Neutral Citation Number: [2009] EWHC 1687 (Admin)
Case No: CO/9282/2007
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 10/07/2009

Before :

LORD JUSTICE SCOTT BAKER
MR JUSTICE SILBER
MR JUSTICE SWEENEY
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Between :

	THE QUEEN on the application of
(1)	KHUDER AL-SWEADY
(2)	HUSSAIN FADHIL ABASS
(3)	ATIYAH SAYID ABDELREZA
(4)	HUSSEIN JABBARI ALI
(5)	MAHDI JASSIM ABDULLAH
(6) AHMAD JABBAR AHMOOD	Claimant	
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	THE SECRETARY OF STATE FOR DEFENCE	Defendant	

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Rabinder Singh QC, Michael Fordham QC,  Shaheed Fatima and Dan Squires (instructed by Public Interest Lawyers) for the Claimants 
Clive Lewis QC, Sam Wordsworth, Joanne Clement and Robert Wastell (instructed by Treasury Solicitor) for the Defendant 

Hearing dates: 22 April, 27 April to 22 May and 6 July 2009
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Judgment

Lord Justice Scott Baker:
Introduction 

1.	This is the open Public Interest Immunity (“PII”) judgment of the Court, which has largely been prepared by Sweeney J.
2.	As will become apparent, this case has revealed disturbing failures by the Ministry of Defence (“the MOD”) in its handling of the process for putting Ministerial PII Certificates and Schedules before the Court.
3.	These judicial review proceedings were concerned with allegations that:-
i)	Following what has become known as the battle of Danny Boy, British forces murdered Iraqi detainees at Camp Abu Naji in Southern Iraq on the night of 14/15 May 2004 – as to which the 1st Claimant (an Iraqi national, who is the uncle of one of those allegedly murdered) asserts breaches of Article 2 of the European Convention on Human Rights (“the ECHR”).
ii)	The 2nd to 6th Claimants (who are also Iraqi nationals) were subjected to ill-treatment at Camp Abu Naji whilst detained there (after the battle) on 14 and 15 May 2004, and thereafter at the Divisional Temporary Detention Facility at Shaibah, contrary to Article 3 of the ECHR.
iii)	The detention of the 2nd to 6th Claimants by British forces from 14 May 2004 until they were transferred to the custody of the Iraqi authorities in September 2004 involved a breach of Article 5 of the ECHR.
iv)	The transfer of the 2nd to 6th Claimants to the Iraqi authorities in September 2004 constituted a breach of Article 3 of the ECHR (referred to during the proceedings as the “Soering” claim).
4.	The principal remedy sought by the Claimants was an order that there be a new independent and effective investigation, satisfying the requirements of Articles 2 and 3 of the ECHR, into the allegations of murder and ill-treatment.
5.	This judgment is given against the background that on 6 July 2009, after having heard evidence and submissions as to the merits of the allegations over some twenty court days, we ordered a stay of the proceedings (subject to any matters to be dealt with today), and made an indemnity costs order for the whole of the proceedings in the Claimants’ favour. The stay and costs were ordered as a result of significant and continuing disclosure failings by the Secretary of State for Defence (“the SSD”), and his consequent decision that there should indeed be a new investigation, satisfying the requirements of Articles 2 and 3 of the ECHR, into the allegations of murder and ill-treatment.
6.	We will, in due course, hand down a separate judgment dealing with some other aspects of the case. That judgment will include a broad summary of the factual background to the case, the history of the proceedings, the wider disclosure failings of the SSD, our concerns and the ramifications for the future.

