England and Wales High Court (Queen's Bench Division) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		15/08/2017

Master Davison:

Introduction

1. On the evening of Wednesday 24 September 2014, armed police officers of the Metropolitan Police Counter-Terrorism Unit executed a search warrant at Flat 23 Cherwell House, Church Road, London NW8, the home of Suhaib Majeed, as part of an investigation into a suspected terrorist plot. A very short time after the police officers gained entry, a gun, a magazine containing 6 rounds of ammunition, one loose round of ammunition and a silencer were thrown from Majeed's bedroom window. Shortly after that, Momen Motasim, the claimant in this case, appeared at the window. They were both arrested.
2. Majeed had been under surveillance for some time. It appeared from the surveillance that Majeed was involved in a plot with Tarik Hassane to carry out a "drive by shooting" of a police officer. The plot was for terrorist purposes connected with Islamic State of Iraq and the Levant ("ISIL"). The weapon had been obtained from two further individuals, Nyall Hamlett and Nathan Cuffy.
3. All five were charged with terrorist and firearms offences. The case was sent to the Central Criminal Court where there was a preliminary hearing on 27 October 2014. A Plea and Case Management hearing was set for 30 January 2015, subsequently postponed to 26 March 2015. On that date, all were arraigned apart from Motasim. His legal team indicated that he would be applying for the dismissal of the counts against him, which were conspiracy to murder, preparation of terrorist acts and three firearms offences. His case, shortly put, was that his association with Majeed was innocent, that he had no connection with any plot, that he was not a party to any of the communications between Majeed and Hassane regarding the purchase of the firearm or the moped to be used for the drive-by shooting, that he was never shown and had no knowledge of the firearm and that there was no evidence against him of any positive or overt act in pursuance of a conspiracy to murder.
4. A date of 15 May 2014 was fixed for the hearing of Motasim's application to dismiss. On 14 May 2015, an officer of the Crown Prosecution Service identified "third party" material which was capable of undermining the Crown's case against Motasim or supporting his case. The following day, the court was made aware that a disclosure issue had arisen in relation to this material and the hearing of the dismissal application was postponed to a date in June 2015. On 25 May 2015, Motasim's defence team were informed that a Public Interest Immunity application was to be made in respect of the material. A ministerial certificate was signed on 4 June 2015. On 9 June 2015, the PII application came before Wilkie J, ex parte. He directed that the material should be disclosed. The following day, rather than disclose the material, the Crown offered no evidence against Motasim and he was then released. He had, by that time, spent 9 months in custody.
5. Majeed and Hassane were subsequently convicted (Hassane on his own admission) of conspiracy to murder and preparation of terrorist acts and were sentenced to life imprisonment, with lengthy minimum terms.
6. On 21 September 2015, Motasim's solicitors sent a letter of claim to the Crown Prosecution Service, the Commissioner of the Metropolitan Police, The Security Service (MI5) and the Secret Intelligence Service (MI6). On 6 October 2016, Motasim issued a Claim Form against these defendants claiming damages for breach of his rights under Article 5 of the European Convention on Human Rights pursuant to section 6 of the Human Rights Act 1998 "in relation to his post charge detention prior to his acquittal on 10 June 2015". Particulars of Claim were served on 31 January 2017. On 29 March 2017, the defendants issued an application to strike out the claim.

The claim

7. The claim rests on Article 5 of the Convention and the principles set out in the case of Zenati v Commissioner of Police for the Metropolis & Anor [2015] EWCA Civ 80. The relevant statutory provisions are as follows:
8. Section 6 of the Human Rights Act 1998 states: "It is unlawful for a public authority to act in a way which is incompatible with a Convention right."
9. Article 5 of the Convention (materially) states:

"Right to liberty and security

1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;

2. Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him.

3. Everyone arrested or detained in accordance with the provisions of paragraph 1(c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.

4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.

5. Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation."

