8 March 2010
Binyam Mohamed and five other former Guantanamo detainees will argue in the Court of Appeal today that Mr Justice Silber was wrong when he ruled that, in principle, it is possible for a party to rely on "closed evidence" and "closed pleadings" in a civil claim for damages.
The six men are suing the Security Services, Foreign & Commonwealth Office, Home Office and Attorney General for alleged complicity in their torture and unlawful detention, in various countries and over several years. The Government defendants argue that, due to reasons of national security, they should be able to rely on "closed evidence" and "closed defences" in defending the claims, which would not be made available to the claimants or their legal representatives but which would be made available to the trial judge.
This is a marked departure from the prevailing system of "public interest immunity," (PII) where a party may argue, and the Court may accept, that certain material should not disclosed because it would be against the public interest to do so (for instance, on the grounds of national security). The crucial difference is that if a PII certificate is upheld, the material which is not disclosed cannot be relied upon by either party. However, with the closed evidence procedure the Government is seeking, the judge trying the case would be able to take into account, and make a judgment dependant on, such material, whereas the party from whom disclosure is withheld - and their legal team - would not be able to see it, respond to it or test it.
The appeal will be heard by the Master of the Rolls, Lord Justice Maurice Kay and Lord Justice Sullivan from 8-10 March 2010 and follows last month's Court of Appeal decision to allow the publication of details of what was known by MI5 about Binyam Mohamed’s ill-treatment and torture before they interviewed him in Pakistan in 2002 and subsequently assisted in his interrogation under torture.
Sapna Malik, partner at Leigh Day & Co who is representing Binyam Mohamed in his civil claim against the British Government comments:
"We hope that the Court of Appeal upholds the principles of fairness, equality of arms and open justice in overturning the decision of Mr Justice Silber on this issue utmost constitutional importance, particularly against the backdrop of such concerning allegations."
For further information please contact Sapna Malik on 020 7650 1222.
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