Letter from Rt Hon Lord Falconer of Thoroton
QC, Lord Chancellor and Secretary of State for Constitutional
Affairs to Rt Hon Alan Beith MP, Chairman, Constitutional Affairs
Committee
I am writing about two matters that are outstanding
from the Select Committee's inquiry into SIAC.
I. SPECIAL CRIMINAL
COURT IN
IRELAND
During my appearance before the Committee on
1 March 2005, Clive Soley MP raised the prospect of using a Special
Court as an alternative to Control Order proceedings in the High
Court. I undertook to make enquiries about the Special Criminal
Court (SCC) in the Republic of Ireland and to provide the Committee
with the relevant details.
It is evident from those enquiries that the
SCC would not offer a viable alternative to the scheme of control
orders that we have established under the Prevention of Terrorism
Act 2005. The SCC was established to provide for a trial—without
a jury—of a criminal offence where there is a fear that
a jury might be subverted by a terrorist organisation or organised
crime. It sits with three judges instead of a single judge and
a jury. The SCC applies the same rules of evidence that apply
in the ordinary criminal courts, which means that the prosecution
must have evidence that is admissible in a criminal court and
that satisfies the criminal standard of proof. It is not, therefore,
set up to provide for the sort of difficulties which I set out
below.
First, we are often dealing with those who are
engaged in the preliminary stages of some terrorist activity or
in the indirect facilitation of terrorism—for example, fund
raising through fraud, training, encouraging or otherwise supporting
terrorist activity. In such cases, an ordinary criminal prosecution
might indeed be possible, but going the extra step and making
a specific link to a terrorist motive is very difficult. Even
where such prosecution is possible, it might not be for an offence
that carries a sentence which would guarantee the public sufficient
protection.
Secondly, information about suspected terrorists
may not be admissible in a criminal court, or may not be of a
nature that would satisfy the criminal standard of proof. On the
other hand, individual pieces of information or intelligence taken
together can paint a convincing picture that the person is involved
in activity which is likely to pose a threat to our security.
In these circumstances, the Government needs to take action to
protect the public.
Finally, even where information would be admissible
in a criminal court, it might be damaging to disclose. Individuals
considered for control orders will be suspected of posing a threat
to national security. The disclosure of some information to those
individuals may compromise the sources or techniques used to collect
that information. Allowing these individuals access to such information
could compromise our national security and put the safety of the
public at risk.
For all these reasons, the SCC would not solve
the issues that the Prevention of Terrorism Act 2005 is
designed to meet. The scheme of control orders—which are
preventative orders—will ensure that the Government is able
to control individuals who are suspected of involvement in terrorist-related
activity, but who cannot easily be prosecuted through the criminal
courts.
During the passage of the Bill, we responded
to concerns that control orders should be swiftly and properly
reviewed by the courts. The Act provides for derogating control
orders to be made by the High Court on application by the Secretary
of State. Non-derogating control orders will be made with the
court's permission or, if made without permission, will be subject
to an automatic reference to the High Court. In either case, the
court's initial consideration will be followed by a substantive
hearing at which all parties and a special advocate can be present.
The Government believes that the judicial proceedings in the High
Court, which are based on the SIAC model, strike a fair and reasonable
balance between the need, on the one hand, to secure justice and,
on the other, to prevent disclosures of information contrary to
the public interest.
II. THE TREATMENT
OF EXCULPATORY
MATERIAL
In your letter of 8 March to the Attorney General,
which you kindly copied to me, you enquired whether the disclosure
of exculpatory material would be placed on a statutory basis and
whether special advocates would have sight of all potential exculpatory
material. During my appearance before the Committee, Ross Cranston
MP had expressed concern that rules of court might weaken, rather
than strengthen, the existing practice of the Government by which
the Secretary of State discloses all relevant material including
exculpatory material to the court and, where one is appointed,
to the special advocate.
We listened to the concerns of the Committee
and others on this issue and we responded by moving an amendment
to the Schedule of the Bill. Paragraph 4(3) of the Schedule to
the Act requires that rules of court must, among other things—
(a) require the Secretary of State to provide
the court with all the material available to him and which is
relevant to the matters under consideration;
(b) require the Secretary of State to disclose
to the other party all that material, except what the court permits
him to withhold on the ground that its disclosure would be contrary
to the public interest; and
(c) provide that if the Secretary of State
chooses nonetheless to withhold material that he has been directed
to disclose, then—
(i) he may not rely on that material himself,
and
(ii) if that material might assist the other
party in opposing an argument put by the Secretary of State then
that argument may be withdrawn from the court's consideration.
Paragraph 4(3) will ensure that rules of court
make provision for the disclosure of all relevant material. I
have already made the first rules in relation to England and Wales
and the relevant rules on disclosure are set out in the Civil
Procedure Rules, Part 76, rules 76.27 to 76.29.
I hope this letter provides all the necessary
reassurances. I am copying this letter to the Home Secretary and
the Attorney General.
Rt Hon Lord Falconer of Thoroton QC
Secretary of State for Constitutional Affairs
and Lord Chancellor
16 March 2005
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