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COMPARATIVE MEDIA LAW & ETHICS
by TIM CROOK
Published by Routledge on 15th December 2009
For details of the book, please visit Routledge.
Author's profile at Goldsmiths, University of London
Tim Crook’s Media Law Bulletin February 2010
1. On Wednesday 10th February 2010, England’s Court of Appeal Civil Division presented a ruling of enormous constitutional and historical importance. The assertion of the rule of law and open justice by three of the country’s most senior judges has generated a debate. Is the executive accepting that their position was wrong in law? Whilst they are aiming their criticism at the interpretation put on the ruling, is it possible their rhetoric might be seen as implicit criticism of the judges concerned? Two cabinet ministers, the Foreign and Home secretaries, have written an open letter to the media in which they do not fully concede that their legal position was wrong; namely that despite the national security and confidentiality importance of protecting intelligence-sharing relationships, it was not lawful to suppress the publication in a court ruling of allegations that a British resident was subjected to torture by the CIA with the alleged knowledge of the British Security Service. The Director-General of the Security Service, MI5, Jonathan Evans, has not criticised the judges, but again does he categorically accept the ruling and assert that his valuable and hardworking service has any lesson to learn from it? In short this may be an understandable defence of the reputation and work of his staff, but it may also be a risky political strategy. He is one of the world’s finest counter-intelligence and counter-terrorism experts widely respected by rival home security agencies as well as by his staff.
2.The problem for MI5 and MI6 is that the secret services are being drawn into an open and public scrutiny of their activities in intelligence gathering in the seemingly never ending struggle to defend the country from terrorist attack. In the context of judicial and political combat they find that they have become a contradiction in terms. The intelligence reality is that secret intelligence derived from torture can be valuable. The legal reality is that any evidence derived from torture is absolutely unlawful, and so is any participation or collusion in torture by UK intelligence officers or agents.
3. It also emerged on the day of the judgment that the UK government’s QC had persuaded one of the judges to remove comments that were acutely critical of MI5; that the judge concerned, Lord Neuberger, had been under the impression that the government lawyer had made his request with the consent and knowledge of the lawyers for all the parties. This was not the case. But the government lawyer’s letter to the judge has been leaked to the media. We now know what the government wished to be suppressed in the open appeal court ruling.
4. There is no doubt that there is a real risk that the executive through cabinet ministers and their information purveyors may be seen to be questioning the validity of a ruling by the country’s independent judiciary. At the very least the court ruling is being drawn into an unseemly and sordid political debate when there should be constitutional respect for its conclusions. It could be argued that the court ruling is being misrepresented by politics and propaganda.
5. It could be argued that the terrorist threat to the people of Britain is so great and pervasive that both MI5 and MI6 should not have their energies and leadership sapped, diverted and pre-occupied by politics. The issue of whether British intelligence officers or agents colluded in torture is a matter for the police, and any future court proceedings that may arise. The issue of the extent of the proper disclosure to Parliament’s Intelligence and Security Committee should be investigated and adjudicated by that committee.
6. The British and American courts have spoken. And as I will explain, the open justice principle of the London Court of Appeal ruling depended on the open justice principle of a US federal court ruling also dealing with Binyam Mohamed’s allegations. My advice to the politicians is live with that, and deal with the constitutional and legal consequences with dignity and respect. To that extent I begin by setting out the full detail of the ‘redacted’ paragraphs that the UK government wanted suppressed from the original Divisional court ruling last year. BM stands for Binyam Mohamed and SyS stands for Security Service otherwise popularly known as MI5. The most significant and relevant paragraph to this whole story is number (ix). Remember this was a considered conclusion of two Divisional court judges of England’s High Court.
‘(iv) It was reported that a new series of interviews was conducted by the United States authorities prior to 17 May 2002 as part of a new strategy designed by an expert interviewer.
(v) It was reported that at some stage during that further interview process by the United States authorities, BM had been intentionally subjected to continuous sleep deprivation. The effects of the sleep deprivation were carefully observed.
(vi) It was reported that combined with the sleep deprivation, threats and inducements were made to him. His fears of being removed from United States custody and "disappearing" were played upon.
