Neutral Citation Number: [2012] EWHC 681 (Admin)
Case No: CO/951/2012
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 20/03/2012

Before :

PRESIDENT OF THE QUEEN'S BENCH DIVISION
(Sir John Thomas)
and
MR JUSTICE SILBER

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Between :

	The Queen on the application of Habib Suleiman Njoroge and Yahya Suleiman Mbuthia	Claimants	
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	Secretary of State for Foreign and Commonwealth Affairs	Defendant	
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Richard Hermer QC and Ben Cooper (instructed by Bhatt Murphy) for the Claimants
James Eadie QC and Jonathan Hall (instructed by The Treasury Solicitor) for the Defendant

Hearing date: 1 March 2012
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Judgment

President of the Queen’s Bench Division: 

1.	The claimants Mr Njoroge and Mr Mbuthia seek permission to bring proceedings for judicial review against the Secretary of State for Foreign and Commonwealth Affairs in respect of his refusal to grant them disclosure of documents under Norwich Pharmacal principles.  The documents they seek are those held by him which relate (1) in the case of Mr Njoroge to his alleged rendition from Kenya to Uganda in September 2010 and (2) in the case of both Mr Njoroge and Mr Mbuthia their alleged torture and inhuman and degrading treatment (ill-treatment) in custody in Kenya and Uganda.
2.	Both Mr Njoroge and Mr Mbuthia are currently held in custody in Uganda in connection with criminal proceedings against them for their alleged participation in the “World Cup” bombing in Kampala in July 2010.  In those proceedings they face charges of multiple murder, terrorism and attempted murder which carry the death penalty.  They are challenging the legality of their detention and of the proceedings in the Ugandan Constitutional Court.  They seek the documents as necessary in order to advance legal argument central to their petition in the proceedings in the Constitutional Court; Mr Njoroge also seeks the documents to show his confession was inadmissible.
3.	Their applications are related to the application in R (Omar) v Secretary of State for Foreign and Commonwealth Affairs [2011] EWCA Civ 1587 where on 21 December 2011 the Court of Appeal allowed an appeal and granted Mr Omar permission to bring judicial review proceedings against the Secretary of State in respect of his refusal to provide documents under Norwich Pharmacal principles in respect of his alleged rendition from Kenya to Uganda in connection with the Kampala bombing with which Mr Omar is also charged.  As those proceedings were brought by way of judicial review, these proceedings have also been brought by way of judicial review.  It is contended on behalf of both Mr Njoroge and Mr Mbuthia that the proceedings could have been brought by ordinary proceedings in the Queen’s Bench Division.  Although for the future, such a point may need to be resolved, the fact that permission has to be obtained can make little difference on the facts, as the Secretary of State would have applied to strike the claims out and very similar issues would have arisen as arise on this permission application.
4.	It is necessary first to summarise those proceedings.
The proceedings in R (Omar)
5.	The allegations by Mr Omar are summarised in the judgment of Maurice Kay LJ.  In essence it was his case that he was seized in a shopping centre in Nairobi, Kenya on 17 September 2010, bundled into a van by Kenyan Anti-Terrorism Police Unit (ATPU) and driven to the Uganda border where he was handed over to the Ugandan security forces and then to the Uganda Rapid Response Unit (RRU).  He was held in Kampala and interrogated by three men; two were alleged to be American and one British.  He claims that he was subjected to ill-treatment and told that if he co-operated and became an informant, he would be returned to Kenya.  If he did not, he would be charged with being responsible for the Kampala bombing.  He refused to co-operate and has been so charged.  Al-Shabaab has claimed responsibility for the bombing.
6.	The allegations made by Mr Omar were raised by him in two sets of proceedings.  First in proceedings brought in Kenya where an ATPU inspector had sworn an affidavit denying the allegations of rendition and secondly in judicial review proceedings in Uganda and in a petition to the Constitutional Court of Uganda on 15 November 2011where he made allegations against the Government of Uganda of rendition and other unlawful state practices under principles akin to the principles raised in this jurisdiction in Mullen [2000] QB 520.  In the criminal proceedings against him, he is seeking a stay on the grounds of abuse of process.  The documents he sought from the Secretary of State were sought in connection with both of those proceedings in Uganda.
7.	It is important to note in the claim brought by Mr Omar that the Secretary of State, although resisting the application for permission and the appeal on various grounds, did not contend that Mr Omar had failed to show there was an arguable case that those for whom the Secretary of State is responsible were “mixed up” in the alleged wrongdoing.  
8.	The court granted Mr Omar permission in respect of documents relating to his alleged unlawful rendition on the basis that it was arguable that Mr Omar had satisfied the necessity test.  The judgment of the Court of Appeal was given by Maurice Kay LJ with whom Sullivan LJ agreed.  The Master of the Rolls found greater difficulty with the issue on which permission was granted and only did so on the basis set out in paragraph 35 of his judgment.
