Select Committee on Constitutional Affairs Seventh Report

4  The Special Advocate system as operated under SIAC

44. A Special Advocate is a specially appointed lawyer (typically, a barrister) who is instructed to represent a person's interests in relation to material that is kept secret from that person (and his ordinary lawyers) but analysed by a court or equivalent body at an adversarial hearing held in private. The Special Advocate has the advantage that he can go behind the curtain of secrecy, but also considerable disadvantages which we discuss below.

45. The Attorney General set out the system that operated before the adoption of Special Advocate procedures to us as follows:

Prior to 1997, there was no mechanism in England and Wales for material withheld from an Applicant in proceedings to be considered and challenged on his behalf by a specially appointed advocate. In immigration deportation cases, a decision to deport a person from the United Kingdom on grounds of national security was taken by the Home Secretary personally, on the basis of all relevant material. There was no formal right of appeal against such deportation decisions. The Home Secretary's decision was reviewed by an Advisory Panel, colloquially known as 'The Three Advisers' or the 'Three Wise Men', which made recommendations on whether the Home Secretary's decision to deport should stand. The Panel's recommendations were purely advisory and it was able fully to review the evidence relating to national security threat—this material was not disclosed to the Applicant or his legal representatives because to do so would potentially compromise national security.[37]

The Chahal Case

46. The adoption of the concept of Special Advocates in the United Kingdom was suggested by and in response to the decision of the European Court of Human Rights in Chahal v United Kingdom in November 1996. In that case, the appellant, Karamjit Singh Chahal (an Indian national and Sikh separatist), who was resident in the United Kingdom was suspected by the Home Secretary of involvement in terrorist activities in support of the separatist cause. The Home Secretary wished to deport the appellant, who claimed that if he were to be returned to India he would be tortured by the authorities because of his non-violent support for Sikh separatism. One of the appellant's complaints was that although judicial review was available to challenge the Home Secretary's decision to deport, the effective determination of his risk to national security was made by an internal Home Office advisory panel (the 'Three Wise Men') on the basis of sensitive intelligence material which he had no opportunity to challenge for two reasons: first, the evidence presented regarding his risk to national security was precluded from disclosure by public interest immunity; and secondly, he was not entitled to any form of legal representation before the panel.

47. The European Court of Human Rights agreed with the appellant that the Home Office procedure breached his rights under article 5(4) of the European Convention on Human Rights, since the judicial review proceedings could not effectively review the grounds for his detention, and because he was not represented before the internal Home Office panel. The court was influenced by the fact that similar closed proceedings in Canada involved the use of a security-cleared counsel appointed by the court, who cross-examined the witnesses and generally assisted the court to test the strength of the State's case.

The Court recognises that the use of confidential material may be unavoidable where national security is at stake. This does not mean, however, that the national authorities can be free from effective control by the domestic courts whenever they choose to assert that national security and terrorism are involved […] there are techniques which can be employed which both accommodate legitimate security concerns about the nature and sources of intelligence and yet accord the individual a substantial measure of procedural justice.[38]

a […] Judge holds an in camera hearing of all the evidence, at which the applicant is provided with a statement summarising, as far as possible, the case against him or hear and has the right to be represented and to call evidence. The confidentiality of the security material is maintained by requiring such evidence to be examined in the absence of both the applicant and his or her representative. However, in these circumstances, their place is taken by a security-cleared counsel instructed by the court, who cross-examine the witnesses and generally assists the court to test the strength of the State's case.[39]

48. In response to Chahal,[40] the UK Government passed the Special Immigration Appeals Commission Act 1997. The Act provided for an independent judicial tribunal which would hear appeals against immigration decisions of the Home Office and, at section 6, for a Special Advocate to represent an appellant in cases in which there was non-disclosable security evidence in relation to the immigration decisions of the Home Secretary. When Commons debate focused on the precise nature of the Special Advocate/Appellant relationship, the Home Office Minister used the analogy of a "litigation friend" and stressed that: "the Special Advocate is there to ensure that the rights of the appellant are protected. That is what he is there for".[41] During this inquiry the Government told us that,

