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. 

As an alternative,Mr Khan argued that where a GCHQ officer has information relating to the location of an individual and knows or suspects that the US government intends to target or kill that individual then the information may not be passed if there is a significant risk of the commission of a war crime or crime against humanity contrary to the International Criminal Court Act 2001.  A final argument was that the Secretary of State should publish a policy setting out the circumstances in which information might be passed on.

Moses LJ said that the real aim of the proceedings was to persuade the court to make a public pronouncement designed to condemn the activities of the United States in North Waziristan, as a step in persuading them to halt such activity.'    The arguments put to the court  - described as 'admirably clear and attractive efforts' - are interesting.

Mr Khan faced formidable problems:

(1) The legal principle that the court would not pass judgment on the acts of a foreign State though there are some situations where the courts have been prepared to resolve disputed issues of international law including where this may be necessary for the purposes of resolving whether there is a defence under domestic criminal law - R v Gul (Mohammed) [2012] 1 Cr App R. 37.

(2) The court was being asked to give an advisory opinion on a difficult point of criminal law and a point of law dependent on 'sparse and unproven' facts.  The courts will not give advisory opinions as to whether future conduct is lawful, save where it would serve a cogent public or private interest -R (Rusbridger) v Attorney General [2004] 1 AC 357   Applications for an advisory opinion were more likely to be accepted in relation to issues of pure law; they are most likely to be rejected where the answer depends on the facts.  Usually, applications for such opinions fail because a declaration from a civil court risks usurping the role of the criminal courts.  However, that was not the risk here since there was no realistic prospect of anyone at GCHQ being prosecuted.  Here, the efficacy of a declaration would depend on the facts and unless the factual circumstances could be clearly stated then a declaration would be useless, inaccurate or misleading.

(3) A declaration from the court was not the only way that the lawfulness of the activities of GCHQ are monitored..  The Security Services were, for example, subject to the supervision of Parliament (via the Intelligence and Security Committee) and also the Intelligence and Interception Commissioners.

The court reminded itself of R (Gentle) v Prime Minister) [2008] 1 AC 1356  where Lord Rodger said that it was necessary to identify the real aim of a complaint.  What was the claimant "really after?"   Despite an attempt to shroud his aim in an acceptable veil. Mr Khan was "really after" a statement condemnatory of the United States actions.  Permission for judicial review was refused.

This decision may go to appeal.


The court opted not to consider whether, if permission for judicial review were granted, it would be possible to try the application.  The issue was raised after Ouseley J held, in AHK v Home Secretary [2012] EWHC 1117 (Admin), that, absent statutory provision, a closed material process is not available in judicial review proceedings, following the decision in Al Rawi v Security Service [2012] 1 AC 531.

Other posts on Drones:

16th February 2010   -  Drones - is their use breaching international law?

18th April 2010  -  The US has defended the use of "drones"

17th December 2010  -  Drones - their legality in international law

11th June 2012   -  Killing the "bad" guys: the USA and drones

20th November 2012 - Military use of Drones ~ Concern in Parliament ~ Model aircraft in the UK

Other Blogs etc:

UK Human Rights Blog - 9th January 2013 - Shaheen Rahman - High Court refuses to condemn US drone strikes

1 comment:

CE said...

Please sign world famous war protester,
Rosemarie Jackowski's, White House Petition
to End Drone Strikes killing children
and innocent civilians. http://wh.gov/UKpQ