Frances Webber assesses proposals in the coalition’s Justice and Security green paper to extend secret evidence regimes to any civil proceedings.
‘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.’ So said Dinah Rose QC, a former special advocate, at a public meeting in parliament in March 2009 called to discuss the use of secret evidence. The government’s green paper, Justice and Security, published in October 2011, proposes withholding evidence from claimants in all civil proceedings, from eviction to wrongful imprisonment and assault, and in inquests too, if ‘sensitive material’ is relevant. The proposals, overshadowed by Leveson and media misdeeds, received little publicity, and when the consultation ended in January 2012, only ninety responses had been received. But they threaten further injustice and insecurity for those affected by government illegality.
The victims of state security action, police shootings, deaths in custody are always the most powerless in society and almost always minorities – Muslims, Black or Irish – who are vulnerable both to racist assumptions about their behaviour and to extra-judicial punishments by police and other officials. That is why the proposals to extend the highly prejudicial secret evidence regimes currently operating in national security deportations and Terrorism Prevention and Investigation Measures (TPIM) cases into civil actions and inquests, and to create a special court along the lines of the Special Immigration Appeals Commission (SIAC) to hear such cases, are so dangerous.
The government fought hard, fortunately unsuccessfully, in Binyam Mohamed’s case to prevent disclosure of confidential intelligence reports which proved his claim that confessions to terrorist activity which he made in Pakistan in 2002 were obtained under torture, and that British intelligence agents provided questions and information to the US interrogators. Denial of access to the documents would have prevented him from proving the ill-treatment in the US court, which would have meant a real risk of conviction and execution as a terrorist.
The government has cited Azelle Rodney’s case as justification for seeking to widen the secret evidence regime to inquests. On 30 April 2005 Azelle Rodney had eight shots fired at him at close range by Met police firearms officers as he sat unarmed in his car. Although the Independent Police Complaints Commission investigated the killing and passed a file to the Crown Prosecution Service (CPS) to consider prosecuting the officers responsible, not only were no charges brought but an inquest stalled in 2007; the family wanted to hear evidence of the police pursuit but the police wanted to keep the evidence secret, and the coroner could not continue. A public inquiry, which has wider powers to restrict attendance and to close hearings, started in 2010 – but Sir Christopher Holland, the inquiry chair, said that much of the ‘secret’ evidence did not need to be secret. His observation undermines the government’s assertion that a secret evidence regime would enable an inquest to take place, and for more civil claims to be brought. The point is that, particularly given the history of black deaths at the hands of the police, both the family and the public have a right to know why he was shot. It is very hard to understand what legitimate interests can override that of open justice and accountability in cases such as this.
It is not surprising that groups like the Campaign Against Criminalising Communities (CAMPACC), Coalition Against Secret Evidence (CASE) and INQUEST strongly oppose the government’s proposals, which would prevent the obtaining of such documents in the future. The government proposes taking the issue of disclosure out of the court’s hands in cases like Binyam Mohamed’s – if a minister claimed that national security or relations with a friendly state would be compromised, the court would have no power to order disclosure.
Many of the responses to the green paper and the written submissions to the Joint Committee on Human Rights (JCHR) inquiry on the proposals talk about ‘function creep’ – how a secret evidence procedure, once established for so-called exceptional cases, becomes routinely used. They point out that power already exists for courts to protect national security by the ‘public interest immunity’ (pii) procedure, whereby the judge looks at sensitive material and if he or she agrees that it cannot be disclosed, neither side can use it. In the procedures which the government proposes to extend, one side, the government, uses the documents but the other side, the claimant or appellant, and his or her lawyers are excluded from the hearing, from seeing all relevant documents and even from knowing the reasons why he or she has won or lost the case. The government argues that the claimant or the appellant is protected by the fact that an independent judge sees the material. But as the supreme court has acknowledged, this is of little use if the only person who can really challenge it – the person the evidence relates to – cannot see it or comment on it. Rejecting the government’s argument for secret evidence in the damages claim brought by former Guantánamo detainees, the court ruled: ‘Evidence which has been insulated from challenge may positively mislead.'
This is precisely the argument used by CAMPACC and CASE to oppose the secret evidence regime in SIAC: special advocates, who hear the secret evidence, can’t challenge it without knowing the accused person’s response to it, and the accused person can’t be told. But the government points to the SIAC special advocate regime as a model of fairness which can be replicated across the board in cases involving ‘sensitive’ evidence. Fifty-seven special advocates have signed a response to the green paper, that the SIAC system is in fact inherently unfair, does not work effectively and does not protect appellants.
The courts’ record on protecting the right to open justice against the claims of national security is a very mixed one. The courts have ruled that people subject to a control order (now a TPIM) are entitled to know the gist of the allegations against them (but not the evidence), but that people facing deportation on national security grounds are not. Even evidence about the risk of torture to them on their return can be withheld from this group. And when in 2001 Lord Saville, chairing the inquiry into Bloody Sunday, rejected British soldiers’ requests for anonymity and to give their evidence in London rather than in Derry, the Court of Appeal overruled Saville, holding that the soldiers’ rights to anonymity and security were more important than the families’ and the community’s right to see and hear the soldiers’ evidence in their own city. The court’s conclusion was premised on the assumption that the men were at risk from violent, revenge-seeking families nearly thirty years after the death of their loved ones. The fact that killing in the service of the state should confer the unique privilege of not being named and publicly shamed turns accountability on its head.
Already, as Scotland Yard and the CPS start their investigations into Libyan former dissidents’ allegations that British intelligence agents helped in their abduction and rendition to Gaddafi’s torture cells, and families begin civil claims, it seems justice will be denied and agents granted legal impunity. The government has indicated that the agents’ actions were authorised by ministers – and ministerial authorisation for crimes committed abroad by members of the security services makes their perpetrators immune from criminal and civil liability in the British courts. Presumably the Justice and Security green paper proposals are designed to ensure that in the future, such activities are not even known about, let alone punished. The secrecy proposals make it far too easy for serious state crimes to go undetected and unpunished. The families of those subjected to abuses of power, whether kidnapping and complicity in torture and wrongful detention abroad or deaths in custody, police shootings of members of the public, assault or wrongful arrest at home, know how vital transparency is for justice and for the prevention of further abuses.
Download the Justice and Security green paper here (pdf file, 644kb)
View the responses to the Justice and Security green paper here
Joint Committee on Human Rights (JCHR) inquiry: ‘The Human Rights Implications of the Justice and Security Green Paper’