Disclosure of Foreign Intelligence Material: CPIA, Norwich Pharmacal and the War on Terror
| Published date | 01 October 2011 |
| DOI | 10.1350/ijep.2011.15.4.386 |
| Author | Chris Taylor |
| Date | 01 October 2011 |
| Subject Matter | Article |
DISCLOSURE OF FOREIGN INTELLIGENCE MATERIAL
Disclosure of foreign
intelligence material:
CPIA, Norwich
Pharmacal and the
war on terror
By Chris Taylor*
Senior Lecturer, Bradford University Law School
Abstract The statutory regime for advance disclosure in criminal cases under
the Criminal Procedure and Investigations Act 1996 (CPIA) makes little express
provision for material which is held by third parties. This creates particular
problems in cases involving sensitive intelligence material produced, not by the
domestic security services, but by their foreign counterparts. In an attempt to
address this issue, the Norwich Pharmacal principle has been utilised as an
alternative mechanism to secure disclosure. This article considers the approach
of the courts in such cases and the extent to which this represents an additional
due process protection for defendants.
Keywords Prosecution disclosure; Foreign intelligence material; Public interest
immunity
ecent months have seen a number of developments in the long-running
saga of alleged UK involvement in the mistreatment of terror suspects
held in other countries. Growing acknowledgement of the complicity of
domestic security service personnel in such cases has resulted in a perceptible
shift in policy on the part of the government, as it seeks to restore public confi-
dence in UK involvement in the ‘war on terror’ and, inevitably, the focus has
turned to damage limitation.
doi:10.1350/ijep.2011.15.4.386
338 (2011) 15 E&P 338–356 THE INTERNATIONAL JOURNAL OF EVIDENCE & PROOF
R
* Email: c.w.taylor@bradford.ac.uk.
Perhaps the most dramatic evidence of this pragmatic approach comes with the
recent announcement of payments of over £10 million to a group of former
detainees.1The government has justified the payments as the most effective alter-
native to lengthy litigation which, it is argued, would ultimately prove more
costly to the taxpayer and which would, in the process, expose the workings of
the security services to even further unwelcome scrutiny. In addition, the
government has sought to demonstrate its commitment to rectifying past
mistakes by announcing an independent inquiry into the matter2and issuing new
guidance to UK intelligence and security personnel on the treatment of detainees
overseas.3Despite such measures, however, the debate continues against a
background of ongoing cases including that of Rangzieb Ahmed, who alleges
mistreatment by the Pakistani security services with MI5 complicity,4and Shaker
Aamer, who has now been held for almost a decade without charge by US author-
ities.5
The decision of the Court of Appeal in the case of Binyam Mohamed6was the final
chapter in a convoluted saga which has brought little credit on either the
domestic security services or the Crown. The case has served to highlight not only
the nature of the relationship between the domestic and US intelligence services,
but also the degree to which the government was prepared to eschew principles of
open justice to emphasise supposed solidarity between the UK and US govern-
ments and their respective intelligence communities. This article considers some
of the issues arising from the judgment in Mohamed and places this decision
within the broader context of prosecution disclosure as it applies to sensitive intel-
ligence material. In addition, it will offer some reflection on what, if any,
additional benefit the decision provides to defendants whose cases rely heavily on
such secret material, and who find themselves unable to secure disclosure under
the domestic statutory regime.
Within the criminal justice system of England and Wales, the process for advance
disclosure is governed by the Criminal Procedure and Investigations Act 1996
THE INTERNATIONAL JOURNAL OF EVIDENCE & PROOF 339
DISCLOSURE OF FOREIGN INTELLIGENCE MATERIAL
1 ‘Taxpayers foot £10m bill for Guantanamo inmates’, The Times, 16 November 2010.
2 On 6 July 2010.
3 Consolidated Guidance to Intelligence Officers and Service Personnel on the Detention and
Interviewing of Detainees Overseas, and on the Passing and Receipt of Intelligence Relating to
Detainees (Cabinet Office: London, July 2010), available at <http://download.cabinetoffice.gov.uk/
intelligence/consolidated-guidance-iosp.pdf>, accessed 6 August 2011.
4 ‘Torture victim to challenge terror verdict’, Guardian, 24 June 2010.
5‘Police to interview last Briton in Guantánamo over “torture”: Government pushes for release of
Shaker Aamer. Detainee is key witness in inquiry into MI5 activity’, Guardian, 20 November 2010.
6R (on the application of Mohamed) vSecretary of State for Foreign and Commonwealth Affairs [2010] EWCA
Civ 65, [2011] QB 218.
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