Ministerial messing with justice
Lawyer Richard Stein (inset) outlines concerns in the case of Binyam Mohamed (main picture), from government attempts to manipulate court decisions to alleged complicity in torture. On Wednesday last week three senior Appeal judges dismissed the government’s arguments for secrecy
Published: 18 February 2010
WHEN I became Binyam Mohamed’s solicitor in early 2008 he was in detention in Guantanamo Bay. He had been held there without trial for three-and-a-half years.
He had been arrested in Pakistan in April 2002 and rendered unlawfully by US agents to Morocco and then Afghanistan where he had been tortured and held incommunicado.
In May 2008 he was charged and faced trial before the kangaroo military commissions in Guantanamo on potentially capital charges.
It has now been accepted by a US court that Binyam was in fact tortured. Although some efforts were made by the Foreign Office to secure Binyam’s release, the Foreign Secretary David Miliband has not covered himself in glory in the way he has handled the case.
There are three main areas which concern me.
• First, despite what Mr Miliband has said (backed up last Friday by Jonathan Evans, Head of MI5) the Foreign Office tried to prevent Binyam’s lawyers from having access to evidence which would help his defence.
At first they were evasive about whether any relevant material existed. They subsequently admitted they had material but refused to disclose it to Binyam’s lawyers unless ordered to do so.
At a High Court hearing in June 20 2008, Mr Justice Sullivan described the approach taken by Mr Miliband’s lawyers as “very, very disturbing”.
Given that Binyam, a British resident, faced the death penalty before a kangaroo court, it is worrying that it was only when the court forced the issue that information was actually provided to Binyam’s Guantanamo lawyers.
• Second, representatives of the United Kingdom government have repeatedly stated (in relation to this case and others) that they do not engage in, collude with or condone torture.
In Binyam’s case it appears that MI5 representatives were co-operating with their US counterparts, by providing information, while he was being tortured.
Criminal investigations are continuing. Unfortunately, Mr Miliband will not publish the government’s policy which sets out what our secret service agents can and cannot do when they know that others they are working with are involved in torture.
Mr Miliband has said that to publish the policy would “give succour to our enemies”.
That does not fill me full of confidence that the policy does not allow our agents to collude with torture, which would be a very serious crime.
• Third, throughout the case the government has repeatedly put pressure on the courts not to make public the judgments which the judges think are appropriate.
In the first judgment in August 2008, the court having considered all of the evidence very carefully, wanted to set out a summary of the treatment Binyam had reportedly received at the hands of the US authorities.
The UK government went to great lengths, many days’ hearings in the High Court and Court of Appeal (and I think at current reckoning seven public judgments running to hundreds of pages) to prevent the publication of those seven paragraphs.
They were finally published by the Court of Appeal last Wednesday.
In the latest attempt to limit one of the judgments in which the Court of Appeal published the seven paragraphs, Mr Miliband’s lawyers again pressured a judge to change a paragraph setting out his concerns about our secret services.
This final issue is likely to be resolved in the next few weeks.
This represents a very worrying trend with the government trying to intrude on the independent constitutional role of the courts, which is so important to our democracy.
• Richard Stein is a human rights partner at Leigh Day & Co who represent Binyam Mohamed
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