Torture case highlights dangers of 'Kafka' law

Lawyers for Defence Secretary Philip Hammond revealed the existence of the unknown material in a case brought by Serdar Mohammed, who is currently in a Kabul jail and alleges he was tortured after being handed to the Afghan National Directorate of Security (NDS) by British forces.

"The Secretary of State for Defence has received new information that will require consideration by him and reassessment of his position in relation to this case," James Eadie QC told a High Court adjournment hearing on Thursday.

Mr Eadie argued for the full hearing of the case, scheduled for next Thursday, to be put back to an unspecified date.

Dinah Rose QC, appearing for Mr Mohammed, objected saying that her client was currently in jail in Kabul having been convicted on the basis of a confession allegedly obtained under torture.

However the hearing was adjourned while issues relating to the new information are considered.

Mr Eadie said that a public interest immunity certificate would be needed to keep the material confidential as there could be no secret court hearing to consider the "closed material."

This was a reference to the controversial Bill currently going through Parliament which would allow secret court hearings in cases involving "national security."

The case is significant because it is currently holding up attempts by the government to allow British troops in Afghanistan to pass prisoners into local hands.

Lawyers for the Defence Secretary, who had previously agreed to a moratorium on such transfers following Mohammed's allegations in 2010, decided last month (October) that it was safe to resume.

But the High Court ruled that the Mohammed case should be heard before consideration was given to the ban being lifted.

Mr Mohammed's legal representatives argue that Asadullah Khalid, the head of the NDS, is known to be personally involved in the torture of detainees and accuse the British government of failing to question assurances he gave.

Leigh Day & Co's Richard Stein, who represents Mohammed, said Thursday's hearing illustrated the negative impact the Justice and Security Bill would have on open justice if it becomes law.

"If the Bill had been law today the Defence Secretary's application for an adjournment would have been heard in secret, and it is likely that the adjournment would have been granted without the claimants ever knowing why," he explained.