The claimant Iraqi civilians had been captured by British forces in two operations in Iraq in 2008. Each had been held by British forces for a day, then handed over to US forces. The US detained them for over a year. They brought claims for damages, alleging ill-treatment by British and American forces for which they said the defendant was liable, and wrongful detention. Their claims were lead cases within a group litigation.
The defendant denied ill-treatment and put the claimants to proof of ill-treatment by US forces. It disclosed some material to the claimants but resisted disclosing whether Special Forces had been involved in the operations, due to its “Neither Confirm Nor Deny” (NCND) policy regarding Special Forces, as well as the intelligence leading to C2’s detention. All material had been disclosed to the special advocates. Some public domain material referred to Special Forces’ involvement in Iraq. Also, the defendant sought public interest immunity relating to International Committee of the Red Cross reports regarding detention conditions.
Males J ordered a closed material procedure and permitted the Ministry of Defence to withhold material regarding whether Special Forces had been involved in two operations, as well as the intelligence leading to the capture of C2. It did so on the basis that disclosure would be damaging to the interests of national security, and the claimants’ ECHR, art 6 rights would not be breached.
Phillippa Kaufmann QC was involved in this case.