Closed courts and secret evidence

One of the most serious casualties of the ‘War on Terror’ was the ancient principle that justice should be done in public after hearing arguments from both parties.

Even in cases where the answer might appear to be obvious there is a basic right to be heard and to challenge the evidence against you. Judges must be open to public scrutiny if they are to maintain confidence and authority. Both of these fundamental rights are now specifically protected in civil and criminal cases by Article 6 of the Human Rights Act.

However, following the creation of the Special Immigration Appeals Commission (SIAC) in 1997, the idea of ‘secret justice’ has taken root in the UK. There is now effectively a parallel system of secret courts and secret evidence.

What is the Special Immigration Appeals Commission?

SIAC was originally created to provide a fairer system for reviewing government decisions to remove someone from the country on grounds of national security.

It is not a Court and its hearings do not resemble criminal or civil proceedings: they are often held in private and the person appealing (appellant) may be excluded from the parts of the hearing if the government seeks to rely on sensitive evidence.

If this happens a ‘special advocate’ is appointed to look at the evidence and represent the appellant’s interests. Once the advocate has seen the secret evidence, however, he or she is not allowed to speak to the appellant so cannot take instructions.

Other uses of ‘secret evidence’

In the last decade Parliament has passed legislation permitting secret evidence in various types of cases, the most notable example being control order cases where those accused of terrorism can be subjected indefinitely to severe restrictions without being told the evidence against them. In June 2009 the House of Lords ruled that in order to comply with Article 6 ‘controlees’ must at least be told the general picture of the government’s case.

On May 28th 2012 the Government introduced Justice and Security Bill in the House of Lords. Announced in the wake of high-profile and embarrassing litigation and media investigations which revealed the UK Government’s shameful involvement in extraordinary rendition, torture and indefinite detention without trial, the Bill seeks to limit public scrutiny of the Government and our security services and public bodies and avoid further embarrassment by sweeping aside a centuries-old justice system in favour of one that is deeply flawed and unfair.

Now passed, the Justice and Security Act has made drastic changes to our system of justice and fair trials. Find out more.