Page last updated at 18:06 GMT, Monday, 14 December 2009

Minister attacks judges in Binyam Mohamed torture case

Binyam Mohamed
Mr Mohamed: Secret summary critical to his case

The government has accused two senior judges who ruled that intelligence on torture allegations should be made public, of irresponsibly "charging in".

Ministers are appealing against a High Court ruling that the public should know about allegations made by former Guantanamo Bay detainee Binyam Mohamed.

Mr Mohamed says a secret summary of his treatment must be released in the UK.

But the foreign secretary told the Appeal Court the summary would "seriously damage national security".

The High Court judges - Lord Justice Thomas and Mr Justice Lloyd Jones - are under what is being seen as an unprecedented attack by a government minister on the senior judiciary.

ANALYSIS
by Clive Coleman, BBC legal affairs analyst
Clashes between ministers and the judiciary are not new. While serving as home secretary, both Michael Howard and David Blunkett famously crossed swords with judges on a number of issues.

There have been spats over sentencing, but perhaps the biggest factor creating tension is the rise and rise of judicial review over the last 30 years.

"JR", as it is known, allows people to challenge decisions made by public bodies. Its rapid growth means that there are now few areas of government decision-making that cannot be scrutinised by the courts. This has led to to what many believe to be THE constitutional clash of our time, between an executive made up of elected politicians, and a judiciary consisting of independent but unelected judges.

If ministers resent court rulings that declare their policy to be unlawful, the judiciary do not take kindly to any interference with their independence.

Jonathan Sumption QC, appearing for Foreign Secretary David Miliband, told the Court of Appeal that the judges' stance was "both, in many respects, unnecessary and profoundly damaging to the interests of this country".

Mr Sumption added: "I would go so far as to say their views were irresponsible."

Mr Sumption said that since Mr Mohamed had now been released from Guantanamo Bay, he was no longer affected by today's legal proceedings which had "essentially been taken over to serve a wider, and in some respects, political agenda".

The government's appeal is being opposed by both Mr Mohamed and media organisations.

The case is due to last three days and a judgement is expected in the new year.

Ethiopian-born Binyam Mohamed is a legal resident of the UK who was returned to London following his release earlier this year from the US jail at Guantanamo Bay.

He was first held in Pakistan in 2002 - and then taken to secret prisons in Morocco and Afghanistan.

BINYAM MOHAMED
Detained in Pakistan in 2002, questioned there by MI5 officer
Transferred to Morocco, claims he was tortured in US custody and asked questions supplied by MI5
Later interned in Guantanamo Bay and eventually released in 2009

Mr Mohamed says he was tortured at the behest of the CIA - and MI5 provided questions and material for his interrogations.

Earlier this year Lord Justice Thomas and Mr Justice Lloyd Jones said they wanted to release a seven-paragraph summary of what Washington had told London about Mr Mohamed's treatment.

They said this summary was critical to the former detainee's case against the government and the US.

But Foreign Secretary David Milliband has refused to release the information, accusing the court of acting beyond its powers.

In its appeal, the government will repeat its argument that the judges have no right to release the summary because it is drawn from intelligence documents that can never be disclosed without permission from the US.

Releasing the material would damage national security, says the government, because the US would no longer be prepared to share critical secret information if it thinks British judges will later published it.

Lawyers for the foreign secretary are expected to tell the court that releasing the summary would be an "unprecedented" breach of confidence.

HIGH COURT RULING (Oct 09)
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The High Court earlier rejected this claim, ruling the summary was not secret information - and did not give away anything sensitive such as the names of officers.

A separate police investigation is still investigating whether a MI5 officer, known only as Officer B, was complicit in Binyam Mohamed's mistreatment.

Campaigners have described as "bizarre" the government's refusal to disclose the allegations.

Clive Stafford-Smith of legal charity Reprieve, which represents Mr Mohamed, said: "What's happened over the last year-and-a-half is that government has been conspiring with the United States to cover-up the criminal offence of torture.

"While Binyam has told his story, there are people out there who deny it.

"It's very important that if there is official evidence out there that shows he is telling the truth, that he was tortured, then the world has a right to know."



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