Evidence submitted by JUSTICE
INTRODUCTION
1. JUSTICE is a British-based human rights
and law reform organisation with around 1600 members. Its mission
is to advance justice, human rights and the rule of law. It is
also the British section of the International Commission of Jurists.
2. JUSTICE has been closely engaged with
the debate over counter-terrorism legislation in the UK and the
role played by Special Immigration Appeals Commission (`SIAC')
in particular in respect of persons detained under Part 4 of the
Anti-Terrorism Crime and Security Act 2001 ("ATCSA").[44]
While we note that Part 4 itself is soon to be replaced by fresh
counter-terrorism legislation, we regard the issues raised by
this inquiry to be of continuing importance.
3. JUSTICE also has a particular history
of engagement with issues surrounding the use of special advocates,
both in the context of SIAC proceedings and elsewhere. It intervened
in the 1997 case of Chahal v United Kingdom before the
European Court of Human Rights in which the possible use of special
advocates was first judicially considered and which led to the
subsequent creation of SIAC.[45]
It submitted evidence to the Lord Justice Auld's Review of Criminal
Courts in England and Wales in 2001 supporting the use of special
advocates in criminal proceedings for the purpose of public interest
immunity applications.[46]
In July 2004, it intervened in Roberts v Parole Board before
the Court of Appeal concerning the appointment of a special advocate
in a parole review hearing.[47]
In November 2004, JUSTICE published a study on the use of special
advocates in SIAC proceedings as part of a report on their use
in civil and criminal proceedings generally.[48]
SUMMARY
4. In this submission, JUSTICE highlights
the following concerns regarding SIAC's use of:
— civil proceedings to determine indefinite
detention under Part 4 of ATCSA 2001;
— evidence contrary to Article 15 of
the Convention Against Torture; and
— special advocates in closed proceedings
under Part 4 of ATCSA.
THE USE
OF CIVIL
PROCEEDINGS TO
DETERMINE INDEFINITE
DETENTION UNDER
PART 4 OF
ATCSA 2001
5. In JUSTICE's view, the central defect
of the operation of SIAC since November 2001 has been the use
of civil proceedings to determine issues relating to indefinite
detention. This defect flows, however, not from SIAC's own procedures
but from the government's decision to adapt SIAC from a specialist
immigration tribunal to a de facto counter-terrorism court under
Part 4 of ATCSA.
6. This "choice of an immigration measure
to address a security problem"[49]
has meant that persons detained indefinitely under Part 4 have
lacked the essential guarantees of due process provided by the
criminal law—ie the presumption of innocence,[50]
standard of proof beyond a reasonable doubt,[51]
to be present at an adversarial hearing,[52]
the assistance of counsel of their own choosing,[53]
and so forth.
7. While the guarantees offered by SIAC's
procedures were appropriate to its original civil function (reviewing
deportation decisions on national security grounds), the use of
the same tribunal to judicially review the Home Secretary's decision
to indefinitely detain suspected terrorists has been inadequate
to the task of protecting those detainees' rights to liberty.
As Lord Nicholls of Birkenhead noted in the recent House of Lords
decision in A and others v Secretary of State for the Home
Department:[54]
Nor is the vice of indefinite detention cured
by the provision made for independent review by [SIAC]. The commission
is well placed to check that the Secretary of State's powers are
exercised properly. But what is in question . . . is the existence
and width of the statutory powers, not the way they are being
exercised.
8. Specifically, SIAC's function under Part
4 has not been to determine whether those detained are guilty
of any criminal offence but only to determine—on a standard
of proof below even that of the ordinary civil standard—whether
the Home Secretary had reasonable grounds for suspecting that
a detainee has been involved in terrorism and, hence, posed a
risk to the national security of the UK.[55]
As SIAC itself noted in October 2003, "it is not a demanding
standard for the Secretary of State to meet".[56]
THE USE
OF EVIDENCE
CONTRARY TO
ARTICLE 15 OF
THE UN CONVENTION
AGAINST TORTURE
9. Article 15 of the UN Convention Against
Torture provides that:[57]
any statement which is established to have been
made as a result of torture shall not be invoked as evidence in
any proceedings
10. However, in October 2003, the Chairman
of SIAC rejected an argument by the detainees that SIAC should
refuse to consider evidence that may have been obtained by way
of torture in a third country:[58]
We cannot be required to exclude from our consideration
material which [the Home Secretary] can properly take into account,
but we can, if satisfied that the information was obtained by
means of torture, give it no or reduced weight .... We are, after
all, concerned in these proceedings not with proof but with reasonable
grounds for suspicion.
