Quist seeks disclosure of intelligence evidence

December 2014

Quist conducts litigation which concerns matters of public interest: comity of the UK’s international judicial relations, the integrity of the UK’s extradition procedures, potential breaches of international law and fundamental human rights and the UK’s failure to uphold the interests of justice.

Over the course of a 16 year litigation battle which included a lengthy U.S extradition challenge, Quist has fought to obtain disclosure of various materials and information, held by the British intelligence authorities, which our client believes will provide evidence of his innocence.

Our client’s extradition was requested by the United States in 1998. At the time the Extradition Act 1989 applied. Accordingly an individual could only be extradited if the English courts were satisfied that there was sufficient evidence presented in support of the extradition request to establish a prima facie case for the accused to answer.

Our client believed that materials held by the British intelligence services undermined the evidence presented by the US in support of their request for his extradition, and on the basis of such evidence, the prima facie case threshold would not be met.

Our client is adamant that the intelligence materials and information comprise exculpatory evidence. Our client lived in the UK and was in contact with the British intelligence services for the majority of the time during which he is accused (by the US government) of having been involved in a criminal conspiracy. He maintains that during this period he was closely monitored and even advised of threats against his own safety by the Services.

In the course of the extradition proceedings the British authorities refused to provide any of the material and information sought on the basis that they had discharged their legal disclosure obligations in the context of an extradition.

Similarly, the English courts took the view that the pursuit of disclosure of British intelligence was a matter for trial in the United States as opposed to the extradition process.

Following his extradition to the US to stand trial our client filed a motion with the U.S court seeking to invoke mutual legal assistance (‘MLA’) procedures to obtain the British intelligence materials and information to use as evidence in support of his defence at trial. The court ruled that the materials and information sought were ‘relevant and material for [our client’s] defense at trial’.

Accordingly between October 2013 and April 2014 the US trial judge issued a series of letters requesting the MLA of the British authorities.

Requests for MLA are a method of cooperation between courts in different jurisdictions enabling them to obtain assistance in the investigation or prosecution of criminal offences, also referred to as ‘judicial co-operation’. Requests for assistance are usually in the form of formal international letters of request from a court or prosecutor.

The requests for assistance on behalf of our client were from the trial court in New York. The requests therefore took the form of formal letters of request known as a ‘Letters Rogatory’.

The foundations of MLA are reciprocity and international comity; co-operation will mean that a similar courtesy is more likely in the future and international relations are maintained.

Some MLA relationships are also governed by multilateral or bilateral treaties which impose various obligations on the state parties when a request invokes the treaty.

In our client’s case, although there is a US-UK Mutual Legal Assistance Treaty 1994 (amended by the EU-US Mutual Legal Assistance Agreement 2003), this can only be invoked when requests for assistance are made by the central authorities, such as the US Attorney General. As the MLA requests in this case were issued by a court, the US-UK Mutual Legal Assistance Treaty does not apply.

Be that as it may, the UK would still be expected, in the spirit of the treaty and on the basis of the overarching principles of reciprocity and international comity which underpin MLA (and on the basis of the UK’s ‘special relationship’ with the US), to assist with the request as fully as possible.

In the UK, all requests for MLA (irrespective of the form or source) are dealt with by the UK Central Authority (“UKCA”) which decides, on behalf of the Secretary of State for the Home Department, whether requests will be answered. If the UKCA accedes to a request, under the authority of the Crime (International Co-operation) Act 2003 (“CICA”) the UKCA can direct the relevant authority or agency to investigate and obtain the evidence or information requested.

The judge presiding over our client’s trial issued four Letters Rogatory, on the basis that the materials and information requested were potentially relevant and material to our client’s defence.

In summary:

• Letter Rogatory 1 requested copies of materials obtained relating to interaction our client had with the British Security Services, along with copies of any electronic recordings obtained during surveillance of our client’s home, office and telephones;
• Letter Rogatory 2 requested witness testimony from individuals involved with any interaction or surveillance in order to corroborate the materials provided in response to Letter Rogatory 1;
• Letter Rogatory 3 requested copies of all materials, information and data collected in the course of electronic and physical surveillance of our client’s home and office (and the homes and premises of individuals with whom it is alleged he was associated); and,
• Letter Rogatory 4 requested assistance in taking the witness testimony of two witnesses who had previously provided witness statements during the extradition proceedings.

No substantive response was forthcoming in respect of Letters Rogatory 1, 2 or 3 for more than eight months.

Quist issued judicial review proceedings against the Secretary of State for the Home Department, Theresa May, challenging her failure to respond to the MLA requests in the Letters Rogatory. Theresa May is the minister with overall responsibility for the UK Central Authority,

Following the issue of the judicial review claim, several mechanisms for disclosure of the requested materials and information were explored both in the UK and in the US by the litigants and their representatives.

The following possibilities were considered in detail:

• A voluntary agreement (supported by an order made by the English and US courts) which would enable the US defence and prosecution lawyers to review the materials which were the subject of the request on the basis that they did not discuss the contents of the materials (without the courts’ permission);
• A voluntary agreement supported by an order made by an English court which would enable the English lawyers to review the materials;
• Certifying the disclosed materials under the US Classified Information Procedures Act 1908 (“CIPA”), which would ensure that any material or information turned over into the possession of the US authorities would be assigned an equivalent level of security to provide the same degree of protection as the material enjoyed when under the control of the British authorities; and,
• Elements of the trial in US being held ‘in camera’ in order to ensure confidentiality.

