Ismail Kamoka and Others v The Security Service and Others
| Jurisdiction | England & Wales |
| Judge | Mr Justice Irwin |
| Judgment Date | 15 April 2016 |
| Neutral Citation | [2016] EWHC 769 (QB) |
| Docket Number | Case No: HQ13X00363 |
| Court | Queen's Bench Division |
| Date | 15 April 2016 |
[2016] EWHC 769 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Irwin
Case No: HQ13X00363
Tom de la Mare QC, Danny FriedmanQC, Charlotte Kilroy, Helen Law (instructed by Birnberg Peirce) for the Claimants
Rory Phillips QC, Kate Grange, Richard O'Brien (instructed by The Government Legal Department) for the Defendants
Angus McCullough QC, Jennifer Carter-Manning, Tom Forster (instructed by The Special Advocates' Support Office) appeared as Special Advocates
Hearing dates: 15–18 December 2016
Further Disclosure 12 January 2016
Further Submissions 20, 22 January 2016
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
This is the judgment in respect of the renewed application by the Defendants to strike out the claims of Claimants 1–5 inclusive, as representing an abuse of process pursuant to Hunter v Chief Constable of the West Midlands Police and Others [1982] AC 529. This judgment should be read in continuation of Kamoka and Others v The Security Service and Others [2015] EWHC 60 QB. On 21 July 2015 I made a declaration pursuant to Section 6 of the Justice and Security Act 2013 in respect of the renewed application. Special Advocates were appointed to represent the interests of the Claimants. There has been closed disclosure, followed by open and closed hearings in the application. A closed judgment in this matter is handed down herewith.
In paragraphs 8–12 of the judgment of January 2015, I summarised the history of the litigation to that point in respect of each of the first five named Claimants. I will not repeat those summaries here.
The essence of the claim advanced by the Claimants is that there has been a suppression of evidence, a breach of the "duty of candour", and that had evidence not been suppressed, the proceedings in SIAC, and the Control Order proceedings, could not have been mounted. It is said it would have been unreasonable of the Defendants (in particular the SSHD) to have sought to deport the Claimants to Libya, had the information now revealed in the course of the fall of the Qadhafi regime been made available to the relevant decision-maker: there would never have been a viable national security case, nor a reasonable prospect of removal in the face of what the Claimants term the "new material". It is said that, but for the suppression of evidence, the Claimants would never have been subject to immigration detention and/or the restriction imposed by Control Orders. Those propositions underpin the claims of false imprisonment and misfeasance in public office.
The Defendants say there was no suppression of evidence. There was a realistic prospect of deportation. This material, or the substance of it, and these issues have been considered and addressed by SIAC and/or the High Court in Control Order proceedings. The action constitutes Hunter-type abuse.
The first step in the closed proceedings has been to establish whether there was any, or any significant, suppression of evidence. In any other context, that would not be a necessary step in an application based on abuse of process, since all parties would know what had been the evidence presented to the first court of competent jurisdiction. Here the Claimants have remained in ignorance.
I have been reminded in the course of submissions that this is not the trial, and I must be scrupulous not to venture too far. I accept the need for caution. Fact-finding must be confined to issues laid down in the (very extensive) Particulars of Claim, and to matters relevant to the applications to strike out the claim as an abuse of process, within the principles laid down, as I have found they must apply to this unusual case.
Allegations
The allegations as to suppression are set out in paragraph 329 to 336 and 356 to 362 of the Particulars of Claim. I accept from the written submissions of the Defendants the allegations can properly be grouped under the following heads:
i) SIS/SyS's knowledge of rendition of individuals by the United States to Libya;
ii) SIS/SyS's reason to be concerned about the treatment of the Libyan Detainees;
iii) SIS/SyS's involvement in US renditions;
iv) SIS/SyS's claim to entitlement to special access;
v) SIS/SyS's "direct" and "indirect" interrogation of Libyan Detainees;
vi) SIS/SyS's "awareness" that Bel Hadj was being mistreated;
vii) Joint operations between SIS/SyS and the Libyan Security Services; and
viii) The role of the Qadhafi Development Foundation (QDF) as cover or "proxy" for the Libyan Security Services.
