Khaled v The Security Service & Ors [2016] EWHC 1727 (QB)

Case No HQ13X00363

[2016] EWHC 1727 (QB)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

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

Date 15/07/2016

Before

MR JUSTICE IRWIN

Between

(11) ABDULBAQI KHALEDClaimant

(1) THE SECURITY SERVICEDefendants

(2) THE SECRET INTELLIGENCE SERVICEDefendant

(3) THE ATTORNEY GENERALDefendant

(4) THE FOREIGN AND COMMONWEALTH OFFICEDefendant

(5) THE HOME OFFICEDefendant

Danny Friedman QC, Dan Squires QC (instructed by Birnberg Peirce) for Claimant

Rory Phillips QC, Kate Grange, Rosemary Davidson (instructed by The Government Legal Department) for Defendants

Angus McCullough QC, Tom Forster, Jenny Carter-Manning (instructed by The Special Advocates’ Support Office)

Hearing Hearing dates: 5th and 6th July 2016

Judgment

Mr Justice Irwin :

[1]This case forms part of a group of cases pleaded together, arising from the discovery of documents in Libya following the fall of Colonel Qadhafi, which bear on relations between the Defendants and the Libyan security services. In my judgment of 22 January 2015, Kamoka and Others v The Security Service and Others

[2015] EWHC 60 (QB)

, I rejected the application to strike out this claim on the ground of abuse of process. I indicated that this private law claim should be tried together with the Claimant’s outstanding claim for judicial review.

[2]On 11 December 2015, with the consent of the parties, I made a declaration in this Claimant’s case pursuant to S.6 of the Justice and Security Act 2013 [“JSA 2013”]. In an order dated 23 July 2015 (which was varied in an order dated 5 February 2016) I gave directions that standard open disclosure should be provided by the Defendants by 29 January 2016, and any application under S.8 of the JSA 2013 and CPR 82.13(2), as well as any application for PII, by 26 February 2016. This is the open judgment in respect of those applications.

[3]A closed judgment will be handed down on the same day as this judgment, the former to be read in the light of the latter. Further closed ruling or rulings are likely to arise.

[4]In addressing the approach to disclosure, the parties presently have a trial in contemplation, rather than any further interlocutory steps. Although directions for the onward carriage of the action will be given next term, I approach disclosure with a trial in mind.

Context: Summary Facts

[5]The Claimant is said to have become involved with the Sanabel Relief Agency (“SRA”) in the 1980s. The SRA has expressed aims of providing charitable relief in Muslim countries. The SRA was incorporated in 1999, and the Defendant’s case is the Claimant became a director on 6 April that year.

[6]The Claimant’s case is that in 2004 the Defendants, or more particularly officers of the First Defendant, sent questions to the Libyan Security Service (“LESO”) to be put to persons detained in Libya, concerning the SRA, and the Claimant. The Claimant infers the Defendants received answers; and that the information gained was instrumental in the steps the Defendants subsequently took in relation to him. The Claimant’s case is that information gained from Libyan detainees under the Qadhafi regime was “tainted”, meaning that it was unreliable and that it was or would have been unlawful to rely upon it, since it was likely to have been obtained by torture or inhuman and degrading treatment. It is claimed that the Defendants knew that, and should not have sought the information in such circumstances or relied on it.

[7]On 17 May 2004, the Claimant resigned, and was removed as a director of the SRA.

[8]On 18 January 2006, the United Kingdom applied to the United Nations Sanctions Committee, known as the “1267 Committee”, after the relevant UN Security Council resolution, for sanctions freezing the Claimant’s assets, imposing a travel ban and an arms embargo. The application was made on the basis that the Claimant was “associated with” Al Qaida. The Claimant was added to the Consolidated List on 7 February 2006. The decision to propose the Claimant for listing was taken by the relevant Foreign Office minister, Dr Kim Howells, following ministerial submissions. A consequence of the UN listing was that the Claimant was made the subject of domestic sanctions with similar effect.

[9]In November 2008, the Claimant issued judicial review proceedings to challenge his designation.

[10]On 13 October 2009, the Foreign Secretary decided to request that the Claimant should be removed from the UN list. However, due to action from another state, the Claimant remained on the UN list until removal on 24 June 2011.

