Secret evidence blow hits Guantanamo seven

Britain’s security services should be able to withold evidence from claimants in civil court cases, the High Court ruled today.



In a decision which could have far-reaching legal implications, Mr Justice Silber ruled that agencies such as MI5 and MI6 could rely on secret evidence in their defence, if disclosing the evidence would compromise national security.

The judge said there was no reason in law why a “closed” court procedure should not be employed in a civil claim for damages, even though it had never been used in such a case before.

He made his decision after objections by seven British citizens and residents who were incarcerated and allegedly tortured at Guantanamo Bay. But he stressed that he was deciding a point of principle, and made no decision on whether the procedure should be adopted in the pending compensation claim by the seven former detainees against MI5, MI6 and their Government departments.

The claimants’ lawyers will now take the preliminary legal issue as a matter of urgency to the Court of Appeal, and the case could go to the Supreme Court for a final ruling. Some members of the legal team have already said that secret evidence being used would give rise to accusations of a cover-up.

The seven are Binyam Mohamed, Bisher Al Rawi, Jamil El Banna, Richard Belmar, Omar Deghayes, Moazzam Begg and Martin Mubanga.

They deny any involvement in terrorism, and allege that MI5 and MI6 were guilty of aiding and abetting their unlawful imprisonment and extraordinary rendition to various locations around the world, including Guantanamo Bay, where they were subjected to inhuman and degrading treatment and torture.

Their damages claims are contested by the intelligence services and by Attorney General Baroness Scotland, the Foreign Office and the Home Office.

The judge said the “closed material” procedure entitled the defendants not to disclose matters to the claimants or their lawyers where it would not be in the interests of national security, the international relations of the UK, the detection and prevention of crime or in any other circumstances where it was likely to harm the public interest.

Instead, disclosure would be made to “special advocates” who would then be able to take instructions from the claimants and, if necessary, seek to persuade the court that disclosure to them was appropriate.

Where material could not be disclosed, the special advocate would test and probe the material and he or she would conduct the case on behalf of the claimant. A court adopting the closed procedure would have an obligation to ensure that the human rights of the claimants were preserved.

In the present case, the claimants argued that a public interest immunity (PII) test should be applied, balancing the public interest in non-disclosure against the interest in the administration of justice. If a document was covered by PII, it could not be used by either party.

The judge said the higher courts had held on many occasions that the courts had power to appoint a special advocate in exceptional circumstances and as a last resort. He concluded that the use of closed material in civil damages claims was not precluded by any previous ruling or by any procedural rule.

Corinna Ferguson, legal officer for human rights group Liberty, said: “It is disappointing that the court has allowed the obsession with secrecy to creep into the mainstream civil justice system. The Court of Appeal will surely put this right so we can finally discover the truth about British complicity in torture.”

Suggested Topics
Start your day with The Independent, sign up for daily news emails
PROMOTED VIDEO
Have you tried new the Independent Digital Edition apps?
ebooks
ebooksA special investigation by Andy McSmith
Latest stories from i100
Have you tried new the Independent Digital Edition apps?
Independent Dating
and  

By clicking 'Search' you
are agreeing to our
Terms of Use.

iJobs Job Widget
iJobs General

Tradewind Recruitment: Phase Co-ordinator for Foundation and Key Stage 1

Negotiable: Tradewind Recruitment: Phase Co-ordinator for Foundation and Key S...

Tradewind Recruitment: SEN Teacher

Negotiable: Tradewind Recruitment: SEN Teacher We have a fantastic special n...

Tradewind Recruitment: History Teacher

Negotiable: Tradewind Recruitment: My client is an 11-18 all ability co-educat...

Tradewind Recruitment: Year 6 Teacher

£100 - £150 per day: Tradewind Recruitment: Year 6 Teacher Birmingham Jan 2015...

Day In a Page

Isis hostage crisis: The prisoner swap has only one purpose for the militants - recognition its Islamic State exists and that foreign nations acknowledge its power

Isis hostage crisis

The prisoner swap has only one purpose for the militants - recognition its Islamic State exists and that foreign nations acknowledge its power, says Robert Fisk
Missing salvage expert who found $50m of sunken treasure before disappearing, tracked down at last

The runaway buccaneers and the ship full of gold

Salvage expert Tommy Thompson found sunken treasure worth millions. Then he vanished... until now
Homeless Veterans appeal: ‘If you’re hard on the world you are hard on yourself’

Homeless Veterans appeal: ‘If you’re hard on the world you are hard on yourself’

Maverick artist Grayson Perry backs our campaign
Assisted Dying Bill: I want to be able to decide about my own death - I want to have control of my life

Assisted Dying Bill: 'I want control of my life'

This week the Assisted Dying Bill is debated in the Lords. Virginia Ironside, who has already made plans for her own self-deliverance, argues that it's time we allowed people a humane, compassionate death
Move over, kale - cabbage is the new rising star

Cabbage is king again

Sophie Morris banishes thoughts of soggy school dinners and turns over a new leaf
11 best winter skin treats

Give your moisturiser a helping hand: 11 best winter skin treats

Get an extra boost of nourishment from one of these hard-working products
Paul Scholes column: The more Jose Mourinho attempts to influence match officials, the more they are likely to ignore him

Paul Scholes column

The more Jose Mourinho attempts to influence match officials, the more they are likely to ignore him
Frank Warren column: No cigar, but pots of money: here come the Cubans

Frank Warren's Ringside

No cigar, but pots of money: here come the Cubans
Isis hostage crisis: Militant group stands strong as its numerous enemies fail to find a common plan to defeat it

Isis stands strong as its numerous enemies fail to find a common plan to defeat it

The jihadis are being squeezed militarily and economically, but there is no sign of an implosion, says Patrick Cockburn
Virtual reality thrusts viewers into the frontline of global events - and puts film-goers at the heart of the action

Virtual reality: Seeing is believing

Virtual reality thrusts viewers into the frontline of global events - and puts film-goers at the heart of the action
Homeless Veterans appeal: MP says Coalition ‘not doing enough’

Homeless Veterans appeal

MP says Coalition ‘not doing enough’ to help
Larry David, Steve Coogan and other comedians share stories of depression in new documentary

Comedians share stories of depression

The director of the new documentary, Kevin Pollak, tells Jessica Barrett how he got them to talk
Has The Archers lost the plot with it's spicy storylines?

Has The Archers lost the plot?

A growing number of listeners are voicing their discontent over the rural soap's spicy storylines; so loudly that even the BBC's director-general seems worried, says Simon Kelner
English Heritage adds 14 post-war office buildings to its protected lists

14 office buildings added to protected lists

Christopher Beanland explores the underrated appeal of these palaces of pen-pushing
Human skull discovery in Israel proves humans lived side-by-side with Neanderthals

Human skull discovery in Israel proves humans lived side-by-side with Neanderthals

Scientists unearthed the cranial fragments from Manot Cave in West Galilee