Evidence submitted by a number of Special
Advocates
A. INTRODUCTION
1. Part 4 of the Anti-Terrorism, Crime
and Security Act 2001 (ATCSA) introduced a procedure by which
foreign nationals suspected of involvement in terrorism can be
detained without trial on the certificate of the Home Secretary.
Detainees may appeal to the Special Immigration Appeals Commission
(SIAC), which can hear open evidence (which the detainees and
their representatives are shown) and closed evidence (which they
are not). Where the Home Secretary relies on closed evidence (every
case so far), Special Advocates are appointed to represent the
interests of the appellant in the closed hearings.
2. The introduction of a power to detain
a suspect on the basis of closed evidence marks a departure from
previous practice in this country. Those who promoted Part 4 of
ATCSA claimed that this departure was justified by the threat
posed by various terrorist groups. They also claimed that the
unfairness inherent in relying on evidence not shown to the detainee
was mitigated by the provision of Special Advocates and by the
existence of the SIAC procedure.
3. The Government has proposed that the
detention regime in Part 4 of ATCSA should be replaced by a new
regime which will provide for a range of controls, from electronic
tagging to house arrest, which could be applied to foreigners
and British citizens alike. The details of this proposed new regime
have not, at the time of writing, been made public. However, it
is understood that the legality of the new control orders will
continue to be subject to review by a court or tribunal and that
the Home Secretary will continue to rely, before such court or
tribunal, on closed evidence, in respect of which Special Advocates
will continue to represent the appellant's interests.
B. THE PURPOSE
OF THIS
SUBMISSION
4. The authors of this submission are currently
acting as Special Advocates in certification appeals under Part
4 of ATCSA or have acted in relation to the challenge to the compatibility
of the Act with the European Human Rights Convention, which recently
culminated in the decision of the House of Lords. This submission
contains no comment on the question whether the provisions of
Part 4 of ATCSA constitute a proportionate response to the threat
faced by the UK (a question on which the House of Lords has recently
ruled),[12]
nor any recommendation or assessment in relation to the new proposals
(which are for Parliament to consider). It has a much more limited
purpose—to identify, from the perspective of those who have
experience of appearing in closed hearings before SIAC, and insofar
as is consistent with the authors' professional[13]
and statutory[14]
obligations:
— the limitations under which the Special
Advocates perform their function and the ways in which they could
be enabled to do so more effectively (section C); and
— other salient features of the appeal
regime under Part 4 of ATCSA which may fall to be reconsidered
in debate on the new proposals (section D).
C. THE LIMITATIONS
OF THE
SPECIAL ADVOCATES'
FUNCTION
5. Special Advocates are appointed by the
Law Officers under s. 6 of the SIAC Act 1997 to "represent
the interests of the appellant in any proceedings before [SIAC]
from which the appellant and any representative of his are excluded".
Their functions are further defined by r. 35 of the SIAC (Procedure)
Rules 2003 as "to represent the interests of the appellant
by "(a) making submissions to the Commission at any hearing
from which the appellant and any representative of his are excluded;
(b) cross-examining witnesses at any such hearings; and (c) making
written representations to the Commission".
6. The function of the Special Advocates
was considered by the Court of Appeal in M v Secretary of State
for the Home Department [2004] EWCA Civ 324, [2004] 2 All
ER 863, the first and only case in which SIAC allowed an appeal
against certification. Giving the judgment of the court, Lord
Woolf of Barnes CJ said:
. . . The involvement of a special advocate is
intended to reduce (it cannot wholly eliminate) the unfairness
which follows from the fact that an appellant will be unaware
at least as to part of the case against him.[15]
After giving its reasons for dismissing the
Home Secretary's application for permission to appeal against
SIAC's decision, the court said this:
. . . We feel the case has additional importance
because it does clearly demonstrate that, while the procedures
which SIAC have to adopt are not ideal, it is possible by using
special advocates to ensure that those detained can achieve justice
and it is wrong therefore to undervalue the SIAC appeal process.[16]
7. We do not consider that the existence
of one case in which the detainee's appeal was allowed demonstrates,
as a general proposition, that the use of Special Advocates makes
it "possible... to ensure that those detained can achieve
justice". Nor should it be thought that, by continuing in
our positions as Special Advocates, we are impliedly warranting
the fairness or value of the SIAC appeal process. We continue
to discharge our functions as Special Advocates because we believe
that there are occasions on which we can advance the interests
of the appellants by doing so.[17]
Whether we can "ensure that those detained achieve justice"
is another matter. The contribution which Special Advocates can
make is, in our view, limited by a number of factors—some
inherent to the role and others features of the current procedural
regime. We have tried to point out ways in which the latter might
be changed. By doing so, we should not be taken as expressing
any view as to whether or not the regime would be capable of achieving
fairness if these changes were made.
