Supreme Court supports open justice

The High Court had no power to allow the use of secret evidence without Parliamentary authorisation in a civil claim brought by former Guantanamo detainees, the Supreme Court has ruled.

In the former detainees’ 2009 claim for damages against the security and intelligence services for alleged detention rendition and mistreatment, the government had asked the High Court to adopt a "closed material procedure" blocking the detainees, their lawyers and the public from hearing classified evidence. The High Court agreed, but this was overturned by the Court of Appeal. The claims have since been settled, but the government appealed on a point of principle.

The Supreme Court ruled by a 5-4 majority, in Al Rawi and Ors v The Security Services and Others [2011] UKSC 34, that the courts had no power to hear the secret evidence since this would breach the principle of open justice and the right to a fair trial.

Delivering his judgment, Lord Kerr said: “The right to be informed of the case made against you is not merely a feature of the adversarial system of trial, it is an elementary and essential prerequisite of fairness.”

The “seemingly innocuous scheme” proposed by the government amounted to “the deliberate forfeiture of a fundamental right which…has been established for more than three centuries”, he said.

Lord Dyson said: “The open justice principle is not a mere procedural rule. It is a fundamental common law principle.”

However, the Court held, in a second case, Home Office v Tariq [2011] UKSC 35 that secret evidence could be used in the employment tribunal in a claim involving national security, because Parliament had legislated to create an exception in such cases, in the Employment Relations Act 1999.

Eric Metcalfe, director of human rights policy at Justice, which intervened in the trial, said: “Today’s ruling has confirmed that secret evidence has no place in the common law.

“It is a clear setback for the government’s plans to extend the use of secret evidence and secret hearings in our courts. Although it is open to Parliament to legislate further, today’s ruling sets a high hurdle for any MP seeking to cut across centuries of common law tradition.”