Neutral Citation Number: [2010] EWHC 1496 (QB)
Case No: HQ08X01180
HQ08X01413
HQ08X01416
HQ08X03220
HQ08X01686
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

Royal Courts of Justice
Strand, London, WC2A 2LL

21 June 2010 

Before:

MR JUSTICE SILBER
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Between:

	 (1)BISHER AL RAWI
(2)JAMIL EL BANNA
(3)RICHARD BELMAR
(4)OMAR DEGHAYES
(5)BINYAM MOHAMED
(6)MARTIN MUBANGA	Claimants	
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	(1)THE SECURITY SERVICE
(2)THE SECRET INTELLIGENCE SERVICE
(3)THE ATTORNEY-GENERAL
(4)THE FOREIGN AND COMMONWEALTH OFFICE
(5)THE HOME OFFICE
	Defendants

	

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Richard Hermer QC and Naina Patel (i) instructed by Birnberg Peirce &Co for the First to Fourth Claimants; (ii) instructed by Leigh Day for the Fifth Claimant and (iii) instructed by Christian Khan for the Sixth Claimant.
Rory Phillips QC, Peter Skelton and Louise Jones (instructed by the Treasury Solicitor) for the Defendants.

Hearing dates: 22 and 23 April 2010
Further written submissions served between 6 and 17 May 2010
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Judgment