The Secretary of State was not satisfied that any of the available options adequately protected the confidentiality of the materials and the UK’s national security concerns. Accordingly, the Secretary of State provided a blanket refusal of the disclosure requests on the basis of – what our client argues is – insufficiently substantiated national security grounds.

The Judicial Review Grounds of Claim filed on behalf of our client state that the Secretary of State’s decision to refuse to assist the US court:

1. Is unlawful, procedurally unfair and unreasonable on the basis that she has failed to properly consider all available mechanisms to facilitate disclosure;
2. Is procedurally unfair and raises concerns as to bad faith and abuse of process;
   Fails to uphold the Secretary of State’s duty of candour;
3. Breaches the Secretary of State’s own published guidance, contained in the 11th Edition (2014) ‘Requests for Mutual Legal Assistance in Criminal Matters, Guidelines for Authorities Outside of the United Kingdom’ (“MLA Guidelines”), to which she is ought to give due deference to upon receipt of a request for assistance under the CICA 2003;
4. Breaching our client’s legitimate expectation by failing to uphold the Secretary of State’s duty to respond expeditiously and to honour the principles of reciprocity and comity which underpin MLA; and, Undermines our client’s legitimate expectation under international law to a fair trial.
5. Moreover our client’s challenge asserts that these grounds are matters of general public interest, such as the comity of international judicial relations, particularly with the US, the integrity of the UK’s extradition procedures and the overall implications on international human rights principles and fundamental requirement to uphold the interests of justice.

The MLA Guidelines state that their purpose is ‘to ensure that requests for MLA received by the UK can be acceded to and executed quickly and efficiently’, and that if a request is urgent they will ‘try to deal with the request as quickly as possible’. Clear arguments can be made that these guidelines have not been adhered to in our client’s case. The MLA Guidelines also state that although the UKCA reserves the right to refuse any request if ‘the execution of the request would prejudice the sovereignty, security or other essential interests of the UK’ [….] ‘there is a presumption that MLA will be provided where all the requirements of the investigative measure under UK law have been met’. In the light of the extremely close relationship between the UK and US, it is difficult to comprehend how the facilitation of the request (via one of the mechanisms set out above) could compromise the UK’s national security, sovereignty or interests.

In order for the court to judge whether the refusal decision was fair and lawful and whether the Secretary of State has discharged her legal duties in the making of her decision, the Secretary of State must adequately explain her reasoning, and provide evidence in support of such reasoning.

The Secretary of State maintains that this matter ought to be dealt with in ‘closed material proceedings’ due to the sensitivity of the matters in issue. In this instance closed material proceedings (‘CMP’) have been requested by the Secretary of State under section 6 of the Justice and Security Act 2003.

Although the CMP raises serious issues concerning transparent justice, Quist have instructed Special Advocates to act on behalf of our client and to protect and vigorously pursue his interests in the closed process.

CMP involves legal arguments and evidence being presented and considered by the court with the exclusion of the Claimant and his legal representatives. In the absence of the Claimant’s legal team, the Claimant’s interests are represented by Special Advocates (who have undergone security assessments and been approved of by the Secretary of State).

Special Advocates are appointed to review and make submissions in respect of any evidence or legal arguments presented to the court during the closed procedure. Neither the Special Advocates, nor the court, is permitted to disclose any information which they may receive through the closed process.

CMP proceedings are controversial and have been deemed by some to be a threat to the fundamental legal liberties by overturning long-established common law precedents about fair and open justice. CMP has been described as ‘enabl[ing] ministers, rather than judges, to manipulate the way evidence is withheld or presented in the courts – depriving claimants of a fair trial.’ CMPs were also opposed on the basis that they create a ‘damaging mistrust and a dangerous gulf between government and the citizens it is purporting to protect’.

Ultimately the court will, on the basis of open and closed proceedings provide an open judgment, however the contents of this judgment will be limited to the court’s decision, without referring to any reasoning based on closed submissions.

This appears to be the first case of its kind. It is likely to have significant implications for future extradition cases.

The Secretary of State’s dismissal of possible disclosure mechanisms and her reasons why these do not satisfy national security interests will be relevant to future cases which involve extradition and disclosure of evidence between the UK and its closest ally.

At present, the Secretary of State’s position seems to imply that she is not wholly satisfied that UK intelligence material will be adequately protected if disclosed to the US. This is a position which, on the face of it, contradicts the mutual respect between the two states, confidence in each other’s systems and the long standing historic relationship enjoyed by them.

If American legal systems and procedures are considered by the British courts as providing inadequate protection, then those facing extradition in the future – who seek to rely on British intelligence as evidence in support of their defence – may have a good basis to challenge their extradition on the grounds that they will not receive a fair trial in accordance with their rights under the European Convention on Human Rights.

Quist continues to forcefully pursue this very important case the outcome of which is expected in December 2014.