Guantanamo Detainees and Due Process—This Time in the U.K.

May 19, 2010

The issues raised in the detainee cases in this country go to the heart of our system of jurisprudence: do detainees have the right of Habeas Corpus?  Should the cases be heard in the U.S. District Courts rather than by military tribunals?  Can coerced evidence be used at trial?  Can detainees be convicted based on evidence kept secret from them?

Since some of these detainees have now been repatriated to England, that country is now wrestling with many of the same questions.  A couple of weeks ago I ran across an article in The Guardian which described a recent opinion by the Court of Appeal.  In sum, the Court of Appeal held that the government did not have the right to use secret evidence to defend itself against civil claims by the detainees of wrongful imprisonment and torture.  The article quoted some powerful language of the opinion like “A further fundamental common law principle is that trials should be conducted in public…” “…the principle that a litigant should be able to see and hear all the evidence which is seen and heard by a court determining his case is so fundamental, so embedded in the common law…”

Good stuff—but where’s the opinion?  Is it on Westlaw?  I did a search in United Kingdom Reports All (UK-RPTS-ALL), which is essentially the U.K. equivalent of ALLCASES, using some of the quoted language, to no avail.  What to do?  I noticed that the database on the whole was a few days shy of being current, so I thought I’d set up a WestClip and give it a week or so.  What’s a WestClip?  It’s a Westlaw service which allows you to select a database that you’d like Westlaw to check periodically for your desired document(s), based on words or search terms that you direct it to look for.

You just click on “Alert Center” near the top/right of the screen:

And then on the “WestClip” line, go to the right and click “Create”:

From there it’s essentially a “Wizard” setup where you designate the database and search, and select your delivery options.  In my case I just had the Clip look for “further fundamental common law principle” & “so fundamental so embedded in the common law” and my case was delivered to me three days later.