Mr. Justice Silber:
I. The Issue
1.	The issues which I have to resolve are whether the six claimants in this action, who were all detained at various locations including at the United States detention facility in Guantanamo Bay, are entitled to orders first for the disclosure and inspection of certain Guidance materials relating to the interrogation and treatment of detainees, second (if the defendants oppose inspection on the grounds of public interest immunity (“PII”)) the issue of a PII certificate and the fixing of a date for the PII hearing and third the appointment of  special advocates to assist the court at that hearing.
2.	The orders are opposed not on the ground that the defendants do not have this material but on the grounds that they contend for a number of reasons that this application is premature and to grant it would not further the interests of justice.
II. The Facts
3.	The claims of each of the claimants, although not identical, arise in each case as a result of their detention and their alleged mistreatment while detained.  The claimants contend that they have been subjected to false imprisonment, trespass to the person, conspiracy to injure, torture, breach of contract, negligence, misfeasance in public office and breaches of their rights under the Human Rights Act 1998.  
4.	The defendants to the claims are the Security Service, the Secret Intelligence Service (“the SIS”), the Foreign and Commonwealth Office, the Home Office and in a representative capacity the Attorney General.  It is contended that each of the defendants caused or contributed towards the alleged detention, rendition and ill treatment of each of the claimants.  The defendants in their “Open Defences” admit that each of the claimants was detained and transferred but they raise issues on the allegations of mistreatment while denying any liability in respect of the claimants’ detention or alleged mistreatment.
5.	There have been a number of case management conferences and applications relating to amongst other matters the time when the defendants will complete disclosure which still has not been completed.  As I will explain in paragraphs 19 to 27 below, disclosure and inspection are unlikely to be completed for many years.  The claimants are dissatisfied with the way in which disclosure has been handled by the defendants and not surprisingly they are anxious for the present claims to be pursued expeditiously. 
6.	At a case management hearing held on 22 and 23 April 2010, many procedural matters were dealt with but the claimants were also seeking substantial disclosure with the defendants saying that it was not possible or appropriate to order it at that stage.  On the second day of the hearing, Mr. Richard Hermer QC, counsel for the claimants, as a compromise solution in the light of the way in which disclosure has been carried out by the defendants and the lengthy period before it would be completed, sought orders for much more limited disclosure but on the premise that if these orders were not made, he would then pursue his original application for much more extensive disclosure.
7.	His modified application was for orders that:-
(a)	the defendants should disclose and permit inspection of (i) the Guidance document(s) for the interrogation and treatment of detainees dated 11 January 2002 (“the 2002 Guidance”) referred to in paragraph 47 of the Intelligence and Security Committee (“ISC”)  report of 2005 and (ii) the subsequent Guidance relating to 2004 onwards (“the 2004 Guidance”) referred to in paragraph 82 and footnote 65 to the ISC report of 2007;
(b)	if inspection of the 2002 Guidance and/or 2004 Guidance is opposed on grounds of PII, then this issue should be determined at a hearing to be fixed as soon as possible after discovery and a PII certificate should be served no later than 21 days thereafter; and
(c)	in the event that inspection is opposed, the court should also request the Attorney General to appoint senior and junior Special Advocates to assist the court in the determination of the issue of whether inspection should be ordered.
8. 	Mr. Rory Phillips QC, counsel for the defendants, explained that he needed to take instructions on one part of these claims and in particular the claims for disclosure and inspection of the 2004 Guidance.  Accordingly, a timetable was set for the defendants and the claimants to file written submissions on these issues and I have had the benefit of these written submissions.  Unfortunately and regrettably the delivery of this judgment has been delayed as I have been heavily involved in long trials on circuit since the April hearing until the middle of this month.
III. The Guidance Documents
9.	Before dealing with the submissions, it is appropriate to explain the nature of the 2002 and 2004 Guidance documents and their significance.  The 2002 Guidance was referred to in the report of the ISC, which was sent to the Prime Minister on 1 March 2005 and which is entitled “The Handling of Detainees by UK Intelligence Personnel in Afghanistan, Guantanamo Bay and Iraq”.  In a chapter entitled “The Fight against Terrorism”, it was pointed out that counter-terrorism work both international and Irish-related had been a priority for the UK’s intelligence and security agencies for many years.  It was then explained  that it was exceptional for the agencies to interview individuals detained by other countries as a result of armed conflict and the report then stated  that:-
“45….we believe that the Secretaries of State accountable for the agencies ought to have been consulted prior to the interviewing of detainees in Afghanistan. We recommend that, in any future cases in which the UK is involved in armed conflict with another state or terrorist organisations, Ministers are consulted before staff are deployed to interview detainees held by another country…”.
10.	In paragraph 46 of its report, the ISC proceeded to explain that on 10 January 2002, which was the first day on which SIS had access to US-held detainees, an SIS officer conducted an interview of a detainee.  He was satisfied there was nothing during the interview which would have been a breach of the Geneva Conventions but he reported back to London his ‘observations and the circumstances of the handling of [the] detainee by the US military before the beginning of the interview…’.
