A, R (on the application of) v Secretary of State for Defence [2008] EWHC 3333 (Admin)

Case No CO/9282/2007

[2008] EWHC 3333 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

DIVISIONAL COURT

Venue Royal Courts of Justice

Date Thursday, 18th December 2008

Strand

London WC2A 2LL

B e f o r e:

LORD JUSTICE SCOTT BAKER

MR JUSTICE SILBER

Between

THE QUEEN ON THE APPLICATION OF AClaimant

Between

SECRETARY OF STATE FOR DEFENCEDefendant

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Mr R Singh QC and Mr D Squires (instructed by Public Interest Lawyers) appeared for Claimant

Mr C Lewis QC and Mr S Wordsworth (instructed by Treasury Solicitors) appeared for Defendant

J U D G M E N T

LORD JUSTICE SCOTT BAKER:

[1]Due to the hard work of counsel on both sides almost all of these issues on disclosure in this case have now been resolved by agreement, in the light of the observations that the court was making during the course of submissions.

[2]The first of those items that needs a ruling of the court relates to an exhibit, KRB 1, referred to at paragraph 33 of the Secretary of States's skeleton argument. That paragraph provides:

"The defendant has offered physical inspection of the original exhibit KRB 1 at the MOD, such inspection can be made by the claimants' solicitor accompanied by an expert instructed by the claimants. If following such inspection the claimants wish to carry out some form of testing on the documents (see claimants skeleton argument paragraph 74) they would have to inform the defendant of the nature of such testing so that the defendant can: "1) be satisfied that this is consistent with maintaining the integrity of the document; and. "2) consider whether it is appropriate to appoint his own expert or to propose the instruction of a joint report."

[3]During the course of argument we indicated that we would be minded to agree with that proposed solution; and Mr Singh Q.C. said that he would not wish to resist that suggestion and propose any alternative solution. Subject therefore to my Lord's view I would propose that that issue is resolved as is set out in paragraph 33.

[4]The second contentious issue relates to a document that the International Committee of the Red Cross, the ICRC, have provided to the Secretary of State and of which disclosure is refused. Our attention was drawn to paragraph 30 of exhibit DG 1 to the affidavit of Colonel Giles of the 15th October of this year. Paragraph 30 provides that the:

"ICRC during a routine ICRC visit to the DTDF, 3 of the detainees made fresh allegations that they had been punched and kicked repeatedly after capture at a time when they were already handcuffed or restrained. It was impossible to follow up these allegations at the time as the detainees refused to allow the ICRC permission to release their identities. Renewed contact has now been made with the ICRC to establish further details of the disclosure and other visits to the DTDF during the internment period of the prisoners or any other information they may deem relevant to the ongoing SIB enquiry."

[5]Mr Singh referred us to another document which referred not just to three but to all nine of the detainees. Mr Lewis, on behalf of the Secretary of State, submits that in any event this document is not relevant because it relates to events that occurred outside the ambit of this inquiry namely, in shorthand, on the battle field.

[6]For my part I am not immediately persuaded that the documents are not relevant. It seems to me that there is a very good argument, bearing in mind that the three detainees were at the time handcuffed, that this material may very well be relevant. However, the position is that routinely the ICRC do not permit disclosure to third parties of documents prepared by them relating to investigations that they have undertaken, for, it is submitted, the very good reason that this is likely to prejudice any future investigations perhaps in other countries. I would add that we were referred to an authority of the international court investigating atrocities in Yugoslavia which makes it plain that as a matter of international law, so Mr Lewis submits, documents of this nature routinely should not be disclosed and the court is not left with even the opportunity of conducting a balancing exercise. Mr Singh wishes to reserve his position on the law and to argue the point fully in due course if necessary.

[7]In the meantime, it seems to me that the first step that is required is to ascertain, without looking at any of the document what the up to date position is with the ICRC; and whether, indeed, there is any further material relating to the events described in paragraph 30. This is plainly a delicate matter and the court, in my judgment, would wish to see these documents, if satisfied that they were likely to be relevant to the issues that we will have to decide in April of next year.

[8]For my part, I think the matter should be taken by stages and the first stage would be to invite the Secretary of State to write to the ICRC explaining the problem that the court has in neutral terms. Mr Lewis has offered an undertaking that the Secretary of State will write a letter, at the request of the court, seeking the ICRC's views on disclosure of the document to the court and, if necessary, to the parties should the court so order. For my part, I would accept that undertaking, I would invite the Secretary of State to consider, although he is not to obliged to include it in the letter, any alterations suggested by Mr Singh, on behalf of the claimants, and indeed any alterations or additions suggested by the court; because I think it would be helpful if the court had an opportunity of seeing the letter before it is sent. I hope, therefore, that that can be done, if my Lord agrees, as soon as possible and so that we can then review the position, and if necessary hear further representations, including if appropriate representations from the ICRC, at the next direction hearing of this matter in February of next year. I hope that also by that time there will be clarity as to the up to date position of any further documents in relation to paragraph 30 to which I have referred.

[9]I think it is unnecessary to go into any more detail about what I anticipate is an agreed order between the parties that will shortly be submitted to the court. For my part that is how I would resolve the two outstanding issues.

MR JUSTICE SILBER: I agree.

[11]MR SINGH: I am grateful. Just this one practical point from our side which is that those instructing me would be grateful if they could retrieve the bundles if that is acceptable.

LORD JUSTICE SCOTT BAKER: Of course.

[13]Could you submit a draft of the order so we can just look at it before midday tomorrow?

[14]MR SINGH: Yes, of course, by midday tomorrow, yes.

LORD JUSTICE SCOTT BAKER: If we can have a draft of the letter by that time as well it would be --

[16]MR LEWIS: That will be impossible, my Lord, I have taken instructions and we need to involve the Foreign and Commonwealth Office and it will not be tomorrow.

LORD JUSTICE SCOTT BAKER: Well, it may be that we are not going to able to resolve this until the 12th January, but if we leave methods of communicating with each other, it may be possible to do it before then.

[18]MR LEWIS: We are obviously anxious, my Lord, we are not stalling but when you get into this level, there are other branches of government.