11. This was subsequently upheld by the
Court of Appeal in August 2004, which held that SIAC was not obliged
to exclude evidence that had been obtained under torture in another
country by non-UK officials.[59]
In November 2004, the UN Committee Against Torture expressed its
concern that UK law failed to fully implement its obligations
under Article 15 and recommended that:[60]
the [UK] should appropriately reflect in formal
fashion, such as legislative incorporation or by undertaking to
Parliament, the Government's intention . . . not to rely on or
present in any proceeding evidence where there is knowledge or
belief that it has been obtained by torture; the [UK] should also
provide for a means whereby an individual can challenge the legality
of any evidence in any proceeding plausibly suspected of having
been obtained by torture;
12. This latter recommendation reflects
the fact that not only is evidence obtained by way of torture
in a third country admissible in SIAC proceedings, but SIAC lacks
any procedure by which the fact of such torture can even be established.[61]
In other words, SIAC has no way of knowing—no procedure
by which it can assess—whether the evidence put before it
has been obtained by torture or not.
13. The failure of SIAC to rule out the
use of evidence gained under torture abroad stands in stark contrast
to the express purpose of the Convention, which is "to make
more effective the struggle against torture and other cruel, inhuman
or degrading treatment or punishment throughout the world".[62]
Indeed, SIAC's failure also contrasts markedly with the position
set out in the FCO's 2004 Human Rights Report that "[t]orture
is abhorrent and illegal and the UK is opposed to the use of torture
in all circumstances".[63]
The report further quotes the Foreign Secretary Jack Straw as
saying, "I am proud of the UK's leading efforts in the campaign
to prevent torture worldwide".[64]
On the basis that the use of torture evidence anywhere weakens
the struggle against torture everywhere, we regard SIAC's refusal
to exclude such evidence from its proceedings as a thoroughly
retrograde step.
THE USE
OF SPECIAL
ADVOCATES IN
CLOSED PROCEEDINGS
UNDER PART
4 OF ATCSA
14. At the time of writing, the government
has indicated that it intends to replace Part 4 of ATCSA but it
has not yet published draft legislation containing its proposed
new arrangements. Although we welcome the repeal of indefinite
detention without trial, we recognise that the use of special
advocates in proceedings involving the use of sensitive intelligence
material is unlikely to abate. We therefore identify seven issues
relevant to the ongoing use of special advocates: (1) procedural
fairness; (2) appointment; (3) training; (4) professional support;
(5) communication with the appellant; (6) accountability; and
(7) representation of the appellant's interests.
PROCEDURAL FAIRNESS
15. In JUSTICE's view, the appointment of
a special advocate involves serious limitations on an appellant's
right to fair proceedings. The rights limited include the appellant's
right to know the case against him;[65]
be present at an adversarial hearing;[66]
examine or have examined witnesses against him;[67]
be represented in proceedings by counsel of his own choosing;[68]
and to equality of arms.[69]
16. As regards the notion of "equality
of arms" in particular, it is plain that the appellant (the
detainee) in SIAC proceedings does not enjoy anything remotely
close to an equal footing with the respondent (the Secretary of
State): not only is the respondent able to withhold relevant material
from the appellant, but the respondent is entitled to be present
at all times. Nor does the respondent suffer any of the kinds
of restrictions upon communication with counsel that are imposed
on the appellant.
17. The appellant, by contrast, is not entitled
to be present throughout the proceedings. He is also prevented
from knowing all the evidence against him, as the special advocate
who represents him in closed session is forbidden to discuss the
closed material with him. Although the special advocate is able
to cross-examine witnesses on the appellant's behalf, the appellant
is denied the full benefit of this right—without knowing
the closed evidence against him, he cannot indicate to counsel
the points upon which witnesses should be challenged. In the same
way, the entitlement of the appellant to his own counsel throughout
the proceedings is useless to the extent that his own counsel
would also be prohibited from attending the closed hearings and
knowing the closed evidence against him.
