The Expansion of Secret Courts

[aeolium]

It's worth reading the summary of the judgment of the Supreme Court decision in the case of Al-Rawi and others v The Security Service and others, July 2011:

http://www.supremecourt.gov.uk/decided-cases/docs/UKSC_2010_0107_PressSummary.pdf

This makes it clear that the highest court in the land did not think that closed materials procedures should form any part of a common law trial and also made clear its concerns about their use. "A closed material procedure, unlike the law relating to [Public Interest Immunity], involves a departure from the principles of open and natural justice, which are essential features of a common law trial....The House of Lords in Davis decided that the right to be confronted by one’s accusers is such a fundamental element of the common law right to a fair trial that the court cannot abrogate it in the exercise of its inherent power. Only Parliament could do that. The closed material procedure excludes a party from the closed part of the hearing. This prevents him from being able to see and challenge the evidence and submissions made in the closed hearing. It also prevents him from reading the closed part of the judgment. He may never know why his case was decided the way it was. The use of special advocates can mitigate some of these defects but they cannot cure them."

I see another Lib Dem barrister, Philippe Sands QC, has resigned from the party as a result of their support for the Justice and Security Bill.

[MrGongGong]

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

allegedly of course

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

So you HAVE given up on the church then prof , well done, i'm sure you will be happier for it and you can still listen to Bach without believing in fairies

[amateur51]

It's worth reading the summary of the judgment of the Supreme Court decision in the case of Al-Rawi and others v The Security Service and others, July 2011:

http://www.supremecourt.gov.uk/decided-cases/docs/UKSC_2010_0107_PressSummary.pdf

This makes it clear that the highest court in the land did not think that closed materials procedures should form any part of a common law trial and also made clear its concerns about their use. "A closed material procedure, unlike the law relating to [Public Interest Immunity], involves a departure from the principles of open and natural justice, which are essential features of a common law trial....The House of Lords in Davis decided that the right to be confronted by one’s accusers is such a fundamental element of the common law right to a fair trial that the court cannot abrogate it in the exercise of its inherent power. Only Parliament could do that. The closed material procedure excludes a party from the closed part of the hearing. This prevents him from being able to see and challenge the evidence and submissions made in the closed hearing. It also prevents him from reading the closed part of the judgment. He may never know why his case was decided the way it was. The use of special advocates can mitigate some of these defects but they cannot cure them."

I see another Lib Dem barrister, Philippe Sands QC, has resigned from the party as a result of their support for the Justice and Security Bill.

Very important stuff aeolium.

I wonder for how long Lord Carlisle will be able to tolerate this

[amateur51]

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.

Has the Coalition Government allowed this situation to arise a) because it is incompetent?; or b) becaose it wants a very public fight with EHCR on UKIP's turf in the run-up to the General Election?

[Eine Alpensinfonie]

Has the Coalition Government allowed this situation to arise a) because it is incompetent?; or b) becaose it wants a very public fight with EHCR on UKIP's turf in the run-up to the General Election?

George Bush once spoke of the "Evil Axis". I'm beginning to think he was looking the wrong way.

[ahinton]

George Bush once spoke of the "Evil Axis". I'm beginning to think he was looking the wrong way.

Indeed; for some reason he, despite being an American citizen, seems never to have been in possession of A Mirror on Which to Dwell...

[Serial_Apologist]

Indeed; for some reason he, despite being an American citizen, seems never to have been in possession of A Mirror on Which to Dwell...

Or, as we used to say as schoolboys, he that smelt it, dealt it.

[Boilk]

Indeed; for some reason he, despite being an American citizen, seems never to have been in possession of A Mirror on Which to Dwell...

The brain of Bush Jr. might have preferred to dwell on Pocahontas

[Resurrection Man]

OK...all very worthy comments.

Just one question. How do we protect the anonymity of intelligence agents in these trials?

[aeolium]

How do we protect the anonymity of intelligence agents in these trials?