The MOD PII failings
7.	One of the disclosure failings is, however, of central relevance to this judgment, and (as we have already indicated) of very great concern to the Court – namely the reliance by the then SSD on what has transpired to be a partly false PII Certificate and Schedule signed by the present SSD, in his then role as the Minister of State for the Armed Forces (“the MSAF”), on 25 March 2009. The Certificate and Schedule asserted that it was not in the public interest, on national security grounds, to disclose certain redacted aspects of documents otherwise disclosed to the Claimants. It is now conceded that a significant proportion of the redacted material (all relating to the permissible limits of the techniques of the tactical questioning of captured individuals by Armed Forces interrogators) had previously been disclosed in open hearings during the Payne court martial (concerning the death of the Iraqi national Baha Mousa) which lasted from September 2006 until April 2007, and that the disclosed material was thus in the public domain (“the Payne material”). It is clear that the fact of the previous disclosure of the Payne material must, or should have been, known within the MOD before the then MSAF signed the Certificate and Schedule, and that the previous disclosure of some aspects of the Payne material was undoubtedly known to officials within the MOD by the time of the PII hearings in these proceedings on 1 May and 5 May 2009.  It is also now clear that prior to those PII hearings officials within the MOD had made decisions (in conflict with assertions in the then MSAF’s Certificate and Schedule in these proceedings) that other material in relation to the permissible limits of the techniques of tactical questioning, also covered by redactions in this case, should be disclosed to the participants in the Baha Mousa Inquiry.
8.	We should stress immediately that, on the material before us, it is not suggested that either of the Ministers, or the Treasury Solicitor, or counsel instructed in the case were aware of this state of affairs at the time of the PII hearings in these proceedings.  In the result none of these important matters were drawn to the Court’s attention until 1 July 2009, the day after the now SSD signed a Supplementary Certificate in which, amongst other things, he invited the Court to order the disclosure of the Payne material, and the material disclosed in the Baha Mousa Inquiry. The Supplementary Certificate was itself supplemented by a Skeleton Argument, Draft Order and accompanying Annex A.
9.	It is a matter of very great concern to the Court that the full details of the Payne disclosure, which must or should have been very carefully considered at a very high level at the time, and full details of the decisions in relation to the Baha Mousa Inquiry, were not drawn to the attention of either Minister, or to the attention of the Treasury Solicitor or counsel – whether variously during the process of considering the issues prior to the drafting and signing of the Certificate and Schedule on 25 March 2009, or prior to, or during, the PII hearings and rulings, both inter partes and ex-parte, on 1 May and 5 May 2009.
10.	At those hearings, albeit against the background of the disclosure by the SSD of evidence as to what is said to have actually happened to the 2nd to 6th Claimants during tactical questioning of them at Camp Abu Naji on 14 and 15 May 2004, the Court had significant concerns about the non-disclosure of material relating to the permissible limits of the techniques of tactical questioning, including (as it has turned out) the Payne material and the Baha Mousa Inquiry material. In the event, with one exception, the Court was persuaded by force of argument during the ex-parte hearings, based in particular on paragraphs 16 – 18 of the then MSAF’s Schedule dated 25 March 2009, that the balance of public interest required that the material should not be disclosed.
11.	It is a matter of deep regret that, albeit that they were put forward in good faith, the Court relied on the partly false PII Certificate and Schedule (and especially paragraphs 16-18 of the latter), and that as a result the Court made a number of rulings as to the non-disclosure of particular redactions that are now shown to have been wholly wrong.
12.	It is no consolation that it might be argued, as Mr Lewis QC sought to argue on behalf of the now SSD in open court on 6 July 2009, that the Payne material and the Baha Mousa material is more helpful to the SSD than to the Claimants. The fact is that the material is conceded to be disclosure relevant – i.e. of some assistance to the Claimants.
13.	It is some consolation that, because of the now SSD’s Supplemental Certificate of 30 June 2009, the Court has been able to put the matter right (albeit after the provisional stay of the proceedings), and to have made further disclosure orders in favour of the Claimants (who have, as it happens, succeeded in obtaining a new investigation anyway). It is however a salutary thought that the proceedings are still ongoing (to the extent that they are) only because the original estimate that the evidence and submissions would be completed in May 2009 proved to be over-optimistic, and the Court could not be reconstituted until 6 July 2009, otherwise we might have given judgement on the merits of the case before matters were drawn to our attention.
