Government banned from giving evidence in secret in Guantanamo damages case
- Judges ban Government from giving evidence in secret in Guantanamo damages case
By James Slack
Judges yesterday delivered another humiliating rebuke to David Miliband by striking down his attempts to hear a damages claim by six ex-Guantanamo Bay residents in secret.
The Court of Appeal ruled that allowing the Government to use secret evidence to defend itself against the men's allegations of torture and ill-treatment would undermine the `most fundamental principles' of fairness.
Ministers, led by the Foreign Secretary, must now decide whether to surrender to the men's claims for tens of thousands of pounds in compensation or fight them on a significantly weakened basis, without the use of secret documents.
Secret evidence: Binyam Mohamed, left, and Jamil El Banna are two of the former Guantanamo Bay detainees seeking to sue the Government for complicity in torture
The men who include Binyam Mohamed, the British resident who claims the security services were complicit in his torture overseas had previously been told that parts of MI5 and MI6's defence could be kept secret.
But the Court of Appeal yesterday said it would `take a stand' against secrecy that would undermine the `most fundamental principles of common law'.
The detainees were held in foreign prisons at the instigation of U.S. forces.
They ended up at Guantanamo Bay in Cuba before the British government negotiated their return to the UK.
The Master of the Rolls Lord Neuberger, sitting with two other senior Court of Appeal judges, said no damages hearing could be heard in secret because the courts had not been empowered by Parliament to withhold evidence from the claimants.
He added: `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.'
It is the second major blow delivered by Lord Neuberger to Mr Miliband who tried desperately to persuade the court to withhold its withering assessment of the security services' alleged role in the torture of Mohamed.
Damages claim: Omar Deghayes, left, and Martin Mubanga say they suffered torture and degrading treatment
Resisting an unprecedented bullying campaign by the Government against the courts, the judge released a damning paragraph earlier this year which said denials by the Security Service of knowing about any ill treatment of U.S. terror suspect detainees `does not seem to have been true' in Mohamed's case.
The latest ruling relates to the way secret evidence can be used in civil cases.
Currently, control order hearings and some deportation cases hear some evidence in secret, such as MI5 intelligence reports.
The suspect is not allowed into these hearings but a special advocate argues on their behalf behind closed doors.
The Government said this second procedure should be permitted in the six men's damages claim, saying national security could be protected while still allowing someone to argue the men's corner.
But in their judgment, Lord Neuberger, Lord Justice Maurice Kay and Lord Justice Sullivan said senior judges had to `take a clear stand'.
Corinna Ferguson, a lawyer at the campaign group Liberty, said: `Yet again, 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.'
A Government spokesman said it was considering the judgment. It could appeal to the Supreme Court.
The six claimants are Bisher al-Rawi, Jamil el Banna, Richard Belmar, Omar Deghayes, Mohamed and Martin Mubanga.
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