Joint Committee On Human Rights Written Evidence

16.  Letter from Martin Chamberlain


  Judith Farbey, Nicholas Blake QC, Andrew Nicol QC, and I have agreed to appear as witnesses at a public session of the Joint Committee on Human Rights to answer questions on the use of Special Advocates in closed proceedings. Between the four of us, we have experience of having acted as Special Advocates before the Special Immigration Appeals Commission ("SIAC") (both in deportation proceedings and in proceedings challenging detention under the Anti-Terrorism, Crime and Security Act 2001), the Administrative Court (in control order proceedings under the Prevention of Terrorism Act 2005), the Proscribed Organisations Appeals Commission ("POAC") and the Parole Board.

  I am writing on behalf of all the Special Advocates who have agreed to give evidence to outline some concerns about the scope of the questions that we might be asked. I have discussed this at some length with the Committee's Legal Advisor, Murray Hunt. He suggested that I record our concerns in writing.

  Because we continue to act as Special Advoces, we remain subject to relevant professional obligations. Those obligations are:

  1.  As barristers, we are required to comply with the Bar Code of Conduct §709.1 of which provides:

    "A barrister must not in relation to any anticipated or current proceedings in which he is briefed or expects to appear to has appeared as an advocate express a personal opinion to the press or other media or in any other public statement upon the facts or issues arising in the proceedings".

  2.  As Special Advocates, we are under an additional obligation (including in relation to cases which are no longer current and subject only to immaterial exceptions) not to "communicate with any person about any matter connected with the proceedings": see r.36 of the SIAC (Procedure) Rules 2003 ("the Rules").

  3.  Having been appointed under s.6 of the SIAC Act to "represent the interests of the appellant", we should not do or say anything which could prejudice those interests.

  We do not think that any of these provisions was intended to, or does, prevent us from answering questions of a general nature based on our experience of the way in which closed proceedings work. Similarly, we do not consider outselves precluded from answering general questions about the way in which the role of the special advocate differs from that of advocates in other proceedings, or about the limitations on what a special advocate can, in practice, acheive for the person whose interests he represents.

  However, we would not be able, consistently with the obligations set out above, to answer questions about:

    (a)  the facts and issues in the individual cases in which we were involved or the decisions we took in those cases;

    (b)  certain aspects of the closed procedure where disclosure would be contrary to the public interest within the meaning of r.4(1) of the Rules; or

    (c)  any legal issues the subject of litigation in which we are currently instructed or on which our expressing views could tend to injure the interests of those whose interests we represent.

  I would be grateful for an indication that these concerns will be communicated to the Committee.

2 March 2007

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