10. The case of Zenati concerned the following facts. The claimant had been prosecuted for having a forged passport. He was remanded in custody. The police secured expert evidence from the National Document Fraud Unit that the passport was genuine but delayed in providing this to the CPS and thence the court. All the while, the claimant remained in custody. Once the evidence was provided it was recognised that there were no grounds to continue to suspect the claimant. The prosecution was discontinued. But the claimant had spent time in custody after the evidence had emerged that showed that there were no grounds for continuing to suspect him of the commission of an offence. The Court of Appeal considered the application of Article 5(1)(c) and (3) in this type of case. The key principles established by Zenati are as follows:

a. It is implicit in article 5(1)(c) and article 5(3) of the Convention that investigating / prosecuting authorities are required to bring the relevant facts to the attention of the court as soon as possible, where they cease to have a reasonable suspicion that the detained person committed the offence in question (paragraph 20);

b. If delay on the part of the investigating / prosecuting authorities causes a court to fail to conduct proceedings with special diligence, then those who are responsible for the delay will be responsible for the breach of article 5(3) (paragraph 43);

c. If the investigating authorities fail to bring to the attention of the court material information of which the court should be made aware when reviewing a detention, this may have the effect of causing a decision by the court to refuse bail to be in breach of article 5(3) (paragraph 44).

11. The claimant's case is twofold: (1) that at "an early stage" of the prosecution, the prosecution knew or ought to have known facts which negatived any reasonable suspicion of guilt but did not draw these facts to the attention of the court in contravention of Articles 5(1)(c) as read with Article 5(3) and that (2) they conducted the criminal investigation in a dilatory fashion contrary to Article 5(3) alone.
12. The lynchpin of the case is the allegation set out in paragraph 23(a)(x) of the Particulars of Claim which is: "There was evidence that was so significant in undermining the prosecution or assisting the defence that justice demanded its disclosure. This was the material that the first defendant eventually sought to withhold from the court on public interest immunity grounds". Given that the material has continued to be withheld, the Particulars of Claim could give little detail as to the precise nature of the material, its provenance or the precise date it came to light. In relation to this evidence, Mr Moloney QC for the claimant nevertheless submitted that:

1) The material went to the sufficiency of the evidence against the claimant. This was (a) self-evident and (b) an inference from the facts that (i) he was told when the evidence emerged that it would be premature for his application to dismiss to be heard before the issue of the disclosure of this evidence was resolved, (ii) when the order for disclosure was made by Wilkie J the Crown dropped the case against him.

2) It was in the nature of the case that the material must have gone to or touched upon the circumstances relevant to the claimant's arrest and, in particular, the absence of any link between him and the firearm. Given that this was its likely content, it was also in the nature of the case that it would have been available from a much earlier stage than 14 May 2015.

3) The material was analogous to the report of the National Document Fraud Unit in the Zenati case. Taken in combination with the rest of the evidence (or lack of evidence) as set out in paragraph 23(a)(i) – (ix) of the Particulars of Claim, it was or was likely to be material that emptied the case of reasonable suspicion against the claimant.

4) It was for the defendants to plead a case as to this evidence.

The application and the submissions of the parties

13. The application is based upon CPR 3.4(2)(a), namely that "the statement of case discloses no reasonable grounds for bringing the claim". There was no evidence, as such, in support. The application was stated to be based on legal principle alone. However, the defence skeleton argument in support of the application to dismiss the criminal charges and the Crown's response to that skeleton were both appended. The legal principle invoked in the application notice was that the refusal of a PII application and the subsequent decision to offer no evidence "does not in any way invalidate the prosecution or indicate that the defendant's rights under Article 5 ECHR have been breached". Additionally, the application notice states that "the claimant has failed to identify a proper factual basis for alleging a breach of Article 5(1)(c) and/or Article 5(3).
14. The defendants' skeleton argument developed these central points. At the hearing, Mr Johnson QC helpfully condensed the skeleton argument to six propositions, which, in summary, were as follows:

1) Where a criminal prosecution is conducted by competent, properly instructed counsel who are prepared to present a case to the jury, then it will generally follow that there is a proper basis for the prosecution; Glinski v McIver [1962] AC 726.

2) There was no general duty of care owed by the CPS in the conduct of its prosecution of a defendant. The existence of such a duty would be contrary to public policy; Elguzouli-Daf v Commissioner of Metropolitan Police [1995] QB 335.

3) For that reason, the court should scrutinise with care a claim brought under Article 5 of the ECHR. Article 5 is not a "surrogate" negligence claim. The principal requirement of Articles 5(1)(c) and 5(3) is the existence throughout the duration of the case of a reasonable suspicion of guilt. Once that low threshold was passed, a claim would only lie under Article 5(3) (read alone) if there had been fundamental delay in identifying material which would demonstrate an absence of reasonable suspicion; Moulton v Chief Constable of West Midlands Police [2010] EWCA Civ 524.

4) The structure of Article 5 was that it was incumbent on the police only to detain a person if they had reasonable suspicion he had committed an offence and for the purpose of bringing that person before a court ("stage one"). Once before the court, the obligation was then on the court to ensure the detention was properly justified and that the trial took place within a reasonable time ("stage two").

