“In general terms, the abuse alleged is that the UK has connived in the unlawful treatment and torture of Rangzieb Ahmed by the Pakistan authorities while he was detained in Pakistan, and in his unlawful deportation from Pakistan to the United Kingdom.”
“to an investigation of whether the process of the court is being abused. The process of the court includes…the means used to get a defendant within the jurisdiction…the means employed to obtain evidence for use in a prosecution…(and) the deliberate failure to observe legal professional privilege.…The power of a criminal court only extends to the control of the process of the criminal trial with which it is at the time concerned…In order to protect the lives of its citizens, the UK may exchange information with countries whose record on human rights you may rightly or wrongly regard as inferior to ours. That can only be the concern of the criminal courts and the subject of an abuse application if it impinges on the trial process”
“I would still not have ordered a stay because there is, in my judgment, no evidence at all that the UK authorities knew that his deportation was unlawful or believed his deportation was unlawful or were complicit in any way in any unlawful removal of Mr Ahmed to this country.”
“however, I am not satisfied that he suffered physical injury in the first 14 days or thereabouts of his detention, although he may have done later. In particular, I am not satisfied that he suffered traumatic removal of fingernails in those early days of his detention. That is partly because of evidence heard in camera and partly as a result of the evidence of Dr Carey and Shaukat Malik who gave evidence in open court… It may be that Rangzieb Ahmed suffered physical injury at the hands of the agents of the Pakistanis at a later stage including the removal of fingernails, but for very good reason the focus of this inquiry has been on the early stages of his detention. While I accept Rangzieb Ahmed’s allegation to the extent set out above, I specifically reject the allegations that the British authorities were outsourcing torture. I simply have found no evidence to support that suggestion.”
“My final conclusion for reasons largely given in camera is that - and I hope I chose my words carefully - I am not satisfied that the British authorities assisted or encouraged the Pakistanis to unlawfully detain and or ill-treat Rangzieb Ahmed in such a way so as to amount to an abuse of the process of the court and, accordingly, I dismiss the application for a stay on this ground as well.”
“He contended that it would be an abuse of the process of the court to try him, whether he was guilty or not. The reason why that was said was because some time after the offences charged were alleged to have been committed, he had been arrested in Pakistan and held in custody for just over a year. During that time, it was his case that he had been tortured by the Pakistani authorities (and/or on the authority, he asserted, of the USA). Founding upon that allegation, it is said on his behalf that the UK authorities had sufficient connection with that detention to amount to “complicity” in torture and that if so, no prosecution of him could properly be allowed to continue without affronting the fundamental principle of international law which outlaws torture.”
“The judge heard evidence about what had happened and did not believe important parts of what Rangzieb said. But in any event, he held, putting it in the briefest terms, that the test of whether a prosecution should or should not be stayed was whether any torture or ill treatment, if there had been any, impacted upon the trial. If it did, then that would provide a reason for staying the trial. If it did not, then whatever may be the legitimate debate about the rights and wrongs of what had or had not been done, it had nothing to do with the trial and provided no reason for not deciding according to the ordinary rules of evidence whether Rangzieb was guilty of the terrorism charged, or was not. The judge held that whatever may have happened in Pakistan, it formed no part of the evidence at the trial and had had no impact upon it. Accordingly, there existed no reason for his not being tried according to English law in order to discover whether or not he was proved to have committed any offence against our law.”
