R (B Mohamed) v Foreign Secretary  EWHC 2048 (Admin) (21 August 2008)
The England and Wales High Court has held that the UK Government has a positive duty to take steps to ensure that a United Kingdom resident about whom the UK Government had exculpatory material had access to that material for the purpose of defending charges under the US Military Commissions Act of 2006.
Binyan Mohamed, a United Kingdom resident (but not a British national) was arrested in Pakistan in 2002 and has been held by the US in Guantanamo bay since September 2004. In August 2007, the UK requested his return from the US. This request was declined.
In May 2008, he was charged with offences for which he could face the death penalty under the US Military Commissions Act of 2006. Mr Mohamed contended that the evidence against him is inadmissible because it was obtained while he was detained for two years, during a period in which he was subjected to torture and cruel, inhuman or degrading treatment by Pakistani and Moroccan authorities, with the connivance of the US Government, as well as to such treatment by the US Government itself.
Mr Mohamed applied to the High Court of England and Wales for an order against the UK Foreign Secretary for the disclosure of information in confidence to his lawyers in the Guantanamo Bay proceedings, on the basis it could support his contention as to the inadmissibility of the evidence against him. The information had been requested, but the Foreign Secretary refused to provide it, stating that he was under no duty to do so, and citing concerns about potential damage to national security.
The Foreign Secretary did identify documents which could be considered exculpatory; informed Mr Mohamed’s lawyers of this; and provided them to the US Government. However the documents had not been made available in the Military Commission proceedings to Mr Mohamed’s lawyers.
The Court found there was a duty to disclose the information, applying the principle set down in a commercial case — Norwich Pharmacal Co v Customs and Excise Commissioners  AC 133. In that case, the House of Lords held that if a person is involved in the tortious acts of others so as to facilitate their wrongdoing, he or she may come under a duty to assist the person who has been wronged by (among other things) giving him or her information.
In applying that case, the Administrative Court identified five issues:
- was there (arguable) wrongdoing;
- was the UK Government, however innocently, involved in the arguable wrongdoing;
- was the information necessary;
- was the information sought within the scope of the available relief; and
- should the Court exercise its discretion in favour of granting relief?
In respect of these five issues:
- the Foreign Secretary conceded there was an arguable case of wrongdoing, which was sufficient;
- the Court found the facilitative conduct of UK intelligence service was sufficient involvement;
- the information was not merely necessary, but essential if Mr Mohamed was to have a fair trial by the Military Commission;
- specific information was held to fall within the scope of available relief, but not more general information; and
- the Court decided to exercise its discretion, noting that relief under the Norwich Pharmaceuticals principles was an exceptional remedy and its application in these circumstances unprecedented.
Notwithstanding the decision to exercise its discretion, the Court gave the Foreign Secretary the opportunity to file a public interest immunity certificate (‘PII Certificate’), prior to a further hearing on 27 August. It is ultimately for the Court to determine, having reviewed any PII Certificate, whether the public interest immunity applies to exempt documents from disclosure.
The Foreign Secretary filed a PII Certificate, citing concerns about future intelligence-sharing with the US. The Court, in a second judgment published on 29 August 2008, noted that the US Convening Authority had requested the relevant documents, which would therefore be disclosed to Mr Mohamed’s lawyers if charges were brought: this was all the High Court could have achieved in any event. However, it required the Foreign Secretary to file a second PII Certificate which addressed the abhorrence and condemnation accorded to torture and cruel, inhuman or degrading treatment, an issue which the Court considered was not addressed either expressly or implicitly in the PII Certificate.
The Court gave the Foreign Secretary until 5 September to file a further PII Certificate, after which it would decide whether the public interest immunity applies. A final decision had not been made at the time of writing this case note, but is expected imminently.
The decision is available at http://www.judiciary.gov.uk/docs/judgments_guidance/mohamed_full210808.pdf.
Emrys Nekvapil is a member of the Mallesons Stephen Jaques Human Rights Law Group