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
		22/03/2017

Mr Justice Leggatt:

Introduction

1. In each of these proceedings the defendants have applied for a declaration under section 6 of the Justice and Security Act 2013 that these are proceedings in which a closed material application may be made to the court. A "closed material application" is, in essence, an application for permission to rely on "sensitive material" in the proceedings without disclosing it to the claimant or anyone other than the court and a special advocate appointed to represent the interests of the claimant. Such a special advocate may make submissions at closed hearings from which the claimant's legal representatives are excluded but is not instructed by, and is generally prohibited from communicating with, the claimant and the claimant's legal representatives. "Sensitive material" is defined in section 6(11) of the Act as "material the disclosure of which would be damaging to the interests of national security."
2. As will be apparent from this very brief description, a closed material procedure involves a serious derogation from the fundamental principles of open justice and natural justice. Although the procedure has been specifically sanctioned by Parliament, any application to invoke it must for that reason be carefully scrutinised by the court.
3. The defendants' applications under section 6 have been supported by open and closed statements of reasons, accompanied by a selection of closed material. In addition, I have received (both in writing and orally) open and closed submissions from counsel for the defendants, open submissions from counsel for Mr Rahmatullah and from counsel for the three relevant claimants in the Iraqi Civilian Litigation ("the ICL claimants") and closed submissions from special advocates appointed to represent the interests of Mr Rahmatullah and from special advocates appointed to represent the interests of the ICL claimants. The other relevant claimant, Mr Amanatullah Ali, has not yet been granted legal aid and was not represented at the hearing. His solicitors have, however, agreed that Mr Ali should be bound by any decision made in Mr Rahmatullah's case in so far as the decision is based upon material that is common to both claims.
4. Although my decisions on these applications are therefore based in significant part on closed material, I think it possible – and, since it is possible, desirable – to explain the reasons for my decisions sufficiently in this open judgment, without giving any further closed judgment which cannot be read by the claimants and their representatives or by members of the public.

Requirements for a section 6 declaration

5. The court may make a declaration under section 6 of the Act if it considers that two conditions are met. The first condition is that a party to the proceedings (in this case the defendant) would be required to disclose sensitive material in the course of the proceedings, or would be required to make such disclosure were it not for the possibilities identified in section 6(4)(b), including the possibility of a claim for public interest immunity in relation to the material. The second condition is that it is in the interests of the fair and effective administration of justice in the proceedings to make a declaration.
6. Before considering an application for a section 6 declaration, the court must be satisfied that the Secretary of State has, before making the application, considered whether to make, or advise another person to make, a claim for public interest immunity in relation to the material on which the application is based: see section 6(7). I am so satisfied in each of these cases.
7. The following points should also be noted:

i) Although a section 6 declaration opens a gateway to a closed material procedure, it is only the first stage of the process and does not finally decide whether such a procedure will be used at the trial. In particular, section 7 of the Act requires the court to keep any declaration under review, to undertake a formal review once the pre-trial disclosure exercise has been completed, and to revoke the declaration if the court considers that it is no longer in the interests of the fair and effective administration of justice in the proceedings.

ii) It is sufficient to justify making a section 6 declaration that the two statutory conditions are met in relation to any relevant material (my emphasis), and the defendants do not need to put before the court at this stage all the material which might meet the conditions: see section 6(6).

iii) In considering whether it is in the interests of the fair and effective administration of justice in the proceedings to make a section 6 declaration, the court should focus on whether any sensitive material on which the application is based is necessary for resolving the issues in the case before it (see the Explanatory Notes to the Act at para 73; and F v Security Service [2014] 1 WLR 1699, para 36).

