Global Policy Forum

Judges Ban Secret Evidence in Guantanamo Compensation Case


By Frances Gibb

May 5, 2010




Senior judges have blocked ministers and the security services from using secret information in defending a damages claim brought by six former Guantánamo Bay detainees.

Binyam Mohamed and five former prisoners are claiming damages against the Government for alleged complicity in torture and extraordinary rendition.

In an unprecedented move, the Government and security services wanted to use confidential information in their defence at the High Court, which in effect would have meant the case being held in secret. But Lord Neuberger of Abbotsbury, the Master of the Rolls, with two other appeal judges, unanimously ruled that it was not open to the courts to order that "closed material" could be used in an ordinary civil claim.

Such a move, Lord Neuberger said, would undermine the right of a party to know the case against him, which was one of the "most fundamental principles" of the common law. It could only be sanctioned by an Act of Parliament.

The Government had argued that use of secret material was necessary because of the volume of classified material involved.

As the law stands, the Government must disclose the material, which it argues would endanger national security, or it can claim "public interest immunity" to prevent disclosure, but it could not then be relied on by the Government in court.

The men's lawyers had argued that use of the "closed material" procedure, normally confined to criminal cases, would undermine the basic concepts of a fair and open trial. Lord Neuberger agreed. He said that the idea of a secret trial cut across the principles of a right to a fair trial and to know the reasons for its outcome, rights "initially hard fought for and now well established for over three centuries".

The Ministry of Defence said that it would consider the judgment. It will fall to the next government to decide whether or not to appeal.

The Government's move to extend the secrecy procedure to a civil damages case would, the lawyers said, have set a dangerous precedent.

The former detainees - Mr Mohamed, Bisher Al Rawi, Jamil El Banna, Richard Belmar, Omar Deghayes and Martin Mubanga - deny any involvement in terrorism. They allege that MI5 and MI6 aided and abetted their unlawful imprisonment and extraordinary rendition to various locations around the world, including Guantánamo Bay, where they say they suffered torture and inhuman treatment.

The intelligence services, the Attorney-General, the Foreign and Commonwealth 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.

Dinah Rose, QC, representing five of the six, argued at a Court of Appeal hearing in March that the "closed material" procedure with specially vetted barristers was not designed for such civil actions. She told the judges that using the procedure in damages cases was a "fundamental change" that could be made only by Parliament.

She added: "One of the great dangers of the special advocate system is that in some circumstances it serves as a fig leaf for fundamental unfairness because the hearing looks and sounds like a normal trial but it is something completely different."

Eric Metcalfe, the director of Justice, the human rights organisation, said: "The appeal court has made clear that a civil trial based on secret evidence runs contrary to centuries of common law principle. It also rightly pointed out that a fair trial in open court is ultimately in the Government's best interests as well. Any victory that came from a secret trial would be a defeat for our system of justice."

In February the Court of Appeal rejected a plea by the Foreign Secretary for information in six paragraphs of a judgment on a case involving Mr Mohamed to be kept secret.


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