Mohamed, Regina (on the Application of) v Secretary of State for Foreign and Commonwealth Affairs (No 1): Admn 21 Aug 2008

The claimant had been detained by the US in Guantanamo Bay suspected of terrorist involvement. He sought to support his defence documents from the respondent which showed that the evidence to be relied on in the US courts had been obtained by torture, and in particular by the hiding of his detention for many months in a third country. The respondent accepted that it had documents which might be seen as exculpatory. Despite acknowledgement that he had been in the possession of the US continually, there were two years for which they were unable to account for his whereabouts.
Held: ‘We are unable to conclude that there exists a rule of customary international law which requires the United Kingdom to make disclosure to BM, in the manner claimed.’ The court noted the undertaking given by the respondent to reconsider the decision.
>The Rank Film decision was to be preferred to that in Lundquist. The evidence so far provided by the US military commission disclosed nothing of the missing period, and there was nothing to indicate that more would be disclosed. Much evidence having been heard in a closed session, the court could only summarise the facts it found. Some knowledge of the treatment of the claimant was found, and that he was not being held at a regular US Military facility. An order under Norwich Pharmacal should not be made unless the information was necessary. The court attached particular importance to the nature of the prohibition on State torture: ‘The common law has long set its face against torture, a practice which it has regarded for centuries with a particular abhorrence . . When practised by a State as an instrument of State policy it is a particularly ugly phenomenon.’


