Training | 2009.11.18
Security agencies can withhold evidence
Court ruling with widespread implications for open justice condemned by lawyer as \'outrage\'
MI5, MI6 and the police will be able to withhold evidence from defendants and their lawyers in civil cases for the first time, the high court ruled today.
In a move that has widespread implications for open justice, Mr Justice Silber agreed with the security and intelligence agencies that "secret government information" could remain hidden from individuals who are suing them.
Currently, under what is known as the "public interest immunity" procedure, evidence and allegations deemed so sensitive that they cannot be revealed are not used as evidence at all by either side.
Silber\'s ruling was prompted by objections by seven British citizens and residents who were incarcerated, ill-treated and allegedly tortured at Guantánamo Bay.
They are suing the government for unlawful acts and conspiracy. The government and its agents have denied the claims.
In court documents government lawyers admitted: "The security service [MI5] interviewed a number of these detainees and provided questions to be put to detainees who were being interviewed by others.
"The security service undertook this role because, as the UK agency with the most experience of running intelligence-led counter-terrorist investigations in the UK, it was best placed to understand and utilise the information received about threats against the UK or involving British nationals."
They added: "At times, these interviews were facilitated by SIS [MI6] officers, and on occasions SIS officers conducted interviews themselves."
The documents reveal that British intelligence officers interrogated Martin Mubanga, a Briton, in Guantánamo at least five times while he was being held in leg cuffs.
"It is admitted that, during all security service interviews at Guantánamo Bay, Mr Mubanga was restrained with plastic leg cuffs," a document said.
Although he paved the way for evidence and allegations to be kept secret in a civil case on the grounds of national security, Silber was not asked to consider the particular fact of this case.
However, he said it raised what he called a "stark question of law" and agreed with the claimants that an appeal "should be expedited".
Louise Christian, a lawyer for some of the claimants, said after the ruling: "The judge has sanctioned what would be a constitutional outrage, allowing government to rely on secret evidence in the ordinary civil courts.
"[He has done this] by treating the issue as if it was a purely technical legal matter, not a question of overturning the whole history of the common law and the fundamental principle that both sides must be on an equal footing.
"By giving the government such an advantage in civil litigation, the court would overthrow the very essence of the rule of law."
Christian said she was "confident that the court of appeal will not allow such a massive erosion of the rights of the individual to hold government to account, particularly on the all-important issue of complicity in torture".
For more information, please visit
http://www.guardian.co.uk/uk/2009/nov/18[...]-secret-government-information
