Binyam Mohamed al-Habashi (BM), a UK resident and Ethiopian national, was arrested in Pakistan in April 2002, transferred to Morocco, taken to a secret US base at Bagram, Afghanistan, in May 2004, and to Guantanamo Bay that September. He claimed that Pakistani, Moroccan and US agents tortured him, extracting self-incriminating statements which were false. On the basis of these, he was charged with offences carrying the death penalty. In 2008, the Convening Authority of US Military Commissions was due to decide whether BM should stand trial before a Military Commission. The US Military Prosecutor refused to provide him with classified material which could have supported his case, or to offer it to the Convening Authority.
BM sought disclosure of 42 relevant documents from the UK's Government. When the Foreign Secretary rejected his request, BM brought an action relying on the principle that a third party who has been involved (innocently or otherwise) in allegedly unlawful action by somebody else should disclose relevant information in the third party's possession to the victim (Norwich Pharmacal v. Commissioners of Customs and Excise [1974] A.C. 133). He alleged that the UK's Security Service (Sy.S.) and Secret Intelligence Service (SIS) had known that he was being held and mistreated and had participated in his interrogation.
The first question for the Administrative Court (Thomas L.J. and Lloyd Jones J.) in R (Binyam Mohamed) v. Secretary of State for Foreign and Commonwealth Affairs [2008] EWHC 2048 (Admin) (hereafter “No. 1”; subsequent judgments are referred to by their number in the sequence) was whether the Sy.S. and SIS had been sufficiently involved in wrongdoing by foreign agents to bring the Norwich Pharmacal principle into play. The court found that UK agencies knew that BM was being detained, visited him in detention, suspected that he was being mistreated, did nothing to improve his treatment, and asked foreign agents to put certain questions to him. This sufficiently linked the UK's Government to arguably unlawful conduct to activate the Norwich Pharmacal principle: [63]–[68], [71], [87]–[91]. Whilst Norwich Pharmacal had previously only been used to allow claimants to identify wrongdoers, there was no reason why someone facing criminal charges should not be able to obtain information needed to have a fair trial: [95], [107], [126].
The next issue concerned the possible scope of an order. Earlier decisions had established that a third party's duty of disclosure is not as far-reaching as that of a party to proceedings. On the other hand, orders were not limited to information showing the wrongdoer's identity. The court decided that an order could be as wide as necessary to serve the ends of justice on the facts of the case, providing that it did not impose a disproportionate burden bearing in mind the cost and effort involved in complying with it. In the instant case, a disclosure order could cover any information relating specifically to BM, though not general information about rendition or torture: [129], [133]–[134], [138].
The fate awaiting BM if convicted, the uncooperative stance of the American prosecutor, and the fact that the UK's Government had already found the relevant material in its possession, made it appropriate to order disclosure, subject to deciding the effect of a public interest immunity (PII) certificate in which the Foreign Secretary argued that disclosing information supplied in confidence by US agencies would jeopardise the willingness of foreign agencies to share information in the future: [148]–[149].
Subsequently, concessions made by US agencies, dismissal of the charges against BM, and his eventual release made an order unnecessary. By 2009, only an incidental issue remained: whether to restore to the open judgment in No. 1 seven redacted paragraphs concerning whether BM had been tortured and whether Sy.S. or SIS had known about it. The court decided in No. 5 [2009] EWHC 2549 (Admin.) that the findings should be published in a revised version of the open judgment in No. 1 notwithstanding the Foreign Secretary's PII certificate. On seeing a draft of the judgment in No. 5, the Foreign Secretary raised security concerns, but in No. 6 [2009] EWHC 2973 (Admin) the court dismissed them.
The Foreign Secretary appealed against the decisions in No. 5 and No. 6. The Court of Appeal dismissed the appeal: [2010] EWCA Civ 65, [2010] 3 W.L.R. 554, 562. However, Lord Neuberger and Sir Anthony May, despite describing some of the Foreign Secretary's assertions as “unconvincing” ([166]) and being “strongly sceptical about the notion that there would in fact be a reduction in the supply of information to the Sy.S.” ([172] per Lord Neuberger), thought that the Administrative Court had given insufficient weight to the PII certificate. The principle of open justice clashed with the principle “that material should not generally be published, if its publication would give rise to a serious risk of damaging consequences to national security; and that the court should not substitute any view of its own for that of the [responsible Minister], unless it is persuaded that there is no proper basis for that view” ([262] per Sir Anthony May). The principles were finely balanced, but at the time of No. 5 and No. 6 the balance favoured secrecy. Nevertheless, they dismissed the appeal because, after the date of the judgment in No. 6, a US federal court had found as a fact in other litigation that information from BM had been extracted by torture, thereby enhancing the public interest in publishing the Administrative Court's factual conclusions on the matter ([295]). The Administrative Court's revised open judgments in No. 1 and No. 5 were therefore published.
But there was a further twist. The Court of Appeal had distributed its draft judgment to the parties. Counsel for the Foreign Secretary wrote to the court suggesting that paragraph [168] in Lord Neuberger's draft judgment had levelled criticisms at the Sy.S. which were not supported by the evidence. Lord Neuberger removed the criticism from his judgment. However, counsel for BM had not received the letter in time to register objections. The court therefore held a further hearing, after which Lord Neuberger wrote a third, final, version of paragraphs [168] to [170] of his judgment, restoring some criticisms but explaining their limits: R. (Mohamed) v. Secretary of State for Foreign and Commonwealth Affairs (No. 2) (Guardian News and Media and others intervening) [2010] EWCA Civ 158, [2010] 3 W.L.R. 554, 546.
This is not the end of the story. BM is suing the Government, and the disclosures have spawned a police investigation. That will be followed by a public inquiry into the UK's involvement in the mistreatment of detained terrorism suspects abroad: H.C. Deb., vol. 513, col. 175 et seq. (6 July 2010). It will be some time before the impact of the “special relationship” in the “war on terror” on attitudes and behaviour in the Sy.S., SIS, and Government is laid to rest.
