R (Abassi and another) v Secretary of State for Foreign and Commonwealth Affairs and another
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE CARNWATH,LORD JUSTICE WALLER |
| Judgment Date | 06 November 2002 |
| Neutral Citation | [2002] EWCA Civ 1598,[2002] EWCA Civ 1316 |
| Docket Number | Case No: C/2002/0617A; 0617B |
| Court | Court of Appeal (Civil Division) |
| Date | 06 November 2002 |
[2002] EWCA Civ 1316
The Master of the Rolls
(Lord Phillips)
Lord Justice Waller
Mr Justice Carnwath
IN THE SUPREME COURT OF JUDICATURE 2002/0617
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
(ADMINISTRATIVE COURT
(MR JUSTICE RICHARDS)
MR N BLAKE QC with MR P SANDS and MR B COOPER (Instructed by Messrs Christian Fisher, London, WC1A 1LY) appeared on behalf of the Appellant
MR R HUSAIN (Instructed by Messrs Birnberg Peirce & Co, London, NW1 7HJ) appeared on behalf of the Proposed Intervenors.
PROFESSOR C GREENWOOD QC and MR P SALES (Instructed by The Treasury Solicitor, London, SW1H 9JS) appeared on behalf of the Respondents.
LORD PHILLIPS, MR: Mr Abbasi is a British citizen. He was captured by American forces in Afghanistan and is now detained in Guantanamo Bay. He claims that his detention is a violation of international law and that, under the United Kingdom Domestic Law, the defendants owe him a duty by diplomatic means to take reasonable steps to bring to an end his detention, or to bring to an end the features of that detention which allegedly violate international law. By these proceedings Mr Abbasi and his mother seek relief on the grounds of alleged failure of the defendants to comply with that alleged duty.
On 15 March 2002 Richards J refused the claimants permission to pursue a claim for judicial review against the defendants. On a renewed application on 1 July 2002 this court granted permission and reserved the matter to itself. Today and tomorrow were fixed for the substantive hearing. At the outset of the hearing before Richards J, the second, third and fourth applicants sought an adjournment to enable them to make similar applications and to have all the applications heard at the same time. Richards J refused that application and also indicated that he would not permit counsel for those applicants to adduce any evidence or make any submissions in relation to the application before him. When he gave his judgment he explained this in this way:
"I took the view that they had no status in this case where their clients are not joined as a party and where their presence is neither necessary nor appropriate, especially given Mr Fitzgerald's obvious qualifications to present the case as effectively as it could be presented."
On 21 August the four applicants applied to Keene LJ for permission to intervene in this hearing pursuant to CPR 54.17 or the inherent jurisdiction of the court. Keene LJ ordered that application to be adjourned to be heard in open court today on condition that any evidence in respect of which permission is sought be lodged with the court and be served on existing parties by 21 August 2002. He also ordered that any supporting skeleton arguments be served on the court and existing parties not later than 2 September 2002.
In the lengthy skeleton argument supporting this application it was stated that all the evidence, paginated and indexed, upon which the first second and third applicants rely, was served on all existing parties as directed on 23 August 2002 and subsequently lodged with the court and that no further evidence was relied upon. That statement was not accurate. In fact the evidence in question was served late only by a day or two, but, nonetheless, late when the timetable was fairly tight. The skeleton argument served on 4 September 2002 was also late. An explanation was advanced that all counsel involved for the applicants were away on holiday and had very little time to prepare the skeleton.
The first point made by Mr Greenwood QC, in opposition to the application to intervene, is that the lateness of the compliance with Keene LJ's directions puts the defendants under unfair pressure and the court should not be astute to grant permission in these circumstances. I sympathise with that submission. There is an enormous amount of material in this case. Nonetheless, if I were of the view that an intervention would provide significant assistance to the court in the resolution of the important issues raised by this case, I would be minded to accede to the application. The important question is whether intervention will assist.
The applicants are relatives of four other British subjects, alleged to be detained by the United States authorities. The first applicant, Sally Begg, is the wife of a man who is alleged to have been arrested in Pakistan and handed over to American forces and now held at a military camp somewhere in Afghanistan. The other three applicants are relatives of men held at Guantanamo Bay. The applicants now request the court to have regard to a significant body of factual evidence in relation to these four men, and that the court should also hear short submissions by counsel in support of the claim before us.
Originally it was plain that the applicants wished us to consider their individual applications, notwithstanding that they had not gone through any of the formalities of applying for permission to seek judicial review of their cases, but that claim has been abandoned. The point that is urged upon us is that we will be assisted in resolving the issues before us by reference to the facts that relate to the applicants. Indeed, the original skeleton emphasised that the object of the intervention was to draw our attention to areas in which the facts in relation to the applicants differed from those that are before us in this case.
So far as submissions are concerned, it has been made plain that the applicants simply intend to support the submissions outlined in the skeleton argument advanced on behalf of the claimants, although there is additional material including an Amnesty International memorandum to which they would wish to refer.
In opposition, Mr Greenwood submits that the application is misconceived, that the duty of this court is to decide this case on the facts which relate to this case and that it would not be proper to have regard to extraneous facts that differ from those with which the court is concerned. He also submits that it is not possible or reasonable to expect the defendants to deal with this factual evidence at such short notice and, particularly, the factual evidence in relation to Begg. Faced with that, the application to rely on Begg's evidence has not been pressed.
In my judgment, the points made by Mr Greenwood are correct. We are going to have great difficulty dealing with the case on the relevant evidence in the time which has been allowed. It would obfuscate our task if Mr Greenwood were expected to address facts relating to other possible applicants who have not yet made applications for judicial review.
My attitude to this application is exactly the same as that of Richards J. Mr Blake is perfectly able to advance all relevant material in support of the application with which we are concerned. I see no basis on which it would be appropriate to accede to these applications and, accordingly, I would dismiss them.
I agree.
I also agree.
Order: Application dismissed with costs.
[2002] EWCA Civ 1598
Lord Phillips, Mr
Lord Justice Waller and
Lord Justice Carnwath
Case No: C/2002/0617A; 0617B
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE AND DIVISIONAL COURT
The Hon. Mr Justice Richards
Mr N Blake QC; Mr Philippe Sands and Mr Ben Cooper (instructed by Messrs Christian Fisher Khan for the Claimants)
Professor C Greenwood QC; Mr Philip Sales (instructed by The Treasury Solicitor for the Defendants)
| Introduction | Paras. 1–2 |
| Mr Abbasi's predicament | Paras. 3–8 |
| The position according to the United States Government and the United States Courts | Paras. 9–17 |
| Expressions of concern | Paras. 18–21 |
| The claimants' complaint | Para. 22 |
| The relief sought | Paras. 23–25 |
| The issues | Para. 26 |
| The submissions | Para. 27 |
| Is the legitimacy of an action taken by a foreign sovereign state justiciable? | Paras. 28–36 |
| Is executive action in the conduct of foreign affairs justiciable? | Paras. 37–50 |
| Discussion |
|
| Is the legitimacy of executive action taken by a foreign state justiciable? | Paras. 51–57 |
| Our view of Mr Abbasi's predicament | Paras. 58–67 |
| Is the conduct of the Secretary of State justiciable? | Paras. 68–106 |
| Are the applicants entitled to relief in the present case? | Paras. 107–108 |
This is the judgment of the Court to which all members have contributed.
Introduction
Feroz Ali Abbasi, the first claimant, is a British national. He was captured by United States forces in Afghanistan. In January 2002 he was transported to Guantanamo Bay in Cuba, a naval base on territory held by the United States on long lease pursuant to a treaty with Cuba. By the time of the...
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