Mohamed, R (on the application of) v Secretary of State for Foreign & Commonwealth Affairs (No 2)
Reference:  EWCA Civ 158
Court: Court of Appeal
Judge: Lord Judge LCJ, Lord Neuberger MR, Sir Anthony May (President QB)
Date of judgment: 26 Feb 2010
Summary: Amendments - Confidentiality - Draft Judgments - Publication
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Instructing Solicitors: TSol for the Secretary of State; Leigh Day for Binyam Mohamed; Jan Johanes for Guardian News and Media Ltd and various media organisations; Finers Stephens Innocent for Index on Censorship and various US media organisations
The Secretary of State appealed against the decision of the Divisional Court in the proceedings brought by Binyam Mohamed (M) that seven redacted sub-paragraphs of its judgment should be made public. The appeal was dismissed and three separate draft judgments were circulated to counsel, solicitors and the parties on a confidential basis. Counsel for the Foreign Secretary emailed the court to ask for a possible reconsideration of para 168 of the judgment and the letter was copied to M’s lawyers. In absence of any objection, the Master of the Rolls amended the paragraph. It later became apparent that M’s lawyers may not have received the letter and they objected to the proposals. The letter was circulated widely and published in the press.
(1) Whether the amendment of the draft judgment was permissible; and
(2) Whether the draft judgment should have remained confidential.
(1) A judge was not bound by the terms of a draft judgment circulated in confidence. The circulation of draft judgments is not intended to provide an opportunity to any party to reopen or reargue the case, or to repeat submissions or deploy fresh ones. However, in exceptional cases, a court may properly be invited to reconsider parts of its draft beyond mere correction of typographical errors, so long as all parties are immediately informed.
(2) Draft judgments were necessarily circulated in confidence and all communications in response were covered by the same principle. However, the instant case was a case of high exceptionality and confidentiality should be waived. It was better that the Master of the Roll’s original draft judgment be disclosed and made available for comment. This would remove any misconception that the original wording had been changed due to improper ministerial interference. Disclosure was also in accordance with the principle of open justice.
A highly unusual case, though one that could be seen as a simple application of the defence of public interest in the law of confidence.