Thomas LJ, Lloyd Jones J


[2008] EWHC 2048 (Admin), [2009] 1 WLR 2579




England and Wales


CitedNorwich Pharmacal Co and others v Customs and Excise Commissioners HL 26-Jun-1973
Innocent third Party May still have duty to assist
The plaintiffs sought discovery from the defendants of documents received by them innocently in the exercise of their statutory functions. They sought to identify people who had been importing drugs unlawfully manufactured in breach of their . .
CitedA and others v Secretary of State for the Home Department (No 2) HL 8-Dec-2005
Evidence from 3rd Party Torture Inadmissible
The applicants had been detained following the issue of certificates issued by the respondent that they posed a terrorist threat. They challenged the decisions of the Special Immigration Appeals Commission saying that evidence underlying the . .
CitedRegina v Mullen CACD 4-Feb-1999
British authorities, in disregard of available extradition procedures, initiated and procured the unlawful deportation of the appellant from Zimbabwe to England. The appellant was charged and tried for conspiracy to cause explosions likely to . .
CitedRegina (on the Application of Mullen) v The Secretary of State for the Home Department CA 20-Dec-2002
The applicant had been unlawfully taken from Zimbabwe, then tried and sentenced in the UK. His conviction was set aside as unsafe, but he had been refused damages. He appealed.
Held: There was no substantial criticism of the trial itself, but . .
CitedRank Film Distributors v Video Information Centre HL 1-Mar-1981
The plaintiffs claimed large-scale copyright infringement, and obtained Anton Pillar orders. The House considered the existence of the privilege against self-incrimination where the Anton Piller type of order has been made. The Court of Appeal had . .
CitedKoo Golden East Mongolia v Bank of Nova Scotia and others CA 19-Dec-2007
When making an order for the production of documents by a third party to an action, Sir Anthony Clarke MR said that it is necessary to consider all the circumstances in the light of the fact that Norwich Pharmacal relief is a flexible remedy. . .
CitedCampaign Against Arms Trade v BAE Systems Plc QBD 26-Feb-2007
Application seeking Norwich Pharmacal relief against the Respondent for disclosure. King J said: ‘The third party has to have some connection with the circumstances of the wrong which enables the purpose of the wrongdoing to be furthered.’ . .
CitedSociedade Nacional de Combustatives de Angola UEE v Lundqvist CA 1990
Large quantities of crude oil had been sold at an undervalue by a dishonest consultant and his associates. A Mareva injunction had been granted. The defendant objected to being required to disclose the extent of his foreign assets saying that such . .
CitedDen Norske Bank ASA v Antonatos and Another CA 7-Apr-1998
The defendants appealed orders requiring them to attend court and provide evidence under cross-examination. They claimed a prvilege against self-incrimination.
Waller LJ said: ‘A witness is entitled to claim the privilege in relation to any . .
CitedAxa Equity and Life Assurance Plc Society Plc and others v National Westminster Bank Plc and others CA 7-May-1998
Discovery of documents from third parties. Morritt LJ said that an order might be made where the party holding the documents could be said to have involvement in terms of ‘causing or facilitating’ the wrong. . .
CitedFinancial Times Ltd and others v Interbrew SA CA 8-Mar-2002
The appellants appealed against orders for delivery up of papers belonging to the claimant. The paper was a market sensitive report which had been stolen and doctored before being handed to the appellant.
Held: The Ashworth Hospital case . .
CitedAshworth Security Hospital v MGN Limited HL 27-Jun-2002
Order for Journalist to Disclose Sources
The newspaper published details of the medical records of Ian Brady, a prisoner and patient of the applicant. The applicant sought an order requiring the defendant newspaper to disclose the identity of the source of material which appeared to have . .
CitedBritish Steel Corporation v Granada Television Ltd CA 7-May-1980
Lord Denning MR said that the Norwich Pharmacal case opened ‘a new chapter in our law’ and ‘Mr Irvine suggested this was limited to cases where the injured person desired to sue the wrongdoer. I see no reason why it should be so limited. The same . .
CitedBritish Steel Corporation v Granada Television Ltd HL 7-May-1980
The defendant had broadcast a TV programme using material confidential to the plaintiff, who now sought disclosure of the identity of the presumed thief.
Held: (Lord Salmon dissenting) The courts have never recognised a public interest right . .
CitedNikitin and others v Butler LLP and others QBD 9-Feb-2007
A request was made for Norwich Pharmacal disclosure.
Held: Langley J considered the case law and decided that that it was necessary to show that the information sought was vital to a decision to sue or an ability to plead and whether or not. . .
CitedMitsui and Co Ltd v Nexen Petroleum UK Ltd ChD 29-Apr-2005
Mitsui sought disclosure of documents from a third party under the rules in Norwich Pharmacal.
Held: Such relief was available ‘where the claimant requires the disclosure of crucial information in order to be able to bring its claim or where . .
ApprovedArab Monetary Fund v Hashim and On (No.5) 1992
The rule in Norwich Pharmacal does not provide a general right of discovery. Hoffman J cited Lord Reid in Norwich Pharmacal and said: ‘The reference to ‘full information’ has sometimes led to an assumption that any person who has become mixed up in . .
CitedBanker’s Trust v Shapira CA 1980
Enforcement through innocent third party bank
Two forged cheques, each for USD500,000, had been presented by two men and as a result USD1,000,000 had been transferred to accounts in their names. The plaintiff sought to trace assets through the banks involved.
Held: The court approved the . .
CitedCHC Software Care v Hopkins and Wood 1993
The jurisdiction to require discovery of documents from a third party is not restricted to seeking information from an innocent third party. The third party may himself be one of the wrongdoers. . .
CitedRex v Warickshall 1783
Evidence that stolen goods were found under the bed of the accused was admitted notwithstanding that the discovery was made in consequence of her inadmissible confession. Evidence obtained by oppression should be admitted to court. Involuntary . .
CitedCustoms and Excise Commissioners v Harz and Power; Regina v Harz and Power HL 1967
The rule that a confessional statement is not admissible if it was induced by a fear of prejudice or a hope of advantage exercised or held out by a person in authority applies equally where the inducement does not relate to the actual or . .