INABILITY TO
TAKE INSTRUCTIONS
8. The inability to take instructions on
the closed case is undoubtedly the most serious limitation on
what Special Advocates can do. This limitation has not been universally
understood. For example, in his evidence to the Select Committee
on Home Affairs on 8 March 2004, Lord Carlile of Berriew QC (the
person appointed under s. 28 of ATCSA to review the operation
of the detention provisions) was under the misapprehension that
Special Advocates are free to talk to the Defendant's lawyers:
Committee: How do they communicate with
their clients then, in writing?
Lord Carlile of Berriew: They [Special
Advocates] do not communicate with their clients very much at
all. Indeed, I am not aware of any significant level of communication
with the "client". Certainly, there are communications
with the private lawyers for the detainee, the detainees always
have their own lawyers, their own solicitors, their own barristers;
of course, their own barristers do not see the closed material.
So there is plenty of room for an iterative process between the
Special Advocate and the conventional lawyers, but I would like
to see the Special Advocate able to bypass the conventional lawyers
in certain circumstances."[18]
9. There is in fact no contact between the
Special Advocates and the appellant's chosen representatives in
relation to the closed case and, therefore, no "iterative
process" of the kind described. Under the SIAC (Procedure)
Rules 2003, Special Advocates are permitted to communicate
with the appellant and his representatives only before they
are shown the closed material. In practice, our experience is
that appellants have not generally chosen to take advantage of
this opportunity (perhaps, in part a reflection of the lack of
confidence in the unilaterally appointed security cleared
lawyer: see below). Such communication is, in any event, unlikely
to be of much use to the Special Advocates, since they do not
at this stage know the nature of the closed case the appellant
has to meet. Once the Special Advocates have seen the closed material,
they are precluded by r. 36(2) from discussing the case with any
other person. Although SIAC itself has power under r. 36(4) to
give directions authorising communication in a particular case,
this power is in practice almost never used, not least because
any request for a direction authorising communication must be
notified to the Secretary of State. So, the Special Advocate can
communicate with the appellant's lawyers only if the precise form
of the communication has been approved by his opponent in the
proceedings. Such a requirement precludes communication even on
matters of pure legal strategy (ie matters unrelated to the particular
factual sensitivities of a case).
10. Special Advocates can identify (by cross-examination
and submissions) any respects in which the allegations made by
the Home Secretary are unsupported by the evidence relied upon
and check the Home Secretary's evidence for inconsistencies. But
Special Advocates have no means of knowing whether the appellant
has an answer to any particular closed allegation, except insofar
as the appellant has been given the gist of the allegation and
has chosen to answer it. Yet the system does not require the Secretary
of State necessarily to provide even a gist of the important parts
of the case against the appellants in the open case which is provided
to the appellants.[19]
In these situations, the Special Advocates have no means of pursuing
or deploying evidence in reply. If they put forward a positive
case in response to the closed allegations, that positive case
is inevitably based on conjecture. They have no way of knowing
whether it is the case that the appellant himself would wish to
advance. The inability to take instructions on the closed material
fundamentally limits the extent to which the Special Advocates
can play a meaningful part in any appeal.
