4 May 2010

Court of Appeal affirms rule of law

A recent judgment of the Court of Appeal in England has the potential to rock the legal process to its core.

The 6 UK men held in Guantanamo Bay for 7 years under terrorism charges were actually held, in their reasoning, without respect and consideration for their fundamental human rights. It seems now that the men, having sued the MI5, MI6, the Foreign Office, the Home Office and attorney general saying that they played a part in, or failed to stop, their detention and ill-treatment were correct all along.

More importantly than the fact that they appear to be correct, according to the ruling of the Court of Appeal, are the reasons they are so deemed (to be correct). Hearings were held in secret and information withheld from the claimants.

But in a strongly-worded ruling, the Master of the Rolls Lord Neuberger, sitting with two other senior Court of Appeal judges, said that no damages hearing could be heard in secret because the courts had not been empowered by Parliament to withhold evidence from the claimants.

The Court of Appeal ruled that the Government, in the various arms (MI5/6 etc) have breached fundamental principles of common law.

"In our view, the principle that a litigant should be able to see and hear all the evidence which is seen and heard by a court determining his case is so fundamental, so embedded in the common law, that, in the absence of parliamentary authority, no judge should override it," said Lord Neuberger.

"At least so far as the common law is concerned, we would accept the submission that this principle represents an irreducible minimum requirement of an ordinary civil trial.

"Unlike principles such as open justice, or the right to disclosure of relevant documents, a litigant's right to know the case against him and to know the reasons why he has lost or won is fundamental to the notion of a fair trial."

More upsetting news followed:

…in their judgement, Lord Neuberger, Lord Justice Maurice Kay and Lord Justice Sullivan said senior judges had to "take a clear stand".

"Quite apart from the fact that the issue is one of principle, it is a melancholy truth that a procedure or approach which is sanctioned by a court expressly on the basis that it is applicable only in exceptional circumstances nonetheless often becomes common practice," said Lord Neuberger.

In other words, the excuse of using ‘exceptional circumstances’ was becoming far too common to be classed as exceptional. No more of that nonsense. The senior judges have taken a clear stance after all.

The last word comes from Corinna Ferguson, a lawyer at campaign group Liberty, said:

"Yet again, the Court of Appeal has sent the strongest signal to the security establishment that it cannot play fast and loose with the rule of law.

"Fair and open justice belongs to people not governments.”