(1)A Chief Constable, (2) AA v (1)YK, (2)RB, (3)ZS, (4)SI, (5)AK, (6)MH,  EWHC 2438 (Fam) – Read judgment
The High Court has given guidance on the role which special advocates may play in forced marriage and honour violence cases. The controversial special advocates system has been used in anti-terrorism trials to prevent national secrets being revealed to terrorist subjects. However, recently the courts have roundly rejected attempts for the advocates to be used in non-criminal scenarios, on the basis that open justice is a fundamental legal right.
Forced marriage cases often involve information which it is in the public interest not to disclose because to do so would, for example, endanger police informants. Special advocates are not normally needed, because the legislation in question allows the courts to make orders to prevent forced marriages without those suspected of attempting to force a marriage from being notified at all.
On the Chief Constable’s application, made ex parte (without the knowledge of the respondents) a court had made an order under the Forced Marriage (Civil Protection) Act 2007 and gave him permission not to disclose to the respondents information which he had relied upon to make the application. The order related to A, a 19 year old female whose parents wanted her to marry a particular man they had chosen, B. Relatives of A were respondents to the order, which essentially prevented them from taking steps to cause A to marry another person. A and B undertook a form of marriage ceremony anyway which was not formally registered. A applied to have the order set aside. This judgment gave directions and more general guidance on the way in which issues arising in forced marriage cases are dealt with.
Central to the dispute were the questions of whether public interest immunity arose and if so, whether special advocates should be appointed. Sir Nicholas Wall considered that the legal conundrum potentially thrown up by the case was the question of how a fair trial, compliant with Article 6 of the European Convention on Human Rights, could be achieved if information enabling the respondents to respond effectively to the allegations was withheld to protect the informant who gave the police the information in question.
Sir Nicholas Wall noted two important features about the Act: first, it is very widely drawn, including having extra-territorial application and allowing ex parte orders to be made and secondly, it “creates a protective/injunctive jurisdiction” (paragraph 17). There was no argument that the Act itself was not compliant with the Human Rights Act 1998.
Public Interest Immunity (PII)
This is a rule which allows documents to be withheld from other parties in legal proceedings where allowing the other parties to access the documents would be injurious to the public interest. PII decisions invariably involve a balancing of competing interests: that of the administration of justice which requires that parties are able to bring or defend cases properly and that of the public interest in preventing harm to other people or the state, for instance. In this case the interests of the respondents in understanding and getting the opportunity to rebut allegations relating to them had to be balanced against the public interest in protecting the source of the information.
Sir Nicolas Wall had no difficulty in finding that PII arose in this case:
…in a forced marriage or “honour” violence case, circumstances might well arise in which disclosure of sensitive information is likely to lead to the risk of serious harm to the giver or the source of that information. I am equally in no doubt that this situation arises in the instant case, and that there is a powerful argument for non-disclosure. (Paragraph 87)
However, he did not consider it to be material whether this argument for non-disclosure was classed as PII or a balancing of ECHR rights such as the informant’s rights under Article 2 (right to life), 3 (prohibition of torture, and inhuman and degrading treatment) and 8 (right to respect for private and family life) balanced against the respondents’ Article 6 rights (right to a fair trial).
Having found that non-disclosure was appropriate, the question of whether special advocates should be appointed arose. Essentially, special advocates are advocates who have been screened by the security services and are appointed to represent parties in closed hearings. They are permitted to view secret evidence and make representations relating to it on behalf of their clients, although they cannot communicate with their clients about the secret evidence once they have viewed it.
Sir Nicholas Wall considered that usually special advocates would not be appropriate in forced marriage cases and were not appropriate in this case. The first reason was based on the nature of the Act:
It is protective – quasi injunctive – and does not depend upon a complex factual matrix. … If, therefore, the view is taken that there is a proper basis for the court’s exercise of its jurisdiction under the Act (as the police and Judge Pearce plainly and responsibly did) an order under the Act can properly be made ex parte. (Paragraph 90)
In other words, the Act expressly allowed the courts to make orders without the respondents being aware of the applications. This made in particularly unlikely that it would be appropriate to appoint special advocates to represent their interests.
Secondly, case law indicates that use of special advocates must be a matter of last rather than first resort. It follows then that,
…there has to be something which a special advocate can do, which it would not be appropriate for the judge to do. In my judgment, a judge on the facts of this case is fully in a position to resolve a PII or disclosure application, and there is nothing that a special advocate could do which cannot properly be done by the judge. (Paragraph 92)
Furthermore, special advocates were not necessary to resolve questions of fact in this case. For instance, the central issue was the health, safety and wellbeing of A as well as her wishes. The court was taking steps to ascertain these matters and did not require special advocates to assist.
Crucially, it was found that,
The court, in my judgment, is entitled to take the view that any forced marriage is a breach of human rights, and that where – as here – a responsible body such as the police have credible information sufficient to invoke the court’s jurisdiction and form the basis of court orders, an issue arises which – in the context of the Act and the jurisdiction it provides – entitles the court to act and make its orders, irrespective of the truth or otherwise of information which has led to the application. (Paragraph 99)
He was also tempted to consider that no Article 6 issue arose at all: there is clearly no civil right or obligation to force a person to marry and Article 6 gives protection of a party’s right to a fair trial “in the determination of his civil rights and obligations”. However, an application to set aside an order made under the Act is likely to engage Article 6 because the respondents will probably argue that their Article 8 right to respect for private and family life is interfered with due to their desire to arrange a marriage for their child, and Article 8 is of course a civil right.
In balancing the Article 6 and 8 rights against PII or other ECHR concerns, proportionality must be borne in mind. Sir Nicholas Wall concluded that,
…the making of an order is manifestly dealing with the case in a proportionate manner, and it is likewise proportionate, given the purpose and nature of the Act, to adapt the rights of the parties affected by the order in the instant case “to give priority to the information contained in the PII material. (Paragraph 105)
Accordingly, special advocates were not required, and would would hardly ever be required in such cases.
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