ON APPEAL FROM THE QUEEN'S BENCH DIVISION,
ADMINISTRATIVE COURT (COLLINS J)
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE MAURICE KAY
(Vice President of the Court of Appeal, Civil Division
LORD JUSTICE SULLIVAN
| THE QUEEN (on the application of) OMAR
|- and -
|SECRETARY OF STATE FOR FOREIGN & COMMONWEALTH AFFAIRS
Hearing date : 8 December 2011
Crown Copyright ©
Lord Justice Maurice Kay :
"It seems to us, therefore, that although the action cannot be one used for wide-ranging discovery or the gathering of evidence and is strictly confined to necessary information, and the court must always consider what is proportionate and the expense involved, the scope of what can be ordered must depend on the factual circumstances of each case. In our view the scope of the information which the court may order be provided is not confined to the identity of the wrongdoer nor to what was described by Lightman J in Mitsui … as 'a missing piece of the jigsaw'. It is clear from the development of the jurisdiction in relation to the tracing of assets that the courts will make orders specific to the facts of the case within the constraints made clear in Norwich Pharmacal and the cases to which we have referred.
We accept that the justification for the extension to the provision of more information than merely the identity of the individual or a certain specific fact was justified on the basis that equity was always prepared to assist the tracing of assets. However, where in this truly exceptional case information is said to be necessary to exculpate an individual facing a possible death penalty if convicted, we consider that a court is entitled to exercise the jurisdiction to order certain specific information be made available to serve the ends of justice, without the narrow circumscription that some observations suggest. A system of law under which it is permissible to order the provision of information to trace a person's property, but under which it was not permissible to order the provision of information to assist in the protection of a person's life and liberty, would be difficult to justify."
In the present case, as in Binyam Mohamed, Mr Omar faces the possibility of the death penalty in the event of conviction in Uganda.
Issue 1: Is relief "necessary" by reference to unlawful rendition/abuse of process?
"6. Following these investigations Kenyan government officials handed over the fourth and fifth applicants … to the Uganda police force in Kampala, who I received on the 14th August 2010 and 26th August 2010 respectively in Kampala …
8. I know that the sixth, seventh and eighth applicants were arrested as suspects in the bombings by Ugandan police while they were in Uganda."
Mr Omar is the person referred to as the seventh applicant. The fourth applicant was a man called Suleiman. It would be difficult for the Ugandan authorities to deny unlawful rendition in his case because on 30 September 2010 a Kenyan judge held:
"There was no formal request by the Ugandan authorities for him. There was no warrant issued by a court in Uganda seeking his arrest. All extradition provisions were disobeyed in his connection. In short, all the evidence indicates he was illegally arrested, detained and removed from Kenya."
Issue 2: disclosure of material relating to alleged ill-treatment
"No admissions were made, and thus the ill-treatment, albeit wrongful, albeit, if it happened to be deprecated, was not such as would have rendered any evidential material upon which the prosecution would want to rely inadmissible, and in those circumstances it would not add to the abuse of process argument – at least, it would not add more than the claimant already asserts. Thus, … in my view it is not necessary."
"… in response to pre-action correspondence the Secretary of State has chosen to conduct reasonable and proportionate searches from material held that might tend to support an allegation that the Claimant was tortured or deliberately ill-treated in the manner alleged; these searches identified no such material."
Issue 3: Exculpatory material
Issue 4: Investigatory Powers Tribunal (IPT)
Lord Justice Sullivan:
The Master of the Rolls: