Secret evidence v open justice: the current state of play

17 July 2011 by Rosalind English

1 Crown Office Row’s Peter Skelton appeared for The Security Services in this case. He is not the author of this post.

On Wednesday last week, the Supreme Court handed out two apparently contradictory judgments on what seemed to be the same issue – see our reports here and here.  Had they taken leave of their senses? In one case, the court appeared to say, there was no illegality or human rights-incompatibility with a procedure that dispensed with the requirement that all the material must be shown to both parties in every case.  In the other, it ruled that such a “closed procedure” was such an insult to “fundamental” common law principles of open justice and fairness that no court, however lofty, would have the jurisdiction to order it without statutory authority.

The key to this apparent inconsistency lies in the principles at the heart of these cases, which pull in opposite directions: the principle of fair and open justice, or, in Article 6 terms, “equality of arms,” versus the principle that gives weight to the interests of national security.

In Tariq v Home Office the Court considered the permissibility and compatibility with European Union law and the European Convention of a closed material procedure authorised by certain statutory provisions. The issues in that case centred on the lawfulness and effect of those provisions and their compatibility with, amongst others, Article 6 of the Convention, whereas in Al Rawi v Home Office the Court was concerned with the position at common law. This superficially small distinction made the world of difference to the outcome of both cases.

As a general rule, real justice and a fair trial can only be achieved by open hearings, open disclosure, each side confronting the other’s witnesses and open judgments. But in certain circumstances, such equality of arms may have to be dispensed with in order  to achieve real justice and a fair trial. Such procedures are adopted in certain classes of case (see the examples given below).

EU and ECHR requirements

It must be stated at the outset that neither of these instances of closed procedure fell foul of the principles of open justice inherent in EU or Strasbourg law.

The observations of the Court of Justice at para 344 of Kadi v Council of the European Union [2009] AC 1225 indicate that EU law is willing to accept a closed material procedure in the interests of national security. And the Strasbourg Court has stated unambiguously that it regards the strictest institution permitted by UK law, the Special Immigration Appeals Commission (SIAC), to be a  “fully independent court” which is best placed to ensure that no material was unnecessarily withheld from the detainee (A v United Kingdom 49 EHRR 695).  Indeed, in another closed procedure case, this time involving the very sphinx-like Investigatory Powers Tribunal, the Court was equally sympathetic to the need to withhold certain information. In Kennedy v United Kingdom the Court held that the IPT procedure not only fulfilled all the requirements of Article 6, including equality of arms, but that it provided a sufficient remedy for individuals who suspected that they were subject to secret surveillance so that there was no breach by the UK under Article 13. The entitlement to disclosure of relevant evidence is therefore not an absolute right under the Convention.

So we are left with the common law, not of much use to Mr Tariq since his case was governed by the special statutory provision for closed material procedure under the Employment Act, but an issue which much exercised their lordships in Al Rawi.  This was a claim against the Intelligence Services and their sponsoring departments, alleging complicity in the claimants’ extraordinary rendition, false imprisonment, torture and other ill-treatment. The appellant security services claimed that they had security sensitive material within their possession which they wished the court to consider in their defence but which could not be disclosed to the respondents. They therefore sought a “closed material procedure” for this part of their defence – a procedure whereby a party can withhold certain material from the other side.

Parliament has reacted to the particularly serious threat of terrorism in the last two decades by introducing a form of closed material procedure (with the use of special advocates) for use in certain categories of case, for example, by enacting the Prevention of Terrorism Act 2005 and the Counter-Terrorism Act 2008. The advantages of this procedure over the PII system is that the material is not suppressed altogether, but instead is made available to a judge and a special advocate. Special advocates are free to make such forensic use of it as is possible in the closed part of the proceedings, but without taking instructions from their client, who of course cannot see the material concerned.

In Al-Rawi the government departments’ primary case was that a court has the power to substitute this much simplified procedure for the traditional PII exercise, and that there was no reason in principle why the court could not exercise its inherent jurisdiction to oil the wheels of a wider category of case where a defendant cannot deploy its defence fully (or sometimes not at all) if it is required to follow an open procedure.

To appreciate the full force of this argument it is necessary to understand the constituent elements of the PII procedure and why it was (and still is) considered so  difficult to surmount in Al-Rawi.

