| ||The Guardian and The Independent this week both cover the Supreme Court’s ruling against the use secret evidence by MI5 and MI6 to conceal their alleged complicity in the torture and rendition of British citizens. |
The Guardian, who campaigned in favour of open justice and an end to secret evidence in trials, reports:
"The supreme court has outlawed the use of secret evidence in court by the intelligence services to conceal allegations that detainees were tortured.
The decision will be seen as a significant victory for open justice, but the panel of nine judges pointed out that parliament could change the law to permit such "closed material procedures" in future.
The appeal was brought by lawyers for MI5 seeking to overturn an earlier appeal court ruling that prevented the service from suppressing accusations British suspects had been ill-treated at Guantánamo Bay and other foreign holding centres.
The case arose originally out of claims by Bisher al-Rawi, Binyam Mohamed, Jamil el-Banna, Richard Belmar, Omar Deghayes and Martin Mubanga that MI5 and MI6 aided and abetted their unlawful imprisonment and extraordinary rendition.
In the judgment, which runs to nearly 120 pages, all of the judges rejected the security service's main submission that a court has a common law power to order a closed material procedure as an alternative to the more conventional public interest immunity (PII) certificate. Such a power, they argued, would contravene fundamental and long-established principles of open and natural justice.
Giving his judgment, Lord Dyson said: "There are certain features of a common law trial which are fundamental to our system of justice, both criminal and civil.
"First, subject to certain established and limited exceptions, trials should conducted and judgments given in public. The importance of the open justice principle emphasised many times.
"The open justice principle is not a mere procedural rule. It is a fundamental law principle.
"Secondly, trials are conducted on the principle of natural justice." To allow a "closed procedure" in such an ill-defined way could, he warned, "be the thin end of the wedge".
"This would be a big step for the law to take in view of the fundamental principles at stake. In my view this is a matter for parliament and not the courts."
In similarly forthright terms, Lord Hope dismissed the intelligence agencies' request for legal concealment. "There comes a point," he said, "where the line must be drawn between procedural choices which are regulatory only and procedural choices that affect the very substance of the notion of a fair trial.
"Choices that cut across absolutely fundamental principles – such as the right to be confronted by one's accusers and the right to know the reasons for the outcome – are entirely different. The court has for centuries held the line as the guardian of these fundamental principles."
The Guardian's submissions on open justice were acknowledged by the court. The government has, however, promised to produce a green paper on the use of intelligence material in closed court hearings.
Clive Stafford Smith, director of the anti-capital punishment charity Repreive, said: "The first casualty in the 'war on terror' certainly was the rule of law, but it is wonderful to see the law fighting back now.
"One must hope that the Conservatives and Liberal Democrats, having been so critical of this kind of infringement of our liberties while in opposition, will maintain that position now they are in power.""
The Guardian also reported on the annual report published by the Intelligence and Security Committee (ISC) which calls for MPs and peers to have a greater role in holding the security agencies, MI5, MI6 and GCHQ to account.
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