18. The fact that a special advocate is
appointed by a government official and that the appellant has
no say in the choice of advocate is another plain interference
with the appellant's right to counsel "of his own choosing".[70]
This lack of choice is significant, not least because choice of
counsel is an important factor in promoting the confidence of
persons subject to proceedings in their legal representatives.
Such choice is even more important in proceedings where the government
is the respondent.
19. Despite the severity of such limitations
on procedural rights, JUSTICE recognises that they may nonetheless
be justified in certain cases because of a compelling need to
protect some countervailing interest, such as the life of a witness
or an intelligence source. In our view, the extent to which such
restrictions can be justified depends not only on the seriousness
of the risk posed by disclosure of the evidence, but also on the
kind of proceedings in question. Indeed, in some circumstances,
we note that the use of special advocates may even improve the
fairness of proceedings towards an appellant—such in deportation
proceedings on grounds of national security (ie SIAC's original
function) or in public interest immunity applications made ex
parte in criminal proceedings (as approved by the House of Lords).[71]
Even in such cases, however, we consider that the use of special
advocates must remain "a course of last and never first resort".[72]
20. In JUSTICE's view, the use of special
advocates cannot be justified in situations where an appellant's
liberty is at stake—such as in SIAC proceedings under Part
4 of ATCSA. This is because the kinds of restrictions that may
be acceptable to protect national security in an employment tribunal
hearing or a deportation hearing are unacceptable where an individual
faces imprisonment or other serious interference with their right
to liberty. Although special advocates might be used to determine
preliminary issues in such cases (such as non-disclosure applications
on grounds of public interest immunity), the notion that a person
could ever be subject to criminal sanction or other deprivation
of liberty without knowing the full case against them is antithetical
to basic concepts of justice.
APPOINTMENT
21. We note that the Joint Committee on
Human Rights has expressed concern that responsibility for the
appointment of special advocates in SIAC proceedings and elsewhere
lies with the Attorney General, who is not only a government minister
but, as the Joint Committee noted, has personally appeared for
the government in proceedings before SIAC.[73]
22. On the one hand, we share the concern
of the Joint Committee at the appearance of the Attorney-General
appointing special advocates on behalf of those he is personally
arguing should be detained under Part 4. In circumstances where
a detainee has no choice over the counsel appointed to represent
him in closed proceedings, and who is not directly responsible
to the detainee for the conduct of his case, there is an apparent
conflict of interest where the choice of that counsel is made
by a government minister who is himself involved in proceedings
for the other side. As a matter of transparency and impartiality,
it is important that justice should not only be done, "but
should manifestly and undoubtedly be seen to be done".[74]
23. On the other hand, we note that, as
a consequence of the Attorney's personal involvement in SIAC proceedings,
the actual appointment of special advocates for those proceedings
has been made by the Solicitor General, also a government minister
but not herself otherwise professionally interested in SIAC proceedings.[75]
Moreover, where the same issue was raised concerning the appointment
of special advocates in criminal proceedings (where the Director
of Public Prosecutions is also appointed by the Attorney General),
the House of Lords recently ruled that:[76]
It is very well-established that when exercising
a range of functions the Attorney General acts not as a minister
of the Crown (although he is of course such) and not as the public
officer with overall responsibility for the conduct of prosecutions,
but as an independent, unpartisan guardian of the public interest
in the administration of justice . . .. It is in that capacity
alone that he approves the list of counsel judged suitable to
act as special advocates or, now, special counsel, as when, at
the invitation of a court, he appoints an amicus curiae.
24. In light of the above, we do not regard
the current procedures for appointment as wholly unsound. However,
given the increasing use of special advocates in UK law in general,[77]
JUSTICE considers there may be a case for establishing an independent
"Office of Special Advocates",[78]
either within the Legal Secretariat to the Law Officers or elsewhere,
that would have direct responsibility for their appointment and
allay broader concerns about transparency and impartiality of
the appointment procedure.[79]
25. In a separate note, it has been suggested
by Lord Carlile that the pool of special advocates should be "widened
well beyond those with detailed knowledge of administrative law".[80]
This is partly because, in Lord Carlile's view, SIAC proceedings
are typically fact-intensive[81]
and future cases are unlikely to raise fresh issues of administrative
law,[82]
and also because, as the Newton Report also noted, "each
[SIAC] appeal requires a fresh security cleared special advocate
who has not been exposed to the closed material . . . The supply
of such advocates is limited".[83]
So long as the criteria for the appointment of such advocates
were sufficiently open and transparent, and prepared in consultation
with the appropriate professional bodies, we would support Lord
Carlile's suggestion.
