[Briefing prepared for the Coalition against Secret Evidence.]
The right to a fair trial, an essential principle of the legal system enshrined in both domestic and international law, is limited by the use of secret evidence in judicial proceedings. 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.
The use of secret evidence has become all too common in deportation and terrorism cases. The Special Immigration Appeals Commission (SIAC) deals with appeal hearings against decisions made by the Home Office to deport someone on grounds of national security. When the government deems that the publication of some evidence could pose a risk to national security, appellants, and their counsel, are denied access to the full evidence against them. They cannot properly prepare a defence. To mitigate this situation, special advocates – state-appointed barristers who represent the detainees in closed sessions – are given access to the secret evidence. However they are prohibited from discussing anything that takes place in these sessions with either the detainees or their lawyers.
This closed court process does not give confidence that the evidence can be properly examined or that it has been obtained in a wholly legal manner. Former Special Advocate, Dinah Rose QC describes the great difficulties she encountered taking evidence in closed sessions when the Home Office had applied to revoke a detainee’s bail on the basis of secret evidence: “I can still recall my deep feeling of shame when I heard the appellant ask the judge the question: why are you sending me to prison? To which the judge replied: I cannot tell you that. I could not believe that I was witnessing such an event in a British court. I could not believe that nobody protested or made a fuss. They simply took him to jail, without any explanation at all.”
The reliability of secret evidence is questionable; it may consist of hearsay evidence possibly obtained though bribery or coercion or even from torture. Information received from friendly countries, such as Pakistan, Algeria and the United Arab Emirates, as well as from Guantánamo Bay, likely to have been obtained through the torture of alleged terror suspects cannot be used in an open court in the UK. However, it can and has been passed as secret evidence. On the basis of secret evidence concealed from them, individuals – sometimes not even charged – have been detained in high-security prison units for years without ever knowing what they are accused of. Around 20 individuals are currently waiting for SIAC to hear their appeals against deportation, and several dozen have passed through SIAC since 2001. Some have been deported. Some are let out of prison, but given bail conditions so restrictive that they choose to risk torture instead by seeking ‘voluntary’ return to their countries.
Like SIAC proceedings, control orders - and the state's defence against appeals to end or modify them - may invoke secret evidence. Forty, or more, have had to live under the severe conditions of the control-order regime (a breach of which becomes crime). With restrictions on visitors, use of phones or internet, these orders affect their families as well. They can have their property confiscated, bank account frozen, face travel restrictions and curfews of up to 16 hours per day. Their movement outside the home may be limited to a few streets. These conditions, continuing for years, have led some to contemplate suicide. Control orders can be imposed indefinitely, although they are renewed every 12 months. Seventeen such orders are currently in force.
When the government invokes national security as a ground to introduce the use of secret evidence, the accused has no chance. There is no way to challenge either the evidence or the decision to use it, whether it is justified or whether it is a politically motivated catch-all excuse. Gareth Peirce explains: “‘Security’ is such a dramatic yet ill-defined concept that those in power are able to curb criticism and shut down debate by invoking it and by claiming to possess vital knowledge (which cannot, of course, be safely revealed) to support their actions or policies. Those in power draw on traditions of deference and non-partisanship when it comes to security, making it unnecessary for governments to provide reasoned justification when security is said to be at stake. There is therefore a dangerous circularity to the entire process. Deference is fed in part by ignorance, and ignorance is fed in turn by claims that secrecy is indispensable. The public receives only the barest of justifications, which it is supposed to take on trust, while the government machine ignores or short-circuits normal democratic processes.” As the role of the UK in complicity with torture is being revealed little by little, we discover that “national security” is a convenient excuse to hide possible culpability by agents of the government.
SIAC is not the only form of legal proceedings to make use of secret evidence. Foreign Secretary David Miliband has repeatedly tried to stop the High Court from disclosing information about what Britain's security and intelligence agencies knew of the torture of Binyam Mohamed. This case was only brought after the government refused a request by the lawyers to make public “secret evidence” that could exculpate Mr. Mohamed in an American case. Miliband has argued that publication would cause irreparable harm to Britain’s relationship with America.
A government proposal, in the Coroners and Justice Bill, to hold some inquests in secret where issues of national security were involved was dropped in May 2009, only after vociferous campaigning by CAMPACC, Inquest and other organisations. However, the government can also use powers under the Inquiries Act 2005 to substitute an inquiry for an inquest and to hold part of the inquiry in secret in inquests involving the military or, again, when questions of national security arise. Solicitor Louise Christian adds “Rule 54 of the employment tribunal procedures allows an order for secret evidence and "special advocates" even in employment cases. Government employees such as immigration or customs and excise officers from whom security clearance is withdrawn – all of whom just happen to be Muslims – are not told the reasons they have lost their jobs. Instead they are faced with secret evidence and orders for "special advocates" in their race discrimination claims.” Secret evidence can also be used to refuse or revoke British citizenship – those affected have no right to know the reasons for these actions.
In February, the European Court of Human Rights ruled that when the open evidence is insubstantial and that the evidence relied upon is largely to be found in the closed material that those accused are not “in a position effectively to challenge the allegations against them”. This constitutes a violation of Article 5(4) of the European Convention on Human Rights, which states: “Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.” Earlier this month, the House of Lords ruled unanimously that the use of secret evidence to impose control orders on individuals in situations was a breach of their right to a fair trial (Article 6 of the European Convention of Human Rights), that “everyone is entitled to the disclosure of sufficient material to enable him to answer effectively the case that is made against him.”  This reliance upon secret evidence by the United Kingdom has also been condemned by other international bodies including “the Eminent Jurists Panel” of the International Committee of Jurists, the UN Committee on Human Rights, the UN Special Rapporteur on Human Rights, the European Committee for the Prevention of Torture and the European Commissioner for Human Rights.
An Early Day Motion (EDM 1308), tabled by Diane Abbott MP, declares “this House believes the use of secret evidence in UK courts is fundamentally wrong [...] and calls on the government to begin an immediate independent review into the use of [secret] evidence” in UK courts. Several concerned NGOs and individuals have set up the Coalition Against Secret Evidence (CASE) and will be lobbying against the use of secret evidence in the UK courts.
To find out how you can help and learn more, check out the CASE website.
(Many thanks to the CASE supporters who reviewed this article and offered corrections and improvements.)
Bootnote: my MP, Labour, has not (yet) signed the EDM; I am still waiting to hear from her as to whether she will. She wrote me last month:
As a lawyer the use of secret evidence to detain terror suspects is of great concern to me. The principles that the accused should know the case against him and be able to challenge and that scrutiny of the evidence and decision should be possible are at the central to achieving justice. Terrorism cases where the publication of evidence poses a risk to national security present real challenges to our judicial system and to these principles.
The Special Immigration Appeals Commission plays an important part in meeting these challenges by allowing evidence that could not be heard in an open court to be examined by a Special Advocate and we must have confidence that they are able to perform this role with as little obstruction as possible. I was therefore very alarmed to read the reported comments of the former Special Advocate, Dinah Rose QC who described the great difficulties she encounters in defending her clients and exposing the falseness of evidence presented by the prosecution.