LACK OF
AN INDEPENDENT,
SECURITY-CLEARED
SOLICITOR
11. Counsel generally act on instructions
from a solicitor, whose firm is involved in the preparation of
the case. Special Advocates are instructed by a Law Officer through
an instructing lawyer employed by the Treasury Solicitor's Department,
who is not security cleared. Whilst the instructing lawyer in
our cases has performed his role in an exemplary and scrupulously
independent fashion, it is in principle unsatisfactory (and unnecessary)
for the instructing lawyer to be employed by the Government. The
fact that the instructing lawyer is not security cleared means
that he has been unable to perform certain functions which he
could otherwise usefully have carried out. These include (i) checking
whether documents which the Home Secretary objects to disclosing
to the appellant are available from publicly available sources;
(ii) corresponding with the Home Secretary and SIAC in relation
to closed hearings; (iii) copying and distributing closed documents
and (iv) keeping a record of closed materials, judgments and rulings.
The lack of a person able to perform these functions adds significantly
to the burden imposed on Special Advocates. If the Special Advocates'
function is to be retained, an independent, properly resourced,
security-cleared instructing solicitor should be provided.
LACK OF
TRAINING AND
CO-ORDINATION
12. The function of a Special Advocate is
sufficiently different from that of an advocate in other proceedings
that training would be of assistance. It could usefully be provided
to new Special Advocates by those who have previously performed
the function.
13. Under the present system, most Special
Advocates instructed in certification cases will not have performed
the role before.[20]
It would be a major advantage to have a solicitor who is familiar
with, and has access to, previous closed SIAC decisions which
establish principles used to determine issues that routinely arise
in the course of closed proceedings. There is a substantial body
of closed decisions, adumbrating the relevant principles and practice
under which closed hearings proceed. These are nowhere summarised
or collated. These judgments are not routinely supplied to Special
Advocates, but have to be requested. A Special Advocate who does
not know what rulings have been handed down may judge it necessary
to request and digest all the closed rulings even though many
of these may be irrelevant. Each newly instructed Special Advocate
has to repeat this laborious process because of the absence of
the continuity of knowledge that would come from a security-cleared
solicitor who was routinely instructing Special Advocates in SIAC
proceedings. Similar points can be made in relation to factual
disputes and contexts which reoccur. By contrast, of course, the
Secretary of State is always a party to SIAC proceedings. His
civil servants and lawyers will have the opportunity to build
a common fund of experience.
14. If the Special Advocates' function is
to be maintained, provision should be made for (i) training and
(ii) an independent instructing solicitor to keep a database of
closed rulings and to provide advice and assistance on points
of law and fact relevant to the performance of the Special Advocates'
functions.
POLICING DISCLOSURE
15. A point that frequently arises in connection
with the Special Advocates' disclosure function is that information
that is said to be classified has in fact been released (or is
later released) in other parts of the world, for instance in the
course of foreign criminal proceedings.
16. Accordingly, in testing whether or not
part of the Secretary of State's case should remain "closed",
or should be made "open", Special Advocates seek, in
the best interests of their client, to keep a weather eye on materials
released in other jurisdictions. There are, of course, very substantial
constraints on their ability to do so: (i) because of the security
strictures under which they must work; (ii) because of limitations
in their knowledge as to relevant foreign proceedings or disclosures;
and (iii) for obvious reasons of resources. Keeping track of such
material is an especially large job given the extent of potentially
relevant information available as a result of shared (but subsequently
disclosed) intelligence, in a potentially significant range of
languages.
17. If the Special Advocates' function is
to be maintained: (i) the primary onus on the Secretary of State
in continually reviewing "closed" cases against ongoing
disclosures made both by the domestic and worldwide security services
must be clarified,[21]
so as to alleviate in part the burden on the Special Advocates
and to provide the Special Advocates with materials with which
to test the Secretary of State's position on non-disclosure; and
(ii) the Special Advocates must be given the resources sufficient
to enable them best to identify and evaluate such materials, so
as continually to track developments.
