Aamer v Secretary of State for Foreign and Commonwealth Affairs [2009] EWHC 3316 (Admin)

[2009] EWHC 3316 (Admin)

Case No CO/4060/2009

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

DIVISIONAL COURT

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 15/12/2009

Before

THE RT. HON LORD JUSTICE SULLIVAN

THE HON. MR. JUSTICE LLOYD JONES

Between

Shaker AamerClaimant

The Secretary of State for ForeignDefendant

and Commonwealth AffairsDefendant

Mr. Richard Hermer QC and Miss Charlotte Kilroy (instructed by Birnberg Pierce & Partners) for Claimant

Mr. Angus McCullough and Mr. Martin Goudie (instructed by the Treasury Solicitor, Special Advocates Support Office) as Special Advocates for Claimant.

Mr. James Eadie QC, Mr. Alan Payne and Ms. Carys Owen (instructed by the Treasury Solicitor) for Defendant

Hearing Hearing dates: 8 th December 2009

Judgment

[1]This is the judgment of the Court.

[2]The Claimant, Mr. Shaker Aamer, is a citizen of the Kingdom of Saudi Arabia and a British resident. Following his capture in Afghanistan in December 2001 he has been detained by US military authorities in various locations in Afghanistan and, since February 2002, in Guantanamo Bay, Cuba.

[3]The Claimant maintains that during the course of his detention by US Military authorities he has been subjected to torture and to cruel, inhuman and degrading treatment.

[4]In these proceedings against the Secretary of State for Foreign and Commonwealth Affairs (“the Secretary of State”) the Claimant seeks disclosure of materials, alleged to be in the possession of the Defendant, which support his case that any confessions he may have made during his detention were induced by torture or ill treatment. The basis of the application is the court’s Norwich Pharmacal jurisdiction, as developed in Binyam Mohammed v Secretary of State for Foreign and Commonwealth Affairs (“Binyam Mohamed 1”)

[2009] EWHC 2048

;

[2009] 1 WLR 2579

[5]The Claimant is a citizen of the Kingdom of Saudi Arabia who arrived in the United Kingdom in 1996. On 3rd January 2001 he was granted indefinite leave to remain in the United Kingdom on the basis of marriage. His wife and four children live in the United Kingdom and are British nationals.

[6]The Claimant maintains that he was first detained in Afghanistan in December 2001 by Afghan villagers, then turned over to Northern Alliance irregulars who in turn handed him over to the US military. He was flown by helicopter to Bagram Air Force Base and has been in US custody continuously ever since.

[7]The Claimant alleges that during his detention at Bagram Air Force Base he was commonly beaten during interrogations. He claims that he was subjected to cold water treatment, hog tying, sleep deprivation, threats of rendition to Egypt, Israel and Jordan and threats to his family. He refers to one occasion, on which, after a few days of sleep deprivation, he was taken to an interrogation room. The Claimant alleges that his interrogators included a member of the UK Security Service. On this occasion the Claimant alleges that someone grabbed him by the head and started beating his head against a wall. He was threatened that if he did not tell the truth he would die. The Claimant maintains that the member of the Security Service made no attempt to stop the ill treatment and thereafter made no enquiries into his health or well being.

[8]The Claimant alleges that a few weeks later, by which time he had been moved to Kandahar Air Force Base, Afghanistan, he was interrogated by two members of the UK Security Service. They told him that the Security Service had been watching him in the United Kingdom and they wanted to interview him before they closed their file. The Claimant alleges that no help or assistance was offered to him and that throughout this period his ill-treatment by the US authorities continued.

[9]On or about the 13th February 2002 the Claimant was flown to Guantanamo Bay where he has remained ever since. He alleges that during his time there he has been subjected to beatings, sleep deprivation, temperature extremes and has been denied access to fresh air and recreation. He also alleges that he has been left in solitary confinement for more than three years.

[10]The Claimant maintains that during his interrogations he made confessions. Although he is unable properly to recall those confessions, his legal representatives maintain, on the basis of an examination of documents disclosed to them, that the sole source of a substantial number of the allegations against the Claimant is the Claimant himself. The known allegations against the Claimant include numerous allegations of involvement in fighting and training others for fighting between 1994 and 2001 in Bosnia and Afghanistan and allegations of connections with Al-Qaeda in the United Kingdom and the United States. The Claimant is also said to have described himself as a terrorist who harbours great hatred for the United States and Saudi Arabia and who would be willing to be a martyr for the cause.

[11]The confessions which underlie the allegations against the Claimant are said to have been made during interrogations which included or followed the ill-treatment described above and are therefore said to be unreliable. In the records of the Claimant’s interrogations seen by the Claimant’s US lawyers there is no information at all about his treatment prior to or during the interrogations and there is no evidence which corroborates the Claimant’s account of confessions made under duress. Accordingly, as matters stand, his legal advisers in the United States are unable to adduce any evidence to the US authorities that corroborates or otherwise supports his account of his mistreatment.

[12]Since 2007 the Claimant has been approved by the US Government for transfer from Guantanamo Bay. However he has not been released. Despite repeated requests by the UK Government for his release the US Government has not done so. This court has been told that the US Government appears to have planned to send him to Saudi Arabia where he would be detained on a “rehabilitation programme” which would involve indefinite detention for the purposes of re-education. It has been suggested that the Claimant’s failure to give his written consent to undergoing “rehabilitation” may be seen by the Saudi authorities as an obstacle to this course.

[13]On 22nd January 2009 President Obama issued an Executive Order calling for “a comprehensive inter-agency review” of the status of all individuals imprisoned in Guantanamo Bay. As a result, the US Attorney General has established the Guantanamo Review Task Force (“the Task Force”) which is assembling material and examining the case of every detainee at Guantanamo Bay. Once detainee information has been collected the Task Force is required to supply that information and its recommendation to a Review Board. Under the Executive Order, the review is to determine on a rolling basis and as promptly as possible whether it is possible to transfer or release the individuals currently detained in Guantanamo Bay consistently with national security and the foreign policy interests of the United States and, if so, whether and how this may be effected. The cases of individuals detained at Guantanamo Bay not approved for release or transfer are required to be evaluated to determine whether the Federal Government should seek to prosecute them for any offences they may have committed, including whether it is feasible to prosecute them before a court established pursuant to Article III of the US Constitution. In all other cases the Executive Order requires the review to select lawful means, consistent with national security and the foreign policy interests of the United States and the interests of justice for the disposition of the individuals concerned. In each case decisions as to disposition are required to be promptly implemented. The Executive Order also provides that the detention facilities at Guantanamo Bay shall be closed as soon as practicable and no later than 22nd January 2010.

