Khaled v The Security Service and Others
| Jurisdiction | England & Wales |
| Judge | Lord Justice Flaux |
| Judgment Date | 22 June 2017 |
| Neutral Citation | [2017] EWCA Civ 1349 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: T3/2016/3224 |
| Date | 22 June 2017 |
[2017] EWCA Civ 1349
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
(MR JUSTICE IRWIN)
The Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Flaux
Case No: T3/2016/3224
Mr Danny Friedman, QC (instructed by Birnberg Peirce & Partners) appeared on behalf of the Applicant
Ms Kate Grange QC (instructed by the Government Legal Department) appeared on behalf of the Respondents
This is a renewed application for permission to appeal against a decision of Irwin J dated 26 July 2016 following the refusal by Beatson LJ of permission on paper. By his decision the judge concluded that the so-called AF (No 3) disclosure obligations did not arise in this case and gave permission to the respondents, the Security Service and Intelligence Service and others, to withhold evidence from the applicant in the open part of the proceedings following an application under section 8 of the Justice and Security Act 2013 and CPR 82.13 and 14.
This case forms part of a group of cases which were pleaded together arising out of the discovery of documents in Libya following the fall of Colonel Gaddafi, which bear on relations in the past between the Security and Intelligence Services and the UK government and the Libyan Security Services. The applicant is a UK Libyan dual nationality who was made subject to UN sanctions measures, including asset freezing, a travel ban under the arms embargo, pursuant his nomination by the United Kingdom as an individual associated with Al-Qaeda. He was added to the consolidated list maintained by the United Nations 1267 Committee on 7 February 2006 following a proposal that he should be so added by the United Kingdom on 18 January 2006.
By the present proceedings in the Queens Bench Division, this applicant brings claims for damages in tort for misfeasance in public office on the basis that the officers and agents of the security services knew that that the information upon which they were relying was unreliable and/or had been obtained illegally and also brings a claim for conspiracy to injure by conspiring with members of the Libyan and Saudi Arabian Security Services to engage in the arbitrary detention and mistreatment of detainees. As the judge said at paragraph 35 of his judgment in this case, the applicant is not engaged in a challenge to the designation, nor is he even mounting a private claim for damages on the straightforward basis that his listing by the United Nations was in error. He sues for misfeasance in public office and conspiracy to injure and alleges deliberate bad faith on the part of the officers of the security and intelligence services.
The respondents have filed both open and closed defences to the claims and have given substantial disclosure. Any suggestion that tortious or unlawful conduct of any kind by the security service or the intelligence service is denied in the open defence. The applicant is the eleventh claimant in the proceedings Kamoka & Others v The Security Service & Others, which were being heard or case managed by Irwin J, as he then was. In his judgment in Kamoka [2015] EWHC 3307 (QB), the judge referred to the rationale of AF (No 3) at paragraph 21 and following. He says:
"…The parties agree that the effect of A v United Kingdom [2009] 49 EHRR 625 as applied by the Supreme Court in AF (No 3) v Secretary of State for the Home Department [2010] 2 AC 269, have the effect that that where liberty of the individual was in question, that is to say considerations of prevention and arbitrary detention under Article 5(4) of the Convention, there must be a sufficient summary of the case against the individuals so as to permit the giving of instructions by that individual.
22. There is no need for me to repeat the formulations in AF (No 3). They are fully familiar to the parties and their lawyers but it is important to consider the under-pinning rationale of that obligation. It is, in essence, a practical or functional or, as we had called it in the course of argument in this application, an "instrumental" test. It is to enable instructions to be given so that a matter can be dealt with fairly.
23. Context for the purposes of Article 6, it seems to me, means broadly two things. Firstly, what is the nature of the issue at stake? Secondly, what is needed for fair disposal of the litigation in hand? In consideration of Article 6, both European and English courts have recognised that the application was out of Article 6, outside those areas where liberty of the subject requires a minimum disclosure, represents a balancing exercise. It is a balancing exercise between two principles, the need for access to justice and fairness in justice and the high priority placed by the courts upon the preservation of national security. Again, that tension is recognised through the authorities."
Irwin J then cited the decision of the Supreme Court in Tariq v The Home Office [2012] 1 AC 452 and quoted Lord Dyson JSC at paragraph 143. He continued at paragraph 26 and following:
"26. A close consideration of the way Lord Dyson formulates that in paragraph 143 of Tariq might lead one to say that even in the context of proceedings involving the liberty of the subject, if the special advocate could perform his functions without such instructions, then even the minimal obligation might then not apply. That is not a conclusion upon which I rely in this case because the situation does not arise but it serves to emphasise the importance of looking at context carefully.
27. It appears to me that there is a spectrum to be identified in looking at the context of the different cases that have arisen. At one end is the person in detention or subject to a freezing order where the liberty of the subject, in the sense of the subject not being at liberty at the point in time when the matter arises, is in question. That must fall at one end of the spectrum. It may well be that the other end of the spectrum is properly represented by the "volunteer" employment cases of which Tariq is an example: those cases where, as a choice of employment, the individual has agreed to enter employment where national security is in question, both as to substance and as a condition of employment.
28. Where does this case fall? How should the balance here be exercised? Mr Friedman submits that these claims, while not being directed to access to liberty and not being taken on behalf of those who are currently not at liberty, are cases which concern the vindication of the right to liberty, or the vindication of protection against arbitrary detention. I agree, and I agree that is an important issue. The capacity of individuals to achieve justice in such circumstances is a high priority. But it is clearly, in my view, not so vital as gaining release. It is not so fundamental as to justify, in common law terms, access to the writ of habeas corpus. For example, look at the facts underpinning IR and GT. One of those claimants was a man who had been excluded from the United Kingdom after years of residence in the country. The other was a man who was excluded from the United Kingdom following one year's residence, but excluded despite his marriage to a United Kingdom national and resident. Those cases involved direct contemplation of prevention of movement, an impact on private life, and in one case, on family life. It seems to me that such cases as arose in IR v GT must lie more towards the end of the spectrum represented by the access to liberty cases than do claims of this kind."
In his section 8 judgment in the present case, Irwin J applied those principles and, so far as relevant to the present application, he said this at paragraphs 33 and following:
"Having considered the further arguments from Mr Friedman and the additional authorities and references, I find myself essentially unmoved from the position I concluded was correct in relation to claimants 1 to 5 in the judgment of October 2015. I do not intend to repeat the review of authority and the analysis set out in that judgment. This case must be placed firmly in its context and disclosure obligations assessed accordingly. It...
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