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

Where a proposed foreign plea bargain is governed by procedures materially different from those in England and Wales, the foreign tribunal is ordinarily the appropriate forum to decide whether disputed documents should be disclosed for plea advice. A United Kingdom court may consider the tribunal’s responsibility for approving and receiving the plea, together with the safeguards applicable in the foreign system. Principles of open justice and the rule of law may require publication of an annex forming an integral part of an existing judgment, notwithstanding a later confidentiality agreement.

The claimant faced proceedings before a United States Military Commission. During disclosure proceedings, he was offered a proposed plea agreement involving guilty pleas, cooperation with the prosecution, restrictions on further litigation and possible confinement. His advisers sought access to 42 documents.

The court considered the role of the Military Commission’s Convening Authority, the United States plea-bargaining procedure and its differences from practice in England and Wales. It also considered whether Judge Sullivan should determine the disclosure issue and whether the annex could later be made public.

1. The proposed plea agreement imposed substantial obligations, including guilty pleas, cooperation with the prosecution, restrictions on litigation and a possible sentence of up to 10 years. The claimant was being asked to decide whether to accept it without access to the 42 documents.
2. Under the Rules of Military Commissions, rule 705 and following, the Convening Authority approved any plea bargain, while the military judge received the plea and determined sentence.
3. The United States plea-bargaining system differed materially from the procedure in England and Wales. In England and Wales, the procedure described in Goodyear [2005] 2 Cr App 20 involved a judicial indication of the maximum sentence based on material available to the court and defence, rather than an agreement between the parties as to sentence. Sections 73–75 of the Serious and Organised Crime Act 2005 concerned assistance to the prosecution but did not alter the ordinary plea process in other cases.
4. In that context, it was more appropriate for Judge Sullivan, who was responsible for the foreign proceedings, to decide whether the documents should be disclosed for plea advice.
5. The court could not take account of the plea-bargain and confidentiality issue while withholding its reasoning from publication. Open justice and the rule of law required publication at an appropriate time. A later agreement could not prevent publication because the annex formed an integral part of the judgment handed down on 22 October 2008.