England and Wales High Court (Commercial Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION 1993 Folio 1309
COMMERCIAL COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		13 December 2002

Mr Justice Tomlinson

1. In this judgment I give my reasons, so far as I am able, for permitting the Bank to disclose Appendix 8 to the Bingham Report with certain passages redacted. Appendix 8 gives a summarised account of the involvement of the British Intelligence Services in the affairs of BCCI until 5 July 1991. The Secretary of State for Foreign and Commonwealth Affairs has intervened to assert that certain passages therein should not be disclosed either because of a statutory requirement or on grounds of public interest immunity, hereinafter " PII."
2. As I indicated I would I have prepared a second very short judgment which I shall not release to the parties. This sets out briefly those reasons for my ruling which I cannot make public. In fact this document does little more than identify the statute to which I refer hereafter without name, so as to render more intelligible what I have said under the rubric " the statutory redactions." I have delivered this judgment to the Treasury Solicitor. I do not pretend that this is an entirely satisfactory procedure but it is the best that I can devise, modelled upon the practice frequently adopted in criminal trials, whereby the judge's reasons for a PII ruling which cannot be published are recorded so as to be available to an appellate court, or to any other judge who has thereafter to ensure the fairness of the continuing proceedings. Thus in the event that the Claimants wish to challenge my ruling there will at least be available to the Court of Appeal my private reasons which the Claimants can invite the court to review, although as I have indicated they do not add a great deal of substance.
3. In the form in which I have approved its disclosure Appendix 8 will have the following passages redacted: -

(i) Paragraph 8.7 on p.897;

(ii) Paragraph 8.10 on p.899;

(iii) Paragraph 8.12 on pp.899-900;

(iv) All except the first and last sentences of paragraph 8.15 on p.901;

(v) Lines 6, 7 and part of line 8 in paragraph 8.16 on p.901;

(vi) Certain words in paragraph 8.18 on p.903;

(vii) Lines 1-5 and part of line 6 in paragraph 8.29 on p.911;

(viii) Part of line 1, lines 2 and 3 and part of line 4 in that part of paragraph 8.40 on p.917 which follows sub-paragraph (2);

(ix) Certain words in the first line of paragraph 8.41 on p.918, and

(x) All 5 sub-paragraphs of paragraph 8.42 on pp.920-921.

4. Redactions (i) – (v) have been made pursuant to a statutory requirement.
5. Redactions (vi) – (x) have been made because I have upheld a claim for PII asserted by the Secretary of State for Foreign and Commonwealth Affairs. However in relation to redactions nos. (vi), (vii), (ix) and (x) the parties have been supplied with summaries of the gist of the redacted material. No summary has been supplied of the gist of the redacted passage on p.917. I have read that passage, as indeed I have read all of the passages redacted on PII grounds. That passage is completely irrelevant to the issues in the action. In relation to this passage alone the Secretary of State has conducted the required balancing exercise and has concluded that the overall balance of the public interest favours non-disclosure. I entirely agree with his judgment in that regard.
6. The statutory redactions

As Mr Crow for the Secretary of State explained to me there is a body of belief within the Government Legal Service that not even I should be told of the source of the statutory bar to disclosure. Having had the statute identified to me and having studied its provisions I can understand why that belief is held, although it is I think mistaken. However, unsatisfactory though it is, I do believe that the view has correctly been taken that the relevant statute ought not to be identified to the parties, from which it follows that I should not identify it in this public judgment.

