British Government attempts to change Court of Appeals judgment after losing Binyam Mohamed secrecy case

February 10, 2010

In an extraordinary and disturbing development in the Binyam Mohamed case, it emerged that the British Government’s barrister wrote a note to one of the Court of Appeal judges in an attempt to manipulate the draft judgment.

This note was not copied to lawyers for all the other parties, which prevented them objecting. This morning, the court ordered that the other parties to the case now be allowed to respond, after which there will be a hearing as to whether the judgment will be restored to its original state.

Ironically, it was precisely the government’s attempt to tamper with a public judgment which led to the appeal today. Foreign Secretary David Miliband tried to remove seven paragraphs summarising Binyam Mohamed’s torture from his first Court judgment; the High Court ordered that they be published and today the Court of Appeal agreed. Now their own judgment has been subjected to interference.

Reprieve welcomes today’s decision, in which three senior Appeal judges (the Lord Chief Justice (Lord Judge), the Master of the Rolls (Lord Neuberger), and the President of the Queen’s Bench Division (Sir Anthony May)) dismissed the Government’s argument for secrecy and ruled that pressing public interest demanded that seven paragraphs summarising the treatment of Binyam Mohamed be published.

The paragraphs confirmed Binyam’s torture, referring to his sleep deprivation, the threat to ‘disappear’ him, the fact that ‘the interviews were having a marked effect on him and causing him significant mental stress and suffering’ and the fact that ‘the reports provided to the SyS made clear to anyone reading them that BM was subjected to the treatment that we have described and the effect upon him of that intentional treatment.’

The Foreign Secretary argued in the High Court that the publication of the seven paragraphs in their judgment would be damaging to national security. After his argument was dismissed in the High Court, it was heard by the Court of Appeals in December. Today the Foreign Secretary’s argument was again dismissed, partly because the information had been disclosed by the US courts in a judgment de-classified last month. The judges decided that the US-UK intelligence sharing relations would not be damaged by the English Court publishing information which a US court had already published.

The government has indicated that it will not appeal today’s judgment.

Clive Stafford Smith, Director of Reprieve, said:

“Our Government went to enormous lengths to prevent the British public from seeing this tiny fraction of Binyam’s story. They still refuse to admit that he was abused. Today’s decision is very welcome, but the paragraphs revealed are only the tip of the iceberg when it comes to British complicity in torture – much more is to come. Today’s judgment shows that our government’s attempts to hide shameful secrets behind ‘national security’ arguments are misguided and doomed to fail.”

Clare Algar, Executive Director of Reprieve, said:

“The British Government must stop trying to manipulate Court judgments – it is not the government’s place to tell the Court what to say, especially not behind closed doors.”

Case Background

1) The case began with Binyam Mohamed’s lawyers challenging the Foreign Secretary’s decision to refuse access to secret intelligence documents containing information about Binyam’s treatment, which would aid in his defence and help free him from Guanatanamo Bay. After three judgments by the High Court, the case eventually resulted in access for Binyam’s lawyers, which ultimately enabled his release from Guantanamo.

2) The judges were so shocked by what they saw in the secret documents that they invited the international media to seek access to the ‘secret’ sections of their first judgment in the case, in particular seven paragraphs which the Government insisted should be censored. The seven paragraphs summarise Binyam’s treatment whilst detained in Pakistan. They were written by the judges and drawn from 42 documents supplied by the British Intelligence Services to the court. 

3) Lawyers for the international media, including Associated Press, The Guardian and the New York Times, duly applied for access to the seven paragraphs on the grounds of pressing public interest. In a hearing on the matter, the government vigorously opposed this, citing the Bush Administration’s ‘threat’ to withdraw intelligence co-operation if the paragraphs were published.

4) The Court decided (in its fourth judgment on the case) that given the threats made by the US, it would not order publication of seven paragraphs.

5) It emerged via Foreign Secretary David Miliband’s statement in Parliament, and the policies of the Obama Administration, that the US ‘threat’ was no longer credible. Lawyers for Binyam Mohamed and the media called for the case to be re-opened.

6) The Court decided (in its fifth judgment on the case) to re-open its fourth judgment and ordered that the seven ‘secret’ paragraphs should be published. The stated that, on the evidence available to the Court, the alleged threat to national security was not a genuine or serious one. However, at the request of the Foreign Secretary and the security and intelligence services, four paragraphs of the Court’s reasoning in this fifth judgment were redacted, supposedly to protect national security.

