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
		29/06/2018

Mr Justice Males :

Introduction

1. The claimants, known as HTF and ZMS, are Iraqi civilians who were captured by British forces in separate operations carried out in Iraq in June and July 2008. Following a short period of about a day in which they were each held by British forces, they were handed over to United States forces by whom they were detained for just over a year until June and August 2009 respectively. In this action they claim damages for (a) ill-treatment allegedly carried out by British forces during the short period while they were under the control of those forces, (b) ill-treatment allegedly carried out by United States forces for which it is said that the defendant is liable, and (c) wrongful detention. Whether the defendant is liable for any ill-treatment carried out by United States forces depends on the knowledge and foresight of those responsible for the decision to hand the claimants over (see Iraqi Civilians v Ministry of Defence [2015] EWHC 1254 (QB) at [52]).
2. These cases form part of the Iraqi Civilian Litigation which comprises several hundred claims by Iraqi civilians making similar claims. The cases of HTF and ZMS are two lead cases in what is known as Schedule 3 of this litigation. The Schedule 3 claims are cases where claimants seek to hold the defendant responsible for (among other things) allegedly unlawful conduct committed by United States soldiers.
3. The trial of the claims by HTF and ZMS is due to take place in November 2018.
4. The claimants have not yet served witness statements, but have each given a detailed account in their Particulars of Claim of what happened to them during the period of their capture and detention.
5. The defendant denies liability. It denies that the claimants were ill-treated while under the control of British forces. It puts the claimant to proof of any ill-treatment while under the control of United States forces and denies that it had or ought to have had sufficient knowledge to render it liable for any ill-treatment which took place.
6. On 12^th April 2017 Leggatt J made a declaration pursuant to 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. That declaration was made following a judgment handed down on 22^nd March 2017 (Rahmatullah v Ministry of Defence [2017] EWHC 547 (QB)) in which Leggatt J stated at [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 workable alternative to a closed material procedure. …"

7. This was said in relation to the allegations made by ZMS but is equally applicable to both claimants: see [29].
8. Special advocates were appointed and extensive disclosure of material alleged by the defendant to be sensitive has been disclosed to them. All of the material which the defendant seeks to withhold from disclosure in open has been provided to the special advocates. As a result of discussions between the defendant and the special advocates, the defendant has agreed to disclose to the claimants further material which has so far been withheld. However, there remains a volume of material the disclosure of which the defendant says would damage the interests of national security.
9. As required by section 8 of the 2013 Act and CPR 82.13, the defendant has applied for permission not to disclose sensitive material to the claimants and for a closed material procedure. An open hearing attended by the claimants' representatives was held on 19^th June 2018, followed by a closed hearing on 19^th and 20^th June 2018. Both hearings were attended by Mr Zubair Ahmad, one of the special advocates appointed to represent the claimants' interests.
10. There is in addition a claim for public interest immunity relating to one category of documents, namely three reports produced by the International Committee of the Red Cross. It was agreed that these documents should be provided to Mr Ahmad to enable him to make any appropriate submissions relating to the claim for public interest immunity on behalf of the claimants in the closed hearing.
11. This is my open judgment following those hearings. There is no closed judgment.