TRAINING
26. Lord Carlile has also suggested that
special advocates working on SIAC cases should receive "organised
training" at which advocates could "can discuss and
share common problems, resolve their approach to procedural and
formidable ethical issues, and receive the kind of help typically
given in courses run by the Judicial Studies Board for full and
part time judges".[84]
Some special advocates have doubted whether the analogy with judicial
training is a sound one,[85]
but most agreed that those appointed as special advocates ought
to receive some kind of training to highlight the practical, ethical
and legal problems they were likely to face. Most thought that
it would be especially useful to share (without disclosing closed
material) information on common approaches to particular issues.[86]
At the same time, we agree that it is important for the sake of
transparency that the content of any official guidance should
be made known to the detainees.[87]
Accordingly, we support Lord Carlile's recommendation for some
kind of formal training for special advocates. The establishment
of a formal office to oversee the appointment of special advocates
would help ensure consistency and transparency in this regard.
PROFESSIONAL SUPPORT
27. Lord Carlile has noted problems with
the amount of material received by special advocates in SIAC proceedings
and suggested that advocates be assigned a "security-cleared
case assistant, who could categorise all the papers in consultation
with the special advocate and provide some degree of assistance
and act as a conduit of information to deal with queries by the
advocate".[88]
Special advocates have also expressed to us concern at the lack
of administrative and technical assistance.[89]
In particular, it was suggested that special advocates would benefit
greatly from having access to someone with expertise in intelligence
matters "who can provide the sort of help that, in technical
civil litigation, one gets from an expert".[90]
It was suggested that former (rather than currently-serving) members
of the intelligence services might be appropriate persons to provide
such independent advice and explanation to special advocates.[91]
28. On a related point, we also note that
the Treasury Solicitor lawyers responsible for instructing special
advocates in SIAC cases are apparently not themselves security-cleared.
Special advocates have expressed concerns over the adequacy of
these arrangements, including:
— the risk of inadvertent disclosure
of closed material in corresponding with a non-security cleared
instructing solicitor;
— the absence of a central mechanism
for obtaining relevant material (eg submissions from previous
SIAC cases, transcripts, etc); and
— special counsel having to undertake
without assistance factual research of a type normally carried
out by solicitors.
29. While it is correct that the relationship
between Treasury Solicitor lawyers who brief special counsel and
the special counsel themselves is not directly analogous to that
of a barrister and an instructing solicitor (because the special
advocates do not receive "instructions" per se),[92]
we think it is clear that special advocates should have full benefit
of a solicitor who is fully conversant with the case at hand,
in the same way that a barrister in normal proceedings would have.
If it is deemed acceptable for a detainee's interests to be represented
by counsel not of his choosing and who is not professionally responsible
to him for the conduct of his case, at the very least that special
counsel should be sufficiently well-equipped to represent his
interests in his absence. Two special advocates suggested to us
that the problems of lack of assistance:[93]
could be ameliorated to some extent by the establishment
of an independent "Office of Special Advocates" staffed
by security-cleared personnel (some of whom should be legally
qualified), responsible for dealing with correspondence, collating
relevant documents and carrying out the factual research normally
undertaken by solicitors.
Alternatively, they suggested that "an
independent firm of solicitors could be appointed (subject to
the usual vetting requirements) to carry out this work".
We have already noted that the special advocate procedure has
already been extended beyond the sphere of national security.[94]
Accordingly, we think there is a strong case for the establishment
of an independent office along the above lines to ensure transparency
in the use of special advocates, and to provide them with the
appropriate legal, technical and administrative support.
