A senior High Court judge has invited the press and media to make submissions on whether “torture” evidence in the case of Binyam Mohamed, a British resident detained as a terrorist suspect at Guantanamo Bay, should be made public. The move is believed to be unprecedented.
The judge also announced that the question of “possible criminal wrongdoing” raised by the case has now been referred by the Home Secretary to the Attorney General.
Lord Justice Thomas, vice-president of the Queen’s Bench Division and deputy head of Criminal Justice, has so far handed down three judgments in the case.
In his latest, handed down on 20 October, the judge condemned as “deeply disturbing” a refusal by the United States government to disclose evidence which could prove that Mohamed was tortured before confessing to terrorist offences.
In the judgment, he said the court had considered, while sitting in secret, whether to make public a further summary of Mohamed’s detention “and the treatment accorded to him”.
But first he wanted to hear from the press and media “on the course which the court should follow in relation to publication of the material in question”.
Now he has written to the Press Association setting out a timetable for the media’s submissions.
The judge said that those wishing to make submissions must notify the court of that intention by Friday, 14 November. All submissions must be received by Monday, 1 December.
The judge wrote that the issue was “one of considerable importance in the context of open justice, and we will in due course deliver an open judgment”.
He said Foreign Secretary David Miliband had submitted that, “having regard to the risks to national security”, only a specially agreed passage should be made public.
Also of potential relevance was the fact that the case and “the question of potential criminal wrongdoing” had now been referred to the Attorney General.
The Treasury Solicitor, acting on behalf of the Foreign Secretary, had told the court “that the question of possible criminal wrongdoing to which these proceedings have given rise” had been referred by the Home Secretary.
The judge said: “All the relevant documents in the proceedings have been provided to the Attorney General.”
Mohamed, 30, an Ethiopian national and British resident, was held in Pakistan in 2002, when he was questioned by an MI5 officer.
He was later secretly rendered to Morocco, where he says he was tortured by having his penis cut with a razor blade. The US subsequently flew him to Afghanistan and he was transferred to Guantanamo Bay in September 2004.
Legal campaigners Reprieve and Leigh Day, the London-based solicitors’ firm representing Mohamed, welcomed the latest High Court developments.
Leigh Day said the Government had filed a public interest immunity certificate “and argued vigorously to keep materials secret that would apparently demonstrate how Mohamed was tortured in Pakistan, and then rendered by the US to Morocco for 18 months of horrific abuses.
“This is because exposing our ally’s criminal misconduct would be extremely embarrassing to the US, and would therefore apparently harm UK-US relations.”
Reprieve director Clive Stafford Smith said: “Our task is to represent Mr Mohamed. It is the media’s job to represent the interests of the public at large.
“But it is beyond my comprehension quite how the Government thinks that it is ‘in the public interest’ to keep secret evidence that the Bush administration committed a war crime against Mr Mohamed by rendering him to torture.”
Richard Stein, of Leigh Day, said: “The High Court is taking a very proper course, allowing those concerned to articulate the case for wider disclosure in the public interest.
“In our work, all we have ever asked is that the evidence which exonerates Mr Mohamed and supports his case that he was kidnapped and tortured be provided to his US lawyers.
“It is bizarre that the Government believes it could ever be appropriate to cover up crimes.”
Charges against Mohamed, including that he was involved in a dirty bomb plot, have been dropped, but the US authorities are now considering further charges.