The Queen (on the Application of Maya Evans) v Secretary of State for Defence
| Jurisdiction | England & Wales |
| Judge | Lord Justice Richards |
| Judgment Date | 25 June 2010 |
| Neutral Citation | [2010] EWHC 3969 (Admin) |
| Date | 25 June 2010 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/11949/2008 |
[2010] EWHC 3969 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Richards
Mr Justice Cranston
Case No: CO/11949/2008
Michael Fordham QC, Tom HickmanandRachel Logan (instructed By Public Interest Lawyers) for the Claimant
James Eadie QC, Sir Michael Wood, Marina WheelerandKaren Steyn (instructed By The Treasury Solicitor) for the Defendant
Khawar Qureshi QC and Kieron Beal (instructed By The Special Advocates Support Office of the Treasury Solicitor) as Special Advocates
Hearing dates: 19–23 and 26–29 April 2010
OPENED SECTIONS OF THE APPROVED CLOSED JUDGMENT HANDED DOWN ON 25 JUNE 2010
(Annexed to Open Judgment dated 16 October 2013, neutral citation number [2013] EWHC 3068 (Admin))
PART I: INTRODUCTION
This is the closed judgment of the court. It is not a stand-alone document but needs to be read in conjunction with the open judgment in these proceedings (see [2010] EWCA Civ 1445). It deals with various factual matters that are relevant to the decision of the court but are the subject of a public interest immunity (PII) claim or statutory restriction on disclosure.
The matters in question were considered at the hearing of the judicial review application either in semi-closed sessions (in which the claimant's legal team took part) or in closed sessions (from which the claimant's team were excluded). The need for semi-closed sessions arose out of the fact that certain documents covered by PII were disclosed to the claimant's team by mistake and/or subject to appropriate undertakings, or it was accepted by the claimant's counsel that, notwithstanding the absence of a PII claim, there were legitimate reasons of public interest why information should not be put into the public domain (for example, to avoid the risk of identification of a complainant who had asked not to be identified).
We have decided to deal in a single closed judgment with the various matters considered at the semi-closed and closed hearings. The claimant's legal team, however, are entitled to know what use the court has made of the material that was the subject of submissions in the semi-closed sessions. Accordingly, we deal with that material in Part II below. Subject to confirmatory vetting, Part II (together with this introductory Part I) can be disclosed to the claimant's team. The material covered only in closed sessions, and not for disclosure otherwise than to the Secretary of State's team and the special advocates' team, is covered in Part III.
We have already indicated in the open judgment (see [13]) that we do not consider there to be sufficiently weighty reasons to override the public interest against public disclosure of the material dealt with this in this judgment. It will be seen that the material tends to reinforce the concerns we have expressed in the open judgment about the conduct of the NDS, but it does not evidence any wrongdoing by UK personnel or cast a fundamentally different light on the matters considered in the open judgment. If it did, we might have been led to a very different view on whether it should be put in the public domain.
There are some minor matters in relation to which the special advocates have raised specific issues as to the appropriateness of redactions on grounds of relevance, or as to putting into the public domain certain details in the closed material to which reference has already been made in open session (such as an individual's name or senior position). We have not spent time on these points, none of which seems to us to be of any materiality for the proper resolution of the case or for a proper understanding by the public of the reasons for our conclusions. Given the volume of material involved, it would not be in the least surprising if the closed material included a few passages that could properly be opened up; but we are not aware of anything that really matters and we take the view that a detailed trawl of the material with that purpose in mind would be a disproportionate exercise.
PART II: SEMI-CLOSED
The NDS
Transfer of detainees to the NDS
At [43] of the open judgment we have explained that ISAF standard operating procedures provide that the NDS should be considered as the preferable reception body for ISAF detainees who are transferred to the Afghan authorities.
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Meeting with Dr Saleh in January 2009
We have referred in the open judgment, in particular at [122] to [125], to the refusal of access to NDS Kabul in late 2008 and early 2009 and to the discussions that took place with Dr Saleh about this.