5) It followed that once the police had gone beyond stage one, the primary obligation lay on the court. But there was a residual obligation on the public authorities engaged in the process to ensure that the court could carry out its task and this included a duty on the police to act with appropriate diligence in completing outstanding enquiries; Zenati.

6) On the facts of this case, the claimant had no reasonable basis to allege a breach of Article 5. His case was based upon nothing more than speculation and should be struck out.

15. Mr Johnson QC acknowledged that what I will call the "PII material" must have been such as to undermine the Crown's case or to assist the defendant's case. However, he maintained that it did not follow that once the material came into their hands the Crown no longer had reasonable grounds for suspicion. That was speculation on the claimant's part. He submitted that as a matter of policy such speculative claims should not be allowed. He observed that if this claimant had a claim in these circumstances, then so too would the majority of defendants acquitted in similar circumstances. This would place a burden on the investigating and prosecuting authorities, which they could only discharge by making in each such case another PII application and/or an application under CPR 82 for a closed material procedure, with all the expense that that entailed. To the extent that such a policy was capable of working unfairness to an acquitted defendant, the safeguard lay in the fact that the judge hearing the PII application had "the opportunity to make appropriate findings and/or give appropriate directions in the event that the material was such as to make the defendant's continued detention pending trial unlawful"; see defendants' skeleton argument at paragraph 25. Wilkie J had made no such findings or directions in this case.
16. Some further points were taken by Ms Ventham for the first defendant and Mr Sheldon for the third and fourth defendants. The principal ones for present purposes were Mr Sheldon's points relating to the special position of the Security Services, i.e. the third and fourth defendants. Mr Sheldon submitted that the Security Services (who have not confirmed nor denied that they were the source of the PII material) were neither investigating nor prosecuting authorities and were therefore not susceptible to Zenati type duties. He emphasised the need for domestic courts to keep in step with Strasbourg jurisprudence – "no less, but certainly no more"; R (Al-Skeini and others) v Secretary of State for Defence [2008] 1 AC 153, at paragraphs 90 & 106; and Ambrose v Harris (Procurator Fiscal, Oban) [2011] 1 WLR 2435, at paragraphs 19-20. In the same vein as Mr Johnson QC, he observed that the implications of the extension of the right were stark. If the claimant were correct, then every criminal defendant who was the subject of a discontinued prosecution had the right, pursuant to Article 5(3), to review the entirety of the prosecution to see whether he might be able to allege that something should have been done somewhat more quickly; not just by the prosecuting authority, but also by any public authority which might hold information of possible relevance to the case against him. This "would amount to a very significant extension of the scope of Article 5(3) indeed"; see paragraph 34 of the defendants' skeleton.
17. All defendants (through Mr Johnson QC) referred to a claim of the present type as "a charter for those involved in terrorist activity" to test the extent of the knowledge of the Crown and other agencies of their activities.
18. The submissions of Mr Moloney QC and Mr Bunting for the claimant appear sufficiently from the discussion and conclusions set out below.

