Chowdhury Mueen-Uddin v Secretary of State for the Home Department

This is the hearing of an application by the Defendant to strike out the claim or for summary judgment in her favour of the claim brought by the Claimant in libel and Data Protection.

Within the Home Office there is the Commission for Countering Extremism (‘the Commission’). The Commission is a non-statutory body expert committee of the Home Office. It was chaired by Sara Khan, who was the Lead Commissioner. In October 2019 the Commission published a report entitled ‘Challenging Hateful Extremism’ (‘the Report’). The Report was published in hard copy and was also available on-line. It was 144 pages long. Two passages in the Report give rise to the present proceedings.

The first was on p.54 of the Report which said,

The second passage in the Commission’s Report which gives rise to these proceedings was footnote 158 which said,

The Defendant is the Secretary of State for the Home Department. It may be that the proper Defendant is actually the Home Office (see Crown Proceedings Act 1947 s.18 and CPR Practice Direction to Part 66), but this procedural nicety forms no part of the strike out application or application for summary judgment. The claim is attacked whether it is the Secretary of State who is sued or the Home Office.

The Claimant was born in what was then East Pakistan and is now Bangladesh. He became a journalist and was employed as a reporter for the ‘Daily Purbadesh’.

As a student in 1965 the Claimant had joined an organisation called ‘Islami Chatra Sangha’ (‘ICS’) which the Claimant describes as an Islamic student organisation, the mission of which was to share Islamic values and teachings with other students in order to gain the pleasure of Allah. In 1970 he became publication and publicity secretary of ICS. He says that he ceased to be Publication and Publicity Secretary of ICS in 1969 (this is the information that the Claimant gives in paragraph 13 of his 1^st witness statement although the date is before he says he was appointed to that post (see paragraph 12 of the same statement) and he resigned as a member of ICS in 1971. He says that ICS was perceived by many to be the student wing of Jaamat-e-Islami, (‘JEI’), a Bangladesh political party. He says that on occasions, he himself has referred to it as such, but he says, they are separate organisations and there was no organisational link between the two.

Bangladesh achieved independence from Pakistan in 1971. It was a turbulent and violent process. One particular incident took place in 1971 when 18 or so intellectuals were murdered. The Claimant says that he was opposed to Bangladesh separating from Pakistan, but he did not take part in any violence. In particular, he denies any involvement in the murder of the 18 intellectuals.

Bangladesh achieved its independence from Pakistan in 1971. It has, of course, since then been an independent country.

The Claimant left Bangladesh in 1971. He travelled via India and Nepal. He arrived in the UK in 1973. He has made the UK his home since then. In 1996 Channel 4 broadcast a documentary in the Dispatches series which accused the Claimant of taking part in war crimes during the Bangladesh war of independence (see War Crimes Files). The Claimant says that he brought libel proceedings against the broadcaster ‘but I did not have the financial resources at the time to pursue the case to trial which therefore ended without either side paying the other’s costs.’ The Claimant did travel to Bangladesh on a number of occasions, including after Channel 4 Dispatches programme was broadcast.

In 1973 Bangladesh passed the International Crimes (Tribunals) Act 1973 which established the International Crimes Tribunal (‘ICT’). The Act conferred the power on the Tribunal to pass the death penalty (see s.20(2) of the 1973 Act). As the Tribunal itself has made clear, despite its name, it is not an international criminal court but a creature of Bangladesh’s domestic legal system.

I understand that the ICT was essentially dormant until about 2008 when the Awami League was elected to government in Bangladesh on a platform that the ICT would start to take cases.

In 1984 the Claimant was naturalised as a British Citizen.

One of those investigated for offences during Bangladesh’s war of independence was the Claimant. He was prosecuted before the ICT for 11 charges contrary to the International Crimes (Tribunals) Act 1973 (as amended). The charges were of a most serious kind and included crimes against humanity. Essentially, they arose out of the murder of the 18 intellectuals in 1971.

So far as the Claimant has been able to establish, his extradition was never sought for the trial. Since the Tribunal had the power to pass the death penalty, the Claimant could not, in any event, have been extradited absent an assurance that the death penalty would not have been passed, or, if passed, would not have been carried out in his case (see Extradition Act 2003 s.94). The Claimant did not attend his trial voluntarily. The trial took place between 15^th July 2013 and 30^th November 2013. Some 23 lay witnesses gave evidence. The trial took place in the absence of the Claimant and his co-accused. State defence counsel was appointed to represent each of them. The Claimant says that his counsel never made contact with him.