(vii) It was reported that the stress brought about by these deliberate tactics was increased by him being shackled during his interviews.
(viii) It was clear not only from the reports of the content of the interviews but also from the report that he was being kept under self-harm observation, that the interviews were having a marked effect upon him and causing him significant mental stress and suffering.
(ix) We regret to have to conclude that the reports provided to the SyS made clear to anyone reading them that BM was being subjected to the treatment that we have described and the effect upon him of that intentional treatment.
(x) The treatment reported, if had been administered on behalf of the United Kingdom, would clearly have been in breach of the undertakings given by the United Kingdom in 1972. Although it is not necessary for us to categorise the treatment reported, it could easily be contended to be at the very least cruel, inhuman and degrading treatment of BM by the United States authorities.'7. In this blog I wish to concentrate on reportage rather than the expression of my opinions. For that purpose I aim to concentrate on highlighting key passages in the court ruling and then summarize the reporting by some of the UK’s national newspapers of the reaction, charges and counter-charges. The Court of Appeal Ruling (Civil Division) was delivered by the Lord Chief Justice of England and Wales, Lord Judge, The Master of the Rolls, Lord Neuberger (Head of the Court of Appeal Civil Division) and Sir Anthony May (President of the Queen’s Bench Division of the High Court) in the case of Binyamin Mohamed - suppression of 7 paragraphs in a court ruling concerning allegations that he was tortured by the United States central intelligence agency (CIA) with the knowledge of the British Security Service (MI5). The full text of the court’s ruling delivered on 10th February 2010, but with Lord Neuberger’s trenchant criticisms of MI5 having been temporarily removed, can be read in detail.
8. I am going to merely highlight passages that in my opinion will resonate and be fixed in the future jurisprudence of all common law countries for many decades, perhaps even centuries to come. In very modest terms Lord Chief Justice Judge realised just how important a case he was presiding over:
‘The issue whether or not the redacted paragraphs should be published has required us to address fundamental questions about the relationship between the executive and the judiciary in the context of national security in an age of terrorism and the interests of open justice in a democratic society.’
9. I believe it is significant that the open justice element of this English court of appeal ruling has been fundamentally influenced by the open justice element of a US Federal court ruling in the District of Columbia that was brought to the judges attention only after they had heard the legal arguments.
‘The second judgment was delivered in the USA on 19th November 2009 in the District Court for the District of Columbia (Civil Action No. 05-1347 (GK) in Farhi Saeed Bin Mohamed v Barack Obama. Although some parts of the judgment are redacted, it is a public judgment which addresses issues of material importance to this appeal. Self evidently it was not before the Divisional Court when its sixth open judgment was handed down, and it was drawn to our attention after the conclusion of the arguments on the appeal.’
10. The chapter in my book Comparative Media Law & Ethics on ‘State and National Security’ stated at page 333 ‘The position of the US and UK Supreme Courts in the battle between freedom of expression, the media and national security is more than likely to take a winding road in the future.’ Lord Judge’s observations on the issues of concealing the information because of the national security interest in USA and UK sharing intelligence on terrorism indicate how the centre of gravity in judicial thinking has shifted:
‘In essence it comes to this: unless the control principle prevails, the intelligence sharing arrangements between the USA and the UK will be reviewed, and following the review may, not will, become less "productive" to presumably, the disadvantage of both countries, although I shall assume to the much greater disadvantage of the UK. The Foreign Secretary believes that such consequences will inevitably follow any contravention of the control principle, whatever the circumstances in which or the reasons for the court's decision that it should be disapplied. The difficulty therefore arises from the control principle itself, and its application in troubled times.’
