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	England and Wales High Court (Queen's Bench Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> The Crown Prosecution Service & Anor v Motasim [2018] EWHC 562 (QB) (09 February 2018) URL: http://www.bailii.org/ew/cases/EWHC/QB/2018/562.html Cite as: [2018] EWHC 562 (QB)

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		9th February 2018

If this Transcript is to be reported or published, there is a requirement to ensure that no reporting restriction will be breached. This is particularly important in relation to any case involving a sexual offence, where the victim is guaranteed lifetime anonymity (Sexual Offences (Amendment) Act 1992), or where an order has been made in relation to a young person.

This Transcript is Crown Copyright.  It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority.  All rights are reserved.

MR JUSTICE GOOSE:

1. These proceedings concern a claim brought by Momen Motasim, the respondent in respect of his continued detention in custody during the course of criminal proceedings. The respondent seeks damages for alleged breaches of Art.5(1)(c) and 5.3 rights under sch.1 of the Human Rights Act, 1998. His claim is brought against the Crown Prosecution Service and The Commission of Police of the Metropolis, "the Appellants".
2. The proceedings were issued on 6^th October 2016 in response to which the appellants made an application to strike out the statement of case pursuant to CPR 3.4(2)(a). The appellants contended that the statement of case disclosed no reasonable grounds for bringing the claim. The appellants filed no evidence and served no defence before issuing the application.
3. On 15^th August 2017, the application was heard before Master Davison who dismissed the application and made orders as to costs. The appellants issued an application to this court for leave to appeal, permission having been refused by the Master. The application for leave was served out of time, however, an extension of time was granted by the court with permission to appeal. The appellants, therefore, seek to appeal the order of Master Davison who dismissed the application under CPR 3.4(2)(a).
4. Further, after issuing the application for leave to appeal but before it was granted, the appellant's made an application under CPR 24 for summary judgment against the respondent. The appellants wish the court to determine the Part 24 application immediately after determining the appeal should it be necessary. Subject to any further order of this court it has been the intention of the appellants for the Part 24 hearing to take place should the appeal be unsuccessful. The respondents objects to such a course.

BACKGROUND

5. The respondent is aged twenty-four. On 24^th September 2014 when he was aged twenty-one, he was arrested with other men upon suspicion of possession of firearms. At the time of his arrest, the respondent was inside a flat where a prohibited firearm, a silencer and ammunition were present. When the police arrived executing a search warrant, it was observed that the firearm, silencer and ammunition were thrown separately from an upstairs bedroom window. The respondent who was inside the bedroom was seen to look from the window through which the items had been thrown.
6. Subsequently, on 13^th October 2013, the respondent was re-arrested for terrorism offences. On 27^th October 2014, he appeared before the Central Criminal Court upon a preliminary hearing and a further hearing on 30^th January 2015. Together with four other men, he appeared on a seventeen-count indictment upon which he was charged with conspiracy to murder, contrary to s.1(1) of the Criminal Law Act, 1977 and preparation of terrorist acts contrary to s.5(1) of the Terrorism Act 2006. A further three counts relating to firearms also appeared on the indictment.
7. The respondent through his legal representatives made an application to dismiss the proceedings against him on the basis that there was insufficient evidence for a reasonable jury to convict him. The hearing date for the application was dated 15^th May 2014. Shortly before that date, the first appellant, the Crown Prosecution Service, identified material in the possession of third-party agencies which had not been disclosed to the defence. This material concerned only the respondent and not his co-accused. It was said by the first appellant that this material had not been within its possession or control or that of the second appellant before its discovery in May 2015. Due to the nature of the material and its sensitivity, the prosecution satisfied itself that the material was disclosable but made a claim before the trial judge of public interest immunity so as to withhold its disclosure.
8. This decision as to the need to disclose subject to the claimed immunity, was in compliance with the duty of the prosecution under s.1 and s.7(a) of the Criminal Procedure and Investigations Act, 1996. Section 3 provides as follows:

"The prosecutor must –

(a) disclose to the accused any prosecution material which has not previously been disclosed to the accused and which might reasonably be considered capable of undermining the case for the prosecution against the accused or of assisting the case for the accused or (b) give to the accused a written statement that there is no material for the description mentioned in para.(a)."

Section 7(a) provides a continuing duty on the prosecutor to disclose material following the same test as under s.3 of the Act.

