(3) STANDARD OF PROOF
206. The Special Advocates have previously expressed
concerns about the low standard of proof required in SIAC proceedings
and also indicated that SIAC tends to defer very readily to national
security assessments by the Security Services.
207. One of the Special Advocates told us that "the
best way of describing sometimes what goes on in these closed
sessions is not evidence proving a proposition, as you would do
in a civil or criminal trial, by your best evidence or all the
available evidence, but selected highlights of a plausible hypothesis,
and responding to that is challenging."[150]
He thought that if the Secretary of State is permitted to rely
on material which would not generally be admissible in evidence
(e.g. because it is second or third or fourth hand), the system
could afford to be a little more robust in requiring SIAC or the
court to be satisfied to a standard of "more probable than
not". In other words, there should be a more robust test
which requires a case to be put rather than "a plausible
hypothesis".
208. We again raised this possibility with the Minister,
in light of the Special Advocates' concerns, but he again disagreed,
on the basis that he did not share the concerns of the Special
Advocates about the fairness of the process.[151]
209. We recommend raising the standard of proof
required in SIAC proceedings in light of the fundamental fairness
concerns highlighted by the special advocates.
Conclusion
210. After listening to the evidence of the Special
Advocates, we found it hard not to reach for well worn descriptions
of it as "Kafkaesque" or like the Star Chamber. The
Special Advocates agreed when it was put to them that, in light
of the concerns they had raised, "the public should be left
in absolutely no doubt that what is happening
has absolutely
nothing to do with the traditions of adversarial justice as we
have come to understand them in the British legal system."[152]
Indeed, we were left with the very strong feeling that this is
a process which is not just offensive to the basic principles
of adversarial justice in which lawyers are steeped, but it is
very much against basic notions of fair play as the lay public
would understand them.
211. One of the Special Advocates described their
role strikingly in the following way:[153]
"I see it as mitigating the unfairness which
is inherent in a system where the appellant, one party to the
proceedings, does not know all the material that they are supposed
to be meeting or answering. That is inherent. It is irreducible
in the sense that, as long as the appellant does not know it,
there is always going to be the fertile possibility that explanations
or responses that could be given are not, because that material
has not been disclosed to the only person who could provide them.
The system of Special Advocates can never overcome that irreducible
element of unfairness but, having accepted that, I think that
the functions that we try to perform can at least mitigate it
and is better than not having a system where there is a partisan
representative."
212. The Minister in evidence to us said that he
thought that the procedure is "as fair as it can be"
given the exceptional circumstances. As one of the Special Advocates
told us, however, "as fair as can be is not fair". The
evidence of the Special Advocates has confirmed us in our previously
expressed view that the Special Advocate system, as currently
conducted, does not afford the individual the fair hearing, or
the substantial measure of procedural justice, to which he or
she is entitled under both the common law and human rights law.
In short, as we heard in evidence, the system frustrates those
who have been through it who do not feel they have had anything
like a fair crack of the whip because they still do not really
know the essence of the case against them.[154]
In our view, the seriousness of the consequences of control order
proceedings is such that the individuals concerned are entitled
to a fair hearing according to objective and well established
standards of due process. We regard the recommendations we have
made above as the bare minimum that is required in order for the
Special Advocate system to command the public confidence that
is required.
127 See Ninth Report of Session 2004-05, Prevention
of Terrorism Bill: Preliminary Report, HL Paper 61/HC 389
at para. 14. Back
128
JCHR Report on First Control Order Renewal (2006), at paras 69-78. Back
129
JCHR Report on Second Control Order Renewal (2007), at paras 30-38. Back
130
Fourteenth Report of Session 2006-07, Government Response to
the Committee's Eighth Report of this Session, HL Paper 106/HC
539, at pp. 5-6. Back
131
Before giving evidence, the Special Advocates wrote to indicate
certain areas of questioning which they would not be able to answer
because of their ongoing professional obligations as active Special
Advocates; see Ev 95. Back
132
Oral Evidence, 12 March 2007, Q 79. Back
133
Special Immigration Appeals Commission Act 1997, s. 6; Prevention
of Terrorism Act 2005, Schedule, para. 7. Back
134
SIAC Procedure Rules 2003, r. 35; Civil Procedure Rules, Part
76, r. 76.24. Back
135
Oral evidence, 12 March 2007, Q46. Back
136
ibid, Q47. Back
137
ibid, Q63 (Nick Blake QC). Back
138
ibid, Q34. Back
139
ibid, Q60 (Andy Nicol QC). Back
140
ibid, (Martin Chamberlain). Back
141
ibid, Qs 48, 51 and 54. Back
142
Oral evidence, 18 April 2007, Q119. Back
143
CPR r. 76.25(2). Back
144
CPR, r. 76.25(4). Back
145
Oral evidence, 12 March 2007, Q44 (Nick Blake QC). Back
146
ibid, Qs 44 and 45 (Martin Chamberlain). Back
147
Fundamental Justice in Extraordinary Times: Main Report of
the Special Senate Committee on the Anti-Terrorism Act, February
2007, at pp. 35-36 and 42. Back
148
Oral evidence, 12 March 2007, Q44 (Nick Blake QC). Back
149
Oral evidence, 18 April 2007, Qs 122 and 128. Back
150
Oral evidence, 12 March 2007, Q75 (Nick Blake QC). Back
151
Oral evidence, 18 April 2007, Q123. Back
152
Oral evidence, 12 March 2007, Q85. Back
153
ibid, Q38 (Andy Nicol QC). Back
154
ibid, Q84. Back