PTA/10/2011, PTA1/2011,PTA20/2011, PTA/03/2012
ON APPEAL FROM HIGH COURT OF JUSTICE
Lord Justice Lloyd Jones
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE SULLIVAN
LORD JUSTICE BRIGGS
| Mohamed Ahmed Mohamed
- and -
Secretary of State for the Home Department
Danny Friedman QC and Tom Hickman (instructed by Irvine Thanvi and Natas) for CF
James Eadie QC, Andrew O'Connor and Louise Jones (instructed by Treasury Solicitor) for the Respondent
Hugo Keith QC, Zubair Ahmad and Shaheen Rahman (instructed by the Special Advocates' Support Office) as Special Advocates
Hearing dates: 28 January to 30 January 2014
Crown Copyright ©
Lord Justice Maurice Kay:
"132…The position of the Secretary of State in these proceedings is that she neither confirms nor denies that the UK authorities were involved in the arrest, detention and deportation of [the appellants]. I have addressed these issues with that in mind.
133. With considerable reluctance I have come to the conclusion that these matters cannot be addressed in my open judgment. However, I have addressed these matters in detail in my closed judgment."
1. Abuse of process
"(1) The Security Service was aware of [MAM's] presence in southern Somalia since 2007 and yet took no steps to seek his extradition or arrest prior to December 2010, despite viewing him as a serious threat to national security.
(2) On becoming aware by 22 December 2010 of [MAM's] impending travel to Somaliland, the Security Service saw such travel as an opportunity to bring restrictive measures against him either in Somaliland or in the United Kingdom.
(3) The Security Service, either alone, or with the United Kingdom Special Forces, then conducted a joint operation with Somaliland authorities to detain [MAM].
(4) The Security Service either knew that the planned operation had no basis in the law of Somaliland or Somalia and/or international law, or at best was recklessly indifferent to such legality and took no steps to ascertain whether it had any such basis. Given what must have been appreciated as to the risks of abuse following detention, serious breaches of the United Kingdom criminal law may also have occurred.
(5) The Security Service then participated actively in the interrogation of [MAM], despite knowledge that he had been abused and that he remained exposed to a risk of further abuse. Again, serious issues as to breach of domestic and international law as well as local law arise.
(6) The Security Service knew from the outset that there were real problems facing any prosecution of [MAM] in Somaliland because of the absence of available evidence and its preferred option from the outset was (or the very least swiftly became) that he be forcibly returned to the United Kingdom so that he could be placed under a control order.
(7) The Security Service advocated that course of forced return with the Somaliland authorities, despite knowing deportation to the United Kingdom might, or would, be unlawful if [MAM's] preferred option was to remain in Somalia. Again, the UK authorities either knew deportation was unlawful or were recklessly indifferent as to whether this was the case.
(8) Together with other UK agencies the Security Service then facilitated the removal itself, by permitting the grant of travel documents, paying for [MAM's] return flight and ensuring his supervision first by the Somaliland authorities and then by Emirate authorities.
(9) [MAM] was in fact subjected to an unlawful arrest, unlawful abuse on arrest, unlawful detention and unlawful deportation. He was the victim of breaches of both local law and international law and the UK authorities, through at least the Security Service, knew this to be the case or were recklessly indifferent as to whether this was so.
(10) But for the unlawful conduct to which he has been subjected, [MAM] would not be in this jurisdiction to face these proceedings and neither a control order nor a TPIM would have been served upon him."
"(1) The UK liaison with Security Services or other officials in Somaliland prior to the [appellant's] apprehension on 14 January 2011.
(2) The apprehension on 14 January 2011 during which UK personnel were involved.
(3) The period between the apprehension on 14 January 2011 and arrival at Hargeisa Prison on 15 January 2011 during which UK personnel may have remained involved.
(4) The interrogation and detention in Hargeisa Prison between 15 January and 12 March 2011 during which UK personnel provided questions, shared evidence and may have been present on or nearby the prison site.
(5) The removal from Somaliland to the United Kingdom via Dubai on 13 and 14 March 2011 which is an act of an unrecognised state that cannot be recognised by a UK court and is otherwise not in accordance with Somaliland law.
(6) The conduct of Schedule 7 interviews in Heathrow Airport on 14 March 2011 where it was known the [appellants] had recently suffered ill-treatment and arbitrary detention.
(7) The Ministerial submissions of the Secretary of State prior to the decision to apply for a control order on 12 April 2011 and/or the application to Silber J with regard to CF's control order on 13 April 2011".
In addition CF adopted the submissions made on behalf of MAM.
