Scottish Human Rights Law Group

The Claimant had been captured by the USA military in Afghanistan and had been detained in a variety of locations by the USA military authorities prior to being transferred to Guantanamo Bay. He claimed that any confessions which may have been made by him during the period of his detention were obtained through the use of torture or ill-treatment. In order to support these claims he sought the release of certain materials by the Secretary of State under the Norwich Pharmacal principles [Norwich Pharmacal Co. v Customs and Excise Commissioner [1974] AC 133. Lord Reid at page 175: “[I]f through no fault of his own a person gets mixed in the tortious acts of others so as to facilitate their wrongdoing he may incur no personal liability but he comes under a duty to assist the person who has been wronged by giving him full information and disclosing the identity of the wrongdoers. I do not think that it matters whether he became so mixed up by voluntary action on his part or because it was his duty to do what he did. It may be that if this causes him expense the person seeking the information ought to reimburse him. But justice requires that he should co-operate in righting the wrong if he unwittingly facilitated its perpetration.”]

In granting the claimants application under those principles the court held that there was an arguable case that the Claimant was the victim of wrongdoing; the Secretary of State was mixed up in the wrongdoing of others so as to have facilitated the wrongdoing, it not being necessary to show that the actions of the Secretary of State were causative of that wrongdoing. It was, in fact, sufficient that the Secretary of State became involved in facilitating the wrongdoing, even if his involvement was innocent; disclosure was necessary, to the extent that it supported the Claimant’s claims; disclosure was in the interests of justice. Given the importance of the review decision to the Claimant, denying the review board the opportunity to consider his further submissions would not be in the interests of justice; as there was no prospect of gaining the information from the review board, or in gaining a straightforward remedy in the US habeas corpus proceedings and that with the exception of those documents which disclose the identity of individual agents, the documents sought fell within the scope of the available relief there was nothing to persuade the court that the relief sought should not be granted. This is, however, subject to hearing further argument on statutory prohibitions on disclosure and public interest immunity.

The full report can be found here.