Wednesday, May 05, 2010

A victory for open justice in the UK

Binyam Mohamed was kidnapped by the US, rendered to Morocco, tortured, and detained in Guantanamo for five years. Since his release last year, he has, along with other UK former Guantanamo victims, been pursuing a civil case against the British government, alleging complicity in their rendition, torture, and unlawful detention. The case has already forced the release of evidence showing that the UK security services were complicit in torture and that they lied to Parliament and the courts. The government has been trying to prevent further such revelations by forcing the case to be heard in secret, with vital evidence withheld from the claimants and seen only by "special advocates" forbidden to talk to them.

Today, the UK Court of Appeal delivered a simple verdict on that proposition: No:

"In our view, the 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," said Lord Neuberger.

"At least so far as the common law is concerned, we would accept the submission that this principle represents an irreducible minimum requirement of an ordinary civil trial.

"Unlike principles such as open justice, or the right to disclosure of relevant documents, a litigant's right to know the case against him and to know the reasons why he has lost or won is fundamental to the notion of a fair trial."

Its a stunning victory for open justice and the right to a fair trial - and not just in civil cases. Those same criticisms apply to the government's use of secrecy in criminal cases as well. And while there's statutory authority for secrecy in some terrorism cases, the law could be overturned or narrowed under the ECHR, on the same principles as used here.

As for Mohamed and his five fellow claimants, it is likely that the government will settle now to avoid having the truth of their abuse exposed in court. That's a shame, because that truth needs to be uncovered. But there are other avenues, and I am hoping there will be a full judicial enquiry into the actions of the security services in the "war on terror" - followed by criminal trials for those responsible.