Mueen-Uddin v Secretary of State for the Home Department

Heard on 1 and 2 November 2023

Lord Reed ( with whom Lord Sales, Lord Hamblen, Lord Burrows and Lord Richards agree):

The claimant in these proceedings, Chowdhury Mueen-Uddin, was born in East Bengal, which then formed part of the state of Pakistan. Since the conclusion of the war of independence in December 1971, it has been the state of Bangladesh. He has lived in the United Kingdom since 1973, and has been a British citizen since 1984. He has held a number of prominent public and charitable positions in British society. He served as Secretary General of the Council of Mosques in the United Kingdom and Eire from 1984 to 1988 and helped to set up the Muslim Council of Great Britain. He was Deputy Director of the Islamic Foundation from 1995 to 2005. He was Director of Muslim Spiritual Care Provision in the National Health Service from 2005 to 2012. He has served as vice-chairman of the East London Mosque and the London Muslim Centre, as chairman of Tottenham Mosque and Islamic Community Centre, and as chairman of Muslim Aid.

In October 2019 the Home Office published a report prepared by the Commission for Countering Extremism, a non-statutory committee of the Home Office, entitled “Challenging Hateful Extremism” (“the Report”). It was published in hard copy and online on the government's website. Part One of the Report was entitled “What Extremism Looks Like in England and Wales”. Under the sub-heading “Ideological and Sectarian Violence”, it stated (p 54):

“We also heard about violence towards secular people from those of a similar faith background. Muslim bloggers described being physically attacked during a protest in East London [footnote 157]. The protest was to show support for the conviction of a senior Jamaat-e-Islami leader for war crimes committed during the 1971 War of Independence [footnote 158]. Some of those we spoke to are in hiding.”

Footnote 158 stated:

“Links between those responsible for the violence in 1971 and JI in the UK including community leadership in East London are well established. Chowdhury Mueen Uddin, former vice chair of the East London Mosque and who helped found the Muslim Council of Britain was found guilty of crimes against humanity following a trial in absentia. See: Channel 4. 2013. ‘British Muslim leader sentenced to death for war crimes’ 3 November 2013, (accessed: 4 September 2019) '”.

It is agreed that around 80 hard copies of the Report were distributed and that the online version was downloaded about 5,000 times. It is not known how often it was read without being downloaded. It is agreed that it may have reached over 900,000 followers of the Home Office's social media accounts. The claimant avers that he was contacted by numerous colleagues and associates who had read the Report and the allegations about him which it contained. He states that he was devastated that the government of the country of which he was a longstanding citizen and to which he had devoted the last 50 or so years of his life, through community work and public service, would treat him with such disregard, and that he was deeply concerned that a great many people would believe that the allegations made against him were true, because they were made by the Home Office.

A letter of claim against the Secretary of State was sent on behalf of the claimant in December 2019. In March 2020, five months after the Report had first been published, the online version was edited to remove the footnote which referred to the claimant. However, the allegations which had been made against the claimant were not (and have never been) retracted.

On 19 June 2020 the claimant issued proceedings against the Secretary of State for damages for libel, and for compensation for breach of statutory duty pursuant to Parliament and Council Regulation (EU) 2016/679 (the General Data Protection Regulation (“the GDPR”)), arising from the allegations made in the Report.

On 16 February 2021 Tipples J determined, as a preliminary issue in the proceedings, that the natural and ordinary meaning of the words used in the material part of the Report was that the claimant “(i) was one of those responsible for war crimes committed during a 1971 War of Independence in South Asia; and (ii) has committed crimes against humanity during a 1971 War of Independence in South Asia”, and that those meanings were allegations of fact which were defamatory at common law: [2021] EWHC 269 (QB), para 71. Tipples J accepted (para 70) that an accusation of crimes against humanity is plainly very grave. That is evidently correct: it is difficult to imagine a graver allegation than of guilt of war crimes and crimes against humanity. The allegation is especially grave when it is made by the government of this country against one of its own citizens.