“14. He asserted that after arrest on20 August 2006 he been (i) held incommunicado, without charge, without access to lawyers or contact with any person outside the prison until December when he was taken to court and allowed to speak although unrepresented, (ii) kept, at least initially, handcuffed and shackled in a cell without daylight or furniture, (iii) deprived of sleep and fed poorly, (iv) beaten with sticks, a piece of tyre on a handle and electric wire and further that (v) on each of days 7, 9 and 11 his captors had removed one fingernail from his left hand by use of pliers. On one occasion only during his year of captivity, he said that he had been seen and questioned by British officers; that, he said, was on day 12. 15. There was no suggestion that the British officers had illtreated him in any way, nor that their questions had been other than courteous, nor that he had said anything to them that he did not wish to say. He said that he had complained to them about his treatment, although he had not mentioned his fingernails; on enquiry, the reason he offered for not doing so was that he said he still had bandages on his hand and he assumed that everyone would have known what was being done to him. But the judge was invited to stay the prosecution on the grounds that the British authorities were complicit in the torture of Rangzieb, in that they had condoned it, indeed had effectively “outsourced” it to a foreign State. Additionally, the judge was asked to stay the prosecution on the grounds that the British authorities had connived in Rangzieb’s unlawful return to the UK.”
“The judge accepted point (i) of Rangzieb’s evidence. There was ample support for his account that his initial detention prior to production in court (or at least prior to his case being put before the court in his absence if that had occurred) had been unlawful by Pakistani law. He also accepted that Rangzieb was held in the conditions asserted, that is to say he accepted point (ii), and he accepted that he may have been deprived of sleep deliberately.”
“The combination of these independent pieces of evidence, together with some evidence perforce heard in camera, led the judge to conclude that Rangzieb was not telling the truth when he asserted that the nails had been pulled out before the occasion when he said he had been visited by British officers. Nor did the judge believe Rangzieb’s evidence of beatings or of any physical injury, at least in the early days of captivity prior to any visit by British officers. What had happened to Rangzieb’s fingernails could not reliably be determined. The judge left open the possibility that he may have suffered fingernail removal much later on, some months after any visit by British officers, but that was not the period on which the voire dire was focussed.”
“The judge expressly rejected the suggestion of outsourcing torture by British authorities; there was, he found, simply no evidence that they had assisted or encouraged the Pakistani detainers to detain him unlawfully or to ill-treat him in any way, whether amounting to torture or not. Further, he found that no part of any product of questioning in Pakistan (by anyone) was relied on in the trial before the judge, nor had the prosecution case against Rangzieb or Habib been informed by any material emanating from such questioning. At the request of the appellants we have reviewed his findings of fact. We are quite satisfied that there are no grounds for impugning them. We have also looked, at the request of the appellants, at some additional material on the basis of which it is contended that questions asked of Rangzieb when in Pakistan informed actions in relation to other suspects. Whether that is so or not, it does not affect the judge’s conclusions that there was simply no connection between Rangzieb’s questioning in Pakistan and this trial.” this trial.”
“21. Therefore the result of the judge’s enquiry was that torture had not been demonstrated to have occurred, and had been demonstrated not to have occurred before the sole occasion when Rangzieb said he had been seen by British officers. Even if it had occurred later, it had no impact direct or indirect upon the trial.”
“23. In this appeal, the critical submission made on Rangzieb’s behalf by Mr Bennathan QC is that the judge applied the wrong test and ought to have stayed this prosecution. He should have done so, it is submitted, on either or both of two grounds: a) the UK authorities were complicit in an unlawful rendition of Rangzieb to this country; what occurred under the form of deportation was in fact a disguised extradition; and/or b) the prosecution was tainted by torture in which the UK authorities were complicit.”
“i) The prohibition upon torture is an entrenched part of public international law binding all nations. ii) This international law prohibition extends not only to the practice of torture by a State, but also to complicity by State A in torture by State B. iii) Such complicity is demonstrated (inter alia) where State A has any settled practice of information- or intelligencesharing with State B which is known or believed to use torture. iv) Wherever such complicity by settled practice is demonstrated and information has been shared in respect of a man prosecuted in England who has been interrogated in State B under conditions involving torture, there is a sufficient connection between the complicity and the trial for it to be right to stay the prosecution, whether or not the trial will involve any use of the product of any interrogation under torture, and whether or not any information derived from the torture is to be used in, or otherwise underlies, the trial. v) The judge therefore applied the wrong test; had he applied the correct one, he ought to have stayed this prosecution.”
