New head of Court of Appeal making waves on civil liberties

12 May 2010 by

Making waves

Lord Neuberger, the Master of the Rolls (head of the Court of Appeal), has only been in post for six months but has already made significant waves, particularly in a series of judgments on the impact of terrorism law on civil liberties. In a speech yesterday, he discussed the experience of having his judgment censored during the Binyam Mohamed appeal.

He used an old Woody Allen joke to describe the experience, saying that his “favourite of his aphorisms is I’m not afraid of dying – I just don’t want to be there when it happens.” He continued that the this has some resonance for him now, as “I’m not afraid of changing my judgments – I just don’t want to be there when I do.

The tone of the speech was light – Lord Neuberger has been praised for his unusually (for a judge) affable manner – but it does provide an opportunity to take stock of the Master of the Rolls’ eventful first six months in post.

An eventful six months

Lord David Neuberger turned down the chance to be an inaugural member of the UK Supreme Court in order to head up the Court of Appeal, the second highest appeal court. He had already been highly critical of the evolution of the House of Lords to the Supreme Court. Six months later, it already seems clear that the Court of Appeal under its new Master of the Rolls is to be an activist court, and particularly in relation to civil liberties.

We posted last week on the three provocative linked judgments, each written by Lord Neuberger and Lord Justices Maurice Kay and Sullivan, released as a triptych on the same day. The appeals all related to terrorism legislation, and each judgment sought to limit the ability of the Government and security services to keep evidence secret – from the public and even the parties to the litigation – in civil trials. A fourth, relating to control orders in a criminal context, was also released on the same day.

The security services will see the judgments as a fly in their ointment, arguing that the protection of the public from terrorism sometimes trumps the principle of open justice, that justice is done but is also seen to be done. The Government will say in the inevitable appeals to the Supreme Court that the Court of Appeal judgments have stymied their ability to fight terrorism, making it impossible in future for the security services to keep sensitive information from the public domain.

Censorship and the Binyam Mohamed affair

Whilst the three linked judgments were important, by far the most controversial incident involving Lord Neuberger’s court was the censoring of part of a judgment in an appeal relating to Binyam Mohamed (see our post). The court ordered that an email concerning MI5’s knowledge of Mr Mohamed’s alleged torture be disclosed. But part of Lord Neuberger’s judgment, the now notorious paragraph 168, was sharply critical of MI5’s involvement in the material events as well as their conduct in the litigation. Upon an application by the Government, the paragraph was briefly sanitised, and then eventually restored to its original wording.

Lord Neuberger spoke about the experience of “seeing one paragraph of a judgment being discussed in op-ed pieces, headlines. TV and radio bulletins and interviews, and, I imagine, the tweets.” He continued:

One thing the Binyam Mohamed case did teach me was that even a Master of the Rolls should not tempt fate. The day before we initially handed down judgment in the case, the Lord Chief Justice asked me how I was getting on with the new job after my first 20 weeks. Blithely ignorant of what was to happen the following day, tempting fate, I said that, for the first time I was beginning to feel in control of things. Let me tell you: one is never in control of things, above all when one thinks one is. As Woody Allen said, If you want to make God laugh, tell him your future plans. Although my favourite of his aphorisms is I’m not afraid of dying – I just don’t want to be there when it happens. I suppose that that has some resonance for me now: I’m not afraid of changing my judgments – I just don’t want to be there when I do.

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