R (Omar) v Secretary of State for Foreign and Commonwealth Affairs
| Jurisdiction | England & Wales |
| Judge | The Lord Chief Justice of England and Wales,Lord Justice Maurice Kay,Lord Justice Richards |
| Judgment Date | 27 February 2013 |
| Neutral Citation | [2013] EWCA Civ 118 |
| Docket Number | Case No: T3/2012/2365 linked with /2365(B), /2366, /2366(B), /2365(C), /2365(Y), 2366(C), /2366(Y), 2366(D), /2365(D) |
| Court | Court of Appeal (Civil Division) |
| Date | 27 February 2013 |
[2013] EWCA Civ 118
The Lord Chief Justice of England And Wales
Lord Justice Maurice Kay, Vice President of the Court of Appeal, Civil Division
Lord Justice Richards
Case No: T3/2012/2365 linked with /2365(B), /2366, /2366(B), /2365(C), /2365(Y), 2366(C), /2366(Y), 2366(D), /2365(D)
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
(ADMINISTRATIVE COURT)
SIR JOHN THOMAS, PQBD and BURNETT J
REF: CO/7645/2011/CO951/2012
Royal Courts of Justice
Strand, London, WC2A 2LL
Ms Phillippa Kaufmann QC and Mr Tom Hickman (instructed by Bhatt Murphy for Njoroge and Mbuthia and Public Interest Lawyers for Mr Omar)) for the Appellant
Mr James Eadie QC and Mr Jonathan Hall (instructed by Treasury Solicitors) for the Respondent
Mr Angus McCullough QC and Mr Ben Watson: Special Advocates
Hearing dates: 10, 11, 12 December 2012
In R (Mohamed) v Secretary of State for Foreign and Commonwealth Affairs (No. 2) [2011] QB 218 the objective of the litigation was similar to that which arises in the present appeal from the decision of the Divisional Court. Binyam Mohamed was seeking information and documents believed to be in the possession of the United Kingdom Security Services which he believed would assist him to establish that his admissions to terrorist charges then being adjudicated before a United States Military Commission had been obtained by torture or by cruel, inhuman or degrading treatment. This claim was founded on the principles explained in Norwich Pharmacal v Customs and Excise Commissioners [1974] AC 133 and succeeded before the Divisional Court. Thereafter this court, differently constituted, but in a constitution of which I was a member, considered an appeal by the Secretary of State on a deceptively simple question, which was whether seven sub-paragraphs of the open judgment of the Divisional Court should be redacted or published. Notwithstanding the issue of more than one public interest immunity certificate by the Foreign Secretary that publication would cause a real risk of serious harm to national security, for the reasons which appear in the judgments, we concluded that the seven short sub-paragraphs of the judgment of the Divisional Court should be published.
Perhaps because when Mr Binyam Mohamed was removed from Afghanistan to Guantanamo Bay he had already established connections with this country as a resident with, from 2000, exceptional leave to remain, or perhaps because it was alleged that the wrongdoing to which he had been subjected had been facilitated by the United Kingdom Security Services, the question whether there was a statutory prohibition against the grant of Norwich Pharmacal relief when he was outside the jurisdiction, and the proceedings in which he was involved were taking place abroad, was not raised as an issue for consideration either before the Divisional Court or in this Court on appeal. None of us was invited to consider, and we did not consider the statutory arrangements in the Evidence (Proceedings in Other Jurisdictions) Act 1975 and the Crime (International Co-operation) Act 2003. In short, therefore, the decision in the Binyam Mohamed litigation does not and cannot open a path to the grant of Norwich Pharmacal relief to the present appellants if the effect of the statutory provisions is to close it. Similarly, notwithstanding the need for continuing flexibility in the development of Norwich Pharmacal principles, if in relation to the jurisdiction question, its development to cases where relief is sought by a defendant in criminal proceedings abroad is prohibited by statute, the prohibition cannot be circumvented.