The appellants' case on abuse of process
"Where… the open material consisted purely of general assertions and SIAC's decision to uphold the certification and maintain the detention was based solely or to a decisive degree on closed material, the procedural requirements of Article 5 (4) would not be satisfied."
(A was an Article 5 case involving a deprivation of liberty, whereas AF (No. 3) was considered by reference to article 6 because control orders were intended to restrict, but not result in, a deprivation of liberty). At paragraph 59 of his speech, Lord Phillips added:
"I am satisfied that the essence of the Grand Chamber's decision lies in paragraph 220 and, in particular, in the last sentence of that paragraph. This establishes that the controllee must be given sufficient information about the allegations against him to enable him to give effective instructions in relation to those allegations. Provided that this requirement is satisfied there can be a fair trial notwithstanding that the controlee is not provided with the detail or the sources of the evidence forming the basis of the allegations. Where, however, the open material consists purely of general assertions and the case against the controlee is based solely or to a decisive degree on closed material, the requirements of a fair trial will not be satisfied, however cogent the case based on the closed materials may be."
"191…the court wishes to address another aspect of the inadequate aspect of the investigation in the present case, namely its impact on the right to the truth regarding the relevant circumstances of the case. In this connection it underlines the great importance of the present case not only for the applicant and his family, but also for other victims of similar crimes and the general public, who had the right to know what happened. The issue of "extraordinary rendition" attracted worldwide attention…
192…However, while there may be obstacles or difficulties which prevent progress in an investigation in a particular situation, an adequate response by the authorities in investigating allegations of serious human rights violations, as in the present case, may generally be regarded as essential in maintaining public confidence in their adherence to the rule of law and in preventing any appearance of collusion in or tolerance of unlawful acts. For the same reasons, there must be a sufficient element of public scrutiny of the investigation or its results to secure accountability in practice as well as in theory. As the Council of Europe stated in its guidelines of 30 March 2011 on eradicating impunity for serious human rights violations,
'impunity must be fought as a matter of justice for the victims, as a deterrent to prevent new violations and to uphold the rule of law and public trust in the justice system.'
"Indeed, if the wider public are to have confidence in the justice system, they need to be able to see that justice is done rather than being asked to take it on trust."
(1) Burden of Proof
In his judgment, Lloyd Jones LJ referred to "the high threshold which must be crossed to render these proceedings an abuse of process" (paragraph 135). Earlier, he had said (at paragraph 87):
"… while the court will always be mindful of the limitations arising from the fact that certain relevant material cannot be disclosed to the [appellants], I do not consider that it is necessary to modify the well-established principles in relation to the burden of proof in abuse of process applications in order to maintain the essential fairness of the trial. "
(2) Proper Purpose
The case for the appellants under this heading is that the purpose of the control order and TPIM legislation is to restrict the liberty of suspected terrorists in the United Kingdom and that, accordingly, the measures were being deployed for an improper purpose, namely to restrict the liberty of the appellants in the United Kingdom at a time when they wish to be elsewhere and in relation to the prevention of terrorism in East Africa. This is, by taxonomy, a simple Padfield v Minister of Agriculture point:  AC 997. The submission is simple but, in my judgment, it is wrong. Whilst it is true that the allegations against the appellants relate to the furtherance of terrorism elsewhere, and they would not have been in the United Kingdom at the time of their return but for the security operation in Somaliland which resulted in their involuntary return, I do not consider the narrowness of their case on purpose to be correct. They are British citizens. There is a strong factual case against them in relation to "terrorism-related activity", which is defined widely in section 1 (9) of the Prevention of Terrorism Act 2005. It includes the provision that "it is immaterial whether the acts of terrorism in question are specific acts of terrorism or acts of terrorism generally". It is common ground that extraterritorial acts of terrorism are included. It is true that control orders and TPIMs only take effect within the jurisdiction – thus, for example, there is a requirement of personal service – but, all other things being equal, there can be no complaint that the alleged overt acts related to overseas activity. Again, it seems to me that this point falls away if the appellants are successful in relation to their fundamental abuse of process point. There can be no objection to imposing a control order or TPIM on a British citizen against whom reasonably suspected terrorism-related activity and the requisite threat to national security are well established, absent an abuse of process. If the appellants were the objects of such an abuse, this submission adds nothing. If they were not, it gives them no ground of complaint.
(3) The status of Somaliland
I do not consider it necessary to give further consideration to this complex issue which, in my judgment, does not add to the appellants' case on abuse of process.
