Disclosure of Foreign Intelligence Material: CPIA, Norwich Pharmacal and the War on Terror

Published date01 October 2011
DOI10.1350/ijep.2011.15.4.386
Date01 October 2011
Subject MatterArticle
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
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
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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
intelligence/consolidated-guidance-iosp.pdf>, accessed 6 August 2011.
4 ‘Torture victim to challenge terror verdict’, Guardian, 24 June 2010.
5Police 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.
(CPIA).7This replaced the previous Attorney-General’s Guidelines8with a statutory
regime which requires the disclosure officer for each investigation to compile
separate schedules for both non-sensitive9and sensitive10 unused material. The
former is disclosed to the defence,11 the latter remains with the Crown Prosecution
Service (CPS) which may seek to oppose disclosure of some or all of the documents
detailed in the schedule by means of an application for public interest immunity
(PII).12 Unlike the disclosure of non-sensitive unused material, such applications
continue to be governed by the common law.13 It is this procedure which is
routinely employed to protect the identity of informants and other covert human
intelligence sources and safeguard operational intelligence-gathering techniques.
Inevitably, similar concerns arise in those cases which involve the use of highly
sensitive material from the Security Service (MI5) and the Secret Intelligence
Service (MI6). At the outset it is important to recognise that, as with the police,
both intelligence agencies are subject to the disclosure regime and so material
emanating from such sources will fall to be disclosed where it meets the tests
imposed under CPIA. The Security Service Act 1989 places a duty on the
Director-General of the Security Service to ensure that material obtained by the
Service is not ‘disclosed by it except so far as necessary for that purpose or for the
purpose of the prevention or detection of serious crime or for the purpose of any
criminal proceedings.14 The Intelligence Services Act 1994 places a similar duty on
the Chief of the Secret Intelligence Service.15 This is reiterated by the
Counter-Terrorism Act 2008 in relation to both the Security Service16 and the
Secret Intelligence Service.17 Similarly, the product of covert surveillance under
disclosure provisions.18
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7 As amended by the Criminal Justice Act 2003 and in conjunction with the revised
Attorney-General’s Guidelines and Code for Crown Prosecutors.
9 MG6C.
10 MG6D.
11 Subjectto the test of relevance imposed by CPIA.
14 CPIA,s. 2 (emphasis added).
15 CPIA,s. 2(2)(a)(iv).
18 ‘Theproduct of the surveillance described in this code is subject to the ordinary rules for retention
and disclosure of material under the Criminal Procedure and Investigations Act 1996, where those
rules apply to the law enforcement body in question’: Covert Surveillance Code of Practice 2002,
para. 1.8. Note, however, the restrictions on the use of telephone intercept evidence imposed by
Having established that material generated by the security services does poten-
tially fall to be disclosed, such matters usually arise within the context of domestic
criminal prosecutions, where requests are governed by CPIA and are resisted by
the prosecution by means of an application for PII. In considering the operation of
CPIA disclosure, however, it is important to recognise that the prosecution duty is,
effectively, restricted to material within the United Kingdom. In the vast majority
of cases, disclosure is unlikely to cause difficulty. In cases of alleged terrorism
offences, however, there is every possibility that the prosecution will involve
material which has either been produced by, or is in the possession of, foreign
security services. This raises important questions relating to the ownership and
disclosure of such material, such as to what extent is the prosecution required to
secure the disclosure of such material and what is the impact on the reliability of
any prosecution if such disclosure proves impossible to achieve?
In RvH and C19 the House of Lords set out the approach to be adopted by the court
in considering applications for PII. However, this is based on the assumption that
the prosecution has the material and wishes to prevent its disclosure to the
defence. It should be noted that the checklist in RvH and C does not expressly
address those instances where the prosecution does not have the disputed
material because of a third party refusal to make it available. As has already been
indicated, material which emanates from the domestic intelligence services is
subject to the provisions of CPIA. One anomaly of CPIA, however, is that it imposes
no direct disclosure obligations on third parties, which raises the question of
whether material generated and held by the security services can be viewed as
‘third party material’ for the purposes of CPIA. The judgment in AvB (Investigatory
Powers Tribunal: Jurisdiction)20 would suggest not. In this case, the court was clear
that ‘all the intelligence services are emanations of the Crown. None has indi-
vidual legal personality’.21
Where relevant material is held by a third party within the United Kingdom, the
standard mechanism for securing disclosure is by means of a witness summons
of the Magistrates’ Courts Act 1980. Although such orders are reasonably effective
against individuals or organisations within the United Kingdom, their use is
clearly problematic in those instances where material is held by foreign author-
ities. The matter was considered by the Court of Appeal in RvRF22 where it was
acknowledged that CPIA makes no express provision for material held overseas,
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21 Ibid. at 29, per Laws LJ.
