Should more trials be held in secret?
1 December 2011
The proposals have been little reported, save for journalist Joshua Rozenberg, channeling Dinah Rose QC, warning that they will “undermine a fundamental constitutional right:”. Perhaps legal correspondents prefer to pick over testimony from the glamorous Leveson Inquiry as opposed to complicated government proposals involving clunky phrases – some would say fig leaves – like “Closed Material Procedure” and “Special Advocate”.
But these proposals are extremely important. If they become law, which is likely given the lack of opposition from any of the main parties, the justice system will look very different in the coming years. Many civil hearings could be held in secret, and although (as the Government argues anyway) more justice may be done, undoubtedly less will be seen to be done.
The review was announced shortly after the Coalition Government came to power, on the same day that Sir Peter Gibson’s Detainee Inquiry was launched. The Government has recommended that controversial Closed Material Procedures and Special Advocates be used more frequently, particularly in civil proceedings. The courts have been reluctant to take this step themselves as any expansion of secret procedures will have significant effects on open justice and the right to a fair trial.
For more information, see my post which summarises the recommendations, also reproduced below. See also blogger Obiter J’s excellent and comprehensive series of posts – Part 1 (The government’s case), Part 2 (Proposals and Consultation) and Part 3 (Oversight).
In summary, the Government recommends:
- Introducing legislation to make closed material procedures (CMPs) more widely available in civil proceedings for use in rare instances in which sensitive material is relevant to the case. CMPs, which involve Special Advocates, are highly controversial (see half-way down this post) and the Supreme Court has recently suggested that it is for Parliament to decide whether such procedures should be used in civil (as opposed to criminal) proceedings. As Rosalind pointed out in her post, the European Court of Human Rights is not inherently opposed to such proceedings as long as they are strictly necessary.
- Seeking people’s views on the difficult issue of CMPs in inquests, which are after all supposed to be a public process whereby rumours about the circumstances surrounding deaths can be allayed in public.
- Improving mechanisms by which Special Advocates, who are “critical to the success of the proposed expansion of CMPs” communicate with the person who they are representing.
- Clarify the contexts in which the ‘AF (No.3)’ ‘gisting’ requirement does not apply. In AF, the House of Lords ruled that in order to guarantee a fair hearing under article 6 of the European Convention the judge must insist in every case that the controlled person is given sufficient information to enable his special advocate effectively to challenge the case that is brought against him. It sounds here like the Government are seeking to reduce to the bare minimum the instances where such “gisting” is required.
- The Government has also suggested various procedural reforms in order to manage the expansion of CMPs, including providing judges with more active case management powers in the pre-hearing phase to replicate best practice from more ‘inquisitorial’-type proceedings, establishing a ‘specialist’ court with appropriate safeguards to hear civil proceedings where sensitive material is relevant prospects for reform of the Investigatory Powers Tribunal (IPT).
- Limit the role of the courts in cases in which individuals are seeking disclosure of sensitive material, where the Government is not otherwise a party, particularly into foreign legal proceedings over which we have no control.
As I said in my first post, the Ministry of Justice argues that the proposals will ensure “that the sensitivity of evidence does not prevent cases being heard in the courts – enabling justice to be done without compromising national security.” But, as has been pointed out by Liberty, some cases which would have reached the courts under the old system may be taken out of the public gaze by the new.
You have just over one month to say whether you think civil trials being heard in secret is a good idea or not. The Government’s argument that some cases will reach court which otherwise would not has some force. But if passed into law, the proposals are likely to have a fundamental effect on open justice, and therefore should be treated with the utmost caution. It is particularly important that any new rules for secret court hearings should be very carefully limited, so that judges can resist the temptation to hear a case in secret by default. All details on the consultation are here.
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