British Government seeks to ban legal principle which led to release of torture evidence in Binyam Mohamed case
October 19, 2011
Today the Coalition Government published a Justice and Security Green Paper proposing major reforms to how government and intelligence agents supply evidence to British courts. The proposals are highly dangerous in terms of how they affect the British legal system and the position of victims of torture and abuse.
The reforms are a response to the Binyam Mohamed case and others like it, in which the security services fought hard to suppress evidence of torture. Despite being strongly critical of British complicity in torture while in opposition, the current Government is now seeking to close down the very legal technique through which the scandal became public.
By banning the use of Norwich Pharmacal, a legal principle which forces the disclosure of evidence that the government is ‘mixed up’ in wrongdoing such as torture, and simultaneously imposing a closed court system for tort claims, the Government is cutting off the mechanism by which torture complicity may be revealed.
Had the proposed ban been in place ten years ago, the evidence of torture that freed Binyam Mohamed from Guantanamo Bay would never have been revealed, either to Binyam’s lawyers or to the British public. Statements tortured out of Binyam would therefore have been treated as legitimate evidence and he would likely still be imprisoned in Guantanamo, the victim of both torture and a government cover-up. There likely would have been no Gibson Inquiry into torture complicity.
Reprieve’s Executive Director Clare Algar said: “The Government is seeking to close off the very methods by which we first found out about UK complicity in torture and rendition. Were the measures proposed today in place at the time of the Binyam Mohamed case, the British public would never have known about the appalling abuses our own officials had been involved in. Even the Government’s own Gibson Inquiry would never have been set up. This Government came to power claiming it wanted to get to the bottom of Britain’s involvement in torture. Instead, they are merely seeking to ensure that in future, whatever dirty secrets are swept under the carpet stay there.”
Notes to editors
2. The Green Paper arises out of the strenuous objections made by the Americans when – at the prompting of the media — the High Court revealed evidence that American agents had tortured Binyam Mohamed. The US complained that the so-called “Third Party Rule” interposes an absolute bar to revealing security information provided by one country to another, absent explicit agreement from the first country.
Although the government will seek to divert attention from this focus, a key element of the Green Paper will therefore be on appeasing our US allies. The Green Paper is expected to propose codification of a variation of a “rule” that has actually only been an informal intelligence sharing arrangement. Under this rule, the Court would be barred from ever revealing the source of material obtained from a foreign intelligence source unless the other country has consented to its publication. This would prevent any repetition of the Binyam Mohamed disclosures, where the media successfully pressed for release of a very limited seven paragraph edition of US intelligence reports corroborating the British resident’s torture in American custody.
3. The Norwich Pharmacal principle is important because it allows courts to seek disclosure from parties who were not the torturers, but were ‘mixed up’ in the torture, ie complicit. The Government wants to ban the use of this principle in cases involving secret material. This will include cases of torture complicity.
First, such a ban will override the UK’s legal obligations under the UN Convention Against Torture (CAT), which requires courts to be geared towards eliminating torture rather than covering it up. Under CAT, no evidence of torture should ever be deemed “classified”; rather, it should be investigated.
Second, the ban will allow governments to over-classify in order to keep certain cases out of the courts. Recent cases have made it abundantly clear that governments cannot be trusted to put justice above politics, and the British government has repeatedly invoked the ‘national security’ argument on intelligence evidence when in fact the issue is one of embarrassment.
5. Reprieve, a legal action charity, uses the law to enforce the human rights of prisoners, from death row to Guantánamo Bay. Reprieve investigates, litigates and educates, working on the frontline, to provide legal support to prisoners unable to pay for it themselves. Reprieve promotes the rule of law around the world, securing each person’s right to a fair trial and saving lives. Clive Stafford Smith is the founder of Reprieve and has spent 25 years working on behalf of people facing the death penalty in the USA.
Reprieve’s current casework involves representing 15 prisoners in the US prison at Guantánamo Bay, assisting over 70 prisoners facing the death penalty around the world, and conducting ongoing investigations into the rendition and the secret detention of ‘ghost prisoners’ in the so-called ‘war on terror.’