Ssh! It’s a secret

Ssh! It’s a secret

At the start of Franz Kafka’s novella The Trial, two shadowy men arrive at a house to arrest a man. When he asks why he’s being detained they declare, ‘Proceedings are underway and you’ll learn about everything all in good time.’ Sadly for Joseph K he never learns anything whatsoever about his case, let alone in good time. At the end of book, just before a knife is plunged into his heart by two other faceless men, he wonders ‘Were there objections that had been forgotten? Where was the judge he’d never seen? Where was the high court he had never reached?’ A stark condemnation of secret justice if ever there was one.

Last Thursday in the Supreme Court nine justices, for the first time in its history, effectively told a defendant that they would “‘learn about everything all in good time’ and closed its doors to the outside world. The decision the court is being asked to make is whether to overturn the Financial Restrictions (Iran) Order 2009, which cut the Iranian bank, Bank Mellat, out of the UK financial sector. The bank contends that this is both against natural justice and a breach of its Article 6 rights.

Unfortunately for the bank, part of the evidence against it is subject to a closed procedure – evidence that if revealed in open court could undermine the national security of the UK. While the court would ordinarily avoid examining such material, the Supreme Court nevertheless decided it needed to look at the closed judgement of the Court of Appeal in order to come to a just decision. Lord Neuberger, President of the Supreme Court, said in a statement:

We have reluctantly decided that we cannot consider the closed judgment without having a closed hearing, as otherwise the contents of the closed judgment would be revealed to the public, including Bank Mellat and its representatives.

It must be emphasised that this is a decision which is reached with great reluctance by all members of the court; indeed it is a majority decision. No judge can face with equanimity the prospect of a hearing, or any part of a hearing, which is not only in private, but involves one of the parties not being present or represented at the hearing and not even knowing what is said either at the hearing or in a judgment in so far as it discusses what was said or produced by way of evidence at the closed hearing.

The reasoning is that in order to produce a just result, the justices of the court must be aware of all the evidence before them – including secret evidence. With the power to change and redefine the law, this is clearly a significant decision for the court to take as it could result in a binding precedent based, at least in part, on secret evidence.

Commentators were far from happy with this decision. Human rights pressure group, Liberty, remarked that ‘The creep of secrecy has now reached our highest court, a body with a noble tradition for upholding justice and the rule of law,’ while the Bank Mellat’s lawyer argued for ‘The right for any individual to see the case against them and answer it directly is a fundamental principle.’

However, it seems that the justices are themselves not satisfied. As the UK Supreme Court Blog observed, Lord Neuberger’s statement originally had an extra paragraph which has been omitted from the version issued on their website:

No doubt in due course when we have completed the closed hearing and Mr Brindle [for Bank Mellat] has made his closing submissions, and we in due course consider the matter and give our judgment, we will have quite a few things to say about this unhappy procedure.

Given the reforms are presently being made to the system, the Supreme Court may well take this opportunity to add to the debate surrounding closed material procedures for the first time since Al Rawi and others v Security Service and others[2011] UKSC 34. The court was hardly complementary of the system then and, judging by  Lord Neuberger’s remarks yesterday, looks hardly more enamoured of them two years on.

For the moment then, it seems as though it really is a matter of ‘all in good time’. While we and indeed Bank Mellat may never know the true extent of the evidence against them, we may yet have a much better idea of its quality as well as any future approach likely to be adopted by the court.

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