“40. Torture is wrong. If it had occurred there could be no excuse for it, not even if Rangzieb was a suspected terrorist who might kill people. But the question was not whether it is wrong, but what consequences flow from it if it occurred. Mr Bennathan rightly accepted before us that it is not, and cannot be, the law that every act of torture has the consequence that the tortured person becomes immune from prosecution in every country and for all time, whatever crime he may commit. He contended that there must be a connection between the torture and the prosecution. The issue is the nature of the connection. For the reasons given, we are satisfied that the necessary connection exists where the torture has an impact on the trial, but not otherwise. Even if there had been torture whilst Rangzieb was in Pakistan, it had no bearing on the trial and there was no reason why the question of whether or not he was guilty of an antecedent crime in England should not be decided according to law. 41. Whilst that is sufficient to resolve this aspect of the appeal, we should record that it is not possible to treat as established law the extended concept of “complicity in torture” which is an essential plank of the appellant’s argument at steps (iii) and (iv).”
“The wider concepts of complicity advanced in these two documents are not based upon either treaty or customary law, which are the two principal sources of public international law as stated in Article 38 of the Statute of the International Court of Justice, nor are they founded upon any decision of an international tribunal. They certainly represent significant extensions to the Torture Convention. Nor can it be said that they represent general principles of law recognised by civilised nations, a further recognised source of public international law. They may or may not be desirable developments (on that, opinions amongst States clearly differ), but it is impossible to say that they have at present the necessary general international acceptance amongst States to have achieved the status of binding law, still less of entrenched ius cogens. So far as an English court is concerned, they are also contrary to the opinions of the House of Lords in its judicial capacity in A v Home Secretary (No 2).”
“The court may strike out a statement of case if it appears to the court… (b) that the statement of case is an abuse of the court’s process or is otherwise likely to obstruct the just disposal of the proceeding.”
“The abuse of process which the instant case exemplifies is the initiation of proceedings in a court of justice for the purpose of mounting 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. ”
“In the instant case the relevant final decision by a competent court in which the identical question sought to be raised has been already decided is the ruling of Bridge J., on the voir dire in the murder trial, that Hunter's confession was admissible … The fact that the whole matter of the circumstances in which the confession was obtained was gone into a second time before the jury and that the jury, in view of the judge's direction to them, must clearly also have been satisfied beyond reasonable doubt that Hunter's account of the assaults upon him by the police was a fabrication does not affect the finality of the judge's ruling, though it would exacerbate the public scandal to the administration of justice that would be involved if Hunter, by changing the form of the proceedings to a civil action, were to be permitted to set up in that action the same case that must have been decided against him not only once but twice…”
“It is not surprising that no reported case is to be found in which the facts present a precise parallel with those of the instant case. But the principle applicable is, in my view, simply and clearly stated in those passages from the judgment of A. L. Smith L.J. in Stephenson v. Garnett [1898] 1 Q.B. 677, 680681 and the speech of Lord Halsbury L.C. in Reichel v. Magrath (1889) 14 App. Cas. 665, 668 which are cited by Goff L.J. in his judgment in the instant case. I need only repeat an extract from the passage which he cites from the judgment of A. L. Smith L.J.: ".. . the court ought to be slow to strike out a statement of claim or defence, and to dismiss an action as frivolous and vexatious, yet it ought to do so when, as here, it has been shewn that the identical question sought to be raised has been already decided by a competent court."”
".. . I think it would be a scandal to the administration of justice if, the same question having been disposed of by one case, the litigant were to be permitted by changing the form of the proceedings to set up the same case again."
