K & Ors v The Secretary of State for Defence & Anor [2014] EWHC 4343 (Admin)

Case No CO/4215/2014[2014] EWHC 4343 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 19/12/2014
Before
MR JUSTICE CRANSTON
Between
K, A and BClaimants(1) The Secretary of State for DefenceDefendants(2) Secretary of State for Foreign and Commonwealth AffairsDefendant
Between
HM Attorney General
Samantha Knights (instructed by Deighton Pierce Glynn) for ClaimantsNicholas Moss (instructed by Treasury Solicitor) for DefendantHearing Hearing dates: 06/11/2014
Judgment

Introduction

[1]This judgment deals with an application for pre-permission disclosure and for permission to apply for judicial review. The background and nature of the judicial review claim are dealt with in Burnett J’s judgment on the interim relief claim and there is no need for me to repeat it here: see [2014] EWHC 3023 (Admin). In summary the claim is brought by three Afghan nationals who allege that they worked for the defendants for a number of years as covert human intelligence sources (“CHIS”) in the south of Afghanistan. As a result of this work they contend that they face regular threats and are at risk of their lives as are their families. The defendants do not accept any liability in relation to the claimants although they concede that in principle such individuals are thought of as attractive targets by insurgents and may face fatal reprisals. The defendants deny that the claimants were locally engaged staff (“LES”).[2]The claimants issued proceedings on 9 September 2014 which raise both public law and private law claims. They seek a declaration that the defendants have acted unlawfully in failing to extend to them the Afghanistan Staff Intimidation Policy (“the Intimidation Policy”) or the Afghanistan Ex-gratia Scheme (“the Ex-gratia scheme”), both of which are schemes for contracted Afghan locally engaged staff. In the alternative they seek a declaration that the defendants have acted unlawfully by failing to promulgate a policy of equivalent protection capable of applying to the claimants. They further seek an order mandating the defendants to provide them with assistance to relocate and with compensation. On the private law side they seek both specific performance and damages.

Application for interim relief

[3]An application for interim relief came before Burnett J (as he then was) on 17 September 2014. He refused relief in a judgment handed down on 19 September 2014: [2014] EWHC 3023 (Admin). On 23 October 2014 the claimants sought permission to appeal his decision. After outlining the background, Burnett J referred to the nature of the private law claims. The debate was artificial, he said, because it proceeded on the assumption that English law applied. In any event applying the tests developed in English law to determine whether the claimants were employees, there appeared to him to be no mutuality of obligation and no real control exerted over them. There might be contractual arrangements in place, although there were problems with that, including the nature of any implied terms, and with the scope of any duty of care: [19]. Thus Burnett J concluded that the argument in support of interim relief rested upon the public law claims.[4]In relation to the public law claims, Burnett J concluded that they were weak. The policies the claimants invoked were concerned with individuals who were in open employment with the British authorities in Afghanistan, “ in colloquial language, those who were on the books. It is fanciful to suppose that it was designed to cater for CHIS”: [22].Burnett J continued:
“[23] The argument that the policies would be unlawful if the claimants did not fall within them proceeds on the basis that the defendants “failed to treat persons in a similar situation similarly”
. It is suggested that because a CHIS might be at risk in consequence of his work for the British authorities there is no material difference with LES who come under threat. This too appears to me to be a weak claim. A CHIS is in a very different position from a person in open employment properly so called. The best the claimants can establish is that there was a contract for services, rather than employment. The policy in question relates to employees. It applies to people whose employment by the British authorities was overt and thus known to all. It applies to those who were made redundant. These claimants were not made redundant. Their evidence suggests the relationships just fizzled out. The involvement of CHIS is covert with the expectation that it will remain confidential. The claimants are not comparing like with like.” Burnett J added that it was unknown whether there was a separate policy in place to protect CHIS who run into difficulty but whether to have such a policy was a matter of political judgment upon which the courts would be very slow to dictate an outcome: [24].[5]As to the claimants’ contention that they had protection under articles 2, 3 or 8 of the European Convention on Human Rights (“ECHR”), Burnett J stated that the claimants would have to persuade the domestic courts to expand upon their current understanding of the Strasbourg jurisprudence relating to the territorial reach of the Convention since the claimants, and all those who might threaten them, are in Afghanistan, in areas where there has never been effective control by British Forces. He also rejected as unarguable the notion that the claimants should be treated as if they were serving members of the British Armed Forces, and so able to benefit from the extension of Convention protection envisaged by the Supreme Court in Smith v. Ministry of Defence [2013] UKSC 41; [2014] AC 52, or as if they were more generally under the control and authority of the United Kingdom and so, applying the language of the Grand Chamber in Al Skeini v United Kingdom (2011) 53 EHRR 18 at [137], benefited from its assumption of responsibility to secure them the rights and freedoms guaranteed by the Convention. “[I]t is not arguable that the relationship explained by the claimants in their evidence involved control and authority leading to the conclusion that the British state had jurisdiction over them. Their position was in no way analogous to serving members of the Armed Forces.”:[25].

