National Security and the Due Process of Law

Transcription

1 Current Legal Problems Advance Access published April 15, 2011 Current Legal Problems, (2011), pp doi: /clp/cur001 National Security and the Due Process of Law Adam Tomkins* Abstract: This article focuses on the ways in which English law struggles to accommodate security concerns within its framework of procedural fairness; insights drawn from EU law, which is rapidly gaining in importance in this field, are also briefly examined. The argument opens with a brief consideration of the use of special advocates and of closed material before turning to examine three recent litigation sagas from the English courts which sharply illuminate the difficulties the law faces: Binyam Mohamed on intelligence sharing and obligations of disclosure; Al Sweady on public interest immunity and the Ministry of Defence; and Al Rawi on UK complicity in torture. Introduction: National Security and Due Process In constructing a counter-terrorism law that complies with the requirements of human rights, the interests of security and liberty are often said to be in tension with one another. The goal, it is said, is to achieve some sort of balance between them. In this article, I suggest that a security versus due process dynamic is at least as important as the theme of security versus liberty. The focus is on the ways in which English law struggles to accommodate security concerns within its framework of procedural fairness, although EU law, which is rapidly growing in importance in this field, is also briefly referred to. The phrase due process of law is not being employed here as a term of art with a single, particular meaning. As Geoffrey Marshall once remarked, due process is generally referred to only elusively in English law unlike in the United States, for example. 1 Like Marshall, I take it as sitting somewhere between the rules of natural justice (which is too narrow for present purposes) and the rule of law (which is too broad). Within the idea of due process I include natural justice or what Lord Diplock called procedural propriety, 2 as well as the right to a * Adam Tomkins, John Millar Professor of Public Law, University of Glasgow, UK. 1 G Marshall, Due Process in England (1977) XVIII Nomos Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374. ß The Author Published by Oxford University Press. All rights reserved. For permissions, please journals.permissions@oup.com

2 2 Adam Tomkins fair trial (as in Article 6 of the European Convention on Human Rights) and what EU law calls the rights of the defence and effective judicial protection. 3 Special Advocates and Closed Material No doubt the best known example of our law s current struggles to accommodate security concerns within due process is the controversy surrounding the use of special advocates and closed material. This is a matter on which the House of Lords has ruled in two major cases MB 4 and AF 5 and on which the Grand Chamber of the European Court of Human Rights ruled in A v United Kingdom. 6 It is a matter, also, on which there is a relatively large body of valuable academic and other commentary. 7 For these reasons, I do not need to go over the background in detail. Special advocates and closed material are now used in a variety of legal proceedings. Their first use in the United Kingdom was in the Special Immigration Appeals Commission (SIAC), a body established by statute in in order to remedy problems in the due process of our national security law which the European Court of Human Rights had found in the Chahal case to be in breach of the European Convention. 9 SIAC, of course, hears appeals against immigration, deportation, deprivation of citizenship, and related decisions where those decisions are taken in the interests of national security. Special advocates and closed material are used also in control orders cases under the Prevention of Terrorism Act and in financial restrictions proceedings under the Counterterrorism Act 2008 and other instruments concerned with the freezing 3 Sedley LJ has expressly relied on the notion of due process in a number of his judgments in recent cases concerning aspects of national security: see, eg Murungaru v Secretary of State for the Home Department [2008] EWCA Civ 1015, [26] and A and Others v HM Treasury [2008] EWCA Civ 1187, [144]. 4 Secretary of State for the Home Department v MB [2007] UKHL 46, [2008] AC Secretary of State for the Home Department v AF [2009] UKHL 28, [2010] 2 AC A and Others v United Kingdom (2009) 49 EHRR The starting point is the excellent Justice Report, Secret Evidence (London, 2009), but see also J Ip, The Rise and Spread of the Special Advocate [2008] PL 717 and A Kavanagh, Special Advocates, Control Orders and the Right to a Fair Trial (2010) 73 MLR Special Immigration Appeals Commission Act See also the SIAC (Procedure) Rules, SI 2003 No Chahal v United Kingdom (1996) 23 EHRR See CPR pt 76.

