F v Security Service and Others
| Jurisdiction | England & Wales |
| Judge | Mr Justice Irwin |
| Judgment Date | 07 November 2013 |
| Neutral Citation | [2013] EWHC 3402 (QB) |
| Date | 07 November 2013 |
| Court | Queen's Bench Division |
| Docket Number | Case No: HQ12X01361/HQ12X00145 |
[2013] EWHC 3402 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Irwin
Case No: HQ12X01361/HQ12X00145
Richard Hermer QC & Tom Hickman (instructed by ITN Solicitors) for CF Timothy Otty QC & Dan Squires (instructed by Birnberg Peirce Solicitors) for Mohammed Ahmed Mohamed
James Eadie QC, Kate Grange, Louise Jones & Rosemary Davidson (instructed by the Treasury Solicitor) for the Defendants
Hugo Keith QC & Zubair Ahmad (instructed by the Special Advocates Support Office) PII Advocates
Hearing dates: 29 – 31 July 2013
OPEN JUDGMENT ON CLOSED MATERIAL PROCEDURE and PUBLIC INTEREST IMMUNITY
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.
Factual Background
CF and Mohammed Ahmed Mohamed are both British citizens of Somali descent. CF left the United Kingdom in 2009 MA having left in 2007. They were both detained by the Somaliland Authorities on 14 January 2011. They were then detained until removal to the UK on 14 March 201Each claims that they were unlawfully detained, tortured and mistreated during the period of detention in Somaliland.
Mohamed alleges, amongst other things, that an application for a control order against him was made prior to the apprehension of both men in Somaliland. It is alleged that this demonstrates the Defendants were aware that Mohamed was about to be arrested in Somaliland and that the request was a precaution. The Secretary of State was given permission to make a control order against Mohamed by Silber J on 13 January 2011 and a control order was made on the same day, allegedly a day before detention in Somaliland.
The two civil damages claims are pleaded in similar terms. It is said that the Defendants are liable under the Human Rights Act 1998 and in tort. It is said that the Claimants' arrest, detention and questioning occurred at the behest of the agents or officers of the Defendants, was solicited by them, and or occurred with their assistance, consent "and/or acquiescence". It is also said that officers and agents of the Defendants:
"by their acts and omissions, procured, induced, encouraged and/or directly caused, or were otherwise complicit in, the detention, assault, and mistreatment and torture"
of the Claimants.
On 19 October 2012 Lloyd Jones LJ gave open and closed judgments in the statutory review of these Claimants' control orders and Terrorism Prevention and Investigation Measures ["TPIM"] orders. In these proceedings Mohamed was referred to as "CC", and the open judgment of Lloyd Jones LJ is reported under the neutral citation of SSHD -v- CC and CF [2012] EWHC 2837 (Admin). The extensive open judgment reviews the law, reviews the facts which were admitted into open, and the Judge concluded in each case that the Claimants were involved in terrorism related activity. The Judge rejected allegations of abuse of process.
He considered the disclosure which had been made on the applications for permission to impose the control orders. In particular, he reviewed the disclosure made to Silber J on 13 January 2011 in relation to Mohamed, and on 13 April 2011 in relation to CF. Lloyd Jones LJ concluded "that the disclosure made to Silber J on 13 January 2011 and 13 April 2011 was deficient". However, for reasons which he set out in paragraphs 172 to 175 of the judgment, he declined to quash the control orders on the grounds of non-disclosure. Lloyd Jones LJ sustained the orders which had been obtained rejecting public law arguments made in open, and further arguments advanced by the Special Advocates in closed hearing.
In relation to each Appellant, Lloyd Jones LJ concluded that it was not possible for him to set out his consideration of each of the Heads of Appeal in the open judgment, and therefore although his conclusions are recited in the open judgment, the detailed considerations which sustain those considerations are confined to the closed judgment.
Lloyd Jones LJ refused the applications for permission to appeal his judgment. However, in May 2013 these Claimants were granted permission to appeal by the Court of Appeal. I was informed that the appeal is due to be heard in January 2014.
