secret justice

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Government not required to disclose full details of defence

blind justiceCF v The Ministry of Defence and others [2014] EWHC 3171 (QB) – read judgment

Angus McCullough QC of 1 Crown Office Row acted as Special Advocate in this case. He has nothing to do with the writing of this post.

The High Court has ruled that in a case against the state which did not directly affect the liberty of the subject, there was no irreducible minimum of disclosure of the state’s case which the court would require. The consequences of such disclosure for national security prevailed.

Factual and legal background

The claimant, Mohammed Ahmed Mohamed, had made a number of claims against various government departments, alleging complicity in unlawful and arbitrary detention and inhuman and degrading treatment and torture on the part of British authorities in Somaliland.  He also sought damages for trespass, breach of the Human Rights Act 1998, and misfeasance in public office. As Irwin J said,

The remedy sought is not confined to ordinary compensation, but extends to damages for breach of the Convention and to declaratory relief, which in the context of this case, and if the Claimant succeeded, would represent an important marking of unlawful behaviour: a matter in which there is a legitimate public interest.

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Supreme Court – Measures against Iranian bank unlawful, and the secret hearing ruling

mellatBank Mellat v HM Treasury [2013] UKSC 38 (CMP: see judgment) and 39 (main: see judgment)

Two sets of judgments today from a 9-judge Supreme Court in the Bank Mellat case. The first explains why the Court adopted a secret procedure in the absence of the Bank (i.e. a Closed Material Procedure) but added that the whole palaver in fact added nothing to their knowledge. The second concludes that financial restrictions imposed in 2009 on an Iranian Bank which effectively excluded it from the UK financial market were arbitrary and irrational and were also procedurally unfair. 

The saga started when on 9 October 2009 the Treasury made a direction under Schedule 7 of the Counter-Terrorism Act 2008 requiring all persons operating in the financial sector not to have any commercial dealings with Bank Mellat. The Treasury said that the Bank had connections with Iran’s nuclear and ballistic missile programme. Continue reading →

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Azelle Rodney Inquiry lawyers can see surveillance film footage

R (on the application of the Metropolitan Police Service) v the Chairman of the Inquiry into the Death of Azelle Rodney and Interested Parties [2012] EWHA 2783 (Admin) – read judgment

The public inquiry into the death of Azelle Rodney, which commenced in 2010, was still under way when it was interrupted by the present dispute. It concerned the issue whether police surveillance footage taken from the air, showing Azelle Rodney’s movements in the two hours before his death, should be disclosed to the legal team representing his mother at the Inquiry.

The Chairman of the Inquiry decided to permit disclosure and the Metropolitan Police Service (MPS) took these proceedings to challenge the decision.

The footage was shot during a 2005 drug heist operation involving Mr Rodney, 25, who was shot six times at point-blank range after a car chase. One of the issues of importance to the deceased’s mother (Ms Alexander, the First Interested Party)  was whether there had been a better opportunity to stop the car and its occupants at any time before the hard-stop which resulted in Mr Rodney’s death. This issue involved consideration by the Inquiry of the management of the surveillance/stop operation by senior officers. The officer in charge of the operation is due to give his evidence and to be questioned by Ms Alexander’s counsel.  Continue reading →

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Justice and Security Bill: The Government is not for turning – Angela Patrick

Publishing the Justice and Security Bill this morning, the Secretary of State for Justice said “I have used the last few months to listen to the concerns of … civil liberties campaigners with whom I usually agree.”

There are many people who today would sorely like to agree that Ken has listened and has taken their concerns on board.  Unfortunately, the Government’s analysis remains fundamentally flawed.  The Green Paper was clearly a “big ask”.  There have undoubtedly been significant changes made from the proposals in the Green Paper.  However, the secret justice proposals in the Justice and Security Bill remain fundamentally unfair, unnecessary and unjustified.

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Pssst… no secret hearings in naturalisation cases

AHK and Others v The Secretary of State for the Home Department [2012] EWHC 1117 (Admin) – Read judgment

Secrecy and secret justice are rarely out of the public eye. The Queen’s speech included plans to allow secret hearings in civil claims, at a time when their use is highly controversial. The government argues they are necessary to safeguard national security. Civil liberties groups and even the Special Advocates who help administer them, regard them as a bar to real justice and fair hearings.

So it seems appropriate at this time that the High Court has handed down an important decision on the use of Closed Material Procedures (CMP) in Judicial Review claims relating to naturalisation (the process by which foreigners can be ‘naturalised’ as British citizens). In simple terms, this is a variety of procedure where the government can rely on evidence which it has not disclosed to the opposing party, in a closed hearing. In the closed proceedings, the Claimants are represented by Special Advocates, who are subject to strict rules relating to what they can and cannot tell their clients.

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More secret justice on the horizon

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.

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Iranian Bank anti-terrorism restrictions order upheld

Bank Mellat v HM Treasury [2010] EWHC 1332(QB) Miity J 25/5/2010 – read judgment

A challenge to the imposition of a Financial Restrictions Order on an Iranian Bank alleged to have supported Iran’s nuclear program has been dismissed as the order was not considered disproportionate in the light of the importance of the public interested protected.

The order, which directed that anyone in the UK financial sector must not enter into or continue to participate in business with Bank Mellat, was maintained despite the Court of Appeal’s refusal to allow the government to rely upon secret evidence in order to prove the bank’s links with the nuclear program (see Court of Appeal launches offensive against secret justice with three linked judgments).

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