11.	Paragraph 47 of the report states that:-
“These comments raise concerns about the US treatment of detainees and the following day - 11 January 2002 instructions were sent to the SIS officer and copied to all SIS and Security Service officers in Afghanistan, as follows:
“With regard to the status of prisoners, under the various Geneva Conventions and protocols, all prisoners, however they are described, are entitled to the same levels of protection.  You have commented on their treatment.  It appears from your description that they may not be being treated in accordance with the appropriate standards.  Given they are not within our custody or control, the law does not require you to intervene to prevent this.  That said, HMG’s stated commitment to human rights makes it important that the Americans understand that we cannot be party to such ill treatment nor can we be seen to condone it.  In no case should they be coerced during or in conjunction with an SIS interview of them.  If circumstances allow, you should consider drawing this to the attention of a suitably senior US official locally.
It is important that you do not engage in any activity yourself that involves inhumane or degrading treatment of prisoners.  As a representative of a UK public authority, you are obliged to act in accordance with the Human Rights Act 2000 which prohibits torture, or inhumane or degrading treatment.  Also as a Crown Servant, you are bound by Section 31 of the Criminal Justice Act 1948, which makes acts carried out overseas in the course of your official duties subject to UK criminal law.  In other words, your actions incur criminal liability in the same way as if you were carrying out those acts in the UK”.
12.	This passage was an extract from the 2002 Guidance and Mr. Hermer explained at the hearing that with the exception of the passage set out above, everything else has been redacted.  It is clear that both the 2002 and 2004 Guidance will be subject to claims of PII.
13.	The 2004 Guidance is referred to in the report of the ISC of July 2007 which was sent to the Prime Minister on 28 June 2007  states in paragraph 82 that:- 
“From 2004 it became clear to SIS and the security service that their existing Guidance to staff on dealing with foreign liaison services was insufficiently detailed given the increasing requirement to cooperate with foreign services in counter-terrorism operations.  They therefore began to expand their Guidance, and as elements were finalised they were formally issued to staff”.
14.	There is then a footnote numbered 65 which relates to this paragraph and which  states that:-
“Advice on participation in detention operations and interviews was formally issued to SIS and security staff in 2005.  In 2006, all three agencies formally issued updated Guidance to staff on the exchange of intelligence with foreign liaison services (in GCHQ’s case it was issued to operational staff only) this expanded Guidance better equipped staff to understand their responsibilities and, for operational staff at what point in any given operation to involve Agency legal advisors, policy departments or ministers.
15.	It is this advice which is the 2004 Guidance and which is the second item sought by the claimants and it has not been suggested that it is not in the defendants’ possession.  
IV. The Defendants’ Objections
16.	Both the 2002 and the 2004 Guidance documents are relevant as they would according to Mr Hermer show what instructions were given to all SIS and Security Service employees during the period covered by the claim.  As I understand it, the relevance of these documents is correctly not disputed by the defendants and indeed orders for their disclosure and for the disclosure of other Guidance documents was made as long ago as 19 October 2004.  The objections to the orders sought by the claimants is that for a number of different reasons it would be premature, inappropriate and wrong to make the orders.
17.	Indeed, Mr. Phillips opposes the orders for disclosure and inspection of  the 2002 and the 2004 Guidance on the ground that it would not be in the interests of justice to so order for a number of reasons including that:-
(a)	they relate to a narrow range of material and if the claimants’ application is successful, this would lead to disclosure being provided in an incomplete and in an illogical manner with disproportionate and misleading importance being attributed to the 2002 and the 2004 Guidance. Thus, if there were an order for the disclosure now sought by the claimants, this would have the consequence that those documents would not be seen by the claimants and the court in their full and proper context but  instead they would be presented in the words of the letter from the Treasury Solicitor of 6 May 2010 “in artificial isolation”;
(b)	the defendants are now in the process of giving disclosure and they have a procedure in place for doing this but if the court acceded to the claimants’ application for disclosure and inspection, this would in the words of Mr. Phillips be very difficult for the defendant’s disclosure team which was like a “very, very, big ship” being required to “undertake quick turns”.  In any event, the defendants would give priority in the next disclosure protocol to the Guidance material;
(c)	the application of the Wiley test on PII is best undertaken at the end of the disclosure exercise;
(d)	the court should not order a PII hearing in relation to these or any other disclosed documents until the final determination of a preliminary issue which had been ordered in September 2009 and which was whether it is permissible to have a closed material procedure hearing in claims for damages for tort and breach of statutory duty.  By a judgment handed down on 4 May 2010 [2010] EWCA Civ 482, the Court of Appeal held unanimously that closed material  procedures could not be applied in common law claims for damages such as the present one and that the appropriate procedure to be adopted on disclosure and inspection was the conventional PII regime.  The Court of Appeal has refused to grant permission to the defendants to appeal to the Supreme Court but I will assume that the defendants will petition the Supreme Court for leave.

