For Their Eyes Only - FAQs
For Their Eyes Only - FAQs
What are Closed Material Procedures or CMPs?
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.
When would CMP apply?
The Justice and Security Bill proposes that CMP should be available in all civil proceedings, wherever any of the evidence raises national security concerns.
Who are Special Advocates and what do they do?
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.
Will inquests be covered by the Bill?
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.
What are the alternatives to CMP?
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
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
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
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.
What is the Government’s argument for extending CMP?
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.
What are Norwich Pharmacal Applications?
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
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.