On 21 December 2012, in R. (on the application of Noor Khan) v Secretary of State for Foreign and Commonwealth Affairs  EWHC 378 (Admin), the High Court refused permission for the judicial review of a ‘decision’ by the Secretary of State for Foreign and Commonwealth Affairs to provide intelligence to the US authorities for use in drone strikes in Pakistan.
The claimant alleged that employees of UK Government Communication Headquarters (GCHQ) were at risk of committing criminal offences in England and Wales as secondary parties to murder or war crimes by providing “locational intelligence” to the Central Intelligence Agency (CIA). However, the court considered that the application was, in reality, an attempt to persuade the court to sit in judgment on the sovereign acts of a foreign state, and as such it should be refused.
The claimant alleged that his father (along with 49 others) had been killed in Pakistan by a missile fired by a drone operated by the CIA. He claimed that the GCHQ employees were at risk of committing criminal offences by providing intelligence to the CIA in connection with such strikes, and sought permission to bring judicial review of the ‘decision’ to share this intelligence.
The Secretary of State was unable to either confirm or deny the factual allegations, but in any event challenged the application for permission to appeal on a number of grounds, including that:
- To determine the application, the court would be required to adjudicate on the legality of acts of foreign sovereign states; and
- the claim amounted to a request for a declaration from the court as to whether future conduct is prohibited by domestic criminal law, and the court should not be providing such an advisory opinion.
The court refused permission to bring the judicial review, principally on the basis that the application raised matters of “high policy“, and to “sit in judgment on the conduct of another state would imperil the relations between the states“.
The principle that the courts will not sit in judgment on sovereign acts of a foreign state is well-established through earlier decisions such as Buttes Gas and Oil Co v Hammer (No.3)  AC and Kuwait Airways Corporation v Iraqi Airways Co (Nos 4 and 5)  2 WLR. The claimant did not seek to dispute these principles, but argued that the application would not in fact require the court to determine the legality of the United States’ actions in Pakistan. Following a consideration of the relevant case law, this argument was firmly rejected.
Further, the claimant argued that there was no indisputable doctrine of non-justiciability – this case concerned only the legality of the activities of GCHQ employees under domestic criminal law. In order to determine issues of domestic criminal law, however, the court would need to consider how international law would classify the actions of the United States. The court acknowledged that there are cases where the courts have been prepared to interpret and apply issues of international law if it was necessary to resolve a private right or obligation (see, for example R (Al Haq) v Secretary of State for Foreign and Commonwealth Affairs  EWHC 1910 (Admin)). However, before doing so, the right must be identified, so that it can be vindicated, and that process itself could involve rulings on matters of high policy which the courts would not be prepared to undertake.
As to the Secretary of State’s second argument, the court acknowledged that, in effect, it was being asked to give an advisory opinion on a difficult point of criminal law with unproven facts, which it would not give unless it would serve a clear public or private interest. Moreover, applications for advisory opinions were granted only in exceptional circumstances, and were more likely to be accepted in relation to issues of pure law rather than those that are fact-dependant. In this case, whether an employee of GCHQ could be said to be guilty of an offence would depend on a range of factual issues, including the nature of the activity and the state of knowledge of the employee in question. The court concluded that it was not possible to produce a meaningful declaration without reference to specific facts. It could “see no point in identifying whether the employees have a defence to a criminal charge in circumstances where is no risk they will ever be prosecuted and where the existence of facts likely to found a criminal charge is a matter of imaginative conjecture“.
On a further point of interest, the Secretary of State had objected to the application on the basis that it could not be tried without a statutory closed-material procedure (allowing a party to comply with its disclosure obligations without disclosing material to other parties if contrary to the public interest). The court stated that it did not need to resolve this question given its decision to reject the application, but noted the prevailing position that, absent statutory provision, a closed material process is not available in judicial review proceedings (this procedure is generally not permitted because of the established principles of open justice and natural justice) (following Al Rawi v Security Service  1 AC 531).
This case, being one of many brought by legal activists around the world, formed part of increasing efforts to apply international pressure on the US government in an attempt to persuade it to reconsider its drone policy. The court was clear to emphasise that it was well aware that the real aim of the proceedings (together with similar proceedings brought in the Pakistan courts) was to convince the court to publicly condemn the United States’ activities in Pakistan, with the hope that this may assist in bringing drone strikes to an end. However, whilst the court noted that the claimant’s arguments were an “admirably clear and attractive effort” to “shroud that purpose in a more acceptable veil“, it would not allow itself to be lured into a highly sensitive and political area. It was within the remit of the Intelligence and Security Committee, not the courts, to scrutinise activities of the GCHQ and hold it to account.