2. Failure to take account of Somaliland matters
"I accept the submission based on a failure to take account of a relevant consideration in the exercise of a discretion is of wider scope than the submission based on an abuse of process. Furthermore, I am prepared to assume for present purposes, without deciding the point, that the Somaliland matters were matters which the Secretary of State was required to take into account in exercising her discretion as to whether to impose control measures. It is therefore necessary to consider whether the Secretary of State might have exercised her discretion differently had she been advised that the Somaliland matters were relevant or had she been aware that there was an issue as to whether the deportations were in accordance with the local law. However, I have come to the clear conclusion that the Secretary of State would inevitably have exercised her discretion in precisely the same way had she taken account of these matters."
"(12) If the court determines…that a decision of the Secretary of State was flawed, its only powers are –
(a) power to quash the order;
(b) power to quash one or more obligations imposed by the order; and
(c) power to give directions to the Secretary of State for the revocation of the order or for the modification of the obligations it imposes.
(13) In every other case the court must decide that the control order is to continue in force."
3. Non-disclosure to Silber J at the permission stage
"(2) where the Secretary of State makes an application for permission…, the application must set out the order for which he seeks permission and –
(a) the function of the court is to consider whether the Secretary of State's decision that there are grounds to make the order is obviously flawed;
(b) the court may give that permission unless it determines that the decision is obviously flawed;
(c) if it gives permission, the court must give directions for a hearing in relation to the order as soon as reasonably practicable after it is made.
(5) The court may consider an application for permission…
(a) in the absence of the individual in question;
(b) without his having been notified of the application…; and
(c) without his having been given an opportunity…of making any representations to the court…"
Thus, the scheme provides for an application without notice and with a relatively low level of scrutiny - "obviously flawed". Nevertheless, it was appropriately described by Lloyd Jones LJ as "an important constitutional safeguard" (paragraph 175 (2)).
"121. It is well established that a party seeking relief from the court on a "without notice" application is under a duty to make a full, fair and accurate disclosure of all material information to the court and to draw the court's attention to significant factual, legal and procedural aspects of the case. Furthermore, the applicant must act with the utmost good faith and is obliged to give full and frank disclosure of all matters which the absent parties could be expected to make had they been present…
163. These principles undoubtedly apply in their full rigour to applications to the court to make a control order or TPIM. Indeed, this may be thought to be an a fortiori case bearing in mind the high degree of resulting interference with individual liberty and the likely substantial delay before an inter partes hearing takes place… I consider that the obligation in the present case was not limited to drawing the court's attention to all matters relevant to the statutory criteria but also extended to require disclosure of matters which would be capable of founding an argument of abuse of process."
I respectfully agree with this exposition. Moreover, I do not consider that relief from the obligation of candour is excused simply on the basis that, at the time, the Secretary of State was subjectively unaware of the abuse of process jurisdiction.
"[MAM] will be imminently arrested in Somaliland and it is possible that he will be deported from Somaliland to the UK. This order will only be served if [he] returns to the UK from Somalia."
By the time that the application was made in relation to CF on 13 April 2011, he had been detained in Somaliland, then returned to the United Kingdom and imprisoned for absconding from trial. The only information relating to the Somaliland matters given to Silber J on 13 April 2011 was:
"Although this has no bearing on the decision to make a control order, the Secretary of State is aware of pre-action correspondence sent to other government departments by [CF] relating to the circumstances and the conditions of his arrest in Somaliland. This was responded to by the Treasury Solicitor's Department on 15 March 2011 and the claimant has not to date sought to take this matter further."
Lloyd Jones LJ considered the disclosure made to Silber J on both occasions to be "deficient" (paragraph 172). He then turned to the question whether this non-disclosure should result in the quashing of the control orders but not the subsequent TPIMs, by which time the disclosure was sufficient. Again, the practical consequence of quashing would go to the potential issue of criminal liability for breach of the orders.
"…I have had regard to the following considerations:
(1) The making of the control orders resulted in a considerable interference with the civil liberties of the [appellants].
(2) The fact that a control order…can only be made with the permission of a High Court judge is an important constitutional safeguard. If it is to be effective the judge must be fully informed of the relevant circumstances.
(3) However, the applications to the court for permission to make control orders were not an abuse of process, for the reasons set out in my open and closed judgments.
(4) …I do not consider that the non-disclosure was deliberate. There is nothing in the materials I have seen to support the view that this was a deliberate attempt improperly to manipulate the process. On the contrary, all the indications are that the view was genuinely but erroneously held that the matters which were not disclosed had no bearing on the court's decisions.