[14]The review includes inmates such as the Claimant who have been previously approved for transfer. It is understood that in the case of the Claimant the options are his release to the United Kingdom, his transfer to Saudi Arabia for a period of indefinite detention, further indefinite detention in US custody or criminal prosecution in the United States.

[15]On behalf of the Claimant it is submitted that where a detainee’s lawyers are able to demonstrate that the evidence against a detainee is unreliable because it was obtained by improper means it is more likely that the detainee will be released. It is unlikely that the Claimant will be released to the United Kingdom unless he can satisfy the Task Force that he will not “return to the fight” and that he “satisfies security concerns”. This requires him to meet the allegations of his involvement in terrorism.

[16]On 23rd March 2009 the Executive Director of the Guantanamo Review Task Force informed counsel for all prisoners in Guantanamo Bay that any submissions to the Task Force must be made by 15th April 2009. On behalf of the Claimant it is submitted that there is no assurance that 22nd January 2010 will bring either release or judicial process for him; rather, any prisoner whose situation has not been finally determined by then will be likely to be placed in a different prison for an indefinite period.

Proceedings in the United Kingdom

[17]It is against this background that the Claimant has brought proceedings seeking the disclosure of documents in the possession of the Foreign Secretary.

[18]By letter dated 19th March 2009 to the Treasury Solicitor, the Claimant’s solicitors sought disclosure of material held by the security and intelligence agencies which, they maintain, would support his allegation that he had been a victim of serious wrongdoing. The letter explained that the information was urgently required for three purposes: to permit representations to be made to the newly formed Task Force, to identify and secure the prosecution of individual criminal wrongdoers in the United Kingdom and the United States and to enable the Claimant to bring civil actions for damages against individual wrongdoers in the United Kingdom and the United States.

[19]By letter dated 25th March 2009 to the Treasury Solicitor, the Claimant’s solicitors indicated that they had just been informed by his US lawyers that the Task Force required submissions to be lodged by no later than 15th April 2009.

[20]By 21st April 2009 the Defendant had not provided a substantive response to the pre-action letter nor had he indicated a time within which he expected to be able to do so. Accordingly, on that date the Claimant’s solicitors gave notice of their intention to issue proceedings in the Administrative Court on 24th April 2009, unless they received a substantive reply by close of business on 23rd April 2009.

[21]The claim form was issued on 28th April 2009. The Claimant sought disclosure of material that would support his allegation that he had been the victim of serious civil and criminal wrongdoing and an order requiring the Secretary of State to decide whether to disclose that material. The Statement of Grounds maintained that the claim was urgent. The Claimant was on hunger strike and his physical and mental health precarious. It stated that his case was currently under consideration by the Task Force and if he was able to produce evidence supporting his account of mistreatment by US and UK officials it would discredit his confessions and substantially improve his prospects of release. The Claimant sought disclosure of information falling into the following categories: a) All evidence held by the UK Government concerning the Claimant’s initial detention and transfer to Bagram and his subsequent transfer to Kandahar Air Force Base and Guantanamo; b) The identity of the US and UK agents involved in his interrogation, detention and torture; c) Records and documents relating to the interrogation of the Claimant, including those interrogations attended by UK officers at Bagram and Kandahar; d) Any information held by HM Government that would tend to indicate that the Claimant had been subjected to torture or inhuman and degrading treatment; e) Evidence indicating that the Claimant was not an unlawful enemy combatant and had not committed any criminal offences under UK or US law.

[22]On 29th April 2009 Sir Michael Harrison, sitting as a judge in the Administrative Court, made an order on the Claimant’s application for interim relief abridging time for the service of the Defendant’s Acknowledgement of Service to 6th May 2009. He also ordered that the application for permission to apply for judicial review should be determined by a judge on the papers by 13th May 2009.

[23]However, by letter dated 1st May 2009, the Treasury Solicitor requested the court to vary the order of Sir Michael Harrison so as to require service of the Acknowledgement of Service within the usual 21 days or to extend time to 13th May 2009. Expedition was opposed on the grounds that the Claimant had, in fact, not been on hunger strike. The letter also stated: “In respect of the Claimant’s proceedings before the Review Panel, the information available to the Secretary of State establishes that the Claimant is not considered to be a priority case for review. In addition the Claimant has not provided any information as to the likely time frame for the review process despite having US legal representation involved in the review process. In these circumstances, given the clear evidence that the Claimant is not considered to be a priority case and given the absence of any evidence suggesting imminent consideration of the Claimant’s case by the Review Panel, it is submitted that the Claimant has failed to establish the need for urgent consideration and the ordinary time scale for filing and serving an Acknowledgement of Service should apply.” (original emphasis)

[24]The letter stated that the Secretary of State was in the process of conducting a review of the documents in his possession. The volume of material stored in different locations was significant. He was undertaking precisely the review desired by the Claimant with a view to enabling him to make a properly informed decision on the Claimant’s request. The letter also contended that the Claimant’s assertion that his application was urgent was inconsistent with his decision to consent to a stay of his habeas corpus proceedings in the United States.

[25]On 29th April 2009, Ouseley J. ordered that there should be no abridgment of time for the service of the Acknowledgement of Service. He considered that Sir Michael Harrison would not have ordered abridgment had he had the letter of 1st May 2009. Some expedition was warranted but the choice of the Claimant to go on hunger strike was his and he could not dictate to the court what priority he should have.

