A Good Day for Justice: British Supreme Court Bans Use of Secret Evidence by Intelligence Services

15.7.11

In a triumph for the principles of open justice, and a snub to the Tory-led coalition government, the British Supreme Court ruled unanimously on Wednesday that the government and the intelligence agencies cannot use secret evidence in court to prevent open discussion of allegations that prisoners were subjected to torture.

The appeal, by lawyers for MI5 — but with the explicit backing of the government — sought to overturn a ruling in the Court of Appeal last May, when judges ruled that the intelligence services could not suppress allegations, in a civil claim for damages submitted by six former Guantanamo prisoners, that the British government and its agents had been complicit in their ill-treatment. The six are Bisher al-Rawi, Jamil el-Banna, Richard Belmar, Omar Deghayes, Binyam Mohamed and Martin Mubanga, and they argued, as the Guardian put it, that “MI5 and MI6 aided and abetted their unlawful imprisonment and extraordinary rendition.”

The ruling last May precipitated a huge crisis in the government, as the first of hundreds of thousands of classified documents emerged from the court, revealing the extent to which Tony Blair and Jack Straw were up to their necks in wrongdoing, preventing consular access to a British citizen in Zambia, in Tony Blair’s case, and in Straw’s, approving the rendition of British citizens to Guantanamo the day before the prison opened in January 2002. I covered this story in detail in my article, UK Sought Rendition of British Nationals to Guantánamo; Tony Blair Directly Involved.

As a result, ministers scrambled over each other in their rush to shut down further damaging leaks from the court by arranging for the former prisoners to accept compensation claims in exchange for dropping the civil claim for damages, persuading them that they would not be able to afford to proceed with their case if they did not accept the offer.

The settlement was announced in November, but the government immediately responded not with a dignified silence, which would have been appropriate as they wheedled their way out of the court-ordered release of evidence of complicity in torture at the highest levels of government, but with a provocative announcement by justice secretary Kenneth Clarke, who chose the very moment that the payments were announced to also announce that, in future, the work of Britain’s security services would be “permanently hidden from court hearings,” as the Guardian explained.

Kenneth Clarke told MPs that a government green paper, supposedly to be published this summer, would “contain specific proposals designed to prevent the courts from releasing the kind of information that has emerged from recent Guantánamo cases in the English courts.” A Whitehall official told the Guardian, “It will absolutely eliminate [the possibility of] the process happening again.”

The Guardian also explained that ministers had been “convinced by MI5 and MI6 that disclosing information held by the security and intelligence agencies — and notably information provided by foreign agencies such as the CIA –compromises Britain’s national security,” and that, as a result, they were planning to use a secret evidence and the system of speoial advocates, used in domestic terrorism cases, which has alarmed believers in open justice for many years.

To introduce secret evidence into the courts for cases involving domestic terror suspects, the government set up a ludicrous situation whereby special advocates are appointed to represent defendants in closed sessions in which secret evidence is discussed, but they are unable then to discuss anything that they see or hear with their clients, tying their hands and conjuring up the spirit of Franz Kafka, as I have discussed at length in previous articles — see, for example, Britain’s Guantánamo: Calling For An End To Secret Evidence, Calling Time On The Use Of Secret Evidence In The UK, Control Orders: Solicitors’ Evidence before the Joint Committee on Human Rights, February 3, 2010 and Control Orders: Special Advocates’ Evidence before the Joint Committee on Human Rights, February 3, 2010.

In the cases of British nationals and foreign nationals held on control orders (a form of house arrest) on the basis of secret evidence, the Law Lords — the precursors to the Supreme Court — ruled in June 2009 that the system of secret evidence and special advocates infringed the men’s right to a fair trial under Article 6 of the European Convention on Human Rights, so it was alarming that the government wanted to expand this system as a blanket ban on any future discussion of wrongdoing on the part of the security services.

The appeal that was decided by the Supreme Court on Wednesday was essentially testing the waters for the new proposals regarding secret evidence and the security services, and, a a result, the government’s plans are thoroughly discredited. See here for the judgment (120 pages, PDF), and see here for a brief summary issued by the Court.

Delivering the judgment, Lord Dyson said, “There are certain features of a common law trial which are fundamental to our system of justice, both criminal and civil. First, subject to certain established and limited exceptions, trials should conducted and judgments given in public. The importance of the open justice principle emphasised many times. The open justice principle is not a mere procedural rule. It is a fundamental common law principle.”

“Secondly,” Lord Dyson stated, “trials are conducted on the principle of natural justice,” and he warned that allowing a “closed procedure” in “an ill-defined way” could “be the thin end of the wedge,” adding, “This would be a big step for the law to take in view of the fundamental principles at stake. In my view this is a matter for parliament and not the courts.”

