16. Letter from Martin Chamberlain
THE USE
OF SPECIAL
ADVOCATES IN
CLOSED PROCEEDINGS
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no longer current and subject only to immaterial exceptions) not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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