3 National Security and the Due Process of Law 3 of terrorist assets. 11 The Joint Committee on Human Rights (JCHR) reported in March 2010 that there are a total of 21 different contexts in which special advocates may be used in the United Kingdom and that they have actually been used in 14 of these. 12 While there may be minor differences as to the detail between these various procedures, the basic model is the same. The Government, advised by the Security and Secret Intelligence Services, will divide its evidence and supporting material in a case into open and closed bundles. Material which the Government considers to be sensitive for reasons of national security is closed material. Open material will be served on the other parties as normal. Closed material will not be served on the other parties, but will be served only on a special advocate and, where appropriate, shown also to the court. A special advocate is a lawyer with security clearance who is appointed from a list maintained by the Attorney General to act on behalf of a party in closed proceedings. Once appointed the special advocate will have two main functions. The first is to test the Government s claim that the closed material really needs to be closed: thus, special advocates will seek to have as much of the closed material as possible disclosed as open evidence. The second function is to do what they can to protect the interests of the party on whose behalf they act. The exercise of these functions is extremely difficult in practice. Martin Chamberlain, an experienced special advocate, published an instructive analysis of the issues in the Civil Justice Quarterly in He identified three problems which particularly hamper the ability of special advocates to perform their functions effectively. His arguments were supported and in some respects amplified by the JCHR, which took evidence in February 2010 from three further special advocates. 14 The problems are as follows. First, even though the relevant procedural rules now allow it, special advocates have no ability in practice to adduce evidence to rebut allegations made in the closed material. The JCHR recorded the view that it was entirely fanciful to imagine that a special advocate is able to instruct and call upon an expert to challenge the expert evidence relied upon by Government. 15 Secondly, special advocates struggle to find ways 11 See CPR pt 79 and see further Ahmed v HM Treasury [2010] UKSC 2, [2010] 2 WLR 378 and the Terrorist Asset-Freezing etc Act JCHR, 16th Report of , HL 86, HC 111, para See M Chamberlain, Special Advocates and Procedural Fairness in Closed Proceedings (2009) 28 CJQ 314 and Update on Procedural Fairness in Closed Proceedings (2009) 28 CJQ JCHR, 9th Report of , HL 64, HC Ibid, para 58.

4 4 Adam Tomkins of mounting effective challenges to government objections to disclosure of material. From time to time a web search may reveal that some closed material is already in the public domain but, other than through making such a discovery, it is extremely difficult for special advocates to find ways in which a court will be persuaded that material which the Government says must remain closed should properly be disclosed. In the JCHR s words, special advocates have no means of gainsaying the Government s assessment that disclosure would cause harm to the public interest. 16 Thirdly, special advocates are gravely hampered by the rules which severely restrict communications between the special advocate and the party they represent once the closed material has been served. In the light of these issues the JCHR concluded that the current regime of special advocates and closed material is not capable of ensuring the substantial measure of procedural justice that is required. 17 Despite these very serious deficiencies in its operation, the system of special advocates and closed material has been held by our highest courts to be capable of satisfying the requirements of the right to a fair trial under Article 6 ECHR. Under AvUKand AF, however, this is subject to the condition that parties to legal proceedings are given sufficient information about the allegations against them to enable them to give effective instructions in relation to those allegations. 18 As Lord Phillips expressed it in AF, provided that this requirement is satisfied there can be a fair trial notwithstanding that the [party concerned] is not provided with the detail or the sources of the evidence forming the basis of the allegations. 19 Even this degree of disclosure the Government has fought strenuously to resist. AF was a case concerned with control orders. In a series of subsequent cases, the Government has argued that the AF requirements as to disclosure should not be read across to other situations where special advocates and closed material are used. The Government has been largely unsuccessful in these attempts as, to their credit, the courts have generally stuck to the AF line, describing it as the core irreducible minimum of the requirements of due process under both Article 6 and the common law Ibid, para Ibid, para 90. This conclusion represented a hardening of the JCHR s view on this matter. In previous reports, it had kept an open mind as to the possibility that, despite its imperfections, the system of special advocates and closed material might be operable such that it would ensure fairness. 18 AvUK, [220]. 19 AF, [59]. 20 Bank Mellat v HM Treasury [2010] EWCA Civ 483, [2010] 3 WLR 1090, [18] (Lord Neuberger MR).

5 National Security and the Due Process of Law 5 Thus, the courts have held that the AF requirements as to disclosure apply to all control orders, irrespective of the severity or extent of the restrictions they impose; 21 to claims for damages in respect of a control order which was subsequently quashed; 22 to discrimination actions in the Employment Tribunal; 23 to bail hearings before SIAC; 24 and to cases concerned with terrorist asset-freezing. 25 The only context, to my knowledge, in which it has been held that the AF requirements as to disclosure do not apply are deportation hearings before SIAC the reason for this being that the European Court of Human Rights (ECtHR) has held that a deportation hearing does not constitute a determination of civil rights and obligations within the meaning of Article 6 26 and that the Article 6 right to a fair trial does not therefore apply to such a hearing. 27 An identically composed Court of Appeal handed down judgments on the same day in May 2010 in three cases concerned with special advocates and closed evidence: 28 Al Rawi v Security Service, 29 Home Office v Tariq, 30 and Bank Mellat v HM Treasury. 31 Al Rawi we shall consider in detail later; in this case the court ruled that, absent statutory authority to such effect, there was no inherent common law power to permit a civil action for damages to proceed under closed material procedure. In Tariq the court ruled, first, that statute (and rules made under statute) permitted the use of closed material in an Employment Tribunal and, secondly, that the AF disclosure requirements applied in that context. In Bank Mellat, the court ruled that the AF disclosure requirements likewise applied in a context concerned with the freezing of terrorist assets. In Bank Mellat, Lord Neuberger MR added what may be an important gloss to AF. 21 Secretary of State for the Home Department v BC and BB [2009] EWHC 2927 (Admin) (Collins J). 22 Secretary of State for the Home Department v AF and AE [2010] EWHC 42 (Admin) (Silber J). 23 Home Office v Tariq [2010] EWCA Civ 462, [2010] ICR 1034 (an appeal to the Supreme Court is pending). 24 R (U) v SIAC [2009] EWHC 3052 (Admin) (Laws LJ); cf R (U) v SIAC [2010] EWHC 813 (Admin). 25 Bank Mellat (n 20). 26 Maaouia v France [2000] 33 EHRR See RB (Algeria) v Secretary of State for the Home Department [2009] UKHL 10, [2009] 2 WLR 512 and W (Algeria) and others v Secretary of State for the Home Department [2010] EWCA Civ Each of the cases was decided by Lord Neuberger MR and Maurice Kay and Sullivan LJJ. In each case the Court of Appeal was unanimous and in each case there is a single judgment. 29 [2010] EWCA Civ 482, [2010] 3 WLR 1069; this case is considered in detail below (and, it should be noted, an appeal to the Supreme Court is pending). 30 See n 23, above. 31 See n 20, above.