[26]On 20th May 2009 the Defendant served Summary Grounds of Resistance. This document stated that the Secretary of State had not refused to provide information. On the contrary, searches were currently and urgently being conducted for the categories of material sought by the Claimant and reviews would then be undertaken with a view to responding to the request. The Summary Grounds of Defence stated at paragraph 25:

“The Secretary of State intends, when the search and review process is completed: (i) To disclose to the Claimant such responsive documents and information as he considers can be disclosed voluntarily having regard to any legal restraints on disclosure and to the public interest; (ii) To indicate as fully as is possible whether there are other responsive documents and information which cannot be disclosed and, if so, the nature of those documents; (iii) To provide the documents referred to in subparagraphs (i) and (ii) or the substance of the information within them to the United States authorities (subject only to any legal restraint in doing so, the public interest and satisfactory security handling arrangements of the kind that exist in the United States).” (i) To disclose to the Claimant such responsive documents and information as he considers can be disclosed voluntarily having regard to any legal restraints on disclosure and to the public interest; (ii) To indicate as fully as is possible whether there are other responsive documents and information which cannot be disclosed and, if so, the nature of those documents; (iii) To provide the documents referred to in subparagraphs (i) and (ii) or the substance of the information within them to the United States authorities (subject only to any legal restraint in doing so, the public interest and satisfactory security handling arrangements of the kind that exist in the United States).”

[27]The Secretary of State expected that the initial search and review would be completed within 28 days of the date of the filing of the Summary Grounds. Further consideration would require an additional minimum of 14 days.

[28]On 2nd June 2009 Collins J. considered a further application on behalf of the Claimant. He stated that while he recognised the Claimant’s real concerns, he was persuaded by the Acknowledgement of Service that what was there proposed was the most sensible and cost effective way of dealing with the case. He noted that disclosure had not been refused and that clearly work was needed to identify the documents. Accordingly he ordered that the Defendant within 42 days of service of the order file updated summary grounds.

[29]On 5th June 2009 and in direct response to the Claimant’s application for judicial review, the Legal Adviser to the Foreign Office wrote to the Acting Legal Advisor to the US Department of State in the following terms:

“As is required for the purposes of our litigation, HMG is in the process of carrying out extensive search and review of documents held with reference to the categories of information sought by Mr. Aamer. Following an initial consideration of material, it is clear that HMG has or may have information in its possession that may be relevant to the decision of the review in Mr. Aamer’s case. HMG will disclose to Mr. Aamer such documents and information which fall within the scope of his disclosure request as we consider can be disclosed voluntarily having regard to any legal restraints on disclosure and the public interest, including as regards national security and international relations. We will further indicate as fully as possible whether there are other documents and information in our possession which come within the scope of Mr. Aamer’s application which cannot be disclosed and, if so, the nature of those documents and the reason for non-disclosure in broad terms. Separately, we intend, on appropriate channels, to provide the US with copies of all the documents (or the substance thereof) that we hold which are within the scope of Mr. Aamer’s application (subject only to legal restraints on doing so, the public interest and satisfactory security handling arrangements) to ensure that, in so far as is possible, the Review has available to it all potentially relevant information.”

[30]By letter dated 18th June 2009 to the Administrative Court the Treasury Solicitor stated:

“The Secretary of State was informed yesterday by the United States authorities that the Review Panel established pursuant to Executive Order 13493 may be nearing a final decision on Shaker Aamer’s disposition. It has been confirmed by the US authorities that the Review Panel (i) will not take a decision to prosecute Shaker Aamer or continue his detention in US custody without considering any potentially relevant material as may be in the possession of HMG; but (ii) may take a decision to transfer Mr. Aamer to another country without considering such material.”

The letter stated that the Secretary of State was continuing his search for any relevant documents. That exercise was taking longer than expected because of the volume of material. The Secretary of State was urgently reviewing the documentation for purposes of assessing what, if any, material could be provided to the Claimant and to the United States.

[31]On 5th August 2009 Foskett J. considered an application by the Treasury Solicitor for a further extension until 11th September 2009 to comply with the order of Collins J. on 2nd June 2009. The judge granted the extension stating that it should be considered a final extension.

[32]Revised Summary Grounds of Defence were served on 11th September 2009. They employed the same classification of documents employed by the Claimant in the Claim Form. With regard to category (b), (the identity of US and UK agents) the Defendant disputed that it was necessary or appropriate to disclose this information. He stated that a bundle of responsive documents had been identified and collated and continued:

“Subject to Category 38 (b) (the identity of US and UK agents), and with considerable reservations as to even the potential relevance to the US review of Category 38 (a), the Secretary of State proceeds on the basis that the collated documents are at least potentially relevant to the US Review.”

The revised summary grounds also stated (at paragraph 24):

“At this permission stage, without prejudice to the Secretary of State’s position on other aspects of the Norwich Pharmacal test, the Secretary of State resists any order for disclosure to the Claimant on the basis of conditions 3 (Necessity) and / or 5 (Discretion).”

[33]It appears that on 8th October 2009 a bundle of relevant documents was provided by the UK Government to the Task Force.

[34]By letter dated 16th October 2009 to the Administrative Court the Treasury Solicitor stated:

“In paragraph 21 of the Revised Summary Grounds the Secretary of State proposed that the collated documents that may be relevant to the work of the Guantanamo Detainee Review Task Force would be provided to the US Government. I can now confirm that a bundle of potentially relevant documents was provided to Mathew Olsen, the Executive Director of the Guantanamo Detainee Review Task Force on 8 October 2009. The purpose of providing these documents is to ensure that, as far as possible, the Task Force has access to all potentially relevant information in possession of HM Government (“HMG”). These documents were supplied in confidence and on the basis that they would not be disclosed any further without the agreement of HMG, and specifically that they should not be disclosed to Mr. Aamer or his representatives. This is because the material is protectively marked”

. This was the first indication by the Defendant that he would oppose the disclosure to the Claimant or his legal representatives of the documents sought and was a considerable departure from his previous position. The letter also stated:

“It is our understanding that Mr. Aamer’s case is under active consideration under the review process and that all options are open. We have no current indication of likely time scales.”

In referring to the Claimant’s solicitor’s letter dated 9th October 2009, the Treasury Solicitor informed the Administrative Court:

“As set out in paragraph 24 of the Revised Summary Grounds, at the permission stage, the Secretary of State resists the Claimant’s application on the basis that there is plainly no necessity for an order and/or that plainly no such order should be made as a matter of discretion given the position taken by the Secretary of State and the other matters set out in the Revised Summary Grounds. The Claimant’s representatives suggest at point 4 of their letter that the Secretary of State appears to have no objection to the Claimant and his lawyers receiving the material being disclosed to the US Government. This misunderstands the position. As stated above, the UK Government has disclosed the material on a confidential basis, and specifically on the basis that it will not be disclosed to the Claimant or his representatives. The Secretary of State submits that permission should be refused.”

