'For Your Eyes Only' via Section 6 UK Justice and Security Act 2013 (±x)
Joseph S R de Saram CISSP FBCS MIEEE MIScT MINCOSE MACS Snr CP
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“James Bond Agent 007 is assigned to hunt for a lost British encryption device and prevent it from falling into enemy hands.”
But what about Joe de Saram Agent 001 and his encryption stuff? Ha ha!
Summary
CMP and PII relate to scenarios in which a government tries to get out of compensation claims for crimes such as kidnap, torture, unlawful detainment and rendition. It effectively means that evidentiary material is suppressed on the grounds of ‘compromising national security’. (whatever that means). Without evidence cases generally collapse.
Director of Public Prosecutions asks Foreign Office to withhold evidence in torture case - Reprieve
Britain’s most senior prosecutor has asked the Foreign Office to apply to withhold evidence from two survivors of a UK-US ‘rendition’, it emerged today. The move surfaced in a court hearing involving the 2004 rendition of Abdul-Hakim Belhaj and his...
Q – But what happens if the victim bringing the claim has significant experience in these types of Military Intelligence / Law Enforcement (“MI/LE”) operations as well as Forensic Science, and has irrefutable evidence?
A – CMP is no longer relevant as a tool to suppress evidence, so Political Psychiatry comes in before the matter gets to court…
IT APPEARS THAT A MI OPERATION (UK-US-NATO, ACTUALLY APPEARS SIMILAR TO A FISA WARRANT IN FACT)
Listening In
I watched an interesting video of Tucker Carlson, in which he had Senator Jim Himes on his show. Senator Himes is a member of the Permanent Select ...
HAS PAVED THE WAY FOR A LOW LEVEL LAW ENFORCEMENT OPERATION, IN WHICH I WILL END UP FUNDING THEIR ‘COMPLETE BALLS-UP’, VIA POCA 2002 🙂
Jason and the Aldridgenauts
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Background
When I was on Hong Kong SAR in June 2012 my colleagues provided me with the Justice and Security Green Paper which was quite interesting reading. Up to that point, I had not known about it as I had been out of touch with UK-related legislation. And I did not think about it further until mid-2015, for reasons obvious enough 🙂
Justice and Security Act 2013
An Act to provide for oversight of the Security Service, the Secret Intelligence Service, the Government Communications Headquarters and other activities relating to intelligence or security matters; to make provision about closed material procedure in relation to certain civil proceedings; to prevent the making of certain court orders for the disclosure of sensitive information; and for connected purposes.
Section 6
Justice and Security Act 2013
An Act to provide for oversight of the Security Service, the Secret Intelligence Service, the Government Communications Headquarters and other activities relating to intelligence or security matters; to make provision about closed material procedure ...
Specific Relevance to My Identification of Covert Surveillance
Please refer to this article:-
Evidence of 'Parallel Construction'
20180118 UPDATES I have cross-referenced a few articles which will make my 'adventures' easier to comprehend 🙂 20170324 INITIAL William Binney, an ...
Section 56 of IPA 2016 and Parallel Construction
Prosecutors are able to build a parallel – or separate – evidentiary basis for a criminal prosecution, and present this false parallel case in court in order to conceal how the investigation actually began – we all know the Melbourne Fraudsters are involved 🙂
Please refer to this article:-
UTTERLY RIDICULOUS
The primary method that prosecution evidence can be challenged now is the production of evidentiary grade forensic material which can stand alone, and which actively confirms the REAL methods that the evidence was unlawfully obtained. The production of exculpatory evidence by the defence in rebuttal does not require any answers from the prosecution.
Expert Witness
As parties know I am more than competent in writing Expert Testimony and gathering Forensic Evidence, and therefore I do not need another intermediary who will ‘hold my hand’ and ‘check my data for me’ before he ‘fumbles around and struggles to present it in court’.
Whilst my report would not be ‘expert testimony’ (because it relates to my own case), my material would certainly exceed the level of an expert witness so how it is labelled is unimportant if it achieves its objectives.
Furthermore, it would then be a case of cross-examining the prosecution witnesses and others using MY evidence, which is not barred by IPA 2016.
