Amin v Director General of the Security Service & Ors

A civil damages claim is an abuse of process where, viewed objectively and on a broad merits-based assessment, its success would in substance undermine a subsisting criminal conviction by contradicting findings fundamental to it. The claimant’s motive, the different form of action, and differences between individual issues do not prevent that conclusion.

A trial judge’s ruling following a criminal voir dire is a final decision of a competent court for this purpose. The jury’s separate function of assessing reliability and weight does not detract from that finality. Fresh evidence can justify collateral relitigation only where it entirely changes the aspect of the case and could not with reasonable diligence have been obtained earlier.

The claimant alleged that, while detained by the Pakistani ISI, he was tortured and that British officers were complicit in his detention and ill-treatment. At his criminal trial, the trial judge rejected the allegations of British complicity and held that the claimant’s confessions in England were admissible. The claimant was convicted, and his appeal against conviction failed.

He later brought a civil claim for false imprisonment and personal injury against the security and governmental respondents. Irwin J struck out the claim as an abuse of process: [2013] EWHC 1579 (QB). The central issue was whether the civil proceedings impermissibly sought to relitigate matters determined in the criminal proceedings and thereby mount a collateral challenge to the conviction.

1. Appeal dismissed. Moore-Bick LJ, with whom Tomlinson and Underhill LJJ agreed, held that the civil claim was an impermissible collateral attack on the claimant’s conviction. Its essential allegations were that he had been detained and tortured, and that British officers had been complicit. Both matters had been investigated and rejected in the criminal proceedings.

2. The question was not resolved by mechanically comparing each issue in the civil claim with those raised on the voir dire. Applying the broad merits-based approach in Johnson v Gore Wood & Co, the court had to ask whether success in the later proceedings would in substance undermine the conviction. A successful claim would seriously undermine the reliability of the rulings which admitted the confessions and refused a stay of the indictment. It would therefore cast doubt on the safety of the conviction, even though a different outcome at trial would not be inevitable.

3. The criminal trial judge’s ruling was a final decision of a competent court for abuse-of-process purposes. The jury’s ability to assess the reliability and weight of the confessions did not alter the finality of the judge’s admissibility ruling. The claimant’s proposed tort claims, including claims based on joint liability and direct failures by public authorities, could not avoid that consequence because complicity was fundamental to each claim.

4. The alleged fresh evidence did not justify a departure from the earlier rulings. The stringent Phosphate Sewage test required evidence which entirely changed the aspect of the case and which reasonable diligence could not have obtained earlier. The new material did not meet that standard. The proper course for material capable of undermining the conviction was an application to the Criminal Cases Review Commission, rather than collateral civil proceedings.

5. Permission to appeal was granted on grounds 3 to 10 and 14, but refused on the fresh-evidence grounds. The appeal was dismissed.

• Court of Appeal (Civil Division) — dismissed the claimant’s appeal and upheld the strike-out of the civil claim as an abuse of process: [2015] EWCA Civ 653.
• High Court, Queen’s Bench Division — Irwin J struck out the particulars of claim and dismissed the claim as a collateral challenge to matters decided in the criminal proceedings: [2013] EWHC 1579 (QB).