LACK OF
ACCESS TO
INDEPENDENT EXPERTISE
18. Some of the closed evidence which Special
Advocates have to deal with would, in ordinary civil litigation,
be referred to independent experts (eg those with particular knowledge
of the political situation in a particular country or region or,
in some cases, scientific or technical experts). Special Advocates
have no access to any such experts. Nor do they have access to
independent interpreters to provide translations of material of
which the original source is in a foreign language. They therefore
have to rely on experts and interpreters provided by the Secretary
of State. This gives rise to a potentially serious inequality
of arms in closed proceedings.
19. Parliament may wish to consider whether
there should be some provision to enable Special Advocates to
draw on independent expertise where appropriate.
LACK OF
A BODY
CAPABLE OF
PROVIDING ASSISTANCE
TO SPECIAL
ADVOCATES
20. The recommendations at paragraphs 11-19
above suggest that some form of standing body is necessary which
would enable Special Advocates, cleared solicitors and appointed
experts to work together and assemble (where appropriate) databased
materials.
NO CHOICE
OF REPRESENTATION
21. The nature of the role played by Special
Advocates demands that they should be security cleared. That means
that an appellant will never have a completely free hand in choosing
who should represent him or her. But the present regime gives
the appellant no choice whatsoever. From his perspective,
the Special Advocates are selected at the discretion of a Law
Officer who is a member of the executive which has authorised
his detention. In these circumstances, it would not be surprising
if the appellant had little or no confidence in his Special Advocates.
There is no reason of principle why the appellant could not be
allowed to choose his Special Advocate(s) from a panel of security
cleared advocates. This indeed has been the practice under the
1997 Act, although the inter-relationship of cases may give rise
to problems of conflict in the cases under Part 4 of ATCSA.
THE POOL
FROM WHICH
THE SPECIAL
ADVOCATES ARE
DRAWN
22. From our experience of acting as Special
Advocates, we suggest that the principal requirement for a Special
Advocate in proceedings before SIAC is the ability to absorb and
analyse information that may be in voluminous documents, and to
cross-examine effectively on the basis of this. Such abilities
are not confined to public law practitioners. While public law
issues do sometimes arise in relation to closed material, the
nature of the work may also require skills which those such as
criminal lawyers or those with experience of handling witnesses
in civil cases, would be equally if not better qualified to perform.
D. OTHER SALIENT
FEATURES OF
THE APPEAL
REGIME UNDER
PART 4 OF
ATCSA
STANDARD OF
PROOF
23. Section 21(1) of ATCSA empowers the
Home Secretary to issue a certificate in respect of a person if
he "reasonably (a) believes that the person's presence in
the UK is a risk to national security and (b) suspects that the
person is a terrorist". "Terrorist" for these purposes
includes a person who belongs to or supports or assists a group
which "the Secretary of State suspects... is concerned in
the commission, preparation or instigation of acts of international
terrorism" (s. 21(2)-(4)). Section 25(1) empowers SIAC to
cancel a certificate if it finds that there are no reasonable
grounds for a belief or suspicion.
24. It is relevant to note that, when SIAC
first came to consider what was meant by these words, the only
analogies it could find were provisions which authorised detention
following arrest for periods of hours or days.[22]
The standard of evidence required to detain someone for a short
period prior to charge has, in effect, been adopted as capable
of justifying indefinite detention. Although SIAC has accepted
that the length of the detention (in these cases, potentially
indefinite) is relevant to the question whether a particular suspicion
is regarded as "reasonable", SIAC's ability to review
evidence relied upon by the Home Secretary is fundamentally limited
by the tests laid down in the legislation. In SIAC's own words:
It is our task under section 25 to examine the
evidence relied on by the Secretary of State and to test whether
it affords us reasonable grounds for the relevant belief and suspicion;
it is not a demanding standard for the Secretary of State to meet.
