Sunday, January 20, 2013

British Newspaper launches High Court bid to end the scandal of Secret Justice

British newspapers are the thin thread that keeps justice alive in Britain. British governments have no respect for anything but their own convenience

Harrowing claims of British complicity in torture are at the centre of a Mail on Sunday bid to stop court rulings being kept secret. This newspaper has made an application in the High Court for a secret judgment of alleged torture to be published in full.

Secret judgments – court decisions whose contents are hidden from both the public and the people they affect – are set to become far more common if the Justice and Security Bill now before Parliament becomes law.

The case cited in The Mail on Sunday’s application involves claims that British troops in Afghanistan routinely handed over prisoners to the country’s security service, the NDS, knowing they would be tortured.

Our court application against the Ministry of Defence quotes warnings from senior judges that secret rulings pose a grave threat to free speech and the rule of law.

The case involves two separate judgments made in a horrifying Afghan torture case in 2010: one open, the other kept secret.

The ‘open’ judgment ruled that prisoners captured by British troops could be transferred to the NDS in Kandahar and Lashkar Gah in Helmand, but not in Kabul. The reasons for this were contained in the ‘secret’ ruling, seen only by the Government and a security-cleared ‘special advocate’.

The MoS’s application cites new disclosures in a second case, which was brought by Afghan prisoner Serdar Mohammed, who claims British troops handed him to the NDS knowing he would be tortured.

Just before the hearing into his case was due to start last November, Defence Secretary Philip Hammond announced that prisoners would no longer be turned over to the Afghan authorities. It followed the first public disclosure of a statement made by a senior MoD official during the 2010 torture case.

MoD lawyer Barry Burton described how a prisoner had been handed to the NDS in Kabul after a personal assurance from the agency’s security chief that he would not be mistreated. However, the man later complained he had been beaten with iron rods, causing lasting injuries. The statement also claimed that UK officials took photos of the victim’s injuries.

Mr Burton’s testimony was originally considered under a ‘closed material procedure’, which allows the Government to present evidence to a judge without having to disclose it to the whole court. Following the 2010 case, the Supreme Court ruled that CMPs – which are alien to centuries of English legal tradition – should not be used at all. However, in the Justice and Security Bill, the Government is seeking to overthrow this through legislation. If successful, it means CMPs are set to become common.

This newspaper is arguing that because Mr Burton’s statement has already been published by the MoD, the security considerations that kept it secret no longer apply.

As a result, the original secret judgment, or at least the parts which discussed Mr Burton’s testimony, should be published, too. Our High Court application, issued on Thursday, cites comments made in an earlier case by Lord Judge, the Lord Chief Justice, saying the press has a special role in ensuring justice is not only done, but seen to be done.

Lord Judge said: ‘In litigation, particularly litigation between the Executive... and the citizen, the principle of open justice represents an element of democratic accountability, and the vigorous manifestation of the principle of freedom of expression. Ultimately it supports the rule of law itself.’ Closed judgments, he went on, should only ever be given in ‘extreme circumstances’.

The application also cites the President of the Supreme Court, Lord Neuberger, who said in a lecture in November: ‘Without judgments there would be no justice, because decisions without reasons are not justice: indeed, they are scarcely decisions at all.’

The MoS is also asking for a ruling that secret judgments should be regularly reviewed, to ensure that material does not stay hidden for longer than necessary.

An MoD spokesman said that the Government had not yet had time to decide how it would respond

Original report here

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