Civil courts not open to attempts to re-run criminal trials
27 June 2013
Salahuddin Amin v Director General of MI5, Chief of MI6, the FCO, the Home Office and the Attorney General- [2013] EWHC 1579 (QB) – read judgment
Do not be misled by the impressive cast list of defendants in this case. It means simply that the claimant was attempting to attack the integrity of his criminal conviction via the civil courts.
He framed his case against the defendants principally in vicarious liability for the alleged torts of individual SS or SIS officers committed in the performance of their duties, when he was arrested and detained in Pakistan and the UK. In a short judgment, Irwin J set out his reasons for allowing the Particulars of Claim to be struck out as an abuse of the process of court.
The somewhat complicated procedural history of this case can be briefly summarised. In 2008 the claimant was convicted of conspiracy to cause explosions likely to endanger life. His appeal failed. In 2009 he commenced these proceedings, claiming that the mistreatment he received at the hands of the Pakistani authorities and whilst in detention in the UK had rendered the evidence so unreliable that it should not have been admitted at the original trial.
The claimant maintained that the defendants were vicariously liable for their officers’ false imprisonment, assault and battery, misfeasance in public office and negligence. He also argued for liability under ss. 6 and 7 of the Human Rights Act 1998 for violation of his rights under Articles 3 and 5 of the European Convention on Human Rights. It was further claimed that the liability of each defendant arose “by way of complicity in the treatment of the claimants by agents of the Pakistan Government while he was in their custody”. The claimants alleged that the defendants “procured and requested the Pakistani authorities” to detain the claimant. It was further said that the relevant officers were complicit in the interrogation process because they provided information and suggested questions to the Pakistani agents, participating in some of the interviews of the claimant while in Pakistani custody. They emphasised the fundamental nature of the allegation of complicity to the case and alleged a motivation for this conduct:
In relation to each and every act of complicity set out above, the said officers made a specific calculation that they were prepared to act without regard to legality, in order to gain benefit from the product thereof, by way of information or the presence of the claimant in the UK
In both the language and the logic which informed and structured the claim, the whole thing hinged on the allegation of complicity between British officers and Pakistani officers. As Irwin J observes, without that complicity, the various torts or breaches of duty could not be established.
The defendants for their part sought to strike out the statement of case pursuant to CPR Part 3.4(2) (b) on the basis that the statement of case was an abuse of the Court’s process. The central plank of the attack was that the claim represents a collateral attack on a final decision adverse to the claimant, made by a court of competent jurisdiction in the criminal proceedings against him, in breach of the rule against collateral attack established in Hunter v Chief Constable of the West Midlands Police .
The judge agreed. The allegations made by the claimant in these proceedings were, for all purposes, identical to those advanced before the judge. It seemed to Irwin J to be “quite unrealistic to suggest that the claim does not involve an attempt to displace that part of the judge’s conclusions.”
The trial judge had heard all the relevant evidence on complicity, and expressed himself on the issue in terms which left “no room for doubt”. Nor was this a case of the UK’s failure to investigate allegations of conduct in breach of Article 3. The claimant had been able to raise his concerns and make his case on the relevant allegations, in the course of the criminal proceedings. The UK authorities had not been silent in the face of the allegations, but met them in evidence. There had been no allegation that the UK failed in its obligations to investigate the claimant’s allegations. The court could and did investigate the claimant’s allegations fully.
Nor did it arise from the Strasbourg Court’s decision in El-Masri v Macedonia, App 396330/09, that the obligation to investigate extends to a guarantee of a second attempt to establish such a case, where it has once been rejected by a court of competent jurisdiction, in the absence of significant fresh evidence, calling for a re-examination. The essence of the civil case which the claimant sought to bring was the very same complicity with mistreatment which he said should have led to the criminal trial being stopped.
In my judgment, it would be astonishing if, through the vehicle of a civil claim, an effective collateral challenge could be mounted to the reasoned rejection of this type of defence, particularly when that rejection has been confirmed in the Court of Appeal.
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30 June 2013
Dear Ms English
I think that there is something to be said for the Judge’s determination not to undermine a criminal trial, whether it be undermining a conviction or acquittal UNLESS there is MAJOR new evidence that would undermine the original decision, whether that be conviction or acquittal.
After all, we have the Appeals procedure in place for criminal trials and if there has been any abuse of process and procedure there can be automatic grounds for appeal.
And if it is felt that a sentencing has been too lenient, then an appeal can be made to the Minister, as has happened very recently. And judges can be advised about their conduct.
All that being said, I believe that we need to streamline the courts so that instead of having so many court systems there should be but one court system, and there should be a judge and jury for everyone. And that Human Rights should be the basis for ALL legislation ab initio.
Go back to Robert Peel’s principles and abolish much of the current legislation as being too dense and not understood by the man on the Clapham Omnibus, and have the UN Convention on Human Rights as the basis of our Constitution.
Thank you very much for your article, as always.
Rosemary Cantwell
It is more than a little ironic that the case of Hunter should figure so prominently in this case as an argument to block civil process in the interests of justice. As a further reminder of the past, it seems that some of the barristers acting for the Birmingham 6 also appeared in this case. They at least will have long and instructive memories, unlike the High Court. One can appreciate the judicial distaste for an ‘appalling vista’ of endless litigation (per Lord Denning). But surely the events subsequent to Hunter should have instilled greater caution about the Hunter doctrine. When the mood takes it, the state is even willing to fund civil action against those acquitted of criminal charges (as in the Omagh bombings) in order to undermine the acquittals. As for those convicted, given inevitable differences in the ways in which a civil case will be argued, presented and subjected to variant rules of evidence and procedure, the courts should be more willing than concluded in this case to entertain civil litigation. In any event in this case, the prosecution was at pains to assert (and the trial court accepted) that the Pakistani events played no part in their evidence and had no impact on the criminal trial. So how would it undermine the conviction now to litigate this wholly discarded and irrelevant evidence in civil proceedings even if the outcome was favourable to the claimant? R v Rangzieb Ahmed & Another [2011] EWCA Crim 184 is indeed of relevance here (compare para.68. 69), and there is a difference between a claim that torture treatment had an impact on the evidence in the criminal trial (through direct input or through collusion) and a claim that torture has occurred but cannot be treated as undermining the criminal conviction because it was wholly irrelevant to the evidence produced in court and the good faith actions of UK officers. Aside from the disconnect between the criminal and civil litigation in this case, surely there should also be a priority in public policy for the eradication of torture and abusive behaviour by officials – both national and international law require nothing less. In the absence of any official inclination to face up to the allegations in this case (with the Gibson inquiry on hold if not dead in the water), civil litigation is one possible way forward. Even the state should feel comfortable with that prospect now that it has rearranged the rules of the game through the Justice and Security Act 2013.
Professor Walker – I had some of the same thoughts, although there is a significant difference between undermining an acquittal and undermining a conviction.
I think this quite harsh and would make an interesting appeal, particularly to the Supreme Court