New secret evidence issues in Al Rawi case

The England and Wales High Court ordered the UK Government to disclose the 2002 and the 2004 Guidance documents for the interrogation and treatment of detainees. The documents will be disclosed immediately, unless, as it is likely, the Government will claim public interest immunity; in such case, a closed hearing will be held to see whether these two key documents are to be disclosed to the claimants.

The case involves six claimants who were detained at various locations, including Guantanamo and Bagram, and claim they have been subject to false imprisonment, trespass to the person, conspiracy to injure, torture, breach of contract, negligence, misfeasance in public office and breaches of their rights under the Human Rights Act 1998.

Last month the Court of Appeal rejected a request by the Government that evidence in the compensation claim should be kept secret from the public.

This time the request was by claimants for access to 2002 and 2004 Guidance materials relating to the interrogation and treatment of detainees. In order to understand the significance of these documents, the Court referred to two reports by the Intelligence and Security Committee.

The first, dated 2005, deals with the interviews of individuals detained by other countries; in this respect, the report mentions the episode in which a SIS officer conducted an interview of a US-held detainee on 10 January 2002 and sent back to London his “observations and the circumstances of the handling of [the] detainee by the US military before the beginning of the interview”. The day after the officer received the following instructions, an extract from the 2002 Guidance:

With regard to the status of prisoners, under the various Geneva Conventions and protocols, all prisoners, however they are described, are entitled to the same levels of protection. You have commented on their treatment. It appears from your description that they may not be being treated in accordance with the appropriate standards. Given they are not within our custody or control, the law does not require you to intervene to prevent this. That said, HMG’s stated commitment to human rights makes it important that the Americans understand that we cannot be party to such ill treatment nor can we be seen to condone it. In no case should they be coerced during or in conjunction with an SIS interview of them. If circumstances allow, you should consider drawing this to the attention of a suitably senior US official locally.

The 2004 Guidance is then referred in the report of the ISC of July 2007:

“From 2004 it became clear to SIS and the security service that their existing Guidance to staff on dealing with foreign liaison services was insufficiently detailed given the increasing requirement to cooperate with foreign services in counter-terrorism operations. They therefore began to expand their Guidance, and as elements were finalised they were formally issued to staff”.

In a footnote, it is then explained that “Advice on participation in detention operations and interviews was formally issued to SIS and security staff in 2005”.

Hence, it is clear that if the Guidance had been seen as insufficient, this may prove that the Government was  in a way closing its eyes to the actions of foreign intelligence agencies.

Government solicitors opposed the disclosure of the two documents on the grounds that, due to the very large number of documents identified (over 250,000) and the sensitivity of the material, the disclosure exercise would be “unprecedented” in its scale.

However, the judge decided that disclosure could not wait more, since some of the claims arise from events already seven or eight years ago, and that he welcomed any potential disclosure that may shorten the probable length of the trial.

In my view, the balancing exercise leads to the clear result that the Guidance documents should be disclosed and subject to a PII hearing to determine how much of it can be inspected. The extraordinary past and anticipated delays in disclosure of the Guidance documents requires the court to take decisive actions to ensure that the claims progress… These important claims would then be precluded from coming to trial for very many years even though their claims are already 7 or 8 years old.
This is massive litigation in which I assume all parties are financed by public funds and anything which can be done which might assist in expediting the resolution of the dispute should be adopted unless it will cause unfairness.


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