Salahuddin Amin v Director General of the Security Service and Others
| Jurisdiction | England & Wales |
| Judge | Lord Justice Moore-Bick,Lord Justice Tomlinson,Lord Justice Underhill |
| Judgment Date | 26 June 2015 |
| Neutral Citation | [2015] EWCA Civ 653 |
| Docket Number | Case No: T3/2013/1797 |
| Court | Court of Appeal (Civil Division) |
| Date | 26 June 2015 |
[2015] EWCA Civ 653
Lord Justice Moore-Bick
Vice-President of the Court of Appeal, Civil Division
Lord Justice Tomlinson
and
Lord Justice Underhill
Case No: T3/2013/1797
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Mr. Justice Irwin
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr. Patrick O'Connor Q.C. and Mr. Danny Friedman Q.C. (instructed by Bhatt Murphy) for the appellant
Mr. Rory Phillips Q.C. and Mr. Jonathan Hall Q.C. (instructed by the Treasury Solicitor) for the respondents
Hearing dates: 11 th & 12 th December 2014
This is an appeal by the claimant in these proceedings, Salahuddin Amin, against the order of Irwin J. striking out his claim against the respondents, the Director of the Security Service, the Director of the Secret Intelligence Service, the Foreign and Commonwealth Office, the Home Office and the Attorney General, for damages for personal injury caused by ill-treatment during his detention and interrogation by the Inter-Services Intelligence Agency ("ISI") in Pakistan.
The appellant holds joint British and Pakistani nationality and at the time of his detention had been living in Pakistan for about three years. On his own account he became of interest to the Pakistani authorities. On the advice of his uncle, a retired Pakistani Brigadier, the appellant surrendered to ISI on 3 rd April 2004. Although he had surrendered voluntarily and was initially willing to co-operate, the appellant alleges that he was subsequently detained against his will until February 2005, when, contrary to his wishes, he was put on a flight to London. When the appellant arrived at Heathrow he was arrested by officers of the anti-terrorist branch of the Metropolitan Police and interviewed a number of times under caution in the presence of a solicitor. In the course of his interviews the appellant made various admissions implicating himself in a conspiracy to cause explosions in the United Kingdom. He and other conspirators were charged, tried and convicted on 30 th April 2007 of conspiring to cause explosions and sentenced to life imprisonment. In the appellant's case the judge, Sir Michael Astill, directed that he serve a minimum of 17 1/2 years in custody, reduced on appeal to 16 years and 9 months.
Background
In the course of his interviews the appellant said that during his detention in Pakistan he had been tortured by agents of ISI with the complicity of officers of the Security Service and the Secret Intelligence Service ("British officers"). He says that as a result he made a number of false confessions. It is not alleged that anything he had said under interrogation in Pakistan formed any part of the prosecution case against him, which was based principally on the confessions he had made in the course of his interviews in this country. However, at the trial the appellant contended that as a result of his experiences in Pakistan he had become extremely vulnerable to questioning and psychologically unable to resist giving answers which he thought the interviewing officers wanted. He said that as a result much of what he had said in his interviews was false.
Before the trial began the appellant applied to have the indictment stayed on the grounds that the complicity of the British officers in his interrogation and torture in Pakistan and his subsequent removal to London amounted to an abuse of executive power of sufficient gravity to render the prosecution an abuse of process. He also sought to have the evidence of his admissions in interview excluded under sections 76 and 78 of the Police and Criminal Evidence Act 1984 ("PACE"). The judge dismissed both applications and in the course of his rulings made various findings to which it will be necessary to refer in some detail at a later stage. The appellant's appeal against conviction, which was based on a number of different grounds, including the two rulings just mentioned, was dismissed in July 2008.
