Is the System of Closed Material Proceedings an Appropriate Way to Reconcile National Security Concerns With Due Process Requirements in UK Counter-Terrorism Law?

Is the System of Closed Material Proceedings an Appropriate Way to Reconcile National Security Concerns With Due Process Requirements in UK Counter-Terrorism Law?

Lawrence McNamara wrote an interesting article in the Guardian: How will we even know a closed judgement exists? In the article, McNamara stated that without open justice, media's role to ensure that the rule of law was being upheld would be compromised. What was disturbing for Mr.McNamara was that neither the Security & Justice Green Paper nor the decision of the country’s Supreme Court in Al-Rawi , the leading authorities dealing with Closed Material Proceedings (hereinafter referred as “CMP”), even discuss this key issue.

CMPs were first introduced in the United Kingdom almost fifteen years ago in response to the decision of the European Court of Human Rights in Chahal v. the UK , a landmark case which forbid EU member states from deporting people who were at risk of torture in their home country. It is broadly been described as a procedure in which the government discloses national security related evidence to a special prosecutor who is not allowed to disclose the evidence to anyone unless allowed to do so by the Court. However, CMPs still represent a grey area of both criminal and civil law not only because of its non compliance with national and international law but also its lack of clarity in what are the minimum requirements for such a proceeding to be labelled as such or even to be conducted. For instance, is it a CMP when the Government introduces secret evidence and a special advocate is appointed to scrutinize that evidence? There have been situations where secret evidence has been introduced without the appointment of a special advocate and vice-versa. Despite the criticism and confusion, the Government has released its Justice and Security Green Paper urging for the extension of CMPs to civil proceedings.

Article 6 of the European Convention of Human Rights enshrines the principle of the right to fair trial. This right gives the defendant to know the case against him, the evidence and statements; and the opportunity to defend oneself. Currently, the system that is followed mainly in civil proceedings is known as the law relating to Public Interest Immunity (hereinafter referred as “PII”). This requires information to be kept secret when the public interest in its disclosure is outweighed by the public interest in its use in the administration of justice. The matter is further complicated by the fact that the term ‘public interest’ lacks a definite legal definition. It is extended and narrowed depending on the needs and demands of each governing entity. Harold Wilson aptly stated:
I think every Member of the House knows what he means by the public interest and applies that test to a very wide range of questions that come to him for judgement. But I doubt whether any Member could provide a legal definition of what he means by the public interest, capable of covering changing national conditions and of being applied to all [cases]… In the last resort, this House is, and must be, the authority which decides whether or not any particular practice is in the public interest.

It is important to note that the United Kingdom is not alone in having to reconcile national security concerns with due process requirements. More than a year before the September 11, 2001 attacks, United States Congress passed Secret Evidence Repeal Act of 1999 keeping in mind the Fifth Amendment of the Constitution of the United States of America. India passed the Prevention of Terrorism Act after the attacks on its Parliament. All these laws have thrown up social, judicial as well as political challenges to which the response must be immediate as they pertain to matters of life and liberty.

When the Government released the Security & Justice Green Paper, it put forward the case for the extension of CMPs to civil proceedings arguing that while civil liberties are important, it held national security to be its primary duty. But why is the Judiciary paralysed when it must decide upon issues brought forward under the ‘national security’ label? The answer may lie in the words of Lord Judge Brown who in 1995 wrote:
The very words “national security” have acquired over the years an almost mystical significance. The mere incantation of the phrase of itself instantly discourages the court from satisfactorily fulfilling its normal role of deciding where the balance of public interest lies.

We have entered a phase where we are seeking justice in an absurd manner in the name of ‘national security’ while juggling with uncertain boundaries of “public interest”. Eventually, as the tentacles of CMP spread, the judiciary is adopting a practice of deciding cases without giving the defendants a chance to effectively examine or scrutinize the evidence against them.

In this essay, I will be arguing that CMP violate both international and domestic law. Upon establishing that evidence gathered by intelligence agencies, I will prove that special prosecutors violate the defendant’s right to a fair trial. Finally, I will conclude that CMP are not the way forward towards fighting both international and domestic terrorism.

Closed Material Proceedings and Due Process

Fairness in a trial is paramount in any proceeding. It is not surprising that there exist at least ten international legal instruments that enumerate this right: For guidance, one may refer to article 14 of the International Covenant on Civil and Political Rights, article 7 of the African Charter on Human and Peoples’ Rights, article 8 of the American Convention on Human Rights, and article 6 of the European Convention on Human Rights. It aims to establish equality between the parties, equal treatment before the law and regulation of evidence, its admission and examination before a court of law.