11. Lord Judge’s ruling categorically and fundamentally asserts how the joint heritage of open justice and the constitutional rule of law abhorrence against the use of torture by state executives between the USA and the United Kingdom inform his ruling and fuses into a common law and constitutional principle that is immutable and absolute. These passages are of global and international importance. They send out a striking and declaratory siren call of hope and justice for the millions of people in the world subject to authoritarian and totalitarian regimes who suffer arbitrary and oppressive justice, the fear and reality of arrest without warrant, and imprisonment and torture without trial as well as summary and secret execution:
‘Torture
Information about terrorist plots is needed in sufficient time to expose them before they come to murderous fruition. The urgency notwithstanding, the use of torture – and any of the euphemisms which describe it – to obtain information from those believed to be in possession of useful information about terrorist plots is outlawed. The prohibition against torture has two facets. First, it is condemned, in effect on the grounds of common humanity, perhaps best illustrated in the principles which underpin the Geneva Conventions and provide protection against the ill-treatment of prisoners of war. One of the problems with those detained with Mr Mohamed in Guantanamo Bay is that they were originally described as "enemy combatants" who were not prisoners of war and whose treatment was therefore not governed by the Geneva Conventions. Second, in any event, the fruits of torture cannot provide incriminating evidence against the defendant. The United Nations Convention against Torture or other Cruel Inhuman or Degrading Treatment or Punishment requires that the administration of justice shall "ensure that any statement which is established to have been made as a result of torture shall not be invoked as evidence in any proceedings, except against a person accused of torture as evidence that the statement was made". In short, it cannot be used as incriminating evidence against the person who has been subjected to torture.
In the proceedings by Farhi Saeed Bin Mohamed the USA Government was required to address both federal and international law about the admissibility of evidence procured by torture and evidence procured from an individual who had been tortured prior to providing the evidence upon which the Government intended to rely. In response the Government represented that it "recognises torture to be abhorrent and unlawful, and unequivocally adheres to humane standards for all detainees…consistent with these policies and with the treaty obligations imposed by the Convention on the United States as a State Party, the Government does not and will not rely on statements it concludes were procured through torture in the Guantanamo habeas litigation". (p58)
In doing so, although the Government of the USA referred to the United Nations Convention, it was endorsing ancient common law principles to which it is perhaps worth emphasising, both our countries are the heirs. In his Third Institute, Sir Edward Coke wrote:
"There is no law to warrant tortures in this land, nor can they be justified by any prescription being so lately brought in",
and referring to Chapter 39 of Magna Carta he continued:
"…All the said ancient authors are against any paine or torment to be put or inflicted on the prisoner before attainder, nor after attainder, but according to the judgment. And there is no one opinion in our books, or judicial record (that we have seen and remember), for the maintenance of torture or torments."
Sir Thomas Smith, Queen Elizabeth I's Secretary of State, declared:"Torment…, which is used by order of the civill lawe and custome of other countries, to put a malefactor to excessive paine, to make him confesse of himselfe, or of the fellowes or complices, is not used in England, it is taken for servile. The nature of our nation is free, stoute, haulte prodigall of life and bloud; but contumelie, beatings, servitude, and servile torment and punishment it will not abide. "
It is irrelevant to this judgment to investigate how both writers were able to reconcile these observations with the warrants of torture which based on the Royal Prerogative, emerged from the Privy Council. In any event the Civil War disposed even of these warrants, and by then, brave souls had already made the hazardous journey across the Atlantic to avoid them.In A No (2) [2006] 2AC 221 these ancient principles were re-emphasised in the House of Lords. Lord Bingham of Cornhill observed:
"It is, I think, clear that from its very earliest days the common law of England set its face firmly against the use of torture…it trivialises the issue before the House to treat it as an argument about the law of evidence. The issue is one of constitutional principle, whether evidence obtained torturing another human being may lawfully be admitted against a party to proceedings in a British court irrespective of where, or by whom, or on whose authority the torture was inflicted. To that question I would give a very clear negative answer…the principles of the common law, standing alone, in my opinion compel the exclusion of third party torture evidence as unreliable, unfair, offensive to ordinary standards of humanity and decency and incompatible with the principles which should animate a tribunal seeking to administer justice. But the principles of the common law do not stand alone. Effect must be given to the European Convention, which itself takes account of the all but universal consensus embodied in the Torture Convention…. "
Lord Nicholls of Birkenhead expressed the principle in equally robust terms."My Lords, torture is not acceptable. This is a bedrock moral principle in this country. For centuries the common law has set its face against torture…"
He noted that following Felton's case in 1628, no further torture warrant was issued by the Privy Council, nor, after 1640, was any warrant for torture issued by the King under his own signet.He continued:
"If an official or agent of the United Kingdom were to use torture, or connive at its use, in order to obtain information this information would not be admissible in court proceedings in this country. That is not in doubt."