COMMUNICATION WITH
THE APPELLANT
30. The Joint Committee on Human Rights
has complained that the lack of communication between a detainee
and special advocate once a special advocate has viewed closed
material in a case is a severe restriction on fair proceedings:[95]
the rule that there can be no contact whatsoever
between the detainee and the special advocate as soon as the advocate
sees the closed material also means that there is little meaningful
contact between the detainee and the representative of their interests
in the closed proceedings
The JCHR have given their view that "there
is a strong case for considering the scope for relaxing the rigid
rule that prohibits any contact between the detainee and their
special advocate once the advocate has seen the closed material".[96]
31. Communications between special advocates
and detainees in SIAC cases are governed by rule 36 of the 2003
SIAC procedure rules.[97]
In fact, as several special advocates have been at pains to point
out, rule 36 does not prohibit all communication between detainees
and special advocates once the special advocate has seen the closed
material.[98]
Rule 36(4) allows special advocates to apply to SIAC for directions
allowing communication with a detainee in such circumstances,
although rule 36(5) allows the Secretary of State to object to
either the form or content of that communication.[99]
56 Similarly, rule 36(6) allows detainees to write to the special
advocate via their lawyer, but the special advocate is not permitted
to reply save as directed by SIAC. JUSTICE nonetheless agrees
that rule 36 imposes serious restrictions on the right of detainees
to communicate freely with their legal representatives.[100]
We also question whether the risks posed by inadvertent (or inferential)
disclosure of sensitive material are in fact sufficiently serious
to justify such restrictions. Accordingly, we would support the
Joint Committee's call for the current level of restriction on
communication between appellants and special advocates to be reconsidered.
ACCOUNTABILITY
32. Section 6(4) of the Special Immigration
Appeals Commission Act provides that special advocates "shall
not be responsible to the person whose interests he is appointed
to represent". While we recognise that there are prudent
policy grounds for this provision, JUSTICE is gravely concerned
at the lack of formal accountability that it entails. The practice
of the profession of barrister or advocate is concomitant not
just with a duty to the court but also with an ultimate responsibility
to the person whom one represents. Accordingly, we consider that
any severing of that responsibility can only be justified in the
most exceptional of cases.
33. JUSTICE wishes to make clear that we
have no criticism whatsoever of the professionalism of those who
have served as special advocates and we have no doubt that, as
Lord Carlile has noted, "the effectiveness of special advocates
to date has been significant".[101]
But we remain concerned at the lack of any alternative formal
safeguards taken to ensure that special advocates act effectively
to represent the interests of those detained: the right of persons
detained under counter-terrorism legislation to fair proceedings
should not be left to the professionalism of particular individuals
to conduct themselves appropriately.
34. It has been suggested that, in SIAC
proceedings, the duty owed by special advocates to the court may
be sufficient to ensure this. Although we accept that in practice,
a judge in closed proceedings is likely to provide an effective
check against any obvious misconduct by an advocate, we are sceptical
that a duty to the court alone would be enough of a safeguard
in every circumstance. Although the calibre of special advocates
is currently high, it is possible to frame a hypothetical case
of a special advocate whose negligent mishandling of a case goes
unnoticed by the court or the other parties. Moreover, it is apparent
that this kind of negligence would not be checked under current
arrangements: first, because a detainee and his lawyers are precluded
from knowing the substance of the closed material justifying the
case against them; and secondly, because those instructing the
special advocate are not themselves security-cleared and so unable
to second-guess his or her decisions in an effective manner. It
seems to us that this is the kind of matter that would be suitable
for the Office of Special Advocates to monitor. It would also
provide an obvious opportunity for formal consultation with the
judiciary, the Bar Council, the College of Advocates, the Law
Society and other interested professional bodies (such as the
Administrative Law Bar Association), to establish with appropriate
standards for the professional conduct of special advocates.
REPRESENTATION OF
THE APPELLANT'S
INTERESTS
35. Related to the accountability of advocates
is an even more fundamental point about the role that special
advocates play in representing the interests of the appellant.
This issue arose in the SIAC case of Abu Qatada v Secretary
of State for the Home Department,[102]
in which the appellant indicated that he would not attend the
open hearings or otherwise participate in the proceedings in any
way because:[103]
he considered that the decision on his appeal
had, in effect, already been taken. He had chosen not to play
any part precisely because he has no faith in the ability of the
system to get at the truth. He considered that the SIAC procedure
had deliberately been established to avoid open and public scrutiny
of the respondent's case, which deprived individuals of a fair
opportunity to challenge the case against them.