V. Should Disclosure be Ordered?
18.	Mr. Hermer’s submission is that disclosure of the Guidance documents at this stage should be ordered for five important reasons.  First, Mr Hermer explains that the Guidance documents will show what members of the Security Service and the SIS were permitted to do and what they were forbidden from doing in relation to people in the position of the claimants in the periods covered by the claims.  So he says that if it transpires that either Guidance was unlawful as for example contravening the human rights of the claimants, this might lead to a decisive ruling on a preliminary issue or otherwise reduce the length of this litigation.  This point is valid, especially as there is likely to be an exceedingly long delay before disclosure and PII issues are resolved. Therefore by granting the application the claimants will see those parts of the documents not covered by PII much earlier than they would otherwise have done. 
19.	Second, Mr Hermer points to the size of this litigation and the slowness of the defendants’ disclosure process.  Mr. David Mackie, who is the solicitor in charge of the defendants’ disclosure, has explained in his witness statements the difficulties for the defendants in complying with their disclosure obligations.  There are apparently about 250,000 documents which might be disclosable with the PII aspects of a large number of them having to be considered by the defendants’ legal team together with representatives of the defendants as well as by the appropriate Ministers.
20.	Third and very significantly Mr. Hermer relies on the slowness of the disclosure process to date. I was told by Mr. Phillips that, according to an extract of the transcript of the hearing of 22 April 2010 provided by the defendants’ solicitors, the disclosure exercise:-
“will take us later in this decade. I think it’s 2013 or something of that kind. What is said is that does not take account of the Wiley balance” (page 111)
21.	This suggests that if the claimants’ application is dismissed, they will be unable to inspect the 2002 and the 2004 Guidance until 2013 at the very earliest.  I suspect that this will occur much later as many earlier estimates for dates for disclosure have subsequently proved to be unduly optimistic and also the very uncertain nature of the present predictions. 
22.	It is noteworthy that the claimants’ solicitors have repeatedly been giving later dates of when disclosure can take place.  By an order of Holroyde J made on 23 April 2009, the defendants were ordered to give standard disclosure by 4pm on 9 October 2009.  The defendants then applied to vary that provision. By his fifth witness statement Mr David Mackie explained that:-
“This disclosure exercise is unprecedented in its combinations of scale and complexity.  Apart from the very large number of documents involved now over 250,000 documents identified as potentially relevant, each document often comprising many pages, they cover a period of several years, and are held by several different Government Departments and agencies.  There are furthermore a high proportion of very sensitive material that requires particularly careful review.” 
23.	He then set out details of the team that has been set up with the number of government lawyers increased from 2 to 6 and at that time, 20 junior barristers and 10 officials, not counting departmental lawyers working on disclosure of documents by the defendants.  He explained that by 27 November 2009 the defendants would plan disclosure as far into the future as possible and give their best estimate of the date by which standard disclosure might be completed.
24.	On 29 October 2009, I ordered that the defendants give disclosure on a staged basis consistent with terms of the order but that it should be completed by 30 June 2010 with liberty to apply to vary the order following completion of a Disclosure Protocol.  
25.	On 24 November 2009, Mr Mackie made his sixth witness statement in which he explained that the public interest review process of the large volume of documents to be disclosed by the Security Service will take until approximately the end of 2014 to complete.  He explained that so far as the SIS documents are concerned the public interest review of them “could take until circa 2013/2014 to complete” he said that the Foreign and Commonwealth Office documents “will take until approximately the end of 2013 to carry out the public interest review of all hard copy documents held by [that office]” but that estimate did not include electronic documents, liaison with other government departments  on documents in that office’s files which originate from those other departments and time spent reviewing other defendants’ documents for international relations sensitivities.  
26.	In his seventh witness statement of 9 December 2009, Mr Mackie explained the possibility of obtaining some specific document management software which would speed up the process of logging and conducting the public interest review with a view to consolidating all relevant documents from all defendants on to it.
27.	On 14 December 2009 I made various orders for disclosure.  By his ninth witness statement made on 16 April 2010, Mr Mackie explained that the document management system had been put in place and training had begun and was expected to continue for some three weeks after 19 April 2010.  He explained that it would not be possible to provide the court with an estimate for a revised end date for standard disclosure until there had been some experience of working with the new system and in the circumstances the defendants requested “an interim extension of time until 31 January 2011” but thereafter there would still have to be the PII review.  All this shows that the PII hearings for much of the material will not take place until 2015.  At the earliest the PII review will not be complete until 2014.
28.	Fourth, there is also a further important factor to be taken into account in favour of granting the claimants’ application which would include considering the PII test at this stage and that relates to the great significance of the claims made by the claimants.  Their claims are of very substantial constitutional importance, relating to the way in which various parts of the United Kingdom government have treated the claimants or caused them to be treated as well as being of great public interest. Fifth, the periods of wrongful conduct about which the claimants complain go back as far as 2002.  It is clearly highly desirable that they should be tried as soon as possible.
29.	Against those factors it is necessary to take into account in the overall balance in deciding whether an order should be made the factors relied on by the defendants and to which I have referred in paragraph 17 above.
30.	I start with the submission that if the Guidance documents have to be disclosed, this will mean that those documents will not be seen by the claimants and the court in their full and proper context but in the words of the letter from the Treasury Solicitor of 6 May 2010 “in artificial isolation”.  If the claimants seek to use the Guidance documents unfairly or in an inappropriate manner, the defendants will be able to explain why they do not provide a fair picture but at present I cannot see why this argument should mean that the claimants’ application should be dismissed.  After all, the Guidance documents might show serious breaches of the claimants’ rights being sanctioned by the defendants or a failure to consider those rights.
