The Queen on the Application of Omar and Others v. The Secretary of State for Foreign and Commonwealth Affairs  EWCA Civ 118. (Delivered, 27 February, 2013) (Decision of the High Court,  EWHC 1737 (Admin).
On 11 July 2010, terrorist bombings occurred in Kampala, Uganda. Seventy-six people were killed, and Al-Shabaab (a militant Islamic group) claimed responsibility for the attacks. The claimants, Mr Omar and others argued that they were subject to unlawful detention in Kenya, to rendition from Kenya to Uganda, and that they were subject to torture and other cruel and inhumane treatment. They stated that in none of the cases were official extradition proceedings initiated or other judicial scrutiny applied to the transfers (see, High Court decision, para 5). They argue that along with the FBI and Interpol, British intelligent services were involved (New Scotland Yard) in their apprehension, and that the British government possessed information which could be used in their defence before the Constitutional Court of Uganda. Mr Omar argued that the prosecution was an abuse of process and thus unconstitutional. If convicted in Uganda, there was the possibility of the death penalty, and so the appellants asserted grave human rights violations (HC, para 16).
For the claimants, Ms Kaufmann QC sought the disclosure of evidence from the Secretary of State that would support the arguments that a rendition and ill-treatment had occurred without due process of law. Mr Elias QC stated that there is evidence that the applicants were arrested in Uganda, and that rendition did not occur. The High Court accepted this position and the evidence within affidavits from, inter alia, the Senior Commissioner of Police in Uganda, the Acting Director of Civil Litigation of the Attorney-General of Uganda, and “officials” of the Government of Uganda (HC, para 43).
As it was claimed that a British intelligence agency was “mixed up” in the transfer of the suspects, the High Court decided to place this part of the case within “closed proceedings,” under the Closed Material Procedure. Both parties accepted this in the High Court (HC, paras 17-19) and this process was also agreed to and applied in the Court of Appeal proceedings (CA, para 40).
The High Court established six questions to adjudicate on the proceedings; (i) Can the court order the provision of evidence for proceedings in overseas courts other than through the statutory regime? (ii) Should the court grant relief when the claimants have decided not to seek relief in Uganda? (iii) Is the requirement of necessity satisfied? (iv) Was there alleged wrongdoing? (v) Were those for whom the Foreign Secretary is responsible mixed up in it? (vi) How should the discretion be exercised?
To answer these questions the High Court identified the “statutory regime” for criminal and civil proceedings. The criminal proceedings fall within the Crime (International Co-operation) Act 2003, and the civil proceedings under the Evidence (Proceedings in Other Jurisdictions) Act 1975. Under the 2003 Act, Schedule 5(4), states, “A person cannot be compelled to give any evidence if his doing so would be prejudicial to the security of the United Kingdom.” Strengthening these statutory provisions, the Harare Scheme, an agreement between Commonwealth Law Ministers in 2005 was established, and the Scheme Paragraph 8(2)(a) states, “to the extent that it appears to the Central Authority of that Country that compliance would be contrary to the Constitution of that country, or would prejudice the security, international relations or other essential public interests of that country...” the provisions for supplying evidence can be denied. Hence the statutes governing the criminal proceedings affirm that the security and public interests of the state are paramount legal considerations.
The question before the Court of Appeal was whether Norwich Pharmacal relief was excluded where a “statutory regime covers the ground” (para 10). In Norwich Pharmacal v. Customs and Excise Commissioners  AC 133, Lord Reid stated:
“[The authorities] seem to me to point to a very reasonable principle that if through no fault of his own a person gets mixed up in the tortuous 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...justice requires that he should cooperate in righting the wrong if he unwittingly facilitated its perpetration” (page 175B).
The High Court utilised Lord Diplock’s reasoning in, Rio Tinto Zinc Corporation v. Westinghouse  AC 547, when he stated, “The jurisdiction of English courts to order persons within its jurisdiction to provide oral or documentary evidence in aid of proceedings in foreign courts has always been exclusively statutory” (page 633). So the High Court held that outside of the statutory regime, “the courts had and have no jurisdiction to use their processes for the purpose of providing evidence in foreign states” (HC. 63). The Court of Appeal agreed and saw no way around holding that the statutory regime trumps Norwich Pharmacal relief.