Judgment was delivered by the Tribunal on 3^rd November 2013. The Claimant was convicted and sentenced to death. It does not appear that the Claimant sought to challenge his conviction or sentence by way of appeal. Inevitably, the trial attracted a great deal of publicity, as did the Claimant’s conviction and sentence, including within the U.K. Thus, for instance, the Claimant’s entry on Wikipedia introduces him as ‘convicted war criminal for the killing of Bengali intellectuals in collusion with Pakistan army at the time of Bangladesh liberation war.’

In 2017 Interpol issued a ‘red notice’ (asking national police forces to arrest the Claimant), but, on the Claimant’s application, this was withdrawn on 13^th November 2018 (see decision CF/R 676.17).

As I have said, the Report of the Commission was published in October 2019. 4,982 copies of the report were downloaded, but, Mr Hudson submitted, that did not mean that all of those who downloaded the report read the words complained of. 80 hard copies were distributed.

The Claim Form was issued on 19^th June 2020. It was served with Particulars of Claim on the same date.

The claim relied on libel in respect of the two passages which I have mentioned. It also alleged that the Report had infringed the Claimant’s rights under the General Data Protection Regulation (‘GDPR’) and specifically Article 5 (on the grounds that the Report was inaccurate, because the Claimant had not committed war crimes and had never been a senior leader of Jaamat-e-Islami); Article 6 of the GDPR (on the grounds that none of the permitted circumstances applied) and Article 10 of the GDPR (since none of the exceptions permitting publication of criminal convictions applied).

In consequence of pre-action correspondence between the parties, the on-line version of the Report was amended on 20^th March 2020 to delete the reference to the Claimant in footnote 158 and to delete the sentence which referred to the footnote [‘the amended on-line report’]. The claim only relates to the original hard copy and the original on-line report (i.e. before its amendment).

By a consent order of Master Brown of 30^th September 2020, it was ordered that there should be a trial of a preliminary issue, namely the natural and ordinary meaning of the words complained of, and whether the words complained of conveyed the information alleged in the Particulars of Claim for the purposes of the GDPR.

By consent the preliminary issues also extended to whether the words complained of were defamatory of the Claimant at common law.

The preliminary issue trial was conducted by Tipples J. who gave her judgment on 16^th February 2021 – see [2021] EWHC 269 (QB).

She found that there was no difference between the meaning of the hard copy of the Report and the (original) on-line version.

Tipples J. found that the words of both meant:

That the Claimant was one of those responsible for war crimes committed during a 1971 War of Independence in South Asia; and

The Claimant has committed crimes against humanity during a War of Independence in South Asia.

She also found that the meanings were allegations of fact which were defamatory of the Claimant at common law.

As to the claims under the GDPR, Tipples J. concluded that the Claimant’s personal data contained in the Report was as follows:

The Claimant was a member of Jaamat-e-Islami.

The Claimant was one of those responsible for war crimes committed during a 1971 War of Independence in South Asia.

The Claimant committed crimes against humanity during a 1971 War of Independence in South Asia.

The Claimant was found guilty of crimes against humanity following a trial in absentia.

The Claimant provides a link between those responsible for war crimes committed during a 1971 War of Independence in South Asia and Jaamaat-e-Islami in the U.K.

On 2^nd March 2021 the Claimant served Amended Particulars of Claim to plead the meanings and infringement of his personal data rights as Tipples J. had found them to be.

The application presently before me was issued by the Defendant on 13^th May 2021 (notice of the Defendant’s intention to issue such an application having been given to the Claimant on 20^th April 2021). It was supported by the 1^st witness statement of Jackie Omeni of the 13^th May 2021.

On 18^th May 2021 Nicklin J. directed that the Defendant’s application should be heard by a judge in the Media and Communications List and he gave directions for the hearing.

On 7^th June 2021 Master Thornett extended time for service of the defence until 28 days after the hand-down of judgment on the present application.

In addition to the 1^st witness statement of Ms Omeni, I have a witness statement from the Claimant dated 29^th July 2021, a witness statement from Adam Tudor of Carter-Ruck of the same date, a second witness statement of Ms Omeni (of 10^th September 2021) and a second witness statement of the Claimant (of 14^th October 2021).

In advance of the present hearing, I notified the parties that one of the items in the bundle was a report of Geoffrey Robertson QC. Mr Robertson is head of chambers at Doughty Street Chambers which was where I had been a tenant before my appointment to the High Court bench in 2009. I also intended to apply to be an honorary associate tenant there following my retirement from the bench in May 2021. I had also co-authored a book with Mr Robertson. I asked the parties if they wished to make any representations as to why I should not hear the case. Neither party wished to do so.

