Omar, R (on the application of) v Secretary of State for Foreign & Commonwealth Affairs

For a Norwich Pharmacal application supporting foreign proceedings, necessity is assessed at the permission stage by reference to the particular circumstances and the issues arising, or likely to arise, abroad. Disclosure may be arguably necessary where specific material could materially strengthen a claim of unlawful rendition and abuse of process, even if the foreign authorities’ position remains uncertain. The jurisdiction may assist the protection of life and liberty in exceptional cases, but it is not a substitute for full criminal disclosure or wide-ranging evidence gathering. Material sought merely to investigate ill-treatment, obtain exculpatory evidence, or support a foreign defence without establishing necessity falls outside the jurisdiction. Complaints about mistreatment by British intelligence officers should ordinarily be pursued before the Investigatory Powers Tribunal where it has jurisdiction.

Mr Omar, a Kenyan citizen living in Nairobi, alleged that he had been detained in Kenya, transferred unlawfully to Uganda, interrogated by American and British intelligence officers, and ill-treated. He was subsequently charged with involvement in the Kampala bombings and sought disclosure from the Secretary of State for use in Ugandan criminal, judicial review and Constitutional Court proceedings.

Collins J refused permission to apply for judicial review. On 12 October 2011, Sir Stephen Sedley granted permission to appeal, limiting the appeal to that refusal rather than granting permission to apply for judicial review. The Court of Appeal therefore considered whether permission was arguable on four grounds: unlawful rendition and abuse of process, ill-treatment, exculpatory material, and the jurisdiction of the Investigatory Powers Tribunal.

The Court was concerned only with permission to apply for judicial review. It did not determine whether disclosure would ultimately be ordered, whether relevant material existed, or whether public interest immunity applied.

1. Unlawful rendition and abuse of process. At the permission stage, Mr Omar needed only to show an arguable case that disclosure was necessary. Material confirming the circumstances and timing of his transfer, or a British intelligence interrogation shortly afterwards, could materially enhance his prospects of establishing unlawful rendition and an associated abuse-of-process claim. It was too narrow to assume that the foreign proceedings would be resolved by inference from the absence of evidence of extradition. Prematurity was not decisive, since the foreign authorities’ position was uncertain and necessity could be revisited if circumstances changed.
2. Scope of the jurisdiction. The Norwich Pharmacal jurisdiction is fact-specific and proportionate. In exceptional circumstances it may extend beyond identifying a wrongdoer or supplying a single missing fact, including where information is needed to protect life or liberty, as illustrated by [2009] 1 WLR 2579. It does not authorise full-blown discovery or the gathering of anything that might assist a foreign prosecution defence.
3. Ill-treatment and exculpatory material. Because Mr Omar did not allege that ill-treatment produced an unreliable confession, the material sought to substantiate ill-treatment, a sham prosecution, mistreatment of other suspects or an alternative account by a co-accused was not arguably necessary. Those requests amounted to impermissible evidence gathering. Permission was refused on Issues 2 and 3.
4. Investigatory Powers Tribunal. The Tribunal had jurisdiction over the complaint that the Consolidated Guidance to Intelligence Officers had been breached. Its statutory closed procedure was compliant with Article 6 of the European Convention on Human Rights and Fundamental Freedoms. That alternative remedial route should prevail over judicial review. Permission was refused on Issue 4.

The appeal was allowed in part. Permission to apply for judicial review was granted on Issue 1 and the matter was remitted to the Administrative Court for substantive hearing on that limited basis. Sullivan LJ agreed. The Master of the Rolls agreed with the result, while recording greater initial difficulty on Issue 1.

• Court of Appeal (Civil Division): In [2011] EWCA Civ 1587, permission to apply for judicial review was granted on the unlawful rendition and abuse-of-process ground, refused on the other grounds, and the case was remitted for substantive hearing on the limited basis.
• Queen’s Bench Division, Administrative Court: Collins J refused permission to apply for judicial review.
• Permission to appeal: On 12 October 2011, Sir Stephen Sedley granted permission to appeal against the refusal of permission to apply for judicial review, without granting substantive judicial review permission.