Khan, R (On the Application Of) v The Secretary of State for Foreign And Commonwealth Affairs

A court will not grant an advisory declaration about prospective criminal liability where the alleged conduct and the defendant’s state of mind depend on unproved and fact-sensitive circumstances. A declaration that merely reproduces complex statutory language, without identifying the facts and mens rea required for liability, would be useless or misleading.

Judicial review must also be refused where the declaration would necessarily require the court to adjudicate upon the legality or acceptability of a foreign sovereign’s acts. The existence of a domestic criminal-law issue does not avoid that obstacle where secondary liability inevitably requires consideration of the principal’s alleged criminal conduct.

The claimant sought judicial review concerning the alleged provision by GCHQ employees of locational intelligence to United States agents for use in drone strikes in Pakistan. He sought declarations concerning combatant immunity, possible secondary criminal liability, and the Secretary of State’s alleged duty to formulate and publish a policy governing the transfer of intelligence.

The Secretary of State opposed permission on grounds including foreign-act non-justiciability, the advisory nature of the proposed declarations, the fact-sensitive character of the criminal-law issues, and the possible absence of a closed-material procedure. The central issues were whether the claim disclosed a justiciable domestic legal right and whether any meaningful declaration could be made on the available factual basis without adjudicating upon United States activities.

1. Permission refused. The real aim of the proceedings was to obtain a public condemnation of United States drone operations in North Waziristan. The court had to examine the substance and practical effect of the relief sought, rather than its formulation.
2. The courts will not sit in judgment on the acts of a foreign sovereign within its own territory, including their legality, validity or acceptability under domestic or international law. A domestic court’s legal ruling may be regarded internationally as the position of the United Kingdom and may damage foreign relations: Underhill v Hernandez (1897) 168 US 25, 252; Buttes Gas and Oil Co v Hammer (No.3) [1982] AC 888; Kuwait Airways Corporation v Iraqi Airways Co (Nos 4 and 5) [2002] 2 WLR 1353.
3. That principle is not absolute where determination of international-law issues is necessary to vindicate an identified domestic legal right or obligation. A legitimate criminal-law defence may provide such a domestic foothold. However, a right must first be recognised, and the subject matter of the proposed right may itself militate against its existence: R (Gentle) v Prime Minister [2008] 1 AC 1356; R v Gul (Mohammed) [2012] 1 Cr App R 37.
4. The proposed declarations concerning sections 44 to 46 of the Serious Crime Act 2007 could not usefully identify when intelligence-sharing would amount to encouraging or assisting an offence. Liability depends on the nature and effect of the particular conduct and on the provider’s knowledge, belief or intention. Replicating the statutory wording in a declaration or policy would provide no meaningful guidance and could wrongly characterise lawful conduct as criminal.
5. The absence of any realistic prospect of prosecution did not justify declaratory relief. The claim depended on unconfirmed reports and conjectural facts, while oversight mechanisms existed through the Intelligence and Security Committee and the relevant commissioners. The court therefore had no need to determine combatant immunity, the status of the conflict, or the alleged criminality of United States personnel.
6. The court refused to determine the unresolved and difficult extra-territoriality question whether a GCHQ employee could incur secondary liability where the alleged principal could not be prosecuted under domestic law. Those difficulties reinforced the conclusion that the proposed declaration would be inappropriate.