Yunus Rahmatullah

8. Mr Yunus Rahmatullah, along with Mr Amanatullah Ali, was detained by British forces in Iraq on 28 February 2004. Shortly afterwards he and Mr Ali were transferred into the custody of US forces. By around the end of March 2004, they had been transported by US forces to Bagram Airbase in Afghanistan where they remained imprisoned for the next ten years.
9. Mr Rahmatullah and Mr Ali both allege that;

i) their detention by British forces was unlawful;

ii) they were ill-treated by British soldiers at the time of their capture and while in British custody;

iii) their transfer to US forces was unlawful;

iv) their subsequent detention by US forces in Iraq and Afghanistan was unlawful and the defendants are liable for such unlawful detention; and

v) they were subjected to torture and other unlawful treatment by US forces and the defendants are liable for such mistreatment.

The claims are made on two legal bases: the law of tort and the Human Rights Act. All the claimants' allegations of unlawful conduct are denied by the defendants.

10. In considering whether the conditions for making a section 6 declaration are satisfied in Mr Rahmatullah's case, it is sufficient for present purposes to focus on the first of the issues mentioned above: that is, whether his detention by British forces was unlawful. Central to that issue will be the question whether his detention was justified on the basis that it was necessary for imperative reasons of security. That in turn will require investigation of the reasons for his detention and the grounds for any belief that he posed a threat to security. The defendants' case is that Mr Rahmatullah and Mr Ali were arrested because they were (reasonably) assessed to be members of Lashkar-e-Taiba, a terrorist group with links to Al Qaeda. Mr Rahmatullah (and Mr Ali) deny that they were members of this or any other terrorist group and, by implication, deny that the British authorities had reasonable grounds for believing them to be members of a terrorist group. It is their case that they had travelled to Iraq from Pakistan for business reasons.
11. In support of their application for a section 6 declaration, the defendants have presented a selection of closed material which is directly relevant to this issue and which the defendants would therefore be required to disclose in the course of the proceedings subject to the possibility of claiming public interest immunity in relation to it. Much of the material is undoubtedly sensitive. Disclosing it could reveal, amongst other things, the extent of the UK's information about suspected terrorists and how that information was obtained. I accept that, notwithstanding the passage of time since the events occurred, revealing such information would be damaging to national security. I am also satisfied that, because of the potential significance of the material as evidence, Mr Rahmatullah's claim cannot properly be tried unless the defendants are able to rely on this sensitive material in support of their case as to the reasons for his presence in Iraq and the reasons for his arrest, and unless there is an opportunity for a special advocate representing Mr Rahmatullah's interests to challenge and test the reliability of the material and the inferences which the defendants seek to draw from it. I have considered whether there are any satisfactory alternatives which would enable the defendants to rely on the relevant material without a closed material procedure and I am satisfied that there is no other realistic option.
12. It was suggested by the special advocate that, before making a section 6 declaration, it would be appropriate at least to afford Mr Rahmatullah an opportunity to decide whether he wishes to abandon his claim that he was unlawfully detained so as to avoid the need for a closed material procedure. For several reasons, I do not consider this an appropriate course to adopt. In the first place, I do not think it right for the court to interfere, or act in a way which might appear to interfere, with what claims Mr Rahmatullah chooses to pursue. The court's task is to decide how the claims which have been made can best be determined in accordance with the overriding objective as modified by the 2013 Act. Second, I see no reason why the prospect of a closed material application should cause Mr Rahmatullah to abandon any part of his claim; but if he were to do so at any stage, any implications which this might have for the need for a closed material procedure would be taken into account in the context of the court's duty to keep the matter under review. Third, my present view is that, even if Mr Rahmatullah did not claim that his detention was unlawful, the questions whether he was and/or was reasonably believed to be a member of a terrorist group would still remain relevant to other issues in the case, including the credibility of his evidence and the likelihood that he was subjected to some or all of the ill-treatment alleged.
13. In these circumstances I have concluded that I should make a section 6 declaration that the proceedings brought by Mr Rahmatullah are proceedings in which a closed material application may be made to the court.

