List of potential cases that could be affected
What do we know?
The Green Paper estimates that sensitive information is central to 27 current cases (Appendix J, para 11). What are these cases? What do we know about them?
- The Green Paper does not identify the 27 cases. It does say they "exclude a significant number of appeals against executive actions". We presume this means judicial review proceedings, SIAC related hearings and TPIM related proceedings.
- The Independent Reviewer of Terrorism Legislation (David Anderson QC) and the parliamentary Joint Committee on Human Rights (JCHR) have both asked the Government for information. It appears that neither has been told what the cases are.
- The Government initially told the Independent Reviewer that the question of how many of the 27 could only be resolved fairly by closed material procedures "could not be discussed." At the JCHR oral evidence session on 6 March 2012, the Government indicated that some more information had recently been supplied to the Independent Reviewer. The Government told the JCHR that it would be "inappropriate to comment on current court cases."
- Non-government parties to cases do not appear to have made public claims they would be affected (unless this is expressly indicated in the list).
- In an answer to a Parliamentary question by Frank Dobson on 25 April 2012, Kenneth Clarke indicates that 24 out of the 27 cases "concern material related to national security."
- NEW - On 19 June 2012, during the Justice and Security Bill's Second Reading in the House of Lords, and in answer to a question by Lord Morris, Lord Wallace stated:
"To give an estimate of the number of cases where sensitive information was central to the case, based on current cases handled by the Treasury Solicitor, there are 29 live cases but they exclude a number of appeals against executive actions that are currently stayed. There are 15 civil damages claims; three asset-freeze judicial reviews; seven exclusion judicial reviews; four lead naturalisation judicial reviews; and around 60 further naturalisation judicial reviews stayed behind these cases."
- NEW - A Government overview of the Justice and Security Bill, published on the Government Whip's Office website gives the following break down:
"The figure of '27 cases' referred to in the Green Paper was to give an estimate of the number of cases where sensitive information was central to the case based on the list of current cases handled by the Treasury Solicitor at the time. The Green Paper indicated that this figure excluded a significant number of appeals against executive actions. The figure consisted of:
- 8 civil damages claims
- 3 asset freeze judicial reviews
- 5 exclusion judicial reviews
- 11 lead naturalisation judicial reviews
The Norwich Pharmacal cases were not counted as part of this figure. At the time of publication of the Green Paper, there had been 'no less than 7 Norwich Pharmacal cases to date'. The 16 Guantanamo cases which were settled were not included in the 27."
Our aim on this page is to compile a list of actual or potential civil cases where sensitive evidence is likely to be central to the resolution of a dispute and which are likely to be affected by the proposals in the Green Paper. We hope this will help inform debates on the possible effects of the Green Paper's proposals.
The list is necessarily speculative. Unless expressly indicated, it is not known whether proceedings have actually been issued in any of the following cases, or indeed whether any proceedings will ever arise out of them. Proceedings may have been issued but then stayed while criminal or other inquiries are on-going. Depending on the precise way in which the Government determines what proceedings may be affected, the number may be greater than 27. Some of the cases mentioned below may also overlap, in part because some sources refer to potential claimants anonymously.
We would welcome contributions or comments which may help make this list more complete and accurate.
The list of possible current cases
NEW - Anonymous
On 24 June 2012, The Mail on Sunday's David Rose reported that it could reveal new claims of abuse carried out by British soldiers at a secret network of illegal prisons in the Iraqi desert. One civilian victim is alleged to have died after being assaulted on an RAF helicopter, while others were hooded, stripped and beaten at illegal 'black ops jails'. The Mail on Sunday reports that the whereabouts of 64 Iraqi men who were taken to another 'black site prison' remain unknown. In relation to these allegations, Lieutenant Colonel Nicholas Mercer, the chief British Army lawyer in Iraq during the 2003 invasion is reported by the Mail to have stated that "These are alleged war crimes, but what Britain did may never be disclosed. Indeed, the [Justice and Security] Bill may be specifically designed to prevent such allegations coming to light. Phil Shiner of Public Interest Lawyers is said to be bringing the cases which apparently involve 3 anonymous potential claimants. It is unclear whether these cases are related to any of those under investigation by the suspended IHAT team.