CitedThe Republic of Ireland v The United Kingdom ECHR 18-Jan-1978
The UK lodged a derogation with the Court as regards its human rights obligations in Northern Ireland because of the need to control terroist activity. The Government of Ireland intervened. From August 1971 until December 1975 the UK authorities . .
CitedJones v Ministry of Interior for the Kingdom of Saudi Arabia and others HL 14-Jun-2006
The claimants said that they had been tortured by Saudi police when arrested on false charges. They sought damages, and appealed against an order denying jurisdiction over the defendants. They said that the allegation of torture allowed an exception . .
CitedMitsui and Co Ltd v Nexen Petroleum UK Ltd ChD 29-Apr-2005
Mitsui sought disclosure of documents from a third party under the rules in Norwich Pharmacal.
Held: Such relief was available ‘where the claimant requires the disclosure of crucial information in order to be able to bring its claim or where . .
CitedRegina v Sang HL 25-Jul-1979
The defendant appealed against an unsuccessful application to exclude evidence where it was claimed there had been incitement by an agent provocateur.
Held: The appeal failed. There is no defence of entrapment in English law. All evidence . .
CitedFilarliga v Pena-lrala 1980
(US Court of Appeals) ‘the torturer has become like the pirate and the slave trader before him, hostis humani generis, an enemy of all mankind’. . .
CitedRegina v Shayler HL 21-Mar-2002
The defendant had been a member of the security services. On becoming employed, and upon leaving, he had agreed to keep secret those matters disclosed to him. He had broken those agreements and was being prosecuted. He sought a decision that the . .
CitedWong Kam-Ming v The Queen PC 20-Dec-1978
The voir dire system allows a defendant to give his evidence on the limited issues surrounding the circumstances under which his statement was made as to the admissibility of the confession, without infringing his right to elect not to give evidence . .
CitedAoot Kalmneft v Denton Wilde Sapte (A Firm) Merc 29-Oct-2001
The court ordered relief by way of disclosure against a third party: ‘In Norwich Pharmacal the information required was the identity of the wrongdoer (the applicant knew what wrong had been done but not who had done it) but I see no reason why the . .
CitedLam Chi-ming v The Queen PC 1991
The inadmissibility of a confession not proved to be voluntary is perhaps the most fundamental rule of the English criminal law.
Lord Griffiths summarised the justification for the rule excluding evidence obtained improperly. Accepting that ‘a . .
CitedRegina v Bartle and Commissioner of Police for the Metropolis and Others, ex parte Pinochet Ugarte; Regina v Evans and Similar (No 3) HL 24-Mar-1999
An application to extradite a former head of state for an offence which was not at the time an offence under English law would fail, but could proceed in respect of allegations of acts after that time. No immunity was intended for heads of state. . .
CitedRegina v Horseferry Road Magistrates’ Court, ex Parte Bennett (No 1) HL 24-Jun-1993
The defendant had been brought to the UK in a manner which was in breach of extradition law. He had, in effect, been kidnapped by the authorities.
Held: The High Court may look at how an accused person was brought within the jurisdiction when . .
CitedProsecutor v Furundzija ICT 10-Dec-1998
The status of the prohibition on State torture as a rule of jus cogens has the consequence that at the inter-State level, any legislative, administrative or judicial act authorising torture is illegitimate. Furthermore, the prohibition on State . .
CitedNorth Sea Continental Shelf cases ICJ 1969
The court described the process by which a treaty rule may become a rule of customary law: ‘It would in the first place be necessary that the provisions concerned should, at all events potentially, be of a fundamentally norm-creating character such . .
CitedJH Rayner (Mincing Lane) Ltd v Department of Trade and Industry HL 1989
An undisclosed principal will not be permitted to claim to be party to a contract if this is contrary to the terms of the contract itself. Thus the provision in the standard form B contract of the London Metal Exchange ‘this contract is made between . .
CitedHM Attorney General v Blake (Jonathan Cape Ltd third Party intervening) HL 3-Aug-2000
Restitutionary Claim against Pofits from Breach
The author had written his book in breach of his duty of confidence. Having signed the Official Secrets Act, he accepted a contractual private law duty. After conviction as a spy, the publication of the book was in breach of the undertaking by not . .
CitedKhadr v Canada (Attorney General) 25-Jun-2008
The court ordered disclosure by the Canadaian authorities of the transcripts of interviews released to the government relating to the time when the claimant had been held in Guantanamo Bay by the USA. . .
CitedCanada (Minister of Justice) v Khadr 23-May-2008
Constitutional law – Charter of Rights – Application – Fundamental justice – Duty to disclose – Canadian officials interviewing detainee in Guantanamo Bay and sharing contents of interviews with U.S. authorities – Whether principles of international . .
CitedMcElhinney v Ireland; Al-Adsani v United Kingdom; Fogarty v United Kingdom ECHR 21-Nov-2001
Grand Chamber – The first applicant said he had been injured by a shot fired by a British soldier who had been carried for two miles into the Republic of Ireland, clinging to the applicant’s vehicle following an incident at a checkpoint.
Held: . .
CitedAl Rawi and Others, Regina (on the Application of) v Secretary of State for Foreign and Commonwealth Affairs and Another CA 12-Oct-2006
The claimants sought that the defendant should issue a request to the US authorities for their release from detention at Guantanamo Bay.
Held: The courts would not be able to intervene by judicial review, and would be reluctant to intervene in . .
CitedRegina (on the application of Abassi and Another) v Secretary of State for Foreign and Commonwealth Affairs and Another CA 6-Nov-2002
A British national had been captured in Afghanistan, and was being held without remedy by US forces. His family sought an order requiring the respondent to take greater steps to secure his release or provide other assistance.
Held: Such an . .
CitedProsecutor v Furundzija 1-Apr-1999
(International Criminal Tribunal for the Former Yugoslavia) The court described the main features of the law against torture: ‘There exists today universal revulsion against torture: as a USA Court put it in Filartiga v. Pena-Irala, ‘the torturer . .

