Judge LCJ backs Sumption’s handling of Mohamed torture judgment

Jonathan Sumption QC

The judgment relates to attempts made by Mohamed to show through the courts that British secret services knew he was tortured in Pakistan while being held by the CIA.

As reported by TheLawyer.com two weeks ago, Sumption had made a submission to Master of Rolls Lord Neuberger requesting that paragraph 168 of the draft be redacted. Blackstone Chambers’ Dinah Rose QC, acting for Mohamed, had to apologise to the court after handing copies of Sumption’s letter to the press (11 February 2010).

Today, Lord Judge LCJ said that despite the submission being referred to in open court the paragraph in question remained in draft form and therefore it and submissions about it were confidential.

He clarified the meaning of the civil procedure rules (CPR) on draft judgments stating: “Not least for the avoidance of any doubt in future, our clear conclusion is that this order is not directed to submissions and discussions about draft judgments which take place in open court, and does not justify any contravention of the confidentiality principle, whether in relation to draft judgments, or responses to them.

“The observations on the draft by any of the parties continue to be covered by the same confidentiality principles which govern the circulation of judgments in draft.”

Sumption had not broken any rules in making his submission to the Neuberger MR and on “rare occasions and exceptional circumstances” the court could be invited to reconsider certain terms of the judgment.

The judgment stated: “Sumption’s letter was not a secret or private letter to the court. As a matter of certainty we know that it was copied to counsel for Binyam Mohamed, and indeed his solicitors wrote to the clerk to the Master of the Rolls on 9 February that they had received Mr Sumption’s letter “this morning”.”

He concluded that it was in the public interest to be show transparency and publish the original draft judgment.

The counsel

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, theLA Times and Index on Censorship.

Blackstone Chamber’s Michael Beloff QC was instructed directly by Liberty and Justice.