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-  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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