14.	All that said, the fundamental issue is that the Court should never have been misled. As Laws LJ made clear at paragraph 50 of the judgement in R (Quark Fishing) v Secretary of State for Foreign and Commonwealth Affairs [2002] EWCA Civ 1409, there is a very high duty on central government to assist the court with full and accurate explanations of all the facts relevant to the issue that the court must decide. To state the obvious, the systems for dealing with PII claims in the Courts of England and Wales depend, if a Ministerial Certificate and Schedule are advanced in support of a claim, upon the scrupulous accuracy of the whole of the content of those documents. The more so if the content of the Schedule is sensitive (as is invariably the case), and cannot therefore be disclosed to the party seeking disclosure of the underlying material, who thus cannot contest its content. Especially so, if (as here) that Schedule deals with issues of national security, in relation to which (in accordance with well-established principles) the Court must accord the Minister’s assertions considerable weight in the balancing exercise.
15.	The Courts necessarily proceed upon the basis that Ministerial Certificates and Schedules are the product of a scrupulous process of preparation and checking, designed to ensure the complete accuracy of their whole content. Indeed, one member of the Court has experience over many years, as a practitioner, of participation in that process mostly in relation to other Ministries. Clearly, something went badly wrong in this case. 
16.	It was for that reason that, on 2 July 2009, having approved the draft Order and accompanying Annex A served the day before, the Court wrote to the Treasury Solicitor asking five questions in connection with the now SSD’s Supplemental Certificate of 30 June 2009.
17.	On 3 July 2009 the SSD disclosed to the Claimants the material that he intended should be disclosed in consequence of the Court’s approval of the draft Order and accompanying Annex A. However he decided that the original Annex A was ambiguous in some respects, and therefore rightly invited the Court to consider the approval of an amended Annex A.
18.	On the morning of 6 July 2009 the SSD served a closed Skeleton Argument and accompanying Table 1 on the Court. These addressed, and sought to uphold, each of the remaining redactions that were approved by the Court in the hearings on 1 May and 5 May 2009.
19.	On 8 July 2009 a reply to the Court’s letter of 2 July 2009 was received from the Head of Operational Legal Policy in the Operations Directorate of the MOD. 
20.	Paragraph 4 of the letter makes clear that the MOD accepts that it has failed to discharge its PII obligations in this case, and that this is a matter of the most serious concern because:-
i)	The Courts are entitled to expect the practice of PII in Government Departments to be rigorous.
ii)	It is unfair to the Claimants.
iii)	The Court’s time and public money have been wasted.
iv)	The failure to achieve the standard required will undermine the confidence of the Courts in other claims which are submitted by the MOD.
21.	The letter further states, amongst other things, that:-
i)	It is a matter of very profound regret that there have been serious flaws in the PII process in this case (paragraph 1).
ii)	The author of the letter has discussed the matter with the Permanent Under Secretary and the Second Permanent Under Secretary, and they are fully informed and fully aware of the serious flaws in the PII process in this case, and the responsible Ministers will be briefed (paragraph 2).
iii)	The failings in this case are being taken with the utmost seriousness in the MOD, and that remedial measures are being considered at the very highest levels within the Department (paragraph 5).
iv)	As it has not yet been possible to contact all the individuals involved, exactly what went wrong is still being investigated, but the SSD recognises that these matters require a full and detailed consideration, and that a detailed review is to be undertaken (paragraph 6).
22.	Whilst the investigation is still incomplete, and a detailed review is to be undertaken, the picture that emerges in the letter is, in our view, truly alarming. It includes the following:-
i)	There is, as yet, no satisfactory explanation as to how the Payne material came to be disclosed in the Court Martial proceedings in the first place. Given the level of the threat to national security, in the event of disclosure of the material, posited in the then MSAF’s Certificate and Schedule of 25 March 2009, it would be surprising in the extreme if this had not been the subject of Ministerial consideration at the time. If disclosure was opposed, as one would expect to have been the case, then a Certificate and Schedule must surely have been obtained. If disclosure was then ordered by the Court Martial, that should have been recorded within the MOD. If disclosure was volunteered by the Minister, that too should have been recorded. Likewise if, surprisingly, disclosure was volunteered by officials.  However the Payne material emerged in the open Court Martial hearings, there should have been a central record that it was now in the public domain. It is however clear that no one at the MOD had thought to create a database upon which to record such information.
ii)	It is equally clear that no one within the MOD had been given formal specific responsibility for policy for PII, and that there is no written redaction policy.