How to Identify Cellular Interception via Pure Forensic Analysis
The video above is by Annie Machon, an ex-Intelligence Officer who worked for MI5. Annie is one of the few of us left who actually have Brains & ...
How to Identify Cellular Interception via IMSI Catcher Failure
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I know how this started and my forensics are better:-
UK IP 193.129.103.99 - A One in 3.7 Billion Fraud
IN THE FOLLOWING ARTICLE, THE USER OF IP ADDRESS 193.129.103.99 APPEARS TO BE GOWLING WLG, ALTHOUGH THEY WERE KNOWN AS 'WRAGGE LAWRENCE & GRAHAM' ...
In the case of Ian Puddick, it is clear that his adversaries wanted the ‘heads up’ before the matter progressed.
After the December 2015 Psychiatric Facility Fraud against me which led to around 10 terabytes of evidentiary data being stolen, I was completely on the back foot.
However the ‘clean-up operation by the perpetrators’ has not been as successful as they would have liked, as I have managed to recover at least 15-20% via scanning other drives surfaces and relying upon the concept of data remanence.
The steps they originally took to wipe data would have meant that I would not have been able to challenge their [historic] ‘chain of custody’. This is particularly relevant because of paragraph 04 of Section 56:-
which serves to legitimise all prior unlawful activity by the prosecution and its agents.
Specific Case of Relevance
The “uneasy” co-existence of public interest immunity and closed material procedure
CF v Security Service and others and Mohamed v Foreign and Commonwealth Office and others [[2013] EWHC 3402 (QB) – read judgment The High Court has today made the first court ruling on the us…
CF v Security Service and others and Mohamed v Foreign and Commonwealth Office and others [2013] EWHC 3402 (QB) – read judgment
The High Court has today made the first court ruling on the use of the Justice and Security Act 2013 in a civil claim for damages.
In a ruling on preliminary issues, Irwin J made a declaration that the government can make a closed material application to the court in this case. The Court also ruled on PII. The following summary is based on the Court’s press release.
Factual background
CF and Mohammed Ahmed Mohamed are both British citizens of Somali descent. CF left the United Kingdom in 2009, Mohammed Ahmed Mohamed having left in 2007. They were both detained by the Somaliland Authorities on 14 January 2011. CF and Mohammed Ahmed Mohamed were then detained until removal to the UK on 14 March 2011.
JOSEPH DE SARAM IS A BRITISH CITIZEN OF SRI LANKAN DESCENT. HE LEFT THE UNITED KINGDOM IN 2000. HE WAS TORTURED, KIDNAPPED AND UNLAWFULLY DETAINED UNTIL THE PLANNED 'IRREGULAR RENDITION'. HE WAS DETAINED IN A PSYCHIATRIC FACILITY BY SRI LANKAN AUTHORITIES FROM 17 DECEMBER 2015.
Each claims that they were unlawfully detained
Extrajudicial Psychiatric Detention
Extrajudicial detention covers a wide range of situations in which the physical freedom of an individual is constrained or abridged by authority ...
tortured
Breaking Four of My Fingers was Textbook Torture v3
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and mistreated during the period of detention in Somaliland.
What happened to me is a signature match in terms of techniques and modus operandi:-
Pseudo-Lethal Injections Ahead of Rendition
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Procedural history
The process of considering an application to withhold information from disclosure on the grounds of public interest (a PII application), and the procedures laid down under the JSA were “very different”, and in their essence may be thought of as conflicting. In his leading judgment in Al Rawi v Security Service [2012] 1 AC 531 Lord Dyson described a closed procedure as “the very antithesis of PII”.”
The JSA permits the State to establish a regime, if the relevant criteria are established in the case in hand, allowing evidence to be adduced in private, under strict conditions which do not threaten national security. As Irwin J observed,
This can avoid the need for a concession which threatens or carries injustice for the State. It imports a corresponding risk of injustice to the claimant acting against the state, whose case will now be met by evidence he never hears and cannot answer.(para 18)
The judge concluded that the court could make a declaration, and adopt a closed material procedure, before disclosure had been given and without a PII claim having been made or determined. The question of whether it was in the interests of the fair and effective administration of justice in the proceedings to make a declaration should turn on the specific circumstances of the case in hand, and could not properly turn on objections which would arise in every case, and which would therefore, if successful, subvert the intention of Parliament.
