CF v The Ministry of Defence & Ors

The facts and background to this case are fully familiar to the parties and need no repetition here. They are set out in the OPEN and CLOSED judgments of November 2013: [2013] EWHC 3402 (QB) and [2013] EWHC 3402 (QB) (CL) respectively.

The claim on behalf of Mohammed Ahmed Mohamed, formerly anonymised as MA, was struck out by my order on 25 June 2014, following his absconding from bail, and his subsequent failure to prosecute his claim.

The issue presently under consideration is whether, following the declaration under Section 6 of the Justice and Security Act 2013, [“the 2013 Act”] permitting a closed material procedure [“CMP”], Article 6 of the ECHR requires further details of the Defendants’ case to be provided, by any further disclosure, summary or gist. It is common ground that civil proceedings of this kind do engage Article 6: the question is one of compliance. However, it may be helpful to focus on the text of Article 6, and on the distinction therein between civil and criminal cases:

“Article 6 – Right to a Fair Trial

1.

In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interest of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.

2.

Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.

3.

Everyone charged with a criminal offence has the following minimum rights:

(a)

to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;

…

(d)

to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;

...”

There is further common ground between the parties that the application of Article 6 is dependent partly on the category (or as Mr Eadie QC for the Defendants put it, the “characterisation”) of the claims in hand and partly on the individual facts of the claim.

Mr Hermer QC for the Claimant emphasises a number of points of context. Section 14(2) of the 2013 Act provides that nothing in the Act –

“… is to be read as requiring a court or tribunal to act in a manner inconsistent with Article 6 of the Human Rights Convention.”

Both the Court and the Defendants are bound to ensure conformity with Article 6. Secondly, he emphasises that the claim raises very serious issues: his client alleges complicity in unlawful and arbitrary detention, inhuman and degrading treatment and torture, on the part of British authorities. There are claims pleaded in trespass, breach of the Human Rights Act 1998, of misfeasance in public office. The remedy sought is not confined to ordinary compensation, but extends to damages for breach of the Convention and to declaratory relief, which in the context of this case, and if the Claimant succeeded, would represent an important marking of unlawful behaviour: a matter in which there is a legitimate public interest.

Mr Hermer also emphasises the extreme degree to which his client remains in the dark as to the Defendants’ position on the claim. He says Paragraph 7 of the OPEN defence is a general denial of any wrongdoing, but falls far short of a denial of the specific allegations made. Paragraph 9 of the OPEN defence makes the position clear:

“because of the damage which could be caused to the public interest, the Defendants are unable to set out any positive case in respect of the Claimant’s allegations in paragraphs 15-42, 44-45, 49-54 and 73-90 of the Particulars of Claim beyond the bare denial in paragraph 7 above and the limited information provided at Sections C, E and H below.”

Further, while the declaration under Section 6 has been made, there has as yet been no specific application under Section 8 of the 2013 Act. The Claimant anticipates however from the terms of the earlier judgment, that disclosure of the material deployed in the application for the declaration will be confined to the CMP, and that assumption must be correct, whatever may arise in respect of any other material.

Mr Hermer then argues (correctly) that the approach adopted is at wide variance from the normal obligations of a defendant in a civil action under CPR 16.5, and gives examples of particulars which would, in themselves, seem to introduce no risk of compromise to national security, such as:

“18.1.

The refusal to plead to the contention that British officials knew Mr Mohamed was travelling in Somaliland despite the fact that they obviously did as they had applied for a control order against him the day before he was apprehended.

18.2.

The refusal to plead even to the contention that BBC Somalia reported British involvement of the operation.

18.3.

The refusal to plead to the averment that plain clothes police officers attended the home of one of the Claimant’s sisters on 15 January 2011 and what was said.

18.4.

The refusal to plead to the averment that the Claimant had been detained in Hargeisa prison in Somaliland by the Criminal Investigation Branch of Somaliland.”

At the commencement of the hearing, amendments to the OPEN Defence were made which, Mr Hermer submitted, showed how over-cautious and over-restrictive had been the approach.

