ANALYSIS: Here’s a paradox, writes Francis FitzGibbon: in the same week, the government says it wants more powers to scrutinize your phone calls and online communications, it insists on less scrutiny of public officials in sensitive civil trials by holding them in secret. They have presented both proposals with the pretexts that governments generally use when liberty is under attack:
- if you have done no wrong you have nothing to fear;
- they need more power to combat terrorism, organized crime, and paedophiles; and
- relations with our allies will suffer and so will national security.
The pressure for secret hearings in civil trials comes from the spy services. The case that Binyam Mohamed brought against the government after his release from Guantanamo Bay embarrassed them. Mohamed claimed that he had been tortured by US officials and their proxies as a suspected Al Qaeda terrorist, with the connivance of British spies, following his kidnapping (called ‘extraordinary rendition’ by the mealy-mouthed) and imprisonment in a variety of hell-holes by the CIA. He believed that the British government, through MI5 officers, had committed or colluded in grave abuses of his human rights and he wanted to know what its officials had done. He launched judicial review proceedings when the Foreign Office refused to tell him.
The government resisted disclosure. The litigation went on for over two years in the Administrative Court and the Court of Appeal. The Administrative Court gave seven separate judgments: 21st August 2008  EWHC 2048 (Admin); 29th August 2008  EWHC 2100 (Admin); 22nd October 2008  EWHC 2519 (Admin); 4th February 2009  EWHC 152 (Admin); 31st July 2009  EWHC 2048 (Admin); 16th October 2009  EWHC 2549 (Admin); 19th November 2009  EWHC 2973 (Admin). At every turn, the government wanted to stop Mohamed finding out what our spies had done in collaboration with the Americans. The then Foreign Secretary, David Miliband, issued Public Interest Immunity Certificates, claiming that the material was too sensitive to be disclosed. The government ultimately lost the battle for disclosure because the judges were not satisfied that all of its claims were well-founded. They lost again in the Court of Appeal when the government challenged part of the decision against them.
Anyone reading the Courts’ judgments will be struck by the scrupulous care that the judges took in weighing up Mohamed’s right to know if our government was in any way responsible for his ill treatment, against the legitimate desire of the Foreign Office to ensure that national security was not going to be harmed by any disclosure. A pack of wild anarchists the judges of the Administrative Court and Court of Appeal, are not.
On appeal, the issue had narrowed: the government now just wanted to reverse the lower Court’s decision that certain parts of its judgment should be published without ‘redaction’: censored, in plain language, because it cited damning verbatim evidence about British and US officials. The government argued that publication would stop the Americans from co-operating in long-standing arrangements to share secret intelligence with British spies, to the detriment of this country’s security. Lord Judge, the Lord Chief Justice, heard the appeal together with the head of President of the Queen’s Bench Division, Lord Justice May, and the Master of the Rolls, Lord Neuberger. In his judgment in the appeal, the Lord Neuberger admitted that he had been in favour of the government’s position before the late appearance of a ruling in proceedings brought by another Guantanamo detainee in the USA. Judge Kessler, of the US District Court for the District of Columbia, found as a fact that Binyam Mohamed had been tortured under interrogation by CIA and FBI agents. These findings ultimately persuaded Lord Neuberger that the ‘details of Mr Mohamed’s mistreatment, and their effect on him, as have been publicly recorded by Judge Kessler, and cannot be said any longer to be in any way confidential information, or information which is somehow in the control of the US Government’. It followed that since the information was already in the public domain, the argument for continued suppression of effectively the same evidence by a British Court fell flat. He did not accept that the disclosure of this evidence, in this case, would harm UK-US intelligence sharing, as officials said they feared.
Lord Neuberger concluded his long judgment with these words of criticism for the way in which the Foreign Office presented its case to the lower Court:
‘The Foreign Secretary’s case on redaction before the Divisional Court was, to put it mildly, not assisted by the remarkably drip-fed way in which the evidence was presented, and I do not think that the arguments advanced below were entirely the same as those addressed to us.’
In these circumstances, the balance fell in favour of maintaining open justice. It is worth quoting what Lord Judge said at length as a clear affirmation of the principle:
‘Justice must be done between the parties. The public must be able to enter any court to see that justice is being done in that court, by a tribunal conscientiously doing its best to do justice according to law. For that reason, every judge sitting in judgment is on trial. So it should be, and any exceptions to the principle must be closely limited. In reality very few citizens can scrutinise the judicial process: that scrutiny is performed by the media, whether newspapers or television, acting on behalf of the body of citizens. Without the commitment of an independent media the operation of the principle of open justice would be irremediably diminished.
There is however a distinct aspect of the principle which goes beyond proper scrutiny of the processes of the courts and the judiciary. The principle has a wider resonance, which reflects the distinctive contribution made by the open administration of justice to what President Roosevelt described in 1941 as the ‘…first freedom, freedom of speech and expression’. In litigation, particularly litigation between the executive and any of its manifestations and the citizen, the principle of open justice represents an element of democratic accountability, and the vigorous manifestation of the principle of freedom of expression. Ultimately it supports the rule of law itself. Where the court is satisfied that the executive has misconducted itself, or acted so as to facilitate misconduct by others, all these strands, democratic accountability, freedom of expression, and the rule of law are closely engaged.’