“There remains to be considered the circumstances in which the existence at the commencement of the civil action of "fresh evidence" obtained since the criminal trial and the probative weight of such evidence justify making an exception to the general rule of public policy that the use of civil actions to initiate collateral attacks on final decisions against the intending plaintiff by criminal courts of competent jurisdiction should be treated as an abuse of the process of the court. I can deal with this very shortly, for I find myself in full agreement with the judgment of Goff L.J. He points out that on this aspect of the case Hunter and the other Birmingham Bombers fail in limine because the so-called " fresh evidence " on which they seek to rely in the civil action was available at the trial or could by reasonable diligence have been obtained then. He examines also the two suggested tests as to the character of fresh evidence which would justify departing from the general policy by permitting the plaintiff to challenge a previous final decision against him by a court of competent jurisdiction, and he adopts as the proper test that laid down by Earl Cairns L.C. in Phosphate Sewage Co. Ltd. v. Molleson (1879) 4 App.Cas. 801, 814, namely that the new evidence must be such as "entirely changes the aspect of the case." This is perhaps a little stronger than that suggested by Denning L.J. in Ladd v. Marshall [1954] 1 W.L.R. 1489, 1491 as justifying the reception of fresh evidence by the Court of Appeal in a civil action, viz., that the evidence".. . would probably have an important influence on the result of the case, though it need not be decisive..." The latter test, however, is applicable where the proper course to upset the decision of a court of first instance is being taken, that is to say, by appealing to a court with jurisdiction to hear appeals from the first-instance court and whose procedure, like that of the Court of Appeal (Civil Division), is by way of a rehearing. I agree with Goff L.J. that in the case of collateral attack in a court of coordinate jurisdiction the more rigorous test laid down by Earl Cairns is appropriate.”
“The decision of their Lordships in Hunter's case, however, was, in my judgment, not that the initiation of such proceedings is necessarily an abuse of process but that it may be. The question whether it is so clearly an abuse of process that the court must, or may, strike out the proceedings before trial must be answered having regard to the evidence before the court on the application to strike out. There are, in short, and at least, exceptions to the principle.”
“(Counsel) for Mr. Smith, argues that the issue in the present proceedings is not the same issue as was decided in the Crown Court. To an extent this is so. In the Crown Court the question was whether, applying the criminal standard of proof, Mr. Smith was shown to have committed the crime with which he was charged. In the present proceedings the issue is whether his former solicitor handled his defence negligently. It is, however, plain that the thrust of his case in these proceedings is that if his criminal defence had been handled with proper care he would not, and should not, have been convicted. Thus the soundness or otherwise of his criminal conviction is an issue at the heart of these proceedings. Were he to recover substantial damages, it could only be on the basis that he should not have been convicted. Even if he were to establish negligence, he could recover no more than nominal damages at best if the court were to conclude that even if his case had been handled with proper care he would still have been convicted. It follows, in our judgment, that these " proceedings do involve a collateral attack upon the decision of the Crown Court. We understand Lord Diplock, by "collateral," to have meant an attack not made in the proceedings which gave rise to the decision which it is sought to impugn; not, in other words, an attack made by way of appeal in the earlier proceedings themselves. It was not, as we understand, the intention of the House in the Hunter case to lay down an inflexible rule to be applied willy-nilly to all cases which might arguably be said to fall within it.”
“As recognised by the Court of Appeal in the Walpole case[1994] QB 106 , 116 and Smith v Linskills … the House of Lords did not decide in the Hunter case that the initiation of later proceedings collaterally challenging an earlier judgment is necessarily an abuse of process but that it may be. In considering whether, in any given case, later proceedings do constitute an abusive collateral challenge to an earlier subsisting judgment it is always necessary to consider with care (1) the nature and effect of the earlier judgment, (2) the nature and basis of the claim made in the later proceedings, and (3) any grounds relied on to justify the collateral challenge (if it is found to be such). In considering (1), the nature and effect of the earlier judgment, it would in our view be fallacious to treat all judgments as of equal weight. We are satisfied that for reasons given in the Hunter case and Smith v Linskills, a collateral challenge in civil proceedings to a subsisting criminal conviction, particularly a conviction upheld or not challenged on appeal, and whether the defendant was convicted on his own admission or on the verdict of a court or jury, must always be the hardest to justify. Nothing short of fresh evidence satisfying the Phosphate Sewage test will ordinarily suffice.”
