More secret trials? No thanks

31 January 2012 by Adam Wagner

A child learns early that if you don’t have anything nice to say, don’t say it. Thankfully that principle does not apply to Government consultations and this is aptly demonstrated by a group of responses to the consultation into whether “closed material” (secret evidence) procedures should be extended to civil trials.

Of the responses that I have read, there is very little support for the proposals as they stand and, as journalist Joshua Rozenberg has pointed out, the most damning criticism has come from the very lawyers who are currently involved in “closed” proceedings.

If you are interested in the issue, the Joint Committee on Human Rights is hearing evidence on it today from two special advocates, including my co-editor Angus McCullough QC (see his post on the topic), as well as the current and former independent reviewers of terrorism legislation. The session begins at 2:20pm and can be watched live here.

As I did with the Bill of Rights Commission consultation, I asked people to send me their consultation responses. What follows is a wholly unscientific summary of the ones I received:

The Police Actions Lawyers Group: “PALG does not accept the main premises that lie beneath the questions posed by the Green Paper.. does not accept the premise that closed material procedures (CMPs) should be more widely available in civil proceedings… does not accept that the increased use and training of Special Advocates can address the inherent disadvantages to claimants that the increased use of CMPs would inevitably involve.”

In relation to the hundreds if not thousands of cases PALG has been involved “which might include the consideration of sensitive material are often those that involve the source of police information or may involve information about ongoing police investigations and methods… the need for the extended availability of CMPs set out in the Green Paper is exaggerated, and not evidence-based. “

David Anderson QC: The current Independent Reviewer of Terrorism Legislation shares the view of many others that the Government has not provided enough evidence to assess the true size of the problem which using CMPs in civil proceedings is intended to solve: as such “while I think it likely that a problem does exist, I am unable to assist the Committee with any informed estimate of its size or gravity”.

He believes that it is “hard to resist the argument for applying a CMP to cases which would otherwise be “untriable” as “it would have the important benefit of allowing a civil court to determine a case on the basis of all the evidence”. However, the Green Paper “gives no voice to the misgivings concerning any system of secret justice that are regularly expressed by some of those who work in the system”.

In relation to “gisting”, which is when a person is given the “gist” of the allegations against him, Anderson is concerned that the “suggestion that legislation might define the categories of case in which gisting is not required (GP §2.43) is unwelcome”. Finally, the decision to trigger a civil CMP “must be for the court, not the Government. An impartial decision-maker is essential for the appearance and the reality of justice”.

Special Advocates: As revealed on this blog, the “Special Advocates” who already play the central role in closed hearings in relation to immigration and control order hearings, are strongly against the proposals. 57 of them, including 19 Queen’s Counsel, say the proposals “represent a departure from the foundational principle of natural justice that all parties are entitled to see and challenge all the evidence relied upon before the court and to combat that evidence by calling evidence of their own.”

Bingham Centre for the Rule of Law: This is a very good, full response: “the Government has not demonstrated, either in the Green Paper or elsewhere, that current legal rules pose a danger to national security… We are not aware of any case in which operationally sensitive security information has been disclosed by a UK court against the opinion of a Government Minister… We agree that national security must be protected (by all branches of the State, and not only by the Government) but its protection must be secured in the light of the fundamental principles of freedom and fairness, and not at their expense.”

The Bingham Centre makes the valid point that the fact that cases such as Al Rawi (allegations of rendition and torture by the security services which resulted in a large civil settlement) have meant courts ordering more disclosure from the security services may be more a result of policy changes by the security services than of judicial activism which needs to be reined in.

Justice: The human rights organisation is squarely against the proposals:“The Government has a duty – grounded in human rights law – to protect the public from the harm connected with serious risks associated with threats to national security, such as terrorism. Unfortunately, we consider that the core proposals in the Green Paper – to give discretion to the Secretary of State to trigger the use of secret evidence in any civil proceedings – pose a serious, unnecessary and unjustifiable interference with the common law principle of open justice.”

Liberty: Like JUSTICE, Liberty rejects the ideas in predictably strong terms: “It is no exaggeration to say that the proposals contained in the Justice and Security Green Paper will change that for all time, sweeping away centuries of fair trial protections.”

