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

A claim to public interest immunity concerning evidence of alleged torture or other serious criminal misconduct by state officials is not subject to an absolute bar. The court must balance the public interest in disclosure against national security and other competing interests.

The balancing exercise requires consideration of the importance of open justice, the rule of law, free speech and democratic accountability; the real risk of serious harm to an important public interest; whether limited disclosure or alternative measures can adequately protect that interest; and, finally, where the balance lies. National-security assessments are matters for the Executive, provided they have an evidential basis and are made in good faith, but the ultimate balance is for the court. The court maintained the redaction because parliamentary scrutiny, criminal investigation and existing public information sufficiently protected the relevant interests without exposing the United Kingdom to a real risk of serious damage to national security.

The claimant sought disclosure from the Foreign Secretary of information concerning his detention and alleged mistreatment by or on behalf of the United States Government. Earlier judgments had ordered disclosure of documents, subject to public-interest considerations. Following subsequent developments, the only remaining issue was whether seven short paragraphs summarising reports made by United States officials should be restored to the court’s first open judgment.

The Special Advocates argued that public interest immunity could not be invoked to conceal evidence of torture, cruel, inhuman or degrading treatment, or serious criminal misconduct by state officials. The Foreign Secretary relied on a certificate stating that publication created a real risk of serious harm to national security and international relations. The central issue was how the public interest in open justice and accountability should be balanced against that risk.

1. The application was refused. The redacted paragraphs were not restored to the first judgment.

2. There was no absolute bar to considering public interest immunity merely because the material concerned alleged torture, cruel, inhuman or degrading treatment, war crimes or other serious criminality. The authorities, including R v H [2004] UKHL 3, A v Secretary of State for the Home Department (No 2) [2005] UKHL 71 and R v Keene [1994] 1 WLR 746, did not establish an exception to the balancing approach. The status of the prohibition on torture as jus cogens did not itself require disclosure. Article 72 of the Rome Statute and section 39 of the International Criminal Courts Act 2001 also recognised protection for material whose disclosure could prejudice national security.

3. The court applied the balancing framework derived from R v Chief Constable of the West Midlands, ex p Wiley [1995] AC 274. The questions were whether there was a public interest in disclosure; whether disclosure created a real risk of serious harm to an important public interest; whether other methods or more limited disclosure could protect that interest; and, if not, where the balance lay. The final balancing decision was for the court.

4. Open justice, the rule of law, free speech and democratic accountability gave disclosure considerable public importance. The court nevertheless accepted, following the approach in SSHD v Rehman [2001] UKHL 47 and R (Corner House Research) v Director of the Serious Fraud Office [2008] UKHL 60, that the Foreign Secretary was better placed to assess the national-security and international-relations consequences. His assessment was entitled to substantial weight because it had an evidential basis and was made in good faith. The motives of the United States Government were irrelevant; the reality of the threat was decisive.

5. The available alternatives were material. The Intelligence and Security Committee could investigate and hold the Government and intelligence services to account, although it could not publish information whose disclosure was considered prejudicial to intelligence functions. The reference to the Attorney General provided an independent route for investigation and possible prosecution. Existing public information also permitted informed debate, even though publication of the redacted material would have improved that debate.

6. In the circumstances, the alternative mechanisms and information already in the public domain adequately protected the rule of law and democratic accountability without exposing the United Kingdom to the real risk of losing intelligence vital to national security. The balance therefore favoured maintaining the redaction.

This was a further judgment in proceedings before the Divisional Court concerning whether material redacted from an earlier judgment should be restored. The earlier judgments were identified as [2008] EWHC 2048 (Admin), [2008] EWHC 2100 (Admin) and [2008] EWHC 2519 (Admin). The court stated that the remaining issue was whether the redacted paragraphs should be placed in the public domain.