What’s in a Name? Counter-Terrorism Measures v Open Justice

It is a general principle of any justice system that not only must justice be done but justice must be seen to be done. At least part of this second limb is literal: court cases and trials are held in public and reported, in full, to the public unless there are extenuating circumstances which warrant closed proceedings or reporting restrictions (see, in particular, Scott v Scott [1913] AC 417).

This is the principle of open justice and, according to Lord Judge, Lord Chief Justice of England and Wales, it ‘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. […]’ (§ 39, The Queen on the application of Binyam Mohamed v the Secretary of State for Foreign and Commonwealth Affairs, [2010] EWCA Civ 65) Lord Judge went so far as to state that ‘[…] the principles of freedom of expression, democratic accountability and the rule of law are integral to the principle of open justice and they are beyond question. […]’ (§ 41, supra)

Open justice is particularly important in cases involving counter-terrorism measures as other principles of the adversarial justice system, such as the equality of arms and the right of each party to test the evidence, are often made subject to the interests of national security. In two recent cases, the principle of open justice has been used by the UK courts to push the public debate on counter-terrorism measures adopted in the wake of terrorist attacks in New York, London and Madrid.

The first case comes in the context of Binyam Mohamed’s ongoing efforts to hold the UK government to account for its complicity in his torture and ill-treatment while detained by the US. In a judgment of February 2010 the Court of Appeal allowed seven paragraphs of a lower court’s judgment to be published. These paragraphs (annexed to the Court of Appeal’s judgment, Appendix, supra) describe Mr. Mohamed’s treatment at the hands of the CIA, concluding, obiter, that Mr. Mohamed had been subject to ‘at the very least cruel, inhuman and degrading treatment […] by the United States authorities’ and that the UK secret services were aware of this. The Court of Appeal dismissed the Foreign Secretary’s argument that publishing these paragraphs would provoke ‘a review’ of the existing intelligence sharing arrangements between the US and the UK which would, in turn, damage the national security of the UK. The Court held that ‘a real risk of serious damage to national security, of whatever degree, should not automatically trump a public interest in open justice which may concern a degree of facilitation by UK officials of interrogation by US officials using unlawful techniques which may amount to torture or cruel, inhuman or degrading treatment’ (§ 290, supra, per Sir Anthony May, President of the Queen’s Bench Division) and concluded that the paragraphs should be published, mostly because the gist of their content had already been published in the US in a US judgment.

The second case is that of Re The Guardian (Application by Guardian News and Media Ltd and others in Her Majesty’s Treasury v Mohammed Jabar Ahmed and others (FC), Her Majesty’s Treasury v Mohammed al-Ghabra (FC), R (on the application of Hani El Sayed Sabaei Youssef) v Her Majesty’s Treasury, [2010] UKSC 1, Lord Rodger giving judgment) concerning the anonymity orders granted to individuals included on the UN and UK lists of those suspected of belonging to or funding Al-Qaida and who therefore have had their assets frozen. In that case, the UK Supreme Court found that the interests of open justice outweighed the ‘very general’ (§ 74, supra) evidence of the negative effects on the private life of the individuals subject to freezing orders. Lord Rodger stated ‘[…] if newspapers can identify the people concerned, they may be able to give a more vivid and compelling account which will stimulate discussion about the use of freezing orders and their impact on the communities in which the individuals live […]’ (§ 65, supra) further noting that ‘[a]t present, the courts are denying the public information which is relevant to that debate, even though the whole freezing-order system has been created and operated in their name.’ (§ 69, supra)

In the case of the freezing-order system, public debate is all the more important because an order freezing assets is imposed precisely because the prosecuting authorities do not have enough evidence to prove their suspicions in a court of law. There is thus no trial, no opportunity for the public, or the individual, to hear and test the evidence and no opportunity for the court to hold the Executive to the rule of law standard. For counter-terrorism measures generally, the view of the court would seem to be that the public should know what is being done in their name. This does not mean that the courts are ready to sacrifice national security to more derogable principles but it does mean that they are more willing to adhere to the principle of open justice in counter-terrorism cases thereby increasingly holding the Executive to account on behalf of the population. Such cases demonstrate the power of freedom of expression but also the balancing that must be operated by the courts in a democratic society when evaluating competing rights against one another.

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