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Landmark judgment in Jack Straw Libyan rendition case

Court of Appeal rule former foreign secretary Jack Straw and a senior MI6 officer, should face English Courts over Libyan rendition charges

Abdul-Hakim Belhaj Credit: Reprieve

30 October 2014

The Court of Appeal have today (30 October 2014) ruled that the legal case against the former foreign secretary Jack Straw and a senior MI6 officer, which alleges that they were unlawfully involved in the torture and illegal rendition of a Libyan man and his pregnant wife, to Gaddafi’s Libya in 2004, can be heard in an English Court.

The successful appeal, brought by law firm Leigh Day and charity Reprieve, reverses a previous High Court judgment handed down by Mr Justice Simon in December 2013 which ruled that English courts should not hear evidence or rule on the case, because the unlawful abduction, kidnapping and removal to Libya in March 2004 of Libyan politician Abdul-Hakim Belhaj, and his then pregnant wife Fatima Boudchar, took place with the assistance of other states – in particular the US.

In 2013 Mr Belhaj and Ms Boudchar offered to settle the case for £3 for an admission of liability and an apology. This offer was not accepted by the defendants.

Today’s landmark ruling handed down by the Master of the Rolls, Lord Justice Dyson, in the Court of Appeal, found that English Courts should hear the claims against Mr Straw and the form head of MI6 counter-intelligence, Sir Mark Allen, given that they “…are either current or former officers or officials of state in the United Kingdom or government departments or agencies.” [Para 117]

Recognising the seriousness of the charges against the men, including rendition to torture, the judgment clarified: “…their conduct, considered in isolation, would not normally be exempt from investigation by the courts. On the contrary there is a compelling public interest in the investigation by the English courts of these very grave allegations.” [Para 117] “…the applicable principles of international law and English law are clearly established. The court would not be in a judicial no man’s land.” [Para 118]

“…unless the English courts are able to exercise jurisdiction in this case, these very grave allegations against the executive will never be subjected to judicial investigation. The subject matter of these allegations is such that, these respondents, if sued in the courts of another state, are likely to be entitled to plead state immunity. Furthermore, there is, so far as we are aware, no alternative international forum with jurisdiction over these issues. As a result, these very grave allegations would go uninvestigated and the appellants would be left without any legal recourse or remedy.’ [Para 119]

The Appeal Court judges recognised the concerns raised over the UK’s relationship with the US and a risk that damage will be done to the foreign relations and national security interests of the United Kingdom, but in their judgment they explained: “…we do not consider that in the particular circumstances of this case these considerations can outweigh the need for our courts to exercise jurisdiction… we consider that there is a compelling case in favour of these proceedings being heard in this jurisdiction. In this particular context, the risk of displeasing our allies or offending other states, and even the risk of the consequences of varying severity which it is said are likely to follow, cannot justify our declining jurisdiction on grounds of act of state over what is a properly justiciable claim.” [Para 120]

Today’s ruling follows a three-day hearing in July this year which, for the first time in this case, submissions were heard from the UN Special Rapporteur on Torture and the UN Chair Rapporteur on Arbitrary Detention.

The NGOs Amnesty International, the International Commission of Jurists, JUSTICE and REDRESS also intervened jointly.

The allegations against the security services and Mr Straw arise from documents discovered after the fall of Colonel Gaddafi's regime, when documents were discovered in the headquarters of the fallen regime’s intelligence agency.

In one letter from Sir Mark to Moussa Koussa, head of Gaddafi's intelligence agency, dated March 18 2004, Sir Mark passes on thanks for helping to arrange Tony Blair's visit to Gaddafi, writing: "Most importantly, I congratulate you on the safe arrival of Abu Abd Allah Sadiq [Mr Belhaj]."

He continues: "This was the least we could do for you and for Libya to demonstrate the remarkable relationship we have built over the years."

Sapna Malik from law firm Leigh Day, who represents Mr Belhaj and Ms Boudchar, said:

“The Court of Appeal has rightly recognised that the gravity of the allegations raised by our clients makes it all the more compelling for the English courts to get on and deal with their case and to reject outright the attempts by Jack Straw, Mark Allen and the government defendants to shield their conduct from judicial scrutiny. Our clients are now a significant step closer to seeing justice done in their case.”

Cori Crider, a Director at Reprieve, which also represents the family, said:

“The government so fears this case going to trial that they have stalled for years by throwing up a parade of scarecrows – claiming, for example, that the United States would be angered if Mr and Mrs Belhaj had their day in Court in Britain. The Court was right: embarrassment is no reason to throw torture victims out of court. The government’s dubious and wasteful delay tactics in this case need to end. Enough is enough.”

Abdul-Hakim Belhaj said:

“My wife and I are gratified by the judges’ decision to give us our day in court. Our part of the ‘deal in the desert’ – the kidnap, the secret CIA jail, the torture chamber in Tripoli – is as fresh and as painful for us as if it happened yesterday. “We never dreamed Britain would have conspired in such a thing until we saw the proof with our own eyes, right there in Moussa Koussa’s dusty binders. There is only one way put our story to rest: justice. We look forward to a full public trial and pray the truth will finally come out.”

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