THE Court of Appeal on Tuesday ‘firmly and unambiguously’ rejected the government’s argument that it is open to a Court, in the absence of statutory power, to order a ‘closed material procedure’ in relation to the trial of an ordinary civil claim.
The court ruled that such were the claims of former Guantanamo detainees brought against the British Security Services and various government departments for alleged complicity in their torture and maltreatment over several years.
On November 18 2009, in a highly controversial judgment, Mr Justice Silber ruled that in principle it was possible for a Court to allow a party to rely on closed evidence and closed pleadings in a civil claim for damages.
As the law currently stands, if the government successfully claims ‘public interest immunity,’ excusing them from disclosing material in the civil courts (for instance, on the grounds of national security) they are then not allowed to rely on the material.
The government’s proposals would have meant that they would be able to rely on such evidence, the judge trying the case would be able to see it and make a judgment dependant on such evidence but the other party and their legal team would not be able to see it, respond to it or cross-examine witnesses on it.
This was particularly troubling in the context of such serious allegations, leading the Claimants to appeal against the judgment.
Lord Neuberger (Master of the Rolls), Lord Justice Maurice Kay and Lord Justice Sullivan unanimously agreed with the Claimants that such a procedure would undermine some of the most fundamental principles of the common law and fly in the face of the Civil Procedure Rules.
Their Lordships referred to the ‘cardinal requirement that the trial process must be fair, and must be seen to be fair . . . which under the common law means that a trial is conducted on the basis that each party and his lawyer, sees and hears all the evidence and all the argument seen and heard by the Court.’
They also referred to another fundamental principle of English law that a party to litigation should know the reasons why he won or lost.
Their Lordships commented that “[i]f the court was to conclude after a hearing, much of which had been in closed session, attended by the defendants, but not the claimants or the public, that for reasons, some of which were to be found in a closed judgment that was available to the defendants, but not the claimants or the public, that the claims should be dismissed, there is a substantial risk that the defendants would not be vindicated and that justice would not be seen to have been done.
‘The outcome would be likely to be a pyrrhic victory for the defendants, whose reputation would be damaged by such a process, but the damage to the reputation of the court would in all probability be even greater.’
Speaking after the judgment was delivered today, Sapna Malik, Partner at Leigh Day & Co, acting for Binyam Mohamed said: ‘We are delighted that the Court of Appeal has fully accepted the Claimants’ arguments that the government has been seeking to introduce, via the backdoor, unconstitutional and manifestly unfair measures to defend these most serious of allegations, which the Courts must emphatically resist.’
Clive Stafford Smith, Director of Reprieve, who acted for Binyam Mohamed in the United States, said: ‘Perhaps the most dangerous legacy of the “War on Terror” is a creeping secrecy that threatens to shutter the workings of British justice away with access limited to a privileged few.
‘We applaud the Court of Appeal’s excellent decision to keep our courts open, so that the British public may continue to see justice done in their name.
‘It is crucial that our government accept this ruling, and stop hiding the mistakes of the “War on Terror” years. We cannot learn from history unless we know what it is.’
In May 2008, in order to assist his defence against terrorism charges in the US, Binyam Mohamed made an application to the High Court requesting the UK government to disclose documents provided to it by the US government which gave details of Mr Mohamed’s treatment by the US authorities.
Mr Mohamed alleged that he had been subjected to torture while in US custody, consisting of genital mutilation, deprivation of sleep and food, being held in stress positions for days at a time, and being forced to listen to loud music and screams of other prisoners while locked in a pitch black cell, all while being forced to implicate himself and others in terrorist plots against the US.
The High Court ruled that Mr Mohamed was entitled to the documents because they concerned wrongdoing by a third party in which the UK government had been involved.
Binyam Mohamed’s treatment occurred at a time when the UK intelligence services had been involved in questioning him.
The UK government then issued ‘public interest immunity’ (PII) certificates claiming that disclosure of the documents, and seven paragraphs of the High Court’s judgment which summarised them, would not be in the public interest.
Mr Mohamed challenged this assessment and the matter was considered by the High Court.
Binyam Mohamed subsequently obtained the documents from the US authorities and charges against him in the US were ultimately dropped.
However the UK government continued to resist publication of the seven paragraphs of the High Court’s judgment because it claimed that it would breach the diplomatic rule that intelligence provided by one government to another should not be disclosed without the consent of the government which provided it (‘the control principle’).
It was said that the consequence of this was that the Bush administration would reduce its cooperation with the UK intelligence services.
The High Court accepted the UK government’s concerns and decided not to publish the seven paragraphs.
Subsequently the High Court agreed to reopen the case after it materialised that the Obama administration may not adopt the same stance as the Bush administration had done.
The Court ruled that there was no proper basis for the UK government’s assertion that the US government would react in the way that was claimed.
It therefore ruled that the seven paragraphs should be published.
The UK government appealed this decision and as a result the publication of the seven paragraphs was postponed pending the appeal.
Meanwhile a US court ruled in an application for habeas corpus by a Guantanamo Bay detainee that Binyam Mohamed had been treated in the way he alleged (i.e. as summarised in the seven paragraphs).
Despite this the UK government continued to argue that the seven paragraphs should not be published.
The Court of Appeal decided on 10 February 2010 that the seven paragraphs should be published.
On receiving the embargoed draft judgment of the Court of Appeal, the government’s counsel made the unusual request in a letter to the Master of the Rolls to delete one paragraph of his judgment.
On 26 February 2010 after receiving further submissions on the issue, the Master of the Rolls rejected the government’s request and published the disputed paragraph with only minor alterations.