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06 May 2010
Issue: 7416 / Categories: Legal News
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Secret trial rejected by Court of Appeal

Ruling suggests fairness is more important than secrecy

The Court of Appeal has unanimously rejected a government request to hold a secret trial over the claims of former Guantanamo Bay inmates that that the government was complicit in their torture overseas.

The case, Al Rawi and Ors v Security Services and Ors [2010] EWCA Civ 482, involved the claims of Moazzam Begg and Binyam Mohamed and four others who were detained at Guantanamo and other detention centres. They claimed that each of the defendants— the Security Service, the Secret Intelligence Service, the Foreign and Commonwealth Office, the Home Office, and the Attorney General—caused or contributed towards their alleged detention, rendition and ill treatment.

The court overturned an earlier High Court ruling that a civil claim for damages could in principle be held in secret.

Lord Neuberger, the master of the rolls, said it was important for the court to declare “firmly and unambiguously” that there was no power for an English court to adopt such a procedure without the sanction of an Act of Parliament.
To do so would be a “pyrrhic victory” for the government, which would damage the reputation of both the government and the court, he said.

“[T]he principle that a litigant should be able to see and hear all the evidence which is seen and heard by a court determining his case is so fundamental, so embedded in the common law, that, in the absence of parliamentary authority, no judge should override it, at any rate in relation to an ordinary civil claim, unless (perhaps) all parties to the claim agree otherwise.

“At least so far as the common law is concerned, we would accept the submission that this principle represents an irreducible minimum requirement of an ordinary civil trial. Unlike principles such as open justice, or the right to disclosure of relevant documents, a litigant’s right to know the case against him and to know the reasons why he has lost or won is fundamental to the notion of a fair trial.” 

Eric Metcalfe, director of human rights policy at Justice, which intervened in the case, says: “The Court of Appeal has made clear that fairness is more important than secrecy.”

Issue: 7416 / Categories: Legal News
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NEWS
Talk of a reserved ‘Welsh seat’ on the Supreme Court is misplaced. In NLJ this week, Professor Graham Zellick KC explains that the Constitutional Reform Act treats ‘England and Wales’ as one jurisdiction, with no statutory Welsh slot
The government’s plan to curb jury trials has sparked ‘jury furore’. Writing in NLJ this week, David Locke, partner at Hill Dickinson, says the rationale is ‘grossly inadequate’
A year after the $1.5bn Bybit heist, crypto fraud is booming—but so is recovery. Writing in NLJ this week, Neil Holloway, founder and CEO of M2 Recovery, warns that scams hit at least $14bn in 2025, fuelled by ‘pig butchering’ cons and AI deepfakes
After Woodcock confirmed no general duty to warn, debate turns to the criminal law. Writing in NLJ this week, Charles Davey of The Barrister Group urges revival of misprision or a modern equivalent
Family courts are tightening control of expert evidence. Writing in NLJ this week, Dr Chris Pamplin says there is ‘no automatic right’ to call experts; attendance must be ‘necessary in the interests of justice’ under FPR Pt 25
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