An old case reached the UK supreme court this May, challenging our right to know what’s done in our names.

In 2004 the Iraq war was raging, and Gaddafi was in favour. Tony Blair had just pledged friendship in his desert tent, Italy had just promised him $5 billion to halt the refugee flow. Abdul-Hakim Belhaj, an anti-Gaddafi Islamist (now a Libyan politician), had fled to China with his wife. They hoped to seek asylum in the UK, but were detained at the airport by the Chinese and deported to Kuala Lumpur. Malaysia informed the UK, and the UK informed Libya. They were rendered to a US black site in Thailand, where Hakim was beaten and suspended, and then rendered to Libya. Nobody could have had any doubt what would happen there. Hakim alleges that US and UK intelligence operatives participated in his questioning.

The MI6 director of counter-terrorism, Sir Mark Allen, wrote to the Libyan intelligence chief: I congratulate you on the safe arrival of [Abdul-Hakim Belhaj]. This was the least we could do for you and for Libya to demonstrate the remarkable relationship we have built over the years. I am so glad, adding bashfully, ‘I know I did not pay for the air cargo.’ (presumably the blindfolded and shackled Libyan couple.) Hakim was tortured and detained for six years.

Libyan documents suggest an MI6 officer soon visited Tripoli with questions for him, and gave Libya details of another dissident, Sami al-Saadi, who was then also kidnapped and rendered to Libya.

The men sued for civil damages. In 2012 Saadi accepted £2.2m out of court from the UK government. Abdul-Hakim would not settle. He sought £1 and a declaration of illegality. In court the government claimed UK officials acting overseas in conjunction with foreign agents were subject to the laws of those lands, not ours, a finding astonishing in its implications for those who thought our intelligence services were accountable here. In December 2013 the High Court agreed the couple had a “potentially well-founded claim” that the UK was “directly implicated” in their abuse, but ruled the case should not be heard because it could damage UK-US relations. The Appeal court confirmed it was not in the UK’s national interests for the case to go forwards.

Meanwhile, in January 2012, the CPS launched a criminal inquiry into the torture and rendition of Hakim and Saadi. By 2016 Scotland Yard said they had enough evidence for criminal proceedings, but the CPS declined to prosecute, also declining to explain why. The couple sought to challenge the secrecy of the decision, and the Supreme court case hinges on whether this challenge should also be secret. Excluding the couple themselves.

One of the (hopefully) many differences between oppressive regimes and genuine democracies is open justice. Another is not torturing, nor colluding in torture.  How should the law respond when UK officials collaborate with others in torture overseas? What is the public interest here? How much does open justice matter? Should we be told?

Shortly after this article was written the UK government gave an unreserved apology to Mr Belhaj and Fatima Boulchar.

picture from Reprieve