Hearing over UK Government snooping threat to fair trial in Libyan torture case

Hearing today over Government snooping threat to fair trial in Libyan torture case
A secretive court will today hold a rare, open hearing in a case brought by Libyan victims of a UK-orchestrated rendition, who are concerned that Government snooping may have damaged their right to a fair trial.
The Investigatory Powers Tribunal (IPT), which hears complaints against the security services, is set to hold an open hearing at 16.45 GMT today in a case brought by the Belhadj and al Saadi families.  The two families – including young children and a pregnant woman – were subject to kidnap and ‘rendition’ in a joint UK-US-Libyan operation which took place in 2004.
Both families had already brought claims against the UK Government over its part in their mistreatment but, following recent revelations concerning GCHQ’s mass-spying programme, also sought measures from the IPT to ensure that ongoing surveillance of their communications with their legal team does not jeopardise their right to a fair trial.
The right to private – or ‘privileged’ – communication with one’s lawyer is a long-standing British legal freedom.  Were the Government to have access to such communications, it would give them an unfair advantage in any legal claim.
Legal charity Reprieve and law firm Leigh Day last September lodged a complaint with the IPT on behalf of the families concerning the suspected violation of their legal rights.  In December, the Government informed the IPT that a “closed issue” had arisen in relation to the complaint but, due to the highly secretive nature of the IPT, it is not known what the issue is.  However, it heightened concerns that the Government had indeed been spying on legally privileged communications.
As a result, Reprieve and Leigh Day sought urgent undertakings, first from the Government, and then from the IPT, asking that controls were put in place to ensure Government lawyers involved in the case cannot access intercepted privileged communications.  However, both refused to take the immediate action needed.  
In an indication of just how secretive the IPT process is, the families’ lawyers were told that a secret hearing had already taken place, in December, but they had not even been informed that it would happen.
Lawyers for the Belhadj family responded by initiating a judicial review challenge to the IPT’s decision not to impose urgent controls to protect his right to a fair trial in the ongoing civil action against the UK Government.   Today’s hearing is aimed at resolving the issue without recourse to JR.
The family’s lawyers have explained to the IPT that their clients would be willing to withdraw their claim if the IPT:

  • Agrees to hear their clients' application for interim relief before the end of January
  • Reopens the issue of the timing of the Respondents' Defence, which was dealt with at the December hearing in their absence
  • Confirms that the IPT will in future conduct its processes in accordance with the principles of natural justice, save to the extent that the need to ensure that there is no significant harm to national security requires the use of a closed procedure.

Reprieve Legal Director, Kat Craig said: “We very much hope that the IPT will today agree to our reasonable requests to defend our clients’ right to a fair trial.  Our clients faced kidnap, abuse and torture, in one of the most shameful incidents of Britain’s involvement in the War on Terror.  Surely they should not now also be denied justice.  This whole process so far has shown just how inadequate the IPT is as a watchdog on the secret state and how far removed it is from the British tradition of open and equal justice.”

Rosa Curling, from Leigh Day, the lawyer for both families, said: “The right to confidential client-lawyer communication is a fundamental principle of justice. The IPT must take all necessary steps to ensure it is protected. So too is the right to open justice. The Tribunal’s ongoing approach to the holding of closed, ex parte hearings, is of great concern to us. Except where there is a real risk to national security, the principles of natural justice require the Tribunal hearings to be held in open.”