HOUSE OF LORDS
House of COMMONS
MINUTES OF EVIDENCE
JOINT COMMITTEE ON HUMAN RIGHTS
Monday 12 March 2007
SIR KEN MACDONALD, QC, MR JON MURPHY,
RT HON LORD LLOYD OF BERWICK, RT HON SIR SWINTON THOMAS and COMMANDER RICHARD GARGINI
MR ANDY NICOL, QC
USE OF THE TRANSCRIPT
Taken before the Joint Committee on Human Rights
on Monday 12 March 2007
Mr Andrew Dismore, in the Chair
Witnesses: Sir Ken Macdonald, QC, Director of Public Prosecutions, Mr Jon Murphy, Deputy Chief Constable of Merseyside, Rt Hon Lord Lloyd of Berwick, a Member of the House of Lords, former Law Lord, Rt Hon Sir Swinton Thomas, retired Lord Justice of Appeal, and Commander Richard Gargini, National Co-ordinator of Community Engagement, examined.
Q1 Chairman: Good afternoon everybody. This is another evidence session in our ongoing inquiry into counter-terrorism policy and human rights. This afternoon we are joined by Sir Ken Macdonald, QC, Director of Public Prosecutions, Jon Murphy, the Deputy Chief Constable of Merseyside for ACPO, the Rt Hon Lord Lloyd of Berwick, a former Law Lord who has sponsored private Members' legislation on this, the Rt Hon Sir Swinton Thomas, a retired Lord Justice of Appeal and former Commissioner and Commander Richard Gargini, National Co-ordinator of Community Engagement for the police. The particular focus of this session is going to be primarily on intercept evidence. The Committee previously recommended that we should have the admissibility of intercept evidence in criminal trials so the evidence session is primarily going to focus on the how rather than the whether or the why. Perhaps I could start by asking the DPP how significant a difference you think it would make if the intercept ban was relaxed in terms of bringing more criminal prosecutions against suspect terrorists.
Sir Ken Macdonald: We have spoken, as I think you probably know, a great deal to colleagues abroad, in the United States, Canada and Australia particularly, who have systems closest to ours. The message we have had from all of them is that it would make an enormous difference. Colleagues in the Department of Justice in the United States have told us that the majority of their major prosecutions now against terrorist figures and organised crime figures are based upon intercept evidence. I think it is well known that for the first time each of the five New York crime godfathers are in prison, each of them as a result of the use of intercept evidence. In Australia, I was told by the head of the New South Wales Crime Commission that prosecutors who did not rely on intercept evidence were not being "serious" in this area of work. When I was in the United States I spoke with the National Security Agency, the Drug Enforcement Administration, the counter-terrorism section of the Justice Department, the organised crime section of the Justice Department. In Australia I spoke to the Australian Security Intelligence Organisation, all of the crime commissions, the Commonwealth DPP, the New South Wales DPP, the Australian Federal Police. Everybody without exception told us that this material is of enormous use. It is cheap, it is effective; it drives up the number of guilty pleas and it leads to successful prosecutions. We are convinced, and have been for a number of years, that this material will be of enormous benefit to us in bringing prosecutions against serious criminals, including terrorists.
Q2 Chairman: Can I put to you what the Minister, Baroness Scotland, told the House of Lords on 7 March? "The evidential use of intercept would not even add significantly to the number of convictions that can be secured." You would disagree with that?
Sir Ken Macdonald: I disagree profoundly with that. Some investigations were undertaken, as you probably know, when this was being looked at some years ago to look at old cases and to try to determine whether intelligence intercept that had been used in those cases had driven up the number of successful prosecutions and convictions. It found that the difference would have been marginal. The problem with that approach is that you are not comparing like with like. If you look at material which is acquired for intelligence purposes, it is acquired on a different basis, with a different motive and with a different expected outcome than material which is targeted and acquired for evidential purposes. The whole point about intercept obtained for evidential purposes is that you target people who you think may be involved in crime and you look to intercept them talking about crimes which they are committing with prosecutions in mind. I cannot believe that all of our colleagues in jurisdictions so similar to ours abroad have formed such a strong view about the value of this material that somehow there is something different about our jurisdiction which would mean a different situation would apply here. That makes no sense to me. Prosecutors, certainly in the Crown Prosecution Service, are strongly of the view that this material would be of assistance.
Q3 Chairman: Perhaps I could ask Mr Murphy for his view on the police aspect of investigation?
Mr Murphy: The ACPO view is in accord with the DPP in so much as we believe it may assist us greatly in the prosecution of terrorists and in serious organised crime. However, we are greatly concerned about exposure of our methodologies, our capacity to intercept, which is significantly greater than some other jurisdictions and about managing the disclosure burden in terms of the inevitable reduction in capacity in order to service the evidence machine. Provided those two things can be overcome - and I know some work is being done on that - we would support the view of the DPP.
Q4 Chairman: Sir Ken, are you using intercept evidence that has been obtained overseas that is allowed to be used in the UK?
Sir Ken Macdonald: Yes.
Q5 Chairman: Do you regard it as evidence that is particularly valuable in bringing prosecutions?
Sir Ken Macdonald: We had a major case of people trafficking which you may recall two or three months ago. This was people trafficking across Eastern Europe by organised gangs. A large number of these defendants pleaded guilty because we were able to play to them and their legal advisers intercept material which had been acquired abroad which, as you know, is admissible in this jurisdiction. I myself had many experiences at the Bar, when I was representing serious criminals, of them being convicted through their own mouths by the use of bugs and such like, including a case in which an IRA terrorist had a bug placed in the lorry in which he was transporting a bomb across London. There is no more powerful evidence for prosecutors than defendants convicting themselves out of their own mouths.
Q6 Chairman: Is there any logic as to why we are allowed to use foreign intercept but not UK?
Sir Ken Macdonald: Yes. There are far greater implications for us in using domestic intercept. I do not mean by anything I say to underestimate the difficulties which have to be overcome in order to achieve this material as evidence. First of all, we have to have a system which protects our agencies as they go about their business, protects their capabilities and their methodology. That is absolutely imperative and I agree with everything that people on the other side of the discussion say about that. Secondly, we have to discover a model which does not place undue administrative and bureaucratic burdens upon intelligence agencies. I think that is a bigger concern for some. That is to say, we have to have a disclosure regime that does not require them to put an unreasonable amount of resource into retaining and classifying material that might be relevant in some future trial. Those sorts of considerations and concerns do not apply when we are using foreign material because, if you like, that is their problem rather than ours. I feel strongly that, although there are significant concerns on the other side of the argument, we can overcome them.
Q7 Lord Plant of Highfield: I want to pick up the point which you just made and indeed the point made by Mr Murphy earlier. Just looking at the practical considerations that have to be addressed if we are going to use this evidence, I suppose there are broadly speaking four types of practical consideration, one that Sir Ken Macdonald has just mentioned about disclosure of intercept methods, methodologies, techniques, capabilities and so forth. Secondly, over-burdening the police and other agencies by the need particularly to transcribe huge quantities of intercept evidence. Thirdly, over-burdening prosecutors facing applications for disclosure of evidence from the defence. Finally, one which I do not think has been mentioned, namely keeping up with rapid technological developments and communications. Leaving aside the issue of principle, these are often thought to be fatal objections to intercept evidence being used as a matter of course in these sorts of offences. We have heard Mr Murphy and Sir Ken Macdonald on one or two of these points. I do not know whether any of the other people giving evidence would like to address these points and whether Mr Murphy and Sir Ken would like to come back on them?
Mr Murphy: Could I give one additional rider? There is a double benefit in overcoming the disclosure problem and the administrative burden in that the inevitable consequence of going to an evidential regime is a reduction in capacity in order to be able to manage the evidential burden. The other benefit of the current system that we would lose if we did not find a way of overcoming that is, as a consequence of the capacity we have, we have many instances where we have been able to disrupt terrorist and organised crime activity simply because of the scope of the coverage. If we reduce our capacity in order to serve the evidential regime, there is a possibility, if we do not overcome the problem, that we will lose that capability to disrupt some potentially catastrophic scenarios.
Lord Lloyd of Berwick: I would like to take up one point which you made, Chairman, which was: was there any logic in admitting foreign intercept but not English intercept. The answer is there is none. I can see no reason why we should admit intercept from Holland, France or wherever it may be but not from here. I agree with every word of what the Director of Public Prosecutions says. The only point he did not mention was that the last report we had was from a review committee which reported in February 2005. They went into the whole thing in great detail and they came down firmly of the view that there would be a modest increase in convictions in serious crime cases. That is now common ground.
Sir Swinton Thomas: The review found that there was some prospect of a minimal increase in convictions but that was far outweighed by the dangers we would face with the loss of intelligence which enables the intelligence and law enforcement agencies to disrupt and prevent terrorist outrages and serious crimes. The balance fell, they found, having looked at all the cases right across the board, all the agencies dealing with intelligence and law enforcement, very firmly in the opposite way. Until you made your opening remarks, Chairman, I had rather hoped and expected that I could say a little about the general principle as opposed to the detail but you indicate that you are not greatly interested today in the general principle, which I am bound to say, to me - as you will no doubt know if you have read my report - is absolutely fundamental. We will lose a huge amount and there are very great dangers in my judgment which are supported across the board by the intelligence and law enforcement agencies in taking the course proposed by the Director and Lord Lloyd. I do not want to be over dramatic about it but I have no doubt at all - and everybody in the police forces (I am not talking about directors of SOCA or chief executives or the Commissioner of the Metropolitan Police) and everybody who is engaged in the actual work of catching criminals and preventing terrorist bombs is wholeheartedly opposed to the whole concept of admitting intercept evidence. They think it will do huge damage to the capabilities which they have so successfully exercised in keeping us, since 2005, free of terrorist outrages. The intelligence that has been gathered has enabled them to frustrate a number of incidents. All of them believe that that would not have happened if those engaged in it knew that material that they supplied would be used evidentially against them. My experience so far as the use of intercept abroad differs from that of the Director and Lord Lloyd. I think you referred to the statistics that Baroness Scotland produced in the debate in the House of Lords, where she said that there had been reports of the unsuccessful use of intercept product in Spain and Italy. Australia's latest public figures on interception show that in 2003/4 there were no convictions in the five terrorism trials. The Canadian annual report shows there were 84 interception authorisations in that year but none ended in a conviction. In the United States, where it is only done by law enforcement and not by intelligence agencies - an important distinction - there was a comparatively low figure.
Q8 Chairman: I think the figure is 1,710 interceptions and 634 convictions.
