Kamoka & Ors v The Security Service & Ors [2016] EWHC 769 (QB)

Case No HQ13X00363[2016] EWHC 769 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 15/04/2016
Before
MR JUSTICE IRWIN
Between
(1) ISMAIL KAMOKAClaimants(2) ZIAD ALI HASHEMClaimant(3) ABDEL NASSER BOUROUAGClaimant(4) KHALED ABUSALAMA AL ALLAQIClaimant(5) ALIA BIBI HASSANClaimant(Administratrix for the Estate ofClaimantFARAJ HASSAN AL-SAADI)Claimant(1) THE SECURITY SERVICEDefendants(2) THE SECRET INTELLIGENCE SERVICEDefendant(3) THE ATTORNEY GENERALDefendant(4) THE FOREIGN AND COMMONWEALTH OFFICEDefendant(5) THE HOME OFFICEDefendant
Tom de la Mare QC, Danny Friedman QC, Charlotte Kilroy, Helen Law (instructed by Birnberg Peirce) for ClaimantsRory Phillips QC, Kate Grange, Richard O’Brien (instructed by The Government Legal Department) for DefendantsAngus McCullough QC, Jennifer Carter-Manning, Tom Forster (instructed by The Special Advocates’ Support Office) appeared as Special AdvocatesHearing Hearing dates: 15-18 December 2016Further Disclosure 12 January 2016Further Submissions 20, 22 January 2016
JudgmentMr Justice Irwin :Introduction
[1]This is the judgment in respect of the renewed application by the Defendants to strike out the claims of Claimants 1-5 inclusive, as representing an abuse of process pursuant to Hunter v Chief Constable of the West Midlands Police and Others [1982] AC 529. This judgment should be read in continuation of Kamoka and Others v The Security Service and Others [2015] EWHC 60 QB. On 21 July 2015 I made a declaration pursuant to Section 6 of the Justice and Security Act 2013 in respect of the renewed application. Special Advocates were appointed to represent the interests of the Claimants. There has been closed disclosure, followed by open and closed hearings in the application. A closed judgment in this matter is handed down herewith.[2]In paragraphs 8-12 of the judgment of January 2015, I summarised the history of the litigation to that point in respect of each of the first five named Claimants. I will not repeat those summaries here.[3]The essence of the claim advanced by the Claimants is that there has been a suppression of evidence, a breach of the “duty of candour”, and that had evidence not been suppressed, the proceedings in SIAC, and the Control Order proceedings, could not have been mounted. It is said it would have been unreasonable of the Defendants (in particular the SSHD) to have sought to deport the Claimants to Libya, had the information now revealed in the course of the fall of the Qadhafi regime been made available to the relevant decision-maker: there would never have been a viable national security case, nor a reasonable prospect of removal in the face of what the Claimants term the “new material”. It is said that, but for the suppression of evidence, the Claimants would never have been subject to immigration detention and/or the restriction imposed by Control Orders. Those propositions underpin the claims of false imprisonment and misfeasance in public office.[4]The Defendants say there was no suppression of evidence. There was a realistic prospect of deportation. This material, or the substance of it, and these issues have been considered and addressed by SIAC and/or the High Court in Control Order proceedings. The action constitutes Hunter-type abuse.[5]The first step in the closed proceedings has been to establish whether there was any, or any significant, suppression of evidence. In any other context, that would not be a necessary step in an application based on abuse of process, since all parties would know what had been the evidence presented to the first court of competent jurisdiction. Here the Claimants have remained in ignorance.[6]I have been reminded in the course of submissions that this is not the trial, and I must be scrupulous not to venture too far. I accept the need for caution. Fact-finding must be confined to issues laid down in the (very extensive) Particulars of Claim, and to matters relevant to the applications to strike out the claim as an abuse of process, within the principles laid down, as I have found they must apply to this unusual case.

Allegations

[7]The allegations as to suppression are set out in paragraph 329 to 336 and 356 to 362 of the Particulars of Claim. I accept from the written submissions of the Defendants the allegations can properly be grouped under the following heads: i) SIS/SyS’s knowledge of rendition of individuals by the United States to Libya; ii) SIS/SyS’s reason to be concerned about the treatment of the Libyan Detainees; iii) SIS/SyS’s involvement in US renditions; iv) SIS/SyS’s claim to entitlement to special access; v) SIS/SyS’s “direct” and “indirect” interrogation of Libyan Detainees; vi) SIS/SyS’s “awareness” that Bel Hadj was being mistreated; vii) Joint operations between SIS/SyS and the Libyan Security Services; and viii) The role of the Qadhafi Development Foundation (QDF) as cover or “proxy” for the Libyan Security Services.