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The exception to the moratorium on transfers to NDS Kabul: prisoner 806
It has been explained in the open judgment that one exception has been made to the moratorium imposed in December 2008 in respect of transfers of UK-captured detainees to NDS Kabul. This exception was the transfer of an individual known as "detainee 806" to NDS Kabul on 15 January 2010. According to the closed witness statement of Mr Burton, the detainee is a senior figure in the insurgency, involved in attacks on UK and coalition forces and Afghan civilians. The assessment made was that to transfer him to NDS Lashkar Gah was not a viable option, since it would not have been possible for him to be prosecuted there. There was also believed to be a far greater prospect of successful prosecution in Kabul, the Afghan centre of counter — terrorism expertise. Release was an option to be avoided as far as possible because the intelligence assessment was that he would return immediately to activity supporting attacks in Helmand.
Before deciding on an exceptional transfer to Kabul, UK officials sought to assess the risk of the detainee being subjected to torture or serious mistreatment. Although the NDS had requested that the detainee be transferred to the NDS's counter-terrorist detachment, which had not been implicated in any allegations of mistreatment, it was considered very probable that, if their investigation was successful, he would subsequently be transferred to the investigations and pre-trial detentions division (i.e. Department 17). Representations were made, underlining the imperative need to adhere to the provisions of the MoU were the detainee to be transferred. In response, Dr Saleh gave specific reassurances that he would be treated humanely and that UK officials would be given full access to him in accordance with the terms of the MoU. A considered decision was then taken that an exception to the moratorium could be made in this case.
Following the transfer on 15 January, British Embassy staff made contact with the NDS liaison officer on 20 January requesting permission to visit soon thereafter. An initial delay was thought to be attributable to the chaos caused by various suicide bomb attacks in Kabul on 18 January. Embassy staff, however, then experienced considerable difficulty with gaining access despite repeated attempts to arrange a visit. They contacted the NDS on an almost daily basis. It was not possible to visit the detainee until 14 February, at Department 17, almost a month after he had been transferred by the UK.
During the period between the initial transfer and the first visit, detainee 806 was held at the NDS's counter-terrorism department for a few days and was then transferred to NDS Department 17. The UK's repeated efforts to secure a visit were blocked by a series of unsatisfactory excuses. It was thought that a key factor in preventing a visit was the fact that Dr Saleh was out of the country for several days and his personal permission was required to gain access to a senior detainee in Kabul; but Mr Fordham's analysis of the documents showed that this was not an entirely credible explanation. It seems that, as Mr Fordham submitted, UK officials were given the runaround until questioning of detainee 806 had been completed, and that this was done despite the specific assurances given prior to his transfer by the UK into NDS custody.
When detainee 806 was eventually visited on 14 February, NDS officers were not present during the meeting but were sitting directly outside the door, and it was thought possible that they overheard some of the conversation. At a second visit, on 1 March, NDS officers were neither present nor, it was thought, within earshot (though it was noted that there were large gaps at the top and bottom of the door). The position in relation to the third visit, on 16 March, was similar, though the official who reported on the visit noted that the newly built Department 17 facility (to which detainee 806 had been moved by the time of the second visit) had the capability for an eavesdropping device and CCTV and that there was an NDS mobile phone charging in the room throughout the interview. Visits have continued at two-weekly intervals since then.
Mr Fordham submitted that the circumstances of the interviews have not been such as to provide sufficient reassurance for an individual detainee as to his freedom to speak without risk of reprisal. It appears to us, however, that the interviews have taken place in a sufficient degree of privacy to give the detainee a reasonable degree of confidence that it would be safe for him to make a complaint. On the other hand, the very fact that visits to detainee 806 were prevented for an entire month despite the clear assurances that had been given is itself a strong indictment of the NDS at Kabul and their commitment to the MoU. It adds to the reasons...
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