Lord Hoffmann, after noting that Blackstone had recorded the historic decision of the judges in Felton's case, emphasised"The use of torture is dishonourable. It corrupts and degrades the state which uses it and the legal system which accepts it. When judicial torture was routine all over Europe, its rejection by the common law was a source of national pride and the admiration of enlightened foreign writers such as Voltaire and Beccaria. In our own century, many people in the United States, heirs to that common law tradition, have felt their country dishonoured by its use of torture outside the jurisdiction and its practice of extra-legal "rendition" of suspects to countries where they would be tortured…"
The rejection of torture has "a constitutional resonance for the English people which cannot be over-estimated". Lord Hoffmann's reference to Blackstone was not accidental. Published in 1765, his Commentaries on the Laws of England "had a significant influence on the legal profession in Britain, but it was in North America that his work made its greatest impression" (Jean Edward Smith in the Life of Chief Justice John Marshall at p77).No further citation is necessary, but there is an equal resonance in the USA, well illustrated by the way in which the language in which the House of Lords condemned the use of torture was echoed by the then Senator Obama in April 2007, when he said:
"The secret authorisation of brutal interrogation is an outrageous betrayal of our core values, and a grave danger to our society…when I am president America will once again be the country that stands up to these deplorable tactics. When I am president, we won't work in secret to avoid honouring our laws and constitutions, we will be straight with the American people and true to our values."
Following his inauguration President Obama issued a statement recording that one of his first acts as president will involve the prohibition of:"The use of these interrogation techniques by the United States because they undermine or moral authority and do not make us safer. Enlisting our values in the protection of our people makes us stronger and more secure. A democracy as resilient as ours must reject the false choice between our security and our ideals, and that is why these methods of interrogation are already a thing of the past… "
In expressing himself in this way, President Obama was reflecting a visceral, intuitive view of the principle identified in the United States Supreme Court in Rochin v California [1952] 342 US 165 which, after referring to the due process clause of the Constitution of the USA, spoke of proceedings which "offend those canons of decency and fairness which express the notions of justice of English-speaking peoples (p169) and endorse the "general principle" that "states in their prosecutions respect certain decencies of civilised conduct" (p173). Most graphically, in Brown v Mississippi [1936] 297 US 278, referring back to ancient days before the foundation of the United States, the Supreme Court asserted in terms "the rack and torture chamber may not be substituted for the witness stand".The problem in this case is not that Mr Mohamed was tortured in the UK. He was, however, subjected to torture. In Farhi Saeed Bin Mohamed, it is publicly recorded that "the Government does not challenge or deny the accuracy of Binyam Mohamed's story of brutal treatment (p58)…the account in Binyam Mohamed's diary bears several indicia of reliability (p61)." Note is taken of his "willingness to test the truth of his version of events in both the courts of law as well as the court of public opinion" (p62). Towards the end of its judgment two specific matters are recorded:
"(a)…[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."(p64)
"(b) In this case, even though the identity of the individual interrogator changed (from nameless Pakistanis, to Moroccans, to Americans, and to special agent (the identity is redacted)), there is no question that throughout his ordeal Binyam Mohamed was being held at the behest of the United States (p68)…The court finds that [Mr Mohamed's] will was overborne by his lengthy prior torture, and therefore his confessions to special agent…do not represent reliable evidence to detain petitioner".
