The Expansion of Secret Courts

[aeolium]

The probable enactment of the Justice and Security Bill following a recent Commons vote represents a blow to all those interested in the rule of law and the exercise of justice and fair trials in this country. It is particularly bad that most of the Liberal Democrat MPs (under orders from their leader) have voted for this pernicious bill. It has prompted the resignation of one of their more high-profile members, Dinah Rose, a barrister who has represented Guantanamo detainees and has a lot of experience of the Special Immigration Appeals Commission. The Justice and Security Bill will reintroduce the use of Closed Materials Procedures (CMPs) in which the defendant or plaintiff will not know the nature, or even the existence, of evidence that could be used against him. These procedures were banned by the Supreme Court in July 2011 following claims of illegal detention and torture by al-Rawi and others.

The former law lord, Lord Bingham, in his excellent book on The Rule of Law, made three points as to why he considered the use of closed material procedures and special advocates undermined the basic principle of a right to fair trial. The first was the curious relationship of the special advocate to the person whose interests he was appointed to protect in that unlike a defence solicitor or defence barrister the special advocate has no duty to the client and may have secret knowledge about the case that he does not disclose to the client. The second was that the use of a special advocate was (quoting Lord Woolf) "never a panacea for the grave disadvantages of a person not being aware of the case against him". And the third point ("almost incapable of over-emphasis") is that the right to a fair trial is "fundamental and absolute; where a conflict arises between the use of material not disclosed to a party and the right of that party to a fair hearing his right to a fair hearing must prevail."

This bill, if enacted, will be a bad law, likely to result in injustice particularly with respect to criminal or civil cases relating to rendition or allegations of torture. It is intended to protect the government of the day from embarrassment from the publication of material in such cases. It breaches a long-standing principle of justice in this country. It ought to be opposed.

[Pabmusic]

...This bill, if enacted, will be a bad law, likely to result in injustice particularly with respect to criminal or civil cases relating to rendition or allegations of torture. It is intended to protect the government of the day from embarrassment from the publication of material in such cases. It breaches a long-standing principle of justice in this country. It ought to be opposed.

Eloquently put. I could not agree more. Shame on the UK.

[amateur51]

I'm not a lawyer and I've only been in court on my own behalf once (we won!). I'm white, middle-class, reaso nably well-educated but I also live on disability benefits and I'm gay (the last two are not related ).

Everything that aeolium and Shami Chakrabarti of Liberty and Dinah Rose say about this bill makes sense to me. It is anti-democratic and the thin end of the slippery slope. Remember ID cards? Remember 90-day detention?

If you agree with me, please write to/email your MP telling them how you feel and ask them to vote against it.

I don't agree with Nick!

[Eine Alpensinfonie]

Add to this the proposal to recind the Human Rights Act and withdraw from the European Court of Human Rights, and you have a "banana republic" where only Michael G*** will have rights.

[teamsaint]

Thanks for posting this Aeolium.
Very important stuff. This is a sad reflection on the way our rights are being eroded.

[Simon]

Well, I suppose we had to have the typical reaction one would expect from the sort who support pressure groups like "Liberty". I have yet to hear Chakrab make any statement that I would call balanced. Some on here would naturally support such naive, fairytale propaganda, but those with intelligence should think more deeply.

It has nothing to do with protecting the government and everything to do with protecting the people, with the added bonus that it protects those vital intelligence sources who risk their lives on a daily basis to gain information about those who wish to kill us. It is hardly a big ask, that those sources should not have their covers blown by interfering defence lawyers, who may, or may not, be in sympathy with terrorist organisations, and who may, even if fundamentally honest (and there are some lawyers who are, I'm sure), drink too much and blab. And does anyone really believe that the security services just pick on someone at random, watch them for a few weeks, plant a bit of evidence and then haul them off to jail, for fun, on suspicion of plotting terrorist acts?

This argument will carry little weight, of course, with those who think that everything is sweetness and light and that all the security scares are either exaggerated or some sort of scam by a Big Brother government that wants to suppress democracy. etc, etc. Yawn, yawn. But they are not.

