In a powerful judgment laden with criticism of the United States’ practice of extraordinary rendition and the Military Commission procedures at Guantanamo Bay, the High Court has held that the UK Government is under a duty to disclose evidence which it holds about the treatment of Binyam Mohamed between his detention by Pakistani authorities in April 2002 and his subsequent reappearance in Bagram Air Base in July 2004.
Judgment follows a lengthy hearing in the High Court which took place between 28 July and 1 August 2008. [Summary of judgment here]

The Legal Case

The case was brought by Leigh Day & Co on Mr Mohamed’s behalf with the assistance of his defence attorney in the Military Commission proceedings, Mr Clive Stafford-Smith, Director of Reprieve

In a novel application of the Norwich Pharmacal jurisdiction – more usually associated with breaches of commercial confidentiality - we argued that the UK Government was under a duty to provide Mr Mohamed with information in its possession which corroborated his account of rendition and torture.  This duty arose because the UK Government was ‘mixed-up’ in the wrong-doing.

The Judges agreed.  Evidence before the Court confirmed Mr Mohamed’s account that the UK Security Services interrogated him while he was held in Pakistan and subsequently continued to supply the US with information which was then used by his torturers in Morocco, when they knew of the circumstances of his detention and treatment.  The Judges held that the UK authorities were as a result not mere innocent bystanders but had facilitated his ill-treatment and torture.  As such the UK is under a duty to disclose the evidence of this to Mr Mohamed.

The material before the Court has corroborated numerous aspects of Mr Mohamed’s account which the US authorities have insisted to date is “not credible”.

Backstory

Mr Mohamed – a UK resident of Ethiopian nationality - was held unlawfully and incommunicado by the Pakistan authorities from April 2002, before being handed over to the Americans.  During this period he was visited and interrogated by British secret services.  In July 2002 he was rendered by the CIA to Morocco where he was tortured horrifically including having his penis lacerated with a razor.  He was held and tortured in Morocco for about 18 months and during his interrogations he was presented with information which could only have originated from the British authorities.

In January 2004 the Americans collected him and flew him to the notorious ‘Black Prison’ near Kabul where he was subjected to further ill-treatment and interrogation. Finally he was transferred to Bagram Air Base where a “clean team” set about formally interviewing him to obtain evidence which could be used in a prosecution. As Mr Mohamed himself has said, by that time he would have said anything to end his suffering. 

US denials

Mr Mohamed has been charged with terrorism related offences in the Military Commissions at Guantanamo Bay and potentially faces the death penalty.  The entire case is built upon confessions extracted from him after years of ill-treatment and torture.  The US have consistently refused to confirm or deny Mr Mohamed’s allegations and have not disclosed any evidence to his defence team which pre-dates his reappearance at Bagram. Yet as Lord Justice Thomas noted:
“It is inconceivable that there are no documents in the possession of the United States Government that relate to what happened to [Mr Mohamed] in the two year period from April 2002 to May 2004…..We have been given no reason why such documents cannot be produced by the United States military prosecutors and can think of none.” [paragraph 126(v) of the Judgment]

But as he also noted:
“torturers or those who subject those in their custody to cruel, inhuman or degrading treatment do not readily hand over evidence of their conduct” [paragraph 126(i)]

Such information would undermine the case against Mr Mohamed because of the long established legal principle that the fruits of torture cannot be used in evidence in criminal proceedings.  Faced with the denials of the US, Mr Mohamed had no choice but to seek assistance from the UK.  Leigh Day & Co wrote to the Foreign Secretary, David Miliband, requesting disclosure of all information that the held about Mr Mohamed’s treatment and whereabouts in this period.   This request was refused.

But as the Judges found: “the information held by the Foreign Secretary is not only necessary but essential if [Mr Mohamed] is to be able to put forward a defence to the very serious charges he faces”. [paragraph 105]

Strong criticism is levied at the US position and the procedures before the Military Commissions:
“It might have been thought self-evident that the provision of information as to the whereabouts of a person in custody would cause no particular difficulty, given that it is a basic and long established value in any democracy that the location of those in custody is made known to the detainee’s family and those representing him……In these circumstances to leave the issue of disclosure to the processes of the Military Commission at some future time would be to deny [Mr Mohamed] a real chance of providing support to a limited part of his account and other essential assistance to his defence.  To deny him this at this time would be to deny him the opportunity of timely justice in respect of the charges against him, a principle dating back to at least the time of the Magna Carta and which is so basic a part of our common law and of democratic values.” [paragraph 143(xi)-(xii)]

National security

The Judgment sets out the Court’s conclusions and findings on much of the material and legal arguments before it.

A significant part of the hearing took place in closed session due to the national security sensitivity of much of the material before the Court. For instance, during the hearing the member of the security services who interviewed Mr Mohamed in Pakistan was cross-examined by Mr Mohamed’s legal team.

However, the Court has also prepared a closed judgment which will explain its reasoning by reference to the secret material considered at the hearing.  It seems further key information may be contained in ‘closed’ materials put before the Court and which are dealt with in a closed judgment made available to the Government and ‘Special Advocates’ (security cleared barristers who represented Mr Mohamed’s interests in the closed sessions). 

What happens next?

The Government must now re-consider their position and decide whether to disclose the evidence they hold to Mr Mohamed’s defence team.  They may try and argue that Public Interest Immunity applies to the evidence (on account of national security sensitivity).  If so there will be further hearing next week to decide this issue and the extent of the disclosure which should be made.

Legal aid

The case has been funded by Legal Aid.  It is a very powerful example of the important part  Public Funding from the Legal Services Commission

can play in the protection of human rights and the rule of law.

Richard Stein of Leigh Day & Co said: “Today’s judgment reflects the abhorrence of decent society at the methods employed by the United State’s government in the supposed “war on terror”.  It has taken the Courts of this country to intervene and re-iterate the importance of upholding the rule of law.  We can only hope that the Foreign Secretary will now reflect on this judgment and provide direct assistance to Binyam’s defence team.”
 

For more information please contact Richard Stein or Jamie Beagent

on 020 7650 1200