Application for disclosure

[6]On 17 October 2014 the claimants issued an application notice in which they sought disclosure of:(1) undisclosed policies which would be relevant to individuals carrying out the type of work which the claimants performed;(2) materials specifically relating to the claimants, including those documents generated by the policies and the Regulation of Investigatory Powers Act 2000 (“RIPA”) if applicable;(3) all iterations of the Staff Intimidation Policy and Local Employment Staff (“LES”) Policy; and(4) the direction that local employed staff were not to be employed as collection assets. The claimants also sought(5) a confirmation that records were complete; and(6) a statement whether the policy for Iraq locally employed staff was ever applied to anyone carrying out intelligence related work.[7]The defendants in a response dated 15 October 2014 objected to disclosure on five grounds:(1) the court could consider permission on the assumption that the claimants did provide intelligence to the defendants in Afghanistan;(2) the claimants were not entitled to wide-ranging disclosure pre-permission;(3) the expense which would be incurred with the disclosure which the claimants sought;(4) there was no breach of the duty of candour; and(5) the defendants relied on their “neither confirm nor deny policy” (“NCND”). The defendants have, however, provided additional information, including an earlier version of the Staff Intimidation Policy for Afghanistan. The defendants have also supplied additional information sought by the claimants in relation to record keeping and the direction that locally employed staff would not be employed as collection assets.

(a) The claimants’ application

[8]The application came before me for hearing on 6 November 2014. (It had been adjourned on the defendants’ request from 23 October). At that stage permission had not been considered. Before me the application covered(1) any policies relevant to issues of intimidation, risk, and safety applicable to any Afghan workers, CHIS, intelligence agents, and the handling of human intelligence assets in Afghanistan and elsewhere; and(2) all materials held by the defendants relating to the claimants, including those generated pursuant to the defendants’ policies and RIPA.[9]As regards the first category of documents, the claimants asserted that the defendants acknowledged that such documents may exist in their Summary Grounds, which said in part:
“The Secretary of State is not able on the same NCND grounds to state whether or not a separate policy for CHIS may exist in any particular country”
. The claimants contended that such documents should be disclosed in accordance with the defendants’ duty of candour prior to any decision being made on permission as such policies would inevitably be relevant to the claim as it relates to a breach of policy.[10]As regards the second category of documents, the claimants submitted that it is highly likely that the defendants hold relevant material that relates specifically to the claimants, which would be especially relevant to their claims under the European Convention on Human Rights. This follows from witness statements from the claimants about their engagement by the defendants. In particular K states that he signed a written contract. Moreover, such documents are required under the RIPA Code of Practice 2010. Paragraph 7.3 states: “Detailed records must be kept of the authorisation and use made of a CHIS”.