[11]The Claimant sues for misfeasance in public office, on the basis that the “officers and agents of the security services” knew that the information upon which they relied was unreliable and/or illegally obtained; that the failure to disclose mistreatment of Libyan detainees to “the relevant decision-makers in the Foreign Office” was unlawful, and/or that they were “recklessly indifferent to the legality of their actions” and to the damage which would ensue to the Claimant. Alternatively, if the mistreatment of detainees was disclosed to officials of the Foreign Office then the latter were guilty of misfeasance in public office. The claim is also formulated as a conspiracy to injure along with “members of the Libyan and Saudi Arabian security services” to engage in the “arbitrary detention and mistreatment of” detainees, one of the purposes being to injure this Claimant. The means of injury is said to have been to obtain information which could be used to seek his designation, thereby to freeze his assets.

[12]In the course of oral submissions, Mr Friedman QC for the Claimant characterised the case as having three issues. I have refined his formulations only slightly. Firstly, did officers of the First and Second Defendants knowingly or recklessly rely on information obtained by torture or inhuman and degrading treatment? Secondly, if yes, did officials or officers of the security services withhold such means of obtaining the information from ministers? Thirdly, if not, “does it matter?” by which is meant: are the claimed legal consequences made out? It will be evident that the third is a purely legal issue. The context for disclosure arises from the first two issues.

Disclosure

[13]The principal contention of the Claimant is that in this case there is an obligation on the Defendants to disclose the essence of the case, consistent with the formulation in A v United Kingdom

[2009] AC 1

EHHR 625, as applied by the Supreme Court in AF (No.3) v Secretary of State for the Home Department

[2010] 2 AC 269

. We have used the shorthand “AF (No.3)” disclosure. This is a similar submission to that advanced by Claimants 1 to 5 in the action, and addressed by me in Kamoka and Others v Security Service and Others

[2015] EWHC 3307 (QB)

, of October 2015.

[14]Mr Friedman argues that the restrictive orders here represented a very significant intrusion on the Claimant’s liberty, and on his rights under

Article 8 of the ECHR

. Not only were his assets frozen, but his movements were curtailed. Although he was never detained, the effects of these orders were serious. I agree.

[15]Mr Friedman then argues, with some grace, that I was in error in the approach I took to disclosure in relation to Claimants 1 to 5. He took the Court through some of the authorities considered in argument in that hearing and in that judgment. He then addressed a number of cases which have arisen since. I will summarise how he put the matter.

[16]Given that this case involves a significant incursion on liberty, and impact on the Claimant’s private life, Mr Friedman argues it stands on a par with cases involving detention. Accepting, as he must, that the claim is not an effort to end a current restriction on liberty, it does represent (as he submitted in relation to Claimants 1 to 5) a claim for “vindication” of liberty. He says that is highly important.

[17]He relies on the facts of AF (No.3) itself to this extent, that at the time of the judgment in the House of Lords, the relevant control orders had expired. To that extent the case was “after the event”, and not addressing current restrictions on liberty. Mr Phillips QC for the Defendant countered that by pointing out that the House of Lords was considering the obligations of disclosure which arose when a current control order is being challenged. The end of the control orders in AF (No.3) was not material. On that point I consider Mr Phillips is correct.

[18]Mr Friedman took me to some passages from the judgment of Maurice Kay LJ in Home Secretary v CC

[2014] 1 WLR 4240

, a case, once more, concerning disclosure in relation to the imposition of control orders under the Prevention of Terrorism Act 2005, and Terrorism Prevention and Investigation Measures (“TPIMs”) under the Terrorism Prevention and Investigation Measures Act 2011. Again, I did not find this helpful in determining the disclosure obligations arising in the present case. As Mr Phillips submitted, in paragraph 18 of his judgment Maurice Kay LJ emphasised that the CC case was concerned with a current attempt by the Home Secretary to restrict CC’s liberty, not with a claim for compensation.

[19]Mr Friedman took me to the decision of the Court of Appeal in Sarkandi and Others v Secretary of State for Foreign and Commonwealth Affairs

[2015] EWCA Civ 687

, a case which I considered in the October 2015 judgment. The underlying facts there were that the Foreign Secretary proposed to place the Claimants on a list of persons subject to similar restrictive measures to those imposed on this Claimant, albeit pursuant to EU legislation. The claim was a judicial review challenge to the decision: in other words this too was not a civil claim for compensation, it was an action to challenge a restrictive Order. There had been a declaration pursuant to S.6 of the 2013 Act, and the Court was about to engage in the S.8 procedure.

