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

Norwich Pharmacal relief cannot be used to compel evidence for foreign proceedings where Parliament has provided an exclusive statutory regime for obtaining such evidence. The jurisdiction is not extended merely because the foreign system may offer no practical route to invoke that regime. A court should respect comity, including engagement with the foreign court seized of the dispute, and should not permit a tactical decision to bypass that court's procedures. Necessity requires the claimant first to pursue reasonably available disclosure in the foreign proceedings. The court may also consider statutory safeguards, national security and foreign relations. Searches must be reasonable and proportionate, with a high standard where capital punishment and grave human-rights violations are alleged.

The claimants faced terrorism and murder proceedings in Uganda arising from the Kampala bombings. They alleged that they had been rendered from Kenya to Uganda and subjected to torture or other ill-treatment. They sought information and evidence from the Foreign Secretary for use in pending proceedings before Uganda's Constitutional Court.

The claims concerned the scope of Norwich Pharmacal relief, the statutory regimes governing evidence for overseas criminal proceedings, comity, necessity, alleged wrongdoing and involvement by UK officials, discretion, and the adequacy of searches for material concerning ill-treatment. The court also considered whether closed proceedings were permissible by agreement, without deciding the wider implications of Al Rawi and others v The Security Service and others [2011] UKSC 34 or AHK v Secretary of State for the Home Department [2012] EWHC 1117 (Admin).

1. Disposition. The claims for judicial review were dismissed.
2. Evidence for overseas proceedings. The claimants sought evidence, not merely information. The power to compel evidence for use in foreign proceedings has always been statutory. Norwich Pharmacal proceedings are not generally ousted, but the court must decline to order evidence where that would circumvent the statutory regime and its safeguards. This remained so even if Uganda lacked a practical procedure enabling the claimants themselves to invoke the regime.
3. Statutory safeguards. The absence of a request from the Ugandan Constitutional Court was material. So were the statutory protections concerning national security and evidence from Crown officers. Equitable relief could not defeat those provisions.
4. Comity and necessity. The claimants had to raise the matter before the Ugandan court, which was seized of the dispute and best placed to control disclosure and decide whether a request should be made to the United Kingdom. A tactical decision not to seek disclosure in Uganda did not satisfy necessity. The applications therefore failed on independent grounds.
5. Involvement. The relevant Norwich Pharmacal test requires involvement amounting to participation or facilitation of the wrongdoing. Mere association with the alleged wrongdoer was insufficient.
6. Discretion and searches. Assuming the claimants could otherwise obtain relief, the court would refuse it in the exercise of discretion, giving very considerable weight to the likely damage to UK-Ugandan relations. For the ill-treatment claim, the Foreign Secretary had conducted reasonable and proportionate searches. The high standard required in the circumstances was met.

Collins J refused Mr Omar's application, but the Court of Appeal allowed the claim to proceed in relation to rendition and refused it in relation to ill-treatment: [2011] EWCA Civ 1587. This court later granted permission in Mr Njoroge's rendition claim but refused permission concerning ill-treatment. The Court of Appeal subsequently granted Mr Njoroge and Mr Mbuthia permission to pursue their ill-treatment claims. The present court dismissed all claims.