Mutual confidentiality between intelligence services trumped by open justice requirements

25 February 2010 by

R(on the application of Binyam Mohamed) v Secretary of State for Foreign & Commonwealth Affairs [2010] EWCA Civ 65

This appeal was brought by the Secretary of State for Foreign and Commonwealth Affairs (“the Foreign Secretary”) against a decision of the Divisional Court to include seven short paragraphs in the open version of a judgment, notwithstanding the fact that the Foreign Secretary had started in a number of Public Interest Immunity Certificates that such publication would lead to a real risk of serious harm to the national security of the UK.
Sir Anthony May described the appeal as boiling down to a balance between two principles, namely whether justice should be open against whether material should not be published if there is a serious risk of damaging consequences to national security.  However, although the issues were narrow, Lord Chief-Justice described them as involving,
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 matter originated after the respondent (Mr Mohamed) applied for judicial review of the decision of the Foreign Office refusing to provide certain information relevant to the respondent’s defence to charges of terrorism in the USA.  The High Court, following the principles of Norwich Parmacal Co ([1974] AC 1333), ordered the Foreign Secretary (subject to the determination of certain Public Interest Immunity (“PII”) certificates) to disclose documents and information about detention, treatment and rendition of Mr Mohamed.  Of relevance to this case, was the fact that the High Court redacted certain paragraphs from their final judgment on the basis of further PII certificates issued by the Foreign Secretary on the basis that the information contained in the paragraphs would seriously harm existing intelligence sharing agreements between the US and UK, and thus UK national security.

This decision was appealed by Mr Mohamed.  In his judgment, Lord Nueberger highlighted that decisions connected with national security were primarily entrusted to the executive and not the judiciary.  However, the ultimate decision whether to include the redacted paragraphs in the open version of the first judgment is a matter for judicial, not executive decision.  Furthermore, practically any decision of the executive was subject to judicial review, even those that touched on national security matters, as such this was a decision they were entitled to consider.

On appeal, the Foreign Office contended that the publication of the paragraphs would be contrary to the control principle.  This held that if the US intelligence services disclosed confidential information to the UK intelligence services (and vice versa) then the confidentially of the information was vested in the country which had disclosed the information and not the party who received it.  As such, it was not for the UK to disclose.  The Foreign Office also contested that if the information was published it may lead to a less productive intelligence sharing regime between the US and UK, which would obviously be contrary to the interests of national security.

The court, however, were largely unimpressed by these arguments.  In considering the ‘control principle’, it was found to be neither constitutional nor a principle of law, but instead it simply operated as a description of the convention by which intelligence was shared on an understanding that it would remain confidential.  As such, the court was not prepared to treat the principle as absolute, and instead embarked on a consideration of whether the public interest was such that they should be published.

Although the court accepted that publication may impact  as the risk of national security, it was not accepted that this would be serious.  Furthermore, there was an overwhelming public interest in disclosing the material contained in the paragraphs.  The court also took particularly seriously the allegations of sustained torture in which the State had been complicit, and Mr Mohamed’s right to see the High Court’s full reasoning in this related case. Another factor relevant in finding the balance in favour of Mr Mohamed was the fact that the information contained in the paragraphs was in essence already in the public domain and, as Lord Chief-Justice held,

the publication of the redacted paragraphs would not and could not, of itself, do the slightest damage to the public interest
The significance of this was put more forcefully still by Lord Nueberger, where he indicated that, since the information was in no way confidential,
the Foreign Secretary’s case is now based on, a principle entirely devoid of factual content on which to hang it.
In conclusion, Lord Chief-Justice considered that it was hard to conceive of a clearer case for its disapplication than a judgment in which application would particularly conceal the full reasons why the court concluded that those for whom the executive of this country is ultimately responsible were involved in or facilities 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.
Read Frances Gibb’s comment in Times Online here.

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