9. The application was heard by the trial judge on 9^th June 2015, after a ministerial certificate confirming that the material was highly sensitive, had been signed on 4^th June 2015. The trial judge nevertheless directed that the material could be disclosed, failing which the prosecution would have to consider its position against the respondent. The following day, 10^th June 2015, the prosecution offered no further evidence against the respondent and he was released from custody in which he had been detained since his arrest over a nine-month period earlier. The trial against the co-accused continued and all were convicted either by their plea of guilty or by a jury and were sentenced to significant terms of imprisonment. The respondent gave notice of the intention to make a claim against the appellants on 21^st September 2015 and subsequently commenced these proceedings.

THE CLAIM

10. The respondent makes his claim for damages and other relief based upon a breach of his Art.5 rights under sch.1 of the Human Rights Act, 1998. In particular, he claims that the appellants, as public authorities, have acted in a way which is incompatible with his convention rights under Art.5.1(c) and 5.3 under sch.1 of the 1998 Act. They provide as follows:

"The right to liberty and security.

1. Everyone has a right to liberty and security of person, no one shall be deprived of his liberty, save in the following cases and in accordance with a procedure pressured by law.

(c) The lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so…

3. Everyone arrested or detained in accordance with the provisions of para.1(c) of this article shall be brought promptly before a court or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial…everyone who has been the victim of arrest or detention in contravention of the provisions of this article shall have an enforceable right to compensation."

11. The main thrust of the claim is that if not before, then on discovery of the sensitive material which gave rise to the prosecution offering no further evidence against the respondent, the appellants no longer had a reasonable suspicion that the respondent had committed an offence or offences. He argues that this is a necessary inference from the cessation of proceedings against him. He also claims that the appellants should have discovered this information sooner, which would have led to his earlier release from custody. It is, of course, significant in these proceedings that the respondents nor his legal representatives have any knowledge of the contents of the material that was not disclosed by the prosecution in criminal proceedings.

THE APPELLANTS' CASE

12. Whilst the appellants have not yet served a defence to the Particulars of Claim, their claim may be shortly stated. The statutory duty of disclosure within the 1996 Act is for any material which may undermine the prosecution case or assist the defence. This does not mean that such material is necessarily of such significance or importance as to negate a reasonable suspicion of a criminal offence by the respondent, nor of the remaining reasonable prospect of conviction at trial. The reason for the immunity claim cannot be revealed, still less the contents of the material. The appellants argue therefore, that the respondent is required to speculate as to the significance of the material. Beyond that, it has some relevance in undermining at least part of the prosecution's case or of assisting in some way the defendant's case.
13. The appellant's application under CPR 3.4(2)(a) was heard by Master Davison who gave a detailed ruling appearing in the appeal bundle at p.136-143. The application was refused on two grounds; that the appellants bore a burden whether legally or evidentially to justify the continued detention of the respondent because he was unable to prove his case of unlawful detention without knowing all of the evidence (para.22-23 of the ruling), separately, it was not possible to conclude that the claim would not succeed as disclosing no reasonable grounds (para.24-29).

THE APPELLANTS' SUBMISSIONS ONAPPEAL

14. It is submitted by the appellants that the Master was wrong in law to extend the common law burden of proof in the case of alleged convention breaches, (ground one), further that the Master wrongly discounted the appellants' submissions that the claim is speculative when he was anticipated what the withheld material had been (ground two). In addition, the appellants raised a public policy observation, namely that permitting the claim in circumstances where the respondent is unable to establish the significance of undisclosed material in the case against him in criminal proceedings will open the flood gates for claims in all cases where the prosecution, after an unsuccessful application for public interest immunity, offered no further evidence.

RESPONDENT'S SUBMISSIONS ON APPEAL

15. It is argued by the respondent that the master correctly dismissed the application. The fact that the case was dropped against the respondent when this material was not disclosed must, by inference, mean it was significant to his defence or to the undermining of the prosecution's case against him. The respondent also argues that the delay in the criminal proceedings when the decision to offer no evidence could have been made earlier, extended the period of his detention in breach of his Art.5.3 rights.