22 [2009] EWCA Crim 682, [2010] 1 Cr App R 30.
whether by individuals, companies or foreign security agencies. The unenforce-
ability of witness summonses left only ‘letter of request’, international convention
and the provisions of the Crime (International Co-operation) Act 200323 as possible
mechanisms for securing the material in question from a foreign state outside the
EU. Of course, as the court in RvRF acknowledged,24 there are varying degrees of
non-cooperation in such cases. A foreign authority may flatly refuse to allow UK
investigators sight of the requested material. Alternatively, the foreign authority
may permit its examination by investigators, but refuse to allow it to be disclosed
to the defence. However, even this distinction raises difficulties when considered
in light of the prosecution duty under CPIA to disclose ‘prosecution material’
which includes not only material in the possession of the prosecutor, but also
material that ‘he has inspected in connection with the case for the prosecution
against the accused’.25
This leaves the question of whether the courts would permit a trial to continue
where there is material held abroad which would be of use to the defence but
which cannot be produced due to the non-cooperation of a foreign authority. As is
well recognised, the standard position in the domestic courts is that the trial
would usually be discontinued if the trial judge concluded that the accused could
not receive a fair trial without disclosure of the sensitive material in the
possession of the prosecution. In RvAlibhai,26 however,the Court of Appeal was
prepared to ignore the prosecution’s failure to secure disclosure from the United
States. This was on the basis of a ‘margin of consideration’ which, it was argued,
afforded the prosecution a degree of latitude in relation to the appropriate steps
to be taken in securing material from foreign authorities. In reaching this
conclusion the court emphasised not the refusal of the foreign authority to hand
over the disputed material, but rather the failure of the domestic prosecutor to
fulfil its obligations under CPIA: ‘If criticism is to be made of a failure to secure
third party disclosure, it would have to be shown that the prosecutor did not act
within the permissible limits afforded by the Guidelines.’27
This is a somewhat curious logic and seems to ignore the central point that, in
such cases, the question of whether the investigator has or has not fulfilled its
obligation to pursue all reasonable lines of inquiry is secondary to the refusal of
the foreign third party to release the material in question. The investigator and
prosecutor may fulfil their duties under CPIA, but this does not detract from the
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23 Section 7.
24 [2009] EWCA Crim 682, [2010] 1 Cr App R 30 at [36].
27 Ibid. at [63].
threat to the due process rights of the accused which is posed by a refusal to
provide such material. Despite this, the court in Alibhai made a direct link between
the fairness or otherwise of the trial and the extent to which the prosecutor had
fulfilled its obligations: ‘In so far as [the appellant] suggests that the trial was
unfair because of breach of the Guidelines, it is important to bear in mind the
limits upon what was required of the prosecutor under the Guidelines.’28
The court in RvRF defined the duty of the Crown in the following terms:
There is no breach by the Crown in its duty of disclosure by reason of
its failure to obtain or list such documentation, provided reasonable
steps have been taken to try to obtain the documents or as much infor-
mation as can be obtained about them.29
A related issue raised as part of the Crown case, but, unfortunately, not fully
considered by the court in RvRF, was the degree to which inspection of foreign
intelligence documents by investigators brought the material within the
definition of ‘prosecution material’ for the purposes of CPIA and so requiring
disclosure under s. 3 or s. 7A.30 Here the Crown emphasised the definition of ‘prose-
cution material’ under CPIA as that ‘which is in the prosecutor’s possession’31 or
‘[which] he has inspected’,32 arguing that neither criterion was satisfied when the
material in question was inspected by investigators rather than the prosecutor.
There is, however, a broader category of ‘prosecution material’ provided by s. 8(4)
which extends the s. 3 definition to include that which ‘if in pursuance of a code
operative under Part II the prosecutor must, if he asks for the material, be given a
copy of it or be allowed to inspect it’. This raises the question of whether this right
to inspect is contingent on actual possession of the material by investigators or,
alternatively, whether it also includes material which has been assessed as
relevant to the case by investigators and which would have to be passed to the
prosecutor under s. 8(4) were it in their possession.
On this point, dicta from Ouseley J in DPP vWood;DPP vMcGillicuddy33 appeared to
reject this suggestion in the context of Intoximeter records, on the grounds that
‘Paragraphs 7.4 and 10.1 [of the Code of Practice] clearly contemplate that this
disclosure comes from material held by the investigator or by the Disclosure
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29 [2009] EWCA Crim 682, [2010] 1 Cr App R 30 at [38].
30 Subject, once again, to satisfying the test of relevance imposed under CPIA and Codes of Practice.
Officer. Material is not “prosecution material” within s 8(4) unless it is so held’.34
However, this is a question which may require further examination by the courts,
particularly given the approach of the CPS towards foreign intelligence material
articulated in RvRF.
