Foreign tribunal - Evidence for purpose of criminal proceedings - Disclosure and inspection of documents

R (on the application of Omar and others) v Secretary of State for Foreign and Commonwealth Affairs: QBD (Admin) (Sir Anthony May ­(president), Mr Justice Burnett): 26 June 2012

The claimants were individuals who had been arrested and were being detained in Uganda in respect of the Kampala bombing that occurred in 2010.

If convicted they faced the death penalty. In the Constitutional Court of Uganda, the claimants issued a petition contending that they had been rendered from Kenya to Uganda illegally and that they had been tortured and ill-treated. They submitted that their rendition made the proceedings against them unlawful and an abuse of process. The claimants also issued proceedings in England claiming relief pursuant to Norwich Pharmacal Co v Customs and Excise Comrs ([1973] 2 All ER 943). They alleged that the UK intelligence services had been involved in the rendition and ill-treatment. Accordingly, the claimants sought Norwich Pharmacal relief against the defendant secretary of state requiring him to provide information and evidence which would establish the claimants' rendition and ill-treatment, and that that information and evidence could be used in the Ugandan proceedings.

The issues to be determined were, inter alia, whether the court could order the provision of evidence for proceedings in overseas courts other than through the statutory regime provided by the Crime (International Co-operation) Act 2003. The secretary of state submitted that as parliament had legislated in relation to the provision of assistance to overseas states in connection with legal proceedings, the courts should be respectful of the statutory regime and should not permit the statutory regime to be bypassed through the use of the Norwich Pharmacal ­procedure. The application would be dismissed.

(1) The legislative history of the statutory regime had made clear that the scheme for compelling evidence for use outside the jurisdiction was exclusively statutory. Therefore, the legislation was necessary to confer on the courts power to compel the giving of evidence to be used in overseas proceedings and that, therefore, the jurisdiction had always been exclusively statutory. The result was that the power of the courts to use Norwich Pharmacal proceedings had to be developed within the confines of the existence of the statutory regime through which evidence in such proceedings overseas had to be obtained. Norwich Pharmacal proceedings were not ousted, but where proceedings were brought to obtain evidence, the court as a matter of principle ought to decline to make orders for the ­provision of evidence, as distinct from information, for use in overseas ­proceedings. It could not permit the statutory regime, with the safeguards that it had contained, to be circumvented (see [56], [61], [64] of the judgment).

In the instant case, it had not mattered that there might not be a procedure in Uganda for obtaining evidence from the UK to be used in those courts. The statutory regime provided by the act had been the only means by which evidence for use in foreign proceedings might be obtained and Norwich Pharmacal proceedings had never been used to obtain evidence for use in proceedings. The jurisdiction of the court had been confined to the statutory regime. However, even if it had been permissible in principle, to have made an order for the provision of evidence to be used in overseas proceedings, the court should not permit Norwich Pharmacal proceedings to be used in circumstances where the statutory requirements and exceptions would have defeated its use. The fact that no request had been made to the Constitutional Court in Uganda and that that court had not expressed its wish that the UK assist had been material. To have permitted the instant proceedings to proceed without a request from the Constitutional Court would have evaded a principal requirement of the statutory regime. Therefore, it had not been permissible to seek evidence through Norwich Pharmacal proceedings without complying with the requirements of the act (see [66]-[68] of the judgment).

Philippa Kaufmann QC and Tom Hickman (instructed by Public Interest Lawyers) for the first claimant; Philippa Kaufmann QC and Ben Cooper (instructed by Bhatt Murphy) for the second and third claimants; James Eadie QC, Jonathan Hall and Karen Steyn (instructed by the Treasury Solicitor) for the secretary of state; Angus McCullough QC and Ben Watson (instructed by the Special Advocates Support Office) appeared as special advocates.