Examination of Witnesses (Questions 1-19)
NEIL GARNHAM
QC, MARTIN CHAMBERLAIN,
GARETH PEIRCE
AND IAN
MACDONALD
QC
22 FEBRUARY 2005
Q1 Chairman: Gareth Peirce, Ian MacDonald,
Neil Garnham and Martin Chamberlain, thank you for coming this
morning. We look forward very much to the evidence we are going
to hear from you. It is obviously extremely timely with the Home
Secretary making an announcement later today, but I think it would
be helpful if I could first clarify something which would remain
significant even if today's announcement gives us a whole new
line of questions to ask, and it is particularly directed towards
those who have served as Special Advocates. This process was introduced
as a means of challenging the arbitrary decision to deport somebody
from this country, so if that was all it was still doing and it
had not become a process for locking people up in Belmarsh, would
it be a process you would be happy to continue to take part in?
Ian MacDonald: Well, I think that
question sounds as if it is directed principally towards me because
I have resigned. When SIAC was first introduced following recommendations
by the European Court in the case of Chahal, the improvement
on what we had before was very big and on deportation, I do not
think you could describe them as "arbitrary", but deportation
proceedings and exclusions from the country both operated. I initially
took the view that that was a big improvement on what had happened
before because it introduced an element of fairness which had
previously been lacking. My objection was when you tacked on the
jurisdiction under the Anti-Terrorism Act to SIAC which was purely
an immigration court, and at first I stayed on because I thought
that I might be able to make a difference, but eventually one
had to balance that against really being some kind of fig-leaf
of respectability and legitimacy to a process which I found odious.
Q2 Chairman: Does anybody else want to
comment on SIAC as an immigration tribunal, which it originally
was?
Gareth Peirce: As a non-immigration
lawyer, when the legislation came in, I found that colleagues
who were immigration lawyers were used to a very raw deal and
were not as astonished as I was and shocked at what was a removal
of all the rights of a criminal trial. It was indeed deceitful
to suggest that this was somehow relevant to immigration when
it was an arbitrary choice of a number of foreign nationals, but
what was being said was, "You are guilty of criminal offences.
We know you are. We cannot go near a court and we do not want
to go near a court, so we are going to have this shoddy process
where you are not told the evidence, where it is heard in secret,
where your lawyers cannot investigate, where you will never know
what is happening, you will never know the length of sentence
and you will never know how you can progress". All of this,
all in one, was deceitfully suggested as being an immigration
situation, but now it is being broadened to everybody potentially.
Q3 Chairman: Let's start to look at some
of the issues which arise in trying to conduct a process of this
kind either for immigration or, very significantly, for the deprivation
of liberty, the detention. Are there sufficient procedures in
place to ensure that closed material is reviewed against current
developments, such as disclosures in foreign proceedings and can
that process work?
Gareth Peirce: Can I make one
other intervention because it is a part of the deceit that was
brought upon Parliament in the first place. Parliament was reassured
that this would be a last resort and that every consideration
would have been given to prosecuting people under the normal rules.
None of the detainees was ever arrested, was ever questioned and
now, three years later, none of them has ever even been spoken
to, so if one is now on the cusp of considering new procedures
for everybody, the basic question remains: why, if we have so
much legislation in place to deal with investigation into terrorism,
was it all jettisoned and people simply arrested first of all
rather than last of all?
Q4 Chairman: There are some wider questions
there which are not what this Committee is currently trying to
do, although numerous other bodies, on one of which I served,
have done so. What we are actually trying to look at is whether
this process works as a court and whether it can work as a court
either for a less unacceptable jurisdiction, namely the civil
decision about whether to deport someone or the depravation of
liberty and the imputation of a criminal offence or indeed, if
it goes on to control orders, an actual criminal offence in breach
of those orders. It is in that context I just want to establish
what happens. I think many of us, as Members of Parliament, and
perhaps the public need to know a bit more about what actually
happens under SIAC procedures and that is why I wanted to find
out how you deal with the disclosure of material, so perhaps I
can go back to my earlier question, which is: are there sufficient
procedures to ensure that there is a continued review of closed
material, particularly when elsewhere information may be coming
to light which challenges that material?