So this case was a declaration by the Courts of the urgent need in a democratic society for open justice, but it was also a decision with a particular factual basis. It does not rule out the use of PII certificates, or ‘closed material’, or other measures needed to protect national security – as and when the need genuinely arises. It establishes that the government has a heavy burden of proof that the principles of open justice should be set aside in exceptional cases only, with the judges themselves deciding which cases are exceptional. Because of the disclosure of evidence in the USA, Mohamed’s case did not come under that category. (For more information about Mohamed, see the account of his case by his representatives at Reprieve.)
In October 2011, The Ministry of Justice published a consultation paper, laying out its plans to prevent future Binyam Mohameds from getting the truth out of the government. The key proposals are, first, to abolish applications for disclosure of evidence of wrongdoing held by a third party in cases alleged to involve national security (under the ‘Norwich Pharmacal’ procedure – applicable in civil actions in general). Mohamed made his application to the Foreign Office for information about his ill treatment in this way. Had it not been available, he would have had no legal procedure for demanding the evidence that the government held about what had been done to him.
Secondly, the government wants to expand the use of ‘closed material procedure’ in civil cases. It has taken root in national security cases before the Special Immigration Appeals Commission (SIAC). In essence, it allows for disclosure of sensitive material to a security-cleared lawyer – a ‘special advocate’ – who does not act as his representative and is not permitted to inform the victim of the wrongdoing what it contains. He can make representations to the Court, but the person concerned has no voice. The special advocates themselves have come out against this proposal in their submissions to Parliament’s Joint Human Rights Committee. They described it as ‘inherently unfair’.
Contrary to what ministers have said, these proposals do not represent an extension of justice. The justice secretary Kenneth Clarke maintains that the choice at present is between spies having to give away secrets in public, and the use of PII certificates to prevent disclosure of evidence in any circumstances; the reforms will allow the evidence to be given, but in secret, and justice will still be done.
The Binyam Mohamed shows that this is not the case. It is the judges who decide where the balance lies, by carefully weighing up the competing public interests of open justice and national security. Anyone who has the slightest acquaintance with this area of law knows very well that the courts always take national security claims extremely seriously and are properly reluctant to reject them – because in almost every case the executive is likely to be better informed about it than they are, and constitutionally should be the primary decision makers.
What the government wants to do here is to bury episodes like Mohamed’s, and keep them out of the reach of proper legal scrutiny. It’s bad enough that the government ‘drip feeds’ evidence to the courts now; how much worse if the other side are disabled from putting their case properly, to force full and detailed disclosure of wrongdoing. Secret trials are the hallmark of regimes whose conduct cannot stand up to public scrutiny.
Many people think that the courts are already too deferential to the executive in national security cases, but they are not uniformly so. Mohamed’s case is one example of their resistance to heavy pressure. He would never have found out the truth if he had not taken the government to court. The possible collusion or connivance of officials in his torture is a scandal – and in a better world it would lead to much greater openness by government and a desire to prevent it ever happening again, but that is not our world. Instead, the reaction is prevent us from finding out at all – which means it will recur. The Prime Minister’s assertion in early 2010 that ‘sunlight is the best disinfectant’ does not apply to the darkest and filthiest corners of the secret world. The MoJ’s plans will bring down the shutters completely.
Meanwhile, while we can’t find out about them, they want more powers to find out about us, with the as yet unannounced but heavily leaked plan to increase the state’s power to spy on our phone and internet communications. I wrote about this in ‘Nothing Like the Sun’ earlier this month. The government appear to want to extend the Regulation of Investigatory Powers Act 2000 (RIPA) so that investigators can store everyone’s telephone and online data forever, and access social network and online communications in real time and without a warrant. Leaving aside whether the storage aspect could ever work in practice and be secure against hacking or unauthorized access, the real question is whether this represents a large intrusion or simply a logical extension of powers conceded in 2000 to cover emerging technology. The permanent storage plan was mocked and seen off when the last government tried it, and an EU directive currently limits the time that ISP store data to 12 months. Those who think that intrusion by the state on private communications is a bad thing in general should read RIPA carefully and they will see that it sanctioned and regulated a very substantial number of different forms of interference, and was passed with little fuss at the time – partly because it introduced a regulatory framework to replace the previous piecemeal arrangements. In a way, the battle against legally sanctioned snooping was lost years ago; but on the other hand, there surely is no case for saying that criminal conduct that takes place online should be off limits to the police to investigate. If the plan is for the police to have unfettered access, without the need for a warrant or any judicial oversight, that would be a huge infringement of privacy and would almost certainly fall foul of Article 8 of the ECHR. But if subject to proper controls – and they should be stringent – this particular plan is less of a threat than the malign proposals for civil justice. Taken together, though, these proposals represent a significant increase of the state’s power over its citizens, and a corresponding attack on the citizen’s ability to hold the state to account for its wrongdoing.
Francis FitzGibbon QC
Francis FitzGibbon QC is a criminal barrister at Doughty Street Chambers. He is chair of the Criminal Bar Association. The views expressed here are personal