Salahuddin Amin v The Director General of the Security Service [Mi5] and Others
| Jurisdiction | England & Wales |
| Judge | Mr Justice Irwin |
| Judgment Date | 26 June 2013 |
| Neutral Citation | [2013] EWHC 1579 (QB) |
| Court | Queen's Bench Division |
| Date | 26 June 2013 |
| Docket Number | Case No: HQ09X03332 |
[2013] EWHC 1579 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Irwin
Case No: HQ09X03332
Patrick O'Connor QC and Danny Friedman QC (instructed by Bhatt Murphy) for the Claimant
Rory Phillips QC and Jonathan Hall (instructed by the Treasury Solicitor) for the Defendants
Hearing dates: 12 and 13 December 2012
FURTHER SUBMISSIONS MADE IN WRITING: 21 December 2012 and 17 January 2013
OPEN Judgment Approved by the court for handing down
Introduction
The Defendants seek to strike out the Particulars of Claim in this case as representing an abuse of process. The core point arising is whether the claim represents an unacceptable collateral attack on the rulings of Sir Michael Astill, sitting as a Deputy High Court Judge in the Claimant's criminal trial at the Central Criminal Court in 2006.
Factual Background
The Claimant is of dual UK and Pakistani nationality. He was born on 3 rd March 1975. From November 2001 to April 2004 he was living in Pakistan. [ Redaction]
On 3 rd March 2004, following advice from his uncle, a retired Pakistani brigadier, the Claimant surrendered himself voluntarily to the Pakistani authorities. The relevant agency was the Inter Services Intelligence ["ISI"]. The Claimant's account subsequently was that, although his surrender was voluntary, he expected to be detained only for a day or two. [ Redaction].
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There has never been any claim on behalf of the Claimant that he was directly mistreated in any way by any British officer.
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[Redaction] In due course on 8 th February 2005, the Claimant left Pakistan. On his arrival at Heathrow airport he was indeed arrested and was subsequently interviewed under caution. In the course of such interviews, later used as evidence in his trial, he made admissions of conspiracy with other defendants to use fertiliser-based explosives and a radio isotope bomb in the United Kingdom. [Redaction] As I have already indicated, he was subsequently charged, prosecuted and convicted of such a conspiracy.
The Claimant's Complaints
During the Claimant's interviews in the United Kingdom, he alleged to the interviewing officers that he had suffered ill treatment before arriving back in the UK. He claimed that he was bullied by the American agents and "even tortured once by Pakistan authorities". He claimed he had been threatened with being "skinned alive" and that that had brought him to make admissions. He claimed he had admitted things that he had not in fact done. He claimed that the interviewers in Pakistan were trying to involve him in matters of which he was not guilty. They had asserted to him that he was so involved and he felt that he had no choice but to agree, in order to get rid of them.
In the course of these interviews, the Claimant handed to the interviewing officers a handwritten note, in which he asserted a number of specific matters. He claimed that he was beaten, threatened and abused by ISI interrogators and made to hear the screams of other prisoners being interrogated. He had been subjected to mental torture by American agents with threats to send him to Cuba and threats to his family. He had been taken for questioning handcuffed, hooded and shackled. He was kept in terrible conditions. He claimed that before he flew to Heathrow he was told by Pakistan authorities that he had been originally arrested following orders from the United Kingdom, and that therefore he would arrive in the United Kingdom as a free man having "served his punishment" in Pakistan.
Unsurprisingly, given the background to this investigation, there was a prolonged and elaborate process of disclosure of information on the part of the Crown. Material was disclosed in tranches, with supplementary disclosure and, on occasion, corrections of earlier errors. Taken together, this body of material came to be known as the "MS" material. Much of it touched upon the Claimant's detention in Pakistan and the actions of the authorities in establishing knowledge about him and his activities.
In the course of the interlocutory criminal proceedings, bearing on disclosure and no doubt with an eye to forthcoming abuse of process applications, Counsel for the Claimant formulated a document entitled "Defence Summary of Treatment of Mr Amin in Pakistan Custody". This document encapsulated or crystallised the case intended to be advanced by the Claimant on that issue. It is not necessary to repeat the contents of the document because it is common ground that, for all practical purposes, the account of alleged mistreatment is the same as that incorporated into the Particulars of Claim in this case. It was on that basis that subsequently the applications to exclude interviews and to stay the criminal proceedings on the grounds of abuse of process were made.
