Unfortunate ‘Sumptions

As I wrote here two weeks ago, nobody emerges well from the Binyam Mohamed case – least of all the Security Service MI5(“SyS”), some of whose officials were found by the Court of Appeal today to

have a dubious record relating to actual involvement, and frankness about any such involvement, with the mistreatment of Mr Mohamed when he was held at the behest of US officials.

Paragraph 168 of Lord Neuberger’s judgment went through three drafts. Here is the version, originally circulated in confidence:

Fourthly, it is also germane that the SyS were making it clear in March 2005, through a report from the Intelligence and Security Committee that “they operated a culture that respected human rights and that coercive interrogation techniques were alien to the Services’ general ethics, methodology and training” (paragraph 9 of the first judgment), indeed they “denied that [they] knew of any ill-treatment of detainees interviewed by them whilst detained by or on behalf of the [US] Government” (paragraph 44(ii) of the fourth judgment). Yet that does not seem to be true: as the evidence in this case showed, at least some SyS officials appear to have a dubious record when it comes to human rights and coercive techniques, and indeed when it comes to frankness about the UK’s involvement with the mistreatment of Mr Mohammed by US officials. I have in mind in particular witness B, but it appears likely that there were others. The good faith of the Foreign Secretary is not in question, but he prepared the certificates partly, possibly largely, on the basis of information and advice provided by SyS personnel. Regrettably, but inevitably, this must raise the question whether any statement in the certificates on an issue concerning such mistreatment can be relied on, especially when the issue is whether contemporaneous communications to the SyS about such mistreatment should be revealed publicly. Not only is there an obvious reason for distrusting any UK Government assurance, based on SyS advice and information, because of previous “form”, but the Foreign Office and the SyS have an interest in the suppression of such information.

Here is the version after Lord Neuberger had read representations by Jonathan Sumption QC, for the Foreign Secretary:

Fourthly, the Foreign Secretary must have prepared the certificates on the basis of advice from members of the SIS and the SyS, whose involvement in the mistreatment of Mr Mohamed has been the subject of findings by the Divisional Court. Having said that, witness B is currently under investigation by the police; and it is impossible, at any rate at this stage, to form a clear or full view as to precisely what his involvement was in the mistreatment of Mr Mohamed.

And here is the final version, approved today.

Fourthly, it is also germane that the Security Services had made it clear in March 2005, through a report from the Intelligence and Security Committee, that “they operated a culture that respected human rights and that coercive interrogation techniques were alien to the Services’ general ethics, methodology and training” (paragraph 9 of the first judgment), indeed they “denied that [they] knew of any ill-treatment of detainees interviewed by them whilst detained by or on behalf of the [US] Government” (paragraph 44(ii) of the fourth judgment). Yet, in this case, that does not seem to have been true: as the evidence showed, some Security Services officials appear to have a dubious record relating to actual involvement, and frankness about any such involvement, with the mistreatment of Mr Mohamed when he was held at the behest of US officials. I have in mind in particular witness B, but the evidence in this case suggests that it is likely that there were others. The good faith of the Foreign Secretary is not in question, but he prepared the certificates partly, possibly largely, on the basis of information and advice provided by Security Services personnel. Regrettably, but inevitably, this must raise the question whether any statement in the certificates on an issue concerning the mistreatment of Mr Mohamed can be relied on, especially when the issue is whether contemporaneous communications to the Security Services about such mistreatment should be revealed publicly. Not only is there some reason for distrusting such a statement, given that it is based on Security Services’ advice and information, because of previous, albeit general, assurances in 2005, but also the Security Services have an interest in the suppression of such information.

There are consequential amendments to other paragraphs, which you can read in today’s judgment.

Who else emerges badly?

The court said that Dinah Rose QC, for Binyam Mohamed, was not entitled to rely on rule 31.22 of the Civil Procedure Rules to justify circulating Sumption’s letter (see paragraph 12 of today’s judgment). I was therefore wrong, as a matter of law, when I adopted her argument here and elsewhere.

But I stand by my view that Sumption’s letter exaggerated the impact of paragraph 168, as originally drafted. That is borne out by the court in paragraph 16 of today’s judgment:         

his letter represented Mr Sumption’s forensic submissions about how the first draft might be interpreted if it was handed down unamended. As it is, publication has resulted in public comment based on Mr Sumption’s observations about paragraph 168 in its first draft rather than on the actual text of the first draft itself.

Sumption’s chambers emerge badly in not ensuring that his letter was circulated to all parties in the case (see paragraph 7 of today’s judgment).

The Court of Appeal was wrong in not deferring judgment until it had considered and ruled on Sumption’s objections to paragraph 168 (see paragraph 8 of today’s judgment).

However, the judges were entirely right to put all that behind them (see paragraph 20 of today’s judgment). What matters is what they said in paragraph 17.

If they had not published the original draft of paragraph 18, the judges explained, a “damaging myth” might have developed “to the effect that in this case a Minister of the Crown, or counsel acting for him, was somehow permitted to interfere with the judicial process”.

This did not happen, and it is critical to the integrity of the administration of justice that if any such misconception may be taking root it should be eradicated. Perhaps the most obvious indication that there was no such ministerial interference in this litigation is that all five judges involved in it have rejected the Foreign Secretary’s claim for public interest immunity in respect of the seven redacted paragraphs. However in the context of Mr Sumption’s letter, and the events described in this judgment, the most effective way of dispelling any lingering public perception of ministerial interference will be that, notwithstanding that Lord Neuberger’s judgment will take the form in which it is finalised, the first draft of paragraph 168 should be published. In this situation, effectively for the same broad reasons that helped to inform our decision that the redacted sub-paragraphs should be published, the interests of open justice must prevail.

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