Motasim v Crown Prosecution Service & Ors

A claim alleging unlawful detention under Article 5 should not be struck out as speculative merely because material supporting the claim is held by the defendants. Detention is prima facie unlawful, and the public authorities must plead and prove its justification, including the existence and continuation of reasonable suspicion. Investigating and prosecuting authorities must bring relevant exculpatory developments promptly to the court’s attention. Claims may be struck out where they truly disclose no reasonable grounds, but courts should be cautious about deciding developing areas of law on assumed facts. Sensitive evidence can be addressed through public interest immunity and closed material procedures. Security services that are neither investigating nor prosecuting authorities do not, without more, owe the Zenati duties.

The claimant was arrested and detained in connection with terrorism and firearms charges. After a public interest immunity application concerning third-party material, the material was ordered to be disclosed, but the Crown offered no evidence and the claimant was released after about nine months in custody.

He brought a claim under Article 5 of the Convention and section 6 of the Human Rights Act 1998, alleging that the prosecuting and investigating authorities had failed to disclose material undermining reasonable suspicion and had investigated the case without special diligence. The defendants applied to strike out under CPR 3.4(2), and also relied in substance on CPR 24.2. The central issues were whether the claim was speculative and whether claims could properly be maintained against the Security Service and Secret Intelligence Service.

1. Claim against the CPS and Commissioner. The claim disclosed reasonable grounds and was not struck out. A claim based on mere speculation may engage CPR 3.4(2)(a)–(c), but the pleaded facts here went beyond speculation.
2. Nature and burden of the Article 5 claim. Article 5 legitimises detention only where the authorities have and continue to have reasonable suspicion of an offence and bring the detainee promptly before a court that is kept informed of matters relevant to continued detention. The claim was analogous to, though distinct from, false imprisonment. Once detention is pleaded, the defendants must plead and prove lawful justification. The claimant was therefore not required to plead every fact demonstrating the absence of reasonable suspicion.
3. Application of Zenati v Commissioner of Police for the Metropolis & Anor [2015] EWCA Civ 80. The principles in Zenati required investigating and prosecuting authorities to bring relevant facts to the court’s attention when reasonable suspicion ceased, and recognised responsibility for delay causing a failure to proceed with special diligence.
4. Disclosure and sensitive material. Even if fuller pleading had been required, early disclosure could resolve the claim. Public interest immunity and closed material procedures under CPR 82, authorised through section 6 of the Justice and Security Act 2013, were available. Cost and administrative burden did not justify striking out a potentially meritorious claim.
5. Summary determination. The court should be cautious about disposing of claims in developing areas of law on assumed facts. The application was in substance also one for summary judgment, but the factual issues required determination on evidence.
6. Security services. The Zenati duties applied to investigating and prosecuting authorities. The pleadings did not allege that the Security Service or Secret Intelligence Service occupied either role, and disclosed no independent cause of action against them. The claim against the third and fourth defendants was struck out. The claim against the first and second defendants was not struck out or dismissed. No findings were made on the truth of the allegations, the strength of the criminal case, or the claimant’s guilt or innocence.