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Binyam Mohamed and other former Guantanamo Bay detainees had sued the UK Government alleging involvement in their unlawful detention and mistreatment. The Government asked the Court to adopt a secret procedure under which the claimants and their lawyers would be excluded from the hearing and from seeing the judgment in their case. Although the Government settled the claims in November 2010, they pursued the argument about secrecy to the Supreme Court in an attempt to overturn an earlier Court of Appeal ruling which had rejected their arguments.

Corinna Ferguson, legal officer for Liberty which intervened in the case, said:

 “The Government should be humbled by this strong defence of the principles of fair and open justice.  The law already provides ample protection from disclosure where there are genuine national security concerns, and the Court has made it clear that there are no compelling reasons for change.  We hope ministers will now abandon proposals to introduce yet more secrecy into British courts.”

Lord Dyson, giving the lead judgment, said that the introduction of a closed material procedure in ordinary civil claims would involve “an inroad into a fundamental common law right”. He continued “The [Public Interest Immunity] process is not perfect, but it works well enough. In some cases it is cumbersome and costly to operate, but a closed material procedure would be no less so.”

Lord Kerr, in a concurring judgment, said:

“This would not be a development of the common law, as the [Government] would have it. It would be, at a stroke, the deliberate forfeiture of a fundamental right which…has been established for more than three centuries.”

Last week the Government published the Evidence Protocol for the “inquiry” into allegations of British complicity in torture, which made it clear that the crucial final word on whether material can be made public rests not with a Judge – as in public inquiries and normal legal process in Britain - but with the Cabinet Secretary, the Government’s chief civil servant. The detainees’ lawyers, as well as Liberty and a number of other organisations, have strongly criticised the Government’s failure to establish a fully independent and credible inquiry into these serious allegations.

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NOTES TO EDITORS

1. Find Liberty’s press release on the publication of the ‘evidence protocol’ for the inquiry into allegations British complicity in torture here