It was the position adopted by the CPS in such cases that if the
material was material inspected by the police, there was no duty to
disclose it, but that if it was inspected by the prosecutor, there was a
duty to disclose even if the overseas authorities would not permit it to
be released for disclosure.35
There are clearly dangers in such a narrow interpretation of the provisions, since
it allows the CPS to assert that relevant material which prosecutors are aware
of and which potentially undermines the prosecution case or assists the defence
does not fall within the disclosure duty, on the basis that it has been inspected by
an investigator, rather than a CPS prosecutor. This is a somewhat tenuous
distinction, particularly as the investigator may well also be the disclosure officer
in the investigation and, as such, is required to assess both the relevance and
possible impact of the material on the case, not least for the purpose of compiling
the schedules of unused material. Even the court in RvRF found it difficult to
accept the argument that there was a credible distinction to be made between
investigator and prosecutor in the context of inspection of documents within a
foreign jurisdiction.36 There is, of course, another possibility that could apply
where UK investigators are allowed to inspect documents held by a foreign state,
but not to remove or to copy them. Presumably there is nothing to prevent officers
from compiling a subsequent note of the key contents (depending on the
complexity of the documents concerned) as envisaged by the Disclosure Code of
Practice37 and submitting this record to the prosecutor. This may be as simple as a
PNB entry and need only be compiled ‘as soon as practicable’ after its inspection.38
In assessing such cases there is an additional complicating factor in that it is
common ground that material only falls to be disclosed where it satisfies the test
imposed by CPIA in that it might reasonably be considered capable of under-
mining the case for the prosecution against the accused or of assisting the case for
the accused.39 In addition, as acknowledged in the Criminal Procedure Rules, the
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34 Ibid. at [55].
35 [2009] EWCA Crim 682, [2010] 1 Cr App R 30 at [41].
36 Ibid. at [42].
37 Disclosure Code of Practice, para. 4.1.
38 Ibid. at para. 4.4.
39 CPIA, ss. 3(1)(a) and 7A(2)(a).
provisions relating to witness summonses under both s. 2 of the Criminal Proced-
ure (Attendance of Witnesses) Act 1965 and s. 97 of the Magistrates’ Courts Act
1980 apply only where the material in question would be immediately admissible
in evidence.40 Once again this poses particular difficulties where a foreign admin-
istration refuses access.
Notwithstanding the successful application of the CPIA disclosure regime in cases
involving sensitive unused material emanating from the security services, the
decision in Mohamed required a different mechanism to achieve disclosure of the
required material. Mohamed is an Ethiopian national who was given exceptional
leave to remain in the United Kingdom in 2000. He was arrested, travelling on a
fake passport, while attempting to board a flight to London from Pakistan in 2002.
He was ultimately transferred to the US base at Guantánamo Bay in 2004. In 2008
he was charged with terrorism offences which potentially carried the death
penalty. During his detention, Mohamed made a series of admissions which he
alleged had been obtained as a result of cruel, inhuman and degrading treatment
amounting to torture at the hands of Pakistani and US authorities with the
implicit knowledge of UK intelligence agencies. The application centred on seven
redacted paragraphs produced by US intelligence officials which detailed the
treatment of Mohamed during his time in custody and which supported his claim
of mistreatment.
Because Mohamed was not facing trial in the United Kingdom there was no
mechanism for achieving disclosure under the CPIA regime. As a result, disclosure
was achieved by means of a Norwich Pharmacal order, following the principle in
Norwich Pharmacal Co. vCustoms and Excise Commissioners41 in which it was held that
if through no fault of his own a person gets mixed up in the tortious
acts of others so as to facilitate their wrongdoing he may incur no
personal liability but he comes under a duty to assist the person who
has been wronged by giving him full information and disclosing the
identity of the wrongdoers.42
This has proved to be an extremely useful order in cases where potentially
valuable evidence is in the hands of third parties and, over time, the principle has
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40 RvReading Justices, ex p. Berkshire County Council [1996] 1 Cr App R 239; RvDerby Magistrates’ Court, exp.
B[1996] AC 487, although it should be noted that this isnot directly linked to the test of ‘relevance’
contained in either CPIA or the associated Codes of Practice.
41 [1974] AC 133, [1973] 3 WLR 164. See also Ashworth Security Hospital vMGN Ltd [2002]UKHL 29, [2002] 1
WLR 2033.
42 [1974] AC 133 at 175, per Lord Reid.
been extended from tortious liability to other forms of action, such as breach of
contract.43 It has, however, most usually applied to cases of commercial confiden-
tiality44 or, more recently, to identify journalistic sources45 or the origins of
internet postings.46 Using such an order to secure the disclosure of sensitive intelli-
gence material originating from a foreign security service represented a
significant extension of the principle which the Divisional Court in Mohamed
acknowledged in its first judgment as ‘an exceptional remedy’, concluding that its
application to the present circumstances was ‘unprecedented’.47 It did, however,
provide a remedy where disclosure could not be secured under CPIA and where the
court had already rejected arguments that the government was required to
disclose the redacted paragraphs under customary international law.48
Traditionally, there are three requirements for Norwich Pharmacal relief: first, a
wrong must have been carried out, or arguably carried out, by the ultimate
wrongdoer; secondly, there must be a need for an order to enable an action to be
brought against the ultimate wrongdoer; and thirdly, the party against whom the
order is sought must have facilitated the wrongdoing and be able or likely to be
able to provide the information necessary to enable the ultimate wrongdoer to be
sued.49 There is no requirement that the material be required for the purposes of
pending legal proceedings, providing that the existence of a cause of action is
established50 and this raises the question of whether there exists any requirement
of necessity in terms of the availability of Norwich Pharmacal relief, that is to say,
whether there exists any requirement that disclosure of the information in
question must be essential to the claimant’s case and unobtainable by other
means in order to justify an order. Although the court in Norwich Pharmacal itself
made no reference to any such necessity, subsequent decisions suggest otherwise,
viewing such orders very much as a remedy of last resort.51
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43 PvT Ltd [1997] 4 All ER 200; Carlton Film Distributors Ltd vVCI plc [2003] FSR 47.