Ian MacDonald: It is quite difficult
for, I think, any of the Special Advocates or ex-Special Advocates
to answer that without disclosing things that we are not allowed
to disclose and that is one of the problems about assisting your
Committee. I suspect that there is a tendency, since on the whole
the evidence given to SIAC is given by one section of the Intelligence
Services, that there is a little bit of a hermetic seal around
the kind of co-operation that they may have with other bodies
and, in particular, the police.
Neil Garnham: If I may answer
two questions, the first is whether I was content and remain content
to act as a Special Advocate in respect of the old proceedings,
and the answer is yes. It seems to me that that was a significant
improvement on what predated it. In answer to the practicalities
of the operation of the system under Part 4 of the newer Act,
speaking for myself, I remain content to serve as a Special Advocate
in relation to that for the simple reason that I take the view,
as some but not all others do, that I am more likely to do good
by being in there and being involved than by not being involved,
although I respect the view of others who take a contrary view.
In terms of the practicalities, it seems to me that there are
ways in which the system could be improved and we sought to address
those in the paper that we put in to the Committee. The one, Mr
Chairman, that you alight on, which is the manner in which Special
Advocates are able to review material as it becomes available,
is one that gives us particular concern because the truth is that
Special Advocates are simply operating on their own with no substantive
assistance. They do their best to test the closed material, looking
for internal inconsistencies and comparing it with what is known
to us to be already in the public domain. The limitations of the
latter are, it seems to me, implicit in the system as it operates
at present because we have no secretariat, we have no solicitor
who can see the closed material and we have no expert assistance
on which we can call, so it is something of a feeling of being
one man and his dog or perhaps two men and their dogs trying to
analyse what is invariably voluminous material and often complex
material. Therefore, my observation would be that whatever view
this Committee and Parliament take of the merits of the system
as a whole, about which I say nothing, there are ways in which
it could be made to work more effectively.
Martin Chamberlain: Specifically
on the question of disclosure, the problem that we face is that
we have a vast body of material and we suspect, on occasion, that
some of that material is not in fact secret because it is likely
to have been disclosed in the course of criminal proceedings abroad.
The problem that we have is that there is a vast number of jurisdictions
in which those criminal proceedings may be taking place and we
simply do not know whether the material has or has not been disclosed.
We do know, because we have pressed on a number of occasions,
that some of the material has been disclosed in foreign criminal
proceedings. We simply do not have any systematic means of discovering
which material has and which material has not because we do not
have the resources that enable us to perform those sorts of exhaustive
checks, and that is one of the matters that we have identified
as seriously limiting the extent to which we can perform a useful
function for the appellants in our cases.
Q5 Chairman: What about exculpatory material,
material which would assist the defence or might assist the defence?
What about the procedures for refusing to disclose exculpatory
material? Can you throw any light on that?
Ian MacDonald: One of the problems
you have with exculpatory material is that you may not know that
it is exculpatory. Can I just give you the example that comes
to mind which is the kind of evidence which would have been given
against, I think they are called, the "Tipton Three"
about having met Bin Laden at a certain time in a certain place.
Now, that would almost certainly be information which would not
be put in the public domain in a SIAC hearing and of course once
we have got the closed material, we are not allowed to speak to
Gareth or her barristers or indeed the appellant, so you would
not have any idea that there might be an explanation for that,
that it was one of the people working at the checkout at Curry's,
and you would not have a clue how to proceed. I think that dislocation
between the role of someone who, at the point when you get the
important information, can have no contact with the appellant
and, therefore, you cannot take any kind of instructions in any
of the information you get, as Neil has described it, you are
a two-person band without any available resources and it is very
difficult even to recognise what might be very, very important
exculpatory information because you never get the chance to marry
the two bits of information up.
Q6 Chairman: You are flying with very
little fuel and no instruments really.
Ian MacDonald: Well, that would
be one way of putting it, yes. It is a serious drawback about
the whole Special Advocate procedure and I think it has certainly
come up. We could probably all give examples, but the trouble
is that we cannot.
Q7 Chairman: Ought there to be an obligation
on the Secretary of State to disclose exculpatory material?