The legal framework

12. The applicable legal framework was not in dispute. The court must give permission for material to be withheld from disclosure to the claimants if it considers that such disclosure would be damaging to the interests of national security. In that event it must consider requiring the defendant to provide a summary (or "gist") of the material, but must ensure that any such summary does not contain material disclosure of which would be damaging to national security. However, nothing in these provisions of the Act requires the court to act in a manner contrary to Article 6 of the European Convention on Human Rights. This means that if it would be contrary to a party's Article 6 rights not even to provide a summary, the court must order a summary to be provided regardless of the interests of national security. The defendant then has a choice, either to provide the summary or to make appropriate concessions.
13. Accordingly the first question to be considered is whether disclosure to the claimants would be damaging to the interests of national security. In considering that question appropriate weight should be given to the view of the executive which is responsible for maintaining national security, but the decision is one for the court. I accept the claimants' submission that the extent of harm to national security interests will depend on whether and to what extent the relevant information is already in the public domain. This will be a fact sensitive question. It is also necessary to consider whether there are other measures, short of a closed material procedure, which will enable the material to be disclosed while avoiding any damage to national security.
14. If disclosure would not damage the interests of national security, that is an end of the matter. Relevant material must be disclosed and, so far as that material is concerned, there is no question of a closed procedure.
15. However, if disclosure would be damaging to national security, the next question is whether a summary of the material is necessary in order to comply with the claimants' Article 6 rights. Whether this is so will depend on a number of factors, including the nature of what is at stake in the action, the ability or otherwise of special advocates to protect the claimants' interests in the absence of disclosure to the claimants, and the importance of the withheld material to the issues in the case.
16. The authorities demonstrate that the requirements of Article 6 involve "a spectrum of disclosure" which is "context and case specific" (see e.g. K, A & B v Secretary of State for Defence [2017] EWHC 830 (Admin) at [12] and [14]). At one end of the spectrum are cases such as SSHD v AF (No 3) [2009] UKHL 28, [2010] 2 AC 269 where the issue was whether a control order should be imposed which would involve substantial restrictions on liberty. Lord Phillips summarised the position at [59]:

"This establishes that 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 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 only of general assertions and the case against the controlee is based solely or to a decisive degree on closed materials the requirement of a fair trial will not be satisfied, however cogent the case based on the closed materials may be."

17. The essential test here is whether the disclosure is sufficient to enable the recipient to give effective instructions in response to the allegations. However, as explained in K, A & B v Secretary of State for Defence [2017] EWHC 830 (Admin) at [15], this is not "a uniform unvarying standard to be applied irrespective of context, facts and circumstance". There will be some cases where an individual's case can be prosecuted effectively without his having even a summary of the sensitive information which has been withheld from him. It depends on the nature of the proceedings and all the circumstances of the case. What is unacceptable in a case involving restrictions on liberty where the AF (No 3) approach must be applied may be acceptable (i.e. in accordance with procedural fairness) in a case where there is less at stake. Even in K, A & B v Secretary of State for Defence [2017] EWHC 830 (Admin), a case where there was some current risk to the safety of the claimants who claimed to have acted as covert human intelligence sources ("CHIS") for the United Kingdom in Afghanistan and to be entitled to protection, relocation and compensation as a result, the Divisional Court held that AF (No 3) disclosure was not required.
18. Although the question whether the disclosure is sufficient for effective instructions to be given is likely to be an important consideration in every case, I would accept that it is not the only consideration. For example, there will be cases, of which SSHD v Mohamed [2014] EWCA Civ 559, [2014] 1 WLR 4240 is an example, where some disclosure or gisting is necessary in order to maintain public confidence in the rule of law.
19. That was a case where control orders and TPIMs had been imposed against the applicants, who sought to quash those orders on the ground that they had been obtained by an abuse of process. They claimed that they had been arrested and deported from Somaliland with the collusion of the United Kingdom authorities in breach of United Kingdom domestic law, international law and local Somaliland law. The Secretary of State declined to say anything at all in open proceedings to indicate her answer to the abuse of process application. In particular, she neither confirmed nor denied that the United Kingdom authorities were involved in the arrest, detention and deportation of the applicants. The Court of Appeal held that it was unacceptable, in relation to a potentially decisive issue, for the Secretary of State to withhold her case in total without even providing the barest summary. To do so would not only be unfair to the applicants, but would damage public confidence in adherence to the rule of law and would offend justice and propriety (see e.g. at [19] and [20]). However, while being clear that total silence was unacceptable in such a case, the Court of Appeal left for later determination (which in the event never happened) what disclosure was necessary in order to comply with Article 6.

