9 July 2020 by

In R (Reprieve & Ors) v Prime Minister [2020] EWHC 1695 (Admin), the Excessive Courtroom made a preliminary ruling that Article 6(1) of the ECHR doesn’t apply to the forthcoming judicial overview of the Authorities’s choice to not set up a public inquiry into allegations that the UK intelligence providers have been concerned within the torture, mistreatment and rendition of detainees within the aftermath of 9/11. It was additional held that the claimants aren’t entitled to the extent of disclosure of open materials outlined in SSHD v AF (No 3) [2009].

Angus McCullough QC of 1 Crown Workplace Row was instructed as a Particular Advocate on this case.

Factual Background

The info of this case inform an inconsistent story. In 2010, the then Prime Minister David Cameron introduced that there could be an unbiased inquiry into the UK’s alleged involvement within the abusive therapy of detainees by international intelligence businesses. This could not be a full public inquiry, nevertheless, as some data must stay secret.

In 2012, the Metropolitan Police commenced a prison investigation. Pursuant to this, the then Justice Secretary, Kenneth Clarke, acknowledged that the Authorities meant to carry “an unbiased, judge-led inquiry” after the conclusion of the police investigations.

Quick-forward to July 2019 — following the publication of two particular reviews by Parliament’s Intelligence and Safety Committee — the Authorities determined it was now not crucial to carry “an unbiased, judge-led inquiry” as a result of numerous statutory and non-statutory steps – which had by then been taken – had led to improved insurance policies.

Grounds of Overview

The claimants sought to judicially overview this choice principally on grounds that the prohibition of torture, inhuman and degrading therapy or punishment in Article Three of the ECHR imposes a constructive obligation on States to conduct an “efficient unbiased investigation” into allegations of ill-treatment (El-Masri v Former Yugoslav Republic of Macedonia (2013)). It was their submission that the defendant’s choice to not maintain a public inquiry breached this obligation.

Authorized Framework

The scope of Article 6(1)

Article 6 ECHR enshrines the correct to a good trial. That is an absolute proper with each a prison and a civil facet. In relation to civil proceedings, Article 6(1) stipulates (amongst different issues) that “within the willpower of his civil rights and obligations…everyone seems to be entitled to a good and public listening to …”

As was held lately by the Excessive Courtroom in QX v Secretary of State for the Home Department [2020], discussed on this blog here, the idea of “civil rights and obligations” can’t be interpreted solely by reference to nationwide legislation however has an autonomous that means inside European legislation (Ferrazini v Italy (2002)). Farbey J reasoned that any human proper protected by the Human Rights Act 1998 will probably be a “civil proper” in as far as breach of the correct would represent a statutory tort (QX, paras 42-44).

The claimants argued that Article 6 applies to those proceedings as a result of they concern the elemental proper to freedom from torture and different ill-treatment prohibited by Article 3. Particularly, the Courtroom is being requested to find out “the character and scope of the claimants’ proper to a lawful choice in respect of the investigative obligation below Article 3” [31]. And since this proper is protected below the HRA, it’s an enforceable statutory proper amounting to a “civil proper” inside the that means of Article 6(1).

The impact of AF (No 3)

In AF (No 3), the Home of Lords dominated upon the minimal customary of disclosure required when judicially reviewing a management order in closed materials proceedings. Making use of the reasoning of the Grand Chamber in A v United Kingdom (2009), Lord Phillips held that

the controlee have to be given adequate details about the allegations in opposition to him to allow him to present efficient directions in relation to these allegations. [AF, para 59]

Because the Excessive Courtroom summarised, because of this the place “govt motion is taken in opposition to a person in a way which impacts his liberty, the case in opposition to him can not flip solely or decisively on closed materials.” [23]

AF (No 3) disclosure has since been prolonged by the Courts to asset-freezing orders; instructions to banks referring to monetary restrictions pursuant to the Counter-Terrorism Act 2008; and orders made below the Terrorism Prevention and Investigation Measures (“TPIM”) Act 2011. The Supreme Courtroom imposed an essential limitation to its utility, nevertheless, in Tariq v Home Office [2011]. The Courtroom held that the place circumstances do not contain govt motion in opposition to the person’s liberty, a good trial could happen with out full AF (No 3) disclosure.

On this case, the claimants submitted that the necessities of Article 6(1) meant that they’re entitled to full AF (No 3) disclosure. It’s because the rules in AF (No 3) are of common utility in circumstances regarding basic rights. AF (No 3) disclosure by the defendant can also be virtually crucial, they claimed, as a result of it could allow them to determine whether or not there’s in reality no unmet investigative want, because the defendant maintains.

The Excessive Courtroom’s ruling

Article 6(1)

In respect of the State’s investigative obligation below Article 3, the Courtroom held the claimants’ proper to a lawful choice by the manager doesn’t in itself give rise to a “civil proper” inside the that means of Article 6. In any public inquiry, the claimants wouldn’t search a willpower of their personal Article Three rights however would increase the rights of others who (on the claimants’ case) could have been the topic of mistreatment.

Because the claimants aren’t alleged victims of Article Three violations, the defendant can’t be mentioned to owe any investigative responsibility to them. While not ruling out the chance that Article 6 may apply in different circumstances, there was no motive on these info to conclude that the scope of Article 6(1) ought to prolong to individuals unconnected to the proceedings.

The Software of AF (No 3)

The Courtroom held that even had Article 6(1) utilized to this case, AF (No 3) disclosure would nonetheless not be required. It’s because “these proceedings don’t contain the freedom of the person, within the sense that the proceedings aren’t involved with granting launch from detention” [45]. The refusal of a public inquiry, furthermore, doesn’t increase the deprivation of liberty, not like management orders.

The query of whether or not AF (No 3) disclosure ought to be prolonged to this case required the Courtroom to look at the “nature and weight of the circumstances on both sides” (Tariq, para 27). While there was a excessive public curiosity in guaranteeing the Authorities is correctly held to account for any involvement in human rights abuses overseas, the case legislation is constant within the utility of AF (No 3) to extremely restrictive govt measures with very critical results for particular person rights.

Within the Courtroom’s estimation, there was adequate data within the public area – within the type of witness statements and supporting paperwork – for the claimants to scrutinise whether or not the investigative want had been met. The Courtroom insisted that its conclusions didn’t imply that the Dwelling Secretary’s causes for withholding the fabric will keep away from unbiased scrutiny.

As held in Tariq, the courtroom will “at all times be astute to look at critically any declare to withhold data on public curiosity grounds” (Tariq, para 161). In forthcoming proceedings, the Particular Advocates will be capable of conduct that evaluation, with the Courtroom supervising the structured disclosure course of [52].


The Excessive Courtroom’s refusal to increase Article 6 rights to the “putative victims of Article Three breaches” [42] seemingly constitutes a rejection of vicarious victimhood. It is a salient level contemplating the claimants’ standing to deliver proceedings was not in dispute.

However, the judgement can also be important for what it doesn’t rule out. The claimants maintained that if they’re unable to invoke the truthful trial ensures of Article 6 on behalf of others, there’s the chance that the judicial overview proceedings will probably be unfair to victims. On the current info this argument failed.

On the identical time, the Courtroom acknowledged that in different circumstances, third-party claims may properly succeed [44]. This means that there could possibly be a minimal threshold of proximity between third events and courtroom proceedings, above which “vicarious” claims could possibly be made in relation to Article 6.

Sapan Maini-Thompson is coaching to develop into a barrister specialising in prison, public and human rights legislation. He tweets @SapanMaini