Secretary of State for the Home Department v Mohamed (formerly CC)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Maurice Kay,Lord Justice Sullivan,Lord Justice Briggs |
| Judgment Date | 02 May 2014 |
| Neutral Citation | [2014] EWCA Civ 559 |
| Docket Number | Case Nos: T1/2013/0170 & T1/2013/0234 |
| Court | Court of Appeal (Civil Division) |
| Date | 02 May 2014 |
[2014] EWCA Civ 559
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM HIGH COURT OF JUSTICE
(Administrative Court)
Lord Justice Lloyd Jones
PTA/01/2011
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Maurice Kay
Lord Justice Sullivan
and
Lord Justice Briggs
Case Nos: T1/2013/0170 & T1/2013/0234
PTA/10/2011, PTA1/2011, PTA20/2011, PTA/03/2012
Timothy Otty QC and Daniel Squires (instructed by Birnberg Peirce) for CC
Danny Friedman QC and Tom Hickman (instructed by Irvine Thanvi and Natas) for CF
James Eadie QC, Andrew O'connorandLouise Jones (instructed by Treasury Solicitor) for the Respondent
Hugo Keith QC, Zubair AhmadandShaheen Rahman (instructed by the Special Advocates' Support Office) as Special Advocates
Hearing dates: 28 January to 30 January 2014
Mohamed Ahmed Mohamed (formerly known as CC) and CF are British citizens. On or about 13 January 2011 they were arrested and detained in Somaliland. Although Somaliland is not a sovereign state in international law, the United Kingdom and many other states and international organisations, including the United Nations, have direct dealings with the administration there which operates independently of Somalia. Mohamed Ahmed Mohamed (to whom I shall now refer to as MAM) and CF are persons who were reasonably suspected by the Secretary of State to be, or to have been, involved in terrorism-related activity. They do not appeal findings to that effect. Their case is that they were arrested and detained in Somaliland and were later deported to the United Kingdom unlawfully and with the collusion of the United Kingdom authorities. Upon their return to the United Kingdom, they were subjected to control orders and, later, to terrorism prevention and investigation measures (TPIMs).
The control orders and the TPIMs were considered by way of statutory review by Lord Justice Lloyd Jones at a single hearing in the Administrative Court. He upheld them: [2012] EWHC 2837 (Admin): [2013] 1 WLR 2171. On these appeals, the appellants do not challenge the reasonableness of the Secretary of State's suspicion of terrorism–related activity or the necessity to make the control orders and TPIMs for purposes connected with protecting members of the public from a risk of terrorism. Their primary (but not their only) case is that the control orders and TPIMs should be quashed because they were obtained by an abuse of process. They contend that their position is analogous to that in the case of Mullen [2000] QB 520 in which a conviction for conspiracy to cause explosions and a sentence of 30 years imprisonment were quashed on grounds of abuse of process because Mullen had been unlawfully deported from Zimbabwe following collusion between the authorities in Zimbabwe and the United Kingdom. His successful appeal did not take issue with the charge of which he was convicted. It rested entirely on the unlawful procurement of his presence before the court.
Before turning to the substance of the present appeals, I should clarify two points. First, when this case was before the Administrative Court MAM was referred to as "CC". However, he later absconded, in breach of the terms of his TPIM. In addition to the present proceedings, there were ongoing proceedings in the Queen's Bench Division in the form of a claim for damages. An anonymity order in relation to those proceedings was lifted on 2 November 2013. In those circumstances, anonymity is no longer sought in relation to his present appeal. We did wonder whether his appeal should be stayed in these circumstances. However, we were told that, although the legal aid authorities had initially withdrawn his funding on being informed of the position by his legal representatives, an adjudication subsequently reinstated it. In these circumstances, and in view of the fact that CF's appeal would be proceeding in any event, the Secretary of State decided not to invite us to stay or dismiss MAM's appeal. With some reluctance, we allowed it to proceed.
Secondly, Lord Justice Lloyd Jones produced both an open and a closed judgment. So shall we. On the central issue of collusion between the United Kingdom and Somaliland authorities, he said in his open judgment:
"132…The position of the Secretary of State in these proceedings is that she neither confirms nor denies that the UK authorities were involved in the arrest, detention and deportation of [the appellants]. I have addressed these issues with that in mind.
133. With considerable reluctance I have come to the conclusion that these matters cannot be addressed in my open judgment. However, I have addressed these matters in detail in my closed judgment."
Nevertheless, he assumed "for present purposes" that the arrest, detention and deportation of the appellants were not in accordance with Somaliland law (paragraph 134). However, he concluded that, "having regard to the entirety of the open and closed evidence", neither the control orders nor the TPIMs were "offensive to the court's sense of justice and propriety", nor would upholding them "undermine public confidence in the legal system or bring it into disrepute" (paragraph 135).
Abuse of process
In his open judgment Lord Justice Lloyd Jones summarised the core allegations advanced on behalf of MAM in support of his case on abuse of process. He enumerated them as follows (at paragraph 78):
"(1) The Security Service was aware of [MAM's] presence in southern Somalia since 2007 and yet took no steps to seek his extradition or arrest prior to December 2010, despite viewing him as a serious threat to national security.
(2) On becoming aware by 22 December 2010 of [MAM's] impending travel to Somaliland, the Security Service saw such travel as an opportunity to bring restrictive measures against him either in Somaliland or in the United Kingdom.
