26 Feb 2010

Court of Appeal resists government pressure to water down torture judgment

Today the Court of Appeal decided to stick by criticisms of the security services contained in ‘paragraph 168’ of Lord Neuberger’s judgment in the Binyam Mohamed torture case.

This paragraph confirms that some security service officials “appear to have a dubious record relating to actual involvement, and frankness about any such involvement, with the mistreatment of Mr Mohamed when he was held at the behest of US officials”. It also suggests that the security services misled the Parliamentary committee with responsibility for scrutinising its activities.

In a highly irregular move prior to the Court of Appeal’s judgment being handed down on 10 February, Counsel for the FCO wrote to Lord Neuberger asking for the original draft of this paragraph to be watered down. But after hearing arguments from all other parties, including Liberty who intervened in the case, Lord Neuberger issued the final version of paragraph 168 this morning with only very minor amendments.

Speaking after the release of the deleted paragraph today, Shami Chakrabarti, director of Liberty, renewed her calls for a public inquiry into UK complicity in torture. She said:

"This has been a shameful business. Complicity in torture is bad enough without repeat and strenuous attempts to cover it up. Nonetheless despite the Government's efforts, the Court of Appeal has defended principles prohibiting torture and protecting open justice that are essential to the Rule of Law."


Contact: Liberty’s press office on 020 7378 3677 or 07973 831 128

Notes to Editors

Chronology of the case:

· In May 2008, in order to assist his defence against terrorism charges in the US, Binyam Mohamed made an application to the High Court requesting the UK government to disclose documents provided to it by the US government which gave details of Mr Mohamed's treatment by the US authorities. Mr Mohamed alleged that he had been subjected to torture while in US custody, consisting of genital mutilation, deprivation of sleep and food, being held in stress positions for days at a time, and being forced to listen to loud music and screams of other prisoners while locked in a pitch black cell, all while being forced to implicate himself and others in terrorist plots against the US.

· The High Court ruled that Mr Mohamed was entitled to the documents because they concerned wrongdoing by a third party in which the UK government had been involved. Binyam Mohamed's treatment occurred at a time when the UK intelligence services had been involved in questioning him.

· The UK government then issued "public interest immunity" (PII) certificates claiming that disclosure of the documents, and 7 paragraphs of the High Court's judgment which summarised them, would not be in the public interest. Mr Mohamed challenged this assessment and the matter was considered by the High Court.

· Binyam Mohamed subsequently obtained the documents from the US authorities and charges against him in the US were ultimately dropped. However the UK government continued to resist publication of the 7 paragraphs of the High Court's judgment because it claimed that it would breach the diplomatic rule that intelligence provided by one government to another should not be disclosed without the consent of the government which provided it ("the control principle"). It was said that the consequence of this was that the Bush administration would reduce its cooperation with the UK intelligence services.

· The High Court accepted the UK government's concerns and decided not to publish the 7 paragraphs.

· Subsequently it materialised that the Foreign Secretary had misrepresented the position to the Court in that the hearing took place shortly after President Obama had been elected and it was not clear that the Obama administration would adopt the same stance as the Bush administration had done. The Court therefore agreed to reopen the matter.

· The High Court then ruled that there was no proper basis for the UK government's assertion that the US government would react in the way that was claimed. It therefore ruled that the 7 paragraphs should be published.

· The UK government appealed this decision and as a result the publication of the 7 paragraphs was postponed pending the appeal.

· Meanwhile a US court ruled in an application for habeas corpus by a Guantanamo Bay detainee that Binyam Mohamed had been treated in the way he alleged (i.e. as summarised in the 7 paragraphs).

· Despite this the UK government continued to argue that the 7 paragraphs should not be published.

· The Court of Appeal decided on 10 February 2010 that the 7 paragraphs should be published.

· The Court agreed to take further written submissions on the unusual Foreign Office request to delete one paragraph of its draft judgment. On 26 February 2010 the original paragraph was released.