Page last updated at 13:34 GMT, Friday, 26 February 2010

MI5: The Court of Appeal's controversial paragraphs

The Court of Appeal has amended its own judgement on what MI5 knew about the ill-treatment of Binyam Mohamed in 2002.

The Ethiopian-born British resident was held by the CIA in Pakistan as a terrorism suspect. The judgement in February explained what MI5 knew at the time.

But one paragraph of the judgement, known as "Paragraph 168", written by Lord Neuberger, the Master of the Rolls, was amended after protests from the government that it was unfair to MI5 and suggested that it disregarded human rights.

In an exceptionally unusual move, the Court has now revealed that draft paragraph.

THE DRAFT PARAGRAPH

This is the original Paragraph 168 written by Lord Neuberger:

"The SyS [Security Service, MI5] were making it clear in March 2005, through a report from the Intelligence and Security Committee that 'they operated a culture that respected human rights and that coercive interrogation techniques were alien to the Services' general ethics, methodology and training' indeed they 'denied that [they] knew of any ill-treatment of detainees interviewed by them whilst detained by or on behalf of the [US] Government'.

"Yet that does not seem to be true: as the evidence in this case showed, at least some SyS officials appear to have a dubious record when it comes to human rights and coercive techniques, and indeed when it comes to frankness about the UK's involvement with the mistreatment of Mr Mohammed by US officials.

"I have in mind in particular witness B, but it appears likely that there were others.

"The good faith of the Foreign Secretary is not in question, but he prepared the certificates [applications to withhold information in the name of national security] partly, possibly largely, on the basis of information and advice provided by SyS personnel.

"Regrettably, but inevitably, this must raise the question whether any statement in the certificates on an issue concerning such mistreatment can be relied on, especially when the issue is whether contemporaneous communications to the SyS about such mistreatment should be revealed publicly.

"Not only is there an obvious reason for distrusting any UK Government assurance, based on SyS advice and information, because of previous 'form', but the Foreign Office and the SyS have an interest in the suppression of such information."

THE FIRST JUDGEMENT

That paragraph was originally replaced by a much shorter one that makes some general remarks about how the Foreign Secretary relied on advice from MI5 and that it was not clear whether Witness B, an officer under police investigation, had any involvement in Mr Mohamed's mistreatment.

THE FINAL PARAGRAPH

On Friday 26 February, Lord Neuberger issued a final opinion on the matter.

In effect, he uses the same language and makes the same observations - but he confines his criticisms to the specifics of Mr Mohamed's case - rather than a broader attack on the reputation of the secret intelligence agencies and their respect for human rights. He also removes the reference to "previous form".

This is the final version of Paragraph 168:

"The Security Services had made it clear in March 2005, through a report from the Intelligence and Security Committee, that 'they operated a culture that respected human rights and that coercive interrogation techniques were alien to the Services' general ethics, methodology and training', indeed they 'denied that [they] knew of any ill-treatment of detainees interviewed by them whilst detained by or on behalf of the [US] Government'.

"Yet, in this case, that does not seem to have been true: as the evidence showed, some Security Services officials appear to have a dubious record relating to actual involvement, and frankness about any such involvement, with the mistreatment of Mr Mohamed when he was held at the behest of US officials.

"I have in mind in particular witness B, but the evidence in this case suggests that it is likely that there were others.

"The good faith of the Foreign Secretary is not in question, but he prepared the certificates partly, possibly largely, on the basis of information and advice provided by Security Services personnel.

"Regrettably, but inevitably, this must raise the question whether any statement in the certificates on an issue concerning the mistreatment of Mr Mohamed can be relied on, especially when the issue is whether contemporaneous communications to the Security Services about such mistreatment should be revealed publicly.

"Not only is there some reason for distrusting such a statement, given that it is based on Security Services' advice and information, because of previous, albeit general, assurances in 2005, but also the Security Services have an interest in the suppression of such information."


Editor's note: Some legal references within the paragraphs have been omitted for clarity.



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