(3) The Security Service, either alone, or with the United Kingdom Special Forces, then conducted a joint operation with Somaliland authorities to detain [MAM].
(4) The Security Service either knew that the planned operation had no basis in the law of Somaliland or Somalia and/or international law, or at best was recklessly indifferent to such legality and took no steps to ascertain whether it had any such basis. Given what must have been appreciated as to the risks of abuse following detention, serious breaches of the United Kingdom criminal law may also have occurred.
(5) The Security Service then participated actively in the interrogation of [MAM], despite knowledge that he had been abused and that he remained exposed to a risk of further abuse. Again, serious issues as to breach of domestic and international law as well as local law arise.
(6) The Security Service knew from the outset that there were real problems facing any prosecution of [MAM] in Somaliland because of the absence of available evidence and its preferred option from the outset was (or the very least swiftly became) that he be forcibly returned to the United Kingdom so that he could be placed under a control order.
(7) The Security Service advocated that course of forced return with the Somaliland authorities, despite knowing deportation to the United Kingdom might, or would, be unlawful if [MAM's] preferred option was to remain in Somalia. Again, the UK authorities either knew deportation was unlawful or were recklessly indifferent as to whether this was the case.
(8) Together with other UK agencies the Security Service then facilitated the removal itself, by permitting the grant of travel documents, paying for [MAM's] return flight and ensuring his supervision first by the Somaliland authorities and then by Emirate authorities.
(9) [MAM] was in fact subjected to an unlawful arrest, unlawful abuse on arrest, unlawful detention and unlawful deportation. He was the victim of breaches of both local law and international law and the UK authorities, through at least the Security Service, knew this to be the case or were recklessly indifferent as to whether this was so.
(10) But for the unlawful conduct to which he has been subjected, [MAM] would not be in this jurisdiction to face these proceedings and neither a control order nor a TPIM would have been served upon him."
Turning to CF, Lord Justice Lloyd Jones summarised the stages at which he alleges unlawful conduct by the United Kingdom authorities in his case as follows:
"(1) The UK liaison with Security Services or other officials in Somaliland prior to the [appellant's] apprehension on 14 January 2011.
(2) The apprehension on 14 January 2011 during which UK personnel were involved.
(3) The period between the apprehension on 14 January 2011 and arrival at Hargeisa Prison on 15 January 2011 during which UK personnel may have remained involved.
(4) The interrogation and detention in Hargeisa Prison between 15 January and 12 March 2011 during which UK personnel provided questions, shared evidence and may have been present on or nearby the prison site.
(5) The removal from Somaliland to the United Kingdom via Dubai on 13 and 14 March 2011 which is an act of an unrecognised state that cannot be recognised by a UK court and is otherwise not in accordance with Somaliland law.
(6) The conduct of Schedule 7 interviews in Heathrow Airport on 14 March 2011 where it was known the [appellants] had recently suffered ill-treatment and arbitrary detention.
(7) The Ministerial submissions of the Secretary of State prior to the decision to apply for a control order on 12 April 2011 and/or the application to...
To continue reading
Request your trial
-
Muna Abdule v The Foreign and Commonwealth Office
...with circumspection. He reminded me of the comments of Maurice Kay L.J. in Secretary of State for the Home Department v Mohammed [2014] 1 WLR 4240 at [20] that NCND is not a legal principle and, when the government runs up the NCND flag, the courts are not automatically obliged to salute i......
-
John Haralambous v St Albans Crown Court (1st Defendant) Hertfordshire Constabulary (2nd Defendant)
...against him and have the opportunity to lead evidence and participate in the court proceedings to refute them, citing Secretary of State for the Home Department v. CC [2014] EWCA Civ 559; [2014] 1 WLR 4240, [20]; Sher v. United Kingdom, App No 5201/11, [2015] ECHR [149]. Analysis 27 The st......
-
Secretary of State for the Home Department v LG and Others
...Special Advocates relied on the decision of Mitting J. in AT v SSHD [2009] EWHC 512 (Admin) and on the Court of Appeal in CF v SSHD [2014] EWCA Civ 559. 25 I rejected these submissions for reasons which cannot be put into open. 26 The TPIM notices were served on each of the Respondents on 2......
-
Petition Of Matilda Gifford For Judicial Review
...were unlawful interferences with her Convention rights. Mr O’Neill referred to CF v Secretary of State for the Home Department [2014] 1 WLR 4240; El-Masri v Former Republic of Macedonia (2010) 57 EHRR 25; Al-Nashiri v Poland (2015) 60 EHRR 16; R(Mousa) v Secretary of State for Defence [2012......
-
Closed Trials and Secret Allegations
...Independent Reviewer on theOperation of the Terrorist and Investigation Measures Act 2011, March 2013. Executive Summary and 1.29.49. [2014] EWCA Civ 559.50. Ibid. at 40.51. Ibid. at 42.270 The Journal of Criminal Law played a significant part in the determination of the first instance judg......
-
The European Convention on Human Rights and the Investigatory Powers Tribunal: Rationalising a Law unto Itself
...to Justice’ (Feb. 2018) [49] accessed 17 January 2019. 70 Mohamed Ahmed Mohamed and CF v Secretary of State for the Home Department [2014] EWCA Civ 559, [2014] 1 WLR 4240, 20. 71 [2015] UKIPTrib 13_132-9H. 72 IPT Rules 2018 (n 9), Rule 15(3). 140 Trinity College Law Review [Vol 23 C. Advers......