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Secret Courts: Ill Informed or Necessary?
Closed civil court hearings are not a new phenomenon. However, they are currently in focus as controversial proposals for ‘closed material procedures’ progress through parliamentary scrutiny in the Justice and Security Bill.
Child-related and family cases are all generally heard ‘in camera’, that is, closed proceedings to which the public does not have access. Public Interest Immunity certificates have been in use for 50 years or more, and the government is often able to prevent the disclosure of evidence in general civil proceedings when it would be damaging to the public interest.
Further, closed material procedures are already used in various tribunal hearings where the role of the security services receives scrutiny. The proposals delineated in the Bill will go further and make them available in general civil proceedings.
Fallout from high profile cases
The need for this is perceived to have arisen in the fallout from cases such as the action brought by former Guantanamo Bay detainee Binyam Mohammed. The government settled before his claim for damages went to trial in order to avoid sensitive security information being placed in the public domain.
If the proposals become law it will be possible for evidence to be heard that only the judge and so called ‘special advocates’ will have access to. These security cleared lawyers will represent the interests of claimants. However, they will not be able to supply their clients with precise details of the protected evidence. A summary or ‘gist’ will be the limit of the disclosure they will be permitted to give. Accordingly, claimants against the government may not be aware of the full extent of allegations being made against them.
Proponents of the new powers argue that cases that cannot be tried currently will be adjudicated upon. Although acknowledged not to be perfect it is said in their favour that closed material procedures are better than nothing, and will result in the security services becoming more accountable. Without the reforms, the government suggests, security co-operation with our allies is at risk.
A fair trial?
Critics argue strongly that fair trials cannot take place in the absence of full disclosure, and that public confidence could be damaged through the suppression of evidence of torture or other unacceptable conduct. Perhaps the most telling comments, however, have been made by special advocates with experience of closed material procedures in cases, for example, heard by the Special Immigration Appeals Commission. It has been said that the Public Interest Immunity procedure already provides sufficient protection for sensitive security information, and that the new proposals are draconian and could even violate a defendant’s human rights.
There are parallels between the proposed role of a special advocate in civil proceedings and that of a legal representative in a Parole Board hearing. Security information concerning a prisoner can be withheld. Lawyers may be offered disclosure of the material provided there is a professional undertaking not to disclose it to the client. Many lawyers will decline disclosure on this basis because it renders full advice impossible.
Strong views are being expressed on both sides of the argument and the heated debate continues.
For the latest see:
The Guardian: Secret courts: the essential guide http://www.guardian.co.uk/law/2012/sep/25/secret-courts-the-essential-guide#112
BBC News (21 November): Government defeated in House of Lords over secret courts plans http://www.bbc.co.uk/news/uk-politics-20438049
The Guardian (21 November): Secret courts plans savaged in House of Lords http://www.guardian.co.uk/law/2012/nov/21/secret-courts-house-of-lords