R (on the application of Mohamed) v Secretary of State for Foreign and Commonwealth Affairs [2008] EWHC 2519 (Admin), [2008] All

Law reports

Divisional Court, Thomas LJ and Lloyd Jones J, 4 February 2009

Dinah Rose QC and Ben Jaffey (instructed by Leigh Day) for the claimant. Thomas de la Mare and Martin Goudie (instructed by the Special Advocates Support Office) as special advocates for the claimant. Pushpinder Saini QC, Max Hill QC and Karen Steyn (instructed by the Treasury Solicitor) for the defendant. Andrew Nicol QC and Guy Vassall-Adams (instructed by Jan Johannes) for Guardian News and Media Ltd, British Broadcasting Corporation, Times Newspapers Limited, Independent News and Media Ltd and The Press Association (instructed by Finers Stephens Innocent) for The New York Times Corporation and The Associated Press. The editor of the Law Reports appeared in person. Vanity Fair appeared by its representative.

The claimant, an Ethiopian national resident in the UK, was arrested in Pakistan in April 2002. He was held incommunicado until May 2004. During that time he was subject to interrogation by officials of the US and others on their behalf. He alleged that he was tortured during interrogation.
The defendant secretary of state accepted that the claimant had an arguable case that he had been subjected to torture by or on behalf of the US. He had made confessions as to his involvement in terrorism and alleged that those confessions were due to torture. On the basis of them, he was charged under the US Military Commissions Act 2006 with terrorist off ences. In May 2008, his lawyers began proceedings against the defendant seeking information to assist in the defence of the charges against him. A hearing took place in late 2008 before the Divisional Court. The charges were later dismissed. The only remaining issue was whether or not the court should restore to its judgment seven short paragraphs summarising reports by the US government on the circumstances of the claimant’s detention and of the treatment accorded to him. The court had considered the summary highly material to the claimant’s allegation that he had been subjected to torture and cruel, inhuman or degrading treatment. The foreign secretary considered their publication potentially dangerous to national security.
Thomas LJ:
It was common ground that the issue of restoring the redacted paragraphs should ordinarily be determined by balancing the various interests in accordance with the tests set out in R v Chief Constable of the West Midlands ex p Wiley [1994] 1 All ER 702. However, it was contended by the special advocates that public interest immunity (PII) could not be invoked in the UK to prevent disclosure of evidence of serious criminal misconduct by officials of the UK. His lordship rejected that argument. PII existed to protect the interests of the state as a whole. It was not the UK as a state that was alleged to have facilitated serious criminality, but the government—the executive branch of the state.
The argument for an absolute bar confused the interests of the state and the position of one of the branches of the state—the executive. It had to be open to find a way to compel the executive to act in accordance with the rule of law, or to punish its offi cials for any wrongdoing or hold it democratically accountable if that could be achieved without endangering the wider interests of the state as a whole where those wider interests might be damaged by disclosure. Th ere were alternatives to the protection of the public interest of the state as a whole. However, the special advocates’ argument had great force to the alternative contention that, in balancing the various interests, the balance came down firmly in favour of making the redacted paragraphs public.
Having undertaken that balancing test, his lordship concluded that the requirements of open justice, the rule of law and democratic accountability demonstrated the considerable public interest in making the redacted paragraphs public.
His lordship considered possible exceptions and held that it would have remained the court’s view, absent the evidence adduced by the foreign secretary as to the position taken by the US, that there was every reason to put the paragraphs into the public domain. The suppression of reports of wrongdoing by officials (in circumstances which could not in any way affect national security) would be inimical to the rule of law and the proper functioning of a democracy. Championing the rule of law, not subordinating it, was the cornerstone of a democracy. Moreover as the foreign secretary had made clear, the protection of human rights was central to the efforts of the UK to counter radicalisation.
In the judgment of the foreign secretary there was a real risk that, if the redacted paragraphs were restored, the US, by its review of the shared intelligence arrangements, could infl ict on the citizens of the UK a considerable increase in the dangers they faced at a time when a serious terrorist threat still pertained.
His lordship considered how the judgment of the foreign secretary was to be balanced against the public interest in open justice as safeguarding the rule of law, free speech and democratic accountability. The decisive factors were the other means which had resulted from these proceedings for safeguarding democratic accountability and the rule of law (the reference of the matter to the ISC and the attorney general) and what had already been placed into the public domain which could engender debate.