K, A and B v The Secretary of State for Defence and Others
| Jurisdiction | England & Wales |
| Judge | Mr Justice Cranston |
| Judgment Date | 19 December 2014 |
| Neutral Citation | [2014] EWHC 4343 (Admin) |
| Date | 19 December 2014 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/4215/2014 |
[2014] EWHC 4343 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Cranston
Case No: CO/4215/2014
Samantha Knights (instructed by Deighton Pierce Glynn) for the Claimants
Nicholas Moss (instructed by Treasury Solicitor) for the Defendant
Hearing dates: 06/11/2014
Introduction
This judgment deals with an application for pre-permission disclosure and for permission to apply for judicial review. The background and nature of the judicial review claim are dealt with in Burnett J's judgment on the interim relief claim and there is no need for me to repeat it here: see [2014] EWHC 3023 (Admin). In summary the claim is brought by three Afghan nationals who allege that they worked for the defendants for a number of years as covert human intelligence sources ("CHIS") in the south of Afghanistan. As a result of this work they contend that they face regular threats and are at risk of their lives as are their families. The defendants do not accept any liability in relation to the claimants although they concede that in principle such individuals are thought of as attractive targets by insurgents and may face fatal reprisals. The defendants deny that the claimants were locally engaged staff ("LES").
The claimants issued proceedings on 9 September 2014 which raise both public law and private law claims. They seek a declaration that the defendants have acted unlawfully in failing to extend to them the Afghanistan Staff Intimidation Policy ("the Intimidation Policy") or the Afghanistan Ex-gratia Scheme ("the Ex-gratia scheme"), both of which are schemes for contracted Afghan locally engaged staff. In the alternative they seek a declaration that the defendants have acted unlawfully by failing to promulgate a policy of equivalent protection capable of applying to the claimants. They further seek an order mandating the defendants to provide them with assistance to relocate and with compensation. On the private law side they seek both specific performance and damages.
Application for interim relief
An application for interim relief came before Burnett J (as he then was) on 17 September 2014. He refused relief in a judgment handed down on 19 September 2014: [2014] EWHC 3023 (Admin). On 23 October 2014 the claimants sought permission to appeal his decision. After outlining the background, Burnett J referred to the nature of the private law claims. The debate was artificial, he said, because it proceeded on the assumption that English law applied. In any event applying the tests developed in English law to determine whether the claimants were employees, there appeared to him to be no mutuality of obligation and no real control exerted over them. There might be contractual arrangements in place, although there were problems with that, including the nature of any implied terms, and with the scope of any duty of care: [19]. Thus Burnett J concluded that the argument in support of interim relief rested upon the public law claims.
In relation to the public law claims, Burnett J concluded that they were weak. The policies the claimants invoked were concerned with individuals who were in open employment with the British authorities in Afghanistan, "in colloquial language, those who were on the books. It is fanciful to suppose that it was designed to cater for CHIS": [22]. Burnett J continued:
"[23] The argument that the policies would be unlawful if the claimants did not fall within them proceeds on the basis that the defendants "failed to treat persons in a similar situation similarly". It is suggested that because a CHIS might be at risk in consequence of his work for the British authorities there is no material difference with LES who come under threat. This too appears to me to be a weak claim. A CHIS is in a very different position from a person in open employment properly so called. The best the claimants can establish is that there was a contract for services, rather than employment. The policy in question relates to employees. It applies to people whose employment by the British authorities was overt and thus known to all. It applies to those who were made redundant. These claimants were not made redundant. Their evidence suggests the relationships just fizzled out. The involvement of CHIS is covert with the expectation that it will remain confidential. The claimants are not comparing like with like."
Burnett J added that it was unknown whether there was a separate policy in place to protect CHIS who run into difficulty but whether to have such a policy was a matter of political judgment upon which the courts would be very slow to dictate an outcome: [24].
As to the claimants' contention that they had protection under articles 2, 3 or 8 of the European Convention on Human Rights ("ECHR"), Burnett J stated that the claimants would have to persuade the domestic courts to expand upon their current understanding of the Strasbourg jurisprudence relating to the territorial reach of the Convention since the claimants, and all those who might threaten them, are in Afghanistan, in areas where there has never been effective control by British Forces. He also rejected as unarguable the notion that the claimants should be treated as if they were serving members of the British Armed Forces, and so able to benefit from the extension of Convention protection envisaged by the Supreme Court in Smith v. Ministry of Defence [2013] UKSC 41; [2014] AC 52, or as if they were more generally under the control and authority of the United Kingdom and so, applying the language of the Grand Chamber in Al Skeini v United Kingdom (2011) 53 EHRR 18 at [137], benefited from its assumption of responsibility to secure them the rights and freedoms guaranteed by the Convention. "[I]t is not arguable that the relationship explained by the claimants in their evidence involved control and authority leading to the conclusion that the British state had jurisdiction over them. Their position was in no way analogous to serving members of the Armed Forces.":[25].
Application for disclosure
On 17 October 2014 the claimants issued an application notice in which they sought disclosure of: (1) undisclosed policies which would be relevant to individuals carrying out the type of work which the claimants performed; (2) materials specifically relating to the claimants, including those documents generated by the policies and the Regulation of Investigatory Powers Act 2000 (" RIPA") if applicable; (3) all iterations of the Staff Intimidation Policy and Local Employment Staff ("LES") Policy; and (4) the direction that local employed staff were not to be employed as collection assets. The claimants also sought (5) a confirmation that records were complete; and (6) a statement whether the policy for Iraq locally employed staff was ever applied to anyone carrying out intelligence related work.
The defendants in a response dated 15 October 2014 objected to disclosure on five grounds: (1) the court could consider permission on the assumption that the claimants did provide intelligence to the defendants in Afghanistan; (2) the claimants were not entitled to wide-ranging disclosure pre-permission; (3) the expense which would be incurred with the disclosure which the claimants sought; (4) there was no breach of the duty of candour; and (5) the defendants relied on their "neither confirm nor deny policy" ("NCND"). The defendants have, however, provided additional information, including an earlier version of the Staff Intimidation Policy for Afghanistan. The defendants have also supplied additional information sought by the claimants in relation to record keeping and the direction that locally employed staff would not be employed as collection assets.
(a) The claimants' application
The application came before me for hearing on 6 November 2014. (It had been adjourned on the defendants' request from 23 October). At that stage permission had not been considered. Before me the application covered (1)...
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