Neutral Citation Number: [2017] EWHC 1861 (QB)
Case No: HQ12X02603
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Date: 21/07/2017
Before :
THE HONOURABLE MR JUSTICE POPPLEWELL
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Between :
(1)ABDUL HAKIM BELHAJ(2) FATIMA BOUDCHAR / Claimants
- and -
(1) RT HON JACK STRAW
(2) SIR MARK ALLEN CMG
(3) THE SECRET INTELLIGENCE SERVICE
(4) THE SECURITY SERVICE
(5) THE ATTORNEY GENERAL
(6) THE FOREIGN AND COMMONWEALTH OFFICE
(7) THE HOME OFFICE / Defendants
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Richard Hermer QC, Ben Jaffey QC, and Edward Craven
(instructed by Leigh Day) for the Claimants
Rory Phillips QC, Karen Steyn QC and Richard O’Brien
(instructed by Government Legal Dept.) for the Defendants
Jeremy Johnson QC (instructed by Special Advocates’ Support Office) for the Special Advocates
Hearing dates: 10-11 July 2017
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Approved Judgment
Mr Justice Popplewell :
1. The Defendants apply for a declaration that these are proceedings in which a closed material application may be made pursuant to section 6 of the Justice and Security Act 2013 (“the Act”).
The Claim
2. The Claimants claim that the Defendants were complicit in their extraordinary rendition from Malaysia via Thailand to Libya in March 2004, during and following which they were tortured and Mr Belhaj was summarily sentenced to death. The Amended Particulars of Claim refer repeatedly to “rendition” and define rendition as “a euphemism commonly used since about 2001 to describe covert unlawful abduction organised and carried out by state agents, across international borders, for the purpose of unlawful detention, interrogation and/or torture”. A report of the Intelligence and Security Committee dated 28 June 2007 noted that the term “rendition” was used to mean different things by different people and encompassed numerous variations of extrajudicial transfer. The report defined the term to encompass any extrajudicial transfer of persons from one jurisdiction or state to another. It defined “extraordinary rendition” as “the extra-judicial transfer of persons from one jurisdiction or state to another, for the purposes of detention and interrogation outside the normal legal system, where there is a real risk of torture or cruel, inhuman or degrading treatment (CIDT).” This is the sense in which the Claimants use the word rendition, which I shall refer to as extraordinary rendition in this judgment.
3. The First Defendant, the Rt. Hon. Jack Straw, was at the time Her Majesty’s Secretary of State for Foreign and Commonwealth Affairs. The Second Defendant, Sir Mark Allen CMG, is alleged to have been the director of counter terrorism at the material time for the Third Defendant (“SIS”). SIS, commonly referred to as MI6, and the Fourth Defendant (“SS”), commonly referred to as MI5, are two of the three United Kingdom security and intelligence agencies, together with GCHQ. The Sixth and Seventh Defendants, the Foreign Office and the Home Office, have been sued as the departments responsible for the acts of their servants or agents. The Fifth Defendant has been joined for procedural reasons pursuant to section 17(3) of the Crown Proceedings Act 1947.
4. The Claimants’ claim in a little more detail can be summarised as follows. After the 09/11 terrorist attacks, the UK security services, and in particular Mr Mark Allen, as he then was, cooperated with Moussa Koussa, his Libyan counterpart as head of the Libyan External Security Organisation (“ESO”), to obtain intelligence about LIFG, targeting sources including Mr Belhaj; the targeting of dissidents such as Mr Belhaj was part of a collaborative deal with Colonel Gaddafi in return for the latter’s dismantling of his chemical and nuclear weapons programme. In February 2004 Mr Belhaj and Ms Boudchar were detained by Chinese authorities in Beijing and deported to Malaysia where they were detained at an immigration detention centre in Kuala Lumpur for about two weeks. SS and SIS learned of their detention in Kuala Lumpur, and entered into a scheme pursuant to the collaborative deal with Colonel Gaddafi’s regime and approved by Jack Straw, for their extra-judicial abduction and transfer to Libya by US security personnel. In fulfilment of the scheme, the Claimants were first transferred from Kuala Lumpur to Bangkok, where they were detained and subjected to torture and interrogation by US intelligence officers at a US CIA-run “black site”. They were then transferred from Bangkok to Tripoli on a plane leased by the US authorities, on which they were again interrogated and tortured by US intelligence officers. On arrival in Tripoli, the Claimants were arrested and detained by the ESO. Ms Boudchar was imprisoned for about three and a half months; Mr Belhaj was imprisoned for about six years. They were tortured throughout their detention in Libya and Mr Belhaj was summarily sentenced to death. The extraordinary rendition was based on British intelligence which was provided in the knowledge of the likelihood or risk that the Claimants would be tortured by US and Libyan officials. The Defendants were not only complicit in the Claimants’ extraordinary rendition but supplied questions for the interrogation of Mr Belhaj in Libya, and were themselves involved in such interrogation; the complicity of the Defendants is evidenced by a number of documents discovered by Mr Peter Bouckaert, Emergencies Director of Human Rights Watch, in Tripoli on 3 September 2011, following the fall of the Gaddafi regime (“the Tripoli documents”). Those documents included in particular a letter of 18 March 2004 from Mark Allen to Moussa Koussa confirming that the UK had arranged the Claimants’ abduction and that the intelligence which had enabled the operation to take place had been British intelligence.
5. As Lord Sumption noted in the Supreme Court appeal in this case, Belhaj v Straw [2017] 2 WLR 456 at [278], the pleaded allegations in this case involve a “combination of violation of peremptory norms of international law and inconsistency with principles of the administration of justice in England which have been regarded as fundamental since the 17th century”.
