The apology came from Dinah Rose QC of Blackstone Chambers. Those who were in court at the time say it was not volunteered, but that Rose was forced into a position where she had to be courteous and apologise.
The situation arose following a legal submission made by Brick Court Chambers’ Jonathan Sumption QC on behalf of Foreign Secretary David Milliband. Sumption represented Milliband in a claim brought against him by former Guantanamo Bay inmate Binyam Mohamed.
Mohamed’s lawyer, Leigh Day & Co partner Richard Stein, instructed Rose to help get his client out of the detention camp in which he had been incarcerated for three years without trial.
The case snowballed into a wider campaign to show through the courts that the UK’s secret services had participated in the unlawful treatment of Mohamed.
In December 2009 the Government appealed against a High Court ruling that found it should disclose evidence relating to the alleged torture of Mohamed.
In the lower court the Treasury Solicitor instructed Blackstone Chambers’ Pushpinder Saini QC, who led 18 Red Lion Court’s Max Hill QC and 11KBW’s Karen Steyn. For the Court of Appeal, however, the Treasury Solicitor brought in Sumption to lead Saini and Steyn.
One lawyer with knowledge of the case says: “They wanted a heavyweight, somebody who had the ear of the judiciary, so there was a shake-up.”
Sumption received a draft copy of the Mohamed judgment a week before it was made public. Lawyers acting as interveners in support of the appellant were also shown the draft.
“It was a racy document,” one partner states.
On Monday 8 February Sumption’s letter, which requested that certain paragraphs of the judgment be redacted, was delivered to Master of the Rolls Lord Neuberger. But the letter was not copied to the other counsel involved in the case. It did not arrive at Blackstone until the following day, at which point other lawyers involved in the case were still in the dark. A request was then sent by Neuberger’s clerk asking for Sumption’s letter to be forwarded to Blackstone’s Thomas de la Mare (instructed by the Treasury Solicitor’s Special Advocate Support Office for Mohamed) and to Doughty Street’s Gavin Millar QC, who represented members of the UK press.
Doughty Street’s Geoffrey Robertson QC, who acted for foreign press, and Blackstones’ Michael Beloff QC, instructed by Liberty and Justice, were not informed about the letter until late on 9 February.
“Nobody knew about the letter or the amendments made by Neuberger until it was a done deal late Tuesday afternoon,” an insider claims. “There were discussions about the submission in court, so everybody assumes it was a public document. When the press started asking about what Neuberger was referring to, Dinah told them. It was the right thing to do.”
When court reconvened and the press had gone back to write their stories, Rose was questioned about her conduct by Lord Chief Justice Judge and was told that an apology was necessary.
“There’s a time when advocates need to take a stand,” she retorted.
One poster on The Lawyer.com comments: “It’s always been my understanding that the letter should have been disclosed to all the parties before the handing down so that they might
put forward their views. Therefore if anyone has made a mistake it’s (dare I say it) the Master of the Rolls.”
Others believe Rose was justified in taking a stand for transparency and that Sumption was “playing politics” when he wrote the letter.
Despite having to apologise Rose has not lost her fans at the bar. Instead she has reinforced her reputation as a forthright barrister who is unafraid of standing up to her peers. Sumption, meanwhile, has found himself in the uncomfortable position of being the story.
Rose to the challenge
It is not the first time that a clash between Jonathan Sumption QC and Dinah Rose QC has created a public storm.
The pair met in the House of Lords in 2008 when Rose was instructed by campaign groups The Corner House and Campaign Against Arms Trade in their bid for a judicial review into the decision to drop an SFO investigation into BAE Systems’ arms deals with Saudi Arabia. Sumption represented the SFO and won. The case against BAE was dropped.
The outcome was seen as a strategic victory for Rose as she managed to force former Prime Minister Tony Blair to admit that the Saudis had effectively forced the UK into withdrawing the case by threatening to withdraw intelligence-sharing.
When the judgment was handed down it was one of her proudest professional moments. “It was five to two and we were waiting for the panel to come in, and I remember thinking there was never a better place to be,” Rose told The Lawyer at the time (The Lawyer, 13 July 2009).