6 6 Adam Tomkins His Lordship stated that the information provided by the Government (in this instance, by the Treasury) must not merely be sufficient to enable the party (here, the bank) to deny what is said against it : the party must be given sufficient information to enable it actually to refute, in so far as that is possible, the case made out against it. 32 In both Al Rawi and Tariq, the court stated that the special advocate system enjoys a high degree of confidence among the judiciary. 33 However, in Tariq the court noted that this was despite the fact that the system is inherently imperfect 34 and in Al Rawi the court noted that, even after the considerable volume of case law which the use of special advocates and closed material has generated, the system cannot be guaranteed to ensure procedural justice. 35 The EU s courts have recently started to make an important contribution to these matters. The most famous judgment of the European Court of Justice (ECJ) in this field thus far is its decision in Kadi v Council. 36 Kadi s assets were frozen under United Nations Security Council Resolution Among other matters, UNSCR 1267 requires all states to freeze the funds and other financial assets of individuals and entities...as designated by a Sanctions Committee, established under UNSCR 1267 with the task of designating funds derived or generated from, and property owned or controlled by, the Taliban, Osama bin Laden or Al Qaida. Under Regulation 881/2002 the Council of Ministers decided that designations under UNSCR 1267 would be implemented within the European Union at EU level, rather than severally by each Member State. Article 2(1) of Regulation 881/2002 provides that [a]ll funds and economic resources belonging to, or owned or held by, a natural or legal person...designated by the Sanctions Committee and listed in [the Annex to the Regulation] shall be frozen. Kadi was designated by the Sanctions Committee, he was added to the list in the Annex, and his assets in the EU were accordingly frozen under Article 2 of Regulation 881/2002. Kadi brought legal proceedings in what is now the General Court (formerly the Court of First Instance), seeking annulment of the EC Regulation as it applied to him. Among other matters, he claimed that his fundamental rights had been violated specifically, his right to be 32 Ibid [21]. 33 Al Rawi [57]; cf Tariq [32]. 34 Tariq [32]. 35 Al Rawi [57]. 36 Joined Cases C-402 & C-415/05 P Kadi and Al Barakaat v Council [2008] ECR I-6351.

7 National Security and the Due Process of Law 7 heard, his right to property, and his right to effective judicial protection. The General Court ruled that it could not review the legality of Regulation 881/2002 against the standards imposed by fundamental rights in EU law, as the measure simply applied in the EU decisions that were taken at UN level by the Security Council s Sanctions Committee. While the Sanctions Committee might be bound by aspects of international law, it was not subject to EU law. Kadi appealed to the Court of Justice, which allowed his appeal, ruling that his right to be heard, his right to effective judicial protection, and his right to property had been violated. While the ECJ s judgment in Kadi is in many respects striking, it is to be noted that, even after the judgment, Kadi s assets remained frozen. The Court gave the Council three months in which to comply with the requirements of the judgment that is, three months in which to offer Kadi some form of hearing compatible with EU law. Kadi duly received an outline narrative summary of the reasons provided by the UN Sanctions Committee as to why his assets should be frozen and he was able to comment on this. Kadi attempted to refute the allegations made in the narrative summary and asked the Commission to disclose the evidence supporting the assertions and allegations made there. His comments were considered by the Commission, but nothing further was disclosed to him. The Commission concluded that the listing of Mr Kadi is justified for reasons of his association with the Al Qaida network and decided that Kadi s assets should therefore remain frozen. 37 Kadi brought fresh proceedings in the General Court, challenging the lawfulness of this decision. In September 2010 that court ruled in Kadi s favour, holding that the mere fact of sending the applicant the summary of reasons cannot reasonably be regarded as satisfying the requirements of a fair hearing and effective judicial protection. 38 The court stated that it is essential that the applicant be shown the inculpatory evidence used against him..., in such a way that he will have a fair opportunity to respond and to clear his name. 39 The court concluded as follows: that the applicant s rights of defence have been observed only in the most formal and superficial sense ; 40 that the procedure followed by the Commission did not grant [Kadi] even the most minimal access to 37 See Commission Regulation 1190/ Case T-85/09 Kadi v Commission [2010] ECR II-0000 (judgment 30 September 2010), [157]. This case has been appealed to the Court of Justice. 39 Ibid [158]. 40 Ibid [171].