Discussion and conclusions

19. Subject to what I say in paragraph 24 below, a claim based upon nothing more than mere speculation will fall to be struck out under CPR 3.4(2)(a) as disclosing no reasonable cause of action. Such a claim would also be an abuse of process under rule 3.4(2)(b) and, insofar as it failed to comply with the requirement in CPR 16.4(1)(a) to plead the facts on which the claimant relies, it might also be struck out under rule 3.4(2)(c) for failure to comply with that requirement. But, for the reasons that follow, I do not think that this claim can fairly be characterised as mere speculation and therefore none of the limbs of rule 3.4(2) is engaged.
20. Before a claim can be criticised as merely speculative or wanting in essential details, it is necessary to scrutinise the cause of action relied upon because this determines the parameters of what it is necessary for the claimant to plead. The cause of action here is that the defendants acted incompatibly with Article 5 of the ECHR and that that was unlawful under section 6 of the Human Rights Act 1998. Article 5 confers the right to liberty and security. As neatly explained by Lord Dyson MR in Zenati, Article 5 "legitimises detention which is initiated and continued for the purpose of bringing a person (on reasonable suspicion of having committed an offence) before a court from time to time as may be necessary"; see paragraph 17 of the judgment. To put it another way, detention is prima facie unlawful; but not if the police and subsequently the prosecuting authorities have and continue to have reasonable suspicion of an offence by the detained person and they bring that person promptly before a court, which is then kept informed of matters relevant to his continued detention.
21. An action for breach of Article 5, i.e. infringing the right to liberty, is obviously analogous to, though not identical with, an action for false imprisonment. An action for false imprisonment has two ingredients: (1) detention and (2) the absence of lawful authority for that detention. Once the claimant has proved the first element, the onus then lies on the defendant to "plead and prove affirmatively the existence of reasonable cause" (i.e. lawful authority); see Hicks v Faulkner (1878) 8 QBD 167 and Phipson on Evidence, 18^th Ed at 6-08. Hence, in an action for false imprisonment it is not incumbent on the claimant to plead anything more than the fact of his detention. Once he has pleaded that, it then falls to the defendant to plead (and prove) that the detention was justified in the sense that there existed lawful authority for it.
22. Article 5 of the ECHR and section 6 of the HRA 1998 are silent as to the burden of proof. However, in the criminal context, plainly the burden of justifying the detention lies on the state. As noted in paragraph 20 above, Lord Dyson MR's analysis of the nature of the cause of action indicates that detention is prima facie unlawful and that it falls on the police or the prosecutor to justify it in the sense described in that paragraph – essentially that they had, and retained throughout, a reasonable suspicion of an offence. This reflects the wording of Article 5. Given these things and given the clear analogy with the tort of false imprisonment, I see no reason to apply a different burden in the context of a civil claim for breach of Article 5. In my judgment, it is the same as in a claim of false imprisonment. It is for the claimant to plead his detention; it is for the defendant to plead (and prove) that the detention was justified. This approach is consistent with that adopted by the European Court of Human Rights; see e.g. Clooth v Belgium (1991) 14 EHRR 717 at paragraph 36.
23. Thus, it would have been permissible for the claimant in this case to have pleaded no more than the fact of his lengthy detention and that claim would not have been "speculative". On the contrary, it would simply have reflected how the burden of proof in such a case falls. This claimant has gone much further than that. He has pleaded in some detail matters which he says demonstrate an absence of "reasonable suspicion" of guilt such as to justify his detention. But the fact that one such matter (albeit the "lynchpin" allegation) has been pleaded in very general terms does not render the claim speculative because he was under no duty to plead those matters at all.
24. However, if I am wrong about that, I still would not strike out the claim. From time to time, cases arise where a claimant cannot plead his case, or plead it fully, for want of information that is in the possession of the opposing party. An application for pre-action disclosure may address that problem. This claimant did not make such an application. But it remains open to him to make an early application for specific disclosure within the action he has commenced. Even if the burden of pleading and proving absence of justification lies on the claimant, (which in my judgment it does not), the crucial consideration here is that the documents going to justification are acknowledged to be in the possession of the defendants, are at least prima facie relevant within the meaning of CPR 31.6 and are therefore disclosable. Not only are they relevant, it appears that they are capable of resolving the claim more or less definitively one way or the other. If, as the defendants maintain, there is nothing in Mr Motasim's claim, then the sooner that that is demonstrated the better. And vice versa. To strike out the claim at this early stage would be draconian, unnecessary and unfair. In the case of a person innocent of a crime it would engender a sense of injustice and it would confer on the defendants a kind of blanket immunity from Zenati type claims whenever the Crown had discontinued the criminal prosecution in the wake of an unsuccessful PII application.
25. That application for disclosure will be met in one or both of two ways. The defendants will (again) seek an order permitting them to withhold disclosure on PII grounds pursuant to CPR 31.19. Given that the second defendant has already made that application in the criminal proceedings, there would appear to be little obstacle or expense involved in what will effectively be a repeat exercise. In the context of a civil claim, the judge hearing the application will have an option not open to the judge in the criminal proceedings, namely to uphold the claim to PII but to make a declaration under section 6 of the Justice and Security Act 2013 permitting a "closed material" application to go forward under CPR 82, thereby preserving the confidentiality of the material whilst still allowing the claim to be adjudicated upon. That procedure was introduced following Al-Rawi v Security Service [2011] UKSC 34 precisely to cater for the type of situation which has arisen in this case. Given the availability of those procedures, it is no answer to a potentially meritorious claim for the defendants to complain of the cost and diversion of resources involved. Those procedures are intended to enable a court to adjudicate upon cases where sensitive material forms part of the relevant evidence.
26. I am far from persuaded that the safeguard offered by Mr Johnson QC would be a satisfactory substitute or safety net for the claimant's claim. The fact that Wilkie J in this case made no order or directions beyond a refusal of the PII application gives no clear indication of any views he may have had about the lawfulness of continuing detention or the timeliness of the disclosure. Mr Moloney QC was correct to point out that the application to dismiss was already listed and was to be heard imminently. Even if the judge thought that continued detention was unjustified or questionable, he knew that that was to be reviewed very soon and might have chosen, in those circumstances, to say nothing more about it. There might, indeed, be a number of reasons why a judge in those circumstances might choose to be silent about Article 5 ECHR.
27. I am also not persuaded that an action of this kind is "a charter for those involved in terrorist activity" to test the extent of the knowledge of the Crown and other agencies of their activities. Such a sweeping proposition would require some evidence in support of it. But, leaving aside the observation that curtailing civil rights does not always advance the fight against terrorism, the answer lies in the careful, closed material procedure devised by Parliament to meet this objection.
28. Lastly, although the claimant's counsel preferred to rest their objections to strike-out on the substantive merits of the application, they were correct to point out that it was not, in truth, an application based upon legal principle alone. In order to meet the complaints in paragraph 23(a)(i) – (ix) of the Particulars of Claim, the defendants referred to a schedule cross-referencing these allegations to the written submissions deployed in the Central Criminal Court. These (as noted above) were appended to the application notice and were relied upon as demonstrating the evidence in play in the criminal trial. Thus, the application, though in form an application based upon CPR 3.4(2), was in substance an application based upon this rule and also CPR 24.2 dealing with summary judgment where there is no "real prospect" of success.
29. This technical objection would not, on its own, have defeated the application if it was otherwise well-founded. But it points up a further objection to strike-out (and summary judgment), which is that the court should be wary of dismissing a claim in a developing area of law on the basis of assumed facts (or, as urged upon me by the defendants in this case, facts which are "common ground" or "never disputed by the claimant" etc). The following extract from the speech of Lord Browne-Wilkinson in Barrett v Enfield London Borough Council [2001] 2 AC 500 at 557 is in point;