Against that background, Mr Hermer submits that it is essential, in the interests of justice and to achieve conformity with Article 6, that there should be disclosure of “a substantial amount of information”, and that as a minimum, the Claimant should be provided with a response to each specific allegation he makes, in the form of admission, non-admission or denial, and that he should be given “an intelligent, balanced and accurate summary of the Defendants’ positive case”.

In support of his contentions, Mr Hermer begins by relying on the judgment of the Court of Appeal in the Control Order/TPIM proceedings concerning this Claimant. There too the impact of Article 6 was under consideration and in respect of the identical set of facts. In the judgment of Lloyd Jones LJ sitting at first instance, addressing substantially the same factual allegations, but in a different legal context, the judge stated:

“132 …The position of the Secretary of State in these proceedings is that she neither confirms nor denies that the UK authorities were involved in the arrest, detention and deportation of [the appellants]. I have addressed these issues with that in mind.

133.

With considerable reluctance I have come to the conclusion that these matters cannot be addressed in my open judgment. However, I have addressed these matters in detail in my closed judgment.” (See: [2012] EWHC 2837 (Admin))

In considering that judgment, Maurice Kay LJ (with whom the other judges agreed) concluded:

“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 appellants 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 appellants' principal ground of appeal is made out.”

The Claimant argues that there is no uniform, or indeed even binary, test concerning the impact of Article 6 in cases engaging questions of national security: the question is where on the spectrum or “sliding scale” the case rests. He argues that the 2013 Act was passed after the decision in AF(No 3) v SSHD [2009] UKHL, [2010] 2 AC 269. There the House of Lords concluded, following the decision of A v United Kingdom (2009) 49 EHRR 29, that in cases concerning Control Orders and therefore the liberty of the subject, minimum obligations existed to give the subject of a Control Order “sufficient information about the allegations against him to enable him to give effective instructions to his special advocate in relation to them” (see the Headnote). It follows, says Mr Hermer, that Section 14(3) of the Act means Parliament accepted such obligations would subsist as a consequence of Article 6.

The Claimant argues that disclosure may be required by Article 6 even where there would be some damage to national security. Disclosure is “assumed to be not just to the controlled person, but to the world at large” (Baroness Hale, in AF(No 3) at paragraph 104). Even so, disclosure may yet be required.

In Tariq v Home Office [2011] UKSC 35, the Supreme Court considered the case of an immigration officer of Asian Muslim background, whose security clearance was withdrawn and who was suspended from work, following the arrest of close family members in the course of a suspected terrorism operation. He took action before the Employment Tribunal. The Defendants obtained orders under the relevant rules for the proceedings to be conducted in private, and for the Claimant and his advocates to be excluded from private sessions and from the closed documents. There was no arrangement for Special Advocates. The Claimant was in a position to infer, from the timing of his suspension and his own knowledge of the investigations into his family, something of the causes of his suspension, but he was essentially given no access to sensitive information in the closed proceedings.

The Court reviewed Strasbourg authority, including notably Kennedy v United Kingdom (2010) 52 EHRR 207, and considered the effect of AF(No 3). They concluded that there was no absolute requirement that the details of allegations which would be disclosed in normal litigation should be disclosed where the interests of national security required secrecy. The disadvantage to the Claimant was outweighed by the paramount need to protect the integrity of the vetting system.

Mr Hermer sought to distinguish Tariq from the instant case in a number of ways: the Claimant in Tariq knew a good deal of the background because of what had happened to his family; Tariq was a volunteer who must be taken to have accepted the security demands of his job; the subject matter of the case was directly concerned with the effectiveness of national security as involving the vetting system, critical for the security of the State. Mr Hermer also laid stress on several aspects of the judgment of Lord Dyson in Tariq. Lord Dyson emphasised that the right to a fair trial is absolute (paragraph 139), although observing that not all the constituent elements of a fair process are absolute or fixed (paragraph 140). A closed material procedure denies the party excluded the right to full and informed participation in adversarial proceedings and is inconsistent with the principle of equality of arms (paragraph 142). The question arises whether, when the gist of the defendant’s case is not disclosed to the claimant, the scrutiny of an independent Court and the services of a special advocate represent sufficient safeguards (paragraphs 142 and 143). The answer in a case involving the liberty of the subject is clear: there is no sufficient safeguard, if the special advocate is unable to be effective through lack of instructions (paragraph 143).