As for the Human Rights Act, it has made no difference whatsoever to genuine cases needing protection, as they had it under British law anyway. It has, however, made it possible for hate-mongers and terrorist supporters to drag out deportation cases for years at a cost of millions. And it has, of course, made lots of lawyers, who of course have pals and even family in parliament - what a coinicidence! - very rich indeed. Out of taxpayer money.

To possess freedom, it has to be limited. Unlimited freedonm is no freedom at all. The state needs the means, fairly, to do its job, because there are people who want to destroy it. They have to be stopped, and if so doing requires us all to give up just a little bit of our freedom, then for most rational people it's a price worth paying.

[Bryn]

A convinced Lenininst writes:

...

To possess freedom, it has to be limited. Unlimited freedonm is no freedom at all. The state needs the means, fairly, to do its job, because there are people who want to destroy it. They have to be stopped, and if so doing requires us all to give up just a little bit of our freedom, then for most rational people it's a price worth paying.

"It is true that liberty is precious; so precious that it must be carefully rationed."
-- Vladimir Ilyich Lenin

[teamsaint]

It seems to me that our state is part of the problem, as much as part of the solution.
Whose "Freedoms" is it protecting?

[MrGongGong]

A convinced Lenininst writes:

"It is true that liberty is precious; so precious that it must be carefully rationed."
-- Vladimir Ilyich Lenin

Homespun "wisdom" from the master of logic indeed

[scottycelt]

... please write to/email your MP telling them how you feel and ask them to vote against it.

You're not a closet Catholic priest, are you ... ?

[Pabmusic]

I've just remembered Berlioz's Les Francs Juges - The Judges of the Secret Court.

[Julien Sorel]

You're not a closet Catholic priest, are you ... ?

Catholic priests spend a lot of time in closets, do they?

A convinced Lenininst writes:"It is true that liberty is precious; so precious that it must be carefully rationed."
-- Vladimir Ilyich Lenin

But, of course, it's necessary to realise that Simon approves of rationing the liberty of the proletariat in order to protect the interests of the ruling classes (himself, for example); whereas Lenin understands the need to ration liberty to defend and advance true, proletarian, justice.

[ahinton]

Well, I suppose we had to have the typical reaction one would expect from the sort who support pressure groups like "Liberty". I have yet to hear Chakrab make any statement that I would call balanced.

The crucial bit of your remarks here is your three references to "I"...

Some on here would naturally support such naive, fairytale propaganda, but those with intelligence should think more deeply.

I think that you'll find that many if not all of them do. The naïveté, Simon, is clearly yours, to the extent of your evident innocently wholehearted trust in the powers that be to conduct secret trials and record their outcomes in precisely the same way - and with precisely the same regard to justice in general and human rights in particular - as they would conduct them in the public gaze. Astonishing, really.

It has nothing to do with protecting the government and everything to do with protecting the people, with the added bonus that it protects those vital intelligence sources who risk their lives on a daily basis to gain information about those who wish to kill us. It is hardly a big ask, that those sources should not have their covers blown by interfering defence lawyers, who may, or may not, be in sympathy with terrorist organisations, and who may, even if fundamentally honest (and there are some lawyers who are, I'm sure), drink too much and blab.

So are you assuming that secret trials would be conducted without defence lawyers present? and, if not, on what grounds would you believe those lawyers to be any differently inclined in persuasion or conduct when they represent clients at a secret trial just because the trial's being held behind closed doors? I certainly hope that your answer to the first of these is a resounding "no". As to the second, the very rôle of a defence lawyer must by definition encompass a willingness to "interfere" if and when necessary for the purpose of ensuring properly compliant conduct of a case, but your suggestion that defence lawyers "may...be in sympathy with terrorist organisations" is not only unsound and offensive but also disproportionate in its implication that such sympathy would never be encountered in a prosecution lawyer; your accusation of defence lawyers as drinking too much (albeit presumably not in court) is again all three of those things but also risible and, as to their "blabbing", would you prefer that defence lawyers keep their mouths shut at all times? and, if so, how do you suppose that they would do the jobs for which the taxpayer pays them? Even if, however, by "blabbing", you refer specifically to lawyers talking to the media, there are, as you know, restrictions on such reporting and communication of issues while they're sub judice.