7. The situation is in fact doubly unsatisfactory because it so happens that certain solicitors from Messrs Freshfields and at least two Counsel, Mr Nicholas Stadlen QC and Mr Mark Phillips QC instructed by Messrs Freshfields on behalf of the Bank have seen and read the entire unredacted version of Appendix 8. The Bank is in possession of Appendix 8 because a copy of the entire Bingham Report with Appendixes was furnished to the Governor as one of the two parties at whose request the Inquiry was undertaken, the other being the Chancellor of the Exchequer. Solicitors and Counsel were permitted to read Appendix 8 after obtaining appropriate security clearance. I can readily understand why in such circumstances the Claimants and their legal advisers should feel at a disadvantage, as Lord Neill QC put it with measured understatement. The Claimants find it difficult to understand how it can have been possible for the Bank's solicitors and Counsel to see the material if there is apparently a statutory bar to the material being disclosed to the Claimants and their solicitors and Counsel. The only comfort that I have been able to give to the Claimants in that regard, in an observation which I hoped was not too Delphic but which I fear may have been, is that there is a distinction between what can be achieved by those who happen to be in possession of a document, as the Bank is, and what the court can achieve by ordering disclosure. In that latter regard I would add that the court can only act within its powers.
8. I should also add for completeness, although it may not be much comfort to the Claimants, that I have been told that Mr Phillips QC has advised the Secretary of State that four out of the five passages redacted pursuant to statute are irrelevant to the issues in the action.
9. In this unhappy state of affairs I have asked myself whether I should read the redacted passages in an effort, putting it broadly, to hold the ring. Mr Crow for the Secretary of State was content that I should read the passages but he pointed out to me that I should first satisfy myself of certain matters before deciding so to do.
10. It may be that ultimately there is no alternative to my (or the trial judge if in the event different) reading the passages and bearing them in mind during the trial so as to ensure that no injustice is done and ensuring that no inappropriate conclusion is drawn as a result of the non disclosure of the material. However it may be that an appellate court will take the view that some quite different procedure can and should be adopted. In such circumstances I propose to proceed with caution. I have concluded that no useful purpose would be served by my reading the relevant passages at this stage and accordingly I have neither seen nor read them. Firstly, I do not consider that there exist reasonable grounds for doubting the Secretary of State's assessment that the relevant passages are required by the statute not to be disclosed. The First Junior Treasury Counsel (Chancery) has satisfied himself of the matter. It is plain to me from the statute that Parliament did not envisage that judges would routinely require sight of the material so as to satisfy themselves on that score. There is however a second objection which is that it is clear to me, on reading the statute, that provided that the material is in fact protected from disclosure by the Act, I would simply have no power whatever to require its disclosure to the parties even if I concluded that it is relevant to issues in the action. There is no balancing exercise to be conducted. The prohibition on disclosure to the parties is absolute. That being the case no useful purpose would be served by my reading the material at this stage and indeed, since I am the designated trial judge, some harm might be done since it is I suppose conceivable that I might become embarrassed by the contents of the one apparently relevant paragraph and unable to continue, particularly if an appellate court were to hold that the trial judge ought not in these particular circumstances to look at material which cannot be disclosed to the parties. I regard that as unlikely but it seems a risk not worth taking if I cannot require disclosure to the parties in any event.
11. If it were thought necessary or appropriate for the Secretary of State's assertion that the material is covered by the statute to be judicially tested that could no doubt more conveniently be done by another judge, or even by the Court of Appeal if the matter is to proceed there anyway. For the time being it does not seem to me that the prospect that the Secretary of State has taken an incorrect view on that narrow point is sufficiently great as to justify my reading the material.
12. Similarly, if it is thought that the material ought to be looked at by a judge in order to ensure that no injustice is done, I consider that in these unusual circumstances where I cannot order disclosure to the parties that ought, at any rate in the first instance, to be done by another judge. If then it is thought that the material is of sufficient relevance that I should have it in mind in my overall evaluation of the evidence given at trial, I would of course consider it. I am bound to say that in a case of this complexity I do not view with any enthusiasm the prospect of my undertaking to have in mind snippets of information which cannot be divulged to the Claimants, nor do I consider that such a procedure could possibly be regarded as satisfactory. If it is really necessary I shall do my best, but I am quite clear that in the first instance it is probably undesirable that I should view material the disclosure of which I have no power to direct.
13. The Claimants have suggested that I should give consideration to the appointment of special counsel to perform a role similar to that which is sometimes prescribed by statute for a special advocate. The procedure is referred to by Lord Woolf MR in Secretary of State for the Home Department v. Rehman 2000 WLR 1240 at 1250-1251, para.31. I am told by Mr Crow that the Agencies are not aware of this procedure ever having been followed in relation to the statute in question. My difficulty with this procedure is that I do not consider that I have power to direct disclosure of the material to any special counsel who might be appointed.
14. Public interest immunity

I have had placed before me two Certificates signed by the Secretary of State, the first dated 23 September 2002 and the second dated 16 November 2002. Each had annexed to it a confidential Schedule B which was not shown to the parties. The Schedules B give more detailed reasons and information in relation to the harm which disclosure might cause than do the open Certificates.