9.	However, the Secretary of State was successful in resisting the claim by Mr Omar that he was entitled to disclosure of material relating to alleged ill-treatment; that was refused on the basis first that he had made no confession and so the material would add little to the defence of Mr Omar and secondly what was sought was not necessary but fell rather into the category of “wide-ranging discovery or the gathering of evidence”.  The Secretary of State had in pre-action correspondence conducted reasonable and proportionate searches of material he held that might tend to support the allegation that Mr Omar had been tortured or ill-treated.  The searches identified no such material.
10.	The proceedings by Mr Omar are continuing in this court.  We have made an order with the consent of the parties for the appointment of a Special Advocate.  We will shortly make directions after hearing from the Special Advocate and counsel for the Secretary of State.
11.	Both Mr Njoroge and Mr Mbuthia are co-petitioners with Mr Omar in the petition brought on 15 November 2011 before the Constitutional Court in Uganda relying on the rendition and ill-treatment as a basis for staying the criminal proceedings on the basis of abuse of process.  Both have petitioned the East Africa Court of Justice; neither seeks documents in those proceedings, but reserves the right to seek them in the future as necessary for those proceedings.
The claim of Mr Njoroge in respect of rendition and ill-treatment
12.	Mr Njoroge, who was a journalist at a radio station in Kenya, claims he was arrested on 4 September 2010 in Mombassa by police officers.  He was flown to Nairobi on 5 September 2010 and taken to the headquarters of the ATPU in Nairobi.  He was interrogated and threats were made against him to confess that he had participated in the Kampala bombing.  He was then transferred to a car and driven to the Kenyan-Ugandan border on 5 September 2010.  He was handed over to the RRU.  He was then held incommunicado by the RRU at their headquarters at Kireka until 16 September 2010; during that time he was ill-treated and interrogated.
13.	He also claims he was interrogated by “persons who introduced themselves to me as officers of the United States of America Federal Bureau of Investigation (FBI)”.  During the interrogations he claims he was subjected to ill-treatment.  He was then taken to a Magistrates’ Court where he was charged with the Kampala bombing.  He was remanded back to custody where he remained for a further two to three weeks in the same conditions.  He states at paragraph 47 of his statement dated 15 November 2011 in support of the petition to the Constitutional Court of Uganda:
“THAT during those weeks I was interrogated at least twice by the FBI but this time the interrogators were different – there were three tall white men, one was fat, another was bald with a ring in his ear and a cross around his neck and the other had dark hair and they insulted Islam, saying it was “not fit for human beings” and that they could not understand how I, a Kenyan Kikuyu, had converted to be a Muslim.”
As a result of the ill-treatment he signed a document which is said to amount to proof of complicity in the bombing.
14.	On 17 January 2012 Mr Mark Scott, a partner at Bhatt Murphy, visited him in prison in Uganda.  Mr Scott records in his witness statement of 27 January 2012 the following:
“In relation to paragraph 47, Mr NJOROGE informed me that the man who he described as having “dark hair”, albeit not identifying himself as a British agent, definitely had a British accent.  Mr NJOROGE informed me that he was able to distinguish between American and British accents and was also able to indicate that the Officer had a “British” but definitely not a Scottish accent.”
15.	It appears that the police in Kenya have taken the position that Mr Njoroge was never arrested in Kenya.  That appears from a letter from the Kenyan police dated 22 August 2011 and the statement made by an inspector in the ATPU.  The Ugandan Government denies rendition and mistreatment.
16.	It is the case of Mr Njoroge, based on the interview with Mr Scott, that the United Kingdom Government was “mixed up” in the rendition of Mr Njoroge to Uganda.  He relies on what happened in the case of Omar and upon an answer to a claim in paragraph 10 of the petition to the Constitutional Court of Uganda.  In paragraph 10, the petitioners claim that the interrogation was carried out by Kenyan, Tanzanian and Ugandan security agents and security or intelligence agents of the United States and the United Kingdom.  In its response the Government of Uganda’s position was that the nature of the terrorist attacks necessitated joint investigation by Ugandan police with foreign security officers which included joint interrogations led by Ugandan officers.
The case of Mr Mbuthia
17.	It is not disputed in the proceedings before the Constitutional Court of Uganda that Mr Mbuthia was the subject of rendition from Kenya to Uganda on 26 August 2010.  No documents are therefore sought in support of that.  He claims that he was subjected to ill-treatment by the Kenyan police and ATPU after his arrest in Kenya and prior to his rendition.  
18.	After his rendition, Mr Mbuthia claims that he was taken to the RRU headquarters at Kireka and held there until 2 September 2010 when he was brought before a Magistrate and then remanded again to Kireka; he was remanded again by a Magistrate on 16 September 2010 to Kireka.  In his affidavit dated 15 November 2011 sworn in support of the petition to the Constitutional Court of Uganda, he claims that after his transfer to Uganda he was held by the RRU and subjected to severe ill-treatment.  He claims that on the third day of his detention he was presented before three persons identifying themselves as being from the FBI.  He states also:
