Should more trials be held in secret?

1 December 2011 by

There is just over a month left to respond to the Government’s consultation on the Justice and Security Green Paper. Responses have to be be sent via email or post by Friday 6 January 2012.

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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  1. Andover A says:

    NB, for what it’s worth, that the JCHR [Editor’s note – Joint Committee on Human Rights] has indicated it has concerns about the legislation and intends to inquire into/take evidence about this soon.

  2. C Harley says:

    I despair This country becomes more & more like the old USSR every day

  3. Thanks for raising the profile of this important Green Paper – and to Obiter J for his comment above. 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.

    At a general level, firstly 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. This assumption is an important part of the basis used to justify expanding the scope of CMPs to other categories of proceedings. 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.

    Second, the exceptional interests of national security are relied upon 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 appears that PII (with its 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 proposals deserve much more attention and critical debate. This is unlikely, as Obiter J has observed above, to be forthcoming from the opposition. I would therefore urge all those interested in the fairness of judicial procedures in this country to review, and consider responding to, the Green Paper.

  4. ObiterJ says:

    Thank you for the above mention.

    The strange thing about this topic is the silence. At least with legal aid there is a campaign to try to reverse LASPO Part 1.

    These Justice and Security proposals – very well and succinctly summarised here and, in greater detail on my blog – certainly seem to have the general support of the Labour Party who were, of course, in power when the Foreign Secretary was trying to prevent inclusion of certain paragraphs in a High Couirt judgment (Binyam Mohamed). No doubt the Lib dems will “roll over” and go along with the proposals.

    The Green paper is short on detail. For my part, I suspect that the government’s thinking is well in advance of the green paper and more detailed proposals could have been put forward. As ever, the devil will be in the detail.

    The dangers are that the “closed material procedure” (CMP) will be taken well beyond the really serious matters of defence, anti-terrorism and foreigh affairs and will extend to anything where the government is involved or one the many government agencies and perhaps even be extended to any public body including local authorities. The extensive scope of RIPA is an example of such wide-ranging legislation.

    As regards oversight, I suspect that they will prefer the introduction of an Inspector-General – (who I describe as a watchdog on a leash) – rather than enhancement of the role of the Intelligence and Security Committee (ISC). The former will be the easier to control.

    Please keep abreast of this paper. If it comes into force, civil proceedings will be hardly recognisable in the future and much “justice” will certainly NOT be seen to be done – if it is done at all since in some areas the Secretary of State will be able to stop the case (e.g. Binyam Mohamed ?)

  5. What on earth do they dare to tray and get away with???

    “White collar criminals” seems to be a complete understatement.

  6. Elfed Williams says:

    As a Rural Property Developer in Wales I am interested in the interface between land-use regulation in the public interest, and restrictive occupancy conditions attached to planning permissions.
    Many rural planning authorities when granting permissions for rural housing impose various forms of restrictive local-persons only conditions, which may be accepted by applicants in the excitement of receiving planning permission, but cause misery later when they try and mortgage or sell on.
    There is a raft of planning appeal decisions which now incline to discharge such conditions.
    Moreover, the Scottish Government has recently sent a letter to all Scottish planning authorities advising that restrictive conditions are “rarely appropriate”.
    How does this restriction comply with the HRA, Protocol 1, Article 1, if at all ?

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