Mohamed, R (on the application of) v Secretary of State for Foreign & Commonwealth Affairs (3)

Where foreign proceedings are capable of resolving issues concerning disclosure of potentially exculpatory material, the English court may stay related proceedings for a defined period, particularly where the foreign court has effective control over the relevant process and is better placed to devise an appropriate disclosure mechanism.

The court should nevertheless assess the importance of the material to fairness, the explanation for non-disclosure, the extent of delay and any public-interest-immunity or national-security consequences. Serious allegations against a non-party should not ordinarily be determined without giving that party notice and an opportunity to respond.

The claimant, detained at Guantanamo Bay and facing possible proceedings under the US Military Commissions Act 2006, sought disclosure from the United Kingdom Government of material potentially supporting his case that confessions had resulted from unlawful detention and ill-treatment.

Earlier judgments had found the material essential to a fair consideration of his case. Subsequent developments included disclosure of only seven of 42 documents in US habeas corpus proceedings, disputed redactions, and dismissal without prejudice of the military commission charges. The central issue was whether the English proceedings should be stayed pending a status conference before Judge Sullivan in the United States District Court.

1. The proceedings were stayed for a defined period. The court accepted that the issues concerning disclosure should first proceed before Judge Sullivan. The stay would allow the United States court to consider why only seven of the 42 documents had been disclosed, the reasons for the redactions, and whether the material could be made available for use before the Convening Authority.
2. The United States courts were ordinarily the appropriate forum for challenges to the conduct of the United States Government and the legality of its actions. The claimant was in United States custody, and both the habeas corpus proceedings and any renewed military commission proceedings were governed by United States law.
3. The court remained satisfied that all 42 documents were relevant and potentially exculpatory. They had to be read together and in sequence. The material was relevant to all aspects of the confession because it potentially supported the claimant’s account that it followed prolonged incommunicado detention and torture or cruel, inhuman or degrading treatment.
4. Fairness and justice required disclosure of the documents where the confession was relied upon as voluntary and the documents provided the only independent support, in material respects, for the claimant’s account. A refusal to disclose could support a serious contention that prosecutors were not acting in good faith.
5. Serious allegations against the Government of the United States could not simply be rejected as fanciful. Applying the principle in Rustenberg Platinum Mines v Pan American Airways [1977] 1 Lloyd's Rep 564, fairness required notice and an opportunity for the foreign government to comment. The court therefore declined to determine the allegations immediately.
6. The court recognised the substantial delay, the claimant’s detention for more than six years and his deteriorating mental health. The importance of delay was also reflected in Boumediene v Bush 547 US ... (2008). The court considered that Judge Sullivan was best placed to resolve the disclosure mechanics and bring the dispute to an early and just resolution.
7. The court recorded that the events were deeply disturbing and directed that the matter be brought to a just conclusion as soon as possible. The issue of restoring redacted passages to the open judgment was reserved for a later open judgment.

The judgment itself describes earlier stages in the same proceedings:

• High Court (Administrative Court): An earlier open judgment, [2008] EWHC 2048 (Admin), directed that specified exculpatory information be provided in confidence, subject to discretion and any public-interest-immunity claim.
• High Court (Administrative Court): A second judgment, [2008] EWHC 2100 (Admin), considered assurances concerning disclosure by the United States Government.
• High Court (Administrative Court): In the present judgment, the proceedings were stayed pending the status conference before Judge Sullivan.