Amin v Director General of the Security Service (MI5) & Ors

A civil claim is an abuse of process where it seeks to re-litigate allegations that were fully raised and rejected in earlier criminal proceedings, particularly where those allegations formed the basis of an unsuccessful abuse-of-process application. The collateral-attack principle is applied flexibly, but factual differences, different burdens of proof, or a change in legal forum do not avoid it where the later claim depends on displacing the earlier findings. Fresh evidence should ordinarily be advanced through a criminal appeal. The obligation to provide an effective remedy for potential ill-treatment does not guarantee a second civil determination after competent criminal adjudication.

The claimant had been convicted of conspiracy after the trial judge rejected applications to exclude his interviews and stay the prosecution on the basis of alleged ill-treatment in Pakistan and alleged complicity by British agencies. The Court of Appeal upheld the conviction and the trial judge’s conclusions: [2008] EWCA Crim 1612.

The claimant subsequently brought civil claims in tort, negligence, misfeasance in public office and under the Human Rights Act 1998, alleging that British officers and agencies were complicit in his detention and interrogation. The defendants applied under CPR Part 3.4(2)(b) to strike out the claim as an abusive collateral attack.

1. Application granted. The Particulars of Claim were struck out as an abuse of the process of the court.
2. The central question was whether the civil claim sought to re-litigate issues already determined by a competent criminal court. The allegations in the civil proceedings were, for practical purposes, identical to those advanced before the trial judge. The claim depended on establishing British complicity, whereas the criminal judge had expressly rejected complicity.
3. The principle in Hunter v Chief Constable of the West Midlands Police [1982] AC 529 applied. The fact that the later claim was framed in tort, that the claimant distinguished guilt from treatment, or that different standards of proof applied did not prevent the claim from being a collateral attack on the criminal rulings.
4. Secretary of State for Trade and Industry v Bairstow [2003] EWCA Civ 321; [2004] Ch 1 confirmed that the Hunter principle is not automatic in every case. The court should consider the nature and effect of the earlier judgment, the nature and basis of the later claim, and any grounds relied on to justify the challenge. This case was materially different from Bairstow because the allegations concerned matters previously relied upon to seek a stay of the criminal prosecution.
5. The claimant’s further evidence was not materially fresh. In any event, evidence capable of justifying reconsideration of the criminal findings should be pursued by criminal appeal, rather than by civil proceedings.
6. El-Masri v Macedonia App 396330/09 recognised investigative and remedial obligations where Article 3 may have been breached, but did not require a second attempt to establish allegations already rejected by a competent court in the absence of significant fresh evidence.
7. The claim created an unacceptable risk that a successful civil action would be understood as showing that the claimant’s conviction was tainted by foreign mistreatment with which British agencies were complicit. That would bring the administration of justice into disrepute.

The judgment records that the claimant’s conviction was upheld by the Court of Appeal (Criminal Division) in [2008] EWCA Crim 1612. This was a first-instance decision on the defendants’ strike-out application.