
The judge summarised relevant facts in his judgment and the parties helpfully produced a chronology of relevant events and produced extracts of relevant newspaper reports. Mr Mueen-Uddin was born in East Pakistan, which is now Bangladesh. He became a journalist and reporter for the “Daily Purbadesh”.
In 1965, when he was a student, Mr Mueen-Uddin joined the Islami Chatra Sangha (“ICS”). He was publication and publicity secretary of ICS until 1969.
Bangladesh achieved independence from Pakistan in 1971 in what the judge described as a violent and bloody process. In the final nights of the Bangladesh War of Independence, which ended on 17 December 1971, prominent Bengali professors, doctors, lawyers and journalists (collectively referred to as “the intellectuals”) were rounded up in Dhaka city by members of a group known as Al-Badar which was supporting the Pakistan army fighting against an independent Bangladesh. 18 of the intellectuals were murdered.
Mr Mueen-Uddin left Bangladesh on 28 December 1971. He said he became aware that allegations had been made by an individual that he was a member of Al-Badar and responsible for the abduction and killing of the intellectuals. Mr Mueen-Uddin said he did not know why he had been accused of the murder of the intellectuals. Mr Mueen-Uddin did not feel safe in Bangladesh, and so he left.
It is only fair to record at this stage of the proceedings, before a defence has been pleaded or Mr Mueen-Uddin has served a reply to the defence, that Mr Mueen-Uddin denies any involvement with the murder of the intellectuals. Mr Mueen-Uddin says that he had been a member of the ICS. ICS was understood by many to be the student wing of Jamaat-e-Islami (“JEI”), which opposed the establishment of Bangladesh. Mr Mueen-Uddin said he had resigned his membership in June 1971 after the Pakistan military had launched a crackdown against pro-independence activists in March 1971 which Mr Mueen-Uddin said should have been condemned by the ICS but which the ICS had said nothing about. Mr Mueen-Uddin said he was opposed to Bangladesh separating from Pakistan, but he did not take part in any violence.
From 22 December 1971 newspaper articles were published in Bangladesh accusing Mr Mueen-Uddin of having been involved in the murder of the intellectuals. From January 1972 these reports were being published around the world, including in the New York Times on 3 January 1972.
In 1973 Bangladesh established the International Crimes Tribunal pursuant to the International Crimes (Tribunals) Act 1973 enacted by the Bangladesh Parliament. The International Crimes Tribunal was to provide for the detention, trial and punishment of persons responsible for genocide, crimes against humanity, war crimes and crimes committed in Bangladesh in violation of customary international law.
Mr Mueen-Uddin travelled via India and Nepal and arrived in the UK in June 1973. He said he reported to the Home Office that allegations had been made against him. He said he was interviewed by the Home Office, but nothing was found to support the allegations made against him and he was encouraged to apply for British citizenship. Since 1973 Mr Mueen-Uddin has been living in London as an active and engaged member of British society. He visited Bangladesh on a number of occasions from 1982. He became a British citizen in 1984.
In 1995 in a Channel 4 Dispatches programme called “War Crimes Files” Mr Mueen-Uddin was accused of taking part in the murder of the intellectuals. There were interviews with eye witnesses. It is apparent from the supplementary bundle that this was still available on You Tube on 10 February 2013, and paragraph 32 of the first witness statement of Jackie Omeni of the Government Legal Department (“GLD”) suggests that the programme is still hosted on a website. The programme makers said that they would pass on the evidence that they had collected against Mr Mueen-Uddin to the Attorney-General and the Metropolitan Police War Crimes Unit. The War Crimes Unit wrote by letter dated 18 July 1996 stating that although it had been concluded that the UK authorities did have jurisdiction in respect of any grave breaches of the 1949 Geneva Conventions, Bangladesh had primary jurisdiction. The information was passed on to authorities in Bangladesh.
Mr Mueen-Uddin commenced a libel action against Channel 4. He stated, however, in his witness statement for this action that “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”.
In 1997 a First Information Report, or complaint, was made in Bangladesh to the police in Ramna, Dhaka to the effect that Mr Mueen-Uddin was involved in the killing of the intellectuals. It does not appear that any action was taken at that time as a result of the report.
As appears above, the International Crimes Tribunal was a domestic Bangladesh Tribunal, and it had the power to impose the death penalty. The International Crimes Tribunal was dormant for many years. Following an election of the Awami League in 2009 the International Crimes Tribunal in Bangladesh was reinvigorated. The strict rules of evidence were disapplied by statute for proceedings before the International Crimes Tribunal and it was provided that the International Crimes Tribunal could rely on newspaper reports.
Mr Mueen-Uddin was told that he was being investigated in Bangladesh. These developments were reported in the Daily Telegraph on 15 April 2012 under the heading “Leading British Muslim leader faces war crimes charges in Bangladesh”. In the article Mr Mueen-Uddin's denials of any involvement in any abductions was reported, together with the Chief Investigator's comments that there was prima facie evidence that Mr Mueen-Uddin was involved in a series of killings of intellectuals. The Bangladesh...
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