Secret Courts and the Policy of “Neither Confirm Nor Deny”

On May 2, the English Court of Appeal gave judgment in (1) Mohamed Ahmed Mohamed (2) CF v Secretary of State for the Home Department. The case is the latest development in the on-going struggle between claimants/campaigners against the United Kingdom Government regarding “closed material procedures” and “closed judgments,” aka “secret courts” and “secret judgments” – so-called because claimants and the public are excluded from the hearings and from access to such judgments. This post provides a short summary of key parts of the case.

The Claimants (“MAM” and “CF”) are British citizens who were arrested and detained in Somaliland in January 2011. On their return to the UK they were subjected to control orders and, later, to terrorism prevention and investigation measures (“TPIMs”). The Claimants challenged the control orders/TPIMs in the High Court. The judge, Lord Justice Lloyd Jones, upheld the control orders/TPIMs. In so doing he gave an open judgment and a closed judgment. The Claimants appealed to the Court of Appeal.

Before the Court of Appeal they sought to have the control orders/TPIMs quashed – primarily on the basis that they were obtained by an abuse of process. The Claimants did not challenge the reasonableness of the Home Secretary’s suspicion that they were, or had been, involved in terrorism-related activity. By a Judgment dated May 2, 2014 (“Judgment”) the Court of Appeal upheld the Claimants’ appeals in relation to abuse of process (and another ground). The Court of Appeal did not decide for itself whether there was or was not an abuse of process. Instead, the Court of Appeal upheld the Claimants’ complaints essentially because of the lack of disclosure to which they had been subjected and it remitted the issue to be further considered by the High Court (§47-48, Judgment).

The Claimants’ core allegations of abuse of process are set out in the Judgment at §§6-7. They include the following:

“The Security Service either knew that the planned [detention] operation [re MAM] had no basis in the law of Somaliland or Somali and/or international law, or at best was recklessly indifferent to such legality and took no steps to ascertain whether it had any such basis. Given what must have been appreciated as to the risks of abuse following detention, serious breaches of the United Kingdom criminal law may also have occurred.”

“The Security Service then participated actively in the interrogation of [MAM], despite knowledge that he had been abused and that he remained exposed to a risk of further abuse. Again, serious issues as to breach of domestic and international law as well as local law arise.”

“The Security Service knew from the outset that there were real problems facing any prosecution of [MAM] in Somaliland because of the absence of available evidence and its preferred option from the outset was (or at the very least swiftly became) that he be forcibly returned to the United Kingdom so that he could be placed under a control order.”

“[MAM] was in fact subjected to an unlawful arrest, unlawful abuse on arrest, unlawful detention and unlawful deportation. He was the victim of breaches of both local law and international law and the UK authorities, through at least the Security Service, knew this to be the case or were recklessly indifferent as to whether this was so.”

On the abuse of process argument, in the High Court, Lord Justice Lloyd Jones said, in his open judgment:

“The position of the [Home Secretary] in these proceedings is that she neither confirms nor denies that the UK authorities were involved in the arrest, detention and deportation of [the Claimants]. I have addressed these issues with that in mind.

With considerable reluctance I have come to the conclusion that these matters cannot be addressed in my open judgment. However, I have addressed these matters in detail in my closed judgment.” (quoted in the Judgment, §4; underlining added)

As this quote makes clear, in his open judgment Lord Justice Lloyd Jones did not disclose whether the allegations (of collusion by the United Kingdom authorities and mistreatment in the form of torture during interrogation in Somaliland) were accepted or rejected by him. Those matters were addressed in the closed judgment (§9, Judgment). Instead, in the open judgment, the judge assumed that the arrest, detention and deportation of the Claimants was not in accordance with the Somaliland law and concluded that neither the control orders/TPIMs were “offensive to the court’s sense of justice and propriety” and upholding them would not “undermine public confidence in the legal system or bring it into disrepute” (§§5; 9, Judgment).

Before the Court of Appeal, the Claimants complaint regarding abuse of process was two-fold, viz.

  • That they were denied even the gist of the Home Secretary’s case on abuse of process (including on collusion and mistreatment) and could not, therefore, give instructions to their legal representatives to enable that case to be met, and
  • That since Lord Justice Lloyd Jones dealt with that part of their case exclusively in his closed judgment, the Claimants did not know why they had lost.

The legal backbone of the Judgment is the Court of Appeal’s rejection of the Home Secretary’s attempt to limit the scope of the ratio of Secretary of State for the Home Department v AF (No.3), a 2009 House of Lords’ case. In AF (No.3), Lord Phillips stated (as quoted in the Judgment, §11).

“I am satisfied that the essence of the Grand Chamber’s decision [in A v United Kingdom (2009) 49 EHRR 625] lies in paragraph 220 and, in particular, in the last sentence of that paragraph. This establishes that the controlee must be given sufficient information about the allegations against him to enable him to give effective instructions in relation to those allegations. Provided that this requirement is satisfied there can be a fair trial notwithstanding that the controlee is not provided with the detail or the sources of the evidence forming the basis of the allegations. Where, however, the open material consists purely of general assertions and the case against the controlee is based solely or to a decisive degree on closed material, the requirements of a fair trial will not be satisfied, however cogent the case based on the closed materials may be.”

The Home Secretary sought to argue that AF (No.3) “is concerned only with allegations against the suspected terrorist and not with the [Home Secretary’s] case in opposition to an allegation of abuse of process” (Judgment, §15, underlining in original and see §15 for a summary of the Home Secretary’s other submissions ). The Court of Appeal rejected the Home Secretary’s submissions. The key parts of the Court’s reasoning/rationale are as follows:

“[T]he judge ought not to have countenanced such a radical departure from procedural and constitutional normality. It is no answer that terrorism is horrendous and that the unappealed factual findings against these appellants are of considerable gravity.” (Judgment, §16)

“In my judgment, to differentiate between allegations against a suspected terrorist and the case for the [Home Secretary] in opposition to an abuse of process application, is too fine a distinction. The abuse of process application, if successful would have resulted in the quashing of the control orders and the TPIMs, notwithstanding the gravity of the findings against the appellants. The existence of the statutory closed material procedure had the effect of limiting the obligation of disclosure to the appellants and of permitting much of the detail to be dealt with only in a closed judgment. However, that does not give rise to tolerance, in relation to a potentially dispositive issue, of the total withholding of the [Home Secretary’s] case on collusion and mistreatment or the total confinement of the reasons for rejecting the appellants’ case on those issues to the closed judgment.” (Judgment, §16; underlining in original)

Lurking just below the surface of a case such as this is the governmental policy of “neither confirm nor deny” (NCND), to which reference is made. I do not doubt that there are circumstances in which the courts should respect it. However, it is not a legal principle. Indeed, it is a departure from procedural norms relating to pleading and disclosure. It requires justification similar to the position in relation to public interest immunity (of which it is a form of subset). It is not simply a matter of a governmental party to litigation hoisting the NCND flag and the court automatically saluting it. Where statute does not delineate the boundaries of open justice, it is for the court to do so. In the present case I do not consider that the appellants or the public should be denied all knowledge of the extent to which their factual and/or legal case on collusion and mistreatment was accepted or rejected. Such a total denial offends justice and propriety.” (Judgment, §20; underlining added)

It is not yet known whether the Home Secretary will seek permission to appeal to the Supreme Court.

  

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About the Author(s)

Shaheed Fatima Q.C.

Queen's Counsel Barrister practicing at Blackstone Chambers