The focus of this application

20. As Ms Phillippa Kaufmann QC for the claimants explained, the information provided to the claimants is that the defendant has served 14 closed witness statements relating to the operations to capture and detain the claimants. These were Operation Asgard in which HTF was captured and Operation Conakry in which ZMS was captured. In addition, the claimants have been provided with about 500 documents which contain redactions on grounds of national security. Some of these redactions are of no more than a few words while others are extensive.
21. Although so far the closed witness statements have not been served at all, Mr Derek Sweeting QC made clear that the defendant will serve redacted versions of these statements in open, although in some cases without disclosing the identity of the maker of the statement. Despite the redactions, the statements in their redacted form are intelligible. They set out a coherent account of what the defendant says happened during the relevant operations. Accordingly Ms Kaufmann's principal and understandable concern, that the claimants should not be left knowing next to nothing about the defendant's factual case as to the circumstances of their capture and detention, will be obviated. She accepted that it may be appropriate for the identity of witnesses to be protected, although precisely how that should be achieved need not be decided at this stage.
22. Leaving that concern aside, the main focus of Ms Kaufmann's submissions was on two matters. The first of these was the identity of the units involved in the two operations and, in particular, whether the UK forces concerned were special forces such as the SAS. The second concerned the reasons why ZMS was the target of Operation Conakry.

Identity of the units

National security

23. As to the possible involvement of special forces, Ms Kaufmann pointed to material in the public domain which refers to the activity of United Kingdom special forces in Iraq, including in particular in operations to capture Iraqis in the Basra area suspected of being insurgents associated with Iranian groups. These included (1) a memoir by General Stanley McChrystal, the commander of the US Joint Special Operations Command, (2) "Operation Telic" and "Task Force Black", books written by British journalists about the Iraq war and the part played in it by special forces, (3) another book, "The SAS 1983-2014", written by an author of military books which includes references to SAS activity in Iraq as well as photographs of SAS personnel, their uniforms and equipment, and (4) open source material such as Wikipedia entries. Ms Kaufmann accepted that, if special forces were involved in the capture of the claimants, disclosure in open of the methods used by them would not be appropriate unless the passage of time since the Iraq war had rendered them obsolete. She submitted, however, that there is now so much information in the public domain about the involvement of United Kingdom special forces in Iraq that it would not be damaging to national security for the defendant to disclose in open, one way or the other, whether such forces were involved in the operations to capture the claimants.
24. Mr Sweeting referred to the consistent policy of the United Kingdom Government not to disclose the involvement of special forces in any given operation, a policy of "Neither Confirm Nor Deny" ("NCND"). It may be that this policy even extends to a refusal to confirm the involvement of special forces in the Iraq war at all, although that position might be hard to sustain in the light of what appears to be a photograph in the "Task Force Black" book of the then Prime Minister, Tony Blair, posing with members of United Kingdom special forces in Baghdad in early 2005. Be that as it may, however, Mr Sweeting pointed out that the public domain material to which I was referred is at a high level of generality and says nothing at all about whether special forces were involved in the two operations which resulted in the capture of the claimants. He submitted that there is a material difference between what currently exists in the public domain, essentially comment by outsiders who may be more or less well informed (although in the case of General McChrystal at least, presumably very well informed), and official confirmation from the Ministry of Defence whether special forces were involved in specific operations. I accept that submission.
25. It is clear from the authorities that the existence of an "NCND" policy cannot by itself and in all circumstances justify the withholding of material, but also that in some circumstances such a policy should be respected. That will depend on the nature and importance of the interest which the policy is intended to protect.
26. The facts in SSHD v Mohamed [2014] EWCA Civ 559, [2014] 1 WLR 4240 and the issue for decision in that case, described above, are a long way from the facts of the present case, but of interest is what Maurice Kay LJ said about the policy of NCND:

"20. Lurking just below the surface of a case such as this is the governmental policy of 'neither confirm nor deny' ('NCND'), to which reference is made. I do not doubt that there are circumstances in which the courts should respect it. However, it is not a legal principle. Indeed, it is a departure from procedural norms relating to pleading and disclosure. It requires justification similar to the position in relation to public interest immunity (of which it is a form of subset). It is not simply a matter of a governmental party to litigation hoisting the NCND flag and the court automatically saluting it. Where statute does not delineate the boundaries of open justice, it is for the court to do so. In the present case I do not consider that [the applicants] or the public should be denied all knowledge of the extent to which their factual and/or legal case on collusion and mistreatment was accepted or rejected. Such a total denial offends justice and propriety. It is for these fundamental reasons that I consider [the applicants'] principal ground of appeal is made out. The approach to their abuse of process applications was largely flawed. I make no comment on the merits of those applications."