The European Court of Human Rights has laid down the minimum requirements for a fair trial. While a member state’s legislature is to free to lay down the rules regarding the admissibility of evidence , these rules cannot curtail the requirement that all the evidence must be produced and cross-examined before the accused in a public hearing . Significantly, the Court held that the prosecution must disclose all the material evidence, in favour or not, to the defence.

Notwithstanding, Strasbourg jurisprudence has accepted that some operations must be conducted secretly if they are to be conducted effectively . One may be misled by the judgements given in Chahal and Tinnelly & Sons Ltd and McElduff v United Kingdom (hereinafter referred as ‘Tinnelly’). In Chahal, the Court stated:
that there are techniques which can be employed which both accommodate legitimate security concerns about the nature and sources of intelligence information and yet accord the individual a substantial measure of procedural justice

And in Tinnelly, the Court observed:
safeguard national security concerns about the nature and sources of intelligence information and yet accord the individual a substantial degree of procedural justice.

When the ECHR in the Chahal case cited the use of the Canadian model of special advocates, it did so without adequate justification or precautionary advice with regard to Article 6 of the European Convention on Human Rights. It remains unfortunate that the Court, neither in Chahal or cases after that, discussed alternative procedures available in other countries. In Nashif v. Bulgaria the Court did not unconditionally uphold the use of special advocates:
Without expressing in the present context an opinion on the conformity of the above system [i.e. the use of Special Advocates] with the Convention, the Court notes that, as in the case of Chahal cited above, there are means which can be employed which both accommodate legitimate national security concerns and yet accord the individual a substantial measure of procedural justice.

Similarly, in A and Others , the ECHR stated that despite having referred to procedures involving special advocates, it had never before judged its compatibility within the European Convention. In its analysis, it accepted that while there was a need to keep certain evidence secret, there also was a right of the defendant to challenge the allegations . With that guaranteed right came the duty of the government to declare all the evidence that it could without compromising national security. It is easy to overlook the parts of judgement which can be clearly construed to discourage the practice of using special advocated. The Court acknowledges that if information is withheld from the defendant then he cannot provide effective instructions to the special advocate. Without clear instructions, the special advocate will not be able to protect the interests of his client.

Misconstruing these judgements, the UK Government continues to cite the above cited judgements to justify its use of special advocates:
One has to remember that the Special Advocate procedure is a procedure which was actually promoted by the European Court of Human Rights; attention was drawn to it based on a Canadian model by Human Rights organisations. The European Court of Human Rights has subsequently expressed approval of the system.

Back home, in Al Rawi, the Court of Appeal unanimously agreed that CMP cut across the fundamental principles of the right to know and the right to know the reasons of the outcome. Principles which the Court observed had taken over three centuries to establish. The Deputy President Lord Hope reiterated those concerns and included the litigant’s right to be apprised of the evidence relevant to his case.
The seemingly innocuous scheme proposed by the [government] would bring to an end any balancing of, on the one hand, the litigant's right to be apprised of evidence relevant to his case against, on the other, the claimed public interest. This would not be a development of the common law, as the appellants would have it. It would be, at a stroke, the deliberate forfeiture of a fundamental right which, as the Court of Appeal has said …, has been established for more than three centuries

One of the primary arguments of the Government regarding the introduction of CMP is that it is better that the judge view the secret evidence than rule on limited evidence. The fact remains that intelligence agencies, many times, work outside the purview and surveillance of the due process of law, effectively limiting the legality of such evidence. Compare this with a criminal investigation for which there are clear rules and regulations, a violation of which would make an investigation redundant. The point being that CMP do not offer a better deal to the defendant since the secret evidence that has been collected lacks the backing of due process of law which is of utmost important in the prosecution of criminal elements.

Finally, in Al-Rawi the Hon’ble Judges also state that the every judgment must be made public, the most importantly the public should have the right to witness the proceedings. CMPs fail to satisfy all these requirements. While there may be exceptions made when the alternative would result in the denial of justice, such exceptions could not be generalised.

The Judicialization of Intelligence

There is underlying acceptance regarding the introduction of evidence gathered by intelligence agencies by policy makers. The situation where intelligence is presented as evidence in Court is termed as “the judicialization of intelligence”; a process in which intelligence agencies have to confront, often for the first time, “a range of legal issues such as disclosure, evidentiary standards, and the testimony of intelligence personnel in criminal prosecutions”.

Evidence gathered by intelligence agencies is used for imposing various administrative measures including, but not limited to, deportation, control orders and banning individuals or organizations. This evidence is more often speculative; based on suspicion rather than proof beyond reasonable doubt as is the case with criminal proceedings.

