R OMAR v Secretary of State for Foreign & Commonwealth Affairs
| Jurisdiction | England & Wales |
| Judge | Lord Justice Maurice Kay,Lord Justice Sullivan,The Master of the Rolls |
| Judgment Date | 21 December 2011 |
| Neutral Citation | [2011] EWCA Civ 1587 |
| Date | 21 December 2011 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C1/2011/2588 |
[2011] EWCA Civ 1587
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION,
ADMINISTRATIVE COURT (COLLINS J)
No: CO76452011
Royal Courts of Justice
Strand, London, WC2A 2LL
The Master of the Rolls
Lord Justice Maurice Kay (Vice President of the Court of Appeal, Civil Division
and
Lord Justice Sullivan
Case No: C1/2011/2588
Mr Raza Husain QC and Mr Ben Jaffey (instructed by Public Interest Lawyers) for the Appellant
Mr James Eadie QC and Mr Jonathan Hall (instructed by the Treasury Solicitor) for the Respondent
Hearing date : 8 December 2011
In this case Mr Omar is seeking, by judicial review proceedings, to obtain Norwich Pharmacal disclosure by the Secretary of State in connection with proceedings in Uganda. He was refused permission to apply for judicial review by Collins J in the Administrative Court. However, on 12 October 2011 Sir Stephen Sedley granted him permission to appeal to this Court. In his carefully considered reasons Sir Stephen explained that because of the complexity and sensitivity of the issues he was limiting his order to a grant of permission to appeal against the refusal of permission to apply for judicial review rather than granting permission to apply for judicial review and returning the case to the Administrative Court. As a result, counsel have addressed us on the basis that our concern at this stage is solely with the question of permission to apply for judicial review. It is common ground that, if we grant permission, the matter should return to the Administrative Court for substantive hearing.
Mr Omar is a Kenyan citizen who lives in Nairobi. He alleges that on 17 September 2010 he was detained in a shopping centre in Nairobi and bundled into a waiting vehicle by the Kenyan Anti-Terror Police Unit (ATPU). He was almost immediately driven to the Ugandan border where he was delivered into the custody of the Ugandan security forces. He was taken to the headquarters of the Rapid Response Unit (RRU) in Kampala. The following morning he was interrogated by three men —two American and one British. In all he was interrogated at least twenty times, mostly by American and British intelligence services officers. They were attempting to elicit information from him about Muslim organisations or individuals involved in terrorist activities. He was severely ill-treated during the interrogations. He was told that if he cooperated and agreed to act as an informant his interrogators would ensure that he was returned to Kenya. However, if he failed to cooperate, he would be charged in connection with the World Cup bombings which had taken place in Kampala in July and in which seventy people had been killed while they were watching World Cup matches on television in two separate locations. The Somali-Islamist Al-Shabaab group has claimed responsibility for the suicide bombings. In the event, Mr Omar refused to cooperate with his interrogators and he was charged with participation in the bombings. He has pleaded not guilty to all charges. He is one of a number of defendants. The trial stands adjourned pending other legal developments.
The first application to be made on behalf of Mr Omar was for habeas corpus, his wife having filed such an application in the Kenyan courts on 20 September 2010. On 21 September a Kenyan judge issued a writ of habeas corpus returnable the following day. However, on 22 September, an ATPU inspector filed an affidavit emphatically denying Mr Omar's allegations concerning his initial detention and handover to the Ugandan security forces. Mr Omar also commenced judicial review proceedings in the Ugandan courts but these seem to have been overtaken by a petition to the Constitutional Court of Uganda on behalf of eight of the defendants in the criminal trial. Mr Omar is the first named petitioner. In a nutshell, the petition alleges unlawful rendition from Kenya to Uganda in disregard of extradition law, ill-treatment and other wrongdoing. Mr Omar claims to be a victim of state malpractice akin to that which resulted in the successful appeal in Mullen [2000] QB 520. In the Ugandan criminal proceedings he is seeking a stay on the basis of an abuse of process as a result of unlawful rendition. In the petition to the Constitutional Court he makes the same and other complaints. His claim for Norwich Pharmacal relief is directed to obtaining disclosure from the Secretary of State of material which would assist in the Ugandan proceedings.
