Companion website for
COMPARATIVE MEDIA LAW & ETHICS
by TIM CROOK
to be published by Routledge on 15th December 2009
For details of the book, please visit Routledge.
Author's profile at Goldsmiths, University of London
Important National Security Freedom of Expression Test Case in 2009 over allegations of illegal rendition and alleged torture of a British resident
In 2009 the English High Court has been investigating the tension between national security and freedom of expression in the allegations of a British resident that he was unlawfully the victim of CIA ‘extraordinary rendition’ and tortured abroad with the knowledge of Britain’s security services.
In Mohamed, R (on the application of) v Secretary of State for Foreign & Commonwealth Affairs evidence provided by US authorities is being suppressed by the UK government on the basis that it would harm the intelligence exchange relationship between the UK and USA.
The High Court Ruling, October 2009.
This case could be the most significant constitutional ruling on the British national security/freedom of expression public interest issue in British legal history. Lord Justice Thomas and Mr Justice Lloyd Jones have been rehearing and issuing new judgments on the issue of the open justice in paragraphs the British state wishes to be redacted throughout 2009. They have received submissions from UK and foreign media as well as the investigative journalist David Rose. The wider issues of open justice in High Court secret hearings and sealed judgements has also been explored.
The 2 judges concluded on 16th October 2009 that the redacted paragraphs should be reinstated but the government have appealed and the ‘gag’, as it would be called in the US, remains until the resolution of further argument:
‘We have also reviewed the matters that have come into the public domain since our fourth judgment. As we observed at paragraph 105 (iii) of that judgment, much had been done by the media to enable informed debate to take place. However the debate would be much better informed, if the information in the redacted paragraphs was now made public. This is, in the light of developments since our fourth judgment, a stronger factor.
We have considered most carefully the views of the Foreign Secretary in all the circumstances we have set out. However as is accepted, the decision is ultimately for the court. The reason for this was expressed by Professor Sir David Williams in his masterly survey of access to information in a democracy "Not in the Public Interest" (1965) at page 216 in the following terms:
"The public interest has many facets and it would be deplorable if the assessment of the public interest were to become the exclusive province of the executive itself. Secrecy and security have to be balanced against the legitimate demands for an informed public opinion which is, when all is said and done, the essential element in a country which claims to be democratic"
We have therefore concluded that, as the public interest in making the paragraphs public is overwhelming, and as the risk to national security judged objectively on the evidence is not a serious one, we should restore the redacted paragraphs to our first judgment by adding these to paragraphs 87 and 88 respectively. We shall therefore re-issue our first judgment with the paragraphs restored.’ Paragraphs 106-108
Mohamed, R (on the application of) v Secretary of State for Foreign & Commonwealth Affairs [2009] EWHC 2549 (Admin) (16 October 2009)
