DELAYS AND THE APPEAL MECHANISM
99. It is also notable that significant delays arose
in the SIAC process, which sometimes ran to over two years. Given
the experience of such delays, the value of the seven day review
of non-derogating control orders made under section 3(1)(b) of
the Prevention of Terrorism Act 2005 may be limited. The
Lord Chancellor admitted to us that it would prove difficult for
Special Advocates to be of much assistance in those circumstances,
stating that:
If you bring a judge in as quickly as possible,
he or she can determine how you get a fair process. The seven
day period […] was on the basis, in the original draft of
the Bill, that the Order was made by the Home Secretary. We were
absolutely determined it got before a judge as quickly as possible
so that he or she should then determine how quickly could that
be looked at on the merits; and also to check there was a proper
basis for the Order to be made. I do not retreat for one moment
from saying that remains the principle. I fully accept the judge
might have to conclude or take a bit of time for a full hearing
but a judge getting a grip of it very early on we believe is vital.[90]
[The Special Advocates] could be engaged before
the seven days but there is absolutely no prospect that, within
the seven days, a court, a Special Advocate or, indeed, an instructing
solicitor could have got together.[91]
100. The Lord Chancellor essentially accepted that
the seven day hearing could only amount to a preliminary hearing
of the case[92] and it
would therefore not be a substantial procedural safeguard for
most appellants. Thus, while the court's consideration of an order
made under section 3(1)(b) might commence no more than seven days
after the day in which the control order was made, a period of
time would then be required to instruct the Special Advocate,
for the Special Advocate to obtain disclosure of the closed material,
conduct research and test the evidence. On the experience of the
SIAC procedure, this could take some time.
101. One alternative to the Special Advocates System
that has been proposed is an investigative magistrate system.[93]
The Lord Chancellor stated:
I am strongly against it, because what you are
asking a judge to do is to become within our system, which is
not inquisitorial, a prosecutor. You are saying in effect, assemble
the case by pushing out that which you think might be dangerous,
bringing in that which you think might be appropriate. You make
the judge a player in the prosecution. That is antithetical to
the way that judges normally operate in this country.[94]
It can be argued, of course, that the entire Special
Advocate procedure is not the way courts usually operate in this
country. The Lord Chancellor also rejected the system operated
in Irish Republic as one that "would not offer a viable alternative
to the scheme of control orders [because it] applies the same
rules of evidence that apply in the ordinary criminal courts [and
therefore] would not solve the issues that the Prevention of
Terrorism Act 2005 is designed to meet".[95]
102. We raised concerns with the Lord Chancellor
that the use of judicial review as an appeal mechanism did not
offer sufficient procedural safeguards, since it is rare in such
proceedings for oral evidence to be presented. This is despite
the fact that the appeals would tend to focus on evidential matters
which would require cross examination of witnesses. The Lord Chancellor
provided some guarantees that this would not be a problem, stating
that:
[…] the courts have got great discretion
to determine how the case is actually conducted. I cannot envisage
it arising, if the judge in a particular Control Order case thought
somebody needed to be cross-examined, that that would not happen.[96]
This assurance was of some benefit, given the undemanding
test required by the judicial review procedure, whereby the Home
Secretary merely had to demonstrate that he has reasonable grounds
for his relevant belief or suspicion. SIAC has commented that
"it is not a demanding standard for the Secretary of State
to meet".[97]
103. The nine Special Advocates who sent us a joint
submission also highlighted the limitation of the judicial review
procedure, indicating that:
When the matter [appeal] is first considered
by the court (within 7 days of the original decision to impose
the order) the test is quite different: the court will not be
asked to consider whether an individual "is or has been involved
in terrorism-related activity", instead it will have to ask
itself whether the matters relied on by the Home Secretary are
"capable of constituting reasonable grounds"
for the making or a derogating [now non-derogating] control order.
That test appears to be even less demanding than that which applied
under Part 4 of ATCSA since it requires the court to decide whether
there are reasonable grounds (as opposed to whether the matters
relied upon are capable of constituting reasonable grounds…)[98]
104. Legally, it is possible that the courts could
follow the approach laid down in the case of R v Secretary
of State for the Home Department, ex parte Daly[99]
and consider whether in cases engaging rights under the European
Convention on Human Rights, the interference was really proportionate
to the legitimate aim being pursued. A statutory amendment to
the appeal standard would offer a better mechanism to ensure greater
fairness. It is also unclear whether these provisions in the Prevention
of Terrorism Act 2005 will withstand any challenges brought
pursuant to the European Convention on Human Rights.
105. We are concerned that under the Prevention
of Terrorism Act 2005, the appeal mechanism used under the
Anti-terrorism, Crime and Security Act 2001, has been transposed
into potential challenges to control orders. Under the new provisions,
Parliament has accepted that the Home Secretary need only demonstrate
a 'reasonable suspicion' that someone is engaged in prescribed
activity. The judicial review then only considers whether the
Home Secretary's decision was reasonable and does not adequately
test whether there was sufficient evidence to justify that suspicion.
