More secret evidence trouble for Government in foreign torture case

4 May 2010 by Adam Wagner

Binyam Mohamed

Al Rawi & Ors v Security Service & Ors [2010] EWCA Civ 482 (04 May 2010) – Read judgment

The Court of Appeal has roundly rejected a request by the Government that evidence in a high-profile torture compensation claim should be kept secret from the public. It has also used the opportunity to emphasise that the interests of open justice would be serious compromised if this kind of request were ever granted in a civil case, even in very limited circumstances.

This compensation claim involves six claimants who were detained at various locations, including Guantanamo Bay and Bagram in Afghanistan, alleging various forms of mistreatment.

The judgment is the latest in a series of reverses suffered by the Government in matters involving Binyam Mohamed and others in relation to their alleged torture. In February the Court of Appeal ordered it to release an unredacted version of an email relating to the “cruel, inhuman and degrading” treatment which Binyam Mohamed received during questioning by American authorities.

In the latest judgment, the Court of Appeal rejected the previous judgment of Mr Justice Silber in the High Court. The issue was whether the judge was right to conclude that it is open to a court, in the absence of statutory authority, to order a closed material procedure for part (or, conceivably, even the whole) of the trial of a civil claim for damages in tort and breach of statutory duty.

The appeal judges concluded that it was not open for a court to order a closed material procedure, stating that:

12. The primary reason for our conclusion is that, by acceding to the defendants’ argument, the court, while purportedly developing the common law, would in fact be undermining one of its most fundamental principles. In addition, even if it would otherwise be a legitimate development of the common law, it would be neither permissible in the light of the Civil Procedure Rules (“CPR”) nor practical, in terms of effective case management or costs management, to adopt the defendants’ proposals.

The Court went on to strongly reaffirm the principles of open justice, and made a clear statement that this kind of request would simply never be allowed, even in limited circumstances:

69. It is nonetheless tempting to accept that there may be the odd exceptional ordinary civil claim, where the closed material procedure would be appropriate. “Never say never” is often an appropriate catchphrase for a judge to have in mind, particularly in the context of common law, which is so open to practical considerations, and in relation to civil procedure, where experience suggests that unpredictability is one of the few dependable features. However, this is one of those cases where it is right for the court to take a clear stand, at least in relation to ordinary civil proceedings. Quite apart from the fact that the issue is one of principle, it is a melancholy truth that a procedure or approach which is sanctioned by a court expressly on the basis that it is applicable only in exceptional circumstances nonetheless often becomes common practice.

70. The importance of civil trials being fair, the procedures of the court being simple, and the rules of court being clear are all of cardinal importance. It would, in our view, be wrong for judges to introduce into ordinary civil trials a procedure which (a) cuts across absolutely fundamental principles (the right to a fair trial and the right to know the reasons for the outcome), initially hard fought for and now well established for over three centuries, (b) is hard, indeed impossible, to reconcile satisfactorily with the current procedural rules, the CPR, (c) is for the legislature to consider and introduce, as it has done in certain specific classes of case, where it considers it appropriate to do so, (d) complicates a well-established procedure for dealing with the problem in question, namely the PII procedure, and (e) is likely to add to the uncertainty, cost, complication and delay in the initial and interlocutory stages of proceedings, the trial, the judgment, and any appeal.

Read more:

• Judgment in the case
• Our previous posts on Binyam Mohamed are here and here
• Comment by Afua Hirsch in The Guardian: “It’s hard to think of anything more fundamental to a civil trial than the ability to hear the allegations against you and respond. This is a hallmark of the adversarial nature of English procedure, dating back to at least the 13th century when it included trial by battle.”