Ismail Kamoka and Others v The Security Service and Others
| Jurisdiction | England & Wales |
| Judge | Mr Justice Irwin |
| Judgment Date | 22 January 2015 |
| Neutral Citation | [2015] EWHC 60 (QB) |
| Docket Number | Case No: JHQ/1310699 |
| Court | Queen's Bench Division |
| Date | 22 January 2015 |
[2015] EWHC 60 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Irwin
Case No: JHQ/1310699
Tom de la Mare QC, Danny FriedmanQC, Dan Squires, Charlotte Kilroy, Helen Law (instructed by Birnberg Peirce) for the Claimants
Rory Phillips QC, Kate Grange, Richard O'BrienandBrendan McGurk (instructed by The Treasury Solicitor) for the Defendants
Hearing dates: 29 July, 29 September to 2 October
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.
Introduction
After the fall of Colonel Qadhafi in October 2011, the offices of his security services were searched and quantities of documents discovered. The Claimants are of Libyan origin, save for Claimant 5 who is the widow of a Libyan. These claims are derived from the documents discovered.
This application concerns Claimants 1 to 5, 11 and 12. Claimants 6 – 10 have been stayed pending an appeal in another related case. Claimants 1 to 5 allege unlawful detention pending deportation, and subjection to Control Orders that substantially restricted their liberty. Claimants 11 and 12 sue in respect of their nomination to the United Nations Al Qaeda and Taliban Sanctions Committee and the consequent freezing of their assets. In each case the detention, restriction of liberty or freezing of the assets arose from the link made between the Claimant and the Libyan Islamic Fighting Group ["LIFG"].
The Claimants allege that the documents discovered demonstrate, for a number of legal and factual reasons, that they should never have been detained, undergone restriction of liberty or been subject to asset-freezing orders.
Claimants 1 to 5 further allege a failure by the Defendants to give full disclosure to either the Home Secretary or to SIAC, thereby vitiating various decisions of the Home Secretary, constituting an abuse of power and founding a claim for false imprisonment and misfeasance. It is alleged that the failures of disclosure render unlawful the Control Orders obtained.
Claimants 11 and 12 have made judicial review claims challenging the decision to nominate them to the UN Sanctions Committee, and later refusals to "de-list" the Claimants. Both Claimants were, in time, removed from the sanctions lists, and their assets were unfrozen. Their public law actions seek "a full merits review" by the Administrative Court of the decisions to nominate and the refusals to seek de-listing. Claimants 11 and 12 are also parties to private law claims, seeking damages for misfeasance in public office and conspiracy to injure.
The Defendants apply to dismiss and/or strike out the claims; and in the alternative for a stay. Essentially, the Defendants submit that the statutes providing for SIAC appeals and for Control Orders circumscribe any challenge of the kind made here. They say the only proper course for Claimants 1 to 5 is to seek to appeal the relevant decisions of SIAC and the Control Orders. Even if statute does not require that course, pursuit of private law action represents an abuse of process of the Court. In relation to Claimants 11 and 12, their remedy is to pursue judicial review in the actions already commenced, not proceed by coincident private law action.
Procedural Background
There are detailed differences in the procedural history and chronologies of each action. Each side has treated the two groups – Claimants 1 to 5 and Claimants 11 and 12 – as raising questions in common.
Claimant 1 was served with a Notice of Intention to Deport on 3 October 2005 and detained. He appealed to SIAC. In December that year he was arrested and charged with terrorist offences. His SIAC appeal was stayed. In June 2007, along with Claimants 3 and 4, he pleaded guilty to terrorist offences in the Kingston-upon-Thames Crown Court and he was sentenced to 3 years 9 months' imprisonment. He completed his custodial sentence on 21 October 2007, and re-entered immigration detention. He was made the subject of a Control Order on 2 April 2008. He was, with Claimants 2 to 5, the subject of review in November 2008, wherein Mitting J found that the LIFG remained "a risk to the national security of the United Kingdom", see: SSHD v AR and Others [2008] EWHC 2789 (Admin). He was then subject to an individual review: SSHD v AU [2009] EWHC 49. His Control Order was upheld. His Control Order was renewed in April 2009 but revoked in November of that year. Claimant 1 did not attempt an appeal from the review by Mitting J. He did seek to appeal the renewal, but withdrew that appeal following the revocation.