Sir Swinton Thomas: May I ask you please to take on board that in the USA the intelligence agencies are not permitted to use intercept? It is law enforcement agencies only. Like the Director whose judgment I admire and for whom I have great respect, my experience in this regard is different. I gave a number of conferences in various countries dealing with this topic and a number of delegations have come to London to talk to me and to others about it. Over and over again I am told how much they envy our system and how they wish they had it in their own jurisdictions, and how they find that it produces very little of value to them. What is said about the use of our intercept abroad and the use of intercept from abroad here is capable of being very misleading. No intercept material ever leaves this country if it is thought that there are such sensitivities attached to what is disclosed as to make it unwise to do so. So far as anything that goes abroad is concerned, it is totally protected. Equally, we do not use evidence from abroad here if, having looked at it, the intelligence agencies who receive it consider that our own sensitivities are endangered by its use. If that is the case, it does not come in. I do not think that aspect gives anything like the support to the arguments put forward by those who take a different view to mine as they would suggest perhaps it does.
Q9 Lord Plant of Highfield: Mr Murphy was concerned about the possibility that disclosure would also disclose methods, capabilities and so forth. I thought I detected a note of optimism when you said that there was work going on at the moment to see how this could be overcome. Obviously I cannot ask you about the detail of that work but are you optimistic or is that a misreading?
Mr Murphy: I have not had the benefit of being exposed to the outcome of that work. I know counsel have been working for some time and have worked previously in trying to overcome the disclosure difficulties. Various models have been put forward. It has thus far, as far as I am aware, failed to square our adversarial process along with our human rights obligations. Perhaps the Director would be in a better position to say where that work is up to.
Lord Lloyd of Berwick: I do not see any difficulty on the disclosure problem. It has all been dealt with very fully very recently in the House of Lords in a case called R v H in 2004, in which Lord Bingham gave a magisterial judgment on this question, pointing out that there is no obligation to disclose material which would be deleterious to the national interest, either under the European Convention of Human Rights or under our own domestic law.
Q10 Chairman: Could I ask about public interest immunity and whether that provides sufficient safeguards of the public interest in relation to intercept? Would that provide a way forward?
Lord Lloyd of Berwick: That is what that case is all about. It is all now set out in great detail in chapter 25 of the criminal procedure rules, exactly paragraph by paragraph, the stages through which you have to go in order to protect sensitive material. We protect sensitive material every day in respect of informants and other sensitivities. There is no reason in my view at all why we should not protect the sensitive methods adopted by GCHQ and others.
Q11 Chairman: Sir Ken, do you think there need to be any changes or amendments to the public interest immunity law to safeguard the public interest when it comes to non-disclosure of intercept material?
Sir Ken Macdonald: I agree with Lord Lloyd that public interest immunity is a very powerful tool to both protect the national interest and secure the right of a defendant to a fair trial. One of the problems that arose in recent years was that the prosecution were not applying the laws relating to disclosure as well as they might have done. They were disclosing far too much irrelevant material to the defence. The trials were being swamped. Defendants were using that over-disclosure as a means to fight a war of attrition, making cases untriable. Over the last two or three years, we have insisted that prosecutors apply the Criminal and Procedure Investigations Act test which means we disclose our case. We also disclose anything we are in possession of which undermines our case or assists the defence. If we have material that is prima facie disclosable within those tests but we do not wish to disclose it for reasons, for example, of national security, then we have to obtain the leave of the trial judge to give an order under public interest immunity to the effect that that material need not be disclosed. This is a jurisdiction of last resort as Lord Bingham sets out in the judgment Lord Lloyd has just referred to, but it is a clear protection that we have against disclosing material that damages the public interest. The final protection is that, even if the prosecution are ordered to disclose a piece of material that they think would damage the public interest, they do not have to do so. Instead, they can abandon the case. That is something that we do from time to time, even in quite serious cases, if we are ordered to disclose something that we think would damage the public interest. We offer no further evidence in the case and walk away from it. Indeed, that is a procedure which is followed in other common law countries. I do not have any doubt at all that we can protect the national interest and use this material and secure fair trials for defendants.
Q12 Chairman: Can I put a scenario to you, comparing two cases? At the moment, the question of intercept does not arise because you cannot use it. Suppose you are prosecuting somebody under the existing regime. Take the same case a couple of years down the track where you are allowed to use intercept. Public interest immunity is refused by the judge. Would you then have to abandon the trial under that regime when you would not have to abandon it under the current regime?
Sir Ken Macdonald: I am not sure how public interest immunity would apply to the whole of the product. What would happen if we had intercept product available to us is exactly what happens now when we have bug material available to us. We look through it. We decide which of that material is going to form part of our case and we disclose that. We also disclose any material which we do not intend to rely upon but which supports the defence case or undermines ours. The bulk of material does neither and in our view does not need to be disclosed.
Q13 Chairman: If it is material where you have applied for public interest immunity from the trial judge and it is refused by the trial judge, what would the implications be for that trial which at the moment could proceed on all the other evidence but perhaps could not proceed because of the refusal of the interest certificate?
Sir Ken Macdonald: I suppose there are two possibilities. One is that you would simply rely on no intercept material at all. The other, as in a bug case at the moment if that happens - and I am not aware of any bug case in which it has happened incidentally - is you would abandon the case. It is quite difficult to imagine material that would emanate from an intercept that would come into that category. The sort of evidence that one would want to protect under public interest immunity with intercept evidence is, for example, techniques used to conduct intercept, how it is done technically at the exchange or wherever. That is the sort of material that you would secure a public interest immunity certificate in respect of. People talking about going off to rob a bank or drop a bomb are unlikely to be saying things which would attract public interest immunity. They are saying things which would attract very long prison sentences.
Q14 Chairman: Sir Swinton, if the law on public interest immunity is sufficient in bugging cases, why is it not sufficient in telephone intercept?
Sir Swinton Thomas: Nobody has so far managed to put forward a model which would satisfy the protection of the sensitivity of the material and would satisfy the principles of quality of arms as between the prosecution and the defence. Having heard what Sir Ken has just said, PII is not at all necessarily and may well not be a protection of the intelligence sensitivities. The judge, if he is given the material, has to make a decision: is it or may it be material? If so, then it goes into the public arena and there is no protection for the sensitive material. Since I have been the Commissioner in 2000 - I am not a technician; nor do I have any technical expertise - in my time alone the picture has changed dramatically. Before that we still had the bulldog clips and the land line. We are now moving into the era of the voice over internet product and the NGN materials, the new generation networks. As of today, it is doubtful whether we will be able to intercept any of that new material. A lot of work has been done on it. Query: can we intercept it? If so, how do we go about it? If you are going to take the line that the Director and Lord Lloyd are taking, it seems to me certainly and to all those who are working in the intelligence and law enforcement agencies that you must produce a model which will deal with those techniques. Nobody so far has done so. The PII plus, which was a concept I think of the Attorney General, Lord Goldsmith, has been examined with care. No decision has been made about it yet but the general thinking is that it almost certainly will not work. On one thing I am sure all five of us are agreed. It is probably the only thing we are agreed about and that is that, if you can produce a model which will allow intercept to be used evidentially and at the same time preserve the sensitivities of the intelligence of the intercept, we would all be in favour of it. The government has done a lot of work to see if it can be done. I think the PII plus proposals will meet the same fate. That is certainly the message that I am getting. So far, nobody has found a model which will do the trick. If the Committee can do so, we would all be very grateful.
Q15 Lord Judd: Whatever our position in the argument, there will presumably be personnel, material and cost consequences. I wonder whether the DPP can tell us just how these have been quantified if the ban were relaxed, so far as his own people's work is concerned; and secondly whether he thinks it will put an additional burden on the prosecution and whether that has been quantified. If these things have been quantified, exactly how is it intended that they will be dealt with? It seems to me this is not just an argument of principle; it is also an argument of resources.
Sir Ken Macdonald: I am sure that is right. One of the things we have to avoid for my agency as well as for the intelligence agencies is a system which becomes burdensome and too expensive to operate, particularly over the next few years when I do not think we are going to be getting much more money from the government. One of the things that was very interesting to me when I visited Australia in the autumn of 2004 was to talk to the various police forces as well as the prosecutors, who conduct most of this work. I spoke to the New South Wales police and to the Australian federal police at the most senior level. The message they gave was that the point about intercept is that it is surprisingly cost effective in terms of conducting big operations in complex crime. It is perfectly true that the New South Wales police and the Australian federal police operate a very sophisticated software system by which they conduct intercepts, which allowed key word searches, capturing sentences, key words and so on and so forth - although of course there is no reason why we should not have similar software. The message we had from them was that each warrant in effect cost from warrant through to prosecution about $9,000 in terms of the amount of resource they had to put into the interception, which is about £3,500. They felt that one problem with intercept in organised crime cases was that it was so effective there was a danger it would become overused and more traditional forms of policing would fall away, which would not work because you need to combine intercept material with the more traditional evidence which is obtained by more traditional forms of policing. The reality is that, so long as we can control the disclosure obligations, this form of investigation is probably more cost effective than, for example, following someone around. It has been estimated that to follow one individual around London - I will not give the figure - it takes a surprisingly large number of individuals. These surveillance operations are hugely resource intensive. If you are following 14 men who you think are planning to blow up some airliners, that is an enormous operation. If you are tapping seven or eight phone lines, that is perhaps easier to do although you want to combine elements of both. I do not get the impression from our foreign colleagues that cost is a problem here but they have found ways to restrain this appropriately so that it does not get out of hand and we would have to do the same.
Q16 Lord Judd: And for the prosecution?
Sir Ken Macdonald: The same thing. We have to satisfy ourselves whether material is disclosable or not. Therefore, there is a requirement upon us to consider all the material which is obtained as a result of the investigation, the fruits of the investigation. That is something which we have to do in all cases, whatever the sort of evidence, whether it is bug evidence, surveillance evidence or scientific evidence. We would need to find ourselves in a situation where courts were not routinely ordering us to disclose the totality of the product just in case the defence found some material. It is well known that a major professional criminal was sentenced to seven years in a London court last week and it is well known that in that case the judge ordered that the totality of the transcript should be supplied to the defendant at a cost of nearly £3 million. It is worth reading something Lord Bingham said in the case which Lord Lloyd referred you to a moment ago. This was part of his judgment: "The trial process is not well served if the defence are permitted to make general and unspecified allegations and then seek far reaching disclosure in the hope that material may turn up to make them good." That would obviously apply to a situation where someone asked for disclosure of the totality of intercept product. Indeed, we appealed this judge's ruling. We had an interlocutory appeal in the Court of Appeal and the Court of Appeal laid down some guidelines as to when it would be appropriate to serve material and when it would not. I am quite confident that the CPIA regime does not require the prosecution to supply the totality of transcripts but only those parts of the transcripts which are disclosable under the law - that is, those which are our case and any other excerpts which undermine our case or assist the defence case. Financially, obviously there is a cost to this but the gain in terms of increased pleas of guilty, which is a very marked consequence of this abroad, and therefore the resulting saving of court time as we saw in the Adams case - no six, seven, eight or nine month trial because he was shown all the bug material and pleaded guilty eventually - would more than make up for the original cost in conducting these operations and assembling the material.
Q17 Lord Judd: I am not a lawyer and therefore I speak very much as a layman but in what you have just said, if we are very committed to the principle and presumption of innocence, is it quite as simple as this, about how much information is made available to the defence?
