R Omar Awadh Omar Habib Sulieman Njoroge and Another v The Secretary of State for Foreign and Commonwealth Affairs
| Jurisdiction | England & Wales |
| Judge | President of the Queen's Bench Division |
| Judgment Date | 26 June 2012 |
| Neutral Citation | [2012] EWHC 1737 (Admin) |
| Docket Number | Case No: C0/7645/2011 & C0/95112012 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 26 June 2012 |
[20121 EWHC 1737 (Admin)
IN THE IDGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
President of the Queen's Bench Division
and
Mr Justice Burnett
Case No: C0/7645/2011 & C0/95112012
Philippa Kaufmann QC and Tom Hickman (instructed by Public Interest Lawyers) for the Claimant (Omar)
Philippa Kaufmann QC and Ben Cooper (instructed by Bhatt Murphy) for the Claimants (Njoroge and Mbuthia)
James Eadie QC, Jonathan Hall and Karen Steyn (instructed by Treasury Solicitor) for the Defendant
Angus McCullough QC and Ben Watson (instructed by the Special Advocates Support Office)- Special Advocates
Hearing dates: 25,26 and 27 April and 16 and 17 May 2012
This is the judgment of the court.
INTRODUCTION
The applications before the court under Norwich Pharmacal principles seek evidence from the Foreign Secretary for use in proceedings before the Constitutional Court of Uganda.
The issues raised were of some complexity and a closed procedure was adopted for part of the proceedings, as we shall explain. This is an open judgment, but produced in such a form that the closed evidence, findings and conclusions are contained in annexes.
We will first set out the factual and procedural background.
THE FACTUAL AND PROCEDURAL BACKGROUND
(i) The bombing in Kampala on 11 July 2010
On 11 July 2010 during the FIFA World Cup Final taking place in South Africa, bombs were exploded in Kampala, Uganda, which resulted in the deaths of 76 people. Responsibility was claimed by Al-Shabaab. The Ugandan authorities asked for assistance from neighbouring and overseas police forces, including New Scotland Yard, the FBI and Interpol. They gave assistance.
(ii) The transfer of some suspects from Kenya to Uganda
On 22 and 23 July 2010, Mr Hussein Hassan Agade (Mr Agade) and ldris Magondu were detained in Kenya in connection with the bombing. It has been acknowledged by the Anti-Terrorism Police Unit of Kenya (the ATPU) in proceedings in Kenya that Mr Agade and Mr Magondu were transferred to Uganda. On 13 August 2010 Mohammed Hamid Suleiman was detained in Kenya and on the following day (as it is accepted by the Ugandan police), he was handed over to them by the ATPU. On 25 August 2010 the third claimant in these proceedings (Mr Mbuthia) was arrested in Nairobi; it is accepted by the Ugandan and Kenyan police that he was transferred to Uganda on 26 August 2010. In none of these cases was there any extradition or other judicial process in relation to the transfers.
(iii) The allegations of rendition and ill treatment
Although the transfers of those five persons from Kenya to Uganda are not disputed by the Government of Uganda, the Government of Uganda does dispute: (i) the claim of the second claimant (Mr Njoroge) that he was detained in Kenya by the ATPU on 4 September 2010 and transferred on 5 September 2010 to Uganda into the custody of the Rapid Response Unit (RRU); and (ii) the claim of the first claimant (Mr Omar) that he was detained in Kenya on 17 September 2010 by the ATPU and transferred immediately to Uganda into the custody of the RRU. It is claimed by the Government of Uganda, in evidence to which we refer at paragraph 43, that both were arrested in Uganda; indeed on 21 September 2010, the Kenyan and Ugandan press reported that Mr Omar (described as a top Al-Shabaab commander) had been arrested in Kampala.
Each of the three claimants, Mr Omar, Mr Mbuthia and Mr Njoroge, as well as Mr Suleiman, Mr Agade, Mr Magondu and others, were charged in Uganda on 30 November 2010 with murder and other offences arising out of the Kampala bombing on 11 July 2010. They allege that they were subjected to ill-treatment of a brutal nature which amounted to torture or cruel, degrading and inhuman treatment at the hands of intelligence and/or security agents of Kenya, Tanzania, Uganda, the USA and the UK.
In September 2010, the claimants and others were indicted before the International Crimes Division of the Ugandan High Court on charges of terrorism, murder and other offences.