Prelude: C2's Application for Bail to SIAC 30 January 2006
An interesting touchstone for this application arises from the Second Claimant's application to SIAC for bail. The Claimant was then represented by Mr Friedman. I accept of course that somewhat different considerations arise on an application for bail than in a substantive SIAC appeal, or of course in civil proceedings. However, counsel raised specifically the following points as bearing on the question of bail, because they were said to touch on "the source of the intelligence that the Secretary of State relies upon in order to found a corporate allegation against the LIFG". The matters raised were:
"(i) The shift in the Secretary of State's views about the LIFG appears to have coincided with the "paradigm shift" in the relations between the Libyan government and Britain and the United States since 9/11. The documented sharing of intelligence between the security services of these countries, as well as the reports of rendition flights to and from Libya, marks a starkly different relationship from that which existed through the 1980s and 90s: See Human Rights Watch, Libya: Words to Deeds: The Urgent Need for Human Rights Reform, January 2006, pp. 14–21).
(ii) Any information emanating out of detainee reporting in Libya, or elsewhere, would engage the investigatory duties of SIAC (and by extension the Secretary of State) in accordance with the House of Lords judgment in the torture case: A v. SSHD [2005] 3 W.L.R. 1249. According to the HRW report Libya: Words to Deeds, torture "remains a serious concern" (p. 2). Both of these issues overlap with the question of safety on return (see paras 32–41 below)."
Section C of the written submissions concerned the risk of return to Libya, and Section D was entitled Weakness of the Respondent's Case on Safety on Return. In the course of Section D, the submissions dwell on the risk of torture or mistreatment in Libya, including particularly the "immaturity … of the diplomatic relationship between the United Kingdom and the Libyan Government". A further point made as explicitly relevant to safety on return was the following:
"i. Libya has co-operated with the United States with regard to rendition of terrorist suspects to Guantanamo Bay (p. 18); and the United States has reportedly delivered into Libyan custody persons "captured in the global campaign against terrorism" (p.19)."
As a consequence it was submitted that the Secretary of State's case was hopeless on safety on return:
"38. In the specific case of Libya, the applicant submits that the Secretary of State will have to confront an essentially insurmountable problem in these proceedings, namely the complete absence of independent human rights monitoring of any kind in modern Libyan state history."
Further, the Claimant correctly anticipated that the QDF would be advanced as part of the government case that safety on return could be adequately assured and monitored. The matter was put as follows:
"At present the respondent continues to withhold the name of the proposed group while negotiations continue. However, an article in the Daily Telegraph, 26 th January 2006 ("Qadhafi's son wanted as Torture Watchdog"), reports that "diplomatic sources" have "confirmed" that Britain is seeking to convince Saif al-Islam al-Qadhafi (the son of Colonel Qadhafi) and his International Foundation for Charitable Organisations, to act as the independent monitoring group for the purpose of these proceedings. The applicant submits that it cannot seriously be contended for the purposes of these proceedings that the group and personality named in this article could ever qualify as sufficiently independent in order to carry out a monitoring role under the MOU."
The implication of these passages is straightforward. Those representing the Claimants were already alive to questions of rendition, the reliability of information resulting from detainee reporting, the sharing of intelligence and relationships between the Security Services of Libya, Britain and the US, and the link between those issues and the Fifth Defendant's case on safety on return to Libya. The Special Advocates representing the interests of the Claimants must be taken to have been alive to the way matters were put, since within the Rules of SIAC, the role of the Special Advocate is to further the case presented by an Appellant's ordinary lawyers.
Disclosure
Given the nature of the case, it comes as no surprise that the key disclosure was in...
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