Wednesday, 10 February 2010

Dancing on a pinhead

The tabloid version of today's ruling by the Court of Appeal in the Binyam Mohamed case is that our pathetically weak and liberal judges are more interested in the human rights of terrorists than the right of ordinary citizens not to be blown up. Con Coughlin's reaction in the Telegraph is ridiculous. "Why don’t our judges just come clean and sign up with the Taliban?" he asks. "The judical establishment never misses an opportunity to undermine the government’s efforts to protect us from harm."

He means, I think, the judicial establishment occasionally manages to frustrate the government's efforts to undermine the very traditional freedoms they claim to be defending. In his view it is the judges' duty to swallow whatever piece of illiberal nonsense the securocrats in the Home Office dream up. Anything less is tantamount to joining the Jihad themselves: "if another al-Qaeda bomb goes off in London, the judges will be as much to blame as Osama bin Laden." He even argues that the recent - entirely theatrical - upgrading of the "terrorist threat" ought to have swayed the court's decision.

From the opposite perspective human rights lawyer Clive Stafford-Smith (described as "odious" by Coughlin) celebrated what he called the "scathing" judgement in which the court had "slapped the government down".

The actual judgement, by a full-strength line-up of the Lord Chief Justice, the Master of the Rolls and the President of the Queen's Bench Division (the Father Son and Holy Ghost of the English judiciary) bears out neither of these claims.

In fact, their lordships bent over backwards to accede to the Foreign Office's campaign to prevent evidence of US- sanctioned mistreatment (known about and overlooked by British agents) from reaching the public domain. Lord Judge stressed that "publication of the redacted paragraphs would not reveal information which would be of interest to a terrorist or criminal or provide any potential material of value to a terrorist or a criminal." The case had in fact "endorsed the application of public interest immunity and the maintenance of confidentiality over secret information." It has even emerged that one of the judges, Lord Neuberger, was persuaded by a secret - but inevitably leaked - letter from the government's lead QC Jonathan Sumption to suppress one particularly damning paragraph in his speech that cast doubt on the reliability of evidence from the security services.

Hardly an information free-for-all, in other words.

The government lost for the simple reason that its case had become unsustainable. The evidence they sought to suppress had emerged in open court in the United States. It was accepted by all sides as true. In fact, the mistreatment alleged in the American evidence - including genital mutilation - goes far beyond the sleep deprivation described in the suppressed paragraphs from the original British High Court judgement. The Foreign Office was reduced to arguing that the source of the evidence - the fact that it had come from US intelligence - ought to outweigh the fact that it was already in the public domain. In short, while it was common knowledge (1) that the evidence had been provided by US intelligence and (2) what the evidence was, the combination of these two known facts (itself known) ought not to be mentioned in a court judgement. Otherwise the Americans might decide to stop sharing intelligence information (however derived) with Britain. This is hair-splitting to a degree remarkable even among lawyers. As one of the judges put it, "angels are now dancing on a pinhead".

The publication of the facts in the USA was a fairly recent development, however. The judges made clear that, without that change in the facts, they would, with a show of reluctance, have upheld the government's case. They were quite happy to accept at face value the government's invocation of "national security" - until events across the Atlantic made the government's position look ridiculous. David Miliband was crowing about that this afternoon, which makes it all the more remarkable that they fought on, instructing their lawyers to put forward ever more abstruse arguments. It was an unnecessary embarrassment. Thanks to its stubbornness, the government looks at once ineffectual and shifty, as well as - once more - America's poodle.

It did however give the judges an opportunity to sound off. Lord Neuberger was especially good on what he called "the central point":


namely that the court should administer justice in public, which means that all parts of a judgment should be publicly available, unless there is a very powerful reason to the contrary. This principle is so important not merely because it helps to ensure that judges do not, and do not appear to, abuse their positions, but also because it enables information to become available to the public. What goes on in the courts, like what goes on in Parliament or in local authority meetings or in public inquiries, is inherently of legitimate interest, indeed of real importance, to the public. Of course, many cases, debates, and discussions in those forums are of little general significance or interest, but it is not for the judges or lawyers to pick and choose between what is and what is not of general interest or importance...


It's a good principle, even though Neuberger was seemingly quite prepared to breach it. Only the publication of the facts in the United States allowed him to pose as a champion of open justice.