The Special Advocate system is necessary to protect the public interest in not disclosing the sensitive material, while allowing independent scrutiny of that sensitive material by an advocate appointed to represent the interests of the appellant.[42]

49. In oral evidence to the Committee, the Attorney General claimed that the UK was operating the Special Advocate system with international approval:

one has to remember that the Special Advocate procedure is a procedure which was actually promoted by the European Court of Human Rights; attention was drawn to it based on a Canadian model by Human Rights organisations. The European Court of Human Rights has subsequently expressed approval of the system.[43]

In fact, the European Court of Human Rights has not given a ringing endorsement to the use of Special Advocates at all, but has indicated that their use is a lesser evil than some other systems, but still potentially an impermissible one. In the case of Al Nashif v Bulgaria, the court was non-committal on the use of Special Advocates, commenting that:

Without expressing in the present context an opinion on the conformity of the above system [i.e. the use of Special Advocates] with the Convention, the Court notes that, as in the case of Chahal cited above, there are means which can be employed which both accommodate legitimate national security concerns and yet accord the individual a substantial measure of procedural justice.[44] [Emphasis added]

Other contexts in which Special Advocates are used

50. The growth in the use of Special Advocates has not been confined to SIAC. There are three other categories of case in which the use of Special Advocates has been adopted.[45]

a)  Where the use of a Special Advocate has a statutory footing, typically in specialist tribunals and courts which are given permission to use Special Advocates because of security concerns that arise. Those are:

• Under sections 90 to 92 of the Northern Ireland Act, which provide for the appointment of a Special Advocate in respect of appeals to a specialist security tribunal operating in the field of employment and discrimination law;
• Under Section 5 of the Terrorism Act 2000, which establishes the Proscribed Organisations Appeals Commission ('POAC') for determining appeals against proscription of an organisation by the Home Secretary;
• Under Section 70 of Anti-terrorism, Crime and Security Act 2001 which establishes the Pathogens Access Appeal Commission, which hears appeals of people proscribed from working with certain dangerous materials;
• Under Rules 7A and 7B of the Employment Tribunal Rules of Procedure (Scotland) which provide for the appointment of a Special Advocate in proceedings before the Employment Tribunal from which the applicant or his representative have been excluded on national security grounds; and,
• A Special Advocate may represent the interests of a prisoner before the Northern Ireland Sentences Review Commission, and the Northern Ireland Life Sentences Review Commission where the prisoner and his legal representative are excluded from the proceedings.

In all of these contexts Special Advocates have both a disclosure and substantive function (we discuss these functions in paras 58-61 below).

b)  The use of Special Advocates in civil proceedings without statutory underpinning has been approved, for instance to deal with security issues on appeal from SIAC, or to deal with proposed judicial reviews of security service decisions.

c)  More controversially, the Court of Appeal sanctioned the use of Special Advocates in a quasi-criminal context, namely Parole Board hearings, in the case of Roberts v Parole Board.[46] The Home Secretary wished to rely upon secret sensitive evidence (which went to Mr Roberts' suitability for parole) in a non-authorised Parole Board hearing. The Home Secretary disclosed this evidence to the Board on condition that it was not disclosed to Mr Roberts; in response the Parole Board sought to appoint a Special Advocate in respect of that secret evidence. The High Court approved this appointment and the Court of Appeal upheld the ruling, on the basis that it was analogous to the use of Special Advocates in authorised tribunals.

51. Special Advocates can also be used by the courts in deciding claims for public interest immunity in respect of unused prosecution material in criminal trials. In this context the Special Advocate is used solely to assist the judge in determining what material should be disclosed. In the absence of the accused, no part of the incriminatory evidence relied upon by the state is deployed.[47]

Restrictions on Special Advocates

52. The most important disadvantages faced by Special Advocates are that:

i.  once they have had sight of the closed material they cannot take instructions (subject to narrow exceptions) from the persons they are representing or their ordinary legal representatives;

ii.  they lack the resources of an ordinary legal team for the purpose of conducting a full defence in secret (for instance, for inquiries or research); and,

iii.  they have no power to call witnesses.