Since Norwich Pharmacal Company v Customs and Excise Commissioners [1974] AC 133, the principle has been developed in a number of cases including Arab Monetary Fund v Hashim (No5) [1992] 2 All ER 911; Ashworth Hospital Authority v MGN Ltd [2002] 1 WLR 2033; Mitsui & Co Ltd v Nexen Petroleum UK Ltd [2005] 3 All ER 511; President of the State of Equatorial Guinea v Royal Bank of Scotland International [2006] UKPC 7; R (Binyam Mohamed) v Secretary of State for Foreign & Commonwealth Affairs (No1) [2009] 1 WLR 2579; and Shaker Aamer v Secretary of State for Foreign and Commonwealth Affairs [2009] EWHC 3116 (Admin). In Binyam Mohamed, Thomas LJ, giving the judgment of himself and Lloyd-Jones J, stated (at paragraphs 133–134):
"It seems to us, therefore, that although the action cannot be one used for wide-ranging discovery or the gathering of evidence and is strictly confined to necessary information, and the court must always consider what is proportionate and the expense involved, the scope of what can be ordered must depend on the factual circumstances of each case. In our view the scope of the information which the court may order be provided is not confined to the identity of the wrongdoer nor to what was described by Lightman J in Mitsui… as 'a missing piece of the jigsaw'. It is clear from the development of the jurisdiction in relation to the tracing of assets that the courts will make orders specific to the facts of the case within the constraints made clear in Norwich Pharmacal and the cases to which we have referred.
We accept that the justification for the extension to the provision of more information than merely the identity of the individual or a certain specific fact was justified on the basis that equity was always prepared to assist the tracing of assets. However, where in this truly exceptional case information is said to be necessary to exculpate an individual facing a possible death penalty if convicted, we consider that a court is entitled to exercise the jurisdiction to order certain specific information be made available to serve the ends of justice, without the narrow circumscription that some observations suggest. A system of law under which it is permissible to order the provision of information to trace a person's property, but under which it was not permissible to order the provision of information to assist in the protection of a person's life and liberty, would be difficult to justify."
In the present case, as in Binyam Mohamed, Mr Omar faces the possibility of the death penalty in the event of conviction in Uganda.
The stance of the Secretary of State in the present case is that, consistent with his general practice, he will "neither confirm nor deny" that a British agent was involved in the interrogation of Mr Omar in Kampala. He disputes that Mr Omar can satisfy the necessity test and suggests that the present application is being advanced inappropriately "for wide-ranging discovery or the gathering of evidence". Mr James Eadie QC emphasises that he is limiting his submissions to potential "knock-out" points because this is no more than a permission application. In the event of permission being granted, he would have far more to say at any substantive hearing. At this stage, he is not inviting us to conclude that Mr Omar's account is inherently incredible.
In their helpful and commendably succinct submissions, counsel have addressed us by reference to four issues. I propose to adopt the same structure.
Issue 1: Is relief "necessary" by reference to unlawful rendition/abuse of process?
Nothing we have been shown leads to the conclusion that the Ugandan authorities will admit the unlawful rendition of Mr Omar. The point made on his behalf is that his chance of establishing unlawful rendition and, therefore, Mullen-style abuse of process, will be significantly enhanced if the Secretary of State discloses material confirming interrogation by a British intelligence officer in Kampala on the morning after the Kenyan ATPU handed him over to the Ugandan security forces. The case for the Secretary of State is that disclosure of such information (if it exists) is not "necessary". The Ugandan authorities are facing an allegation of unlawful rendition and they will only be able to resist it by adducing evidence of due extradition from Kenya or arrest within Uganda unassisted by any unlawful rendition. If the Ugandan authorities cannot establish due extradition or lawful arrest, the inevitable inference will be one of unlawful rendition.
It seems to me that it is highly unlikely that there will be evidence of due extradition from Kenya. When the Kenyan authorities were faced with a writ of habeas corpus their response was not by reference to due extradition but was a flat denial of the facts asserted by Mr Omar in support of the allegation of unlawful rendition. The claim was described as "outrageous". However, that does not lead to the inevitable conclusion that the Ugandan authorities, in the absence of due extradition, would...
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