Lord Hope also had some powerful advice for the government, and a stirring defense of the law. “There comes a point,” he said, “where the line must be drawn between procedural choices which are regulatory only and procedural choices that affect the very substance of the notion of a fair trial. Choices that cut across absolutely fundamental principles — such as the right to be confronted by one’s accusers and the right to know the reasons for the outcome — are entirely different. The court has for centuries held the line as the guardian of these fundamental principles.”

He added, “Any weakening in the face of advances in the methods and use of secret intelligence in a case such as this would be bound to lead to attempts to widen the scope for an exception to be made to the principle of open justice.”

As the Guardian explained, Lord Brown warned that cases involving closed procedures “would mean that claims concerning allegations of complicity, torture and the like by UK intelligence services abroad would be heard in proceedings from which the claimants were excluded, with secret defences they could not see, secret evidence they could not challenge, and secret judgments withheld from them and from the public for all time.”

Lord Kerr added that, under the proposals put forward by the security services, “all the material goes before the judge and a claim that all of it involves national security or some other vital public interest will be very tempting to make.”

However, although the decision is “a significant victory for open justice,” as the Guardian explained, the nine judges “pointed out that parliament could change the law to permit such ‘closed material procedures’ in future.”

That should not be necessary, as, in the Supreme Court’s judgment, all nine judges “rejected the security service’s main submission that a court has a common law power to order a closed material procedure as an alternative to the more conventional public interest immunity (PII) certificate,” as the Guardian put it. They argued that such a power “would contravene fundamental and long-established principles of open and natural justice.”

If there is any valid area for discussion, it is with the “mission creep” of a secondary proposal by the security services —  that “a court has a common law power to order a closed material procedure as an add-on to a conventional PII in certain exceptional cases.” When pushed on fundamental problems with their cavalier attitude to the law as it relates to the perceived threat of terrorism, governments have tended to resort to introducing their dangerous innovations in “exceptional cases,”and as a result it is worth keeping a close eye on how the government responds to this particular point.

Nevertheless, this is, in general, a judgment to be savoured, and confirmation, yet again, that British judges are capable of maintaining their independence, despite intense political pressure, when it comes to dealing with issues involving terrorism and “national security.” In response to the judgment, Eric Metcalfe, of the all-party law reform group JUSTICE, which was involved in the case, said, “The ruling has confirmed that secret evidence has no place in the common law. It is a clear setback for the government’s plans to extend the use of secret evidence and secret hearings in our courts. Although it is open to parliament to legislate further, today’s ruling sets a high hurdle for any MP seeking to cut across centuries of common law tradition.”

Let us hope that Eric Metcalfe is correct, and, if not, that those of us who have had enough secrecy and complicity in torture in the last ten years, can say to Parliament that enough is enough, and that we do not want the expansion of the secrecy state, and do not want politicians and the intelligence services to have new opportunities to hide their wrongdoing under the feeble guise of “national security.”

Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by Macmillan in the US, and available from Amazon — click on the following for the US and the UK) and of two other books: Stonehenge: Celebration and Subversion and The Battle of the Beanfield. To receive new articles in your inbox, please subscribe to my RSS feed (and I can also be found on Facebook, Twitter, Digg and YouTube). Also see my definitive Guantánamo prisoner list, updated in June 2011, details about the new documentary film, “Outside the Law: Stories from Guantánamo” (co-directed by Polly Nash and Andy Worthington, on tour in the UK throughout 2011, and available on DVD here — or here for the US), my definitive Guantánamo habeas list and the chronological list of all my articles, and, if you appreciate my work, feel free to make a donation.

17 Responses

  1. Andy Worthington says...

    On Facebook, Cynthia Schmitt wrote:

    GOOD…POWER APPEARS TO CORRUPT THE RETHUGLICANS MORE OFTEN THAN NOT, MAYBE WE CAN FOLLOW SUIT, AND PROTECT OUR PRESIDENT AT ANY COST

  2. Andy Worthington says...

    Mezentian Gate ‎wrote:

    Cynthia–Obama is the one carrying the Bush tradition, by the way– tell me again there is a difference?

  3. Andy Worthington says...

    William James Hudson wrote:

    If they had banned the use of Secret Intelligence in Courts outright – I would have been pleased, it would have cleared the way to end the collection of it (ho ~ ho). Still a success though:)

  4. Andy Worthington says...

    Willy Bach wrote:

    Andy, good news is rare indeed and all who care about justice, fair play and the rule of law should savour this rare decision. One must wonder which parallel universe out of Star Trek or Harry Potter the judges of US courts inhabit, but this decision cannot fail to be on their minds when they get around to looking at this issue.