Sir Ken Macdonald: That is the law and that is the regime.
Q18 Lord Judd: I am asking you.
Sir Ken Macdonald: I think it is. I think the law is completely appropriate. If we have a regime where everything that the police obtain during an investigation is served, trials become swamped with an enormous amount of material that has no relevance at all. The point of disclosure is to restrict the subject matter of the trial to material which is relevant to an issue in the case. Someone has to do that and I think it is appropriate that it should be the prosecution, assisted by the judge if we want to withhold material which is otherwise disclosable.
Q19 Lord Judd: I would now like to ask the police whether they anticipate significant additional burdens and whether they have been quantifying what these will be and how they will deal with them. For example, the very obvious task of transcribing intercept material and the bolts attached to that. In looking at all that, have you had consultations with other countries and what have you learned from your consultations about how they tackle it?
Mr Murphy: Can I emphasise that if we can find a system that stops that burden we support it. If I can make two points on the burden, one is we currently use probe material, eavesdropping material in evidence. As in the case that the DPP referred to, sometimes there are significant volumes and hours and hours of material. An eavesdropping device is in one place that an individual has to be in at a particular time. A mobile phone is with somebody 24 hours a day so there is 24 hour coverage of what is on a mobile phone, but there is lots of collateral intrusion because the subject is not necessarily the person who is always using the phone. Potentially, there are massive volumes of material. There is also a difficulty in that the process and the technology we have are not designed to deliver evidence. We know that we miss calls. Whilst there are mechanisms to protect the disclosure of the volumes of material, we know there is potential for attack on the process and the integrity of the process in delivering the evidence. In relation to your question about other countries, I have had the opportunity to visit other jurisdictions and only last year I was in an intercept suite in Los Angeles. I have previously been in one in Canada. They have very good systems and they do achieve successful prosecutions but in both cases they were monitoring very small numbers of lines because of the requirement to service the evidential capacity. Unless we can find a way of reducing the volume of material that an evidential regime would create, the inevitable consequence for ourselves is that we will reduce our coverage and we may end up with longer operations, as opposed to shorter operations, because we do not have the same level of coverage.
Q20 Baroness Stern: I would like to probe a little further, if I may, this question of technological developments which is cited as a reason for not legislating now to allow intercept. Sir Swinton, you made this point in your report and you have just told us a little more about the methods. I wonder if you could tell us precisely why these new technologies are an obstacle? Would it be very difficult for a parliamentary draftsman to devise a statutory framework that would be flexible enough to cover new technology as it is developed, in your view?
Sir Swinton Thomas: I am sure the parliamentary draftsman could do what was required of him. We are more concerned at the moment with the practicalities. If I may make so bold as to suggest it, you really want somebody here from an outfit called NTAC, the National Technical Assistance Committee, who deal with all the technical sides of this, or someone more relevantly from GCHQ, who have great expertise and who are in fact trying now to see whether they can devise a means of dealing with the new technology. So far, they have failed. They are hopeful that they will succeed but they are not confident. It is not easy for me, in a way, to give you a good answer to the question because of my absence of technical knowledge but, so far as the voice over internet protocol is concerned, as I understand it, that is going to replace the telephone altogether in the same way as our land lines have tended to go out of use and we all use mobile phones. Everybody is now going to use the internet. If you send a message on the internet, what you say gets broken up into little pieces and goes through all sorts of different airwaves. It arrives at the other end in pieces. It is not like a telephone call where you get the whole thing in one piece. As at the moment, nobody can see a way forward as to how you will successfully intercept that material and make it comprehensible to the receivers of it. If you are on the receiving end, you will have a fair idea what it is all about but if you are not you will not. It is a very technical topic and I would much rather it was answered by someone with much greater technical expertise than I have.
Q21 Nia Griffith: You mention in your annual report that communication service providers are strongly opposed to intercept being admissible in court. Can you tell us why that is and should their agreement be a precondition to relaxing the ban?
Sir Swinton Thomas: I visited all the major telephone companies and internet companies at least once a year and more often with some of them, as was necessary. There are two aspects. The companies themselves who are extremely co-operative in providing the material which is needed for the intercept are very concerned about their capacity and the way in which they go about dealing with these issues being made public. There is probably a commercial aspect to that which is difficult for me to deal with in public. I dare say that if you have a chairman of a company dealing in communications, he would say, "Quite frankly, we would prefer that our customers did not know that we were passing all your calls across to a government agency", which is a fairly natural response. A more important one is that they think - and I think they are right - that if there was a change in the law all the ways in which they go about providing material would be open to examination and cross-examination, which is something they do not want to happen. Members of the general public probably know very little about it. The second issue is this: whenever I go to the 10 or 12 major telephone companies that I do go to, I always go into the secure intercept room, where the highly trained technicians who deal with the warrant work and providing the intercept work in very secure conditions. They are always an impressive body of people. A lot of them are quite young. More than 50 per cent nearly always are women. The first question they ask - indeed, the first question I am always asked by the companies themselves when I visit - is, "Sir Swinton, what is the latest news on intercept as evidence?" I have given differing answers as the years have gone by because the government's approach has changed from time to time. They are super, very admirable people. These people who work in this are deeply alarmed at the prospect that they personally are going to have to go to court to give evidence about what they do. They say over and over again, "If that happens, we are going. I do not want a bomb under my house. I want to protect my family." They are genuinely frightened of having to do it. I am bound to say, having seen them and talked to them, I do not blame them. Again if you want an expert, Sir Christopher Bland, who is the chairman of BT in one of the previous inquiries was asked by the Prime Minister to go and see him to inform him as to the view taken by the CSPs on this issue. He did and he told him why they were completely opposed to it. I am told that that was considered to be a very important piece of material for the Prime Minister to have in the decision that was made. I do not know. He may be quite happy to come and talk to this Committee as well. If you have the experience that I have had of visiting them regularly, they really mind that people like Lord Lloyd and the Director express views and they say, "They never come anywhere near us. They never come and talk to us. Why don't they?" I cannot answer that but they do not. They feel it very deeply. There is that very strongly felt opposition in people who are enormously important to the whole process.
Q22 Nia Griffith: Has anybody else any comment to make about how those problems could be overcome?
Lord Lloyd of Berwick: Could I deal with an earlier point on finding a model whereby intercept could be used? It is said that it is still too difficult for us to find that. The question which always arises is: why is it that they have succeeded in finding a model in seven other common law countries: Australia, the United States - they are all set out in the back of the Justice report. In all those cases they found that a combination of PII and in some cases statutory backup to the PII has protected the sensitive way in which this information is obtained. On the service providers, what Sir Swinton said is extremely impressive but the letter which I received from them, which I referred to in my speech last week, made it quite clear that provided their staff were protected they had no objection in principle to intercept evidence being admitted. There is no doubt that their staff could be protected. That is indeed what happens day in, day out in court when evidence is given by an informant. I do not really see any difficulty in meeting that.
Sir Ken Macdonald: The experience abroad is that people involved in this sort of work are very rarely called to give evidence because there has to be a good reason for them to be called. In most cases it is very difficult to imagine what that reason would be. Secondly, we are very accustomed to calling witnesses who are in a sensitive position. Witnesses can give evidence under a variety of what we call "special measures" without their name being given out, from behind screens, by closed circuit television and so on. Of course, at the stage where we are, people confronting any change of this sort would be uneasy about it and prefer it not to happen. That is human nature but we have to ask ourselves how it is that every other common law country manages to do this and manages to maintain relationships with the communications service providers without any great difficulty. People do resist change and people are uneasy about change but if we simply always submit to that there will never be any change in anything.
Q23 Chairman: Presumably you understand their reservations?
Sir Ken Macdonald: Of course.
Q24 Chairman: Do you accept those reservations?
Sir Ken Macdonald: Of course. Who wants to have to go to court and give evidence in a criminal trial unless it is absolutely necessary? I am quite clear that people who found themselves in that position - I think there would be very few of them - would be completely protected.
Mr Murphy: I agree with the views of the Director in relation to the individuals in the CSPs. I am concerned about the people who work in the intercept agencies. One issue we have not discussed is language. In a previous life I was head of operations for the National Crime Squad and I would estimate that as much as 50 per cent of what we were listening to was not English. We had great difficulty in securing the services of interpreters in particular because there was a vetting process required for those individuals and some of them come from quite vulnerable minority communities. Whilst I understand what is being said in terms of special measures to protect witnesses, these people are far more likely to enter the evidence chain because of issues around interpretation of either what has been said in English or in terms of how that has been translated into another language. The issue with CSPs is true. There is far less likelihood that they will have to attend court. The same cannot be said for the people who are on the end of the telephone.
Q25 Chairman: Presumably the same protections can be worked through for translators and interpreters?
Mr Murphy: There are two issues. One is the difficulty of securing people in the first place and the worry about losing them if we expose them to court. Secondly, the absolute need to have mechanisms in place to protect them should we go to such a system.
Q26 Lord Plant of Highfield: If we move towards the disclosure of intercept evidence, should interceptions of private communications require prior judicial approval or should that approval continue to be given by the Home Secretary?
Lord Lloyd of Berwick: That, if I may say so, is a subject which is very dear to the heart of Professor J R Spencer, a professor of law at Selwyn College, Cambridge. His view is that one of the difficulties has been that the Secretary of State wants to hang on to the ability to grant warrants; whereas in most, but not all, other countries in law enforcement cases warrants are granted by judges. Certainly my view would be that we should move in that direction. I cannot see why it is necessary for the Secretary of State to retain these powers.
Sir Swinton Thomas: It is not just the Home Secretary. The Foreign Secretary does all the foreign ones and the Northern Ireland Secretary does all the Northern Ireland ones. This was much debated in 1985 with the first Act of Interception, IOCA. When RIPA came into force in 1990, Parliament came to the conclusion at the end of the debate that it the responsibility for issuing a warrant should stay with the Secretary of State. I think the basis was that it was practical and that the Secretary of State should take responsibility both politically and practically for what is a serious invasion of the privacy of the citizen. That was a thought out decision made by Parliament. From a practical point of view, which I suppose is what I am more concerned with, I think it is a very bad idea to put it in the hands of a judge. As things are at the moment, if you know that a bomb has gone on a train in Leeds and is on its way to King's Cross and you need information, in a matter of minutes you can get a warrant to intercept the communications of that suspected terrorist. Likewise with a serious crime, if a very large consignment of class A drugs has arrived at Dover and is on its way up to Manchester, the Secretary of State is always on duty, 24 hours a day. It is very often absolutely vital that you act with as much speed as you possibly can. That is what currently happens. You can get a warrant or a modification, which is equally important, straight away. Going to a judge would not permit that degree of elasticity. If it is done by a judge, the other side must have the right to be heard and you will not be able to acquire a judicial hearing at the sort of speed that papers can be put speedily in front of the Secretary of State. I would think we are much better maintaining what we have.
