Burka-escape suspect claims damages
Burka terror suspect Mohammed Ahmed Mohamed is seeking damages from the Government in a human rights legal challenge involving allegations of torture, it was revealed at the High Court today.
Mohamed, who was the subject of a Terrorism Prevention and Investigation Measure (Tpim), managed to dodge surveillance and disappear by disguising himself as a woman.
The 27-year-old was last seen fleeing a London mosque in the burka on Friday. He is understood to have received training and fought overseas for al-Shabaab, the Somalia-based cell of the militant Islamist group al Qaida.
The Met Police's counter terrorism command, MI5 and the UK's Border Force are looking for him.
Today Mr Justice Irwin, sitting at London's High Court, handed down an interim ruling in the action he is bringing for compensation - the first ruling on the use of the Justice and Security Act 2013 in a civil claim for damages.
His claim is against the Foreign Office, Home Office, Ministry of Defence and the Attorney General.
He and another man, referred to as "CF", allege the British authorities consented to - or acquiesced in - their detention by the Somaliland authorities on January 14 2011.
The men say British "officers and agents... by their acts and omissions, procured, induced, encouraged or directly caused, or were otherwise complicit in" their detention, assault and mistreatment and torture while they were in Somaliland.
Mohamed launched his damages claim under a cloak of anonymity and was referred to in court papers as "MA".
But anonymity was lifted today following his disappearance.
It is thought Mohamed used a sharp instrument to cut off his tag and was last seen at the An-Noor Masjid and Community Centre in west London.
He is the second terror suspect under a terrorism-prevention measure order to go missing.
Home Secretary Theresa May has insisted that 27-year-old Mohamed does not pose ''a direct threat'' to members of the public, despite mounting concerns over his disappearance.
Tpims involve restrictions on where suspects can travel and stay or whom they contact, but there is criticism because they are less restrictive than the control orders they replaced to protect the public from the risk of terrorist action.
Mr Justice Irwin said both Mohamed and CF were British citizens of Somali descent who travelled to Somaliland - CF in 2009 and Mohamed in 2007.
Both were detained on January 14 2011 and held until their removal back to the UK on March 14 that year.
They say they were tortured and mistreated during their detention and claim the Government is liable to pay them damages under the 1998 Human Rights Act for complicity in their alleged ill-treatment.
Mohamed alleges the fact the British authorities knew he was about to be arrested in Somaliland was demonstrated by the Home Secretary's decision to apply for a control order against him "as a precaution" prior to his detention.
The first control order against him was sanctioned by High Court judge Mr Justice Silber on January 13 2011.
The legality of control orders, and subsequently Tpims, made against him were reviewed by Lord Justice Lloyd Jones in October 2012.
The judge concluded that both men were involved in terrorism-related activity and rejected allegations that they were the victims of an abuse of process.
Both men lodged appeals against the judge's decision to sustain their Tpims and are due to have their cases considered in the Court of Appeal in January.
The Government denies acting unlawfully in relation to their detention in Somaliland and says both men lack credibility, and no weight can be placed on their evidence.
The authorities say both men are members of a terrorist network "which is actively supporting extremism in East Africa".
But, as the case is terrorism-linked and the security services are involved, the Government also says it cannot defend itself and give evidence at an open court hearing "without causing real harm to the public interest".
In a groundbreaking ruling, Mr Justice Irwin today gave permission for Government lawyers to apply for a "closed material procedure" (CMP) when the case comes to trial because of the sensitive nature of the Government evidence.
It is the first time the courts have paved the way for a CMP in a civil damages claim, using controversial new powers under the Justice and Security Act 2013, which came into force in June.
The judge described how the Act permits the state to put sensitive material before a court in private using CMPs, if certain criteria are met, to avoid its disclosure posing a threat to national security.
The judge said this avoided the threat of "injustice for the state" - but involved a corresponding "risk of injustice to the claimant", who would be confronted by state evidence against him that "he never hears and cannot answer".
The risk of injustice posed by CMPs could be minimised in a number of ways, including the use of special advocates to test the state's evidence, and "by the vigilance and care of the court itself".
The judge said those safeguards are "imperfect". Special advocates are not instructed by claimants like Mohamed, and could not communicate with them after seeing closed material.
Special advocates could not often, in practice, put evidence before a court and their role, according to critics, is limited to making "purely forensic points" and "taking blind shots at hidden targets".
The judge said "one imperfection" of CMPs beyond cure was that "justice is not seen to be done, even when it is done".
He warned: "That has implications beyond the particular case. It is obvious that the lack of visibility is likely to diminish respect for the system, whatever the quality of justice actually delivered."
But for a number of years, at least since the Special Immigration Appeals Commission Act 1997, Parliament had chosen to run such a risk "where the state's case is mounted to protect public safety or national security from those who, it is said, should be removed from the country, or be stripped of their British nationality so they can no longer come here".
CMPs were extended to the 2005 Prevention of Terrorism Act, which dealt with control orders, and the Counter-Terrorism Act 2008, which related to restricting the finances of terror suspects.
Now the Justice and Security Act is introducing CMPs "to prevent unjust damages claims", the state could not properly defend itself against in open court proceedings.
The judge said there was "powerful judicial support" for the criticisms made by the lawyers acting for CF and Mohamed over the limitations of CMPs and the fact they were "inherently unfair".
But the decision on whether to adopt a CMP "in the interests of the fair and effective administration of justice" depended on the specific circumstances of the case and could not turn "on objections which would arise in every case and which would therefore, if successful, subvert the intention of Parliament".
The Government evidence against Mohamed and CF allegedly revealed the degree of knowledge both men had of the terrorist threat in East Africa in 2010-11 and how it was gained.
It also revealed the extent of the Government's knowledge of both men, said the judge.
"The sensitive schedule lodged by the Foreign Secretary outlines the potential damage to national security flowing from revelations of this material".
The judge said he accepted that much of the "sensitive" material could not be revealed "without real damage to national security".
A CMP could be necessary because no court could fairly try the case without the material. Gists and summaries could not provide the means to dispense with a CMP while still allowing for an effective trial.
He ruled: "Difficult though closed material procedures can be, they do carry the benefit that the claimants have both a team of lawyers who can communicate freely with them, and special advocates who cannot communicate directly with them, but will be aware of all the evidence, and can test it thoroughly, with the claimants' instructions and evidence in mind."
The judge said "problematic anomalies" in the law meant that the Justice and Security Act only protected national security material.
He ruled public interest immunity (PII) certificates could be applied for by the Government for material in the pending trial which, if revealed, could potentially damage the UK's international relations.
But the judge added that if, during the case, it appeared material restricted by PIIs "might favour the claimants, then that must be addressed".