17th September 2013; Ms Karen Quinlivan Q.C. addresses solicitors and barristers at the Inns of the Court, Royal Courts of Justice, Belfast on developments in the law regarding Secret/Closed Evidence Hearings;
1.The range of cases which involve the Government’s reliance upon secret evidence, that is evidence which is placed before the Court, but remains unknown to the other party, are on theSuch evidence can be used even when the consequences for the individual involve significant inroads into fundamental human rights. The procedures involved raise real issues as to whether proceedings which preclude one party from being able to effectively challenge evidence, relied upon against his/her interests, can truly be described as fair.
2.The issue is of significance because of the incremental increase in the types of judicial proceedings in which such procedures are being used. Closed material procedures, as they have become known, were initially introduced in 1997 through the establishment of the Special Immigration Appeals Commission (SIAC) in the narrow and specific context of national security deportation cases. Since then closed material procedures have spread to different parts of the civil justice system, and there is legislative provision for such procedures in a wide range of different contexts, including in – appeals against the imposition of administrative controls; asset freezing cases; employment tribunals; and certain parole-board hearings.
3.Most recently the passage of the Justice and Security Act 2013, means that ‘closed material procedures’ or secret evidence, can now be introduced in some civil proceedings.
4.The issue is also important because closed material procedures feature in cases which have a significant impact upon individual rights. Closed material procedures have not been as common in Northern Ireland, as in England or Wales, however when utilised their effects are far-reaching. The issue has attracted recent controversy in relation to ‘recalled’ prisoners, that is prisoners sentenced to life imprisonment who have served their life sentence and have been released from custody, but are subsequently recalled because of allegations of a breach of their licence. The case of Marion Price, who has now been released by the Parole Board, involved reliance by the Secretary of State on secret evidence to seek to have her detained in custody. While Martin Corey, also a recalled prisoner has been detained in custody since 2010 in circumstances where the Parole Commissioners had concluded that the ‘open’ evidence was insufficient to justify his continued detention, and had to rely on evidence obtained in a procedure from which he was excluded.
5.In England and Wales ‘closed material procedures’ are often used in Control Order cases. Control Orders can place restrictions on what the person can use or possess, his place of work, place of residence, whom he speaks to, and where he can travel and again involve significant restrictions on the right to liberty.
6.Thus, the procedure can be used in cases which involve significant deprivations of the right to liberty, including detention in custody, in circumstances where no criminal charges have or can be brought.
7.The judicial response to the issues raised is also not without difficulties. The House of Lords, the European Court of Human Rights and the Supreme Court have all addressed questions about the fairness of such procedures and the appropriateness of their use in particular circumstances. It is fair to say that the judiciary on these issues do not all appear to be singing from the same hymn-sheet. From the perspective of a practitioner attempting to interpret and apply the law, the responses have on many occasions lacked clarity, and there are clearly tensions both within and between Courts as to the proper approach, probably an inevitable consequence of the difficulties encountered in balancing national security concerns with individual rights. I certainly think it can be said with some confidence that, extensive as the litigation in this area has been to date, it seems unlikely that the final word on this topic has yet been spoken.
The Introduction of Secret Evidence into Judicial Proceedings
8.Secret evidence or ‘closed material procedures’ were initially introduced in 1997 and predominantly featured in national security deportation cases, following the decision of the European Court of Human Rights in Chahal v United Kingdom. That decision, which arose from the inability of the UK Government to deport an individual they regarded as dangerous, because of the real risk that he would be tortured if deported, was regarded as giving the green light to the procedure. The procedure was also used before Parole Boards in England and Wales and the Life Sentence Review Commissioners in Northern Ireland, when determining whether life prisoners ought to be released from custody. It should be noted that in some respects this marked an improvement in the fairness of such procedures which historically were frequently decided on the papers and in respect of which prisoners were not always advised of the case against them.
9.Such procedures have been introduced largely as a mechanism for dealing with cases involving national security issues. The mechanisms are designed to enable the Government to rely upon material before the judicial authority, the disclosure of which the Government contends would damage national security, without disclosing such material to the individual or his legal representatives. While I think the term secret evidence most accurately describes the procedure invoked, evidence of this nature has variously been described as “sensitive material”, “damaging information”, “confidential information” and more recently it appears that the term settled upon is a “closed material procedure”.