The Secretary of State submits that permission should be refused.”

[35]On 22nd October 2009 Burnett J. granted permission to apply for judicial review on the papers. He noted that the current position was that whilst the material would be taken into account by the Task Force it would not be disclosed to the Claimant in the United States unless the UK Government agreed or there was a court order for its disclosure. He considered that the application was in substance an application for disclosure on Norwich Pharmacal principles and need not have been made by way of an application for judicial review. However, to avoid procedural complications he granted permission. He was not persuaded that expedition was required.

[36]On 6th November 2009 the Claimant served Amended Grounds of Claim. These made clear that the Claimant was content with the ambit of the disclosure review conducted by the Defendant as set on paragraph 15 of the Revised Summary Grounds of Defence but reserved his position as to the adequacy of the review.

[37]On 25th November 2009 Collins J. gave directions for the hearing of the application. In particular, he requested that the Attorney General appoint a Special Advocate or Advocates as soon as possible.

[38]On 2nd December 2009 the Defendant lodged and served Detailed Grounds of Resistance. That document stated that the Secretary of State’s current understanding of the position in relation to the Claimant’s review was that active consideration continued to be given by the Review Panel to the Claimant’s case. That consideration included the possibility of transferring the Claimant to the Kingdom of Saudi Arabia. In the event that the transfer option were pursued it would be necessary for his ongoing habeas corpus proceedings to be ended. It was understood that this would provide the opportunity for the Claimant’s legal representatives in the United States to raise any objections to that course. The Task Force intended to make a determination in the Claimant’s case by 22nd January 2010 but the implementation of that determination would not be completed by that date.

The Norwich Pharmacal jurisdiction

[39]Although these proceedings were commenced as an application for judicial review, the relief sought is essentially disclosure of information under the principle established in Norwich Pharmacal Co. v Customs and Excise Commissioner

[1974] AC 133

. The classic formulation of that principle is in the speech of Lord Reid:

“[I]f through no fault of his own a person gets mixed in the tortious acts of others so as to facilitate their wrongdoing he may incur no personal liability but he comes under a duty to assist the person who has been wronged by giving him full information and disclosing the identity of the wrongdoers. I do not think that it matters whether he became so mixed up by voluntary action on his part or because it was his duty to do what he did. It may be that if this causes him expense the person seeking the information ought to reimburse him. But justice requires that he should co-operate in righting the wrong if he unwittingly facilitated its perpetration.”

(at p. 175).

[40]In Binyam Mohamed 1 the Divisional Court applied the principle in novel circumstances which, while they resemble the circumstances of the present case, are certainly not identical. There the Divisional Court concluded that the Norwich Pharmacal jurisdiction could be exercised for the purpose of ordering disclosure to a detainee at Guantanamo Bay facing possible criminal proceedings, of information capable of supporting his claim that confessions on which the prosecution intended to rely had been obtained by torture. That decision is not strictly binding on this court. However, neither party has sought to persuade us that the approach adopted in Binyam Mohamed 1 was wrong in law or should not be followed.

[41]The following questions arise:(1) Was there wrongdoing?

(2) Was the UK Government, however innocently, involved in the wrongdoing?

(3) Is the disclosure of the information necessary?

(4) Is the information sought within the scope of the available relief?

(5) Should the court exercise its discretion in favour of granting relief?

Wrongdoing

[42]The Claimant maintains that he was tortured and subjected to cruel, inhuman and degrading treatment while in the custody of the US military in Afghanistan and in Guantanamo Bay. The Secretary of State is content to proceed on the basis that it is arguable that the condition of wrongdoing is met.

Facilitation

[43]The person against whom the order is sought must be mixed up in the wrongdoing of others so as to have facilitated the wrongdoing. However, it is not necessary to show that the actions of the Defendant were causative of the wrongdoing (Binyam Mohamed 1 at paragraph 70). Moreover, it is sufficient to satisfy this condition that the Defendant became involved in facilitating the wrongdoing, even if his involvement was innocent.

[44]The Claimant maintains that the UK Intelligence Services became mixed up in wrongdoing. First, he maintains that UK officials sought to interview him while he was in detention in Bagram. He says it was then standard US practice to prepare detainees for interviewing by mistreating them in the hope of securing their co-operation at interview. He submits that the request to interview him facilitated such wrongdoing and encouraged his continued detention and torture. Secondly, he submits that UK officials were present during and were aware of the physical abuse of the Claimant but took no steps to stop it or to prevent further mistreatment. Thirdly, he maintains that no attempts were made to obtain undertakings as to the Claimant’s treatment or to secure his prompt release from incommunicado detention. Fourthly, he complains that the UK Government did not protest or object to the proposal that he be subjected to rendition to Guantanamo Bay. Fifthly, he contends that relevant information concerning his mistreatment has been concealed from the public in order not to embarrass the United States, thus facilitating the continued concealment of the underlying wrongdoing.

[45]The Defendant, noting that the concept of facilitation encompasses innocent involvement in the arguable wrongdoing, takes no point on facilitation.

[46]The Claimant identifies three purposes for which the disclosure of information is sought and for which it is said to be necessary.(1) to enable the Claimant’s lawyers to make submissions to the Task Force and thereby to assist in securing his release from detention without trial;

(2) to bring civil actions for damages against individual wrongdoers in the United Kingdom and the United States;

(3) to identify and secure the prosecution of individual wrongdoers in the United Kingdom and the United States.

[47]At the hearing before us on 8th December 2009, because of a lack of time and because of what we considered to be the urgency of the first basis given the present state of the proceedings before the Task Force, argument was limited to the first basis. Accordingly we do not propose to address in this judgment the alternative bases which have not been argued before us.