In November 2009 the appellant began the present proceedings against the respondents claiming damages for false imprisonment and personal injuries sustained while under detention in Pakistan. In summary, he alleged that he had been unlawfully detained by ISI for ten months, during which he was tortured. Although he did not allege that any British officers had mistreated him, the appellant did allege that they had been complicit in his detention, torture and subsequent deportation to the United Kingdom as a result of their co-operation with ISI and the Pakistani interrogators. The appellant's claim against the respondents was primarily put on the basis that they were vicariously liable for the actions of the individual officers, but the appellant also sought to hold the third and fourth respondents directly liable for their failure to give proper instructions to British officers or to control their actions.
On 15 th August 2012 the respondents applied for an order striking out the appellant's particulars of claim on the grounds that it was an abuse of the process of the court for the appellant to issue proceedings seeking to re-open issues that had been decided by the trial judge. Irwin J. allowed the application, struck out the particulars of claim and dismissed the claim. In his judgment he pointed out that complicity on the part of British officers lay at the heart of the claim, both because it was an essential element in any claim to hold the respondents vicariously liable and because it was an essential element in establishing a causative link between the personal acts or omissions of the third and fourth respondents and any harm suffered by the appellant. Having considered the allegations made in the particulars of claim and the findings made by Sir Michael Astill in his two rulings, the judge concluded that they overlapped entirely. In particular, as he pointed out, the judge had roundly rejected the allegation that British officers had been complicit in any wrongdoing by Pakistani officers. On that basis the proceedings were, in his view, an attempt to challenge the judge's rulings, and thereby the appellant's conviction, by collateral means and as such constituted an abuse of process.
The appellant obtained from the judge permission to appeal on three grounds:
(i) that the judge was wrong to hold that to allow the claim to proceed could be perceived as undermining the safety of the appellant's conviction (ground 1);
(ii) that the judge was wrong to hold that if the appellant were successful he could claim that the safety of his conviction had been undermined (ground 2); and
(iii) that the judge failed to apply a 'broad merits-based approach' to the identification of an abuse of process as required by Johnson v Gore Wood & Co [2002] 2 A.C. 1 and subsequent authorities (ground 15).
The appellant seeks permission to appeal in relation to the remaining 13 grounds of appeal and we decided that it would be convenient to hear argument on all matters before deciding whether to extend the grant of permission beyond that given by the judge.
Before turning to the principles on which this appeal turns, I think it worth emphasising the limited scope of the issues we have to decide. The question before Irwin J., and now before us on this appeal, was not whether the appellant was tortured while in detention in Pakistan or, if so, whether British officials were complicit in that torture. Rather, it is whether he is entitled to pursue those allegations again in these proceedings despite the fact that they have already been considered and rejected both in the course of his trial in the Crown Court and on his subsequent appeal. For the reasons which follow I do not consider that he is. Only in very special circumstances, which are not present in this case, is a person entitled to ask one court to decide again questions which have already been investigated and decided by another court in proceedings to which he was a party; all the more so when that decision has been the subject of an unsuccessful appeal.
Abuse of process — principles
There are many reasons why it is considered to be in the public interest that there should be finality in litigation. Among them is the recognition that to allow litigants to re-open questions that have been finally determined by a court of competent jurisdiction encourages the proliferation of proceedings, undermines the certainty which a final decision should bring and risks undermining confidence in the administration of justice generally. That is especially true when the original decision was made in criminal proceedings in which the standard of proof is high and conviction on indictment depends on the decision of a jury. The appropriate way in which to challenge a conviction is by appeal, not by bringing civil proceedings which, if successful, would cast doubt upon its reliability. In Hunter v Chief Constable of the West Midlands Police [1982] A.C. 529 Lord Diplock at page 536C-D described the court's power to control abuse of its process as
"… the inherent power which any court of justice must possess to prevent misuse of its procedure in a way which, although not inconsistent with the literal application of its procedural rules, would nevertheless be manifestly unfair to a party to litigation before it, or would otherwise bring the administration of justice into disrepute among right-thinking people."
Hunter's case is of particular significance in the present context because, as in this case, the original decision was made by a trial judge on a voire dire in criminal proceedings. In that case the accused, who were being tried for murder, sought to exclude evidence of their confessions on...
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