Mr Hudson QC, lead counsel for the Defendant, argued in outline:

Both the claim in libel and the GDPR claim were an abuse of the process of the court. It was an abuse to seek to re-litigate in subsequent civil proceedings whether a person had been rightly convicted by a criminal court. Such a claim brought the administration of justice into disrepute and was unfair to the Defendant compelled to meet such a claim. Mr Hudson argued that it made no difference that the criminal court in question was outside the jurisdiction and the unfairness to the Defendant could be (and was in the present case) all the greater when it was. An alternative way of putting the Defendant’s case on abuse was that ‘the game was not worth the candle’ and should be struck out on the ground recognised by the Court of Appeal in Jameel (Yousef) v Dow Jones Inc. [2005] QB 946 C.A. (‘Jameel’). If the Defendant succeeded on either way of putting the abuse argument, she needed no more.

But alternatively, if the claims could continue, the Secretary of State should be granted summary judgment in her favour on the libel claim, because the Claimant had no realistic prospect of establishing that the publication had caused serious harm to his reputation, as the Claimant alleged in the Amended Particulars of Claim. As issued, the application had sought summary judgment both of the libel claim and the data protection claim, but Mr Hudson made clear that he was now confining the summary judgment application to what I have just summarised.

As I have already summarised the Defendant says that both the libel and the data protection claims should be struck out as an abuse of the process of this court.

The Defendant argues that both claims would involve re-litigating whether the Claimant was guilty of the murders of 18 intellectuals at the time of the Bangladesh war of independence in 1971. As part of the data protection claim, the Claimant has alleged that it is untrue and inaccurate to describe him as a war criminal as the Commission’s Report had said. On the data protection claim the Claimant would have the burden of proof. In the libel claim, the same issue would arise because, through Ms Omeni, the Defendant has said that, if required to serve a defence, the Secretary of State would rely (among other things) on the defence of substantial truth in Defamation Act 2013 s.2. For that purpose, she would have the burden of proof. However, Mr Hudson submitted that the abuse of process would arise whichever party had the burden of proof.

Mr Hudson submitted that for all practical purposes, the issues in both the data protection trial and libel trial would be whether the Claimant had been guilty of the murders of the 18 intellectuals.

Although, Mr Hudson submitted, the essential issue on both claims would be whether the Claimant had murdered the 18 intellectuals, the Secretary of State would have to prove that de novo. This was because the Civil Evidence Act 1968 s.13, which provides that a finding by a criminal court that a claimant has committed a crime is conclusive evidence of guilt, applies only to convictions by UK courts (see Civil Evidence Act 1968 s.13(3)). Indeed, the view of the ICT that the Claimant was guilty of those murders would be inadmissible evidence because it was no more than the opinion of that Tribunal on the evidence which had been submitted to it – see Hollington v Hewthorn [1943] K.B. 587. The rule in Hollington v Hewthorn had been much criticised and it was reviewed by the Law Reform Committee in 1967 (15^th Report, ‘The Rule in Hollington v Hewthorn HMSO Cmnd 3391), of which Diplock LJ was a member. The intention of Civil Evidence Act 1968 was to give effect to the Law Reform Committee’s proposals (see Hansard HL Debs vol 288 col 1340) which made (a) convictions admissible evidence that the Defendant was guilty of the offence in question (Civil Evidence Act 1968 s.11); and (b) provided that in defamation actions, as against a Claimant, such a conviction was conclusive evidence of guilt (Civil Evidence Act 1968 s.13). However, both s.11 and s.13 applied only to convictions by a U.K. court (see s.11(1) and s.13(3)).

Mr Hudson submitted, however, that the twin foundations of the abuse principle applied just as much in relation to foreign convictions. Indeed, the unfairness limb could be even more acute when the conviction was abroad.

The Law Reform Committee directly addressed the issue of foreign convictions in paragraph 17 of its report in which it said,

Mr Hudson accepted that the application of the Hunter principle was flexible: it was not an automatic, tick-box exercise. But if, as a matter of judgment, the Court came to the conclusion that the present proceedings were an abuse, the Court was under a duty to strike them out.

