a JUSTICE report SECRET EVIDENCE Advancing access to justice, human rights and the rule of law Secret Evidence June 2009 For further information contact Eric Metcalfe, Director of Human Rights Policy email: [email protected] direct line: 020 7762 6415 JUSTICE, 59 Carter Lane, London EC4V 5AQ tel: 020 7329 5100 fax: 020 7329 5055 email: [email protected] website: www.justice.org.uk Contents Executive summary 5 Acknowledgements 6 Introduction 7 Key terms 9 - closed evidence and secret evidence 9 - closed hearings 9 - ex parte hearings 9 - hearings in camera 10 - undisclosed material 11 - departures from open evidence: anonymity, redactions and gisting 12 Part 1: The right to a fair hearing 14 The right to be heard 15 The right to confront one’s accuser 18 The right to an adversarial trial and equality of arms 23 The right to be informed of the accusation 27 The presumption of innocence 28 The right to counsel 30 Article 6 ECHR 31 - article 6(1) 31 - article 6(2) 33 - article 6(3) 33 Article 5(4) ECHR 34 Part 2: Secret evidence in civil cases 36 The Special Immigration Appeals Commission 37 - Chahal v United Kingdom 38 - The 1997 Act 40 - Proceedings pre-9/11 42 - Proceedings post-9/11 48 - Torture evidence 56 - Proceedings post-7/7 59 - MK v Secretary of State 69 - A and others v United Kingdom 73 Control order hearings 76 - Secretary of State v MB 78 - AE, AF and AN v Secretary of State 84 Parole board hearings 91 - Roberts v Parole Board 92 Other civil proceedings 101 - Administrative tribunals 102 - ASBO hearings 104 - Asset freezing hearings 105 - Coronial proceedings 107 2 - Counter-terrorism proceedings 111 - Employment proceedings 113 - FOIA and data protection proceedings 113 - Immigration proceedings 116 - The Investigatory Powers Tribunal 120 - Northern Ireland proceedings 122 - The Proscribed Organisations Appeals Commission 125 - Public interest immunity applications 127 Part 3: Secret evidence in criminal cases 133 Pre-charge detention hearings 135 - Ward v Police Service of Northern Ireland 136 - The Counter-Terrorism Bill 138 Anonymous witnesses 143 - R v Davis 146 - The 2008 Act 148 Intercept evidence 154 Closed trials 156 - R v Amin 158 - R v Ahmed 160 - R v Yam 161 Public interest immunity applications 162 Part 4: Special advocates 169 The origin of special advocates 170 - The devil’s advocate 170 - Amicus curiae and litigation friends 171 - Canadian SIRC counsel 173 - The Queensland public interest monitor 176 - The 1997 Act 179 - The SIAC procedure rules 184 The growth of special advocates 186 - Statutory special advocates 187 - Ad hoc special advocates 189 - Canada 190 - Hong Kong 192 - New Zealand 193 The limitations of special advocates 193 - Communication 193 - Limitations on access to evidence 201 - Lack of accountability 206 - Lack of judicial control over appointment 209 3 Part 5: A return to open justice 213 The case against secret evidence 214 - Secret evidence is unreliable 215 - Secret evidence is unfair 220 - Secret evidence is undemocratic 222 - Secret evidence damages the integrity of the courts 224 - Secret evidence weakens security 226 - Secret evidence is unnecessary 227 Proposals for change 229 - End the use of secret evidence 229 - End the use of anonymous evidence 231 - Replace special advocates in PII claims with public interest advocates 231 - Lessen the unfairness of special advocates 233 - Increase the transparency of court proceedings 235 - End reasonable suspicion 235 Conclusion 236 4 EXECUTIVE SUMMARY • It is a basic principle of a fair hearing that a person must know the evidence against him. • This core principle of British justice has been undermined as the use of secret evidence in UK courts has grown dramatically in the past 10 years. • Secret evidence can now be used in a wide range of cases including deportations hearings, control orders proceedings, parole board cases, asset-freezing applications, pre-charge detention hearings in terrorism cases, employment tribunals and even planning tribunals. • Defendants in some criminal cases are now being convicted on the basis of evidence that has never been made public. Criminal courts have issued judgments with redactions to conceal some of the evidence relied upon. Evidence from anonymous witnesses has also been used in hundreds of criminal trials and is widespread in ASBO hearings. • Since they were first introduced in 1997, almost 100 special advocates – lawyers prohibited from communicating with those they represent – have been appointed. Indeed, the government itself does not know how many special advocates have been appointed. • This report calls for an end to the use of secret evidence. Secret evidence is unreliable, unfair, undemocratic, unnecessary and damaging to both national security and the integrity of Britain’s courts. • In its place, this report sets out a series of recommendations that include the strengthening current disclosure procedures by the creation of public interest advocates to replace special advocates in PII claims; increasing the transparency of existing court procedures; and ending reliance on ‘reasonable suspicion’ in such proceedings as deportation and control orders. 