R (Mohamed) v Secretary of State for Foreign and Commonwealth Affairs (No. 2)

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
Judgment Date26 Feb 2010
Neutral Citation[2010] EWCA Civ 65,[2010] EWCA Civ 158
Docket NumberCase No: T1/2009/2331

[2010] EWCA Civ 158

Royal Courts of Justice

Strand, London, WC2A 2LL

Before: The Lord Chief Justice of England and Wales

The Master of the Rolls


The President of the Queen's Bench Division

Case No: T1/2009/2331

The Queen on the Application of Binyam Mohamed
The Secretary of State for Foreign and Commonwealth Affairs

The circumstances in which it has become necessary to give a further judgment are highly unusual. In brief, the Secretary of State for Foreign and Commonwealth Affairs (the Foreign Secretary) appealed against the decision of the Divisional Court in the proceedings brought by Binyam Mohamed that seven redacted sub-paragraphs of its first judgment should be made public. The appeal was dismissed. Three separate judgments were given. Although the reasoning in these judgments was not identical, the emphasis of the Lord Chief Justice differing from that of the Master of the Rolls and the President of the Queen's Bench Division, the decision was unanimous. In total the judgments ran to 296 paragraphs. Unless the Foreign Secretary proposed a further appeal to the Supreme Court the litigation was at an end, and the redacted paragraphs could at long last be published.


The present judgment is concerned with one paragraph (paragraph 168) in the judgment of the Master of the Rolls. This paragraph has attracted huge public attention.


In view of this attention we shall briefly summarise the facts as they are known to us. The three Approved Judgments were circulated to counsel, solicitors and the parties on a confidential basis in accordance with well understood practice on 5 th February 2010. The parties were simultaneously informed that the judgments would be handed down on Wednesday, 10 th February 2010. These were and remained draft judgments. Just because any draft is a draft judgment the opportunity for correction is available, and from time to time it is taken, not only on the application of one of the parties, but also on the judge's personal initiative if, on re-reading his draft, he thinks it appropriate to do so. In short, the judge is not bound by the terms of the draft judgment which has been circulated in confidence.


The primary purpose of this practice is to enable any typographical or similar errors in the judgments to be notified to the court. The circulation of the draft judgment in this way is not intended to provide an opportunity to any party (and in particular the unsuccessful party) to reopen or reargue the case, or to repeat submissions made at the hearing, or to deploy fresh ones. However on rare occasions, and in exceptional circumstances, the court may properly be invited to reconsider part of the terms of its draft. (see for example Robinson v Fearsby [2003] EWCA Civ 1820 and R (Edwards) v The Environment Agency [2008] 1WLR 1587). For example, a judgment may contain detrimental observations about an individual or indeed his lawyers, which on the face of it are not necessary to the judgment of the court and appear to be based on a misunderstanding of the evidence, or a concession, or indeed a submission. As we emphasise, an invitation to go beyond the correction of typographical errors and the like, is always exceptional, and when such a course is proposed it is a fundamental requirement that the other party or parties should immediately be informed, so as to enable them to make objections to the proposal if there are any.


At 19.03 on Monday 8 th February, the clerk to the Master of the Rolls received an email from Mr Jonathan Sumption QC, counsel for the Foreign Secretary, addressing what was described as “an important matter of substance” for the court “to consider before handing down their judgment in final form”. The crucial email was also received by the other members of the court. Perhaps the first major feature of this judgment is to emphasise that Mr 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 th February that they had received Mr Sumption's letter “this morning”.


It is an elementary rule of the administration of justice that none of the parties to civil litigation may communicate with the court without simultaneously alerting the other parties to that fact. Accordingly we assumed that Mr Sumption's letter was also copied to those who had been provided with copies of the draft judgments. In view of the date and appointed time when they were due to be handed down, we also assumed that all parties would address the issues raised by the letter as a matter of urgency, first thing on 9 th February. In the absence of any intimation from any other party of the wish to respond or object to the observations contained in Mr Sumption's letter, the Master of the Rolls decided substantially to amend the draft of paragraph 168, with minor consequential amendments to paragraphs 169 and 170. This second draft (and it remained a draft) of these paragraphs was circulated on Tuesday around lunchtime. During the course of the afternoon it gradually became apparent that something may have gone awry with the arrangements for the delivery of Mr Sumption's letter, and in any event, that there were indeed objections both to the course taken by Mr Sumption and to his proposals for possible reconsideration of the original draft of para 168.


The question for us was not whether the opportunity should, as a matter of elementary justice, be made available for these responses – because that went without saying—but the mechanics of how to do so in the context that two drafts of the relevant paragraph had now been circulated. Well before 9.30am on 10 th February we were notified that the Foreign Secretary would not be seeking leave to appeal to the Supreme Court. That meant that this litigation was, subject to any costs orders, and the perfecting of paragraph 168 of the final judgment, at an end, and that no further inhibition against the publication of the seven redacted sub-paragraphs remained. On one view this meant that there was no particular hurry for the judgment to be given, and in the context of over 18 months of protracted litigation, an additional delay of two weeks or so, while the rival submissions relating to the terms of paragraph 168 were considered, was not of major importance. On the other hand, these long withheld redacted sub-paragraphs demanded immediate publication, not only in the interests of Binyam Mohamed himself, but also because of the broad public interest considerations to which each of our judgments referred.


We decided that publication of the redacted paragraphs should take place immediately. That inevitably meant that the reasons for our decision to reject the claim by the Foreign Secretary for public interest immunity should also be published. Copies of the seven redacted sub-paragraphs were prepared. They were read out in open court. Copies of the text were made available. The paragraphs were, as I then explained, “annexed to the judgment which we have just handed down and any further copies of the judgment in whatever form it may take”.


As soon as that process was completed we immediately turned to the objections to Mr Sumption's letter, and to the consequent changes following that letter to the terms of paragraph 168 (with the minor amendments to paragraphs 169 and170) in the judgment of the Master of the Rolls. It was made absolutely clear that this part of the judgment would be further addressed and considered in the light of any submissions which had yet to be advanced. A strict timetable was laid down. It must have been obvious to anyone in court on the morning of 10 February that paragraph 168 in its amended form did not constitute the final word of the Master of the Rolls on the subject, and that in the form in which it was included as part of his judgment, this paragraph remained a draft. He explained twice that the matter would be dealt with as it should have been dealt with, rather than how it had been dealt with. On behalf of the court he acknowledged that we had been “over-hasty”. On reflection, once the judgment and redacted paragraphs had been handed down and published, it would have been open to us to adjourn the hearing into chambers, or to have considered ordering some form of prohibition on publication of these discussions, but that would have been inconsistent with the principles of open justice.


Within a short time of the court adjourning, it became apparent that the letter from Mr Sumption but not, it is fair to record, any part of paragraph 168 in its original form, was circulated widely and was or was about to be published. Rather less attention was subsequently directed to the fact that paragraph 168 of the judgment as handed down did not represent paragraph 168 in its final form, and that it would be subject to reconsideration and amendment, if necessary, in the light of further submissions.


Draft judgments are necessarily circulated in confidence. It follows that all communications in response are covered by the same principle. In this case that confidentiality was broken when the letter from Mr Sumption to the court was circulated beyond the parties to the litigation, and published. Our attention was directed to CPR Part 31.22 by Miss Dinah Rose QC. We have reflected on this provision. 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,...

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