The court cases that prompted concern 2008-2011
Civil and administrative proceedings of different kinds were of concern to the government. Amongst a number of cases, two sets of proceedings are of particular note: the Binyam Mohamed case and the Al-Rawi case. Similarly, there have been a small number of inquests that have caused potential difficulties for the government, amongst which the 7/7 Inquest and the (now) Azelle Rodney Inquiry are of most importance in terms of the government's proposals.
The Binyam Mohamed cases : seeking information
In a 'Norwich Pharmacal application' a former Guantanamo detainee, Binyam Mohamed, sought to get the government to release information that would assist him in defending himself in legal proceedings in the United States. The UK courts delivered several judgments that dealt with different aspects of the application.
First, the High Court delivered its judgment on the Norwich Pharmacal application: Mohamed, R (on the application of) v Secretary of State for Foreign & Commonwealth Affairs (Rev 31-07-2009) [2008] EWHC 2048 (Admin) (21 August 2008)
Then, over the next two years, there were a series of six further decisions about the extent to which the court should in its open judgments include relevant extracts or summaries of some of the documents or information held by the government: first in the High Court ([2008] EWHC 2519 (Admin) (22 October 2008), [2009] EWHC 152 (Admin) (04 February 2009), [2009] EWHC 2549 (Admin) (16 October 2009), [2009] EWHC 2973 (Admin) (19 November 2009)); and then the Court of Appeal ([2010] EWCA Civ 65 (10 February 2010), [2010] EWCA Civ 158 (26 February 2010) )
The Al-Rawi litigation: an action for damages
Several former Guantanamo detainees sued the Security Service and other state authorities, arguing that there had been British complicity in their unlawful detention and torture. The government's argument was that it held information which would enable it to defend the claim but that the sensitivity of the information meant it couldn't be seen by the claimants. The government then asked the court to use closed proceedings in which the judge and special advocates would be able to see sensitive information held by the government, but the information would not be disclosed to the claimants. At first instance the trial judge, Justice Silber, found in favour of the government and held that the common law did permit the use of closed proceedings: [2009] EWHC 2959 (QB) (18 Nov 2009). The claimants appealed. The Court of Appeal reversed the first judgment and said that the government must reveal its case to the claimant: [2010] EWCA (Civ) 482 (4 May 2010). At that point, the government settled the case, making payments to the claimants. However, the government took the legal issue to the Supreme Court to see if closed proceedings could be used in civil cases. The Supreme Court held that the common law did not permit it; closed proceedings could only be used if there was legislation to allow it: Al Rawi & Ors v The Security Service & Ors [2011] UKSC 34 (13 July 2011).
The inquest into the death of Azelle Rodney
In August 2007, HM Deputy Coroner Andrew Walker suspended an inquest into the death of Azelle Rodney: a young man who was shot dead by police on 29 April 2005. In his ruling, the Coroner concluded that the inquest, which would have to be held with a jury, would be unable to lawfully consider certain sensitive evidence which appeared to be core to the circumstances of Azelle's death. As a result, the inquest would be unable to fulfil its purposes. In response, in August 2007, the Government tried to introduce provisions for "secret inquests" into the Counter-Terrorism Bill in 2008. When the Government was defeated, they dropped the proposals, but later tried to re-introduce similar provisions into the Coroners and Justice Bill. Eventually, despite fierce opposition in the House of Lords, the Government forced through provisions that would allow the government to suspend an inquests and to set up an inquiry in its place. Under the Inquiries Act 2005, the chairman of an inquiry can be security cleared and is able to consider evidence in secret, in the absence of the public, the media, the family of the deceased and their legal representatives.
In the Green Paper, the Government acknowledged that it is now possible for the government to suspend an inquests where sensitive evidence may need to be considered, and to set up an inquiry in its place. However, the Green Paper takes issue with the delays and costs that it believes inevitably ensues from this approach.
Inquest into the London Bombings of 7 July 2005
The Coroner's Inquest into the London Bombings of 7 July 2005 opened to hear evidence on 11 October 2010. During the inquest, the Secretary of State for the Home Department made an application for the Coroner to consider certain evidence behind closed doors, in the absence of the press, the public and the families of victims of the bombings, on the grounds that public disclosure of the evidence would damage national security. On 3 November 2010, Assistant Deputy Coroner, Lady Justice Hallett D.B.E, ruled that she did not have the power to exclude the families of the deceased from proceedings, although evidence could be edited to remove certain names and other confidential information. The Government challenged the decision in the Administrative Court, but the ruling was upheld on 22 November 2010: Secretary of State for the Home Department v Assistant Deputy Coroner for Inner West London [2010] EWHC 3098 (Admin).
In the Green Paper, the Government argues that while the 7/7 Inquest was an effective investigation into the circumstances of the London bombings, the inability of the Coroner to hold closed sessions meant that not all of the relevant evidence could be considered.