I spoke to Charon QC this afternoon about last Friday’s judgment in R (Mohamed) v Foreign Secretary, in which the Administrative Court ruled that it should make public in its original judgment 7 paragraphs, consisting of 25 lines, summarising American intelligence agency reports to British officers, in which they apparently admit Mohamed was subjected to cruel, inhuman or degrading treatment – possibly amounting to torture – while held in Pakistan in 2002. They had ruled back in February that the public interest in disclosure was outweighed by concerns for national security, since any publication of reports provided to British intelligence by the Americans would lead the US to review its intelligence sharing with Britain. But they reopened their judgment because they felt they had not been given an accurate picture of the American government’s attitude – and now they’ve gone the other way.
I think the whole thing is a judicial mess. I don’t say the judgment is wrong; but last week’s decision could just as well have been arrived at in February, and although the judges make great play of a supposed change in Washington’s attitude, I’m not at all convinced. Either they were wrong in February, and now realise it; or they’re wrong now.
Listen to the podcast of our discussion here.
it looked to me like they were desperately reasoning backwards when they used some of obama’s speeches before taking office saying the us wouldn’t be doing any more of that nasty torture stuff as meaning the new regime would be delighted to see details of what had been going on made public. and their reading of hillary clinton’s words saying basically we’d be in the crap if we told anyone what they had been doing as not referring to the issue before the court is an interesting bit of judicial interpretation.
but of course we know after corner house that if anyone in the lower courts holds the government to account it will get sorted out in the lords just as corner house was. nice to see dinah rose’s classical purity of argument at work again. she really is good.
.-= simply wondered´s last blog ..self-serving scum =-.
Clive Stafford-Smith gave a lecture on this, and some related issues, at Inner Temple this past Monday. I was in the cheap seats, and much of the content was outwith anything in which I am competent anyway. But if you know of anyone more senior who was in attendance, they may be better able to relay what I sense was quite a curious event. If the audience was not so disposed to being courteous, a row might well have ensued. The gist being that CS-S was running with a court of public opinion line but, when politely challenged, and by amongst others Laws LJ, CS-S was seemingly happy to assert that he neither had no legal arguments, nor did he need them. Whilst I can see that his function is as much political as it is legal, it left me, and certainly some others also, flummoxed.