Cited by:

See alsoMohamed, Regina (on the Application of) v Secretary of State for Foreign and Commonwealth Affairs (No 2) Admn 29-Aug-2008
The claimant sought release of documents so that he could defend himself in a tribunal in the US. He said the documents would support his assertion that he had been subject to extraordinary rendition and had ‘disappeared’ for two years. Redactions . .
See AlsoMohamed, Regina (on the Application of) v Secretary of State for Foreign and Commonwealth Affairs, Admn 22-Oct-2008
The claimant was held by the US. He claimed he had been tortured by them, and sought release of dicuments which allow him to present his case. The respondent sought to prevent disclosure using Public Interest Immunity (PII) certificates.
Held: . .
See AlsoMohamed, Regina (on the Application of) v Secretary of State for Foreign and Commonwealth Affairs (No 4) Admn 4-Feb-2009
In an earlier judgment, redactions had been made relating to reports by the US government of its treatment of the claimant when held by them at Guantanamo bay. The claimant said he had been tortured and sought the documents to support his defence of . .
See AlsoMohamed, Regina (on the Application of) v Secretary of State for Foreign and Commonwealth Affairs (No 5) Admn 16-Oct-2009
The claimant sought to assert that he had been tortured whilst held by the US Authorities. He sought publication of an unredacted report supplied by the US security services to the respondent. The respondent argued that the full publication was . .
See AlsoMohamed, Regina (on The Application of) v Secretary of State for Foreign and Commonwealth Affairs (60 Admn 19-Nov-2009
The respondent had over time refused to allow publication of parts of a document disclosed to him by US security services. The court had previously delivered redacted judgments, and now asked whether and to what extent the redacted parts should be . .
See AlsoMohamed, Regina (on The Application of) v Secretary of State for Foreign and Commonwealth Affairs CA 10-Feb-2010
The claimant had sought discovery and publication of materials supplied to the defendant by US security services which, he said, would support his allegations that he had been tortured by the US and that this had been known to the defendant.
See alsoBinyan Mohamed, Regina (on The Application of) v Secretary of State for Foreign and Commonwealth Affairs CA 26-Feb-2010
The claimant had sought public disclosure of documents supplied to the defendant by US security services which might support his claim that he had been tortured by the US, and that the defendant knew of it. The draft judgment was to be handed down . .
CitedThe Rugby Football Union v Consolidated Information Services Ltd SC 21-Nov-2012
The Union challenged the right of the respondent to resell tickets to international rugby matches. The tickets were subject to a condition rendering it void on any resale at above face value. They said that the respondent had advertised tickets in . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Media

Updated: 10 September 2022; Ref: scu.272819