6. Proceedings were commenced on 28 June 2012. The claim was framed in the English law torts of false imprisonment, trespass to the person, conspiracy to injure (by lawful means and by unlawful means), misfeasance in public office, and negligence.
7. Defences were served on 21 December 2012. The defences averred that save in very limited respects the Defendants were unable to plead a positive case or respond to the detailed narrative or core allegations in the Particulars of Claim because to do so in open proceedings would involve referring to material which was harmful to the public interest. In addition Jack Straw and Sir Mark Allen pleaded that they were inhibited from advancing their defence by their obligations under the Official Secrets Act 1989. The defences also averred immunity or non-justiciability on the basis of the doctrine of state immunity or foreign act of state; and that the claims were governed by foreign law.
8. Simon J (as he then was) ordered that the state immunity/act of state and applicability of foreign law issues be tried as preliminary issues. He determined that the causes of action were governed by Malaysian, Thai, US and Libyan law respectively. His decision in that respect was upheld by the Court of Appeal and no appeal was made on that issue to the Supreme Court. The state immunity/act of state issues were the subject of appeal to the Supreme Court who, in a judgment handed down on 17 January 2017, determined that the Defendants could not rely on those doctrines to escape liability or justiciability.
9. On 2 May 2017 the Claimants served Amended Particulars of Claim setting out their case on the relevant provisions of Malaysian, Thai, US and Libyan law; and expanding the narrative of the allegations in relation to the course of relations between the UK and Libyan authorities between 11 September 2001 and February 2004, which were alleged to form the relevant background to the Defendants’ complicity in the alleged extraordinary rendition. The relevant parts of Malaysian law were said to reflect English common law and the claims in respect of detention and mistreatment in Malaysia were based on the torts of false imprisonment, conspiracy to injure by lawful and unlawful means, misfeasance in public office and negligence.
10. Following a CMC on 28 April 2017 and in accordance with a timetable then laid down, on 8 June 2017 the Defendants issued this s.6 application. It was supported by an open statement of reasons signed by the Secretary of State for Foreign and Commonwealth Affairs. It was further supported by closed material comprising a closed statement of reasons signed by the Secretary of State (“the Closed Statement of Reasons”), to which was attached a sensitive schedule containing the sensitive material which it was alleged would require disclosure and a lengthy explanation why such disclosure would be contrary to the interests of national security (“the Sensitive Schedule”). The Sensitive Schedule included and attached a number of documents (“the s.6 material”). Following discussion with the Special Advocates, a version of the Closed Statement of Reasons was put into open (“the Open Closed Statement of Reasons”). It did not include any part of the Sensitive Schedule.
11. On 19 June 2017 the Defendants served amended defences. In those defences they plead to the terms and applicability of the foreign laws, and advance a positive case that any detention of the Claimants by the foreign authorities would have been lawful under Malaysian, Thai, US and Libyan law respectively. They make a denial in general terms that they acted unlawfully. They maintain the position previously advanced that save to a very limited extent they are unable to plead a positive case in relation to the detailed narrative or core allegations which form the basis for the Claimants’ case, on the grounds that it would be harmful to the public interest; and in the case of Jack Straw and Sir Mark Allen, that they are inhibited from doing so by their obligations under the Official Secrets Act. Those averments of an inability to plead a positive case are supported by the Secretary of State in the Open Closed Statement of Reasons.
12. The Claimants have served two witness statements in opposition to the application from Ms Malik, their solicitor, which refer to and exhibit a large number of documents relied on by the Claimants as supporting their claim and as already being in the public domain or in the possession and/or control of the Claimants.
13. I heard submissions in the usual way from Mr Phillips QC on behalf of the Defendants and Mr Hermer QC on behalf of the Claimants in open court, before hearing further submissions on the Sensitive Schedule in private from Mr Phillips and Mr Johnson QC on behalf of the Special Advocates. They ensured that as much of the material as could properly be dealt with in an open hearing without damage to the interests of national security was provided to the Claimants, and that the hearing was conducted in open to the greatest extent possible.
14. Although my decision is based to a significant extent on the Sensitive Schedule, the Closed Statement of Reasons and submissions made orally and in writing in closed procedure, I feel able to express my reasoning in an open judgment. A separate closed judgment is to be avoided if possible because it cannot be read by the Claimants or the public: R v Secretary of State for Foreign and Commonwealth Affairs ex parte Sarkandi [2015] EWCA Civ 687 at paragraph 26.
Closed material proceedings: the statutory framework
15. Under the Act, which came into force on 25 June 2013, in civil proceedings the court may operate a closed material procedure under which the court receives sensitive material in private and without disclosure to the other party or parties, whose interests are to some extent protected by special advocates appointed on their behalf to whom disclosure is also made. Sensitive material means material disclosure of which would be damaging to the interests of national security: s. 6(11). This is a narrower category of material than that which may be withheld under the principles of public interest immunity (“PII”). It follows that where a closed material procedure is permitted, PII applications on other grounds of public interest, including the grounds that disclosure would be damaging to international relations, may be made in parallel with the closed procedure.
16. The background to the Act is set out in paragraph 16 and 17 of the Explanatory Notes and paragraphs 16 to 18 of the judgment of Irwin J, as he then was, in F v Security Service [2014] 1 WLR 1699, which I need not set out. The Act recognises that in some cases which would potentially involve disclosure of material damaging to the interests of national security, exclusionary PII procedures may prevent any fair trial taking place at all; and seeks to remedy that deficiency by the availability of a closed material procedure.
17. The relevant parts of s.6 of the Act are as follows:
“6.— Declaration permitting closed material applications in proceedings