With an Opposition seemingly unwilling to make anything other than the most populist of stands in the justice sphere, the right to a fair trial is likely to be dangerously undermined with justice not even ‘seen to be done’.
The Government proposes to introduce legislation that will make closed material procedures (CMPs) more broadly available in civil proceedings where sensitive material is relied upon. Material will be sensitive where, for example, disclosure of it may put an informant in danger or hinder the effective operation of the security services. CMPs allow the Government to avoid disclosing the closed material to individuals or their legal representatives and to instead appoint ‘Special Advocates’. They are independent, security-cleared lawyers, who will have access to the closed material and have the responsibility of fighting for the maximum amount of information to be disclosed. Once the closed material has been served on the Special Advocate, they must then represent the individual to the best of their ability.
Lord Denning once espoused that ‘If the right to be heard is to be a real right which is worth anything, it must carry with it a right in the accused man to know the case which is made against him’ – a fundamental right from which CMPs are a departure. The most frequent use of CMPs has been in control order or immigration appeal cases – cases that remain in the civil law sphere but which have an enormous effect on the lives and liberty of those concerned. Although the Supreme Court confirmed in Al Rawi that CMPs cannot be used in the absence of statutory authority, this Green Paper appears to be an attempt to legislate widely enough that CMPs will be possible in any case where the Government feels there is a public interest in non-disclosure.
The major difficulty at the heart of the Green Paper is the Government’s assertion that where Special Advocates currently operate, they are capable of delivering procedural fairness. This is a policy predicated on a fallacy; it flies in the face of consistent criticism about the serious practical defects in the system from Special Advocates, the courts and academics. The punchiest of these is Lord Bingham’s comment in Roberts v Parole Board  that a Special Advocate’s role would inevitably be ‘taking blind shots at a hidden target’.
Based on articles and evidence provided by Special Advocates and reports of the Joint Committee on Human Rights, there are four major issues which hinder the ability of Special Advocates to effectively mitigate the unfairness suffered by individuals who cannot hear the case against them, as discussed below.
The lack of access to independent expertise and evidence and the consequent limitations on arguing for disclosure
Although Special Advocates are technically allowed to adduce expert evidence, their practical inability to do so has been described as the ‘principal imbalance in practice’ when attempting to challenge the Government’s case or request greater disclosure.
The difficulty is that there is nobody that Special Advocates can call to provide independent expertise and evidence. Potential persons would have to have the requisite expertise in the area (e.g. foreign terrorism, national security or domestic intelligence), recent inside knowledge and some element of independence. Although an obvious category of potential experts would be recently retired security or diplomatic personnel, they are either unwilling or unable to give evidence against their former employer, meaning that no Special Advocate has ever been in a position to adduce expert evidence.
Where an allegation is made against an individual that is largely based on closed material, Special Advocates should be at their most strident in arguing for greater disclosure, yet in practice this is where they are most impotent. This is particularly worrying with the proposed expansion in potential use of CMPs: it means that in any civil proceedings in which the Government is concerned about disclosing information, it can assert that secrecy is necessary in the public interest and this will be effectively unchallengable.
A case that would be handled differently under the new proposals is the recent Binyam Mohammed case, where the Government chose to settle the case rather than disclose seven subparagraphs, as it was claimed that disclosure it would lead to a real risk of serious harm to the national security of the UK. Under the Green Paper proposals, the Secretary of State would apply for this to be heard under a CMP, with a Special Advocate attempting to argue for disclosure without being able to adduce any evidence whatsoever that could dispute the Government’s evidence for non-disclosure. They will be trying to shoot a gun without any bullets, and as Angus McCullough (a current Special Advocate) points out: ‘Courts inevitably accord great weight to views on matters of national security expressed by the agencies who are particularly charged with protecting national security’.
This inequality places a serious limitation on the Special Advocates’ ability to fulfil their functions effectively, and I would suggest that this should not be compounded by extending the use of Special Advocates beyond their current spheres. Although the Government proposes to ameliorate this through greater training of Special Advocates, this is unlikely to seriously improve their ability to gainsay the evidence of the Security Services.
The inability to communicate with the individual after seeing the closed material
Although Special Advocates are, in severely restricted circumstances, allowed to communicate with the individual after they have seen the closed material, this is very rare. It is not considered tactically desirable for them to do so because they are required to notify the other side, leading to the risk that such an application might give away the parts of the closed material for which they have no explanation. They are also unlikely to be permitted to do so if it is anything to do with the closed material.
