Extension of secret hearings would be “fundamentally unfair”, say Special Advocates

5 January 2012 by

Government proposals to increase the number of court hearings held in secret, and in which parties can only see minimal evidence relied upon by the court, have been severely criticised by the “Special Advocates” who play the central role in closed hearings.

The group of 57 barristers, including 19 Queen’s Counsel, argue that despite attempts, for example, to give those subject to “Closed Material Procedures” a summary of the evidence against them, they remain “fundamentally unfair” and

represent a departure from the foundational 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.

The document is a response  to the Government’s Consultation (see my and Angus McCullough QC’s previous posts) which have to be sent via email or post by tomorrow, Friday 6 January 2012. I will be collating summaries of responses as I did with the Bill of Rights Commission consultation. If you would like your response to be included, please send it to 1crownofficerow@gmail.com, with the subject “Consultation response”.

In summary, the special advocates argue:

(1) Closed material procedures (CMPs) represent a departure from the foundational 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.

(2) Substantially less restrictive regimes than the CMPs currently deployed in the United Kingdom have been successfully adopted to deal with sensitive material; most notably in the United States, to which no consideration has been given in the Green Paper. The „international comparisons‟ exercise at Appendix J of the Green Paper makes no mention of the United States and refers to only four countries (none of which appears to have a regime as restrictive as the UK model). More thorough research is required, including an explanation as to why a procedure involving security clearance being given to the directly instructed lawyers (akin to that used in „habeas‟ proceedings in the United States) could not be adopted here.

(3) Contrary to the suggestion in the Green Paper, CMPs are not “familiar to practitioners”. The way in which CMPs work in practice is familiar to only a very small group of practitioners. Of the 69 currently appointed to the list of Special Advocate, only about 32 have substantial experience in the role, and almost all of these are signatories to this response3.

(4) Contrary to the premise underlying the Green Paper, the contexts in which CMPs are already used have not proved that they are “capable of delivering procedural fairness”. The use of SAs may attenuate the procedural unfairness entailed by CMPs to a limited extent, but even with the involvement of SAs, CMPs remain fundamentally unfair. That is so even in those contexts where Article 6 of the ECHR requires open disclosure of some (but not all) of the closed case and/or evidence.

(5) It is one thing to argue that, for reasons of national security, the unfairness and lack of transparency inherent in CMPs should be tolerated in specific areas – such as deportation appeals and control order proceedings. It is quite another to suggest that Government Ministers should be endowed with a discretionary power to extend that unfairness and lack of transparency to any civil proceedings, including proceedings to which they are themselves party.

(6) The introduction of such a sweeping power could be justified only by the most compelling of reasons. No such reason has been identified in the Green Paper and, in our view, none exists.

(7) There is no fundamental difficulty with the existing principles of public interest immunity (PII), which have been developed by the courts over more than half a century and which enable the courts to strike an appropriate balance between the need to protect national security (and other important public interests) and the need to ensure fairness. Nor is there any sufficient evidence that the application of these principles has caused insuperable logistical difficulties in any particular cases.

(8) The prospect of cases being struck out because of the lack of a CMP is in our view exaggerated. However, even if the possibility exists that a claim which would otherwise be maintainable might be struck out, we doubt that chance is sufficiently great as to constitute an adequate reason to introduce CMPs into civil proceedings.

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  1. Jamal Ajoao says:

    There is no secret about secret evidence , All the secret evidence are collected by criminals who want to save their neck blame it on innocents then past on to most trusted but corrupt members of the communities to use as info to paint those whom they dont like , wich makes it easy for lawyers also to mislead and confused shaken and stered .

  2. James Lawson says:

    It is interesting to see that the anti-libertarian tendencies employed by New Labour in enacting the Inquiries Act 2005 allowing Ministers to the complete freedom to determine whether and to what extent they would be held to account as a result of any external inquiry, (condemned by Amnesty International) has been carried on under this government with its proposal to allow Ministers the freedom to determine whether and to what extent material regarded as damaging (or rather, politically embarrassing) is to be made available by those who would seek to hold them to account in the Courts. I doubt if anyone actually believes the justification the government have advanced. I am surprised that 1Cor (or anyone else for that matter) has refrained from commenting on CC v Commissioner of Police of the Metropolis [2011] EWHC 331 (admin) heard before Collins J on 20 December. Nicely timed to be heard on the very day that Parliament recessed for its Christmas break and thus too late to be brought to the attention of MPs or anyone else and very conveniently, (given the importance of the judgement) not made available to the public on BAILII. Here, we see the blatant misuse of power by the Security and Intelligence Services of Schedule 7 terrorism Act 2000. Not only was a Control Order made against an individual while he was actually abroad at the time it was made, the Port Authorities were given a list of 118 questions to put to him on his enforced return to the UK with instructions not to respond to any suggestion that the intelligence agencies had anything to do with his arrest by the Somali authorities who mistreated him and then deported him to the UK. Something the Court were actually quite dismissive of. The Court set out the scope of the powers available under schedule 7 which actually raises the nice question of whether and to what extend innocent Crown Subjects returning from holiday abroad to places of ‘interest’ to the intelligence services are subject to interrogation by the police (who have passenger lists and personal details which the carrier is obliged to pass on to the authorities) at the behest of the security services to illicit ‘intelligence’ and what happens to those questions if an official decides they have failed to ‘co-operate’ by being unwilling to answer intrusive questions and hand over ‘documents’ (which may include their ‘happy snaps) or whether disclosing to the press or anyone else for that matter of the nature of their treatment would amount to a ‘failure to cooperate’. Are cases such as these which are heard before the court, now to be regarded as being subject to ministerial ‘fiat’ which prevents them being heard at all?

  3. THANK GOD there are at least 57 conscientious barristers or should I say barristers with a conscience who act on behalf of actual and potential victims of secrecy!? After all, what can we, the victims, do!?…

    On a more philosophical level, “publicity is the very soul of justice” was already claimed by Jeremy Benthan (1748 – 1832). “Where there is no publicity, there is no justice.” he wrote!

    They might just take heart from a “precedent thinker”…

    With sighs and hopes,

  4. S. Legree says:

    Would any of this, cover, either way, written `evidence` in an Industrial Tribunal?
    I was in one some years ago, & had a `witness` for the opposition committed blatant perjury on me to clear a criminal ex-employer. When the written results were sent to me, I found the `evidence `had been backed up by some manufactured, defamatory, & falsely dated `letters of complaint` that were written by unknown persons using false names & letter heads, & these were not shown to me or my advocate before or during the hearing. When I found out, I requested a rehearing but was refused. I reported it to the police as a conspiracy to pervert the course of justice, but no action was taken. Any help or comments welcomed.

  5. John D says:

    I have emailed my MP and asked him to obtain a copy of the Green Paper and send it to me. Even this level of interest among parliamentary constituents may give some MPs and Ministers pause for thought on this issue.
    The time limit on submissions makes it impossible to submit a reasoned response; however, I assume that if these proposals are given further consideration, a White Paper will be produced and there should be sufficient time to make a submission in that event?

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