The very formulation of the statutory tests gives significant
weight to his views and expertise, which reflects his role as
the Minister answerable to Parliament. . .[23]
25. The Court of Appeal, although it considered
the use of the expression "not a demanding standard"
to have been "unfortunate", upheld SIAC's interpretation
of the test laid down by the statute.[24]
26. Parliament may wish to consider whether
the standard which the evidence for the new control orders must
meet should continue to be so undemanding.
EVIDENTIAL APPROACH
TO UNPROVEN
ALLEGATIONS
27. Initially, it was suggested by counsel
for the appellants that an allegation relied upon as supporting
a suspicion should not be taken into account unless SIAC found
it proven on the balance of probabilities.[25]
That submission was rejected by SIAC, which held that it was "necessary
to look at the case as a whole and ask, on a global approach,
whether there was a danger.[26]
The Court of Appeal upheld this approach, noting that intelligence
material, by its nature, often does not admit of proof, even on
the balance of probabilities.[27]
Those of us who have participated in closed hearings have observed
the following type of cross-examination:
Special Advocate: Do you accept that document
A, though consistent with the sinister explanation you attribute
to it, is equally consistent with another completely innocent
explanation?
Special Advocate: So, the sinister explanation
is no more than conjecture?
Witness: No. Document A has to be considered
alongside documents B, C, D and E. When viewed as a whole, on
a global approach, the sinister explanation is plausible.
Special Advocate: But you have already
admitted that documents B, C, D and E are in exactly the same
category: each of them is equally consistent with an innocent
explanation and with a sinister one.
Witness: Yes, but when viewed together
they justify the assessment that the sinister explanation is plausible
and form the basis of a reasonable suspicion.
28. In framing any new legislation, Parliament
may wish to consider to what extent it should permit SIAC (or
its successor) to take into account allegations of past conduct
which it finds not proven (even on the balance of probabilities).
JUDICIAL DEFERENCE
29. When considering the reasonableness
of the Home Secretary's belief that the appellant's presence in
the UK is a risk to national security, SIAC accords "considerable
deference" to the assessment of the Home Secretary.[28]
The position when assessing the reasonableness of the Home Secretary's
suspicion that the appellant is a terrorist is slightly different.
Here, SIAC claims not to accord deference.[29]
However, on most questions, the relevance of particular evidence
will depend on an assessment. Those who carry out the assessment
(members of the Security Service) are regarded by SIAC as experts.
SIAC, although not bound to accept this evidence, nonetheless
has due regard to the expertise and experience of the person who
is giving the evidence. Thus, when faced with (for example) a
coded conversation which is said to bear a particular meaning
or a question about the reliability of a source, SIAC treats the
assessment of the Security Service witness as a judge in civil
proceedings would treat (for example) the evidence of a doctor
or surveyor or engineer giving expert evidence. Unlike in ordinary
civil litigation, however, the Special Advocate has no opportunity
to call expert evidence in reply (see paragraphs 18-19 above).
30. Judges in civil cases are familiar with
the task of weighing the competing and sometimes conflicting evidence
of experts on even the most arcane subjects. SIAC has the advantage
over the Secretary of State that it will have had the opportunity
to hear the evidence of witnesses tested by cross examination.[30]
It also has the advantage over judges in many civil cases that
it is an expert tribunal.[31]
31. Parliament may wish to consider whether
the deference which it has been said SIAC should show to Security
Service assessments is relevant when considering the appropriate
standard of proof in certification appeals.