44 See, e.g., Campaign against Arms Trade vBAE Systems plc [2007] EWHC 330 (QB).
45 Interbrew SA vFinancial Times [2002] EWCA Civ 274.
46 Totalise plc vMotley Fool Ltd [2001] EWCA Civ 1897; Applause Store Productions Ltd vRaphael [2008] EWHC
1781; GvWikimedia Foundation Inc [2009] EWHC 3148 (QB); Smith vADVFN Plc [2008] All ER (D) 193
(Mar). For a recent consideration of Norwich Pharmacal orders with particular reference to corporate
cases, see S. Paterson and A. FitzHerbert, ‘From Guantanamo Bay to Outer Space: Developments in
Norwich Pharmacal relief’ (2010) 29 Civil Justice Quarterly 38.
47 R (on the application of Mohamed) vSecretary of State for Foreign and Commonwealth Affairs [2008] EWHC
2048 (Admin), [2009] 1 WLR 2579 at [147] (the ‘first judgment’).
48 Ibid.
49 Mitsui & Co. Ltd vNexen Petroleum UK Ltd [2005] EWHC 625.
50 British Steel Corporation vGranada Television Ltd [1981] AC 1096 at 1132, per Templeman LJ.
51 Mitsui & Co. Ltd vNexen Petroleum UK Ltd [2005] EWHC 625. See also Nikitin vRichards Butler LLP [2007]
EWHC 173 (QB).
In Mohamed, however, the Divisional Court favoured the more holistic approach
adopted by King J in Campaign against Arms Trade vBAE Systems plc,52 which
considered not only the need for the disputed material, but whether an order
represented ‘a necessary and proportionate response in all the circumstances’.53
This required the court to consider ‘all the circumstances … including for example
the size and resources of the Applicant as an organisation, and the urgency of its
need to obtain the information it requires, and any public interest in it having its
need satisfied’.54
The decision by the Court of Appeal in Mohamed was the culmination of a series of
judgments of the Divisional Court,55 during the course of which the government
opposed disclosure of the seven disputed paragraphs by means of three separate
PII applications.56 Furthermore, a number of the hearings also involved the use of
special advocates to represent the interests of Mohamed which further complicated
proceedings and, in reaching its decision, the Court of Appeal drew particular
attention to the case management order made by the Divisional Court on 26 June
2008. This provided that both the government and the special advocate were to be
given advance copies of any proposed open judgment in order to permit any repre-
sentations that material should be removed from the judgment on grounds of
public interest, a process which the court concluded had subsequently ‘taken on a
life of its own’.57
Notwithstanding such efforts, however, the final decision in the case was influ-
enced as much by events in the United States as by domestic jurisprudence. On
19 November 2009, shortly after the final judgment of the Divisional Court, the
District Court for the District of Columbia delivered its judgment in Farhi Saeed Bin
Mohamed vBarack Obama.58 This was one of a number of such cases heard following
the decision in Boumediene vBush59 in which the US Supreme Court conferred juris-
diction on the federal district courts to hear habeas corpus petitions brought under
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52 [2007] EWHC 330 (QB) at [15]–[20]. See also President of the State of Equatorial Guinea vRoyal Bank of
Scotland International [2006] UKPC 7.
54 Ibid. at [20]. Expressed by Templeman LJ in British Steel Corporation vGranada Television Ltd [1981] AC
1096 at 1132 as ‘intended in the final analysis to enable justice to be done’.
55 21 August 2008 ([2008] EWHC 2048 (Admin)); 29 August 2008 ([2008] EWHC 2100 (Admin)); 22
October 2008 ([2008] EWHC 2519 (Admin)); 4 February 2009 ([2009] EWHC 152 (Admin)); 31 July 2009
([2009] EWHC 2048 (Admin)); 16 October 2009 ([2009] EWHC 2549 (Admin)); 19 November 2009
56 27 August 2008; 5 September 2008; and 15 May 2009.
57 R (on the application of Mohamed) vSecretary of State for Foreign and Commonwealth Affairs [2010] EWCA
Civ 65, [2011] QB 218 at [217].
58 Civil Action No. 05-1347 (GK).
59 553 US 128 S Ct 2229 (2008).
Article I of the Constitution by Guantánamo detainees, none of whom were
citizens of the United States. Much of the State’s evidence justifying the further
detention of Farhi Saeed Bin Mohamed was based on evidence provided by Binyam
Mohamed and so, in granting the writ of habeas corpus, Judge Kessler was required
to consider in detail the allegations of mistreatment which were also before the
Divisional Court. Having done so, the judge noted that, ‘The Government does not
challenge or deny the accuracy of Binyam Mohamed’s story of brutal treatment’.60
The graphic detail of the allegations contained in the memorandum opinion of
Judge Kessler, together with the US government’s tacit acceptance of the account,
rendered pointless any further suppression of the redacted paragraphs.