5 ACKNOWLEDGEMENTS Founded in 1957, JUSTICE is a UK-based human rights and law reform organisation. Its mission is to advance justice, human rights and the rule of law. It is also the British section of the International Commission of Jurists. JUSTICE is grateful to the many people and firms who have assisted its policy work on closed proceedings and secret evidence over the years, either through discussions, by assisting with comparative law, delivering conference papers, or by acting pro bono on its behalf in third party interventions on the issue. These include Professor Andrew Ashworth QC, Alex Bailin, Ali Naseem Bajwa, Sir Nicholas Blake, Sir Ian Burnett, Peter Carter QC, Martin Chamberlain, Clifford Chance LLP, Simon Creighton, Ben Emmerson QC, Judith Farbey, Shaheed Fatima, Professor David Feldman QC, Craig Forcese, Michael Fordham QC, Freshfields Bruckhaus Deringer LLP, Professor Conor Gearty, Stephen Grosz, Gabrielle Guillemin, Herbert Smith LLP, Julia Hall, Tom Hickman, Aziz Huq, Raza Husain, John Ip, Helen Law, Alison Macdonald, Ian Macdonald QC, Deborah Manning, Tom de la Mare, Angus McCullough, Helen Mountfield, Sir Andrew Nicol, Timothy Otty QC, Tim Owen QC, Lord Pannick QC, Gareth Peirce, Shaheen Rahman, Tom Richards, Keir Starmer QC, Jemima Stratford, Lorne Waldmen and Professor Clive Walker. We are also grateful to our colleagues at Reprieve for sharing with us copies of their Freedom of Information Act requests concerning the number of special advocates appointed since 1997. We are especially grateful to Clifford Chance LLP for its support of this publication. Please note that the views expressed in this report, responsibility for any mistakes, and the analysis and conclusions drawn, are those of JUSTICE alone. This report was prepared using information entirely in the public domain. This report was written by Eric Metcalfe, JUSTICE’s director of human rights policy. It was researched by JUSTICE policy interns Emer Murphy, Emily Rayner, Hayley Smith, Hermione Williams, Camilla Graham Wood and Arezou Yavarianfar. 6 INTRODUCTION 1. The idea of a fair hearing is as old as western civilization itself. 2. In a scene in the Eumenides written by Aeschylus sometime before 458 BC, the goddess Athena is called to sit in judgment on Orestes who is accused by the Furies of murdering his mother, Clytemnestra. After hearing the accusation, Athena declares that ‘there are two sides to this dispute. I've heard only one half the argument’.1 In Seneca’s play more than four centuries later, Medea decries the unfairness of Cleon’s decision to exile her from Corinth: ‘he who decides something without hearing the other side is not just, even if he makes a just decision’.2 An eighteenth century judge of the King’s Bench followed Aeschylus in attributing to the idea of a fair hearing a divine origin:3 The laws of God and man both give the party an opportunity to make his defence, if he has any …. Even God himself did not pass sentence upon Adam before he was called upon to make his defence. 3. This principle of audi alteram partem, or ‘hear the other side’, has been a cornerstone of our system of justice for several hundred years. And although the practice has often fallen far short of the ideal (c.f. the Court of Star Chamber), for several hundred years it has been well understood that the right to be heard means more than merely the opportunity to state one’s case. It includes the right to confront one’s accuser; to know and to challenge the evidence given by the other side. As Lord Denning said, ‘[i]f the right to be heard is to be a real right which is worth anything, it must carry with it a right in the accused man to know the case which is made against him’.4 4. It should be self-evident, therefore, that the use of secret evidence by any court runs utterly contrary to the idea of a fair hearing. For most people, the unfairness of secret evidence is so obvious and instinctive that it is unnecessary to explain further. Instead, it is something that people would associate with the closed hearings of the McCarthy era, the proceedings of the Inquisition or the works of Kafka. It may therefore come as something of a surprise to many people to learn that the UK – a country so long associated with the idea of fairness and so renowned for the integrity of its justice system – has in the past decade become a pioneer in the use of secret evidence in its courts. 1 Eumenides, 435. 2 ‘Qui statuit aliquid parte inaudita altera, aequum licet statuerit, haud aequus fuit’, Medea, 199-200. 3 Dr Bentley’s case (1723) 1 Stra 557 at 567 per Fortescue J.