53. Under the SIAC legislation the Special Advocate is prohibited from disclosing closed information to the appellant and Section 6(4) of the 1997 Act provides that the person appointed to represent the appellant's interests "shall not be responsible to the person whose interests he is appointed to represent". This section is amplified in Part 7 of the Special Immigration Appeals Commission (Procedure) Rules 2003. In particular, SIAC Rule 35 provides that:

The functions of a special advocate are to represent the interests of the appellant by:

(a) making submissions to the Commission at any hearings from which the appellant and his representatives are excluded;

(b) cross-examining witnesses at any such hearings; and

(c) making written submissions to the Commission.

54. The wording of subsection 6(4) is important since the requirement that the Special Advocate represent the interests of—but not be responsible for—an appellant, significantly modify the ordinary lawyer/client relationship.

55. Although the use of Special Advocates is being extended in the UK, we believe that it is one which should only be operated under the most exceptional circumstances which call for material to be kept closed.

Stages in the Special Advocates role in SIAC Hearings

56. Informally, a number of Special Advocates explained to us the process of acting in SIAC hearings. The Special Advocate receives instructions not from the appellant, but from a lawyer from the Treasury Solicitor's Department who is not security-cleared. The Special Advocate also receives open materials including the relevant certificate (e.g. that someone's presence is not conducive to the public good), any open statements (which are likely to be redacted versions of fuller closed statements) and any open documents. The Special Advocate then consults with the appellant (and/or his lawyers) on whatever matters each of them considers to be relevant to the appeal. Because the Special Advocate has not seen the classified material, he is able to discuss the facts, any defences, justifications or other factual material that the appellant may wish to draw his attention. Whether an appellant seeks to use this opportunity for discussion is matter for him and his legal advisers. In practice, we have been told that many appellants consider such a meeting is pointless as the Special Advocate has not seen and will not be able to discuss the incriminatory material relied upon as part of the closed case.

57. The Special Advocate then takes delivery of the closed material. Once he has examined it, the Advocate is prohibited from communicating with the appellant without the Commission's consent, although it remains open for him to continue to receive (unsolicited) information from the appellant. Thereafter, at any closed session, neither the appellant nor his lawyers are permitted to be present and the Special Advocate takes over entirely as his representative.

58. Once in closed session the Special Advocate has two functions: a disclosure function and a representation function. The disclosure function is to test to the full the cogency of the case put forward by the Home Secretary for non-disclosure of material. The Special Advocate examines closed passages in statements and closed documents to ascertain whether, for example, no possible or no real harm could arise from disclosure, or the material in question is already in the public domain (e.g. as a result of a Governmental press release, disclosure in a foreign case, material leaked to the press etc). This stage can be extremely time-consuming, as it tends to operate by means of an iterative process using a series of exchanges between the Special Advocate and Home Secretary (usually in the form of a schedule of objections with reasons, responded to in Schedule form), culminating in points of dispute that are brought before SIAC for its adjudication. The representation function is to represent the Appellant's interests in relation to that part of the hearing held in camera, which entails making the best case possible from all the available evidence—both open and closed—but without informed instructions from the appellant.

59. The disclosure function resembles the approach devised by the Courts to deal with Public Interest Immunity claims. However, there are some important differences. In civil or criminal proceedings disputes about disclosure are concerned with what materials should be available to a party to litigate the case. If material is not disclosed it forms no part of that case, and does not lead to a secret trial.[48] There is also no balancing test. Once the Home Secretary has decided on the classification of material because of the 'real harm' that would stem from its disclosure, there is no further consideration by him as to whether or not it should be disclosed due to 'fair trial' considerations. This is compounded by the fact that SIAC has no power to consider whether the public interest in disclosure outweighs the public interest in secrecy.[49] To this extent, the SIAC system represents a considerable weakening of the judicial protection available under the common law Public Interest Immunity rules.

