Judge criticises government’s “neither confirm nor deny” policy
A judge has quashed control orders against two British terrorism suspects, in a ruling highly critical of government policy.
Mohammed Ahmed Mohammed and another man were originally arrested in Somaliland by British forces in 2011 and allegedly beaten and unlawfully removed to the UK where they were put under control orders.
The men challenged the orders on the grounds of abuse of process since the UK government had been involved in their allegedly unlawful removal. The government relied on the policy of “neither confirm nor deny” (NCND), and were allowed to present their case in closed court.
On appeal, in Mohammed and CF v Home Secretary [2014] EWCA Civ 559, Lord Justice Maurice Kay noted that the men were denied “even the gist” of the government’s argument on abuse of process, and did not know why they lost.
“It is submitted that not only have [the appellants] been denied procedural fairness on this issue, but also the public interest in showing the extent to which their allegations were accepted or rejected has been unlawfully frustrated,” he said.
Kay LJ said the policy of NCND was not a legal principle, but was a “departure from procedural norms relating to pleading and disclosure”.
“It requires justification similar to the position in relation to public interest immunity (of which it is a form of subset),” he said.
“It is not simply a matter of a governmental party to litigation hoisting the NCND flag and the court automatically saluting it. Where statute does not delineate the boundaries of open justice, it is for the court to do so.”
The Home Office is considering an appeal.
The men are alleged to have been involved with al-Shabaab, the Somali militant group.
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