Court of appeal ruling compels British government to disclose what MI5 knew of refugee's treatment in Guantánamo Bay

This article is more than 10 years old

This article is more than 10 years old

Three of Britain's most senior judges have ordered the government to reveal evidence of MI5 complicity in the torture of British resident Binyam Mohamed – unanimously dismissing objections by David Miliband, the foreign secretary.

In a ruling that will cause deep anxiety among the security and intelligence agencies, they rejected Miliband's claims, backed by the US government, that disclosure of a seven-paragraph summary of classified CIA information showing what British agents knew of Mohamed's torture would threaten intelligence sharing between London and Washington, and therefore endanger Britain's national security.

One of the key paragraphs states that there "could readily be contended to be at the very least cruel, inhuman and degrading treatment of Binyam Mohamed by the United States authorities".

The judges – Sir Igor Judge, the lord chief justice; Lord Neuberger, the master of the rolls; and Sir Anthony May, president of the Queen's Bench – shattered the convention that the courts should not question claims by the executive relating to national security.

In damning references to claims made by Miliband and his lawyers, and stressing the importance of the media in supporting the principle of open justice, they said the case raised issues of "fundamental importance", of "democratic accountability and ultimately the rule of law itself".

Publication of the material Miliband wanted to suppress was "compelling", Judge said, since they concerned the involvement of wrongdoing by agents of the state in the "abhorrent practice of torture". The material helped to "vindicate Mr Mohamed's assertion that UK authorities had been involved in and facilitated the ill- treatment and torture to which he was subjected while under the control of USA authorities".

The disputed paragraphs have now been published by the Foreign Office.

Miliband said in a statement: "The government accepts the decision of the court of appeal that in the light of disclosures in the US court, it should publish the seven paragraphs at issue in the case of Binyam Mohamed.

"At the heart of this case was the principle that if a country shares intelligence with another, that country must agree before its intelligence is released.

"This 'control principle' is essential to the intelligence relationship between Britain and the US.

"The government fought the case to preserve this principle, and today's judgment upholds it.

"It agreed that the control principle is integral to intelligence sharing. The court has today ordered the publication of the seven paragraphs because in its view their substance had been put into the public domain by a decision of a US court in another case.

"Without that disclosure, it is clear that the court of appeal would have overturned the divisional court's decision to publish the material.

"The government has made sustained and successful efforts to ensure Mr Mohamed's legal counsel had full access to the material in question.

"We remain determined to uphold our very strong commitment against mistreatment of any kind."

A Foreign Office spokesman said: "Under the terms of the embargo we were permitted by the court to notify a small number of US officials in advance of this judgment. We have done so.

"The foreign secretary spoke last night to Hillary Clinton. He stressed to her that the court had strongly supported the control principle and would have agreed with HMG [her majesty's government] had it not been for the Kessler judgment in the US court last December, which had effectively disclosed the material in the seven paragraphs.

"The foreign secretary and the secretary of state reaffirmed the importance of the US-UK intelligence relationship."

Shami Chakrabarti, the director of Liberty, said the ruling and revelations made a public inquiry "inescapable".

"It has been clear for over a year that the Foreign Office has been more concerned with saving face than exposing torture.

"These embarrassing paragraphs reveal nothing of use to terrorists but they do show something of the UK government's complicity with the most shameful part of the war on terror.

"The government has gone to extraordinary lengths to cover up kidnap and torture. A full public inquiry is now inescapable."

Key to the appeal court's ruling was a recent case in a US court where the judge noted that Mohamed's "trauma lasted for two long years. During that time he was physically and psychologically tortured. His genitals were mutilated ... All the while he was forced to inculpate himself and others in various plots to imperil Americans."

The US court, which was hearing a case relating to another detainee at Guantánamo Bay, noted that Mohamed was told "that the British government knew of his situation and sanctioned his detention".

An MI5 officer known only as Witness B is being investigated by the Metropolitan police over his alleged role in questioning Mohamed incommunicado in a Pakistan jail.

The whole basis of Miliband's case had "fallen away" because of the US court case, said Neuberger, who added: "It is a case which is now logically incoherent and therefore irrational and is not based on any convincing evidence."

In his ruling , May said: "In principle a real risk of serious damage to national security, of whatever degree, should not automatically trump a public interest in open justice which may concern a degree of facilitation by UK officials of interrogation using unlawful techniques which may amount to torture or cruel, inhuman or degrading treatment."

In a stinging reference to claims by Jonathan Sumption QC, Miliband's counsel, that high court judges in earlier rulings were "irresponsible" in saying that CIA intelligence relating to ill treatment and torture and Britain's knowledge of it should be disclosed, the lord chief justice said: "No advantage is achieved by bandying deprecatory epithets."

Mohamed was detained in 2002 in Pakistan, where he was questioned incommunicado by an MI5 officer. The US flew him to Morocco, Afghanistan, and Guantánamo Bay, where he says he was tortured with the knowledge of British agencies.

In the high court last year, Lord Justice Thomas and Mr Justice Lloyd Jones ruled that it was clear from the evidence "that the relationship of the United Kingdom government to the United States authorities in connection with Binyam Mohamed was far beyond that of a bystander or witness to the alleged wrongdoing".