British security services colluded in the unlawful detention and
facilitated the interrogation of a UK resident detained in Pakistan six
years ago, the high court ruled today.
Two judges ordered the
foreign secretary to hand over to Binyam Mohamed's legal team secret
information that could support his case that he was tortured in
Pakistan and Morocco before being sent to Guantánamo Bay.
Lord Justice Thomas and Mr Justice Lloyd Jones found that the British security service "facilitated interviews by or on behalf of the United States incommunicado and without access to a lawyer in Pakistan" (pdf) in 2002. The detention was unlawful under Pakistani law, the judges said.
30, an Ethiopian national who worked as a caretaker in London, was
charged by the US with terror offences in May and could face the death
penalty if found guilty by a military tribunal.
The judges found
the handing over of information held by the British government about
the alleged torture Mohamed suffered was "essential for him to have his
case fairly considered".
"Without that information BM [Mohamed]
will not be able to put forward a defence to the very serious charges
he faces, given the confessions made by him in Bagram and Guantánamo
Bay in 2004," the judges ruled.
"It is a longstanding principle
of the common law that confessions obtained under torture or cruel,
inhuman or degrading treatment cannot be used in evidence in trial."
judges said the court had established that the British secret service
facilitated the questioning of Mohamed. "By seeking to interview BM in
the circumstances found [in Pakistan] and supplying information and
questions for his interviews, the relationship between the United
Kingdom government and the United States authorities was far beyond
that of bystander or witness to the alleged wrongdoing."
the hearing of the case, Dinah Rose QC, for Mohamed, said he was
tortured after his detention in Pakistan. He was rendered to Morocco
where he was subjected to more prolonged and brutal torture after being
made to "disappear", she said.
The former Kensington caretaker
alleges he was repeatedly slashed in the genitals with a razor blade
while being held in Morocco. Finally, he was rendered to Guantánamo Bay, where he has spent the past four years.
told the judges the US authorities denied that Mohamed had been
subjected to extraordinary rendition or torture. But there were strong
grounds for believing that MI6 and MI5 held independent evidence
supporting his story of torture.
Lawyers for the Foreign Office
argued at the hearing that the government had acted within its powers
and was not legally obliged to make the disclosures sought. The foreign
secretary was entitled to proceed on the basis that the US legal system
would safeguard Mohamed's rights, they said.
To disclose the documents sought would cause serious damage to national security, it was submitted.
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A significant part of the case took place in closed session due to the sensitivity of much of the material before the court.
judgment said the foreign secretary accepted that Mohamed had
established an arguable case that he was "subject to torture during his
detention by or on behalf of the United States". It was also accepted
that he had an arguable case that he was subject to cruel, inhuman and
"The court finds on the basis that what was
done was arguably wrongdoing, the [British] security service
facilitated it," the judgment said.
Mohamed's solicitor, Richard
Stein, of Leigh Day & Co, said: "Today's judgment reflects the
abhorrence of decent society at the methods employed by the United
States government in the supposed 'war on terror'.
"It has taken
the courts of this country to intervene and reiterate the importance of
upholding the rule of law. We can only hope that the foreign secretary
will now reflect on this judgment and provide direct assistance to
Binyam's defence team."
Clive Stafford Smith, who has represented Mohamed since 2005, described the ruling as a "momentous decision".
the British government to release information that can prove Mr
Mohamed's innocence is one obvious step towards making up for the years
of torture that he has suffered.
"The next step is for the
British government to demand an end to the charade against him in
Guantánamo Bay, and return him home to Britain," he said.
spokesman for the Foreign and Commonwealth Office said the department
was considering the implications of the judgment very carefully.
strong reasons of national security, to which the court accepted we
were entitled to give the highest weight, we could not agree to
disclose this information voluntarily."
The ruling acknowledged
that the British government last year requested that Mohamed be
returned to the UK and that Britain had gone to "great lengths" to