The modern consideration of the power of a court to strike out a claim (or a defence) as an abuse of process dates from Hunter v Chief Constable of the West Midlands Police [1982] AC 529. As is well-known, that case concerned the ‘Birmingham 6’. They had been prosecuted for, and convicted of, murder after explosions in two Birmingham pubs killed 21 people. After their arrest some of them made confessions to the police. At their trial they submitted that the confessions should be ruled inadmissible because they had been beaten by police officers. They alleged that they had also been subjected to violence by prison officers when they had been remanded in custody. The trial judge was Bridge J. He held a voir dire to determine the admissibility of the confessions. He ruled that they were admissible because the prosecution had shown to the criminal standard that the allegations of police brutality were untrue. The Defendants gave evidence and repeated their claims that they had been ill-treated. They were convicted by the jury. Their applications for permission to appeal were refused by the Court of Appeal Criminal Division. The present claim was against the Chief Constable and Home Office for the violent assaults which they claimed they had suffered at the hands of the police and prison officers. The defendants sought an order to strike out the claims under R.S.C. Order 18 r.19 and under the inherent jurisdiction of the court. Cantley J. had refused to do so, but the Court of Appeal had allowed the appeal and the House of Lords dismissed the Plaintiffs’ appeal (for the latter decision see Hunter v Chief Constable of West Midlands Police and others [1982] AC 529). The leading speech in the House of Lords was given by Lord Diplock who began by saying (at p.536),

The allegation that prison officers had assaulted the Birmingham 6 led to the prosecution of 14 prison officers on charges of assault. They were all acquitted (see Hunter at p. 539).

Lord Diplock summarised the form of abuse of process which that claim exemplified as,

Commonly, this type of abuse is referred to as a ‘collateral attack’, collateral because it does not take the form of an appeal to a higher court but a challenge by the second set of proceedings.

As is now well-known, the Birmingham 6 had in fact suffered a gross miscarriage of justice and in 1991 their convictions were quashed by the Court of Appeal Criminal Division on a reference by the Home Secretary whose role has now been taken over by the Criminal Cases Review Commission (see R v McIlkenny [1991] 93 Cr App R. 287).

Despite this, the principle in Hunter remains as was shown, for instance, in the sequence of cases concerning whether legal representatives could be sued in negligence for their conduct of criminal trials. In Smith v Linskills (a firm) [1996] 1 WLR 763 the Court of Appeal struck out a claim by a criminal Defendant against his former solicitor for negligence and breach of contract. The claim was ruled to be an abuse of process following Hunter. Sir Thomas Bingham M.R., giving the judgment of the court, identified three public policies underlying the power to strike out a claim as abusive:

The affront to any coherent system justice which must inevitably arise if there subsist two final but inconsistent decisions of courts of competent jurisdiction.

The virtual impossibility of fairly retrying at a later date the issue of what was before the court on the earlier occasion.

The importance of finality in litigation.

A related issue is whether barristers have immunity from suit for their conduct of cases in court. In Saif Ali v Sydney Mitchell and Co (a firm) the House of Lords held that they did (though only in regard to what was done in court). That decision was reversed by the House of Lords in Arthur J S Hall &Co (a firm) v Simons [2002] 1 AC 615 in part because the risk of a collateral attack by civil proceedings could be avoided through the exercise of the court’s jurisdiction to strike out cases as an abuse of process. Lord Steyn (a member of the majority in Arthur JS Hall) said at p.679,

Mr Hudson observed that the Hunter principle was not limited to courts exercising judicial power. In Re Barings plc (No 3) [1999] 1 BCLC 226 Jonathan Parker J. held that there was an abusive collateral attack on a decision of the Securities and Futures Authority. Jonathan Parker J’s decision was upheld by the Court of Appeal (see [1999] 1 WLR 1985). In Iberian U.K. Ltd v B.P.B. Industries plc [1977] ICR 164 (Ch.D.), Laddie J. found that the action was an impermissible collateral attack on decisions of the European Commission, the Court of First Instance and the Court of Justice of the EU. In Kamoka v The Security Service [2017] EWCA Civ 1665 Flaux LJ summarised the position at [75] as,

Mr Hudson commented that the Claimant could only have recourse to the argument that he had fresh evidence which required his conviction by the ICT to be re-examined if he could satisfy the test in Phosphate Sewage Co Ltd v Molleson (1878-9) 4 App Cas 801 (HLSc), but that would have to mean that the fresh evidence ‘entirely changed the aspect of the case and could not by reasonable diligence have been obtained before’ (Phosphate Sewage at p.814). An attempt in Kamoka v The Security Service [2017] EWCA Civ 1665 to argue for a more benign approach to fresh evidence was unsuccessful – see the judgment of Flaux LJ at [53]-[52].

