In R (Reprieve & Ors) v Prime Minister  EWHC 1695 (Admin), the High Court made a preliminary ruling that Article 6(1) of the ECHR does not apply to the forthcoming judicial review of the Government’s decision not to establish a public inquiry into allegations that the UK intelligence services were involved in the torture, mistreatment and rendition of detainees in the aftermath of 9/11. It was further held that the claimants are not entitled to the level of disclosure of open material outlined in SSHD v AF (No 3) .
Angus McCullough QC of 1 Crown Office Row was instructed as a Special Advocate in this case.
The facts of this case tell an inconsistent story. In 2010, the then Prime Minister David Cameron announced that there would be an independent inquiry into the UK’s alleged involvement in the abusive treatment of detainees by foreign intelligence agencies. This would not be a full public inquiry, however, as some information would have to remain secret.
In 2012, the Metropolitan Police commenced a criminal investigation. Pursuant to this, the then Justice Secretary, Kenneth Clarke, stated that the Government intended to hold “an independent, judge-led inquiry” after the conclusion of the police investigations.
Fast-forward to July 2019 — following the publication of two special reports by Parliament’s Intelligence and Security Committee — the Government decided it was no longer necessary to hold “an independent, judge-led inquiry” because various statutory and non-statutory steps – which had by then been taken – had led to improved policies.
Grounds of Review
The claimants sought to judicially review this decision principally on grounds that the prohibition of torture, inhuman and degrading treatment or punishment in Article 3 of the ECHR imposes a positive obligation on States to conduct an “effective independent investigation” into allegations of ill-treatment (El-Masri v Former Yugoslav Republic of Macedonia (2013)). It was their submission that the defendant’s decision not to hold a public inquiry breached this obligation.
The scope of Article 6(1)
Article 6 ECHR enshrines the right to a fair trial. This is an absolute right with both a criminal and a civil aspect. In relation to civil proceedings, Article 6(1) stipulates (among other things) that “in the determination of his civil rights and obligations…everyone is entitled to a fair and public hearing …”
As was held recently by the High Court in QX v Secretary of State for the Home Department , discussed on this blog here, the concept of “civil rights and obligations” cannot be interpreted solely by reference to national law but has an autonomous meaning within European law (Ferrazini v Italy (2002)). Farbey J reasoned that any human right protected by the Human Rights Act 1998 will be a “civil right” in so far as breach of the right would constitute a statutory tort (QX, paras 42-44).
The claimants argued that Article 6 applies to these proceedings because they concern the fundamental right to freedom from torture and other ill-treatment prohibited by Article 3. Specifically, the Court is being asked to determine “the nature and scope of the claimants’ right to a lawful decision in respect of the investigative obligation under Article 3” . And because this right is protected under the HRA, it is an enforceable statutory right amounting to a “civil right” within the meaning of Article 6(1).
The effect of AF (No 3)
In AF (No 3), the House of Lords ruled upon the minimum standard of disclosure required when judicially reviewing a control order in closed material proceedings. Applying the reasoning of the Grand Chamber in A v United Kingdom (2009), Lord Phillips held that
the controlee must be given sufficient information about the allegations against him to enable him to give effective instructions in relation to those allegations. [AF, para 59]
As the High Court summarised, this means that where “executive action is taken against an individual in a manner which affects his liberty, the case against him cannot turn solely or decisively on closed material.” 
AF (No 3) disclosure has since been extended by the Courts to asset-freezing orders; directions to banks relating to financial restrictions pursuant to the Counter-Terrorism Act 2008; and orders made under the Terrorism Prevention and Investigation Measures (“TPIM”) Act 2011. The Supreme Court imposed an important limitation to its application, however, in Tariq v Home Office . The Court held that where cases do not involve executive action against the individual’s liberty, a fair trial may take place without full AF (No 3) disclosure.
In this case, the claimants submitted that the requirements of Article 6(1) meant that they are entitled to full AF (No 3) disclosure. This is because the principles in AF (No 3) are of general application in cases concerning fundamental rights. AF (No 3) disclosure by the defendant is also practically necessary, they claimed, because it would enable them to ascertain whether there is in fact no unmet investigative need, as the defendant maintains.
The High Court’s ruling
In respect of the State’s investigative obligation under Article 3, the Court held the claimants’ right to a lawful decision by the executive does not in itself give rise to a “civil right” within the meaning of Article 6. In any public inquiry, the claimants would not seek a determination of their own Article 3 rights but would raise the rights of others who (on the claimants’ case) may have been the subject of mistreatment.
As the claimants are not alleged victims of Article 3 violations, the defendant cannot be said to owe any investigative duty to them. Whilst not ruling out the possibility that Article 6 might apply in alternative circumstances, there was no reason on these facts to conclude that the scope of Article 6(1) should extend to persons unconnected to the proceedings.
The Application of AF (No 3)
The Court held that even had Article 6(1) applied to this case, AF (No 3) disclosure would still not be required. This is because “these proceedings do not involve the liberty of the individual, in the sense that the proceedings are not concerned with granting release from detention” . The refusal of a public inquiry, moreover, does not raise the deprivation of liberty, unlike control orders.
The question of whether AF (No 3) disclosure should be extended to this case required the Court to examine the “nature and weight of the circumstances on each side” (Tariq, para 27). Whilst there was a high public interest in ensuring the Government is properly held to account for any involvement in human rights abuses abroad, the case law is consistent in the application of AF (No 3) to highly restrictive executive measures with very serious effects for individual rights.
In the Court’s estimation, there was sufficient information in the public domain – in the form of witness statements and supporting documents – for the claimants to scrutinise whether the investigative need had been met. The Court insisted that its conclusions did not mean that the Home Secretary’s reasons for withholding the material will avoid independent scrutiny.
As held in Tariq, the court will “always be astute to examine critically any claim to withhold information on public interest grounds” (Tariq, para 161). In forthcoming proceedings, the Special Advocates will be able to conduct that assessment, with the Court supervising the structured disclosure process .
The High Court’s refusal to extend Article 6 rights to the “putative victims of Article 3 breaches”  seemingly constitutes a rejection of vicarious victimhood. This is a salient point considering the claimants’ standing to bring proceedings was not in dispute.
Nevertheless, the judgement is also significant for what it does not rule out. The claimants maintained that if they are unable to invoke the fair trial guarantees of Article 6 on behalf of others, there is the risk that the judicial review proceedings will be unfair to victims. On the present facts this argument failed.
At the same time, the Court stated that in alternative circumstances, third-party claims could well succeed . This suggests that there could be a minimum threshold of proximity between third parties and court proceedings, above which “vicarious” claims could be made in relation to Article 6.
Sapan Maini-Thompson is training to become a barrister specialising in criminal, public and human rights law. He tweets @SapanMaini