APPENDIX 6
Supplementary memorandum submitted by
JUSTICE
The government's counter-terrorism proposals—"full
adversarial hearing"
I write concerning the evidence of Deputy Assistant
Commissioner Clarke to the Committee on 9 October and the evidence
of the Home Secretary to the Committee on 22 October.
In our view, no reasonable person could describe
the conditions under Schedule 8 of the Terrorism Act 2000 for
the extension of pre-charge detention as affording a "full
adversarial hearing" (Q176), and it would be at best deeply
misleading, at worst dishonest, for anyone to claim otherwise.
It is, in our view, especially irresponsible
for such claims to be made in the context of public debate over
pre-charge detention. Whatever the merits of the government's
case for extending the maximum period of pre-charge detention,
it is vitally important that Parliament and the public not be
misled as to the requirements of our adversarial system of justice
and the way in which Schedule 8 so clearly departs from this.
Principles of adversarial justice
It is a basic principle of adversarial justice,
indeed of natural justice, that both parties have the same right
to be heard by the court: audi alteram partem ("let the other
side be heard").
The right to be heard implies not only a right
to make representations to the court but also to know the evidence
which the other party has put forward so that all the evidence
before the court may be fairly tested by both parties and thereby
subjected to proper judicial scrutiny. This is especially important
in criminal proceedings, where the liberty of the subject is at
stake. As Lord Denning said in the decision of the Privy Council
in Kanda v Government of the Federation of Malaya [1962] AC 322
at 337:
If the right to be heard is to be a real right
which is worth anything, it must carry with it a right in the
accused man to know the case which is made against him. He must
know what evidence has been given and what statements have been
made affecting him: and then he must be given a fair opportunity
to correct or contradict them . . . It follows, of course, that
the judge or whoever has to adjudicate must not hear evidence
or receive representations from one side behind the back of the
other.
The same point was made by Lord Morris of Borth-y-Gest
in the judgment of the House of Lords in Ridge v Baldwin [1964]
AC 40 at 113-114:
It is well established that the essential requirements
of natural justice at least include that before someone is condemned
he is to have an opportunity of defending himself, and in order
that he may do so that he is to be made aware of the charges or
allegations or suggestions which he has to meet: Kanda v Government
of Malaya. My Lords, here is something which is basic to our system:
the importance of upholding it far transcends the significance
of any particular case.
Similarly, in the House of Lords decision in
Official Solicitor v K [1965] AC 201, Lord Devlin referred to
"the ordinary principles of judicial inquiry" as being:
the rules that all justice shall be done openly
and that it shall be done only after a fair hearing; and also
the rule that is in point here, namely, that judgment shall be
given only upon evidence that is made known to all parties. Some
of these principles are so fundamental that they must be observed
by everyone who is acting judicially, whether he is sitting in
a court of law or not; and these are called the principles of
natural justice. The rule in point here is undoubtedly one of
those.
The requirement that a defendant in criminal
proceedings must know the evidence against him is rightly viewed
as fundamental to a fair hearing throughout the common law world.
In Charkaoui v Minister of Citizenship and Immigration [2007]
1 SCR 350, for example, Chief Justice McLachlin CJ of the Canadian
Supreme Court criticised immigration hearings at which defendants
were prohibited from knowing the full case against them: (para
64):
The judge is . . . not in a position to compensate
for the lack of informed scrutiny, challenge and counter-evidence
that a person familiar with the case could bring. Such scrutiny
is the whole point of the principle that a person whose liberty
is in jeopardy must know the case to meet. Here that principle
has not merely been limited; it has been effectively gutted. How
can one meet a case one does not know?
Similarly, the US Supreme Court found the use
of secret evidence before military commissions in Guantanamo as
unconstitutional for the same reason: as Justice O'Connor, writing
for the majority of the Court in Hamdi v Rumsfeld 542 US 507 (2004),
said (p 533):
For more than a century the central meaning of
procedural due process has been clear: "Parties whose rights
are to be affected are entitled to be heard; and in order that
they may enjoy that right they must first be notified . . ."
These essential constitutional promises may not be eroded.
The right to a fair hearing is guaranteed under
Article 6(1) of the European Convention on Human Rights ("ECHR").
In particular, the European Court of Human Rights has referred
of "equality of arms" between parties as one of the
essential guarantees of a fair hearing. In the case of De Haes
and Gijuels v Belgium (1997) 25 EHRR 1 para 53, it described the
principle of "equality of arms" as the requirement that:
each party must be afforded a reasonable opportunity
to present his case under conditions that do not place him at
a substantial disadvantage vis-a"-vis his opponent.
In the particular context of pre-charge detention,
Article 5(3) ECHR requires the detained person to be brought promptly
before a judge. The European Court of Human Rights has elsewhere
made clear that "proper participation of the individual adversely
affected by the contested decision" is "one of the principal
guarantees of a judicial procedure for the purposes of the Convention"
and that conditions which prevent this (ie preventing the accused
from attending the hearing and knowing the evidence against them)
"cannot therefore be regarded as judicial in character"
(Weeks v United Kingdom (1989) 10 EHRR 293).