In the present case, Mr Hudson argued, the testimony which the Claimant himself could have given to the ICT was not fresh evidence by this standard since the Claimant could have given that evidence at his trial.

Although, the prospect of abuse of process is not limited to cases where the earlier decision was of a court of criminal jurisdiction (and Lord Diplock relied on two cases where the earlier decision had been of a court exercising civil jurisdiction – see Reichel v Magrath (1889) 14 App Cas 665 and Stephenson v Garnett [1898] 1 QB 677), Mr Hudson submitted that the abuse is particularly acute where the first case was criminal. As Lord Hoffman said in Arthur JS Hall v Symons (at p.702B),

Similarly, in Kamoka v The Security Service [2017] EWCA Civ 1665 Flaux LJ said at [48],

Mr Hudson submitted that the twin but independent foundations for the principle were: (a) the risk that the administration of justice would be brought into disrepute; and (b) that it would be unfair to the Defendant.

Mr Hudson submitted that the present proceedings would be an abuse, even if all that the Claimant said about the ICT proceedings was correct. In other words, the Defendant’s strike out did not depend on a finding that the ICT proceedings had been fair and impartial. The Secretary of State did not advance a positive case that they were unfair or partial but she did submit that the proceedings would be an abuse of the process of this court even if all that the Defendant said about them was correct.

As I have said, Mr Hudson relies on both of the twin foundations for the Hunter principle: unfairness to the Defendant; and affront to justice.

As for unfairness, Mr Hudson observes that it is now 50 years since Bangladesh’s war of independence and the murders of the 18 intellectuals. In Smith v Linskills under the unfairness of trying the case, the court had said (at p.773),

Mr Hudson also argued that it would be an affront to justice if the Claimant could, in these proceedings, argue that his conviction was wrong. His complaint about the fairness of the trial should properly be (or should have been) argued on appeal in Bangladesh.

Although this conviction had been in a foreign country, there were two decisions where the Hunter principle had been relied on nevertheless. These were El-Diwany v Hansen and Sorte, El Diwaney v The Ministry of Justice and the Police Norway [2011] EWHC 2077 (QB) and King v Grundon [2012] EWHC 2719 (QB). Both were decisions of Sharp J.

In the first (‘El Diwany’) the Claimant brought two proceedings for libel in England over allegations that he had harassed a Ms Schone in Norway. This was despite the fact that Mr El Diwany had twice been convicted in Norway of the harassment of Ms Schone in Norway. Mr El Diwany had also brought civil proceedings in Norway against Ms Schone. They had been unsuccessful and his appeals to the Norwegian Supreme Court and the European Court of Human rights had been unsuccessful as well.

The Defendants made a number of applications. These included that the claims should be struck out as an abuse of process. Sharp J. accepted that the claims were abusive and she struck them out – see [64]-[74]. She acknowledged that the Norwegian convictions were not conclusive evidence that the Claimant had harassed Ms Schone since they had not been convictions of a UK court and Civil Evidence Act 1968 s.13 did not therefore apply. However, he had had an opportunity to contest the issues on the merits and the court was entitled to have regard to them, particularly in light of admissions by the Claimant of his guilt.

King v Grundon (‘King’) was also a libel claim by an English barrister who had been convicted in New Zealand of conspiracy to unlawfully detain a person without his consent and possession of a pistol. Both related to a plot to kidnap a businessman and hold him in a box buried in the bush. His appeal against conviction and sentence were dismissed by the New Zealand Court of Appeal and he was refused permission to appeal to the Privy Council. He was subsequently deported from New Zealand. The Claimant was then disbarred by his Inn. The Defendant applied to strike out the claim. He argued that the claim was an example of Jameel abuse (on which Mr Hudson also relies - see below). But in considering that claim, Sharp J. said (at [38],

Mr Dean for the Claimant argues that it would be wrong to strike the claim out. The Commission’s report was significant because it added the imprimatur of the UK government to the conviction. Tipples J. had found that the words complained of meant that the Claimant had committed war crimes and crimes against humanity: they were in other words Chase level 1 meanings. Furthermore, unlike many of the other reports of the ICT conviction, it was not accompanied by any summary of the Claimant’s complaints about the process which had been adopted or that he could only have attended the trial if he had risked the death penalty. By Article 6(1) of the ECHR, the Claimant had the right to a determination of his civil rights and the Defendant had not shown good reason why he should be deprived of that right. That was of particular significance where the Claimant was seeking to vindicate another of his Convention rights viz his right to reputation which was part of Article 8 ECHR. A similar principle could be seen in the common law expressed in the general rule that where there was a wrong, there should be a remedy – see, for instance, Day v Womble Bond Dickinson [2020] EWCA Civ 447, [2020] PNLR 19 at [25].

