Blind Trials and Sensitive Information (February 2012)
Government proposals to dramatically increase the number of trials held in secret, in which parties can see only minimal evidence being relied upon by the Court, have been fiercely criticised by Special Advocates – the solicitors and barristers who would be at the heart of the new procedure. In this article, I argue that the Justice and Security Green Paper should be a cause of concern for all in a liberal democracy as an attack on liberty and foundational principles of open justice.
A brief background to these proposals sheds some light on the government’s motivation. Last year, the British government agreed to settle the case of Binyamen Mohamed (and fifteen others) amid claims that it was complicit in the rendition, torture and detention of British citizen Mohamed at Guantánamo Bay. Justice Secretary, Ken Clarke, said that the claimants had to be paid off because the only way of defending the case would have been to disclose intelligence-related material to the claimants, which would have jeopardised the arrangements under which such material is shared with the US. Then, in July last year, the Supreme Court ruled that in the absence of clear statutory authority, the government could not withhold evidence in a civil trial. This statutory authority is what the government now seeks, in the nascent form of the Justice and Security Green Paper.
The crucial concern in this paper is the proposal to make closed material procedures (CMPs) available in all civil proceedings, not just those involving national security. Under this procedure, sensitive evidence is withheld from both the party whom it concerns and their legal team. The court and a Special Advocate will then see the evidence, with the latter given the unenviable task of representing the other side’s interests without revealing what the evidence says. By opening up the availability of CMPs to all civil proceedings, the Secretary of State would be delegated the responsibility of certifying whether “certain relevant sensitive material would cause damage to the public interest.” This term is left vague, and seemingly could range from international relations through to the commercial sphere in which the government has no direct interest.
These proposals threaten to undermine the justice system because they run counter to our understanding of a common law, adversarial trial which looks for facts on the balance of probabilities. Indeed, by withholding evidence at the behest of the Secretary of State, one loses the key probative aspect of a trial: that is to show the value of evidence by proving that it can withstand challenge. Without any scrutiny, damning evidence could be easily misled. Dinah Rose QC, who acted for Mohamed, has also expressed her concern over the potential law: “It troubles me that the government can propose in this way, without any controversy and little fear of contradiction, to legislate for a secret process so alien to our judicial system.”
What this potential legislation amounts to is the claim that a government minister is better placed to strike the balance between material which would cause damage to the public interest and the need to ensure fairness through open justice. Indeed, this is currently a judicial task and through over fifty years of case law the principles of public interest immunity have been eked out, most recently reflected in Lord Rodger’s commentary in the Guardian News and Media Ltd  that such principles should be departed from “only in the most compelling circumstances.” The 90-page Green Paper exemplifies no such example, preferring such vagaries as withholding “certain relevant sensitive material would cause damage to the public interest.”
As highlighted above, the Green Paper was drafted following allegations of British complicity in torture and rendition of its own citizens. Torture is an international crime and it is essential therefore that any evidence of this is subject to scrutiny, not merely thrown out through fear of costly claims. Indeed, in 2009, a report of the Special Rapporteur on counter-terrorism and human rights cited the United Kingdom as one of the states in which the “increasing use of State secrecy provisions and public interest immunities… to conceal illegal acts from oversight bodies or judicial authorities, or to protect itself from criticism, embarrassment and – most importantly – liability” gave cause for concern. It is imperative, therefore, that our liberal democracy refrains from using the guise of “sensitive material” to protect it from concealing wrongdoing. To be sure, it is hard to imagine how, under the current proposals, we (and, of course, the media) would have known about British collusion in torture, such as in Mohamed’s case – knowledge of which, I think everyone would agree, is most certainly in the public interest.