Hogan Lovells Acts for the All Party Parliamentary Group on Extraordinary Rendition in Successful Appeal to the Upper Tribunal

LONDON, 18 APRIL 2011 - Hogan Lovells has acted for the All Party Parliamentary Group on Extraordinary Rendition (APPGER) in a successful appeal to secure the release of information requested by the APPGER from the Ministry of Defence (MOD) regarding the transfer, and potential extraordinary rendition, of detainees captured by UK Forces in Iraq and Afghanistan.

The Administrative Appeals Chamber of the Upper Tribunal has today (18 April) ordered the MOD to release some of the details the APPGER requested in relation to the UK's involvement in extraordinary rendition. Additionally it has found that the MOD was wrong to refuse to provide other information on cost grounds.

The APPGER was represented by Tom Hickman, instructed by Hogan Lovells International LLP, both acting in a pro bono capacity.  Both Hickman and Hogan Lovells have represented the APPGER on a pro bono basis in relation to this and a variety of other matters since early 2008.

The APPGER initially put in Freedom of Information requests on the issue of extraordinary rendition - the moving of prisoners from one country to another for detention and interrogation outside of normal legal processes, where there is a real risk of torture or cruel, inhuman or degrading treatment - to the MOD in 2008. These were declined by the MOD, and the APPGER's subsequent complaint to the Information Commissioner was also unsuccessful.  However, the Tribunal has overturned a number of aspects of the MOD's and the Commissioner's decisions.

The group requested details of diplomatic assurances between the UK, US, Iraqi and Afghan governments on the handling of detainees, but was initially given material relating only to agreements between the UK and Afghanistan in 2006.  The Tribunal held that the MOD was not entitled to rely on a costs-exemption to refuse to disclose any further information, with another hearing necessary to consider if any substantive exemptions are applicable.  However, the Tribunal expressed considerable doubt over whether the release of such information could properly be said to be a risk to international relations and recognised the substantial public interest in its disclosure.

The other requests were made in light of allegations made by Ben Griffin, a former UK Special Forces member. Griffin has said that detainees in Iraq and Afghanistan were routinely detained but not arrested in order to avoid legal responsibility for their treatment.

A request to see a review of detention practices in Iraq and Afghanistan (commenced by the MOD after Griffin first made his allegations) was initially met with the release of just 17 per cent of the review report.  However, the Tribunal found that the MOD could not rely on exemptions relating to risk to defence and international relations, recognising again the high public interest in disclosure of this material.  The Tribunal therefore ordered the disclosure of further extracts from the review, with the exception of those aspects covered by legal professional privilege or relating to the security services.

The APPGER had also requested statistics on detainees captured by Joint Task Forces involving UK personnel, and the subsequent transfer, or potential rendition, of those detainees.  Although the Tribunal found that some of this information was properly withheld as it related to the security forces, the Tribunal ordered disclosure of some of the detainee statistics from Afghanistan, finding that such statistics were not personal information protected by the Data Protection Act.  It did, however, find that disclosure of the detention policy of the special forces had been rightly refused.

Jamie Potter, a member of Hogan Lovells UK and EU Public Law and Policy Team, and lead solicitor representing the APPGER, said:

"This is an important decision by the Upper Tribunal, as well as a significant victory for the APPGER. Three years after the MOD first declined to release information requested regarding the transfer, and potential extraordinary rendition, of detainees captured in Iraq and Afghanistan, the Upper Tribunal has confirmed that such information should now be disclosed.  In doing so it rejected an argument by the MOD that to provide the information would be too costly.  The Tribunal accepted only that the MOD should be permitted to continue to withhold information which was legally privileged or related to the security services.

"Most importantly, in my view, the Tribunal acknowledged the substantial public interest in disclosure of information regarding how the UK has sought to comply with its international legal obligations in respect of extraordinary rendition and torture, and questioned whether disclosure of such information would genuinely harm international relations, as had been argued by the MOD.  The overriding importance of transparency and accountability in this area must be a fundamental aspect of the Gibson Inquiry, and we will be continuing to work with the APPGER to ensure that this is the case."


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