El Diwany and King were the only cases where the Hunter principle had been applied to foreign convictions and both were different on their facts. In El Diwany the Claimant had admitted harassing Ms Schone. In addition, there were other hurdles which the Claimant could not overcome: thus, the claim in slander could only be brought in Norway as a result of the Lugano Convention; the claim was also out of time and there was no basis to extend the limitation period. Further, there was no sustainable case that any republication of the oral statements by the press agency had taken place in the U.K. within the limitation period. Mr Dean also drew attention to the fact that Mr El Diwany had been an English solicitor, but he had been struck off by the Solicitors Disciplinary Tribunal in 2019. That decision arose out of Mr El Diwany’s Norwegian convictions. In the regulation of solicitors, there is no equivalent restriction on the admissibility of foreign convictions comparable to Civil Evidence Act 1968 ss.11 and 13. Mr El Diwany appealed to the High Court, but his appeal was dismissed by Saini J. (see Farid El Diwany v Solicitors Regulation Authority [2021] EWHC 275 (Admin). Part of Mr El Diwany’s grounds of appeal was that it had been unfair for the SDT to rely on the Norwegian convictions. As to this, Saini J. said,

In this case, Mr Dean observed, Bangladesh is not a party to the ECHR.

As for King, Mr Dean submitted, that case was regarded as an abuse on Jameel grounds rather than on the grounds that there would be a Hunter abuse of process.

Mr Dean argued that there could be no question of the administration of justice being brought into disrepute if the present claim continued since two different legal systems were in play: it was Bangladesh where the Claimant had been convicted; it was in the U.K. that he sought to vindicate his reputation.

Mr Dean submitted that the ‘unfairness’ referred to in Hunter was being vexed twice by the same litigation. But that had no application in the present circumstances. It was that principle which underlay the confinement of Civil Evidence Act 1968 ss.11 and 13 to convictions in an English court. The Defendant’s reliance on the length of time since the murders of the intellectuals was nothing to the point: many allegations of sexual abuse related to events which took place many years previously and yet the courts have regularly said that they can be fairly tried. Similarly, Mr Hudson’s reliance on the first language of many of those involved was unimportant: English courts frequently tried cases where witnesses were giving evidence which had to be translated. As Lord Hoffman said in Arthur JS Hall v Symons (at p.700G),

Tugendhat J. had addressed a similar issue in Powell v Baldaz [2003] EWHC 2160 (QB) when he said

Likewise, it was only if the proceedings were in the same court system that there would be an affront to justice for the same matter to be litigated twice. That was implicit in cases such as Reichel v Magrath (see the speech of Lord Halsbury L.C. at p.668)

Mr Hudson had accepted that the Defendant could not rely on ss.11 or 13 of Civil Evidence Act 1968. Yet Parliament had had the opportunity to amend that statute on numerous occasions and had not done so. By Defamation Act 1996 s. 14 absolute privilege for contemporaneous reports had been extended from UK courts to the European Court of Justice and the European Court of Human Rights and to any criminal tribunal established by the United Nations or an international agreement to which the UK was a party (as already noted, The ICT is a domestic court of Bangladesh). Then by Defamation Act 2013 s. 7 absolute privilege was further extended to any court of competent jurisdiction. Mr Dean submitted that nothing had been done to alter the Civil Evidence Act 1968 when the Defamation Act 1996 or the Defamation Act 2013 was passed. Neither the Defamation Act 1996 nor the Defamation Act 2013 had taken the opportunity to amend ss.11 or 13 of Civil Evidence Act 1968, indeed the Defamation Act 1996 had narrowed s.13 so that a previous conviction, instead of being conclusive evidence against any party was thereafter only conclusive evidence against a plaintiff (see Defamation Act 1996 s.12(1)).

Mr Dean submitted that the proposition for which he was contending – that there can be no abuse of process if the earlier decision was of a foreign court – was supported by the decision of Flaux J. in Standard Chartered Bank (Hong Kong) Ltd v Independent Power Tanzania Ltd. [2015] EWHC 1640 (Comm), [2016] 1 All ER (Comm) 233. [‘Standard Chartered’]. The facts of the case were complex, as was the procedural history. One issue between the parties was whether the litigation between them should take place in England or Tanzania. The Defendants argued for Tanzania: the Claimants contended for England. One argument raised by the Defendants was that Standard Chartered Bank (the parent company of the Claimants) had, in related proceedings, in New York argued that Tanzania was the appropriate forum. In the English proceedings, the Defendants argued (inter alia) that it would be an abuse of process for the Claimants to argue now that England was a more appropriate forum.