DISCUSSION AND CONCLUSIONS

16. This appeal is confined to whether the refusal by the Master to grant the application under CPR 3.4(2)(a) was wrong or unjust - See CPR 52.21. It was brought by the appellants before serving a defence. It does not involve an assessment of the evidence, but an examination of the respondents' statement of case. The power to strike out a statement of case is discretionary but may be done, "If it appears to the court (a) that the statement of case discloses no reasonable grounds for bringing…the claim." – CPR 3.4(s)(a)
17. This is a stricter test than that engaged in an application for summary judgment under CPR 24. Some assistance in identifying the sort of case where a strike out has or may be granted are contained in the Practice Direction 3A at para.1.4:

"The following are examples of cases where the court may conclude that Particulars of Claim (whether contained in a claim form or filed separately) fall within r.3.4(2)(a)

(i) those which set out no facts indicating what the claim is about, for example, 'money owed £5,000'

(ii) those which are incoherent and make no sense

(iii) those which contain a coherent set of facts but those facts, even if true, do not disclose any legally recognisable claim against the defendant."

18. The wording of CPR 3.4(2)(a) clearly involves an assessment of the pleaded claim without considering the evidence or inferences that might or might not be drawn from undisputed facts. It has been said in cases where the jurisprudence is developing that the claim should not be struck out unless the court is certain that the claim is bound to fail. See Hughes v Colin Richards & Co [2004] EWCA Civ 266. Whilst not a case whose facts are directly on point, the principle is clear when dealing with an application to strike out.
19. In this case, the respondent's pleaded case for damages due to an alleged breach of Art.5 rights is not unusual. But for the material that was withheld by the prosecution and which led to his acquittal and release from detention, the claim would be conventional. The respondent, however, does not know what the material is, nor its effect on the strength of the criminal case against him. Not unnaturally, he seeks to infer that it must have removed any prospects of a successful conviction, otherwise the case would have proceeded. However, this does not necessarily follow. All that can be said at this point is that the material must have undermined the prosecution case in some way and/or assist the defence case in some way.
20. The appellants' submission that this means that the respondent's case is based on pure speculation and therefore should be struck out, overstates the position. The information exists which may support or remove an essential ingredient of the case for the respondent. The withheld material in the possession or control of the appellants exists. It cannot be argued therefore that the respondent's case is based on speculation in the sense that it cannot be known, when it can be discovered relatively easily. Although the material is sensitive, the Civil Procedure Rules are apt to allow dealing with such information in the context of civil litigation. See for example, CPR 31.16 (Application for pre-action discovery), CPR 31.12 (Application for specific discovery) and CPR 31.19 (Application to withhold disclosure) and CPR 82 (Closed material proceedings).
21. Therefore, whilst the respondent does not know what the withheld material is and is seeking to infer its effect, it is not speculation when the rules provide a mechanism for him to obtain disclosure. The court will be able to examine the material and form an assessment, as occurred in the criminal proceedings as to whether it must be disclosed or not and what conclusion may be drawn in the context of these proceedings.
22. Accordingly, I do not find that the respondent's statement of case discloses no reasonable grounds. I am satisfied that the Master's decision on that ground was correct and, on that basis, this appeal fails. I do not consider that it is necessary for me to decide whether the Master was wrong in law when he found that a burden of proof falls onto the appellant in the circumstances of a convention-based claim for damages for deprivation of liberty. I see the force of the argument both ways, but it should be for another court to decide that point of law.
23. I turn now to the application under CPR 24 for summary judgment. Although the court directed that this application shall follow the appeal, this was subject to further order. I do not consider that it is appropriate in this case, although it might be so in other cases. In my judgment, any consideration of the merits of the claim needs to be based on knowledge by the court of the contents of the withheld material. It will be unrealistic to expect the court to make a ruling when the critical material is not known. Further, such an application would need submissions based on that material, whether it was disclosed or not. That stage has not yet arisen.
24. Accordingly, I shall adjourn the application under CPR 24 for determination by a Master. In the meantime, I will make directions for the service of applications under CPR 31.12 and CPR 31.16 relating to the withheld material. It will be necessary for further case management orders to be made to ensure that any closed material procedure can be followed before the CPR Part 24 application can be heard. I will allow the parties to draw up the order for the court's approval.
25. Finally, I consider that it is necessary to make it clear that in cases such as this where sensitive material may need to be disclosed and where that material is at the heart of the case, the claimant should make an application for pre-action disclosure under CPR 31.16 and not issue proceedings until that application has been concluded. In the event that limitation issues arise, then that can be preserved either by agreement or by application to the court.
26. Further, if proceedings are issued, then an application for specific disclosure should be made as soon as possible. This will allow the case to be dealt with fairly and expeditiously and consistent with the overriding objective of CPR Part 1.