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

A minister’s assessment that disclosure would endanger national security receives very substantial weight, but the court retains the ultimate decision on public interest immunity and the contents of its judgments. There is a strong presumption that the court’s complete reasons will be public. Redaction requires compelling justification.

The intelligence-sharing control principle is an important practice, not an absolute rule of law. It cannot justify withholding information whose essential content has already been established publicly by a court of the state that supplied it. Once that occurred, the asserted national-security risk lacked a sufficient factual basis and the reasons had to be published.

The Foreign Secretary appealed from the Divisional Court’s decisions in [2009] EWHC 2549 (Admin) and [2009] EWHC 2973 (Admin) that seven subparagraphs should appear in the open version of an earlier judgment. Those paragraphs summarised reports from United States intelligence sources concerning the treatment of Binyam Mohamed while he was detained and interrogated.

The Foreign Secretary relied on public interest immunity and the intelligence-sharing control principle. He maintained that publication risked impairing intelligence cooperation and national security. After the appeal hearing, a United States District Court publicly found that Mohamed had been tortured while held at the behest of the United States. The central issue was whether any sufficient national-security basis remained for excluding the paragraphs from the Divisional Court’s published reasons.

1. Appeal dismissed unanimously. The seven subparagraphs were to remain in the open judgment. All three members of the court agreed that the later United States District Court findings deprived the Foreign Secretary’s case for redaction of a sufficient factual basis.

2. The ultimate decision whether material should be withheld from proceedings on public interest grounds belongs to the court. The same is especially true of deciding what appears in a judgment. A minister’s assessment of national-security risk nevertheless receives very substantial weight because responsibility, information and experience in that field lie primarily with the executive. Cogent reasons are required before a court rejects such an assessment: per Lord Neuberger MR and Sir Anthony May, applying Conway v Rimmer and Secretary of State for the Home Department v Rehman.

3. Open justice creates a very strong presumption that the parties, media and public may see the court’s complete reasoning. It supports judicial scrutiny, freedom of expression, democratic accountability and the rule of law. Redacting part of the reasoning is justified only by compelling circumstances and only to the extent necessary. The public interest was particularly strong where the findings concerned official knowledge of, and involvement in, treatment capable of amounting to torture.

4. The intelligence-sharing control principle is a significant understanding between cooperating states, but it is not a rule of law or an absolute guarantee. The courts retain power to order disclosure under public interest immunity principles. Before the subsequent United States judgment, Lord Neuberger MR and Sir Anthony May considered that the Foreign Secretary had an evidence-based, though slender, case that publication might affect intelligence sharing. Lord Neuberger would then have favoured redaction; Sir Anthony’s provisional conclusion was similarly balanced.

5. The subsequent United States judgment publicly found Mohamed’s account of his torture to be true in proceedings involving the United States Government. The information summarised in the disputed paragraphs could therefore no longer sensibly be characterised as confidential intelligence information controlled by the United States. There was no certificate or other evidence addressing the materially changed position. The asserted risk consequently fell away, and no further balancing exercise could justify redaction.

6. Lord Judge LCJ additionally considered the case a compelling instance for disapplying confidentiality. The paragraphs contained no operational secret and formed an integral part of the explanation why United Kingdom officials had facilitated wrongdoing. Concealing those reasons would be inconsistent with open justice, democratic accountability and the rule of law.

1. Court of Appeal (Civil Division): The Foreign Secretary’s appeal was dismissed. The court upheld publication of the seven subparagraphs: [2010] EWCA Civ 65 .
2. Divisional Court: In its fifth judgment, the court decided that the paragraphs should be restored to its open reasons: [2009] EWHC 2549 (Admin) . Its sixth judgment rejected further requested redactions and granted permission to appeal: [2009] EWHC 2973 (Admin) .
3. Divisional Court: Its fourth judgment had initially maintained the redactions after balancing open justice against the Foreign Secretary’s national-security assessment: [2009] EWHC 152 (Admin) .
4. Divisional Court: The original disclosure claim and subsequent developments were addressed in [2008] EWHC 2048 (Admin) , [2008] EWHC 2100 (Admin) and [2008] EWHC 2519 (Admin) .