36. When the closed hearings began, the
two special advocates appointed to represent the appellant notified
SIAC "that after careful consideration they had decided that
it would not be in the appellant's interests for them to take
any part in the proceedings".[104]
For itself, SIAC found that the evidence against the appellant
was so strong "that no special advocate however brilliant"
could have persuaded it otherwise and "[t]hus the absence
of the Special Advocates has not prejudiced the appellant".[105]
Nonetheless, SIAC recorded its concerns as follows:[106]
We are conscious that the absence of a Special
Advocate makes our task even more difficult than it normally is
and that the potential unfairness to the appellant is the more
apparent. We do not doubt that the Special Advocates believed
they had good reasons for adopting the stance that they did and
we are equally sure that they thought long and hard about whether
they were doing the right thing. But we are bound to record our
clear view that they were wrong and that there could be no good
reason for not continuing to take part in an appeal which was
still being pursued. To do so could not conceivably compromise
the appellant's desire not to appear to add any credence to the
system which he regarded as inherently unfair. And any concerns
about particular matters would be and should have been dealt with
by the exercise of discretion in deciding what to challenge, what
to elicit and what submissions to make.
37. Delivering his annual review of the
operation of Part 4 of ATCSA in 2004, Lord Carlile addressed the
case and came to the conclusion that it would be an "unacceptable
result" for SIAC to ever be left "with an unrepresented
appellant in open session and the absence of partisan scrutineers
of evidence given in closed session".[107]
He recommended that, whether by statutory amendment or otherwise:[108]
it should be made clear that the role of the
special advocate excludes the conclusion that "the interests
of the appellant" can be served by a withdrawal from any
part in the closed proceedings before SIAC. In many cases, the
silence of an advocate may be judicious and even a welcome relief
at times—but the unusual role of the special advocate should
require attendance and the willingness to act at all times.
38. JUSTICE disagrees with this suggestion,
on the basis that it is not for Parliament or the government to
determine by way of regulation what the interests of a mentally
competent appellant in SIAC proceedings are—nor to direct
to his or her representatives what those interests should be—in
the face of an appellant's clear wishes. Not only would such a
direction undercut the independence of the lawyers involved, but
it would undermine one of the core assumptions of the ideal of
individual autonomy—that each person is the best judge of
his or her own interests.[109]
It would also run counter what was originally presented to Parliament
in 1997 by the Home Office Minister during the debates on the
Special Immigration Appeals Commission Bill, who stated that "the
special advocate must make a judgment about the way in which the
appellant would have wanted his case to be argued".[110]
We accept that it is undoubtedly frustrating to a court where
a special advocate determines that nonparticipation in proceedings
is what an appellant wants. Although there can sometimes be a
issue of whether a detainee's wishes as expressed run contrary
to his apparent interests, we do not see this issue arising where
a detainee is a mentally competent adult. In JUSTICE's view, a
special advocate should follow, so far as practicable, a detainee's
instructions even though he or she is statutorily enjoined from
being professionally responsible to the detainee.
39. An appellant who is subject to the special
advocate procedure is deprived of many things: physical attendance
throughout the course of proceedings; full disclosure of evidence
adverse to his case; the right to cross-examine witnesses; choice
of counsel and the ability to communicate with them in confidence.
The basic freedom to determine one's own interests should not
be one of them.
Eric Metcalfe
Director of Human Rights Policy
JUSTICE
7 February 2005
44 See eg JUSTICE response to the Home Office Consultation
on Counter-Terrorism Powers, August 2004; JUSTICE response to
Joint Committee on Human Rights Review of Counter-Terrorism Powers,
June 2004; JUSTICE response to House of Lords Select Committee
on the European Union Sub-Committee F Inquiry into EU Counter-Terrorism
Activities, September 2004 Back
45
23 EHRR 413 at para 144 Back
46
See JUSTICE Response to Auld, January 2002, para 82 Back
47
[2004] EWCA Civ 301 Back
48
See Metcalfe "`Representative but not responsible': the
use of special advocates in English Law" (2004) 2 JUSTICE
Journal 11-43 Back
49
A and others v Secretary of State for the Home Department
[2004] UKHL 56 per Lord Bingham of Cornhill, para 43. See
also Lord Hope of Craighead at para 103: "[I]t would be a
serious error, in my opinion, to regard this case as about the
right to control immigration. This is because the issue which
the Derogation Order was designed to address was not at its heart
an immigration issue at all. It was an issue about the aliens'
right to liberty" Back
50
See Article 6(2) of the European Convention on Human Rights:
"Everyone charged with a criminal offence shall be presumed
innocent until proved guilty according to law" Back
51
See eg Woolmington v Director of Public Prosecutions [1935]
AC 462 at 481-482 per Viscount Sankey LC Back
52
See Article 14(3)(d) of the International Covenant on Civil and
Political Rights; Article 6(1) ECHR. See also Brandstetter
v Austria (1991) 15 EHRR 378, para 66; Mantovanelli v France
(1997) 24 EHRR Back
53
Article 14(3)(c) ICCPR; Article 6(1) and 6(3)(c) ECHR. See also
Pakelli v United Kingdom (1983) 6 EHRR 1; Goddi v Italy
(1982) 6 EHRR 457 Back
54
See n49 above, para 82 Back
55
See Ajouaou and others v Secretary of State for the Home Department
(SIAC, 29 October 2003), para 48: "The test is . . .
