Ruling suggests fairness is more important than secrecy
The Court of Appeal has unanimously rejected a government request to hold a secret trial over the claims of former Guantanamo Bay inmates that that the government was complicit in their torture overseas.
The case, Al Rawi and Ors v Security Services and Ors [2010] EWCA Civ 482, involved the claims of Moazzam Begg and Binyam Mohamed and four others who were detained at Guantanamo and other detention centres. They claimed that each of the defendants— the Security Service, the Secret Intelligence Service, the Foreign and Commonwealth Office, the Home Office, and the Attorney General—caused or contributed towards their alleged detention, rendition and ill treatment.
The court overturned an earlier High Court ruling that a civil claim for damages could in principle be held in secret.
Lord Neuberger, the master of the rolls, said it was important for the court to declare “firmly and unambiguously” that there was no power for an English court to adopt such a procedure without the sanction of an Act of Parliament.
To do so would be a “pyrrhic victory” for the government, which would damage the reputation of both the government and the court, he said.
“[T]he principle that a litigant should be able to see and hear all the evidence which is seen and heard by a court determining his case is so fundamental, so embedded in the common law, that, in the absence of parliamentary authority, no judge should override it, at any rate in relation to an ordinary civil claim, unless (perhaps) all parties to the claim agree otherwise.
“At least so far as the common law is concerned, we would accept the submission that this principle represents an irreducible minimum requirement of an ordinary civil trial. Unlike principles such as open justice, or the right to disclosure of relevant documents, a litigant’s right to know the case against him and to know the reasons why he has lost or won is fundamental to the notion of a fair trial.”
Eric Metcalfe, director of human rights policy at Justice, which intervened in the case, says: “The Court of Appeal has made clear that fairness is more important than secrecy.”
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