In the domestic courts, however, the suggestion that UK security service personnel
had been complicit in the mistreatment of Binyam Mohamed meant that the
Divisional Court was mindful, not only of the rights of Mohamed, but also of the
wider significance of suppressing the redacted paragraphs, ‘particularly given the
constitutional importance of the prohibition against torture and its historic link
… in this jurisdiction to the necessity of open justice’.61 However, an examination
of the various judgments of the Divisional Court and the final judgment of the
Court of Appeal raises some interesting issues regarding both the treatment of
such material and the sometimes tenuous arguments advanced by the Crown. For
example, in resisting disclosure of the redacted paragraphs, the Crown placed
considerable emphasis on the ‘control principle’ which applies to the exchange of
sensitive intelligence material between the UK security services and their counter-
parts in other countries. Under this doctrine, which it is important to recognise as
a mere understanding between states rather than a legal obligation, the confiden-
tiality of sensitive intelligence material remains with the country which provides
the information, rather than with the country which receives it. For this reason, it
is argued that any disclosure of such material by the recipient state requires the
express consent of the donor state. It was this principle, rather than the sensitive
content of the redacted paragraphs, which formed the basis of the UK objection to
disclosure. In this way the government sought to invoke PII not to protect sensitive
material but rather to protect the control principle itself.
It was this, somewhat questionable, logic which led to the continued government
resistance to disclosure of the redacted paragraphs even though the torture of
Binyam Mohamed had been publicly acknowledged by the US court. Although it
was acknowledged by the Crown that the redacted paragraphs contained nothing
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60 Civil Action No. 05-1347 (GK) at 58.
61 [2009] EWHC 152 (Admin) at [54] (the ‘fourth judgment’).
of a secret or confidential nature,62 the government maintained that their
disclosure would be ‘gratuitous’. The control principle itself, it was argued, was
unaffected by Judge Kessler’s ruling and so there remained a significant threat to
the US/UK security relationship should the domestic courts order disclosure of the
disputed material. It should be noted, however, that this point had already been
considered by the Court of Appeal, which had recognised that neither the US
administration nor the UK government could realistically have supposed that the
control principle was inviolable under all circumstances.63 This echoed the view
expressed in the fifth judgment of the Divisional Court,64 that both the UK and the
US had ‘a ready understanding of the necessary qualification of the principle of
control in the case of court ordered disclosure’.65 Interestingly, the Court of Appeal
also questioned whether, in view of subsequent events, the control principle could
be said still to apply at all to the disputed material. Although the information in
question had unquestionably originated from a reciprocal intelligence-sharing
arrangement between the UK and USA, the court expressed some doubt as to
whether the redacted paragraphs remained ‘intelligence material’ for the
purposes of the control principle, given that they had been made public.66 As Lord
Neuberger MR acknowledged,67 had it not been for the disclosure of the redacted
paragraphs by the US courts,68 there was an insufficient case for ordering their
release.69 Once they had been made public by the US courts, which had openly
declared the passages to be factually correct, they could no longer be considered as
‘intelligence material’ and, therefore, arguments based on the safeguarding of
such material ceased to be relevant.
Similarly, government arguments that the Norwich Pharmacal principle did not
apply as the UK security services had not been actively involved in the
mistreatment administered by their US counterparts were also rejected by the
Court of Appeal. It was clear that Binyam Mohamed had been tortured70 and that
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62 R (on the application of Mohamed) vSecretary of State for Foreign and Commonwealth Affairs [2010] EWCA
Civ 65, [2011] QB 218 at [158].
63 Ibid. at 151.
65 Ibid. at [73(iii)]. For the approach of the US Supreme Court, see United States vNixon (1974) 418 US
863, 94 SCR 3090.
66 R (on the application of Mohamed) vSecretary of State for Foreign and Commonwealth Affairs [2010] EWCA
Civ 65, [2011] QB 218 at [196]–[201].
67 Albeit ‘with no enthusiasm’.
68 Farhi Saeed Bin Mohamed vBarak Obama Civil Action No. 05-1347 (GK).
69 R (on the application of Mohamed) vSecretary of State for Foreign and Commonwealth Affairs [2010] EWCA
Civ 65, [2011] QB 218 at [191].
70 ‘There is no secret about the treatment to which Mr Mohamed was subjected while in the control
of the US authorities. We are no longer dealing with the allegations of torture and ill-treatment:
they have been established in the judgment ofthe court’: [2010] EWCA Civ 65,[2011] QB 218 at [55].
members of the UK security services had facilitated and been involved, albeit
indirectly, in his mistreatment. Their actual knowledge of the wrongdoing was
not necessary for the Crown to be placed under a duty to disclose, although, as the
Divisional Court concluded, the role played by UK intelligence operatives ‘was far
beyond that of a bystander or witness to the alleged wrongdoing’.71 In upholding
the order, however, the court was explicit that disclosure was indeed based on the
Norwich Pharmacal principle, rather than any extension of the general duty
imposed under CPIA.
