Muna Abdule v The Foreign and Commonwealth Office
| Jurisdiction | England & Wales |
| Judge | Mr Justice Nicol |
| Judgment Date | 21 December 2018 |
| Neutral Citation | [2018] EWHC 3594 (QB) |
| Court | Queen's Bench Division |
| Docket Number | Case No: HQ14X01860 |
| Date | 21 December 2018 |
[2018] EWHC 3594 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Nicol
Case No: HQ14X01860
Karen Steyn QC and James Stansfeld (instructed by the Government Legal Department) for the Defendants
Ben Jaffey QC and Nikolaus Grubeck (instructed by Leigh Day) for the Claimants
Shaheen Rahman QC and Gareth Weetman (instructed by the Special Advocates Support Office) as Special Advocates
Hearing dates: 21 st November 2018
Approved Judgment
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.
This is an application by the Secretary of State for Foreign and Commonwealth Affairs for a declaration under Justice and Security Act 2013 (‘ JSA 2013’) s.6 that a closed material application may be made to the Court in these proceedings.
The claim
The Claim Form was issued in 2014. Particulars of Claim were served on 19 th July 2017. It is convenient to take the factual background from those Particulars.
The 1 st Claimant is or was married to Abdelqadir Mumin (‘Mumin’). The 2 nd – 4 th Claimants are the children of the 1 st Claimant and Mumin.
In around 2010 Mumin left the UK. The 1 st Claimant says that she subsequently learnt that he had settled in Somalia and did not intend to return to the UK. In November 2012 she says that Mumin encouraged her to meet him in Somalia. She says that Mumin told her that any links he had had to the terrorist group al-Shaabab had been cut. She agreed to go and left the UK on about 20 th December 2012. She travelled with a return ticket to London for 11 th January 2013.
She says that she did eventually meet up with Mumin. She says that the relationship between them was unsatisfactory and he initially hindered her attempts at leaving, but she did manage to leave for the airport at Bosaso, Somalia in order to travel back to London. She says that on 11 th January 2013 she was stopped at a checkpoint near the airport in Bosaso and detained. She says that she was questioned by interrogators who appeared to know a great deal about her life in the UK. Bosaso is in the semi-autonomous part of Somalia known as Puntland. She says that she was taken to what she understood to be a Puntland Security Forces' base. She says that she was held for several days at the base. She says that she was shackled in a tight and painful manner. For part of the time she was detained at the base, she says she was also hooded in a manner which made it painful for her to breathe. She was threatened with being killed. She says she suffered stomach pains and asked for medical attention, but this was denied. She was frightened and slept little. She says she was given poor quality and insufficient food and, for part of the time, only dirty water.
She was questioned by a number of men who spoke English to her. Two of them had American accents, but one, she says, spoke English with the accent of a British native. She refers to him as ‘the British interrogator’. She says his information could only have come from the UK government. The Somali interrogators appeared to defer to him as did the head of Puntland's security services who visited her in detention on one occasion.
Her driver had been detained at the same time. She says that she saw him being assaulted with a metal pole which added to her fear.
When the Puntland minister of security visited her, he accused her of being a member of al-Shabaab which she denied.
After about 7 days she says she was taken to a court and required to fingerprint a document, which she assumed was a statement although she could not read it.
She says that around 18 th January she was transferred to the women's wing of the Central Prison in Bosaso. She says that the conditions there were inhumane and she was tortured there. She says that she was beaten around the legs with a piece of rubber hose pipe which left welts and bruises on her legs. On one occasion she was also made to lie front down in burning hot sand with her hands and feet tied together behind her back. She was forced to remain in this position for 2 hours and, while there, she was whipped with metal cables. Her dress rode up and male guards were called over to add to her humiliation. She says she faced further court hearings in April and June 2013.
She was released from detention on 31 st October 2013. Her British passport was not returned to her until 14 th November 2013. She was eventually permitted to leave Somalia on 5 th December 2013 and returned to the UK around 7 th December 2013.
