R Noor Khan v The Secretary of State for Foreign and Commonwealth Affairs
| Jurisdiction | England & Wales |
| Judge | Lord Justice Moses,Mr Justice Simon |
| Judgment Date | 20 January 2014 |
| Neutral Citation | [2012] EWHC 3728 (Admin) |
| Docket Number | Case No: CO/2599/2012 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 20 January 2014 |
[2012] EWHC 3728 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Moses
Mr Justice Simon
Case No: CO/2599/2012
Mr Martin Chamberlain, Mr Oliver JonesandMr Robert McCorquodale (instructed by Leigh Day) for the Claimant
Mr James Eadie QC, Mr Andrew EdisQC, Mr Malcolm ShawQC andMiss Karen Steyn (instructed by The Treasury Solicitors) for the Defendant
Hearing dates: 23rd–25th October, 2012
The claimant seeks to challenge, by way of judicial review, what he calls 'a decision' of the Secretary of State for Foreign and Commonwealth Affairs in relation to the passing of intelligence by employees of GCHQ to forces of the United States. I deliberately describe the nature of these proceedings in vague terms; it will become necessary to examine the extent to which it is possible to be more precise. The Secretary of State's opposition to the grant of permission has led to the need to resolve certain preliminary issues.
The claimant seeks to impugn what the claim form describes as a decision to provide "intelligence to the US authorities for use in drone strikes in Pakistan, amongst other places". It is alleged that employees of GCHQ are assisting US agents by supplying what is described as "locational intelligence" for use in drone strikes in Pakistan. By assisting US agents to direct armed attacks in Pakistan, GCHQ employees are said to be at risk of committing offences under the criminal law of England and Wales, as secondary parties to murder. The claimant submits that there is no armed conflict in Pakistan, as it is recognised under international law, still less an international armed conflict, and thus GCHQ employees are not entitled to combatant immunity.
Even if GCHQ employees would not be guilty of murder, there is a significant risk that they are guilty of conduct ancillary to crimes against humanity or war crimes. It follows, says the claimant, that the Secretary of State must publish a policy identifying the circumstances in which intelligence may lawfully be passed on if it relates to the location of individuals who may be targeted in a drone strike.
The Secretary of State advances his objection to permission on four bases. But each has an impact on the other and resolution will depend upon their cumulative effect. The Secretary of State contends, first, that the court will be required to adjudicate upon the acts of foreign sovereign states, second, that the claimant is seeking a declaration as to whether future conduct is proscribed by domestic criminal law, third, that the court should not be lured into giving an advisory opinion and fourth, at the suggestion of Mitting J when ordering this hearing, that the case cannot be tried at all in the absence of a statutory closed material procedure.
The parties debated rival versions of what the court would have to resolve, should permission be granted. For example, the claimant disavows any intention, or need, to resolve the legality of United States' actions in Pakistan, whilst the Secretary of State warns that this court is being invited to rule on that very issue. In R (Gentle) v Prime Minister) [2008] 1 AC 1356, Lord Rodger sought to lift the cloak of a claim for a public inquiry in exercise of a right under Article 2 of the European Convention on Human Rights. He identified the real aim or target of the complaint: it was an attempt to investigate why—as the claimants in that case saw it—the Attorney-General changed his mind and gave wrong advice as to the legality of the invasion of Iraq [34] and [35]. Similarly, this Court must cast a critical eye on the claimant's own description of the issues and identify what he is "really after". It is necessary to analyse the nature of the claim, to see what, in reality, it entails.
I must set out in full the relief the claimant seeks. He seeks 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."
I should mention, at this stage, that the references to the provisions of various criminal statutes require amendment. The claimant now rests his case as to potential criminality on Sections 44–46, Section 52(2) and Schedule 4 of the Serious Crime Act 2007, which give rise to a risk of committing offences under the International Criminal Court Act 2001.
The facts on which the claim is based start from the claimant's own description of tragic events in Datta Khel, North Waziristan Agency in the Federally Administered Tribal Areas of Pakistan. On 17 March 2011 his father Malik Daud Khan was presiding over an outdoor meeting of the local Jirga to settle, with other elders, a commercial dispute. A missile was fired from a drone and the claimant's father was killed with 49 others who were attending the Jirga.
The claimant asserts that the missile was fired from a drone operated by the CIA. He describes a community "plagued with fear" as drones hover over their skies day and night. The community are fearful of gathering together lest such a congregation arouse suspicion; and children do not dare attend school. He concludes: "my hope is that this brutal assassination will end. The people of NWA are against these strikes. I am against these drone strikes".
The allegation that the strikes are linked to agents of the US Government and to United Kingdom employees of GCHQ is based on a number of reports, the effect of which can be summarised in the report of the Sunday Times, dated 25 July 2010:
"GCHQ, the top-secret communications agency, has used telephone intercepts to provide the Americans with 'locational intelligence' on leading militants in Afghanistan and Pakistan, an official briefed on its operations said. Insiders say GCHQ can provide more extensive and precise technical coverage in the region than its American sister organisation, the National Security Agency, because Britain has a better network of intercept stations in Asia…GCHQ uses satellites and planes to collect and analyse the location of telephones used by militants. The Sunday Times have agreed not to disclose further details of these operations at the request of the agency…Cheltenham—based GCHQ said it was proud of the work it did with America, which it said was in "strict accordance with the law."
The response of the Secretary of State has been to invoke the consistent and conventional policy of neither confirming nor denying the assertions; to do so would risk damaging the important public interest in preserving the confidentiality of national security and 'vital' relations with international partners. The claimant suggests that that policy has already been breached in the reported assertion of acting "in strict accordance" with the law. Such an assertion is said to be inconsistent with the policy of saying nothing. The dispute led to a late attempt by the Secretary of State to introduce material which was said to cast doubt on the accuracy of the report of GCHQ's comment. It was far too late for the Secretary of State to introduce that material and I have ignored it.
I do not, however, think that the point is of any significance. GCHQ's reported assertion of the legality of its activities does not amount to a breach of the policy of 'no comment'. The real question is the impact of that policy on the issues which require resolution: does the fact that the claimant is compelled to rely on unconfirmed reports preclude the grant of permission? The extent to which it is possible to identify a firm factual foundation is an important question which I shall have to determine, but at this stage I shall merely note that, through no fault of the claimant, his case rests on a respectable but unconfirmed report.
It is relevant to the analysis of the nature of this claim to observe that the claimant has also launched proceedings, as a...
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