The Court of Appeal (Civil Division) handed down judgment in the case of R (Binyam Mohamed) v Secretary of State for Foreign and Commonwealth Affairs [2010] EWCA Civ 65 on 10th February 2010. In an appeal against a decision of the Divisional Court, the Court had to consider whether to allow the redaction of seven short paragraphs contained in an earlier open judgment relating to the treatment of former Guantanamo Bay prisoner Binyam Mohamed.

As detailed in three Public Interest Immunity certificates, it was the Foreign Secretary’s case that publication of the paragraphs would bring about a risk of serious harm to national security. Under the control principle, confidentiality in intelligence vests in the country of the services which provide the information, as such it will never vest in the country that receives the information. By allowing for the disclosure of intelligence material obtained by the United States Security Services in breach of the control principle the Foreign Secretary submitted that there would be a real risk to the working relationships between the intelligence services of different countries which would adversely affect the future supply of intelligence information to the United Kingdom.

Dismissing the appeal and allowing for the publication of the paragraphs, the court held that there was a strong presumption, in the absence of a good reason to the contrary, in favour of open justice. Although as a matter of principle under the doctrine of the separation of powers, matters of national security are central to the fundamental role of the Government, equally it is another aspect of the doctrine that the executive cannot determine whether material is included or excluded from a judgment. Following the case of Conway v Rimmer [1968] AC 910, it is ultimately a decision for the judge as to whether a document should be exempted from disclosure. Even more so the question as to whether a passage of a judgment should be made available to the public is a fortiori a matter for the court.

Following the delivery of Judge Kessler’s opinion in the case of Farhi Saeed Bin Mohamed v Barack Obama in the District Court for the District of Columbia, United States, the control principle was no longer relevant. The information contained in the seven paragraphs had as a result already been placed into the public domain. As there was no longer any factual basis to support the Foreign Secretary’s case for redaction it was not necessary for the court to carry out a balancing exercise as to public interest factors in the first judgment being made fully open and the risk that disclosure may have posed to national security. Lord Justice Neuberger stated in his judgment however, that were it not for Judge Kessler’s opinion, the public interest in disclosure would not have been worth the risk to national security. Sir Anthony May made clear in his judgment that a court would not substitute its own opinions for that of the Foreign Secretary unless there was no proper basis for the view taken.