[20]It was in that context that Richards LJ said:

“22. The relevant rules are contained in CPR Part 82. Ms Rose preferred to concentrate on the requirements laid down by section 8 itself rather than on the way in which effect has been given to those requirements in the detailed rules. I should, however, note that the main rules governing an application to withhold sensitive material as referred to in section 8 are CPR rules 82.13 and 82.14, and that two sub-paragraphs of rule 82.14 call for particular comment. Sub-paragraph (7) provides that where the court gives permission to the relevant person to withhold sensitive material, the court (a) must consider whether to direct the relevant person to serve a summary of that material on the specially represented party and the specially represented party’s legal representative, but (b) “must ensure that any such summary does not contain material the disclosure of which would be damaging to the interests of national security. Subparagraph (10) provides that the court “must give permission to the relevant person to withhold sensitive material where it considers that disclosure of that material would be damaging to the interests of national security”

. Both those provisions reflect the terms of section 8 and contain on their face an absolute protection for material the disclosure of which would be damaging to the interests of national security. Section 14(2)(c) of the 2013 Act provides, however, that nothing in sections 6 to 14 is to be read as requiring a court or tribunal to act in a manner inconsistent with

article 6 of the European Convention on Human Rights

. It follows, and it was common ground before us, that if article 6 requires disclosure of material or of a summary notwithstanding that disclosure would be damaging to the interests of national security (as to which, see for example Secretary of State for the Home Department v AF (No.3)

[2009] UKHL 28

[2010] 2 AC 269

), the provisions of section 8 and the rules made under it are not to be read as precluding such disclosure. … 47. …The issue in the present case, by contrast, is whether to allow a closed material procedure that has the potential of enabling the court to consider the entirety of the material on which the decision to make the proposal was based and to test by reference to all such material whether the Secretary of State had a reasonable basis for the decision. Whether that is achievable in practice will depend upon the extent to which, in the course of the closed material procedure itself, the court gives permission for material to be withheld and requires the provision of a summary of the material withheld, the extent to which the Secretary of State is willing to provide any such summary, and the resulting extent to which the Secretary of State is permitted to rely on the closed material in defence of the substantive claim.”

[21]The judgment in Sarkandi represents helpful guidance as to the interpretation of S.8 of the 2013 Act, of CPR Part 82, and as to the proper approach by the Court to the Act and Rules. It does not in my view help as to whether AF (No.3) obligations arise in this case. Once again, it was not a civil claim for compensation, but a judicial review in the face of a prospective Order with restrictive effects. The Court also emphasised that the decision turns on the context and facts of a given case.

[22]Mr Friedman referred the Court to the decision of the Court of Appeal in Kiani v SSHD

[2016] 2 WLR 788

. That was a claim alleging discrimination on grounds of race and religious belief and of unfair dismissal. The claimant was dismissed as an immigration officer because his security clearance was withdrawn. No reasons were given. Mr Friedman relied on paragraph 23 of the judgment of Lord Dyson MR:

“23. In summary, therefore, the requirements of article 6 depend on context and all the circumstances of the case. The particular circumstances in Tariq included the fact that (i) it did not involve the liberty of the subject; (ii) the claimant had been provided with a degree of information as to the basis for the decision to withdraw his security vetting: he was not completely in the dark; (iii) there was real scope for the special advocate to test the issue of discrimination without obtaining instructions on the facts from the claimant; and (iv) this was a security vetting case and it was clearly established in the Strasbourg jurisprudence that an individual was not entitled to full article 6 rights if to accord him such rights would jeopardise the efficacy of the vetting regime itself (para 159).”

[23]Mr Friedman argued that it was an important distinction from the instant case that Mr Kiani had sought and obtained employment subject to a vetting regime. He was a volunteer, who could not be heard to complain if security was maintained during the hearing, governing disclosure. Mr Phillips argued that, in that way, the Claimant in Kiani was in a similar position to the Claimant in Tariq v Home Office

[2012] 1 AC 452

, and in effect Mr Friedman accepted that. Money claims from those who had volunteered for employment subject to a vetting regime were at one end of the spectrum for the purposes of disclosure.

