Should more trials be held in secret? Part 2: A Special Advocate’s comment

1 December 2011 by Angus McCullough QC

This is an expanded version of a comment made on Adam Wagner’s post:  Should more trials be held in secret?

Our recent post highlights the Government’s consultation on the Justice and Security Green Paper. Having been involved as a Special Advocate in many hearings involving closed material, I am troubled about these proposals, as well as the lack of public debate that they have generated.

The main proposals in the Green Paper are based on the highly debatable assumption that existing closed material procedures (CMPs as per the acronym adopted) have been shown to operate fairly and effectively.  CMPs, were first introduced in 1997 and have escalated in their application since then.  At §2.3 of the Green Paper it is stated that:

The contexts in which CMPs are already used have proved that they are capable of delivering procedural fairness.  The effectiveness of the Special Advocate system is central to this … .

This assumption is an important part of the basis used to justify expanding the scope of CMPs to other categories of proceedings. However, just because CMPs have (with substantial modification required by the Courts) been capable of operating in compliance with Article 6 of the ECHR, where Art 6 applies, does not mean that they can be considered to be ‘fair’ by any traditional common law standards. The suggested ‘improvements’ to the special advocate system set out in the Green Paper could not begin to make good this deficit in fairness that is inherent in CMPs in this jurisdiction, where individuals are deprived of material relied upon against them.

CMPs represent a departure from the fundamental 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. They also undermine the principle that public justice should be dispensed in public.  This latter principle may of course be subject to exceptions where publicity would prevent the court from doing justice in the individual case, but the importance of public and press scrutiny of the judicial process is such that exceptions should be recognised only in “the most compelling circumstances”.

In so far as the unfairness of CMPs is not obvious, one can point to numerous judicial observations to this effect.  Lord Bingham graphically suggested in a case in 2005 that the role of the Special Advocate “would inevitably be ‘taking blind shots at a hidden target'”.   More recent examples at the highest level can be found in the judgments in Al Rawi (the Guantanamo Bay litigation) in which the Supreme Court declined to hold that a CMP could be adopted in a civil claim, where there was no statutory provision for such a procedure.  The present Green Paper is, in part, a proposal to create by statute what the Supreme Court held could not be conjured from the common law.  In considering whether this is justifiable, it is worth quoting what Lord Dyson, giving the leading judgment, said in Al Rawi:

… subject to certain exceptions and statutory qualifications, the right to be confronted by one’s accusers is such a fundamental element of the common law right to a fair trial that the court cannot abrogate it in the exercise of its inherent power. Only Parliament can do that. 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.

Can all of these flaws be cured by a special advocate system? No doubt, special advocates can mitigate these weaknesses to some extent and in some cases the litigant may be able to add little or nothing to what the special advocate can do. For example, this will be the case where the litigant has no knowledge of the matters to which the closed material relates and can give no instructions which will enable the special advocate to perform his function more effectively. But in many cases, the special advocate will be hampered by not being able to take instructions from his client on the closed material. A further problem is that it may not always be possible for the judge (even with the benefit of assistance from the special advocate) to decide whether the special advocate will be hampered in this way.

The limitations of the special advocate system, even in the context of the statutory contexts for which they were devised, were highlighted by the Joint Committee on Human Rights in their report on Counter-Terrorism Policy and Human Rights (Sixteenth report): Annual Renewal of Control Orders Legislation 2010 (HL Paper 64/HC 395) (dated 26 February 2010) in the context of the Prevention of Terrorism Act 2005 and cases heard by the Special Immigration Appeals Commission. This report was based on the first-hand experience of those who have acted as special advocates. As the Court of Appeal noted at para 57, it is the Committee’s view after five years of operation that the closed material procedure (with special advocates) operated under the statutory regimes is not capable of ensuring the substantial measure of procedural justice that is required.

Lord Dyson went on to quote from an earlier JCHR Report:  at para 210 of that earlier report, HL Paper 157, HC 394, (published on 30 July 2007), the Committee had concluded:

“After listening to the evidence of the Special Advocates, we found it hard not to reach for well worn descriptions of it as ‘Kafkaesque’ or like the Star Chamber. The Special Advocates agreed when it was put to them that, in the light of the concerns they had raised, ‘the public should be left in absolutely no doubt that what is happening…has absolutely nothing to do with the traditions of adversarial justice as we have come to understand them in the British legal system.’ Indeed, we were left with the very strong feeling that this is a process which is not just offensive to the basic principles of adversarial justice in which lawyers are steeped, but it is very much against the basic notions of fair play as the lay public would understand them. “

Lord Kerr, again in Al Rawi, stated (at paragraph 94):

 Quite apart from the reasons so clearly stated by Lord Dyson about the necessary, inevitable but ultimately inherent frailties of the special advocate system, the challenge that the special advocate can present is, in the final analysis, of a theoretical, abstract nature only. It is, self evidently and admittedly, a distinctly second best attempt to secure a just outcome to proceedings. It should always be a measure of last resort; one to which recourse is had only when no possible alternative is available. It should never be regarded as an acceptable substitute for the compromise of a fundamental right such as is at stake in this case.

The scope of the proposals

The exceptional interests of national security are relied upon in the Green Paper as justifying extending the scope of CMPs, yet the proposals appear to relate to any material in which there is a public interest in non-disclosure, not just where the interest concerned is that of national security. Thus, it seems that PII (the long-standing doctrine of ‘public interest immunity’ which has developed to deal with sensitive material, and involves a balance between the public interest in non-disclosure against the public interest in the proper administration of justice) could effectively be abolished in a wide range cases, including those which have nothing to do with national security.

The need for critical debate

The proposals deserve much more attention and critical debate. This seems unlikely to be forthcoming from the opposition, although the parliamentary Joint Committee on Human Rights has recently announced its intention to hold an inquiry into the proposals in the Green Paper, and will formally call for evidence in a few weeks time. I would urge all those interested in the fairness of judicial procedures in this country to review, and consider responding to, the Green Paper.  Responses to the Consultation have to be be sent via email or post by Friday 6 January 2012.

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