True to our shared traditions the District Court of Columbia made its findings publicly available. The courts in the United States, upholding the principles of open justice, have publicly revealed the essence of Mr Mohamed's complaint and the circumstances of his detention. This provides an important aspect of my examination of the Foreign Secretary's reliance on public interest immunity based on the control principle. Although Mr Mohamed is now discharged from the danger of proceedings in the USA, whether capital, or otherwise, there was a time when he was exposed to a genuine and serious risk that if convicted he would be executed. It was to address the risk of his conviction for a capital offence that the present proceedings were launched in this country against the Foreign Secretary. 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.’12. In my opinion, politicians and the Director General of the Security Service should be celebrating the fact that a ruling of this kind, asserting these principles, are part of the fabric of our democratic society that they themselves are pledged through constitutional and democratic legitimacy to protect and serve. Issues and debates concerning how Islamic jihadist extremists can exploit our freedoms for their propagandist purposes may be peripheral and not relevant to what the judges were talking about on Wednesday 10th February.
13. Lord Judge made it clear in his ruling: ‘The redacted paragraphs therefore arise for consideration in the context of the findings relating to the involvement and facilitation by UK authorities in wrongdoing.’ In essence the Lord Chief Justice was compelled to evaluate the significance of open justice in this context. His ruling, again, is perhaps one of the most significant passages on open justice in UK jurisprudence.
‘Open Justice
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. Although this may be a necessary consequence of the application of the wider public interest, as a matter of principle, and for obvious reasons, this is always undesirable, not least because it almost inevitably and unsurprisingly leads to a sense of grievance in the mind of the party subjected to this disadvantage. In this particular case, the problem is aggravated by the reality that the claim for continued redaction is advanced by the Foreign Secretary who has ultimate responsibility for the SIS whose conduct is successfully impugned by Mr Mohamed
Mr Mohamed has undoubtedly achieved the objective of the litigation he brought against the Foreign Secretary. He no longer needs the material which was in the possession of the UK authorities to achieve his acquittal. It can indeed be safely assumed that proceedings based on the confessions while he was held incommunicado at the behest of the USA authorities will never again be contemplated. It therefore follows that later events made disclosure of the redacted paragraphs "unnecessary" and "gratuitous" in the limited sense that Mr Mohamed is no longer at risk of prosecution on a capital charge. Putting it shortly, he has won. That however is not the whole story. At the time when the redacted paragraphs (excluding the redacted paragraph from the sixth judgment which was based on the redacted seven sub-paragraphs themselves) were intended to be included in the open judgment, Mr Mohamed was still held in Guantanamo Bay, at risk of a capital charge, and the redacted paragraphs formed an essential part of the court's reasoning that he was entitled to the relief he was seeking.
Mr Mohamed is now taking civil proceedings for damages against the UK government, in effect for their tortious involvement in the wrongdoing of the USA authorities. Disclosure of the redacted paragraphs is therefore said to be the more imperative. However Mr Mohamed's civil proceedings should and will take whatever course is appropriate in those proceedings. If and when it becomes necessary to address the material relevant in those proceedings through the discovery process, the problem will have to be addressed. The fact that civil proceedings have been taken by Mr Mohamed does not, of itself, advance the argument for the open publication of the redacted paragraphs. If the Foreign Secretary will not make the desired concession in Mr Mohamed's civil proceedings, the court will make whatever decision is appropriate in those proceedings.
Quite apart from Mr Mohamed's personal interest in seeing the full and complete reasoning of the court, there was considerable discussion about the principle of open justice generally, and as it might affect the media. This developed along familiar lines. From time to time judges of the highest distinction have identified the reasons which underpin this principle, naturally enough, in the overall context of the possible application of the principle to the individual case. For present purposes I derive the following principles from the authorities.
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 scrutinise 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.
There is however a distinct aspect of the principle which goes beyond proper scrutiny of the processes of the courts and the judiciary. The principle has a wider resonance, which reflects the distinctive contribution made by the open administration of justice to what President Roosevelt described in 1941 as the "…first freedom, freedom of speech and expression". In litigation, particularly litigation between the executive and any of its manifestations 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. Where the court is satisfied that the executive has misconducted itself, or acted so as to facilitate misconduct by others, all these strands, democratic accountability, freedom of expression, and the rule of law are closely engaged.
