4 Secret evidence|
Secret evidence and control orders
54. In our recent report on the annual renewal of
the control orders regime, we concluded that the use of secret
evidence and special advocates in the control order regime, as
that regime is currently designed in law and operated in practice,
could not be made to operate in a way which is compatible with
the requirements of basic fairness inherent in both the common
law and Article 6 ECHR.
We reached that conclusion in light of the decision of the Grand
Chamber of the European Court of Human Rights in A v UK,
that the UK violated the right to have the lawfulness of detention
decided by a proper court, and the unanimous decision of the House
of Lords in AF, that "a trial procedure can never
be considered fair if a party to it is kept in ignorance of the
case against them".
The growth in the use of secret
55. As JUSTICE has pointed out in its report, Secret
use of secret evidence in UK courts has grown dramatically in
the past ten years. It can now be used in a wide range of cases
including deportation hearings, control order proceedings, parole
board cases, asset-freezing applications, employment tribunals,
and even claims for damages. We note that in Binyam Mohamed's
and others' claim for compensation the High Court has held that
special advocates and secret evidence may be used for the first
time in a civil action for damages.
In July 2009 the Counter-Terrorism Minister, the Rt Hon David
Hanson MP, took part in an on-line debate in The Guardian On-Line
about secret evidence.
Responding to two commentators who argued that the use of secret
evidence in a growing number of contexts is increasingly resulting
in unfair trials and undermining the UK's tradition of open justice,
If you believe some commentators, you might think
the government had discarded our age-old freedoms and set up a
process of secret courts that operated outside our legal traditions
and risked our fundamental civil liberties. The reality is far
from this assertion.
56. He went on to assert that secret evidence is
necessary in order to protect the public from terrorism, but,
apart from a reference to the fact that the system "takes
account of judgments from the European Court of Human Rights",
he did not address the implications of the Strasbourg and House
of Lords judgments for the widespread and growing use of secret
evidence. In view of his robust defence of the use of secret evidence,
we asked the Minister in oral evidence how those unanimous judgments
could be explained if the Government had not put civil liberties
57. The Minister responded purely in terms of how
the Government had responded to those judgments in relation to
control orders, that is, by reviewing the cases of the individuals
currently subject to control orders and deciding whether or not
to disclose further material or to drop the orders. He did not
mention the use of secret evidence or special advocates in other
contexts, other than to assert that he believed that the Government
had considered the implications of the judgment of the European
Court of Human Rights in A v UK for all other contexts
in which special advocates and secret evidence are used.
He agreed to provide a note to confirm this. Because we were not
at all confident that the Government had carried out a thoroughgoing
review of the implications of the A v UK judgment for the
widespread use of secret evidence, we wrote following the evidence
session, asking for a comprehensive schedule of the different
contexts in which secret evidence and special advocates are used,
and, in relation to each, an explanation of the changes, if any,
the Government has decided are necessary in the light of the Strasbourg
and House of Lords judgments.
58. The Government replied that it was difficult
to provide a comprehensive list of all the contexts in which closed
material (as it prefers to call secret evidence) and special advocates
are used, because in addition to the contexts in which the use
of special advocates is provided for by legislation, the courts
have an inherent jurisdiction to request that the relevant law
officer consider appointing special advocates if they should become
necessary in a particular case where there is no such express
the Government provided a list of 21 different contexts in which
it was "aware" that special advocates have been or may
be used. In subsequent written answers to questions asked by our
Chair, the Solicitor General confirmed that special advocates
had been used in 14 of the 21 contexts identified in the Government's
response to our inquiry.
However, in a further written answer she declined to say in how
many cases in each of these contexts special advocates were used,
on the basis that this information is not recorded centrally and
could only be obtained at disproportionate cost.
The implications of recent court
59. Significantly, however, the Government "does
not consider that there is automatic read across of the judgment
[in AF] to all other proceedings involving the use of closed
material and special advocates."
Although it was considering whether changes to the Parole Board's
procedures are needed to comply with the principle that fairness
requires a minimum amount of disclosure, in relation to all other
contexts the Government takes the view that "it will generally
be for the courts to consider the applicability of the principle
to such proceedings."
60. We asked the special advocates who recently gave
evidence to us in relation to control orders whether in their
view the decision in AF has implications for the use of
secret evidence and the role of special advocates in other types
of cases. They clearly thought it did have such implications.
The Government argued that it did not apply to bail hearings before
the Special Immigration Appeals Commission, but that argument
was rejected by the court.