  5. Andy Worthington says...

    Miguel Garduque wrote:

    WOW!!! Wtg British Supreme Court! If only that had a chance in being supported by SCOTUS. And no, there is no chance in hell that the Obama admin. would EVER support this. Good to see nations who once supported America’s ‘We do what we want, bitches’ motto are starting to thumb their nose at the audacity of nope.

  6. Andy Worthington says...

    Thank you, my friends.
    What’s particularly interesting about the British case — and I hope it will provide some succor to lawyers and campaigners in the US — is that the British judges refused to be swayed by an argument that “national security” concerns could lead to a blanket ban on the use of any information involving the intelligence agencies without causing fatal damage to the principles of open justice. In the UK, these arguments focus on “public interest immunity,” whereas in the US the equivalent is the “state secrets doctrine” that the Obama administration has been invoking to protect the Bush administration, and that, albeit with some reluctance, the 9th Circuit Court of Appeals accepted as a blanket defense in the Jeppesen case, in which five former victims of rendition and torture couldn’t even get into a US courtroom to ask why Jeppesen Dataplan,Inc., a Boeing subsidiary, had been their travel agent to torture on behalf of the CIA. The contrast does not show US justice in a good light, especially as the US Supreme Court (unlike the British one) recently refused to even look at the Jeppesen case.
    Relevant articles about Jeppesen are here:
    http://www.andyworthington.co.uk/2010/09/15/by-one-vote-us-court-oks-torture-and-extraordinary-rendition/
    and here:
    http://www.andyworthington.co.uk/2011/05/27/supreme-court-fails-to-tackle-torture-in-the-past-or-in-the-future/

  7. Tashi says...

    That is amazingly Good News! :) I am so happy to read that, Andy, (and I really enjoyed reading this article, by the way, it was very well written) so there are some actual judges – out there – who will stand up for justice! Yeah! And isn’t that the beauty of an (ideal) democratic system, “the right to be confronted by one’s accusers and the right to know the reasons for the outcome.” Because isn’t that the whole point of functioning in the open – to be fair and just! (Lots of exclamations cause when people stand up for justice – it makes me smile.)

  8. Andy Worthington says...

    Thanks, Tashi. It is great to have good news for a change, isn’t it? It reminds me of all those times from August 2008 to last July, when British judges did the right thing — first with Binyam Mohamed’s case, and then with the documents released as part of the civil claim for damages. And I’m so glad that the Tories’ first attempt to create a new culture of blanket secrecy has been so thoroughly rebuked. A great day indeed!

  9. Andy Worthington says...

    Virginia Simson wrote:

    I like this! Good day in Court.

  10. Andy Worthington says...

    Yes indeed, Virginia. There really is so little good news, and this is such a great example of judicial independence trumping the arrogance of politicians thinking they can have it all their own way. They should learn from it — and the contagion of actual respect for the law ought to spread across the Atlantic …

  11. Andy Worthington says...

    Virginia Simson wrote:

    In family therapy “circles” it is a well-known adage that a person or family is as sick as its secrets. And so too is a SOCIETY. I think this is probably a more gigantic step forward than we think. We now have a crack where the truth can come out. As usual, Andy, superb writing. TY, again, for all you do.

  12. Andy Worthington says...

    You’re welcome, Virginia. Thank you. And the truth is that there’s no excuse for American judges to have decided that a blanket ban on all discussion in court of torture and rendition — and who was actually responsible for it — should have been allowed under the “state secrets” doctrine. There’s a crack opened up, indeed, but I don’t know what sort of tool we can use to prise it open, and to shame, cajole or otherwise convince US judges that their duty is to the law and not to covering the asses of the damned torturers of the Bush administration.

  13. Andy Worthington says...

    Ghaliyaa Haq wrote:

    EXCELLENT comparison, Virginia! Also Andy: no – there is NO excuse for what American judges have done – it set new precedents (and frightening ones!) I honestly can’t see the US ever being the same again. We need a popular revolution now.
    ‎(there goes my second facebook account) ;-)

  14. Andy Worthington says...

    Saleh Mamon wrote:

    Now we should campaign for the same principle to be applied to SIAC, the secret court.

  15. Andy Worthington says...

    George Kenneth Berger wrote:

    I’m digging this, Andy. Found the energy and time.

  16. Andy Worthington says...

    Bob Whitten wrote:

    Effectively in any true democracy what is appropriate for one should apply to all and if one acts with honour always then there is nothing to be ashamed and secretive about.

  17. Andy Worthington says...

    Thanks, Ghaliyaa, Saleh, George and Bob.
    My apologies for the delay in replying. I was away, visiting my mum on her birthday.
    Saleh, yes, I agree absolutely. At least t has highlighted how inappropriate the use of secret evidence is, even if it has done nothing to undermine SIAC (as should happen).
    And George, I’m glad you found the energy.

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