10.While the terminology has varied in different types of proceedings and over time, the essential features remain the same:
- i)The procedure is an ex parte procedure, occurring within relevant legal proceedings, in which one party is excluded from all or part of a hearing and is prevented from seeing all or part of the evidence. That evidence, which can take the form of witness testimony, or documentary evidence, is received by the judicial authority and despite the absence of one of the parties it is material upon which the judicial authority can rely.
- ii)Fairness is said to be achieved by the use of the ‘special advocate’ system. A ‘special advocate’ is appointed from a panel of special advocates to represent the interests of the excluded party. The ‘special advocate’ can communicate and take instructions from the excluded party prior to the secret evidence procedure commencing but is precluded from consulting with the excluded party, or his/her lawyers thereafter, even if the special advocate considers that a consultation would assist in responding to the case being advanced on the part of the Government. Essentially the role of the special advocate is to forensically test the secret evidence.
11.In some cases, including those which involve significant restrictions on the right to liberty, the procedure additionally requires that the excluded party be provided with a ‘gist’ of the case against him. This is a relatively recent development and follows a decision of the European Court of Human Rights which considered the fairness of the secret evidence procedure in circumstances where deprivation of liberty followed the use of the procedure, in that case the ECHR rejected the earlier House of Lords approach. The ECHR concluded that the excluded person must be provided with “sufficient information about the allegations against him to enable him to give effective instructions to the special advocate”. It remains the case that closed material procedures can be used in procedures less intrusive of fundamental rights but where important issues are still in play and the affected litigant may be entitled to none of the material against him/her.
A Fair Procedure?
12.There is an extensive body of opinion, not confined to human rights organisations, to the effect that the procedure is inherently unfair.
13.That the procedure amounts to a significant inroad into common law standards of fairness was eloquently articulated by our former Lord Chief Justice, Lord Kerr, when he responded to the submission that the procedure would be fairer because the judge would receive all relevant evidence:
“The appellants’ second argument proceeds on the premise that placing before a judge all relevant material is, in every instance, preferable to having to withhold potentially pivotal evidence. This proposition is deceptively attractive – for what, the appellants imply, could be fairer than an independent arbiter having access to all the evidence germane to the dispute between the parties? The central fallacy of the argument, however, lies in the unspoken assumption that, because the judge sees everything, he is bound to be in a better position to reach a fair result. That assumption is misplaced. To be truly valuable, evidence must be capable of withstanding challenge. I go further. Evidence which has been insulated from challenge may positively mislead. It is precisely because of this that the right to know the case that one’s opponent makes and to have the opportunity to challenge it occupies such a central place in the concept of a fair trial. However astute and assiduous the judge, the proposed procedure hands over to one party considerable control over the production of relevant material and the manner in which it is to be presented. The peril that such a procedure presents to the fair trial of contentious litigation is both obvious and undeniable.” (93)
14.A similar approach was adopted in the same case by the then Master of the Rolls, now President of the Supreme Court, when Lord Neuberger stated:
“In our view, the principle that a litigant should be able to see and hear all the evidence which is seen and heard by a court determining his case is so fundamental, so embedded in the common law, that, in the absence of parliamentary authority, no judge should override it, at any rate in relation to an ordinary civil claim, unless (perhaps) all parties to the claim agree otherwise. At least so far as the common law is concerned, we would accept the submission that this principle represents an irreducible minimum requirement of an ordinary civil trial. Unlike principles such as open justice, or the right to disclosure of relevant documents, a litigant’s right to know the case against him and to know the reasons why he has lost or won is fundamental to the notion of a fair trial.” (30)
15.In terms of assessing fairness against the common law standards regarded as inherent in our system of justice, it is worth contrasting the closed material procedure with the PII procedure developed by the common law as a means of balancing national security issues with fair trial rights. A PII procedure would require the judge to weigh the sensitivity of the material on the one hand against the public interest in favour of disclosure. The ‘closed material procedure’ prevents disclosure of the secret material even where the sensitivity of such material is marginal and outweighed by the arguments in favour of disclosure. Where ‘closed material procedures’ are provided for the Court or judicial authority does not engage in a balancing exercise of the type which occurs in a PII. The distinction between the 2 systems was described by Lord Kerr in the following terms:
“The seemingly innocuous scheme proposed by the appellants would bring to an end any balancing of, on the one hand, the litigant’s right to be apprised of evidence relevant to his case against, on the other, the claimed public interest. This would not be a development of the common law, as the appellants would have it. It would be, at a stroke, the deliberate forfeiture of a fundamental right which . . . has been established for more than three centuries.”
