Mohamed, R (on the application of) v Secretary of State for Foreign & Commonwealth Affairs [2010] EWCA Civ 65

“It is, I think, clear that from its very earliest days the common law of England set its face firmly against the use of torture…it trivialises the issue before the House to treat it as an argument about the law of evidence. The issue is one of constitutional principle, whether evidence obtained torturing another human being may lawfully be admitted against a party to proceedings in a British court irrespective of where, or by whom, or on whose authority the torture was inflicted. To that question I would give a very clear negative answer…the principles of the common law, standing alone, in my opinion compel the exclusion of third party torture evidence as unreliable, unfair, offensive to ordinary standards of humanity and decency and incompatible with the principles which should animate a tribunal seeking to administer justice. But the principles of the common law do not stand alone. Effect must be given to the European Convention, which itself takes account of the all but universal consensus embodied in the Torture Convention…. ”

“If an official or agent of the United Kingdom were to use torture, or connive at its use, in order to obtain information this information would not be admissible in court proceedings in this country. That is not in doubt.”

“The secret authorisation of brutal interrogation is an outrageous betrayal of our core values, and a grave danger to our society…when I am president America will once again be the country that stands up to these deplorable tactics. When I am president, we won’t work in secret to avoid honouring our laws and constitutions, we will be straight with the American people and true to our values.”

“The use of these interrogation techniques by the United States because they undermine or moral authority and do not make us safer. Enlisting our values in the protection of our people makes us stronger and more secure. A democracy as resilient as ours must reject the false choice between our security and our ideals, and that is why these methods of interrogation are already a thing of the past… ”

“If through no fault of his own a person gets mixed up in the tortious acts of others so as to facilitate their wrongdoing he may incur no personal liability but he comes under a duty to assist the person who has been wronged by giving him full information and disclosing the identity of the wrongdoers. I do not think that it matters whether he became so mixed up by a voluntary action on his part or because it was his duty to do what he did. It may be that if this causes him expense the person seeking the information ought to reimburse him. Justice requires that he should co-operate in righting the wrong if he unwittingly facilitated its perpetration.”

“They make it clear that what is required is involvement or participation in the wrongdoing and that, if there is the necessary involvement, it does not matter that the person from whom discovery was sought was innocent and in ignorance of the wrongdoing by the person whose identity it is hoped to establish.”

“ (i) The SyS and the SIS were interested in [Mr Mohamed] because of his residence in the United Kingdom, his connection with suspected persons in the United Kingdom, the period of time spent in Pakistan and Afghanistan, those whom he was said to have been with and the gravity of the allegations made against him at the time. (ii) We have no doubt that on the basis of that information the SIS and SyS were right to conclude that [Mr Mohamed] was a person of great potential significance and a serious potential threat to the national security of the United Kingdom. There was therefore every reason to seek to obtain as much intelligence from him as was possible in accordance with the rule of law and to co-operate as fully as possible with the US authorities to that end. (iii) It was clear from reports that [Mr Mohamed] was held incommunicado from 10 April 2002 whilst a series of interviews was conducted by the US authorities in April 2002 during which he had asked for a lawyer and had been refused. (iv) In May 2002, the SyS and the SIS received reports containing information relating to [Mr Mohamed’s] detention and treatment in Pakistan. The details of the reports are set out in the closed judgment. (v) Our finding after the hearing was that the probability is that Witness B read the reports either before he left for Karachi or before he conducted the interview. Since the hearing we have been provided with the documents to which we have referred at para 17 above, which show a briefing document was prepared for sending to him. (vi) If contrary to the finding which we made after the hearing, Witness B had not read them prior to going to Karachi or after arrival at Karachi and prior to the interview, we have no doubt that other persons within the SyS, including persons senior to Witness B, must have read the reports and must have appreciated what they said about [Mr Mohamed’s] detention and treatment at Karachi. Those officers should have drawn to the attention of Witness B these matters either before or after the interview. It is now clear that the reports were studied by other desk officers. (vii) In the light of Witness B’s continued involvement with [Mr Mohamed] and the importance attached to [Mr Mohamed] by the SyS, it is inconceivable that he did not carefully read the materials after his return. (viii) During the interview Witness B saw himself as having a role to play in conjunction with the US authorities in inducing [Mr Mohamed] to co-operate by making it clear that the United Kingdom would not help unless [Mr Mohamed] co-operated. We can well understand why, given the exigencies of the time Witness B put matters in such stark terms as he did. It is clear that what he said to [Mr Mohamed] was, in effect, that the United Kingdom would not attempt to assist him unless [Mr Mohamed] persuaded him that he was co-operating fully with the US authorities. (ix) By 20 September 2002, it was clear to the SyS that [Mr Mohamed] was being held at a covert location (either by the authorities of the United States or under the direct control of the United States) which was not a US military facility, such as Bagram. It is clear to us that they knew that he was not in a regular US facility, that the facility in which he was being detained and questioned was that of a foreign government (other than Afghanistan) and that the US authorities had direct access to information being obtained from him. (x) The SyS were supplying information as well as questions which they knew were to be used in interview of [Mr Mohamed] from the time of his arrest whilst he was held incommunicado and without access to a lawyer or review by a court or tribunal. They continued to supply information and questions after they knew of the circumstances of [Mr Mohamed’s] detention and treatment as contained in the reports of the series of interviews in May 2002 and after September 2002 when they knew the circumstances related to his continued detention which we have described in (ix) above. ”

