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Supreme Court upholds ban on use of secret evidence in civil trials

Landmark case that English courts do not have the power to order 'closed material'.

Photo: keyboard by istock

16 July 2011

In a landmark judgment, the Supreme Court ruled on 13 July 2011 that English courts do not have the power to order that a “closed material procedure” be used in civil proceedings, thus defeating the government’s attempt to rely on secret material in such cases involving issues of national security.

The judgment in Al Rawi & Ors (Respondents) v The Security Services & Ors (Appellants) arose out of civil claims brought against MI5 and MI6 and various government departments by a group of former Guantanamo detainees who alleged that the UK had been complicit in their extraordinary rendition and torture by the US. Leigh Day represented UK resident Binyam Mohamed in the proceedings.

The government argued that a large part of the relevant evidence in the cases was too sensitive to be disclosed and sought permission to adopt a ‘closed material procedure,’ whereby the judge, but not the claimants nor their lawyers, would be provided with the evidence and defences on which the government relied at trial.

Such an approach, if upheld by the courts, would have represented a radical departure from the current system under which a party may argue for certain documents to be withheld from disclosure on the grounds of ‘public interest immunity’ (“PII”), but may not then seek to rely on those documents as evidence at trial. It would have also led to the prospect of secret trials, at which one party would not be present, and closed judgments, which one party (and the public) would not be allowed to see. 

The government’s argument was accepted at first instance by Silber J, but was subsequently resoundingly rejected by the Court of Appeal, whose decision was upheld by the Supreme Court.

Dyson LJ, in his judgment, held that “a closed material procedure involves a departure from both the open justice and the natural justice principles” and that the “flaws” in such a procedure could not be “cured” by the special advocate system. He raised the question, “in what circumstances can it ever be in the interests of justice to deny a litigant in ordinary civil claims (including claims for judicial review) the rights which are entrenched in our common law system as being fundamental requirements of justice itself.”

Brown LJ further held “[t]he rule of law and the administration of justice concern more, much more, than just the interests of the parties to the litigation. The public too has a vital interest in the conduct of proceedings. Open justice is a constitutional principle of the highest importance. It cannot be sacrificed merely at the say so of the parties.”

The Supreme Court held that such radical changes to legal procedure could only be brought in by Parliament through legislation. The Prime Minister  has indicated that his government intends to introduce a green paper on this very subject, so there remains a risk that secret evidence could still be introduced into civil trials in England and Wales.

Sapna Malik, the Leigh Day partner who represented Binyam Mohamed in his civil claim, comments: “The Supreme Court’s ruling represents a real victory for open justice and the rule of law. The past decade has seen a disturbing trend towards secrecy and closed proceedings in our courts. This has been of particular concern in proceedings, such as these, where the Government is accused of complicity in torture and wrongful detention. We hope that in light of this ruling, the Government will now reconsider its proposals to extend the use of secret evidence in the courts.”

The ruling came a week after further details of the “Detainee Inquiry” were announced. The Inquiry will examine whether, and if so to what extent, the UK Government in the aftermath of 9/11 was involved in the improper treatment, or rendition, of detainees held by other countries in counter terrorism operations overseas and/or was aware of improper treatment, or rendition of detainees held by other countries in couter terrorism operations in which the UK was involved.

Disappointingly, the Inquiry Chair, Sir Peter Gibson, has not conceded to requests made by lawyers representing former detainees, including Leigh Day, and a coalition of NGOs for measures to ensure that the former detainees are properly represented and that those in the intelligence services and wider government are fully held to account. For instance, there will be no cross-examination of witnesses to the inquiry and the government will have the final say on which documents are to be disclosed. The Detainee Inquiry will be a far cry from the “Baha Mousa Inquiry,” which is due to report this Autumn.

For further information, please contact Sapna Malik on 0207 650 1222.

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