R (Mohamed) v Secretary of State for Foreign & Commonwealth Affairs (No 1)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE THOMAS,Lord Justice Thomas |
| Judgment Date | 21 August 2008 |
| Neutral Citation | [2008] EWHC 1914 (Admin),[2008] EWHC 2519 (Admin),[2008] EWHC 2048 (Admin) |
| Docket Number | Case No: CO/4241/2008,CO/4241/2008 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 21 August 2008 |
[2008] EWHC 1914 (Admin)
Lord Justice Thomas
Mr Justice Lloyd Jones
CO/4241/2008
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Dinah Rose QC and Ben Jaffey (instructed by Leigh Day & Co) appeared on behalf of the Claimant
Pushpinder Sanini QC and Karen Steyn (instructed by the Treasury Solicitor) appeared on behalf of the Defendant
Thomas de la Mare and Martin Goudie appeared as Special Advocates
RULING
(As approved)
We have considered this matter carefully and we believe that the sensible order to make at this stage, on an interim basis, is that the documents disclosed by the Defendant at pages 1335-1386 and 1392-1401 shall not be referred to in any report of this matter by anyone; no note or use of the documents or their contents is to be made by anyone, save with the leave of the court. That is an order we shall review from time to time as this matter progresses. We have made this order because we are not at this moment persuaded that it will be practicable to conduct this hearing without reference to parts of the documents which the claimant wishes to keep confidential. Secondly, there is the much wider question of the extent to which this hearing (which is to decide whether information should be disclosed by the Secretary of State for Foreign Affairs) should be usurped or rendered nugatory by answers and documents provided during the course of this hearing.
A practical difficulty has arisen in relation to a submission that is proposed to be made to the Convening Authority, but we believe that can be dealt with simply by the claimant's lawyers seeking the consent of the Secretary of State to use the documentation. If there is a problem, we will endeavour to resolve it. We appreciate that has to be done today. The court is available. This is a very difficult case and the hearing may take some time to resolve. We certainly would take time to deal with that issue.
We will keep that order under review. If representatives of the press wish at any stage to make submissions to us, of course we will listen to them, but we believe that this is the best we can do at this stage, seeing how the argument develops in the course of this case, bearing in mind the fundamental principle that justice must be done openly.
[2008] EWHC 2048 (Admin)
Lord Justice Thomas and
Mr Justice Lloyd Jones
Case No: CO/4241/2008
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice Strand.
London, WC2A 2LL
Dinah Rose Qc, Philippe Sands Qc and Ben Jaffey (Instructed By Leigh Day) For The Claimant
Thomas de la Mare and Martin Goudie (instructed by The Treasury Solicitor's Special Advocates Support Office) as Special Advocates for the Claimant
Pushpinder Saini QC, Vaughan Lowe QC, Karen Steyn and Tim Eicke (instructed by The Treasury Solicitor) for the Respondent
Michael Birnbaum QC as Amicus Curiae Mr Duncan Penny (instructed by Kingsley Napley) was present for Witness B
HTML VERSION OF JUDGMENT
Hearing dates: 28, 29. 30 and 31 July and 1 and 18 August 2008
INDEX
Paragraph
| I INTRODUCTION | 1 |
| II THE FACTS, THE ALLEGATIONS OF BM AND THE COURSE OF THE PROCEEDINGS | 5 |
| (1) The facts and the allegations made by BM | 5 |
| (a) BM's period in the United Kingdom | 7 |
| (b) The UK Security Services and their position after 11 September 2001 | 9 |
| (c) BM's arrest in Pakistan and the provision of information to the United Kingdom | 10 |
| (d) The interview of BM by the Security Service | 16 |
| (e) The lawfulness of BM's detention in Pakistan | 23 |
| (f) BM's allegations as to his treatment when held in Pakistan | 26 |
| (g) Information available to the SIS and SyS derived from other matters | 28 |
| (h) The requests by the SyS to the United States authorities to interview BM again: May to September 2002 | 29 |
| (i) The provision by the SyS of further information and questions to the United States authorities | 30 |
| (j) The total absence of information as to BM's whereabouts between May 2002 and May 2004 | 31 |
| (k) BM's allegations as to his rendition to Morocco and his torture there | 35 |
| (l) BM's allegations of rendition from Morocco to Afghanistan | 36 |
| (m)The statements made by him at Bagram and Guantanamo Bay between May and “November 2004 and the use made of them by the United States | 38 |
| (2) The attempts made by the United Kingdom Government to assist BM | 42 |
| (3) The commencement of proceedings | 45 |