Nicholas Blake QC, Andrew Nicol QC, Neil Garnham
QC, Angus McCullough, Philippa Whipple, Tom de la Mare, Jeremy
Johnson, Daniel Beard, Martin Chamberlain
7 February 2005
12 A v Secretary of State for the Home Department
[2004] UKHL 56, [2005] 2 WLR 87 Back
13
See especialy 709.1 of the Code of Conduct of the Bar of England
and Wales Back
14
See s 6 of the Special Immigration Appeals Commission Act 1997
and r 36 of the Special Immigration Appeals Commission (Procedure)
Rules 2003 Back
15
At [13] Back
16
At [34] Back
17
There are also circumstances in which individual Special Advocates
have taken the view that, on the facts of a particular case, it
would not be in the appellant's interests to participate in a
particular hearing. This course was deprecated in strong terms
by one tribunal (Collins J in Abu Qatada) but regarded
as entirely appropriate by another (Sullivan J in S). The
authors of this submission are clear that there may be situations
in which it is not in the interests of the appellant for his Special
Advocates to participate in a particular hearing. The question
whether Special Advocates should participate or not is one which
they must answer in the exercise of their own independent judgment,
taking into account all the circumstances of the case. Special
Advocates have to consider the extent to which, given the limitations
inherent in their role, they can advance the appellant's interests
in any closed hearing Back
18
See www.publications.parliament.uk/pa/cm200203/cmselect/cmhaff/515/3031106.htm Back
19
It is one of the Special Advocates' most important functions
to ensure that as many as possible of the documents relied upon
by the Home Secretary are disclosed to the appellant, whether
in whole or in part or in gist form. Appellants will have an idea
from material which is disclosed to them after this exercise the
extent to which these representations by the Special Advocate
have been successful. Often, it will be apparent to them that
the released information was already publicly available. Moreover,
even when the Special Advocate's representations are successful
and further material or gists are disclosed to the Appellants,
communication between the Appellants and their lawyers on the
one hand and the Special Advocates on the other is still restricted.
The Appellants can (if they wish) write to the Special Advocate
(via the Treasury Solicitor) but without SIAC's permission the
Special Advocate cannot respond or engage in a dialogue over the
significance of the newly disclosed material. In principle it
would be possible to overcome the problem by the use of teams
of Special Advocates, some being appointed or seeing the closed
material later, but that in turn raises considerable logistical
issues Back
20
Appellants are entitled to speak to their Special Advocates before
they see the closed material. However, a Special Advocate who
has seen closed material relating to one detainee is not permitted
to speak to another detainee. It follows that new Special Advocates
must be instructed for each appellant or set of appellants unless
the appellant indicates that he does not wish to speak to his
Special Advocate Back
21
We would suggest that there should be set procedures that require
the Secretary of State to identify: (a) the consideration he has
given to public domain sources; (b) what published sources have
been, are or are to be checked; (c) how often they are reviewed;
(d) the means of review; and (e) how the situation will be monitored,
in particular by liaison with friendly agencies Back
22
In Ajouaou, A B, C, and D, 29 October 2003, at [43]-[44],
SIAC (Ousley J, Mr C M G Ockleton and Mr J Chester) referred to
O'Hara v Chief Constable of the RUC [1997] AC 286 (which
concerned a provision authorising detention for 48 hours, extendable
by a further 5 days), Hough v Chief Constable of Staffordshire
[2001] EWCA Civ 39, The Times, 14 February 2001 (which
concerned a provision which authorises detention for 24 hours
before charge, extendable to a further 36 hours in certain circumstances)
and Fox, Campbell & Hartley v UK (1990) 13 EHRR 157
(which concerned a provision authorising arrest and detention
for up to 72 hours prior to charge) Back
23
Ajouaou et al, at [71] Back
24
A and 9 others v Secretary of State for the Home Department
[2004] EWCA Civ 1123, [2004] HRLR 38, per Pill LJ at [49] Back
25
Where an allegation of past conduct is relied upon in support
of an anti-social behaviour order under the Crime and Disorder
Act 1998, the allegation must be disregarded unless it is proved
to the criminal standard: R (McCann) v Crown Court at
Manchester [2003] 1 AC 787, at [37], [82]-[83] & [114] Back
26
Ajouaou et al, at [61] Back
27
A and 9 others v Secretary of State for the Home Department,
see esp. per Laws LJ at [223]-[238] Back
28
Ajouaou et al, at [69] Back
29
Ibid, at [70] Back
30
See M v Secretary of State for the Home Department, at
[34] Back
31
See 299 HC Official Report (6th Series) col 1055, cited in M
v Secretary of State for the Home Department per Lord Woolf
CJ at [2] Back
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