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The Cabinet Office has released its long awaited (by this blog at least) Justice and Security Green Paper, addressing the difficult question of to what extent the state must reveal secret information in court proceedings. A consultation has been launched on the proposals; responses can be sent via email by Friday 6 January 2012.
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. In summary, the Government has recommended that controversial Closed Material Procedures and Special Advocates are 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.
Welcome back to the UK Human Rights Roundup, your weekly buffet of human rights news. The full list of links can be found here. You can also find our table of human rights cases here and previous roundups here.
The big news this week has been the unexpected turn of events in the Assange extradition case. Almost immediately after the Supreme Court handed down its judgment that he could be extradited, his counsel Dinah Rose QC threw a spanner in the works… The upshot is that it looks like Assange shall be sticking around for at least another couple of weeks. The other significant news of the week is that the Government has published the Justice and Security Bill.
Angus McCullough QC and Jeremy Johnson QC, Special Advocates at the JCHR
It appears that the Government has climbed down, in part, from some of its controversial secret justice proposals. According to the Telegraph, the Justice and Security Bill, which will be published this week, will include a provision whereby judges, not the Government, has the final say on whether a Closed Material Procedure (CMP) is used. Moreover, CMPs will be restricted to “national security cases” rather than any case “in the public interest”.
It “remains uncertain”, however, “whether Mr Clarke will exclude inquests from being subject to the secret hearings.” Junior Justice Minister Jonathan Djanogly caused a stir last week when he appeared prematurely to announce that particular concession in Parliament, but quickly stepped back from his statement. In view of the likely legislative bartering which will occur as the bill progresses through Parliament, perhaps this is a concession which was meant to be left until later in the process.
We will analyse the bill when it is published later this week. But as this important debate resurfaces and the manoeuvring continues, it is important to keep two things in mind.
Welcome back to the human rights roundup. Our full list of links can be found here. You can also find our table of human rights cases here and previous roundups here.
by Melinda Padron
In the news
The Leveson Inquiry begins
Last week saw the start of the Inquiry into the culture, practices and ethics of the press, headed by Lord Justice Leveson. Proceedings can be followed via the Inquiry’s website, where you can either watch live hearings or videos of past hearings, a move welcomed by Adam Wagner as a “minor landmark for open justice.” Hugh Grant (pictured) as well as other celebrities and victims will be appearing this week to give evidence.
Blogger Obiter J reported that Lord Justice Leveson gave an interesting warning to journalists against unjustified coverage of the Inquiry proceedings. Such unjustified and hostile coverage, said Lord Justice Leveson, might lead to the “conclusion that these vital rights are being abused which would itself give evidence of culture, practice and ethics which could be relevant to my ultimate recommendations.” The warning, remarks Obiter J, may be perceived as the imposition of restriction on the media. The Inquiry’s opening day has been described as “dramatic”, particularly due to the powerful submissions made by Robert Jay QC, counsel for the Inquiry. Mr Jay QC, in a long speech, set out the purposes and concerns of the Inquiry and referred to evidence which may indicate that the practice of phone hacking at News International was a systematic one.
In a career defined as much by powerful dissenting judgments as by winning oral arguments, Ruth Bader Ginsburg blazed a trail particularly for women, but also minorities and the LGBTQI+ community, to receive equal treatment under the law. This article will follow that trail, from her early women’s rights arguments in the 1970s to her powerful dissenting judgments, which earned her the affectionate title of ‘the Notorious RBG’ in later life.
To commemorate her death last Friday at 87 years of age, this extended article will look at her extraordinary professional life.
The head of Sky News has argued in a new Guardian article that justice must be televised as allowing TV cameras in court would help restore public faith in criminal proceedings.
Sky news has been campaigning for TV cameras to be allowed in court for the past year. John Ryley argues that the upcoming prosecutions of 5 men accused of abusing the parliamentary expenses system should be televised as the judge in the case has said the matter is “of intense public interest”. Televising proceedings would help restore the loss of confidence in parliament and politics and ensure that judges who are seen are “out of touch” and “liberal” need not escape the spotlight.
While MPs were dreaming of the imminent long summer break and a possible pay hike, in mid-June the Government produced the draft amendments to the Civil Procedure Rules (“CPR”) necessary to bring Part 2 of the Justice and Security Act 2013 (“JSA”) into force. Many – including JUSTICE – consider the Act’s introduction of closed material procedures (“CMP”) into civil proceedings unfair, unnecessary and unjustified.
That one party will present their case unchallenged to the judge in the absence of the other party and their lawyers is inconsistent with the common law tradition of civil justice where proceedings are open, adversarial and equal. This blog has spent many pages dissecting the constitutional implications of the expansion of CMP in the JSA and its controversial passage through both Houses of Parliament.
Perhaps in a bid to avoid similar controversy, the draft Rules were dropped quietly into the libraries at the Houses of Parliament without fanfare. Less than two weeks later and without significant change, the Rules were tabled.
