Reprieve v The Prime Minister
| Jurisdiction | England & Wales |
| Judge | Dame Victoria Sharp P. |
| Judgment Date | 30 June 2020 |
| Neutral Citation | [2020] EWHC 1695 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 30 June 2020 |
| Docket Number | Case No: CO/3952/2019 |
[2020] EWHC 1695 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
THE PRESIDENT OF THE QUEEN'S BENCH DIVISION
and
THE HONOURABLE Mrs Justice Farbey
Case No: CO/3952/2019
The Queen on the Application of
Mr Ben Jaffey QC and Ms Natasha Simonsen by video (instructed by Birnberg Peirce) for the Claimants
Sir James Eadie QC, Mr Ben Watson and Mr James Stansfeld by video (instructed by Government Legal Department) for the Defendant
Special Advocates: Mr Angus McCullough QC and Mr Tim Buley QC (instructed by the Special Advocates' Support Office) appeared by video but made written submissions only
Hearing date: 9 June 2020
Approved Judgment
The Court directs that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
This is the judgment of the court to which both members have contributed. The claimants have applied for judicial review of the defendant's decision announced on 18 July 2019 that it was not necessary to establish a public inquiry to investigate allegations of involvement of the United Kingdom intelligence services in torture, mistreatment and rendition of detainees in the aftermath of events on 11 September 2001. In resisting the claim, the defendant has provided the court and the claimants with witness statements from two officials together with supporting documents. This evidence will be considered in open court. The defendant also seeks to rely on sensitive material and to withhold that material from the claimants and their legal representatives. In relation to the sensitive material, the interests of the claimants would be represented by special advocates in closed court sessions.
At a preliminary hearing, we heard submissions on (i) whether article 6(1) of European Convention on Human Rights (“the Convention”) applies to these proceedings and (ii) if so, whether the claimants are entitled to disclosure to the extent set out in Secretary of State for the Home Department v AF (No 3) [2009] UKHL 28, [2010] 2 AC 269.
Factual background
For present purposes, the facts need only be summarised. On 6 July 2010, the then Prime Minister, Rt Hon David Cameron MP, announced that an independent inquiry, to be chaired by Sir Peter Gibson, would be established to investigate the alleged involvement of the United Kingdom intelligence services in the rendition and mistreatment of detainees held by foreign security services. The Prime Minister stated that the inquiry would not be a full public inquiry, as some information would have to remain secret, but that it would be able to consider all relevant information. The Gibson Inquiry subsequently began work on what is described as a “preparatory phase.”
On 12 January 2012, the Metropolitan Police Service announced that it intended to investigate allegations of criminal wrongdoing in relation to the alleged rendition and ill-treatment of two Libyan nationals (Sami al-Saadi and Abdel Hakim Belhaj). On 18 January 2012, the then Lord Chancellor and Secretary of State for Justice, Kenneth Clarke MP, announced that, although the Gibson Inquiry had conducted preparatory work, it would not be in a position to start formally until the police investigations had been concluded. Kenneth Clarke stated that the Government intended to hold “an independent, judge-led inquiry” after the conclusion of the police investigations. The inquiry would “establish the full facts and draw a line under these issues.”
In December 2013, Sir Peter Gibson's report on his inquiry's preparatory work was published. On 13 December 2013, Kenneth Clarke, then the Minister without Portfolio, told the House of Commons that it would be wrong for a judge to hold an inquiry into material which the police were still investigating. He had, however, invited the Intelligence and Security Committee of Parliament (“the ISC”) to inquire into the issues raised by the Gibson Report. He stated that, after the conclusion of the ISC inquiry and the police investigations, it would be possible “for the Government to take a final view as to whether a further judicial inquiry still remains necessary to add any further information of value to future policy-making and the national interest.”
On 28 June 2018, the ISC published two reports: “Detainee Mistreatment and Rendition: 2001–2010” and “Detainee Mistreatment and Rendition: Current Issues”. On 22 November 2018, the Government published its response to the reports. On 18 July 2019, the Minister for the Cabinet Office, David Lidington MP, announced the Government's decision not to hold a public inquiry into detainee issues because various statutory and non-statutory steps — which had by then been taken — had led to improved policies and practices.