In the course of his judgment, Flaux J. said the following,

The power of the court to strike out proceedings as an abuse of process has developed since 1967.

The ‘practical reasons’ which deterred the Committee from extending its recommendations to foreign convictions now look somewhat dated. Thus, judgments are now regularly made as to the standards of criminal justice in other countries for the purpose of extradition among other reasons and for this purpose evidence is regularly given in English proceedings. So, it is no longer regarded as ‘invidious to draw distinctions between one country and another.’

Since neither Civil Evidence Act 1968 s.11 nor s.13 apply to foreign convictions, the consequence is that the Secretary of State would have to prove de novo that the Claimant was guilty of the murders of the 18 intellectuals, for the purpose of the libel claim. Although the burden of proof would be reversed for the data protection claim, that could still leave the Defendant exposed to an adverse judgment on the claim in libel. Mr Hudson described that as an afront to justice and manifestly unfair. I agree.

The conclusion to which I have come implies nothing about the merits of the Claimant’s claim that the proceedings in Bangladesh were grossly unfair to him. As Mr Hudson submitted, the Defendant’s position is that the present claims are an abuse of process, even if all of the Claimant’s complaints were justified and he was convicted after a gross miscarriage of justice. I accept Mr Hudson’s submission that the proper course for the Claimant, if it is important to him to challenge the conviction is, or was, to appeal within the Bangladeshi criminal process. It may be that any opportunity he had to do this is now past, but that is not material to whether the present proceedings are an impermissible method of collateral attack on the conviction, which in my view, they are.

I recognise that the Claimant was faced with a dilemma when he learned that he was to be prosecuted for war crimes before the ICT: he could surrender voluntarily and take his chances with the fairness of the ICT’s procedures and the prospect of being sentenced to death if convicted (as apparently, the ICT had already done in January 2013) or he could do what he did and let the ICT procedures take their course without his attendance. However, it seems to me that he is trying to have the best of both worlds, by remaining outside Bangladesh, but challenging his conviction. In my view, that course is not open to him. The proper forum to decide whether the trial was so tainted by unfairness that the conviction cannot stand is the appellate court in Bangladesh. Had the Claimant pursued that course and succeeded in having the conviction quashed, the merits of the Defendant’s argument would have been entirely different.

I also agree with Mr Hudson that, if this claim was to continue, it would be unfair to the Secretary of State. Over 50 years have passed since Bangladesh gained its independence and over 50 years since the intellectuals were murdered. Inevitably over that time, witnesses must have died, and documents been lost. Yet, as I have already said, not only would the conviction not be conclusive evidence of the Claimant’s guilt, but his conviction would not even be admissible in evidence on the issue of his guilt. Hollington v Hewthorn would preclude both. The Defendant would have some comfort that, as a practical matter, the Claimant would have to give evidence in support of his data protection claim, but that does not eliminate the unfairness to the Defendant. I agree with Mr Dean that the need to translate testimony or documents is not relevant: that is a daily fact of life in numerous courts and tribunals in the U.K., but the length of time since the events in question is another matter. Of course, there are cases where criminal proceedings are brought in respect of events that happened very long ago, but, even then, the courts are alive to the possibility of prejudice through lapse of time. In my view the period in this case is so great that I can safely assume that there will be such prejudice without specific evidence that that is the case.

I also agree with Mr Hudson that unfairness to the opposing party is a separate and independent ground for finding that a claim is abusive. It is not the case that all considerations collapse into bringing the administration of justice into disrepute.

Nor is it the case that abuse only arises where the parties are the same. The ability of the courts to strike out a pleading as an abuse of process is only needed where the principle of res judicata is not available, precisely because the parties are not the same (or are not privy to the earlier litigation).