60. Furthermore, the 'disclosure function' is not discharged in a classic civil disclosure fashion (i.e. a context in which the Home Secretary would have an obligation to disclose all materials undermining, as well as assisting, his case). It is instead discharged by the presentation of edited materials. If, after a SIAC Rule 39 hearing,[50] disclosure is ordered by SIAC against the Home Secretary in relation to part of the closed case, the Home Secretary can reserve the right to withdraw reliance on the material. He can do this because the material in question supports his case (and so it is only weakened by its removal).

61. This reveals the potential unfairness of the practice. It is compensated for in part by the fact that the Home Secretary has a duty to adopt a 'cards on the table' approach and disclose potentially exculpatory material.[51] However, the Special Advocate is not given the opportunity to consider all the material held by the Home Secretary to decide whether it is potentially exculpatory. A 'Generic Judgment' by SIAC noted that this fell short of systematic disclosure (particularly of a criminal kind) and places considerable responsibility on one party alone.[52] We questioned the Lord Chancellor and the Attorney General on this point (see paras 87-96 below).

The contrast with the classic lawyer/client relationship

62. There are some significant distinctions between the work of an ordinary lawyer and that of a Special Advocate. The ordinary lawyer is responsible to his client. His paramount duties are to his client and to the court (which he must not knowingly mislead). By contrast, the Special Advocate is not 'responsible' to the appellant. The Special Advocate is precluded from communicating highly pertinent information, namely the closed case, to the appellant and as a result, the scope of the Special Advocate to receive meaningful instructions is limited. Thus, the ability of the appellant, or his solicitor, to make informed decisions as how best to proceed is constrained. A decision taken by the appellant (e.g. to withdraw from proceedings) may make sense on the open case, but not in the light of a closed case.[53] In addition, an ordinary lawyer works as part of a team (solicitors, barristers, experts, administrative support) and in conjunction with other parties with like interests. The Special Advocate works alone (or as part of senior/junior barrister team) with no support vis-à-vis the closed case. The Special Advocate cannot bring in experts, have the team approach witnesses, hunt for documents or liaise with others.

63. Lord Bingham has summarised the consequences of such arrangements in case of R v H and C:

Such an appointment [of a Special Advocate] does however raise ethical problems, since a lawyer who cannot take full instructions from his client, nor report to his client, who is not responsible to his client and whose relationship with the client lacks the quality of confidence inherent in any ordinary lawyer-client relationship, is acting in a way hitherto unknown to the legal profession. While not insuperable, these problems should not be ignored, since neither the defendant nor the public will be fully aware of what is being done. The appointment is also likely to cause practical problems: of delay, while the special counsel familiarises himself with the detail of what is likely to be a complex case; of expense, since the introduction of an additional, high-quality advocate must add significantly to the cost of the case; and of continuing review, since it will not be easy for a special counsel to assist the court in its continuing duty to review disclosure, unless the special counsel is present throughout or is instructed from time to time when need arises. Defendants facing serious charges frequently have little inclination to co-operate in a process likely to culminate in their conviction, and any new procedure can offer opportunities capable of exploitation to obstruct and delay. None of these problems should deter the court from appointing special counsel where the interests of justice are shown to require it. But the need must be shown.

There is as yet little express sanction in domestic legislation or domestic legal authority for the appointment of a Special Advocate or special counsel to represent, as an advocate in [Public Interest Immunity] matters, a defendant in an ordinary criminal trial, as distinct from proceedings of the kind just considered. But novelty is not of itself an objection, and cases will arise in which the appointment of an approved advocate as special counsel is necessary, in the interests of justice, to secure protection of a criminal defendant's right to a fair trial …[T]he need must be shown. Such an appointment will always be exceptional, never automatic; a course of last and never first resort. It should not be ordered unless and until the trial judge is satisfied that no other course will adequately meet the overriding requirement of fairness to the defendant. In the Republic of Ireland, whose legal system is, in many respects, not unlike that of England and Wales, a principled but pragmatic approach has been adopted to questions of disclosure and it does not appear that provision has been made for the appointment of special counsel: see Director of Public Prosecutions v Special Criminal Court [1999] I IR 60.[54]