Procedural History
The claim on behalf of Mohamed was issued on 13 January 2012. The claim on behalf of CF was issued on 3 April 2012. Defences in each case were served on 25 July 2012, in similar form. The Defendants deny they have acted unlawfully as alleged or at all. In each case the defence alleges the Claimant lacks credibility and that no weight can be placed on his evidence. In each case the Defendants decline to plead their case on sensitive matters in the following terms:
"This defence sets out the defendants case in response to the particulars of claim in so far as the defendants are able to plead their case without causing real harm to the public interest. ……Because of the damage which could be caused to the public interest, the defendants are unable to set out any positive case in response to the claimant's allegations in [the relevant paragraphs in each case] beyond the bare denial at paragraph 7 above and the limited information provided …..below."
In broad terms the Defendants allege in each case that the Claimant is "a member of a terrorist network which is actively supporting extremism in East Africa" and some particulars are given. Any misbehaviour or complicity with misbehaviour by others is denied.
By June 2012, the cases were listed together for directions and Lloyd Jones LJ gave directions, including a direction for standard disclosure by list. Directions given on 20 June were subsequently varied by consent to address disclosure issues.
By January 2013, the parties were aware, in general terms at least, of the impending legislation subsequently enacted as the Justice and Security Act [" JSA"] 2013. On 17 January 2013, Simon J set case management directions including an order that the Defendants should serve Public Interest Immunity certificates by 19 April 2013, to be followed by a Case Management Conference in May. By 19 April, it was clear that the JSA would shortly receive Royal Assent, but the Act was not yet available in printed form and was not in force. In their written submissions, the Defendants make clear that:
"it was not therefore considered appropriate to seek to delay the Case Management of these claims, including the order governing service of a PII Certificate, in those circumstances. Therefore, pursuant to the order of 17 January 2013, the Secretary of State signed a PII Certificate in relation to the material referred to in the Sensitive Schedule to that certificate."
The order of 17 January 2013 was subsequently varied by consent to permit the appointment of Special Counsel to act as "PII Advocates" on appointment by the Attorney General. Mr Hugo Keith QC and Mr Zubair Ahmad were appointed shortly thereafter.
On 20 May 2013 the matter first came before me. Following submissions I directed that two issues should be tried in late July 2013, those being:
"A. To determine the public interest immunity application, in so far as it relates to material the disclosure of which is not claimed by the Defendants to be damaging to the interests of national security.
B. Provided that by 4.00pm on Friday 12 July 2013, the Justice and Security Act 2013……..is in force, and provided that Rules of Court made under Schedule 3 to the Act are in force, having been laid before Parliament and not having ceased to have effect …….to determine whether the court will make a declaration that a closed material application may be made to the court."
The JSA 2013 was commenced on 25 June 2013. The Rules made under Schedule 3 to the Act came into force and were laid before Parliament on 27 June. Applications for a declaration and other orders under the JSA 2013 and for a closed material procedure following such an application have been made subject to Part 82 of the Civil Procedure Rules.
Part 2 of the Act addresses disclosure of sensitive material. The relevant parts of the legislation read as follows:
" 6. Declaration permitting closed material applications in proceedings
(1) The court seised of relevant civil proceedings may make a declaration that the proceedings are proceedings in which a closed material application may be made to the court.
(2) The court may make such a declaration—
(a) on the application of—
(i) the Secretary of State …………
(ii) any party to the proceedings, or
(b) of its own motion.
(3) the court may make such a declaration if it considers that the following two conditions are met.
(4) The first condition is that—
(a) a party to the proceedings would be required to disclose sensitive material in the course of the proceedings to another person (whether or not another party to the proceedings), or
(b) a party to the proceedings would be required to make such a disclosure were it not for one or more of the following—
(i) the possibility of a claim for public interest immunity in relation to the material,
(ii) the fact that there would be no requirement to disclose if the party chose not to rely on the material,
(iii) section 17 (1) of the Regulation of Investigatory powers Act 2000 (exclusion for intercept material),
(iv) any...
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