Court of Appeal orders Government to release Binyam Mohamed “torture” email
9 February 2010
Read our case comment here
The Government has lost its appeal (see the BBC report) against the Divisional Court’s decision to order it to release an unredacted version of an email relating to the “cruel, inhuman and degrading” treatment which Binyam Mohamed received during questioning by the Americans. The Foreign and Commonwealth Office (FCO) had previously argued that to release the full email would damage national security. The full email can now be read on the FCO website.
The Lord Chief Justice said at para 180 of the Judgment:
The Human Rights Act 1998 has enlarged the court’s role for present purposes. The courts have always been a branch of government (in the wider sense of that expression), and, as such, they now have a duty to comply with the Convention. As the Divisional Court said, article 10 carries with it a right to know, which means that the courts, like any public body, have a concomitant obligation to make information available. Of course, the obligation is not unqualified or absolute, nor does it involve the court arrogating to itself some sort of roving commission. But, where the publication at issue concerns the contents of a judgment of the court, it seems to me that article 10 is plainly engaged: the public’s right to know is a very important feature. And that is not merely a point of principle. The court made findings as to what UK Government officials were told about serious and sustained mistreatment (conceivably amounting to torture) by a foreign government of someone resident in the UK, in circumstances where the court has also found such officials to have been involved in the mistreatment, when the UK Government had denied any such knowledge. In those circumstances, it seems to me little short of absurd to say that the court cannot take into account the public importance of, and the obviously justified public interest in, such findings, when deciding whether it is, on balance, in the public interest in publishing those findings.
The Lord Chief Justice concluded the Judgment by saying (at para 295):
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.
Update – 25 Feb 2010: The missing paragraph from Lord Neuberger’s judgment has been restored
Update – 12 March 2010: Read David Pannick QC’s comment on the case in The Times