8 8 Adam Tomkins the evidence against him ; 41 that no balance was struck between his interests...and the need to protect the confidential nature of the information in question ; 42 and that the few pieces of information and the imprecise allegations in the summary of reasons appear clearly insufficient to enable the applicant to launch an effective challenge to the allegations against him. 43 In coming to these conclusions, the court expressly adopted and followed the approach set out by the European Court of Human Rights in A v United Kingdom. 44 The court also relied on an important passage in the judgment of the ECJ in E and F, a decision of the Grand Chamber of the ECJ handed down in June Like Kadi, E and F was a case concerning the freezing of terrorist assets, albeit that the regime with which E and F was concerned emanated from UN Security Council Resolution 1373 rather than UNSCR This regime is implemented in the EU under EC Regulation 2580/2001. E and F was concerned with an organization that had been listed by the Council of Ministers as being a terrorist organization whose assets were required to be frozen under Regulation 2580/2001. As the Council acknowledged, no reasons were given as to why the particular organization should be listed. The Court of Justice stated that such a lack of reasons frustrates the courts function of carrying out an adequate review of the substantive legality of a decision to list an organization in this manner, particularly as regards the verification of the facts, and the evidence and information relied upon in support of the listing. The possibility of such review, the court further stated, is indispensable if fairness is to be ensured. 46 We have here, then, three contemporary views as to this particular facet of national security and the due process of law. First, we have the JCHR s assessment that the regime of special advocates and closed material as it is currently practised in the United Kingdom is not capable of ensuring the substantial measure of procedural justice that is required. Secondly, we have the Court of Appeal s view that, while there is a high degree of confidence among the judiciary as to the use of special advocates, it is recognized that the system cannot be guaranteed to ensure procedural justice. And thirdly, we have the view of the ECJ that the court s ability to 41 Ibid [173]. 42 Ibid. 43 Ibid [174]. 44 Ibid [176] [177]. 45 Case C-550/09 E and F [2010] ECR I-0000 (judgment 29 June 2010). 46 Ibid [57].

9 National Security and the Due Process of Law 9 verify the facts and the evidence and information relied upon is indispensable. It is evident therefore that grave concerns as to the fairness of closed material exist at the very highest levels both of law and of politics and that these concerns are only partly tempered by the use of special advocates. The situation remains fluid unstable, even. The Coalition Government appears to have recognized this, and has signalled that it intends in 2011 to publish a Green Paper on the use of sensitive information in the full range of judicial proceedings. 47 As things stand, despite the undoubted advances seen in A, inaf, and in cases such as Bank Mellat, the use of closed material remains a matter of profound concern. Binyam Mohamed R (Binyam Mohamed) v Secretary of State for Foreign and Commonwealth Affairs is an extraordinary case, which raises in an acute manner a variety of difficult questions of national security law. The factual and legal background is as follows. Mr Mohamed (hereafter BM), an Ethiopian national who was lawfully resident in the United Kingdom from 1994 to 2001, was arrested (in his view unlawfully) in Pakistan in April In September 2004, he arrived at the US detention facility at Guantanamo Bay. BM s evidence was that he was illegally detained first in Pakistan, then in Morocco, and subsequently in Afghanistan, before being taken to Guantanamo, that in each of these locations he was interrogated by and under the supervision of US officials, and that he was tortured and subjected to cruel, inhuman, and degrading treatment. The treatment that was meted out to him was horrific. A scalpel was taken to his genitals and to his chest. He was starved, beaten up, hung up by his wrists, deprived of sleep, deprived of lavatory facilities, denied legal representation, and confined for long periods in a pitch-black cell where he could hear the screams of other detainees. In order to prepare his defence against criminal charges which he anticipated would be brought by the US authorities, BM commenced an action in the English courts seeking access to information in the UK s possession which, he claimed, would show that he had been tortured such that his confession evidence, upon which the United State proposed to rely, was unsafe and could not be properly relied upon. The legal principle 47 See HC Deb, 6 July 2010, col 177 (Prime Minister) and HL Deb, 6 October 2010, col 203 (Advocate General for Scotland).