| (4) The events after the commencement of these proceedings in May 2008 | 47 |
| (5) The urgency of the matter | 48 |
| (6) The course of the proceedings | 50 |
| (7) The position of the Convening Authority | 54 |
| III THE CLAIM TO THE DOCUMENTS UNDER THE PRINCIPLES IN NORWICH PHARMACAL | 61 |
| (1) Was there wrongdoing? | 65 |
| (2) Was the UK Government involved, however innocently, in the arguable wrongdoing? | 69 |
| (a) The relevant legal principles | 69 |
| (b) The application of the principles in relation to the involvement in the alleged wrongdoing and our findings of fact | 74 |
| (i) The case made by BM | 74 |
| (ii) The cross-examination of Witness B: the invocation of the right against self-incrimination | 76 |
| (iii) Our findings in relation to involvement and facilitation | 86 |
| (3) Was the information necessary? | 92 |
| (a) The legal principles | 93 |
| (b) Application of principles to the facts | 98 |
| (i) The necessity of the provision of the information to BM's lawyers | 102 |
| (ii) Whether the information will be provided to and considered by the Convening Authority if not produced by the Foreign Secretary | 109 |
| (iii) Whether the information will be provided to BM's lawyers by order of the Military Judge during the course of hearings before the Military Commission | 115 |
| (iv) Our conclusions on the procedures in the United States | 123 |
| (4) Was the information sought within the scope of the available relief? | 127 |
| (a) The legal principles | 128 |
| (b) The application of the principles to the facts | 135 |
| (5) Should the court exercise its discretion in favour of making disclosure? | 139 |
| (a) Our approach | 139 |
| (b) The consequences to BM | 141 |
| (c) The importance of the state prohibition on torture and cruel, inhuman and degrading treatment | 142 |
| (d) Time, cost and convenience | 145 |
| Our conclusion on the Norwich Pharmacal application | 146 |
| Public Interest Immunity | 148 |
| IV QUASHING THE DECISION NOT TO MAKE VOLUNTARY DISCLOSURE | 150 |
| V THE CLAIM FOR DISCLOSURE UNDER THE ALLEGED DUTY UNDER PUBLIC INTERNATIONAL LAW | 161 |
| (1) Article 15 of the Torture Convention and customary international law | 163 |
| (2) Consequences of the prohibition of torture as a rule of jus cogens | |
| 170 | (3) Customary international law and the common law |
| 184 |
I INTRODUCTION
This is the judgment of the Court.
The issue
The issue in this case is whether the defendant, the Secretary of State for Foreign and Commonwealth Affairs (the Foreign Secretary), must make available certain information and documents in confidence to lawyers acting for Binyan Mohamed (BM), who is not a British national, though he was resident in the United Kingdom. He was arrested in Pakistan on 10 April 2002 and has been held by the United States at Guantanamo Bay since September 2004. On 28 May 2008 he was charged with offences which may carry the death penalty. He faces an imminent decision on the reference of those charges for trial before a Military Commission established under the United States Military Commissions Act of 2006. He contends that the only evidence against him is confessions made by him at the United States base at Bagram in Afghanistan between May and September 2004 and further confessions prior to November 2004 which were made shortly after his transfer to Guantanamo Bay in September 2004. He claims that these were made after a two year period of incommunicado detention after his arrest in Pakistan, during which he was subject to cruel, inhuman or degrading treatment and torture at the hands of Pakistani and Moroccan authorities with the connivance of the United States Government and to similar treatment by the United States Government.
3. It is accepted by the Foreign Secretary, as is set out at paragraph 47.ii) below, that it is possible that documents which the United Kingdom Government has recently found could be considered exculpatory or might otherwise be relevant in the context of proceedings before the Military Commissions. BM's lawyers contend that the importance of the documents or the information contained in them is that they may provide essential support to BM's account of what happened to him. The information or the documents should therefore be disclosed to them in confidence, as the United States Government has refused to provide any information whatsoever in relation to his detention between April 2002 and May 2004, not even his location during that period. The Foreign Secretary contends that he is under no duty to disclose the documents or the information contained in them and to do so would in any event cause significant damage to national security of the United Kingdom. He contends...
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