The Binyam Mohamed Case - further

There has been intensive media coverage of the Court of Appeal judgment in R (Mohamed) v Secretary of State for Foreign and Commonwealth Affairs [2010] EWCA Civ 65. .  Also, lawyers for leading British and American media organisations have approached the Court of Appeal asking that a paragraph, seemingly included in their draft judgment be reinstated.  This move has come after the disclosure that Mr Jonathan Sumption QC (for the Foreign Secretary) wrote to the judges expessing concern at its wording.  This move angered other parties to the case and, it seems, breached an ancient rule that one party to a case must not communicate with the judges without informing the other parties.  [A point of "natural justice" or fairness surely?].  See The Times 16th February.  A hearing was held today and a judgment on the point is expected very soon.

In a further article in The Times it is argued by David Davis MP that our courts must do better at standing up to bullies.  He goes further and argues for an Inquiry into whole Binyam Mohamed issue.  Maybe, but that takes one back to the problematical Inquiries Act 2005 which gives Ministers considerable powers of control over any inquiry they set up.  It is debatable whether such an inquiry would satisfy public concern.

It is worth noting a few things about the Binyam Mohamed Judgment.  (1) - it was heard by a Court of Appeal comprising the Lord Chief Justice, the Master of the Rolls and the President of the Queens Bench Division.  That is a powerful (or as lawyers say "strong") court.  (2) - it is a very thoughtful and detailed judgment which is highly respectful of the rights of the executive to make decisions.  (3) - it decides that it is the court which decides whether a government claim of serious damage to national security requires parts of a judgment to be left out.  (4) - the principle was upheld that intelligence material provided by another country should remain confidential to the country providing it and should not be disclosed by the receiving country without agreement of the provider.  (5) - The United States District Court for the District of Columbia had decided Farhi Saeed Bin Mohamed v Barak Obama (19th November 2009).  (6) - In that case it had been stated that the US government did not challange or deny the accuracy of the complainant's grievance.  (7) - in those circumstances there was no appreciable risk to national security.  (8) - were it not for the US court's judgment, there would not have been justification to run a risk (even a "pretty slender risk" - per Lord Neuberger MR) that national security might be compromised.

Hence, but for the US court having effectively made the whole issue public, the Court of Appeal would have upheld the Foreign Secretary's claim.  This is perhaps another Spycatcher moment?  As Sir Anthony May put it - "... the decision of the US court shifted the already fine balance in the present case against the exclusion of the paragraphs.  The Foreign Secretary's case now sought to defend a principle entirely devoid of factual content on which to hang it."