Prelude: C2’s Application for Bail to SIAC 30 January 2006

[8]An interesting touchstone for this application arises from the Second Claimant’s application to SIAC for bail. The Claimant was then represented by Mr Friedman. I accept of course that somewhat different considerations arise on an application for bail than in a substantive SIAC appeal, or of course in civil proceedings. However, counsel raised specifically the following points as bearing on the question of bail, because they were said to touch on “the source of the intelligence that the Secretary of State relies upon in order to found a corporate allegation against the LIFG”. The matters raised were:
“(i) The shift in the Secretary of State’s views about the LIFG appears to have coincided with the “paradigm shift” in the relations between the Libyan government and Britain and the United States since 9/11. The documented sharing of intelligence between the security services of these countries, as well as the reports of rendition flights to and from Libya, marks a starkly different relationship from that which existed through the 1980s and 90s: See Human Rights Watch, Libya: Words to Deeds: The Urgent Need for Human Rights Reform, January 2006, pp. 14-21). (ii) Any information emanating out of detainee reporting in Libya, or elsewhere, would engage the investigatory duties of SIAC (and by extension the Secretary of State) in accordance with the House of Lords judgment in the torture case: A v. SSHD [2005] 3 W.L.R. 1249. According to the HRW report Libya: Words to Deeds, torture “remains a serious concern”
(p. 2). Both of these issues overlap with the question of safety on return (see paras 32-41 below).”[9]Section C of the written submissions concerned the risk of return to Libya, and Section D was entitled Weakness of the Respondent’s Case on Safety on Return. In the course of Section D, the submissions dwell on the risk of torture or mistreatment in Libya, including particularly the “immaturity … of the diplomatic relationship between the United Kingdom and the Libyan Government”. A further point made as explicitly relevant to safety on return was the following:
“i. Libya has co-operated with the United States with regard to rendition of terrorist suspects to Guantanamo Bay (p. 18); and the United States has reportedly delivered into Libyan custody persons “captured in the global campaign against terrorism”
(p.19).”[10]As a consequence it was submitted that the Secretary of State’s case was hopeless on safety on return:
“38. In the specific case of Libya, the applicant submits that the Secretary of State will have to confront an essentially insurmountable problem in these proceedings, namely the complete absence of independent human rights monitoring of any kind in modern Libyan state history.”
[11]Further, the Claimant correctly anticipated that the QDF would be advanced as part of the government case that safety on return could be adequately assured and monitored. The matter was put as follows:
“At present the respondent continues to withhold the name of the proposed group while negotiations continue. However, an article in the Daily Telegraph, 26th January 2006 (“Qadhafi’s son wanted as Torture Watchdog”), reports that “diplomatic sources” have “confirmed” that Britain is seeking to convince Saif al-Islam al-Qadhafi (the son of Colonel Qadhafi) and his International Foundation for Charitable Organisations, to act as the independent monitoring group for the purpose of these proceedings. The applicant submits that it cannot seriously be contended for the purposes of these proceedings that the group and personality named in this article could ever qualify as sufficiently independent in order to carry out a monitoring role under the MOU.”
[12]The implication of these passages is straightforward. Those representing the Claimants were already alive to questions of rendition, the reliability of information resulting from detainee reporting, the sharing of intelligence and relationships between the Security Services of Libya, Britain and the US, and the link between those issues and the Fifth Defendant’s case on safety on return to Libya. The Special Advocates representing the interests of the Claimants must be taken to have been alive to the way matters were put, since within the Rules of SIAC, the role of the Special Advocate is to further the case presented by an Appellant’s ordinary lawyers.

Disclosure

[13]Given the nature of the case, it comes as no surprise that the key disclosure was in closed. In the course of the closed judgment I have analysed what was, in my view, the important evidence bearing on the relevant questions disclosed to SIAC, and to the High Court.[14]I am able to state here only that there was wide disclosure of top secret documents bearing on the Claimants’ concerns as well as important closed oral evidence. A review of the disclosure made to SIAC leads to my clear conclusion that there was no suppressio veri.

