Binyam Mohamed case: Torture and a question of judgment
- The Guardian, Saturday 13 February 2010
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An idea of how high the stakes in the case are can be gauged from the extraordinary pressure exerted on the courts this week over the case of Binyam Mohamed, who (no one now disputes) was tortured with the knowledge of the US authorities. The White House has criticised Wednesday's appeal court judgment. Both the foreign secretary and home secretary have come out fighting. The head of the intelligence and security committee has insisted all is sweetness and light in his world. And, extraordinarily, the head of MI5, Jonathan Evans, has written a newspaper article directly challenging the reported views of the judges.
But what are those views? Enter the almighty mess – a legal travesty for which there is no known precedent. It centres on paragraph 168 of the judgment drafted by the master of the rolls, Lord Neuberger, and adopted by the lord chief justice and by Sir Anthony May. When the government's QC, Jonathan Sumption, read the draft paragraph he wrote to the judges asking them to alter it – an approach of the kind which the court of appeal itself has deplored. Amazingly, they complied, substituting a bland alternative without consulting the other lawyers in the case. On realising that other parties had, until late in the day, been unaware of the Sumption manoeuvre, the judges conceded they might have been "over-hasty" and said they would reconsider. But, in the meantime, the bland substitute paragraph stands.
What was it that so exercised the government? Fortunately we can rely to an extent on Mr Sumption's summary of 168. He says the judges took the view that some in MI5 don't respect human rights or abjure torture; that this is true of a number of M15 officers; that MI5 deliberately misled parliament; and that there is such a "culture of suppression" within the service that its assurances cannot be trusted. These are utterly damning conclusions, and it is little wonder that the government should want to stamp on them. But it is, frankly, astonishing that the judges should have agreed to doctor their own considered verdict.
The judges now have a number of options – none of them very satisfactory. They could reinstate the original paragraph – though they would then have to explain why they so meekly caved in to Mr Sumption. They could stick to the bland paragraph – but the world would then ask why they had suppressed that which Mr Sumption's letter so eloquently summarised. Or they could redraft the original 168, explaining the thinking behind their change of mind. Were they to do so, they would do well to publish the original paragraph as a footnote so that full transparency was served.If they feel they erred in their original verdict they owe it to MI5 to say so, even if it would prompt questions as to how three such distinguished judges could get such a crucial matter so wrong. If they feel their original words were right, they should defend them and reinstate them. The American courts have been unequivocal in Binyam Mohamed's case. Judge Gladys Kessler unequivocally called his treatment torture – and the American government, so quick to criticise our own courts, did not seek to contradict or challenge a word of the evidence. It would be extremely disturbing if there were any suggestion that our own judges had submitted to pressure or, alternatively, having made a mistake, could not admit it.
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