[48]Although no requirement for disclosure of the information to be necessary is mentioned in Norwich Pharmacal itself, it is clear from the way in which the principle has developed in the subsequent case law that there is such a requirement. Thus, in Ashworth Hospital Authority v MGN Limited

[2002] 1 WLR 2033

Lord Woolf CJ stated at para 57:

“The Norwich Pharmacal jurisdiction is an exceptional one and one which is only exercised by the courts when they are satisfied that it is necessary that it should be exercised. New situations are inevitably going to arise when it will be appropriate for the jurisdiction to be exercised where it has not been exercised previously. The limits which apply to its use in its infancy should not be allowed to stultify its use now that it has become a valuable and mature remedy.”

[49]There has been some uncertainty as to how strictly this condition should be applied. Thus in Mitsui & Co Limited v Nexen Petroleum United Kingdom Limited

[2005] 3 All ER 511

Lightman J. considered that the remedy was available only “where the Claimant requires disclosure of crucial information in order to be able to bring its claim or where the Claimant requires a missing piece of a jigsaw”. In his view it was a remedy of last resort to be exercised where innocent third parties were the only practicable source of information. Similarly, in Nikitin v Richards Butler LLP

[2007] EWHC 173 (QB)

Langley J considered that it was necessary to show that such information was vital to a decision to sue or an ability to plead and whether or not, even if it was, it could be obtained from other sources. However, in Binyam Mohamed 1 the Divisional Court preferred the approach of King J. in Campaign against Arms Trade v BAE Systems PLC

[2007] EWHC 330 (QB)

, at paras. 15–20, where he considered that the court was entitled to have regard to all the circumstances prevailing in the particular case including the size and resources of the applicant, the urgency of its need to obtain the information and any public interest in its having its need satisfied. In Binyam Mohamed 1 the Divisional Court concluded:

“It seems to us that the observations of Lightman J in Mitsui & Co Limited case and Langley J in Nikitin’s case put an undue constraint on what is intended to be an exceptional though flexible remedy. The intrusion into the business of others which the exercise of the Norwich Pharmacal jurisdiction obviously entails means that a court should not, as Lord Woolfe CJ in the Ashworth Hospital Authority made clear, require such information to be provided unless it is necessary. But in our view there is nothing in any authority which justifies a more stringent requirement than necessity by elevating the test to the information being a missing piece of a jigsaw or to it being a remedy of last resort… Moreover it would be inconsistent with the flexible nature of this remedy to erect artificial barriers of this kind.”

[50]We have been referred to a further authority which was not cited in Binyam Mohamed 1 and which is broadly to the same effect. In President of the State of Equatorial Guinea v Royal Bank of Scotland International

[2006] UKPC 7

Lord Bingham and Lord Hoffmann delivering the opinion of the Privy Council described this condition of Norwich Pharmacal relief in the following way:

“It is true that in some of the cases the word “necessary” has been used, echoing or employing the language of Order 24, Rule 13 of the Rules of the Supreme Court. But as Templeman LJ observed in British Steel Corporation v Granada Television Limited[1981] AC 1096, 1132, “the remedy of discovery is intended in the final analysis to enable justice to be done”

. Norwich Pharmacal relief exists to assist those who have been wronged but do not know by whom. If they have straightforward and available means of finding out, it will not be reasonable to achieve that end by overriding a duty of confidentiality such as that owed by banker to customer. If on the other hand they have no straightforward or available, or any, means of finding out, Norwich Pharmacal relief is in principle available if the other conditions of obtaining relief are met. Whether it is said that it must be just and convenient in the interests of justice to grant relief, or that relief should only be granted if it is necessary in the interests of justice to grant it, makes little or no difference of substance. In the present case the appellants were concerned to identify those who had financed the abortive coup in March 2004. It is not suggested that there was any legal means of doing so open to the appellant other than that which they chose.” (at para. 16).

[51]It is not a condition of the Norwich Pharmacal jurisdiction that the information is required for pending proceedings in a court of law. The fact that in the present case the Claimant seeks information for the purpose of enabling his lawyers to make submissions to the Task Force is no impediment to the application (British Steel Corporation v Granada Television Limited

[1981] AC 1096

per Lord Denning MR at p.1127, per Templeman LJ at p. 1132, per Lord Fraser of Tullybelton at p. 1200; Ashworth Hospital Authority v MGN Limited

[2002] 1 WLR 2033

per Lord Woolf CJ at para 46; Binyam Mohamed 1 at paragraphs 95-96). In the alternative, the Claimant argues that if, by the time this application for relief has been finally decided, a decision has been taken by the Review Panel, he would wish to rely on the information in making further submissions to Review Panel and/or to the US State Department. This equally falls within the scope of the Norwich Pharmacal jurisdiction.

Necessity: The Defendant’s objections

[52]The Secretary of State advances a number of objections to the Claimant’s submission that the disclosure of the information to him is necessary. They may be considered under the following headings.(1) The documents have been supplied to the Task Force and accordingly it is not necessary for lawyers acting on behalf of the Claimant to see them or to make submissions on them.

(2) The closing date for submissions to the Task Force has long passed.

(3) It is possible for the Claimant to apply to the Task Force for the disclosure of the information contained in the documents.

(4) It is possible for the Claimant to apply to the US courts in his stayed habeas corpus proceedings for the disclosure of the information contained in the documents.

[53]On behalf of the Secretary of State Mr. James Eadie QC points to the fact that the collated documents were provided to the Executive Director of the Review Panel on 8th October 2009. He submits that, given that the collated documents have been available to the Task Force for nearly two months and that all the evidence suggests that the Task Force has been and is continuing to review outstanding cases, there is no basis for suggesting that the collated documents will not be considered with care in determining the appropriate disposition for the Claimant. Furthermore, he points to the express requirement that the participants in the review obtain and consider all reasonably available information held by the US Government concerning each detainee. Accordingly, he submits that there is no reason to suppose that all documents in the hands of the US Government including the collated documents provided on 8th October 2009 would not be made available to and considered by the Task Force. On this basis he submits that the central concern identified by the Divisional Court in Binyam Mohamed’s case, namely that potentially relevant material might not be before and considered by the decision maker, does not arise in this case.