“Therefore, if the removal of the advocate's immunity in criminal cases would produce these conflicting decisions, I would have no doubt that the public interest demanded that the advocate's immunity be preserved. But in my judgment the law has already provided a solution where later proceedings are brought which directly or indirectly challenge the correctness of a criminal conviction. Hunter … establishes that the court can strike out as an abuse of process the second action in which the plaintiff seeks to re-litigate issues decided against him in earlier proceedings if such relitigation would be manifestly unfair to the defendant or would bring the administration of justice into disrepute….in my judgment where the later civil action must, in order to succeed, establish that a subsisting conviction is wrong, in the overwhelming majority of cases to permit the action to continue would bring the administration of justice into disrepute. Save in truly exceptional circumstances, the only permissible challenge to a criminal conviction is by way of appeal.”
“I, too, would not wish to be taken as saying anything to confine the power within categories. But I agree with the principles upon which Lord Diplock said that the power should be exercised: in cases in which relitigation of an issue previously decided would be "manifestly unfair" to a party or would bring the administration of justice into disrepute. It is true that Lord Diplock said later in his speech, at p 541, that the abuse of process exemplified by the facts of the case was: "the initiation of proceedings in a court of justice for the purpose of mounting 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." But I do not think that he meant that every case falling within this description was an abuse of process or even that there was a presumption to this effect which required the plaintiff to bring himself within some exception. That would be to adopt a scheme of categorisation which Lord Diplock deplored. As I shall explain, I think it is possible to make some generalisations about criminal proceedings. But each case depends upon an application of the fundamental principles. I think that Ralph Gibson LJ was right when, after quoting this passage, he said in Walpole v Partridge & Wilson[1994] QB 106 , II6 A that Hunter's case[1982] AC 529 decides "not that the initiation of such proceedings is necessarily an abuse of process but that it may be".”
“In the course of his interviews the appellant said that during his detention in Pakistan he had been tortured by agents of ISI with the complicity of officers of the Security Service and the Secret Intelligence Service (“British officers”). He says that as 93. a result he made a number of false confessions. It is not alleged that anything he had said under interrogation in Pakistan formed any part of the prosecution case against him, which was based principally on the confessions he had made in the course of his interviews in this country. However, at the trial the appellant contended that as a result of his experiences in Pakistan he had become extremely vulnerable to questioning and psychologically unable to resist giving answers which he thought the interviewing officers wanted. He said that as a result much of what he had said in his interviews was false. 94. Before the trial began the appellant applied to have the indictment stayed on the grounds that the complicity of the British officers in his interrogation and torture in Pakistan and his subsequent removal to London amounted to an abuse of executive power of sufficient gravity to render the prosecution an abuse of process.”
“was not whether the appellant was tortured while in detention in Pakistan or, if so, whether British officials were complicit in that torture. Rather, it is whether he is entitled to pursue those allegations again in these proceedings despite the fact that they have already been considered and rejected both in the course of his trial in the Crown Court and on his subsequent appeal.”