The jurisdiction issue has been examined in the judgment of Maurice Kay LJ. I find it entirely persuasive on this and the remaining questions which arise for consideration. I therefore agree with him and have nothing further to add.
Norwich Pharmacal Co v Customs and Excise Commissioners [1974] AC 133 gave life to a remedy, derived from nineteenth century authorities, enabling a litigant to obtain from a non-party information required for use in his primary litigation. Initially, the remedy was sought in cases where the primary litigation was entirely domestic and between private parties. However, its subsequent development has seen its extension to cases where the primary litigation is taking place in a foreign jurisdiction and/or where it is of a public law nature. In the present case, the primary litigation is essentially criminal, albeit with constitutional issues, and is taking place in Uganda.
For immediate purposes, I can set the scene with brevity. On 11 July 2010, there was a terrorist atrocity in Kampala in which many lives were lost. The appellants stand charged in Ugandan criminal proceedings with murder and other offences in connection with the bombings. They have petitioned the Ugandan Constitutional Court claiming that the prosecution is an abuse of process and unconstitutional. Their case is that, after the bombings, they were the subject of unlawful rendition from Kenya to Uganda and that they have been subjected to torture and other cruel and inhumane treatment. Their allegations are denied by the relevant authorities in Uganda. In these proceedings in our jurisdiction, they seek Norwich Pharmacal relief, claiming that the Secretary of State for Foreign and Commonwealth Affairs has material in the form of information or evidence which, if provided to the appellants, would assist or enable them to establish their case in the Constitutional Court. In some respects, their case here resembles the one advanced with success in R (Mohamed) v Secretary of State for Foreign and Commonwealth Affairs [2009] 1 WLR 2579 (DC), [2011] QB 218 (CA), to which I shall refer as Binyam Mohamed.
The application in the present case was heard by the Divisional Court (President of the Queen's Bench Division and Burnett J) over five days in April and May 2012. The judgment of the Court was handed down on 26 June 2012: [2012] EWHC 1737 (Admin). It contains a fuller exposition of the facts. There was also a closed judgment, as there is now in this Court.
The Divisional Court refused the application. First and foremost, it did so on the ground that it lacked jurisdiction to grant relief. This was a new point, not foreshadowed in Binyam Mohamed or, indeed, in the initial submissions on behalf of the Secretary of State to the Divisional Court in the present case. Notwithstanding that the Court said that it lacked jurisdiction, it proceeded to consider the merits. It was satisfied that the appellants had made out a sufficient case of alleged wrongdoing in respect of removal from Kenya to Uganda without judicial process. Indeed, that was not disputed. However, it held that it would have refused relief in any event because (1) the appellants had chosen not to seek comparable relief which was potentially available in the Ugandan proceedings; (2) they could not satisfy the test of necessity; and (3) relief should be refused as an exercise of discretion. There was also an issue as to whether the Secretary of State, through his officials or agents, was "mixed up" in the alleged wrongdoing for Norwich Pharmacal purposes. The legal principles relevant to that were dealt with in the open judgment but conclusions of fact were set out in the closed judgment.
Numerous aspects of the open judgment are criticised in the appellants' grounds of appeal. For reasons which will become apparent, it is not necessary for us to deal with all of them.
Jurisdiction
In the Binyam Mohamed litigation, the claimant succeeded in obtaining Norwich Pharmacal relief in the form of an order that the Secretary of State disclose material which might support his defence in American proceedings to the effect that a confession had been obtained by torture and cruel, inhuman and degrading treatment to which he claimed to have been subjected by the United States authorities and others on their behalf and which the United Kingdom security services were said to have facilitated. The wrongdoing had occurred in Afghanistan and Guantanamo Bay. It did not occur to anyone as the Lord Chief Justice has explained, in the course of protracted proceedings in the Divisional Court and in this Court that there might be a jurisdictional problem. Indeed, it was not until the proceedings in the Divisional Court in the present case were at an advanced stage that the Court raised the issue, thereby necessitating an adjournment for further submissions some weeks later. In its judgment, the Divisional Court concluded that it lacked jurisdiction.