Terrorism has brought many changes in the ways in which we go about our lives. Many of these are quite minor, irritating but generally sensible. The holding of trials where much of the evidence is kept secret is not minor, and in principle must be considered an outrage rather than an irritant. But there are clearly occasions when this has to happen, and it is a great challenge to those who on the one hand have responsibility for preventing terrorism and those on the other hand responsible for ensuring that justice has been done.
The Lord Chief Justice, supported by Lady Justice Hallett and Lady Justice Sharp, supported Mr Justice Nicol’s dismissal of applications made by The Guardian and other media organisations that reporting restrictions applied during the trial of Erol Incedal be varied so as to permit the publication of reports of most, if not all, of what took place during hearings held in private, but in the presence of accredited journalists.
Readers may recall that Mr. Incedal had been subject to two trials on charges relating to terrorism. He was convicted at the first trial on one count (possessing a document containing information of a kind likely to be useful to a person committing or preparing an act of terrorism contrary to section 58(1)(b) of the Terrorism Act 2000), but acquitted of a more serious count following a retrial. He was sentenced to 42 months imprisonment.
There had been reporting restrictions from the outset. After a pre-trial hearing, a differently constituted Court of Appeal had directed that the trial should have three elements: part would be open; part could be attended by nominated and approved journalists, but without taking notes (and indeed significant steps taken to ensure that there were none); and finally part in camera). Nicol J, who now found himself with the burden of actually conducting such a trial, had originally ordered that the whole trial should be in camera.
The first point of note is the nature of the appeal (and indeed the earlier appeal). As the Lord Chief Justice made clear, referring to Ex p The Telegraph Group, “it is the duty of an appeal court, when considering issues relating to open justice as an appellate court, not simply to review the decision of the judge, but to come to its own independent decision.”
The presently constituted Court of Appeal was concerned about the nature of the earlier decision of the Appeal Court. They paid “an especial tribute to the way in which this trial was managed by the trial judge in consequence of the order” and his making of “the very difficult decisions which arose with conspicuous skill and ability”, coming to “the firm conclusion that a court should hesitate long and hard before it makes an order similar to that made by this court on 4 June 2014, given the unexpected effect it had on the conduct of the trial”. As it happened significantly more evidence was given in open hearings than had been anticipated, and without the need for judicial intervention. An indication of the professionalism and concern of the advocates and those instructing them.
The present appeal was dismissed as, having read the relevant evidence, the Court was “quite satisfied….. for reasons which we can only provide in a closed annex to this judgment that a departure from the principles of open justice was strictly necessary if justice was to be done” and that “because of the nature of that evidence those reasons continue to necessitate a departure from the principle of open justice after the conclusion of the trial and at the present time”.
The judgment acknowledges the loss of the “watchdog function” of the press, and says that public accountability now has to be left to the Intelligence and Security Committee of Parliament. To which it could be added that the relevant material has now been considered by the two relevant Secretaries of State, the DPP, the trial Judge, and it seems six Court of Appeal judges, including the Lord Chief Justice, who have all, albeit with different roles, come to the same regrettable conclusion as to the nature of the material that remains unreported. Indeed even the media seems to have accepted that some of the material at least should be kept out of the public domain.
Much of the real interest in this judgment will be in the analysis of the different constitutional responsibilities respectively of the executive in the form of the relevant Secretaries of State, the DPP, and of course the roles of Counsel and the trial judge.
Independence is the watchword. The DPP has to be independent of the executive so that she can exercise her own judgement firstly as to whether or not to bring a prosecution, and secondly whether or not to bring an application to the Court for the openness of the proceedings to be limited in some way (normally in camera).
But it is for the Court to “determine whether the evidence in issue should be heard in camera by consideration of the nature of the evidence”. The matter cannot be determined on the basis of an implicit threat not to prosecute: “the proper approach of the court is to examine the nature of the evidence and to determine the effect of hearing it in public. Deciding the issue on the basis that the DPP might not continue with the prosecution does not satisfy the test of necessity. In effect, it transfers the decision on whether to depart from the principle of open justice to the DPP”.
If the court rejects a submission for the withholding of material, and the DPP decides that the trial should still go ahead, the Court stressed that:
“the Executive cannot then refuse to provide the evidence required by the DPP on the basis that it perceives that it is not in the interests of national security to provide it. The court has made its decision and the Executive must abide by it… If the DPP decides on continuation, then the Executive must give the prosecution its full cooperation and assistance”.
Two procedural matters are of interest. Firstly a recommendation that Judges in such cases involving national security may on occasion need to be provided with the assistance of independent counsel if requested. The other is in a concluding observation that there was no mechanism for retention of closed Judgments, and that there should be. An obvious point perhaps, but one that raises interesting issues as to how such closed Judgments are later accessed, or even known about.
At the end of the day Mr. Incedal was acquitted of the more serious charge. There was a judge, a jury, counsel and solicitors, a number of observing, albeit constrained, journalists, an appeal procedure, and doubtless a recording of the proceedings. In respect of the reporting restrictions, these were considered twice by the Court of Appeal. It would be too easy, and inaccurate, just to dismiss this as “secret” justice.