Schedule 8 of the Terrorism Act 2000
The procedure for judicial authorisation of
extensions of pre-charge detention in terrorism cases, including
the hearings themselves, is governed by Schedule 8 of the Terrorism
Act 2000.
Paragraph 33(3) of Schedule 8 gives the judge
the power to exclude both the defendant and his lawyers "from
any part of the hearing".
Paragraph 34(1) allows the police officer or
CPS lawyer making the application to extend pre-charge detention
to request an order that "specified information upon which
he intends to rely be withheld" from both the defendant and
his lawyers.
Paragraph 34(2) gives the judge the power to
order that information be withheld from the defendant and his
lawyers in order to prevent a number of occurences, including
the possibility that police investigations would be disrupted,
evidence may be interfered with, another suspect alerted, or even
"the prevention of an act of terrorism would be made more
difficult as a result of a person being alerted". The judge
is not required to think that these outcomes would be "likely".
He or she need only be "satisfied that there are reasonable
grounds for believing" that the things may happen "if
the information were disclosed".
In addition, paragraph 34(4) allows the judge
to exclude the accused and his lawyers from an application to
withhold evidence under para 34(1).
In summary, the defendant and his lawyers can
be excluded from any part of the hearing of an application to
extend pre-charge detention (para 33(3)). The judge can also order
that any information put forward by the police and CPS in support
of their application to extend pre-charge detention can be withheld
from the defendant and his lawyers (para 34(1)). Lastly, the order
to withhold evidence from the defendant and his lawyers can be
made by the judge without even the defendant or his lawyers being
represented (para 34(4)).
As the CPS paper, "Scrutiny of pre-charge
detention in terrorist cases" released by the Home Office
in July 2007 acknowledges (para 6), the application to extend
pre-charge detention is determined by a judge using:
both open source material which is presented
in the presence of the defence and sensitive material which is
presented in the absence of the defence [emphasis added].
The CPS paper characterises the adversarial
part of the open hearing in the following terms:
The defendants, who are legally represented,
are presented with a document setting out the state of the enquiry
thus far and the future non-sensitive lines of enquiry, and can
cross-examine the senior investigating officer at length to test
the strength of the application. (please note—this is not
a legal entitlement, but is done to assist the court and speed
up the process.) They are also allowed to make submissions arguing
against the application.
However, the CPS's description refers only to
the part of the hearing where the "open source" material
is used. The hearing of "sensitive material" is "presented
in the absence of the defence" obviously cannot involve any
disclosure of evidence to the defendant, or the defendant and
his lawyers to test the sensitive material by cross-examination.
As Annex A of the CPS paper states:
Paragraph 34 of Schedule 8 of the Terrorism Act
2000 is the legal framework for the applicant seeking an order
from the High Court Judge to withhold information from the detained
person and representative which is to be relied upon during any
such application.
Criticism of Schedule 8 by the Joint Committee
on Human Rights
The Joint Committee on Human Rights has several
times highlighted its concern over the lack of a full adversarial
hearing. In its 2003 report on the Criminal Justice Bill, when
the maximum period of pre-charge detention was extended from 7
to 14 days, it noted that (Eleventh Report of Session 2002-03,
Criminal Justice Bill: Further Report, HL Paper 118, HC 724, para
105):
[W]e have considered whether there are sufficient
safeguards against abuse of the power, particularly in cases where
evidence said to support the application for a further warrant
of detention is withheld from the detainee and his or her legal
advisers. There is power to withhold such evidence in certain
circumstances, going well beyond circumstances in which national
security is likely to be affected by disclosure. Unlike the position
in proceedings before the Special Immigration Appeal Tribunal,
there is no provision to appoint a special advocate to make submissions
on undisclosed material to protect the detainee's interests in
the absence of the detainee and his or her legal representative.
This might make it hard to ensure that the procedure is fair enough
to be "lawful" within the meaning of ECHR Article 5.1.
We draw the potential for a lack of fairness in the decision-making
system, and the risk of a violation of Article 5.1, to the attention
of each House.
In its December 2005 report on the Terrorism
Bill, when the maximum period of pre-charge detention was extended
to 28 days, it noted that (Third Report of Session 2005-2006,
Counter-Terrorism Policy and Human Rights: Terrorism Bill and
related matters, HL 75, HC 561, para 99):
[I]n our view, any increase beyond the current
14 day maximum would at the very least require amendment of the
relevant provisions of the Terrorism Act 2000 which currently
enable detention to be extended in the absence of the detainee
or his or her legal representative and on the basis of material
not available to them. These two procedural deficiencies should
be remedied. We consider that there should be nothing less than
a full adversarial hearing before a judge when deciding whether
further detention is necessary, subject to the usual approach
to public interest immunity at criminal trials, including when
necessary the use of a special advocate procedure when determining
whether a claim to public interest immunity is made out. Such
safeguards would make it much less likely that the UK would be
found in breach of the right to liberty guaranteed in Article
5 of the Convention.
