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‘Disclosure of Foreign Intelligence Material: CPIA 1996, Norwich Pharmacal and the War on Terror.’ Dr Chris Taylor Senior Lecturer Bradford University.

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Presentation on theme: "‘Disclosure of Foreign Intelligence Material: CPIA 1996, Norwich Pharmacal and the War on Terror.’ Dr Chris Taylor Senior Lecturer Bradford University."— Presentation transcript:

1 ‘Disclosure of Foreign Intelligence Material: CPIA 1996, Norwich Pharmacal and the War on Terror.’ Dr Chris Taylor Senior Lecturer Bradford University Law School Dr Chris Taylor Senior Lecturer Bradford University Law School

2 Recent months have seen significant developments in a number of cases involving the alleged mistreatment of UK citizens by foreign intelligence services Most notably the case of Binyam Mohamed A central feature of such cases is the disclosure of sensitive intelligence material to the defence The legal status of such material is complicated significantly where the source is foreign rather than domestic intelligence agencies Such cases have highlighted an apparent lacuna in the current legislation which the courts have sought to remedy by the adaptation of exiting principles from commercial litigation The result is a potentially powerful new mechanism for securing transparency and justice in cases of state sponsored and state sanctioned mistreatment

3 In criminal cases disclosure of prosecution material to the defence is governed by the Criminal Procedure and Investigations Act 1996 (CPIA) which requires the prosecutor: ‘To disclose to the accused any prosecution material which has not previously been disclosed to the accused and which might reasonably be considered capable of undermining the case for the prosecution against the accused or of assisting the case for the accused’ – s 3 (1) For the purposes of s 3 ‘prosecution material’ is material: ‘which is in the prosecutor’s possession, and came into his possession in connection with the case for the prosecution against the accused; or Which he has inspected in connection with the case for the prosecution against the accused’ – s 3(2)

4 Both domestic intelligence agencies are subject to the provisions of CPIA s 2 of the Security Service Act 1989 places a duty on the Director-General of the Security Service (MI5) to ensure that material obtained by the Service is not, ‘disclosed by it except so far as necessary for that purpose or for the purpose of the prevention or detection of serious crime or for the purpose of any criminal proceedings.’ s 2(2)(a)(iv) of the Intelligence Services Act 1994 places a similar duty on the Chief of the Secret Intelligence Service (MI6). The product of covert surveillance is also subject to the disclosure regime ‘The product of the surveillance described in this code is subject to the ordinary rules for retention and disclosure of material under the Criminal Procedure and Investigations Act 1996, where those rules apply to the law enforcement body in question.’ Covert Surveillance Code of Practice 2002, Para 1.8.

5 Disclosure Officer Administrative Support Unit (ASU) Crown Prosecution Service (CPS) Defence Investigating Officer MG6C (non-sensitive)MG6D (sensitive) Public Interest Immunity (PII)

6 The state may oppose disclosure under the common law doctrine of public interest immunity (PII) This requires the court to decide whether the accused can receive a fair trial as guaranteed by Art 6 without access to the material in question Art 6(d) – ‘to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him’ In such cases the court will consider whether Art 6 requires the material to be disclosed to the defence Procedure set out by the House of Lords in R v H & C [2004] UKHL 3. If disclosure is considered necessary it falls to the prosecution to decide whether to proceed with the case and reveal the information or discontinue the prosecution to protect the source of the intelligence

7 The Binyam Mohamed case highlighted weaknesses in this procedure BM was an Ethiopian national given exceptional leave to remain in the UK in 2000 Arrested travelling under a false passport attempting to board a flight from Pakistan to London in 2002 Transferred to Guantanamo Bay detention centre in 2004 Charged with terrorism offences carrying the death penalty Released and returned to UK in 2009 The case against BM centred on admissions which were allegedly obtained by cruel, inhuman and degrading treatment amounting to torture In order to refute charges BM sought information from the Crown and the US government supporting his allegations of mistreatment

8 Attention centred on 7 paragraphs of a document based on US intelligence sources detailing his treatment whilst in detention As he was not facing prosecution in the UK the regime under CPIA 1996 did not apply But, even if it had, there were doubts as to whether material held by foreign intelligence agencies would be covered It was not ‘prosecution material’ for the purposes of the Act and was therefore more akin to third party material As CPIA 1996 imposes no direct disclosure obligations on third parties, the standard mechanism for securing material from third parties within the UK, is by means of a witness summons under s 2 of the Criminal Procedure (Attendance of Witnesses) Act 1965 and s 97 of the Magistrates Courts Act 1980 However neither provision can be enforced in a foreign jurisdiction So how could the relevant material be secured?

9 In R v RF [2009] EWCA Crim 678 the Court of Appeal acknowledged that CPIA makes no express provision for material held overseas, whether by individual, companies or foreign security agencies. Thisleft only ‘letter of request’, international convention and the provisions of the Crime (International Co-operation) Act 2003 as possible mechanisms for securing the material in question from a foreign state outside the EU It was also recognised that there are varying degrees of non-cooperation in such cases. A foreign authority may: flatly refuse to allow UK investigators sight of the requested material. permit its examination by investigators, but refuse to allow it to be disclosed to the defence.