The issue can be encapsulated in short form. There is domestic legislation which deals with circumstances and procedures wherein and whereby the courts of this country will assist in obtaining evidence required for use in proceedings in other jurisdictions. It is currently found in the Evidence (Proceedings in Other Jurisdictions) Act 1975 (the 1975 Act) and the Crime (International Cooperation) Act 2003 (the 2003 Act). The question is whether Norwich Pharmacal relief is excluded where a statutory regime covers the ground. Put another way, do the terms of the statutory regime preclude the judicial development of an overlapping or adjacent remedy? In order to answer this question, it is first necessary to determine whether the relevant foreign proceedings are criminal or civil. In the present case it is common ground that both the prosecution...
To continue reading
Request your trial
-
AQR Capital Management, LLC v The London Metal Exchange
...to enable action to be brought against the ultimate wrongdoer.” In R (Omar) v Secretary of State for Foreign and Commonwealth Affairs [2013] EWCA Civ 118, [2014] QB 112, at [30], Maurice Kay LJ emphasised that the necessity test is a threshold condition. However, the test is to be applied......
-
Various Claimants (Claimants) News Group Newspapers Ltd and Another (Defendants) The Commissioner of Police for the Metropolis (Respondent) 'TPQ' (Interested Party)
...than the other. 47 The high point of Mr Tomlinson's argument, in terms of authority, was the case of R (on the application of Omar) v Secretary of State for Foreign & Commonwealth Affairs [2013] 3 All ER 95. The decision in this case was to the effect that the Norwich Pharmacal jurisdiction......
-
Blythe v The Commissioner of an Garda Slochána
...was nevertheless regarded as sufficient involvement or participation (per Lord Woolf CJ at para 34). In R (Omar) v Foreign Secretary [2013] EWCA Civ 118, [2014] QB 112, the Court of Appeal (per Maurice Kay LJ) went so far as to suggest – albeit obiter – that any requirement for proof of f......
-
R (Unaenergy Group Holding Pte Ltd and Others) v Director of the Serious Fraud Office
...a proposed obligation afflicted by the difficulties already outlined. Though the context is somewhat far removed, the decision in R (Omar) v Foreign Secretary [2013] EWCA Civ 118; [2014] QB 112 serves as a reminder of the difficulty of introducing common law obligations or remedies into t......
-
High Court Refuses Norwich Pharmacal Disclosure Order In Aid Of Foreign Proceedings
...request" from foreign courts and prosecuting authorities: Criminal proceedings: In R (Omar) v Secretary of State for Foreign Affairs [2013] EWCA Civ 118 (discussed in this earlier blog post) the Court of examined the Crime (International Co-operation) Act 2003. It observed that that regime ......
-
Norwich Pharmacal Relief In Multi-jurisdictional Cases
...not properly take account of the decision in R (on the application of Omar) v Secretary of State for Foreign and Commonwealth Affairs [2013] EWCA Civ 118and the resulting line of cases. The judge said that the Omar line of cases establishes that Norwich Pharmacal relief is not available to ......
-
Norwich Pharmacal Relief: Expansion Of Conditions To Include "Proper Purpose"
...not properly take account of the decision in R (on the application of Omar) v Secretary of State for Foreign and Commonwealth Affairs[2013] EWCA Civ 118and the resulting line of cases. The judge said that the Omarline of cases establishes that Norwich Pharmacal relief is not available to ob......
-
BVI Norwich Pharmacal Relief: An International Problem Resolved
...proceedings. Ramilos followed the earlier English Court of Appeal decision in R (Omar) v Secretary of State for Foreign Affairs [2013] EWCA Civ 118 that had reached the same conclusion in the context of the UK's Crime (International Co-operation) Act Since the BVI's own Evidence (Proceeding......