Procedural history
On 9 October 2019, the claimants launched judicial review proceedings on two grounds. First, the claimants emphasise that the prohibition of torture, inhuman and degrading treatment or punishment in article 3 of the Convention imposes a positive obligation on States to conduct an effective independent investigation into allegations of ill-treatment (as elucidated in cases such as El-Masri v Former Yugoslav Republic of Macedonia (2013) 57 E.H.R.R. 25). The claimants submit that the article 3 investigative obligation arises in this case. The defendant's decision not to hold a public inquiry breaches the obligation. Secondly, it is submitted that the decision is irrational because (in summary) the various steps taken by the Government were not a sufficient reason for abandoning the previous decision that a public inquiry was necessary. The claimants seek (among other items of relief) an order quashing the decision not to hold an independent, judge-led inquiry.
The defendant resists the claim on the grounds that there is no need for a public inquiry because there is no unmet investigative obligation of the sort envisaged in El-Masri or otherwise. The relevant issues have already been properly considered in other reviews and reports. A public inquiry would be disproportionately costly in light of the lessons already learned and the significantly changed landscape in which the relevant issues would be addressed. The decision under challenge is reasonable and cannot be impugned on public law grounds. In opposing the claim, the defendant seeks to rely on “sensitive material” within the meaning of section 6(11) of the Justice and Security Act 2013, namely “material the disclosure of which would be damaging to the interests of national security.”
Permission to apply for judicial review was granted by Hilliard J on 25 November 2019. Given that he relies on sensitive material, the defendant applied for a declaration that these are proceedings in which an application for a closed material procedure could be made under section 6(1) of the 2013 Act. In support of a declaration, the Home Secretary provided a witness statement to the effect that the closed material could not be disclosed to the claimants because the interests of national security would be damaged.
On 19 March 2020, Garnham J approved a consent order which made the section 6 declaration and gave case management directions in relation to all steps up to and including the substantive hearing for judicial review. By that time, special advocates (Mr Angus McCullough QC and Mr Tim Buley QC) had been appointed under CPR 82.9. Garnham J set a timetable for the Special Advocates to consider the closed material and for the court to rule on any challenge to keeping the material closed.
On 21 April 2020, the directions were varied by consent owing to the exigencies of the Covid-19 pandemic. The closed element of the proceedings was stayed pending resolution of the issues before us. We heard argument in open session only.
Legal framework
The scope of article 6(1)
Article 6 of the Convention enshrines the right to a fair trial. It is an absolute right. It has both a civil and a criminal aspect. The claimants do not submit that these proceedings are akin to criminal proceedings. In relation to civil proceedings, article 6(1) stipulates (among other things) that “in the determination of his civil rights and obligations…everyone is entitled to a fair and public hearing…”
The concept of “civil rights and obligations” cannot be interpreted solely by reference to national law but has an autonomous meaning within article 6(1) ( QX v Secretary of State for the Home Department [2020] EWHC 1221 (Admin), para 34; citing Ferrazzini v Italy (2002) 34 E.H.R.R. 45, para 24). It is now well-established that some rights classified domestically as public law rights may be classified as civil rights under the Convention. Procedures classified domestically as relating to public law can come within the civil aspect of article 6(1) if “the outcome was decisive for private rights and obligations” ( Ferrazzini, para 27).
Both the European Court of Human Rights and the domestic courts have nevertheless made clear that claims made in public law proceedings cannot simply be elided with “civil rights” under article 6(1). Administrative and executive decisions may involve the “hard core of public-authority prerogatives” which do not engage article 6 ( Ferrazzini, para 29). For example, immigration decisions (concerning the stay and expulsion of non-nationals) do not entail...
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Reprieve v The Prime Minister
...COURT OF JUSTICE, QUEEN'S BENCH DIVISION, ADMINISTRATIVE COURT The President of the Queen's Bench Division and Mrs Justice Farbey [2020] EWHC 1695 (Admin) Royal Courts of Justice Strand, London, WC2A 2LL Covid-19 Protocol: This judgment was handed down remotely by circulation to the parties......