A Failed Tactical Decision and the Implications for the Test of Necessity
The evidence placed before the High Court was that the Ugandan lawyers for the applicants had made a “tactical decision” and “deliberately decided not to seek to use the processes of the Constitutional Court [of Uganda] to obtain discovery from the defendants; nor have they sought to persuade that Court that a request ought to be made in the United Kingdom” (HC, para 74). In light of these facts the Court was sympathetic to Mr Eadie QC’s submission that for reasons of comity, a British Court should be cautious with regards to the actions of a foreign jurisdiction, and be cautious in interfering with matters where the “foreign Court is better able to reach a judgment on the means of obtaining information from its own Government” (HC, para 75). The High Court held:
“77. we should have regard to management and conduct of the case in the Constitutional Court in Uganda, the policy of the Constitutional Court to the making of orders for disclosure and any risk of disharmony or confusion or inconsistent decisions between the proceedings before us and the proceedings before the Constitutional Court.
78. It is not in the interests of comity for this court to entertain this application when a tactical decision had been made not to make an application for disclosure against the Ugandan Government in the Constitutional Court.”
The High Court affirmed the principle established by Templeman LJ, in British Steel Corporation v. Granada Television Limited  AC, 1086, when he stated, “The remedy of discovery is intended in the final analysis to enable justice to be done” (1132), and so it was identified that “the requirement of necessity is a requirement that must be dictated flexibly in the circumstances of each case” (HC, para 83). As such the question of necessity was placed in context with the applicants’ failure to raise the constitutional issues in Uganda. The High Court stated that necessity centred on the issue of whether disclosure could be obtained in Uganda by the applicants and justice achieved through the Ugandan courts, and whether there were good reasons why that had not been done. So the High Court stated:
“85. On the assumption, contrary to the views we have expressed, the claimant is entitled to pursue Norwich Pharmacal proceedings to obtain evidence, the exemptions in the statutory scheme do not operate as a bar and the failure to apply to the Ugandan Court is not a bar by reason of comity and harmony between the jurisdictions, then it is our view the application does not meet the requirement of necessity and must fail for that further reason.
86. In our view the test of necessity cannot be met until the claimants have applied for disclosure in Uganda in relation to their arrest. We cannot assume at this time that the courts of a friendly foreign state will fail properly to consider an application for disclosure. Tactical reasons, however well intentioned, cannot in the circumstances of a case such as this override the need to apply in Uganda first. ”
Both the British High Court and Court of Appeal displayed respect for the Ugandan criminal justice system. Even when Mr. Peter Walubiri, lead counsel for the appellants in the Ugandan Constitutional Court, stated, and speculated upon, a potential grave risk that the respondents would either produce no documents or fabricate documents, the Court of Appeal stated, “even if that risk were to materialise, it would be wrong for this court to assume that the forensic skills of the appellants’ legal representatives and the astuteness of the Constitutional Court would fail to expose it. This flows from the concept of soundly based comity” (CA, para 34).
The Security of the State v. A “Justice Gap”
Ms Kaufmann asserted that the 2003 Act leaves a “justice gap” in relation to the protection of a defendant in foreign criminal proceedings (para 17), and that Norwich Pharmacal relief, can provide a flexible remedy through adequate checks and balances (para 18). Mr. Eadie argued that under the legislation, the “exclusion of the defendant in the foreign criminal proceedings from the list of eligible applicants,” together with, “the discretionary nature of the Secretary of State” role, cannot be used to claim a consequent injustice and to invite the court to undermine the statutory regime (para 19).
These arguments led the Court of Appeal to state, “In truth the rival submissions can be reduced to a question formulated with the use of the most striking forensic flourishes from two powerful leading counsel: Are we to “fill a justice gap” or “respect a sovereignty limit”? (para 20). Lord Woolf CJ stated in Ashwood Hospital Authoeirty v. MGN Ltd  1 WLR 2033:
“The Norwich Pharmacal jurisdiction is an exceptional one and one which is only exercised by the courts when they are satisfied that it is necessary that it should be exercised. New situations are inevitably going to arise where it will be appropriate for the jurisdiction to be exercised where it has not been exercised previously. The limits which applied to its use in its infancy should not be allowed to stultify its use now that it has become a valuable and mature remedy” (para. 57).
Even with the possibility of a British national facing the death penalty, the Court of Appeal did not allow it to be “valuable and mature” as it did not think it, “necessary that it should be exercised.” The court stated that the Norwich Pharmacal jurisdiction, “cannot penetrate an area fenced off by statute” (para 21). Hence, the court ruled that there does in fact exist grounds where it can “stultify its use.” The “respect of a sovereign limit” trumped a “justice gap,” even when an individual finds himself within a capital judicial system of a foreign state.