Amanatullah Ali

14. All the material on which I have based the decision to make a section 6 declaration in Mr Rahmatullah's case is common to his case and that of Mr Ali. Furthermore, it seems to me that evidence relating to the circumstances of, or the reasons for, the detention of either individual will, by its very nature, be relevant to both claims. For example, information tending to support or undermine a belief that one of them was a member of a terrorist group inevitably bears on the likelihood that the other was or was not a member of the same group.
15. In the case of Mr Ali, I have taken into account a witness statement made by Mr Clive Stafford Smith provided to the court by Mr Ali's solicitors. Although he cannot represent Mr Ali in the UK, Mr Stafford Smith has been involved in Mr Ali's case for some years and has instructions from him which, he says, indicate that there are sensitive issues that are unique to Mr Ali. To illustrate this contention, he has given the following example:

"Mr Ali was travelling on a passport bearing confected details. I will not go into how this came about, but the name on the passport, Ahmed Dilshad, is fairly common in Pakistan. Unfortunately, it is shared by a notorious Lashkar-e-Taiba (LeT) militant. Publicly available information indicates that the UK authorities believed Mr Ali to be a LeT militant and made representations to this effect over several years to ministers, who then repeated it publicly."

16. It is apparent from this example and other observations made in Mr Stafford Smith's witness statement that Mr Ali maintains that his arrest was based on false intelligence and involved a mistake as to his identity. This, in my view, makes it all the more relevant and necessary for the court to consider sensitive material which bears directly on this issue in order properly to try the case. On the present information, I am satisfied that this can only be done through a closed material procedure.
17. Accordingly, I will also make a section 6 declaration in Mr Ali's case.

XYZ

18. Unlike the other claimants in these proceedings, XYZ was not detained by British forces, but by US forces. He was arrested in Baghdad on 6 July 2003 by US soldiers and taken to a holding camp for detainees. After several days he was transferred by plane to Basra and from there to Camp Bucca. He alleges that, while temporarily in the custody of British forces during this transit, he was severely beaten by British soldiers before being handed back to US forces. He was imprisoned at Camp Bucca until his transfer to Abu Ghraib Prison on a date between late November 2003 and January 2004. For part of the relevant period Camp Bucca is said to have been under the control of the UK. While in the custody of US forces at Abu Ghraib Prison, XYZ was allegedly subjected to torture and abuse of the most serious nature. He was released in December 2004.
19. Part of XYZ's case is that, when he came temporarily into the custody of British forces, it was unlawful for them to transfer him back to US custody. He alleges that the British soldiers or officials responsible for doing so knew or had substantial grounds for believing that there was a real risk that he would be ill-treated in US custody and were under a duty not to hand him over in these circumstances.
20. So far in the proceedings, the defendant has merely made no admissions as to its knowledge of any risk of ill-treatment and has taken the position that:

"reconstituting the institutional knowledge of the defendant, on an actual or inferred basis, and in circumstances where such knowledge necessarily varied over time, is disproportionate at this stage of the proceedings."

That might have been a tenable position to take when the defendant had applied to strike out the claim on the ground that it is not justiciable by reason of the doctrine of foreign act of state, and while the defendant was appealing against the dismissal of that application. But it is untenable now that this issue has been finally decided against the defendant by the Supreme Court: see Belhaj v Straw [2017] 2 WLR 456. The defendant therefore now needs to plead its case on the question of knowledge.

21. The present application is based principally on two documents said to be relevant to this question. Neither document relates specifically to XYZ's case and indeed one of them post-dates the period when XYZ is said to have been in British custody, though some of its contents could still be relevant. I accept that both documents contain some material which is sensitive. I am not persuaded, however, that, at least at this stage in the proceedings, the existence of this sensitive material justifies making a section 6 declaration.
22. In the first place, as mentioned, the defendant has not yet pleaded its case on the issue of knowledge. Until the defendant has done so, it is not possible to take an informed view about whether disclosure of sensitive material in these documents will be necessary. Amongst other things the answer to that question may be affected by whether the defendant actually wishes itself to rely on any such material – which is at present unclear. Even if it becomes apparent that disclosure is necessary, I would not rule out at this stage the possibility of a "confidentiality ring", whereby material is disclosed to counsel instructed by the claimant on undertakings to keep it confidential even as regards their client. In many cases such an arrangement would be unworkable: see e.g. F v Security Service [2014] 1 WLR 1699, paras 46-51 and 63. However, it is not clear to me at present that XYZ's case is necessarily one of them. As I have indicated, nothing in the two documents on which the present application is based is specific to XYZ and I cannot see that the inability of counsel to communicate the contents to him would create any professional embarrassment. Moreover, I cannot at present see that such restricted disclosure – as opposed to the publicity likely to result from use of the material in open court – would be damaging to national security.
23. I therefore refuse the application for a section 6 declaration in XYZ's case.

