Even more secret evidence trouble for Government in Al Rawi case

21 June 2010 by




Binyam Mohamed

Al Rawi & Ors v the Security Service & Ors [2010] EWHC 1496 (QB) (21 June 2010)  – Read judgment

The Government has received another in an increasingly long line of blows in the Al Rawi & Others foreign torture case, with Mr Justice Silber ordering a closed hearing to see whether two key security service documents are to be disclosed to the claimants. If the Government chooses not to claim public interest immunity, which is unlikely, the documents will be disclosed immediately.

The compensation claim involves six claimants who were detained at various locations, including Guantanamo Bay and Bagram in Afghanistan, alleging various forms of mistreatment. They claim to have been subjected to false imprisonment, trespass to the person, conspiracy to injure, torture, breach of contract, negligence, misfeasance in public office and breaches of their rights under the Human Rights Act 1998.

The Government has recently ordered a public inquiry into the security services’ alleged complicity in torture, but this is not likely to start until after the Al Rawi claims are resolved.

More trouble for the intelligence services

Last month the Court of Appeal roundly rejected a request by the Government that evidence in the high-profile torture compensation claim, including Binyam Mohamed and five others, should be kept secret from the public (see our post). That appeal reversed the decision of Mr Justice Silber, who now appears to be taking a more open view of disclosure applications.

The request was for access to 2002 and 2004 Guidance materials relating to the interrogation and treatment of detainees. An Intelligence and Security Committee (the Government committee which oversees the intelligence agencies of the UK) report of 2007 suggested that the Guidance had been seen as insufficient, leading to “expanded Guidance better equipped staff to understand their responsibilities and, for operational staff at what point in any given operation to involve Agency legal advisors, policy departments or ministers.”

The Claimants argued that if the 2002 and 2004 the Guidance had been seen as insufficient, this may be the equivalent of a smoking gun in terms of proving that the Government was either deliberately or at least recklessly closing its eyes to the actions of foreign intelligence agencies.

Unprecedented size

The claim has already swallowed up enormous amounts of public funds and government time. Mr Justice Silber was told by government solicitors that the disclosure exercise in sifting through documents for the claim was “unprecedented” in its scale:

Apart from the very large number of documents involved now over 250,000 documents identified as potentially relevant, each document often comprising many pages, they cover a period of several years, and are held by several different Government Departments and agencies. There are furthermore a high proportion of very sensitive material that requires particularly careful review.

However, the judge made clear that disclosure could not wait forever, with some of the claims arising from events already seven or eight years ago, and that he welcomed any potential disclosure that may shorten the likely length of the upcoming trial.

Ultimately, he found for the six claimants:

In my view, the balancing exercise leads to the clear result that the Guidance documents should be disclosed and subject to a PII hearing to determine how much of it can be inspected. The extraordinary past and anticipated delays in disclosure of the Guidance documents requires the court to take decisive actions to ensure that the claims progress… These important claims would then be precluded from coming to trial for very many years even though their claims are already 7 or 8 years old.

This is massive litigation in which I assume all parties are financed by public funds and anything which can be done which might assist in expediting the resolution of the dispute should be adopted unless it will cause unfairness

Open justice versus public safety

This is not quite the end of this particular issue. If the Government chooses not to claim public interest immunity, which is unlikely, the documents will be disclosed immediately. However, there will probably now be a Public Interest Immunity hearing where Special Advocates will make submissions to the judge on the basis of what is actually in the guidance.

The judge will then decide whether it should be disclosed or not. His decision will rest on the balancing exercise between the public interest of disclosing the documents versus the potentially dangerous security implications of showing secret guidance to potential enemies of the state.

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