UK Appeals Court Rules Out Government’s Use Of
Secret Evidence In Guantánamo Damages Claim
By Andy Worthington
06 May, 2010
Andyworthington.co.uk
In the Court of Appeal yesterday morning, six former Guantánamo prisoners — Bisher al-Rawi, Jamil El-Banna, Richard Belmar, Omar Deghayes, Binyam Mohamed and Martin Mubanga — won a resounding victory against the government, when three senior judges, including Lord Neuberger, the Master of the Rolls, overturned a ruling that, for the first time in British history, allowed the government to use secret evidence in a civil claim for damages.
The former prisoners are suing MI5, MI6, the Foreign Office, the Home Office and the Attorney General on the basis that agents of the intelligence services were involved in unlawful acts and conspiracy, and that, essentially, they were involved in, or failed to stop, their detention and ill-treatment (and in some cases, their “extraordinary rendition” to secret prisons). However, in November, Mr. Justice Silber ruled that the government should be able to withhold evidence from defendants and their lawyers on the basis of national security.
In reversing this ruling, the judges in the Court of Appeal — Lord Neuberger, Lord Justice Maurice Kay and Lord Justice Sullivan — said they were obliged to “take a stand” against secrecy that would undermine the “most fundamental principles of common law.”
In what the BBC described as “a strongly-worded ruling,” pointing out that “no damages hearing could be heard in secret because the courts had not been empowered by Parliament to withhold evidence from the claimants,” Lord Neuberger stated:
In our view, the principle that a litigant should be able to see and hear all the evidence which is seen and heard by a court determining his case is so fundamental, so embedded in the common law, that, in the absence of parliamentary authority, no judge should override it. At least so far as the common law is concerned, we would accept the submission that this principle represents an irreducible minimum requirement of an ordinary civil trial. Unlike principles such as open justice, or the right to disclosure of relevant documents, a litigant’s right to know the case against him and to know the reasons why he has lost or won is fundamental to the notion of a fair trial.
As the BBC also explained, the ruling was “the second major blow by the Court of Appeal against the government’s attempts to keep secret material out of open courts.” Back in February, the Court overturned 18 months of obstruction, on the part of foreign secretary David Miliband, aimed at preventing the release of documents supplied to the UK by the US intelligence services, which revealed how Binyam Mohamed had been tortured while in US custody in Pakistan in 2002, before his rendition to torture in Morocco and the CIA’s “Dark Prison” near Kabul, and his eventual transfer to Guantánamo. On that occasion, Lord Neuberger was deeply critical of the role played by the intelligence services, noting — in a passage in his ruling that the government tried to suppress — that MI5 did not respect human rights, had not renounced participation in “coercive interrogation” techniques, deliberately misled MPs and peers on the intelligence and security committee, which is supposed to be able to scrutinize its activities, and had a “culture of suppression” in its dealings with Miliband and the court.
As the BBC explained, “British courts deal with secret evidence in two different ways. Ministers can sign special orders called Public Interest Immunity certificates, which leads to material being withdrawn entirely from a case so it cannot be used by either party,” as happened for 18 months in Binyam Mohamed’s case. In other cases — “[c]ontrol order hearings and national-security related deportations” — some evidence, “such as MI5 assessments,” is discussed in secret. As the BBC added, “The suspect is not allowed into these hearings — but a special advocate argues on their behalf behind closed doors.”
The problems with this latter system were exposed by the Law Lords last June, when they dealt a major blow to the government’s system of detaining terror suspects — both British and foreign nationals — on control orders (a form of house arrest) on the basis of secret evidence, following a ruling in the European Court of Human Rights. As I explained at the time, the unfair use of secret evidence primarily “centres on an absurd situation whereby, in the Special Immigration Appeals Court (SIAC), which deals with these cases, special advocates are responsible for representing the accused in closed sessions involving the use of secret evidence, but are prevented from revealing anything about those sessions to the men they represent. This impenetrable barrier to transparency also works in the other direction, as suspects cannot brief the advocates effectively when they are kept in the dark regarding the details of the case against them.”
Recognizing this, the Law Lords “unanimously declared that they had had enough of the system as it currently stands. By nine votes to nil, they ruled that imposing control orders breaches Article 6 of the European Convention on Human Rights, which guarantees the right to a fair trial, because a suspect held under a control order is not given ‘sufficient information about the allegations against him to enable him to give effective instructions to the special advocate assigned to him.’”
Nevertheless, when it came to the damages claim filed by the six former Guantánamo prisoners, the government proposed exactly the same sort of procedure that the Law Lords found to be unlawful when it came to control orders, arguing that closed sessions should be held because of national security concerns, but with the supposed concession that the men would be represented by special advocates.
In their judgment, however, the judges in the Court of Appeal refused to accept this argument, and Lord Neuberger stated:
Quite apart from the fact that the issue is one of principle, it is a melancholy truth that a procedure or approach which is sanctioned by a court expressly on the basis that it is applicable only in exceptional circumstances nonetheless often becomes common practice.
Responding to the ruling, Corinna Ferguson, a lawyer with Liberty, told the BBC, “Yet again, the Court of Appeal has sent the strongest signal to the security establishment that it cannot play fast and loose with the rule of law. Fair and open justice belongs to people not governments.” She added, pointedly, “Whoever governs us from Friday would be wise to bear this in mind.”
Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by Macmillan in the US, and available from Amazon — click on the following for the US and the UK). To receive new articles in your inbox, please subscribe to my RSS feed (and I can also be found on Facebook and Twitter). Also see my definitive Guantánamo prisoner list, updated in January 2010, details about the new documentary film, “Outside the Law: Stories from Guantánamo” (co-directed by Polly Nash and Andy Worthington, and launched in October 2009), and, if you appreciate my work, feel free to make a donation.
