Comment at end
17th February, 2010
This blog – Inner Temple Library blog – points readers to a report here at The Times – Regina (Binyam Mohamed) v Secretary of State for Foreign and Commonwealth Affairs.
Just so you know, my American friends, it’s all the fault of the USA.
US court frustrates control principle
Court of Appeal
Published February 16, 2010
Regina (Binyam Mohamed) v Secretary of State for Foreign and Commonwealth Affairs
Before Lord Judge, Lord Chief Justice, Lord Neuberger of Abbotsbury, Master of the Rolls and Sir Anthony May, President of the Queen’s Bench Division
Judgment February 10, 2010
It was for the court to determine whether a government claim of serious damage to national security required parts of the reasons in its judgment should be left out.
The Court of Appeal so held in a reserved judgment when dismissing the appeal of the Secretary of State for Foreign and Commonwealth Affairs from the Queen’s Bench Divisional Court (Lord Justice Thomas and Mr Justice Lloyd Jones) (The Times October 27, 2009;  1 WLR 2653) in the claim of Binyam Mohamed for judicial review of the Foreign Secretary’s refusal to provide him with information he alleged was held by the UK government and the Security and Intelligence Services about his claim of ill-treatment and torture, so as to assist in a defence in anticipated US military commission proceedings against him by the US government.
The Divisional Court ordered the inclusion of seven short subparagraphs redacted from its first judgment ( EWHC 2048 (Admin)), although the Foreign Secretary had stated in three public interest immunity certificates that such publication would lead to a real risk of serious harm to the national security of the United Kingdom.
Mr Jonathan Sumption, QC, Mr Pushpinder Saini, QC and Ms Karen Steyn for the Foreign Secretary; Ms Dinah Rose, QC, Mr Ben Jaffey and Mr Tom Hickman for the claimant; Mr Thomas de la Mare and Mr Martin Goudie as special advocates for the claimant; Mr Gavin Millar, QC and Mr Guy Vassall-Adams for Guardian News and Media Ltd, the BBC, Times Newspapers Ltd, Independent News and Media Ltd and the Press Association; Mr Geoffrey Robertson, QC and Mr Alex Gask for the New York Times Corporation, Associated Press, The Washington Post and Los Angeles Times and Index on Censorship; Mr Michael Beloff, QC, for Liberty and JUSTICE.
THE LORD CHIEF JUSTICE said that the redacted paragraphs arose for consideration in the context of findings relating to the involvement and facilitation by UK authorities in wrongdoing.
Their omission would have a number of undesirable consequences. The claimant would be deprived of the full reasons leading to the court’s conclusion, whereas the Foreign Secretary had access to all the court’s reasoning.
The claimant no longer needed the material to achieve his acquittal; he was no longer at risk of prosecution on a capital charge. But when the redacted paragraphs were intended to be included in the open judgment, he was still in Guantanamo Bay at risk of a capital charge.
In general terms, intelligence material provided by one country to another should remain confidential to the country providing it, and it should never be disclosed, directly or indirectly, by the receiving country without the provider’s permission.
Although confidentiality was essential to such working arrangements, its description as a “control principle” suggested an element of constitutionality which was lacking. In the UK’s jurisdiction it was not a principle of law.
Although the Foreign Secretary accepted that the control principle was not absolute, it should be upheld in the instant case. It was clearly established that publication of the redacted paragraphs would result in a review of the intelligence sharing arrangements.
It was clear that the court below recognised the crucial importance of the confidentiality principle, and in overwhelmingly large measure it applied it.
However, in his Lordship’s view, publication of those paragraphs would not reveal information which would be of interest to a terrorist or criminal; publication would not of itself do the slightest damage to the public interest.
There was no secret about the treatment to which the claimant was subjected while in the control of the US authorities. In a judgment of the District Court for the District of Columbia on November 19, 2009 (Farhi Saeed Bin Mohammed v Barack Obama (Civil Action No 05-1347 (GK)), drawn to the court’s attention after the hearing of the present case, it was publicly recorded that the US government did not challenge or deny the accuracy of the claimant’s complaint.
There was a clear interest in the claimant knowing, and the community at large also knowing, not only that his allegations had been vindicated but also the full reasons which led the Divisional Court to its conclusion. The arguments in favour of publication were compelling.
THE MASTER OF THE ROLLS said that the ultimate decision whether to include the redacted paragraphs into the open version of the first judgment was a matter for judicial, not executive determination.
His Lordship had no doubt there was a substantial and very strong public interest, as a matter of principle, in publication.
Where the judgment was concerned with such a fundamental and topical an issue as mistreatment of detainees, and where it revealed involvement on the part of the UK government in the mistreatment of a UK resident, the public interest was at the very top end of importance.
However, in his Lordship’s view, the court’s initial view to redact the paragraphs was right, and the reasons it gave subsequently for changing that view did not justify the decision to do so. It gave insufficient weight to the Foreign Secretary’s views, took too dismissive a view of other evidence from the US authorities and the US Secretary of State, and overestimated the public interest in publication.
Unless the court could have been confident that there was no appreciable risk to national security, then the redacted paragraphs should have stayed as such. The argument in favour of redaction was clearly practical; it was based on the stark fact that publication could conceivably result in harm to the UK’s national security through infringement of the control principle.
Were it not for the US court’s judgment, the value in releasing the redacted paragraphs would simply have been insufficient to justify running a risk, a pretty slender risk, to national security given that the Foreign Secretary certified that there would be such a risk.
Now the US court’s judgment was published, details of the claimant’s mistreatment had become established publicly available facts, rather than merely being matters as to which he had given evidence.
The information contained in the communications to which the redacted paragraphs related was no longer capable of being said to be intelligence material in the control of the US. It ceased to be a summary of such material once the US judiciary chose to disclose the very material.
The publication would not infringe the control principle. There was no satisfactory reason for concluding that publication would result in the US government reducing the flow of information to the security services.
THE PRESIDENT, agreeing with both judgments and particularly with the reasons given by the Master of the Rolls, said that in principle a real risk of serious damage to national security, of whatever degree, should not automatically trump a public interest in open justice.
The court should not readily reject the Foreign Secretary’s judgment as irrational or not based on evidence.
However, the decision of the US court shifted the already fine balance in the present case against the exclusion of the paragraphs. The Foreign Secretary’s case now sought to defend a principle entirely devoid of factual content on which to hang it.
That case changed an arguable case of torture into a case of torture which a US court had found to be true in proceedings in which the US government had the opportunity to make a case that it was not true.
In those circumstances it would be quite absurd if the US government itself decided to reduce intelligence sharing because a UK court had decided to publish summary material whose essential content had been publicly found to be true in a US court.
Solicitors: Treasury Solicitor; Leigh Day; Treasury Solicitor’s Special Advocates Support Office; Ms Jan Johannes, Camden Town; Finers Stephens Innocent LLP; Ms Corinna Ferguson, Southwark; Mr Eric Metcalfe.
Tags: binyam mohamed, court of appeal, judgement, Judgement: Regina (Binyam Mohamed) v Secretary of State for Foreign and Commonwealth Affairs, Lord Chief Justice, Lord Judge, Lord Neuberger of Abbotsbury, Master of the Rolls and Sir Anthony May, President of the Queen’s Bench Division