BINYAM MOHAMED (2)

There was an interesting coda to the U.K. Court of Appeal's decision in the Binyam Mohamed case (see my blog of 15/2/10). The Court's three senior judges had unanimously ruled that seven paragraphs detailing Mr Mohamed's ill-treatment/torture should indeed be published as part of the Divisional Court's original judgment in the same case, despite the Foreign Secretary's claim that they represented intelligence material supplied by the U.S. that should be kept secret.

The twist in the case concerned one paragraph of the judgment by Lord Neuberger, the Master of the Rolls. In going through the pros and cons of the Foreign Secretary's arguments, he highlighted as a con the fact that the Foreign Secretary's claim of public interest immunity (i.e. secrecy) in respect of the seven paragraphs had come about following advice from the secret services. Although there was no doubt about the Foreign Secretary's own good faith, that advice could well be seen to be tainted, given the fact that one member of the secret services, Witness B, was under police investigation for a possible breach of the law in helping Mr. Mohamed's torturers. Other members of the secret services might also have known about Witness B's actions.

As is customary, the draft judgment was sent out to both parties' counsel, asking for comments prior to formal publication. The Foreign Secretary's counsel thought that the wording of the relevant paragraph was too sweeping in its conclusions about the intelligence community in general, conclusions that were not justified by the evidence of the particular case. Lord Neuberger accordingly redrafted the paragraph, though when the judgment was published (under time pressure, the case being of major public interest), he made it clear that the paragraph was still in draft form. Mr. Mohamed's counsel then objected to the second draft, pointing out that the original Divisional Court judgment had in fact established quite definite conclusions about the intelligence community, based on the evidence. Lord Neuberger then redrafted the relevant paragraph for a third time.

Unfortunately, in the media frenzy accompanying the Court of Appeal's decision, the Foreign Secretary's counsel's letter of objection to the court was leaked, and Lord Neuberger's comment that the relevant paragraph was still in draft was lost in the rush. The impression was thus given that the Court of Appeal had been leaned on to change its view.

That impression was one, which the learned judges were - understandably - very, very keen to dispel, taking 9 pages in their subsequent judgment to set out in precise detail what had happened, why, and when. They also gave a general warning against anyone tempted to leak counsel's letters to the court in future; as they put it:

"The circumstances here are, we believe, unique. They will not be repeated."

All eyes now move to the outcome of the police investigation into Witness B. Expect that to cause ripples, whatever the outcome.

Walter Blotscher