The ripple effect from Guantanamo Bay to the English courts

Review: The Ripple Effect: Guantanamo Bay in the United Kingdom Courts” by CRG Murray, International Law Review Online Companion, April 2010 – Read article

A new academic article by C.R.G Murray at Newcastle University analyses the interesting and important line of case-law arising from claims by men detained in Guantanamo Bay. The case-law has involved many issues of a politically sensitive nature and generated much media coverage and pressure on the British Government. The ripple effects from the detentions have led to a series of important judgments.

Murray’s article reviews important case-law arising from detention at Guantanamo Bay and the impact it has had on the decisions reached by the courts. Murray concludes that the case-law demonstrates two major ‘ripple effects’: (1) judicial review has been used to press the British Government into being more active in opposing detentions at Guantanamo Bay; (2) where serious human rights breaches are in issue, the courts have been more willing to disregard historic concepts of comity between courts in different jurisdictions and give their own view of the correct interpretation of law for the benefit of appellate courts in the United States.

Even more secret evidence trouble for Government in Al Rawi case

Binyam Mohamed

Al Rawi & Ors v the Security Service & Ors [2010] EWHC 1496 (QB) (21 June 2010)  – Read judgment

The Government has received another in an increasingly long line of blows in the Al Rawi & Others foreign torture case, with Mr Justice Silber ordering a closed hearing to see whether two key security service documents are to be disclosed to the claimants. If the Government chooses not to claim public interest immunity, which is unlikely, the documents will be disclosed immediately.

The compensation claim involves six claimants who were detained at various locations, including Guantanamo Bay and Bagram in Afghanistan, alleging various forms of mistreatment. They claim to have been subjected to false imprisonment, trespass to the person, conspiracy to injure, torture, breach of contract, negligence, misfeasance in public office and breaches of their rights under the Human Rights Act 1998.

The Government has recently ordered a public inquiry into the security services’ alleged complicity in torture, but this is not likely to start until after the Al Rawi claims are resolved.

More secret evidence trouble for Government in foreign torture case

Binyam Mohamed

Al Rawi & Ors v Security Service & Ors [2010] EWCA Civ 482 (04 May 2010) – Read judgment

The Court of Appeal has roundly rejected a request by the Government that evidence in a high-profile torture compensation claim should be kept secret from the public. It has also used the opportunity to emphasise that the interests of open justice would be serious compromised if this kind of request were ever granted in a civil case, even in very limited circumstances.

This compensation claim involves six claimants who were detained at various locations, including Guantanamo Bay and Bagram in Afghanistan, alleging various forms of mistreatment.

The judgment is the latest in a series of reverses suffered by the Government in matters involving Binyam Mohamed and others in relation to their alleged torture. In February the Court of Appeal ordered it to release an unredacted version of an email relating to the “cruel, inhuman and degrading” treatment which Binyam Mohamed received during questioning by American authorities.

In the latest judgment, the Court of Appeal rejected the previous judgment of Mr Justice Silber in the High Court. The issue was whether the judge was right to conclude that it is open to a court, in the absence of statutory authority, to order a closed material procedure for part (or, conceivably, even the whole) of the trial of a civil claim for damages in tort and breach of statutory duty.

The appeal judges concluded that it was not open for a court to order a closed material procedure, stating that:

Government back in court over foreign torture allegations

The case of The Queen on the application of Evans v Secretary Of State For Defence is continuing today in the Royal Courts of Justice in London, before Lord Justice Richards and Mr Justice Cranston.

Maya Evans, an activist, is brining a judicial review against the Ministry of Defence  in respect of the British Army’s detainee transfer policy in Afghanistan. It is alleged that British forces knew of the torture risks when handing over prisoners to the Afghan security services.

This is the latest in a series of cases where the Government have been criticised in the courts for defence policies in Iraq and Afghanistan. In 2007, the House of Lords (the old Supreme Court) in Al-Skeini effectively opened the door to such claims by foreign nationals by holding that the Human Rights Act applies outside of the UK.

The most notable recent example is the Binyam Mohamed case, where the Court of Appeal heavily criticised the security services. Similar issues in relation to secret evidence appear to have arisen in Evans, with The Guardian reporting:

So concerned is the Ministry of Defence about the challenge to the practice, that it is insisting that evidence it had passed to her lawyers must now be suppressed.

As a result, skeleton argument from her lawyers – a document consisting of an outline of the case – includes a number of passages blacked out at the insistence of the MoD.

Following one long excised passage, the document revealed in court today reads: “The lessons from these shocking events is … investigation by the NDS [Afghanistan’s National Directorate of Security] is obviously incapable of providing any satisfaction of the UK’s human rights obligations.”

Read more:

• Our posts on the Binyam Mohamed litigation can be found here, here, and here
• Our case comment on R (Mazin Mumaa Galteth Al Skeini and others) v Secretary of State for Defence

Court of Appeal orders Government to release Binyam Mohamed "torture" email

Binyam Mohamed

Read our case comment here

The Government has lost its appeal (see the BBC report) against the Divisional Court’s decision to order it to release an unredacted version of an email relating to the “cruel, inhuman and degrading” treatment which Binyam Mohamed received during questioning by the Americans. The Foreign and Commonwealth Office (FCO) had previously argued that to release the full email would damage national security. The full email can now be read on the FCO website.