Secret Justice - an oxymoron

[Jan Klimkowski]

The redacted and unredacted documents can be seen here.

Secret justice.

An oxymoron.

Richard Stein, of Leigh Day & Co, who represented Serdar Mohammed, said: "There was nothing remotely sensitive for national security about this. It was just politically embarrassing."

Torture claim redactions 'show dangers of secret courts'

Documents show how politically embarrassing evidence can be concealed under veil of protecting national security, critics claim


Owen Bowcott, legal affairs correspondent
guardian.co.uk, Thursday 10 January 2013 14.29 GMT
Jump to comments (127)

Ken Clarke said: 'Clearly, any suggestion that these closed hearings would make anything secret that is in the public domain now is emphatically wrong.' Photograph: Peter Macdiarmid/Getty Images

Two versions of a highly sensitive military witness statement initially substantially withheld, then later revealed illustrate the dangers of government plans to expand secret courts, according to campaigners.

The partially suppressed version cuts out crucial details about torture allegedly being inflicted on an Afghan detainee who had been arrested by British forces. The man claimed Afghan forces he was handed over to had beaten him on his feet and legs with metal rods until he was unable to stand.

Lawyers who fought the case claim the two versions demonstrate how politically embarrassing evidence can be concealed under the veil of protecting national security. The documents variations on a witness statement from a senior Ministry of Defence official labelled "secret UK eyes only" have been passed to the Guardian.

The high court's treatment of the evidence, it is claimed, also challenges repeated assurances by the Cabinet Office minister without portfolio, Ken Clarke, that the justice and security bill will not result in anything that is currently disclosed being withheld in future. The Cabinet Office disputes the significance of the disparities between the two versions of the documents, pointing out that security sensitivities change over time.

The redactions were made under a legal device that was subsequently outlawed by the supreme court. It is in response to this ban that the government has brought in fresh "secret court" legislation. The controversial bill is about to enter its committee stage in the House of Commons after peers defeated the government in the upper house and imposed additional safeguards on the legislation. Clarke has yet to decide whether to accept those amendments.

The two documents have emerged from a highly unusual sequence of litigation triggered by a case brought by the peace activist Maya Evans in 2010. She was concerned about the transfer of UK-captured detainees to Afghan authorities.

She alleged there was a real risk of detainees being tortured if they were handed over to Afghan security officers. She failed to persuade the court despite the fact that the judge saw the full text of the MoD statement which reported the suspect's claim of being "beaten several times with steel rods to the areas of his legs and feet" while in Afghan detention, which reportedly left him unable to stand. British forces took photographs of the man's injuries but the pictures have not been released.

The court did, however, impose extra monitoring and accepted that it would not be safe to transfer Taliban suspects to the Afghan national directorate of security (NDS) in the capital, Kabul.

Shortly afterwards another detainee, Serdar Mohammed, who had been captured by British soldiers, was transferred to an NDS prison in Lashkar Gah and then moved on to the Afghan security forces headquarters in Kabul.

Mohammed also reported being tortured, having his testicles twisted until they bled. His transfer initiated a second round of legal challenges during which virtually the full text of the MoD official's witness statement was released.

Comparisons between the two versions shows that seven crucial paragraphs were withheld from the original open court case. The 2010 case was one of the few examples of a secret hearing, known as a closed material procedure (CMP), being used in the civil courts.

CMP hearings were subsequently outlawed by a supreme court judgment in another case, that known as the Al Rawi case. It was that effective ban which the government says has forced it to introduce the justice and security bill, which will expand the use of CMPs into civil courts.

CMPs, also known as secret courts, enable the authorities to introduce sensitive information in a trial that can only be seen by the judge and security-cleared "special advocates" who represent the interest of an individual claimant.

The special advocate may not, however, give his or her client precise details of the evidence and can only provide a "gist" or loose summary. The claimant may not therefore be aware of all the allegations being made. Critics say this results in parties to a legal dispute no longer being on an equal footing, tilting the advantage in the government's favour.

In the MoD statements, information withheld from open court proceedings included the fact that the head of the Afghan NDS was reluctant to allow visits by British forces to his detention facilities because they might "disrupt the carefully controlled environment" developed to question "insurgent suspects".

Those opposed to the transfers were also not informed about the alleged beatings with steel rods, claims of further abuse following the first visit by a Royal Military police staff sergeant and other British officials or the fact that UK soldiers feared "the inclusion of a medical doctor in the next visit party [might] alert the NDS to the possibility that allegations had been made".

Richard Stein, of Leigh Day & Co, who represented Serdar Mohammed, said: "There was nothing remotely sensitive for national security about this. It was just politically embarrassing.

"The full text of the document shows that this detainee complained about torture and that there were strong physical signs of torture. Under closed material procedures there's no requirement to balance the interests of national security with other human rights concerns.

"Under a CMP, no one would have known that this man had been tortured. It also shows that the public and litigants will find out less than previously when cases were held using public interest immunity (PII) certificates."

Jo Shaw, a Liberal Democrat parliamentary candidate and former lawyer who has led opposition to secret courts in the party, highlighted the significance of the document. "The two statements shockingly demonstrate exactly what many … have been worried about: coverups made possible by secret courts in the illiberal, unnecessary and unfair justice and security bill," she said.

"What was being kept from the public eye in this case was not information which would threaten the life of security services personnel, or the security of the UK. It was information which was embarrassing to the security services and to the government, because it showed the knowledge of UK officers about torture in Afghanistan gaols run by our allies.

"Covering up difficult or embarrassing facts about complicity in torture or rendition helps no one. To ensure there is no UK involvement with such wrongdoing in future we need open justice, not secret courts. It is equally appalling that Ken Clarke has refused to rule out using secret courts in claims brought by injured service personnel, or in claims for habeas corpus."

In an article for the Guardian last year, Ken Clarke wrote: "Clearly, any suggestion that these closed hearings would make anything secret that is in the public domain now is emphatically wrong."

A Cabinet Office spokesperson said: "These lawyers have utterly failed to take into account the fact that the sensitivity of material can change over time. The court ruled that there were legitimate public interest reasons not to disclose this material in 2010.

"By 2012 the circumstances had changed meaning the material could be safely disclosed. Far from revealing any sort of coverup this information underlines the government's commitment to disclose as much information as is safely possible in all these cases."