Author: By Mark Hughes
In a decision which could have far-reaching legal implications, Mr Justice
Silber ruled that agencies such as MI5 and MI6 could rely on secret evidence
in their defence, if disclosing the evidence would compromise national
The judge said there was no reason in law why a ?closed? court procedure
should not be employed in a civil claim for damages, even though it had
never been used in such a case before.
He made his decision after objections by seven British citizens and residents
who were incarcerated and allegedly tortured at Guantanamo Bay. But he
stressed that he was deciding a point of principle, and made no decision on
whether the procedure should be adopted in the pending compensation claim by
the seven former detainees against MI5, MI6 and their Government
The claimants? lawyers will now take the preliminary legal issue as a matter
of urgency to the Court of Appeal, and the case could go to the Supreme
Court for a final ruling. Some members of the legal team have already said
that secret evidence being used would give rise to accusations of a cover-up.
The seven are Binyam Mohamed, Bisher Al Rawi, Jamil El Banna, Richard Belmar,
Omar Deghayes, Moazzam Begg and Martin Mubanga.
They deny any involvement in terrorism, and allege that MI5 and MI6 were
guilty of aiding and abetting their unlawful imprisonment and extraordinary
rendition to various locations around the world, including Guantanamo Bay,
where they were subjected to inhuman and degrading treatment and torture.
Their damages claims are contested by the intelligence services and by
Attorney General Baroness Scotland, the Foreign Office and the Home Office.
The judge said the ?closed material? procedure entitled the defendants not to
disclose matters to the claimants or their lawyers where it would not be in
the interests of national security, the international relations of the UK,
the detection and prevention of crime or in any other circumstances where it
was likely to harm the public interest.
Instead, disclosure would be made to ?special advocates? who would then be
able to take instructions from the claimants and, if necessary, seek to
persuade the court that disclosure to them was appropriate.
Where material could not be disclosed, the special advocate would test and
probe the material and he or she would conduct the case on behalf of the
claimant. A court adopting the closed procedure would have an obligation to
ensure that the human rights of the claimants were preserved.
In the present case, the claimants argued that a public interest immunity
(PII) test should be applied, balancing the public interest in
non-disclosure against the interest in the administration of justice. If a
document was covered by PII, it could not be used by either party.
The judge said the higher courts had held on many occasions that the courts
had power to appoint a special advocate in exceptional circumstances and as
a last resort. He concluded that the use of closed material in civil damages
claims was not precluded by any previous ruling or by any procedural rule.
Corinna Ferguson, legal officer for human rights group Liberty, said: ?It is
disappointing that the court has allowed the obsession with secrecy to creep
into the mainstream civil justice system. The Court of Appeal will surely
put this right so we can finally discover the truth about British complicity
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