A British citizen convicted in absentia of war crimes by a Bangladeshi tribunal sued the Home Secretary for libel after a government report stated he was guilty. The Supreme Court held that striking out his claim as an abuse of process was wrong, as he never had a fair opportunity to contest the foreign conviction.
Background
The appellant, Chowdhury Mueen-Uddin, is a British citizen of Bangladeshi origin who has held numerous prominent public and charitable positions in the United Kingdom since the 1970s. In October 2019, the Home Office published a report entitled ‘Challenging Hateful Extremism’, prepared by the Commission for Countering Extremism. A footnote in that report stated that links between those responsible for violence during the 1971 Bangladesh War of Independence and community leadership in East London were ‘well established’, and specifically referred to the appellant as having been ‘found guilty of crimes against humanity following a trial in absentia’.
The appellant’s conviction arose from proceedings before the International Crimes Tribunal (ICT), a domestic institution of the Bangladeshi legal system. The ICT tried the appellant in his absence in 2013 and convicted him of 11 charges of crimes against humanity, sentencing him to death by hanging. The appellant had not been served with the arrest warrant, his extradition was never requested, court-appointed defence counsel never contacted him, and he faced a real risk of execution if he appeared. The proceedings before the ICT had been the subject of extensive international criticism from the United Nations, Human Rights Watch, Amnesty International, the Bar Human Rights Committee of England and Wales, and other bodies for failing to respect minimum fair trial guarantees. An Interpol red notice issued at Bangladesh’s request was withdrawn in 2018 after the Commission for the Control of Interpol’s Files concluded that the ICT proceedings were not compliant with Interpol’s constitution or the Universal Declaration of Human Rights.
On 16 February 2021, Tipples J determined as a preliminary issue that the natural and ordinary meaning of the Report was that the appellant was responsible for war crimes and had committed crimes against humanity, and that those meanings were defamatory at common law. Sir Andrew Nicol subsequently struck out the claim as an abuse of process. The Court of Appeal (Dame Victoria Sharp PQBD and Dingemans LJ, Phillips LJ dissenting) dismissed the appeal against that decision.
The Issue(s)
The central question before the Supreme Court was whether the appellant’s libel claim (and associated GDPR claim) against the Secretary of State should be struck out as an abuse of process. This involved consideration of three distinct bases for the alleged abuse:
Hunter abuse
Whether the claim constituted a collateral attack on the ICT conviction, falling within the principle established in Hunter v Chief Constable of the West Midlands Police [1982] AC 529.
Manifest unfairness
Whether it would be manifestly unfair to the Secretary of State to have to prove the truth of allegations concerning events over 50 years ago.
Jameel abuse
Whether the claim was so trivial that it did not serve the legitimate purpose of protecting the appellant’s reputation, such that the ‘game was not worth the candle’.
The Court’s Reasoning
Hunter abuse: the requirement of a full and fair opportunity
Lord Reed, delivering the unanimous judgment of the Court, held that the proceedings could not be regarded as an abuse of process under the Hunter principle. Lord Diplock’s foundational statement of the principle required that the plaintiff must have had:
“a full opportunity of contesting the decision in the court by which it was made.”
Lord Reed emphasised that the appellant was tried in absence before the ICT, could not realistically attend because of the risk of execution, counsel appointed to represent him was seemingly unable or unwilling to obtain instructions, and the 1973 Act disapplied constitutional rights and ordinary rules of evidence and procedure. Success on appeal would likely have led to a retrial under the same unfair conditions. In these circumstances, the appellant plainly did not have a full opportunity to contest the decision.
Lord Reed further noted the significance of the fact that Parliament, when enacting sections 11 and 13 of the Civil Evidence Act 1968, deliberately confined those provisions to convictions by United Kingdom courts. The Law Reform Committee’s report explained the reasons for excluding foreign convictions, including that:
“The substantive criminal law varies widely in different countries. So does criminal procedure and the law of evidence. … there are others in which one cannot be assured of this. It would be invidious to draw distinctions between one foreign country and another in the legislation needed to give effect to our recommendations.”
Lord Reed observed that this was precisely the kind of case where the Secretary of State was seeking to give the ICT conviction an unchallengeable status that Parliament had chosen not to confer.
Addressing the Secretary of State’s remarkable submission that even a gross miscarriage of justice should not prevent strike-out, Lord Reed stated:
“It is surprising that the Secretary of State should submit that even if the proceedings before the ICT were unfair—even, indeed, if there was a gross miscarriage of justice—a challenge to the conviction should nevertheless be struck out as an abuse of process.”