“44. I agree that the question whether subsequent proceedings amount to an abuse of process is to be determined objectively ... 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... 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. 45. (Counsel for the Claimant) submitted that Sir Michael Astill’s findings, especially his finding that the appellant was subjected to treatment that amounted to oppression, are not sufficiently explicit to exclude ill-treatment of a relatively modest kind that would be sufficient to support liability in tort. The appellant should therefore be allowed to pursue his claim so that more detailed findings can be made. However, in my view that is to view the matter too narrowly. Two central allegations lie at the heart of the present claim: (i) that the appellant was detained against his will and tortured (no lesser word will do); and (ii) that British officers and the respondents were in one way or another complicit in his detention and torture by procuring it, encouraging it or failing to take steps that would have prevented or curtailed it. However one defines “complicity” in the context of the different causes of action, unless both allegations are established the claim will fail. As Irwin J. pointed out, save for the claim for false imprisonment the appellant must prove ill-treatment and complicity in order to found a claim for damages; and even in relation to false imprisonment he must establish complicity on the part of the respondents or those for whom they are responsible. In order to determine the applications before him it was necessary for the judge to make findings about the detention of the appellant and the treatment to which he had been subjected. The judge accepted that the appellant had been detained and subjected to some threats, but found that he had not been tortured. He also found that British officers had not been complicit in the detention of the appellant. As a result, the indictment was not stayed, the trial proceeded, the appellant’s confessions (which constituted almost the entirety of the evidence against him) were admitted in evidence, his attempt to undermine them by giving evidence of ill-treatment in Pakistan was rejected by the jury and he was convicted. 46. Viewed objectively, whatever the appellant’s actual motivation, his attempt to establish that he was detained and tortured in Pakistan with the complicity of British officers does in my opinion constitute a collateral attack on his conviction. It is unnecessary and inappropriate for this purpose to debate the nuances of the judge’s findings in the light of the disclosure material. What matters is whether the essential elements of the case which the appellant now seeks to pursue were adjudicated upon. If his evidence that he had been tortured with the complicity of the British officers had been accepted by the judge it is possible, perhaps even likely, that the judge would have been satisfied on the balance of probabilities that British officers had also been complicit in returning him to the United Kingdom. In those circumstances the court might have concluded, as in R v Horseferry Road Magistrates’ Court Ex parte Bennett [1994] A.C. 42 and R v Mullen[1999] 2 Cr. App. R. 143 , that the indictment should be stayed. Similarly, if the appellant had persuaded the judge that he had been, or might have been, tortured in Pakistan in the manner he described, the judge would have had to consider whether he could be sure that the confessions were not rendered unreliable as a result, since, if he could not be sure of that, he would have had to rule them inadmissible. Accordingly, although success in the current proceedings would not lead to the conclusion that the outcome of the trial must inevitably have been different, it would seriously undermine the reliability of both rulings and thereby the safety of the appellant’s conviction. In my view that is sufficient to render the present proceedings an abuse of process in accordance with the principle in Hunter’s case. That is all the more so given that the appellant has already had an opportunity to challenge the judge’s ruling on appeal and has done so.”
“The judge rejected the submission that the concessions made by the Crown amounted to an acceptance of complicity in unlawful detention and ill-treatment of the appellant and in my view he was right to do so. I accept that, because the appellant now seeks to establish liability on the part of the respondents in respect of acts committed by persons other than themselves, these proceedings inevitably give rise to issues of law which did not arise in the criminal proceedings, for example, those relating to the principles of joint liability in tort. However, for the reasons I have given I do not think that provides an answer to the respondents’ argument. What ultimately matters is whether the present proceedings are properly to be viewed as constituting an impermissible collateral challenge to the appellant’s conviction; or, to put it more bluntly, whether it is an improper use of the court’s process for the appellant to attempt in these proceedings to obtain findings about the circumstances of his detention and alleged ill-treatment which are contrary to those made in the criminal proceedings...In my view it was correct, because the allegations of detention and torture and of the complicity of British officers in them were fundamental to the applications made and rejected in the criminal proceedings, just as they are fundamental to the present civil proceedings. The question which the judge posed in paragraph 65 of his judgment as to whether, if the action succeeded, there was anything to prevent the appellant from claiming that his conviction was tainted by mistreatment in which British officers were complicit, is properly to be regarded as part of his reasoning rather than as a test for the existence of abuse of process.”
“Whilst it is important to emphasise the flexibility of the doctrine, one factor which will, in many cases, be indicative of an abuse of process is where the proceedings in question involve a collateral attack…on the decision in earlier proceedings. The most obvious example of this is the collateral attack on a criminal conviction in earlier proceedings, as inHunteritself orAmin, but the abusiveness of a collateral attack is by no means limited to criminal convictions. ”