UK appeals court reject use of secret evidence in detainee torture case

[JURIST] The England and Wales Court of Appeal ruled Tuesday that state intelligence agencies cannot use secret evidence in their defense against abuse accusations by Binyam Mohamed and several other UK residents who were held at Guantanamo Bay.  The judgment overturned a November ruling  of a UK high court, which held that defendants MI5 and MI6 could utilize a “closed material procedure” that would allow them to rely on certain evidence without disclosing it to opposing counsel or committing it to the public record. The procedure, typically employed in criminal proceedings, is designed to allow concealment of evidence where disclosure would cause “real harm to the public interest,” harm the agencies argued would result if they were compelled to publicly adduce state intelligence as part of their defense. Without categorically denying the legitimacy of the procedure, the court questioned whether it could ever be appropriate for the purpose of civil litigation:

[T]he principle that a litigant should be able to see and hear all the evidence which is seen and heard by a court determining his case is so fundamental, so embedded in the common law, that, in the absence of parliamentary authority, no judge should override it, at any rate in relation to an ordinary civil claim, unless (perhaps) all parties to the claim agree otherwise … this principle represents and irreducible minimum requirement of an ordinary civil trial.

In February, the England and Wales Court of Appeal ruled that the government must disclose several paragraphs detailing the allegations of Mohamed’s mistreatment that were previously omitted from an earlier ruling in his criminal trial. Mohamed was returned to the UK  in 2009, four months after charges against him were dismissed. He had held at Guantanamo Bay for four years on suspicion of conspiracy to commit terrorism. 


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