[24]The key point remains that made by Lord Dyson MR in paragraph 23, that the “requirements of Article 6 depend on context and all the circumstances of the case.”

[25]Mr Friedman also referred me to the recent decision of Collins J in SSHD v GG

[2016] EWHC 1193 (Admin)

. This case concerned a historic control order, indeed a sequence of control orders, imposed on GG from 31 July 2006, renewed annually, and revoked in June 2010. Following a tortuous history, the claim came back to the judge for him to determine whether the already revoked control order should be quashed. Paragraph 3(2) of Schedule 8 of the TPIM Act 2011 preserves the jurisdiction of the Court to make such a determination, even after the repeal of the Prevention of Terrorism Act 2005, under which control orders were made. As Collins J observed in paragraph 2, the power to direct revocation was “superfluous” in cases such as this, where the control order had been revoked more than five years previously.

[26]It was in that rather artificial context that Collins J was asked by Mr Friedman, who represented GG, to determine whether the control order, or Orders, had been unlawful at the time, because AF (No.3) disclosure should have been provided.

[27]Collins J characterised the AF (No.3) obligation as follows:

“8. The essence of the decision in AF (No 3) is that fairness and Article 6 dictate that an individual against whom a control order is made must be given sufficient information about the allegations against him to enable him to give effective instructions to his special advocate in relation to them to enable the special advocate to deal with them in any closed hearing. This does not mean that there needs to be a detailed disclosure of the sources of the evidence upon which the allegations are based, but if the disclosure is limited to general assertions so that the case against the controlee is based solely or to a decisive extent on undisclosed material, there cannot be a fair trial compliant with Article 6. It was recognised that this could mean in a given case that a dangerous terrorist could avoid control if adequate disclosure was impossible because of the risk to national security.”

[28]After reviewing the litigation history and the decision of the Court of Appeal in AN, AE and AF v SSHD

[2010] EWCA Civ 869

the judge observed:

“15. It seems that the result of this is that, however strong the evidence relied on by the SSHD may be to establish the necessary reasonable suspicion, the order will not have been lawfully imposed unless disclosure which complied with AF(No.3) could be made when the court came to consider whether the decisions of the SSHD in making the order or imposing any of the obligations in it were flawed on a hearing pursuant to s.3 of the 2005 Act.”

[29]On the facts of GG’s case, the judge concluded, in paragraph 18, that AF (No.3) disclosure had subsequently been given, and could have been given earlier, had the obligation been stated by the relevant time. Hence, the control orders in that case were not unlawful and he declined to revoke them.

[30]It is clear that any judicial observations in GG have to be read in the unusual context of the case. The judge had to address the AF (No.3) obligations as if they arose when control orders were in prospect. This was not a claim for compensation after the event, and it was concerned with a direct interference with liberty, and a greater incursion into Article 8 rights than arose here. Even in that context, Collins J formulated the AF (No. 3) obligation as he did, in the passage from paragraph 8 set out above, focussing on the need for “sufficient information … to enable [the potential controlee] to give effective instructions”: a formulation close to the practical or “instrumental” approach adumbrated in my earlier judgment in relation to Claimants 1 to 5.

[31]In K, A and B v Secretary of State for Defence and Another

[2016] EWHC 1261 (Admin)

, the Divisional Court considered a claim in which a S.6 declaration had been made by three individuals alleging they had worked as covert human intelligence sources [“CHIS”] for the Defendants in Afghanistan. They challenged the Defendants in judicial review in relation to alleged failures to apply relevant policies to provide protection for locally engaged staff, for breaches of the ECHR, breaches of common law duties of protection, and for alleged misrepresentation in assurances given. In addition there was a claim in negligence.