Ian MacDonald: I think the same
problem arises there, that the Secretary of State would not know
what is exculpatory or not, even with the best will in the world,
and I do not know how you can get over that problem ever with
this kind of procedure.
Q8 Chairman: Then intercepted material—how
should SIAC itself, the court, exercise its role in considering
whether intercept evidence should be disclosed?
Neil Garnham: Disclosed to the
appellant?
Q9 Chairman: To the parties, to the appellant.
Neil Garnham: That has been the
subject of some consideration by SIAC and the circumstances in
which it will be disclosed are pretty slim, frankly, and there
are sound reasons, at least arguably, why that is so. It, nevertheless,
creates the problem that has been recognised as fundamental to
this system, that there is material which SIAC consider and which
the Special Advocate and the Secretary of State have access to,
but which the appellant does not and cannot.
Chairman: I want to turn to what I think
is the other central issue about the nature of the process which
is the ban on taking instructions, the limitations on contact.
Q10 Keith Vaz: Can I declare my interests,
that I am a non-practising barrister and my wife holds a part-time
judicial appointment. Mr Garnham, you described the system as
being like one man and his dog and Gareth Peirce described it
as shoddy and deceitful. Why are you still there then?
Neil Garnham: Because I think
I can do more of use being involved than not being involved and
it is not without its benefits and I disagree to some extent with
what Gareth and Ian have said about that and there is room for
a difference of views. While the system exists and while I am
instructed, I take the view that I am able to do some good through
the process and I say nothing about the merits or demerits of
the system as a whole.
Q11 Keith Vaz: It sounds as if you can
easily join the Boy Scouts if you want to do good!
Neil Garnham: I think I am too
old!
Q12 Keith Vaz: Can you tell me how many
cases you have done involving immigration work? You are a recorder
and you serve as a barrister, but have you ever been involved
in the immigration field?
Neil Garnham: Yes.
Q13 Keith Vaz: You have?
Neil Garnham: Yes.
Q14 Keith Vaz: And, in your experience,
looking at the procedures that have been set up here, the ban
on communication between yourselves and the defendant, have you
ever come across that before in any of the work that you have
ever done?
Neil Garnham: No, of course not
because this is a very different situation from the one that normally
obtains. The ban on communication is something we address in our
paper and it is obviously fundamental to the review this Committee
is undertaking. It is inherent in the system and it does not seem
to me possible to operate this sort of system, dealing with this
sort of evidence, without there being some sort of restriction
on contact. It operates in different ways in practice. For example,
in one case I have done under the 1997 Act I had extensive contact
with the appellant before I saw the closed material, so I had
consultation with him at Belmarsh and I had a number of consultations
with his solicitors and his barristers before I saw the closed
material, and I was able to advise and they were able to inform
me as to what the nature of the defence was.
Q15 Keith Vaz: But in this system you
have no contact.
Neil Garnham: Exactly the same
could happen. It can only happen if the Special Advocate has not
in that case, and probably in any other case, seen the closed
material, but provided they have not, they can have contact with
the appellant and his solicitors and barristers before the closed
material is delivered to the Special Advocate.
Q16 Keith Vaz: But not after?
Neil Garnham: Not after, that
is right.
Q17 Keith Vaz: So after you receive the
material, there is no way you can contact that person who is supposed
to be your client?
Neil Garnham: Not quite. You are
almost right. It is possible, and I have done it recently, to
put questions to the appellant's solicitors through SIAC, but
you are right in essence, that in substance there cannot be any
iterative process between the two sides.
Q18 Keith Vaz: But do you not think,
in your experience, and you are a silk, you are a recorder, that
it would be better if you did have that contact and if you were
able to discuss strategic issues with the appellant or his solicitors?
Neil Garnham: Of course it would
and if that were possible, consistent with maintaining the national
security concerns that arise in these cases, then I, for one,
would welcome it, but I do not think the answer to the problem
this Committee is addressing is simply to recognise that that
is the norm or that that is preferable because that does not address
how you deal with the closed material.
Q19 Keith Vaz: It is a pretty difficult
different set of circumstances for those of us who are lawyers
to deal with, is it not?
Neil Garnham: It is quite extraordinary.
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