News The Buried Issue
Issue: 26
May 2010
Secret evidence cannot be used in a civil damages claim being brought by six former Guantanamo Bay detainees, the Court of Appeal ruled. Binyam Mohamed and other former prisoners are seeking to sue the Government for complicity in torture, and the Government and security services wanted to use secret information in their defence at the High Court, their lawyers said. But the senior Judge, who headed a panel of three appeal judges, declared that it was not open to the courts to order a closed material procedure in an ordinary civil claim. He said “the primary reason for our conclusion is that, by acceding to the defendants’ argument, the court, while purportedly developing the common law, would in fact be undermining one of its most fundamental principles.” The former detainees deny any involvement in terrorism and allege that the domestic and the external intelligence services, MI5 and MI6, respectively aided and abetted their unlawful imprisonment and extraordinary rendition to various locations around the
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Featured Eesa (Jesus) (PBUH)
NO
TO SECRET EVIDENCE
world, including Guantanamo, where they say they suffered torture, inhuman and degrading treatment. The intelligence services, Attorney General Baroness Scotland, the Foreign Office and the Home Office contest the claims. The Government asked for the trial to be heard under the closed procedure, whereby the claimants would not see large parts of the evidence being used as a defence. A judge ruled in the High Court in November last year that there was no reason in law why the court could not allow a “closed material procedure” to be used in a claim for damages. This would mean that the Government and security services would not have to disclose information to the claimants’ lawyers if they felt that doing so would damage the interests of national security, UK’s international relations, the detection and prevention of crime, or was likely to harm the public interest in some other way. Instead, the material would be disclosed to “special advocates” -
barristers who had been given security vetting and clearance. These lawyers would be able to take instructions from the claimants - but before they actually saw any of the material the Government did not wish to disclose. The former detainees took their case to the Court of Appeal, where it was ruled in February that paragraphs which gave details of Binyam Mohamed’s torture in US custody should be published. The Government had argued that publishing the paragraphs, which summarised information received by the British security services from American intelligence, could damage the intelligencesharing relationship between Britain and the United States. The court again ruled against the Government in a case in which human rights groups Justice and Liberty and a number of media organisations intervened, arguing that the Government’s secrecy proposals breach the right to a fair and open trial, and are contrary to the right to freedom of expression and the public’s right to know what the authorities are or have been doing on its behalf.