Public Interest Immunity (PII)

For the best part of a century, the courts and Parliament have been exercised by the problem of how to reconcile the conflict between society’s interest in maintaining a fair system of justice the interest that we also all have in the protection of national security, the prevention and prosecution of crime, the country’s international relations and so on.

The PII procedure (or Crown Privilege as it used to be known) is a creature of the common law devised by the courts to allow for certain documents to be suppressed in the public interest (usually national security). An application for PII is made by a minister to the judge who balances the public interest in the administration of justice secured by availability of the material against the public interest identified by the certificate. The material may or may not then be suppressed. It will not come as a surprise then, that PII is an exception to the  basic rule in that the court cannot exercise its power to regulate its own procedures in such a way as will deny parties their right to participate in the proceedings in accordance with the common law principles of natural justice and open justice.

The reason PII was not a procedure appropriate to these proceedings was that the scale of the exercise would be so vast – according to the government appellants, as many as 140,000 documents may have to be the subject of the PII process: a massive and expensive task which would inevitably mean incalculable delays before a trial would be possible.

The other problem with adopting such a hard and fast rule about the non-disclosability of certain documents is that it creates the risk that no trial will take place at all. That is, if the material is relevant but cannot be disclosed, the case may become untriable.

And this brings us  to somewhere between a rock and a hard place, called, appropriately,  Carnduff v Rock [2001] EWCA Civ 680.

a) The Carnduff dilemma

The appellant’s argument was that the closed material procedure does not suffer from the defects disclosed by the Carnduff dilemma.  In a closed procedure the court is able to see and take into account at trial relevant material (written and oral) rather than excluding that material altogether under PII principles.  In other words the court is able to review relevant material in the overall interests of justice and to do so with the assistance of special advocates who can make submissions on behalf of the party from whom open disclosure was being withheld. In short, in an appropriate case, a closed procedure would be more likely than PII to achieve justice through a fair trial.

b) No defence

The trouble with a case like Al Rawi is that the government parties defending the action have to certify PII in respect of certain evidence, but they cannot rely on it at the trial and are therefore unable to defend the action. A defendant who is ordered to disclose sensitive material on a PII hearing has the invidious choice of disclosing material that will damage some important public interest, or making admissions and, in an extreme case, conceding the claim. One answer to the Carnduff  dilemma is to say that,  if critical evidence could not be disclosed, the worst that may happen was that the government would to pay an unmeritorious claim. The obvious drawback of this “preposterous” position (Lord Brown in Tariq at 84) is that it would not only be peach for unmeritorious claims; it would mean that the government could only maintain essential secrecy on pain of having to accept or pay all claims for compensation which appeared sufficiently arguable to avoid being dismissed as abusive.

At this prospect, Lord Hope did not mince his words: such a scenario

would lead to the government being seen as an easy target for unjustified claims. That would be a field day for the unscrupulous. (Tariq [79]).

The appellant government therefore contended that there must be a better answer to both sides being deprived of any sort of justice at all; indeed, that justice itself  requires some form of closed procedure and that the court must have power at common law to permit it.

Closed material procedure

The advantages of the route proposed by the appellants are obvious, and the route is one which is already in use in a number of areas of litigation. Under this procedure it is not necessary for the minister and the court to balance the damage that would be done to the public interest if any given document were disclosed, against the damage to the administration of justice if it were not. Instead, any sensitive documents are seen by the court, and the special advocate is able to question the state’s witnesses and test their case.

The fact that there are several exceptions to the open justice principle that have been recognised by the courts suggests that this is not as shocking and impermissible an inroad into “fundamental rights” as made out. Here they are:

• Certain employment proceedings:  Tariq v Home Office [2011] UKSC 35
• Some parole hearings:  R (Roberts) v Parole Board [2005] UKHL 45
• Certain control order cases: Secretary of State for the Home Department v MB (FC) [2007] UKHL 46
• Wardship/children proceedings: In re T (Wardship: Impact of Police Intelligence [2009] EWHC 2440 (Fam)
• Certain intellectual property proceedings and cases involving commercial confidentiality:  British Sky Broadcasting Group plc v Competition Commission [2010] EWCA Civ 2

As Lord Mance observes, the list above makes it difficult to suggest that the court lacks jurisdiction in a strict sense to vary the basic principles of open and natural justice which it insists are so inalienable.

