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Now you see it, now you don't
This week saw the government publish a highly controversial green paper proposing the use of secret evidence in compensation cases brought by alleged victims of torture.
By Paddy McGuffin, Morning Star
http://www.morningstaronline.co.uk/news/content/view/full/110999
This week saw the government publish a highly controversial green paper proposing the use of secret evidence in compensation cases brought by alleged victims of torture.
If the proposed changes to legislation go through then the courts would lose their power to order the intelligence services to disclose sensitive material.
The government is seeking to ban the use of the Norwich Pharmacal principle which allows courts to seek disclosure from parties who were not involved in actual torture but were "mixed up" or complicit in torture.
The green paper would also make it easier for the government to use "closed material proceedings" in civil cases and immigration tribunals in a move which would mean that those at the centre of the cases would not be able to hear security service evidence deemed to be too sensitive.
Under the proposals outlined by Justice Secretary Ken Clarke on Wednesday only a security-cleared lawyer known as a "special advocate" would be able to see sensitive documents in closed hearings and would be prevented from communicating the contents to their client.
Clarke said: "For justice to be done and the rule of law to be upheld, courts should be able to consider all of the facts of the case. At the moment, we are not always getting at the truth because some evidence is too sensitive to disclose in open court."
He claimed the proposals were "based around the principles of rigorous, impartial and independent justice, fairness and proportionality."
But human rights campaigners argue that, in effect, the green paper is an attempt to change the law to avoid the admission of wrongdoing.
A 2010 ruling by the Court of Appeal - upheld by the Supreme Court earlier this year - found that the judiciary did not have the power to order closed material procedure in civil cases.
The ruling related to a case brought by six former Guantanamo detainees Binyam Mohamed, Bisher Al-Rawi, Jamil El-Banna, Richard Belmar, Omar Deghayes and Martin Mubanga.
The six had alleged that they had been abducted and tortured by the US and other foreign states with the complicity of the British security services.
During lengthy legal proceedings the government repeatedly attempted to suppress damaging evidence and argued that parts of the case should be heard in secret.
In particular it attempted to prevent the publication of seven paragraphs from a 2008 Divisional Court judgement which related to the kidnap and torture of Mohamed, a British resident, by the US.
The paragraphs supported Mohamed's claim that Britain was aware of his mistreatment at the time yet did nothing to prevent it.
Then foreign secretary David Miliband had stated that disclosure of the information would damage intelligence sharing between the US and Britain.
But lawyers for Mohamed argued that the government was attempting to suppress "embarrassing and shaming" information regarding its role in their client's ordeal.
In February 2010 the Court of Appeal threw out the government's attempts to prevent the publication of the seven paragraphs.
One of the key paragraphs said the treatment of Mohamed "could readily be contended to be at the very least cruel, inhuman and degrading treatment ... by the United States authorities."
It was stated that the treatment which included sleep deprivation, threats and inducements, had caused him "significant mental stress and suffering."
The court added: "We regret to have to conclude that the reports ...made clear to anyone reading them that BM (Binyam Mohamed) was being subjected to the treatment that we have described and the effect upon him of that intentional treatment."
The court also rejected attempts by the government's legal representatives to suppress criticism of MI5 over Mohamed's torture in its draft judgement.
Three month later in May 2010 the Court of Appeal declared that the courts did not have the power to allow the introduction of secret evidence.
The government vowed to appeal the decision but in November 2010 settled out of court and paid undisclosed sums to the six and a number of others.
In July this year the Supreme Court threw out the government's appeal.
In his lead judgement Lord Dyson said the introduction of closed material procedure in ordinary civil claims would involve "an inroad into a fundamental common law right."
While Lord Kerr added that the use of secret evidence would be "at a stroke, the deliberate forfeiture of a fundamental right which ... has been established for more than three centuries."