iii)	There was a critical lack of internal co-ordination and communication amongst those dealing with the connected PII issues in relation to these proceedings and the Baha Mousa Inquiry.
iv)	Worse, it is now clear that:-
a)	In the period from 20 to 24 April 2009 officials dealing with the Baha Mousa Inquiry discovered that certain material relating to the limits of the techniques of tactical questioning was in the public domain via the Payne Court Martial, yet failed to recognise the significance in relation to these proceedings.
b)	On 23 April 2009 officials and lawyers within the MOD dealing with these proceedings were informed by the officials dealing with the Baha Mousa Inquiry that some redactions they had provisionally made were in fact in the public domain via the Payne Court Martial, and that other provisional redactions might not be sustainable in view of the Inquiry’s approach. Yet nothing was done by the officials and lawyers in the MOD dealing with these proceedings to check any inconsistency with the then MSAF’s Certificate and Schedule of 25 March 2009, and to take action accordingly.
c)	On 24 April 2009 officials dealing with the Baha Mousa Inquiry informed the Inquiry of the MOD’s decision no longer to seek a number of other redactions in relation to the limits of the techniques of tactical questioning – going beyond the Payne material. The officials and lawyers in the MOD dealing with these proceedings were not informed, and thus no steps were taken by them to check any inconsistency with the then MSAF’s Certificate and Schedule of 25 March 2009.
d)	In the lead up to the PII hearings in these proceedings, apparently as a result of discussions between MOD officials involved in the Baha Mousa Inquiry and officials involved in these proceedings, a small number of redactions were voluntarily disclosed in this case on 29 April 2009, after which confirmation was given by MOD officials involved in these proceedings (though to whom is not clear) that no further redacted extracts in these proceedings were in the public domain, and that no decision had been taken to release information in these extracts to the Baha Mousa Inquiry. How these grossly erroneous confirmations came to be given is not clear.
e)	In the result, during the PII hearing in these proceedings on 1 May 2009, neither the fact that the Payne material was in the public domain, nor that officials dealing with the Baha Mousa Inquiry had decided to make disclosures inconsistent with the then MSAF’s Certificate and Schedule of 25 March 2009 was drawn to the Court’s attention. On the contrary, counsel on both sides, and the Court, proceeded upon the basis that the redactions dealing with what has now transpired to be the Payne material was not in the public domain, and that it was wholly unknown what redacted material in these proceedings, if any, might eventually be disclosed to the participants in the Baha Mousa Inquiry.
f)	On the evening of 1 May 2009, and during 5 May 2009, it was also known by one or more officials at the MOD that other redacted information in these proceedings was in the public domain, but none of this was drawn to the attention of the Court during the hearing on 5 May 2009, or in its aftermath.
g)	Between 18 and 22 May 2009 MOD officials dealing with the Baha Mousa Inquiry discovered that yet further redacted information in these proceedings had been disclosed in the Payne Court Martial open hearings. Yet nothing seems to have been done in relation to these proceedings. In particular, the Court was not notified that there were obvious problems in relation to the non-disclosure orders that the Court had made only some two weeks earlier, whereas the matter should have been drawn to the Court’s attention at the earliest opportunity.
h)	At a meeting on 28 May 2009 MOD officials dealing with the Baha Mousa Inquiry informed lawyers at the MOD dealing with these proceedings of disclosure developments. It was only after this that a review was commenced on 2 June 2009, eventually resulting in a submission to the now SSD on 19 June 2009, and his eventual Supplemental Certificate dated 30 June 2009.
23.	There have thus been both systemic and individual failures within the MOD on a substantial scale in this case. Put bluntly, the left hand did not know what the right hand had done, or was doing, and even when it did, nothing was done to seek to correct the situation, and in particular to inform the court, until very late indeed in the day.
24.	In the result:-
i)	The then MSAF signed a Certificate and Schedule asserting, in strong terms, the public interest in the non-disclosure of material which the wider MOD must have known was already in the public domain – whether because the MOD itself had volunteered its disclosure in the Payne Court Martial, or because it’s disclosure had been ordered in those proceedings after opposition by the MOD.
ii)	Prior to the PII hearings in these proceedings in early May 2009, MOD officials took disclosure decisions in relation to the Baha Mousa Inquiry which were in direct conflict with the assertions in the then MSAF’s Certificate and Schedule as to the public interest in the non-disclosure of the same material, and also realised that other material dealt with in the Certificate and the Schedule had been disclosed in the Payne Court Martial open hearings.