15. I will not set out here a full history of the claims to PII which have been asserted in relation to Appendix 8. Lord Neill suggested that it demonstrated that extravagant claims to PII had been asserted and then, when questioned, not pursued, a state of affairs which demanded of me the utmost vigilance in carrying out the balancing exercise required. It is right to point out that the passages of which complaint is in that regard made were in fact made available in unredacted form before the Secretary of State signed the first certificate, so that the earlier claims to PII in relation thereto do not reflect on his personal judgment. They do of course reflect on the judgment of those who are handling the matter on his behalf.
16. Both Lord Neill and Mr Crow have addressed me on the relevant principles and both have furnished to me skeleton arguments containing reference to all the leading authorities. It was common ground that, in accordance with the guidance given by Lord Woolf in R v. Chief Constable of West Midlands Police, ex parte Wiley 1995 1 AC 274 at 288 the court should strive to ensure that a flexible approach is adopted whereby, without disclosing material disclosure of which will be injurious to the national interest, nonetheless the relevant party is not deprived of any information of which justice requires him to be aware. In that regard Lord Neill made clear that the Claimants were not interested in the source of information or the methods by which it was obtained. Rather they were concerned to know the gist of the information made available to the Bank and the date upon which the Bank received it. Pursuant to that approach it has been possible to produce summaries of the gist of the redacted passages. In those circumstances and because in relation to paragraph 42 special considerations obtain, I do not consider it necessary to discuss the applicable principles further.
17. So far as concerns the summaries in relation to redactions nos. (vi), (vii) and (ix) these are in fact as suggested by me to which suggestions the Secretary of State has agreed. Redaction no. (viii) I have already dealt with above. The words " a source who" need to be inserted to make sense of that part of the sentence which remains. I am satisfied not just that PII is properly claimed in respect of these redacted passages, but also that the summaries which I have suggested convey to the Claimants the information of which justice requires them to be aware.
18. I must deal separately with the redactions to paragraph 42. The Secretary of State has in my judgment made out a particularly powerful case to the effect that revelation of the source or sources of these reports would be injurious to the public interest. Furthermore the relevant reports were not made until after closure of BCCI in July 1991. It is probably fair to say of all five of the reports that the imparting of the information which they contain was prompted by closure – in other words that it was closure which gave the occasion for the information to be given. To that extent therefore it must be speculative to what extent the information contained in these reports would have been available to the Bank had it sought it earlier. It must be open to question to what extent the source or sources would have volunteered the relevant information in the absence of the collapse of BCCI. One report, as the summary reveals, is of information obtained by receivers.
19. Preparation of useful summaries of these passages proved difficult without causing that harm to the public interest which the assertion of PII was intended to avoid. The five sub-paragraphs contain Lord Bingham's own summary of certain original intelligence reports. In an effort to provide meaningful summaries which will not harm the public interest the Agencies have in some cases tried to provide their own summary of what the original intelligence reports contained. When the proposed summaries were first provided to me, and to the parties, under cover of the Secretary of State's Certificate of 16 November 2002, I did not realise that this was what the Agencies had done. In consequence I was greatly concerned because in two cases the proposed summaries contained information which is not contained in Lord Bingham's summary and in one case the proposed summary bore virtually no resemblance to the passage in Lord Bingham's Report of which I understood it to be a purported summary and likewise contained information which is not contained in Appendix 8. I have subsequently been shown the relevant intelligence reports which were made available to Lord Bingham. As a result of that exercise I have made certain further drafting suggestions which were agreed by the representative of the Agencies upon whose guidance the Secretary of State has himself relied in preparing his Certificates. It is right to say therefore that these summaries in their final form – the extent of the suggested additions will be apparent to the parties by comparison with that with which they were earlier supplied – go beyond those summaries which the Secretary of State certified in Schedule B to his second Certificate as giving as full a description as possible whilst reducing to a manageable level the risk to the sources and the harm to the national interest. These summaries are not as full as I would wish. However I am satisfied that they cannot be made any more full, or focused, without harming the public interest in a manner which the assertion of PII is intended to avoid. In three cases had the reports been reports made to the Bank prior to closure I would have concluded that the trial could not be fair in the absence of the Claimants knowing of the existence of these reports. However the reports were not made to the Bank before closure, and I have already concluded that the disclosures contained therein are in the nature of things likely to be the sort of material which emerges after a defining event such as was the closure of BCCI. The fact that these particular reports were made later does not assist on the question whether the relevant information would have been available earlier. Nor I think can it plausibly be asserted that the fact that these reports were made later of itself indicates either that the Bank should have made relevant enquiries earlier or that, if they had done, the information contained in the reports would have been elicited. Had not the Treasury Solicitor volunteered the summaries which accompanied the Secretary of State's Certificate of 16 November 2002, I would probably have concluded that PII could properly be asserted in respect of the five deleted sub-paragraphs without the need to provide summaries. In those circumstances there can I think be no unfairness involved in providing summaries which are not entirely satisfactory. I have required the summaries to be expanded slightly so that they are not in any way misleading as to the content of Lord Bingham's own summaries, however for the reason which I have explained above in three cases they do contain information which is not in fact contained in the sub-paragraphs of Appendix 8 to which they relate. This is obviously not entirely satisfactory. I should not have sanctioned this procedure had not the relevant material already been furnished to the parties before I had made my ruling.
20. The summaries which have been revised are nos. (2) and (4) which will now read, respectively: -

(2) A report in late July 1991 reported losses incurred by the Bank of China after the collapse of BCCI, BCCI having won the hitherto lacking confidence of the Bank of China by expressing sympathy and support following the events in Tianenmen Square.

(4) A report in August 1991 retrospectively provided apparent confirmation of suggestions contained in an article that had appeared in Time magazine the previous April to the effect that BCCI had lent support to the Jamaican government.