Aamer v Secretary of State for Foreign and Commonwealth Affairs

The Norwich Pharmacal jurisdiction may be used to obtain information for proceedings or decision-making outside a court. Necessity is a flexible requirement assessed in all the circumstances. It does not require the information to be a missing piece of a jigsaw or obtainable only as a remedy of last resort.

Where disclosure is sought to enable a detainee’s lawyers to make meaningful representations to a review body, supplying documents to that body alone may be insufficient. The court may consider urgency, the importance of the decision, the procedural safeguards available, and whether any alternative source is straightforward and available. Relief may properly be sought against the United Kingdom Government in the English courts.

The claimant, a Saudi national and British resident detained at Guantanamo Bay, sought disclosure from the Secretary of State of material capable of supporting his case that confessions had been obtained through torture or ill-treatment.

The material had been supplied confidentially to the United States Guantanamo Review Task Force, but not to the claimant or his lawyers. The claimant sought disclosure so that representations could be made to the Task Force concerning his release or continued detention. The court considered whether the Norwich Pharmacal conditions of wrongdoing, facilitation, necessity, scope and discretion were satisfied.

1. Relief granted in principle. The court would grant Norwich Pharmacal relief, subject to further argument on statutory prohibitions on disclosure and public interest immunity. The precise terms of relief were reserved.
2. Applicable conditions. The relevant questions were whether there was wrongdoing, whether the United Kingdom Government was innocently involved in facilitating it, whether disclosure was necessary, whether the information fell within the available relief, and whether discretion should be exercised in favour of relief.
3. Facilitation. Facilitation did not require the defendant’s conduct to have caused the wrongdoing. Innocent involvement in facilitating arguable wrongdoing was sufficient. The Secretary of State took no point on this condition.
4. Necessity. The requirement was flexible and had to be assessed in the circumstances of the case. The court rejected an approach requiring the information to be vital to a decision to sue, a missing piece of a jigsaw, or obtainable only as a last resort. Relevant considerations included the applicant’s resources, urgency and the public interest in obtaining the information.
5. Meaningful representations. Providing potentially relevant documents to the Task Force did not give the claimant a fair opportunity to present his case. The interests at stake were grave, the review process lacked transparency and established procedural safeguards, and the material might not be understood without the claimant’s lawyers’ knowledge of his case. The information was therefore necessary to enable reasoned submissions.
6. Alternative remedies and discretion. The deadline for submissions did not defeat necessity, particularly in light of the Secretary of State’s delay and change of position. There was no straightforward or available alternative remedy through the Task Force or the stayed United States habeas corpus proceedings. Comity did not require the application to be made in the United States; if the United Kingdom Government were compelled to produce documents in its possession, the English courts were the appropriate forum.

Not an appeal. The application was brought in the Administrative Court, initially framed as judicial review but treated in substance as an application for Norwich Pharmacal disclosure.