iii)	Despite what was thus known at various stages to a number of officials and lawyers within the MOD, none of this was brought to the attention of the Court during the PII hearings, or until 1 July 2009. 
iv)	Therefore, as indicated above, the Court was misled into making a number of rulings on a false basis, all of which were wrong and should never have been made.
25.	The steps that are currently being taken by the MOD, including the prospective detailed review of its PII process in this case, must ensure that false assertions are never again made in a Ministerial Certificate and Schedule. Indeed that in the future the whole content of such documents is scrupulously accurate whatever the workload at the MOD is. Until such time as the MOD has demonstrated this to be the case it will, in our view, be incumbent on the Courts to approach the content of any Ministerial Certificate and Schedule from the MOD with very considerable caution.
26.	We now turn to deal with matters under the following headings:-
i)	The background to the hearings on 1 May and 5 May 2009 
ii)	The hearings on 1 May and 5 May 2009 
iii)	Our rulings on 1 May and 5 May 2009 
iv)	The Supplemental Certificate of 30 June 2009 
v)	Our final rulings.
vi)	Conclusion
The background to the hearings on 1 May and 5 May 2009.
27.	As we have already indicated, the SSD made redactions to a number of the documents that were disclosed to the Claimants, and later included in the trial bundles. Some were disclosed in January 2009, the majority on 26 March 2009, and a Report by the Greater Manchester Police on 8 April 2009. 
28.	The following categories of redaction were made:-
i)	Information not relating to the Danny Boy incident (“Category 1”)
ii)	Information the subject of legal professional privilege (“Category 2”)
iii)	The names/details of individuals engaged in specialised intelligence activities (“Category 3”)
iv)	Information relating to intelligence functions, tactics, training, procedures, purpose and operational commitments of Units    (“Category 4”)
v)	Details about the interrogation of third parties (“Category 5”)
vi)	Details about locally engaged interpreters (“Category 6”)
vii)	Personal information or contact details about individuals       (“Category 7”)
viii)	Other miscellaneous redactions (“Category 8”).
29.	At all stages, the SSD provided general explanations for the redactions to the Claimants, and invited them to apply to the Court if they objected to any of them.
30.	On 27 April 2009 the Claimants sought disclosure of a number of the redacted passages.  As a result, after a review of the documents by the SSD, a number of the redactions were disclosed.
31.	At all events, by the time of the PII hearings in early May 2009, it was common ground between the parties that the Court’s ruling was only sought in relation to redactions falling within Categories 4 and 5.
The hearings on 1 May and 5 May 2009.
32.	As indicated above, the then SSD relied upon the PII Certificate and Schedule that had been signed by the then MSAF on 25 March 2009.
33.	The Certificate included the following assertions:-
“3. I consider that for the reasons set out in this Certificate it would seriously damage the effectiveness of the Armed Forces if the details referred to in the Schedule to this Certificate were made available to the Claimants or their legal representatives or otherwise publicly disclosed. Accordingly I have formed the view that a claim for Public Interest Immunity (PII) should be made and I make this Certificate for the purpose of assisting the Court to determine the questions that arise in relation to PII…
7. When UK forces are deployed, the acquisition of intelligence is vital to the effectiveness of the military campaign, to force protection and to saving lives. To ensure that this effectiveness is maintained it is necessary to protect certain details of specialised intelligence activities… Disclosure of the tactics, techniques, procedures, training and operations of units undertaking specialised activities, are also liable to damage that effectiveness…Any disclosure of this information would enable the targets of these specialised activities to adapt their methods to counter the efforts of the units undertaking these activities, with very significant impact on operational effectiveness and risk to the Armed Forces…
10. The categories of information referred to at paragraphs 7 and 8 above are described in the Annex to this Certificate…
12. The Government’s approach to PII requires me to focus specifically on the damage which would be caused by the disclosure referred to and to assert PII only if such disclosure would cause real harm. I am satisfied having adopted this approach that for the reasons set out above, the disclosure would cause real harm to national security in the sense of disclosing operational capabilities, and would also risk endangering live.
14. The disclosure of the information described in the Annex to this Certificate would cause real harm to the operational capability of Armed Forces… I have included more details in the Schedule to this Certificate…
15. After due consideration of the issues and applying the principals referred to above, I am satisfied that the balance of public interest requires that information relating to…the tactics, techniques, procedures, training and operations of specialist intelligence activities…should not be disclosed. These categories of information are described in the Annex to this Certificate.”