And does anyone really believe that the security services just pick on someone at random, watch them for a few weeks, plant a bit of evidence and then haul them off to jail, for fun, on suspicion of plotting terrorist acts?

The fact that this is probably not what usually happens does not and indeed cannot mean that it never happens; let's not forget, after all, that the police have targets to meet...

This argument will carry little weight, of course, with those who think that everything is sweetness and light and that all the security scares are either exaggerated or some sort of scam by a Big Brother government that wants to suppress democracy. etc, etc. Yawn, yawn. But they are not.

In this you are correct; indeed, it's far too serious for trials of suspects charged with terrorist offences to take place outside the glare of publicity. I cannot equate your assertion about "protecting the public" with the fact that secret trials by definition exclude that very public not only from protection but from any rights of involvement at all, which is especially galling and ironical, given that the public pays for the government to make laws and funds the judiciary in its conduct of trials.

As for the Human Rights Act, it has made no difference whatsoever to genuine cases needing protection, as they had it under British law anyway.

You're forgetting the recent rumbling noises within the Tory party about consideration of the possible abolition of the UK Human Rights Act which are themselves a repeat of ones made by the now Prime Minister himself during the run-up to the last General Election until a number of MPs, including (Indeed especially) my own, wisely counselled him to push for no such thing and the Tories would almost certainly have lost that election altogether had they persisted with it.

It has, however, made it possible for hate-mongers and terrorist supporters to drag out deportation cases for years at a cost of millions. And it has, of course, made lots of lawyers, who of course have pals and even family in parliament - what a coincidence! - very rich indeed. Out of taxpayer money.

Indeed - as has also been and continues to be true of plenty of other non-terrorist cases, however - but how would secret trials make any difference to this if conducted with due regard to the full legal and judicial compliance that applies to public ones? (and you would expect them to be so conducted, would you not?)...

To possess freedom, it has to be limited. Unlimited freedom is no freedom at all. The state needs the means, fairly, to do its job, because there are people who want to destroy it. They have to be stopped, and if so doing requires us all to give up just a little bit of our freedom, then for most rational people it's a price worth paying.

And where would you or anyone draw the line here? The state has recourse to the law, just as do its citizens (when they can afford it!); the state also has powers to change the law, subject to the will of the electorate. What particular freedoms do you consider giving up to be "a price worth paying" - and for what? There are in any case no guarantees that anything that the state or anyone else does or tries to do will terminate all threat or actuality of what are called acts of terrorism - on top of which one man or woman's terrorism is in any case another man or woman's (fill in the blanks)...

I also remind you that this thread is less about the existenceas such and more about the possible risk of expansion of secret courts, the assumed implication of which is surely born of a concern that, were the law to prescribe that terrorist suspects be tried and convicted (if found guilty) in secret, how long might it be before it allows suspects of other crimes or even certain civil cases (major fraud, for example) to be so tried? - and, if a facility for the conduct of secret trials be retained, where and on what grounds should the line be drawn between the kinds of case that may be conducted in secret and those which may not? If someone is convicted at a secret trial, how would you have the law prescribe the manner in which any subsequent appeal procedure be followed? - i.e., would you see this as having to be in secret as well, without the convicted criminal even being able to publicise the fact of his/her lodging an appeal despite the fact that the conviction itself will have been made public following the trial? Furthermore, what price the continuing use of juries even at trials held in public? - I realise that this is not quite the same issue but it is nevertheless a very closely related one.

[aeolium]

I've just remembered Berlioz's Les Francs Juges - The Judges of the Secret Court.

Yes, the medieval Vehmgericht, an interesting institution. Though I believe that even in their secretly held courts the accused was entitled to hear the evidence against him

[Pabmusic]

Article 6 of the ECHR says:

1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.

In creating permanently secret courts, it seems to me that the government is going beyond the (already wide) latitude of the Convention, which reads as if exceptions may be made on an ad hoc basis. If I'm right, expect challenges.