“i) After being subject to torture and cruel, inhuman or degrading treatment in Pakistan, he was unlawfully rendered from Pakistan to Morocco by the [US] authorities. ii) Whilst in Morocco he was subject to unlawful incommunicado detention and torture during his interrogation there by or on behalf of the [US] authorities. iii) He was unlawfully rendered by the [US] authorities from Morocco to Afghanistan on 21st or 22nd January 2004 iv) He was detained unlawfully and incommunicado at the ‘Dark Prison’ near Kabul and thereafter at the [US] Air Force base at Bagram. v) He was tortured or subject to cruel, inhuman or degrading treatment by or on behalf of the [US] authorities in the ‘Dark Prison’.”

“In the light of the concession that there was an arguable case of wrongdoing and in the light of the further concession that it was sufficient for the purposes of obtaining Norwich Pharmacal relief if an arguable case of wrongdoing was advanced, it was not necessary for us to determine whether there was in fact any wrongdoing by or on behalf of the [US] Government. It is important to emphasise that we therefore do not do so.”

“[i]n May 2002, the SyS and the SIS received reports containing information relating to [Mr Mohamed's] detention and treatment in Pakistan. The details of the reports are set out in the closed judgment.”

“it is our clear view that the requirements of open justice, the rule of law and democratic accountability demonstrate the very considerable public interest in making the redacted paragraphs public, particularly given the constitutional importance of the prohibition against torture and its historic link from the seventeenth century in this jurisdiction to the necessity of open justice”

“[W]hatever views may be held as to the continuing threat made by the Government of the [US] to prevent a short summary of the treatment of [Mr Mohamed] being put into the public domain by this court, it would not, in all the circumstances we have set out and in the light of the action taken, be in the public interest to expose the [UK] to what the Foreign Secretary still considers to be the real risk of the loss of intelligence so vital to the safety of our day to day life. If the information in the redacted paragraphs which we consider so important to the rule of law, free speech and democratic accountability is to be put into the public domain, it must now be for the [US] Government to consider changing its position or itself putting that information into the public domain.”

“The letter states in essence what could happen not what would happen. If it were just the letter alone, it would be difficult to see any basis for rejecting the submission of [Mr Mohamed] and the media that there was insufficient evidential basis for the Foreign Secretary's view that there was a real risk of serious damage. The letter was very carefully phrased so that no statement of the consequences that would follow or, in other words, no threat was made.”

“The redacted paragraphs were not of course themselves intelligence material. But they are unquestionably a summary of intelligence material provided to the [UK] under confidential intelligence-sharing arrangements …. . They do not cease to be a summary of intelligence material because the [US] has itself chosen to disclose other secret material on a related subject.”

“[Mr Mohamed’s] trauma lasted for two long years. During that time, he was physically and psychologically tortured. His genitals were mutilated. He was deprived of sleep and food. He was summarily transported from one prison to another. Captors held him in stress positions for days at a time. He was forced to listen to piercingly loud music and the screams of other prisoners while locked in a pitch-black cell. All the while, he was forced to inculpate himself and others in various plots to imperil Americans.”

“We heard argument in camera on the issue to which we referred in paragraph 7. The issue can be described as whether we should restore to our open judgment seven very short paragraphs amounting to about 25 lines in which we provided a further summary of the circumstances of [Mr Mohamed’s] detention in Pakistan and the treatment accorded to him as referred to in paragraph 87(iv) of our judgment. This arose in the context of the allegation that [Mr Mohamed] had been subjected to torture and cruel, inhuman and degrading treatment and the scope of the offences to which we referred in paragraph 77 of our first judgment. Although the argument took place in closed session, the issue is one of considerable importance in the context of open justice and we will in due course deliver an open judgment on the issue. We have asked the parties to consider whether, before we decide this issue, we should invite submissions in writing from the media in view of the importance of the issue to the rule of law.”

“In these paragraphs we provided a summary of reports by the United States Government to the SyS and the Secret Intelligence Service (SIS) on the circumstances of [Mr Mohamed’s] incommunicado and unlawful detention in Pakistan and of the treatment accorded to him by or on behalf of the United States Government as referred to in paragraph 87(iv) of our judgment. We did so as the summary was highly material to [Mr Mohamed’s] allegations that he had been subjected to torture and cruel, inhuman or degrading treatment and to the commission of criminal offences to which we referred in paragraph 77 of our first judgment and to which we refer at paragraph 20 below.”

