Britain took another step towards secret justice yesterday [10/11/2009], when a judge ruled that the state can for the first time withold evidence from people involved in civil cases. The decision means claimants will be unaware of the evidence, the police, Government or security services are using to blacken their name as they contest a case for damages. Lawyers described Mr Justice Silber's ruling as a 'constitutional outrage' that overturns 'the whole history of the fundamental principle that both sides must be on an equal footing'.
His finding concerns claims lodged by Binyam Mohamed and six other residents previously detained at the U.S. camp at Guantanamo Bay in Cuba, who allege Britain was complicit in their torture by overseas agents.
The intelligence services want their evidence disputing the claimes to be available only in secret hearings, using a 'special advocate' system, which has so far been restricted to immigration and terrorist control order cases. It means the information is kept hidden from the individuals involved on the grounds of 'national security'.
Only a lawyer appointed on their behalf sees the intelligence, and he/she is not able to discuss it with the accused. But despite these 'Kafkaesque restrictions never being permitted in a civil court before, Mr Justice Silber ruled in the High Court Yesterday [18/11/2009], that there was no reason in law why a 'closed' court procedure should not be employed in a civil damages case.
The seven - Mohamed, Bisher Al Rawi, Jamil El Banna, Richard Belmar, Omar Deghayes, Moazzam Begg and Martin Mubanga - had all wanted their case to be heard under the 'public interest immunity' proceedure. This prevents evidence and allegations being used as evidce by either side if the disclosure could reveal sensitive sources or pose a threat to national security.
The seven are suing the government for unlawful acts and conspiracy. They deny any involvement in terrorism and allege that MI5 and MI6 aided and abetted their unlawful imrisonment and 'extraordinairy rendition' to various places, including Guantanamo Bay, where they were subjected to inhumane treatment and to torture.
The Government and security services have denied the claims. The case wil now go to the appeal courts. In addition to cases at the Special Immigration appeals Commission and Conrol order hearings, the Government recently passed a law to allow inquests to be replaced with secret investigations. The family courts also remain shrouded in secrecy.
Former shadow home secretary David Davis said yesterday's ruling was part of a very worring 'slipery slope' towards secret hearings. He added, "It may be a victory for the intelligence services, but it is an affront to open justice."
Louise Christian, a lawyer for some of the claimants, said the ruling over-turned 'the whole history of the common law and the fundamental principle that both sides must be on an equal footing'. She added: "The judge has sanctioned what would be a constitutional outrage."
Tim Hancock, of Amnesty International, said: "This ruling means alleged complicity by the UK authorities is likeley to remain hidden."
A Home Office spokesman welcomed the court's decision, saying that in closed proceedings special advocates representing the claimandts would have access to the sensitive material. "We believe this strikes the right balance - protecting the wider public interest and ensuring national security is not harmed whilst allowing cases to be tried fairly," he added.
Story taken from the Daily Mail 19/11/2009