31 October 2015
And so, thirteen years after his capture, eight years after the US Government cleared him for release, and seven years after President Obama’s spectacularly broken promise to shut down Guantánamo, Shaker Aamer has left the prison, as innocent as the day he went in.
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16 November 2010
Updated | It is being widely reported that around 12 men, who accused the government of complicity in their mistreatment in various places including the Guantanamo Bay prison camp, have reached a financial settlement worth millions of pounds with the government.
Update, 16:30: Ken Clarke has announced the settlements to Parliament. The terms are confidential, no admission of culpability has been made and the claimants have not withdrawn their allegations. The alternative to any payments would have been “protracted and extremely expensive” litigation. This could have cost between £30m and £50m. There could have been no inquiry while those cases were under way. However, the Gibson inquiry cannot run in parallel with a criminal inquiry. The criminal investigations have to conclude first.
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11 October 2010
Ex-Guantanamo Bay prisoner Binyam Mohamed failed this weekend to prevent the Daily Mail reporting that he had been granted permanent residency in Britain. The case highlights a growing trend for the courts to enforce open justice in two significant ways, both which rely heavily on protections guaranteed under human rights law.
Interestingly, two crucial aspects of open justice have been reinforced as a result of a case involving Mohamed himself. In fact, the open justice aspects of Mohamed’s case against the security services will probably emerge as amongst the most important legal rulings arising from the ‘war on terror’ era. Unfortunately for him, this may have had the unintended consequence of destroying any chances of maintaining his privacy.
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29 September 2010
More documents have emerged calling into question what the UK security services knew about the alleged mistreatment of ‘War on Terror’ detainees. Until this case is resolved, it is unlikely that work will begin on the upcoming torture inquiry.
Various documents have been disclosed in the ongoing case of Al Rawi and Others v The Security Services, in which six men who were detained at various locations, including Guantanamo Bay and Bagram in Afghanistan, allege various forms of mistreatment. They say that the UK government knew or should reasonably have known that the mistreatment was happening. Although the case has not yet reached trial, it has been the subject of a number of high-profile applications for secret documents (see our posts here and here).
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23 August 2010
Review: The Ripple Effect: Guantanamo Bay in the United Kingdom Courts” by CRG Murray, International Law Review Online Companion, April 2010 – Read article
A new academic article by C.R.G Murray at Newcastle University analyses the interesting and important line of case-law arising from claims by men detained in Guantanamo Bay. The case-law has involved many issues of a politically sensitive nature and generated much media coverage and pressure on the British Government. The ripple effects from the detentions have led to a series of important judgments.
Murray’s article reviews important case-law arising from detention at Guantanamo Bay and the impact it has had on the decisions reached by the courts. Murray concludes that the case-law demonstrates two major ‘ripple effects’: (1) judicial review has been used to press the British Government into being more active in opposing detentions at Guantanamo Bay; (2) where serious human rights breaches are in issue, the courts have been more willing to disregard historic concepts of comity between courts in different jurisdictions and give their own view of the correct interpretation of law for the benefit of appellate courts in the United States.
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6 July 2010
The details of the forthcoming wide-ranging public inquiry into British complicity with “rendition” and torture abroad have been announced by the Prime Minister.
He also announced the public release of guidance, formerly secret, on the questioning of suspects overseas, and that a new committee is to review the use of secret evidence in court proceedings.
The statement can be read in full here. Contrary to some reports, the new inquiry is to be judge-led. It will be headed by Sir Peter Gibson, a retired Court of Appeal Judge, who amongst other things headed up the Omagh bombing intelligence review in 2008, and currently is serving as the Intelligence Services Commissioner, a post which involves reviewing actions taken by the Secretary of State under the Intelligence Services Act 1994 and the activities of British intelligence.
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21 June 2010
Al Rawi & Ors v the Security Service & Ors  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.
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12 May 2010
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.
4 May 2010
Al Rawi & Ors v Security Service & Ors  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:
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20 April 2010
The case of The Queen on the application of Evans v Secretary Of State For Defence is continuing today in the Royal Courts of Justice in London, before Lord Justice Richards and Mr Justice Cranston.
Maya Evans, an activist, is brining a judicial review against the Ministry of Defence in respect of the British Army’s detainee transfer policy in Afghanistan. It is alleged that British forces knew of the torture risks when handing over prisoners to the Afghan security services.
This is the latest in a series of cases where the Government have been criticised in the courts for defence policies in Iraq and Afghanistan. In 2007, the House of Lords (the old Supreme Court) in Al-Skeini effectively opened the door to such claims by foreign nationals by holding that the Human Rights Act applies outside of the UK.
The most notable recent example is the Binyam Mohamed case, where the Court of Appeal heavily criticised the security services. Similar issues in relation to secret evidence appear to have arisen in Evans, with The Guardian reporting:
So concerned is the Ministry of Defence about the challenge to the practice, that it is insisting that evidence it had passed to her lawyers must now be suppressed.
As a result, skeleton argument from her lawyers – a document consisting of an outline of the case – includes a number of passages blacked out at the insistence of the MoD.
Following one long excised passage, the document revealed in court today reads: “The lessons from these shocking events is … investigation by the NDS [Afghanistan’s National Directorate of Security] is obviously incapable of providing any satisfaction of the UK’s human rights obligations.”
- Our posts on the Binyam Mohamed litigation can be found here, here, and here
- Our case comment on R (Mazin Mumaa Galteth Al Skeini and others) v Secretary of State for Defence