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CA dismisses Government's attempt to cover up complicity in torture of Binyam Mohamed

Senior judges dismiss Government's appeal

Binyam Mohamed

10 February 2010

In a judgment delivered this morning three of Britain’s most senior judges dismissed the UK Government’s appeal against publication of the 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.

The seven paragraphs have now been published and will be re-instated to the High Court’s original judgment of 22 August 2008.

The paragraphs reveal that the UK authorities knew that Binyam Mohamed was being subjected to torture when an MI5 officer went out to interview him in Pakistan in 2002.  Strikingly, it is revealed that it was known that the US authorities were threatening Binyam with extraordinary rendition to a third country, torture and being “disappeared”.  The record of the MI5 agent’s interview with Binyam, in which he attempted to coerce Binyam into incriminating himself or else be left to the US authorities, can now be seen in whole new light.

The Lord Chief Justice, Master of the Rolls and President of the Queen’s Bench Division unanimously dismissed the Government’s argument that the High Court judgment should be censored because, it was alleged, it threatened UK-US intelligence sharing.  This could not be the case where there was nothing in the censored passages of intelligence sensitivity (as opposed to embarrassment) and which was not already in the public domain.

The Master of the Rolls held that:

“[T]his is one of those very rare cases where the court cannot accept a minister’s view….that national security would be at risk if the material in issue were published against the wishes of the US.”  (paragraph 139)

The judges stressed the paramount importance of open justice.  As the Lord Chief Justice explains:

“The redacted paragraphs formed part of the reasons of the court in a judgment which vindicated Mr Mohamed’s assertion that UK authorities had been involved in and facilitated the ill-treatment and torture to which he was subjected while under the control of USA authorities.” (paragraph 24)

and

“The omission of the redacted paragraphs will have a number of undesirable consequences.  A public judgment will be incomplete.  Mr Mohamed will be deprived of the full reasons which led the court to conclude that, notwithstanding the initial rejection of his claim of involvement in wrongdoing by UK authorities, it was not merely sustainable, but amply vindicated, whereas the Foreign Secretary, whose initial stance was to deny that there was any basis or justification for Mr Mohamed’s claim, will have access to all of the court’s reasoning. This facility will extend to the UK intelligence services, notwithstanding that the redacted paragraphs are directly relevant to the adverse findings against them.  As already recorded, the Divisional Court acquitted the Foreign Secretary of any element of bad faith or improper manipulation of the process.  However the stark fact remains that if the redacted paragraphs are not revealed to Mr Mohamed, the parties to this litigation will not be treated equally.” (paragraph 34)

A key factor weighing in the balancing exercise was the Government’s interest in covering up embarrassing allegations made against it.  The Master of the Rolls acknowledged that there are “strong reasons for scepticism” (paragraphs 155 and 170) as to the Foreign Secretary’s position. Indeed, the Government had for a significant period denied that it was mixed up at all in any wrong-doing.

At the outset the Foreign Secretary repeatedly denied that the UK had been involved in any wrong-doing and told the Court that Mr Mohamed’s case was “unarguable”.  The Lord Chief Justice highlights this approach in paragraph 28 of the judgment.

These protestations were roundly dismissed by the High Court who found that MI5 were complicit in Binyam’s torture, taking advantage of it and feeding questions and information to his torturers when they knew or ought to have known what was happening to him.

From the 84 pages of judgment the following conclusions can be reached:

 

  • Set against this background of state denial (as well as the heavy reliance of the state authorities on secret evidence) the paramount importance of open justice is clear.
  • Whilst the UK Courts will continue to show considerable deference to the executive on questions of national security and other prerogative matters that are for the Government, where, as here, the Government attempt to interfere with the operation of justice, their assessments of risk to national security must at least have a rational basis.
  • However, in this instance the Government’s position was hopeless because the information they sought to cover up had recently been placed in the public domain by a United States Court (the case of Farhi Saeed Bin Mohammed, attached to this story). 


As the Master of the Rolls concluded:

“it appears to me that it is simply unrealistic to think that any Government, US or otherwise, would object or take exception, on the ground that it represented the unauthorised publication of US intelligence information, to the publication of facts in an English judgment when those facts have already been published in a US judgment.” (paragraphs 203)

The Government has informed the Court that they do not intend to appeal.

However, a further extraordinary twist in this story of the Government’s attempts to restrain the Courts from giving their public judgments came to light in Court today. 

After the Judges released their draft judgments to the lawyers in the case last Friday, the Government’s barrister, Jonathan Sumption QC,  took the highly unusual step of writing to the Master of the Rolls asking him to tone down his criticism of the Security Services. The Master of the Rolls subsequently acceded to this request before judgment was handed down in the public form today. 

Leigh Day & Co and lawyers representing the other parties to the proceedings were only informed of this intervention yesterday morning and before they were able to respond to this highly unusual step, the Master of the Rolls informed the parties that he had amended his judgment as requested.

In Court this morning, the Master of the Rolls conceded that all parties should have been given an opportunity to respond to Mr Sumption’s submissions before the judgment was amended.  Leigh Day & Co and the other lawyers involved have now been given an opportunity to do so and there remains the possibility that the judgment will once again amended to re-instate the original criticisms.

Richard Stein, Partner at Leigh Day & Co said: 

“It is now clear why the UK Government have been so desperate to cover up the findings of the High Court.  The original High Court judgment, which they fought so hard to suppress, shows just how willing MI5 were to become involved in the torture of an individual.   An equally important impact of this judgment is to reinforce the paramount importance of open justice and equality of litigants before the court. The Government should not seek to use its unique position of power and influence to suppress open justice and suppress the rights of the individual.”

Information was correct at time of publishing. See terms and conditions for further details.


Information was correct at time of publishing. See terms and conditions for further details.

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