The procedure clearly amounts to a step back from the protections which had been developed through the common law in the law of PII, which were expressly designed to balance national security concerns with fair trial rights.
16.It is also worth considering the views of those charged to represent the interests of the excluded person, albeit not selected or appointed by them. Strong reliance is placed on the fact that, although absent from the procedure, the excluded person is nonetheless represented by a Special Advocate and the role of the Special Advocate is regarded as the lynchpin for securing fairness. In this regard it is noteworthy that Special Advocates have consistently been critical of the system of Closed Material Procedure and in particular their inability to consult with the excluded person after they have had sight of the secret evidence. Special Advocates as a body have described Closed Material Procedures as “inherently unfair” and the Joint Committee on Human Rights expressed the matter thus:
“We are concerned to find that the Special Advocates from whom we heard had a number of very serious reservations about the fairness of the system to the people whose interests they are appointed to represent. Indeed, we found their evidence most disquieting, as they portrayed a picture of a system in operation which is very far removed from what we would consider to be anything like a fair procedure. We were left in no doubt by their evidence that proceedings involving special advocates. As currently conducted, fail to afford a “substantial measure of procedural justice”.
17.Reliance is also placed on the fact that the affected person must be provided with the gist of the case against him. A requirement which flows from the decision of the Grand Chamber in A v United Kingdom. In that respect it may be useful to give an example of the nature of the gist which will be regarded as sufficient to enable the detained person to adequately instruct his special advocate. Mr Corey, referred to above, challenged the adequacy of the material provided to him, the material which has resulted in his continued detention in custody. He advanced the case that the material was insufficient to enable him to give effective instructions to his special advocate. One of the allegations, found to be sufficient by the Court of Appeal was expressed in what, I, although not the Court of Appeal, consider to be the most general of terms and it was that:
[Mr Corey] was engaged with Mr Magill in recruitment activities and procuring weaponry up until the time of the revocation of his licence.” (12)
Nothing more specific as to his alleged role in recruitment or procuring weaponry was provided. The Court of Appeal were nonetheless satisfied that this was sufficient, albeit it is clear that they also took the view that they should have access to the secret evidence in order to properly assess the evidence.
18.In this respect the observations of Dinah Rose QC, who has: represented the Government; acted as Special Advocate; and, represented excluded persons in closed material procedures are of some relevance:
“I have had experience of closed material procedures in acting for the Home Office, acting as a special advocate and acting for an appellant. One of the things that has always struck me from contrasting these roles is how different an open case may look from a closed case. The case that an appellant thinks they are meeting may not be simply different in extent but wholly different in kind from the case they are actually meeting. You just cannot tell; it is a classic iceberg situation, where two-thirds is underwater.”
The Judicial Response
19.Given that the procedures represent a significant inroad into the adversarial system developed by the common law and a significant inroad into the protections regarded as inherent in the right to a fair trial, it is an issue that has been repeatedly litigated. It is moreover clearly an issue which has exercised and continues to exercise judges at the highest level as to whether and in what circumstances the procedure can be described as fair.
20.It would be impossible in the time allotted to do justice to the number of decisions, even at the highest level, which have grappled with this issue. My review of judicial decisions can be regarded as no more than a snapshot of some of the cases which have exercised the Courts and their response to date.
21.The procedures facilitating the introduction of secret evidence, have been introduced by various legislative means, and now feature in a range of judicial proceedings. Thus the courts were initially exercised with the question of whether, applying Convention standards, the procedures could be described as fair, or Convention compliant. The House of Lords in a decision, Secretary of State v MB, a Control Order case, appeared to contemplate a situation where the entirety of the case against an individual could be secret and the Court could nonetheless find against the individual without giving him/her any information about the case against them. This only in circumstances where the Court concluded that the case was so overwhelming that only one conclusion could follow. It should be noted that the appropriate interpretation of this case was a cause of considerable confusion, resulting in the English Court of Appeal essentially sending the case back to the House of Lords seeking clarity from the Justices on the issues.