whether reasonable grounds for suspicion and belief exist. The
standard of proof is below a balance of probabilities because
of the nature of the risk facing the United Kingdom, and the nature
of the evidence which inevitably would be used to detain these
Appellants' [emphasis added] Back
56
Ibid, para 71. In A and others v Secretary of State
for the Home Department [2004] EWCA Civ 1123, the Court of
Appeal subsequently noted that SIAC's expression was "unfortunate"
but correct insofar as it was merely emphasising that "the
standard is a different one from that applied in ordinary litigation
which is routinely concerned with finding facts" (para 49
per Pill LJ) Back
57
Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment 1984, signed by the UK on 15 March
1985 and ratified on 8 December 1988 Back
58
Ajouaou, n55 above, para 81 Back
59
The appeal court held that Article 15 CAT was not enforceable
as it had not been incorporated into domestic law. It also ruled
that torture evidence obtained abroad was not excluded by either
common law principles or the provisions of the European Convention
on Human Rights. See A and others, n56 above at para 133
per Pill LJ Back
60
Para 5(d), Conclusions and recommendations of the Committee against
Torture in respect of the United Kingdom of Great Britain and
Northern Ireland, Crown Dependencies and Overseas Territories,
CAT/C/CR/33/3, 25 November 2004. See also, Liberty and JUSTICE
submission to the United Nations Committee Against Torture in
response to the United Kingdom's fourth periodic report (October
2004), paras 8-14 Back
61
See A and others, n56 above, at para 129 per Pill LJ:
"It would be. . .unrealistic to expect the Secretary of State
to investigate each statement with a view to deciding whether
the circumstances in which it were obtained involved a breach
of Article 3. It would involve investigation into the conduct
of friendly governments with whom the Government is under an obligation
to co-operate" Back
62
Preamble to Convention Against Torture, n57 above. The International
Commission of Jurists has now identified excessive counter-terrorism
measures as a grave threat to the rule of law (see the Berlin
Declaration on Upholding Human Rights and the Rule of Law in Combating
Terrorism, 28 August 2004). In particular, Article 7 states, "[e]vidence
obtained by torture, or other means which constitute a serious
violation of human rights against a defendant or third party,
is never admissible and cannot be relied on in any proceedings" Back
63
Foreign and Commonwealth Office, Human Rights: Annual Report
2004 (Cm 6364: September 2004) at 182 Back
64
Speech at the UK ratification of the Optional Protocol to the
UN Convention Against Torture, 10 December 2003, ibid
at 183 Back
65
See Article 14(3)(a), the right "to be informed . . . of
the nature and cause of the charge against him"; Article
6(3)(a). See eg Nielsen v Denmark (1959) 2 YB 412 (Commission) Back
66
Article 14(3)(d) ICCPR; Article 6(1) ECHR. See eg Brandstetter
v Austria (1991) 15 EHRR 378, para 66; Mantovanelli v France
(1997) 24 EHRR Back
67
Article 14(3)(e) ICCPR; Article 6(1) and 6(3)(d) ECHR. See eg
Unterpertinger v Austria (1986) 13 EHRR 175 Back
68
Article 14(3)(c) ICCPR; Article 6(1) and 6(3)(c) ECHR. See eg
Pakelli v United Kingdom (1983) 6 EHRR 1; Goddi v Italy
(1982) 6 EHRR 457 Back
69
Article 14(1) ICCPR: "all persons shall be equal before
the courts and tribunals"; Article 6(1) ECHR has been interpreted
as providing an implied right to each party to a "reasonable
opportunity of presenting his case to the court under conditions
which do not place him at a substantial disadvantage vis-a"-vis
his opponent", De Haes and Gijsels v Belgium (1997)
EHRR 1 at para 53 Back
70
The right to a counsel of one's own choice is not absolute under
Article 6(3)(c) ECHR but the general rule is that the appellant's
choice should be respected. See n68 above Back
71
R v H and C [2004] UKHL 3 Back
72
Ibid, para 22 Back
73
"Review of Counter-terrorism Powers", 18th report of
session 2003-004, 4 August 2004 (HL 158, HC 713), paras 38-41.
