Mohamed v Secretary of State for Foreign & Commonwealth Affairs  EWCA Civ 65 (10 Feb 2010)
On 10 February 2010, the Court of Appeal (the Lord Chief Justice, the Master of the Rolls and the President of the Queen’s Bench presiding) published its decision in the protracted and highly publicised litigation involving Binyam Mohamed. The decision addresses a number of important legal issues that derive from the working relationship between the intelligence services of the UK and the USA, including the appropriate balance between non-disclosure and public-interest immunity, and principles of open justice. As the Chief Justice astutely concluded (at ), the decision also engages ‘concepts of democratic accountability and, ultimately, the rule of law itself’.
Set out below is a brief summary of the factual and procedural history, and of the decision itself. In discussion, I consider the potential scope of the decision, and note a number of developments that followed its release.
Mr Mohamed, a resident in the UK between 1994 and 2001, was arrested in 2002 on the basis of suspected terrorist activity. He was shuttled between interrogation facilities in Pakistan, Morocco and Afghanistan for more than two years, before being transported to Guantanamo Bay in 2004 where he remained until he was released and returned to the UK in February 2009.
The present appeal arose out of an application for disclosure brought by Mohamed in May 2008, seeking documentation and information from the UK Government in order to assist in his defence against charges that he anticipated would be brought against him by the US. Mohamed intended to claim that his confessions were false, and were made as a consequence of torture, or at least inhuman treatment. The disclosure application was based on the court’s jurisdiction to order a third party to disclose documents, where that party had been involved in the wrongdoing (see Norwich Pharmacal Co v Customs and Excise Commissioners  AC 133). It was alleged that the UK was involved, by way of the participation of the Security Service, in the alleged wrongdoing. On 21 August 2008, the Divisional Court granted Mohammed access to the documents sought. The draft judgment of the Court was first shown to officials of the Security Service, to provide the Secretary of State for Foreign and Commonwealth Affairs an opportunity to argue that certain passages should not be included in the public version of the judgment. As a result (and over Mohamed’s objections) seven paragraphs were removed from the public judgment, on the basis that there would be a further hearing to determine whether they should remain redacted.
Between this first decision of the Divisional Court, and the decision of the Court of Appeal, the Foreign Secretary issued three public interest immunity certificates (the vehicle by which the Government claims that the public interest prohibits disclosure of documents), and there were a further five decisions concerning the status of the ‘seven redacted paragraphs’. There was also, relevantly a decision of the District Court for the District of Columbia (Civil Action No. 05-1347 (GK) in Farhi Saeed Bin Mohamed v Barack Obama where it was recorded that ‘the [US] Government does not challenge or deny the accuracy of Binyam Mohamed’s story of brutal treatment’. The Court further stated (at 64):
[Mr Mohamed’s] trauma lasted for 2 long years. During that time, he was physically and psychologically tortured. His genitals were mutilated. He was deprived of sleep and food. He was summarily transported from one foreign prison to another. Captors held him in stress positions for days at a time. He was forced to listen to piercingly loud music and the screams of other prisoners while locked in a pitch-black cell. All the while, he was forced to inculpate himself and others in various plots to imperil Americans. The Government does not dispute this evidence.
Back in the UK, the essence of the UK Government’s claim was not that there was anything in the redacted paragraphs which would, of itself, harm the national interest, but rather that the inability of the Government to maintain absolute confidentiality of intelligence information provided by the USA (referred to as the ‘control principle’), would result in a review of the intelligence sharing arrangements between the USA and the UK, and could result in those arrangements becoming less ‘productive’. This claim, reasserted in various formations in the three certificates, was rejected by the Divisional Court, which held that the seven redacted paragraphs should be made publically available. This formed the context of the appeal the subject of this note.
In three largely concurring judgments, the Court of Appeal dismissed the appeal of the Foreign Secretary. Although there were differences in emphasis, the reasoning provided in the three judgments was largely consistent.
All three Judges stressed that the purported ‘control principle’ was not ‘inviolable’. Any avoidance of disclosure obligations was dependent on well-established public-interest immunity principles. As the Lord Chief Justice emphasised (at ), ‘the confidentiality principle is…subject to the clear limitation that the government and the intelligence services can never provide the country which provides intelligence with an unconditional guarantee that the confidentiality principle will never be set aside if the courts conclude that the interests of justice make it necessary and appropriate to do so’.