In its August 2006 report on prosecution and
pre-charge detention, the Joint Committee stated (Twenty-fourth
report of session 2005-2006, Counter-Terrorism Policy and Human
Rights: Prosecution and Pre-Charge Detention, HL 240, HC 1576,
para 138):
We agree with the Home Affairs Committee's concern
about the adequacy of current judicial oversight of pre-charge
detention. However, we do not agree that the enhanced judicial
oversight which is envisaged should be carried out on the basis
of an investigative approach. Such an approach, in our view, takes
away the very essence of the detained person's right of access
to a court to challenge the legality of his detention, by withholding
from him the information on the basis of which he is being held.
The Home Affairs Committee Report does not address the question
of judges having access to sensitive material not disclosed to
the detainee. Article 5 ECHR guarantees the right of access to
a court to challenge the legality of detention. In our view, the
Home Affairs Committee's proposed system of judicial control does
not provide this. We remain of the view expressed in our previous
report, that Article 5 requires there to be judicial control in
the full sense of an adversarial hearing.
This concern was reiterated most recently by
the Joint Committee in its July 2007 report (Nineteenth report
of session 2006-2007, Counter-Terrorism Policy and Human Rights:
28 days, intercept and post-charge questioning, HL 157, HC
790, para 59):
[I]n our view the judicial scrutiny of extended
pre-charge detention is not proper judicial scrutiny: in summary,
it falls well short of a full adversarial hearing because under
the relevant provisions of the Terrorism Act 2000 detention can
be extended in the absence of the detainee or on the basis of
material not available to them. . . . We repeat our recommendation
that, in order for there to be "proper judicial scrutiny",
there should be a full adversarial hearing before a judge when
deciding whether further pre-charge detention is necessary, subject
to the usual approach to public interest immunity at criminal
trials, including when necessary the use of a special advocate
procedure when determining whether a claim to public interest
immunity is made out.
Impact of the control orders rulings
It is useful to compare the conditions under
Schedule 8 of the Terrorism Act 2000 with the comments made by
the Council of Europe Commissioner on Human Rights, Alvaro Gil
Robles, with those under control order proceedings under the Prevention
of Terrorism Act 2005 (Report of 8 June 2005, para 21):
[T]he proceedings fall some way short of guaranteeing
the equality of arms, in so far as they include in camera hearings,
the use of secret evidence and special advocates unable subsequently
to discuss proceedings with the suspect of the order. The proceedings,
indeed, are inherently one-sided, with the judge obliged to consider
the reasonableness of suspicions based, at least in part, on secret
evidence, the veracity or relevance of which he has no possibility
of confirming in the light of the suspect's response to them.
On 31 October 2007, the House of Lords Appellate
Committee in MB v Secretary of State for the Home Department [2007]
UKHL 46 held that the withholding of evidence from defendants
and their exclusion from closed hearings in control order proceedings
breached the right to a fair trial under Article 6 ECHR. Lord
Bingham of Cornhill, the senior Law Lord, described the requirements
of fairness in the following terms (para 35):
In any ordinary case, a client instructs his
advocate what his defence is to the charges made against him,
briefs the advocate on the weaknesses and vulnerability of the
adverse witnesses, and indicates what evidence is available by
way of rebuttal. This is a process which it may be impossible
to adopt if the controlled person does not know the allegations
made against him and cannot therefore give meaningful instructions,
and the special advocate, once he knows what the allegations are,
cannot tell the controlled person or seek instructions without
permission, which in practice (as I understand) is not given.
"Grave disadvantage" is not, I think, an exaggerated
description of the controlled person's position where such circumstances
obtain.
Lord Brown of Eaton-under-Heywood said (para
91):
I cannot accept that a suspect's entitlement
to an essentially fair hearing is merely a qualified right capable
of being outweighed by the public interest in protecting the state
against terrorism (vital though, of course, I recognise that public
interest to be). On the contrary, it seems to me not merely an
absolute right but one of altogether too great importance to be
sacrificed on the altar of terrorism control.
In our view, if it is clear that control order
proceedings under the Prevention of Terrorism Act 2005 do not
meet the core requirements of fairness under Article 6 ECHR, it
must be clear that the hearings under Schedule 8 of the Terrorism
Act 2000 are similarly incompatible. In any event, the clear and
obvious nature of the restrictions on defendants under Schedule
8 -liable to be excluded from any part of the hearing and being
potentially unable to challenge key evidence against them—means
that hearings of applications for the extension of pre-charge
detention under the Terrorism Act 2000 fall far short of providing
a "full adversarial hearing".
6 November 2007
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