There is the possibility of witness anonymity which has been a long-established principle (particularly in cases where there is risk involved to the witnesses in giving evidence). And there is the Public Interest Immunity which ensures that material which may be damaging to the public interest (including the security services) is not put into the public domain in civil proceedings. This requires a minister to sign a PII certificate to be reviewed by the court which decides whether the public interest in withholding a document outweighs the interests of justice in disclosing it. The difference here with Closed Materials Processes is that if the court decides that the document is to be disclosed it is disclosed to both parties; otherwise it is withheld and no party is allowed to rely on it.

What really shouldn't happen is that evidence is presented to the court and then relied upon by one party while the other party, and their representatives, have no opportunity to see it or examine it in any way.

[Resurrection Man]

There is the possibility of witness anonymity which has been a long-established principle (particularly in cases where there is risk involved to the witnesses in giving evidence). And there is the Public Interest Immunity which ensures that material which may be damaging to the public interest (including the security services) is not put into the public domain in civil proceedings.

What happens in criminal proceedings?

What really shouldn't happen is that evidence is presented to the court and then relied upon by one party while the other party, and their representatives, have no opportunity to see it or examine it in any way.

Ah, but therein lies the rub. What if the evidence is going to endanger the agent (who could still be operating undercover) ? Or if the evidence is going to reveal by whatever means it was obtained....for example, some rather nifty bit of software that has been kept undercover and out of the ken of terrorists but now, if revealed to the defendant, will render it useless in the future?

[aeolium]

What happens in criminal proceedings?

PII certificates can also be used in criminal proceedings though their use is more contentious (as with the unsuccessful attempt to apply for PII in the Matrix Churchill case). This lecture has a discussion of their use and applicability in criminal cases.

Ah, but therein lies the rub. What if the evidence is going to endanger the agent (who could still be operating undercover) ? Or if the evidence is going to reveal by whatever means it was obtained....for example, some rather nifty bit of software that has been kept undercover and out of the ken of terrorists but now, if revealed to the defendant, will render it useless in the future?

Then, if disclosure of the evidence is in the opinion of the Crown inevitably going to jeopardise public security, or the life of the agent in some way, it is open to the Crown to show this in a PII claim (or not to introduce it in the first place). But that a prosecution should present evidence to the court which is not disclosed to the defence and allow it to materially affect the outcome of the case has been considered by the great majority of lawyers, and the Supreme Court (and indeed the European Convention on Human Rights article 6 para 3) to be fundamentally prejudicial to a fair trial.

[Resurrection Man]

....But that a prosecution should present evidence to the court which is not disclosed to the defence and allow it to materially affect the outcome of the case has been considered by the great majority of lawyers, and the Supreme Court (and indeed the European Convention on Human Rights article 6 para 3) to be fundamentally prejudicial to a fair trial.

Many thanks for the clarification re civil vs criminal.

Rock and a hard place. I'm sure that m'learned friends are quite at ease reaching that view from the security of their chambers. Meanwhile back in the 'real' world.....

[ahinton]

Many thanks for the clarification re civil vs criminal.

Rock and a hard place. I'm sure that m'learned friends are quite at ease reaching that view from the security of their chambers. Meanwhile back in the 'real' world.....

By that certainty on your part do you mean that you believe that they'd be far more uneasy about reaching such a view in the "real world" of court trial? If the prosecution is able to present evidence to the court that's not disclosed to the defence, how can the defence function as it is supposed to do? It is surely a fundamental tenet of the prosecution / defence relationship that each knows and understands at all times what the other is saying and why and that, assuming that the defence knows at all times of what he/she/they have been charged and is/are being tried, the defence must be made fully aware of the evidence upon which the prosecution seeks to prosecute, otherwise the entire system risks breaking down.

[Resurrection Man]

By that certainty on your part do you mean that you believe that they'd be far more uneasy about reaching such a view in the "real world" of court trial? .....

No, by 'real' world, the actual nitty-gritty of trying to track down and prevent crime, terrorism etc. The actions that usually keep you nice and safely tucked up in bed without a care in the world other than entertaining us with another of your posts. It's the world of those who risk life, limb and the very strong possibility of extremely unpleasant personal violence being meted out on them should their cover get blown.