Claimant 2 was served with a Notice of Intention to Deport on 3 October 2005, and appealed to SIAC. His case was anonymised as "DD" and was heard alongside that of Claimant 5 [as "AS"]. In the course of SIAC proceedings, the Claimant submitted that the SSHD's case on safety on return was bound to fail, since the Memorandum of Understanding ["MoU"] agreed, and the attendant arrangements for monitoring the MoU, were insufficient to protect him if he were deported to Libya. Following a hearing in October and November 2006, in April 2007 SIAC allowed Claimant 2's appeal (along with that of Claimant 5) on the ground that although he was a threat to national security, there was a real risk of breach of Article 3 of the European Convention on Human Rights if he was returned to Libya. The appeal by the Secretary of State from this decision failed; see: AS and another v SSHD [2008] EWCA Civ 289 (Admin). On 4 April 2008, Claimant 2 was also served with a Control Order. Claimant 2 was a party to the decision of Mitting J of November 2008. His Control Order was upheld by Mitting J in December 2008: SSHD v AR [2008] EWHC 3164 (Admin). He did not seek to appeal that decision. His Control Order was renewed on 31 March 2009. He appealed that decision, and his appeal has not been withdrawn. The Control Order was revoked on 22 January 2010.
In May 2004 Claimant 3 admitted offences contrary to the Forgery and Counterfeiting Act 1981, and was sentenced along with Claimant 4. Claimant 3 received 3 1/2 years' imprisonment. He was released from prison in June 2005. On 3 November 2005 he was served with a Notice of Intention to Deport and detained. He appealed to SIAC. In December 2005, he was charged with terrorist offences and moved from immigration detention into custody. His SIAC appeal was stayed in December 2005. On 11 June 2007 he pleaded guilty to an offence contrary to s.17 of the Terrorism Act 2000 and was sentenced to 1 year 10 months' imprisonment. He completed the sentence and re-entered immigration detention, being released on bail in July 2007. A Control Order was served on him on 4 April 2008. He too was a subject of the judgment in the Control Order review of 14 November 2008, where the Court found that the LIFG remained a risk to national security. His Control Order was upheld on 20 March 2009; see SSHD v AT [2009] EWHC 512 (Admin). The Order was renewed in April 2009 and revoked in August of that year. Claimant 3 appealed against the Order upholding his Control Order and was successful on 7 February 2012, the matter being remitted to the High Court. It has not yet been heard.
Claimant 4 also admitted forgery offences on 12 May 2004 and received 3 1/2 years' imprisonment. He too was served with Notice of Intention to Deport on 3 November 2005, and appealed to SIAC. He was made subject to immigration detention. On 12 December 2005 he was arrested and charged with terrorist offences and remanded into custody. His SIAC appeal was stayed on 15 December. On 11 June 2007 he too pleaded guilty to an offence contrary to the Terrorism Act 2000 and was sentenced to 1 year 10 months' imprisonment. On the same day he entered immigration detention, and on 2 July was released on bail by SIAC. A Control Order was served on 4 April 2008. Claimant 4 was another subject of the judgment of 14 November 2008. On 16 March 2009 a fresh Control Order was made, the first Order being quashed in a judgment of 20 March: AW v SSHD [2009] EWHC 512 (Admin). The second Control Order was revoked on 26 June 2009. Claimant 4 sued for false imprisonment in respect of the first Control Order, and his claim was settled in May 2011. The Claimant sought to challenge the second Control Order, but withdrew the challenge after the Order was revoked.
For convenience, although Faraj Al-Saadi is deceased and his widow is the Claimant, I will refer to him as Claimant 5 throughout. Claimant 5 was served with Notice of Intention to Deport on 14 December 2005 and was detained. He appealed to SIAC and his case was heard with that of Claimant 2. He was party to an application for further disclosure in October 2006. The appeal was heard in October and November 2006, leading to the judgment in April 2007 allowing the appeal on the basis of a lack of safety on return. Claimant 5 was released on bail on 17 May 2007. He was a respondent to the unsuccessful appeal by the SSHD in February and March 2008. Claimant 5 was the subject of a Control Order served on 4 April 2008, renewed on 1 April 2009. The Order was revoked by Mitting J, on the ground it was no longer necessary. Mitting J...
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