10 10 Adam Tomkins on which BM based his action in the English courts is known as the Norwich Pharmacal principle. 48 This provides that a third party who has become involved in wrongdoing may be legally obliged to give the victim of the wrongdoing any documentation in the custody of the third party to assist the victim in identifying and pursuing the wrongdoer. The Divisional Court 49 recognized that the case sought to apply the Norwich Pharmacal principle in novel circumstances but held that it did apply and, moreover, that its various requirements were satisfied on the evidence. 50 Some of that evidence in Binyam Mohamed was sensitive. Special advocates were appointed on BM s behalf and, as well as the open judgments of the Divisional Court and Court of Appeal which are analysed below, there exists also at least one closed judgment, which, of course, is not in the public domain. The Divisional Court analysed the Norwich Pharmacal principle as comprising five elements: (i) was there wrongdoing?, (ii) was the UK government, however innocently, involved in the wrongdoing?, (iii) was the information necessary?, (iv) was the information sought within the available relief?, and (v) should the court exercise its discretion in favour of granting relief? 51 As to the first, it was accepted by the Secretary of State 52 that BM had established an arguable case that after being subject[ed] to torture and cruel, inhuman or degrading treatment in Pakistan, he was unlawfully rendered from Pakistan to Morocco by the US authorities and that whilst in Morocco he was subject to...torture during his interrogation there by or on behalf of the US authorities. 53 The court ruled that, in the light of this concession, it was not necessary for it to determine whether there was in fact any wrongdoing by or on behalf of the United States Government and that it therefore would not do so. 54 As to the UK s involvement, the court made the following findings. The Security and Secret Intelligence Services (MI5 and MI6) were interested in BM because of his residence in the United Kingdom and because of his connections with suspected persons here: indeed, the court stated that we have no doubt that MI5 and MI6 were right to conclude that 48 See Norwich Pharmacal v Customs and Excise Commissioners [1974] AC Thomas LJ and Lloyd Jones J. 50 R (Binyam Mohamed) v Secretary of State for Foreign and Commonwealth Affairs (No 1) [2008] EWHC 2048 (Admin), [2009] 1 WLR 2579 (hereafter referred to as BM (No 1) ). 51 Ibid [64]. 52 Throughout the case the relevant Secretary of State (the Foreign Secretary) was the Rt Hon David Miliband MP. 53 Ibid [67]. 54 Ibid [68].

11 National Security and the Due Process of Law 11 BM was a person of great potential significance and a serious potential threat to the national security of the United Kingdom. 55 As such, MI5 and MI6 had every reason to seek to obtain as much intelligence from him as was possible in accordance with the rule of law and to co-operate as fully as possible with the US authorities to that end. 56 It is clear that there was extensive co-operation between the US and UK authorities. In May 2002, an MI5 officer, known in the case as Witness B, travelled to Pakistan to interview BM. 57 Thereafter, MI5 sent to the US authorities questions which they wished to be put to BM. 58 The United States regularly debriefed MI5 and/or MI6 on BM throughout 2002 and on into 2003 and The court found also that Witness B travelled three times to Morocco while BM was alleged to have been detained there, but this information came to the court s attention only after Witness B had given evidence; Witness B was not questioned on whether he had any contact with BM during these visits. 60 The court s conclusions on this point were as follows: the conduct of the Security Service facilitated interviews by or on behalf of the United States when BM was being detained by the US incommunicado and without access to a lawyer; the Security Service continued to facilitate the interviewing of BM by providing information and questions...until at least April 2003 in the knowledge of what had been reported to them in relation to the conditions of his detention and treatment The court s findings and conclusions about the UK s involvement with the alleged wrongdoing were contained in paragraphs 87 and 88 of its judgment. This becomes important for reasons we shall turn to shortly. As to the third element of the Norwich Pharmacal test whether the information is necessary the court stated that what the Foreign Secretary holds is information essential to a fair consideration of BM s case and a fair trial. 62 On the fourth element, the court held that some but not all of the material held by the Secretary of State fell within the scope of Norwich Pharmacal. The material was divided into two types: information specific to BM (concerning such matters as his rendition and treatment while in detention), and general information (concerning such 55 Ibid [87]. 56 Ibid. 57 Ibid [17]. 58 Ibid [29]. 59 Ibid [30]. 60 Ibid [35A]. 61 Ibid [88]. 62 Ibid [106].

12 12 Adam Tomkins matters as rendition and treatment of detainees generally). 63 The court held that the first type of information fell within the scope of the Norwich Pharmacal remedy but that the latter did not. 64 In conclusion, the court ruled that, subject to any claim to public interest immunity (PII) (to which we shall turn in a moment), the Secretary of State should disclose to BM such documents and information in his possession as related to BM s detention, rendition, and treatment. In coming to this conclusion, it is to be noted that the court emphasized that it attached particular significance to the nature of the prohibition on state torture. 65 All of this said, however, the court did not order the disclosure of the documentation. Instead, it gave the Foreign Secretary the opportunity to consider whether he should make a PII certificate in respect of it. The Foreign Secretary did so, relying on the control principle. A number of the documents sought by BM were of US origin: they were passed by the US intelligence services to MI5 and MI6. It was apparent that, among other matters, they outlined the conditions of BM s detention, his treatment, and his questioning; it later emerged that there were 42 such documents in the possession of the Secretary of State. 66 Intelligence sharing, the Secretary of State explained in his PII certificate, is essential between allies such as the United States and the United Kingdom: it is vital to the national security of the United Kingdom such that it saves lives, he stated. 67 To this end, the Secretary of State certified that it is essential that the ability of the United States to communicate in confidence with the United Kingdom is protected; without this confidence they simply will not share information in the open manner that is currently the case. 68 It followed, in the Secretary of State s view, that disclosure of [the 42] documents by order of our courts or otherwise by United Kingdom authorities would seriously harm the existing intelligence-sharing arrangements between the United Kingdom and the United States and cause considerable damage to the national security of the United Kingdom Ibid [135]. 64 Ibid [138]. 65 Ibid [142] [143]. 66 See R (Binyam Mohamed) v Secretary of State for Foreign and Commonwealth Affairs (No 3) [2008] EWHC 2519 (Admin), [5] (hereafter, BM (No 3) ). 67 R (Binyam Mohamed) v Secretary of State for Foreign and Commonwealth Affairs, first PII certificate of the Secretary of State (26 August 2008), para 12 (hereafter, first PII certificate ). 68 Ibid. 69 Ibid para 10.