Expressed in this way, the principle of open justice encompasses the entitlement of the media to impart and the public to receive information in accordance with article 10 of the European Convention of Human Rights. Each element of the media must be free to decide for itself what to report. One element would report those matters which reflect its distinctive social or political stance, and a different section of the media will report on different matters, reflecting a different, distinctive position. This may very well happen with this judgment, reflecting the diversity of the media, and symbolising its independence. In short, the public interest may support continuing redaction, or it may not. If it does not, each element of the media will decide for itself what, if anything, to publish. In the context of two further features of the evidence I should add that the investigative role of the media exists independently of the principle of open justice, and that the right of the media to enlist the assistance of legislation like the Freedom of Information Act to acquire access to information is similarly distinct. Neither diminishes the principle of open justice.
Although expressed in wide and general terms – and perhaps inevitably so expressed – in my judgment the principles of freedom of expression, democratic accountability and the rule of law are integral to the principle of open justice and they are beyond question. They do not enable the media to require parties to litigation to continue it if they do not wish to do so in order for the media to have a better story, or permit the media to study material which has been made subject to non-disclosure on well established PII principles, or to report proceedings where, in the interests of justice, by operation of law, such reporting is prohibited. It is, of course, elementary that the courts do not function in order to provide the media with copy, or to provide ammunition for the media, or for that matter private individuals, to berate the government or the opposition of the day, or for that matter to berate or laud anyone else. They function to enable justice to be done between parties. However where litigation has taken place and judgment given, any disapplication of the principle of open justice must be rigidly contained, and even within the small number of permissible exceptions, it should be rare indeed for the court to order that any part of the reasoning in the judgment which has led it to its conclusion should be redacted. As a matter of principle it is an order to be made only in extreme circumstances.
The open justice principle (by which I include the ordinary right of all the parties to litigation to know the reasons for the decision of the court) is undiminished either by the possible exercise by the Intelligence and Security Committee of its responsibilities to inquire into possible wrongdoing by the intelligence services or by the responsibility of the Attorney General to authorise criminal proceedings against any member of the services who may have committed a criminal offence. These are distinct elements of our arrangements which serve to ensure that the rule of law is observed, but they do not impinge on the principles of open justice.’
14. Lord Judge does not question in any way whether David Miliband, the Foreign Secretary, has not acted in good faith in pursuing the suppression of the redacted paragraphs. In fact constitutionally the Lord Chief Justice emphasises the independence of the courts. He does so with a demonstration of respect for the executive in the language that he uses. One would hope that his courtesy will be reciprocated in the public political language used by government ministers subsequent to the ruling:
‘It is nevertheless accepted by and on behalf of the Foreign Secretary in this litigation that in our country, which is governed by the rule of law, upheld by an independent judiciary, the confidentiality principle is indeed 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 acknowledgement that the control principle is qualified in this way is plainly correct, and it appears to be accepted that the same limitation on the control principle would apply in the USA. Presumably therefore our intelligence services accept that although the control principle applies to any information which they disclose to their colleagues in the USA, the ultimate decision on disclosure would depend on the courts in the USA, and not the intelligence services, or for that matter the executive. Although the Foreign Secretary accepts that the principle is not absolute, he contends that, having made his own examination of the overall interests of justice, the control principle should be upheld. On the basis of all the evidence including the Sensitive Schedules, I have been unable to eradicate the impression that we are being invited to accept that once the Foreign Secretary has made his judgment of all the relevant considerations, including the interests of justice, and notwithstanding that in law the control principle is not absolute, so far as the court is concerned, as a matter of practical reality, that should be that. However although in the context of public safety it is axiomatic that his views are entitled to the utmost respect, they cannot command the unquestioning acquiescence of the court.’