Q27 Chairman: Sir Ken looked a bit sceptical when you said that.
Sir Ken Macdonald: I did not mean to look sceptical. In fact, I was not sure that I was clear why the other side would have to be notified.
Q28 Chairman: That was the point I was going to put.
Sir Ken Macdonald: The other side is the person being attacked so it seems to me they would not be notified. I think there are arguments on both sides here. I have never disagreed with Professor Spencer before and I do not really want to do that now but I think there are arguments on both sides on this question. I do not have a set view, I am afraid.
Mr Murphy: I agree with that entirely. I think there are arguments on both sides. Sometimes there is an inevitable delay in the bureaucracy involved in getting to the Home Secretary but the department in the Home Office that deals with this and the interception agencies work very hard to overcome that. I think the system with the governance and oversight of Sir Swinton and his predecessor - I have been questioned quite closely by one of his predecessors previously when on an operation - works quite well. There are some advantages in having it before a judge but ACPO would not seek to influence the argument either way.
Lord Lloyd of Berwick: I agree that there are arguments both ways. My own preference would be that it is put to a judge. It would have to be a delegated judge. It would not be any old judge, if one might put it that way, and I do not believe there would be any great difficulty in getting that almost as quickly as with the Secretary of State.
Q29 Chairman: Presumably the argument is that if it can be done that quickly is the Secretary of State giving sufficient scrutiny to the request in the first place or is he acting as a cipher? Is the judge likely to look into this and be a little more satisfied as to the order?
Lord Lloyd of Berwick: I believe we are all right with the European Convention of Human Rights at the moment in having what we have. In America, for example, it has all moved towards judges and in most of the other Commonwealth countries it is judges. I can imagine circumstances in which it could be argued that it is not right for the Secretary of State to grant a warrant.
Q30 Nia Griffith: Mr Gargini, there have been concerns that sometimes counter-terrorism measures could have a disproportionate impact on minority communities and there is a danger that they could be alienated by such measures. Can you tell us what steps the police are taking to ensure that in the exercise of counter-terrorism measures there is not a disproportionate effect on particular communities and that there is not a counterproductive effect on those communities?
Commander Gargini: There are four things that we are currently focusing on but before I go into those four pieces of work I would like to say that we understand the interdependencies between the need to balance the security of all of our communities and the human rights of the individual and of particular groups. One of the first key points that we are trying to develop at the moment - this has been going since January of this year, 2007 - is a co-ordinated communication strategy. What we find at the moment is that we are sending messages at the time of a specific event or a critical incident, but between those critical incidents there is very little communication between law enforcement, the agencies and the communities that we are trying to protect. What we are doing is developing a series of key messages. Those key messages are going to be along the lines of: why is it that we are using certain policies? Why is it that the threat level is at a particular point? Indeed, why is it that the police service has a particular response to that threat level? It certainly is not about discussing any of the intelligence or the intelligence sources; it is about explaining activity and that is the key point. The second point is about consultation and understanding. In order to maintain and build on trust and confidence, we need to know exactly what our communities and our vulnerable communities want us to do. Those are the things that we are trying to do, to seek views and develop them. The third thing is about guidance and advice. That guidance is encapsulated in a practice advice document published in July 2006 which gives authorising officers and those people exercising the powers under the Terrorism Act 2000 clear guidance about what they can do, the way it should be authorised, the need for tact and sensitivity when those powers are used. The fourth and I think the most important thing from the perspective of this Committee is about the community impact assessment. What we encourage at chief officer level is for all counter-terrorism operations to be assessed in terms of the impact they would have against vulnerable communities. We are encouraging all forces to do that. One of my teams, the national community tension team, co-ordinates all of that work and we add value to it by looking at it from a national perspective. If an operation takes place in Greater Manchester or Birmingham, we can look at the communities in London and globally because I think if we do something here it may well have an impact internationally into source countries. Those are the four key initiatives that we are undertaking at the moment.
Q31 Nia Griffith: Would we be right in assuming that it is ACPO policy not to use racial profiling?
Commander Gargini: You are absolutely right. The ACPO position is that we do not advocate racial profiling. We feel that this is counterproductive in the efforts to make our communities safer. We feel it is divisive. We feel it will alienate the communities that we are trying to reach. We make it very clear in our practice advice that we would draw the attention of all officers to Police and Criminal Evidence Act, code A, to make sure that that was invoked. I would like to add something about intelligence here. The activity that we are implementing is based upon evaluating intelligence. It is not based upon a racial profile or a profile based on ethnicity. It might not always be that we know who the suspect is but what we try and do is look at the other factors involved. For instance, the location where the threat might be focused. That might well be a transport hub, a train station in the centre of London or an airport. We look at the ways that we can target that intelligence or narrow that intelligence down so that we can inform our staff and brief our staff effectively.
Q32 Nia Griffith: Do you feel then that that guidance is sufficient to make sure that officers are not involved in any sort of informal racial profiling?
Commander Gargini: I think there is always a danger of that, and we are very careful in the way that the practice advice is laid out. We deal with consultation in that practice advice, we deal with the community impact assessment, we deal with the application of section 44 under the Terrorism Act 2000, and we also deal with Schedule 7 stops and searches as well but most importantly, to answer your question, this is about bringing our staff effectively and appropriately. They are continuously reminded of the nature of the threat and the importance of not stereotyping people that may well be involved. So it is the view of ACPO, as I have said, that it is entirely dangerous to look at what has happened before. We must keep an open mind. People involved in this type of criminal activity will seek to change their methodology, and to actually fall back on what has happened and not keep an open mind for the future I think is extremely dangerous.
Lord Lloyd of Berwick: Could I just add something? I just have a correction, Mr Chairman, on this question of whether it should be a judge or the Secretary of State. It may be - I think I have said that increasingly countries are moving towards judges. The distinction is probably between evidential warrants, which are going to be used in court, and they are increasingly given by judges, but intelligence warrants, which I think are the ones which Sir Swinton was mostly concerned about, could and should be given still by the Secretary of State, and in that way one might get the best of both worlds.
Chairman: Thank you all for your evidence. It has been very helpful.
Witnesses: Mr Nick Blake QC, Mr Martin Chamberlain, Ms Judith Farbey and Mr Andy Nicol, QC gave evidence.
Q33 Chairman: We now move into the second session of the Committee's ongoing enquiry into counter terrorism policy and human rights. We are joined by four of the Special Advocates who are involved in terrorism cases. Welcome to you all. We know we cannot go into the specifics of individual cases and we accept that. Really, what this session is about is some of the general principles that are involved and some general understanding of proceedings work and concerns that you may have having to work within the system. Does anybody want to make an opening statement or shall we go straight on?
Ms Farbey: May I make one caveat on behalf of myself? I am a Special Advocate in the case of MB, which is going to the House of Lords on the issue of the role and function of the Special Advocate, therefore I will not be commenting on general issues of fairness of the procedure.
Q34 Chairman: Perhaps we could start off by asking Mr Blake first of all what do you consider your function to be as a Special Advocate?
Mr Blake: I think the function is to represent the interests of the person that you are seeking to promote the interests of in his or her absence in those proceedings, so it very much depends from case to case what that entails. First of all, you must decide is it in the person's interests for you to participate in the proceedings at all. Sometimes you may take the view that you know so little as to how he or she would respond that any question you may ask may be deleterious, in which case that is one issue. Secondly, you look at the way in which, if you do have some information as to how this person wants to explain their situation, you are best going to be able to do that. The rules suggest you do it in two parts. First of all, is there anything in the closed case which could be made open without endangering national security, so that person gets a little glimmer more light as to what the real issues are in the case but that is up against some certain iron laws with no balancing. That is very important. If there is a public interest against disclosure, that is the end of the debate. It is not the beginning of the debate; it is the end of it. Secondly, if that is out of the way, you then in those substantive proceedings may want to test propositions which are advanced against that person in closed. You may want to pursue the logic of a certain hypothesis which is being presented. You may want to demonstrate that there is other evidence, closed, exculpatory evidence, which might put a different picture upon the evidence but much of that, of course, is dependent upon you being given that material and then making a submission as to what should happen. I suspect that many of us would feel at the moment that our most important function is on the disclosure front of what, if anything, can go from closed to open, and also, what is not before the Commission as a whole which ought to be by way of further investigations, collateral investigations, exculpatory material and things which might tend to undermine the hypothesis of the case which is being presented against the person whose interests the representing - that is a bit of a mouthful but we cannot use the word "client" for obvious reasons - by one means or another. Sometimes when doing that function you are met with the argument "That is not the function of a Special Advocate."
Q35 Chairman: That was my next question: what are the differences between the Special Advocates and the Government as to what the role of the Special Advocates is or should be?
Mr Blake: A Special Advocate should do anything he or she thinks it is appropriate to do within the limits of their powers. You cannot do things which you are prevented from doing by statute or the rules but other than that, Special Advocates would take a broad view as to what they could to do. Whether they should do it or not is a very different matter but that is the judgement, rather than jurisdictional powers. I would not agree with many of the arguments that we have a very narrow function, which would, I think, diminish what could happen and what has happened in one or two cases which may have been of some benefit.
Q36 Chairman: So there is a difference between how you see you should operate and can operate and what the Government says you should and should not do?
Mr Blake: Certainly, that has been suggested in submissions. There has been no authoritative ruling of SIAC or indeed the High Court in the control order case. I think there might be some indication in a forthcoming judgement as to where the balance of the argument lies in the view of the judiciary but at the moment there is very little we can give back to you by way of decided authority on that question.
Q37 Earl of Onslow: You said two things which struck me. One, the public interest not to disclose meant that was the end of an argument. Is this in your view abused? In other words, do they say it is not in the public interest to disclose as a defence mechanism and I am just going to say it and secondly, you said your powers are limited by statute. Is there any way in which you feel your powers over-limited by statute?
Mr Blake: Can I give an example of the first, of an area which we have moved into which I think causes me concern and I know a number of my colleagues? Since the summer of 2006, with the cases going through SIAC of deportation with assurances, the Commission is no longer just looking at the national security case to deport. They are also looking at the safety on return to some of these countries that can be achieved without violation of our human rights obligations. That latter issue had historically always been a purely open issue. It is in asylum cases, where often the human rights record and what Her Majesty's Government thinks about the human rights record of various foreign governments is an open issue. There had also been cases, notably the Youssef case about the detention of Egyptian nationals who could not be deported to Egypt with assurances where a lot of relevant material about attempts made by the British Government to deport them with assurances was in the public domain before the trial judge. I think it is plain from open judgements that have been given since the summer that there have been debates in some of the cases that have arisen since then as to whether similar material, material of the sort that was in Youssef, is now a closed matter. Certainly, there are closed issues on safety on return and some concerns as to whether the public interest test - because this is not national security; this is about foreign relations and things which governments prefer not to have revealed about what is going on at that time, and whether those are really closed issues and whether there are no means by which the appellant's team can understand the context in which these assurances are being negotiated and debated and issues of concern without being excluded from that discussion, I think that is a relevant concern and a live issue in certain cases. As to the function of statute, there were debates in cases last summer as to whether the words "public interest" could be read as involving some balance, ie a strong case in disclosing what the last exchange of diplomatic letters from government A and the Foreign Office about safety on return should not be trumped by a general principle that generally diplomats prefer to do things in secret rather than things which might go before a court. If one can read into the statute some element of balance where proportionate and necessary, I think that would be considered to be more helpful to the process rather than an iron block. If you have a ton of evidence or a ton of reasons why there should be disclosure and you have a feather against, the feather beats the iron ton because the statute says nothing which transgresses the line is permitted and that is the point.