For the avoidance of doubt, I do not seek to impose on the Foreign
Secretary, or indeed any other Minister of the Crown, some sort of
disclosure obligation, similar to that owed in this jurisdiction by the
prosecutor, to disclose any material available which may assist the
defence or undermine the prosecution.72
On one level, this merely serves to emphasise that the disclosure duty under CPIA
lies with the prosecutor and not with the individual or organisation which origi-
nally produced the unused material in question. This does, however, serve to
obscure some of the more subtle aspects of the statutory regime imposed by the
1996 Act and the numerous supporting provisions.73
It should also be noted that the fact that the charges against Mohamed had been
discontinued did not preclude the court from considering the merits of the case
for disclosure, such were the underlying issues of public interest raised by the
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71 [2009] EWHC 2549 (Admin) at [88]. This reiterated the dicta of Lord Woolf in Ashworth Security
Hospital vMGN Ltd who stated: ‘Although this requirement of involvement or participation on the
part of the party from whom discovery is sought is not a stringent requirement, it is still a
significant requirement. It distinguishes that party from a mere onlooker or witness. The need
for involvement … ensures that the mere onlooker cannot be subjected to the requirement to
give disclosure. Such a requirement is an intrusion upon a third party to the wrongdoing and the
need for involvement provides justification for this intrusion’: [2002] UKHL 29, [2002] 1 WLR 2033
at [35].
72 R (on the application of Mohamed) vSecretary of State for Foreign and Commonwealth Affairs [2010] EWCA
Civ 65, [2011] QB 218 at [31].
73 For example, the Disclosure Protocol provides that: ‘Material held by other government
departments or other Crown agencies will not be prosecution material for the purposes of section
3(2) or section 8(4) of the CPIA, if it has not been inspected, recorded and retained during the course
of the relevant criminal investigation. The Attorney General’s Guidelines on Disclosure, however,
impose a duty upon the investigators and the prosecution to consider whether such departments
or bodies have material which may satisfy the test for disclosure under the Act. Where this is the
case, they must seek appropriate disclosure from such bodies’ (Disclosure: A Protocol for the
Control and Management of Unused Material in the Crown Court (HMCS: 2006).
litigation.74 However, in doing so, the court reiterated the view expressed by Lord
Hoffmann in Secretary of State for the Home Department vRehman75 that ‘decisions as
to whether something is or is not in the interests of national security are not a
matter for judicial decision. They are entrusted to the Executive’.76 It was noted,
however, that the position may be different where the consequences of disclosure
were merely to ‘cause embarrassment or arouse criticism’.77 This may not have
been the primary intention in Mohamed, but the Crown’s implacable resistance to
disclosure of material which was already in the public domain in the United States
did little to enhance the already tarnished reputation of the UK government and
security services in relation to the Guantánamo detainees. In this way, it might be
argued that the disclosure of the redacted paragraphs was not simply an appli-
cation of the Norwich Pharmacal principle, but rather a wider issue of the balance
between open justice and issues of national security. Inevitably, this conflict can
lead to sometimes uncomfortable compromises, as in R (on the application of Corner
House Research) vDirector of the Serious Fraud Office.78 In this case, threats from Saudi
Arabia to withdraw from a bilateral intelligence-sharing agreement proved instru-
mental in persuading the Director of the Serious Fraud Office to discontinue an
investigation into allegations of corruption relating to the negotiation of valuable
arms contracts between BAE Systems and the government of Saudi Arabia. This
provided an example of just how seriously the government takes threats to intelli-
gence sharing between the United Kingdom and its allies.
Shortly after the decision in Mohamed a similar case came before the courts in R (on
the application of Aamer) vSecretary of State for Foreign and Commonwealth Affairs79 and,
once again, the application for disclosure was based not on the CPIA provisions
but under the Norwich Pharmacal principle. Like Mohamed the claimant had been
detained for some years by US authorities. However, following the election of
President Obama, the Guantánamo Review Task Force (the Task Force) and a
Review Panel were established to consider the case of every Guantánamo detainee
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74 Bowman vFels [2005] EWCA Civ 226, [2005] 1 WLR 3083; RvSecretary of State for Home Department, ex p.
Salem [1993] 1 AC 450; Prudential Assurance vMcBains Cooper [2000] 1 WLR 2000; Chan U Seek vAlvis
Vehicles [2004] EWHC 3092 (Ch), [2005] 1 WLR 2965. Such judgments may be in the public interest
even where parties have settled and do not want the judgment published, as in Prudential Assurance
vMcBains Cooper [2000] 1 WLR 2000.
76 Ibid. at [50]. Subject to the criteria set out by Lord Scarman in Council of Civil Service Unions vMinister
for the Civil Service [1985] AC 374 at 406, based on consideration of Chandler vDPP [1964] AC 763 and
Secretary of State for Defence vGuardian Newspapers Ltd [1985] AC 339.
