Redacted paragraphs in UK ‘torture’ case published by Court of Appeal
By Darise Ogden

THE ISSUE as to whether or not seven paragraphs should have been included in a court judgment has led to the UK Court of Appeal addressing 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, the Lord Chief Justice of England and Wales, Lord Judge, stated in the opening paragraphs of his judgment in Mohamed, R (on the application of) v Secretary of State for Foreign and Commonwealth Affairs [2010] EWCA Civ 65.

At issue was the “control principle”, described by the Lord Chief Justice as “an understanding of confidentiality” that exists between the intelligence services of different countries (at [5]).

The Foreign Secretary argued that the publication of the redacted paragraphs, which contained information about what had happened to Guantanamo Bay detainee Binyam Mohamed during the nearly seven years he had been held by the US, would damage the intelligence sharing arrangements between the UK and the US. To avoid a review of these arrangements, the Foreign Secretary asserted that the control principle had to be upheld in its “full rigour”.

Conflicting with the control principle was the concept of open justice, and Mohamed’s right to know just how much British Intelligence knew about what had happened to him. Following his release, Mohamed, a British resident, claimed he felt betrayed by Britain when he realised that the people torturing him were being fed information from British intelligence (“Profile: Binyam Mohamed”, BBC News, Online, 12 February 2010).

Mohamed’s complaints of torture at the hands of US interrogators were upheld by Judge Kessler in Farhi Saeed Bin Mohammed v Barack Obama (19 November 2009, Civil Action No 05-1347 (GK), a decision of the US District Court of Columbia). Judge Kessler’s judgment confirmed the evidence heard by the Divisional Court, which was set out in its first open judgment ([2008] EWC 2519, dated 21 August 2008), that Mohamed had been unlawfully arrested in Pakistan and held for 15 weeks from April 2002 without access to a lawyer or a court, during which time he had been interrogated by US officials, beaten, threatened with a gun, fed only every other day, suspended by his wrists, and given limited access to the toilet. In July 2002, Mohamed was sent by way of “extraordinary rendition” to Morocco, where he was again interrogated by US officials, beaten, subjected to sleep deprivation, and suffered genital mutilation. In January 2004, he was transferred to Afghanistan’s “Prison of Darkness”, where he was interrogated by US officials, deprived of sleep, starved, beaten, and hung up. His ordeal did not end there; in May 2004, he was moved to Bagram, where he was tortured and subjected to “cruel, inhuman and degrading treatment”. Finally, in September 2004, he was transferred to Guantanamo Bay, where he was charged with conspiring with members of al-Qaeda to murder and commit terrorism, although the charges against him were later dropped. “Judge Kessler,” said Lord Neuberger, the Master of the Rolls, at [126], “not only set out Mr Mohamed’s evidence as to the mistreatment to which he had been subjected, but she characterised it as ‘torture’, and, importantly, for present purposes, she said that it was true.”

The seven redacted paragraphs related to a judgment in which Mohamed sought the disclosure of documents that would prove that his “confessions” during the period of his detainment had been obtained as a result of torture.

The Lord Chief Justice took issue with the Foreign Secretary’s assertion that the confidentiality arrangement between the UK and the US was a ‘control principle’ (at [44]): “[A]lthough confidentiality is essential to the working arrangements between allied intelligence services, the description of it as a ‘control principle’ suggests an element of constitutionality which is lacking. In this jurisdiction the control principle is not a principle of law: it is an apt and no doubt convenient description of the understanding on which intelligence is shared confidentially between the USA services and those in this country, and indeed between both countries and any other allies.”

The Lord Chief Justice found it difficult to “eradicate the impression” that the Court was 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” (at [46]). In response, he stated quite firmly that “although in the context of public safety it is axiomatic that [the Foreign Secretary’s] views are entitled to the utmost respect, they cannot command the unquestioning acquiescence of the court”.

The Court was unanimous in its decision that the redacted paragraphs should be published, and included them as an appendix to the judgment that was released on 10 February 2010.