How “fundamental” are these common law principles?

Still, there seem to be deep-seated objections to allowing the courts to use their inherent jurisdiction to allow closed material procedures without the backing of Parliament. Lord Dyson summarised these primary misgivings at the outset of his leading judgment in Al Rawi:

The closed material procedure excludes a party from the closed part of the trial. He cannot see the witnesses who speak in that part of the trial; nor can he see closed documents; he cannot hear or read the closed evidence or the submissions made in the closed hearing; and finally he cannot see the judge delivering the closed judgment nor can he read it.

It therefore seemed to him, and the rest of the majority, that this was a good enough reason for saying that Parliament alone could sanction such a development. He drew an analogy with the House of Lords’ 2008 ruling that anonymous evidence could only be used in a criminal trial with statutory authority, since it was an invasion of the common law principle that the defendant has the right to be confronted by his accusers (R v Davis [2008] UKHL)

But this is comparing apples and pears. In neither of the instant cases were the individuals concerned faced with criminal proceedings or with restrictions on their personal liberty. These were both civil claims and the question in each was whether the individual litigants were entitled to damages. In such a case, the court assesses the evidence, and if it seems as if there is insufficient defence to his claim in damages, he gets the money; if it doesn’t, he won’t. There is no question of “facing accusers” or “answering the case against him”.

The other objection, implicit in most of the opinions but plangent with Lord Dyson, is that allowing closed material procedure in Al Rawi-type circumstances would be the “thin edge of the wedge”. But if this particular procedure were only invoked in civil compensation claims where national security that the defendant would simply have to concede the claim, or where the matter would be rendered wholly injusticiable, surely  that itself would delimit the situations in which the closed procedure could be ordered.

In any event, courts are constantly allowing departures from the normal where these are  justified in the interests of justice. 

So, what price “principle”?

Lords Dyson and Kerr are strongly against invasions of these common law precepts on grounds that smack of pragmatism or ad hoc policy.  In his dissenting opinion in Tariq, Lord Kerr objects to the closed material solution to the Carnduff dilemma:

Pragmatic  considerations, of course, have their part to play in the resolution of difficult legal conundrums but, I suggest, they have no place here.[106]

But it is difficult to see why the  common law principles of open justice can be abrogated in order to erect a ring of confidentiality to protect commercial interests – or children’s interests, for that matter – and not in the interests of national security. It is no answer to say, as the Court says in this case, that compatibility with Article 6 of such closed material procedures (as established in Tariq) does not mean the same thing as compatibility with the common law. This is not about the common law providing greater protection for litigious parties than that insisted on by the Strasbourg Court. This is about according a privileged philosophical position to a current theory about the courts’ ability to regulate their own practices. This theory is nothing more a reflection of the compromises and adjustments that are made routinely in response to political conditions prevailing at the time.

We should not be so fixated on the principles of adversarial justice that we risk rendering real justice impracticable.  The truth of the matter is that there seems to be a pressing need to fashion a new procedure that dispenses with the impracticalities of PII on the one hand, and deals with the Carnduff dilemma on the other. As Lord Brown says,

claims of the sort advanced here, targeted as they are principally against the Intelligence Services, are quite simply untriable by any remotely conventional open court process. [para 86]

In his view, cases involving highly sensitive security information should go for determination by some body akin to the Investigatory Powers Tribunal which does not “pretend to be deciding such claims on a remotely conventional basis” (although such a specially constituted tribunal could hardly be regarded as radical in the light of the frequency with which courts can and do operate closed material procedures – per Lord Mance in Tariq).

What is common to all the judgments in Al Rawi and Tariq  is an implicit invitation to Parliament to get on with it and sort this problem out.

Naturally the expansion of the court’s common law jurisdiction to encompass the granting of closed procedure orders would spell the end to the Public Interest Immunity procedure as we know it. But there is not now, and never has been, anything sacrosanct about PII and it is difficult to see quite why judges cleave to it with such tenacity when it met with such deep judicial suspicion in the days of Conway v Rimmer et al. When fair trial rights run into conflict with other aspects of the public interest, particularly national security, the resolution of that conflict  may be a matter more appropriate for Parliament, but until parliamentary action is taken the common law should adapt to find ways of mitigating the myriad problems faced by Government in litigation involving sensitive security issues.

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