Binyam Mohamed: Court of Appeal stresses open justice

The Court of Appeal delivered a ringing endorsement of the importance of the principle of open justice as it rejected the Government’s bid to block publication of information about the way in which a former Guantanamo Bay detainee was tortured while being held by the Americans.

Three senior judges – Lord Chief Justice, Lord Judge, Master of the Rolls, Lord Neuberger, and Sir Anthony May, President of the Queen’s Bench Division – rejected Foreign Secretary David Miliband’s bid to block a High Court decision to disclose seven controversial paragraphs previously redacted from judgments.

The material covered intelligence service information relating to Binyam Mohamed’s allegations that he was tortured while held by the United States’ Central Intelligence Agency, with the knowledge of British security services.

Lord Judge said omitting the redacted paragraphs from the earlier High Court judgments would have “a number of undesirable consequences”.

These would include a public judgment being incomplete, he said, and Mohamed being deprived of the full reasons which led the court to conclude his claim that UK authorities were involved in wrongdoing was vindicated.

Lord Judge said there had also been “considerable discussion about the principle of open justice generally, and as it might affect the media”.

He said: “The public must be able to enter any court to see that justice is being done in that court, by a tribunal conscientiously doing its best to do justice according to law.

‘For that reason, every judge sitting in judgment is on trial. So it should be, and any exceptions to the principle must be closely limited.

“In reality very few citizens can scrutinise the judicial process: that scrutiny is performed by the media, whether newspapers or television, acting on behalf of the body of citizens.

‘Without the commitment of an independent media the operation of the principle of open justice would be irremediably diminished.”

But the issue went beyond proper scrutiny of the processes of the courts and judiciary, Lord Judge said, adding: “In litigation, particularly litigation between the executive and any of its manifestations and the citizen, the principle of open justice represents an element of democratic accountability, and the vigorous manifestation of the principle of freedom of expression.

“Ultimately, it supports the rule of law itself. Where the court is satisfied that the executive has misconducted itself, or acted so as to facilitate misconduct by others, all these strands, democratic accountability, freedom of expression, and the rule of law are closely engaged.

“Expressed in this way, the principle of open justice encompasses the entitlement of the media to impart and the public to receive information in accordance with Article 10 of the European Convention of Human Rights.

“Each element of the media must be free to decide for itself what to report. One element would report those matters which reflect its distinctive social or political stance, and a different section of the media will report on different matters, reflecting a different, distinctive position.

“This may very well happen with this judgment, reflecting the diversity of the media, and symbolising its independence.

“In short, the public interest may support continuing redaction, or it may not. If it does not, each element of the media will decide for itself what, if anything, to publish.

“In the context of two further features of the evidence I should add that the investigative role of the media exists independently of the principle of open justice, and that the right of the media to enlist the assistance of legislation like the Freedom of Information Act to acquire access to information is similarly distinct.

“Neither diminishes the principle of open justice.

“Although expressed in wide and general terms – and perhaps inevitably so expressed – in my judgment the principles of freedom of expression, democratic accountability and the rule of law are integral to the principle of open justice and they are beyond question.

“They do not enable the media to require parties to litigation to continue it if they do not wish to do so in order for the media to have a better story, or permit the media to study material which has been made subject to non-disclosure on well established PII [public interest immunity] principles, or to report proceedings where, in the interests of justice, by operation of law, such reporting is prohibited.

“It is, of course, elementary that the courts do not function in order to provide the media with copy, or to provide ammunition for the media, or for that matter private individuals, to berate the government or the opposition of the day, or for that matter to berate or laud anyone else.

‘They function to enable justice to be done between parties.

“However where litigation has taken place and judgment given, any disapplication of the principle of open justice must be rigidly contained, and even within the small number of permissible exceptions, it should be rare indeed for the court to order that any part of the reasoning in the judgment which has led it to its conclusion should be redacted.

“As a matter of principle it is an order to be made only in extreme circumstances.”

The principle was undiminished either by the possible exercise by the Intelligence and Security Committee of its responsibilities to inquire into possible wrongdoing by the intelligence services or by the responsibility of the Attorney General to authorise criminal proceedings against any member of the services who may have committed a criminal offence, Lord Judge added.

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