Given that the thrust of the Advocate General's submissions to the High Court of Justiciary on the public interest immunity (PII) issue has been to seek to induce the Scottish court to adopt an approach identical to, or more closely in line with, that taken in the English courts, it is instructive to read yesterday's judgement by Lord Justice Thomas and Mr Justice Lloyd Jones in the case of Binyam Mohamed (the last UK resident imprisoned at Guantanamo).
The Foreign Secretary in that case contended that although information had been supplied to the US authorities from UK security and intelligence sources about the circumstances of Mr Mohamed's detention and interrogation, that information need not be supplied to the defence team. The basis of the Foreign Secretary's contention was "that disclosure, even on a limited basis ... would seriously prejudice the viability of the United Kingdom's liaison relationships with highly valued partners ... and the importance of keeping secret information received on a confidential basis from informants and liaison intelligence agencies so as to protect the operational effectiveness of the United Kingdom security and intelligence agencies."
This is precisely the basis of the Foreign Secretary's PII certificate in the Lockerbie appeal.
In the Binyam Mohamed case the English court overrode the secrecy claim and ordered disclosure. The full judgement can be read here.
[I am grateful to Big David for drawing my attention to this judgement.]
It may be worth stressing that this Binyam Mohamed judgment was not concerned with PII: there has not (as yet) been a PII certificate issued. If one is issued, it will be considered by the court next week. Also worth noting that all BM is seeking is for documents to be disclosed to security-cleared US lawyers (for him to use to defend himself against criminal proceedings there).
ReplyDeleteAll perfectly true. But do you really think it makes a legal difference to the principles applicable whether a national security non-disclosure claim is made through a PII certificate or through some other mechanism? And if the “special representative” concept has no statutory basis in Scottish criminal procedure (unlike Scottish civil procedure where it is provided for, in defined circumstances, by legislation and Act of Sederunt) is it a matter for judges to introduce it in a particular case or, as the Coulsfield Report recommended, should the matter be one for the legislature?
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