(b) Legal principles

[11]The defendants have a duty of candour in relation to applications for the judicial review of their decisions. The “Guidance on Discharging the Duty of Candour”, 2010, issued by the Treasury Solicitor, states at para 1.2:
“When responding to an application for judicial review public authorities must be open and honest in disclosing the facts and information needed for the fair determination of the issue. The duty extends to documents/information which will assist the claimant's case and/or give rise to additional (and otherwise unknown) grounds of challenge … It applies to every stage of the proceedings including letters of response under the pre-action protocol, summary grounds of resistance …”
Usually, the duty of candour will result in the disclosure of the facts and reasoning behind a decision. That includes relevant documents. The application for judicial review can then proceed and the court will not generally be concerned with finding facts. Its concern will be the lawfulness of the decision. The parties may agree sufficient facts for this purpose. Judicial review is unlike ordinary civil litigation: disclosure of documents is not required without the specific order of the court: CPR, 54 APD 12.1.[12]Exceptionally, the court may make an order for specific disclosure in judicial review proceedings. The authority binding on this court is Tweed v Parades Commission for Northern Ireland[2006] UKHL 53; [2007] 1 AC 650. The House of Lords held that where an application for judicial review turned on the proportionality of the defendant's actions, as with the European Convention on Human Rights, the disclosure of documents would be more readily ordered, although it would be carefully limited. Lord Bingham said “[E]ven in these [proportionality] cases, orders for disclosure should not be automatic. The test will always be whether, in the given case, disclosure appears to be necessary in order to resolve the matter fairly and justly”: [3] Lords Hoffmann and Rodger agreed, and they also agreed with Lords Carswell and Brown.[13]Lord Carswell referred to the duty of candour and the undesirability of allowing fishing expeditions (at [31]) and said that there was a need for a more flexible and less prescriptive principle, which considers the need for disclosure in accordance with the requirements of the particular case, taking into account the facts and circumstances. He said:
“[32] It will not arise in most applications for judicial review, for they generally raise legal issues which do not call for disclosure of documents. For this reason the courts are correct in not ordering disclosure in the same routine manner as it is given in actions commenced by writ. Even in cases involving issues of proportionality disclosure should be carefully limited to the issues which require it in the interests of justice. This object will be assisted if parties seeking disclosure continue to follow the practice where possible of specifying the particular documents or classes of documents they require, as was done in the case before the House, rather than asking for an order for general disclosure. ”
Lord Brown agreed, adding that disclosure orders are likely to remain exceptional in judicial review proceedings, even in proportionality cases, and the courts should continue to guard against expeditions for adventitious further grounds of challenge: [56].[14]In my judgment this is not a case where the court needs to order disclosure to resolve the case fairly and justly. In British Union for the Abolition of Vivisection v Secretary of State for the Home Department [2014] EWHC 43 (Admin), Ouseley J held that in rare cases there was jurisdiction under CPR 31.16 to order pre-action disclosure in support of judicial review proceedings: [32]. He went on to hold that it will not be necessary to order disclosure, at the permission stage, if the parties can agree sufficient facts to enable the judge to determine arguability fairly and justly. In my judgment it is a short and acceptable step that if the parties cannot agree all the facts, the court itself may make up the deficiency to enable it to determine permission fairly and justly. That course has the incidental outcome of keeping down costs at the permission stage. If permission is granted the case enters different territory.

