Extension of secret hearings would be “fundamentally unfair”, say Special Advocates
5 January 2012
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 email@example.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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