Mohamed, R (on the application of) v Secretary of State for Foreign & Commonwealth Affairs

Mohamed, R (on the application of) v Secretary of State for Foreign & Commonwealth Affairs

The Court of Appeal held that, following the US District Court's public findings that Binyam Mohamed was tortured and the US government's non-contestation of those facts, the information in the redacted paragraphs was no longer confidential or sensitive intelligence material. The basis for public interest immunity and the control principle had fallen away. The public interest in open justice, democratic accountability, and the rule of law outweighed any speculative or unsupported risk to national security. The appeal was dismissed and the paragraphs were to be published.

Parties
Applicant: Binyam Mohamed; Respondent/appellant: Secretary of State for Foreign and Commonwealth Affairs; Interested Parties (uk Media): Guardian News and Media Ltd, BBC, Times Newspapers Ltd, Independent News and Media Ltd, The Press Association; Interested Parties (international Media): The New York Times Corporation, The Associated Press, the Washington Post, the LA Times, Index on Censorship; Interveners: Liberty and JUSTICE
Jurisdiction
England and Wales
Judgment Date
10 February 2010
Procedural Posture
Judicial Review / Norwich Pharmacal Application / Appeal From Divisional Court to Court of Appeal (civil Division), Final Appellate Judgment
Outcome
Appeal dismissed. The seven redacted paragraphs to be published in the open judgment.
Legal Topics
Norwich Pharmacal Relief, Public Interest Immunity (pii), Open Justice, Torture Prohibition, Intelligence Sharing (control Principle), Disclosure Obligations, Separation of Powers
Constitutional Law Public Law Human Rights Law National Security Law Norwich Pharmacal Relief Public Interest Immunity (pii) Open Justice Torture Prohibition +3 more

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Parties

Binyam Mohamed

Applicant

Secretary of State for Foreign and Commonwealth Affairs

Respondent/appellant

Guardian News and Media Ltd, BBC, Times Newspapers Ltd, Independent News and Media Ltd, The Press Association

Interested Parties (uk Media)

The New York Times Corporation, The Associated Press, the Washington Post, the LA Times, Index on Censorship

Interested Parties (international Media)

Liberty and JUSTICE

Interveners

Procedural Posture

Judicial Review / Norwich Pharmacal Application / Appeal From Divisional Court to Court of Appeal (civil Division), Final Appellate Judgment

Legal Issues

  1. 1 Whether the seven redacted paragraphs from the Divisional Court's judgment should be published in the open judgment despite the Foreign Secretary's claim of public interest immunity based on national security and the intelligence 'control principle'.
  2. 2 Whether the court should defer to the executive's assessment of national security risk or exercise independent judicial scrutiny in the context of open justice and alleged UK involvement in torture.

Ratio Decidendi

The Court of Appeal held that, following the US District Court's public findings that Binyam Mohamed was tortured and the US government's non-contestation of those facts, the information in the redacted paragraphs was no longer confidential or sensitive intelligence material. The basis for public interest immunity and the control principle had fallen away. The public interest in open justice, democratic accountability, and the rule of law outweighed any speculative or unsupported risk to national security. The appeal was dismissed and the paragraphs were to be published.

Court Disposition

Appeal dismissed. The seven redacted paragraphs to be published in the open judgment.

Orders

  • The appeal of the Secretary of State for Foreign and Commonwealth Affairs is dismissed.
  • The seven redacted paragraphs are to be restored to and published as part of the open judgment of the Divisional Court.