Supreme Court to begin hearing torture and rendition case of Libyan man and his pregnant wife against former Home Secretary Jack Straw and ex-MI6 Director Sir Mark Allen

The legal claims against the former foreign secretary Jack Straw and former senior MI6 officer, Sir Mark Allen, alleging that they were both unlawfully involved in the torture and illegal rendition of a Libyan man and his pregnant wife back to Gaddafi’s Libya in 2004, will be heard at the Supreme Court on Monday 9 November 2015.

The four-day hearing at the Supreme Court is a challenge by Government lawyers, on behalf of Mr Straw and Sir Mark, against a Court of Appeal judgment that the claims should be heard in an English Court.

Lawyers for Mr Belhaj allege that Mr Straw and Sir Mark and British security services were involved in the unlawful abduction, kidnapping and removal to Libya in March 2004 of Libyan politician Abdul-Hakim Belhaj, and his then pregnant wife Fatima Boudchar.

Lawyers for Mr Straw and Sir Mark denied any unlawful conduct on their part and argued that they cannot fully respond to the allegations due to the restraints of the Official Secrets Act. They also applied to have the claims dismissed on the basis that the English courts could not hear the claims due to the doctrines of State Immunity and Foreign Act of State.

A High Court judgment in December 2013 ruled that English courts should not hear evidence or rule on the case due to the Foreign Act of State doctrine, as the rendition had allegedly taken place with the assistance of other states including the US.

The judgment by Mr Justice Simon was appealed by Reprieve and Leigh Day, the lawyers representing Mr Belhaj, and in October 2014 the Court of Appeal, agreed that the case could be heard in an English Court.

The Court of Appeal judgment stated that English Courts should hear the claims 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 Foreign Act of State doctrine, and 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]

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

The hearing will be a joint appeal and will hear arguments in the case of Yunus Rahmatullah, a Pakistani man detained for 10 years without charge or a trial. In November 2014 the High Court agreed that a claim for joint liability, with the United States, against the Ministry of Defence could proceed in the UK Courts for the alleged role of UK forces in his unlawful detention and torture.

The MoD had argued that that they should not face the UK Courts as the alleged unlawful behaviour was also conducted by the US and that they should have either state immunity or that the Courts do not have jurisdiction over the acts of a foreign state, in this case the US.

Given the similarity of the arguments around State Immunity and the Foreign Act of State doctrine, the cases will be heard together as a joint appeal against the previous judgment by the Government.

Sapna Malik from law firm Leigh Day and the lawyer for Mr Belhaj, said: “The Court of Appeal last year recognised the gravity of the allegations raised by our clients and we are confident that the Supreme Court will also agree that it is the constitutional duty of the English courts to deal with such important cases despite these attempts to shield the conduct of the security services from judicial scrutiny.”

Cori Crider from Reprieve said:

“For years the British government has sought to shut the door of the British courts to victims of torture and state-sponsored kidnapping. This is not only a shameful attempt to deny our clients’ simple request for an apology – it’s also a shocking waste of public money and official time. The Belhaj family and Yunus Rahmatullah deserve justice for their abuse at the hands of our government – the sooner British officials accept that, the better.”