15. I now turn to Lord Judge’s conclusions, which in my opinion turn on the strict examination of evidence, the correct and robust application of common law and statutory principles:
‘There is no secret about the treatment to which Mr Mohamed was subjected while in the control of the US authorities. We are no longer dealing with the allegations of torture and ill-treatment: they have been established in the judgment of the court, publicly revealed by the judicial processes within the USA itself. And this serves to highlight that the redacted paragraphs represent part of the Divisional Court's reasoning, directed not to wrongdoing by the USA authorities but involvement in that wrongdoing by our own intelligence services, and the successful argument by Mr Mohamed that he was entitled to the relief he had sought against the Foreign Secretary. In the context of intelligence sharing arrangements, the decision to disclose evidence critical of the USA authorities by a court in the USA does not reflect identical considerations to its possible disclosure by a court in the UK. Nevertheless, there is at least one common theme. The former represents the proper working of the judicial processes in the USA, and although the latter would constitute a breach of the confidentiality arrangements, the breach would be consequent on the proper working of the judicial processes in this country.
There is an attractive argument that Mr Mohamed has nothing further to gain from publication of the redacted paragraphs. That, however, is a consequence of his vindication through the operation of the litigation process and the prolonged delay consequent on the apparently endless arguments about the possible publication of the redacted paragraphs. The successful party is no less entitled to know the reasons for the court's judgment than the unsuccessful parties. I have already noted the strange consequence that if the redaction is maintained, Mr Mohamed will know less about the reasons for the court's decision than the intelligence services which, even if innocently, were involved in or facilitated the wrongdoing of which he was the victim. There is a clear interest in Mr Mohamed knowing, and the community at large also knowing, not only that his allegations were vindicated, but also the full reasons (even if not the entirety of the evidence) which led the court to its conclusion. The redacted paragraphs are integral to the reasoning that Mr Mohamed's entitlement to relief fell within the ambit of executive involvement in wrongdoing.
In my view, the arguments in favour of publication of the redacted paragraphs are compelling. Inevitably if they contained genuinely secret material, the disclosure of which would of itself damage the national interest, my conclusion might be different. However dealing with this appeal as a matter of practical reality rather than abstract legal theory, unless the control principle is to be treated as if it were absolute, it is hard to conceive of a clearer case for its disapplication than a judgment in which its application would partially conceal the full reasons why the court concluded that those for whom the executive in this country is ultimately responsible were involved in or facilitated wrongdoing in the context of the abhorrent practice of torture. Such a case engages concepts of democratic accountability and, ultimately, the rule of law itself. ‘
16. The Master of the Rolls Lord Neuberger made it clear in his ruling that the decisive factor in persuading him that the redacted paragraphs should be released into the public domain was the exercise of open justice by the US federal court. This aspect of his decision-making has not been given emphasis by the UK newspapers; apart from the Guardian and the Times.
‘My conclusion has, however, changed as a result of reading Judge Kessler's Opinion. The effect of that Opinion is that, in proceedings in which one of the parties was the US Government, a US Judge has found as a fact in an open judgment that Mr Mohamed's evidence as to the mistreatment he suffered at the behest of US officials in Pakistan (and indeed in Morocco and Afghanistan) was true. 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 ways 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, as 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.
In the light of that, it appears to me that the whole basis for the Foreign Secretary's case for redaction of the redacted paragraphs, as advanced in the three certificates, and supported by the recorded views of the CIA, the White House, and the Secretary of State, and by the submissions to the Divisional Court and this court, has fallen away. In these circumstances, I am of the view that there is simply no longer any basis for the Foreign Secretary maintaining the case for excision of the redacted paragraphs. As Sir Anthony May PQBD vividly puts it in paragraph 295 of his judgment, as a result of Judge Kessler's Opinion, the Foreign Secretary's case is now based on "a principle entirely devoid of factual content on which to hang it". It is true that he still maintains that case, but it is a case which is now no longer consistent with the evidence relied on, or with the arguments pursued by, the Foreign Secretary; indeed, it seems to me to be logically insupportable and therefore irrational. Accordingly, a court of law should not accede to it. It follows that the balancing exercise need not be carried out: the Foreign Secretary's case falls at the first hurdle, as this is one of those very rare cases where the court cannot accept a minister's view (which is now expressed in a letter from his lawyers) that national security would be at risk if the material in issue were published against the wishes of the US. The reason for that unusual conclusion is that the material concerned has now been published by the US, and the Foreign Secretary's views, as expressed in the certificates, and the representations from the US on which it was based, were expressed before that publication, and that publication undermines the basis of those views and representations’
17. It is intriguing that the Master of the Rolls, Lord Neuberger, appears to be the judge out of the three being implicitly targeted for outside political attack over the ruling. This is rather ironic given the fact that he made it clear that the government would have probably won its case were it not for the US federal court ruling dealing specifically with Binyam Mohamed’s allegations. I suspect that Lord Neuberger is hardly Whitehall or Thames House’s favourite judge because of the very comments he was persuaded, as a result of a misunderstanding, to omit from his ruling even though they have now been leaked via the media. There is one sentence in Lord Neuberger’s judgment that does merit attention; perhaps more so at the Foreign Office than anywhere else:
‘I should add that, if a minister thinks it appropriate to attack a judicial decision in robust terms (or indeed at all), then the right place to do so is, as was done in this case, in an appellate court, rather than out of court. The Foreign Secretary's case on redaction before the Divisional Court was, to put it mildly, not assisted by the remarkably drip-fed way in which the evidence was presented, and I do not think that the arguments advanced below were entirely the same as those addressed to us.’