The causes of action on which the 1 st Claimant relies are assault; false imprisonment; and misfeasance in public office. It is the Claimants' primary case that the relevant law is that of England and Wales. Alternatively, they allege that the Defendants are liable under Somali law.
It is pleaded that the UK government was jointly responsible for these torts either because they were planned, directed or encouraged by UK personnel, or because, in cooperating with the Puntland / Somali authorities the UK government knew or ought to have known of her detention and mistreatment or the real risk that it would occur.
The Claimants rely on: the role of the British interrogator; the knowledge of her life in the UK which the interrogators appeared to have; that the British authorities appeared to know what was happening to her before there had been any consular notification or the UK authorities had been alerted to her position by her family; the guards and other prisoners at the base had told her that the base was established and run at least in part by Western governments including the UK; and the Secret Intelligence Service (‘SIS’) told the Intelligence and Security Committee that they often take the operational lead when a British national is detained in a country such as Kenya on a terrorism related matter.
The 2 nd – 4 th Claimants allege that they have been adversely affected as well in consequence of their mother's ill-treatment.
Originally the Claimants sued five defendants: SIS, the Security Service, the Foreign and Commonwealth Office (‘FCO’) on the basis that it was responsible for SIS; the Home Office (‘HO’) on the basis that it was responsible for the Security Service (i.e. MI5) and the Attorney-General as the defendant identified pursuant to the Crown Proceedings Act 1947 s.17(3) for the acts and omissions of the UK security and intelligence bodies. On 17 th April 2018 Master McCloud directed that the Security Service and SIS be removed as Defendants.
The Claimants claim aggravated and exemplary damages.
By the same order as mentioned above Master McCloud ordered the Defendant to file an open defence and serve on the Special Advocates a draft closed defence.
The Open Defence makes some admissions. Thus it is admitted:
i) The 1 st Claimant is now a British Citizen, having been naturalised as such and 2 nd–4 th Claimants are the children of her and Mumin who is a Swedish national.
ii) Mumin was excluded from the UK in 2010 because of his support for Al Shabaab, a proscribed organisation.
iii) The 1 st Claimant travelled from the UK to Bosaso on or around 20 th December 2012. The Defence notes that at the time there was an FCO travel warning advising British Citizens not to travel to Somalia and saying that there was no British diplomatic representative in the country.
iv) The 1 st Claimant was arrested at Bosaso airport by the Puntland Security Forces.
v) She was released from detention on 31 st October 2013.
The Defendants deny that English law is applicable to the claims.
Otherwise, the Defendants essentially say that they are unable to plead to the particulars in an open defence.
In her order of 19 th April 2018 Master McCloud also made directions for the hearing of the present application under s.6 of JSA 2013.
The statutory criteria for a closed material procedure declaration (‘CMP declaration’)
The Secretary of State is competent to make an application for a CMP declaration whether or not a party to the proceedings – see s.6(2).
By s.6(7):
‘The court must not consider an application by the Secretary of State under subsection (2)(a) unless it is satisfied that the Secretary of State has, before making the application, considered whether to make, or advise another person to make, a claim for public interest immunity in relation to the material on which the application is based.’
I shall refer to this as the ‘PII consideration pre-condition’.
If the PII consideration pre-condition is satisfied, two further conditions must be fulfilled as set out in s.6(4)-(6). They are as follows:
‘(4) The first condition is that –
(a) a party to the proceedings would be required to disclose sensitive material in the course of the proceedings to another person (whether or not another party to the proceedings), or
(b) a party to the proceedings would be required to make such a disclosure were it not for one or more of the following –
(i) the possibility of a claim for public interest immunity in relation to the material,
(ii) the fact that there would be no requirement to disclose if the party chose not to rely on the material.
(iii) s.56(1) of the Investigatory Powers Act 2016 (exclusion for intercept materials).
(iv) any other enactment that would prevent the party from disclosing material but would not do so if the proceedings were proceedings in which there was a declaration under this section.
(5) The second condition is that it is in the interests of...
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