13 National Security and the Due Process of Law 13 In his PII certificate, the Secretary of State objected not only to the disclosure of the 42 documents but also to the publication of seven paragraphs in the Divisional Court s judgment, paragraphs which (at the Secretary of State s request) had been redacted from the version of the judgment that was handed down. These paragraphs (amounting to about twenty-five lines of text) were redacted from paragraphs of the court s judgment. These are the paragraphs, it will be recalled, which contain the court s findings and conclusions about the UK s involvement with and knowledge of BM s torture and mistreatment. As later became clear, the redacted paragraphs provided a summary of reports by the US authorities to MI5 and MI6 on the circumstances of BM s incommunicado and unlawful detention and of the treatment accorded to him. 70 The redacted paragraphs had been included in the original judgment because, as the court explained, the summary was highly material to BM s allegation that he had been subjected to torture and cruel, inhuman or degrading treatment. 71 To my knowledge this is the first time that PII has been claimed in respect of a court judgment. After a hearing to consider the Secretary of State s PII certificate, the Divisional Court ruled that the matter would have to be referred back to the Secretary of State, for the reason that, in his certificate, the Secretary of State had failed to address what the court referred to as the abhorrence and condemnation accorded to torture. As we saw above, this was a matter which the court had expressly highlighted in its first judgment. It was extraordinary that in his PII certificate the Secretary of State should have failed to make any mention of torture, especially so given that in the court s view it was a matter which the Secretary of State was required to take into account in deciding where the balance lay between the competing public interests of disclosure and protecting confidentiality. 72 In a second PII certificate, the Secretary of State considered the issues of torture and of cruel, inhuman, and degrading treatment, and arrived at the same conclusion as he had come to in his first certificate. 73 The matter duly returned to the Divisional Court. One strand of the Secretary of State s argument was that, if disclosure of the US materials was to be ordered by a court of law, it should be the US 70 See R (Binyam Mohamed) v Secretary of State for Foreign and Commonwealth Affairs (No 4) [2009] EWHC 152 (Admin); [2009] 1 WLR 2653, [14] (hereafter, BM (No 4) ). See further below. 71 Ibid. 72 See R (Binyam Mohamed) v Secretary of State for Foreign and Commonwealth Affairs (No 2) [2008] EWHC 2100 (Admin), [20] (hereafter, BM (No 2) ). 73 R (Binyam Mohamed) v Secretary of State for Foreign and Commonwealth Affairs, second PII certificate of the Secretary of State (5 September 2008).

14 14 Adam Tomkins courts and not the UK courts issuing the order. At the same time as BM s Norwich Pharmacal claim was being heard in London, other litigation concerning BM was in progress in the United States. There was a habeas corpus action brought on behalf of a number of Guantanamo detainees in front of the US District Court for the District of Columbia. There were also criminal proceedings in preparation for a reference to a Military Commission. In his PII certificates, the Secretary of State relied on assurances he had received from the US authorities that the documentation at issue in the English proceedings (the 42 documents) would be disclosed to BM s US lawyers in one or other of these cases. 74 When it transpired, however, that only seven of the 42 documents had been disclosed in the US proceedings and that, even then, these seven had been apparently heavily redacted, BM s UK lawyers argued that the only way in which the documents would be provided...was by order of the English court. 75 It was known that the matter of disclosure in the US proceedings was to be imminently reviewed by the US District Court. The Divisional Court therefore decided that, despite finding the developments summarized here to be deeply disturbing, it would stay the matter pending this review by the US court. 76 Shortly after this decision, two developments took place in the United States. First, the relevant US authority decided that criminal charges against BM would not be referred to the Military Commission. This decision was taken without prejudice, meaning that new charges could have been referred. In the event, however, BM was not re-charged. He was released from Guantanamo Bay in early 2009 and he returned to the United Kingdom. Secondly, the US Government made the 42 documents available, albeit in redacted format, in the habeas corpus proceedings before the US District Court. It followed from these developments that there was no further remedy sought by BM in the proceedings before the Divisional Court: the only issue in those proceedings which remained outstanding was whether the seven paragraphs of the court s first judgment, which had been redacted, should be made public. From this point on, therefore, the nature of the tension between security and due process at issue in the case changed. Until this point in the proceedings, the principal issue had been between security, on the one hand, and the process which was due specifically to BM, on the other. The question for the court was how to balance considerations of security 74 First PII certificate, para 13; second PII certificate, para BM (No 3), [19] and [28]. 76 Ibid [55].

