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UK appeals court rejects use of secret evidence in detainee torture case

By Daniel Richey

[JURIST] The England and Wales Court of Appeal [official website] ruled [judgment text] Tuesday that state intelligence agencies cannot use secret evidence in their defense against abuse accusations by Binyam Mohamed [BBC profile; JURIST news archive] and several other UK residents who were held at Guantanamo Bay [JURIST news archive]. The judgment overturned a November ruling [judgment text; JURIST report] of a UK high court, which held that defendants MI5 and MI6 [official websites] could utilize a "closed material procedure" that would allow them to rely on certain evidence without disclosing it to opposing counsel or committing it to the public record. The procedure, typically employed in criminal proceedings, is designed to allow concealment of evidence where disclosure would cause "real harm to the public interest," harm the agencies argued would result if they were compelled to publicly adduce state intelligence as part of their defense. Without categorically denying the legitimacy of the procedure, the court questioned whether it could ever be appropriate for the purpose of civil litigation:

[T]he principle that a litigant should be able to see and hear all the evidence which is seen and heard by a court determining his case is so fundamental, so embedded in the common law, that, in the absence of parliamentary authority, no judge should override it, at any rate in relation to an ordinary civil claim, unless (perhaps) all parties to the claim agree otherwise ... this principle represents and irreducible minimum requirement of an ordinary civil trial.

UK civil rights group Liberty [advocacy website] praised the ruling [press release], saying, "the Court of Appeal has sent the strongest signal to the security establishment that it cannot play fast and loose with the rule of law."

In February, the England and Wales Court of Appeal ruled [JURIST report] that the government must disclose several paragraphs [text] detailing the allegations of Mohamed's mistreatment that were previously omitted from an earlier ruling in his criminal trial. Mohamed was returned to the UK in 2009, four months after charges against him were dismissed [JURIST reports]. He had held at Guantanamo Bay for four years on suspicion of conspiracy to commit terrorism [JURIST report].

Full post as published by JURIST - The Paper Chase on May 04, 2010 (boomark / email).