This test is one step further removed from whether there was objectively
a 'reasonable suspicion'. The Home Secretary merely has to show
to a judge that he had 'reasonable grounds to suspect' not that
such a belief was reasonable to any objective standard. We believe
that this system could be made fairer through a variation of the
current test, whereby the Home Secretary would have to prove that
the material objectively justified his 'reasonable suspicion'.
Office of Special Advocates
106. The likelihood of the increased use of Special
Advocates and many of the points of process and practicality raised
above suggest to us that the system of Special Advocates should
be formalised and regulated. JUSTICE and other witnesses have
suggested that an independent 'Office of Special Advocates', be
formed that would responsibility for the appointment of Special
Advocates.[100] JUSTICE
also noted that as currently formulated, the use of Special Advocates
who are not accountable to the people whose interests they are
supposed to serve means that there is no check on negligence on
the part of the Special Advocates. This is something according
to JUSTICE that an Office of Special Advocates could monitor.[101]
107. It would also provide opportunities for training
of future Special Advocates, as well as a focus for litigation
support that was not based in the Treasury Solicitor's Department.
We have already referred to the need to gather and produce expert
evidence, but the needs of Special Advocates go wider than this
into general litigation support. As Mr Neil Garnham QC, who, as
we noted above, referred to the Special Advocates as being akin
to "one man and his dog",[102]
indicated,
When you receive your first set of instructions
in this, you do feel as if you are walking into something of a
vacuum. Your solicitor can know nothing about the detail of the
case and there is no express provision for you even to consult
other Special Advocates, although we have devised an informal
method of doing so, conscious always of the fact that we can reveal
nothing about the facts of our particular case or anybody else's,
including other Special Advocates, so I do think there would be
a benefit in training. I would have thought the most obvious providers
of such training would be those who have already done the job.[103]
One of the most important needs is for new Special
Advocates to have access to the collected body of decisions relating
to the operation of SIAC and its decision on matters of principle.
Now, at the moment that is done very informally by the passing
around of a closed bundle of closed judgments with the approval
of SIAC and so on and that could be made much more efficient and
systematic. If that were available and recognised to be acceptable,
then Special Advocates who have already done the job could provide
really quite useful guidance to those who are taking it on.[104]
108. The Government has proposed to establish a team
of three government lawyers to form a 'Special Advocate Support
Office' (SASO) to be located within the Treasury Solicitor's Department.[105]
We do not feel this goes far enough and believe that the Government
should establish a more substantial facility to support adequately
what appears likely to be increasing numbers of Special Advocates.
We agree with those Special Advocates who said that they needed
a security-cleared team which is able to conduct research (legal
and otherwise) and also that they would benefit from the provision
of persons with appropriate expertise to assess the controlled
material. The proposed SASO will not, as we understand it, be
concerned with the appointment of Special Advocates. The Attorney
General told us that he is shortly to advertise openly for a new
cohort of Special Advocates.
109. The Lord Chancellor, in consultation with the
Attorney General, should establish an 'Office of Special Advocates'.
55 Q 43 Back
56
Ev 39, para 18 Back
57
Q 222 Back
58
Qq 44-49 Back
59
Ev 57, para 21 Back
60
Ev 49, para 19 Back
61
Ev 81, para 7 Back
62
Q 222 Back
63
Ev 57, para 22 Back
64
Q 51 Back
65
Q 51 Back
66
Q 101 Back
67
Q 111 Back
68
Q 4 Back
69
Ev 39, para 21 Back
70
Q 98 Back
71
Q 99 Back
72
See Tom de la Mare and Ben Emmerson QC 'Closed evidence and fair
proceedings: the use of Special Advocates in civil and criminal
law', 15 October 2004, paper presented at conference, 6th
Annual Conference on Human Rights Law, London. See also Eric Metcalfe,
'Special Advocates and Secret Evidence', The Barrister,
31 August 2004 and '"Representative but not responsible":
the use of Special Advocates in English law', JUSTICE,
vol 1, No 2 (2004) pp 11-34 Back
73
Q 197 Back
74
Q 217 Back
75
Ev 39, para 23 Back
76
Q 115 Back
77
Q 123 [Lord Falconer] Back
78
Q 105 Back
79
Ev 55 para 9 Back
80
Q 60 Back
81
ibid Back
82
Ev 42 Back
83
Q 151 Back
84
Ev 79 Back
85
SIAC Generic Judgment 29 October 2003, para 280 Back
86
Ev 57, para 18 Back
87
Ev 83 Back
88
Ev 68, para 38 Back
89
Q 31 Back
90
Q 127 Back
91
Q 130 Back
92
Q 129 Back
93
This was one of the recommendations of the Newton Committee Back
94
Q 112 Back
95
Ev 82 Back
96
Q 159 Back
97
SIAC Generic Judgment, 29 October 2003, para 71 Back
98
Ev 59 Back
99
[2001] UKHL 26 Back
100
Ev 65, para 24 Back
101
Ev 67, para 34 Back
102
Q 4 Back
103
Q 39 Back
104
Q 40 Back
105
Ev 78 Back