15 National Security and the Due Process of Law 15 against BM s interests in accessing the information possessed by the Secretary of State. Because disclosure eventually took place in the United States, the Divisional Court never had to deliver a final ruling on this question. That is to say: the Divisional Court never ruled on whether the public interest in confidentiality did indeed outweigh BM s interest in disclosure as the Secretary of State had certified in his two PII certificates. Now the question changed. Now the issue was between security, on the one hand, and the process which was due to the public at large, on the other. That is to say, the question for the court was how to balance considerations of security against the public interest in the open administration of justice. The Divisional Court expressed it as follows: the issue which arises here is not the balance between the public interest and fairness to a litigant by making material available to him to enable a fair trial to take place....it is a novel issue which requires balancing the public interest in national security and the public interest in open justice, the rule of law and democratic accountability. 77 What the two questions in the case have in common, of course, is that each was framed in the context of a dispute about torture. That fact, ever present in the minds of the judges in the Divisional Court (and playing a role, too, in the judgment of the Court of Appeal, as we shall see) weighed heavily in the balance even if it was not always decisive. It was common ground in the case that both questions should be determined in accordance with the law of PII as set down by the House of Lords in Wiley. 78 That is to say: first, it must be considered whether the material is relevant to legal proceedings. Secondly, the public authority (here the Foreign Secretary) must consider whether disclosure would entail a real risk of serious harm to an important public interest (such as national security). Since 1997 the Government has accepted that this assessment must be made on the basis of the content of the material in question, not on the basis of what sort (or class) of material is in issue. If, applying the real risk of serious harm test, the material is assessed to attract PII, the third stage is for the public authority to decide whether, in its view, the public interest in non-disclosure is outweighed by the public interest in disclosure. The public authority must consider and balance the relevant competing public interests; if the view is taken that the overall public interest favours non-disclosure, the public authority will make a 77 BM (No 4), [18]. 78 R v Chief Constable of the West Midlands Police, ex parte Wiley [1995] AC 274; see also RvH[2004] UKHL 3, [2004] 2 AC 134.

16 16 Adam Tomkins certificate to that effect to the court. The court is the ultimate decision-maker, its assessment being the final stage of the process. As part of its assessment the court will consider whether alternatives to full disclosure, whereby the risk of harm to the public interest might be lessened, are available and, if so, whether they would be sufficient to meet the needs of justice. As to the first stage, the Divisional Court in Binyam Mohamed offered several reasons why the publication of the seven paragraphs redacted from its first judgment was necessary in the interests of justice. Under both the common law and Articles 6 and 10 ECHR courts must do justice in public unless it can be shown justice could not otherwise be done. This acts as a safeguard against judicial arbitrariness, idiosyncrasy or inappropriate behaviour and in favour of the maintenance of public trust, confidence and respect for the impartial administration of justice. Further, the public sitting of a court enables fair and accurate reporting to a wider public and makes uninformed and inaccurate comment about the proceedings less likely. 79 Unsurprisingly given the context of this case, the court placed particular emphasis on the democracy-reinforcing aspect of open justice: The public sittings of the courts and their public decisions are one of the means through which, in a democratic society information enters the public domain...if the redacted passages containing a gist of what was reported by officials of the United States Government were made public that would enable more informed and accurate public debate to take place and Governments to be held to account. 80 In the court s view this was especially apposite in the current case because of the particular resonance of torture. The court quoted Lord Hoffmann s dictum in A(No2)that the rejection of torture by the common law has a special iconic importance as the touchstone of a humane and civilised legal system. 81 The court concluded that it is our clear view that the requirements of open justice, the rule of law and democratic accountability demonstrate the very considerable public interest in making the redacted paragraphs public, particularly given the constitutional importance of the prohibition against torture BM (No 4), [36]. 80 Ibid [42] [43]. 81 Ibid [43], citing A v Secretary of State for the Home Department (No 2) [2005] UKHL 71, [2006] 2 AC 221, at [83]. 82 Ibid [54].

17 National Security and the Due Process of Law 17 Despite all this, the court did not order that the paragraphs now be published. The Secretary of State had certified in his PII certificates and particularly in his second one that if the redacted paragraphs are made public, then the United States Government will re-evaluate its intelligence sharing relationship with the United Kingdom with the real risk that it would reduce the intelligence provided. 83 Relying on dicta from the House of Lords in Rehman and Corner House, 84 the court ruled that the judgment as to whether the national security of the United Kingdom will be compromised...is a matter on which the Foreign Secretary is the expert and not ourselves 85 and, further, that there is no basis in law on which the judgement of the Foreign Secretary as to the danger to national security can properly be questioned. 86 This was despite the fact that the court clearly had great difficulty in accepting the Secretary of State s view. It is hard to resist the sense that the court was at least disturbed by and quite possibly was exceedingly angry about what the Secretary of State had certified as to the position of the US Government. As the court noted, there was nothing in the redacted paragraphs that would identify any agent or any facility or any secret means of intelligence gathering ; nor could anything in the redacted paragraphs possibly be described as highly sensitive classified US intelligence. 87 Moreover, it was, in the court s view, difficult to conceive that a democratically elected and accountable government could possibly have any rational objection to placing into the public domain such a summary of what its own officials reported as to how a detainee was treated by them. 88 The court was reduced to wondering aloud why a democracy governed by the rule of law would expect a court in another democracy to suppress a summary of the evidence contained in reports by its own officials...where the evidence was relevant to allegations of torture..., politically embarrassing though it might be. 89 Within a short time of this judgment being handed down and this was the Divisional Court s fourth judgment in the case BM s lawyers made an application to the court to have the judgment re-opened. 83 Ibid [62]. 84 See Secretary of State for the Home Department v Rehman [2001] UKHL 47, [2003] 1 AC 153 and R (Corner House Research) v Director of the Serious Fraud Office [2008] UKHL 60, [2009] 1 AC BM (No 4), [64]. 86 Ibid [79]. 87 Ibid [68]. 88 Ibid [69]. 89 Ibid.