34.	The content of the Annex included the following:-
“(b) Tactics, Training and Procedures (TTPs) 
Information relating to intelligence functions, tactics, training, procedures, purpose and operational commitments save for those matters which are contained within the public text of the material provided by the Royal Military Police. Details of the interrogation of non-claimants.”
35.	During the inter partes hearing on 1 May 2009 it was common ground between the parties and the Court that:-
i)	The great majority of the redactions in dispute related to the ill-treatment claims.
ii)	Whilst the normal test for the disclosure of documents in judicial review claims is whether it is “necessary in order to resolve the matter fairly and justly” (Tweed v Parades Commission for Northern Ireland [2007] 1 AC 650), because of the similarity between these proceedings and a Queen’s Bench action in a number of respects, the Court would proceed in accordance with the test for disclosure set out in CPR Part 31.6.
iii)	The Court should follow the principles in R v Chief Constable of West Midlands Ex p Wiley [1995] 1 AC 274, and the approach of this Court (differently constituted) in R (Binyam Mohammed) v Secretary of State for Foreign and Commonwealth Affairs [2009] EWHC 152(Admin) which identified four questions, namely:-
a)	Is there a public interest in bringing the redacted paragraph into the public domain?
b)	Will disclosure bring about a real risk of serious harm to an important public interest, and if so, which interest?
c)	Can the real risk of serious harm to national security be protected by other methods or more limited disclosure?
d)	If the alternatives are insufficient, where does the balance of the public interest lie?
iv)	It would be inappropriate for the Court to anticipate what would be published following the review by the Intelligence and Security Committee of the guidance to interviewers of detainees overseas, which was announced by the Prime Minister on 18 March 2009.
v)	Likewise the Court was not in a position to anticipate any disclosure decisions by, or in relation to, the Baha Mousa Inquiry.
vi)	In relation to Category 5, the Court would consider whether there was any material which caused concern as to how the non-claimant detainees were interrogated at any time.
36.	The Court then took time to consider the two files of PII material that had been provided to each of its members. These files contained a number of documents some of which, given the limitation of the issues to Categories 4 and 5, were no longer relevant. Additionally, over about three hours on 1 May 2009, and another forty minutes on 5 May 2009, the Court held ex parte hearings in which Mr Lewis was required to justify each individual redaction in turn.
Our rulings on 1 May and 5 May 2009.
37.	In the result, the Court ruled that all redactions save for one at paragraph (12) on page 1489 of Document 2 (Guidance on Interrogation and Tactical Questioning) should be maintained. In addition, the SSD undertook to, and did, make an admission dealing with a redaction that included what Witness S said that he had actually done at one point in relation to one of the detainees.
The Supplemental Certificate of 30 June 2009.
38.	As indicated above, the Supplemental Certificate was provided to the Court on 1 July 2009. It invited the Court to approve the disclosure of the redactions reflecting the disclosed Payne and Baha Mousa material, and also to uphold all the other redactions that the Court had previously approved. The Supplemental Certificate was accompanied by a Skeleton Argument, Draft Order and Annex A inviting the same approach. We append a copy of the then Annex A to this judgment as Annex 1.
39.	From the appended Annex A it will be seen that the invitation to order disclosure related to twenty five redacted extracts within a total of six documents. A number of the extracts were substantial. All had been the subject of rulings approving non-disclosure during the hearings in early May 2009.
40.	After appropriate consideration, on 2 July 2009 the Court ordered disclosure in accordance with the Draft Order and the then Annex A, but required the SSD to submit a Skeleton Argument explaining the impact of the disclosure of the redactions in the then Annex A upon each of the redactions sought to be maintained.
41.	On 3 July 2009 the Treasury Solicitor indicated that the then Annex A required amendment, and specified the requisite details in a new Annex A. Disclosure was made to the Claimants, in the terms of the new Annex A, that day.
42.	On 6 July 2009 the Court was duly supplied with a fourteen page Skeleton Argument on behalf of the SSD which addressed all the remaining redactions and, in particular, each of the twenty one remaining redactions covered by Category 4 in various ways.
43.	Over the days since 6 July 2009 we have had the opportunity, using the PII files, to consider the Supplemental Certificate and the Skelton Argument at length. We have approached both with very considerable caution. 
44.	We held an ex parte hearing this morning in order to examine various issues of concern to the Court.
Our final ruling.
45.	In the result, we approve the new Annex A to our Order of 2 July 2009, and append it hereto as Annex 2. We maintain our original rulings as to the non-disclosure of the remaining redactions. 