[32]The Court considered the obligations of disclosure in proceedings where the JSA 2013 had been involved and a declaration made:

“23. If no disclosure is required for this court to be acting in a manner consistent with Article 6, the issue of whether disclosure cannot be permitted because of the damage to national security has already been resolved by the decisions of Mitting J, which obviously apply to the material produced on behalf of the Defendants after the 8 September hearing. Further disclosure was not sought on the basis that any of that further material could be disclosed without such damage. 24. Disclosure was sought on some other basis. We can reject at the outset the suggestion that some common law duty of fairness required further disclosure to a level akin to that which Article 6 might require. There is no such duty once proceedings have entered the statutory closed materials procedure. Disclosure is entirely governed by the JSA. If the upshot of the disclosure process is that, on a review under s.7, the s.6 declaration has to be revoked, with whatever consequences that leads to for one side or the other, then that is the answer of the JSA to the question of whether the declaration is no longer in the interests of the fair and effective administration of justice. 25. It is only if the disclosure to the extent ordered would require this court to act inconsistently with Article 6 that further disclosure has to be considered. The principles on which it would then act can be summarised as follows. In Secretary of State for the Home Department v AF (No.3) [2009] UKHL 28, [2010] 2 AC, Lord Phillips referred to the principle at [59] (in the context of control orders) applying the approach of the Grand Chamber of the ECtHR in A v. United Kingdom (2009) 49 EHHR 625, and concluded that (in that case, the controlee) had to be ‘given sufficient information about the allegations against him to enable him to give effective instructions in relation to those allegations’. “Provided this requirement is satisfied there can be a fair trial notwithstanding that the controlee is not provided with the detail or the sources of the evidence forming the basis of the allegations. Where, however, the open material consists purely of general assertions and the case against the controlee is based solely or to a decisive degree on closed materials the requirement of a fair trial will not be satisfied, however cogent the case based on the closed materials may be.”

My Conclusions

[33]Having considered the further arguments from Mr Friedman, and the additional authorities and references, I find myself essentially unmoved from the position I concluded was correct in relation to Claimants 1 to 5 in the judgment of October 2015. I do not intend to repeat the review of authority and the analysis set out in that judgment. This case must be placed firmly in its context, and disclosure obligations assessed accordingly. It is not necessary for me to conclude that no common law obligations of fairness survive: I incline to the view that common law principles continue to arise for consideration as long as they are compatible with the JSA 2013.

[34]This is not a case where loss of liberty, detention or incursion on the Claimant’s Article 8 rights is in prospect. The law recognises such cases as rather different. At common law such considerations can lead to the issue of a writ of habeas corpus. The decision in A v UK is itself a recognition that fuller obligations of disclosure arise in such cases. Nor is it a case such as that in Bank Mellat v HM Treasury

[2016] 1 WLR 1187

, where highly restrictive measures were currently in force. This case is more akin to that which arose in Mohammed and CF v Ministry of Defence

[2014] 1 WLR 1699

, which was a civil claim for damages, albeit one raising issues of high public interest. It is important to emphasise each such decision falls to be made on its facts. In MohammedandCF the claim related to allegations of detention and false imprisonment. However, there the claimants had been present throughout the relevant events, and somewhat different considerations applied.

[35]Mr Friedman argues that his client is “completely in the dark” about the case and says that is wrong in principle. Mr Phillips replies that the phrase is just that, not a principle of law. Mr Phillips is right. In any event, the assertion is wrong as a matter of fact. This Claimant knows reasonably fully the suggestion about his activities which led to his designation. He has had access to the substantial submissions from 2005 leading up to his designation, to the letters to the 1267 Committee of the UN concerning his removal from sanctions and the alteration of reasons on the part of the UK. He does not know the material which underlay his designation. Moreover, he is not engaged in a challenge to the designation, nor is he even mounting a private law claim for damages on the straightforward basis that his listing was an error. As I have already pointed out, he sues for misfeasance in public office and conspiracy to injure. He alleges deliberate bad faith on the part of officers of the First and Second Defendants.

[36]I do not accept that Article 6 (or indeed the common law) requires that the Claimant sees disclosure of evidence which will need to be assessed in addressing the allegation of bad faith, but which would, if produced, damage national security. The requirements of Article 6 are not absolute or fixed: see Brown v Stott

[2003] 1 AC 681

. Here the restrictions are necessary, consistent with the Act and CPR Part 82.

