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carmel-rickard
September 23 2010 at 10:01

I thought claims that Judge President John Hlophe had tried to influence the outcome of a Constitutional Court decision were illustrative of the last word in legal cheek.

But I was wrong.

That contest has to go to British Foreign Secretary David Miliband who, with his counsel, one of Britain's foremost barristers, Jonathan Sumption, QC, has shocked the legal and political community.

Sumption is held in awe by colleagues who say he has "a brain the size of a planet". He's also said to be one of the few barristers who can influence a case simply by his presence in court. Now, however, it turns out he can also influence decisions without even being in court.

Sumption is appearing for Miliband in a protracted series of cases concerning an Ethiopian-born Briton, Binyam Mohamed, held on suspicion of terrorism under the auspices of the US for six years.

Since his release without charge by the US and return to England last year, he has tried to prove he was tortured and that British M15 was involved in it.

As evidence of his torture and M15 collusion has emerged, Miliband and the security establishment have desperately tried to co-opt the courts in attempts at a cover-up.

Things appeared to have reached a climax last week.

The government had tried to keep seven paragraphs about Mohamed's torture out of a High Court judgment, citing security concerns, but three senior judges of the Court of Appeal dismissed the government's argument that secrecy should prevail.

They found no reason why the information, confirming sleep deprivation and other torture methods, should not be included in the judgment text.

The nature of his "treatment" was already in the public domain, they ruled, after publication of a decision by a US judge who bluntly said Mohamed was "tortured".

She found he was beaten with a leather strap; subjected to a mock execution by shooting; beaten, punched and kicked to the extent that he vomited and urinated; tied to a wall and left hanging in darkness listening to other prisoners screaming.

For more than a year, and about once a month, he was cut on his chest, penis and testicles with a scalpel. After this was published, why censor a British judgment on the same subject? But, just at this turning point, it was discovered that the Appeal Court decision had itself been targeted: the government had secretly tried to edit this judgment as well.

What's more, the attempt had succeeded.

Traditionally the court sends a draft of its decision to legal counsel before delivery so that they may check for minor inaccuracies. On this occasion Sumption wrote back a lengthy letter aimed at persuading the judges to edit part of their ruling.

Miliband wanted paragraph 681, with strong judicial criticism of the British security and intelligence establishment, scrapped. (Sumption's letter summarises "objectionable" sections and phrases, and this letter was subsequently made available to the media.)

The judges received Sumption's letter and assumed that, in accordance with 400-year-old legal norms, it had been copied to all the parties.

When none of them wrote to object to Sumption's plea for censorship, the judges gave Miliband what he wanted, edited their decision, scrapped paragraph 681 and replaced it with some anodyne comments.

Once the other parties discovered this, they slammed "government attempts at manipulating the draft judgment" and asked that their views on the edit also be heard. The judges, who concede that they might have been too hasty in agreeing to redact their decision, have now received written argument and the issue will be debated in court this week.

It's been disaster all round. Miliband and Sumption appear to have been involved in an underhand attempt to influence the outcome of a case by communicating privately with the judges.

The judges themselves appear to have given in to Sumption's pressure far too easily however they might now justify their decision to censor their own words.

Security and intelligence communities everywhere demand excessive secrecy, often far beyond what is actually needed, but never before has a court in a democratic country been the dupe of a situation such as that involving Miliband and Sumption.

Our own highest court has been considering claims of a threatened breach of national security: a state application to appeal against a High Court decision that would compel a former intelligence official to testify in the corruption trial of former national police commissioner Jackie Selebi.

After the British fiasco, you may well be relieved to know that the Constitutional Court judges refused to hear the appeal and so Selebi's trial will finally get on the road.

 

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