The Court was required to make a two-stage assessment. The first step required it to determine whether the publication of the redacted paragraphs would be contrary to the national interest. The second step (which may not arise) required the Court to weigh that aspect of public interest against the public interest that derived from the first judgment being openly available.
In undertaking this assessment, the Court was heavily influenced by the publication of the Opinion of the District Court for the District of Columbia. Indeed, Lord Neuberger MR expressly states (at ) that, prior to receipt of that Opinion he had (‘albeit with severe misgivings’) reached the conclusion that the Divisional Court had erred in not deferring to the Foreign Secretary’s opinion re non-disclosure. That conclusion changed, however, as a result of reading that opinion (at ):
It is therefore now in the public domain, as a fact found by a US court in proceedings in which the US Government was a party, that he was mistreated, indeed tortured, in the way in which he has described, when under US control and interrogation, and that representatives of the US intelligence services knew of the mistreatment and must have observed the effect of such mistreatment of him. Whatever may have been the position before the Opinion was published, details of Mr Mohamed’s mistreatment, and their effect on him, have been publicly recorded by Judge Kessler, and cannot be said any longer to be in any way confidential information, or information which is somehow in the control of the US Government.
Sir Anthony May PQBD expressed similar sentiments (at ) noting that, on publication of the Judge Kessler’s Opinion, the Foreign Secretary’s case became based on ‘a principle entirely devoid of factual content on which to hang it’. It followed, therefore, that any balancing exercise (the second stage of assessment) was unnecessary, and the appeal was dismissed.
Although significant, it is important that the scope of the decision of the Court of Appeal is not overstated. The Court was at pains to stress that it endorsed the application of public interest immunity, and the maintenance of confidentiality over secret information (see, eg ). Indeed, Lord Neuberger MR went so far as to say (at ) that it was a ‘very rare’ case that the court cannot accept a minister’s view as regards a risk to national security. It may be (as Lord Neuberger MR expressly suggests) that, if not for the decision in Farhi Saeed Bin Mohamed v Barack Obama, the Court of Appeal would have reached a contrary conclusion.
That said, although upholding the application of public interest immunity, it is important to stress that the Court has not upheld the ‘control principle’. This is to be contrasted against the statement of Foreign Secretary David Miliband to the House of Commons on 10 February 2010, following the publication of the decision (which also formed the public basis of the Government’s decision to not appeal the decision).
Crucially Mr Speaker, the Court has uphold the [sic], upheld the control principle today. The judgement [sic] describes that principle as integral to intelligence sharing. It specifically vindicates the careful assessment that releasing the seven paragraphs without the consent of the United States would have damaged the public interest.
It seems that the Foreign Secretary is continuing – to quote from the judgment of Sir Anthony May PQBD – to elevate the control principle ‘into something that it is not’ (at ).
Two other aspects of the decision are worth noting briefly. The first relates to the particularly eloquent discussion on the importance of ‘open justice’. This will, no doubt, be of assistance in contexts well beyond the purview of this particular litigation. For example, at  the Lord Chief Justice stated:
Justice must be done between the parties. The public must be able to enter any court to see that justice is being done in that court, by a tribunal conscientiously doing its best to do justice according to law. For that reason, every judge sitting in judgment is on trial. So it should be, and any exceptions to the principle must be closely limited. In reality very few citizens can scrutinize the judicial process: that scrutiny is performed by the media, whether newspapers or television, acting on behalf of the body of citizens. Without the commitment of an independent media the operation of the principle of open justice would be irremediably diminished.
The second aspects relates to the publication of the Court of Appeal decision. After a draft judgment was released to the parties, and prior to open publication, Counsel for the Foreign Secretary wrote privately to the Court (without providing a copy to the other parties) describing a number of the observations in the judgment as ‘an exceptionally damaging criticism of the good faith of the Security Service as a whole’. A copy of that letter is available at www.scribd.com/doc/26659700/Letter-from-Jonathan-Sumption-Q-C-Re-R-Binyam-Mohammed-v-Secretary-of-State-for-Foreign-and-Commonwealth-Affairs. A number of changes were subsequently made to the draft judgment, however the letter became public after lawyers for Mohamed and a number of media organisations intervened. The Court has since convened to reconsider whether or not to it should have published the original criticisms.
The decision is available at http://www.bailii.org/ew/cases/EWCA/Civ/2010/65.html.
Jason Pobjoy, PhD candidate, Gonville and Caius College, University of Cambridge