Manifest unfairness to the Secretary of State
Lord Reed rejected the argument that the proceedings were manifestly unfair to the Secretary of State because of difficulty in proving a defence of truth after 50 years. He held that this was not a stale claim — the Report was published in 2019 and the claim was issued promptly. The interval between the events and any trial was entirely the result of the Secretary of State’s decision to publish defamatory allegations about events more than 50 years old. He observed:
“It is difficult to accept that, if the Secretary of State is unable to establish the truth of his allegations against the claimant, therefore he can defame the claimant with impunity.”
Lord Reed noted that the burden of proof in a truth defence lay on the defendant, that no investigations had yet been carried out, and that the Court of Appeal had no evidence before it regarding the availability of witnesses. He also cited numerous examples of libel cases tried fairly despite long intervals between events and publication, including Irving v Penguin Books Ltd (over 50 years) and Tolstoy Miloslavsky v United Kingdom (44 years), and quoted Lady Hale’s observation in A v Hoare:
“A fair trial can be possible long after the event and sometimes the law has no choice.”
Jameel abuse: the claimant’s reputation and vindicatory value
Lord Reed held that the majority of the Court of Appeal had erred in their approach to Jameel abuse on multiple grounds.
First, the Court of Appeal’s conclusion that the appellant’s reputation was already that of a war criminal was a finding of fact that could not properly be made at the strike-out stage. The appellant’s pleadings and witness evidence averred that his reputation remained substantially intact despite earlier publications and the ICT conviction.
Second, the Court of Appeal’s reliance on earlier publications of the same allegation (the 1971 newspaper reports, the 1995 Channel 4 programme) as evidence of bad reputation violated the long-established rule in Dingle v Associated Newspapers Ltd [1964] AC 371. Lord Reed quoted Lord Radcliffe’s explanation of that rule:
“A defamed man would only qualify for his full damages if he managed to sue the first defamer who set the ball rolling: and that, I think, is not and ought not to be the law.”
Lord Reed also distinguished the decision in Goody v Odhams Press Ltd [1967] 1 QB 333, noting that the reasoning in that case—that convictions were ‘accepted by people generally as giving the best guide to his reputation’—could not automatically apply to foreign convictions, particularly those of a tribunal whose fairness had been widely impugned.
Third, the Court of Appeal’s conclusion that proceedings could not vindicate the appellant’s reputation was unjustified. Lord Reed noted that the Report contained the first unqualified assertion of the appellant’s guilt by the UK government, unlike earlier media coverage which had reported his denials and the criticisms of the ICT.
The multi-factorial approach
Lord Reed agreed with the dissenting judgment of Phillips LJ that the majority’s approach of combining factors, none of which individually constituted an abuse, was unprincipled:
“This approach was rightly described by Phillips LJ, at para 84, as unprincipled. The Hunter principle and the Jameel principle protect different aspects of the public interest, and have different rationales. Where neither principle is satisfied, the considerations which were relevant to each principle cannot simply be lumped together.”
Practical Significance
This decision is of considerable importance in several respects. First, it clarifies that the Hunter abuse of process doctrine cannot apply to foreign convictions where the claimant did not have a full and fair opportunity to contest the proceedings, regardless of how that conviction is characterised. The court cannot effectively confer unchallengeable status on foreign convictions that Parliament has deliberately excluded from sections 11 and 13 of the Civil Evidence Act 1968.
Second, the judgment reaffirms the continuing vitality of the rule in Dingle: prior publications of the same defamatory allegation are inadmissible to reduce the value of a libel claim, and this principle cannot be circumvented by recharacterising the issue as one of abuse of process rather than mitigation of damages.
Third, the decision confirms that a defendant who chooses to publish defamatory allegations about historical events cannot then rely on evidential difficulties arising from the passage of time to have the claim struck out as an abuse of process. The burden of proving truth lies with the defendant.
Fourth, the Supreme Court has firmly rejected the approach of combining factors from different abuse of process doctrines—none of which is individually satisfied—to produce a finding of abuse. Each doctrine must be assessed on its own terms and according to its own rationale.
Finally, the decision underscores the fundamental right of access to the courts, the importance of which is heightened where a citizen seeks to vindicate his reputation against an extremely serious allegation made by the government of his own country.
Verdict: The Supreme Court unanimously allowed Mr Mueen-Uddin’s appeal. The order striking out his claim was set aside, and he was permitted to pursue his libel and GDPR claims at trial.
Source: Mueen-Uddin v Secretary of State for the Home Department [2024] UKSC 21