10 Norwich Pharmacal Co, The Customs and Excise Comr [1974] AC 133 ‘if through no fault of his own a person gets mixed up in the tortious acts of others so as to facilitate their wrongdoing he may incur no personal liability but he comes under a duty to assist the person who has been wronged by giving him full information and disclosing the identity of the wrongdoers.’ [Lord Reid at p175] Subsequent use of the order has included: Material subject to legal privilege - Campaign against Arms Trade v BAE Systems plc [2007] EWHC 330 (QB) Market sensitive information - Interbrew SA v Financial Times and others [2002] EWCA Civ 274 Internet postings - Totalise plc v Motley Fool Ltd & Anor [2001] EWCA Civ 1897; Applause Store Productions & Firsht v Raphael [2008] EWHC 1781; Smith v ADVFN Plc [2008] All ER (D) 193 (Mar); G and another v Wikimedia Foundation Inc [2009] EWHC 3148 (QB)

11 Traditionally, there are three requirements for Norwich Pharmacal relief Mitsui & Co Ltd v Nexen Petroleum UK Ltd [2005] EWHC 625: a wrong must have been carried out, or arguably carried out, by the ultimate wrongdoer there must be a need for an order to enable an action to be brought against the ultimate wrongdoer the party against whom the order is sought must have facilitated the wrongdoing and be able or likely to be able to provide the information necessary to enable the ultimate wrongdoer to be sued Application of the Norwich Pharmacal order to intelligence material represented a considerable extension of the principle The Crown opposed disclosure on the basis of the ‘control principle’ and the suggestion that the relationship between the UK and US intelligence communities would be threatened - R (Corner House Research) v Director of the Serious Fraud Office [2009] 1 AC 756

12 Following six separate judgments the Court of Appeal ordered disclosure of the 7 redacted paragraphs Why? The decision of the District Court for the District of Columbia in Farhi Saeed Bin Mohamed v Barack Obama (Civil Action No. 05-1347 (GK) As Lord Neuberger MR acknowledged, albeit, ‘with no enthusiasm’, had it not been for the disclosure of the redacted paragraphs by the US courts, there was an insufficient case for ordering their release in the UK Government arguments that the Norwich Pharmacal principle did not apply as the UK security services had not been actively involved in the mistreatment administered by their US counterparts were rejected by the court. Members of the UK security services had facilitated and been involved in the alleged mistreatment of BM - the role played by UK intelligence operatives, ‘was far beyond that of a bystander or witness to the alleged wrongdoing’

13 It was reported that a new series of interviews was conducted by the United States authorities prior to 17 May 2002 as part of a new strategy designed by an expert interviewer It was reported that at some stage during that further interview process by the United States authorities, BM had been intentionally subjected to continuous sleep deprivation. The effects of the sleep deprivation were carefully observed It was reported that combined with the sleep deprivation, threats and inducements were made to him. His fears of being removed from United States custody and disappearing were played upon It was reported that the stress brought about by these deliberate tactics was increased by him being shackled in his interviews It was clear not only from the reports of the content of the interviews but also from the report that he was being kept under self-harm observation, that the interviews were having a marked effect upon him and causing him significant mental stress and suffering

14 We regret to have to conclude that the reports provided to the SyS [security service, MI5] made clear to anyone reading them that BM was being subjected to the treatment that we have described and the effect upon him of that intentional treatment The treatment reported, if had been administered on behalf of the United Kingdom, would clearly have been in breach of the undertakings given by the United Kingdom in 1972. Although it is not necessary for us to categorise the treatment reported, it could readily be contended to be at the very least cruel, inhuman and degrading treatment by the United States authorities

15 The possible application of the Norwich Pharmacal principle was raised again in R (on the application of Aamer) v Secretary of State for Foreign and Commonwealth Affairs [2009] EWHC 3316 (Admin) Following the election of President Obama the Guantanamo Review Task Force (the Task Force) and a Review Panel were established to consider the case of every Guantanamo detainee (including Aamer) As in BM disclosure was sought of material held by the Crown but produced by US intelligence agencies supporting his allegations of mistreatment This as sought to present to the Task Force Review Panel the UK provided classified material directly to the Guantanamo Task Force to inform their consideration of Aamer’s case. However this was on the undertaking that the material would not be further disclosed by the Task Force without the consent of the UK Government and that the material would not be passed to Aamer or his representatives This was rejected by the court which ordered disclosure

16 The Task Force reported in January 2010 that, of the 196 Guantanamo detainees, almost 50 should be detailed infinitely without trial under the ‘Laws of War’. It was concluded that they remained too dangerous to release but too difficult to prosecute without seriously compromising US intelligence gathering techniques. The ‘Laws of War’ cited by the Task Force are not those under the Geneva Conventions but rather the sweeping powers under the Authorization for Use of Military Force. (September 18, 2001. Public Law 107-40 [S. J. RES. 23]) Authorises the US President ‘to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.’ (s 2(A)).

17 Conclusions The mechanisms for disclosure under CPIA 1996 are ill-suited to securing material from foreign intelligence agencies The Norwich Pharmacal order represents an alternative avenue for compelling the Crown to release such information The courts have displayed an apparent willingness to extend the scope of the Norwich Pharmacal order beyond its commercial application to include matters of national security The increasing incidence of such claims my see further examples of such orders at the expense of the ‘Control principle’ What effect, if any, will this have on reciprocal information sharing between intelligence agencies?

18 ‘Disclosure of Foreign Intelligence Material: CPIA 1996, Norwich Pharmacal and the War on Terror.’ Dr Chris Taylor Senior Lecturer Bradford University Law School Dr Chris Taylor Senior Lecturer Bradford University Law School

19 Wednesday 3 rd November Lisa Cherkassky 'Researching Transplantation Ethics in Medical Law'. Wednesday 24 th November Dr Ilias Kapsis ‘Challenges for European Competition Law and Policy in the Banking Sector.’

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