18. The UK government and its lawyers have to come to terms with an unassailable and incontrovertible reality. They have been unanimously defeated through the proper and due process of law. All three judges ruled against them. All three judges are at the very senior levels of our judiciary. Indeed, Lord Neuberger has been a Law Lord. In that regard his career is following the path of a previous Master of the Rolls, Lord Denning. All government departments may wish to take a lesson from history. Disrespect a Denning and you guarantee the full blast of rule of law principle in future litigation. The court rulings are outstanding models of jurisprudential analysis, fair consideration of arguments, national and relevant transnational evaluation of statute and precedents and restrained and courteous constitutional construction of language. There is also an intellectual wit in some of the reasoning that risks being countered and challenged only by the mind of a fool. I finish with a concluding paragraph of Sir Anthony May:
‘But I fear that angels are now dancing on a pinhead. The Foreign Secretary's case now seeks to defend a principle entirely devoid of factual content on which to hang it. In my view, the finding of the US District Court does make a difference because it changes what was an arguable case of torture into a case of torture which a US court has found to be true in proceedings in which the US Government had the opportunity to make a case that it was not true. In these circumstances, it would be quite absurd if the US Government itself decided to reduce intelligence sharing because a UK court had decided to publish summary material whose essential content has been publicly found to be true in a US court; and it would be fanciful to suppose that foreign partners would be concerned because the US Government had taken a stance in these proceedings which became untenable. I am not persuaded that court-ordered disclosure of publicly available material accepted in a US court to be true, one source of which was an intelligence source, could in any real sense properly be regarded as a breach of the control principle. This is especially so when Ms Rose is able to point to other material in the Divisional Court's open judgments to which the same arguments might have applied, had the Foreign Secretary chosen to make them. Relying on a bare principle in relation to material which now has no sensitive content is tantamount to saying that the Foreign Secretary's judgment should always determine the balance and that the court has no relevant balancing judgment of its own to make. That is not the law.’
Relevant links to news stories covering the narrative of this case:
Daily Telegraph news article about MI5 Director-General's opinion piece. 11th February 2010.
Judges persuaded to curtail MI5 criticism - article by Frances Gibb and Sean O'Neill, the Times, 11th February 2010.
Today we’re less secret – but probably less safe. The decision to release material on the torture of Binyam Mohamed was right. But secrecy is still vital to government. Article by Ben Macintyre in the Times 11th February 2010.The torture memos show how illegal wars turn even the nicest people bad. Editorial by Simon Jenkins.
Clive Stafford Smith interview - audio.
LINKS
Joshua Rozenberg blog - Leading and respected UK Legal Affairs journalist.
US Supreme Court blog - Longstanding and much respected coverage on the US Supreme court.
Heather Brooke - Award winning campaigning journalist and Freedom of
Information expert.
Paul Lashmar - Respected investigative journalist and lecturer at Brunel
University.
Tim Crook Media Law Bulletin November 2009
Tim Crook Media Law Bulletin December 2009
Tim Crook Media Law Bulletin January 2010