On 15 November 2021 Sir Andrew Nicol, sitting as a judge of the High Court, struck out Mr Mueen-Uddin's claim in limine as an abuse of process: [2021] EWHC 3026 (QB). On 28 July 2022 the Court of Appeal (Dame Victoria Sharp PQBD and Dingemans LJ, Phillips LJ dissenting) dismissed his appeal against that decision: [2022] EWCA Civ 1073; [2022] EMLR 23. The claimant now appeals against the decision of the Court of Appeal.

In order to understand the reasoning of the courts below and the issues in the appeal, it is necessary to explain in outline the relevant factual background. Since the appeal concerns a strike out application, and the claim was struck out before a defence had been pleaded or the claimant had served a reply to the defence, this summary is based principally on the particulars of claim and the witness statements filed in support of it. No facts have yet been found.

In March 1971 a war of independence broke out in East Pakistan, during which large numbers of people died. Numerous atrocities were committed, including the abduction between 10 and 15 December 1971 of a number of prominent intellectuals, 18 of whom were murdered. On 16 December the Pakistan Army surrendered to India, which had invaded earlier that month, ensuring Bangladesh's independence.

Until May 1971 the claimant belonged to Islami Chatra Sangha, an Islamic student organisation which was widely—but, according to the claimant, mistakenly—regarded as the student wing of the political party Jamaat-e-Islami, which was opposed to the creation of an independent Bangladesh. He denies having been involved in any violence.

Shortly after the killing of the intellectuals, the claimant became aware of allegations that he was a member of the militia which was said to be responsible for their deaths. A newspaper article was published in Bangladesh on 29 December 1971 which accused him of masterminding their murder. On 3 January 1972 the New York Times reported that he had been identified as the head of an organisation known as Al-Badar, which was said to have murdered several hundred prominent intellectuals.

The claimant left Bangladesh in late December 1971. He arrived in the United Kingdom in June 1973 and has lived here since then. He visited Bangladesh several times between 1982 and 2004.

In 1973 Bangladesh enacted the International Crimes (Tribunals) Act 1973 (“the 1973 Act”), which established the International Crimes Tribunal (“ICT”). It is not an international body but an institution of Bangladesh's domestic legal system, with the power to try and punish individuals for a variety of crimes committed in Bangladesh. The 1973 Act (as amended) contains provisions which necessitated the amendment of the Constitution of Bangladesh, by the insertion of article 47A, so as to remove the rights of those accused under the 1973 Act from seeking constitutional remedies. It bars any challenge to the composition of a tribunal or the appointment of its members, disapplies the ordinary rules of evidence and procedure set out in the Criminal Procedure Code and the Evidence Act, provides that the tribunal is not bound by rules of evidence and can, in particular, rely on newspaper reports, and empowers the tribunal to impose the death penalty. Under its rules of procedure, the ICT's decisions as to the admission of evidence are final and cannot be challenged. The ICT appears to have been dormant until about 2009, after which a new government was elected on a platform that the ICT would start to take cases.

In 1995 Channel 4 broadcast a programme which alleged that the claimant had been involved in the murder of the 18 intellectuals. He began libel proceedings against Channel 4, but did not have the financial resources to pursue the case to trial. The proceedings ended without either party paying the other's costs.

In 2012 the claimant became aware from media reports that he was being investigated in Bangladesh. He was not contacted by the Bangladesh authorities during the investigation. He instructed his lawyer to make a public statement stressing his innocence and his concerns about how the investigation was being conducted.

On 28 April 2013 the chief prosecutor of Bangladesh submitted formal charges against the claimant. On 2 May 2013 the ICT issued an arrest warrant. Although the claimant's location in the United Kingdom and the contact details of his lawyer were known to the Bangladesh authorities, he was not served with the arrest warrant or notified of the indictment. Nor was his extradition requested. On learning of the arrest warrant he issued a public statement on his...