Mohamed, R (on the application of) v Secretary of State for Foreign & Commonwealth Affairs (Rev 1)

A court may reopen an unperfected judgment only in exceptional circumstances, although the test may receive a more generous application in public law proceedings. Intelligence-sharing arrangements are protected by an important convention, but the principle of control over intelligence is not an absolute legal rule. Court-ordered disclosure may be justified where necessary to uphold the rule of law and democratic accountability. The court must ultimately decide whether disclosure is in the public interest, while giving appropriate weight to the Foreign Secretary’s assessment where it has an evidential basis and is made in good faith. A real risk of serious national-security harm must be established objectively. On the evidence, publication of a summary of information concerning United States conduct did not create such a risk.

The claimant’s judicial review proceedings concerned the treatment of Binyam Mohamed while detained by United States authorities and the knowledge and conduct of United Kingdom officials. In an earlier judgment, the court had withheld seven paragraphs from its open judgment following reliance by the Foreign Secretary on public-interest immunity and the asserted consequences for United Kingdom–United States intelligence-sharing arrangements.

After the change of United States Administration and further evidence, including United States communications and a further certificate, the court reconsidered whether its earlier judgment should be reopened and whether the redacted paragraphs, and separately the closed judgment, should be made public.

1. Reopening the judgment. An unperfected judgment may be reopened, but the jurisdiction is to be exercised sparingly and only in exceptional circumstances. The circumstances were exceptional because the earlier decision had proceeded on a fundamental misunderstanding of the Obama Administration’s position concerning the consequences of disclosure. The court was therefore entitled to reopen that aspect of its fourth judgment.
2. Control over intelligence. The principle that intelligence supplied by one State should not be disclosed without its consent is a long-established convention. It is not a legal obligation or rule of customary international law, and it is not absolute. Court-ordered disclosure is a recognised exception, particularly where disclosure is necessary to explain alleged wrongdoing by public officials and to uphold the rule of law.
3. Assessment of national-security risk. The Foreign Secretary’s certificate was entitled to deference where supported by evidence and made in good faith, but the ultimate decision belonged to the court. The CIA letter stated what could happen if disclosure occurred, rather than what would happen. The evidence did not establish a real risk of serious harm. The seven paragraphs contained no intelligence, secret methods, agents or information concerning assistance by other States. The statement attributed to Secretary of State Clinton was based on a misunderstanding and insufficient analysis of the material.
4. Public-interest balance and orders. The public interest in disclosure was overwhelming because the paragraphs concerned alleged wrongdoing and the involvement of United Kingdom security services. The court rejected the assertion that the Obama Administration’s position was the same as the Bush Administration’s. It ordered that the redacted paragraphs be restored to the open judgment. The application to publish the closed judgment was refused at that stage because doing so could prejudice a criminal investigation or proceedings, although the issue might be reconsidered after their conclusion.
5. The court also observed that arrangements for reporting partly closed proceedings should be addressed through Rules or a Practice Direction.