This causes profound concern among Special Advocates as it prevents an individual from providing an exculpatory explanation for prima facie incriminating information. For example, evidence provided by an agent states that Mr X was at a meeting at a restaurant in Kabul at a specific time, but this allegation is not revealed to Mr X in the interests of national security. The Special Advocate has no way of putting this allegation to him, and even if Mr X would have been able to provide cast iron evidence that he was elsewhere, or that the person providing the secret evidence was prejudiced against him, he will be unable to do so.
Although it might be thought that the skills obtained through years of work as a barrister would adequately equip Special Advocate to avoid compromising secret information, the Government contends that without detailed knowledge of the investigation or other linked investigations, allowing communication could lead to inadvertent disclosure of sensitive information. They therefore assert that any proposed communication must always be reviewable by those familiar with the investigation and be cleared on the advice of relevant experts.
A possible solution to this that has been raised by the Government is the use of a properly functioning ‘Chinese wall’ between Government counsel and those who would be reviewing the communications request, in order to reduce the tactical disadvantage of requesting communication with the individual and therefore encourage the use the existing procedures for communication. Whilst it is certainly welcome that the Government recognises the problem and is attempting to do something about it; it is far from a panacea. The Government admits there is a prevailing difficulty in regularly sourcing an independent team of officials to review the request and is also considering the ‘resource implications’ of such a move, which are likely to be unpalatable in the midst of slashing justice budgets.
Special Advocates have proposed that they should be allowed to communicate purely on strategy without any application (the Government describes this as impossible), and be allowed to apply ex parte to a High Court judge to seek permission to communicate, with the Judge then giving notice to the Secretary of State if a possible issue of national security is raised. Greater consideration should be given to these suggestions by the Government.
The problem of ‘tainting’ is similar to the one above, but restricts communication before the closed material has been served. The concept is that once a Special Advocate has seen closed material in one case, he is potentially ‘tainted’ and therefore unable to communicate with individuals in certain subsequent cases. In practice, this occurs if the Special Advocate has previously acted in any case involving secret evidence from the same country or one with any factual connections. Therefore, the more experienced a Special Advocate is, the worse is the position in which he will find himself.
The complete lack of communication is an obvious derogation from the normal lawyer-client relationship and makes establishing any relationship with the individual almost impossible, as even basic questions cannot be asked. It could be eased if the Government were more prepared to trust the judgment and discretion of the Special Advocates, as well as taking a more realistic view of ability (or, more precisely, otherwise) to recall details of previous cases. This, however, does not seem likely and is not mentioned in the Green Paper.
Late disclosure of evidence
Several Special Advocates have also pointed out the ‘endemic’ problem of very late disclosure of documents by the Government and the serious concern that this causes. Although in normal cases the court can simply refuse to admit late evidence, or allow an adjournment, this is understandably inappropriate in a national security case which has to proceed on full facts.
A lack of proper sanctions against this creates a serious disjuncture between the supposed role of a Special Advocate and that which they are able to perform in practice. Very late disclosure of evidence means that the Special Advocate’s role of arguing for the disclosure of the closed material effectively ‘goes out the window’. The Government’s rejection of this as a problem and statement that the judge can adjourn proceedings if they feel that prejudice has been caused (in Appendix F of the Green Paper) smacks of them putting their head in the sand.
The Green Paper is based on the faulty foundations of a Special Advocate system that has cracks all over it. The lack of access to independent expertise ensures that Government assertions about the necessity of non-disclosure are effectively unchallengeable, whilst the practical bar on communication makes the task of defending an individual against incriminating information extremely difficult. Finally, very late disclosure of evidence and the Government’s unwillingness to recognise this as a problem can make the Special Advocate’s role in arguing for disclosure essentially non-existent. Expanding the use of CMPs into the wider sphere of civil law is an almost unprecedented attack on the fundamental principle of open justice and must be strongly opposed.
-   UKSC 34
  UKHL 45
- ‘Justice and Security’ Green Paper – View PDF
Chamberlain. M, ‘Special Advocates and procedural fairness in closed proceedings’, C.J.Q 2009, 28(3). 314-236
Chamberlain. M, ‘Update on procedural fairness in closed proceedings’, C.J.Q. 2009, 28(4), 448-453
Joint Committee on Human Rights, ‘Counter-Terrorism Policy and Human Rights (Sixteenth Report): Annual Renewal of Control Orders Legislation 2010’. Ninth Report of 2009-10. HL Paper 64, HC 395
Kavanagh. A, ‘Special Advocates, Control Orders and the Right to a Fair Trial’, Modern Law Review 2010, 73(5), 836-857