Mr Justice Leggatt grants Closed Material Procedure declaration in Rahmatullah torture claim

03/04/17

Rahmatullah v Ministry of Defence & Anor [2017] EWHC 547 (QB)

Mr Justice Leggatt has granted the Government’s application for a declaration under section 6 of the Justice and Security Act 2013 in a claim brought by two Pakistani citizens detained by UK forces in Iraq, Yunus Rahmatullah and Amanatullah Ali.

The Claimants seek damages arising from their unlawful detention, mistreatment and rendition by UK forces in 2004. Following their arrest during a night-time raid in Iraq, they were transferred to US custody and held at Bagram Airbase in Afghanistan for more than ten years, where they allege that they were tortured and subjected to inhuman and degrading treatment.

Granting the section 6 declaration paves the way for a closed material procedure and will enable the Defendants, the Foreign Office and the Ministry of Defence, to present sensitive evidence at hearings closed to the Claimants, their representatives and the public. The Claimants argued that any potentially sensitive material (their open representatives not being permitted to see the material at issue) had already come into the public domain, including through reports of the US Senate Intelligence Committee, statements made in Parliament, material released by Wikileaks and books and articles published by investigative journalists. They also argued that the passage of time since 2004 meant that there was no risk to national security in presenting the material in open court; and that there were numerous alternatives to a closed material procedure, including the disclosure of redacted versions of sensitive documents and the giving of confidentiality undertakings.

Mr Justice Leggatt stated that the CMP involved “a serious derogation from the fundamental principles of open justice and natural justice” but granted the declaration on the basis that it was necessary for the determination of the claim to consider the sources of the intelligence leading to the Claimants’ capture, and that there were no realistic alternatives to a CMP.

Mr Rahmatullah’s claim has already been before the Supreme Court on several occasions. In Foreign Secretary v Rahmatullah [2012] UKSC 48 the Supreme Court held that the Foreign Secretary and Minister of Defence were the appropriate respondents to a writ of habeas corpus, but that no further order was required upon the US authorities indicating that they would not comply. In Rahmatullah (No 2) v MOD; Mohammed v MOD [2017] UKSC 1, the Court considered the scope of the doctrine of Crown act of state and its application to certain of the Claimants’ claims in tort; a final declaration is awaited. In Belhaj v Straw; Rahmatullah v MOD [2017] UKSC 3 the Court rejected the Defendants’ attempt to rely on the doctrine of foreign act of state to defeat the proceedings. 

The judgment can be found here.