Court refuses to compel evidence on unlawful rendition in foreign proceedings

Omar & Ors, R (on the application of) v Secretary of State for Foreign & Commonwealth Affairs [2012] EWHC 1737 (Admin) (26 June 2012) – read judgment

The Divisional Court has ruled that common law principles cannot be used to obtain evidence from the Foreign Secretary for use in a foreign court. 

Angus McCullough QC of 1 Crown Office Row appeared as a special advocate in the closed proceedings in this case. He is not the author of this post.

“Norwich Pharmacal” orders are sometimes granted to obtain information from third parties to help the court establish whether unlawful conduct has taken place. A court can in such a case compel the third party to assist the person suffering damage by giving them that information. In the cases of Binyan Mohamad and Shakar Aamer the courts extended the application of these orders to foreign cases. Now it appears that both may have been wrongly decided.

Background facts

Following the bomb attacks in Kampala, Uganda in July 2010 the Ugandan authorities asked for assistance from neighbouring and overseas police forces, including New Scotland Yard, the FBI and Interpol. The claimants were all at various times detained in Kenya and transferred to the Ugandan authorities.  In none of these cases was there any extradition or other judicial process in relation to the transfers.Each of the claimants were charged in Uganda on 30 November 2010 with murder and other offences arising out of the Kampala bombing.

The claimants alleged that they were subjected to ill-treatment of a brutal nature which amounted to torture or cruel, degrading and inhuman treatment at the hands of intelligence and/or security agents of Kenya, Tanzania, Uganda, the USA and the UK. They brought proceedings alleging unlawful rendition to Uganda. Their petition, pending before the Ugandan Constitutional Court, contended that the illegal rendition makes the proceedings against them unlawful and an abuse of process on principles similar to those set out in the judgments in R v Horseferry Road Magistrates’ Court ex parte Bennett [1994] 1 AC 42 and R v Mullen [2000] QB 520.

To support this claim they sought information and evidence from the defendant (the Foreign Secretary) on Norwich Pharmacal principles in relation to his alleged rendition and his alleged ill-treatment. The claimants contended that the British security services must have been well aware of the risks of the Kenyan authorities rendering suspects, as those authorities had done so before.

Because of the alleged presence of UK intelligence officers in Kenya and Uganda it was accepted that the necessary enquiry which would enable the claimants to obtain Norwich Pharmacal relief would involve issues that touched upon the national security of the United Kingdom. Therefore part of the proceedings necessary to protect the national security interests of the United Kingdom were subject to closed proceedings. In accordance with the discharge of the duty of candour expected of a defendant in public law proceedings (see e.g. R (Quark Fishing Ltd) v Secretary of State for Foreign and Commonwealth Affairs [2002] EWCA Civ 1490 per Laws LJ at [50]), the Foreign Secretary provided disclosure in the closed proceedings, which remains a closed annexe for the purposes of this open judgment. In the open hearing the Foreign Secretary adopted the position that he would neither confirm nor deny the presence of British security personnel in Uganda or Kenya.

Norwich Pharmacal relief refused: the court’s reasoning

The main obstacle facing the claimants was the statutory regime dealing with requests for evidence from foreign courts in  civil or criminal  proceedings. The Foreign Secretary therefore argued that as Parliament had legislated in relation to the provision of assistance to overseas states in connection with legal proceedings, the courts should be respectful of the statutory regime and should not permit the statutory regime to be bypassed through the use of the Norwich Pharmacal procedure.  In the alternative  he contended that no case has been made out by the claimants that there is any activity for which he is responsible that amounted to being mixed up in the alleged wrongdoing.

It was common ground between the parties that the proceedings should be characterised as criminal. Under the relevant statute, there is an exemption for the provision of information if it would prejudice the security of the United Kingdom. What the claimants were seeking was, in effect,  a statement from the Foreign Secretary that the UK government was in possession of information which demonstrates that the claimants were rendered from Kenya to Uganda.  Under the statutory regime the compulsion of evidence from a person in his capacity as an officer or servant of the Crown is also exempted, which is why the claimants sought to rely on Norwich Pharmacal principles instead.

After a detailed survey of the history of the legislation relating to the provision and obtaining of evidence for foreign proceedings, the court concluded that the courts have no jurisdiction outside the statutes to use their processes  for the purpose of providing evidence for proceedings in foreign states:

where proceedings, such as the present proceedings, are brought to obtain evidence, the court as a matter of principle ought to decline to make orders for the provision of evidence, as distinct from information, for use in overseas proceedings. It cannot permit the statutory regime, with the safeguards to be circumvented.

…the statutory regime is the only means by which evidence for use in foreign proceedings may be obtained and, save in Binyam Mohamed (No 1) and Shaker Aamer, where the points was not taken,  Norwich Pharmacal proceedings have never been used to obtain evidence for use in proceedings. The jurisdiction of the court is confined to the statutory regime.

Furthermore, their claim could not succeed under the legislation either, since the request for information emanated from the claimants, not the Constitutional Court of Uganda. To permit these proceedings to continue without a request from the Constitutional Court would evade a principal requirement of the statutory regime.  It followed, therefore, that it was not permissible to seek evidence through Norwich Pharmacal proceedings, if such proceedings are in principle permissible, without complying with that requirement.

Even if the claimants had been entitled to pursue Norwich Pharmacal proceedings to obtain evidence, and the exemptions in the statutory scheme did not operate as a bar, they would not succeed for a number of reasons, chief of which were comity and harmony between jurisdictions, and the requirement of necessity for Norwich Pharmacal relief to apply.

The Ugandan Court was seized of the case and it would no doubt expect the executive branch of the Ugandan state to supply it with documentation if it was so ordered. The claimants contended that if they had made an application for specific disclosure of evidence from the Ugandan government that they had not been unlawfully transferred from Kenya, there was a “grave” risk that the Ugandan government would produce documents that had been fabricated to support that case.  But this was not a matter for the English court to determine. If there was no such documentation or the claimants alleged it would be fabricated, then it must be for the Ugandan court to determine whether it should allow the claimants to seek evidence from the Foreign Secretary to be used in the proceedings to show that statements so far made on behalf of the Government of Uganda were untrue. The test of necessity for the grant of a Norwich Pharmacal order could not be met until the claimants have applied for disclosure in Uganda in relation to their arrest:

We cannot assume at this time that the courts of a friendly foreign state will fail properly to consider an application for disclosure. Tactical reasons, however well intentioned, cannot in the circumstances of a case such as this override the need to apply in Uganda first.

There are a number of preconditions to the granting of a Norwich Pharmacal order:

  • a reasonable basis to allege that a wrong has actually been committed
  • the disclosure of documents or information from the third party is needed to enable action against the wrongdoer
  • the respondent is not a “mere witness”, but is sufficiently mixed up in the wrongdoing so as to have facilitated it, even if innocently, and therefore be in a position to provide the information
  • the order is necessary in the interests of justice on the facts of the case.

The court was not, in the end, satisfied that these conditions had been fulfilled, even had it not decided that the claimants were excluded from Norwich Pharmacal relief ab initio- in their judgment,

despite the gravity of the alleged wrongdoing and the fact that the claimants are at risk of the death penalty, we should exercise our discretion and refuse relief.

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