SEEKING REPRIEVE, BUT NOT THROUGH ECHR ARTICLE 6(I): R (REPRIEVE AND OTHERS) V PRIME MINISTER [2020] EWHC 1695 (ADMIN); [2021] EWCA CIV 972.

• Author: Kretowicz, Anna

I INTRODUCTION

On 30 June 2020, the Divisional Court (Dame Victoria Sharpe P and Farbey J) delivered judgment in R (Reprieve & Ors) v Prime Minister, (1) which related to the judicial review of the decision by the government of the United Kingdom (UK) - under then Prime Minister the Rt Hon David Cameron MP - not to hold a public inquiry into allegations of torture, mistreatment and rendition of detainees against UK intelligence services in the aftermath of the September 11, 2001 terrorist attacks. It was held that in those judicial review proceedings, the government was entitled to a 'closed material procedure' and did not have to immediately disclose the 'sensitive material' supporting its case. That was because article 6(1) of the European Convention on Human Rights ('the Convention'), which provides for the right to a fair trial, did not apply for two reasons: no individual rights would be determined, and article 6(1) could not be invoked by the applicant on behalf of the alleged victims of the abuse. The Court of Appeal (Civil Division) (Lord Burnett of Maldon CJ, Stuart-Smith and Elisabeth Laing LJJ) upheld the Divisional Court's decision. (2) What these decisions are interesting for is the consideration given to the circumstances in which article 6(1) may be invoked vicariously, that is, where the non-party is a 'victim' in the sense that he or she claims to have been subject to a public authority acting incompatibly with a Convention right. (3)

II FACTS AND BACKGROUND

The proceedings in the Divisional Court were ancillary to Reprieve's primary challenge: judicial review of the UK government's decision not to hold a public inquiry into allegations of torture, mistreatment and rendition of detainees by UK intelligence services post-9/11. In July 2010, the then Prime Minister, the Rt Hon David Cameron MP, announced that an independent judicial inquiry would be established to investigate these allegations ('the Gibson Inquiry'). It would not be wholly public, as some government information had to be kept secret in the interests of national security. (4) In January 2012, matters had escalated and the Metropolitan Police Service announced that it would investigate allegations of criminal wrongdoing in relation to the alleged rendition and ill-treatment of two Libyan nationals. The Gibson Inquiry was put on hold so as not to interfere. (5) After a number of preparatory reports and supplementary inquiries, the government concluded in July 2018 that the full judicial inquiry was no longer necessary because various statutory and non-statutory steps had already been implemented and had led to improved policy and practice. (6)

Reprieve UK, a non-profit organisation run by lawyers that focusses on human rights abuses, particularly torture and ill-treatment resulting from counter-terror policies imposed by States, sought to challenge that decision. It alleged two grounds: first, that the decision was in breach of the obligation created by article 3 of the Convention for States to conduct effective independent investigations into allegations of ill-treatment; (8) and secondly, that the decision was irrational because the various steps taken by the government were not a sufficient reason to justify abandoning the Gibson Inquiry. (9) In its defence, the government maintained that the Gibson Inquiry was not necessary because there was no unmet investigative obligation.

The government's case relied, in part, on material which, if disclosed, would be damaging to the interests of national security. It therefore sought orders for a closed material procedure. (10) Reprieve challenged those orders, relying on article 6(1) of the Convention, which relevantly provides: 'In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing...'. (11) The key issues for determination were: (a) whether article 6(1) applied to the judicial review proceedings; and if so, (b) whether Reprieve was entitled to disclosure to the extent set out in Secretary of State for the Home Department v AF (No 3) ('AF (No 3)'). (12)

III THE DECISIONS

Both the Divisional Court and Court of Appeal held that article 6(1) did not apply to the judicial review proceedings. While the second...