(5) These statutory powers are conferred on the Secretary of State to enable her to act to protect the public from terrorism-related activity. In the present case she concluded that these measures were necessary for the protection of the public. These considerations necessarily weigh very heavily in the exercise of my discretion, not least when I have regard to the strength of the evidence on which these conclusions were reached.
(6) I note that even in the context of private civil claims where non-disclosure has resulted in the grant of an injunction it does not necessarily follow that the court must discharge the injunction (Brinks Mat Ltd v Elcombe  1 WLR 1350 at pp 1357E, 1358 C-G)."
Applying this approach, he exercised his discretion by refusing to quash the control order for non-disclosure.
4. CF's additional grounds of appeal
The allegations against CF were formulated in an amended statement as follows:
"The Security Service assesses that [CF] has:
(a) Attempted to travel to Afghanistan to fight jihad and engage in suicide operations;
(b) Undertaken terrorist training in Somalia after June 2009;
(c) Fought in Somalia alongside Al-Shabaab after June 2009;
(d) Provided advice on travelling to Somalia to other individuals;
(e) Attempted to recruit fighters in the UK for fighting overseas;
(f) Potential involvement in attack planning."
Mr Friedman focuses on paragraph (b)-(f) for the obvious reason that the Afghanistan allegations in paragraph (a) were the subject of the criminal trial from which CF absconded in June 2009. The amended statement augmented paragraph (a) with a detailed summary of that allegation which the Secretary of State continues to press notwithstanding CF's acquittal in absentia. She is undoubtedly entitled to do so.
As regards paragraph (b)-(f), the amended statement contains additional details, sometimes with a degree of particularity, sometimes not. In relation to paragraphs (b) and (c) it asserts that, having absconded from his trial, CF
"travelled to Somalia where he attended a terrorist training camp … he left the UK using a false Portuguese passport … he did not leave the UK through usual methods … he may have been assisted in his abscond by the extremist network of which he is part …
… between June 2009 and January 2011 [he] was involved in terrorist training and fighting alongside Al-Shabaab with other Islamist extremists … there may have been times during this period when [he] was not involved in Islamist extremist activities."
The amended statement also names a number of CF's associates and identifies them as Islamist extremists.
"[CF] has been involved in the recruitment and facilitation of individuals for terrorist-related activity, including providing advice to others on travelling to Somalia … [he] wanted to assist some of his sister's and [a named person's] travel to Somalia for terrorism-related activity.
… [he] has been involved in fundraising for Al-Shabaab."
The allegation in paragraph (f) is fleshed out in detail by reference to the events of January 2011 and CF's association with MAM, in respect of whom more detailed information was provided.
(2) AF (No. 3)
I refer to and set out again the test adopted by Lord Phillips (at paragraph 59).
"… the controlee must be given sufficient information about the allegations against him to enable him to give effective instructions in relation to those allegations. Provided that this requirement is satisfied there can be a fair trial notwithstanding that the controllee is not provided with the detail or the sources of the evidence forming the basis of the allegations. Where, however, the open material consists purely of general material and the case against the controllee is based solely or to a decisive degree on closed material, the requirements of a fair trial will not be satisfied, however cogent the case based on the closed material may be."
For present purposes, I shall assume that some of the open allegations consist "purely of general assertions" and that the case against CF in relation to them is based "solely or to a decisive degree" on closed material.
"… it is simply not true that the open allegations were of a comparable level of generality to the allegations of continuing LIFG membership that was at issue in AT … CF was told when the terrorist training and fighting was alleged to have occurred – i.e. during an 18 month period between June 2009 and January 2011, where it was said to have taken place – i.e. in Somalia, and with whom it was said to have taken place – in general, with members of Al-Shabaab, but note also the allegation that CF trained with two named individuals."
I am entirely satisfied that these points are well-made and that disclosure in relation to terrorist training and fighting in Somalia was sufficient, as also was disclosure in relation to the events of January 2011 and the association with MAM. As the Afghanistan, Al-Shabaab and January 2011 matters would, without more, have inevitably been sufficient to justify the control order and the TPIM in CF's case, the less specific disclosure in relation to recruitment, travel advice and fund-raising loses its significance, although the reference to travel assistance did include the identification of its recipients.
"… disclosure has been the subject of a series of interlocutory meetings … Furthermore, I have kept disclosure under review throughout the substantial hearing. I am satisfied that appropriate disclosure has been made … in accordance with AF (No. 3)."
Needless to say, if the Special Advocates considered that there was any legal error in the disclosure rulings, they would pursue it by way of closed grounds of appeal. This open ground of appeal is utterly unsustainable.
Lord Justice Sullivan.
Lord Justice Briggs.