Contrary to popular belief, in a report by Afua Hirsh, legal affairs correspondent of the Guardian, intelligence officials were cited as opposing the presentation of evidence in a Court of law. While it is acceptable to use intelligence in the short term to avert danger to the public, evidence obtained by intelligence agencies cannot be used to prosecute individuals in a Court of law. Intelligence being used in the long term must be translated into admissible evidence such that Courts may be able to process it. If that intelligence cannot be translated, the Government should not be allowed to rely upon it in a Court of law.

Special Advocates Defeat Due Process

CMP allows the prosecutor to introduce national security sensitive information without making such evidence known to the defendant or his advocates except to a special advocate appointed by the State. The special advocate is appointed by a law officer of the Government i.e. either by a law officer of the office of the Advocate General or Solicitor General; the same authority which is prosecuting the individual. Prima facie this seems unfair since Special advocate is not independent from the Prosecution. It would not be surprising to assume that the Prosecutor believes that they owe their position to the Government allowing a sub-conscious bias. The system of appointment does not have everybody on the same page. The Advocate General has gone on record to state that he had no role in decision making process with regard to the selection of special advocates. This may signify the lack of an agreement on the appointment of such advocates.

Special advocates have often complained about the lack of faith of the defendants in them due to the peculiar process of appointment in which the defendant has no right to choose the best advocate to take care of their interests. The only recourse is to send a note to the law officer who again may not agree and continue with the appointment. Such a process does not instil confidence in the defendant for a fair trial.

The woes of the Special advocate have many layers. Apart from being appointed to “defend” the accused, the prosecutor must follow a number of rules of regulations. Under Rule 36(2) of the SIAC (Procedure) rules 2003, a Special Advocates is prevented from communicating with the defendant and his advocate once he has viewed the secret evidence, establishing a Chinese wall. Although the Special advocate may request time with the Defence, such a request must to notified to the Secretary of State. The Secretary of State has the powers to decide the exact context of the communication.

Unlike a legal defence team, the Special advocate is a one man army. He also has no aides to help him in protecting the interests of the defendant. There may be a situation where he has to go through one thousand page documents or websites in foreign languages. Without a dedicated team, any efforts by the Special advocate would be limited and unfair to the defendant. The advocate, appointed by the very law officer prosecuting the suspect, would have the duty to protect the interests of the defendant but would have no duty of care towards the defendant.

Conclusion

The Justice & Security Green Paper provides very few answers and sometimes none at all. Firstly, it fails to inform the reader as to the problems associated with the public interest immunity principle. Secondly, it does not answer whether closed material procedures are the only method available. Lastly, whether these new measures will upload the right to a fair trial or derogate from the principle? I am convinced that the Report fails to argue that there is a compelling need to depart from the ordinary principles of open justice, as laid down by Lord Dyson. The report takes exceptions laid down under the right to fair trial and attempts to introduce them as general procedures that should be followed in a Court.

As far as the case of Al Rawi and Carnduff v Rock are concerned, the Supreme Court and Court of Appeals did not indicate any issues with the PII Principle. The Green Paper does not provide details as to how PII worked against the protection of the people of the United Kingdom

CMP harm not only the rights of the Defendant but even the Government. This year the Supreme Court in W (Algeria) (FC) and BB (Algeria) (FC) and others v Secretary of State for the Home Department allowed the appellants to introduce secret evidence that was not shown to the Government. The Secretary of State was also silenced from cross-examining the authenticity of the evidence. This judgement could easily be viewed as judicial activism where the Judge may be trying to show to the Government the difficulties that CMP pose to defendants.

The UK Joint Committee on Human Rights in 2003-2004 upheld concerns that the 9/11 anti-terror legislation (What is the legislation?) has had a corrosive effect on the national culture of respect for human rights and the rule of law. It sought alternative ways that would allow United Kingdom to fight international terrorism without derogating from its human rights obligations and undermining its international standing. Until then, CMP remain an aberration in the judicial system. As Justice Frankfurer aptly stated:
Secrecy is not congenial to truth seeking. ... No better instrument has been devised for arriving at the truth than to give a person in jeopardy of serious loss notice of the case against him and the opportunity to meet it. Nor has a better way been found for generating the feeling, so important to a popular government, that justice has been done.

The end of CMP does not mean that terrorists will go scot free. In Court, the Government will either release all the information it has with regard to the suspect or translate the evidence gathered by intelligence agencies into evidence obtained by the due process of law. As a civilized society, this may result in an increases burden upon ourselves to safeguard the rights of those who may have been ones trying to destroy or disrupt our way of living, however, it will help us maintain the checks and balances which have created a culture of respect for civil liberties and rule of law.