"In my speech in the Bedfordshire case [1995] 2 AC 633 , 740-741 with which the other members of the House agreed, I pointed out that unless it was possible to give a certain answer to the question whether the plaintiff's claim would succeed, the case was inappropriate for striking out. I further said that in an area of the law which was uncertain and developing (such as the circumstances in which a person can be held liable in negligence for the exercise of a statutory duty or power) it is not normally appropriate to strike out. In my judgment it is of great importance that such development should be on the basis of actual facts found at trial not on hypothetical facts assumed (possibly wrongly) to be true for the purpose of the strike out."

30. Those comments apply with equal force to this case.

The special position of the third and fourth defendants

31. It remains to deal with the special position of the third and fourth defendants. I agree with Mr Sheldon that the Zenati duties apply to the investigating and prosecuting authorities and that, on the face of it, the Security Services do not come into that category. As a matter of legal principle, they are in no different category from any other public body, such as for example a local authority, which is involved in a prosecution but not actually the prosecutor or itself charged with a duty of investigation. The Particulars of Claim do not allege that the Security Services come into either category. The allegation against them is that they failed to draw the PII material to the attention of the investigating and prosecuting authorities, i.e. the second and first defendants, and/or to give them full and proper assistance in their [my emphasis] search for relevant material.
32. The pleading, phrased like that, does not disclose a cause of action against the third and fourth defendants. Further, it seems to me that there is no useful purpose in maintaining an action against these defendants because it adds nothing to the cause of action which the claimant already has against the first and second defendants. The only utility of a claim against the third and fourth defendants would be in respect of disclosure of relevant documents which were in their control but not the control of the first or second defendants. But that does not apply either. The relevant documents are the PII documents and the CPS (I presume) have them or can call for them. Even if they are no longer within the control of the first defendant, there remains the option of third party disclosure under CPR 31.17.

Conclusions

33. For these reasons, I will strike out the claim against the third and fourth defendants.
34. I refuse to strike out or dismiss the claim against the first and second defendants. As a postscript, I should make it clear that I am making no findings of fact. In particular, I am making no findings about the strength of the criminal case against the claimant or the state of mind of the prosecuting and investigating authorities; still less am I making findings about the claimant's guilt or innocence. The defendants' application to strike out the claim because it discloses no reasonable cause of action has had to proceed on the basis that the facts alleged by the claimant are true; see e.g. the commentary at 3.4.2 of the White Book. Whether they are true or not is a question for another day.