The High Court today ruled that the case brought by Libyan politician Abdul-Hakim Belhaj and his wife Fatima Boudchar involving their rendition and subsequent torture in Libya, is one in which a ‘closed material procedure’ may be used.
According to Mr Belhaj’s lawyers this could pave the way for the trial to be held in secret, and would mean that Mr Belhaj his wife, the media and their lawyers would be excluded.
The judgment follows a hearing earlier this month at which lawyers for Mr Belhaj and his wife opposed the Government’s request for a closed procedure under section 6 of the Justice and Security Act on the basis that extensive evidence of the CIA torture programme—and of their abduction—has been in the public domain for years.
Mr Justice Popplewell, the High Court Judge dealing with the case found that ‘despite the weight and cogency’ of the Claimants’ evidence (para 43) he had ‘little hesitation’ in concluding that disclosure of the Government’s material ‘would cause significant damage to the interests of national security….. irrespective of the current sensitivity of the intelligence itself.’ (para 59)
The Judge further observed that it was ‘very unlikely that the [Defendants’ sensitive] material could be put into open or made available to the Claimants or their legal representatives in a way which would better promote a fair and effective trial than a closed material procedure.’ (Para 60(5))
On learning of the Judge’s decision Mr Belhaj said: “I went through a secret trial once before, in Gaddafi’s Libya. It took about a half hour, and I never saw any of the evidence against me. Later a guard came to my cell and tossed in a red jumpsuit—that was how I found out that the secret court had sentenced me to die.
“Fatima and I have stuck with this case for all these years because we believe the British system, unlike Gaddafi’s, can deliver justice. But what kind of a trial will it be if we put in a mountain of evidence and government officials can simply refuse to answer us? It’s hard to see how this fits with Britain’s long tradition of open justice.”
Sapna Malik, Partner at Leigh Day who represents Mr Belhaj and Mrs Boudchar said: “It is frustrating that despite the wealth of material in our clients’ possession we will now enter the Kafkaesque world of ‘closed Defences’ and covert evidence, with the prospect of a secret trial, from which our clients will be excluded and unable to fully test the Defendants’ case. We hope that the Judge will reconsider his decision further down the line.”
Cori Crider a lawyer at the human rights charity Reprieve, who are supporting the case, said:: “We’re disappointed that there has been no effort to engage with extensive evidence that has been in the public domain for years. We will ask the Court to revisit at the end of the secret disclosure process.”