10 January, 2013

Drones ~ Judgment of the High Court

The High Court handed down judgment in R (Khan) v Secretary of State for Foreign and Commonwealth Affairs [2012] EWHC 3728 Admin - Moses LJ and Simon J - 21st December 2012.

The background to the case was that people attending an outdoor meeting (Jurga) in Waziristan on 17th March 2011 were killed by what the claimant (Mr Khan) asserted to be a missile fired from an American drone.  One of those killed was Mr Khan's father.   The allegation that the drone strikes are linked to agents of the US government and to UK employees of GCHQ was based on various reports which were summarised in a 'respectable but unconfirmed' report in the Sunday times 25th July 2010.  The British government neither confirmed nor denied the allegations though the government has consistently said that its operations are in accordance with the law.  This assertion was not seen by the court as breaching the 'no comment' policy.

Mr Khan wished to challenge, by judicial review, what he described as a 'decision' by the Secretary of State relating to employees of GCHQ passing information to the USA.  He sought a declaration that where a person passes such information and does so with foresight that there is a serious risk that the information would be used to target or kill an individual then the person passing the information would not be entitled to a defence of combatant immunity and may be liable under English criminal law (e.g. for encouraging murder - Serious Crime Act 2007 Part 2  - etc).  Accordingly, the Secretary of State had no power to direct or authorise the passing of such information.