| PRACTICE — Disclosure — Public Interest Immunity — Former UK resident detained by US Government at Guantanamo Bay and charged with offences relating to terrorism — Public Interest Immunity certificate and schedule issued by UK Government — Whether relevant consideration absent
R (Binyam Mohamed) v Secretary of State for Foreign and Commonwealth Affairs (2) [2008] EWHC 2100 (Admin); [2008] WLR (D) 300
QBD: Thomas LJ and Lloyd Jones J: 29 August 2008
In performing the necessary balancing exercise in relation to public interest immunity and the exercise of the court’s discretion to order disclosure, it was incumbent on the court to have regard to the absence of a relevant consideration in the PII certificate and schedule, namely, in the light of the allegations made by the claimant, the abhorrence and condemnation accorded to torture and cruel, inhuman or degrading treatment, an issue which the court considered was not addressed either expressly or implicitly.
The Divisional Court of the Queen’s Bench Division so held in the second open judgment of the court in proceedings by the claimant, Binyam Mohamed, an Ethiopian national and former resident of the United Kingdom, who was held by the United States of America at Guantanamo Bay pending possible referral to trial before a Military Commission, for judicial review of the decision of the Foreign Secretary to refuse to provide to lawyers representing the claimant exculpatory evidence which might assist the claimant. In the first open judgment [2008] EWHC 2048 (Admin); [2008] WLR (D) 295, the court had held that the court was entitled to require the Foreign Secretary to disclose in confidence to the claimant’s lawyers information specific to the claimant and essential to his defence. The court had reserved its decision whether to exercise its discretion to order disclosure pending any claim by the Foreign Secretary to public interest immunity.
THOMAS LJ, delivering the judgment of the court, said the facts were as set out in the first judgment (paras 5 – 54). However, in the period since that judgment, there had been changes in the US Government’s position communicated by two letters from the US State Department, dated 21 and 27 August 2008. In the second letter it was communicated that the legal advisor to the Convening Authority had made a commitment to present the relevant documents to the Authority at the same time as he presented his advice on whether the case should be referred for trial. This would have the consequence that, in accordance with rule 701 of the Manual for Military Commissions, the documents would be automatically disclosed to defence counsel if the case were so referred. Considered together, the two letters from the State Department constituted a significant and welcome change in position by the US Government. The court would proceed on the basis that the military prosecutors would disclose the documents in the manner specified. In these respects the claimant had obtained as a result of the discussions between the two Governments all that the court could have granted. However, the assurances provided had failed to satisfy the requirements of the claimant’s US defence team in respect of the provision of the documents to the claimant’s lawyers so that they could make submissions to the Convening Authority. On 26 August the Foreign Secretary had served a certificate claiming public interest immunity, to the effect that the public interest dictated that disclosure of the information should take place in a manner consistent with the undertaking of the United States to provide the material and not by order of the UK courts or otherwise by the UK authorities. Among the reasons given was that it had been made clear by the US administration through senior officials that such disclosure would seriously harm the existing intelligence sharing arrangements between the UK and the US and thereby cause considerable damage to the national security of the United Kingdom. In reaching a decision on the PII certificate and the sensitive schedule thereto the court had had regard to the approach of Lord Woolf in R v Chief Constable of the West Midlands Police, Ex p Wiley; R v Chief Constable of Nottinghamshire Constabulary, Ex p Sunderland [1995] 1 AC 274, HL(E), which had been accepted by the then government and summarised in the Paper on Public Interest Immunity (Treasury Solicitor’s Office 1996, para 2.3). The third step in the ex p Wiley approach, the balancing exercise, involved the decision-maker making an assessment of the issues in the case in order to establish the strength of public interest in disclosing the documents. If the balance did not appear to favour disclosure, the decision-maker would put a certificate to the court explaining his reasons for asserting public interest immunity. Whether a claim was justified was ultimately a question for the court. In this case the Foreign Secretary’s PII certificate had addressed the balancing of the relief needed by the claimant’s lawyers (after the State Department’s first letter) against the damage which would be done by disclosure to the interests of the national security of the UK, in particular to intelligence sharing with the United States. In the light of the claimant’s allegations, it was material to have regard to the abhorrence and condemnation accorded to torture and cruel, inhuman or degrading treatment, a matter to which the court had attached particular importance in the first open judgment (paras 142– 144). After careful consideration, the court did not accept the defendant’s contention that that the issue had been implicitly dealt with in the certificate and sensitive schedule. They did not show that the Foreign Secretary had taken into account a material matter. The court considered that, in the particular circumstances of the case, and bearing in mind the lengths to which those involved had already gone to provide the claimant with assistance, justice required that the court should allow time for the Foreign Secretary to serve a further certificate, either in open or closed form, to cover those issues and during which the parties could make any further written submissions on the certificate prior to the court reaching its conclusion on public interest immunity and the discretion to order disclosure. Accordingly, the court granted to the Foreign Secretary a week within which to serve a further certificate.
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