[54]We are unable to accept these submissions.(1) The short, and in our judgement complete, answer to these arguments on behalf of the Secretary of State is that the provision of the information to the Task Force without permitting the Claimant’s lawyers to make submissions on them would deny the Claimant the opportunity to put forward his case. There is a world of difference between supplying to the Task Force a body of documentation which may be capable of supporting the Claimant’s case and permitting his lawyers to make reasoned submissions on his behalf as to the significance of the information they contain. The interests at stake in the determination of the Task Force are so high and the potential consequences to the Claimant so grave that, in our view, nothing less than the opportunity to make such reasoned submissions can be considered sufficient.

(2) It may well be that the significance of certain information contained in the documents will not be appreciated without an intimate knowledge of the Claimant’s case. The evidence lodged on behalf of the Claimant on the application before us includes that of Mr. Clive Stafford Smith, one of the lawyers representing the Claimant in the United States. He gives evidence of another case in which he acted in which the Task Force appeared not to understand the significance of certain material in that client’s case. Mr. Stafford Smith was able to draw certain classified issues to the attention of the Task Force. He states that while they might theoretically have had access to all the classified information concerned, they certainly had not reviewed it in the coherent way in which an advocate would present it. Following these submissions it was concluded that the prisoner should not continue to be held. Further examples of such situations are provided by the litigation concerning Binyam Mohamed. At paragraph 104 of its judgment in Binyam Mohamed 1 the Divisional Court drew attention to specific ways in which items of information, not immediately identifiable as exculpatory, were claimed by his defence team to have proved essential in the presentation of his case. Moreover Mr. Stafford Smith, who also acted for Binyam Mohamed, explains in his evidence in the present case that when Mr. Mohamed’s US lawyers finally obtained the materials sought they were able to make submissions which persuaded the US Government to agree to his release. All this seems to us to accord with common sense.

(3) Moreover, we note that the proceedings before the Task Force are not transparent. There appears to be no provision for the publication of its decisions or the reasons for its decisions. It has been in operation for only a few months and has made few decisions. It has no established track record. The Claimant, while not seeking to challenge the good faith of the Task Force, is entitled to point to the lack of due process protections in its procedures as heightening the importance of the ability to make representations on the basis of the information sought.

(4) Our concerns in this regard are considerably increased by the statement by the US authorities on 17th June 2009 (confirmed by the Treasury Solicitor in his letter to the Administrative Court date 18th June 2009) that while the Review Panel will not take a decision to prosecute Mr. Aamer or continue his detention in US custody without considering any potentially relevant material as may be in the possession of the UK Government, it may make a decision to transfer the Claimant to another country without considering such material. Thereafter, the material was supplied to the US Government on 8th October 2009. There is, however, no evidence before us to indicate that following receipt of the documents the Review Team or any agency of the US Government has confirmed that the documents will be taken into account in considering the Claimant’s case.

[55]The Claimant maintains that any confessions he may have made were made as a result of torture or cruel, inhuman or degrading treatment. To the extent that the information held by the Secretary of State supports that claim, it is essential to the presentation of the Claimant’s case before the Task Force. For the reasons set out above, we consider that without the information sought and without the ability to make submissions on the basis of that information, the Claimant’s case cannot be fairly considered by the Task Force or the Review Board.

[56]The Secretary of State submits that the formal deadline for submissions, which was set at 15th April 2009, has passed and that, while it is understood from correspondence with the US Government that the Review Panel would consider the documents which have been provided by the United Kingdom, it is unclear whether the Review Panel would accept any further representations which the Claimant might now make.

[57]In the light of the history of these proceedings, this submission is deeply unattractive.

[58]On 25th March 2009 the Claimant’s solicitors informed the Treasury Solicitor that the Task Force required submissions to be lodged no later than 15th April 2009. Notwithstanding this, another month passed without a substantive response from the Treasury Solicitor and, as a result, the claim form was issued on 28th April 2009. Thereafter the Treasury Solicitor actively opposed all requests for expedition. Notwithstanding the knowledge of the Secretary of State of the deadline for submissions and the fact that it had passed, in his letter of 1st May 2009 to the Administrative Court the Treasury Solicitor submitted that the Claimant was not considered to be a priority case and given the absence of any evidence suggesting imminent consideration of the Claimant’s case by the Review Panel there were no grounds for urgent consideration. On 18th June 2009 the Treasury Solicitor informed the court that the Secretary of State had been informed the previous day by the US authorities that the Review Panel may be nearing a final decision in the case of the Claimant. Nevertheless, on 5th August 2009 the Treasury Solicitor sought a further extension until 11th September 2009 to comply with the order of Collins J. made on 2nd June 2009. Moreover, from 20th May 2009 onwards, the Claimant was under the impression that the Secretary of State intended, when the search and review process was complete, to disclose to the Claimant such responsive documents and information he considered could be disclosed voluntarily having regard to any legal restraints on disclosure and to the public interest. It was not until 11th September 2009, when the Revised Summary Grounds of Defence were served, that the Secretary of State resisted any order of disclosure to the Claimant on grounds of necessity or discretion and it was only on 16th October 2009 that the Claimant’s solicitors became aware that documents had been supplied in confidence to the United States Government on the basis that they would not be disclosed to the Claimant or his representatives.

[59]It is unclear whether the Task Force or the Review Panel would consider submissions on behalf of the Claimant if they were lodged now. However, President Obama’s Executive Order expressly requires the review to have regard to the interests of justice when making any decision as to disposal of detainees. We find it difficult to imagine circumstances in which a Review Panel, having regard to the interests of justice, would refuse to consider evidence that was potentially corroborative of claims of torture or ill-treatment and which had been made available to a detainee only after a deadline for making submissions had passed, simply on the basis that the deadline had expired. Moreover, given the importance of the decision to the Claimant, we consider that it would not be right to deny him the opportunity of persuading the Review Panel to consider his further submissions in the interests of justice.

Possible application to the Task Force for disclosure

[60]The Secretary of State submits that the disclosure of the information sought is not necessary because it is open to the Claimant to make an application to the Task Force for disclosure of the documents which have already been supplied to the Task Force by the UK Government.

