Mohamed, R (on the application of) v Secretary of State for Foreign & Commonwealth Affairs (Rev 31-07-2009)

The Norwich Pharmacal jurisdiction is flexible but exceptional. It may require a third party to provide information where the claimant has an arguable case of wrongdoing, the third party became involved in or facilitated it, the information is necessary, and disclosure is proportionate in the circumstances. Causation of the wrongdoing is unnecessary; innocent facilitation may suffice. The jurisdiction is not confined to identifying wrongdoers and may extend to specific information essential to securing a fair determination of a serious criminal case. It does not authorise wide-ranging discovery or a fishing expedition. The prohibition of torture is a fundamental common-law and international-law principle, but neither article 15 of the Torture Convention nor customary international law imposes on the United Kingdom a general duty to disclose material for use in another State’s proceedings.

Binyan Mohamed, an Ethiopian national formerly resident in the United Kingdom, was detained in Pakistan in 2002 and subsequently held by or on behalf of the United States. He alleged unlawful incommunicado detention, rendition, torture and cruel, inhuman or degrading treatment. He faced charges before United States Military Commissions which could attract the death penalty.

The Foreign Secretary held information potentially relevant to his detention and treatment but declined voluntary disclosure, relying principally on national security and the possibility of disclosure through the United States process. Mohamed sought disclosure under Norwich Pharmacal principles, judicial review of the refusal, and disclosure under public international law. The central issues concerned involvement or facilitation, necessity, the permissible scope of relief, discretion, and whether international law created an independent disclosure duty.

1. The court held that an arguable case of wrongdoing was sufficient for the purpose of the application. It was therefore unnecessary to determine whether the United States had in fact committed the alleged wrongdoing.

2. For Norwich Pharmacal purposes, involvement does not require the claimant to prove that the defendant caused the wrongdoing. Innocent participation or facilitation is sufficient. The court must ask whether the defendant became involved in or participated in the wrongdoing through facilitating it, having regard to all the circumstances and the flexible nature of the remedy.

3. The Security Service had facilitated interviews of Mohamed while he was detained incommunicado and without access to a lawyer. It continued to provide information and questions after receiving reports concerning his detention and treatment, and after appreciating that he was being held at a covert foreign facility. Its relationship with the United States authorities was substantially more than that of a bystander or witness.

4. Necessity does not mean that the information must be the missing piece of the jigsaw or obtainable only as a remedy of last resort. Those formulations impose an undue constraint on a flexible remedy. The information was essential to a fair consideration of Mohamed’s case and a fair trial, because it provided important independent support for his account and might bear on the admissibility of confessions obtained after prolonged detention.

5. The jurisdiction may extend beyond identifying a wrongdoer to specific information necessary to protect life and liberty, although it does not permit general discovery or evidence gathering. Type A information specifically concerning Mohamed fell within the possible scope of relief; the broad Type B request did not.

6. In exercising discretion, the court gave substantial weight to the seriousness of the potential consequences, the United Kingdom’s knowledge and involvement, and the fundamental prohibition of torture and cruel, inhuman or degrading treatment. Subject to public-interest immunity and further consideration of national security, the court would order provision of the specific Type A information in an agreed or court-determined form.

7. The refusal of voluntary disclosure was not irrational or unreasonable. The claim based on an independent duty under article 15 of the Torture Convention and customary international law failed. Article 15 requires the State responsible for proceedings within its jurisdiction to prevent reliance on statements obtained by torture; it does not impose on the United Kingdom an implied duty to disclose material for proceedings in another State. No sufficiently established customary rule requiring such disclosure was shown.

First-instance proceedings in the Divisional Court of the Queen’s Bench Division. The court determined the Norwich Pharmacal issues in Mohamed’s favour subject to public-interest immunity and further orders, but rejected the irrationality challenge and the alleged independent duty under public international law.