Liberty - Protecting civil liberties, promoting human rights

Closed Material Procedures essentially allow the Government to present evidence to a judge without having to disclose it to the whole court, including the defendant or claimant (depending on whether it’s a criminal or civil trial).

Originally devised for application in the immigration system and first introduced in 1997, they are a mechanism currently used in certain types of specialist proceedings and only in a very small number of cases.

The use of CMP, even to this limited extent, has been controversial and subject to unending litigation. Despite this, the Bill proposes to extend the mechanism to the ordinary civil law. It proposes that the law should be changed so that where a Minister decides that certain material, if openly disclosed, would cause damage to the interests of national security, he or she can trigger the use of CMP by application to the court. This means the material will not be disclosed to the other side, yet the Government will be allowed to put the material before a judge and rely on it in defending or pursuing a claim through the courts.

Being able to present evidence to a judge without the other side having the chance to refute it or even know what it is obviously gives the Government a huge advantage in legal proceedings and the potential to present a very one-sided or misleading version of events.

The Justice and Security Bill proposes that CMP should be available in all civil proceedings, wherever any of the evidence raises national security concerns. 

Special Advocates, or SAs, are appointed by the Government to act in the interests of those whose appeals are subject to CMP.

However, unlike legal representatives, SAs are unable to disclose material to the person whose interest they represent, are not allowed to communicate with the person concerned without the permission of the Government and can never communicate with them about the secret evidence. This means that they are often required to contest evidence on the basis of guesswork and estimation.

Many of those who have been appointed as Special Advocates have resigned in protest at the unfairness of the system or expressed frustration at the unfairness of the system.

No – although originally included in the Green Paper, under the Bill CMP will not be available in coronial inquests.

The Green Paper suggested a number of reforms to the coronial system for inquests that need to consider “sensitive material.” These included amendments to the Coroners Rules to allow a coroner to have CMP for part or all of an inquest (and for the deceased’s family to be represented by a SA in closed sessions, receiving ‘gists’ of sensitive material); security vetting of family members; asking jurors to sign confidentiality agreements; requiring jurors to undergo security clearance; and light touch vetting of jurors.

Liberty welcomed the Government’s withdrawal of this original proposal to extend CMP to inquests. Given a number of highly sensitive, national security related inquests have successfully been concluded under current arrangements (using the PII process) – such as the inquest into the shooting of Jean Charles de Menezes and the 7/7 inquest - the Government’s concession on this issue was hardly surprising.

However this does not mean that victims’ families will not be affected by the Bill. Inquests provide families vital answers about how their loved ones died. Where the State or a public body is found to have been implicated in the death, families may then choose to pursue that wrongdoing by seeking a remedy, such as compensation, in the courts. Accordingly, while CMP won’t now be available in a coronial inquest, it may well become relevant in any follow up litigation following its conclusion.

The law relating to Public Interest Immunity (PII) is the current mechanism for ensuring that material harmful to the public interest is not put into the public domain in civil proceedings.

PII principles have been developed by our courts over several decades and they have ensured that courts strike the appropriate balance between protecting the public interest and the need to ensure fairness.

Currently, if a Minister considers that the disclosure of a document could harm national security he or she can sign a certificate to that effect. The court will then consider the issue – looking at the material in question if necessary – and balance the public interest in withholding the document against the interests of justice in disclosing it.

Crucially - unlike CMP if the court decides in favour of disclosure then it is disclosed to all parties, unless the party holding the material decides not to rely on it or to abandon its case. If the court decides against disclosure then the document is not admitted into the proceedings at all and cannot be relied upon by either party.

This means that litigation in which information is withheld under PII can still be conducted openly, on the basis of admissible evidence, with the parties on an equal footing. Each then receives a fair hearing and a judgment publicly explaining why the court has reached its decision.

The Government’s main argument for extending CMP is that it will allow more information than PII to be put before a judge therefore enhancing procedural fairness by allowing the court to examine “all relevant material”. But evidence submitted in secret by one party, without being examined or tested by the other side cannot be equated with “facts” let alone “full facts”. If the evidence is untested it is likely to be unreliable and even misleading.

The Government has also argued that without the general availability of CMPs in the civil law, in future some claims may not be able to proceed in circumstances where material crucial to a case may be too sensitive to reveal in open court. However, the Government has been unable to come up with any reliable examples of this happening in the past.

In addition to the extension to CMP, the other main change set out in the Bill relates to Norwich Pharmacal (NP) applications.

These are civil applications that enable a claimant to obtain the disclosure of information from a defendant who is associated with arguable wrongdoing of a third party.

Essentially this means that if you wanted to make a claim of mistreatment or wrongdoing against an individual or organisation and you believed that another (third) party had crucial information relating to your case against them, you can make a Norwich Pharmacal Application to ask the court to require them to reveal this information.

Currently this could include a Government department or any other public body (including the security services, police or the army), but the Justice and Security Bill will exempt the Security Services and block other public bodies from being subject to such applications.