Witnesses: the OPEN Evidence

[15]Edward Oakden and Anthony Layden gave evidence to SIAC. They were respectively the former Director of Defence and Strategic Threats for D4 (the Foreign and Commonwealth Office) and the then Special Representative for Deportation with Assurances retained by the FCO, previously HM Ambassador to Libya.[16]In his witness statement of 11 November 2005, Mr Oakden set out in very short form the fact that a memorandum of understanding had been signed between the UK and Libya. He also indicated that an independent body for the purpose of monitoring the MOU had been agreed in principle. In his second witness statement of 15 March 2006, Mr Oakden indicated that the Governments had reached “in principle agreements on monitoring of assurances”. In this witness statement Mr Oakden acknowledged the serious concerns as to human rights in Libya and in particular the concerns raised by a number of NGOs. He also made it clear that:
“The British government judges that it could risk breaching its ECHR obligations if it were to deport these individuals to Libya without first obtaining assurances as to their treatment on return.”
It was thus clear from early in the process that the United Kingdom government accepted there was a real need for assurances. In his first witness statement of 16 June 2016, Mr Layden set out the history of negotiating the MOU. It was a process that had begun in 2002 with consideration of Libya as a suitable partner for an MOU, but negotiations had become much more active in mid to late 2005, culminating in the signature of the memorandum of understanding on 18 October 2005. He confirmed that an “Implementation Body” was formally appointed on 8 May 2006, comprising the QDF “supported by other independent organisations”. This Implementation Body was to carry out the monitoring role in relation to the assurances given. The nature of those assurances was then summarised.[17]In his witness statement, Mr Layden set out the basis upon which the Secretary of State for Home Affairs advanced the QDF as a suitable body to take the lead in monitoring the assurances.[18]Whilst ultimately rejected by SIAC as a sufficient safeguard, it is to be noted that the matters set down in open in this witness statement were pursued by the SSHD throughout the proceedings in SIAC, as being a realistic basis for advancing the QDF as an appropriate monitoring body. In an extended passage, Mr Layden set out the growing relationship between the United Kingdom and Libyan governments, with cooperation across a number of fronts, including “capacity-building in the public administration”. Other passages dealt with the Lockerbie bombing, weapons of mass destruction, the murder of PC Yvonne Fletcher and the international relations between the United Kingdom, the United States and Libya. A number of these themes were amplified in closed passages from Mr Layden.[19]In his amended second witness statement of 21 September 2006, Mr Layden dealt with counter-terrorism cooperation in the following terms:
“Cooperation in this area has been close, regular and productive. It was one of the first areas of cooperation to begin at the time of the resumption of diplomatic relations in 1999, and Libya’s commitment to it has been full. Libya and the UK are now close partners in this area and the relationship is of high value to both sides.”
[20]Later in the witness statement, Mr Layden dealt with conditions in Libyan prisons. He outlined the fact that since September 2004 the United Kingdom had engaged the help of the International Centre for Prison Studies [“ICPS”] of King’s College London with the Libyan Judicial Police, the equivalent of the prison service in the United Kingdom. This was an on-going project “aimed at improving the management of prisons in Libya in accordance with international standards, including in relation to respect for the human rights and dignity of prisoners”. In extended passages of this witness statement, Mr Layden dealt with the concerns arising from the Benghazi trial of foreign nursing and medical staff, following the outbreak of AIDS amongst 400 children affected by HIV. There was no attempt to diminish his concerns about the poor quality of justice in the course of that trial.[21]In further extended passages of the witness statement, Mr Layden dealt with those Libyan nationals who had been deported from the United Kingdom to Libya. The deportees had been removed on the basis of assurances from Libyan officials. Mr Layden dealt with the follow-up in respect of those assurances to check on the treatment received by the detainees.[22]Towards the end of this witness statement, Mr Layden dealt directly with the individual position of Saif al-Islam al-Qadhafi as the interlocutor for the monitoring operation in association with his Qadhafi Development Foundation.[23]In a closed witness statement of 2 November 2006, Mr Layden identified for the Special Advocates acting for C2 and C5 documents he said were relevant to the issues arising in SIAC. Mr Layden did so in respect of documents which had been produced as part of the exculpatory review, so that the case for the Secretary of State was fully identified.[24]I have reviewed the closed witness statements of Messrs Oakden and Layden for relevant material. I can confirm my view that there was no attempt on their part to avoid the difficult issues now complained of. Here too I conclude there was no attempt to suppress relevant evidence.

Evidence Derived from Those Detained in Libya

[25]Mr Burnett QC for the SSHD in SIAC, and counsel for the SSHD in the Control Order proceedings, took the decision not to rely on material which came from detainees, or was likely to come from detainees. This was a deliberate response to the concern about the treatment of detainees in Libya, and thus concern about the reliability of information. It was on occasion described as a “pragmatic” approach. In my view this simply meant that the Secretary of State was content to support his case by other means.[26]I can confirm that the same approach was followed in the closed evidence. Where it was likely that evidence came from detainees, it was not relied on. In fact, this made very little, if any, difference to the case. There is no evidence in the “new material” which comes close to satisfying the test in Walpole v Partridge and Wilson [1994] QB 106, in the sense that it “entirely changes the aspect of the case” (see Gibson LJ at 115E).