77 RvShayler [2002] UKHL 11, [2003] 1 AC 247 at [33], per Lord Bingham.
including Aamer.80 As part of this process, counsel for Aamer sought disclosure of
material held by the Foreign Office, but which had been produced by both UK and
US intelligence agencies. It was alleged that this material supported allegations of
serious mistreatment tantamount to torture during the period of Aamer’s
detention. In this case, one of the grounds put forward for disclosure of the
documents was to enable counsel for Aamer to present a case for his release to the
Task Force. Clearly, as the case against him was based largely on his confessions
during detention, evidence of his mistreatment by US authorities could prove
pivotal in securing his release. In response to defence requests, the UK authorities
provided a significant amount of classified material directly to the Guantánamo
Task Force to inform its consideration of Aamer’s case. However, this was on the
undertaking that the material would not be further disclosed by the Task Force
without the consent of the UK government and, specifically, that the material
would not be passed to Aamer or his representatives. The decision of the UK
government to conduct such limited and selective disclosure of the documents
was challenged by means of judicial review. However, in granting leave to the
applicant, Burnett J acknowledged that this was, in effect, an application under
the principle in Norwich Pharmacal.81
In resisting disclosure the Foreign Secretary argued that the provision of the
disputed documentation to the Task Force without providing the claimant or his
lawyers the opportunity to inspect them was legitimate. However, in ordering
disclosure, the Divisional Court rejected the Foreign Secretary’s assertions and
also questioned the government’s apparent faith in the Task Force itself.82
Providing the documentation to the Task Force but not to the claimant could not
be justified.
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DISCLOSURE OF FOREIGN INTELLIGENCE MATERIAL
80 The Task Force reported in January 2010 that, of the 196 Guantánamo detainees, almost 50 should
be detained indefinitely without trial under the ‘Laws of War’. It was concluded that they
remained too dangerous to release, but too difficult to prosecute without seriously compromising
US intelligence-gathering techniques. It should be noted, however, that the ‘Laws of War’ cited by
the Task Force are not those under the Geneva Conventions, but rather the sweeping powers under
the Authorization for Use of Military Force (18 September 2001, Public Law 107-40 [S. J. RES. 23]) passed
by the US Congress in the aftermath of 9/11 and authorising the US President ‘to use all necessary
and appropriate force against those nations, organizations, or persons he determines planned,
authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or
harbored such organizations or persons, in order to prevent any future acts of international
terrorism against the United States by such nations, organizations or persons’ (s. 2(A)).
82 ‘Proceedings before the Task Force are not transparent. There appears to be no provision for the
publication of its decisions or the reasons for its decisions. It has been in operation for only a few
months and has made few decisions. It has no established track record’: [2009] EWHC 3316 (Admin)
at [54], per Sullivan LJ.
There is a world of difference between supplying to the Task Force a
body of documentation which may be capable of supporting the
claimant’s case and permitting his lawyers to make reasoned submis-
sions on his behalf as to the significance of the information they
contain.83
The court in Aamer also highlighted an apparent contradiction in the arguments
advanced by the UK government in Mohamed and the case before it.84 As noted
previously, disclosure was resisted by the UK authorities in Mohamed on the basis
that the ‘control principle’ prevented the release of sensitive intelligence material
without the express consent of the state which had originally produced that intel-
ligence. In Aamer, however, the United Kingdom argued that it was for the
claimant to apply to the US courts for disclosure of the intelligence material
provided to the Task Force by the UK intelligence services. For Sullivan LJ this left
open the ‘distinct possibility’85 that the United States would refuse disclosure of
the material supplied by the UK government on the basis of the same ‘control
principle’, which would compel the United States to seek approval from the
United Kingdom as the original source of the intelligence material.
Similar issues featured in RvKhyam86 where the Crown resisted defence requests
for extensive disclosure of records and correspondence between the United
Kingdom, the United States and Pakistani security services to rebut charges of
conspiracy to cause explosions. Interestingly, in response to the initial defence
request, the CPS indicated that, as there was no guidance, and comparatively little
case law, on ‘the steps to be taken where the material is in the hands of agencies
outside the UK’, its intention was to approach the matter in accordance with its
own standard guidance on material in the hands of third parties.87 As in Mohamed,
the defence alleged UK complicity in mistreatment inflicted by Pakistani officials.
The result was a series of PII hearings and incremental disclosure of material held
by the Crown88 as part of a process which the court regarded as ‘undoubtedly slow
and piecemeal’.89 However, this was not sufficient to justify a claim for abuse of
process.
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DISCLOSURE OF FOREIGN INTELLIGENCE MATERIAL
83 Ibid.
84 Ibid. at [72].
85 Ibid.
86 [2008] EWCA Crim 1612, [2009] 1 Cr App R (S) 77.
87 Ibid. at [49].
88 Ibid. at [52], [53].
89 Ibid. at [56].
A related issue is the inevitable pressure for closed hearings in those cases which
rely on such sensitive material. Here, as with the application of the Norwich
Pharmacal principle, striking a balance between due process and national security
is often problematic. In Al Rawi vSecurity Service,90 the Court of Appeal was required
to rule on whether a dual system of open and closed hearings could be ordered in
the case of a civil claim for damages in tort and breach of statutory duty. Once
again, the claimants were former Guantánamo Bay inmates who alleged
mistreatment during their detention. In this instance, however, the defendants
were the Security Service, the Secret Intelligence Service, the Foreign and
Commonwealth Office, the Home Office and the Attorney-General. Perhaps
unsurprisingly, the claims involved large amounts of sensitive material91 and it
was this which prompted the Crown to request a twin-track system of hearings,
with parallel open and closed proceedings with corresponding open and closed
disclosure and inspection. Crucially, although the claimants would be repre-
sented in the usual manner during the open parts of the proceedings, their
interests would be represented by special advocates during the closed sessions. It
was envisaged by the Crown that this process would culminate in the delivery of
open and closed judgments. This was resisted by the claimants who argued that
standard court proceedings and the availability of PII were adequate. Overturning
the decision to permit such closed hearings,92 the Court of Appeal rejected ‘firmly
and unambiguously’93 the availability of such proceedings in ordinary civil claims.