Two separate legal proceedings. It has been reported in the Guardian that Mr Mohammed is seeking compensation after allegedly being mistreated whilst being detained by British troops in Afghanistan. He was subsequently handed over to the Afghan intelligence services who he says tortured him. Mr Mohammed's lawyers are also seeking a judicial review of the decision to transfer him.
A & A v Security Services & Others
The claimants' lawyers, Bhatt Murphy Solicitors, describe this case as involving "claims against the Security Services, the Foreign Office and the Home Office in relation to allegations of complicity in torture inflicted on British nationals detained in the custody of the Inter Services Intelligence Agency in Pakistan."
A British resident, married to a British national and with four British children living in London. He was arrested in Afghanistan in 2001. He is currently still being held in Guantanamo Bay. Further information: see the Reprieve website.
Yanus Rahmatullah was captured by UK forces in Iraq in February 2004. He was handed to US forces who have since held him at Bagram Airbase. On 14 December 2011, the Court of Appeal ordered the Government to ask the US to return him to UK custody, finding that the UK remained responsible for Mr Rahmatullah's well-being. A request was made but the US refused to return him. On 23 February 2012 the Court of Appeal decided it could do no more at that point. The issue of whether the Government should be doing more to secure Mr Rahmatullah's release was considered by the Supreme Court on 2 and 3 July 2012. Judgment has been deferred. Further information: see the Reprieve web site.
A police investigation looked into potential complicity on the part of MI6 officers in mistreatment of a detainee at the US prison in Bargram. In the end, the CPS and the Metropolitan Police found there was insufficient evidence to press charges against any officers. However, civil proceedings relating to these allegations may have been or may still be issued (these may also potentially include actions surrounding the treatment of Yanis Rahmatullah above).
Sami al-Saadi and Abdul Hakim Belhadj
Libyan dissidents under Muammar Gaddafi's regime who allege UK involvement in their kidnap and rendition to Libya where they were detained and say they were tortured (see final part of DPP and Met Police statement). It has been reported that Saadi's wife and four children were also allegedly rendered and imprisoned, and Belhadj's wife was allegedly abducted along with Balhadj. Civil proceedings were commenced in 2011, and proceedings against the former Foreign Secretary Jack Straw and the former director of counter-terrorism at MI6, Sir Mark Allen were formally issued in the High Court on 28 June 2012.
Noor Khan v Secretary of State for Foreign and Commonwealth Affairs
Proceedings brought by Leigh Day & Co Solicitors on behalf of Noor Khan, whose father was killed in a drone strike in North West Pakistan. The case alleges that British intelligence was unlawfully provided to be used by US agencies in the direction of drone attacks and "targetted killings".
Omar Awadh Omar
A Kenyan who alleges that he was illegally rendered to Uganda from Kenya in 2010. Whilst in detention in Uganda, he alleges he was interrogated and mistreated by British and US security services. Questions were twice asked in Parliament on Mr Omar's treatment on 4 May 2011 and on 21 June 2011. In December of last year, the Court of Appeal ruled that Mr Omar should be granted permission to apply for Norwich Pharmacal disclosure in relation to British security services involvement in his questioning. These judicial review proceedings are expected to take place later this year.
Habib Suleiman Njoroge and Yahya Suleiman Mbuthia
Norwich Pharmacal cases, the applicants seek disclosure of documents from the Sec of State for Foreign & Cth Affairs. Njoroge and Mbuthia want documents relating to alleged ill-treatment whilst in custody in Kenya and Uganda. Mr Njoroge is also seeking documents relating to his alleged rendition from Kenya to Uganda. On 20 March 2012 an application for permission to seek judicial review proceedings was refused on the first matter and granted on the second matter. Importantly, the Court referred to a Special Advocate being appointed "with the consent of the parties" and "on terms we hope can be agreed". The full hearing will be joined to the Omar case (above).