[61]In response to this submission the Claimant relies on a “Respondents’ Status Report Addressing Information Gathering Efforts of Guantanamo Review Task Force” submitted by Mr. Michael F. Hertz, Acting Assistant Attorney General of the United States, and dated 16th April 2009. This document has been lodged in the US District Court for the District of Columbia where a number of civil actions by inmates of Guantanamo Bay are pending. After referring to the fact that there is not expected to be a consolidated database of all information concerning Guantanamo Bay detainees in the government’s possession, the Status Report continues:

“Making information available that the Task Force has gathered could be highly problematic for the additional reason that much of it is classified at very high levels, meaning that it is not readily accessible by persons outside the Task Force, even by most of the Justice Department counsel involved in the Guantanamo habeas litigation. The Task Force itself has only a limited number of staff responsible for collecting and reviewing detainee information, many of whom are not attorneys, who are generally unfamiliar with the scope of outstanding discovery orders and obligations in particular cases, and whose time and attention cannot be diverted to discovery searches pertaining to more than 200 habeas petitioners without running the risk of seriously compromising the progress of the review the President has ordered. Moreover, in as much as the classified information that the Task Force possesses originates from other agencies, the Task Force cannot authorise its release to persons outside the Government, including detainees’ counsel, without obtaining required clearances from these agencies.”

[62]The status report is accompanied by a declaration of Mr. Mathew G. Olsen, the Executive Director of the Guantanamo Review Task Force, dated 16th April 2009. Mr. Olsen explains that the information possessed by the Task Force is not readily accessible to persons outside the Task Force. He continues:

“16. Moreover the classified information accessible to the Task Force originates from a variety of intelligence agencies. As a result, the Task Force cannot authorize its release to persons outside the Government, such as counsel for habeas petitioners; rather, clearance would have to be obtained from the originating agencies in order to allow for such release. Indeed, some classified information accessible to the Task Force is subject to strict controls and cannot even be removed from the secure facility where the Task Force is housed – even for purely intra-governmental purposes – without the originating agency’s approval. 17. Finally, it would not be feasible or appropriate for the Task Force itself to become involved in conducting searches for information related to the Guantanamo habeas litigation. The Task Force has a limited number of staff responsible for collecting and reviewing detainee information, many of whom are not attorneys. They are generally unfamiliar with the litigation aspects of the habeas proceedings and the scope of outstanding discovery orders and obligations in particular cases. Most importantly, diverting their time and attention to discovery searches in the habeas litigation would seriously compromise the progress of the review ordered by the President, which is the sole purpose for which the Task Force has been constituted.”

[63]In the light of this evidence, we can see no real prospect of the Claimant obtaining the information he seeks from the Task Force. Even if the practical obstacles could be overcome, which seems most unlikely, the continuing opposition of the UK Government to the disclosure of this information to the Claimant or his lawyers would be an insuperable obstacle to any disclosure by the Task Force.

[64]The Secretary of State submits that it has been and remains open to the Claimant to make an application in the habeas corpus proceedings he has brought in the US Federal Court for disclosure of the documents supplied by the UK Government to the US Government. He submits that no good reason has been provided as to why the US habeas corpus proceedings should not represent a viable and practicable means of obtaining disclosure. He criticises the Claimant’s legal advisors for not having done so as soon as they knew that the documents had been provided to the Review Panel. He contends that given the speed with which disclosure was obtained in the Binyam Mohamed habeas corpus proceedings, there is no good reason why the Claimant should not seek access to the material in question in the United States. Accordingly, he contends that there exists an alternative remedy and that disclosure by order of this court is not necessary.

[65]The habeas corpus proceedings brought by the Claimant in the United States were commenced in the US Federal Court on 22nd December 2004. They were stayed pending an appeal against a decision confirming that detainees in Guantanamo Bay had the right to challenge their detention under the US Constitution. In June 2008 the US Supreme Court in Boumediene v Bush (12th June 2008) and the US Court of Appeals for the District of Columbia Circuit in Parhat v Gates (20th June 2008) issued opinions which provided a legal basis for detainees in Guantanamo Bay to seek their release from custody by the writ of habeas corpus. As a result, the stay on the Claimant’s proceedings was lifted. It is significant that thereafter on 6th November 2008 the District Court ordered in the case of this Claimant that the US Government disclose to him all reasonably available evidence in its possession or that it could obtain through reasonable diligence that tends materially to undermine the information presented to support the Government’s justification for detaining the Claimant. On 19th December 2008 the District Court ordered that the Claimant’s application for habeas corpus be stayed once again. This stay was by the consent of both parties.

[66]We are persuaded that if an application for disclosure were now to be made in the US habeas corpus proceedings it would encounter substantial practical difficulties. Mr. Stafford Smith explains that the likely timetable would be as follows. It would be necessary to consult with the Department of Justice on lifting the stay. Thereafter, a motion to lift the stay could be filed within a week. The US Government would then have the opportunity to respond to the motion. It is possible that it might oppose it on the ground that there are ongoing diplomatic efforts to resolve the case. A court order lifting the stay might not be obtained for some months but would not be expected to be obtained until Christmas at the earliest. A motion for discovery would have to be filed in the Secure Facility in Washington DC so that could not take place until mid-January 2010. The response of the US Government to the motion of discovery would be likely to take a month and would not be filed until mid-February at the earliest. There would then need to be a hearing on discovery which would be unlikely to take place before March 2010. It might thereafter be necessary to file a motion to compel discovery.

[67]Having regard to the Claimant’s urgent need to obtain the information contained in the documents, we consider that there is no “straightforward or available” alternative remedy available in the US habeas corpus proceedings as matters now stand.

[68]However, the Defendant submits that any difficulties that might be encountered in making such an application in the United States are the result of the Claimant’s failure to make a more timely application there. It is said that this is a situation of the Claimant’s making and that he should not be allowed to improve his position by relying on his own delay. However, this submission overlooks the course of the proceedings before this court and the change in position on the part of the Secretary of State. On 20th May 2009 the Secretary of State was indicating that when the search and review process was completed he intended to disclose to the Claimant such responsive documents and information as he considered could be disclosed voluntarily having regard to any legal restraints on disclosure under the public interest (Summary Grounds of Defence, paragraph 25). On 5th June 2009 the Legal Advisor to the Foreign Office wrote to the acting Legal Advisor of the US State Department restating this intention. However, on 16th October 2009 in his letter to the Administrative Court the Treasury Solicitor indicated for the first time that the documents had been supplied in confidence to the US Government and specifically on the basis that they should not be disclosed to the Claimant or his representatives.