27. SSHD v Mohamed [2014] EWCA Civ 559, [2014] 1 WLR 4240 was concerned with whether there would be a denial of justice if the applicants were not told at least something about the Secretary of State's case. That question will need to be considered at a later stage in this judgment, when considering the issues under Article 6. At this stage, however, I am considering whether disclosure of sensitive material would damage the interests of national security. The citation above from Maurice Kay LJ's judgment demonstrates that in some circumstances a policy of NCND should be respected. Although that question will arise more often in the context of an issue whether disclosure is necessary in order to render a trial fair, in my judgment the rationale for such a policy may also have a bearing on an issue whether disclosure would damage national security.
28. A similar point arose in K, A & B v Secretary of State for Defence [2017] EWHC 830 (Admin) at [27], the case where the claimants claimed to have acted as CHIS in Afghanistan. It was accepted that all the disclosure which could be given without harming national security had already been given. The issue was whether further disclosure was necessary in order to comply with Article 6. The judgment of the Divisional Court addressed the principles to be applied in making that decision. Ouseley J said at [27]:

"… In my judgment, where Claimants make a claim that arises out of their asserted voluntary engagement with national security work, there must be a necessary acceptance on their part that the procedure to be adopted, for a fair consideration of any claims about how they have been or ought to have been treated, will not jeopardise the very system with which they claim to have become voluntarily and knowingly involved. The claim to such a relationship cannot be made without acceptance of the correlative restriction on breaching national security inherent in the very existence of such a relationship. The NCND policy is one of the building bricks in the protection of those who are or who are said to be CHIS, as the Claimants must have understood and on which they in effect acknowledge they depend; and it derives its cohesive strength from its consistent application. …"

29. Although the issue was whether disclosure was necessary in order to comply with Article 6, this passage recognises that in some circumstances an NCND policy will be a necessary building brick in the maintenance of national security and that, to be effective, such a policy needs to be consistently applied. I am satisfied that this is so in the case of the policy neither to confirm nor deny the involvement of special forces in any particular operation. Such forces play a vital role in the security of the United Kingdom and their effectiveness would be compromised by public disclosure of their activities. This is an issue on which the considered judgment of the executive, consistently applied by successive governments, is entitled to weight, but it also accords in my judgment with common sense, not least in circumstances where the national security threats which this country faces are multi-faceted and can hardly be said to be reducing.
30. It is important to bear in mind that the cases of HTF and ZMS are only two out of a much larger number of Schedule 3 cases in this litigation. If the defendant is required in these cases to say whether the claimants were captured in an operation involving United Kingdom special forces, it is likely that it would be required to do so in all such cases. This would build up a substantial picture of the extent to which United Kingdom special forces were involved in such operations in Iraq and could yield to an informed observer potentially valuable information about the tactics and methods employed in such operations over a period of several years. It cannot be said, therefore, that disclosure in the two isolated cases of HTF and ZMS would be harmless and of merely historic interest.
31. I emphasise again that the issue which I am considering is whether disclosure would be damaging to national security. There is no question at this stage of striking a balance between national security and natural justice. That question, where the view of the executive is of much less weight, arises at the next stage when considering the requirements of Article 6. The observations of Pitchford LJ in the Undercover Policing Inquiry ruling dated 3^rd May 2016 at [113] to [161] were directed to the question of how such a balance should be struck, rather than what is here the prior question whether an exception to the NCND policy would damage national security.
32. Once it is concluded that disclosure by the defendant of whether the claimants were captured in an operation involving United Kingdom special forces would be damaging to national security, it is apparent that nothing short of a closed material procedure would be appropriate in this case. There is no summary or gist which would provide the relevant information without either confirming or denying the very thing which the defendant seeks to withhold.

