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A LIBYAN couple who allege that the British government was complicit in their detention and torture demanded at the High Court today that material relied on by the director of public prosecutions be revealed.
Libyan militant Abdel Hakim Belhaj and his wife Fatima Boudchar were detained in China in February 2004 and deported to Malaysia from where, they allege, they were sent to Libya.
Mr Belhaj, who in the 1990s was a member of the British-backed Libyan Islamic Fighting Group which tried to assassinate Colonel Muammar Gadaffi several times, claims he was tortured for six years.
In June 2016, the Crown Prosecution Service (CPS) announced that there was “insufficient evidence” to charge former MI6 counter-terrorism chief Sir Mark Allen with criminal offences. He has always denied any wrongdoing.
Mr Belhaj and Ms Boudchar are seeking a judicial review of the CPS decision to not charge Mr Allen with misconduct in public office or aiding, abetting, counselling or procuring any offence of torture.
The couple have also brought a separate civil claim against Mr Allen, former foreign secretary Jack Straw and the government for their alleged complicity in their abduction and torture.
But Ben Jaffey QC, for the couple, said in written submissions that the claimants do not have the “full factual picture” behind the decision not to press charges.
This is because the Foreign Office had claimed legal advice privilege on material that was previously disclosed to the police and CPS, he said.
Mr Jaffey told the court that “legal advice is at the heart and has always been at the heart of issues [relating to] what is often called extraordinary rendition,” adding that “bad legal advice is an enabler of unlawful conduct.”
He said the Foreign Office’s request for the court to rule on whether the redacted material was privileged on the basis of “closed” evidence was “an abuse” of the closed material process.
Mr Jaffey said that to do so would cause “unfairness to the claimants above and beyond the inevitable disadvantages” that would be caused by the closed material procedure itself.
He stated the Foreign Office had “waived” privilege in relation to the police investigation and that it was for the court to determine whether it could “reassert” that privilege.
The hearing continues.
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