Conclusion
46.	We have set out at length the lamentable history of what occurred in this case in order to ensure that nothing similar happens in future.  The complete integrity of PII Certificates and the Schedules attached to them, signed by Ministers of the Crown, is absolutely essential in all cases in which they are put forward.  The Courts must be able to have complete confidence in the credibility and reliability of such Certificates and Schedules.  Nothing less is acceptable.
47.	We have already noted that as a result of events in this case a senior civil servant has now been given specific responsibility in the MOD for policy for PII, and that he is urgently considering the need for a written redaction policy.  We find it astonishing that no such person was already in post, and this suggests a serious lack of oversight, or at the very least inadequate procedures, at a senior level in the MOD.  The failures in the present case demonstrate an apparent inability in the MOD to understand the importance and significance of PII applications in the judicial process.  The lack of internal co-ordination and communication within the MOD could have led to very much more serious consequences than in the event resulted in this case.
48.	Not the least of our concerns is that even when it became apparent within the MOD that there were failures, nothing was done to put matters right until far too late in the day.  Well before the end of May it was apparent to MOD officials that the original PII Certificate and Schedule could not be maintained and that the Court had been misled, and yet it was not until 1 July 2009 that the Court was told anything about the existence of a problem. When the Court has been misled, or even may have been misled, it should be notified immediately that there is a possible problem and that the matter is under investigation.
49.	As we have said in paragraph 25, until such time as the MOD has demonstrated that its procedures have remedied the risk of the kind of errors occurring that occurred in this case it will, in our view, be incumbent on the Courts to approach the content of any Ministerial Certificate and Schedule from it with very considerable caution.

