R Noor Khan v The Secretary of State for Foreign and Commonwealth Affairs

The claimant lives in Miranshah, North Waziristan Agency ("NWA"), in the Federally Administered Tribal Areas of Pakistan. His father was a member of the local Jirga, a peaceful council of tribal elders whose functions included the settling of commercial disputes. On 17 March, the claimant's father presided over a meeting of the Jirga held outdoors at Datta Khel, NWA. During the course of the meeting, a missile was fired from an unmanned aircraft or "drone" believed to have been operated by the US Central Intelligence Agency ("CIA"). The claimant's father was one of more than 40 people who were killed.

In 2010, it was reported in several media outlets, including The Sunday Times, on the basis of a briefing said to emanate from official sources, that the General Communications Headquarters ("GCHQ"), an agency for which the defendant Secretary of State is responsible, provides "locational intelligence" to the US authorities for use in drone strikes in various places, including Pakistan.

On 16 December 2011, the claimant's solicitors wrote to the Secretary of State seeking clarification of the policies and practices of the UK Government in relation to the passing of information to US agents for use in drone attacks in Pakistan. On 6 February 2012, the Treasury Solicitor replied saying that it would not be possible to make an exception to the long-standing policy of successive governments to give a "neither confirm nor deny" response to questions about matters the public disclosure of which would risk damaging important public interests, including national security and vital relations with international partners.

The claimant then issued these proceedings claiming judicial review of "a decision by the Defendant to provide intelligence to the US authorities for use in drone strikes in Pakistan, among other places". The relief claimed was a declaration that:

"(a) A person who passes to an agent of the United States Government intelligence on the location of an individual in Pakistan, foreseeing a serious risk that the information will be used by the Central Intelligence Agency to target or kill that individual:

(i) is not entitled to the defence of combatant immunity; and

(ii) accordingly may be liable under domestic criminal law for soliciting, encouraging, persuading or proposing a murder (contrary to s. 4 of the Offences Against the Person Act 1861), for conspiracy to commit murder (contrary to s. 1, or 1A, of the Criminal Law Act 1977) or for aiding, abetting, counselling or procuring murder (contrary to s. 8 of the Accessories and Abettors Act 1861);

(b) Accordingly the Secretary of State has no power to direct or authorise GCHQ officers or other Crown servants in the United Kingdom to pass intelligence in the circumstances set out in (a) above.

(c) Alternatively, where a GCHQ officer or other Crown servant has information relating to the location of an individual, whom it knows or suspects the United States Government intends to target or kill, the officer may not pass the intelligence to an agent of the United States Government if there is a significant risk that doing so would facilitate the commission of a war crime or crimes against humanity contrary to the International Criminal Court Act 2001.

(d) Accordingly, before directing or authorising the passing of intelligence relating to the location of such an individual to an agent of the United States Government, the Secretary of State must formulate, publish and apply a lawful policy setting out the circumstances in which such intelligence may be transferred."

The application for permission to apply for judicial review was dismissed by the Divisional Court (Moses LJ and Simon J) on 21 December 2012. The claimant sought leave to appeal and that application was directed to be considered by this court in a rolled up hearing by Pitchford LJ.

The reformulated relief now claimed is for:

"(a) A declaration that a UK national who kills a person in a drone strike in Pakistan is not entitled to rely on the defence of combatant immunity. Accordingly a GCHQ officer or other Crown servant in the United Kingdom may commit an offence under ss. 44–46 of the Serious Crime Act 2007 (the "2007 Act") when passing locational intelligence to an agent of the US Government for use in drone strikes in Pakistan.

(b) In the alternative, the Appellant seeks a declaration that:

(i) In circumstances where a defence of combatant immunity applies, the passing of locational intelligence by a GCHQ officer or other Crown servant in the United Kingdom to an agent of the US Government for use in drone strikes in Pakistan may give rise to an offence under the International Criminal Court Act 2001 ("ICCA 2001").

(ii) Accordingly, before directing or authorising the passing of intelligence relating to the location of such an individual to an agent of the US Government, the Secretary of State must formulate, publish and apply a lawful policy setting out the circumstances in which such intelligence may be transferred."

In order to understand why the primary relief claimed is formulated in this way, it will be necessary to consider the 2007 Act and in particular the extra-territoriality provisions contained in Schedule 4. The purpose for which the claim is brought is in order to establish that the reported policy and practice of the UK Government is unlawful. In short, it is the claimant's case that the policy and practice involves requiring GCHQ officers to encourage and/or assist the commission of murder contrary to sections 44 to 46 of the 2007 Act.

About a week before the hearing before the Divisional Court, the Secretary of State served a public interest immunity ("PII") certificate in respect of the information contained in the sensitive annex to a witness statement by Paul Morrison dated 16 October 2012. Mr Morrison was then the Head of the Counter Terrorism Department in the Foreign and Commonwealth Office. The Divisional Court did not consider the PII certificate. Instead, they decided to adjudicate on the Secretary of State's threshold objections to the claim which were that the court should refuse permission on the principal ground that the issues raised were non-justiciable and/or that it would be a wrong exercise of discretion to grant relief which would necessarily entail a condemnation of the activities of the United States. The court upheld these objections and refused permission to apply for judicial review.

Mr Martin Chamberlain QC, who has argued this case with conspicuous skill, says that, if the claimant can overcome the threshold objections, then the question of how the claim can be tried will have to be considered separately. The court will then have to decide (i) whether to uphold the PII certificate; if so (ii) whether the claim can fairly be tried without the material denied to the court by operation of PII; and (iii) whether to make a closed material procedure declaration under section 6(1) of the Justice and Security Act 2013. Mr Chamberlain emphasises, therefore, that the court should not assume that the claim will be determined on the same exiguous facts as are currently known to the claimant. He says that this is important when considering the Secretary of State's objection that the relief sought by the claimant would be futile unless at this stage the claimant can identify specific offences that would necessarily be committed by giving effect to a policy or practice of sharing locational intelligence for use in drone strikes.

The Serious Crime Act 2007

The claimant's primary case is based on the proposition that a GCHQ officer who passes locational intelligence may commit an offence under sections 44 to 46 of the 2007 Act. Before I explain the argument, I need to refer to the relevant provisions of the Act.

Part 2 of the 2007 Act is entitled "Encouraging or Assisting Crime". Section 44 concerns "intentionally encouraging or assisting an offence"; section 45 "encouraging or assisting an offence believing it will be committed"; and section 46 "encouraging or assisting offences believing one or more will be committed". These provisions, which are by no means straightforward, define the relevant actus reus and mens rea of the respective offences. Section 50 provides that a person is not guilty of an offence under Part 2 if he acts reasonably.

Section 52 provides:

"(1) If a person (D) knows or believes that what he anticipates might take place wholly or partly in England or Wales, he may be guilty of an offence under section 44, 45 or 46 no matter where he was at any relevant time.

(2) If it is not proved that D knows or believes that what he anticipates might take place wholly or partly in England or Wales, he is not guilty of an offence under section 44, 45 or 46 unless paragraph 1, 2 or 3 of Schedule 4 applies."

Only subsection (2) is applicable here. Accordingly, the relevant provisions of Schedule 4 need to be considered.

So...