Analysis - Victory For Common Sense And Open Justice
The decision of the Court of Appeal judges today to restore most of their original criticisms of the security services is a victory for common sense and open justice.
Even in its final version, paragraph 168 of their ruling remains a damning indictment of the behaviour of M15 over Binyam Mohamed; and those criticisms are now in the public domain.
But the episode, with its leaks, accusations and counter-accusations, has left a bad taste — no one emerges well from a fiasco that enabled accusations to be made that ministers tried to interfere with the courts.
The appeal judges led by the Lord Chief Justice reached their decision to restore most of their original criticisms of M15 after representations from lawyers for Mr Mohamed and from the media.
They also agreed to release the original highly critical draft paragraph 168 — the one that prompted Jonathan Sumption, QC, counsel for David Miliband, the Foreign Secretary, to send a letter asking them to reconsider its terms.
Why did they change their mind? First, they say they did not: the short redacted paragraph published in place of the original 168 as part of their ruling on February 10 was always just a draft, they said yesterday, and they made clear at the time they would hear further argument about it.
As for publication of the original 168, the judges had little option. Its essence was already in the public domain.
It had been summarised by Mr Sumption in a letter to the judges and then released to the media — in breach, the judges said yesterday, of the confidentiality rules.
As a result, Lord Judge, the Lord Chief Justice, said public comment was based on Mr Sumption’s observations rather than on the actual text of the first draft itself.
If the original draft paragraph was not made public, comment on the final version and any comparisons between the first and final draft would "be informed by deductions and inferences based on Mr Sumption’s latter".
Better by far, he added, that the original be disclosed and available for comment. "In this way, it will speak for itself without the forensic gloss put on it by Mr Sumption on his letter."
In their February 10 ruling the judges said that seven redacted paragraphs concerning what the security services knew about the torture abroad Mr Mohamed should be published.
The Foreign Secretary had fought hard for them to be kept under wraps, arguing that disclosure would breach the confidentiality principles governing the sharing of intelligence between the US and Britain.
But on the day of the ruling it emerged that on receiving the draft judgment Mr Sumption had sent his letter expressing concern and the judges had substantially amended their comments.
Lord Judge warned that unless the subsequent furore and discussion was fully informed, "a damaging myth may develop to the effect that in this case a Minister of the Crown, or counsel acting for him, was somehow permitted to interfere with the judicial process".
He added: "This did not happen and it is critical to the integrity of the administration of justice that if any such misconception may be taking root it should be eradicated."
He pointed out that all five judges who sat on the case had rejected claims by the Foreign Secretary that the seven paragraphs not be disclosed.
But publication of the paragraph would be the most compelling way to dispel any "lingering public perception of ministerial interference". The interests of open justice, he said, must prevail.
So did Mr Sumption have a right to send his letter of protest about the contents of the draft judgment? The appeal judges were unequivocal: judges are not bound by such drafts.
Usually the purpose of circulating these in confidence is to correct typing or other errors. but "on rare occasions and in exceptional circumstances" they may reconsider the content, he said. This was of "high exceptionality."
They also insisted that his letter was neither secret nor private but accepted that "something had gone awry" over its delivery, in that it did not reach all parties in the case, in line with an "elementary rule of the administration of justice".
Whatever the reason for the bungling, Mr Sumption’s efforts to remove criticisms of the security services spectacularly backfired. And the judges were exposed to damaging accusations of interference. Now they have done as much as they can to dispel that perception.
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