The Foreign Secretary appealed against a decision of the Divisional Court to include seven short redacted paragraphs of its judgment notwithstanding the fact that the Foreign Secretary had stated in more than one Public Interest Immunity Certificate that such publication would lead to a real risk of serious harm to the national security of the UK:  The Queen on the application of Binyam Mohamed v The Secretary of State for Foreign & Commonwealth Affairs [2010] EWCA Civ 65

An exceptionally strong Court of Appeal (Lord Judge CJ, Lord Neuberger MR and Sir Anthony May, President QBD) rejected the appeal and the Foreign Secretary’s contention that disclosure of the paragraphs would damage intelligence sharing with the United States.

If the redacted paragraphs contained genuinely secret material which would itself damage the national interest, the Court may have ruled differently.  But it considered the arguments in favour of disclosing the redacted paragraphs compelling.  There was no secret about the treatment to which Mr Mohamed was subjected while in the control of the US authorities.  Those facts were established by the judgment of a United States court.

As is usual, the Court of Appeal circulated its draft judgment to Counsel before it was officially published.  Whilst agreeing with each other’s overall conclusions, the judge’s each drafted separate judgments with their own comments.  It appears that Lord Neuberger of Abbotsbury MR said that MI5 operated a culture of suppression and disregard for human rights, that it deliberately misled a parliamentary committee and that its assurances could not be trusted.  Jonathan Sumption QC, leading Counsel for the Foreign Secretary, wrote to the court before publication asking for those comments to be amended and describing them as ’sweeping criticisms not based on evidence which constituted an exceptionally damaging criticism of the good faith of the security service.’  Lord Neuberger’s criticism was subsequently amended in the published version of the judgment.

This has, unsurprisingly perhaps, led to media criticism of the Foreign Secretary for attempting to ‘nobble’ the court and suppress its criticism.  But these comments are both uninformed and unfair.  The real difficulty lies in the fact that our judges still insist on giving multiple-judgment decisions rather than agreeing a joint draft which they (or the majority of them) can sign up to and which will become the judgment of the court.  If we followed the style of the European Court of Justice which delivers a single judgment representing the views of the majority, excesses of this nature could be avoided and the integrity of the court safeguarded.

Tags: President; MI5; Jonathan Sumption QC; European Court of, The Queen on the application of Binyam Mohamed v The Se