The Attorney has appeared for the Secretary of State in proceedings
against those detained under Part 4 ATCSA before SIAC, the Court
of Appeal and the House of Lords-see A and others, n49
above Back
74
R v Sussex Justices ex parte McCarthy [1924] 1 KB 256
at 259 per Lord Hewart Back
75
Response from Special Advocate D to JUSTICE study on SIAC proceedings-see
Metcalfe, n48 above. A copy of the study is attached to this submission Back
76
R v H and C, n71 above, at para 46 Back
77
See ibid and Roberts v Parole Board and Secretary of
State for the Home Department [2004] EWCA Civ 301 Back
78
JUSTICE is grateful to Special Advocates I and O for their suggestion
of this development Back
79
The House of Lords also suggested that "it would perhaps
allay any conceivable ground of doubt, however ill-founded, if
the Attorney General were to seek external approval of his list
of eligible advocates by an appropriate professional body or bodies,
but such approval is not in current circumstances essential to
the acceptability of the procedure", R v H and C,
n71 above, para 46 Back
80
Lord Carlile of Berriew QC, Anti-terrorism, Crime and Security
Act 2001 Part IV Section 28 Review 2003, para 75 Back
81
In JUSTICE's study, this view was strongly endorsed by Special
Advocate D who said that "all those involved in SIAC proceedings
need to deal with facts" and that there was a danger of lawyers
becoming "excited by the legal and human rights issues to
the detriment of getting buried in the facts" Back
82
Lord Carlile, n80 above, para 75: "many if not most of the
issues of human rights and administrative law have been fully
argued and adjudicated upon. The examination of cases by special
advocates in future cases is likely to be more akin to the everyday
work of many criminal advocates who appear routinely in difficult
cases" Back
83
Privy Counsellors Review Committee, Anti-Terrorism Crime and
Security Act 2001 Review: Report (HC 100: 18 December 2004),
para 198 Back
84
Lord Carlile, n80 above, para 73 Back
85
See eg Special Advocate C, D and E Back
86
Special Advocate D said "It is pointless (and wasteful of
time and money) for special advocate B to start from scratch working
out an approach to an issue which special advocate A has already
done and could pass on" Back
87
Special Advocates I and O Back
88
Lord Carlile, n80 above, para 74 Back
89
eg Special Advocates C, D, I and O Back
90
Special Advocate D Back
91
Ibid. The special advocate suggested that "such assistance
would enable the special advocates more effectively to test the
Security Service case" Back
92
We are grateful to Special Advocate D for elucidating this point Back
93
Special Advocates I and O Back
94
see n71 above Back
95
JCHR, n73 above, para 40 Back
96
Ibid, para 41 Back
97
Special Immigration Appeals Commission (Procedure) Rules 2003
(SI 2003/1034) Back
98
One Special Advocate described the restriction on communication
as "widely misunderstood" Back
99
Special Advocate D said that requests under rule 36(5) "have
been made and allowed. But great care has to be taken and, to
my mind, such communication should only ever be in writing" Back
100
While it is correct that a special advocate does not enjoy a
lawyer-client relationship with a detainee, a special advocate
is nonetheless appointed to represent a detainee's interests and,
as such, can accurately be described as a detainee's "legal
representative" Back
101
Lord Carlile, n80 above, para 70 Back
102
SC/15/2002, 8 March 2004 Back
103
Ibid, para 5 Back
104
Ibid, para 8 Back
105
Ibid, para 9 Back
106
Ibid Back
107
Lord Carlile, n80 above, para 78 Back
108
Ibid, para 80 Back
109
See eg Re MB (Caesarean) (1998) BMLR 175 Back
110
Mike O'Brien, 3rd reading, HC debates, 26 November 1997, col
1039 Back
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