“However, since the purpose of the general rule is to serve the ends of justice it may be necessary to depart from it where the nature or circumstances of a particular proceeding are such that the application of the general rule in its entirety would frustrate or render impracticable the administration of justice or would damage some other public interest for whose protection Parliament has made some statutory derogation from the rule. Apart from statutory exceptions, however, where a court in the exercise of its inherent power to control the conduct of proceedings before it departs in any way from the general rule, the departure is justified to the extent and to no more than the extent that the court reasonably believes it to be necessary in order to serve the ends of justice.”

“… the court’s willingness to intervene will very much depend on the nature of the material which it is sought to disclose. If the issue concerns the disclosure of documents bearing a high security classification and there is apparently credible unchallenged evidence that disclosure is liable to lead to the identification of agents or the compromise of informers, the court may very well be unwilling to intervene. If, at the other end of the spectrum, it appears that while disclosure of the material may cause embarrassment or arouse criticism, it will not damage any security or intelligence interest, the court’s reaction is likely to be very different.”

“It is self evident that liaison with foreign intelligence services, including the provision of information or access to detainees held by foreign governments, lies at the heart of the protection of the national security of the United Kingdom at the present time, particularly in the prevention of terrorist attacks in the United Kingdom. If the value of information is properly to be assessed by the United Kingdom intelligence services, it is also essential the intelligence services know the circumstances and means by which it was obtained. There is powerful evidence that intelligence is shared on the basis of a reciprocal understanding that the confidence in and control over it will always be retained by the State that provides it. It is a fundamental part of that trust and confidentiality which lies at the heart of the relationship with foreign intelligence agencies. This is particularly the case in relation to the United States where shared intelligence has been developed over 60 years. Without a clear understanding that such confidence will not be breached, intelligence from the United States and other foreign governments so important to national security might not be provided. The public of the United Kingdom would be put at risk. The consequences of a reconsideration of and a potential reduction in the information supplied by the United States under the shared intelligence relationship at this time would be grave indeed. It is evident from the materials with which we have been provided that the assessment of the risk to the intelligence relationship with the United States was made by the Foreign Secretary in good faith and on the basis of evidence including statements made by officials of the United States Government who held office at the highest levels in the period from July to October 2008. Indeed there is evidence for the Foreign Secretary’s further view that the United States Government would perceive making public the redacted passages as “gratuitous”

“The Foreign Secretary has expressed the view in his certificate of 5 September 2008 that the balance of the public interest lies against disclosure. In reaching that view he took into account the allegations of mistreatment made by [Mr Mohamed], the importance of underlining the UK’s abhorrence of torture and cruel, inhuman or degrading treatment. He accepted the importance of open public debate on these issues, but he considered that dialogue with the United States on such matters was best undertaken in confidence. Balancing those considerations against the real risk of serious damage to national security and his view that no further benefit would be secured for [Mr Mohamed], he considered that the balance lay against disclosure. However, it is common ground that his view on where the balance of the public interest lies is not conclusive. Although the Foreign Secretary has expressed his view of the balancing, the rule of law requires that the determination of where the balance lies is ultimately for the decision of the court. We must do so, however, on the basis of his judgment on that part of the public interest that relates to national security issues. We must also attach considerable weight to his judgment of the balance of the public interest. (See Conway v Rimmer at p 952B). Attaching weight to the view of the Foreign Secretary in this case is relevant, not only because we must act on the basis of his judgment as to the real risk to national security, but also because we should have regard to his actions, as set out in our previous judgments, where on behalf of the United Kingdom Government, both he and his Legal Adviser, Mr Bethlehem QC, have made so clear the United Kingdom’s position on the abhorrence of torture and cruel, inhuman or degrading treatment and have gone to considerable lengths to assist [Mr Mohamed].”

“How is this judgment of the Foreign Secretary in relation to the public interest in national security to be balanced against the public interest in open justice as safeguarding the rule of law, free speech and democratic accountability? In our judgment the decisive factors are the other means which have resulted from these proceedings for safeguarding democratic accountability and the rule of law (the reference of the matter to the ISC and the Attorney General) and what has already been placed into the public domain which can engender debate. In the circumstances now prevailing, the balance is served by maintaining the redaction of the paragraphs from our first judgment. In short, whatever views may be held as to the continuing threat made by the Government of the United States to prevent a short summary of the treatment of [Mr Mohamed] being put into the public domain by this court, it would not, in all the circumstances we have set out and in the light of the action taken, be in the public interest to expose the United Kingdom to what the Foreign Secretary still considers to be the real risk of the loss of intelligence so vital to the safety of our day to day life. If the information in the redacted paragraphs which we consider so important to the rule of law, free speech and democratic accountability is to be put into the public domain, it must now be for the United States Government to consider changing its position or itself putting that information into the public domain.”