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Secret evidence challenge by Mail on Sunday

The Mail on Sunday has made an application to the High Court, seeking disclosure of a closed judgment, handed down in a case about torture and mistreatment of individuals transferred from British to Afghan custody in Afghanistan, which has so far been kept secret from the public

30 January 2013

The Mail on Sunday has made an application to the High Court, seeking disclosure of a closed judgment, handed down in a case about torture and mistreatment of individuals transferred from British to Afghan custody in Afghanistan, which has so far been kept secret from the public.

The closed judgment was handed down in a case brought by Maya Evans in June 2009.

She challenged the detainee transfer policy applied at the time by the British authorities in Afghanistan, which resulted in many individuals being handed over from the British Army to the Afghan authorities, in particular the National Directorate of Security.

There was widespread evidence that many individuals in NDS custody were subject to torture, including by beating and electrocution.

The hearing, in April 2010, was partly held in secret with some evidence being kept from Ms Evans' lawyers.

At the end of the case, three judgments were handed down - one open judgment, one closed judgment and one semi-closed judgment.

The open judgment concluded that there was "a real risk detainees transferred to NDS Kabul will be subjected to torture or serious mistreatment" and transfers would "therefore be in breach of the Secretary of State's policy and unlawful", but transfers to other NDS facilities (Kandahar and Lashkar Gah) could continue provided specified conditions were met, such as the right of British monitors to get access to the detainees regularly.

The closed judgment has never been disclosed to the public - it has only ever been seen by the Government and security-cleared special advocates.

Shortly after the judgments were handed down in Ms Evans' case, the United Nations Assistance Mission in Afghanistan "found compelling evidence that NDS officials at five facilities systematically tortured detainees", including at least one facility, at Kandahar, that had been pronounced safe for detainee transfers by the High Court.

A follow up case was brought by Leigh Day on behalf of Serdar Mohammed, who had himself been transferred to the NDS by British forces and suffered appalling mistreatment, abuse and torture in NDS custody.

His claim resulted in an announcement by Philip Hammond that the UK would impose an immediate ban on all transfers from the British Army to Afghan authorities until further notice.

During the case of Serdar Mohammed, evidence was disclosed to the court which had previously been classified as "secret" by the Government in Ms Evans' claim - in particular some evidence from a MoD lawyer Barry Burton who described how a prisoner who had been handed over from the British authorities to the NDS in Kabul had subsequently complained of having been tortured despite assurances from the head of the NDS that he would be kept safe.

The Mail on Sunday describe how Mr Burton’s testimony was considered under a ‘closed material procedure’ (CMP) during Ms Evans' case, which allowed the Government to present evidence to a judge without having to disclose it to the whole court.

In the Mail on Sunday’s High Court application, issued on Thursday 17th January, the paper argues that because more of Mr Burton’s statement has now been published by the MoD, the security considerations that kept it secret no longer apply.

As a result, the original secret judgment, or at least the parts which discuss Mr Burton’s testimony, should be published. The case made reference to Lord Judge, the Lord Chief Justice, who said in an earlier ruling: ‘In litigation, particularly litigation between the Executive... and the citizen, the principle of open justice represents an element of democratic accountability, and the vigorous manifestation of the principle of freedom of expression.

Ultimately it supports the rule of law itself.’ Closed judgments, he went on, should only ever be given in ‘extreme circumstances’. A hearing regarding the paper's application is likely to be held later this year.

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