Article 6

33. However, it remains necessary to consider whether that information must be provided to the claimants in order to comply with Article 6 of the ECHR.
34. As already indicated, this will depend on a number of factors, including the nature of what is at stake in the action, the ability or otherwise of special advocates to protect the claimants' interests in the absence of disclosure to the claimants, and the importance of the withheld material to the issues in the case. At this stage, the policy of NCND is at most a factor to be taken into account. Ultimately the issue is what is required by Article 6.
35. In my judgment, applying the principles described above, the following matters are relevant in considering what procedural fairness requires in the present case.
36. First, the nature of the case. The present case involves no current risk to HTF or ZMS. They were released from detention some nine years ago and now face no restriction on their liberty or other adverse consequence depending on the result of this litigation. Their claim is a claim for financial compensation for historic events. That is some way removed from the kind of case in which AF (No 3) disclosure has typically been required. On the other hand, these are claims which, if the claimants' allegations are well-founded, involve grave infringements of their fundamental human rights, either by United Kingdom forces or by United States forces in circumstances for which the United Kingdom is responsible. They include alleged breaches of both Articles 3 and 5 of the ECHR. Accordingly it would not be right to dismiss them as being "just" claims for financial compensation. They involve serious allegations of legitimate public concern.
37. Second, the claimants' ability to give effective instructions will not be affected by their knowledge of the identity of the units involved in their capture. They have given their accounts in their Particulars of Claim and will no doubt do so again, with as much detail they are able to recall, in their witness statements. Neither Ms Kaufmann nor Mr Ahmad suggested that knowledge of the identity of the units involved would make any difference to what the claimants themselves are able to say. Nor was any plausible explanation given of how the claimants' solicitors' preparations for trial may be affected by such knowledge.
38. Third, however, if such knowledge would affect the steps to be taken by the claimants' solicitors in preparation for the trial, it is plain from the submissions made by Ms Kaufmann that the claimants have a strong suspicion, albeit unconfirmed, as to the identity of the units concerned. It is far from being a case where, because of complete ignorance, there is no realistic possibility for the claimants to prepare their case properly.
39. Fourth, it is unlikely that the identity of the units involved will be material to any significant extent. It is apparent that there will be a straightforward dispute of fact between the claimants who will say that they were ill-treated by British soldiers and those of the defendant's witnesses who were present on the operations in question and will say that the events described by the claimants did not happen.
40. Fifth, however, to the extent if any that the identity of the units involved does become material, full disclosure has been provided to the special advocates who will be able to test in the closed procedure the evidence given on behalf of the defendant by those who were involved in the claimants' capture.
41. Finally, having regard to the material which has already been and will be disclosed, disclosure of the identity of the units concerned in the operations is not necessary to maintain public confidence in the rule of law.
42. Taking these matters into account, I conclude that no further disclosure of the identity of the units involved in the claimants' capture is necessary in order to ensure that the trial is fair, in accordance with the requirements of Article 6.

The reasons for detaining ZMS

National security

43. I turn next to the question whether further disclosure of material relating to the reasons for detaining ZMS would be damaging to the interests of national security. It is important to appreciate that the material already provided to the claimants indicates that ZMS was the target of Operation Conakry, that he was believed to be linked to Iranian groups and individuals operating within Iraq on whom he could provide information, and that the Iranian groups with which he was believed to be linked were engaged in the movement of lethal weapons. Moreover, the report of his detention which has been disclosed with some redactions indicates that he was shown photographs of persons of interest and asked whether he recognised certain names (although the names have been redacted) and that in each case he did not recognise the photographs shown to him or the names about which he was asked. This is not, therefore, a case like SSHD v Mohamed [2014] EWCA Civ 559, [2014] 1 WLR 4240 where the applicants had been told nothing at all. On the contrary ZMS has been provided with substantial material about the reasons for his detention, as well as what happened (on the defendant's case) during the detention operation itself.
44. Accordingly the question is whether it would be damaging to the interests of national security for the claimants to be provided with further material revealing the intelligence which led to his detention and the names of groups or individuals with whom he was believed to be associated. I have no doubt that it would and, moreover, that this information cannot be regarded as of merely historical interest so far as national security is concerned. Mr Ahmad did not submit otherwise but limited his submissions to whether a summary was necessary in order to comply with Article 6.

