Omar, R (on the application of) v Secretary of State for Foreign and Commonwealth Affairs  EWCA Civ 118 – read judgment
Angus McCullough QC of 1 Crown Office Row acted as a special advocate in this case. He is not the author of this post.
The contending principles in this case are encapsulated in the question put to the Court of Appeal:
In considering whether to allow an application for evidence in proceedings abroad, is the Court to “fill a justice gap” or “respect a sovereignty limit”?
This was an appeal from a decision by the Divisional Court decision in June last year. My post on that ruling sets out the salient facts. In sum, that court refused the claimants’ application for an order against the secretary of state for material for use in proceedings in Uganda.
The appellants had been prosecuted for involvement in the terrorist bombings in Uganda. They were seeking evidence to back their petition in the Ugandan Constitutional Court that their rendition to the Kenyan authorities made the prosecution unlawful. They believed that the UK security services were in possession of this information and they therefore sought an order based on Norwich Pharmacal principles. This is a common law rule which enables a litigant to obtain information from somebody, who is not a party, that will help him in the primary litigation. Initially, the remedy was sought in cases where the primary litigation was entirely domestic and between private parties. More recently Norwich Pharmacal relief has been allowed where the primary litigation is taking place in a foreign jurisdiction.
The appellants argued that the Binyam Mohamed case was on all fours with their own. The applicant in that case also sought information believed to be in the possession of the UK Security Services which he said would help him establish that the terrorist charges against him had been obtained by torture. The Divisional Court allowed his claim. But in the Binyam case the question whether there was a statutory prohibition against the grant of Norwich Pharmacal relief was not raised as an issue for consideration. When the appellants in this case sought a similar order, the Divisional Court found that the applicable statutory regime prevented it from granting the relief. Even if it had not been prevented by statute from doing so, the Court found that two important conditions for the Norwich Pharmacal remedy remained unfulfilled: the appellants had failed to demonstrate either that the application was necessary or that the secretary of state had facilitated any wrongdoing.
The appellants argued, in essence, that there was a “justice gap” left by the 2003 Act which allowed for the application of Norwich Pharmacal relief. They contended that if they were shut down at this jurisdictional stage, the Court “would be putting at risk of stultification other well-established examples of judicial willingness to assist litigants in foreign proceedings”.
Both the appeal and the Secretary of State’s cross-appeal (see below) were dismissed.
Reasoning behind the judgment
Maurice Kay LJ, giving the lead judgment, agreed with the Divisional Court that the power of the court to grant a Norwich Pharmacal order could not penetrate an area fenced off by statute. The jurisdiction to order persons to provide evidence for use in foreign proceedings had always been exclusively statutory. If the jurisdictional question had been taken by the Secretary of State at the outset, the Divisional Court would have needed to go no further on the merits of the Norwich Pharmacal application. If this point had arisen in Binyam, that case would probably have gone the other way (para 26).
There were important issues of comity to be considered in this case. The appellants had not launched their search for documentation and information in the Ugandan Constitutional Court, which was where the primary litigation was proceeding. They did so for good tactical reasons, but not ones that should be endorsed by an English court. Their Ugandan counsel decided against making an application to the Constitutional Court for disclosure of documents because “there [was] grave risk that the Respondent (i.e. the Ugandan government) [would] produce documents that have been fabricated” , or no documents at all, in either case so as to bolster a false case.
However, even if that risk were to materialise, it would be wrong for this court to assume that the forensic skills of the appellants’ legal representatives and the astuteness of the Constitutional Court would fail to expose it. This flows from the concept of soundly based comity.
There were differences between the Norwich Pharmacal remedy and the regime under the 2003 Crime (International Cooperation) Act. That regime included discretion for the secretary of state, the confinement of requests to foreign courts and prosecuting authorities, and national security and Crown servant exceptions. Parliament could not have intended that the common law remedy should cut across these substantial differences with the statutory scheme. That led to the conclusion that Parliament had not created a parallel procedure but an exclusive one in the area it had addressed. This appeal therefore failed.
The Court dealt separately with the Secretary of State’s cross appeal, which argued that the Divisional Court was wrong in law to require the Secretary of State to provide a PII certificate in relation to the closed summary because the Closed Material Procedure Order amounted to a complete code for dealing with the closed proceedings, including closed judgments. The Court of Appeal did not agree: it could be safely assumed that the Divisional Court took the view that public interest considerations necessitated the added safeguard of a certificate at that point.
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