Annex 1

ANNEX A 
CATEGORY 4 REDACTIONS FOR “TACTICS, TRAINING AND PROCEDURES” (TTPs) 
REDACTIONS TO BE RELEASED 
Document 2 – Guidance on Interrogation and Tactical Questioning, 30 November 2005 
Extract 	Pg numbers 	
b 	Pg 1474, para 16 (last two lines) 	
c 	Pg 1474, para 18 	
d 	Pg 1480, serial 5 	
e 	Pg 1481, serial 7 	
f 	Pg 1484, para 4 	
g 	Pg 1485, para 8 (detail of approaches) 	
h 	Pg 1487, para 10 	
i 	Pg 1487, para 12 	
k 	Pg 1489, para 3(a) (14) 	

Document 3: PMD/3 
Extract 	Pg numbers 	
b 	Pg 2482 (pg 44 of 64), last 3 lines 	

Document 4: Witness Statement of Witness S 
Extract 	Pg numbers 	
b 	pg 2723D, para 3-, part of 6 & last para 	
c 	Pg 2723E, 1st para 	
d 	Pg 2723E, middle of page 	
e 	Pg 2723E, bottom of pg 	
f 	Pg 2723F, 1st para 	
g 	Pg 2723F, bottom of para 1 	
h 	Pg 2723F, middle para 	
i 	Pg 2723F, end 	
n 	2723L, 2nd para 	
p 	2723Q 	

Document 5: Witness Statement of Witness P 
Extract 	Pg numbers 	
e 	2723DD, para 2 	

Document 6: Witness Statement of Witness O 
Extract 	Pg numbers 	
b 	2852 	
c 	2853 	

Document 7: Witness Statement of Witness T 
Extract 	Pg numbers 	
a 	2860, bottom 4 paras 	
b 	2861, 1st 3 paras 	

Annex 2

ANNEX A

CATEGORY 4 REDACTIONS FOR “TACTICS, TRAINING AND PROCEDURES”
(TTPs)
REDACTIONS TO BE RELEASED

Document 2 – Guidance on Interrogation and Tactical Questioning, 30 November 2005

Extract	Pg numbers	
b	Pg 1474, the following words in the last two lines of para 16 – “deployed Field HUMINT Teams (FHTs)” and “have personnel who are interrogator trained”	
c	Pg 1474, the following words in para 18 – “J2x. In line with HUMINT operational processes, the J2X staff within deployed headquarters provide HUMINT advice to the commander” and “The provision of HUMINT advice will incorporate interrogation matters as appropriate”	
d	Pg 1480, serial 5 column 3 and the following words in serial 5, column 2b “Ploys may be used by the JFIT” and “The activity must conform to all of the legal obligations”.	
e	Pg 1481, serial 7	
f	Pg 1484, para 4, the following words in para 4, “At no time during the process is the Interrogator to touch the CPERS all movement and control must be affected by guard force under the instructions of the Interrogator”	
g	Pg 1485, para 8 a-g (detail of approaches); and, Pg 1486, the following words of para 8h – “The use of ploys. The use of ploys would require the JFIT to seek specialist legal advice” and “Examples of ploys are as follows:
(1)	stool pigeons placed inside the POW compound amongst other CPERS.
(2)	The Interrogator pretending to be someone he is not.”	
h	Pg 1487, para 10	
i	Pg 1487, para 12	
j	Pg 1487, the following words in para 3(a)(14) “touch or”	

Document 3: PMD/3

Extract	Pg numbers	
b	Pg 2482 (pg 44 of 64), last 2 lines	

Document 4: Witness Statement of Witness S

Extract	Pg numbers	
b	pg 2723D, para3, para 4, para 5, para 6 and last para	
c	Pg 2723E, 1st para	
d	Pg 2723E, middle of page	
e	Pg 2723E, bottom of pg	
f	Pg 2723F, 1st para	
g	Pg 2723F, the following words in the last two lines of the first full paragraph – “I have been subject to interrogation on three separate occasions during’ and ‘courses and picked it up as a technique that was used on me”	
h	Pg 2723F, middle para	
i	Pg 2723F, 3rd para from bottom of page, the following words, “20 minutes”	
n	2723L, 2nd para	
p	2723Q, 6th para, the following words in the 6th para, “which literally means screaming and shouting, again purely for effect. Yes I would have done this for a short period before stepping back, being silent and then followed by a question”	

Document 5: Witness Statement of Witness P

Extract	Pg numbers	
e	2723DD, para 2, the following words, “in a normal tone and manner and the next question would be shouted towards the detainee followed by a question being whispered”	

Document 6: Witness Statement of Witness O

Extract	Pg numbers	
b	2852, timings in first line of 2nd para	
c	2853, timings in last para	

Document 7: Witness Statement of Witness T

Extract	Pg numbers	
a	2860, bottom 4 paras	
b	2861, 1st 3 paras