Q38 Chairman: Does anybody want to add anything to the general questions we are asking about the role of Special Advocates?
Mr Nicol: I would add something on the role of Special Advocates. 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. We are not like friends of the court, amici curiae; we are partisan. We partisan on the part of the person whose voice is otherwise not going to be heard in the proceedings and in relation to material which is otherwise going to be put before the Commission with nobody saying anything contrary to the Government's view.
Ms Farbey: I would elaborate on two points. The first is that I would regard it as always being in the controlled person's or appellant's interest to have matters put into open. I think openness is integral to fairness and it is not for me as a Special Advocate to judge what may or may not be of interest to an appellant or a controlled person when it is put in open. It is for me always to drive for openness. Secondly, I would also say that it is my function as a Special Advocate to ascertain from the conduct of the appellant and his lawyers what his interests are, and it is certainly not my function to step on his barrister's toes and to take points which his barristers could take but may choose not to take.
Mr Chamberlain: I would agree with that last remark, subject to this: that there have been suggestions sometimes made in submissions to SIAC that there should be a very strict demarcation line observed between open and closed, so that any point which is in open or relates to open evidence is a matter for the open advocate only and the Special Advocate is restricted to dealing with points which arise solely out of the closed evidence. My position is that that would be too inflexible and impractical an approach to adopt because, in the nature of things, one quite often has cases where an open point arises but one does not know the significance of it except in the context of the closed material. So even though in principle the open advocate could deal with it - it might even be a point of law; the open advocate has access to the same law books as we do, there is nothing secret there, but he or she does not know the significance of the point and why it needs to be pressed home. Therefore I think I would strongly resist any suggestion that we as Special Advocates are somehow limited because of a formalistic interpretation of the procedure rules which define our function to points which are solely closed points.
Q39 Chairman: Could I ask a more general, philosophical question? You have all had your various criticisms of the system. Andy has given us an explanation that he thinks it is important that you do the work for the reasons that you have given. If you were to refuse to be Special Advocates, what would happen then? Would the system simply fall apart or would somebody else in the end always step into your shoes if you suddenly decided you had had enough of this unfair system and you were not going to do it any more?
Mr Blake: I am sure that I and each one of us has asked the question whether we are doing more harm than good by staying in the system, and I think the fact that each of us continues to perform this function feels that point has not yet arisen. It might have arisen and it might still arise for me or others, but it has not yet arisen. I cannot say what would happen if everyone resigned en masse or indeed if the Bar Council were to say no member of the bar will perform this function. That would be a professional rule, and I think it is unlikely that that would be the case. You have seen what happened recently in Canada, suggesting that it is filling a gap. Philosophically, on the very broadest level, it is important to recognize how the system came about, which was to provide something in the field of national security deportation where there was previously nothing. Where it is adding something against purely arbitrary executive decision-making or decision-making which may be arbitrary because no one knows what its qualities are, that is a safeguard. If it goes beyond that and therefore reduces standards of fairness which either the statute or common law or human rights or Article 6 or anything else says a minimum requirement is that you must know the case against you, where that has been established, a Special Advocate cannot be used to water down. I think the Special Advocate can add something where there was nothing previously. That of course is the proper use of Special Advocates in criminal procedure, which is the PII procedure. It is not determining guilt or innocence; it is determining what is material that the judge ought to make available to the defence or stop the trial if the Crown does not want to do it. In an asylum case, of course, you never stop the deportation. It still goes ahead. That is the problem.
Q40 Chairman: Is the very fact of your assistance mission creep, as more things around this area start to be put into your sphere of responsibility. If you were not there and did not exist in the first place, if you knew where it was going to end up compared to where you started, would you still have taken the job on?
Mr Blake: I am very concerned about the extension of this role into other areas which it is manifestly unsuitable for. Let me make plain that a Special Advocate does not ensure a fair trial. That is absolutely impossible. Proceedings with a Special Advocate are not a fair trial so suggestions at one stage in 2002 that we might have criminal trials conducted in secret with Special Advocates is completely impossible, contrary, in my view, to the fundamental norm of fair trial values. There are then cases where people might want to use the system to deprive people of assets or property, possibly in the Parole Board context. That is particularly controversial, about future liberty, and I think those are extensions outside the area in which it was originally evolved. I view those extensions with very considerable concern. But you are still left with the problem of the deportation of people who did not have rights granted by statute or human rights doctrines or anything else, and is this a check against arbitrary detention or expulsion? It may be and indeed, the cost and the delay and expense of the system may diminish governments' appetites to the number of people they want to put through the system.
Mr Nicol: Can I add something? I would entirely endorse what Nick has said about the danger of Special Advocates becoming used in areas where in the past the opposing the appellant, defendant or litigant has been told everything that is put before the court. I was involved in a case a little while ago which concerned security vetting procedures for people who were doing certain kinds of jobs that required that vetting and who sometimes failed and, in the case of this particular litigant, was told very little at all about why he or she had failed to obtain that vetting. The employee then brought judicial review proceedings and the employee asked for a Special Advocate to be appointed in the course of those judicial review proceedings and to be told what the reasons were, and I happened to be the person who was asked to be that Special Advocate. The outcome of the litigation was the establishment of a whole new procedure for dealing with challenges to such refusals which incorporate something like a Special Advocate procedure and, just as was saying that the use of Special Advocates in deportation procedure has added something to what was there before, so that is a procedure which has added something to the rights of employees who fail vetting processes that was not there before.
Mr Chamberlain: I would just add this, that the fact that a Special Advocate accepts an appointment in a particular case does not indicate that that Special Advocate considers at the time of accepting appointment that he can advance at all, even by a miniscule amount, the interests of the appellant and that is why in some cases Special Advocates, having accepted appointment, have taken a decision to make no submissions, and I have been involved in cases where I have taken that decision. Sometimes it has not attracted great judicial sympathy, it has to be said, but the decision has to be taken.
Q41 Chairman: Why would you decide to do that?
Mr Chamberlain: Without going into the details of the case, of course, because you have to take a judgement as a Special Advocate, once you have seen the material that you are given, whether your making submissions in the light of the particular stance that the appellant is taking will advance the interests of that appellant or not and, particularly where an appellant is taking a stance that they are not going to participate in proceedings, the Special Advocate has to form a view as to whether it is in the interests of that appellant for him to play a part in those proceedings. I see the question "Can we do more harm than good or do we do more good than harm?" as a question that falls to be decided on the facts of every individual case that we are instructed on and accepting appointment does not absolve you of the duty to consider very carefully on each occasion whether making submissions will advance the interests of the appellant or not.
Q42 Chairman: Or your client's wishes in that particular case are not to be represented, not to make the submission.
Mr Chamberlain: I cannot go into the details of that case but certainly, what you perceive the appellant would want is obviously a very important factor that a Special Advocate has to bear in mind.
Ms Farbey: Like Mr Blake, I would be very concerned about the creeping effect of the statutory framework in both control order cases and in SIAC cases. In particular, if one takes the Special Advocate system which has been set up in one case under the Parole Board rules, it is very difficult reading those rules, I would say, to find a space for special advocacy. In that framework there are no procedure rules, there is no statutory framework and it may be the case - I do not know - that the specially appointed advocates in that case have chosen to behave as if they were special appointments in SIAC but there is not the same parliamentary scrutiny of the system and it is a very different matter.
Q43 Baroness Stern: You will remember that you gave evidence to the Constitutional Affairs Committee in 2005 that was looking at you, and three of you expressly disagreed with Lord Woolf's comment in M v Home Secretary that the case demonstrated that the use of Special Advocates "makes it possible to ensure those detained can achieve justice". It is now two years since that report. It appears there have been improvements to the operation of the Special Advocate system in the light of the report of the Constitutional Affairs Committee. Have there been improvements and does that remain your position? I suspect it does but perhaps you could put it on the record.
Mr Blake: I was Adviser to that Committee rather than giving evidence before it, so I do not think I am actually on the record on that particular quotation but it has to be said that two years on that is the only case of SIAC allowing an appeal, and it remains the only case. As you know, other proceedings have been taken in respect of that person. Certainly, there was some interest in adding support to the Special Advocates, who at the time of the CAC report had a very lonely job, ploughing an unsupported furrow, not really appreciated by appellants, who were concerned with that this was legitimising an unfair procedure and sometimes complaints that it was taking too long and cost too much money from the other side. I think the Special Advocates Support Unit thought it was a good idea to make some improvements but there is still a long way to go in terms of logistical support, in terms of the independent language experts, in terms of research expertise. I think I can give an example in a control order case which came up earlier this year of precisely how difficult it is to do this job without proper support. As you have already heard, one of our important jobs is to see what material that is relied upon in closed could be in open. There was a document that seemed to be highly sensitive, a document from a very senior Al Qaeda suspect to another very senior dangerous player, mentioning someone else's name - I will not mention the names but there it was. That was a closed document until a Security Service witness, who was giving evidence about it, explained that this document had been published by the Iraqi government on the internet a year previously and therefore it should never have been closed but of course, since it was published in Arabic and not many of us are Arabic linguists and able to do the research, none of us could make this point until we heard that. Once that point was made, the document became open and it became quite an important opportunity for the appellant to deal with some observations in it. That was an example of not having their language skills and internet skills to research that job. Much of our work on disclosure is seeing whether there is an open source for materials and that is still a very time-consuming and difficult task and I do not think we have got a great deal further along the line with that. I am sure others have other things to say about that topic.
Ms Farbey: Can I just pick up on our function as unearthing open sources? I and other Special Advocates spend a lot of time on the internet to try to search for open sources. It would be helpful if, where there are two sources, a closed source and an open source, the Secretary of State would rely on the open source. Just to give an example from my own practice, I spent quite a few hours carrying out internet research and found an open source for a particular fact. I was most excited about it and thought perhaps it would assist. The next day I received papers in another case where that same document had been disclosed by the Secretary of State as part of the case. One wonders in that case whether the left arm quite knew what the right arm was doing. If open sources are not put into the Secretary of State's evidence at an early stage, we have to unearth them through the disclosure procedure, which causes delay in getting them to the appellant and thus may cause prejudice in preparing their case.