“Mixed-up” in Rendition and Ill-Treatment
In the issue of the UK government being “mixed-up” in the rendition and ill-treatment, the appellant argued that it was enough for the initiation of Norwich Pharmacal relief, if the UK intelligence services were “involved” in some way, and “participation” was not required to be proven. Lord Woolf in Ashworth Hospital v. MGN  1 WLR 2033, stated in considering Norwich Pharmacal relief it is clear, “that what is required is involvement or participation in the wrongdoing...” (para 30). In considering the etymology of this reasoning, the High Court disagreed with Ms. Kaufmann and held that, “Involvement is used in both Norwich Pharmacal itself and in Ashworth as a word synonymous with participation...[counsel’s] submission would impose the duty on too wide a category of person” (para 97). However, participation was required to establish the limits of the policy, and so the court set a stringent standard for the appellants to meet.
It is the applicants’ position that the British intelligence services had been involved in their apprehension and rendition from Kenya, and they presented evidence through, inter alia, Lord Howell of Guildford’s Parliamentary Question on 19 July 2010 which confirmed the involvement, and an affidavit of a Detective Inspector of the Uganda Police in the Constitutional Court proceedings. However, the Kenyan and Ugandan governments disagreed with the applicants as to the location of the apprehension and argued that Mr Omar and a co-claimant were in fact arrested in Uganda, not Kenya. Evidence in support of this claim included affidavits from, inter alia, a Senior Commissioner of Police in Uganda and the Acting Director of Civil Litigation of the Attorney-General of Uganda (HC, para 43).
Ms Kaufmann lost on this issue in the High Court, however the Court of Appeal accepted her argument, but stated that it would consider the Secretary of State being “mixed-up” in the circumstances in its closed judgment (para 40). This is due to the sensitive nature of the information in question. However, the final judgment of the Court of Appeal is that for the reasons detailed above, the English Courts lack jurisdiction to hear and determine the Norwich Pharmacal application. The High Court held, “In our judgment, despite the gravity of the alleged wrongdoing and the fact that the claimants are at risk of the death penalty, we should exercise our discretion and refuse relief.” The Court of Appeal agreed.
In one reading of this judgment, it displays a cogent contribution to the growing discourse on the “global practice of modern constitutional law,” and a cross-fertilisation between courts on constitutional principles in different countries can be recognised. It is commendable that the British courts accepted the legitimate authority of the Ugandan criminal justice system, and also the Ugandan courts, to effectively deal with the fact finding processes in its own country. However, the scholarship on jurisprudential global cross-fertilisation, points to the creation of greater legitimacy in constitutional court judgments. This is synonymous with them not being completely isolated through statist constitutionalism, but envisioning, and being part of, a cosmopolitan legal order that is grounded in international human rights. This cosmopolitan jurisprudence would point to promoting the right to human dignity, the right to life, the prohibition of inhuman and degrading treatment or punishment, and specifically the abolition of the death penalty. However, this judicial conversation between the UK and Ugandan court, in the case of Omar and Others, has helped preserve the capital judicial process, not neutralise it.
Both the British High Court and the Court of Appeal fails to adequately apply the public law principle of “necessity.” The Court of Appeal ultimately confines the principle of necessity to the fact finding process of the legality of the rendition and ill-treatment. The central fact is that the proposed involvement of the UK security services does not just contribute to the collation of evidence for the fact finding process. The security services’ involvement, ipso facto, cannot be dissociated from the possibility of a death sentence and execution. The public law principle of necessity should have been applied to all aspects of the capital judicial process, not just to the exhaustion of the rules of evidence. The UK has abolished the death penalty domestically, it has adopted regional law to solidify abolitionism, and it also is a prominent state in promoting abolition globally, for example in its work in the United Nations.
Having said this, it would be wrong to state that the “executive” and “legislature” advertently allows for “acceptable” death penalties in third countries, through the “statutory regime” of the 2003 Act and the Harare Scheme. At best it is an inadvertent consequence, which has been illuminated by the Court of Appeals' confined interpretation. There is certainly no British government policy which expressly allows for the operation of the death penalty in third countries through the back door, or as an (un)intended consequence. However, following this litigation and the subsequent judicial decisions, the British government should now bring the 2003 Act and the Harare Scheme in alignment with the abolitionist position under Protocol No. 13 ECHR, and the promotion of abolition within EU law.
For extra information on these death penalty issues see:
Jon Yorke, Inhuman Punishment and Abolition of the Death Penalty in the Council of Europe, 16 European Public Law, 1, 2010
Jon Yorke, The Right to Life and Abolition of the Death Penalty in the Council of Europe, 34 European Law Review, 2, 2009, 205
Jon Yorke, Extradition, Terrorism and the Death Penalty in Africa: Charting through the Labyrinth, 15 Amicus Journal 25-34, 2005