Civil Procedure – Disclosure – Inhuman or degrading treatment or punishment – Interrogation – National security

R (on the application of Binyan Mohamed) v Secretary of State for Foreign and Commonwealth Affairs: DC (Lord Justice, Mr Justice Lloyd Jones): 21 August 2008

The claimant (B) applied for judicial review of a decision of the defendant secretary of state to refuse to provide certain information that was relevant to his defence of terrorist charges in the US. B also claimed for the provision of information and documents under the Norwich Pharmacal principles or under a duty under customary international law.

B was an Ethiopian national who had leave to remain in the UK. He had been arrested in Pakistan in 2002 and had been interviewed there by US agents and by the UK’s Security Service about possible terrorist links. Despite requests, the UK had been denied further interviews and had not been provided with details of B’s whereabouts for the following two years, although they had submitted questions to be put to B. B had been transferred to US custody in 2004 and made several confessions. In 2008 he was charged in the US with terrorist offences that carried the death penalty. B contended that during the two years after his arrest he had been held incommunicado, without access to a lawyer, that he had been subject to rendition to Morocco, then a US base in Afghanistan and then to the US military prison at Guantanamo Bay, and had been subjected to inhuman and degrading treatment or torture by the authorities in Pakistan and Morocco with the connivance of the US government and to similar treatment in US custody. B claimed that as a result he had made false confessions. B sought to obtain information and documents held by the secretary of state that were accepted might be exculpatory or might otherwise be relevant in his defence of the US charges. The secretary of state contended that he was under no duty to disclose the documents or information contained in them and that to do so would cause significant damage to the national security of the UK. He argued that there would be no disadvantage to B because the documents would be made available during the US proceedings.

Held: (1) In considering whether the Norwich Pharmacal principle should be applied to the instant case it was necessary to consider whether the secretary of state had, however innocently, been involved in the admittedly arguable wrongdoing, whether the information was necessary, whether the information sought was within the scope of the available relief, and whether the court should exercise its discretion in favour of granting relief. The secretary of state, through the Security Service, had facilitated the interrogation of B in the knowledge that his initial detention in Pakistan had been unlawful. They had also continued to facilitate interviews conducted on behalf of the US authorities during the two-year period when they must have appreciated that B was not in US custody, but that the US authorities had access to information being obtained from him. Accordingly, the secretary of state had been involved in the arguable wrongdoing. In deciding the issue of necessity, the court was entitled to consider all the circumstances including the size and resources of the applicant, the urgency of his need and any public interest in having his needs satisfied, Campaign Against Arms Trade v BAE Systems Plc [2007] EWHC 330 (QB) applied. There was no authority that justified a more stringent requirement than necessity by elevating the test to the information being ‘a missing piece of the jigsaw’ or to it being a remedy of last resort, Mitsui & Co Ltd v Nexen Petroleum UK Ltd [2005] EWHC 625 (Ch), [2005] 3 All ER 511 and Furber (Setting of Minimum Term), Re [2007] EWHC 17 (QB) considered.

In the instant case, the information was not merely necessary but was essential for a fair trial because it provided the only independent support for parts of B’s account of events that had led to his confessions. It was not certain that the documentation would be provided to B during the US trial process, or that it would be provided within a proper time. The remedy under Norwich Pharmacal was a flexible one and was not confined to the identity of an alleged wrongdoer, R (on the application of Rottman) v Commissioner of Police of the Metropolis [2002] UKHL 20, [2002] 2 AC 692 applied. The scope of what could be ordered would depend on the circumstances of each case. In considering the exercise of discretion, particular significance was attached to the nature of the prohibition on state torture that was alleged to have been breached. Accordingly, the secretary of state would be ordered to provide to B’s lawyers evidence of his knowledge of B’s renditions, the US agents involved and the flights used, evidence of his arrest and subsequent treatment, evidence of the Security Service interview and any information about B that had been provided to the US. The information would be disclosed solely for the purpose of the pending proceedings leading to a trial. No order would be made until the secretary of state had considered whether to invoke public interest immunity and a decision had been made on that issue.

(2) The secretary of state’s decision to refuse voluntary disclosure had not been unreasonable or irrational. He had been entitled to give the highest weight to considerations of national security.

(3) There was no rule of customary international law that required the UK to make disclosure to B.

Judgment accordingly.

Diana Rose QC, Philippe Sands QC, Ben Jaffey (instructed by Leigh Day) for the claimant; Thomas de la Mare, Martin Goudie (instructed by the Treasury Solicitor’s Special Advocates Support Office) for the Special Advocates for the claimant; Pushpinder Saini QC, Vaughan Lowe QC, Karen Steyn, Tim Eicke (instructed by the Treasury Solicitor) for the defendant; Michael Birnbaum QC for Amicus Curiae; Duncan Penny (instructed by Kingsley Napley) for witness B.