Mr Chamberlain: Just to pick up on your question about the case of M and Lord Woolf's remarks in that case, I was the junior Special Advocate in M, led by Angus McCulloch, and I did not agree with the inference that he drew from the fact that M's case had succeeded then and I do not agree with it now, even under the new procedures. I do not think the fact that in one case under the 2001 Act it was possible for an appellant to succeed on the basis of submissions made by the Special Advocate shows anything at all about the efficacy of the system as a whole.
Mr Nicol: I did not give evidence to the Constitutional Affairs Committee that you referred to but I would join with what the other witnesses have had to say about our reaction to Lord Woolf's remarks.
Q44 Lord Plant of Highfield: I would like to ask a series of questions focusing on the issue of your relationship, or, in a sense, the lack of it, with the people whose interests you represent, because there is the prohibition contained in the procedure rules which prevents any communication between you, as Special Advocates, and the person concerned or their legal representatives about any matter connected with the proceedings as soon as the Special Advocate has seen the closed material. So, focusing on that point, perhaps I will ask all the questions together; it will probably be more efficient to do that and whoever feels moved to answer them can please go ahead. First of all, between you, could you provide one or two examples, which would obviously have to be hypothetical examples, of how the limitation on your communication with the person concerned or their legal representative after you have seen the closed material limits the effectiveness of your function? Can you explain to us why in practice Special Advocates do not make much use of the procedure rules, which do allow you to seek the High Court's permission to communicate with the person concerned or their legal representative? Our evidence suggests that there is little or no attempt to do that and it is an intriguing question for us as to why that is so. Thirdly, would you be better able to perform your function if you were able to communicate with the person whose interests you represent and their legal representative after you have seen the closed material? Finally, the Constitutional Affairs Committee and the Canadian Senate Committee have argued that if such communication were allowed, it would be possible to devise appropriate safeguards to ensure that sensitive national security information is kept secret. If you think that is possible, what do you think that would look like. I am sorry that is quite a lot but they are fairly integrated.
Mr Blake: Let me try to address those. The first question, the preclusion of communication frequently limits the essence of the function, because you may have no idea what the real case is until you have gone closed, and therefore there has been nothing provided to you by way of either prior statement, or prior meeting or conference with the person concerned, and it is only after you have gone closed that you want to talk about say country A in 2003 or what a person was doing in city B or something of that sort, which may at least be directing the mind to the kind of relevant material that you might need. That is extremely frustrating and it is counter-intuitive to the basic way that lawyers are used to doing their job. It used to be the basic rule, of course, of cross-examination that you should not ask a question you do not know the answer to but, of course, you never know what even the question is you would have wanted to ask until it is too late. As to why there is not much use made of the permission to consult, I think there is use of that for purely formal matters of communication about directions. Sometimes if a point of law has arisen which can be mentioned without damage to the public interest, you can get permission for that, and anything which we think the Committee or the Commission could give permission on is sometimes the subject of an application, but it is not used in any contentious issue for the very reason that it would not be approved if this meeting or this communication was to be anything to do with the substantive closed case, because the anxieties of those who are supplying the information and the nature of the information is that any form of communication after you go closed would inadvertently or otherwise - I think inadvertently is probably the principal cause of concern - alert the person whose interests you are representing to something about the case. In a very abstract way, one of the real problems that goes on in the system as a whole is that on one extreme the Security Services might be saying "Any information that the other person knows about what our case is is of use to them because they can work out what our coverage is or is not and the way we go about our business, therefore we are very reluctant for anything to go in open court. We have to give them some information but not much." It is in that context - and obviously, these are critical issues of importance - that Special Advocates have not made applications because they do not think there is the remotest prospect of success with the Committee granting permission to meet. Would we be better able to perform if we could meet under a more relaxed regime that would put, I think, enormous responsibilities upon the shoulders of Special Advocates not to inadvertently disclose matters? Yes, I think it would be an enormous advantage to be able to keep contact with people who wanted to communicate. Sometimes you know that the person whose interests you are representing probably has very little interest in communicating material that you can use, but that is not always the case, and indeed, there are cases where people are prepared to spend many hours talking and are very anxious to help you do your job on their behalf if they could be given some steer as to what it would be useful for them to do. Often it is difficult to know whether it is worthwhile for a person to get audits of bank accounts or businesses or whether that is a complete waste of time or money, or whether it would be a useful task, or to communicate, for example, yes, the Commission would be assisted if you explain about X business or X bank account - I am trying to talk very abstractly - would make the process a little bit more real. Would it be possible to do so with proper safeguards, as the Senate Committee in Canada suggest? I think in theory it would be. The difficult problem is how far you could engage in a conversation which directs someone's mind to a topic or an area without crossing the line that would give something away which might endanger the public interest or public security. That is a very difficult judgement for a Special Advocate to call upon to be made, and clearly at the moment the Security Services say they should not be asked to make it at all and therefore there should be no communication, so a brick wall and a hard line is better than any doubt. I think the safeguards would include the presence of someone from the Special Advocates Support Unit taking a full record, possibly even tape-recording these meetings, and it probably would include certain topics which might be more capable of being subject of discussion than others, and there would be certain dangers which would make communication impossible. In other areas it might be possible. I think that then looks upon experience, judgement and co-operation.
Mr Nicol: Can I pick up on something that Nick has said? It is a feature of this process that if you want to raise anything with the appellant, you have first to raise it with your litigation opponent, the Secretary of State's team. Sometimes we would feel inhibited about even drawing attention of our opponents to the fact that there are certain areas on which we would like to have assistance. That itself may be an inhibiting factor, quite apart from the gloomy view that we may form as to the prospects of the Commission granting the permission that we would seek.
Ms Farbey: Can I add a practical example on the limitations of our role? It goes back to finding open source evidence. We are then very often faced with the decision whether we serve the evidence on the Secretary of State and on SIAC, and whether we seek to have it put into the open case for the assistance of the appellant. That I find a very difficult position decision, one of the most difficult aspects of the job. I may well not fully understand the context of what I have found and I may not know whether it comes from a source which the appellant would find reliable and supportive for his case. I may have to take a precautionary approach. It may be better for me to keep the document to myself rather than to risk giving it to the Commission and to the Secretary of State and finding that it harms rather than helps the appellant's case, but then of course one must not be too precautionary. They are very fine judgements to make and they can be lonely and very difficult judgements.
Mr Chamberlain: Just on the question of why the procedure is not used more often, I agree strongly with Andrew Nichols' point and the main reason is the limitation placed on us that we cannot use raise a point except by going through the very person who is going to be making submissions against us. So just to take a completely hypothetical example, you have a case where the appellant's open evidence is entirely silent about some activity which the appellant may know is vaguely implicated in the case but you know as Special Advocate that it is central to the case, so you want to ask appellant in private or you would want to ask the appellant in private if you could, "You need to give us a more details of activity that you were involved in." Let us suppose that in response to that question the answer is that there are no further details; it is a gift of a submission to your opponent, who can then say to the tribunal "There are no details given by the appellant about this important issue." It is exactly the sort of question which one would want to ask in private, precisely because one does not know the answer to the question, and the requirement to go not only to the Security Service or to some appropriate agency who can tell you whether what you are about to ask is going to endanger national security but to the actual person who is appearing against you in the case that you are in is really a very strong constraint on using this power.
Q45 Lord Plant of Highfield: Just to be absolutely unambiguous about this, you as Special Advocates have no direct access to the High Court; it has to be with the permission of the Home Secretary's legal team. Is that right?
Mr Chamberlain: The rules require that any application made to SIAC for disclosure - someone is looking at the rules at the moment and will hopefully give me the particular rule but I am pretty confident that the rules require that that application which has to be made to SIAC is served on the Secretary of State and in practice that means served on the very legal team against you.
Q46 Chairman: Can I just explore one or two aspects of this "Alice in Wonderland" world or "Star Chamber" world in which you operate. How much of the case from the open part of the case is made available to the "client"? Is there any opportunity that they could work out from the open part of the case more or less the case they have to meet or is that just impossible?
Mr Chamberlain: It depends on the case. There are some cases where the majority of the evidence is in open and there are only a few supporting matters in closed, and there no doubt the appellant will be criticised if they have not explained some feature of the open evidence, and indeed, there are SIAC cases where they have been criticised, but then there are other cases where almost all, or indeed there are cases where all the material evidence is closed, there is nothing in open, and the difficulty is that when the appellant is given a short open statement, he has no idea whether this is one per cent of the evidence against him or 99 per cent. He simply has no way of knowing.
Q47 Chairman: He may not know the evidence, but does he know the gist of what is being said about him?
Mr Chamberlain: In some cases he does not know even the gist of what is being said in respect of 99 per cent of the case. Part of our role in trying to secure as much disclosure as possible for the appellant involves trying to suggest to the Secretary of State's side, to the Security Service, gists that might be acceptable. We are constantly trying to formulate gists of closed material which we think might enable the Secretary of State to make something open, perhaps in a slightly different form, concealing the source but at least making the thrust of the point open, and sometimes we are successful in small degree and sometimes completely unsuccessful.
Q48 Chairman: What strikes me about what you are telling us, and this is probably a question for Nick, going back to what you were saying earlier - on the one hand you are trusted to see all this "secret squirrel" stuff and there is no question about your right to see all this stuff in private, yet you are not trusted to use your professional judgement, and obviously you are senior QCs, as to what you could or could not disclose safely to your appellant client. Does that strike you as odd, that you are trusted to do one thing but not the other?
Mr Blake: Yes. I do recognize that there are cases where it would be very difficult to make that judgement, to initiate a conversation with the person whose interests you are representing after you have been fully briefed on a wide area of allegation in a closed session where to even mention, for example, the name of one of our provincial cities which is relevant to the case against them; it may be said to mention the city may put the person on to a series of activities which might derive from a sensitive source and therefore, in this game of bluff and counter-bluff, the argument will go that person, just by knowing the city which is relevant, can work out what it is, how they came to know the case against them. That is very difficult. I am not, in a sense, surprised that there are these limits although I think we are talking about refining and fine-tuning a system which has now been running for some years, and I think there is in principle plenty of opportunity where that could be done and greater trust ought to result in greater ability to penetrate some of those questions. I do not for a moment pretend to ignore the real difficulties in going down that road but it also may be necessary to strike a note of caution for this Committee as to what it is that the Special Advocate will have seen. It is by no means everything.
Q49 Chairman: So you still even under this system do not get all the evidence anyway?
Mr Blake: To dignify it as "evidence" may itself be an enormous leap. Material, shall we say. No.
Chairman: I would have thought that most of us understood the way the system operates is that you get to see everything that there was so that you can make the best of it, but that is not the case.
Q50 Lord Plant of Highfield: Do you actually know that there is more that you are not getting or are you assuming that there is more that you are not getting?
Mr Blake: We discussed outside how to answer that question. I think it is very important to stress that what I am about to say is a very abstract answer based upon your assumptions rather than upon my experience, if I can preface it in that way.
Q51 Chairman: We can ask the question but you could not possibly comment?