The pre-condition for a declaration set out in S6(7) of the JSA was agreed by the parties to have been fulfilled, since the Secretary of State had not merely considered whether to make a claim for public interest immunity in relation to the material on which this application was based, but had in fact done so before making this application.
The material advanced here was withheld in the control order proceedings pursuant to the Prevention of Terrorism Act 2005. A PII application was made in these proceedings in relation to this material, although that application was now in effect superseded by the application for a CMP.
In respect of the application for a declaration for closed material procedures, Irwin J went on make the declaration pursuant to S6(1) of the JSA 2013 that a closed material application could be made to the court.
Public Interest Immunity
The co-existence of the JSA 2013 and PII was, in Irwin J’s opinion, “uneasy”. In his view
the description of the processes cited above as being “antithetical” is just. Moreover, in restricting the ambit of the JSA to material affecting national security, excluding material where PII may be sought on other grounds, Parliament has created problematic anomalies. If, as in this case, material is sought to be excluded on the ground of potential damage to the international relations of the UK, then to the extent that such an application is successful, that material cannot be introduced into a CMP which has been permitted pursuant to the Act. So if a declaration is followed by permission for a CMP, material which would have been excluded under a PII application on the (usually) more serious and pressing ground of potential damage to national security will be seen and assessed by the court; material excluded on the ground of potential damage to international relations cannot be considered either in the open proceedings or within the CMP.
Another anomaly is the restricted potential response by the State to an unsuccessful application for PII, based on the international relations ground. Usually, if the State is unsuccessful, the relevant Secretary of State has the choice to abandon the case or the issue in question, and by that means avoid disclosure. Where there has been a declaration, meaning that sensitive material can be considered, it is hard to see that as a practical choice, unless the issues to which the PII-excluded material relates, are quite discrete from the case which will be addressed within the CMP.
The Matrix Revisited - Arms to Iraq in the 1980s v Weaponised Software in the 2010s
This article is about Matrix Churchill, a UK Aerospace engineering company based in Coventry, with expertise in both the design and manufacture of ...
Article – by Jo Shaw
The question of what procedural fairness demands in the context of national security is troubling the courts.
Recent Court of Appeal decisions have highlighted the contextual approach taken by the courts to questions of fundamental fairness.
These questions are thrown into sharp relief by the procedural fairness question which lies at the heart of the use of the controversial Closed Material Procedure.
Kiani [2015] EWCA Civ 776 and Bank Mellat [2015] EWCA Civ 1052 were heard on subsequent days in July by the same panel. The Court of Appeal has now delivered opposing judgments as to when ‘A-type’ disclosure is required. In brief the answer is: ‘It depends on the context.’
A-type disclosure is so-called following the European Court of Human Rights (ECtHR) decision in A v UK (2009) 49 EHRR 29, applied by the House of Lords in AF (No 3) [2009] UKHL 28.
These two decisions set down the principle that fair trial rights contained in article 6 required a ‘minimum standard of disclosure’ such that the appellant could provide instructions to the special advocate appointed to act in their interests in a closed hearing when fundamental rights were at stake. In the absence of A-type disclosure, the information provided to a litigant can be general in nature and extremely limited, to the extent that no detail of any kind is disclosed.
In Tariq [2011] UKSC 35, however, the Supreme Court concluded that while article 6 rights may be at issue so that the requirements for a fair trial must be met, applying the ECtHR decision of Kennedy (2011) 52 EHRR 4 article 6 did not inevitably require A-type disclosure or summary: ‘There are no hard edged rules in this area of the law’ (Lord Hope). The important consideration for the court was, looking at the proceedings as a whole, ‘was there a fair hearing?’.
Lord Kerr’s dissent strongly decried the contextual approach of the majority, describing Kennedy as an anomaly in the ECtHR jurisprudence.
Since these early decisions the courts have repeatedly been called upon to determine what circumstances require A-type disclosure, which leads us to Kiani and Bank Mellat.
Kiani
Like Tariq, Kiani related to employment tribunal proceedings after the appellant’s dismissal following revocation of his security vetting certificate on national security grounds. They both unsuccessfully challenged this revocation, and then sought to challenge their dismissal on grounds of race discrimination and religious discrimination.
