Queen’s Bench Divisional Court

Published August 3, 2009

Regina (Al-Sweady and Others) v Secretary of State for Defence

Before Lord Justice Scott Baker, Mr Justice Silber and Mr Justice Sweeney

Judgment July 10, 2009

The complete integrity of public interest immunity certificates and the schedules attached to them, signed by ministers of the Crown, was absolutely essential in all cases in which they were put forward. The courts had to be able to have complete confidence in them. Nothing less was acceptable.

The Queen’s Bench Divisional Court so stated in an open judgment in judicial review proceedings brought by six Iraqi nationals, Khuder Al-Sweady, Hussein Fadel Abass, Atiyah Sayid Abdelreza, Hussein Jabbari Ali, Mahdi Jassim Abdullah and Ahmad Jabbar Ahmood, against the Secretary of State for Defence.

The claimants alleged the murder by British soldiers of Hamid Al-Sweady, the deceased nephew of the first claimant, and ill-treatment of the other five claimants on the night of May 14/15, 2004, after they had been brought back as prisoners to Camp Abu Naji, a British base in southern Iraq, following an engagement known as the battle of Danny Boy and subsequent ill-treatment during detention at the camp and at the temporary detention facility at Shaibah.

They asserted breaches of articles 2, (right to life) 3 (prohibition of torture) and 5 (right to liberty) of the European Convention on Human Rights and sought an order that there should be a new, effective and independent investigation into their allegations.

Mr Rabinder Singh, QC, Mr Michael Fordham, QC, Miss Shaheed Fatima and Mr Dan Squires for the claimants; Mr Clive Lewis, QC, Mr Sam Wadsworth, Miss Joanne Clement and Mr Robert Wastell for the Defence Secretary.

LORD JUSTICE SCOTT BAKER, giving the judgment of the court, largely prepared by Mr Justice Sweeney, said that throughout the proceedings there had been significant and continuing disclosure failures by the Secretary of State for Defence, including one which was of very grave concern to the court: the secretary of state had relied on what had transpired to be a partly false public interest immunity certificate and schedule in which it was asserted that it was not in the public interest, on national security grounds, to disclose certain redacted aspects of documents otherwise disclosed to the claimants.

Yet it had subsequently become clear that a significant proportion of that redacted material, all of which related to the permissible limits of the techniques of tactical questioning of captured individuals by military interrogators, had previously been disclosed in connection with the court-martial, R v Payne, held between September 2006 and April 2007, and the imminent Baha Mousa public inquiry.

The court’s attention had not been drawn to that until the secretary of state had supplied a supplemental certificate dated June 30, some weeks after the hearings in early May at which the court had been persuaded that the balance of public interest required non-disclosure.

The court should not have been misled into making a number of rulings which had subsequently been shown to have been wholly wrong.

As Lord Justice Laws had made clear in R (Quark Fishing Ltd) v Secretary of State for Foreign and Commonwealth Affairs (\[2002\] EWCA Civ 1409), there was a very high duty on central government to assist the court with full and accurate explanations of all the facts relevant to the issue which the court had to decide.

The system for dealing with public interest immunity claims in the courts of England and Wales depended on the scrupulous accuracy of the whole of the contents of the ministerial certificate and schedule, especially if, as in this case, the schedule dealt with issues of national security.

Until such time as the Ministry of Defence had taken steps to ensure that false assertions were never again made in a certificate and schedule, it would, in the court’s view, be incumbent on the courts to approach the content of any such documents with very considerable caution.

As a result of the disclosure failures, and the secretary of state’s consequent concession that there should be a new investigation, on July 6, 2009, the court, having heard evidence and submissions over some 20 court days, ordered a stay on proceedings and made an indemnity costs order for the whole of the proceedings, with an interim order for £1 million, in the claimants’ favour.

An annex listing the previous redactions which the court had now released was appended to the judgment.

Solicitors: Public Interest Lawyers, Birmingham; Treasury Solicitor.

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