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

Permission for Norwich Pharmacal disclosure requires an arguable basis that the respondent was mixed up in the alleged wrongdoing and that disclosure is necessary for the intended proceedings. A claim supported by sufficiently similar circumstances to another claimant’s arguable case should not be distinguished artificially, particularly where the defendant has not challenged the relevant threshold issue in the comparable case. Disclosure is refused where the request amounts to wide-ranging discovery or evidence gathering. Reasonable and proportionate searches, conducted in good faith, ordinarily satisfy any further obligation where no material has been found.

The claimants were detained in Uganda and faced serious criminal charges arising from the Kampala bombing. They sought permission to bring judicial review proceedings challenging the Secretary of State’s refusal to disclose documents concerning alleged rendition from Kenya to Uganda and alleged ill-treatment in Kenyan and Ugandan custody.

The court considered the claims by reference to the related proceedings of R (Omar) v Secretary of State for Foreign and Commonwealth Affairs, in which the Court of Appeal had granted permission concerning alleged rendition but refused permission concerning alleged ill-treatment. The central issues were whether the claimants had shown an arguable case that United Kingdom officials were mixed up in the alleged rendition and whether the requested documents were necessary rather than sought as wide-ranging discovery or evidence gathering.

1. Rendition claim by Mr Njoroge. Considered alone, the evidence was tenuous and insufficient to establish an arguable case that persons for whom the Secretary of State was responsible were mixed up in the alleged rendition. However, the claim had to be considered in the context of the common case advanced by the petitioners before the Ugandan Constitutional Court, including the allegation of United Kingdom involvement in the wider operation.
2. Because the Secretary of State had not contested Mr Omar’s permission application on the basis that there was no evidence of United Kingdom involvement, and because Mr Njoroge’s position was materially similar, it would be unjust to distinguish the claims. Permission was therefore granted in relation to documents concerning Mr Njoroge’s alleged rendition. The possibility that rendition might later cease to be contested did not prevent the claim from proceeding.
3. Ill-treatment claims. The court accepted that Mr Njoroge’s case differed from Mr Omar’s because Mr Njoroge had signed a confession. It assumed, without deciding, that the documents might be necessary to support an abuse-of-process argument. It also accepted that sufficient material existed at that stage to make an arguable case that the United Kingdom Government knew of serious mistreatment by Uganda’s Rapid Response Unit.
4. Nevertheless, the requests concerning ill-treatment fell within the category of wide-ranging discovery or the gathering of evidence. They were therefore refused, applying the reasoning that governed the comparable claim. The Secretary of State had also carried out reasonable and proportionate searches and had found nothing. There was no basis to doubt his good faith or to require further searches under Norwich Pharmacal principles.
5. The permitted part of Mr Njoroge’s claim was to be heard with Mr Omar’s claim, with provision for appointment of the same Special Advocate.