The appellant in Kiani relied upon the European Court of Justice (ECJ) decision of ZZ CJEU C300/11 04.06.13 to attack the Supreme Court’s judgment in Tariq.
In ZZ, a French-Algerian national successfully argued that EU law required a minimum of disclosure to be provided in a determination of the right of freedom of movement, thereby requiring the home secretary to give reasons for the refusal to allow him to re-enter the UK, notwithstanding the national security concerns said to be at the heart of the refusal.
Mr Kiani relied on ZZ, arguing that a summary amounting to an irreducible minimum was always required in any case to which the Charter of Fundamental Rights applied (unlike under the ECtHR), so as to enable him to give instructions to the Special Advocate. He was unsuccessful.
Lord Dyson’s lead judgment referred to the context-specific nature of the duty of disclosure drawing a distinction between cases involving free movement of persons, a fundamental right under EU law, and other types of case, such as those involving employment rights and protections. The ‘more demanding standard’ of supplying A-type disclosure was not to be required in all circumstances.
Thus an apparent difference of disclosure obligations between cases involving questions of EU law and the application of the ECtHR was rejected by the Court of Appeal.
Bank Mellat
The most recent Bank Mellat decision again held that context is all. The appealed interlocutory orders related to the disclosure to be provided in the context of the bank’s challenge to further directions made under schedule 7 of the Counter-Terrorism Act 2008. The bank primarily relied upon article 6 but, in the event that argument failed, relied on the EU law points advanced unsuccessfully in Kiani.
The court below had held that the AF (No 3) requirement of a minimum standard of disclosure applied, but then applied that standard restrictively, meaning very little information needed to be disclosed. The Treasury appealed the application of AF (No 3) and the bank cross-appealed the order requiring very limited disclosure.
The court found that the reasoning of the lower court had correctly interpreted the authorities as to the requirement for disclosure in financial restriction cases.
In so doing, the Court of Appeal referred to asset-freezing order decisions to which the A-type disclosure standard applies, as the restrictions on liberty caused by such measures are so great as to amount to an infringement of fundamental rights, whether the measures apply to a business or an individual.
POCAhontas 2002
Just like the long-haired bird in the cartoon above, I was asking my local tree about 'my path and how am I ever going to find it'. The tree responded ...
The ECtHR argument was sufficient for the appellants to win the day, so the possibility of a different EU standard indicated by the decisions in this case and that of Kiani did not need to be considered. The question of the level of further disclosure was also determined in the bank’s favour and referred back to the High Court for determination in the light of further disclosure from the Treasury.
Conclusion
The importance of these two decisions and the continuing absence of bright lines should not be underestimated.
The UK government’s starting point in such cases is that article 6 does not require disclosure and therefore the obligation does not exist in the particular case being litigated. The cases of Belhaj and Rahmatullah are before the Supreme Court this month, and Shaker Aamer’s recent release from detention may lead to litigation. If the Supreme Court upholds the Court of Appeal’s decision that state immunity and the foreign actions of state doctrines do not bar hearing the claims of UK complicity in torture and kidnap, as alleged by Belhaj and Rahmatullah, then at least two procedural questions will almost certainly fall for determination:
(1) does the case meet the requirements for a declaration under section 6 of the Justice and Security Act 2013 providing for a closed material procedure; and
(2) if so, to what disclosure, if any, are the claimants entitled?
The defendants’ argument is likely to be that liberty is not at stake, that these are damages claims only, and that therefore Kennedy and Tariq apply, meaning there is no requirement for A-type disclosure.
Bank Mellat is a welcome reiteration of the disclosure obligations in fundamental rights cases.
Nonetheless the question of what procedural fairness demands in the context of national security is likely to further trouble the courts, including allegations of torture and kidnap.
Abduction Ahead of Rendition
"I have a very particular set of skills, skills I've acquired over a very long career, skills that make me a nightmare for people..." Background As is ...
These decisions should properly be viewed in this gravest of contexts.
I will be referring to this article ‘For Your Eyes Only’ via Section 6 UK Justice and Security Act 2013′ in relation to various Fake Probable Cause / Destruction of Evidence articles…
Joseph S R de Saram CISSP FBCS MIEEE MIScT MINCOSE MACS Snr CP