Conclusions on Fact

[27]There is no basis for a finding of suppression of evidence. There was ample disclosure in closed addressing the areas which concern the Claimants. SIAC considered the evidence fully.[28]The Special Advocates who appeared in SIAC were alive to the concerns about rendition, and considered evidence bearing on the issues. There were “sometimes vigorous” arguments about disclosure in SIAC. However, there were no submissions by the Special Advocates that the Secretary of State had breached the duty of disclosure. They did not make submissions to the effect that the Secretary of State’s case was all along predictably hopeless. They did not make submissions to the effect that the Secretary of State, or any other Defendant to this action, acted in bad faith.[29]I see no basis for concern, in either the open or the closed evidence, that the findings of SIAC or the High Court in Control Order proceedings were tainted by reliance on detainee reporting. Both SIAC and the High Court had that consideration well in mind.

The Law

[30]Both parties have made extensive, often erudite, submissions of law. I intend no disrespect to those submissions, but I do not mount a review of the authorities cited, or all of the detailed arguments made. The application of the doctrine of abuse of process to the new and unfamiliar problems of closed material procedures requires, in my view, attention to the fundamental principles, and a recognition that closed proceedings will demand different answers.[31]These Claimants do not know what closed evidence was before SIAC or the High Court. They will never know it. They have not been privy to the evidence, and they have not been represented in the closed proceedings, in the ordinary sense.[32]It is necessary to focus on the role of the Special Advocate. At the conclusion of the case, I asked the parties and the Special Advocates to suggest the answer to the following hypothetical question: if in the course of closed proceedings Special Advocates were to conclude that closed material may reveal the basis for a private law claim on the part of an Appellant, what should they do? What may they do? The answers were, again, extensive. But in summary all are agreed that the role and functions of a Special Advocate are confined by statute; that although Special Advocates act in the interests of the party concerned, he or she is not “responsible to the person whose interests he is appointed to represent”, see: SIAC Act 1997, Section 6(a) and paragraph 7(5) of the Schedule to the Prevention of Terrorism Act 2005. They have specified functions [SIAC Procedure Rules 2015, Rule 35; CPR 76.24], in effect confined to adducing evidence, cross-examining witnesses and making submissions, as to admissibility, procedure and substance. Special Advocates do not represent an excluded party, there is no lawyer/client relationship in the ordinary sense and the attendant professional obligations do not arise. Perhaps most important is the fact that, once seised of the closed evidence, the Special Advocate cannot communicate with the party whose interest he or she represents, save to a limited extent with the consent of the other party, and/or the Court or Commission.[33]How then can the excluded party be fixed with the actions and decisions of the Special Advocate once in closed proceedings? Not only does the excluded party not give instructions which, provided they are proper, are acted upon: the excluded party remains ignorant of what decisions and actions the Special Advocates take, unless and until they are revealed, as in some measure at least, I have been able to do here.[34]Does all that mean that abuse of process in the Hunter sense simply has no application where closed material proceedings arise? On one level that would be an obvious answer. It would however produce anomalous results. The limitations arising from closed procedures operate prospectively as well as retrospectively. If the instant case were to proceed to full trial, the great part of the critical evidence would (again) be heard in closed. The Claimants would again be ignorant of it, and still be unrepresented in the full sense. That would be so here, despite the existence of the material discovered in Libya which has stimulated these claims. Would that mean that, if these Claimants were dissatisfied following a full trial of their claims, the most significant parts of which were in closed, they could simply begin again? The answer to that question must be “no”, because to permit that second action would be to permit a collateral challenge to the Court’s ruling, and thus to sanction a Hunter type abuse. If the answer must be “no”, then why should it be otherwise now?[35]Moreover, it is important to bear in mind the two statutory regimes in question. As I said in this case, (Kamoka [2015] EWHC 60 (QB)) at paragraph 85:
“…both sets of statutory provisions are intended to confine or constrain challenges to SIAC or Control Order judgments. The legislative schemes in each case underline the need, at the very least, for the Court to be highly vigilant to prevent abuse.”
[36]It is helpful to go back to first principles. The key elements in the Hunter doctrine are that the Court must prevent:
“…a collateral attack upon a final decision against the intending plaintiff which has been made by another court of competent jurisdiction in previous proceedings in which the intending plaintiff had a full opportunity of contesting the decision in the court by which it was made.”