However, it is important to note that Lord Dyson went on to conclude that, in cases not involving liberty of the subject, the position is more nuanced. There is no uniform approach. The general rule is that full Article 6 rights must obtain in every case and that limitation on those rights requires careful justification (paragraphs 145 and 146). The Court must strike a balance in such cases, and –

“147.

… the court must consider whether scrutiny by an independent court and the use of special advocates are sufficient to counterbalance the limitations on the individual's article 6 rights. In many cases, an individual's case can be effectively prosecuted without his knowing the sensitive information which public interest considerations make it impossible to disclose to him.”

Mr Hermer made full references to the other judgments in Tariq, emphasising that in every case the question arises whether further disclosure is necessary, and the Court must consider carefully the balance to be struck. In the instant case he said the balance comes down strongly in favour of further disclosure: this Claimant is not a volunteer, the case does not concern the integrity of the vetting system and there is here the important added dimension of holding the state to account. The public interest in the gravity of the allegations here was a strong factor to be borne in mind, in favour of further disclosure and greater openness. On that last point, Mr Hermer relied on the, by now well known, remarks of the Court of Appeal in R(Mohamed) v Secretary of State for Foreign and Commonwealth Affairs (No 2) [2011] QB 218.

In reply during the OPEN proceedings, Mr Eadie also drew my attention to successive remarks of the Supreme Court in Tariq. I intend no disrespect to his exegesis of the case, but I do not feel it necessary to follow him in detail through the various expressions of view which differ mostly in nuance, where they differ at all, from the position as stated by Lord Dyson.

Mr Eadie also referred me to the speech of Lord Bingham in Brown v Stott [2003] 1 AC 681, and I do place reliance on one passage from Lord Bingham, which appears to me consistent with the approach of the Supreme Court in Tariq.

“The jurisprudence of the European Court very clearly establishes that while the overall fairness of a criminal trial cannot be compromised, the constituent rights comprised, whether expressly or implicitly, within article 6 are not themselves absolute. Limited qualification of these rights is acceptable if reasonably directed by national authorities towards a clear and proper public objective and if representing no greater qualification than the situation calls for. The general language of the Convention could have led to the formulation of hard-edged and inflexible statements of principle from which no departure could be sanctioned whatever the background or the circumstances. But this approach has been consistently eschewed by the Court throughout its history. The case law shows that the Court has paid very close attention to the facts of particular cases coming before it, giving effect to factual differences and recognising differences of degree. Ex facto oritur jus. The Court has also recognised the need for a fair balance between the general interest of the community and the personal rights of the individual, the search for which balance has been described as inherent in the whole of the Convention: see Sporrong and Lönnroth v. Sweden (1982) 5 EHRR 35, at paragraph 69 of the judgment; Sheffield and Horsham v. United Kingdom (1998) 27 EHRR, 163, at paragraph 52.” See: Brown v Stott (supra) P 704 D/F

Mr Eadie also relied on the decision of the European Court in Kennedy. Kennedy was cited in Tariq, and indeed relied on, for example by Lord Mance in his judgment at paragraphs 33, 34 and 35, the latter paragraphs quoting extensively from the judgment of the Strasbourg Court in Kennedy. In paragraph 36 of his judgment in Tariq, Lord Mance concluded that the European jurisprudence set out in Kennedy, meant that, subject to safeguards sufficient for the case in hand:

“… national security considerations may justify a closed material procedure, closed evidence (even without the use of a special advocate) and, furthermore, (as in Kennedy itself) a blanket decision leaving the precise basis of determination unclear.”

I take as my approach the starting point that, in a case which does not directly affect the liberty of the subject, there is no irreducible minimum of disclosure, or necessary minimum revelation by summary or gist of the Defendants’ case, obligatory despite the consequences for national security. This case is a claim for compensation, albeit with potentially important issues of high public interest. It is in a category where I must conduct a balancing exercise, bearing in mind the competing principles of maximising the fairness of the trial and protecting the public through the preservation of national security. Any compromise of fairness must be thoroughly justified. Every possible effort must be made to mitigate the effect of CLOSED material procedures and limited disclosure. The twin evils of injustice to a claimant and injustice to the State are to be avoided: the latter arising if and when the disclosure (in whatever form) of the detailed case would so compromise national security that the State is compelled to settle what may be an unjust and unmeritorious claim.