The Government also argues that the case does not apply to deportation
proceedings in SIAC, on the grounds that, as it has previously
argued successfully, Article 6 does not apply to such proceedings.
The Government has also, so far, lost the argument that AF
does not apply to so-called "light touch control orders".
Whether the principle in AF applies in the context of employment
tribunal proceedings is currently being litigated.
61. In AF, the Government sought to argue
that it is not unfair to keep secret even the gist of the allegations
against someone. It is now clear that the Government has lost
that argument. The question is, how wide is the basis of the Court's
decision. In our view, the terms in which the Government's argument
was rejected are not specific to the control order regime, but
may well be relevant to other contexts in which special advocates
are used. Many of these uses of secret evidence are controversial.
When the special advocates gave evidence to us in 2007 they expressed
their concern about the extension of special advocates into other
areas for which they are manifestly unsuitable.
In their view, special advocates provided a safeguard where they
were adding some protection against otherwise purely arbitrary
decision-making, but they should not be used to reduce standards
of fairness where the common law, or statute, or human rights
law, or Article 6 say that it is a minimum requirement that you
must know the case against you.
62. The Government's response to the A
and AF judgments suggest that it considers itself free
to press on with the use of secret evidence and special advocates
in the other contexts in which they are used, without pausing
to take stock of the wider implications of these significant rulings.
Although the Government says that it is considering whether changes
to the Parole Board's procedures are needed, we have not seen
any evidence to suggest that the Government has in fact considered
the implications of the judgment of the European Court of Human
Rights in A v UK for all the other contexts in which special
advocates and secret evidence are used. We recommend that the
Government urgently conduct a comprehensive review of the use
of secret evidence and special advocates, in all contexts in which
they are used, in light of the judgments of the European Court
of Human Rights and the House of Lords, to ascertain how often
they are used and whether their use is compatible with the minimum
requirements of the right to a fair hearing as interpreted in
those judgments, and to report to Parliament on the outcome of
Keeping law accessible
63. The special advocates also drew to our attention
another difficulty which has arisen as a result of the growing
use of secret evidence: the extent to which law reporting is being
impeded by closed hearings, closed arguments and closed judgments.
Our Chair, in a written question, asked the Minister whether the
restrictions on the law reporting of control order judgements
enable counsel and courts to follow precedent effectively. The
Minister replied that "where sensitive intelligence material
is used in control order proceedings, a closed judgment will normally
be handed down by the court. These judgments cannot be made publicly
available for public interest reasons. An accompanying open judgment
will usually contain the court's findings on legal arguments of
principle and is publicly available.
There are working practices which allow for judges and the special
advocates appointed to act in the interests of the controlled
person to access closed judgments in other cases where appropriate."
64. We are not satisfied that the Minister's answer
meets the special advocates' concerns about the difficulty of
distilling the relevant principles from closed judgments, or about
the necessary accessibility of the law. We recommend that the
Government include arrangements for law reporting in the review
of the use of secret evidence that we have recommended above.
35 Report on 2010 Control Orders Renewal, above n.
3, at paras 47-98. Back
Secret Evidence, JUSTICE, June 2009 Back
Al Rawi and others v The Security Service and others 
EWHC 2959.Judgment is pending from the Court of Appeal. Back
"The case for secret evidence", Guardian Online,
Thursday 16 July 2009. Back
Q72, Ev 10 Back
Q85, Ev 12 Back
Letter to David Hanson, 17 December 2009, published in Report
on 2010 Control Orders Renewal, abov n. 3, at p. 48. Back
Letter from David Hanson, 13 January 2010, above n. 10. Back
HC Deb, 22 Feb 2010 cols 245W and382W Back
HC Deb, 3 Mar 2010, col. 1191W Back
Letter from David Hanson, 13 January 2010, above n. 10. Back
Report on 2010 Control Orders Renewal, above n. 3, Ev 13-14, Qs
R (Cart) v Upper Tribunal; U v SIAC  2 All ER 908 Back
RB (Algeria) v Secretary of State for the Home Department
 UKHL 10,  2 WLR 512. Back
R (on the application of Secretary of State for the Home Department)
v BC and BB EWHC 2927 Admin.See Report on 2010 Control
Orders Renewal, above n. 3 at para 25. Back
Nineteenth Report of Session 2006-07, Counter-Terrorism Policy
and Human Rights: 28 days, intercept and post-charge questioning,
HL 157/HC 394, Ev 11-12, Qs 39-40. Back
Report on 2010 Control Orders Renewal, above n. 3, Ev 14-15 Qs
HC Deb 10 Feb 2010 col. 1053 W and 1054W Back