Amnesty International: The human rights advocacy organisation “considers that the government has not sufficiently demonstrated that the measures would be compatible with its international human rights obligations.”

The organisation makes the important point that: “The cases identified as demonstrating the need for change, ones in which “sensitive information is at their heart”, are those which concern allegations that the UK has been involved in serious human rights violations, including torture and other ill-treatment, rendition and unlawful detention. … It is of great concern, therefore, that the proposals in the Green Paper are directed at those very cases where principles of transparency, openness and fairness should be of the utmost importance – where there is credible evidence of involvement in human rights violations by the state.”

Reprieve: “The Ministry of Justice’s Green Paper on Justice and Security contains dangerous proposals that will prevent the British courts – as well as the media and public – from holding our Government and the intelligence agencies to account. Reprieve is calling for three major changes to the paper:  

• The proposed ban on Norwich Pharmacal applications must be dropped, to ensure that any Government involvement in wrongdoing remains reviewable by a court

• In civil cases, the current system of Public Interest Immunity (PII) is very effective and does not need to be changed

• Where special advocates are used, they must be allowed to take instructions from their client to ensure a fair and balanced trial • The Intelligence and Security Committee must be comprehensively overhauled, to ensure decent oversight of our Security and Intelligence Services“

Dr Lawrence McNamara and Mr Sam McIntosh, University of Reading: The former runs the ‘Law, Terrorism and the Right to Know’ (‘LTRK’) research project. “the necessity of CMPs does not yet seem to have been clearly established. Carnduff appears to be the only case not to proceed and it is not clear that the decision to settle the recent claims by Guantanamo detainees can be sheeted home to the risks to intelligence sources, methods or relationships… it appears quite possible that the detriments of a CMP regime may outweigh the benefits”.

“We are concerned that adopting CMPs would establish a regime of secrecy which has the clear potential to become widespread in a category of cases that is already beset by secrecy.”

Obiter J: The always sensible legal blogger joins cause with the Special Advocates’ response and also makes a number of interesting further points, for example: “The problem is the definition of just what those “narrowly defined circumstances” are. I do not see even an attempt at definition in the paper… The ideas for better training [of Special Advocates] and updating are welcome and should be introduced in any event… The green paper is short on detail of what this proposed “gisting” legislation might look like. However, given the current state of the case law, there seems to be a reasonable case for clarification in this area.”

Investigatory Powers Tribunal: See from page 34 of their Annual Report. The IPT hears ECHR and HRA based claims against the conduct of public authoriie with RIPA powers. This is one of the most interesting responses as, like the Special Advocates, the IPT has an enormous amount of experience in handling cases involving sensitive evidence, and so will be well placed to comment on the potential practical difficulties which CMPs in civil proceedings may bring.

The IPT’s criticisms of the proposals are subtle but effectively amount to a request that it, rather than Special Advocates in civil courts, carry out the secret evidence work:

“Situations will arise where Special Advocates, by their very nature only qualified to advocate for the defendant in court, will not be equipped with the knowledge or experience required to investigate or establish, or pursue perceived deficiencies in, the quantum of sensitive information held or disclosed by the relevant Agency or Government Department that is relevant to the case. In such situations, there will be a need for security cleared, experienced and, most importantly, trusted individuals to investigate what sensitive information is being held by the Agency and whether this needs to be disclosed in the closed proceedings”

A potential option, argues the IPT, is for “the Tribunal to undertake this fact-finding role.”

Guardian News and Media (GNM): The news organisation considers that the proposals “represent a serious and unjustifiable interference with the fundamental common law principle of open justice.” Moreover, “ the Green Paper proposes an unnecessary and unjustifiable restriction on the media’s role as a public watchdog.”

So amongst this limited sample of responses there are few fans but many critics. There is little appetite for replacing a system, Public Interest Immunity, which broadly works with another, Closed Material Procedures, which even those who work within it say does not. Whether the Government will listen to the critics is an open question, but also one which may be fundamental to the future open justice in the UK.

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• Extension of secret hearings would be “fundamentally unfair”, say Special Advocates
• Should more trials be held in secret? Part 2: A Special Advocate’s comment
• Should more trials be held in secret?
• More secret justice on the horizon
• Secret evidence v open justice: the current state of play