Former brother in law of Omar Khyam (jailed for life for his part in the fertilizer bomb plot). Khan alleges that he was detained and tortured in Egypt after flying there from the UK for a holiday in July 2008. In particular, he has alleged that he was asked about discrepancies between a statement he had given to British police and comments he had made when visiting friends in jail: information which he says indicates British collusion in his mistreatment.
A former civil servant from South Wales who was arrested in Bangladesh after moving there to marry. He has alleged that he was held by the Bangladeshi Directorate General Forces Intelligence (DGFI) and subjected to mental and physical abuse and torture at the behest of British agents who also questioned him during his detention.
Convicted in December 2008 at Manchester Crown Court of being a member of al Qaida and directing a terrorist organisation. He alleges that he was tortured in Pakistan by the Pakistani Inter-Services Intelligence Agency (ISI), with the collusion of MI5 and Greater Manchester police.
Convicted and given a life sentence in 2007 for his part in plotting to bomb targets in the UK. He alleges that he was questioned and tortured in Pakistan by the ISI over a 10 month period. During this time he alleges he was also questioned by MI5 officers.
CB and BP
On 3 April 2012, the Court of Appeal ruled that the Administrative Court must determine the lawfulness of two expired control orders that were imposed on CB and BP in 2010, despite the fact that the control orders were no longer in force. During their submissions, lawyers for CB and BP argued that such a determination was not entirely academic because their clients wished to establish that the orders were void ab initio and potentially seek damages for the period in which they were in force.
Inquiries and potential litigation
The following inquiries could potentially involve sensitive evidence. Within an inquiry, sensitive evidence will be managed under the inquiry's own rules. However, it is possible that the circumstances under inquiry may also give rise to litigation where sensitive evidence may be in issue. These cases could be affected by the Green Paper proposals.
Where potential misconduct by state agents or agencies is an issue in an inquiry or inquest, those affected (or a family member in the case of a death) may take the precaution of issuing civil proceedings early on and then staying them pending the outcome of the inquiry. This ensures that, should they want to pursue a civil claim after the inquiry, they will not be defeated by statutory time limits. Therefore, while the Inquiries listed below are still on-going, it is likely that in some cases associated civil proceedings will also have been issued, and that these may form one of more of the 27 cases mentioned in the Green Paper.
The Inquiry into the shooting of Azelle Rodney is ongoing. If civil proceedings are pursued after the Inquiry, then it seems almost certain that sensitive evidence would be involved because it was sensitive evidence that led to the Inquest into Azelle Rodney's death being abandoned in 2007. If this is one of the 27 cases, it is a very important one because it does not appear to concern national security or terrorism.
At a pre-inquest hearing touching on the death of Mark Duggan, the IPCC alerted the Coroner and other interested persons that it was in possession of "sensitive material" that it was legally unable to provide to the Coroner or other interested persons. The Coroner is reported to have acknowledged that this may mean that the inquest will have to be suspended and an inquiry set up in its place. As in the case of Azelle Rodney, an Inquiry would be able to hold closed hearings to the exclusion of the family of the deceased, the pubic and the press.
The Al Sweady Inquiry
"[A]n inquiry into allegations that Iraqi nationals were detained after a firefight with British soldiers in Iraq in 2004 and unlawfully killed at a British camp, and that others had been mistreated in that camp and later at a detention facility." It is likely that civil proceedings will follow the outcome of this inquiry. Further information: see the Inquiry web site.
The Iraq Historic Allegations Team (and Ali Zaka Mousa)
The IHAT is currently investigating alleged instances of prisoner abuse by British Service Personnel, and deaths in custody in Iraq. These allegations involve over 140 Iraqi civilians. In November 2011, the Court of Appeal held that IHAT was insufficiently independent for the purposes of Article 3 ECHR. It is currently not clear what the status of the IHAT investigations are following this ruling. Nevertheless, any civil proceedings arising out of the circumstances under inquiry could involve "sensitive evidence" and could potentially be impacted by the proposals in the Green Paper.
page last updated 4 July 2012