Article 6

45. Applying the principles already described, the following matters are relevant.
46. First, I need not repeat what I have already said about the nature of the case and where it fits on the spectrum.
47. Second, I accept that ZMS's ability to give instructions will to some extent be affected by not knowing the detail of the intelligence which was held about him and the names of the groups and individuals with whom he was believed to be linked. I was concerned, for example, that ignorance of these matters might affect his ability to give an innocent explanation for such association if there is one. For example, Mr Al-Waheed, who was one of the claimants in Alseran v Ministry of Defence [2017] EWHC 3289 (QB) and was in a house where a partly constructed IED was found together with a substantial quantity of explosives, was able to provide such an innocent explanation: see [696] to [700].
48. However, I conclude that ZMS's ability to give effective instructions will not be materially impeded. He already has a substantial amount of relevant information. If he was linked to the Iranian groups, he will know that and will know also the names of those with whom he was linked. In that event he will know also that he lied in response to the questions asked of him. It would not be surprising if he is unable in view of the stress of his capture and the passage of time to recall the identities of all those about whom he was asked, but he will know enough to be able to give effective instructions to his legal team. Conversely, if he was innocent of any involvement with Iranian or Iranian-backed groups, knowing their names now will make little difference. Even if he cannot now recall the identities of those about whom he was asked, he will know whether he told the truth in response to questioning. As he denied any knowledge of the names put to him, it is apparent that his case will be that he did not know them, not that he had some innocent explanation for being linked with them. He is not, therefore, in a position comparable to that of Mr Al-Waheed.
49. Third, it is once again apparent from the submissions made by Ms Kaufmann that the claimants have a strong suspicion as to the identity of at least one of the groups concerned. To the extent that it is relevant, there will be no difficulty in taking instructions from ZMS and doing whatever is necessary to prepare their case accordingly.
50. Fourth, full disclosure has been provided on this topic also to the special advocates who will be able to protect ZMS's interests in the closed procedure.
51. Fifth, it is not the defendant's positive case that ZMS was in fact associated with any particular insurgent group. What matters so far as the lawfulness of his detention is concerned is whether there was a reasonable basis for concluding that he needed to be detained for imperative reasons of security. Further, to the extent that the claimants' case may be that those suspected of belonging to insurgent groups were more likely to be ill-treated, the question will be whether those carrying out any ill-treatment believed that ZMS was a member of such groups and not whether that belief was accurate.
52. Finally, there is no other reason, such as the maintenance of public confidence in the rule of law, which requires more detailed open disclosure than has already been provided.
53. Taking these matters into account, I conclude that no further disclosure of the intelligence concerning ZMS or the identities of those with whom he was believed to be linked is necessary in order to ensure that the trial is fair, in accordance with the requirements of Article 6.

Inadvertent disclosures

54. It appears that the defendant has inadvertently disclosed a small number of documents without redacting some of the content which it was intended to redact. The content thus revealed sheds some light on matters which the defendant regards as sensitive. The claimants rely on this as indicating that further disclosure would not be damaging to national security. I do not agree. Although the documents have been disclosed to the claimants, they have not entered the public domain and can be used by the claimants only for the proper purposes of this litigation. The defendant has reserved the right to request that, if it is necessary to refer to such documents at the trial, that should be done in private or in some other way to preserve the confidentiality of the documents. If appropriate, such an order can be made.
55. In my judgment the fact that there have been a small number of inadvertent disclosures does not affect the conclusions which I have reached.

Other material

56. Apart from the two issues with which I have so far dealt, substantial agreement was reached between the defendant and the special advocates as to the material disclosure of which should be withheld on national security grounds. I direct that such material need not be disclosed.