[37]Mr Friedman submitted that sight of that evidence would enable the Claimant to make a contribution to the evidence in the case, beyond what could be achieved in his interests by the Special Advocates. He said that the Special Advocates could not deal with the allegations about this Claimant, the allegations about his associates, or “torture allegations”. I reject the submission, and the premise of the arguments. The Claimant cannot help on the factual issues correctly identified by Mr Friedman at the outset. He cannot know if any relevant information came from detainees subject to torture or inhuman and degrading treatment. It is hard to see what evidence he could give about that. Mr Friedman did not suggest what it might be. On the contrary, within the closed material procedure, the relevant material will be looked at and tested by the Special Advocates.

[38]Even more obviously, the Claimant can make no contribution to the issue of whether any such information, if it existed, was communicated to Ministers. No doubt that can and will be fully explored, if it arises, by the Special Advocates.

[39]Mr Friedman argued that “vindication” of his client’s legal rights required disclosure. The Courts should not lend protection to those who have been guilty of crimes, a proposition said to be supported by the decision in R (Mohamed) v Foreign Secretary (No. 2)

[2009] 1 WLR 2653

, in the judgment of 4 February 2009, paragraphs 41 and 46.

[40]The submission that there must be “vindication” of the Claimant’s legal rights is an attractive line of argument, and it finds a resonance in the observations of Pitchford LJ as he set out his Ruling on the legal principles to be applied to decision-making in the Undercover Policing Inquiry, which was published on 3 May 2016. In addressing publication of Rulings under the Regulation of Investigatory Powers Act 2000, and the IPT Rules 2000, Pitchford LJ said:

“135. The purpose of section 68(4) of the Act read together with rules 13 and 6 of the Rules is to my mind reasonably clear. There is a strong public interest that a successful complainant and the public should know that an unlawful interception has taken place subject to the need to restrict disclosure of reasons in protection of the public interest, national security or the continued functioning of the Intelligence Services. However, the public interest in preserving effective investigation requires that no unsuccessful claimant should be provided with the means of defeating an investigation. These provisions strike a public interest balance: in the case of a successful complainant blanket application of the ‘Neither Confirm Nor Deny’ policy gives way, to a limited degree, to the requirements of open justice; in the case of an unsuccessful complainant, however, he would be unable to draw an inference as to whether his communications had been intercepted or not.”

[41]No wrongdoing has yet been established in this case. If and when such is established, the argument that rights must be vindicated can be considered. For the present, no question of vindication arises.

[42]I do not intend to repeat the matters set out in the judgment of October 2015. I see no basis for saying that “AF (No. 3)” disclosure obligations arise in this case. As much as possible must be disclosed to the Claimant, consistent with the Court’s obligations under S.8(1)(c) of the JSA 2013, and CPR 82.14(10), but no more. Negotiations between the Defendant’s Counsel and the Special Advocates have resolved many matters successfully. I have given one detailed Ruling in closed, and it is expected there may be more to come.

The Test under the JSA 2013 and CPR 82.14(10) Compared with Public Interest Immunity

[43]As an ancillary argument, Mr Friedman submitted there was a material difference between the statutory test: “”8(1) … … (c) … the court is required to give permission for material not to be disclosed if it considers that the disclosure of the material would be damaging [emphasis added] to the interests of national security.” which is repeated in the Rule, and the test for an order permitting a party to withhold a document on the ground of public interest immunity. Mr Friedman argued that the statutory test identified by emphasis above meant there had to be shown to be “actual damage”, whereas the test for PII was more uncertain: a risk of damage. There was therefore a lacuna, where PII arose rather than a withholding of disclosure under the JSA 2013.

[44]I reject this argument which seems to me without any foundation. The formulation “would be damaging” is a prediction of damage, not a demonstration of actual damage. I consider that is the same test as arises in PII. For example, in R v CC (West Midlands) ex parte Wiley

[1995] 1 AC 274

itself, Lord Templeman put the matter thus: “If a document is relevant and material then it must be disclosed … unless a breach of confidentiality will cause harm [emphasis added] to the public interest which outweighs the harm to the interests of justice caused by non-disclosure.” p.281F

[45]The formulation in CPR 31.19(1) is:

“A person may apply … to withhold disclosure of a document on the ground that disclosure would damage the public interest.”

[46]This argument is quite groundless. PII

[47]I have ruled in favour of applications by the Defendants in closed for a limited number of redactions from documents on the ground of public interest immunity.