[37]In Johnson v Gore Wood and Co [2002] 2 AC 1, Lord Bingham emphasised that any review of the issue must comprise: “… a broad merits-based judgment which takes account of the public and private interests involved and also takes account of all the facts of the case, focussing attention on the crucial question whether, in all the circumstances, a party is misusing or abusing the process of the Court by seeking to raise before it the issue which could have been raised before.” (See page 31D)[38]In Amin v Director General of the Security Service [2015] EWCA Civ 653, Moore-Bick LJ conducted a review of the authority. He emphasised the need for finality in litigation, laid down since Henderson v Henderson (1843) 3 Hare 100, and forming a critical part of the reasoning in Johnson v Gore Wood. He went on to emphasise the need for a broad, merits-based approach, contrasted with an approach comparing detailed issues:
“44. I agree that the question whether subsequent proceedings amount to an abuse of process is to be determined objectively in the sense that, like the man on the Clapham omnibus, the reference to the right-thinking person is simply a means of describing what is in fact an objective assessment of the position. However, I am unable to accept that in cases where the former decision was made in criminal proceedings it is appropriate simply to compare the particular issues, whether of fact or law, which arise in the subsequent proceedings with those that arose in the former, as Mr O’Connor suggested. Even in cases where the former decision was made in civil proceedings the approach of the courts is not as mechanistic as that, requiring, as Lord Bingham said in Johnson v Gore Wood, a broad merits-based approach. If the former decision was made in criminal proceedings leading to a conviction, it is proper to focus attention on the question whether the later proceedings, if successful, would in substance undermine the conviction. The differences between civil and criminal proceedings, to which Lord Hoffmann drew attention in Arthur J S Hall & Co v Simons, explain the difference in approach. Accordingly, although I accept that many of the individual issues to which the particulars of claim give rise are different from those which the judge had to decide on the voire dire, I consider that it is necessary to take a broader view of the matter.”
[39]I am in no doubt that the instant proceedings, viewed objectively, represent a collateral challenge to the judgments in the Control Order proceedings and to the decision of SIAC in relation to C2 and C5. Those decisions were final decisions of courts of competent jurisdiction. The Claimants did not have “a full opportunity to challenge the decision[s] in the court[s] by which [they] were made”, because the proceedings were closed. However, they had as full an opportunity as could be devised, given the constraints imposed by the requirements of national security, as expressed in the relevant statutory provisions. Perhaps more to the point, they have now had, in effect, as full an opportunity as they would get if the litigation proceeded. They also have this judgment, written in the light of and concomitant with the closed judgment, the latter involving an extremely full consideration of all the evidence, with the Claimants’ concerns in mind.[40]I have recorded my conclusions about the evidence above, and addressed the evidence at very much greater length in the closed judgment. I was only able to reach my conclusions after that detailed scrutiny. Given the very unusual facts in this case, the Claimants and their legal advisers had some basis for considering that they might have acquired material capable of altogether changing the nature of the case. Perforce they could not be sure of it. I therefore cannot regard it to have been an abuse of process to have commenced the proceedings in these exceptional circumstances, or to have prosecuted the proceedings thus far.[41]However, as matters now stand, it would in my judgment represent an abuse of process if proceedings were further prolonged, to the extent I now indicate.[42]In respect of all Claimants who make claims arising from Control Order proceedings, further prosecution of those claims would represent an abuse of process of the Court.[43]In respect of C2 and C5, further prosecution of all claims arising from the proceedings against them before SIAC would be an abuse of process of the Court, for the reasons set out above.[44]In respect of C1, C3 and C4, their cases require a little more consideration. I can see no distinction between their cases and those of C2 and C5 either in respect of the detainee evidence issue, or in respect of safety on return; or indeed in respect of any of the concerns raised by C2 and C5. That identity of interest is reinforced by the fact that the Secretary of State conceded their appeals in the aftermath of the successful appeals by C2 and C5. However, I am not in a position to be sure that no valid distinction can be made. I therefore will permit a moderately short period, if these Claimants desire it, during which C1, C3 and C4 may seek to distinguish their position if they see fit.[45]The pleading in this case is of enormous length and complexity. I do not intend now to wield a blue pencil to the Particulars of Claim. It appears to me that this judgment should dispose of all claims for C2 and C5, and of all claims in relation to the Control Orders. However, I will permit consideration by both parties over a moderate period. I invite submissions as to appropriate directions and Orders.

Cited in 1 later judgment