Yesterday I spoke at Justice Wide Open, an excellent conference organised by Judith Townend. I mounted my usual open justice hobby horses (to coin a topical phrase) on how to make the justice system more accessible to the public, including a moan about human rights reporting. Someone told me during the break that according to her research, when newspapers put a positive slant on a human rights story, they tend to use the code word “civil liberties”. And, as if to prove the point, on the very same morning the Daily Mail put its considerable weight behind a crucial but until now sub-public-radar “civil liberties” and open justice issue, the Justice and Security Green Paper.
As readers of this blog will be aware, the Government proposes in the Green Paper to introduce “closed material procedures” into civil proceedings. For an explanation of why this amounts to “a departure from the foundational principle of natural justice“, look no further than the Special Advocates’ response to the consultation and my co-editor Angus McCullough QC’s post, A Special Advocate’s comment. But although the proposals have been getting lawyers and The Guardian hot and bothered, the sound of tumbleweed has been the loudest response. Until now, that is.
Ex-Guantanamo Bay prisoner Binyam Mohamed failed this weekend to prevent the Daily Mail reporting that he had been granted permanent residency in Britain. The case highlights a growing trend for the courts to enforce open justice in two significant ways, both which rely heavily on protections guaranteed under human rights law.
Interestingly, two crucial aspects of open justice have been reinforced as a result of a case involving Mohamed himself. In fact, the open justice aspects of Mohamed’s case against the security services will probably emerge as amongst the most important legal rulings arising from the ‘war on terror’ era. Unfortunately for him, this may have had the unintended consequence of destroying any chances of maintaining his privacy.
The 94-page report, written by a group including a QC and a High Court judge, is a major and ambitious attempt to make the justice system fairer and simpler for people who go to court without a lawyer. A huge amount of research and thought has gone into it, building on the process begun by Lord Woolf in 1997 with the Civil Procedure Act. The CJC was itself a creation of the 1997 Act, its function being to figure out how to make the civil justice system more accessible, fair and efficient.
Mr Justice Lewis has refused permission to bring a judicial review in what is arguably the most comprehensive and wide-reaching challenge brought to date to the legality of the lockdown Regulations and the decision to stop providing education on school premises (save for the children of key workers) in R (Dolan and Ors) v Secretary of State for Health and Social Care and Secretary of State for Education[2020] EWHC 1786 (Admin).
Updated | On 5 November 2010 judgment was handed down in JIH v News Group Newspapers ([2010] EWHC 2818 (QB)) – Read judgment.
Update, 18 November 2010: The case has returned to the High Court after the Daily Telegraph reported a key detail relating to JIH’s identity. This was contrary – said JIH – to the court order. Mr Justice Tugendhat refused the application by JIH that his/her identity not be disclosed. However, he did sound a warning that “editors and publishers have regard to the “duties and responsibilities” referred to in Art 10(2) itself. These duties and responsibilities include a requirement that they comply with orders of the court, and that they take all necessary steps to ensure that journalists understand this necessity.” If they ignore that warning, warned the judge, they may be found in contempt of court.
This post by Mark Thomson first appeared on the media law blog Inforrm, and is reproduced with permission and thanks
AP (Trinidad & Tobago) v Secretary of State for the Home Department [2011] EWCA Civ 551 Read Judgment
In the ongoing controversy over the deportation of foreign offenders, the Court of Appeal has decided that the Immigration Tribunal had not made a mistake of law in deciding that a foreign citizen who had lived in the UK since the age of 4 and had been convicted and sentenced to 18 months imprisonment for a drugs offence, following a string of other offences, should not be deported.
The Court of Appeal also commented on the interaction between the Tribunal and appellate courts and a potential distinction between ‘foreign criminals‘ as defined by the UK Borders Act 2007 and other foreign offenders.
The Supreme Court of the United States has decided that same-sex couples have a constitutionally protected right to marry.
In the history of American jurisprudence, there are a handful of cases which are so significant that they will be known to all US law students, much of the domestic population at large, and even large segments of the international community. Brown v Board of Education, which ended racial segregation in schools, is one example. Roe v Wade, which upheld the right of women to access abortion serves, is another. To that list may now be added the case of Obergefell v Hodges.
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The Cabinet Office has released its long awaited (by this blog at least) Justice and Security Green Paper, addressing the difficult question of to what extent the state must reveal secret information in court proceedings. A consultation has been launched on the proposals; responses can be sent via email by Friday 6 January 2012.
Welcome back to the UK Human Rights Roundup, your weekly buffet of human rights news. The full list of links can be found 
While MPs were dreaming of the imminent long summer break and a possible pay hike, in mid-June the Government produced the 
Yesterday I spoke at 
The Civil Justice Council (CJC) has just released a major new report: 
AP (Trinidad & Tobago) v Secretary of State for the Home Department [2011] EWCA Civ 551 
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