The letter, written by foreign secretary David Milliband’s counsel Jonathan Sumption QC of Brick Court Chambers, complained to the Court of Appeal about the criticisms of MI5 contained in the Mohamed judgment.
While the letter resulted in the judgment being amended, it was not sent to the other counsel involved in the case and they were not informed that the draft judgment had been changed until Tuesday morning. This was one day before the judgment was made public.
Rose (pictured), who was instructed by Leigh Day partner Richard Stein to represent Mohamed, was forced to apologise to the Lord Chief Justice Lord Judge, the Master of the Rolls Lord Neuberger and president of the Queen’s Bench Division Anthony May after it emerged that she had passed the letter to the press after the judgment was handed down.
According to a source close to the case, Rose and Leigh Day had fired off a protest letter alerting other counsel involved in the case to Sumption’s letter. Blackstone’s Michael Belloff QC and Thomas de la Mare, Doughty Street’s Gavin Millar QC and Geoffrey Robertson QC, were all unaware of the amendments until they received Rose’s letter late on Tuesday afternoon.
On Wednesday morning Sumption and Neuberger MR both referred to the submission in court, but at this stage the press was unaware of what they were talking about.
It is understood that when questioned outside the Court of Appeal, Rose made it clear that a submission had been written by the Government’s lawyer and she handed copies of the letter out.
When she returned to a press-free court Judge LCJ questioned her conduct, to which she asserted: “There’s a time when advocates need to take a stand.”
Judge LCJ said he was “astonished” by this, but added: “You’ve apologised to the court and the less said about this matter the better.”
One source commented: “It was clear that Neuberger was embarrassed and was not happy about this getting out. But the submissions had been referred to in open court and if they didn’t want it getting out they should’ve put in place reporting restrictions.”
The existence of the letter was revealed as the Court of Appeal yesterday rejected attempts made by Milliband to prevent publication of seven paragraphs in a judgment that showed MI5 to be complicit in the torture of Rose’s client while he was being held at Guantanamo Bay.
Sumption, who was instructed to act for Milliband by the Treasury Solicitors, was shown a draft of the judgment last week (3 February), as were other counsel involved in the case.
Sumption then wrote to Neuberger MR requesting that certain parts of the judgment be redacted to prevent prejudiced reporting in the press. While copies of the letter should have been forwarded to all counsel involved, this did not happen.
In the letter Sumption wrote: “The Master of the Rolls’ observations, which go well beyond anything found by the Divisional Court, constitute an exceptionally damaging criticism of the good faith of the Security Service as a whole.
“In particular, the suggestion that the court should distrust any UK Government assurance based on the service’s advice and information will unquestionably be cited in other cases and, if applied more widely, would mark an unprecedented breakdown in relations between the courts and the executive in the area of public interest immunity.”
All parties will make submissions to the Court of Appeal by the end of the week explaining why the redacted paragraphs should be published in full. Sumption will have until Tuesday next week (16 February) to respond on behalf of the Government.
Brick Court’s Jonathan Sumption QC, Blackstone Chambers’s Pushpinder Saini QC and 11KBW’s Karen Steyn were instructed by the Treasury Solicitors to represent Secretary of State for Foreign and Commonwealth Affairs David Milliband.
Blackstone Chamber’s Dinah Rose QC, Ben Jaffey and Tom Hickman were instructed by Leigh Day & Co partner Richard Stein to represent Binyam Mohamed.
Blackstone Chamber’s Thomas de la Mare and Charter Chamber’s Martin Goudie were instructed by the Treasury solicitor’s Special Advocates Support Office as special advocates for Binyam Mohamed.
Doughty Street’s Gavin Millar QC and Guy Vassall-Adams were instructed by The Guardian lawyer Jan Johannes for Guardian News and Media, British Broadcasting Corporation, Times Newspapers, Independent News and Media and The Press Association.
Doughty Street’s Geoffrey Robertson QC and Alex Gask were instructed by Mark Stephens of Finers Stephens Innocent for The New York Times, The Associated Press, the Washington Post, the LA Times and Index on Censorship.
Blackstone Chamber’s Michael Beloff QC was instructed directly by Liberty and Justice.