Public interest immunity

57. The defendant seeks to withhold disclosure of three reports by the International Committee of the Red Cross ("the ICRC") following inspection of detention conditions. The application is supported by a certificate dated 21 September 2016 from the Minister of State for the Armed Forces, stating that:

"… the International Committee of the Red Cross ('the ICRC') places the confidentiality of its information at the heart of its role in protecting victims of armed conflicts, and expects Governments in receipt of ICRC information to preserve this confidentiality. Unauthorised disclosure of this information would have an adverse impact on the Government's relationship with the ICRC, limiting the ability for vital cooperation in future conflicts."

58. The Minister's statement is supported by an ICRC "Memorandum on Confidentiality" dated 2012 in which the ICRC emphasises the importance which it attaches to the confidentiality of its reports. It does so for a number of reasons: to enable it to establish a constructive dialogue with parties to an armed conflict; to persuade such parties to allow it access to conflict areas; and to protect its own staff working in dangerous situations. All of these vital objectives would be seriously jeopardised in the ICRC's view if information gathered by it was subsequently to be available for use in court proceedings or public inquiries. The Memorandum explains the way in which this principle of confidentiality is recognised in international law and makes clear that the ICRC expects states and others receiving any report to respect that confidentiality:

"When a party receives such a communication from the ICRC, it does so subject to the conditions of confidentiality stated therein. This is entirely consistent with the limited purpose served by ICRC reports on visits to places of detention or reports on the protection of the civilian population, as the case may be: namely, that they are to be seen only by the authorities to whom they are addressed and only for the purpose of generating independent investigation by those authorities, with the aim of improving the conditions and treatment of persons subject to detention/internment or the protection of the civilian population in the case of hostilities. Thus, the authorities who receive such reports may not publish, or otherwise transmit ICRC material beyond the scope of their authority, and especially, may neither use nor permit use of such communications in proceedings of a judicial, public inquiry, fact-finding or other similar character because of the harm that would result to the ICRC's ability to fulfil its mandate. It is for these reasons that the ICRC declines to make these confidential communications available to parties other than the authorities to whom they are addressed."

59. It is common ground that the question of public interest immunity must be approached in two stages. The first stage is to determine whether disclosure would cause substantial harm to the public interest and the second is to determine whether that harm outweighs the harm to the interests of justice caused by non-disclosure: R v Chief Constable of West Midlands Police, ex parte Wiley [1995] 1 AC 274.
60. In the light of the ICRC Memorandum on Confidentiality Ms Kaufmann accepted that there is a strong public interest in non-disclosure of documents generated by the ICRC, but invited the court to consider how that interest should be balanced against the public interest in the administration of justice. She left more detailed submissions to be made by Mr Ahmad as special advocate in the closed hearing, to whom the documents had been provided for that purpose.
61. The court's approach in striking this balance was described by Ouseley J in AHK v SSHD [2012] EWHC 1117 (Admin) at [34]:

"When the Court has to strike a balance between the public interest which would be put at risk, both by nature and degree, and the impact on the proper administration of justice in the particular case, one important factor is the significance of the material to the case. Another, how important the particular public interest itself is, and the degree and nature of the risk which disclosure would run for the public interest at stake. …"

62. I am satisfied that disclosure would cause substantial harm to the United Kingdom's relationship with the ICRC which represents an important and continuing public interest. Conversely, although the reports which it is sought to withhold pass the test of relevance (otherwise the question would not arise) Mr Ahmad did not submit that their contents were of any particular significance for the issues in the case. Indeed they date from an earlier period of the Iraq conflict than the 2008 period with which the present action is concerned.
63. Mr Ahmad submitted that a possible solution to the issue of confidentiality would be the provision of a "gist" stating that "the defendant has received reliable information that …". I agree with Mr Sweeting, however, that this is not a real solution as the source of the information would be apparent.
64. I have no doubt that the balance in this case is in favour of upholding the claim to public interest immunity.

Timetable

65. Finally, Ms Kaufmann indicated that in the event of substantial further disclosure resulting from this hearing the current timetable for service of the claimants' witness statements might need to be revisited. In the light of my decisions that will not be necessary.