Ismail Kamoka and Others v The Security Service and Others

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLord Justice Flaux,Lord Justice Moylan,Sir Stephen Richards
Judgment Date25 October 2017
Neutral Citation[2017] EWCA Civ 1665
Docket NumberCase No: T3/2016/2583 & 2584
Date25 October 2017

[2017] EWCA Civ 1665

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM

THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

(MR JUSTICE IRWIN) [2016] EWHC 769 (QB)

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Lord Justice Flaux

Lord Justice Moylan

and

Sir Stephen Richards

Case No: T3/2016/2583 & 2584

Between:
(1) Ismail Kamoka
(2) Ziad Ali Hashem
(3) Abdel Nasser Bourouag
(4) Khaled Abusalama Al Allaqi
(5) Alia Bibi Hassan (Administratrix for the Estate of Faraj Hassan Al-Saadi)
Appellants
and
(1) The Security Service
(2) The Secret Intelligence Service
(3) The Attorney General
(4) The Foreign & Commonwealth Office
(5) The Home Office
Respondent

Thomas De La Mare QC, Danny FriedmanQC, Charlotte KilroyandHelen Law (instructed by Birnberg Peirce & Partners) for the Appellants

Rory Phillips QC, Kate GrangeQC andRichard O'Brien (instructed by the Government Legal Department) for the Respondents

Angus McCullough QC and Jennifer Carter-Manning (instructed by Special Advocates' Support Office) as Special Advocates

Hearing dates: 18 – 21 July 2017

Judgment Approved

Lord Justice Flaux

Introduction

1

The present appeals and applications for permission to appeal relate to the decision of Irwin J to strike out the claims of the appellants (the first five claimants in proceedings also brought by other claimants) in the Particulars of Claim as an abuse of process pursuant to the common law doctrine enunciated in Hunter v Chief Constable of the West Midlands Police [1982] AC 529. Those claims, in the barest summary, are that detention of the appellants by the Home Secretary pending their appeals to SIAC against the decision to deport them and the subsequent restriction of their liberty by Control Orders were unlawful. The appellants claim damages against the various defendants for the torts of false imprisonment, trespass (to person and property) and misfeasance in public office.

2

In relation to three of the Grounds of Appeal (A to C) the appellants appeal with the permission of the judge. In relation to the remaining four Grounds (D to G), the judge having refused permission to appeal, the appellants renew their applications to this Court. Given the extent of overlap between the various Grounds, we took the course of hearing the totality of the argument on both sides in relation to all the Grounds. To a large extent, it has proved possible to deal with the Grounds compendiously. We heard submissions in OPEN over three days and then held a CLOSED hearing on the fourth day of the appeal. These are the OPEN judgments and we hand down CLOSED judgments herewith.

Relevant background and outline of the claims

3

Each of the appellants is or was (the third and fifth appellants are deceased and their claims are pursued by their widows) of Libyan origin and are alleged to have been at all material times members or associates of the Libyan Islamic Fighting Group ("LIFG") formed in the 1990s in opposition to the regime of Colonel Qadhafi. They had all sought asylum in the United Kingdom.

4

Following the 9/11 terrorist attacks, the UK government formed an increasingly close relationship with the Qadhafi regime. It was only in October 2005, during that period of rapprochement with the regime, that the LIFG was proscribed as a terrorist organisation in the United Kingdom. The chronological history thereafter of each of the claimants is helpfully set out by Irwin J at [8] to [12] of his open judgment of 22 January 2015 ( [2015] EWHC 60 (QB)) which I gratefully adopt:

"8. 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.

9. 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.

10. 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.

11. 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.

12. …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 declined to quash the Control Order on the ground of non-disclosure. Claimant 5 does not seek damages for the period during which he was subject to a Control Order."

5

For the purposes of the present appeals and applications, an important point to note is that only the second and fifth appellants had their SIAC appeals actually heard. Although SIAC concluded that both appellants were a danger to national security, they both won their appeals, as Irwin J noted, on the basis that they would not be safe on return to Libya, notwithstanding the memorandum of understanding ("the MOU") between the United Kingdom and Libya: AS & DD v SSHD SC/42 and SC/50/2005, judgment dated 27 April 2007. After the appeal of the Secretary of State to the Court of Appeal failed: AS (Libya) v SSHD ...

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