Mr Blake: It would certainly be wrong for the Committee to assume that we are acting on all that we could plausibly know or believe to exist and in certain areas the barriers to what is even available for investigation come down earlier than in other areas. Obviously, you know the kinds of sensitive material from your background papers because that is an open question, the kind of sensitive sources which the Security Services rely on in these cases. Classes are of that are particularly sensitive and we do not get anywhere near certain topics.
Q52 Earl of Onslow: Why did you have to discuss outside how to answer that question? Were you frightened that somebody was going to finger your collar? I am quite disturbed that somebody should actually have to discuss their opinion when they are acting as servants of the state to a Parliamentary Committee.
Mr Blake: We are all here because we would like to assist your Committee, and we are all here to give as much assistance as we are able to, but equally, I do not feel restrained by pending cases or anything of that sort, though that is a factor, but we are, of course, having taken the role and seen the material, prevented from making any open comment on things that we have seen in closed, and sometimes to give an answer even in the most general form might be construed by some as transgressing that line. We are therefore very careful not to be seen to be doing that.
Q53 Chairman: I should explain to the public at large that we did have an exchange of correspondence to circumscribe the basis on which we would question you to general terms.
Mr Nicol: Before we move on, can I just add to what Nick has said? We see everything that goes to the Commission and on which the Commission bases its decisions. Part of our role is to request of the Secretary of State information which we think would assist us in discharging our functions of advancing the interests of the appellant, and that will often produce responses, and often produce responses which, again, is of material that the public generally would never see, but not always.
Q54 Chairman: So your concern is that the exculpatory evidence is not being disclosed to you in all cases where it should be? This is perhaps going back to some of the discussions we had in the earlier session.
Mr Nicol: I am under the same inhibitions as my colleagues about expanding too much on what it is we do not get but there are materials that we would like to have seen but do not.
Q55 Earl of Onslow: That question the Chairman has asked is a general question, is it not, and you are even hesitant to answer that question? What I think we are trying to get out, and I am finding I am trying to catch up the whole time, I am finding that it is quite difficult to follow this very complicated procedure. I have an instinctive dislike of closed justice and people being locked up without contact with the outside world and their peers, without due process, and I feel that you feel that too.
Mr Nicol: Certainly.
Earl of Onslow: But I am also feeling that you are feeling inhibited in what you can say, even in a generalist way. Am I getting this wrong?
Baroness Stern: No, not at all.
Earl of Onslow: I am struggling.
Chairman: I think that is a comment rather than a question.
Q56 Earl of Onslow: It is a comment but one is trying to draw something out as well.
Mr Chamberlain: Can I add something on that which might help to explain the position that we feel, the limitations that we feel we are under even in giving evidence to this Committee and that is that we are under, as we have said, certain statutory obligations not to disclose closed matters and closed matter sometimes go a bit beyond the facts of individual cases. They may go to the types of process.
Earl of Onslow: About weapons of mass destruction in Iraq?
Q57 Chairman: He cannot possibly comment on that.
Mr Chamberlain: I am certainly able to say I know nothing at all about that, and neither does anyone else apparently, but the matters about which we cannot comment do go a bit beyond the facts of individual cases, because they go to the way in which certain material is dealt with by, for example, the Security Service and other agencies, and that itself informs our approach to some of the general questions that you have been asking. I think that is why, certainly for my part, I would feel somewhat reticent about answering even some of the general questions in a wholly open way. It is not particularly because I feel my collar is being felt or that anyone is going to come after me; it is because we have taken on certain responsibilities of confidentiality and we want to make sure that we comply with them.
Chairman: That is in accordance with the agreement we have in writing with you so I think it is appropriate that we should not press you further on that issue.
Dr Harris: I just want to pick up on something you said earlier. Basically, what you said was that you only know what you do not know - without getting too Rumsfeldian in this, you only know or you only find out what you have not been told by asking around what might be missing. My question was, what evidence do you have that you are not being given some of the stuff that might be useful and could be more useful if procedures were different, and your answer is because you have asked in cases or you know that people have asked in cases and have been given something which was not given before. Is there any way of knowing what you are not being given?
Chairman: I think I have to step in here and protect the witnesses because I do not think they can go further down that road. We are getting into the unknowns and unknown unknowns. I think that is going beyond what we agreed.
Dr Harris: I am just asking am I right in assuming - I do not think this does tread on the issue in your letter - that if you do not ask, you would never know what was out there and it is only by asking that you may find something? My question is, can you ever be certain when you ask that it is handed over? How confident can you be?
Chairman: If the witnesses are happy with the question, fine but we will not press them if not.
Q58 Dr Harris: I think they are capable of determining.
Mr Blake: I am certainly confident that what we have said to you, that it would be impossible to know that not all the material that we consider ought to be put before the Committee has been put before the Committee, is a correct proposition. In terms of where you are generally seeking to know what the boundaries of material may be, then asking and either getting an answer or not getting an answer, or being told one of a variety, is one way that informs the experience which leads to the information that you have been given that there may be a number of ways of reaching a conclusion.
Lord Judd: You are really conveying to this Committee that you think the executive sometimes pushes it too far.
Earl of Onslow: That is the impression I have got.
Chairman: Shall we leave that question hanging in the air?
Q59 Dr Harris: I am not sure if the transcript captures a nod from Mr Blake. I had just a small question on the answer you gave to Lord Plant earlier, which was helpful, which is this question of what is open and what is closed. The Secretary of State decides what is open and what is closed and there are, I guess, three potential judgements you can make on average. One is that the Secretary of State is very generous and errs on the side of making it open; is particularly pernickety and errs on the side of being highly precautionary, of not allowing it to be open; or they get it just right; or you do not know, you cannot make a judgement. That is four. I was wondering whether you can give an impression as to where you think the balance is or do you simply not know?
Ms Farbey: I think it has to be looked at on a case-by-case basis.
Mr Nicol: It is not as clear-cut as saying that we accept or reject. It is not a yes/no proposition when we are looking at the material that is supplied to us as the secret material. It can be shaded. You can argue for part of a document to be made open. Sometimes you can argue for a sentence, sometimes for a part of the sentence to be made open. Sometimes, as Martin was saying earlier, even if the raw material itself, all of it, has to remain closed, a gist of what the document says can be made open.
Q60 Dr Harris: I understand that. My question is are they helpful, unhelpful or do you not know?
Mr Nicol: The process that takes place is that initially it is done by discussion between us as Special Advocates and the representative of the Secretary of State, and that negotiation or discussion will be informed by both sides' knowledge of how the Commission will react if agreement cannot be reached and the matter is taken to the Commission for resolution, and as we all gather experience as to how the Commission behaves, then we can bring that greater knowledge to bear. The Commission has a task of seeing that nothing is disclosed that would harm national security or the public interest, and it is zealous in performing that function.
Mr Chamberlain: I would be happy to answer at least adopting one of your formulations. You had four categories. I think the first two categories were helpful and unhelpful but another way you put it - and I am not sure I would want to put it in those terms because I do not think those would be correct terms to use at all. If one is asking the question does the Secretary of State's side or the Security Service adopt a precautionary approach, I think the answer is in my experience, definitely, so that if there is even the slightest possibility that what is going to be disclosed will endanger national security, then that tends to be an objection taken.
Q61 Lord Judd: Is there a dividing line between precautionary and zealous?
Mr Chamberlain: I am not sure I have enough information to say in any particular case whether the precautionary approach amounts to zealotry.
Q62 Dr Harris: Or is reasonable.
Mr Chamberlain: Certainly, if there is any erring to be done, it is on the side of caution, and that is my experience.
Q63 Chairman: Can we move on a bit? Is there any obligation on the Secretary of State to supply a statement setting out the gist of the closed material?
Mr Blake: No. If the closed material is considered to be properly closed because of the way it comes, then, although we have invented a new word, "gisting", as part of our activity in the English language, gisting, which I think we went into with some hope that this might produce some clarity, itself is prevented if by giving a gist you can damage national security the same way. So if the case against X is that he does Y activity and if you just gist Y activity into one line but the case is if he knows what the case is he has to meet he may be able to work out how the Security Services know what the case he has to meet is, and that is going to damage national security anyway so a gist is out as well. So we do have sometimes great arguments, and I have certainly spent a day arguing about two words.
Q64 Chairman: It is a real Star Chamber sometimes.
Mr Blake: It is difficult.
Q65 Earl of Onslow: These procedures themselves are closed, are they not?
Mr Blake: Yes.
Q66 Earl of Onslow: Is somebody terrified that a judge in his full bottom wig is going to go tootling off to Tora Bora mountains and whisper into the ear of Mohammed El somebody or other that there is a security source which may or may not be accurate?
Mr Blake: There is a tension. It is sometimes worth looking at procedures before 9/11 and after 9/11. The Special Advocate system has been in operation from 1998 and the first case which case which came to the House of Lords, the Rehman case, was dealt with before the particular sensitivities of post-9/11 happened. A belated answer to an earlier question: the precautionary approach, and sometimes increasingly precautionary rather than decreasingly precautionary, may have happened by comparing before and after 2001 procedures. One of the things that could be done is precisely to have the appellant's own legal team party to certain classes of information but not passing it on to the outside world and conceivably, if it related to, for example, safety on return issues, not passing it on with the appellant's consent to the appellant, i.e. the appellant can agree his legal team can be party to the information that they would not pass on. We have seen that being used in Canada in the Supreme Court judgment. It is no secret to say that a submission was made to the Commission that a similar system could be used in this country by interpreting the rules, and that submission was rejected in an open judgement, so this is not betraying any secret judgement. That may be going on to appeal - I do not know - but we seem to have moved into the black or white and all forms of shades of grey are considered to be inconsistent with the regime that Parliament has approved.
Q67 Chairman: Can I go back to something that Judith was saying earlier on about the Google search to dig up the evidence? How often is it that you can turn stuff up basically from an open source hat is available on the internet and it turns out that the Secretary of State is saying it is closed?
Mr Blake: There is quite a good example of that. I do not know whether the Committee have seen the recent judgement of Mr Justice Beatson in the case of E. He quashed the control order in E's case for two reasons. One, because, like the other cases, it was thought to be deprivation rather than a limitation of liberty. The second is because he considered that there was a failure to make open material about the prosecution of someone else, which was available from the Special Advocates doing some Googling on an open source. It had been a closed issue and he thought that the failure to consider that material undermined the decision to continue a control order as opposed to using other techniques. That was a good example of something which was relevant, about events going on in another country, where a prosecution revealed information which the Special Advocates had been able to discover through, no doubt, a long and tortuous process.
Ms Farbey: In every case in which I have appeared as a Special Advocate I have found something on Google.
Q68 Chairman: I would make the assumption that you do not speak Arabic.
Ms Farbey: That is a very fair assumption; that is very inhibiting.
Q69 Chairman: Presumably your chambers could not help you, could they?
Ms Farbey: No. We do have access to the services of a Foreign Office translator sometimes.
