28 February 2010

Is Binyam Mohamed Pointing To Greshornish House?

One thing that the Binyam Mohamed case and the Lockerbie bomber case had in common was the use of Public Interest Immunity Certificates.

Of course, some would say the abuse of Public Interest Immunity Certificates.

In the Lockerbie case this, in part, lead to the Greshornish House Accord, (Isle of Skye, 16 September 2008) being drawn up (background from the Independent Law Journal) under the steam of Robbie the Pict.

The second accord states,

"In the event that the Public Interest Immunity (PII) certificate is upheld by the Court and evidence is withheld from the Defence, we consider that this would render the conduct of a fair appeal impossible. We believe that, in actuality and in the public perception, such a denial compromises the principles of a fair hearing, which depends significantly upon equality of arms. ..."

Although the accord is narrowly drawn with respect to the Lockerbie trial; it contains an important point of principle. That is, the witholding of evidence by a Public Immunity Certificate can render the conduct of a fair trial impossible.

In order to maintain the pretence that a trial is fair (and hence lawful) under this regime, one has to imagine that the Executive is being truthful and honest. Binyam Mohamed [2010] EWCA Civ 158 now makes this extremely difficult: not only in that particular case but in general. Although the agents of the Executive (in the Mohamed case, the Foreign Secretary) may be honest, if he is basing his decisions on tainted information (eg from MI5/6) then the PII regime is flawed to such an extent that it may render a trial unlawful.

Background reading here - Human rights groups call for reform of government's security committee

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