[69]These matters have a very important bearing on the question whether the Claimant should now be denied a remedy here because he should have pursued a remedy earlier in the US courts. It was not until 16th October 2009 that the Defendant first made clear that he was not willing for the Claimant or his legal advisers to see any of these documents. That was almost six months after the proceedings had been commenced and for most of that time the Claimant’s solicitors had been led to believe that documents would be disclosed to them. Shortly after 16th October 2009 was the earliest date at which the Claimant’s lawyers could have been expected to set in motion the machinery to lift the stay on the habeas corpus proceedings in the United States so as to permit an application for disclosure there. Had they done so immediately it seems very unlikely that relief could have been obtained by 22nd January 2010. Indeed, the likely timetable indicated by Mr. Stafford Smith, referred to above, suggests that it would have been an impossibility. We are certainly not prepared to criticize the Claimant’s lawyers for having failed to do so. Moreover, having regard to the way in which these proceedings have been conducted on behalf of the Secretary of State and the position which has now been reached we would consider it grossly unfair to deny the Claimant relief on the ground that he should have made an application before now in the US courts.

[70]In any event, and quite apart from the practical difficulties identified above, it is far from clear that the US courts would be prepared to grant the relief which the Claimant seeks. It is a striking feature of the present case that, by contrast with the Binyam Mohamed litigation where the UK Government supplied potentially exculpatory documents to the US Government and urged it to make them available to Binyam Mohamed’s legal advisers in confidence(Binyam Mohamed 1, paragraph 147 (xiii)), the Secretary of State here has supplied the documents to the US Government on terms that they should not be supplied to the Claimant or his legal advisors. No explanation has been provided for this difference in approach or, indeed, for the apparent change in the Secretary of State’s position between 5th June and 16th October 2009 referred to above.

[71]The position now adopted by the Secretary of State may create a further obstacle to relief in the US courts. In Binyam Mohamed 5

[2009] EWHC 2549 (Admin)

[2009] 1 WLR 2653

the Secretary of State, apparently with the strenuous support of the US Government, urged the Divisional Court not to make public seven paragraphs temporarily redacted from its judgment in Binyam Mohamed 1, inter alia on the ground that the contents were derived from communications between the CIA and the Security Service and that to make these seven paragraphs public would infringe the principle of control over intelligence. In his certificate in that case the Secretary of State explained that there is a long established practice within intelligence communities that information passed by intelligence channels cannot be publicly disclosed without the consent of the State providing it. He maintained that this custom is of fundamental importance to the intelligence relationships maintained by the United Kingdom in protecting its national security. Moreover it is a custom which, he contended, has always to the best of his knowledge in practice been respected by courts in the United Kingdom. The Divisional Court rejected this submission on the basis that there is no legal rule to this effect, that the principle contended for is clearly not absolute and admits an exception in the case of court order disclosure, and that in the circumstances of that case the public interest in disclosure clearly prevailed. That decision is currently subject to appeal to the Court of Appeal.

[72]In the course of argument in the present case we drew attention to the possibility that, in any application for disclosure in the US courts, the Claimant’s lawyers might face an argument which is the mirror image of that advanced by the Secretary of State in Binyam Mohamed 5. The US authorities might well contend that the information had been supplied to them by the United Kingdom on a confidential basis and that it would harm the intelligence relationship between the United Kingdom and the United States were the United States authorities to release it without the consent of the United Kingdom. If there is any force in the Secretary of State’s argument that the intelligence sharing arrangements between the United Kingdom and the United States are based on a mutual expectation of confidentiality this would seem to be a distinct possibility.

[73]In this regard, we should point out that this court has not seen any of the documents in question and we are not aware of their nature or contents beyond the fact that they are identified by the Defendant as potentially relevant to the Claimant’s case. It was only in the afternoon of the hearing before us that we were told for the first time that some of the documents are of UK origin and some of US origin. To the extent that the documents are of UK origin there seems to be a real prospect that disclosure would be opposed in the US courts on the basis that such documents should not be disclosed without the consent of the United Kingdom.

[74]For this further reason, we would reject the Secretary of State’s submission that the relief sought is unnecessary because a straightforward or available alternative remedy is or was available before the US courts.

[75]Mr. Hermer QC on behalf of the Claimant made the further submission that even if an order for disclosure were obtained in the US courts the US Government would not comply with such an order. This is a bold submission, not least because the United States, like the United Kingdom, is a democracy founded on the rule of law. Nevertheless, Mr. Hermer sought to make good his submission by reference to evidence as to what is alleged to have occurred in the case of Binyam Mohamed and in the cases of other detainees at Guantanamo Bay. However, in the light of our conclusions set out above, we do not consider it necessary to address this submission any further.

[76]For the reasons set out above we are entirely persuaded that the relief sought by the Claimant is necessary.

[77]It was common ground between the parties that, with the exception of documents disclosing the identity of individual agents, the categories of documents sought fall within the scope of the available relief. However, the Secretary of State raises further objections to disclosure on the basis of statutory prohibitions on disclosure and public interest immunity. It will be necessary to consider these matters at a further hearing. If the Claimant is able to overcome these further obstacles in his path, it will then be appropriate to consider the precise terms of any relief ordered.

[78]The Norwich Pharmacal jurisdiction is discretionary. On behalf of the Secretary of State Mr. Eadie urged that we should not exercise our discretion in favour of the Claimant for two reasons.

[79]First, he submitted that the Claimant had been guilty of delay. For the reasons set out above we are unable to accept this submission.

[80]Secondly, he submitted that considerations of comity require that any application for disclosure should be made in the US courts. However, we consider that it is entirely appropriate for this relief to be sought in the courts of England and Wales. If Her Majesty’s Government in the United Kingdom is to be ordered, contrary to its wishes, to produce documents in its possession it should be this court and not a US court which does so.

Conclusion

[81]For these reasons, we would grant Norwich Pharmacal relief, subject to hearing further argument on statutory prohibitions on disclosure and public interest immunity.