They initially brought proceedings in the Administrative Court of Uganda in November 2010 alleging that they were unlawfully rendered from Kenya to Uganda.
(iv) The proceedings in the Constitutional Court of Uganda
In November 2011, they petitioned the Constitutional Court of Uganda. The Petition is pending in that court. The Petition contends that their rendition was illegal and that they were tortured and ill-treated. They argue that their rendition makes the proceedings against them unlawful and an abuse of process on principles similar to those set out in the judgments in R v Horseferry Road Magistrates' Court ex parte Bennett [1994] 1 AC 42 and R v Mullen [2000] QB 520. They also contend in the Petition that the treatment to which they were subjected by the Ugandan authorities not only makes statements they made inadmissible as evidence against them but also amounts to an abuse of process. In the proceedings the Government of Uganda denies torture or ill-treatment and asserts that Mr Omar and Mr Njoroge were arrested in Uganda.
The criminal proceedings have been stayed pending a decision on the Petition. The Petition has been listed for hearing but no date given.
(v) The commencement of Norwich Pharmacal proceedings in the Administrative Court
On 10 August 2011 Mr Omar began proceedings seeking information and evidence from the defendant (the Foreign Secretary) on Norwich Pharmacal principles in relation to his alleged rendition and his alleged ill-treatment. That information and evidence were sought for use in the criminal proceedings and judicial review proceedings in Uganda. That application was refused by Collins J, but on appeal on 21 December 2011 the claim was allowed to proceed in respect of information relating to rendition but not in respect of ill-treatment [2011] EWCA Civ 1587.
On 27 January 2012, Mr Njoroge and Mr Mbuthia began judicial review proceedings for Norwich Pharmacal relief similar to that brought by Mr Omar but for use also in the Petition to the Constitutional Court; Mr Njoroge sought relief in respect of his alleged ill-treatment and his alleged rendition; Mr Mbuthia only in respect of his alleged ill-treatment, as the fact that he had been the subject of rendition was not in issue in Uganda, as we have set out at paragraph 5.
On 20 March 2012, this court granted permission in respect of Mr Njoroge's claim for Norwich Pharmacal relief in respect of rendition, but refused it in respect of ill-treatment as it did in the case of Mr Mbuthia [2010] EWHC 681 (Admin). The Single Judge of the Court of Appeal, however, granted Mr Njoroge and Mr Mbuthia permission to bring judicial review proceedings in respect of ill-treatment.
Mr Omar seeks permission to amend his claim to pursue his claim for information and evidence relating to ill-treatment even though, as we have said, permission was refused both by Collins J and the Court of Appeal.
(v) The conduct of the proceedings
The charges the claimants face in re pect of the Kampala bombing in the criminal courts of Uganda carry the death penalty; the proceedings in Uganda assert very grave breaches of their human rights. They contend that the proceedings in this court are proceedings where, because of the gravity of the consequences that might be suffered by them and the very serious breaches of their human rights, relief should be granted provided the conditions set out in Norwich Pharmacal are met.
They say that those conditions can be satisfied because officers of the UK intelligence services were mixed up in the rendition and ill-treatment, any evidence held by the Foreign Secretary which would show they were rendered or mistreated would be necessary in the Ugandan proceedings and that this court ought, in the circumstances to which we have referred, exercise its discretion to grant relief.
In the light of the fact that it is the claimants' case that intelligence officers were those who were mixed up, and in the light of reports that UK intelligence officers were present in Kenya and Uganda because of the threat to the UK from terrorist organisations, including Al-Shabaab, the necessary enquiry which would enable them to obtain Norwich Pharmacal relief would obviously involve issues that touched upon the national security of the United Kingdom.
They therefore agreed that that part of the proceedings necessary to protect the national security interests of the United Kingdom could be subject to closed proceedings. Mr McCullough QC and Mr Watson were therefore appointed as special advocates for the purpose of those proceedings. Although it was held by Ouseley J in AHK v Secretary of State for the Home Department [2012] EWHC 1117 (Admin) that closed proceedings are not generally permissible in Judicial Review, it was common ground before us that proceedings such as this fell into a different category and a Closed Material Procedure was permissible. We were referred to the written case of the Respondent's before the Supreme Court in AI Rawi and others v The Security Service and others [2011] UKSC 34; [2012] 1 AC 531 (where it was accepted that there was no objection to the use of such a procedure in a case such as Binyam Mohamed Nol). The Closed Material Procedure adopted in this case was agreed without any consideration or argument...
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