22.The House of Lords was however overtaken by events. While the issue was being re-litigated domestically, the issue had also been heard in Strasbourg, and just prior to the House of Lords re-examination of the question of fairness and what in fact they had meant by their earlier judgments, the Grand Chamber in A v United Kingdom made clear that, where the right to liberty was at stake, the individual had to be given “sufficient information about the allegations against him to enable him to give effective instructions to his special advocate in relation to them”. The House of Lords accepted and endorsed the judgment of the Grand Chamber, albeit in some cases reluctantly.
23.The Supreme Court subsequently addressed 2 further cases. The cases were heard together but raised slightly different issues. In Home Office v Tariq, the Supreme Court was concerned with whether a closed material procedure, for which there was legislative provision, was compliant with Article 6 fair trial rights. The case was an employment case in which the appellant, who had been an immigration officer, challenged the use of a closed material procedure in tribunal proceedings following the withdrawal of his security clearance. In Al Rawi v Security Services, a civil case for damages which involved Guantanamo Bay detainees claiming damages from the Government, the Secretary of State wished to proceed by way of closed material procedure rather than by way of PII.
24.In the former case the Supreme Court, concluded that a closed material procedure was not in principle incompatible with Article 6. The majority, Lord Kerr dissenting, also took the view that not every case involving employment rights would require ‘gisting’ of the type necessitated where the liberty of the subject is at stake.
25.In Al Rawi both the Court of Appeal and the Supreme Court rejected the proposition that the Court, of its own volition, could introduce a closed material procedure.
26.While all of the members of the Court of Appeal and Supreme Court ruled against the introduction of secret evidence where there was no statutory provision for such a procedure, a close analysis of the judgments makes it difficult to clearly identify the ratio of the judgment because of differences in the reasoning of the judges. Four judges ruled that the Court had no power to impose a closed material procedure on a party in a claim for damages, whilst 5 of the judges did not completely rule out a different procedure than that sought by the Secretary of State, or a closed material procedure where both parties consented. 
27.However, having apparently set their face so trenchantly against the use of such a procedure without statutory sanction, and a number of the justices having in this and previous cases stated that, it would never be appropriate for the Supreme Court to receive secret evidence, the Court was faced with precisely that application earlier this year.
28.In Bank Mellat v Her Majesty’s Treasury (No 1) the Supreme Court was itself invited to conduct a closed material procedure. The case involved an Iranian Bank in circumstances where the Treasury had issued an Order preventing British financial institutions from entering into financial transactions of any type with the Bank. The stated reason, provided for under the legislative scheme, was in order to prevent the proliferation of nuclearA significant amount of the Bank’s business was transacted in the United Kingdom and the order was challenged. Both the High Court, which initially heard the case, and the Court of Appeal, had excluded the Bank and its representatives from parts of the hearing and the Treasury invited the Supreme Court to do the same. The case can be, and ultimately was, distinguished from Al Rawi, inasmuch as there was statutory provision for a closed procedure, at least at the level of High Court and Court of Appeal. Nonetheless, not merely in Al Rawi but in earlier cases the view had consistently been articulated that such a course was not appropriate for the highest appellate court in the jurisdiction and in no previous case had the House of Lords or the Supreme Court ever acceded to an application to set in closed session in the absence of a party to the proceedings. Nonetheless by a majority, the Court agreed to hold a closed hearing, albeit, it is apparent with considerable reluctance.