(c) Factual assumptions for considering permission

[15]At the hearing there were submissions about the factual assumptions to be made, supplemented subsequently by written submissions. There was substantial agreement that the first assumption should be that the factual matters in the claimants’ witness statement are true. In relation to this and the other assumptions, the defendants made clear that whether CHIS were engaged in Afghanistan was neither confirmed nor denied.[16]However, there was disagreement about the assumptions to be made about the Intimidation Policy and Ex-Gratia Scheme. The claimants submitted that it should be assumed that there was a policy for CHIS in Afghanistan, which applied at the relevant time, and which contained equivalent protections and benefits to those contained in the Intimidation Policy for locally engaged staff. As a fallback they submitted that the assumed facts should be that there is a policy for CHIS who may have been engaged in Afghanistan at the relevant time, and the application or otherwise of that policy has not led to the claimants being given equivalent benefits to those available to locally engaged staff faced with a similar level of risk under the Intimidation Policy or the Ex-Gratia Scheme.[17]In my view the first version the claimants proposed assumes too much. It also seems unrealistic when the role of locally engaged staff and of CHIS are quite different. The second assumption the claimants proffer is closer the mark and will enable permission to be decided fairly and justly. Accordingly, permission should be decided on the basis of an assumed fact:
“There is a policy for any CHIS who may have been engaged in Afghanistan at the relevant time. The application or otherwise of that policy has not led to the claimants being given equivalent benefits and protections to those available to locally engaged staff under the Intimidation Policy or the Ex-Gratia Scheme.”
The Secretary of State contended that the assumption should be limited to MoD CHIS. To my mind that would narrow the scope of the claim unnecessarily.[18]The claimants contended that there should be a further assumed fact, that there is a file or files relating specifically to each of the claimants which is in the defendants’ possession or control containing relevant documents relating to the claimants’ work for the defendants. In my judgment that assumed fact is unnecessary to decide the arguability of the case in a fair and just manner: it goes to matters of detail, not substance.

Application for permission

[19]Subsequent to the hearing Ouseley J as the lead judge in the Administrative Court directed that in the interests of the efficient use of the court’s resources I should consider the application for permission. I do that on the basis of the assumed facts.[20]The claimants’ first ground revolves around the policy assumed to apply to them. Because the application or otherwise of that policy has not led to their being given equivalent benefits and protections available to locally employed staff that is said to be unlawful as it failed to treat persons in a similar situation similarly. There is no reason why the claimants should have been at a lesser risk from the Taliban than locally engaged staff and accordingly they should be entitled to protection. They were individuals who carried out dangerous work for the British and put their lives at risk and ought to reap the same benefits and protections as available to locally engaged staff.[21]I refuse permission on this basis. In doing so I accept the defendants’ submission that it is wholly unrealistic to suggest that there is no material difference between someone who has acted as an employee as locally engaged staff and someone who had provided intelligence services. In terms of exposure to risk, just one consideration is that locally engaged staff are overtly working for the British whereas CHIS activity is, by its nature, covert. In general terms the two categories of person are in different positions and there is no justification for equal treatment. In any event I am not persuaded that there is a legal principle demanding equal treatment in this context.[22]R (on the application of AK (Iraq)) v Secretary of State for Foreign and Commonwealth Affairs [2008] EWHC 2227 (Admin) considered the ex gratia scheme under which Iraqi staff working for British forces and civilian missions in Iraq could apply for exceptional leave to enter the United Kingdom. Two interpreters and a laundry assistant working for British forces fell outside the eligibility criteria in the policy. Blake J held that their exclusion was not unlawful. The policy reflected a balance between the demands of difficult competing considerations. Political judgment would have been made that adopting broad and generous criteria created threats to other considerations. “[24] These are highly sensitive questions of political judgment which are not for judges to make. The court will supervise and, in certain circumstances, critically review such policies, particularly where threat to life is the context of the policy. However, even on the highest level of anxious scrutiny that this court is able to perform, without overstepping its constitutional functions in this regard, this policy is not vulnerable to challenge.”[23]Analogous reasoning applies here. Thus there is no arguable discrimination or irrationality because the assumed policy for CHIS has not led to the claimants being given equivalent benefits and protections to those available to locally engaged staff. That was effectively the conclusion of Burnett J at the interim relief hearing. He regarded this aspect of the claim as weak; I agree.[24]The ECHR aspect of the claim is outlined at paragraph [5] above. As with the other aspects of the claimants’ case I agree with Burnett J’s analysis at the interim relief stage. However, I would go further. Given the state of the authorities I regard the ECHR aspect as totally without merit.

Conclusion

[25]There is a lack of merit in the public law aspects to this claim and I refuse permission.

Cited in 1 later judgment