This was based on the fundamental right ‘to be confronted by one’s accusers’94 and
the necessity that a party to litigation should know the reasons why they have
failed or succeeded.95 The court also reiterated the requirement for open justice
expressed in Mohamed96 and emphasised the incompatibility of such a procedure
with the Criminal Procedure Rules.97 In doing so, however, the court emphasised
the increasing number of statutory inroads into such principles of open justice,
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DISCLOSURE OF FOREIGN INTELLIGENCE MATERIAL
91 The Crown claimed that some 140,000 documents would be potentially subject to PII and that the
consideration of this issue alone would take up to three years to complete ([2010] EWCA Civ 482,
92 Al Rawi vSecurity Service [2009] EWHC 2959 (QB).
94 Set out most recently by Lord Bingham in RvDavis [2008] UKHL 36, [2008] 1 AC 1128 at [5].
95 See English vEmery Reimbold & Strick Ltd [2002] EWCA Civ 605, [2002] 1 WLR 2409 at [16].
97 Parts 15, 16, 76 and 79.
where closed proceedings (and the possible use of special advocates) might be
contemplated.98
Conclusion
In reflecting on the approach of the courts towards the disclosure of sensitive
intelligence material emanating from foreign jurisdictions, cases such as
Mohamed have served to illustrate the structural limitations of the disclosure
regime under CPIA. Clearly, where the application for disclosure does not arise as
part of a criminal prosecution, CPIA does not apply at all. However, even where the
statutory regime does apply, the failure of the Act to address directly unused
material generated by third parties remains problematic and this is particularly
apparent in those cases involving foreign intelligence material. As has been
shown, the legal status of the domestic security services renders material from
these domestic agencies potentially disclosable. However, where the material in
question originates from foreign rather than domestic intelligence agencies, CPIA
is of limited application. Similarly, the existing statutory mechanisms for
securing third party material are, like CPIA itself, of limited application. In consid-
ering possible alternative mechanisms for securing disclosure, it is evident that
orders under the principle in Norwich Pharmacal provide, at best, only a partial
remedy although, as Lord Woolf noted in Ashworth Security Hospital vMGN Ltd:99
New situations are inevitably going to arise when it will be appro-
priate for the jurisdiction to be exercised where it has not been
exercised previously. The limits which apply to its use in its infancy
should not be allowed to stultify its use now that it has become a
valuable and mature remedy.100
It is this approach which has led to the extension of Norwich Pharmacal orders to
include cases, including Mohamed and Aamer, where the material in question is of
national, as opposed to merely commercial, sensitivity. Inevitably, however, the
quest for open justice in cases of alleged terrorist activity raises significant policy
considerations, not least the desire on the part of the Crown to maintain valuable
intelligence-sharing arrangements with other nations. The Crown’s attempts in
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DISCLOSURE OF FOREIGN INTELLIGENCE MATERIAL
98 [2010] EWCA Civ 482, [2010] 3 WLR 1069 at [27]–[29]. These included under Sched. 1 to the
Terrorism Act 2005 and Sched. 7 to the Counter-Terrorism Act 2008: Secretary of State for the Home
Department vAM [2009] EWHC 3053 (Admin). See also Bank Mellat vHM Treasury [2010] EWCA Civ
483. Other examples cited by the court included certain hearings under the Parole Board Rules
2004 (R (on the application of Roberts) vParole Board [2005] UKHL 45) and even proceedings under the
Employment Tribunals Regulations (Tariq vThe Home Office [2010] EWCA Civ 462).
99 [2002] UKHL 29, [2002] 1 WLR 2033.
100 Ibid. at [57].
Mohamed to resist disclosure of material which was already in the public domain
on the basis of the ‘control principle’ do little to enhance the reputation of the
United Kingdom or to allay concerns that due process safeguards are being
compromised to avoid potential embarrassment over involvement in the
mistreatment of terrorist suspects. Evidently, such issues fall outside of the terms
of reference of the impending and much heralded counter-terrorism review,
which is intended to rebalance existing measures and ‘to provide a correction in
favour of liberty’.101 Hopefully the government will extend this aspiration to
include a greater degree of openness and cooperation in those cases which do
ultimately come to trial.
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DISCLOSURE OF FOREIGN INTELLIGENCE MATERIAL
101 Review of Counter-terrorism and Security Power—Terms of Reference, available at
www.homeoffice.gov.uk/publications/counter-terrorism/ct-terms-of-ref/counter-terrorism-terms-
of-ref?view=Html>, accessed 6 August 2011.

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