Criminal Proceedings at the Old Bailey
By January 2006, interlocutory proceedings in the Crown Court were on foot. As I have already indicated, a good deal of the factual background was common ground, although it is of course important to stress that neither the Crown, nor any witness on behalf of the Crown, conceded that the Claimant had been mistreated to the extent he claimed. Nor did they make any concession of "complicity" in such mistreatment as might be established.
Written admissions were made pursuant to s. 10 of the Criminal Justice Act 1967. It is not necessary to recapitulate those fully here. However, there were important points expressly agreed. [Redaction]
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The Judge heard evidence in a voir dire between 31 st January and 10 th February 2006. The Claimant gave evidence, as did his uncle, the retired Pakistani brigadier. The Court also considered a statement from Syed Ali Hasan, "a principal researcher for Human Rights Watch in Pakistan". As the judge subsequently recorded, the statement of that witness:
"details human rights abuses found in Pakistan in relation to the interrogation of persons in custody. It was accompanied by a large volume of documentation setting out details. The contents of both the statement and the accompanying literature had been read and considered."
[Redaction] There was also evidence from a British police officer concerning the Claimant's arrival in the United Kingdom, his processing through arrest, procedures before interview and interviews. [Redaction] Evidence was also given to the judge by a Detective Superintendent Brunty, who had a supervisory role of the arrest and investigation of the Claimant.
The Claimant was represented at the Central Criminal Court by Mr Patrick O'Connor QC, as he was before me. Mr O'Connor submitted to the judge that the material before him established an abuse of process that should lead to a stay of the criminal proceedings. He put the matter on two bases. Firstly, he said there could not be a fair trial. Secondly, he said that it would be unfair for the Claimant to be tried because it would be contrary to the public interest in the integrity of the criminal justice system that a trial should take place. This was, Mr O'Connor submitted, abuse of process to the level and of the kind recognised in R v Horseferry Road Magistrates' ex parte Bennett [1994] 1 AC 42 and R v Mullen (1999) 2 Cr App R 143 [" Bennett/Mullen abuse"]. In allied submissions, Mr O'Connor also sought to persuade the judge, essentially on the basis of the same material, that the admissions made in interviews with British police officers after his arrival in the UK should be excluded from evidence pursuant to ss. 76 and/or 78 of the Police and Criminal Evidence Act 1984.
The judge rejected all of these submissions. He gave his decision on the abuse of process application on either 17 th or 18 th February 2006: both dates have been submitted to me. The ruling was followed by detailed written reasons which were handed down in May 2006. On 23 rd February 2006, the judge gave a detailed oral ruling rejecting the application to exclude the admissions in interview. I will quote from the judge's key conclusions a little later in this judgment.
The criminal trial thus proceeded with the Claimant's admissions in evidence. The Claimant's complaints about his treatment were brought before the jury who subsequently convicted him, although Pakistan was referred to throughout as "Country A".
The Criminal Appeal
The Claimant appealed his conviction. The appeal was heard between 10 th and 17 th June 2008 by the Court of Appeal (Criminal Division). The judgment of the court was delivered by Sir Igor Judge PQBD (as he then was) on 23 rd July: see [2008] EWCA Crim 1612.
The Court of Appeal set out a summary of the essential facts and noted that "the grounds of appeal which occupied the largest proportion of the hearing before us related to the circumstances of Amin's arrest and eventual production in the UK, complaints about the disclosure process, as it applied in this case, and an unsuccessful application to the trial judge to recuse himself." The Court went on to emphasise that at trial:
"the Crown did not adduce … any evidence whatever produced during the course of Amin's interviews in Pakistan. [Redaction] The prosecution relied exclusively on virtually 600 pages of notes made in the course of Amin's interviews in this country, in the presence of his solicitor, when Amin himself accepted that he had been properly treated. Indeed his own evidence was that although...
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