Q70 Chairman: Sometimes, but presumably, they are not available to do hours and hours of internet searching, basically trawling on a fishing expedition?
Ms Farbey: No, it does not take much Googling to come across an Arabic source and then one is in effect at a dead end.
Q71 Chairman: Is there any way in which that could be resolved?
Ms Farbey: No.
Mr Nicol: We could in principle have a greater quantity of access to Arabic speakers. Because of the nature of the searching that we are doing, it would have to be somebody who is security cleared to the same level as we are, and no doubt you will be told that those are in heavy demand, but that could be done. It is important, because part of the reason that one is doing this Google searching is to demonstrate that the material that we are being shown as secret is available to those who matter, and those who matter frequently are those who are from Arabic speaking communities. So many cases, in many ways, the fact that it is available on the internet in Arabic is more significant than the fact that it is available in English.
Q72 Baroness Stern: You will know that it recently emerged that the Government was relying on directly conflicting evidence in two separate cases because it was one of you that found it out and was acting in both cases. In response to this discovery, the Government I think said this was an isolated incident in which its quality control systems had broken down and that it could not happen again. Are you able to tell us whether you agree with that assessment or in your view, is it possible that this is symptomatic of a more widespread problem?
Mr Nicol: I was the Special Advocate in those two cases. The short answer is we have no idea. We were able to demonstrate in that case that in one of the two cases the proposition was being put that X is true and in the second of the cases, which I happened to come across because of the coincidence that I was acting as Special Advocate in both cases, it was being said that X is not true. The Commission was very disturbed that conflicting propositions were being put into appeals and had only been stumbled upon by accident.
Q73 Chairman: That was both in closed material?
Mr Nicol: Yes. Whether that is more common or is isolated I simply cannot answer.
Q74 Chairman: I do not know if you can answer this question but were the same people involved in preparing the material? Is that going too far?
Mr Nicol: I think I would just have to refer you to the open judgement, which gives as much as I could say.
Earl of Onslow: Again, this is deeply deeply disturbing that you cannot tell a Committee of Parliament that something which is a cock-up of monumental proportions, if it is only a cock-up, or dishonesty of disgusting proportions, because it can only be one of those two things, and you cannot tell us any more than you can because you are bound by---
Chairman: And our agreement as well.
Earl of Onslow: Okay.
Q75 Mark Tami: Moving to access to independent expertise - and we have touched on a number of these areas - to what extent are you able to go behind the closed material which is used by the Secretary of State? Do you have enough assistance to enable you to assess how important that information is, or indeed how reliable?
Mr Blake: Once you are closed, you are only able to use what you have been given in closed to assess the reliability of what you have before you. I think from earlier answers that have been given, we are aware that there may be more information available in certain cases than is being given to us as a tool to assess reliability, and that is a concern. 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. That perhaps is a better description of the nature of the process at certain times because of the combination of the standard of proof, the process of how the evidence is gathered, the test to be met, the restraints upon disclosure, and the issues which cause concern if one investigates matters of those sorts. In areas of pure judgement, opinion evidence, is group A linked to international terrorism or something of that sort, again, one necessarily cannot call independent evidence and the Special Advocate does not call evidence. One may or may not test it if it is there. Sometimes the basis for independent evaluation will appear to be lacking. Of course, one can make that point but the tribunal is not ultimately saying, "We prefer X over Y." It is saying "Is there a reasonable case?" and that is quite a difficult task.
Q76 Mark Tami: So when the Security Services say that a particular disclosure would harm national security, are you in a position to challenge that?
Mr Blake: No. You can say it does not, because you can gist it in a certain way but we have made submissions and the Commission is likely and will defer to what view the Security Services take of the requirement for national security. It is fairly obvious that there are three or four main categories and if material might damage, for example, foreign relations or matters that sort, it falls into the category. It is not up to us to say, "That does not seem to us to affect national security." It is simply a question of whether it does have the effect or not.
Q77 Mark Tami: Do you think there has been any progress towards enabling Special Advocates to call evidence from security cleared experts?
Mr Nicol: Yes, the point has been discussed and we have raised it as Special Advocates with the appropriate authorities. Nothing further has come forward in terms of response. There are real difficulties, which are not to be dismissed as just trying to brush us off. One is that, if it is to be of any use, it needs to have somebody who is of expertise, who has inside knowledge and which is recent. There is a very small pool of people who could come within that category, and the pool shrinks very much more when you look for some element of independence for the expert rather than simply somebody who is going to confirm the line which is being put forward on the Secretary of State's side.
Q78 Mark Tami: So how would you see that working in practice?
Mr Nicol: I do not have an answer to offer to you to that question, so we struggle on as best we can without the assistance of some outside help. It is possible, I suppose, although I do not know the detail of the response that would be given to this, to try and find somebody who has been in the Security Service or one of the intelligence services but has recently, say, retired. At least for a limited period after their retirement they would have the characteristics that I have just described, although even in that case there might be an overhanging question as to whether their independence would be sufficient.
Q79 Lord Judd: I am very stuck at the number of occasions you have said, "We, as Special Advocates, have..." I want to be quite clear in my own mind how far we are listening to four Special Advocates who have a particular view of the task in hand or how far your view is representative of the whole body of Special Advocates.
Mr Nicol: I think we are appearing in front of you as four individuals. We do not have any mandate, as it were, to speak for all of our colleagues. That is the formal position. We are certainly not here in a formal sense as representatives of all the Special Advocates but one of the things that the Special Advocates Support Office within the Treasury Solicitor's Department has been able to do is to bring us together, or at least provide the opportunity for us to get together from time to time. Speaking personally, I think that the views that we have expressed would be in accordance with what our other colleagues would think. I do not think in that sense that you are hearing four aberrant views and that there is out there a body of Special Advocate opinion that is vastly different.
Q80 Chairman: How many of you are there altogether, or is that a secret?
Mr Nicol: It is not a secret.
Mr Blake: It is growing because the system has become much more in demand than was contemplated at the time. I would think we must now be 40.
Ms Farbey: 40 to 50.
Mr Chamberlain: But the views that you are hearing, which are probably broadly in line with those of those who attend the meetings that we go to, are in line with the views of those who have already seen closed material, which is not by any means all of the 40. We have not had any contact with those who have never seen closed material yet.
Q81 Lord Judd: You have talked about the impossibility of the Special Advocates challenging rulings. Do you have any concerns about how far SIAC and the High Court in control order proceedings are themselves able to question an assertion by the Security Services that something would harm national security?
Mr Blake: I think there have been more submissions that something would not harm national security than there have been rulings in favour of Special Advocates. Sometimes one is over-optimistic in submissions; sometimes one does not necessarily feel that. It is equally difficult for a judge, not particularly trained in these areas until you have taken up this role - and High Court judges now have to do control orders without any prior understanding of the particular system - to take a different view from the Security Service, with possibly significant results. It is quite a high burden to put on anyone. But you may have already had a flavour of some of our responses, perhaps mine personally, as an individual, that there seems to be sometimes...
Q82 Lord Judd: Too much deference?
Mr Blake: A surprise that we have not been able to sort out one or two issues in a better way than we have.
Q83 Lord Judd: That relates to the whole issue of the standard of proof that is required.
Mr Blake: Yes.
Q84 Lord Judd: Your anxieties, I would suspect, spill over into that area as well.
Mr Blake: Yes. This is the problem. When 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. Some of them may not be able to make that complaint credibly, some may be. Often, in too many cases, important parts of the case, or indeed the whole case in a few, is really not disclosed in a gist at all. Those frustrations are the product of all the features of the system with which I am sure the Committee will be well briefed. I do not see why, if the system is designed to permit the Secretary of State's team to put material which would not be admissible in evidence generally because it is second or third or fourth-hand, whatever it may be, and it may even be speculative or opinion evidence or matters that sort, but if you can put all that in, why the system cannot be a little more robust in asking the question of SIAC "Is it more probable than not that X either has done something which is a danger or will probably do something which is going to constitute a danger?" I think we tend to know ultimately what the dangers may be involved in this area, although even that is the subject of some debate in terms of foreign relations but, more probable than not would be a somewhat more robust test that would require a case to be put rather than a plausible hypothesis.
Q85 Lord Judd: All this means that the public should be left in absolutely no doubt that what is happening - and I think every member of this Committee will have been incredibly impressed by the sense of responsibility the four of you have in an impossible situation - has absolutely nothing to do with the traditions of adversarial justice as we have come to understand them in the British legal system.
Mr Blake: I think that is right.
Q86 Lord Judd: Then could I just ask you one more question, and that is, you have referred to the fact that you have seen the closed material. Having seen a great deal of closed material, relied on by the Secretary of State, is it possible - and we understand the rules of the game -for you to comment in a very general way on whether relaxing the ban on the admissibility of intercept would enable more prosecutions of terrorist suspects to be brought?
Mr Nicol: One of the stages that the Secretary of State goes through in these appeals is to provide the appellant with an open statement and open evidence, coupled with a statement, an open statement, of why the appellant cannot get more. That open statement will rehearse in general terms the type of material which is going to be in closed - not descending to the detail, not saying in your particular case it has got all of these categories but these are the types of material which cannot be disclosed to you and why. One of the categories is intercept material. If intercept material could be used in prosecutions, then that would allow the state authorities generally, to try and use an expression that encompasses both the Secretary of State and the prosecution authorities, to deal with cases by that route rather than through the SIAC route. Certainly, that would be true in terms of control orders. It is a little bit more complicated in terms of deportation, where, even if prosecution was available, the Secretary of State might say that the preferred option would be to deport. Certainly, in choosing a control order, the Secretary of State has formally to go through the process of deciding that a prosecution is not possible, and, at least in some cases, if intercept evidence could be adduced as part of the prosecution case, that test could not be satisfied and the matter could be dealt with much more satisfactorily in the ordinary adversarial way in a prosecution context in a criminal court.
Q87 Baroness Stern: We have already touched on this but let us just see if there is something more to be said about it. Special Advocates started, as I understand it, in the context of deportation on grounds of national security, and it is now being extended, I hear, as far as the Parole Board. There is also extension of the use of closed material - we have already discussed this - on the issue of safety on return. Do you have any concerns about these extensions or anything else you would like to say that you have not already said about the way this approach is spreading?
Mr Blake: I think it is probably quite instructive to look at Lord Woolf's comments in the case of Roberts v Parole Board, because he was the swing vote in a contested three-two decision. As I read his judgement in that case, he was saying we cannot say at this stage that a specially appointed advocate or something similar in the Parole Board might not benefit the interests of fairness, but he seemed to conclude that the interests of fairness was the bottom line and if it could not be met then you could not use the system. I am not too sure that that approach is the approach that is being used or contemplated in these extensions and it may well be that the test is, if there is a need to keep things closed, then as fair as possible is fair. I do not think as fair as possible does mean fair.
Chairman: Thank you all very much for your evidence this evening. It has been a fascinating session. We have gone quite a bit over time. Is there anything any of you want to add that we have not covered? Thank you all very much.