18 18 Adam Tomkins The basis of their application was that the court had been misled (or, perhaps, that there had simply been a misunderstanding) about the position of the US Government. As we just saw, in its fourth judgment the court understood the position to be that US/UK intelligence sharing would risk being jeopardized if the court published the seven redacted paragraphs, as such action would amount to a breach of the control principle. The court did not make its decision on the basis of the control principle alone, but because of the specific consequences spelt out by the Bush administration, consequences which the court described as a threat whereby the United States would reconsider its intelligence-sharing relationship with the United Kingdom. 90 Now, the court s fourth judgment was handed down on 4 February Two weeks prior to the court handing down this judgment, President Obama was inaugurated and his administration assumed office. The court agreed to re-open the judgment on the basis that, even if the Obama administration continued to insist on the control principle, it was not clear whether it would carry out the threat made by its predecessor administration that, were the control principle to be breached through the publication of the seven redacted paragraphs, it would reconsider its intelligence-sharing relationship with the United Kingdom. The Secretary of State provided a third PII certificate in which he maintained that the change in the US Administration on 20 January 2009 did not alter in any way the fundamental objection of the United States to the public disclosure of its intelligence material, or of information derived from that material, by the United Kingdom (including by our courts). 91 In its fifth judgment, the court stated, as it had done in its fourth, that it would need to defer to the position of the Secretary of State provided there was an evidential basis for his opinion. 92 After a detailed examination of the available evidence, however, the court concluded in its fifth judgment that there was not: the evidence simply does not sustain the Foreign Secretary s opinion that there is a serious risk that the Obama administration would reconsider its intelligence-sharing relationship 90 R (Binyam Mohamed) v Secretary of State for Foreign and Commonwealth Affairs (No 5) [2009] EWHC 2549 (Admin), [2009] 1 WLR 2653, [15(ii)] (hereafter, BM (No 5) ). The Secretary of State objected to the description of the US Government s position as a threat, but the court replied that in the language of everyday life this is undoubtedly what it was (ibid). 91 R (Binyam Mohamed) v Secretary of State for Foreign and Commonwealth Affairs, third PII certificate of the Secretary of State (15 May 2009), para BM (No 5), [67].

19 National Security and the Due Process of Law 19 with the United Kingdom were the seven paragraphs of the court s first judgment to be published. 93 The court accepted that there was some small risk 94 of this but, when weighed against the overwhelming 95 public interest in making the paragraphs public, it was clear to the court that it should order the seven paragraphs to be restored to its first open judgment, and it did so. 96 The court stated that, in so ruling, it did not consider that there was any infringement of the control principle, for the reason that, in any democratic society governed by the rule of law, information as to how officials admitted treating a detainee during his interrogation could be characterized neither as secret nor as intelligence. 97 At this point, farce threatened to descend not that any of this is remotely funny. The Secretary of State objected to the publication initially of six (subsequently of four) paragraphs of the court s fifth judgment, paragraphs which shed light on what was contained in the seven redacted paragraphs of the court s first judgment. In a sixth (and final) judgment, the Divisional Court ruled that the four paragraphs of its fifth judgment should be published, along with the original seven redactions from the first judgment. 98 The Secretary of State made it clear that he would appeal these decisions to the Court of Appeal, however, so all the passages in issue remained redacted pending the decision of the Court of Appeal. 99 The Foreign Secretary s argument before the Court of Appeal, then, was that the Divisional Court s decisions in its fifth and sixth judgments that seven paragraphs of its first judgment and four paragraphs of its fifth judgment should be published were erroneous in law. The appeal was heard before the Lord Chief Justice (Lord Judge CJ), the Master of the Rolls (Lord Neuberger MR), and the President of the Queen s Bench 93 Ibid [95] (emphasis added). 94 Ibid. 95 Ibid [108]. 96 In doing so the court directly contradicted the judgment of the Secretary of State who, in his third PII certificate, certified that it was his continued view that real harm to the national security...of the United Kingdom would be caused were there to be public disclosure of the seven paragraph in issue... (para 22). 97 BM (No 5) at [73] and [93(ii)]. To this end, the court re-iterated the views it had expressed in its fourth judgment: see text at nn 87 89, above. 98 R (Binyam Mohamed) v Secretary of State for Foreign and Commonwealth Affairs (No 6) [2009] EWHC 2973 (Admin). 99 The Government changed its position during the course of the hearing in the Court of Appeal and dropped its objection to the publication of three of the four passages from the Divisional Court s fifth judgment. Thus, the judgment of the Court of Appeal is concerned only with the seven paragraphs of the Divisional Court s first judgment and with one single paragraph from its fifth judgment.