This week, the Court of Appeal has established that 'closed material', i.e. secret evidence, can never be used in ordinary civil trials. The government has been attempting to use secret evidence more and more making a mockery of the right to a fair trial. For justice to be served, an accused person must know the case against him and be able to scrutinise and challenge the evidence used against him in a fair, open and public hearing. This ruling makes it very clear how judges consider both the importance of fair civil trials and of the risk of temporary emergency legislation limiting civil rights:
69. 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.
70. The importance of civil trials being fair, the procedures of the court being simple, and the rules of court being clear are all of cardinal importance. It would, in our view, be wrong for judges to introduce into ordinary civil trials a procedure which (a) cuts across absolutely fundamental principles (the right to a fair trial and the right to know the reasons for the outcome), initially hard fought for and now well established for over three centuries, (b) is hard, indeed impossible, to reconcile satisfactorily with the current procedural rules, the CPR [Civil Procedure Rules], (c) is for the legislature to consider and introduce, as it has done in certain specific classes of case, where it considers it appropriate to do so, (d) complicates a well-established procedure for dealing with the problem in question, namely the PII [public interest immunity] procedure, and (e) is likely to add to the uncertainty, cost, complication and delay in the initial and interlocutory stages of proceedings, the trial, the judgment, and any appeal.
Leigh Day & Co and Reprieve, who both acted for for Binyam Mohamed summarise this failed government's attempt to defend Guantanamo torture claims with secret evidence:
The Court of Appeal has today “firmly and unambiguously” rejected the government’s argument that it is open to a Court, in the absence of statutory power, to order a “closed material procedure” in relation to the trial of an ordinary civil claim, such as the claims of former Guantanamo detainees brought against the British Security Services and various government departments for alleged complicity in their torture and maltreatment over several years.
On 18 November 2009, in a highly controversial judgment, Mr Justice Silber ruled that in principle it was possible for a Court to allow a party to rely on closed evidence and closed pleadings in a civil claim for damages. As the law currently stands, if the government successfully claims “public interest immunity,” excusing them from disclosing material in the civil courts (for instance, on the grounds of national security) they are then not allowed to rely on the material. The government’s proposals would have meant that they would be able to rely on such evidence, the judge trying the case would be able to see it and make a judgment dependant on such evidence but the other party and their legal team would not be able to see it, respond to it or cross-examine witnesses on it . This was particularly troubling in the context of such serious allegations, leading the Claimants to appeal against the judgment.
Today, Lord Neuberger (Master of the Rolls), Lord Justice Maurice Kay and Lord Justice Sullivan unanimously agreed with the Claimants that such a procedure would undermine some of the most fundamental principles of the common law and fly in the face of the Civil Procedure Rules.
Their Lordships referred to the “cardinal requirement that the trial process must be fair, and must be seen to be fair… which under the common law means that a trial is conducted on the basis that each party and his lawyer, sees and hears all the evidence and all the argument seen and heard by the Court.” They also referred to another fundamental principle of English law that a party to litigation should know the reasons why he won or lost.
Their Lordships commented that
“[i]f the court was to conclude after a hearing, much of which had been in closed session, attended by the defendants, but not the claimants or the public, that for reasons, some of which were to be found in a closed judgment that was available to the defendants, but not the claimants or the public, that the claims should be dismissed, there is a substantial risk that the defendants would not be vindicated and that justice would not be seen to have been done. The outcome would be likely to be a pyrrhic victory for the defendants, whose reputation would be damaged by such a process, but the damage to the reputation of the court would in all probability be even greater.”
Speaking after the judgment was delivered today, Sapna Malik, Partner at Leigh Day & Co, acting for Binyam Mohamed said:
“We are delighted that the Court of Appeal has fully accepted the Claimants’ arguments that the government has been seeking to introduce, via the backdoor, unconstitutional and manifestly unfair measures to defend these most serious of allegations, which the Courts must be emphatically resist.”
Clive Stafford Smith, Director of Reprieve, who acted for Binyam Mohamed in the United States, said:
“Perhaps the most dangerous legacy of the ‘War on Terror’ is a creeping secrecy that threatens to shutter the workings of British justice away with access limited to a privileged few. We applaud the Court of Appeal’s excellent decision to keep our courts open, so that the British public may continue to see justice done in their name. It is crucial that our government accept this ruling, and stop hiding the mistakes of the ‘War on Terror’ years. We cannot learn from history unless we know what it is.”
The Coalition Against Secret Evidence (CASE) petition
asking 'the Prime
Minister to ensure that everyone in the United Kingdom has the right to
a fair trial by ending the use of secret evidence to obstruct the
judicial process.' will reopen for signatures upon the
formation of the Government following the General Election and close by
2010-06-03. If you haven't done so yet, sign the petition
when it reopens.
As of when the Number10 petition site temporarily closed to signatures,
this petition had collected 298 signatures putting it in the top 7% most popular open petition by number of signatures.
Update: Adam Wagner, in a post on the UK Human Rights Blog, mentioned two other rulings about secret evidence: 'The Court of Appeal has told the Government three times in 24 hours that it cannot keep evidence secret in civil proceedings. Similar reasoning was applied in three different contexts; the employment tribunal, a case relating to Iranian nuclear proliferation and a claim for damages for foreign torture.'
Update: Anya Proops in the Panopticon blog also published a post summarising these three judgments and concludes that '[These judgments] also confirm that a distinction is to be drawn between those cases where there is a specific statutory or Parliamentary authority for a closed material procedure to be adopted (Tariq and Bank Mellat) and those cases where no such authority exists (Al Rawi). In respect of the latter cases, the Court of Appeal has effectively held that: (a) in general, the only procedural course available to the State is to make an application for evidence to be excluded under the PII procedure; although (b) there may be cases where exceptionally third party interests or the public interest warrant a different approach being adopted.'
Update: The petition is now closed and awaiting a response from the new administration. It closed on 2010-06-03 with 298 signatures. It is in the 10% most popular closed petitions (2,956 out of 29,701).
First published on 2010-05-05; last updated on 2010-06-06.