I accept that the courts should be careful before striking out a claim as abusive. That principle precedes the ECHR and Article 6(1) but has its origins in common law. As Lord Bingham said in Johnson v Gore Wood and Co (a firm) [2002] 2 AC 1 at p.22,

As Mr Dean submitted, the starting point should be that where there is a legal wrong, there should be a remedy. Nonetheless, some sense of proportion is important here. The online Report of the Commission was amended as a result of pre-action correspondence. The claim form was issued after that correspondence. Yet it was only the original online version to which the claim took objection; it was not alleged that the amended on-line version was either defamatory of the Claimant or infringed his rights under the GDPR. No doubt this was for the very good reason that the only passage which identified the Claimant was footnote 158 and that footnote was removed by the change. The passage in the text to which that footnote referred was also deleted. No doubt as well, the change had the consequence that the Claimant does not seek an injunction by way of relief in these proceedings. The consequence is that, even if the Claimant is successful, the earlier publicity (including his entry on Wikipedia) can remain. The publicity which followed the Claimant’s conviction and sentence can continue unaffected (and others would have a qualified privilege defence to any claim for libel). The original version of the report was download 4,982 times but, as Mr Hudson submitted, there can be no necessary inference that those persons read the very limited passages which constitute the words complained of – see for instance El Diwany at [57]. Only a handful of copies of the hard copy version of the original Report were distibuted. Mr Dean submits that it is a very serious thing for a government department to label someone a war criminal. So it would be, but the features to which I have drawn attention mean that other factors have to be taken into account in weighing the importance of the Claimant being free to try to vindicate his reputation.

Mr Dean emphasised the presumption of innocence. That principle is, of course, a cornerstone of our criminal jurisprudence, but the principle applies until conviction and the Claimant has been convicted by the ICT. At a trial of the present claim, as I have said, the conviction would not be admissible evidence of the Claimant’s guilt, but I have to decide whether it would be an abuse of process for the claim to continue.

Since I would anyway strike out the claim for Hunter abuse, this aspect of the Defendant’s application is moot, but I will consider it briefly.

The Defendant submits that it would be open to her to refer in mitigation of damage to the Claimant’s reputation that he had been convicted of the murders of the 18 intellectuals and he therefore had no reputation in this particular area worthy of vindication. She also argues that litigating whether the Claimant did indeed murder the 18 intellectuals would be a long and costly process. Ms Omeni estimates the cost at about £750,000 - £1,000,000, if not more.

In this respect, Mr Hudson relies also on Goody v Odhams Press Ltd. [1967] 1 QB 333 CA. In that case the Plaintiff had been convicted of the Great Train Robbery. He brought an action for libel over an article in ‘The People’ which said that he had committed that offence. The Defendants at first sought to plead justification. However, the rule in Hollington v Hewthorn stood in their way (this was before the Civil Evidence Act 1968). Instead, they sought to amend their defence to plead in mitigation of damages that the Plaintiff had a reputation for theft and violence and sought to rely on other previous convictions of his from 1948-1964. The Court of Appeal allowed them to do so, despite the objection of the Plaintiff that instances of previous bad reputation could not be relied upon – see Scott v Sampson (1882) 8 QBD 491 DC and Plato Films Ltd v Speidel [1961] AC 1090.

Mr Hudson argues that the conviction of the Claimant by the ICT will likewise be admissible, but, if that is so, it is plain that the Claimant has no reputation to vindicate.

Mr Dean responds that the ICT conviction could not be relied upon in mitigation of damage. Hollington v Hewthorn would also be an obstacle to deploying the conviction in this manner and, in this context as well, the Defendant cannot rely on Civil Evidence Act 1968 ss.11 and 13 because the conviction was by a foreign court. The Commission’s Report (in its original form) had not been accompanied by the Claimant’s denial of responsibility for the murders or anything of his complaints of the unfairness of the ICT’s procedures. The number of hard copies of the Report had been limited, but, Mr Dean reminded me, damage to reputation was not simply a ‘numbers game’ – see Ames v Spamhaus Project Ltd [2015] EWHC 127 (QB), [2015] 1 WLR 3409 at [33]-[34], which also emphasised that it was an exceptional course to strike out a viable claim on proportionality grounds. He stressed as well that the litigation was at an early stage, and, in advance of a properly pleaded defence, it was premature to estimate the costs of the claim, as Nicklin J. had warned in Ward v Associated Newspapers Ltd. [2020] EWHC 2797 (QB) at [62]-[64].

I recognise the points which Mr Dean makes, and, in my judgment, this is not an appropriate occasion for me to rule on whether the ICT conviction would be admissible in evidence of mitigation of damage. Nonetheless, I accept Mr Hudson’s broad submission as to the likely cost of the proceedings. They would inevitably be lengthy and costly. While it is a serious matter to deprive a litigant of the opportunity of the chance of vindicating his reputation, the Jameel jurisdiction exists and, in my judgment, this would, if necessary, have been an appropriate case in which to exercise it.

Mr Hudson agreed that it is unnecessary to consider this aspect of the Defendant’s application notice, the claim being in any event struck out.

The claim will be struck out and judgment entered for the Defendant.