7) In their sixth judgment, the Court addressed the Foreign Secretary’s redactions, indicating that Government had cynically abused the Public Interest Immunity system, simply to hide embarrassing information from the public. 

The judges took the opportunity to reveal further, previously secret, information about the content of the famous seven paragraphs describing the mistreatment of Binyam Mohamed by the CIA in Pakistan. They revealed that what was done to BM was analogous to the ‘enhanced interrogation techniques’ described in the declassified CIA torture memos. 

8) The Foreign Secretary appealed the fifth and sixth judgments. The appeal was expedited and was heard by the Court of Appeal (Lord Judge CJ, Lord Neuberger MR and May LJ) on 14, 15 and 16 December. The judgment was released today at 9.30am.

The seven redacted paragraphs

v) It was reported that at some stage during that further interview process by the United States authorities, BM had been intentionally subjected to continuous sleep deprivation. The effects of the sleep deprivation were carefully observed.

vi) It was reported that combined with the sleep deprivation, threats and inducements were made to him. His fears of being removed from United States custody and “disappearing” were played upon.

vii) It was reported that the stress brought about by these deliberate tactics was increased by him being shackled in his interviews

viii) It was clear not only from the reports of the content of the interviews but also from the report that he was being kept under self-harm observation, that the inter views were having a marked effect upon him and causing him significant mental stress and suffering.

ix) We regret to have to conclude that the reports provide to the SyS made clear to anyone reading them that BM was being subjected to the treatment that we have described and the effect upon him of that intentional treatment.

x) The treatment reported, if had been administered on behalf of the United Kingdom, would clearly have been in breach of the undertakings given by the United Kingdom in 1972. Although it is not necessary for us to categorise the treatment reported, it could readily be contended to be at the very least cruel, inhuman and degrading treatment by the United States authorities]

For more information and the full judgment please go to www.reprieve.org.uk of contact Katherine O’Shea at Reprieve’s Press Office katherine.oshea@reprieve.org.uk 020 7427 1099/ 07931592674. 

Notes for Editors:

Reprieve, a legal action charity, uses the law to enforce the human rights of prisoners, from death row to Guantánamo Bay. Reprieve investigates, litigates and educates, working on the frontline, to provide legal support to prisoners unable to pay for it themselves. Reprieve promotes the rule of law around the world, securing each person’s right to a fair trial and saving lives. Clive Stafford Smith is the founder of Reprieve and has spent 25 years working on behalf of people facing the death penalty in the USA. 

Reprieve’s current casework involves representing 33 prisoners in the US prison at Guantánamo Bay, working on behalf of prisoners facing the death penalty, and conducting ongoing investigations into the rendition and the secret detention of ‘ghost prisoners’ in the so-called ‘war on terror.’

ReprievePO Box 52742London EC4P 4WSTel: 020 7353 4640Fax: 020 7353 4641Email: info@reprieve.org.ukWebsite: www.reprieve.org.ukReprieve is a charitable company limited by guarantee; Registered Charity No. 1114900 Registered Company No. 5777831 (England) Registered Office 2-6 Cannon Street London EC4M 6YH; Chair: Lord Bingham; Patrons: Alan Bennett, Julie Christie, Martha Lane Fox, Gordon Roddick, Jon Snow, Marina Warner

For further information, please contact Katherine O’Shea at Reprieve’s Press Office katherine.oshea@reprieve.org.uk 020 7427 1099.

Notes for Editors:

Reprieve, a legal action charity, uses the law to enforce the human rights of prisoners, from death row to Guantánamo Bay. Reprieve investigates, litigates and educates, working on the frontline, to provide legal support to prisoners unable to pay for it themselves. Reprieve promotes the rule of law around the world, securing each person’s right to a fair trial and saving lives. Clive Stafford Smith is the founder of Reprieve and has spent 25 years working on behalf of people facing the death penalty in the USA.

Reprieve’s current casework involves representing 33 prisoners in the US prison at Guantanamo Bay, working on behalf of prisoners facing the death penalty, and conducting ongoing investigations into the rendition and the secret detention of ‘ghost prisoners’ in the so-called ‘war on terror.’