“THAT I believe that one of the persons present during my interrogations was a British guy with light hair and had an accent I recognised as being similar to that of my lawyer from United Kingdom, Jim Duffy, who is Scottish, and this British interrogator witnessed the threats made in respect of my family by the FBI officers.  He had brown eyes, was around five feet eleven inches in height, thin, and aged between twenty-eight (28) and thirty-three (33) years.”
19.	In Mr Mbuthia’s account given to Mr Scott on his visit to Uganda, Mr Mbuthia states that it was between 16 September and 8 October 2010 that he was interrogated by the officer with a Scottish accent; his last interrogation by that officer was on 7 October 2010.
20.	Mr Mbuthia claims much of the interrogation was directed at trying to make him confess to Mr Omar being his boss as the mastermind of the bombings.  He claims he was forced to sign papers.  He was denied access to a lawyer.  His ill-treatment is denied by the Government of Uganda.
Material in relation to the alleged rendition of Mr Njoroge
21.	The Secretary of State contends that the case advanced on the evidence adduced by Mr Njoroge does not establish sufficient to show that those for whom the Secretary of State is responsible were arguably mixed up in the alleged rendition.  There is very substantial force in this argument.  There is nothing in the statement made in support of the petition to the Constitutional Court of Uganda which suggests any involvement of the UK; it only refers to involvement of the FBI.  The only evidence put forward by him is that in his statement to Mr Scott, which is tenuous to say the least.  Given the circumstances in which it was made, namely after the decision of the Court of Appeal in the case of Mr Omar, the Secretary of State also made a powerful point in relation to its credibility.  Mr Njoroge also relies on enquires by Mr Scott of another petitioner which was said to show involvement of the United Kingdom in the deportation of two British residents from Kenya in 2008/9.  
22.	On the basis of the written materials before us, if we were to have considered Mr Njoroge’s claim on its own, there would not have been enough to show a sufficient case that those for whom the Secretary of State is responsible were mixed up in the alleged wrong-doing.
23.	However, we cannot look at his claim on its own.  It is clear from the material put before the court by the claimant and Mr Omar that the case being made by the petitioners to the Constitutional Court of Uganda, including Mr Omar and Mr Njoroge, is that both the United States and the United Kingdom were involved, not only in the interrogations but in the whole of the operation which resulted in the alleged rendition.  Given the fact that the Secretary of State did not contest the application of Mr Omar to bring proceedings for judicial review on the basis that there was no evidence that those for whom the Secretary of State is responsible were mixed up in the alleged rendition, we do not see how we can, as a matter of justice, and given the similarity of the position of Mr Njoroge to Mr Omar, distinguish between them.  
24.	We therefore propose to grant permission in respect of the claim of Mr Njoroge in respect of the application for documents relating to rendition on that basis.
25.	The Secretary of State contends in his acknowledgement of service that developments in the Ugandan proceedings may result in the rendition not being contested.  We do not regard that possibility as precluding the claim proceeding.
Mr Njoroge and Mr Mbuthia:  documents relating to alleged mistreatment
26.	We accept that the case of Mr Njoroge can be distinguished from that of Mr Omar in that Mr Njoroge did sign a confession.  We are also prepared to assume, without deciding the issue, that the documents might be necessary in relation to the claims by both Mr Njoroge and Mr Mbuthia that their alleged ill-treatment would amount to an abuse of process.
27.	We also accept, as is evident from the Human Rights Watch Report of 2011 entitled Violence Instead of Vigilance Torture and Illegal Detention by Uganda’s Rapid Response Unit that sufficient has been established at this stage for a case to be made that the UK Government would have been aware that there was evidence over many years that the RRU used illegal methods and severely mistreated those in its custody in the course of its interrogations with the aim of extracting confessions.
28.	However, it is our view that, in respect of this part of Mr Njoroge’s application and in respect of the whole of Mr Mbuthia’s application, it must be refused.  We do not see how the application can properly be distinguished from that made by Mr Omar and must therefore be described as one that falls into the category of “an application for wide-ranging discovery or the gathering of evidence”.
29.	That is sufficient in our view.  However, the Secretary of State has carried out his own reasonable and proportionate searches of material held and found nothing.  We see no reason not to accept the good faith of the Secretary of State and the assurance given on his behalf that searches have been made for materials relating to ill-treatment; nothing has been produced that calls into question his good faith or the fact that reasonable and proportionate searches have been made.  If the request made by Mr Njoroge and Mr Mbuthia is not a request “for wide-ranging discovery or the gathering of evidence”, it is difficult to see how on the application of Norwich Pharmacal principles, the Secretary of State could be required to do more than he has done.
Conclusion
30.	We therefore consider the part of Mr Njoroge’s claim on which we have given permission should be heard with the claim of Mr Omar.  We will make an order for the appointment of the same Special Advocate on terms we hope can be agreed.  We would order that a date be fixed as soon as practicable for the hearing to which we have referred at paragraph 10.