The Anti-terrorism Crime & Security Act 2001 and Special Advocates

64. Part IV of Anti-terrorism, Crime and Security Act 2001 complicated the question. Before the 2001 Act, SIAC was concerned with immigration issues (i.e. the right to be in the UK, susceptibility to deportation, EC free movement rights etc) and the abrogation of ordinary immigration rules on national security grounds. This could be regarded as 'civil' in character. Proceedings brought before SIAC under the 2001 Act could be seen as a move towards a de facto criminal trial. Very similar legal arguments are likely to be deployed against the new control orders under the Prevention of Terrorism Act 2005.

65. Whether or not Anti-terrorism, Crime and Security Act 2001 proceedings are criminal or civil in nature:

i.  had a bearing on whether or not the conducting of secret hearings, and thus the use of Special Advocates for a representative function, could ever be justified; and

ii.  if the use of secret hearings and Special Advocates is permissible in principle, impacted upon what counterbalancing procedural safeguards should be built into the Special Advocate system in order to ensure that a fair trial is provided.

66. The majority in the House of Lords judgment of December 2004 found the detention provisions of Anti-terrorism, Crime and Security Act 2001 to be both disproportionate and discriminatory, even though the Home Secretary's assessment that there was a public emergency threatening the life of the nation (the condition precedent for a derogation under Article 15 of the European Convention on Human Rights) was upheld. The House of Lords focused exclusively upon the issue of whether or not detention without trial was justified; little or no attention was focused upon the particular means by which an individual's case was assessed by SIAC on appeal, or upon the mechanics and procedures used by SIAC to conduct secret hearings. In particular, the House of Lords declined to rule (either way) upon the arguments advanced by the appellants based upon the criminal aspects of Article 6 European Convention on Human Rights relating to fair trial provisions.

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37   Ev 80, para 1 Back

38   Chahal v United Kingdom (1996) 23 EHRR, para 130-131 Back

39   Chahal v United Kingdom (1996) 23 EHRR, para 141 Back

40   The judgment of the European Court of Justice in the joined cases of Shingra and Radiom, which was revisited in a judicial review challenge in the case of Loutchansky, raised similar questions about the efficacy of the 'Three Wise Men' system in an EC law context, cases C/65/95 and C/111/95 R v Secretary of State, ex parte Shingara and Radiom [17 June 1997] Back

41   HC Deb, 30 October 1997, col 1071 [Mr Mike O'Brien MP] Back

42   Ev 52 Back

43   Q 251 Back

44   [2002] ECHR 497, 20 June 2002 Back

45   See also Qq 230-232 Back

46   See [2004] EWCA Civ 1031, 28 July 2004. This case will be heard on appeal to the House of Lords on 20 April 2005. See also Eric Metcalfe, 'Special Advocates and Secret Evidence', The Barrister, 31 August 2004 Back

47   R v H and C [2004] 2 WLR 335 Back

48   See Court of Appeal in Lamothe v Metropolitan Police [25 October 1999] unreported, cited with approval in the case of R v H and C above Back

49   This position has changed with the introduction of the Prevention of Terrorism Act 2005, in relation to control order cases. See Section 5 below Back

50   Rule 39 is in SIAC Procedure Rules 2003, r 39. It relates to the provision of evidence provided by witnesses and is distinct from the civil procedure rules (CPR 31a) Back

51   See section on disclosure below Back

52   Ajouaou and A, B, C and D (2003), SIAC Judgment of 29 October 2003 (hereafter the Generic Judgment) Back

53   This is discussed below section 5 Back

54   [2004] UKHL3, [2004] WLR 335 Back

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Prepared 3 April 2005