29.Lord Neuberger expressed his disquiet as follows:
“By a bare majority, with those in the majority (which included me) all having real misgivings, the Court decided that it should accede to the proposal to have a closed material procedure. Although we strongly suspected that nothing in the closed judgment would have any effect on the outcome of the appeal, we could not be sure in the absence of seeing the closed judgment and listening to submissions on it. And, as we all appreciated that there was a real possibility that we were going to allow the appeal, and therefore to disagree with Mitting J (who gave the closed judgment) and the Court of Appeal (who had seen the closed judgment), we felt that there would be a real risk of justice not being seen to be done, and an outside possibility of justice actually not being done, to the Treasury if we did not proceed to hold a closed hearing, as the Treasury requested.” (64)
30.Thus having formed the view that nothing in the closed judgment was likely to impact upon the appeal the Court sat in closed session and viewed the closed material. Ultimately the Court found for the Bank on the substantive issue.
31.It is somewhat ironic, that it was Lord Neuberger, as the Master of the Rolls presiding over the Court of Appeal in Al Rawi who, in rejecting the application for a closed procedure in civil proceedings, stated:
“It is nonetheless tempting to accept that there may be the odd exceptional ordinary civil claim, where the closed material procedure would be appropriate. “Never say never” is often an appropriate catchphrase for a judge to have in mind, particularly in the context of common law, which is so open to practical considerations, and in relation to civil procedure, where experience suggests that unpredictability is one of the few dependable features. However, this is one of those cases where it is right for the court to take a clear stand, at least in relation to ordinary civil proceedings. Quite apart from the fact that the issue is one of principle, it is a melancholy truth that a procedure or approach which is sanctioned by a court expressly on the basis that it `is applicable only in exceptional circumstances nonetheless often becomes common practice.”
32.Despite, his earlier recognition that ‘exceptional procedures’ such as ‘closed material procedures’ can become the norm, he presided over an extension of that system into the SupremeOn any analysis the majority decision resulted in the Supreme Court crossing the Rubicon. It represents the first time that a Court at the highest appellate level conducted a closed material procedure and it did so in circumstances where the majority were of the view that it was unlikely to assist in their determination of the case.
33.Lord Hope, as one of the dissenting judges, clearly identified the decision as a departure, and a fairly swift departure at that, from the earlier Al Rawi decision, stating that he considered that the decision inAl Rawi would also have resolved the case before the Court and reminding, the Justices of the issues at stake:
“The right to know and effectively challenge the opposing party’s case is a fundamental feature of the judicial process. The right to a fair trial includes the right to be confronted by one’s accusers and the right to know the reasons for the outcome. It is fundamental to our system of justice that, subject to certain established and limited exceptions, trials should be conducted and judgments given in public. There may come a point where a line must be drawn when procedural choices of one kind or another have to be made. A distinction may be drawn between choices which do not raise issues of principle and choices that affect the very substance of a fair trial. There is no room for compromise where the choices are of the latter kind. The court cannot abrogate the fundamental common law right by the exercise of any inherent power. Any weakening of the law’s defences would be bound to lead to state of uncertainty and, sooner or later, to attempts to widen the breach still further. The court has for centuries been the guardian of these fundamental principles. The rule of law depends on its continuing to fulfil that role.” (81)
34.Given the issues at stake and the significance of the departure from normal standards, it seems likely that this is not the last word on the issue.
Karen Quinlivan QC
 Northern Ireland (Sentences) Act 1998 (Sentence Review Commissioners) Rules 1998, Rule 22,Re McClean  UKHRR 826
 Parole Commissioners Rules (Northern Ireland) 2009, Rule 9, In re Corey’s Application  NICA 57
 Lord Hoffman agreed with the majority whilst expressing the view that the decision of the ECHR was “wrong and . . . [might] very well destroy the system of control orders which is a significant part of this country’s defences against terrorism.” (70) Lord Rodger expressed the issue more pithily “in reality , we have no choice: Argentoratum locutum, iudicium finitim – Strasbourg has spoken, the case is closed.”
 Lord Dyson, Lord Hope, Lord Kerr and Lord Brown. However Lord Brown’s views were starkly different from the other Justices inasmuch as he concluded that there could be no such case and that consequently the civil proceedings would have to be dismissed.
 Lord Neuberger, Lady Hale, Lord Clarke, Lord Sumption and Lord Carnworth comprised the majority, Lord Hope, Lord Kerr, Lord Reed and Lord Dyson comprised the minority. In the case of Lord Dyson he was of the view that the Court had power to hold a closed material procedure but did not consider that the case before the Court met the test he would have imposed.