In this last context, I should make it clear that I reject the submission of Mr Hermer that the case of Carnduff v Rock [2011] 1 WLR 1786 is of relevance and authority only in the context of public interest immunity. On the contrary, it seems to me the evil of an unjust victory, achieved only because a case is untriable, is something to be avoided if at all possible. That must be so whoever would win, and whether the problem arises from public interest immunity, or from the effect of a ruling on disclosure in the context of a case which will comprise a closed material procedure.

Putting the matter the other way round: if after careful consideration a case can be properly tried, even though a claimant is deprived of substantial disclosure, even by gist or summary, of the defendant’s case, then he is enfranchised to make a claim which might otherwise be impossible in terms of Carnduff. At the same time, the State can (must) defend itself on the merits. A proper adjudication on the facts, even if all the facts cannot be public, must be a superior outcome to an unmerited loss by the state or an unmerited loss by a citizen. That in any event must be taken to be the policy behind the relevant provisions of the Justice and Security Act 2013.

The public interest is also served by a trial, and is done a disservice by a default outcome, whichever party is favoured by the default. If the State loses other than on the merits, there will be an unjust payment. But there will also be no scrutiny of judgment on the merits, or faults, of what has been done in the name of the State. The injustice if the State wins by default is obvious.

I am unable to spell out in this OPEN judgment my consideration of the competing arguments in CLOSED. I do record the energy and skill with which Mr McCullough QC advanced his propositions in favour of the Claimant. I have borne in mind the remarks of Maurice Kay LJ in the Court of Appeal hearing in the control order case at paragraph 20. I wish to stress that in approaching this decision I have not applied a government policy of “neither confirm nor deny”, far less watched such a flag be hoist up a flagpole and responded with an automatic salute. I have considered with close care the body of material which was relied on by the Secretary of State in applying for the declaration under Section 6, and which, as I observed in the previous judgment, is the most central material in the case. I have given genuinely anxious thought to whether some of the material could be released without creating damage to national security. I do not believe that is possible. The material can be described as interlocking and often cross-referential. I see no sensible way in which there could be disclosure of any meaningful part of this material without leading on to the remainder.

I have concluded for the reasons stated above and expressed carefully in the CLOSED judgment that no useful additional disclosure, summary or gist of the Defendants’ case is possible without severe compromise of the national security considerations which underpinned the Section 6 declaration. I must therefore consider whether an order must nevertheless be made, in the light of the impact on fairness. Here, I can say more in OPEN.

I have carefully reviewed the witness statements already served on behalf of the Claimant, and indeed those served by the Claimant whose case has been dismissed, but are available to be considered as potentially throwing light on the case. The statements demonstrate that this Claimant puts forward a detailed and structured account of events. At each critical juncture his account is full. His allegations are clear beyond any doubt.

Moreover, having reviewed the CLOSED material, there does not at present appear to me to be a part of the case where an account is not forthcoming from the Claimant and where one would be expected. That is not to say that he might not be able to provide more detail, if he knew the detail of the Defendants’ case: he might very well be able to do so. However, in my judgment that can be adequately addressed along the way by consideration of detailed questions to be asked and answered, and in conclusion by a careful consideration of what inferences may properly be drawn from any lack of detail in the Claimant’s evidence on a given point.

I have also considered carefully the approach to cross-examination in the case, including with Counsel in CLOSED session. The difficulty will be that cross-examination in OPEN will be curtailed, because otherwise matters of national security importance might be revealed, either directly or by implication. This will require careful handling. Here the safeguards will be firstly the assistance of the Special Advocates, and secondly in a careful consideration of the inferences properly to be drawn. I should make it clear that cross-examination of witnesses in CLOSED will be untrammelled. The level of detail in the Claimant’s statements, and indeed those of Mohamed, will in my view provide a proper basis for cross-examination in CLOSED. I have not been able to find any important concrete matter in the case where the Claimant’s case is unknown and where the Special Advocates will not be aware of the case they must put.

For these reasons, and those expressed in the CLOSED judgment, I reject the application for further disclosure, whether by the production of documents, summary or gists.