| PRACTICE — Disclosure — Right to fair trial — Former UK resident detained by United States and charged with offences relating to terrorism — Whether appropriate to order Foreign Secretary to disclose potentially exculpatory material — Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment 1984 (1990) (Cm 1775)
R (Binyam Mohamed) v Secretary of State for Foreign and Commonwealth Affairs [2008] EWHC 2048 (Admin); [2008] WLR (D) 295
QBD: Thomas LJ and Lloyd Jones J: 21 August 2008
The principles set out by the House of Lords in Norwich Pharmacal Co v Customs and Excise Commissioners [1974] AC 133 could be applied in novel circumstances to require the Foreign Secretary to disclose information, specific to the claimant and essential to his defence to serious charges which might carry the death penalty, in confidence to lawyers representing him in proceedings at Guantanamo Bay, given that the conduct of the security service of the United Kingdom had amounted to being involved in arguable wrongdoing by facilitating interviews of the claimant by or on behalf of the United States of America while the claimant had been held unlawfully in incommunicado detention and on his case had been subject to alleged torture and cruel, inhuman or degrading treatment at the hands of the detaining authorities.
The Divisional Court of the Queen’s Bench Division so held in the open judgment of the court in proceedings by the claimant, Binyam Mohamed, an Ethiopian national and former resident of the United Kingdom, who had been arrested in Pakistan in 2002 and held by the United States of America at Guantanamo Bay since September 2004, for judicial review of the decision of the Foreign Secretary to refuse to provide to the claimant exculpatory evidence held by the defendant and the United Kingdom security and intelligence services which might assist the claimant if he were to face trial.
THOMAS LJ, delivering the judgment of the court, said that the hearing had taken place in open and closed sessions, and that wherever possible without endangering the interests of national security the court had set out in the open judgment its reasoning and conclusions and the evidence on which they were based, although certain passages summarising part of the court’s findings in the closed judgment had for the time being been redacted by the court at the request of the Foreign Secretary, pending a further hearing. In the light of the principles described by Lord Reid in Norwich Pharmacal v Customs and Excise Commissioners [1974] AC 133, 175 it had been necessary to consider five issues: whether (1) there had been a wrongdoing; (2) the UK Government had been, however innocently, involved in the arguable wrongdoing; (3) the information was necessary; (4) the information sought was within the scope of the available relief; and (5) the court should exercise its discretion in favour of granting relief. The Foreign Secretary had conceded that the claimant’s detention and alleged treatment during detention, including alleged torture, amounted to an arguable case of wrongdoing and that it was sufficient for the purposes of obtaining Norwich Pharmacal relief if an arguable case of wrongdoing was advanced. Therefore it had not been necessary for the court to determine whether there had in fact been any wrongdoing on the part of the United States government, and, as further conceded on behalf of the Foreign Secretary, it was not necessary for the claimant to establish that the actions of the UK security service had been causative of the wrongdoing. In the light of the authorities the correct approach was to ask not whether actions by or on behalf of the UK Government had caused the alleged wrongdoing (which they plainly had not) but whether the UK Government through the security services had become involved in or had participated in the alleged wrongdoing (even if innocently) through facilitating it. The court’s detailed findings and reasons in relation to involvement and facilitation relied on both the closed and open evidence, the summary of which had been partly redacted. In the light of those findings the court had concluded that the security services had not only facilitated interviews by or on behalf of the United States by supplying information and questions when the claimant was being detained by the United States incommunicado and without access to a lawyer, but had also continued to facilitate the interviewing of the claimant after they knew of the circumstances of the claimant’s detention and treatment. This included the period when they must also have appreciated that he was being detained and questioned not in a United States facility but in that of a foreign government (other than Afghanistan) and that the United States authorities had direct access to information being obtained from him. On the basis that what had been done was arguably wrongdoing, the security service had facilitated it in the manner and to the extent described, such that the relationship between the United Kingdom Government and the United States authorities went far beyond that of a bystander or witness to the alleged wrongdoing. As to whether the provision of the information was necessary, for reasons set out chiefly in the closed judgment (including the fact that without the information held by the UK Government the claimant would not be able to try to establish the only answer he had to his confessions, namely that they were involuntary and had been abstracted from him by wrongful treatment) the court was satisfied that the information held by the Foreign Secretary was essential if the claimant were to have his case fairly considered by the Convening Authority of the Military Commissions and, if his case were referred, a fair trial. The court had examined such evidence as it had available to it as to the role and scope of the duties of the Convening Authority and the powers of the Military Commission and Judge, and had concluded that, despite the possibility of provision of the information in the processes under the United States Military Commission Act at some point in the future, that was not a viable alternative to the immediate provision of the information to the claimant’s lawyers by the Foreign Secretary. There existed a real concern as to the effect of further delay in view of evidence that there was a continuing deterioration in the claimant’s mental health. Whether the information sought was within the scope of the available relief depended on the facts of the case. This information fell into two categories: information specifically relating to the claimant and his treatment, and general information about the rendition and treatment of detainees. Subject to the exercise of the court’s discretion, the former fell within the scope of the remedy but the request for wide-ranging discovery was unwarranted. The court would exercise its discretion in favour of disclosure in the circumstances and especially in view of the fact that the claimant might face the death penalty under the US Military Commissions Act, 2006, and the importance of the prohibition on state torture (both at common law and under the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment 1984 (1990) (Cm 1775)) which was alleged to have been violated. In relation to the other grounds argued on behalf of the claimant, the court was not persuaded that the decision of the Foreign Secretary not to make voluntary disclosure should be quashed on public law grounds, nor did the court consider that in the circumstances of the case the United Kingdom was under a duty in international law to make the disclosure sought. The court had reserved its decision on the issues relating to national security and would make no order for the provision of the information until such time as the Foreign Secretary had had an opportunity to consider whether he wished to invoke public interest immunity in the light of the court’s judgment, and until the court had made its decision on those issues and, if its decision was that the information should be provided, had resolved any dispute as to the manner in which it was to be provided. |