HTF and ZMS

24. The claims of HTF and ZMS are similar to each other and raise similar issues. Each was arrested in Basra by British soldiers (HTF on 27 June 2008 and ZMS on 12 July 2008). Each alleges that he was assaulted by British soldiers at the time of his arrest. Each was transferred later the same day to the custody of US forces and was then held at various detention facilities for about a year before being released. Each alleges that during this period he was subjected to serious mistreatment by US personnel.
25. The defendant has already given disclosure of documents specific to the claimants in these cases, albeit in redacted form. The claimants have made written submissions challenging some of the redactions. In those submissions they have highlighted issues arising on the pleaded cases, in relation to which they submit that disclosure and inspection must be given. Those issues include the following;

i) The circumstances of the claimant's initial capture, including when and where it took place, who was responsible for and carried out the operation, the reason for the operation, the objective of the operation and who else was captured in the course of the operation;

ii) Whether there was a legal basis for the decisions to take the claimants into custody and to keep them in detention, including whether and to what extent the claimants had connections with particular High Value Individuals/ insurgent groups; and

iii) How the claimants were treated during their capture and during their period in the custody of UK/US forces.

26. The defendant has placed closed material before the court which it says is sensitive and would need to be disclosed in order fairly and effectively to resolve each of the above issues. I am satisfied that this is so and that the two conditions specified in section 6 of the Act are met in relation to at least some of the material on which the application in these two cases is based.
27. I can sufficiently explain my reasons by reference to allegations made in the amended particulars of claim served on behalf of ZMS. In that statement of case a very detailed account is given of ill-treatment which he is alleged to have suffered at the time of his arrest. This account includes allegations that ZMS was subjected to a sustained beating with fists, rifles and boots; that he was questioned by someone whom the interpreter present described as "the General", who allegedly brandished a razor in front of his eyes and threatened to cut out both his eyes unless he disclosed what he knew about "the militias"; that "the General" also repeatedly slapped the claimant's 13-year old son around the face and threatened to cut his throat with a razor; that this ordeal started outside the claimant's home where he and his family were sleeping, but then continued inside the house, then back outside again, and then inside the house again, before the claimant was finally taken away in a helicopter; and that during the flight in the helicopter ZMS was punched in the face, one of the soldiers dragged him by his feet as though he was going to throw ZMS out of the helicopter and two of the soldiers then started fighting with each other over this.
28. It seems to me that, in order to assess the credibility of these allegations, it will be necessary and important to investigate in detail matters such as the planning of the operation, the preparations made for it, the intelligence on which the operation was based, the training of the soldiers who took part in it, the methods used in carrying out the operation and any means by which the conduct of those involved was monitored. I am satisfied that, in relation to at least some of these matters, sensitive material will need to be considered. I am also satisfied that in this case there is no practical or workable alternative to a closed material procedure. In particular, I do not think it feasible for any lawyer instructed by the claimant to be given access to the material on terms which do not permit its disclosure to the claimant. That is because, in contrast to the material in question in the case of XYZ, in these proceedings the material relates directly to the claimant's own case and to the truthfulness of his evidence and instructions.
29. Similar considerations arise in the case of HTF and I am satisfied that, for similar reasons, it is necessary to adopt a closed material procedure in that case.

Conclusion

30. Accordingly, I will make a section 6 declaration in the cases of Yunus Rahmatullah, Amanatullah Ali, HTF and ZMS, but not in the case of XYZ.