31. 	Similarly I do not agree that providing these Guidance documents will somehow be unfair as it would make what Mr. Phillips describes as the “very, very big ship” being required to do “a quick turn”. I am not persuaded by his suggestion that a fair result would be that the Guidance material would be given priority in the next disclosure protocol.  This suggestion has to be considered in the light of not only the delays to date in disclosure but also the long delay before the PII certificates would be granted at the end of the disclosure exercise.  If the existing application is granted, then nearly all the defendants’ very large team of lawyers and civil servants could carry on with their existing work save that  there would have to be consideration given by a few of them to the terms of the relevant PII certificates after applying the Wiley tests.  I accept that it might be easier to do this at the end of the disclosure procedure but I cannot see any serious difficulties about carrying it out at the present stage and none have been particularised by the defendants.
32.	The defendants contend that the order for inspection should not be made while their claim that the court should adopt a closed material procedure has not been finally determined. As I explained in paragraph 17 (d) above, the Court of Appeal has held that such a procedure cannot be used in claims such as the present one in which damages are being sought and it has refused permission to appeal to the Supreme Court. An application has been made to that Court for permission to appeal. Thus a PII procedure will have to be adopted.
33.	I have also considered what would be the position if I granted the claimants’ application and then first the Supreme Court gave the defendants permission to appeal, second it allowed the appeal and then third it was ordered that a closed material process should be adopted in this case but I am unable to understand why granting this present application would in those circumstances present difficulties. 
34.	In those circumstances, no prejudice would have been caused by having a PII procedure in respect of the 2002 and 2004 Guidance bearing in mind that the closed material procedure merely means first, the Special Advocates can challenge any claim for PII and second, even if the documents are subject to PII, they can be used in a closed procedure at the hearing.  The present application is merely looking at the first stage namely whether there should be disclosure of the material to the claimants which is exactly what would have to be considered in the first instance of a closed material procedure.  The distinguishing feature of a closed material procedure is the ability of the Special Advocate to use at the closed part of the trial material which could not be disclosed under the PII procedure.  Nothing that is being decided on the present application would prejudice that step in any way.
35.	In my view, the balancing exercise leads to the clear result that the Guidance documents should be disclosed and subject to a PII hearing to determine how much of it can be inspected.  The extraordinary past and anticipated delays in disclosure of the Guidance documents requires the court to take decisive actions to ensure that the claims progress and that means making the orders now sought by the claimants.  Otherwise the claimants are not going to be able to challenge the inevitable PII certificate for at least four years.  These important claims would then be precluded from coming to trial for very many years even though their claims are already 7 or 8 years old.
36.	This is massive litigation in which I assume all parties are financed by public funds and anything which can be done which might assist in expediting the resolution of the dispute should be adopted unless it will cause unfairness. I consider that the Guidance documents, which are in the defendants’ possession, are not only relevant to the issues but their disclosure at this stage might assist in determining and resolving the dispute between the parties or expediting its resolution. I do not consider that the objections of the defendants are sufficiently justified to prevent me ordering disclosure. 
37.	The need for the courts to further the overriding objectives would justify, if not require, a decision to order disclosure of these Guidance documents at this stage.
VI. The PII Certificate and the Special Advocate
38.	As I have explained the claimants seek a timetable for the defendants to produce a PII certificate if appropriate and that seems desirable. The defendant have been on notice since 23 April that such a certificate might be needed and my provisional view is to give the defendants 21 days from the date on which judgment is handed down for the production of such a certificate.  If the defendants need longer, they must serve a witness statement by 11am on 18 June 2010 explaining why.  [Note: After the draft was circulated, I was informed that the defendants did not wish to invoke this provision. When judgment was handed down, the claimants sought an order that disclosure and the service of the PII certificate should occur on 5 July 2010 in anticipation of a CMC fixed for 12 July 2010. After hearing submissions, I ordered that disclosure and the service of the PII certificate should occur by 10am on 9 July 2010.]  I note that the claimants’ solicitors in their letter of 12 May 2010 have proposed an additional further step, namely the production of a signed witness statement setting out the basis of the claim to PII prior to the service of the PII certificate. This novel procedure is not only unnecessary but it is also unworkable as it would entail speculating on the scope and reasoning of the PII certificate which had yet to be decided on by the relevant Minister or Ministers.
39.	I did not understand the defendants to oppose the request being made to the Attorney General for the appointment of the Special Advocate as their opposition to this application was aimed at preventing the granting of the order for inspection. In my view, there is a genuine need for a Special Advocate to be appointed because of the complexity of the issues which arise and the need for advocates to represent the claimants’ interests in challenging the inevitable PII certificate which will be issued.
40.	The issues which would be raised by the PII certificate would probably be unusually complex requiring a difficult balancing exercise and the judge dealing with this matter would certainly need assistance from a special advocate.  Indeed in my experience, the Attorney General has in cases raising similar issues appointed a special advocate. Indeed in earlier proceedings the defendants sought the appointment of a Special Advocate as part of the closed material process.
41.	I note that the claimants are seeking the appointment of two Special Advocates but I consider that only one is needed who should preferably be leading counsel.
VII. Conclusion 
42. 	I have concluded that I should order that:- 
(a)	the defendant should disclose and permit inspection of the 2002 Guidance and the 2004 Guidance by 10am on 9 July 2010;
(b)	if inspection of the 2002 Guidance and/or 2004 Guidance is opposed on grounds of PII, then the matter should be determined at a hearing to be fixed as soon as possible after discovery and a PII certificate should  be served by 10am on 9 July 2010; and that
(c)	in the event that inspection is opposed the court should request the Attorney General to appoint a Special Advocate preferably a Queen’s Counsel to assist the court in the determination of the issue of whether inspection should be ordered.