High Court orders disclosure of closed judgment in Afghanistan interrogation case

16 October 2013 by Rosalind English

R (on the application of Maya Evans) v Secretary of State for Defence, with Associated Press intervening [2013] EWHC 3068 (Admin) – read judgment

In  “Evans (No. 1)”, a 2010 case concerning the transfer of suspected insurgents for questioning in certain military centres in Afghanistan, the High Court had ruled, partly in an open judgment, partly in closed proceedings, that UK transfers to NDS Kandahar and NDS Lashkar Gah could proceed without risk of ill treatment (which is contrary to UK policy), but that it would be a breach of the policy and therefore unlawful for transfers to be made to NDS Kabul. It was subsequently discovered that there had not been jurisdiction to follow a closed procedure in that case, but what was done could not be undone, so the confidentiality agreements and the closed judgment remained in force.

So matters rested until the disclosure by the Secretary of State, in later proceedings,  of a witness statement by a senior official in the Ministry of Defence, which had formed part of the evidence before the Divisional Court in Evans (No. 1). This statement had been disclosed to the claimant and her legal representatives in Evans (No.1) in heavily redacted form and subject to the confidentiality undertakings given by them. What was disclosed in the later case  (R (Serdar Mohammed) v Secretary of State for Defence, CO/3009/2012) was a version with substantially fewer redactions. It included allegations, redacted from the version disclosed to the claimant and her legal representatives in Evans (No.1), that a prisoner transferred to NDS Kabul had been subjected to serious mistreatment following the transfer. It was disclosed in the Serdar Mohammed proceedings without any claim to public interest immunity and was read out in open court in the course of a public hearing.

In response to questions as to why the version of Mr Burton’s statement disclosed in the Serdar Mohammed proceedings had been withheld from the public and from the claimant and her legal representatives in Evans (No.1), a Cabinet Office spokesman was reported in The Guardian newspaper on 10 January 2013 as saying that “[t]hese lawyers have utterly failed to take into account the fact that the sensitivity of material can change over time”.

Those events led to the two applications before the court:

1. Associated Newspapers Limited, intervening, applied for all or part of the closed judgment in Evans (No.1) to be made public and for guidance to be given on the proper procedure to be followed in future cases.
2. The claimant in Evans (No.1) sought the discharge or variation of the confidentiality undertakings given by her and her legal representatives in the first case, and contended that, if the court were to order parts of the closed judgment to be opened up, it should also order disclosure of the witness statement evidence (including exhibits) relating to those parts of the judgment.

The secretary of state’s review of the closed judgment was set out in a Public Interest Immunity (PII) Certificate before the court.

The arguments

Associated Newspapers advanced four broad reasons why closed judgments should be restricted to the minimum necessary and why, where a closed judgment is necessary, the open judgment should indicate the extent to which the decision has been influenced by what is in the closed judgment.

First, the parties need to know the reasons for the decision, partly to decide whether to pursue an appeal and partly to avoid a sense of grievance.

Secondly, the public must be able to see that justice is being done: there is a need for public scrutiny, carried out in practice by the media on behalf of the body of citizens.

Thirdly, in litigation involving the executive, the principle of open justice represents an element of democratic accountability.

Fourthly, closed judgments may contain findings of fact and decisions on questions of law which provide legal and factual precedents but are not generally known or accessible.

These principles derive “strong support” from authorities such as the Binyam Mohamed and Bank Mellat cases.

On behalf of the secretary of state, it was argued that the material in question, which had been subject of valid PII claims at the time of Evans (No.1), would never have come before the court at all had the parties not agreed to a closed material procedure. If the sensitivity of the material had not been accepted by the court at the time, the Secretary of State would have had a choice whether or not to disclose it:

 It is intensely problematic to seek to open up now, at a time when the Secretary of State has lost that choice, material over which sensitivity continues to be asserted. Mr Eadie submitted in the light of these considerations that it would be wrong in principle for the court to decide to publish information from a historic closed judgment in the face of an assessment by the Secretary of State that such information remains sensitive

Lord Justice Richards (with whom Mitting J agreed) stressed that this hearing should not be regarded as some sort of review of or an appeal from Evans (No.1).  His task was to determine, in the light of the new PII certificate and any other up-to-date information available to the court, to what extent there was a continuing public interest in non-disclosure of the contents of the closed judgment and whether it was outweighed by the public interest in disclosure.

The decision of the Court

The court  allowed the applications to the extent of directing public disclosure of those parts of the original closed judgment contained in the version annexed to the judgment and directing that the claimant and her legal representatives be released from their undertakings to the extent of the witness statement and other materials that had now come into the public domain, but not to the documents underlying the closed judgment.

Apart from this, the court concluded that the PII claim should be upheld.

The ultimate decision on whether the contents of a closed judgment should be opened up must remain with the court, just as it does on an appeal, where (as Binyam Mohammed illustrates) the Secretary of State no longer has a choice in the matter.

They did accept, however, that the Foreign Secretary’s approach to the PII balancing exercise was in principle correct, and agreed with his conclusion that the balance came down in favour of non-disclosure. The fact that disclosure was not sought for the purpose of on-going proceedings between the parties meant that a “potentially weighty” factor in favour of disclosure was absent. If any PII material in the closed judgment were relevant for other litigation, it or the evidence underlying it could be the subject of a separate PII balancing exercise specific to that litigation.

The one factor of public interest in favour of disclosure in the present case is that of open justice. It is a weighty factor but in my judgment it is not sufficient to outweigh the public interest in non-disclosure.

As for the remainder of the closed judgment, the court accepted the secretary of state’s contention that the SIAC procedure of disclosing the material in digest form, rather than what the applicants were seeking, which was the original judgment with the closed parts redacted, so it would be possible to discern how much of the material remained secret:

 Whilst there is a public interest in knowing the scale of the redactions, I do not think that it is sufficient to outweigh the risk of harm to the public interest created by disclosure otherwise than in digest form, even though that risk is of a general nature and is inherently unquantifiable.

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