If it’s Secret, is it Justice?

This week — not for the first time — the threat of international terrorism is presenting our judges with the most difficult questions they have to confront.

I am writing this piece en route to a conference in New York, where I shall be speaking (briefly) on planned changes in England and Wales to the law governing private prosecutions for war crimes.

It seems strange to be visiting a country where some commentators do not seem to share what I regard as a non-negotiable position in the fight against terror — that the rule of law must always be maintained, however thinly it may sometimes be stretched. In the US, you hear people argue that suspected terrorists have forfeited their rights, that they are “unlawful enemy combatants” who do not deserve the same basic rights as any other human being.

That position is not only demeaning, unprincipled and counter-productive. It also allows its proponents to duck the intellectual challenge of maintaining the rule of law in the face of an unprecedented threat.

Grappling with this intellectual challenge in the Court of Appeal this week have been Lord Neuberger, Lord Justice Maurice Kay and Lord Justice Sullivan. Lord Neuberger, of course, took the posts of Master of the Rolls and head of civil justice in preference to a seat on the Supreme Court. Lord Justice Maurice Kay was a candidate for the resultant vacancy. But most people seem to think that the job has gone to Lord Justice Dyson, as one would have expected.

What this strong court is being asked to decide is whether anyone bringing a civil claim for damages can have a fair hearing if the defendant is not obliged to disclose the evidence in his possession.

The case was brought against the government by seven former detainees who had been held by foreign states in Guantanamo Bay and other locations. They brought claims for compensation against the British government, arguing that Britain had caused or contributed to their detention and ill-treatment — including unlawful extraordinary rendition and torture. 

Faced with a claim for damages, a court will normally order the defendant to disclose relevant documents — unless the defendant can persuade the court that disclosure would not be in the public interest.

Here, we are told, there are “over 250,000 documents identified as potentially relevant, each document often comprising many pages”. And, not surprisingly, many of them are highly sensitive: there are 140,000 potentially relevant documents marked “Secret” or above.

The courts have procedures for deciding whether information may be withheld in the public interest: the leading case involved a submarine lost through negligence during trials off Merseyside during the Second War.  But instead of claiming that specific documents were covered by “public interest immunity” (or PII, as it’s usually called), the government contended that an entirely novel “closed-material procedure” should be adopted for this case. 

Rather than the court deciding whether it was in the public interest for documents to be disclosed to the former detainees, that decision would be taken by the government. There would be disclosure to so-called special advocates, but they would not be able to discuss what was disclosed to them with the claimants or their lawyers.

But could such a procedure ever be lawful and proper? The claimants persuaded a judge to direct that this abstract preliminary issue should be decided first.

In the High Court last November, Mr Justice Silber decided that the court had the power to order a closed-material procedure.  It is this decision that the claimants want the Court of Appeal to overturn.

Their lawyers briefed Dinah Rose QC, who is rapidly becoming the barrister of choice in cases of this kind. She argued that the court had no power to order a closed-material procedure in a civil claim for damages. The court could not appoint a special advocate to reduce the protection available to a party. A special advocate could be used only to mitigate the effect of a process from which a party might be excluded.

In her view, the court had to consider three questions:

Does a court hearing a civil claim have the power to consider a written defence that had been concealed from the claimant?

Does the court have the power to permit non-disclosure?

Can the court conduct a trial in the absence of a claimant, consider documents that have been concealed from the defendant and give a judgment that would be kept from the defendant?

Rose said the answer to all three questions was “no”. It followed that special advocates could not provide a solution to the problem.

There were only three types of case in which a court could sit in the absence of one of the parties. One was where statute permitted this — for example, in the case of control orders. The second was where a party was seeking a temporary order to preserve the subject matter of the claim pending a full hearing. And the third was in wardship or adoption cases where the interests of the child were paramount and information might therefore be kept from a parent.

In this case, she continued, the PII procedure should be followed. First the Secretary of State and then the court would have to balance the harm caused by disclosure against the damage to the administration of justice caused by non-disclosure.

Of course, the court would perform that balancing exercise in the absence of the claimants. And there would be no difficulty in having a special advocate at that stage to help the court decide where the public interest would lie.

The government’s position is, as you would expect, that Mr Justice Silber was correct to have decided that there might be circumstances where it was lawful and proper for the court to adopt a closed-material procedure.

But that was not good enough for the Court of Appeal, which did not want to decide the case in the abstract: they asked Jonathan Crow QC, for the government, what procedure he was seeking to adopt in this case. No doubt the judges had in mind the possibility of further preliminary litigation — perhaps going to the Supreme Court for the second or third time — to decide whether a particular closed procedure would be lawful.

In his written submission to the court, Jonathan Crow summed up the government’s position by saying that although there was a general presumption in favour of open disclosure “there is no absolute entitlement to full and open disclosure in all cases”. The common law has long been ready to adapt its procedures, he added.

We shall see.

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